Remarkable new district court ruling on applying Booker
Though the circuit courts have been mighty Booker active of late, it’s been a while since I have seen a major district court ruling on Booker. But, much to my pleasure, US District Judge Steven Merryday made yesterday merry through his amazing work in US v. Valencia-Aguirre, No. 8:03-cr-445-T-23EAJ (M.D. Fla. Jan. 9, 2006) (available for download below). Especially as we approach the one-year anniversary of Booker, the far-reaching and thoughtful review of the state of federal sentencing in Valencia-Aguirre makes the decision an absolute must-read.
I am still working my way through the 40 pages of trenchant analysis in Valencia-Aguirre, although I see that there is much discussion of the First Circuit’s recent Pho decision (basics here, commentary here and here and here). Indeed, there is even a footnote in Valencia-Aguirre engaging with my critique of Pho.
Here are just a few of the many choice quotes from Judge Merryday’s work in Valencia-Aguirre:
The principal task now is to define “reasonable sentence” in a manner calculated not to impinge the (tenuous and strange) requirements of Booker but calculated neither to repair to the rejected and disreputable regime of unfettered discretion nor to deploy a substitute regime that permits an incremental retreat toward disorder and disparity….
The issue for the district court in the first instance is whether the circumstances of the offense at issue and the characteristics of the offender at hand mitigate, aggravate, distinguish, or supersede the presumed but confined circumstances and attributes arrayed illustratively in the guidelines. But, because the guidelines neither fully nor dispositively prescribe a sentence for any particular offender or offense, Booker presents no occasion to announce any attribute of the theoretical guidelines sentence, including whether it is “per se” or “presumptively” or “prima facie” reasonable.
Though I am wowed by many parts of Valencia-Aguirre, I am disappointed to see an obviously thoughtful district judge discussing his sentencing task in terms of determining and imposing a “reasonable sentence.” No where does section 3553(a) of the Sentencing Reform Act or the remedial opinion in Booker define the district court’s sentencing task in these terms.
As I have stressed before, reasonableness is only an appellate review standard: it is the standard created by Booker that a circuit court is to use when reviewing a sentence that has been appealed. At a defendant’s initial sentencing in the district court, there is a higher authority that provides the controlling legal standard: in section 3553(a) of the SRA, Congress has plainly instructed district judges to impose “a sentence sufficient, but not greater than necessary, to comply with the purposes” set forth in 3553(a)(2). Thus, the task Congress has given expressly to district judges is to figure out what sentence is “sufficient, but not greater than necessary” to comply with the SRA’s statement of sentencing purposes. Booker simply provided that circuit judges are to assess how district judges do their job by the standard of reasonableness.
Judge Merryday’s opinion in Valencia-Aguirre speaks often of congressional “policy” and “will,” but yet again we see in this opinion a remarkable disregard of the actual congressional text of 3553(a). (Disconcertingly, Judge Merryday never actually quotes from 3553(a) in his long opinion, and he is dismissive of what Congress has actually enacted as he declares that “Section 3553(a) is fancy default.”) Judge Merryday rightly asserts that “a sentencing judge owes the legislative authority the good faith enforcement of the law,” but in my view that should start with the actual text of the law that the judge is duty-bound to apply.