Tracking reasonableness review outcomes … final update?

October 9, 2006

EARLY FALL UPDATE: A new season has not changed the patterns spotlighted below; indeed, I believe September only brought reversals of below-guideline sentences as substantively unreasonable and affirmances of above-guideline sentences as substantively reasonable. The month did bring, however, this new post about these patterns.

ONE MORE UPDATE: I had hoped that by now others would be more systematically cataloging reasonableness review outcomes. But, not yet having seen other accounts like this one, I have now added some August developments to the list below.

END-OF-JULY UPDATE: With this update, I have now tracked reasonableness review outcomes long enough to conclude the basic patterns are well-established. In addition, I believe the Sentencing Commission and the Federal Judicial Center (and perhaps others) have assembled more comprehensive lists. Moreover, with so many non-guideline sentences now having been reviewed, it is time for folks to start developing more refined analyses of what’s going on in all these cases. Consequently, I may no longer update this list on a monthly basis.

END-OF-JUNE UPDATE: Though the Sentencing Commission seems to have abandoned its monthly updating of post-Booker sentencing statistics, I am continuing my end-of-month updates of this list of reasonableness review outcomes.

ANOTHER UPDATE: Usually I wait until the end of a month to update my list of reasonableness outcomes in the circuits, but a lot of early June action (and a cite to this list in the Tenth Circuit’s Cage opinion) prompts this mid-month update. As documented by the four added reversals of below-guideline sentences and five affirmances of above-guideline sentences, the reasonableness song remains the same.

BUMP AND UPDATE YET AGAIN: With May complete, I have updated yet again this list of post-Booker reasonableness rulings previously noted on the blog. Recall that this is not comprehensive (and I will happily post any similar list created through by other means sent my way).

BUMP AND UPDATE AGAIN: To celebrate the last work day of April, I have updated yet again my list of post-Booker reasonableness rulings previously noted on the blog. As I have noted before, this is certainly not comprehensive (and I would love to see and post any other lists anyone else has assembled).

BUMP AND UPDATE: To celebrate the end of March, I have updated my list of post-Booker reasonableness rulings previously noted on the blog. The list below is now current through the end of March (although it is certainly not comprehensive; I surely have missed some rulings).

Original prelude (3/3/2006): In this recent post, I reviewed Booker reasonableness review doctrines circuit-by-circuit. There and elsewhere I noted a disconcerting pattern: it seems all post-Booker within-guideline sentences and nearly all above-guidelines sentences are being found reasonable, whereas many below-guideline sentences are being reversed as unreasonable. To further explore these realities, I have assembled below (in reverse chronological order) some reasonableness rulings previously noted on the blog.

Reversal of within-guideline sentence as unreasonable:

Goodwin (Lazenby)(8th)

Affirmance of within-guideline sentence as reasonable: Far too many to list

Reversal of above-guideline sentence as unreasonable

Affirmance of above-guideline sentence as reasonable

Reversal of below-guideline sentence as unreasonable

Affirmance of below-guideline sentence as reasonable

This list is by no means comprehensive: I typically focus only on published opinions in my blog coverage and there may be many notable reasonableness outcomes among unpublished opinions. Indeed, in putting this list together, I am surprised by how many opinions come from just a few circuits. (This is why, as I have stressed in prior posts here and here and here, it is critical for the US Sentencing Commission to produce data on post-Booker appeals and reasonableness review.)

But the basic point is pretty simple: the pattern of reasonableness review outcomes is quite telling.

ADDENDUM: A helpful reader has sensibly suggested that I note that the US Sentencing Commission’s recent Booker report (available here) has a list of reasonableness rulings through mid-March on page 30. The USSC’s list includes more rulings (e.g., it lists six below-guideline sentences affirmed, and five above-guideline sentences reversed), although I am not sure I concur with how the USSC codes some of the circuit decisions. Nevertheless, anyone following the reasonableness story ought also check out page 30 of the USSC Booker report.