Tuesday, April 11, 2006

Zavala: trial court's treatment of guidelines as the presumptive sentence constitutes reversible error

Juan Antonio Zavala faced a post-Booker meth sentencing in which the Guideline range was life imprison without parole. The sentencing judge assumed that, after Booker, the Guideline range becomes the presumptive sentence, so the question became whether § 3553(a) factors warranted a lower sentence. The Ninth Circuit, in an opinion by Judges Paez and Tashima (linked here), held that the implementation of a mandatory, rebuttable presumption at sentencing violated the sentencing statutes.

From the outset, the court made clear that it was not deciding the question (blogged here) whether a presumption of reasonableness applies to within-the-Guidelines sentences on appellate review for reasonableness. "We have not opined on that question, and will not do so now." The court then adopted Cantrell and Menyweather's setting of the Guidelines as a "starting point." The opinion analyzed the types of presumptions that guide judicial decision-making and found that a mandatory rebuttable presumption comes too close to the "unpruned sentencing statute" Booker found unconstitutional. Because a presumption at the district court would give undue weight to the Guidelines, "[t]he dangers averted by declaring them to be advisory would become recrudescent."

The court held that, in order to protect against reinstatement of the pre-Booker regime, the Gudielines must be considered but not accorded undue weight:

"In short, Booker has resuscitated the much-lamented discretion that the sentencing statute seemed to take away from district courts, and has at least partially restored that halcyon condition that district judges have longed for these many years. District courts neither should, nor can, ignore that by placing undue weight on the Guideline portion of the sentencing chemistry. They must properly use the Guideline calulation as advisory and start there, but they must not accord it greater weight than they accord the other § 3553(a) factors. Rather, they must consider all of the information before them, as they used to do, and then reach for the correct sentence under all the circumstances. For our part, we will then review the ultimate result for reasonableness."

Because the court concluded the district judge treated the Guidelines "perilously close to the mandatory Guidelines regime," the Court reversed the sentence as a preserved error of a nonconstitutional nature. In summing up, the Court stated, "But a Guideline calculation is simply one factor to be considered when selecting the most appropriate sentence for a particular defendant. Nothing in 18 U.S.C. § 3553, as it stands after Booker, indicates that the Guidelines are to be given any greater weight than their fellow sentencing factors."

Judge Fernandez dissented, not because a presumptive sentence was permissible, but because he did not think the district court's language -- which he described as "not entirely felicitous" -- established more than use of the Guidelines as a starting point. He could not say he was in "disagreement with the presumption exgesis in the per curiam opinion"; he simply found it extraneous (whether readers of the opinion might "consider its reasoning eximious or exiguous").

Zavala provides some important considerations at both the trial level and appeal. For district courts too enamored of sentencing by the numbers, we have a strong argument that the judges should be considering mitigating factors for lower sentences with less deference to the Guidelines. And Zavala provides support for looking askance at district courts that de facto reinstate the pre-Booker mandatory Guidelines. On appeal, the reasoning -- although certainly not the holding -- supports a totality of the circumstances review for reasonableness rather than a presumption of reasonableness for within Guidelines sentences.

Steve Sady, Chief Deputy Federal Public Defender, Portland, Oregon


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