After United States v. Booker, federal district judges may no longer just find Guideline-specified facts, plug those facts into a Guideline calculation, and then mechanically impose a Guideline sentence. Instead of sentencing-by-the-numbers, Booker requires district courts to exercise independent reasoned judgment when imposing a sentence, and requires appellate courts to ensure sentences are both reasoned and reasonable.

This understanding of Booker harmonizes its two seemingly conflicting majority opinions. Justice Stevens’s merits opinion makes reasoned judgment at sentencing constitutionally essential by suggesting first, that the Sixth Amendment permits only the jury to find facts that will have fixed and predictable sentencing consequences, but, second, that judges may, nevertheless, still consider facts when making discretionary sentencing decisions. Justice Breyer’s remedial opinion makes reasoned judgment at sentencing statutorily required by underscoring the continued importance of the dynamic, purpose-oriented considerations in § 3553(a) of the Sentencing Reform Act.

In short, Booker’s two opinions indicate that both the Constitution and the Sentencing Reform Act now command judges to think critically and carefully, in each individual case, about how best to achieve the sentencing goals Congress set out in § 3553(a). Section 3553(a) directs judges to consider a range of (sometimes competing) punishment purposes and principles, and mandates the imposition of “a sentence sufficient, but not greater than necessary, to comply with” the traditional purposes detailed in § 3553(a)(2). Booker and § 3553(a) thus demand that federal sentencing judges exercise reasoned judgment by filtering the Guidelines’ advice through the provisions of § 3553(a); by doing so, district judges avoid giving any particular judge-found fact a “determinate” role in calculating the sentence, and thereby avoid the constitutional problem identified in Booker.

The circuit courts enforce and enhance post-Booker requirements by evaluating the reasons offered in support of district courts’ sentencing choices. Justice Breyer’s opinion in Booker recast appellate review around the concept of “reasonableness” and explained that the provisions of § 3553(a) should “guide appellate courts . . . in determining whether a sentence is unreasonable.” After Booker, circuit courts must ensure the exercise of reasoned judgment by district judges at sentencing; any sentencing decision that fails to thoroughly and thoughtfully address the congressional directives of § 3553(a) must be considered suspect.

Disappointingly, circuit courts have not fully appreciated the importance of reasoned judgment at sentencing and have insisted upon a Guideline-centric approach to post-Booker sentencing. Every circuit has declared that district judges must still calculate Guideline sentencing ranges and must provide a detailed justification for deviating from the Guidelines. Many circuits have declared within-Guideline sentences “presumptively reasonable.” And, in the eighteen months since Booker, district courts have imposed well over 50,000 within-Guideline sentences, but the circuit courts have declared only a precious few sentences “unreasonable” on appeal. Post-Booker circuit doctrines and practices encourage the sort of rote, mechanistic reliance on the Guidelines that Justice Stevens’s merits opinion found constitutionally problematic.

In addition to being constitutionally suspect, the circuit courts’ presumption of reasonableness lacks a statutory foundation. Congress’s nuanced sentencing instructions in § 3553(a) provide no textual basis for appellate courts to presume that all Guideline sentences are reasonable. In § 3553(a)’s detailed list of considerations, the Guidelines are just one factor among many—and not the first or most important one. The central command of § 3553(a) directs sentencing courts to “impose a sentence sufficient, but not greater than necessary, to comply with the purposes” of punishment. When developing and revising the Guidelines, the U.S. Sentencing Commission has never fully explored—nor even formally addressed—whether the Guidelines serve this mandate. On the contrary, the Commission has stated that certain Guidelines—such as the hundred-to-one ratio in calculating crack-to-powder cocaine sentences, and the severe career-offender enhancement—undermine the sentencing goals set forth by Congress in § 3553(a)(2). A blanket presumption of reasonableness for all within-Guideline sentences ignores the fact that the Sentencing Commission has itself indicated that some Guidelines do not produce just and effective (or should I say, “reasonable”) sentences in some cases.

Rather than presume that all within-Guideline sentences are “reasonable” and require detailed justification for any variation, appellate courts should reverse their post-Booker approach. The circuits should presume that within-Guideline sentences are constitutionally suspect due to improper reliance on judge-found facts and should uphold these sentences only when supported by a detailed explanation of how the purposes of § 3553(a) are best served by following the Guidelines. An appellate “presumption of unconstitutionality” for within-Guideline sentences would respect the merits opinion in Booker by ensuring that sentences are not the result of rote judicial fact-finding that usurps the jury’s role. And, such a presumption would force district judges to carefully evaluate all the § 3553(a) factors in each individual case rather than simply assuming that the Guidelines already achieve statutory goals.

Though the presumption of reasonableness is worrisome, the circuit courts are wise to require district judges to begin the sentencing process with basic Guideline calculations. The text of § 3553(a) does call for district courts to consider the Guidelines, and Guideline calculations do ensure that district judges carefully examine the factual and legal issues raised in each case. Guideline calculations provide a useful starting point and framework for a sentencing judge (and the parties) to sort through what facts and purposes should be most important in a particular sentencing decision. Requiring basic Guideline calculations fosters a beneficial measure of consistency in the sentencing process: Guideline provisions can help frame, inform, and regularize the exercise of reasoned judgment by different sentencing judges.

Of course, one can expect that the reasoned sentencing judgment of New York’s federal judges may be different from the reasoned judgment of federal judges in California or Iowa or Utah or Wisconsin. But perfect sentencing uniformity is an illusory goal, and was not the sole purpose of the Sentencing Reform Act. Indeed, the Booker Court’s emphasis on all the provisions of § 3553(a) is a stark reminder that Congress, in its statutory instructions to judges, listed “the need to avoid unwarranted sentence disparities” as only one of seven distinct sentencing considerations. Moreover, the Supreme Court’s teaching in Blakely v. Washington and Booker is that many different values—including a fair adversarial sentencing process and the historic role of the jury—need to be balanced with and integrated into the modern quest for sentencing uniformity. Absolute sentencing uniformity is not an achievable goal, nor should it be doggedly pursued without also striving to make our sentencing system humane and respectful to all the persons it affects.

Douglas A. Berman, the William B. Saxbe Designated Professor of Law at The Ohio State University Moritz College of Law, is the co-author of Sentencing Law and Policy: Cases, Statutes, and Guidelines (2004) and has been an Editor of the Federal Sentencing Reporter for ten years. In addition, he is the creator of and sole contributor to the Sentencing Law and Policy web log, which provides resources, information, and commentary about capital and non-capital sentencing developments.

Preferred Citation: Douglas A. Berman, Reasoning Through Reasonableness, 115 Yale L.J. Pocket Part 142 (2006), http://yalelawjournal.org/forum/reasoning-through-reasonableness.