Criminal Friday

Criminal Friday has been a long-time commin'.

Today's case is United States v. Hinton, No. 06-4017 (8th Cir. June 7, 2007). Factually, there isn't anything remarkable about the case, except that it involves a horrible person who was convicted of receipt of child pornography. Unfortunately the opinion does not detail the defendant's ultimate sentence; we can only hope it was for a good long while (although whatever it was, the judge sentenced him near the low end of the Guidelines range).

No, the real point is of this post is to examine Hinton's argument that after Booker, the Guidelines, having become advisory instead of mandatory, are now simply one factor of several a district court must consider under the mandate of 18 U.S.C. § 3553(a). But, because the Eighth Circuit has held that the Guidelines range determined by the district court is "presumptively reasonable," this creates "a disproportionate emphasis" on one of those § 3553(a) factors. Obviously this panel of Eighth Circuit rejects this argument, as it must until the Circuit en banc or the Supreme Court says otherwise.

But, Hinton does raise a valid point, which I think is becoming problematic in many circuits. Under Booker, the test for whether a sentence is appropriate is reasonableness. Reasonableness is governed by § 3553(a). However, prior to considering the factors in § 3553(a), the district court calculates the Guidelines range, because it is still advisory. Many, if not most, circuits have held that this first step, if calculated properly, is the "presumptively reasonable" guidelines range. As long as the district court sentences a defendant in that range, it then only has to go through the motions in considering the other § 3553(a) factors because the circuit court will uphold it. Most circuits, having such a presumption, aren't really going to analyze for reasonableness beyond that once established. I'd say there might, at best, be one or two cases in the entire country where a circuit court held sentence within the Guidelines range to be otherwise unreasonable under § 3553(a).

The result is that appeals courts heavily scrutinize sentences outside of the Guidelines range. The further it gets from the range, the less likely the court is to find it reasonable. Some courts engage in discussion about certain percentages below the calculated range. In my opinion, this reasoning risks being unconstitutional. It is simply creating a new mandatory sentencing Guidelines system, only with a judicially-created broadened range. It is also a system that encourages adhering the old Guidelines. As a result, I don't think much has changed in criminal sentencing after Booker.

(A topic for another day is the fact that most sentences above the range are upheld, no matter how many more months are added, while there is a much narrower acceptable range to go below).

Anyway, also noted by defendant is that the Supreme Court granted cert on this issue in Rita v. United States, on appeal from the Fourth Circuit. (Briefing can be found here.) Although oral arguments were in February the court hasn't come down with a decision yet (probably any Monday now). Next Friday I'll analyze the briefs and give some odds.