United States v. Jones, Docket No. 05-2289-cr, 2006 WL 2167171 (Aug. 2, 2006)
Jones is the latest major sentencing decision from the Second Circuit. And, from a defense perspective, Jones is quite important because of the extreme deference shown by the Second Circuit to the district court that imposed sentence. (Check out the excerpts below.) Jones, however, is not the only Second Circuit case dealing with the appropriate procedures and standards for imposing and reviewing post-Booker sentences. Rather, Jones was preceded by Crosby, Fernandez (discussed here) and Rattoballi (discussed here). In light of that history, Jones is just the latest in a line of Second Circuit cases that highlight the Second Circuit's internal struggle with the questions of the appropriate procedures and standards for imposing and reviewing senteces. Indeed, I highlighted the inconsistent messages received from the Second Circuit in my recently published New York Law Journal article entitled "Crosby, Fernandez, Rattoballi: Second Circuit's Mixed Messages." (I will post the article shortly but can pdf a copy to any interested reader.) The only means for resolving those inconsistencies may well be an en banc hearing of an appropriate sentencing appeal. And, until those inconsistencies are resolved, district courts and defense attorneys will just have to deal with the mixed messages coming from the Second Circuit as to the appropriate standards and procedures for determining, imposing and reviewing sentences.
On to Jones itself.
Background
Jones received a sentence of 15 months imprisonment, notwithstanding a Guidelines range of 30 to 37 months imprisonment. The Government appealed, and the Second Circuit was called upon to determine: (1) whether the explanation provided by the district court for imposing a non-Guidelines sentence was sufficient to permit appellate review; (2) if so, whether the sentence was reasonable; and (3) if so, whether the judgment must be corrected to include the district court's reasons for the sentence.
Sufficiency of the Reasons for a Non-Guidelines Sentence
The Government challenged the sufficiency of the reasons relied upon by the district court for imposing a non-Guidelines sentence. Specifically, the Government noted that the district court imposed a non-Guidelines sentence because it had a "sense" and a "gut feeling" about Jones. The Second Circuit supported the district court's reasoning, finding that the Government's challenge:
fails to appreciate the enhanced scope of a sentencing judge's discretion in the post-Booker world of advisory Guidelines. Although the sentencing judge is obliged to consider all of the sentencing factors outlined in Section 3553(a), the judge is not prohibited from including in that consideration the judge's own sense of what is a fair and just sentence under all the circumstances. That is the historic role of sentencing judges, and it may continue to be exercised, subject to the reviewing court's ultimate authority to reject any sentence that exceeds the bounds of reasonableness.
Reasonableness of the Non-Guidelines Sentence
In a word, the Second Circuit showed extreme deference to the district court on the question of whether or not the 15 month sentence imposed was reasonable. And, in doing so, the Second Circuit's (or at least the majority of this panel of the Second Circuit) chose strong words to describe the high level of deference that is appropriate. Specifically, the Second Circuit held:
If we are to be deferential when the Government persuades a district judge to render a non-Guidelines sentence somewhat above the Guidelines range, we must be similarly deferential when a defendant persuades a district judge to render a non-Guidelines sentence somewhat below the Guidelines range. Obviously, the discretion that Booker accords sentencing judges to impose non-Guidelines sentences canot be an escalator that only goes up.
Omission of Reasons from the Written Judgment
18 U.S.C. 3553(c)(2) requires a district court to state "the specific reason for the imposition of a sentence different" from that prescribed by the Guidelines if it imposes a sentence outside of the Guidelines. Although the disrict court stated sufficient reasons on the record for imposition of Jones' 15 months non-Guidelines sentence, it had not included those reasons in the written order of judgment and commitment, as required by 18 U.S.C. 3553(c)(2). Relying on pre-Booker caselaw, the Second Circuit affirmed the sentence but remanded the case "so that non-compliance with seubsection 3553(c)(2) may be remedied."
The Dissent
Chief Judge Walker dissented. (Significantly, Chief Judge Walker was on the panel that decided Rattoballi, and Judge Newman was on the panel that decided both Jones and Crosby.) Specifically, Chief Judge Walker took strong issue with the majority's conclusions concerning the reporting requirements of 18 U.S.C. 3553(c)(2), and therefore concluded that the majority should not even have reached the question of whether or not the sentence imposed was reasonable.
More important than those technical arguments, however, are the parting shots taken by Chief Judge Walker. Specifically, Judge Walker -- consistent with his views in Rattoballi -- clearly would not have affirmed the sentence imposed as reasonable, and clearly views Booker as providing for far less discretion to district courts than does the majority. Specifically, Chief Judge Walker stated:
I have difficulty accepting the fact that a district judge's 'feelings' can support a fifty percent deviation from the low-end of the recommended Guidelines range. . . . [B]y upholding this below-Guidelines sentence as reasonable, without first vacating to obtain adequate reasons in the written judgment, we invite a return to the days of wide-open discretion at the expense of both reduced sentencing disparity and fairness. This is an unhealthy trend because the government and defendants alike will come to view sentencing as an arbitrary exercise more informed by which district judge is assigned than by the factors outlined in 3553(a), and the public, including its elected representatives, will find evidence to support the perception that, in sentencing, courts are more home to judicial wilfulness than law.
Where will the apparent conflicts among Crosby, Fernandez, Rattoballi and Jones ultimately lead? Let us know your thought.
(For additional discussion of Jones, check out Doug Berman's Sentencing Law and Policy blog, which covers Jones here.)
Comments