Fives Explain How to Overcome Presumption of Reasonableness, But Will the Court's Guideline-Centric Approach Survive Rita/Claiborne?
United States v. Nikonova, No. 05-31093 (5th Cir. Feb. 26, 2007) (Smith, Benavides, Prado)
With decisions in Rita and Claiborne just a few months away, Nikonova gets out ahead of the curve with perhaps the most robust view yet of post-Booker Guideline-centricity. The issue: how to overcome the presumption of reasonableness that attaches to a within-Guideline sentence. As the court explains it,
Slip op. at 4 (emphasis added).
There's at least a couple of problems with the court's approach. First, the court never really explains this new clear-error-in-the-exercise-of-broad-discretion standard of review, apart from declaring that the standard will "rarely" be met. Nikonova was unable to meet the standard, but the court's explanation as to why doesn't shed much light on what it means.
Second, the court's rationale for the standard doesn't make any sense. How does the court of appeals properly respect the district courts' supposedly broad post-Booker sentencing discretion by adopting a standard of review that tells them, "Stick with the Guidelines and you'll rarely get reversed. But exercise your 'broad' discretion to go outside the guidelines and you'll be subject to greater scrutiny."? That's virtually indistinguishable from the pre-Booker mandatory Guidelines regime.
But those aren't the only questionable aspects of this case. There's also the matter of whether the 31-month sentence that the court was reviewing was even a within-Guideline sentence in the first place.
The background: Nikonova was convicted of possessing child pornography. The probation officer calculated a guideline range of 41 to 51 months (22, I). That calculation included a 4-level enhancement for possession of sadistic images. Nikonova objected to the enhancement, "arguing that, although the images were sadistic, the government had not adequately proved that she had intentionally ordered and received them." The court overruled the objection, denied Nikonova's motion for a downward departure, and imposed a sentence of 41 months. Later, after Nikonova filed her notice of appeal, the district court granted the Government's Rule 35 substantial assistance motion, departed downward two levels, and imposed a sentence of 33 months.
According to the opinion, the parties' "devote[d] substantial argument" on appeal to the applicability of the 4-level sadistic image enhancement. The court declined to resolve that dispute on the ground that Nikonova's 31-month sentence fell within the 27- to 33-month range (18, I) that would have applied without the enhancement. But the court apparently forgot about the 2-level substantial assistance departure. If the 4-level enhancement did not apply, then Nikonova would have been at a range of 21 to 27 months after the departure (16, I), not 27 to 33 months (18, I). That means that a 31-month sentence would have amounted to an upward departure or variance, not a within-Guideline sentence, and the presumption of reasonableness would not have attached.
Ultimately, Nikonova may have a short shelf-life. It's anybody's guess how Rita and Claiborne will turn out, but it's hard to see how the Supreme Court can endorse the Fifth Circuit's view without ditching or substantially dialing back the rule of Apprendi.
With decisions in Rita and Claiborne just a few months away, Nikonova gets out ahead of the curve with perhaps the most robust view yet of post-Booker Guideline-centricity. The issue: how to overcome the presumption of reasonableness that attaches to a within-Guideline sentence. As the court explains it,
A non-guideline sentence is unreasonable in light of the statutory sentencing factors where it “(1) does not account for a factor that should have received significant weight, (2) gives significant weight to an irrelevant or improper factor; or (3) represents a clear error of judgment in balancing the sentencing factors.” United States v. Smith, 440 F.3d 704, 708 (5th Cir. 2006). Nikonova suggests that we should apply the same test to determine whether a guideline sentence is reasonable. See Alonzo, 435 F.3d at 554. To apply the test in the same manner to guideline sentences and non-guideline sentences alike, however, would ignore the presumption of reasonableness that applies to guideline sentences and would disregard the discretion appropriately afforded to a district court where it has considered all the § 3553(a) factors. Therefore, the presumption of reasonableness that attaches to a properly calculated guideline sentence is rebutted only where the sentence falls so far afoul of one of the standards in Smith as to constitute a clear error in the court’s exercise of its broad sentencing discretion.
Slip op. at 4 (emphasis added).
There's at least a couple of problems with the court's approach. First, the court never really explains this new clear-error-in-the-exercise-of-broad-discretion standard of review, apart from declaring that the standard will "rarely" be met. Nikonova was unable to meet the standard, but the court's explanation as to why doesn't shed much light on what it means.
Second, the court's rationale for the standard doesn't make any sense. How does the court of appeals properly respect the district courts' supposedly broad post-Booker sentencing discretion by adopting a standard of review that tells them, "Stick with the Guidelines and you'll rarely get reversed. But exercise your 'broad' discretion to go outside the guidelines and you'll be subject to greater scrutiny."? That's virtually indistinguishable from the pre-Booker mandatory Guidelines regime.
But those aren't the only questionable aspects of this case. There's also the matter of whether the 31-month sentence that the court was reviewing was even a within-Guideline sentence in the first place.
The background: Nikonova was convicted of possessing child pornography. The probation officer calculated a guideline range of 41 to 51 months (22, I). That calculation included a 4-level enhancement for possession of sadistic images. Nikonova objected to the enhancement, "arguing that, although the images were sadistic, the government had not adequately proved that she had intentionally ordered and received them." The court overruled the objection, denied Nikonova's motion for a downward departure, and imposed a sentence of 41 months. Later, after Nikonova filed her notice of appeal, the district court granted the Government's Rule 35 substantial assistance motion, departed downward two levels, and imposed a sentence of 33 months.
According to the opinion, the parties' "devote[d] substantial argument" on appeal to the applicability of the 4-level sadistic image enhancement. The court declined to resolve that dispute on the ground that Nikonova's 31-month sentence fell within the 27- to 33-month range (18, I) that would have applied without the enhancement. But the court apparently forgot about the 2-level substantial assistance departure. If the 4-level enhancement did not apply, then Nikonova would have been at a range of 21 to 27 months after the departure (16, I), not 27 to 33 months (18, I). That means that a 31-month sentence would have amounted to an upward departure or variance, not a within-Guideline sentence, and the presumption of reasonableness would not have attached.
Ultimately, Nikonova may have a short shelf-life. It's anybody's guess how Rita and Claiborne will turn out, but it's hard to see how the Supreme Court can endorse the Fifth Circuit's view without ditching or substantially dialing back the rule of Apprendi.
posted by Brad Bogan at 9:42 AM
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