United States v. Mykytiuk, No. 04-1196 (July 7, 2005): On a Paladino remand, the district judge indicated that his original 150-month sentence would remain the same, notwithstanding Booker. This sentence was within the guidelines. The Seventh Circuit then examined this sentence for its reasonableness.
The Court acknowledged that it could not, consistent with Booker, presume that a guidelines sentence was always reasonable. Yet it did not wish to jettison the work of the Sentencing Commission. "The best way to express the new balance . . . is to acknowledge that any sentence that is properly calculated under the Guidelines is entitled to a rebuttable presumption of reasonableness." Continuing, "This is a deferential standard. . . The defendant can rebut this presumption only by demonstrating that his or her sentence is unreasonable as measured against the factors set forth in section 3553(a). . . . While we fully expect that it will a rare Guidelines sentence that is unreasonable the [Supreme] Court’s charge that we measure each defendant’s sentence against . . . section 3553(a) requires the door to be left open for this possibility."
United States v. Lavell Dean, No. 04-3172 (July 7, 2005): This opinion, issued the same day as Mykytiuk, offers much the same message, but also suggests some possibilities for defense counsel to consider.
The defendant was sentenced after the Seventh Circuit opinion in Booker but before the Supreme Court’s opinion. The district judge raised the base offense level on the basis of allegations that a gun was involved and that the gun was stolen. The judge then considered the actual sentence in light of various aspects of the defendant’s background.
The Seventh Circuit found error in the district judge’s making guidelines calculations on the basis of allegations in the PSR. If there is a dispute about facts, the defendant must be given the chance to present testimony.
But the defendant’s major contention was that the judge did not fully consider the sec. 3553(a) factors. The Court rejected the argument that the judge must consider all the 3553(a) factors, even those not invoked by the defendant in a particular case. But in rejecting this argument, the Court seems to have gone a little further. Relying on its remarks in United States v. George, 403 F.3d 470 (7th Cir. 2005), the Court emphasized that ". . . it is enough to calculate the range accurately and explain why (if the sentence lies outside it) this defendant deserves more or less." The judge’s duty to consider the factors set forth in sec. 3553(a) is not a duty to make and put on the record findings as to those factors.
The Court immediately qualified this last statement. "Explicit factfinding is required . . . if . . . contested facts are material to the judge’s decision. A judge who thinks that a particular contested characteristic of a defendant may be decisive to the choice of sentence, such as the defendant’s mental or emotional state, must resolve the factual issue in the usual way, that is, by making findings on the basis of evidence . . ."
This qualification comes with its own qualification: "This does not mean trial by jury, proof beyond a reasonable doubt, . . . evidence that satisfies . . . the Federal Rules of Evidence, or any other such formalities."
There is a further cross-current in the opinion. After repeating that the judge need give little explanation for imposing a sentence within the guidelines, the Court stated, "But the defendant must be given an opportunity to draw the judge's attention to any factor listed in section 3553(a) that might warrant a sentence different from the guidelines sentence. . ." This would seem to mean that if a judge imposes a sentence with no explanation or a formulaic explanation, counsel should attempt to draw the court out into making an explanation. Even though these decisions might suggest that the judge need give no explanation for a guidelines sentence, the judge may find it difficult, when pressed, to hide behind ". . . because I say so."
All in all, these two decisions do much to unravel Booker. If a sentence within the guidelines is rebuttably presumed to be reasonable, then the difference between advisory guidelines and mandatory guidelines is razor-thin. The Seventh Circuit says that the presumption is rebuttable, but how can the defendant rebut the presumption if the judge is not obliged to give reasons for the sentence imposed? In essence, the district judge can say, "Trust me, I’ve given this a lot of thought, and a guidelines sentence of 360 months is reasonable." The courts (and litigants) would never accept that a judge could resolve a civil suit with a general finding as to liability or damages. It is a mystery why criminal defendants must accept this level of justice. Circuit Rule 50 does not distinguish between criminal and civil cases. There is a suggestion in Dean that a full statement of reasons would be more work for the judges, but this can hardly be a legitimate rationale for the Court’s holding. In civil cases judges make written findings of fact and conclusions of law that go on for many pages. Is a dispute over a sale of widgets more important than the decision where someone will spend the next few years of his or her life? Until the Supreme Court explicitly approves this type of approach, counsel should continue to make a record, file appeals, and seek certiorari. You can be sure that if the Supreme Court disapproves this practice, those counsel who did not press the issue will be met with the retort, "You didn't preserve the issue."