Osler's Razor

One of the things that really struck me in the Claiborne argument yesterday was that Michael Dreeben, towards the end of the argument, conceded that the government was not arguing that out-of-guideline sentences are presumptively unreasonable. What was surprising about this, of course, is that this appears, on the surface at least, to be a concession of the second issue presented in that case.

Given that Dreeben still argued for the decision by the 8th Circuit to be affirmed, the necessary implication is that he did not see the 8th Circuit’s standard (extraordinary facts are necessary to justify a extraordinary departure) as a presumption. This went largely unchallenged in the briefs, and was only raised during argument through this subtle but telling concession.

Unfortunately, I think this is a bit of rhetorical trickery.

Originally, I had addressed this issue in a brief this way: In the decision below, the Eighth Circuit employed a presumption that below-guideline sentences are unreasonable, with a sliding scale to measure the evidence needed to rebut that presumption: "Sentences varying from the guideline range… are reasonable so long as the judge offers appropriate justification under the factors specified in 18 U.S.C. § 3553(a). How compelling that justification must be is proportional to the extent of the difference between the advisory range and the sentence imposed." 439 F. 3d at 481, quoting United States v. Johnson, 427 F. 3d 423, 426-427 (7th Cir. 2005).

This standard goes beyond simply requiring a statement of reasons supporting an out-of-guideline sentence. By directly calibrating the amount of evidence a sentencing judge must employ in order to justify a variance, the Eighth Circuit has created a presumption with well-defined standards as to how that presumption may be rebutted, culminating in their requirement that “An extraordinary reduction must be supported by extraordinary circumstances.” 439 F. 3d at 841. This use of a sliding scale for rebuttal eliminates any doubt that a presumption is at work. Notably, the presumption here must be directly rebutted by the sentencing judge, not by a party, making it even more clearly a refutation of the advisory nature of the post-Booker guidelines.