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Sentencing Law and Policy
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Bad day for defendants in Eleventh Circuit

By Douglas Berman

While I was enjoying sea and surf today, the Eleventh Circuit issued two huge sentencing decisions.  Here is the report I received via e-mail:

U.S. v. Williams on crack/powder and career offender variances from guidelines range and U.S. v. Faust on use of acquitted conduct at sentencing.  Defendants lost on all counts, but there’s a good concurrence on the acquitted conduct issue in Faust.

When time and family permit, I’ll be reading and commenting on these notable rulings.

UPDATE: Judge Barkett concludes her thoughtful concurrence in Faust by stating that she does “not believe the Constitution permits this cruel and perverse result” of a sentence enhanced on the basis of acquitted conduct.  But, sadly, every circuit to date, even after Blakely and Booker, still finds no constitutional problem with enhancing a sentence based on acquitted conduct.  I think the Framers would be both shocked and disgusted by this reality.

The opinion in Williams smacks down all of the non-guideline work done by Judge Presnell at the defendant’s initial sentencing.  Like the First and Fourth Circuits, the Eleventh Circuit in Williams completely avoids the central instruction from Congress to sentencing judges in 18 U.S.C. § 3553(a): “The court shall impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth in paragraph (2) of this subsection.” 

As I explained in this post entitled “Crack sentencing and the anti-parsimony pandemic,” the USSC has repeatedly documented that the crack guidelines recommend sentences that are “greater than necessary” to achieve the purposes of § 3553(a)(2). Given the USSC’s findings, the parsimony command of § 3553(a) supports — arguably even requires — a district court’s decision not to follow the crack guidelines. Consequently, upon appellate review, it is hard to understand what is “unreasonable” about a district court’s decision to follow Congress’s parsimony command in light of the USSC’s expert work by sentencing below the crack guidelines.