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United States v. Zavala—Booker revived!
On April 11, 2006, the Ninth Circuit filed its opinion in United States v. Zavala. The case is significant in that it shuts-down the practice of treating the Guideline calculated sentence as the presumptive sentence. The “presumptive sentence” rule has been followed by many district courts and effectively undermined the Booker decision.
In Zavala, application of the sentencing guidelines yielded a life sentence “range.” During the sentencing hearing, the district court characterized the guideline sentence as the “presumptive sentence.” Defense counsel argued that the starting point of analysis was the statutory minimum sentence. The court explained its view of post-Booker sentencing, stating, “I think it is clear . . . that we start with the Guideline range and then work from that to determine whether there are facts in this case unique to this case which justify the Court in disregarding the Guideline range, or at least deviating from the Guideline range in some fashion.” The court considered the relevant sentencing factors set forth in 18 U.S.C. 3553(a), ultimately concluding that the appropriate sentence was 30-years’ imprisonment rather than imprisonment for life.
The court in Zavala concluded that “[i]f a district court presumed that the sentence should be a Guideline range sentence, it would thereby make it much more than something to be consulted and would give it much heavier weight than section 3553(a) now does. That leaves it as a factor in the sentencing alchemy.” The court stated that “a presumption at the district court would give undue weight to the Guidelines. The dangers averted by declaring them to be merely advisory would become recrudescent.”
After Zavala it is clearly error for the district court to apply greater significance to the guidelines. The court stated, “[i]f a district court does show a kind of resistence and, instead, makes the Guideline calculation the presumptive sentence, it will commit legal error by misapplying section 3553(a), which now makes the Guideline a, but only a, factor to be considered.” The foregoing passage is important language in the Zavala opinion. Appellate counsel should consider whether a district court, by virtue of the language it uses or its sentencing practice, has shown “resistence” to the principle announced in Zavala.
The Zavala opinion is notable not only for its holding, but for its entertaining use of language. In one passage, the court writes that “Booker has resuscitated the much-lamented discretion that the sentencing statute seemed to take away from district courts, and has at least partially restored that halcyon condition that district judges have longed for these many years. District courts neither should, nor can, ignore that by placing undue weight on the Guideline portion of the sentencing chemistry.”
Zavala is a good read. Its rich passages should be quoted in every sentencing memorandum filed in the district court.