12.21.2007

Sixth Circuit Notes Split Re Appropriate Standard for Reviewing Supervised Release Revocation Sentences Post-Booker

Per U.S. v. Bolds, --- F.3d ----, 2007 WL 4440403 (6th Cir. Dec. 20, 2007):

Post- Booker, the courts of appeals have struggled with the question of whether to continue to review supervised release revocation sentences under the “plainly unreasonable” standard or to apply the Booker “unreasonableness” review standard to such cases. In considering this question, the courts have confronted two issues: (1) whether, by announcing a standard of “unreasonableness” review in Booker, the Supreme Court intended to displace the “plainly unreasonable” standard that the courts had used in reviewing supervised release revocation sentences; and (2) whether there is any practical difference between these two standards.

From the twelve circuits, five different approaches have emerged. FN2 The Fourth and Seventh Circuits have found that Booker did not displace the “plainly unreasonable” standard of review for supervised release revocation sentences and that review under this standard, while similar to review for “unreasonableness,” is not the same. See United States v. Kizeart, 505 F.3d 672, 674 (7th Cir.2007); United States v. Crudup, 461 F.3d 433, 436-439 (4th Cir.2006). The Tenth Circuit appears to agree with the Fourth and Seventh Circuits that Booker did not change the standard of review of supervised release revocation sentences, but concludes that review under this standard is the same as under the Booker-created standard-sentences will be upheld if they are “reasoned and reasonable.” United States v. Tedford, 405 F.3d 1159, 1161 (10th Cir.2005) (quoting United States v. Tsosie, 376 F.3d 1210, 1218 (10th Cir.2004)). The Second, Third, and Ninth Circuits, in contrast, have found that Booker did replace the “plainly unreasonable” standard found in § 3742(e)(4) with an “unreasonableness” standard and, accordingly, have not considered what differences, if any, exist between the two standards. See United States v. Bungar, 478 F.3d 540, 542 (3d Cir.2007); United States v. Miqbel, 444 F.3d 1173, 1176 (9th Cir.2006) (Reinhardt, J .); United States v. Fleming, 397 F.3d 95, 97-99 (2d Cir.2005). The Eighth and Eleventh Circuits have likewise held that Booker reasonableness review should apply to supervised release revocation sentences, but they have additionally indicated that “the reasonableness standard of Booker is the essentially the same as the ‘plainly unreasonable’ standard of § 3742(e)(4).” United States v. Sweeting, 437 F.3d 1105, 1106 (11th Cir.2006); accord United States v. Cotton, 399 F.3d 913, 916 (8th Cir.2005). Finally, our Circuit and the Fifth Circuit have consistently refused to decide either issue. See, e.g., United States v. Smith, No. 07-10041, 2007 WL 4166152, at *1 (5th Cir. Nov. 21, 2007) (unpublished) (“This court has yet to decide which standard of review is applicable to revocation sentences.”); United States v. Jones, 484 F.3d 783, 792 (5th Cir.2007); United States v. Hinson, 429 F.3d 114, 120 (5th Cir.2005); see also supra p. 4.

FN2. W e note, however, that, as a practical matter, there is essentially only a two-way circuit split between those circuits applying the “plainly unreasonable” standard of review (Fourth, Seventh) and those applying “unreasonableness” review (Second, Third, Eighth, Ninth, Tenth, Eleventh), with two circuits undecided (Sixth, Fifth), and two which have yet to confront the issue (First, D.C.).
Having evaluated these various approaches, we find that, while the Supreme Court in Booker did not technically displace the “plainly unreasonable” standard contained in 18 U.S.C. §§ 3742(a)(4) and 3742(b)(4), there is no practical difference between Booker's “unreasonableness” review and the “plainly unreasonable” standard in §§ 3742(a)(4) and 3742(b)(4). Rather than creating a new “unreasonableness” standard of review for supervised release revocation sentences, the Supreme Court in Booker was simply directing appellate courts to apply the same reasonableness standard that they use to review supervised release revocation sentences to their review of all sentences. Accordingly, for the reasons that follow, we hold that post- Booker, this Circuit will review supervised release revocation sentences in the same way that we review all other sentences-“ ‘under a deferential abuse of discretion standard’ for reasonableness.” United States v. Lalonde, ---F.3d ----, No. 06-4563, 2007 WL 4321998, at * 17 (quoting Gall, 2007 WL 4292116, at *2).

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