Published on:

Change We Can Believe In (in federal sentencing)?

The Fourth Circuit has ruled that a federal district court cannot assume that a sentence within the guidelines is reasonable. The case is United States v. Cordell Smith. Check out the opinion here.

It has been far too easy for federal judges to look at the conveniently calculated guidelines range and give a sentence within that range.

As I’ve written about before, the things you have to think about in sentencing a person are complicated and hard to get traction on. How do you balance “respect for the law” with the nature of the offense and an individual defendant’s background in such a way as to arrive at a specific number of months in prison?

It’s very easy for judges to look to the guidelines, which at least provide a mechanism for solving these kinds of problems. And they have the imprimatur of objectivity; an agency solicited input from lots of different sources, did a bunch of complicated (and opaque) empirical work, and generated a big book of rules.

The Supreme Court has said that a guidelines sentence is not presumptively reasonable. The Fourth Circuit last month agreed. Will this make a difference in the way judges sentence in Maryland, the Virginias, and the Carolinas? Will it change the way criminal defense lawyers approach sentencing?

If you have questions about how federal criminal charges are different than state criminal charges, please visit this page on Maryland federal criminal charges or Washington DC federal criminal charges.

My bet is no. The Fourth Circuit did say that a guidelines sentence is not presumptively reasonable. But, it also left in place the procedural mechanism that locks in a guidelines sentence in almost every case. The court said that

“the sentencing court must first calculate the Guidelines range, and then consider what sentence is appropriate for the individual defendant in light of the statutory sentencing factors, 18 U.S.C. S 3553(a), explaining any variance from the former with reference to the latter.”

The sentencing court, in essence, has to first figure out what the guidelines range is. Then the court thinks about whethere there’s any particular reason to go outside of that guidelines range.

Of course, this is just another way of saying that the court should appy the guidelines unless there’s a good reason not to.

And this, in turn, is just another way of saying that the guidelines are presumptive.

To quote John McCain, that’s not change we can believe in.