Tuesday, April 07, 2009

Break Out Your Dancin' Boots: Fives Clarify That Reasonableness Review Is Two-Step Process: Review Procedure First, Then Substance

United States v. Delgado-Martinez, No. 08-50439 (5th Cir. Apr. 6, 2009) (Smith, Garza, Clement)

Have you found our circuit's pronouncements on post-Gall reasonableness review a little unclear? Then rejoice, for Delgado-Martinez explains cleanly and crisply just how sentences are reviewed these days. Here 'tis (with citations omitted for readability's sake):

Prior to the Supreme Court’s decision in Gall, as long as a sentence fell within the properly calculated range, we applied a “presumption of reasonableness” to the sentence regardless of any calculation error. Under this framework, we required the party complaining of the calculation error to rebut the presumption of reasonableness, and we applied a high degree of deference to the district court’s initial decision. The government contends that this framework survived Gall. We disagree.

Gall unequivocally established a bifurcated review process: At step one, the appellate court “must first ensure that the district court committed no significant procedural error, such as failing to calculate (or improperly calculating) the Guidelines range . . . .” If the sentence is determined to be “procedurally sound,” then the appellate court moves on to step two—reviewing the sentence for substantive reasonableness. Our pre-Gall analysis conflates these two distinct steps. By applying a presumption of reasonableness to sentences involving acknowledged procedural errors, our prior approach contravenes Gall’s directive to treat the two steps as sequential, dispositive inquiries. In most cases, a significant procedural error will prevent our review of the sentence for substantive reasonableness.

Nonetheless, not every procedural error will require outright reversal. While Gall itself is silent on this point, we agree with several of our sister circuits that certain “harmless” errors do not warrant reversal. A procedural error during sentencing is harmless if “the error did not affect the district court’s selection of the sentence imposed.” [The familiar Williams standard.] The burden of establishing that an error is harmless rests on the party seeking to uphold the sentence: The proponent of the sentence “must point to evidence in the record that will convince us that the district court had a particular sentence in mind and would have imposed it, notwithstanding the error made in arriving at the defendant’s guideline range.”

In summary, regardless of whether the selected sentence happens to fall within the properly calculated Guidelines range, we adhere to the following review process: We first consider whether the district court committed a significant procedural error as defined by Gall. If the court has committed such an error, we must remand unless the proponent of the sentence establishes that the error “did not affect the district court’s selection of the sentence imposed.” If we are satisfied that the error was in fact harmless, we then (and only then) proceed to Gall’s second step and review the substantive reasonableness of the sentence imposed.

Let's take a gander at how that played out here. The district court incorrectly calculated the advisory Guidelines range---a "significant" procedural error per Gall---as 30 to 37 months. The correct range was 24 to 30 months. Delgado was sentenced to 30 months. The Government argued that the error was harmless because that sentence falls within both the correct and incorrect ranges. Not so, said the court:
[T]he crux of the harmless-error inquiry is whether the district court would have imposed the same sentence, not whether the district court could have imposed the same sentence. While the fact that the actual sentence falls within the properly calculated Guidelines range may at times be relevant to the harmless-error inquiry, it is not dispositive.

Here, the district court said a sentence at "the bottom of the guidelines" would be fair and reasonable, indicating that it "consciously selected from the low end of what it believed to be the available range." Nothing otherwise suggested that the district court would have imposed the same sentence had it been working with the correct range, so the Guideline calculation error was not harmless. Thus vacation and remand.



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