Judge Bright (in dissent) assails fraud guidelines and rote recitation of 3553(a) factors

Dissenting from an Eighth Circuit panel opinion today in US v. Spencer, No. 11-3463 (8th Cir. Nov. 7, 2012) (available here), Judge Myron Bright has lots to say about the harshness of the guidelines and about the failure of district judges to adequately explain their sentencing decisions.  Here is an excerpt (with most cites omitted) from a lengthy dissent worthy of a full read:

The fraud guidelines have been heavily criticized because they no longer provide a reasonable starting point for sentencing.  Adjustments based on the amount of loss lead to astronomical sentences that have little connection to criminality.  The much-below guidelines sentence imposed on Spencer suggests that the guidelines simply did not apply here. No reasonable judge would have imposed a sentence of over 20 years.  Spencer had zero criminal history points.  But even if the guidelines should not apply to a particular offender and his crime, a sentencing judge should not have unlimited discretion to impose a sentence without some proper basis.  A sentencing judge should be guided by § 3553(a). In order to adequately review a sentence, we need the sentencing judge to perform an analysis under § 3553(a) and to explain this analysis on the record.  Here, we do not know which § 3553(a) factors the sentencing judge relied on.  Saying simply, “This sentence is appropriate under § 3553,” is no different than an opinion stating “I hold for Party A because my findings are in his favor.”…

A district court is not required to provide “a mechanical recitation of the§ 3553(a) factors when determining a sentence.”  United States v. Feemster, 572 F.3d455, 461 (8th Cir. 2009) (quotation omitted).  However, I believe the converse is alsotrue — a mechanical recitation that the sentence complies with the requirements of§ 3553(a) is insufficient.  It is impossible for an appellate court to meaningfullyreview a sentence without the underlying rationale.  This is especially true in areaslike fraud, where the guidelines have been consistently and repeatedly disregardedby sentencing judges….

To ensure that criminal defendants receive fair sentences, this dissent urges thatsentencing judges always engage in a meaningful analysis of the § 3553(a)factors — the process should not devolve to be rote, mechanical, and artificial. Whether imposing a sentence within, above, or below the guidelines, the touchstoneshould always be the standard in § 3553 of a sentence sufficient but not greater thannecessary and judges should verify the sentence pursuant to § 3553(a), explaining forthe record “(1) the nature and circumstances of the offense and the history andcharacteristics of the defendant; (2) the need for the sentence imposed… (6) the needto avoid unwarranted disparities.” Id.

I acknowledge that conducting a § 3553(a) analysis in every case may be morework for a sentencing judge.  But this worthwhile endeavor could lead to greatimprovement in our current system.  Now sentencing courts have virtually unlimiteddiscretion because appeals courts such as the Eighth Circuit will uphold a sentenceas long as the sentencing judge says nothing more than, “I have…considered the otherfactors described in§ 3553(a)…. I find that the sentence imposed on [the defendant]is reasonable in light of the factors.” United States v. Hernandez, 518 F.3d 613, 616-17 (8th Cir. 2008) (upholding a sentence because the district court “expressly stated”it considered the § 3553(a) factors without further analysis); see also United Statesv. McGlothen, 556 F.3d 698, 702 (8th Cir. 2009) (“[T]here is no need to recite each§ 3553 factor.”); United States v. Dieken, 432 F.3d 906 (8th Cir. 2006) (“[W]e do notrequire a district court to categorically rehearse each of the section 3553(a) factors onthe record.” ).  I strongly disagree with the comments stated above in these appellatecases.