Some additional comments regarding Fleming (No. 04-1817-cr) to supplement David’s excellent post below on the “Booker Trilogy” issued by the 2d Circuit on February 2nd.
Though Crosby is clearly the Big Daddy of the bunch, Fleming must not be overlooked because it answers two critical questions left somewhat unanswered in Crosby — (1) what does it mean that judges have to “consider” the Guidelines range in imposing sentence, post-Booker? and (2) what does “reasonableness” mean on appellate review? Fleming (also by Judge Newman, and argued two days after Booker was decided — the same day as Crosby) is, essentially, the first appeal of a post–Booker sentencing. This is because it involved the appeal of a sentence imposed upon revocation of supervised release, and the sentencing phase of a revocation proceeding, even in the pre-Booker world, was basically the same as a sentencing phase in the post-Booker world (in light of Breyer’s remedial opinion) — i.e., each required/s the judge to look to advisory Guidelines and 3553(a) factors in determining an appropriate sentence. Additionally, the same basic standard of review applied/s — reasonableness (well, review of revocation sentences used to be on the “plainly unreasonable” standard, but what’s the real difference?). Fleming thus contains a blueprint of sorts for both the post-Booker sentencing proceeding, and the post-Booker sentencing appeal.
And the decision is excellent in answering both questions above. FIRST, regarding the Booker / 3553(a) requirement that the sentencing court “consider” the Guideline range, Fleming holds that it will be sufficient if the court is simply aware of the range. There is no requirement that the court must “weigh heavily” or treat as presumptive that range — as Judge Cassell concluded in Wilson.
Fleming specifically rejected the argument that to “consider” means to evaluate with “a measure of sustained reflection.” Rather, given the background assumption that district judges understand the law, “no specific verbal formulations should be prescribed to demonstrate the adequate discharge of the duty to ‘consider’ matters relevant to sentencing.” Indeed, so “long as the judge is aware” of the applicable range, and nothing in the record indicates misunderstanding on this score, “we will accept that the requisite consideration has occurred.”
SECOND, regarding the standard of review of post-Booker sentences, Fleming explains that “reasonableness in the context of review of sentences is a flexible concept,” and then adopts a posture of deference to district courts. As it states, “The appellate function in this context should exhibit restraint, not micromanagement.” And while “the brevity or length of a sentence can exceed the bounds of ‘reasonableness,’ we anticipate encountering such circumstances infrequently.”
This is a clear signal that the Second Circuit will not be examining all sentences outside the advisory Guidelines range (i.e., non-Guidelines sentences, in Crosby‘s lingo) with a fine-tooth comb on appellate review. Whether this is good news or bad news depends of course on the particular sentence imposed by the district judge in your case. I would guess, though, that in this Circuit, most non-Guidelines sentences will be lower than the Guideline range, and thus that a deferential stand of review will be favorable for the defense in most cases.