Of Snipe Hunts and Sentencing Laws

For the last several months, a small but determined band of Tenth Circuit judges -- including Judges Murphy, Kelly and Briscoe -- has been criticizing the Circuit's application of the reasonableness standard for evaluating sentencing decisions.  (See here and here for our coverage of past cases.)  As Judge Murphy observed back in December: "It is odd, indeed, to see how quickly the appellate standard of reasonableness set out in [the Supreme Court's decision in United States v.] Booker has morphed into a mathematical exercise pegged exclusively" to the advisory Guidelines.

It appears that Judge McConnell just joined the band in a concurrence to the decision in United States v. Pruitt, issued this past Monday.  In that case, application of the advisory Sentencing Guidelines resulted in a 24-year sentence for a non-violent and relatively minor drug offense.  The defendant appealed the sentence as unreasonable, but the Tenth Circuit upheld it.

Although Judge McConnell agreed that the majority was correct as a matter of precedent, he expressed concern about the outcome and about the direction of the court's post-Booker precedent.  His concurrence includes this stunning observation:  out of the thousands of within-Guidelines sentences reviewed in federal appellate courts in the two years since Booker, only one has been declared substantively unreasonable -- and in that case, the defendant received exactly the same sentence on remand, which was subsequently affirmed. 

The concurrence makes for great reading, and Judge McConnell includes a delightful analogy based on his Scouting experience:

[T]his Court -- in company with several other Circuits -- has held that within-Guidelines sentences are only presumptively reasonable. . . . This means that, at least in theory, some such sentences cannot pass the "reasonableness" standard, which in turn means that public defenders, other defense counsel, U.S. Attorneys' offices, and appellate courts devote vast quantities of resources to reviewing thousands of sentences without much likelihood of reversal.  The process reminds me of the "snipe hunts" of my boyhood years in the Scouts, where the older boys would take the younger ones out in the woods at night in search for creatures that turned out not to exist.  Great fun, for Boy Scouts.  So far, in the post-Booker forest, only one apparent snipe has been found, and it turned out, on remand, not to be a snipe after all.

(This is a common element in Judge McConnell's published opinions -- analogies and observations based on pop culture references or his own experience that give his otherwise scholarly approach a certain accessibility.  Click here for another example in a sentencing decision, in which Judge McConnell explains his tenth-grade algebra teacher's policy on correcting exam-grading errors.)

Pruitt's counsel will almost certainly file a petition for en banc review.  With this group of judges having called some attention to this issue over the past several months, it will be interesting to see whether the court grants Pruitt's petition.