Thursday, March 22, 2007

Makes You Think

In Booker the Supreme Court told us that the Guidelines were but one factor to be considered in deciding the sentence. The Court of Appeals has since confirmed that the Guidelines do not have any more weight than any other factor at sentencing. Review of a sentence in the Court of Appeals is for the reasonableness of the sentence. A Guidelines sentence is accorded a presumption of reasonableness. [But Webb at fn9?] A sentence must be procedurally and substantively reasonable.

Surely, the first measure of what is reasonable would be to examine the Guidelines in the context of the statutory range? Surely, too, the statutory range would set the limit of what could possibly be reasonable? Maybe in some world where everyone agreed about what the post-Booker structure of sentencing would be, but not here.

In United States v. Merrell, No. 05-6577 (6th Cir. 2007), the Guidelines range in this methamphetamine case was 360 months - life, but the statute carried a maximum of 20 years (240 months). Judge Katz (district judge, NDOhio), writing for Judges Clay and Rogers, finds the maximum sentence of 240 months to be substantively reasonable noting that the 240 months was "a figure one-third less than the low end of the Guidelines range." (Slip Op. at 12)

Some might think that a Guidelines range that exceeded the statutory maximum by 50% (and more) would itself be per se unreasonable. Some might think that such a Guidelines calculation would demonstrate the very Sixth Amendment problem in Blakely and Booker where uncharged conduct is used to increase a potential sentece above the statutory maximum. Some might take this to be evidence that the Guidelines are, in fact, deeply flawed and out of true with the very statutes to which they purport to pertain. Some might think that the statutory maximum would be reserved for the worst of the worst who had no mitigation, instead of a case involving meth manufacture by a meth addict where even the sentencing court noted that the defendant's criminal history was all related to his drug addiction. Some might think so, but not this court.

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