Friday, April 29th, 2005

The Guidelines Grind Continues, even after Booker

United States v. Maloney, Docket No. 03-1753 (2d Cir. April 28, 2005) (Jacobs, Pooler, Sotomayor) (Op. by Sotomayor): Some of us had hoped that Booker, rendering the Guidelines-derived range merely advisory, would put an end to the mind-numbing analyses of poorly drafted Guidelines provisions churned out by the Circuit each week. Such hopes had been increased by the Court’s decision in Rubenstein (see Blog below), in which the Court explained that because reasonableness is now the end-all-and-be-all for determining whether a sentence will be upheld on appellate review (rather than the correct application of the Guidelines), and because whether a sentence is reasonable or not is not necessarily dependent on whether it flowed from a correctly calculated Guidelines range, the Court has the authority to overlook Guidelines disputes and simply affirm or vacate a sentence based on its reasonableness (or lack thereof).

In Rubenstein, the Court decided that it would in fact address & resolve the Guidelines dispute in that case because given the significance of that particular dispute (involving a 4-level enhancement), “the influence of [the erroneous imposition of the enhancement] is likely to be so pronounced that it could cause resentencing after remand to be unreasonable.” Op. 19. The Court used the same justification in Capanelli to reach a Guidelines issue where a 5-level enhancement was in dispute. The lesson seemed to be that if the Guidelines dispute involved only a 1 or 2-level difference, the Court would skip the dispute and simply evaluate the sentence itself under Booker‘s reasonableness standard. Such an outcome would please many advocates tired of arguing over one Guidelines technicality after another.

More recently, however, the Court in Fagans (see Blog below) used a different “test” to determine whether Guidelines disputes would be resolved on appeal. That case explained that if the Guidelines dispute is easily resolved, then the Court would address it; but if the dispute were difficult, the Court may simply undertake a reasonableness analysis.

In Maloney, however, the Court undertakes neither the Rubenstein evaluation (“Is the Guidelines dispute significant?”) nor the Fagans assessment (“Is the Guidelines dispute difficult to resolve?”). Rather, the Court says simply: “We reach the double counting issue notwithstanding the fact that the Guidelines are now only advisory, (citing Booker), because the district court on remand remains under an obligation to consider ‘the sentence that would have been imposed under the Guidelines,’ (citing Crosby).” Op. at 5. Oy. Does this mean that every Guidelines dispute must be resolved? One shudders to think.

In any event, the actual Guidelines dispute is simple: Does the 2-level enhancement under 2B1.1(b)(7)(C) (applicable where the conduct involved the violation of a prior judicial order) apply when the offense of conviction is 18 U.S.C. § 228, which punishes anyone who fails to “pay a support obligation with respect to a child who resides in another State …” The answer is yes. Although this of course constitutes “double counting” in common parlance, it is not impermissible double counting because, as the Court ruled, the Guidelines intended for such double counting.

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