"Sentencing Kabuki" or "A New Twist on Reasonableness Review"
Tzep is an important case for two reasons. First, it affirms an arguably below-guidelines sentence. That's a relatively rare occurrence these days (see Professor Berman's commentary on that point here, and his post on Tzep here).
Second, it holds that a district court can impose a reasonable sentence without actually deciding which of two competing guidelines calculations is the correct one, so long as the court actually considers both ranges and explains why neither one is appropriate with reference to the 3553(a) factors. This is surprising, because the court appeared to reject this type of Crosby-style sentencing in United States v. Duhon.
The lesson that emerges from Tzep and Duhon is that a court can sentence outside the guidelines for case-specific reasons tied to the 3553(a) factors, but it cannot reject the guidelines out of hand or because of a disagreement with policy decisions made by Congress or the Sentencing Commission. A fine distinction, to be sure (and one that I think is hard to justify based on the text of 3553(a)) but that's where we're at right now. Craft your sentencing arguments accordingly.
On to the particulars. Tzep pled guilty to illegal reentry (8 U.S.C. § 1326). He had a prior New York conviction for attempted first degree assault. The district court determined that if the prior conviction qualified as a crime of violence for purposes of the 16-level enhancement under §2L1.2, then Tzep's guideline range would have been 46 to 57 months (21, III). On the other hand, the court determined that if the conviction was not for a crime of violence, then the range would only have been 10 to 16 months (10, III).
The district court then determined that neither range would provide an appropriate sentence. Given the violent nature of Tzep's prior offense (based on the alleged facts underlying that offense), a 10 to 16 month range would not adequately capture the seriousness of the offense and "would not protect the public from further crimes." Slip op. at 6. The district court also concluded that a 46 to 57 month range was too long. "[B]ecause all of the defendant’s criminal history points arose out of one incident, the district court concluded that the criminal history category overstated the seriousness of the defendant’s record. The district court also noted that the defendant had been in the United States for many years and had some degree of cultural assimilation and was going to be deported for the rest of his life." Id. at 7. The district court ultimately imposed a sentence of 36 months.
Tzep appealed. Both parties focused primarily on whether Tzep's New York assault conviction was a 16-level COV under §2L1.2(b)(1)(A)(ii). The court didn't resolve that issue (although it suggested pretty strongly that the offense was a COV, see slip op. n.4). Instead, the court concluded that the 36-month sentence was a reasonable non-guidelines sentence.
The court began by setting forth, and clarifying, the framework for reasonableness review.
Post-Booker case law recognizes three types of sentences under the new advisory sentencing regime: (1) a sentence within a properly calculated Guideline range; (2) a sentence that includes an upward or downward departure as allowed by the Guidelines, which sentence is also a Guideline sentence; or (3) a non-Guideline sentence which is either higher or lower than the relevant Guideline sentence.
Before the court imposes a non-Guideline sentence, it must first calculate the Guideline range and consider the appropriateness of a sentence within that sentencing range to fulfill its duty to consider the Sentencing Guidelines as advisory and as a frame of reference. This first step ordinarily requires that the district court determine a properly calculated Guideline sentence. If the district court makes an error in an application of the Guidelines, we vacate the resulting sentence without reaching the sentence’s ultimate reasonableness. This is so because Booker did not excise 18 U.S.C. § 3742(f). Section 3742(f) requires that if a sentence is imposed “as a result of an incorrect application of the sentencing guidelines” the sentence must be vacated and the case remanded for further sentencing proceedings. If, however, the district court imposes a non-Guideline sentence and that advisory sentence did not directly “result” from any Guideline error, it need not be vacated.
Slip op. at 4-5 (citations omitted). The court concluded that Tzep's
sentence did not “result” from an incorrect application of the Guidelines. Based on facts presented in the PSIR, the district court carefully considered the two possible Guideline ranges that could result depending on how it ruled on the defendant’s objection to the crime of violence enhancement. The court then rejected both options and elected to exercise its discretion to impose a non-Guideline sentence.
Both the Second and Eighth Circuits have recognized that the approach followed by the district court in this case is an appropriate one. See United States v. Haack, 403 F.3d 997 (8th Cir. 2005); United States v.Crosby, 397 F.3d 103 (2d. Cir. 2005). In Haack, the court stated: “[t]here may be situations where sentencing factors may be so complex, or other § 3553(a) factors may so predominate, that the determination of a precise sentencing range may not be necessary or practical. However, in those cases the court should be careful to identify potential applicable ranges, the reason why a particular range is not being selected, and other § 3553(a) factors that predominate.” Haack, 403 F.3d at 1003, (citing Crosby).
Slip op. at 7-8. That endorsement of Crosby is somewhat surprising, because the Fifth Circuit appeared to reject Crosby's reasoning in United States v. Duhon, 440 F.3d 711 (5th Cir. 2006). In Duhon, the district court imposed a sentence of probation in a child pornography case, stating that it would impose the same sentence regardless of what the advisory guidelines suggested. That didn't fly:
[Booker mandates] that sentencing courts "take account" of the Guidelines along with other sentencing goals. In light of its duty to "account" for the Guidelines, the court's statement that it would impose the same sentence regardless of which range applied, making the sentence more, rather than less, problematic. The court cannot reasonably impose the same sentence regardless of the correct advisory range anymore than it could reasonably impose the same sentence regardless of the seriousness of the offense. Both are sentencing factors that must be taken into account under section 3553(a). A sentencing court cannot evade its duty under Booker and Mares to correctly calculate the Guideline range with the expedient of saying the Guidelines would not affect the result. Accordingly, the miscalculation deprives the sentence of "great deference" and is a factor to be considered in assessing the reasonableness of the sentence.
Id. at 716. (By the way, Duhon petitioned for cert and the Supreme Court has requested a response from the Solicitor General. It's docket number 05-11144, which you can monitor here.)
So how do you reconcile Duhon and Tzep? Case-specific reasons good, policy disagreements bad:
We emphasize that a court’s decision to impose a non-Guideline sentence must be based on the individualized, case specific factors spelled out in § 3553(a). We fully agree with the courts that have held that Booker does not give sentencing courts the discretion to impose a non-Guideline sentence based on the courts’ disagreement with Congressional and Sentencing Commission policy. Thus, for example, a court is not entitled to base its decision to give a non-Guideline sentence on its disagreement with policy established by Congress and the Commission that traffickers in crack cocaine should receive stiffer sentences than traffickers in powder cocaine. See, e.g., UnitedStates v. Pho, 433 F.3d 53, 61-65 (1st Cir. 2006); United States v. Miller, 450 F.3d 270, 274-76 (7th Cir. 2006); United States v. Eura, 440 F.3d 625, 633-34 (4th Cir. 2006). These courts recognize the obvious distinction between the court’s exercise of discretion based on § 3553(a) case-specific factors and disagreement with general policy decisions made by Congress and the Commission. As the First Circuit stated in Pho, “The clear import of this statutory framework is to preserve Congress’s authority over sentencing policy and to guarantee that the exercise of judicial discretion over sentencing decisions be based on case-specific circumstances, not on general, across-the-board policy considerations.” Pho, 433 F.3d at 62.
The record reveals that the district court, after carefully considering the Guidelines, decided to impose a non-Guideline sentence based on individualized § 3553(a) factors.
Slip op. at 8-9. The court went on to conclude that Tzep's sentence was reasonable.
Tzep's endorsement of Pho, et al., is disappointing. I find it hard to square with the concept of advisory guidelines, and I don't think this policy-disagreement-vs.-case-specific-reasons distinction is tenable in light of the text of § 3553(a).
On the bright side, however, Tzep does provide needed guidance to courts and practitioners in this circuit. And if nothing else it shows that it's not all that hard to identify case-specific reasons for an individualized non-guidelines sentence that will survive reasonableness review.