Taking Booker and 3553(a) seriously
I have lamented today, and many times before (here and here and here), the failure of some federal courts to focus on Congress’s commands in section 3553(a) of the Sentencing Reform Act. Booker makes clear that all the provision of section 3553(a), and not just the diktats of the guidelines, are now to guide district court sentencing and appellate court review of sentences. And yet so many opinions — especially coming from the circuits as they presume guideline sentences to be reasonable — still seem to take the guidelines more seriously than Booker and the text of section 3553(a).
But I should know better than to give up on the post-Booker world, and today I received hope in the form of an opinion recently filed by US District Judge Gregory Presnell. Judge Presnell, who long ago already secured a place in my Sentencing Hall of Fame, provides a wonderful lesson in how to take Booker and the text of section 3553(a) seriously in US v. Pacheco, No. 05-cr-137 (M.D. Fla. Jan. 20, 2006) (available for download below). And, along the way, Judge Presnell appropriately takes prosecutors to task for not doing the same. Here’s a selection from Pacheco, which is today’s must-read:
After Booker, no one can reasonably dispute the fact that sentencing courts have discretion to impose a sentence lesser than the low end of the Guideline range, so long as that sentence is reasonable in light of the Section 3553(a) factors. Nonetheless, the Department of Justice (“DOJ”) continues to do so. At every sentencing hearing before this Court, the prosecution recommends a Guideline-range sentence, making no effort to explain that recommendation in light of the Section 3553(a) factors. After any below-Guideline sentence, the prosecutor routinely objects, and the only explanation offered is that the sentence falls short of the Guideline range. Obviously (though not openly), the government continues to maintain its policy that the only reasonable sentence is one that falls within or exceeds the Guideline range — a position that obviously contradicts the Supreme Court’s pronouncements in Booker. And DOJ has maintained this posture even though the Eleventh Circuit has explicitly rejected its argument that a sentence in the Guideline range is, per se, a reasonable sentence.
By continuing to insist that this Court rigidly adhere to the Guidelines, prosecutors are violating their obligation as officers of the Court and failing to provide this Court with any meaningful assistance in crafting a reasonable, just sentence.