A reasonable(?) approach by the Fourth Circuit

An intriguing decision by the Fourth Circuit today in US v. Bartram, No. 99-4566 (4th Cir. Apr. 29, 2005) (available here) provides yet another Booker pipeline issue to think about.  Or, put another way, Bartram demonstrates again the opaqueness of Justice Breyer’s final paragraph in the Booker remedial opinion (as I complained in this post as soon as I read the “pipeline paragraph”).

In Bartram, the Fourth Circuit decides the defendant could not make out a Sixth Amendment violation because he (indirectly) admitted to the sentencing judge’s drug quantity findings.  For Judge Niemeyer, who wrote a separate opinion concurring in Bartram, this means that under the Fourth Circuit’s plain error approach in White, the defendant would have to establish prejudice (which he can’t) to obtain a resentencing.  But Judge Widener, who is technically writing for the court, takes a different route by drawing upon Justice Breyer’s final sentencing in the “pipeline paragraph.”  According to Judge Widener, “it is sufficient ‘to review [the] sentence for unreasonableness’ [and we] conclude the sentencing decision of the district court in this case [is]reasonable.” Interestingly, Judge Gregory wrote separately just to note he only concurs in the judgment.

In the course of his opinion for the Court, Judge Widener has some extended dicta about reasonableness review (although his use of the pronoun “I” leads me to conclude he is writing on his own behalf only).  Here some of the reasonable dicta:

I think the [Supreme] Court required the courts of appeals to review the actions taken by the district courts in sentencing to be reviewed under the standards of the system outlined in Booker and, if its acts were reasonable, to affirm the sentence of the district court.  I would define reasonable under ordinary English usage as: being in agreement with right thinking or right judgment.  Webster’s Dictionary, 3rd, p.1892.

But, then again, the first phrase of Judge Niemeyer’s concurrence states: “I am pleased to concur in most of what Judge Widener has written”; perhaps, then, this dicta is for the Court.  Just one more post-Booker head scratcher.

Have a reasonable weekend.