Sunday, January 22, 2006

Case o' The Week: Gouldon Delicious -Two Bites of the Sentencing Apple in Cantrell

A two-step process for Booker sentence review gives the defense two bites of the appellate apple. United States v. Cantrell, __ F.3d __, C.A. 03-30562, Slip. Op. at 675 (9th Cir. Jan. 13, 2006), available here.

Players: Judge Gould writes for the Court.

Facts: Several co-defendants are convicted in a meth and gun conspiracy. Slip. op. at 682. Many of them raise only guideline challenges to the sentencing, lead defendant Cantrell raises Booker error. The convictions are sustained in a separate opinion.

Issue(s): How should appellate courts evaluate guideline error, and Booker error?

Held: “Booker’s mandate that appellate courts should review sentences for “reasonableness” . . . applies only to our review of the ultimate sentence: after Booker we continue to review the district court’s interpretation of the Sentencing Guidelines de novo, the district court’s application of the Sentencing Guidelines to the facts of a case for abuse of discretion, and the district court’s factual findings for clear error.” Id. at 691 (internal quotations and citations omitted). “[W]e hold that a material error by the district court is grounds for resentencing, just as it was before Booker.” Id. at 694. “[T]he new reasonable standard of review established in Booker comes into play only if there was no material error in the district court’s calculation of the appropriate Guidelines range.” id.

Of Note: Compare Cantrell to two other very recent Booker decisions: United States v. Menyweather, (see blog here) and United States v. Guerrero-Velasquez, __ F.3d. __, No. 05-30066 (9th Cir. Jan. 19, 2006) (see blog here). In Menyweather – like Cantrell – the Ninth looked first to the guidelines and then to Booker. The Menyweather Court gave broad deference to the district court’s Booker determination. In Guerrero-Velasquez (a recent Bybee decision), Footnote One of the opinion oddly opines – in dicta – “We also note that, on appellate review, a sentence suggested by the guidelines is presumptively reasonable . . . .”

From where did Guerrero-Velasquez’s dicta spring? As noted above, Cantrell clearly lays out a two-step guideline/Booker analysis. Cantrell says nothing about “presumptively reasonable” guidelines – to the contrary, it warns “we do not suggest that district courts are bound to sentence within the applicable Guideline ranges when sentencing, because the Guidelines are now advisory.” Id. at 692. Menyweather says anything but the guidelines being presumptively reasonable; instead, the Court there went beyond a mere guideline review to engage in the Booker analysis. Either Guerrero-Velasquez’s Footnote One is a bit of erroneous dicta that should be removed, or signals a fairly serious sentencing battle brewing in the Ninth.

How to Use: As sentencing guru Jon Sands noted in his blog entry, Cantrell gives us two bites at the apple. Guideline error? Reversed. Booker-unreasonable? Reversed. Query, though, if the “reasonableness” of a Booker sentence bears on the “materiality” (and hence, reversibility) of a guideline error. This premise could cut both ways . . . a district court that says it would impose a Booker sentence despite a questionable guideline interpretation may have covered itself from challenge by either the government or the defense. (This is, in a way, what happened in Menyweather).

Another angle is to bring a constitutional challenge to the guidelines based on the latest dicta in Footnote One of Guerrero-Velasquez. If the guidelines are “presumptively reasonable” they’ve strayed out of “advisory” policy and into the realm of rules. Too much deference to the guidelines’ dictates make them effectively mandatory: a Booker faux pas.

For Further Reading: A Booker lull after Ameline has been broken of late with a series of Ninth Circuit decisions on sentencing – Plouffe is another recent case. See Professor Berman’s blog entry. Notably, we Ninth bloggers are not the only ones taken aback at Judge Bybee’s “new rule”: Professor Berman labels it a “notable (and sneaky?) footnote.” See commentary here.

Steven Kalar, Senior Litigator N.D. Cal. FPD. Website available at


Blogger Jason F. Carr said...

Has anyone ever had an appellate court reverse a sentence because it was "unreasonable"?

I'll stick with the tried and true unlawful application/calculations of the Guidelines and categorical challenges.

Barring an extreme outlier exceptional case, an appeal based on the reasonableness of the sentence is the functional equivalent of a no-merit brief.

But maybe I'm just getting cynical in my old age.

Friday, January 27, 2006 11:55:00 AM  

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