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United States v. Wilson...Off to a Flawed Start
A day after Booker/Fanfan came down, Judge Cassell of the United States District Court for the District of Utah filed an opinion in United States v. Wilson. The opinion is one judge’s analysis of the newly-minted “advisory” guidelines. While Judge Cassell deserves great credit for taking on such a difficult task, the opinion contains several flaws.
The opinion rejected Justice Scalia’s observation that “logic compels the conclusion that the sentencing judge, after considering the recited factors (including the Guidelines) has full discretion, as full as what he possessed before the Act was passed, to sentence anywhere within the statutory range.” Booker, 2005 WL, at *47. Judge Cassell’s response to Scalia’s point is curious. The judge writes “As a general statement of a sentencing judge’s legal authority, Justice Scalia’s description appears accurate. The wise exercise of that discretionary authority, however, requires a judge to consider how the legal and factual background has changed since the Act was passed.” Wilson, p. 6. Judge Cassell seems to conflate what, in his personal opinion, is a “wise exercise of discretionary authority” with the issue of what limitations (if any) courts now face in imposing sentence. Conspicuous in the Wilson opinion is the absence of any response to Justice Scalia’s observation. Justice Scalia makes a strong argument that courts now will need only pay lip-service to the guidelines. Any rule resembling a requirement that courts follow the advisory sentencing guidelines will make the guidelines mandatory, thereby entitling defendants to a jury trial a la Blakely.
Professor Douglas A. Berman’s sentencing blog (available here) contains other criticism as well as some praise for Judge Cassell’s opinion. Notable is the observation that the Wilson opinion fails to “engage the history and characteristics of the defendant.” True. The opinion seems to obsess over the guidelines and the sentencing commission, but places little emphasis upon the individuality of the defendant.
Judge Cassell, it seems, wants to turn back the clock. If the guidelines are now advisory, then courts can impose whatever sentence is warranted under the circumstances. While courts may have to consider the guidelines, they should not be required to give them the “great weight” Judge Cassell requires. To do so would transform advisory guidelines into mandatory guidelines.