United States v. Eric Jones, Docket No. 05-2289-cr (2d Cir. August 2, 2006) (Newman, Walker, Katzmann): Others have already sung the praises of this terrific opinion by Judge Newman (click here for Professor Berman’s comments and click here for the Second Circuit Sentencing Blog’s) , but it is new to me since it was decided while I was on vacation. A late blog entry is appropriate because it is a decision that all who practice in this Circuit must read. And it is a decision that cleanses the palate of the unpleasant Guidelines-dominated taste left by the Court’s recent Castillo and Mejia decisions.
In sum, Jones upholds a 15-month “non-Guidelines sentence,” where the advisory range was 30 to 37 months, even though few unusual mitigating facts existed (and several aggravating facts were present) and where the district judge’s principal justification for the below-the-range sentence was simply his “gut feeling . . . that Eric Jones is capable of doing much better.” Op. 5. Along the way, Jones
(1) Rejects the Government’s argument that the district court erred in relying on “the Defendant’s education, emotional condition, favorable employment record, family support, and good record on state probation” in imposing the below-the-range sentence, because the “Sentencing Commission has concluded that these factors are ordinarily not relevant in determining whether a departure is warranted.” Op.6. This argument is misguided, Judge Newman explains, because “Jones’s post-Booker sentence is not a Guidelines departure; it is a non-Guidelines sentence.” Id. And with the Guidelines scheme “rendered advisory” by Booker, “the Guidelines limitations on the use of factors to permit departures are no more binding on sentencing judges than the calculated ranges themselves.” Id. While a court must continue to “consider” the Guidelines as well as its policy statements, “‘consideration’ does not mean mandatory adherence.” Id.
This clear ruling dispels the fog created by footnote 4 of Rattoballi, in which Judge Walker (who dissents in Jones) attempts to resurrect the mandatory Guidelines by suggesting that a court cannot rely on Guidelines-disfavored facts (such as the defendant’s age or employment history) in imposing a non-Guidelines sentence.
(2) Rejects the Government’s argument that the district judge erred in invoking “the subjective component of his thinking” in imposing sentence. As noted, the judge said he had “the sense” that Jones is capable of doing better and that he had a “gut feeling” about Jones.
This criticism is misguided, the Court explains, because it “fails to appreciate the enhanced scope of a sentencing judge’s discretion in the post-Booker world of advisory sentencing.” Op. 7. Under the new sentencing regime, “the judge is not prohibited from including in [his or her consideration of the § 3553(a) factors] the judge’s own sense of what is a fair and just sentence under all the circumstances.” Id. Judge Cabranes would be proud — there need be no “fear of judging”: “That is the historic role of sentencing judges; and it may continue to be exercised, subject [only] to the reviewing court’s ultimate authority to reject any sentence that exceeds the bounds of reasonableness.” Id.
Moreover, the judge did not err in failing to explain why, precisely, “15 months, rather than, say, 14 or 16 months” was the appropriate sentence. Judge Newman explains that there is no requirement “for such specific articulation,” since the “[s]election of an appropriate amount of punishment inevitably involves some degree of subjectivity that often cannot be precisely explained.” Op. 8.
(3) Rejects the Government’s claim that the 15-month sentence is substantively unreasonably. Judge Newman properly reaffirms the deferential posture of substantive reasonableness review, somewhat muddied by the over-intrusive and results-oriented tone of Rattoballi. Here, Judge Newman reminds us that the reviewing court “should exhibit restraint” in this regard and that a sentence will be found substantively unreasonable only “infrequently.” Op. 9. And in keeping with that deferential posture, the Court does not say much about Jones’s sentence in particular, stating only that “[W]e cannot say that, for a defendant with Jones’s characteristics and background, 15 months of imprisonment is unreasonable for possession of a detectable amount of marijuana, even though exacerbated by possession of  guns.” Op.10.
The Court also zings other panels and courts for upholding above-the-range non-Guidelines sentences while invalidating their below-the-range counterparts. Judge Newman’s reminder is plainly true but unfortunately necessary: “[T]he discretion that Booker accords sentencing judges to impose non-Guidelines sentences cannot be an escalator that only goes up.” Op.10. Take that, Eighth Circuit (e.g.)!
(4) And, finally, holds that failure to comply with § 3553(c)(2)’s requirement (that the specific reasons for a sentence outside the Guidelines range must be put in writing in the judgment of conviction) does not require vacatur of the sentence where the sentence is ultimately found reasonable on appellate review (as here). Rather, the appropriate remedy is a limited remand for correction of the judgment to include the written explanation. Op.13. Judge Walker principally dissents on this fascinating point.