A Brave New World—Sentencing Review

The panel of Judges Martin, Kethledge, and Carr (Chief District Judge, N.D. Ohio) clarified the nature of sentencing review in United States v. Blue, No. 07–5296 (6th Cir. Mar. 9, 2009). The case is somewhat unremarkable in terms of the facts and issue. Defendant pleaded guilty to three counts of crack-related offenses. The plea agreement did not commit the government to moving for a downward departure based on the defendant’s substantial assistance. An earlier plea agreement would have so committed the government, but it also would have required the defendant to plead to a charge to which she did not want to plead. Offense level was 35; criminal history category was VI. Guideline range was 292 to 365 months. Defendant got 292 months.

Prior to sentencing, the defendant filed a 5K1.1 motion for a downward departure. The district court denied this motion. This denial was the focus of the appeal. The panel upheld the district court’s denial, finding that the sentence was reasonable. This outcome is not remarkable, but the panel focused on the nature of appellate review of sentences post-Booker. In Footnote 1, the panel makes clear the need for reasonableness review and the limited utility of pre-Booker case law.

The panel cites the Seventh Circuit case of United States v. Blue, 453 F.3d 948, 952 (7th Cir. 2006), that found that post-Booker departures are no longer necessary—a district court may simply impose a below-guideline sentence if such a sentence is appropriate. The panel does stop short of finding, as the Seventh Circuit did, that "departures have become obsolete." The panel finds this language a bit strong. It describes departures as exemplifying "a special discretion because it is anticipated by the Guidelines Commission."

The panel points out that absent an unconstitutional motive a sentencing court may not award a 5K1.1 departure under the Guidelines without a government motion. It notes that a properly granted 5K1.1 motion would reflect "a proper application of the Sentencing Guidelines" and thus be entitled to a presumption of reasonableness on appellate review. The panel concludes that a variance imposed under 3553(a), one that could be granted without a government motion, would not be entitled to the same presumption.

The panel concludes that the defendant waived her argument that her sentence was procedurally unreasonable because the sentencing court did not consider her substantial-assistance argument under 3553(a).