The Guidelines are Dead. Long Live the Guidelines.

United States v. Guidry, No. 05-30543 (5th Cir. Aug. 23, 2006)

Another below-guidelines sentence falls. This time because the sentence "is based on clearly erroneous factual determinations, puts significant weight on irrelevant factors, and ignores factors that should be given significant weight." Slip op. at 7. More specifically, the district court 1) clearly erred in finding that Guidry's criminal history (Cat I) wasn't that serious and that he probably wasn't a major drug dealer, 2) ignored a guidelines policy statement proclaiming that family ties and responsibilities aren't ordinarily relevant, and 3) shouldn't have considered whether Guidry was fully aware that relevant conduct could more than triple his sentencing exposure compared to the drug quantities alleged in the indictment, because neither constitutionally ineffective counsel nor "adequate but less than perfect counsel" are relevant sentencing factors.*

What's especially remarkable about this opinion (apart from its muscular exercise of reasonableness review) is this paragraph:

The district court also noted that Guidry supported his family and stated it would take this fact into account “when determining the need to promote respect for the law and to provide just punishment for the offense.” “In sentencing a defendant . . . family ties and responsibilities are not ordinarily relevant in determining whether a departure may be warranted.” U.S.S.G. § 5H1.6. The district court is supposed to consider such policy statements by the Sentencing Commission. 18 U.S.C. § 3553(a)(5)(A). The district court failed to acknowledge the policy statement or to give any indication that Guidry’s family ties are somehow extraordinary such that the policy statement would not apply. By ignoring the policy statement, the district court failed to give significant weight to a § 3553(a) factor, further making its non-Guideline sentence unreasonable.

Slip op. at 5-6 (emphasis added).

That's inconsistent, to say the least, with the concept of advisory guidelines. It's one thing to say that if a district court is going to give weight to a factor that a guideline policy statement declares to be "not ordinarily relevant," then the court should address that policy statement and explain why it concludes that the factor is in fact relevant to crafting a just sentence (if for no other reason than that it will facilitate an appellate court's reasonableness review). But Guidry seems to be saying more than that. Guidry apparently gives those policy statements not just presumptive weight, but the same controlling weight that they had pre-Booker. If that's really what Guidry is saying, then it's as if Booker never happened.

*(The sentence, by the way, was 120 months. That was approximately 50% below the low end of the 235- to 293-month guideline range calculated by the district court. That range was apparently driven overwhelmingly by relevant conduct findings, although it's hard to tell exactly what effect the relevant conduct had on the calculations because the opinion doesn't explain exactly what Guidry did or the charges in any detail. By way of contrast, the probation officer had initially calculated the range at 78 to 97 months.)