Wednesday, March 23, 2011

Why can’t defense attorneys ever manage to preserve procedural reasonableness objections?

As recent cases have pointed out, procedural reasonableness objections never seem to get preserved unless the district court forgets to ask the Bostic question. See, e.g., United States v. Wilkins, No. 09-1890 (6th Cir. March 23, 2011) (unpublished); United States v. Burnette, 2011 U.S. App. LEXIS 5648 (6th Cir. Mar. 16, 2011) (unpublished). The reason for this has to do with the way the Bostic question works. The Sixth Circuit decided in United States v. Bostic that the district court has an obligation at the end of sentencing to ask for objections to the sentence that have not been previously raised. 371 F.3d 865, 872 (6th Cir. 2004). If the district court asks the Bostic question and defense counsel fails to object, any procedural reasonableness claims will be subject to plain error review.

But wait, procedural reasonableness objections are generally based upon a district court’s lack of explanation for some aspect of the sentence (rejection of a defense argument, making the sentences consecutive, etc.). So if the court asked the Bostic question and defense counsel did object to the lack of explanation, the district court would almost certainly proceed to provide further explanation. This further explanation would likely moot the appellate issue of lack of explanation.

So, it’s not the case that defense attorneys never object on procedural reasonableness grounds in response to the Bostic question. Instead, when they do appropriately object in that situation, they immediately win that issue without the need to appeal in the sense that they get the further explanation they were seeking. The take-away here is twofold:

1) The Bostic question is working in terms of forcing district courts to be procedurally reasonable the first time around.

2) At the end of sentencing, if the district court asks the Bostic question, defense attorneys should make a habit of objecting to the district court’s lack of explanation on important issues. Further analysis could cause the court to change it’s mind, and even if it doesn’t, at least the record will be clear on appeal.

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