Examples why federal sentencing and reasonableness review should migrate away from the guidelines

Sentencing rulings today from the Sixth and Ninth Circuits provide more examples for why federal judges interested in a sound and comprehensible sentencing system should be more willing to migrate away from the diktats of the guidelines. 

From the Sixth Circuit in US v. Geerken, No.  06-3987 (6th Cir. Oct. 22, 2007) (available here), we learn about the distinctive math of the guidelines in which 204 still images and 49 videos adds up to 600 or more images of child pornography.  (As a Tom Lehrer fan, Geerken reminded me of two of his great songs, “New Math” and “Smut’).  In a similar guideline-centric mindset, the Ninth Circuit in US v. Rodriguez-Guzman, No. 06-10585 (9th Cir. Oct. 22, 2007) (available here), provides a lengthy tutorial on whether California’s particular definition of statutory rape qualifies as a “crime of violence” under the guidelines.

Meanwhile, the Ninth Circuit today also handed down US v. Rodriguez-Guzman, No. 06-30341 (9th Cir. Oct. 22, 2007) (available here).  Mercifully, that ruling manages in seven short paragraphs to provide a clear account of the reasonableness of a sentence based on the district court’s focus on the “defendant’s extensive criminal history and the need for deterrence.”

Reading these cases together, I cannot help but note the clarity and sensibility that can result from emphasizing the simple provisions of 3553(a), over the complex (and falsely precise) provisions of the guidelines.  Because of the interpretive complications that the guideline can produce, I expected and hoped we would see a slow migration away from the most opaque guideline diktats after Booker.  But now, almost three years afteer Booker, I see very little evidence of a migration away from guideline technicalities.  Perhaps the forthcoming rulings in Gall and Kimbrough will help the migration away from the guidelines, but I’m not holding my breath.