Friday, February 23, 2007

Forward We March Into the Past

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.

Tuesday, February 13, 2007

Paradigm Shift or Business As Usual? A Brief History of Reasonableness Review in the Sixth Circuit

The Supreme Court’s decision in United States v. Booker, 543 U.S. 220 (2005), provided the opportunity for a wholesale re-examination of the federal sentencing scheme that had held judges, defendants and practitioners alike in thrall for some 17 years. Booker’s emphasis on the § 3553(a) factors, with the Sentencing Guidelines relegated to the status of one-among-equals, seemed to restore much needed discretion to the sentencing courts and humanity to those being sentenced. The question for everyone post-Booker was what would this new landscape look like? Would it, in fact, be a brave new world and a bold step forward, or would it be the same darkling plain?

With no surprise to anyone, after circling the wagons, the government position was to continue on with the Guidelines as if Booker had never happened. In a memorandum dated January 28, 2005, Deputy Attorney General James B. Comey directed "all federal prosecutors" to "take all steps necessary to ensure adherence to the Sentencing Guidelines." p. 1. He further directs, "[f]ederal prosecutors must actively seek sentences within the range established by the Sentencing Guidelines in all but extraordinary cases." Id. p. 2. (emphasis added) "[I]n any case in which the sentence imposed is below what the United States believes is the appropriate Sentencing Guidelines range ... federal prosecutors must oppose the sentence... ." Id. (emphasis added) Any sentence outside of the Guidelines must be reported to the Department of Justice. Id., p. 3. This would certainly appear to be a directive by the second highest federal law enforcement officer in the country to ignore the law of the United States Supreme Court.

The last two years in the Sixth Circuit has seen the parallel development of two distinct bodies of law on post-Booker practice that appears to have finally led to some kind of en banc resolution. The first part of the year after Booker was released was spent dealing with which cases would be remanded for re-sentencing under Booker. Because United States v. Oliver, 397 F.3d 369 (6th Cir. 2/2/05), was released the day before United States v. Bruce, 396 F.3d 697 (6th Cir. 2/3/05), vacated in part by 405 F.3d 1034 (6th Cir. 2005), most cases saw remand under Booker. Once that was done, the Court got down to the business of deciding what the new obligations of the district courts were in sentencing post-Booker and what "reasonableness" review would mean.

The first attempt at defining reasonableness review came in United States v. Webb, 403 F.3d 353 (6th Cir. 4/6/05). In Webb, Judge Moore, joined by Judge Martin, explained that reasonableness review would include not only a review of the length of the sentence (substantive reasonableness), but also a review of the manner in which the sentence was imposed and the explanation given by the district court (procedural reasonableness). The Court at this point refused to "define rigidly ... the procedure that a district judge must employ in sentencing post-Booker." The Court also noted in footnote 9 that it was "declin[ing] to hold that a sentence within a proper Guidelines range [would be] per-se reasonable. Such a test is not only inconsistent with the meaning of ‘reasonableness’ [citation omitted], but is also inconsistent with the Supreme Court’s decision in Booker, as such a standard would effectively re-institute mandatory adherence to the Guidelines." In dissent, Judge Kennedy notes that a Guidelines sentence should be presumed reasonable since the type and number of factors considered by the Sentencing Commission in its creation of the Guidelines were themselves reasonable.

Webb
/
Booker

The start of the new year Judge Martin explained in United States v. McBride, 434 F.3d 370 (6th Cir. 1/17/06), that "while the Guidelines remain important, they are now just one of the numerous factors that a district court must consider when sentencing a defendant... Once the appropriate guideline range is calculated, the district court throws this ingredient into the Section 3553(a) mix. Considering, as Booker requires, all of the relevant Section 3553(a) factors, including the guideline range, the district court then imposes a sentence." Footnote 3 begins to flesh out the parameters of the Court of Appeals’ review of a district court’s imposition of sentence explaining that a district court must explain the reasons for its sentence, and that simple recitation of the § 3553(a) factors will not be enough. Distinguishing this brave new world from the Age of the Guidelines, the Court notes that while Guidelines-era caselaw would prohibit the Court from considering the extent of a departure, post-Booker the Court could – and Booker requires - review the length of the sentence for reasonableness. Noting the more expansive landscape post-Booker, the Court explains, "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)."

Webb -- McBride
/
Booker

Two weeks later Judge Cook, writing for Judges Siler and Sutton, announced that "We now join several sister circuits in crediting sentences properly calculated under the guidelines with a rebuttable presumption of reasonableness." United States v. (Leonard) Williams, 436 F.3d 706 (6th Cir. 1/31/06). Although the cited authority for this proposition is the Booker opinion, the quoted section actually seems to support the reverse. ("holding that the modified Federal Sentencing Act ‘requires a sentencing court to consider Guidelines ranges, but ... permits the court to tailor the sentence in light of other statutory concerns as well.’ (citation omitted).") There is no discussion in Williams of footnote 9 in Webb.

Webb -- McBride
/
Booker
\
Williams

A week later, however, Judge Martin announced what the presumption meant (or didn’t mean). In United States v. Foreman, 436 F.3d 638 (6th Cir. 2/8/06), the Court explained,

"Although this statement seems to imply some sort of elevated stature to the guidelines, it is in fact rather unimportant. Williams does not mean that a sentence outside of the guideline range—either higher or lower—is presumptively unreasonable. It is not. Williams does not mean that a guideline sentence will be found reasonable in the absence of evidence in the record that the district court considered all of the relevant Section 3553(a) factors. A sentence within the guidelines carries with it no implication that the district court considered the 3553(a) factors if it is not clear from the record, because, of course, under the guidelines as mandatory a district court was not required to consider the Section 3553(a) factors. It would be unrealistic to now claim that a guideline sentence implies consideration of those factors.
Moreover, Williams does not mean that a sentence within the guidelines is reasonable if there is no evidence that the district court followed its statutory mandate to "impose a sentence sufficient, but not greater than necessary" to comply with the purposes of sentencing in Section 3553(a)(2). Nor is it an excuse for an appellate court to abdicate any semblance of meaningful review. Appellate review is more important because the guidelines are no longer mandatory. Under the mandatory guideline system, appellate review was not integral to assuring uniformity. Now with the advisory guidelines and more sentencing variables, appellate review is all the more important in assuring uniformity and reducing sentencing disparities across the board."

The Court also points out that "reasonableness" is the appellate standard of review, not a description of the district court’s responsibility. That task is defined in the parsimony provision of § 3553 as imposing a sentence "sufficient, but not greater than necessary, to comply with the purposes" of § 3553(a)(2).

Webb -- McBride -- Foreman
/
Booker
\
Williams

The next week Judge Moore, writing for Judges Siler and Batchelder, further clarified that in addition to addressing the 3553(a) factors, the district court must also, where a defendant raises a particular argument in seeking a sentence below the Guidelines, address the proffered mitigation and explain its basis for rejecting it. United States v. Richardson, 437 F.3 550 (6th Cir. 4/17/06). In mentioning the Williams presumption, the Court here notes in a footnote that "[w]e have previously rejected the argument ‘that a sentence within a proper Guidelines range is per-se reasonable.’" Citing Webb.

Webb -- McBride -- Foreman -- Richardson
/
Booker
\
Williams

What seemed to be a fairly straight-forward rule in Richardson lasted barely two months before being limited. In United States v. Jones, 445 F.3d 865 (6th Cir. 4/17/06), Judge Polster (D.J., NDOhio), joined by Judge McKeague, wrote that a sentence within the applicable Guidelines range does not lose its presumption of reasonableness whenever a district judge does not explicitly address every defense argument for a below-Guidelines sentence. Judge Moore, who wrote the opinion in Richardson, dissented, pointing out that circuit precedent required that the record reflect both that the district court considered the defendant’s argument and that the judge explained the basis for rejecting it.

Webb -- McBride -- Foreman -- Richardson
/
Booker
\
Williams -- Jones

While the opinion authored by Judge Guy in United States v. Morris, 448 F.3d 929 (6th Cir. 5/19/06), upheld the within-Guidelines sentence imposed in "an excellent post-Booker sentencing hearing," Judge Clay took the opportunity to note in his concurrence that the "rebuttable presumption" language used in the panel decision was surplusage in Williams in light of controlling Sixth Circuit precedent (Webb) that the district court must consider the 3553(a) factors.

Webb -- McBride -- Foreman -- Richardson -- Morris
/
Booker
\
Williams -- Jones

A week later, reviewing what the panel referred to as a "model approach to sentencing in the aftermath of Booker," the per curiam panel of Judges Batchelder, Sutton and Coffman (D.J., E&WDKy.) noted that "to the extent Buchanan means to argue that courts of appeals may not give a properly calculated guidelines sentence a rebuttable presumption of reasonableness, he is wrong." United States v. Buchanan, 449 F.3d 731 (6th Cir. 5/26/06). In his concurrence, Judge Sutton expands on the idea first put forth by Judge Kennedy in her dissent in Webb that a Guidelines sentence should be presumed reasonable since the type and number of factors considered by the Sentencing Commission in its creation of the Guidelines were themselves reasonable. In addition to detailing the variety of procedures through which a district court in the Sixth Circuit must go in imposing a sentence, he also notes that "the guidelines remain the one § 3553(a) factor that accounts for all § 3553(a) factors." The presumption of reasonableness is warranted, therefore, because the Guidelines actually contain everything that Booker said should be considered by the district court at sentencing. [This, of course, begs the question why, if Congress in 28 U.S.C. § 991 had directed that the Guidelines contain all the 3553(a) factors, would 3553(a) have to list any factor other than the Guidelines?] In detailing the district court’s responsibilities, the concurrence notes that the district court judge must "give a reasoned explanation for the sentence." [For an exhaustive review of why the Guidelines do not contain all of the factors in § 3553(a) see Amy Baron-Evans’ excellent work (here).]

Webb -- McBride -- Foreman -- Richardson -- Morris
/
Booker
\
Williams -- Jones -- Buchanan

The Richardson/Jones debate would flare back up in United States v. Vonner, 452 F.3d 560 (6th Cir. 6/29/06). In Vonner, the defense counsel argued for a sentence below the guidelines range citing as mitigation defendant’s traumatic childhood, long history of alcohol and drug abuse, the circumstances around his involvement in the offense, the conditions of his presentence confinement, and his cooperation and assistance to the government. In imposing sentence the district court simply noted the 3553(a) factors and announced that it felt the sentence in the middle of the guidelines range was a reasonable one. Reversing, Judges Martin and Clay found that the lack of explanation for both the sentence and why the mitigation offered by the defense didn’t warrant a lower sentence was procedurally unreasonable. The Court noted that while the ritualistic incantation is not necessary, neither is it, by itself, sufficient. Along the way the Court referred to the decision in Williams to create the presumption of reasonableness as being done "without a reasoned explanation." The dissent by Judge Siler cites to Jones as not requiring the district court to address each and every item of mitigation offered by the defense, and says that if the defendant wants a more specific reason for not considering his mitigation, he should’ve asked the district court for it. He also notes, "The numerous cases by our court on the reasonableness of sentences post-Booker have confused attorneys and district courts alike." In a separate case, the Court - through Judges Cole, Daughtrey and Graham (D.J.; SDOhio) - reversed a 600 month sentence in United States v. Ray, 2006 U.S. App. LEXIS 18285 (6th Cir. 7/19/06) (unpublished), due to the district court’s failure to adequately explain the 25-year upward departure, noting that the farther the departure, the more compelling the explanation must be.

Webb -- McBride -- Foreman -- Richardson -- Morris -- Vonner -- Ray
/
Booker
\
Williams -- Jones -- Buchanan

The first substantively unreasonable sentencing case would come not from those members of the Court trying to create a meaningful post-Booker sentencing process, but from those trying to continue to conform to the Sentencing Guidelines as the presumptive sentencing scheme. In United States v. (William) Davis, 458 F.3d 491 (6th Cir. 8/14/06), Judge Sutton and Chief Judge Boggs reversed a sentence of 1 day imprisonment and 12 months of home detention in a bank fraud case in which the guidelines range was 30-37 months. In so doing, Judge Sutton now made explicit what he had put in his concurrence in Buchanan, that because the guidelines ultimately purport to account for most, if not all, of the 3553(a) factors, the Court’s review starts with the Guidelines which are presumed to be reasonable. The Court also adopted in this published opinion the proportionality review from Ray: the farther the departure from the guidelines, the more compelling the reasons must be. Since the departure in this case was "extraordinary," the circumstances justifying the sentence must also be extraordinary. [The use of the language of departures under the Guidelines must surely be no accident.] In dissent, Judge Keith notes, "the current trend across the circuits is to afford less deference to district court sentences that depart below the advisory guideline range over sentences that depart upward from the advisory guideline range." Referring to the majority’s discussion of the sentence as a percentage relation to what the Guidelines would’ve required, he notes, "In engaging in this mechanical assessment, the majority starts this Court down the path of the pre-Booker days where the district courts were bound by an algebraic application of the guidelines."

Webb -- McBride -- Foreman -- Richardson -- Morris -- Vonner -- Ray
/
Booker
\
Williams -- Jones -- Buchanan -- (William) Davis

The next day, the Court issued two opinions addressing sentencings in which the district court discussed whether the sentence to be imposed would be "reasonable." In United States v. Cage, 458 F.3d 537 (6th Cir. 8/15/06), Judges Batchelder and McKeague noted not only that a sentence within the guidelines would be reasonable, but also that, under Booker, there was a presumption in favor of the guidelines. In addressing appellant’s objection to the district court’s reference to the presumption of reasonableness of a guidelines sentence, the panel majority ruled the issue foreclosed by Williams’ adoption of the presumption. The panel majority then spends no small amount of ink defending the presumption and finally holds that "the district court did not err in viewing the Guidelines as a presumptively reasonable starting point and considering the Sentencing Guidelines and the Guideline ranges before the court does anything else. ... such a presumption comports with the Supreme Court’s remedial decision in Booker."

In dissent, Judge Clay sets out in the starkest fashion the differences between the two different approaches in the Sixth Circuit: "The majority opinion in this case represents the latest step in an ongoing push within this Circuit to subvert Booker [] and to make the sentencing Guidelines de facto mandatory. ... While the Williams Court erred in the first instance by holding that a sentence within the Guidelines range is presumptively reasonable on appeal, the majority has now alarmingly compounded that error by holding that district courts may consider a sentence within the Guidelines range to be presumptively reasonable. The majority’s holding in this case directly contravenes Booker, [3553(a)], and this Court’s prior holdings that district courts are to consider all the §3553(a) factors in arriving at a sentence sufficient, but not greater than necessary, to comply with the purposes of [3553(a)]." Addressing the presumption, Judge Clay goes on to say, "Nothing in the text of the [sic] § 3553(a) elevates the now-advisory Guidelines sentence above other factors or permits the district court to ‘presume’ that the advisory sentence would be reasonable for an individual defendant. ... The district court’s job is not to start with a Guidelines sentence and then decide whether a departure is warranted." In a footnote Judge Clay also noted, "I also question whether the rebuttable presumption language in Williams should be considered to be binding on this Court given the fact that the Webb Court had already stated that it declined to hold that a sentence within the Guidelines range is per se reasonable." [Addressing this footnote, the panel majority states, "A rebuttable presumption is, by definition, subject to rebuttal, which a sentence that is per se reasonable is not." Judge Clay notes, "Although the terminology is different, in reality I see very little real difference between saying that a Guidelines sentence is presumptively reasonable versus per se reasonable."] "It is not the district court’s job to assume the reasonableness of a Guidelines sentence; rather ... reasonableness is the appellate standard of review ... ." "This method of calculating Defendant’s sentence violated Booker in that the district court mistakenly believed that it was required to start with a Guidelines sentence and could only depart upward or downward if some other § 3553(a) factor, or combination thereof, compelled a departure. That is not now, nor has it ever been, this Court’s understanding or treatment of the Guidelines post-Booker."

Webb -- McBride -- Foreman -- Richardson -- Morris -- Vonner -- Ray
/
Booker
\
Williams -- Jones -- Buchanan -- (William) Davis -- Cage

United States v. (Lonnie) Davis, 458 F.3d 505 (6th Cir. 8/15/06), was released the same day as Cage and involved the same district court judge talking about whether or not the sentence he was about to impose would be "reasonable." While the Court also upheld this sentence, the reasoning between Cage and (Lonnie) Davis is different in its approach to the post-Booker caselaw. Where Cage found no error in the district court viewing the Guidelines as a presumptively reasonable starting point, Judges Moore, Sutton and Katz (D.J.; NDOhio) in (Lonnie) Davis note that the district court used the wrong standard at sentencing. The Court does not find reversible error, however, because in looking at the substance of what the district court did, as opposed to the language it used, the Court finds that the district court complied with the procedural reasonableness demands of Sixth Circuit caselaw by addressing all of the relevant 3553(a) factors in such a way that it appeared to the Court that the district court’s concern was, in fact, with imposing a sentence that was sufficient, but not greater than necessary, to comply with 3553(a), and not just a "reasonable" sentence.

Webb - McBride - Foreman - Richardson - Morris - Vonner - Ray - (Lonnie) Davis
/
Booker
\
Williams - Jones - Buchanan - (William) Davis - Cage

The same panel that decided (Lonnie) Davis, the next day reversed as procedurally unreasonable an 188-month sentence imposed in United States v. Harden, No. 05-4079 (6th Cir. 8/16/06). In doing so, the Court noted, "the district court failed to meet these procedural requirements. While the [district] court repeatedly stated that it had considered the § 3553(a) factors as well as the advisory Guidelines ... the record lacks ‘sufficient evidence ... to affirmatively demonstrates the court’s consideration of them.’ A district court’s perfunctory statement that it has considered the § 3553(a) factors, even when repeated, does not relieve the court of its obligation to explain how the factors informed its ultimate determination."

In all of the brouhaha about what reasonableness review will or will not be, the only defendant to have his sentence reversed as substantively unreasonable was William Davis whose sentence was found to be unreasonably low. In fact, for all of the to-ing and fro-ing noted above about how reasonableness review will function, very few sentences have been affected. Webb, McBride, Richardson, Morris and (Lonnie) Davis all upheld the district court sentences as reasonable.

On August 31, 2006, the Court decided United States v. Collington, 461 F.3d 805 (6th Cir. 8/31/06). In an opinion authored by Judge Martin, and joined by Judge Sargus, the Court affirmed as reasonable a sentence of 120 months in a crack cocaine/possession of a machine gun case where the Guidelines range was 188 - 235 months. In doing so, the Court noted that prior to Booker, sentences outside the Guidelines range were severely limited, but that now, with greater latitude, a district court need only consider the Guideline range along with its analysis of the section 3553(a) factors. The Court upheld the sentence because the district court's explanation for the sentence was a reasonable one and showed that it had considered both aggravating and mitigating factors in arriving at the sentence imposed. In trying to define what kind of sentence would be substantively unreasonable, the Court states that a sentence is substantively unreasonable if the district court selects the sentence arbitrarily, bases the sentence on impermissible factors, fails to consider pertinent § 3553(a) factors or gives an unreasonable amount of weight to any pertinent factor. The dissent by Judge Gilman highlights the tensions that have developed in the cases discussed above in the approach to be used in determining the reasonableness of a district court sentence.

Given the two series of different cases dealing with post-Booker reasonableness review, it is not surprising that the Court would take some case en banc in order to try to straighten out the mess, but why Vonner? In Judge Sutton’s concurrence in Buchanan he details the number of Sixth Circuit cases that have been reversed for procedural unreasonableness, most of which have to do with failing to explain the reasons for the sentence or failing to account for the § 3553(a) factors. The statement of the district court in Vonner is woefully inadequate, by even the most conservative of standards. Judge Siler’s dissent appears to target both the extent of explanation demanded of district court judges and the lack of deference paid by some to the presumption of reasonableness. ("I believe that the sentence pronounced in this case was reasonable because the court sentenced Vonner within the Guidelines and considered all of the relevant factors from § 3553(a).")

Judge Siler is correct about one thing: "The numerous cases by our court on the reasonableness of sentences post-Booker have confused attorneys and district courts alike." (See also McBride: "Achieving agreement between the circuit courts and within each circuit on post-Booker issues has, unfortunately, been like trying to herd bullfrogs into a wheelbarrow."; but see, United States v. Cruz, 461 F.3d 752 (6th Cir. 8/25/06), in which Judge Sutton notes, "After more than a year and a half of applying Booker, some kinks remain but the ground rules for reviewing criminal sentences are becoming increasingly familiar.") What is at stake is whether sentencing after Booker will reflect a return of more discretion to sentencing judges with meaningful appellate review, or a return to mandatory Guidelines (de facto if not de jure) with appellate review so restricted as to be meaningless. With the Guidelines presumed to be reasonable and any sentence outside of the Guidelines range having to be supported by increasingly stringent standards of review reminiscent of nothing so much as Guidelines departures, it is difficult to see how anything has changed from the unconstitutional system struck down by Booker. See, e.g. United States v. Washington, 199 Fed.Appx. 521 (6th Cir. 10/10/06), 2006 WL 2873368 (unpublished) (requiring the defendant to explain how consideration of any particular § 3553(a) factor would have resulted in a lower sentence).

The Court pointed out in Foreman, "Appellate review is more important because the Guidelines are no longer mandatory. Under the mandatory Guideline system, appellate review was not integral to assuring uniformity. Now, with the advisory Guidelines and more sentencing variables, appellate review is all the more important in assuring uniformity and reducing sentencing disparities across the board." This important review becomes an illusion if the extent of the review is to look to whether the sentence is within the Guidelines range and the sentencing judge spoke the words of § 3553(a), as in Vonner.

Judge Siler complains in his dissent in Vonner that "[s]entencing hearings will soon exceed trials in length, if we do not simplify the process." While he may be right, he is about 19 years late with his observation. Ever since the enactment of the Sentencing Guidelines, sentencing hearings have become mini-trials involving contests of the extent of upward adjustments for relevant conduct in drug, fraud, and theft cases, and the use of uncharged conduct to enhance sentences in drug, gun and other cases. This writer had one Guidelines sentencing hearing that lasted for three days.

"Simplifying the process," however, is not always synonymous with increasing justice. What too often happens when the process is "simplified" is that it simply becomes easier to impose and affirm a sentence without the defendant having any meaningful review. There are, of course, practical reasons for this. Prior to the Guidelines there was no right to appeal a sentence unless the sentence exceeded the statutory maximum. As a result, the Courts of Appeals had little to do with review of sentences. The creation of the Guidelines, however, with its myriad of factual determinations that would (usually) increase a defendant’s sentence also brought the creation of a right to appeal the incorrect determination of those adjustments, both upward and downward. The practical consequence of this new right was to swamp the Courts of Appeals with sentencing appeals. This was particularly true in the Sixth Circuit which was short-handed for a number of years. Hence the rise of the "appeal waiver" as a part of plea agreements and the affirmance on appeal of its use.

What the Courts have perhaps overlooked is that while they might not care for the increased caseload from sentencing appeals, they are not the only part of the system affected by these appeals. Defense counsel have to write and argue such appeals and government attorneys must defend them. This is not a system that any of us created; Congress did that. But it is a system that we have to make work, and it doesn’t work when it is given short shrift. (In fact, one reason for allowing sentencing appeals in this new Guidelines structure in 1987 was that the creators of the Guidelines saw the appellate system as a self-correcting mechanism by which the Guidelines would be uniformly applied, thereby further reducing the disparity that was at the heart of the call for change that led to the creation of the Guidelines in the first place. The national spread of appeals waivers, of course, would tend to throw the self-correcting aspect of the mechanism out of true.)

The means to make the system work can be found in some of the cases detailed above, but which will the Sixth Circuit choose: the true paradigm shift to a system that takes into account in meaningful ways the individual who is being sentenced, or the business-as-usual Guidelines approach of sentencing cyphers instead of individuals? Perhaps Vonner will tell us. That answer may have to wait, however.

On November 2nd, the Supreme Court granted cert. In two Booker/reasonableness cases: Rita v. US, No. 06-5754, from the Fourth Circuit, and Claiborne v. US, No. 06-5618, from the Eighth Circuit. The questions from the Court in the former are : 1) Was the district court's choice of within-Guidelines sentence reasonable, 2) In making that determination, is it consistent with United States v. Booker, 543 U. S. 220 (2005), to accord a presumption of reasonableness to within-Guidelines sentences, and 3) If so, can that presumption justify a sentence imposed without an explicit analysis by the district court of the 18 U.S.C. Sec. 3553(a) factors and any other factors that might justify a lesser sentence?. The questions in Claiborne are: 1) Was the district court's choice of below-Guidelines sentence reasonable, and 2) In making that determination, is it consistent with United States v. Booker, 543 U. S. 220 (2005), to require that a sentence which constitutes a substantial variance from the Guidelines be justified by extraordinary circumstances?

These questions go to the heart of some of the divisions within the Sixth Circuit caselaw noted above and, therefore, it would appear, may be good reason for the Court of Appeals to hold Vonner in abeyance until Rita-Claiborne are decided.