Two recent Sixth Circuit cases dealing with reasonableness review showcase the continuing problem of how to make both the constitutional and remedial parts of Booker work in practice.
The district court in United States v. (Conrad) Smith, No. 05-4425 (6th Cir. 1/26/07) (Kennedy, J., & Aldrich, D.J. (NDOhio); Gibbons, J., concurring), departed upward from the Guidelines range of 30-37 months to 57 months under §4A1.3 based on the inadequacy of the defendant's criminal history calculation. In reviewing the sentence for reasonableness, the Court of Appeals decides to apply the pre-Booker 3-step approach of U.S. v. Joan, 883 F.2d 491 (6th Cir. 1989). In doing so, the court notes the "obvious conclusion" that "review of a district court's upward departure to a higher offense level should mirror our analysis of its variance from the guidelines range." While this purports to be a discussion about departures, exactly the opposite is happening -- review of a post-Booker variance is being put in the straightjacket of Guidelines departure review. The two are not co-equal. The first step in Joan is "whether the circumstances of the case are sufficiently unusual to justify departure." Post- Booker, however, the review of a variance is not limited to the strictures of departure. See, e.g., U.S. v. McBride, 434 F.3d 470, 476 (6th Cir. 2006) ("Furthermore, many of the very factors that used to be grounds for a departure under the Guidelines are now considered by the district court – with greater latitude – under section 3553(a).") (emphasis added). Recognizing that, in fact, review post-Booker is not the same as review under the Guidelines, the Court in Smith notes that its ultimate job is to determine whether the sentence is reasonable and so imports reasonableness review, but only into the 3rd step of Joan (where it already existed).
While a step backward from the guidelines-are-advisory direction of Booker, this case should not be expanded beyond what it actually is -- review of a departure (not a variance). The higher sentence here was given pursuant to §4A1.3 and not as a consideration of the § 3553(a) factors. As such, it should not be used in any case involving the discussion of a post-Booker variance, even based on criminal history factors.
Judge Gibbons' concurrence would accord a presumption of reasonableness to the range to which the district court departs (in this case 46-57 months) because the §4A1.3 departure occurs within the structure of the Guidelines, as opposed (she notes) to a §5K2.0 et seq. departure. Such an extension, however, would accord such upward departures even greater protection than they had under the mandatory Guidelines.
In United States v. Funk, No. 05-3708 (6th Cir. 2/22/07) (Batchelder, J., Boggs, C.J., & Bell, C.D.J. (WDMich.)), the Court confronts the opposite situation of Smith – the district court in this post-Booker re-sentencing remand found that the career offender provision overstated the defendant's criminal history and applied the Guidelines without reference to the career offender provision, sentencing the defendant to 150 months, instead of within the 262 - 327 month range career offender would have required. The district court gave a lengthy explanation at the re-sentencing hearing and supplemented its decision further in the judgment and commitment order. In reversing the district court, the Court accords no presumption to the sentence since it is outside the Guidelines range. (Implicitly rejecting, without discussing, Judge Gibbons’ suggestion in Smith that a §4A1.3 departure should be accorded such a presumption because it is a "within the Guidelines" change. It is also not clear from the opinion whether this is a departure or a variance, though the opinion treats it as a variance.)
What the Court of Appeals takes biggest issue with is the district court’s finding that a sentence of 150 months would be sufficient in this particular case. "Sufficient, but not greater than necessary" is, of course, the standard imposed on district court’s by Congress in § 3553(a). The Court finds that the district court’s sentence reflected "a disagreement with Congress about what an appropriate sentence for a repeat offender meeting the criteria of U.S.S.G. §4B1.1 would be." The Court therefore holds that "a district court making sentencing determinations may not implicitly reject Congress’s policy decision to prescribe harsher penalties for career offenders by ignoring or outright rejecting a defendant’s status as a career criminal offender."
How then to reconcile the district court’s Congressional mandate to impose a sentence "sufficient, but not greater than necessary" with the Congressional (and Supreme Court’s Booker) dictate that the Guidelines are one of the factors the district court must consider in setting the sentence? To do as the Court has done in Funk is to once again accord the Guidelines status as a mandatory body of law, something that Booker forbids. If the Guidelines are truly "advisory only," then they must always be subservient to higher dictates of law, such as the parsimony provision of § 3553(a). What the Court has done in Funk is to say that one of the factors of § 3553(a) trumps the over-riding dictate of § 3553(a) to impose a sentence sufficient but not greater than necessary to achieve the aims of sentencing. If the Guidelines are truly advisory, a district court must always be free to say, "for the following reasons, I find that the Guideline range, and the basis for getting there, does not meet the aims of § 3553(a)."
The problem with even describing a sentence outside the Guidelines as "a variance" is that by definition it accords the Guidelines preeminence and status as the default starting point. If Booker and its progeny are correct, and the Guidelines are but one of the factors that are to be considered under § 3553(a), then the Guidelines cannot be the starting point and a sentence that is not within the Guidelines is not "a variance," but is simple the sentence that is "sufficient, but not greater than necessary" to accomplish the aims of § 3553(a).
While this might suggest a system that is as uncontrolled as the pre-Sentencing Reform Act days, the check on runaway district court judges is an appellate requirement that the district court give a meaningful explanation for its sentence that focuses on the 3553(a) factors and the parsimony provision of 3553(a). This is, of course, one of the issues pending in Vonner.
Both Smith and Funk give scant attention to the view of the Guidelines as but one part of the district court’s consideration and continue the recent trend forward to the past of binding Guidelines sentencing by importing the stricture of departure standards into post-Booker discussions and by according the Guidelines stature that is inconsistent with the decision in Booker. The idea that the further one "varies" a sentence, cited in both Smith and Funk, the greater must be the explanation in support of it was met with skepticism by Justice Breyer during the argument in Claiborne. ("And if he has a good reason, well, why doesn't it justify a lot just as much as it might justify a little?") Given that Justice Breyer was the author of the remedial part of the decision in Booker, this may only highlight the confusion caused by the Supreme Court’s failure in Booker to explain how such an advisory-only system would work. Hopefully we will get that explanation in Rita/Claiborne.