I'm back from a hiatus (only to be interrupted again by an upcoming trial). The First Circuit issued the much awaited en banc opinion(s) in US v. Jiménez-Beltre, No. 05-1268 (1st Cir. March 9, 2006) to decide the following issues:
- whether there is, post-Booker, appellate jurisdiction to review a within guideline sentence, with the Government arguing that there was no jurisdiction;
- whether a within guideline sentence is presumptively reasonable; and
- whether the within guideline sentence in the instant case was reasonable.
The en banc Court's opinion is written by Chief Judge Boudin, with a concurrence from Judge Torruella, a concurrence in part and concurrence in the Judgment by Judge Howard, and a very thoughtful dissent by Judge Lipez.
On the claim of lack of appellate jurisdiction to review a within guideline sentence, the Government loses just as it has in every other Circuit to have decided the issue. Judge Howard understands otherwise.
While the en banc opinion states that a within guideline sentence is not presumptively reasonable, thus appearing to side with defendants in general, this is just a mirage. In imposing sentence, the District Court had stated:
I'm certainly treating the Guidelines as advisory, not mandatory, but I feel I need to start someplace, and that's where I'm going to start. I do intend to give them substantial weight, but they don't have controlling weight; and if there are clearly identified and persuasive reasons why I should not impose a Guidelines sentence, I will consider those and impose a sentence accordingly.
On appeal, Chief Judge Boudin writing for the en banc court appears to adopt this same approach as can be seen from the following:
Central to the merits of this appeal is the question of what role the advisory guidelines should play in a post-Booker sentence. To begin with the conclusion, the guidelines continue in our view to be an important consideration in sentencing, both in the district court and on appeal, which should be addressed in the first instance by the sentencing judge. We do not find it helpful to talk about the guidelines as "presumptively" controlling or a guidelines sentence as "per se reasonable," and believe that the district judge's adroit one-paragraph summary (quoted above) is a more useful compass.
Our conclusion is rooted in both parts of the Booker decision. In holding the mandatory regime unconstitutional, the flaw discerned by the five-Justice majority was that mandatory guidelines created mini-crimes requiring jury findings. Booker, 125 S. Ct. at 750-52. Although making the guidelines "presumptive" or "per se reasonable" does not make them mandatory, it tends in that direction; and anyway terms like "presumptive" and "per se" are more ambiguous labels than they at first appear.
At the same time, the guidelines cannot be called just "another factor" in the statutory list, 18 U.S.C. § 3553(a) (2000), because they are the only integration of the multiple factors and, with important exceptions, their calculations were based upon the actual sentences of many judges, Booker, 125 S. Ct. at 766-67; 28 U.S.C. § 994(o). The Sentencing Commission is also an expert agency charged by Congress with the task of promulgating guidelines and keeping them up to date. 28 U.S.C. § 994(c). In its remedial opinion, the Supreme Court has stressed the continuing role of the guidelines in promoting uniformity and fairness. Booker, 125 S. Ct. at 757-64.
Yet the guidelines are still generalizations that can point to outcomes that may appear unreasonable to sentencing judges in particular cases. Some of the guidelines in particular cases were not reflections of existing practice but were deliberate deviations or turned tendencies into absolutes. Others have been affected by directions from Congress. See, e.g., Pho, 433 F.3d at 61-63. Booker's remedial solution makes it possible for courts to impose non-guideline sentences that override the guidelines, subject only to the ultimate requirement of reasonableness. Accordingly, at sentencing, the district court must continue to "consider the Guidelines 'sentencing range.'" Booker, 125 S. Ct. at 764 (quoting 18 U.S.C. § 3553(a)(4)). In most cases, this will mean that the district court will have to calculate the applicable guidelines range including the resolution of any factual or legal disputes necessary to that calculation--unless they do not matter--before deciding whether to exercise its new-found discretion to impose a non-guidelines sentence. Robinson, 433 F.3d at 35.
In sum, we agree with the district court's general approach, quoted above, and we find very helpful the district court's sequential determination of the guideline range, including any proposed departures, followed by the further determination whether other factors identified by either side warrant an ultimate sentence above or below the guideline range. To construct a reasonable sentence starting from scratch in every case would defeat any chance at rough equality which remains a congressional objective.
In his concurrence, Judge Torruella writes that
Finally, I think it is of critical importance that the majority opinion be understood to reinforce our commitment to the statutory requirement that, in all cases, district courts must impose sentences that are "sufficient, but not greater than necessary" to effectuate the goals of criminal punishment, as articulated in 18 U.S.C. § 3553(a). In articulating its reasons for imposing any sentence, the district court must make clear reference to this central principle.
But it is Judge Lipez's dissent that hits the nail on the head and shows us exactly why the majority's opinion is a mirage. Judge Lipez states that he
[...] agree[s] with some of the majority's description of the role that the advisory guidelines should play in the determination of post-Booker sentences, and its rejection of the reasoning of Judge Howard's concurring opinion.
The guidelines remain an important consideration in sentencing. The guidelines should not be presumptively controlling, and a guidelines sentence should not be deemed per se reasonable. The guidelines are generalizations that can be unreasonable in particular cases.
But the district court's approach to the guidelines in this case was inconsistent with these principles. I do not say this to be critical of the district court. It was operating in an uncertain environment. Its discussion of the guidelines was careful and thoughtful. However, this statement of the district court, quoted by the majority, is the problem:
I am certainly treating the guidelines as advisory, not mandatory, but I feel I need to start someplace and that's where I am going to start. I do intend to give them substantial weight, but they don't have controlling weight; and if there are clearly identified and persuasive reasons why I should not impose a guidelines sentence, I will consider those and impose a sentence accordingly.
The majority characterizes this paragraph as "adroit" and a "useful compass." I disagree. There is a significant difference between treating the guidelines as important and giving them substantial weight. There is scant difference between treating a guidelines sentence as presumptively controlling and stating that the court will depart from that sentence only for "clearly identified and persuasive reasons." Here, the judge gave the guidelines a weight and a centrality that uncomfortably approximate the mandatory guidelines system that the Supreme Court found unconstitutional in Booker. To steer a sensible course between the Supreme Court's rejection on constitutional grounds of mandatory guidelines and Congress's continuing reliance on the guidelines to achieve uniformity in sentencing, I think that a different approach to sentencing post-Booker is required.
Judge Lipez compares the district court's and the en banc First Circuit's majority's view with that expressed by District Judge Paul G. Cassell in United States v. Wilson, 350 F. Supp. 2d 910, 912 (D. Utah 2005), decided just one day after Booker. In Wilson the district court determined that "in all future sentencings, the court will give heavy weight to the Guidelines in determining an appropriate sentence. In the exercise of its discretion, the court will only depart from those Guidelines in unusual cases for clearly identified and persuasive reasons." Id.
There is one final passage from Judge Lipez's dissent that merits inclusion in this post:
[...] The guidelines are no longer self-justifying. They are not the safe harbor they once were. However, if district courts assume that the guidelines sentence complies with the sentencing statute, and focus only on the compliance of the non-guidelines sentence urged by the defendant, the district courts will effectively give the guidelines a controlling weight and a presumptive validity that is difficult to defend under the constitutional ruling in Booker.
That is precisely what happened in this case.
While Jiménez-Beltre does leave some flexibility to the defense, it is far from what most defense counsel who have followed Booker developments would have desired. If you ask me whether it could have been worse, the answer is yes, of course.