United States v. Pho: reasons and reasonableness in post-Booker appellate review.

Author:Citron, Eric

In United States v. Pho, (1) the federal government appealed two crack-cocaine sentences that the district court had justified on its perception of unfairness in the 100:1 crack-to-powder sentencing disparity. Though the fairness of the 100:1 ratio had been a dead issue, the judge in these cases believed that his freshly minted, post-Booker discretion allowed him to revive it, and to review and reject the ratio for the unwarranted disparities it created. Echoing many other district courts using their Booker discretion in this way, (2) Judge Torres determined that a 20:1 ratio was more appropriate and that he would apply that lower ratio in subsequent cases. This yielded sizable reductions for the two defendants, Sambath Pho and Shawn Lewis, the latter of whom was spared almost four years despite the court's determination that the ratio's unfairness was the "only" reason for a lower sentence in his case. (3) Pho was the first appellate case to consider this burgeoning ratio-reduction movement, and it roundly rejected Torres's recalculations as working an unreasonable usurpation of congressional sentencing authority. (4)

This Comment argues that a proper understanding of Booker's reasonableness review validates the appellate court's rejection of these reduced-ratio sentences in Pho, and should do so despite the fact that the sentences issued by Judge Torres were eminently "reasonable" in any colloquial sense of the term. Two possible conceptions of reasonableness review must be distinguished--"reasonable-length" review and "reasons-based" review--and the latter should be preferred. Reasons-based review focuses not on the terms imposed but on the reasons given for imposing them, insisting that those reasons comport with Congress's sentencing priorities. This paradigm, more so than the vague reasonableness standard, acknowledges congressional authority over sentencing rationales and preserves a central role for Congress's much-beloved Sentencing Guidelines going forward. At the same time, by seeing the Guidelines as providing reasons rather than outcome-oriented formulae, it avoids the rote view of the Guidelines that rendered them unconstitutional under Booker. (5) It is thus not only the most appropriate view on the law, but also capable of reconciling Congress's obvious desire for rulebound sentencing with the advisory role of the Guidelines as they now stand.


    The core idea of the reasons-based model is that appellate sentencing scrutiny should be focused on the reasons invoked by the sentencing judge rather than the numerical outcome those reasons produced. Thus, an appellate court should not uphold a sentence based on insufficient reasons even if, in terms of length, the sentence appears to be appropriate. (6) On the other hand, if the reasons for the sentence are correctly and completely articulated, a sentence should be presumed reasonable, with appellate judges policing only those adjustments that are so large vis-a-vis their justifying reasons as to make them appear pretextual. In short, appellate courts should carefully and critically examine the reasons district courts place on the sentencing scale, but should show deference as to the balance actually struck. (7)

    An example will highlight the difference between the two paradigms and explain why we should prefer reasons review. Imagine a sentencing hearing at which the judge states: "Mr. Smith, given your clean record, community involvement, and contrition, I would ordinarily be inclined to sentence you to a term of sixty months. However, because your Syrian background means there is an outside chance you are a terrorist, I sentence you to seventy-two." This judge has invoked a most inappropriate reason. Yet further assume that the applicable Guideline range is sixty-six to seventy-eight months, and that the last ten post-Booker defrauders have received a sentence within roughly that range. There is something desperately awry with this situation despite the fact that the defendant's sentence lies directly in the middle of both the range and the recent sentencing pattern. The sentence itself may be reasonable, but the reasoning is not. The problem would be just as acute if the court had picked different criteria that were irrational rather than blatantly unconstitutional--say, that the defendant had no middle name or preferred carrots to peas. The lesson is clear: Reasons matter more than outcomes; a reasonable-length term plays second fiddle to a well-reasoned sentence.

    The real question is thus what makes a sentence well reasoned, and the answer is congressional intent. All federal sentencing authority derives from Congress, and courts thus have the responsibility of deferring to legislatively expressed sentencing purposes. Particular sentencing decisions are thus not acts of mystical judgment, but rather ordinary acts of judicial interpretation. In other words, courts must use their usual set of interpretive tools to divine the congressional will.

    After Booker, two sets of materials are especially relevant to this interpretive task. The first is 18 U.S.C. [section] 3553(a), which enumerates certain broad goals of sentencing and directs courts to impose a sentence "sufficient, but not greater than necessary" to make those ends meet. (8) The other is the Guidelines. Though not a statute, the Guidelines are themselves statements of valid sentencing reasons, enacted by Congress's chosen agent, requiring a congressional stamp of approval, and enumerated as a relevant...

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