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US v. Levinson and the Nature of Procedural Error

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It is no secret that I am a big fan of SCOTUS’s recent 6th amendment jurisprudence beginning with Apprendi all the way through Gall. Yet despite the fact that the courts have been working with this line of cases for eight years, lower level courts still have a significant problem implementing these changes. Because it illustrates one key aspect of these difficulties nicely, I am going to blog about US v. Levinson.

This case is another case, like Carter, where the court is remanding a case to the trial judge because the judge did not, in the eyes of the court, explain its reasoning with significant exactitude so that the court could conduct meaningful appellate review. In Carter, the court sent the case back because it concluded the court had not provided adequate explanation in couple of minor areas, despite the fact that the lower court did provide adequate explanation in all other areas. In Carter, I felt the court was being unduly nitpicky and wasting judicial resources in the process. While there may have been some minor flaws, there was enough explanation in the opinion as a whole to justify the sentence imposed.

Here, I think the court simply misunderstands Gall’s need for adequate explanation of the sentence. The court writes, “In general, however, when we are reviewing a sentence and find ourselves unable to see how the reasons articulated lead to the punishment imposed, we will be focused on trying to obtain a better understanding of the district court’s reasoning.” Not only is there nothing in Gall that permits the court to do this, it’s actually a legally impossible task.

The words reasoning and explanation are not the same words and do not mean the same thing. To explain means to make a statement plain; to reason means to provide a justification for. In this case, the trial judge does in fact explain his decision; the appeals court is overturning it because they do not like his reasoning. That’s wrong.

There is nothing procedural about the appeals court dislike of a trial courts reasoning. Procedural error only relates to the steps or process that the court takes to reach a decision. In fact, in Levinson the court explicitly admits that the trial judge followed the correct procedure. The problem the appeals court has isn’t with the procedure itself, its that the court is “unable to see how the reasons articulated lead to the punishment imposed.” This isn’t a disagreement with a procedure; it isn’t a disagreement with the substantive result; it’s a disagreement with the relationship between the two. The court, without any foundation, is actually attacking a perceived lack of proportion and then calling that procedural error under Gall. But Gall specifically says that it is a lack of adequate explanation, not a lack of proportion that is procedural error.

To understand this clearly, it is helpful to remember that the purpose of sentencing procedure is make sure the judge has considered all the relevant information; it is not to dictate a specific result. Justice Holmes said that “General principles do not decide specific cases.” Stripping off the modifying words of that statement, the sentence reads, “Principles do not decide cases.” This is the foundational element of the law. There is no amount of reasoning nor any particular type of reasoning that can lead a court to a conclusion. If the appeals court plans to remanded cases when it is “unable to see how the reasons articulated lead to the punishment imposed” then, if it is honest, it will remand every sentencing case because every sentencing case meets that criteria.

Under Gall, the appeals court can overturn a trial judge for two reasons. The first is that the TJ has made a procedural error, including a lack of an “adequate explanation” for the sentence. The second is that the appeals court can rule the sentence substantially unreasonable. There is nothing in Gall that permits the court to examine the relationship between the explanation offered and the sentence imposed. The court cannot overturn a sentence because it disagrees with the judges reasoning.


Written by Daniel

September 18, 2008 at 8:38 pm

Posted in Uncategorized

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