Double Deference: Presumption of Reasonableness in Sentencing, Slides of Law

Download Double Deference: Presumption of Reasonableness in Sentencing and more Slides Law in PDF only on Docsity! DEFERENCE ERRORS: THE UNITED STATES SENTENCING GUIDELINES, CHEVRON, AND THE APPELLATE PRESUMPTION OF REASONABLENESS CARTER GEE-TAYLOR Every federal circuit, in one form or another, gives cognizable deference to the United States Sentencing Commission. The presumption of reasonableness that appellate courts apply to sentences falling within the Commission’s Sentencing Guidelines represents the most popular iteration of this deference. However, deference to the Commission—whether in the form of a presumption, or otherwise—is problematic. Examination of the justifications and effects of the presumption shows that it is the functional equivalent of Chevron deference. Further examination shows that such de facto deference is unjustified. The Commission’s expertise is redundant to, and less than, that of Article III courts. Additionally, notions of lenity counsel against deference in a setting where the government acts at its fullest power. Appellate courts should remove any aspect of deference from their jurisprudence and strive toward a robust sentencing review. Holistic review of federal sentences will achieve the happy result of additional guidance to district courts, increased uniform and well-justified sentences, and an affirmance of the judiciary’s power over the cases and controversies of the nation. INTRODUCTION ........................................................................ 1210  I. OVERVIEW OF THE SENTENCING GUIDELINES AND THE PRESUMPTION OF REASONABLENESS .............................. 1220  A.  History of the Act ..................................................... 1221   J.D. Candidate, 2018, University of Colorado; Associate Editor, University of Colorado Law Review. Special thanks to Erica Lieber for her patient and thoughtful comments. I would also like to express my gratitude to all the members and editors of the University of Colorado Law Review who gave comments on this piece. Finally, thanks goes to Professors Benjamin Levin and Sharon Jacobs for their support and insight, and to my family and friends for theirs. 1210 UNIVERSITY OF COLORADO LAW REVIEW [Vol. 89 B.  The Sentencing Reform Act, the Sentencing Commission, and the Sentencing Guidelines ......... 1222  C.  The Appellate Presumption of Reasonableness ...... 1225  II.  THE APPELLATE PRESUMPTION OF REASONABLENESS IS FUNCTIONALLY CHEVRON DEFERENCE .......................... 1231  A.  Chevron v. Natural Resources Defense Council .... 1232  B.  The Appellate Presumption of Reasonableness Is Chevron Deference in Disguise ............................... 1235  1.  The Appellate Presumption of Reasonableness Relies on the Same Justifications as Chevron .............................................................. 1236  a.  Deference to the Commission’s Expertise .... 1236  b.  Deference to Legislative Intent .................... 1239  2.  Arbitrary and Capricious Review ..................... 1240  a.  Deference to the Commission ....................... 1240  b.  Case Outcomes ............................................. 1242  c.  Overturning the Commission on Procedural Error ............................................................. 1244  III.  THE SENTENCING COMMISSION AND GUIDELINES DO NOT MERIT DE FACTO DEFERENCE ................................ 1246  A.  The Commission’s Expertise Does Not Surpass the Expertise of the Judiciary ....................................... 1247  1.  The Commission’s Expertise Is Redundant ..... 1247  2.  The Commission’s Expertise Is Less than That of Article III Courts ........................................... 1250  B.  Chevron Is Inapplicable to Criminal Law and Best Serves Civil Cases .................................................... 1253  1.  Concerns for Legislative Supremacy Counsel Against the Presumption of Reasonableness ... 1257  2.  Fair Notice Counsels Against De Facto Chevron Deference ............................................ 1260  IV.  A NEW STANDARD OF REVIEW ........................................ 1262  CONCLUSION ........................................................................... 1270  INTRODUCTION Our laws should be well-reasoned, internally consistent, and justified. Because we place our trust in—and order our lives around—the law, laws that fail to meet these standards work harm by creating unjust and inconsistent results. And thus, ill-reasoned, inconsistent, and unjustified laws undercut 2018] DEFERENCE ERRORS 1213 congressional interference with the child pornography guidelines, the current guidelines can “easily generate unreasonable results.”12 A sensible check on such an illogical and inconsistent guidelines, and the often-harsh sentences it imposes, would be appellate courts. Nevertheless, these courts often endorse truly astonishing punishments13 that outstrip sentences imposed for more serious crimes.14 In upholding harsh sentences under the child pornography guidelines, for example, appellate courts rely on a “rebuttable presumption of reasonableness” applied to these within-Guidelines sentences.15 As its title suggests, this presumption gives within-Guidelines sentences special status, assuming they are the correct “starting point” and “ending point” for most sentences.16 This presumption, a form of which exists in all eleven circuits and the District of Columbia,17 allows appellate courts to easily uphold inconsistent child pornography sentences.18 The presumption’s effect goes beyond child pornography sentencing, however. While the issues surrounding the presumption and the child pornography guidelines are more visible than others because of their history,19 the presumption poses a larger problem in the federal judiciary. By giving 12. Dorvee, 616 F.3d at 188. 13. See Pelgro, supra note 11. 14. See, e.g., Little v. Hobbs, No. 14–6071, 2014 WL 5465441, at *1 (W.D. Ark. 2014) (upholding sentence of thirty-five years for defendant convicted of first- degree murder, using a firearm in commission of a felony, and residential burglary). 15. See, e.g., Franklin 785 F.3d at 1370 (relying on United States v. Castillo- Arellano, 777 F.3d 1100, 1104 (10th Cir. 2015)); United States v. Miller, 665 F.3d 114, 119–121 (5th Cir. 2011) (rejecting an empirical challenge to the guidelines because of the appellate presumption of reasonableness); Myers, 442 F. App’x at 224 (“Given [the defendant’s] age and personal history, a sentence of 60 months of incarceration seems harsh. However, his sentence falls within the advisory guidelines range and is therefore entitled to a presumption of correctness.”). 16. United States v. Marcussen, 403 F.3d 982, 984 n.4 (8th Cir. 2005). Within- Guideline sentences are those sentences which fall within the range prescribed by the Guidelines as applied to a particular defendant. 17. United States v. Kaufman, 791 F.3d 86, 89 (D.C. Cir. 2015). 18. See, e.g., Franklin, 785 F.3d at 1372. A 100-year sentence for a non- contact, first-offense child pornography violation exceeds sentences handed down for instances of physical child abuse. Moreover, the sentence also far exceeded sentences handed down in similar cases. See id. The Tenth Circuit seemed unconcerned. See id. In fact, the court devoted just three pages of its already cursory opinion justifying the sentence. See id. at 1371–74. 19. See Pelgro, supra note 11. 1214 UNIVERSITY OF COLORADO LAW REVIEW [Vol. 89 independent legal effect to the Guidelines, courts in effect defer to the Commission that publishes them.20 This creates a host of legal and practical issues. The practical effect of the presumption is to restrict appellate review. That is, the presumption effectively prohibits appellate courts from engaging with the substantive fairness of a sentence.21 This judicially created abdication grants district courts wide latitude to impose within-Guidelines sentences without appellate interference.22 If sentences fall inside the Guidelines, courts hold that “little explanation is required,” and assume the sentence is reasonable.23 The appellate presumption can thus hide poorly judged and unreasonable within-Guidelines sentences. The presumption also encourages rote justifications of significant deprivations of liberty on the part of appellate courts.24 Short appellate opinions upholding within-Guidelines sentences are legion.25 The proliferation of these short opinions is troubling as such opinions tend to show a diminished appellate review process. Because robust appellate review helps promote due process and fundamental fairness, abbreviated and cursory opinions do not inspire confidence. 20. The presumption requires appeals courts to treat within-Guidelines and outside-Guidelines sentences differently. Compare United States v. Pena-Luna, 595 F. App’x 398 (5th Cir. 2014), with United States v. Feemster, 572 F.3d 455 (8th Cir. 2009). Within-Guidelines sentences will “almost never be reversed as substantively unreasonable.” United States v. Gardellini, 545 F.3d 1089, 1092 (D.C. Cir. 2008) (citing Rita v. United States, 551 U.S. 338, 356–58 (2007)). Outside-Guidelines sentences, on the other hand, are reviewed on a “sliding scale” where the farther a sentencing court “diverges from the advisory guideline range, the more compelling the reasons for the divergence must be.” United States v. Valtierra-Rojas, 468 F.3d 1235, 1239 (10th Cir. 2006) (citing United States v. Moreland, 437 F.3d 424, 434 (4th Cir. 2006)). 21. The presumption has been widely criticized for effectively reinstituting the pre-Booker mandatory sentencing regime discussed infra Section I.C. See Brief Amicus Curia of the National Association of Criminal Defense Lawyers in Support of the Defendants at 2, United States v. Carty, 520 F.3d 984 (9th Cir. 2008) (No. 05-10200), 2006 WL 3245012. 22. See, e.g., Franklin, 785 F.3d at 1371 (deferring to the district court’s sentence because it fell within the applicable sentencing guidelines). 23. United States v. Mares, 402 F.3d 511, 519 (5th Cir. 2005) (holding that the court will infer the sentencing judge considered § 3553 factors for within- Guidelines sentences). 24. The Supreme Court, 2006 Term — Leading Cases, 121 HARV. L. REV. 245, 254–55 (2007). 25. See, e.g., United States v. Craig, 808 F.3d 1249, 1263 (10th Cir. 2015) (upholding a life sentence and rejecting arguments that the sentence did not meet the applicable sentencing factors in a single paragraph). 2018] DEFERENCE ERRORS 1215 Superficial and perfunctory justifications of sentences in a context where the government acts at its fullest authority should evoke a certain discomfort. Additionally, deference to the Sentencing Commission denies district courts critical guidance. Under the presumption, appellate courts uphold sentences with little explanation.26 As the result in Franklin and the fraught history of the child pornography guideline illustrate, the Commission and the district courts are not infallible.27 Appellate review generally offers an additional check on arbitrary, ill-reasoned, or out-of- date guidelines or sentences.28 However, this check is currently missing in criminal sentencing. The district courts currently operate without a strong and consistent check on their work for within-Guidelines sentences.29 True appellate review would allow all sentences to be continually tested in an adversarial 26. See, e.g., id. 27. See Pelgro, supra note 11; see also, The Supreme Court, 2006 Term — Leading Cases, supra note 24, at 255 (“By simultaneously shoring up the Guidelines as the presumptive measure of lawfulness and requiring too little in the way of explanation from sentencing judges, the Rita court undermined the strength of appellate review. To avoid a system in which unreasonable, within- Guidelines sentences go unchecked, courts should be required to explain their reasons in detail.”). 28. J. Dickson Phillips, The Appellate Review Function: Scope of Review, 47 LAW & CONTEMP. PROBS. 1, 2 (1984) (“While there have been various formulations [regarding the functions appellate courts serve], most who have thought systematically about the matter identify two basic functions: (1) correction of error (or non-correction if no correction is required) in the particular litigation; and (2) declaration of legal principle, by creation, clarification, extension or overruling.”). 29. While it has some oversight over the Commission, Congress is not the appropriate body to ensure fair and well-reasoned guidelines. Separation of power concerns suggest that Congress should not delegate their power over sentencing in the first place. Additionally, Congress does not see how the Guidelines operate on a daily basis, and simply does not have the capacity to exercise sufficient oversight over the Commission. See Mark W. Bennett, A Slow Motion Lynching? The War on Drugs, Mass Incarceration, Doing Kimbrough Justice, and a Response to Two Third Circuit Judges, 66 RUTGERS U. L. REV. 873, 880–92 (2014); see infra Part III. District courts are a similarly unsatisfactory check because they lack the authority and reach of appellate courts. When a district court disagrees with a guideline, only one defendant will benefit. Appellate review provides much needed guidance. Developing caselaw would lead to better, well-reasoned sentencing. District courts are missing a body of common law on how it should apply sentencing factors to individual defendants. Currently, a range of caselaw has established the rules for imposing a sentence outside of the Guidelines. As discussed infra Part IV, defining the “backstop” or the “permissible range” for within-Guidelines sentences in this same way would be instructive to district courts. 1218 UNIVERSITY OF COLORADO LAW REVIEW [Vol. 89 should recognize the special concerns associated with criminal sentencing and put more focus on congressionally mandated sentencing factors.42 This Comment recognizes that, by deferring to the Guidelines, appellate courts allow the Commission to intrude on the judiciary’s central task of deciding “cases and controversies.”43 The central question of this Comment is whether the legal community should be concerned that appellate courts have given away some of the judiciary’s Article III power.44 As a backdrop to these arguments, this Comment acknowledges that, in practice, the presumption levies significant costs on the judicial system by allowing appellate courts to abdicate their role as a due process check on the district courts and the advisors on proper sentencing practices.45 It argues that these costs on the judiciary are not justified because deference to the Commission is not justified.46 Finally, it is important to recognize what this Comment does not do. It does not call for the Commission to be disbanded; it does not propose the Commission change the means by which it promulgates guidelines; and it does not argue the Commission is constitutionally infirm. Nor does this Comment suggest that the Guidelines do not have the potential to be beneficial to federal sentencing practices. This Comment is about an appellate standard and whether it is a justified relinquishment of judicial power. Part I of this Comment examines the origins of the Sentencing Reform Act (SRA). It provides a brief history, highlighting the goals of Congress in enacting the SRA, and 42. Section 3553 of Title 18 of the United States Code outlines sentencing factors each judge should consider at sentencing. See infra Part II. These factors are the need for the sentence to (1) reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense, (2) afford adequate deterrence to criminal conduct, (3) protect the public from further crimes of the defendant, (4) provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner. 18 U.S.C. § 3553(a)(2) (2012). 43. U.S. CONST. art. III, § 2, cl. 1; Marbury v. Madison, 5 U.S. 137, 173–74 (1803). 44. Cf. Douglas A. Berman, A Common Law for the Age of Federal Sentencing: The Opportunity and Need for Judicial Lawmaking, 11 STAN. L. & POL’Y REV. 93, 94 (1999) (“By its own hand, the judiciary has undermined or simply underused the mechanics which were intended to foster judicial involvement in the SRA’s evolutionary law making process.”). 45. Marbury, 5 U.S. at 173–74. 46. See infra Part III. 2018] DEFERENCE ERRORS 1219 describes the Sentencing Commission and its Guidelines. Finally, it tracks the development of the appellate presumption of reasonableness and explains how it functions in the courts today. Part II compares the appellate presumption of reasonableness with Chevron deference. Specifically, the Part argues that the presumption is functionally Chevron deference. It points out that the presumption operates in the same way as arbitrary and capricious review. Further, it explains how the Commission justifies itself through notions of deference to agency expertise and legislative intent, parroting prerequisites for deference set down in Chevron. The Part concludes that any distinction between the presumption of reasonableness and Chevron deference does not amount to a difference. Part III discusses why de facto Chevron deference to within-Guidelines sentences is unjustified. The Part discusses the expertise of the Commission, and concludes its expertise largely overlaps with the judiciary’s expertise. It further notes that the Commission only has “contributory expertise,” while the judiciary has both “contributory” and “interactional” expertise. It claims that this makes the judiciary more of an expert than the Commission. The Part further argues the Commission should not receive deference anyway because criminal law involves the weighty decision of imposing deprivations of liberty. It argues that such decisions require a determination by an Article III judge, and, in the context of criminal law, deference to the Commission is especially problematic. This Part concludes that these considerations require that within-Guidelines sentences should not receive a presumption of reasonableness, and that the Commission and the courts would be best served if the Commission acted in a purely advisory capacity. Finally, Part IV suggests a new way forward. Specifically, the Part argues that courts should remove any trace of deference to the Commission from appellate review. It proposes that courts continue to follow a two-tiered appellate standard, but suggests that at the second tier, “substantive reasonableness” should involve a true engagement with the fairness of the sentence. Specifically, it argues the legislative history of the SRA and language in the Booker v. United 1220 UNIVERSITY OF COLORADO LAW REVIEW [Vol. 89 States47 suggest a deferential, but still active, standard of review. It concludes more active review will aid in developing a federal sentencing common law that will avoid the significant practical costs under the presumption of reasonableness. I. OVERVIEW OF THE SENTENCING GUIDELINES AND THE PRESUMPTION OF REASONABLENESS In order to understand the appellate presumption of reasonableness, one must recognize it is but one part of the long history of sentencing reform in the United States.48 The presumption’s roots begin with the passage of the SRA in 1984.49 Distressed by the disproportionate sentencing of the current system, Congress sought to bring uniformity and fairness to sentencing through the SRA.50 The Act suffered from a constitutional infirmity, however. In Booker, the Supreme Court found that the mandatory sentencing scheme violated the Sixth Amendment.51 While some thought Booker would render the Sentencing Guidelines moot, the Guidelines have continued to exert force in the federal system.52 One of the ways the Guidelines have retained their relevancy is through the appellate presumption of reasonableness. This presumption gives the Guidelines its own separate and compelling appellate deference.53 This Part explores the history of the SRA, the makeup of the Sentencing Commission and the Guidelines, and the development and functioning of the presumption of reasonableness in the courts. Section I.A examines the roots of 47. Booker v. United States, 543 U.S. 220 (2005). 48. The United States has struggled with the appropriate approach to crime and punishment since its founding. See SANDRA SHANE-DUBOW ET AL., SENTENCING REFORM IN THE UNITED STATES: HISTORY, CONTENT, AND EFFECT 2 (1985). 49. Sentencing Reform Act of 1984, Pub. L. No. 98-473, 98 Stat. 1987 (1984), partially invalidated by United States v. Booker, 543 U.S. 220 (2005). 50. SHANE-DUBOW, supra note 48. It is worth noting that one may view the presumption of reasonableness as serving the goals of uniformity in the SRA. This is a legitimate concern, and one addressed infra Part IV. 51. For a more full treatment of the Booker decision, see infra Section I.C. 52. Frank O. Bowman, The Year of Jubilee . . . Or Maybe Not: Some Preliminary Observations About the Operation of the Federal Sentencing System After Booker, 43 HOUS. L. REV. 279, 297 (2006) (explaining that, a year after the Guidelines became advisory, federal judges followed the Guidelines in about 61 percent of cases). 53. See infra Section II.B. 2018] DEFERENCE ERRORS 1223 In its original form, section 3553 of the SRA listed seven factors every judge had to consider when it imposed a sentence.69 Some factors were modest additions, representing considerations judges had already weighed prior to the SRA. These traditional factors required the judge to deliberate on things like the nature of the crime and character of the offender,70 the need to provide restitution,71 and the sentences available.72 The SRA also imposed wholly new considerations on a court’s sentencing decisions. First, in response to the problems of the rehabilitative ideal, the SRA narrowed a judge’s focus at sentencing, mandating specific theories of punishment that could justify sentences. Section 3553(a)(2) named the four penal theories that should be used to influence sentences: (1) punishment, (2) deterrence, (3) public protection, and (4) “correctional treatment.”73 Rehabilitation was left off the list.74 Second, the SRA mandated judicial reliance on the work of the then-newly-created Sentencing Commission. The SRA required every judge to consider both the Guidelines’ range for the crime established by the Commission and “any pertinent policy statement” published by it.75 And it required every judge to sentence within the applicable Guidelines’ range.76 Congress also inserted itself into the traditional roles of the judiciary by creating the Sentencing Commission. The SRA charged the Commission with two tasks: develop sentencing guidelines and publish policy statements that would 69. See Gertner supra note 36 for the section 3553 factors. 70. § 3553(a)(1). 71. § 3553(a)(7). 72. § 3553(a)(3). 73. § 3553(a)(2). As discussed in Section I.A, the Sentencing Reform Act developed in part out of a general repudiation of rehabilitative ideal. See David B. Muhlhausen, Theories of Punishment and Mandatory Minimum Sentences, HERITAGE FOUND. (May 27, 2010), http://www.heritage.org/research /testimony/theories-of-punishment-and-mandatory-minimum-sentences [https://perma.cc/2M3Z-K3K9] (pointing out that one of the main critiques of the rehabilitative ideal is that it leads to wide sentencing ranges). While § 3553 mentions “corrective treatment” (perhaps a nod to rehabilitation), it significantly reduced the ability of judges to consider the potential for rehabilitation in handing down sentences. Id. 74. See Muhlhausen, supra note 73 (explaining that § 3553(a) is an exhaustive list and no other theory may be considered). 75. § 3553(a)(4)–(5). 76. § 3553(b)(1). 1224 UNIVERSITY OF COLORADO LAW REVIEW [Vol. 89 accompany these guidelines.77 It believed that these guidelines and policy statements would further the factors set forth in section 3553 of the SRA.78 Congress intended the Commission and Guidelines to be essential tools in eliminating the sentencing disparities that inspired the SRA.79 The Commission develops the Sentencing Guidelines through an empirical approach.80 To create the original iteration of the Guidelines, the Commission researched pre- SRA sentencing practices and established ranges for specific crimes based on the average sentence for every crime.81 This empirical data formed the original basis of the Guidelines, and the Commission continues to create the Guidelines through this approach.82 The Commission also considers the opinions of interested parties in refining the raw guideline ranges.83 It uses reports filed by these “stakeholders” to further refine the guidelines’ ranges. But, variation based on these reports is the exception, not the rule.84 The Commission recognizes that, generally, the raw guideline range will approximate the “average pre-guideline practice.”85 The Guidelines have become extremely important to the federal judiciary, especially courts of appeals. For these courts, a sentence within these Guidelines merits a presumption of reasonableness. 77. 28 U.S.C. § 994(a)(1)–(2) (2012). 78. See § 994(a)(2), (g); Rita v. United States, 551 U.S. 338, 347–48 (2007). 79. 28 U.S.C. § 994(f) (requiring the Commission to pay “particular attention” to reducing “unwarranted sentencing disparities”). 80. See U.S. SENTENCING GUIDELINES MANUAL § 1A1.3 (U.S. SENTENCING COMM’N 2016) [hereinafter GUIDELINES MANUAL]. 81. Id. § 1A1.4. 82. The Commission has sustained its empirical approach, and the determination of current average sentences is still vital to the Commission’s work. It continues to collect presentence reports, written plea agreements, and judgment and conviction reports on virtually every criminal defendant sentenced in the United States keep the Guidelines up to date. Id. 83. These parties include the Department of Justice, Bureau of Prisons, Federal Public Defenders, the U.S. Probation System, and the Judicial Conference of the United States, among others. Id. § 1A2; § 994(o). 84. The process is unlike notice and comment rulemaking. While there is an opportunity to comment, there are no hearings, nor does the Commission publish decisions balancing the concerns raised by the reports. GUIDELINES MANUAL, supra note 80, § 1A1.3 (“[T]he guidelines represent an approach that begins with, and builds upon, empirical data.”). 85. Id. The most recent iteration of the Sentencing Guidelines admits that “it has not attempted to develop an entirely new system.” Id. In fact, it claims it has largely relied on the empirical calculations of average sentences across the United States. Id. § 1A1.4. 2018] DEFERENCE ERRORS 1225 C. The Appellate Presumption of Reasonableness The Sentencing Guidelines were originally mandatory.86 Sentencing courts had to calculate the sentencing range under the Guidelines and sentence within that range.87 To calculate the range for a particular defendant, judges held sentencing hearings where they determined whether certain “sentencing factors” applied to a defendant’s circumstances. At these hearings, the government bore the burden to prove any aggravator; the defendant bore the burden for any mitigator.88 All aggravators and mitigators were determined by the judge by a preponderance of the evidence and used to calculate the applicable sentencing range.89 Once determined, the judge was required to impose a sentence within the range unless she found an aggravating or mitigating circumstance not considered by the Commission.90 Pre-Booker appellate review, like district court sentencing, was also restrained. Section 3742(e) granted appellate courts extremely limited jurisdiction to review sentences.91 Under the mandatory scheme, within-Guideline sentences could not be appealed unless the sentence was “imposed in violation of the law” or “imposed as a result of an incorrect application” of the Guidelines.92 In the instances of outside-Guidelines sentences,93 the SRA required appellate courts to review the 86. 18 U.S.C. § 3553(b)(1) (1984). 87. Id. (requiring within-Guidelines sentences unless the court finds a factor not considered by the sentencing commission). 88. For example, under the mandatory scheme, if convicted of burglary, a defendant could receive additional punishment if the government proved he or she engaged in “more than minimal planning,” caused a loss more than $2,500, or burgled a residence. U.S. SENTENCING GUIDELINES MANUAL §§ 2B2.2(a)–(b) (U.S. SENTENCING COMM’N 2000) (amended 2011). 89. 18 U.S.C. § 3553(b)(1); see United States v. Booker, 543 U.S. 220, 226 (2005). 90. § 3553(b)(1); see also, e.g., United States v. Pipich, 688 F.Supp. 191, 193 (D. Md. 1988) (holding that the defendant’s military service was an applicable sentencing factor not considered by the Sentencing Commission). 91. 18 U.S.C. § 3742(a) (1984) (outlining four bases on which a defendant could maintain an appeal). 92. Id. Section 3742(a) also provided an appeal for a sentence “greater than the sentence specified in the applicable guideline,” and for a sentence “imposed for an offence for which there is no sentencing guideline, and is plainly unreasonable.” §§ 19 U.S.C. § 3742(a)(3)–(4). However, because these provisions related to narrow and uncommon circumstances, most appeals taken under the mandatory scheme came under Section 3742(a)(1)–(2). 19 U.S.C. §§ 3742(a)(1)–(2). 93. Situations where a court would depart from the Guidelines are outlined in 1228 UNIVERSITY OF COLORADO LAW REVIEW [Vol. 89 support a sentence must be proven to a jury beyond a reasonable doubt.114 The Booker Court then turned to the question of remedying the SRA’s constitutional deficiencies.115 It held that section 3553(b)(1), the provision requiring mandatory application of the Guidelines, violated the Sixth Amendment.116 It removed the provision, rendering the Guidelines “effectively advisory.”117 The Court also removed section 3742(e), the provision that set out standards of review for appeal.118 This excision eliminated de novo review for outside-Guideline sentences and the procedural appeals for trial court errors below.119 The Court stressed that the SRA would continue to set out an appellate standard of review, but would do so implicitly.120 Looking to legislative history and appellate practice under the mandatory Guidelines,121 the Court instituted an appellate review for “unreasonableness.”122 Following Booker, appellate courts scrambled to define the bounds of “unreasonableness.” After initial struggles, the Supreme Court announced in Gall v. United States a two-tiered approach that appellate courts follow to this day.123 This appellate standard divides the analysis between “procedural unreasonableness” and “substantive unreasonableness.”124 Under the procedural review, appellate courts examine district court decisions to see if they met the technical standards of the SRA,125 ensuring that the court properly calculated the guideline range, considered the sentencing factors, and explained their sentencing decision.126 Then, if the court finds 114. Id. at 244. 115. Id. at 245. 116. Id. 117. Id. 118. Id. at 260. 119. See 18 U.S.C. § 3742(a), (b) (2012). 120. Booker, 543 U.S. at 260. 121. Id. at 258–61. 122. Id. at 264. 123. See Gall v. United States, 552 U.S. 38, 51 (2007); see also, e.g., United States v. White, 850 F.3d 667, 674 (4th Cir. 2017) (setting out the two-tiered appellate standard), cert. denied, 137 S. Ct. 2252 (2017). 124. Gall, 522 U.S. at 51. 125. Id. (mandating review of district court’s action for failing to calculate—or improperly calculating—the Guidelines range, treating the Guidelines as mandatory, failing to consider the § 335(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence). 126. Id. 2018] DEFERENCE ERRORS 1229 no procedural issues, it turns to the “substantive unreasonableness” of the sentence.127 Here, the courts look for an “abuse of discretion.”128 If the court finds that the district judge acted within her powers, it will uphold the sentence.129 In determining the bounds of “substantive unreasonableness,” the inferior federal courts relied heavily on the newly advisory Sentencing Guidelines.130 Specifically, appellate courts instituted a “rebuttable presumption of reasonableness” for within-Guidelines sentences.131 In creating the presumption, courts often focused on a specific piece of Booker’s remedial opinion that seemed to suggest that the Commission was an expert at sentencing.132 This suggestion proved critical in defining substantive reasonableness for appellate courts.133 The circuits were reluctant to render the Guidelines irrelevant in sentencing appeals.134 They determined that the Booker Court mandated that the courts view the Commission as an “expert” in sentencing.135 In United States v. Mykytiuk, for example, the Seventh Circuit agreed with the Booker Court that the Commission was an expert.136 The court held that ignoring the Guidelines would be inconsistent with Booker and, therefore, it would assume any within-Guidelines sentence would be reasonable.137 Many circuits follow the same reasoning.138 127. Id. 128. Id. 129. Id. 130. See id. 131. See, e.g., United States v. Morales-Machucha, 546 F.3d 13 (1st Cir. 2008). 132. “As we have said, the Sentencing Commission remains in place, writing Guidelines, collecting information about actual district court sentencing decisions, undertaking research, and revising the Guidelines accordingly. The district courts, while not bound to apply the Guidelines, must consult those Guidelines and take them into account when sentencing.” United States v. Booker, 543 U.S. 220, 264 (2005) (citation omitted). 133. United States v. Mykytiuk, 415 F.3d 606, 607–08 (7th Cir. 2005). 134. See, e.g., id. 135. See, e.g., id. 136. Id. (“The Sentencing Guidelines represent at this point eighteen years’ worth of careful consideration of the proper sentence for federal offenses. When the Supreme Court directed the federal courts to continue using the Guidelines as a source of advice for proper sentences, it expected that many (perhaps most) sentences would continue to reflect the results obtained through an application of the Guidelines.”). 137. Id. 138. See, e.g., United States v. Kristl, 437 F.3d 1050 (10th Cir. 2006); United States v. Hughes, 401 F.3d 540 (4th Cir. 2005); United States v. Crosby, 397 F.3d 1230 UNIVERSITY OF COLORADO LAW REVIEW [Vol. 89 Appellate courts also relied on notions of legislative intent to create the presumption of reasonableness. In United States v. Mares, the court relied heavily on the goals of the SRA when adopting the presumption of reasonableness in the Fifth Circuit.139 It noted that Booker did not alter the statutory scheme and that the goals of uniform and determinative sentencing still applied with full force. In recognition of the goal of uniformity, the court held that it would rarely find a within-Guidelines sentence “unreasonable.”140 Finally, not all circuits use the appellate presumption of reasonableness in the same way.141 Circuit courts are split between an appellate presumption of reasonableness and an approach that gives “great weight” to within-Guidelines sentences. Specifically, the Third, Fourth, Fifth, Sixth, Seventh, Eighth, and Tenth circuits apply a presumption of reasonableness.142 The First, Second, Ninth, and Eleventh 103 (2d Cir. 2005). While most circuits rely on Booker’s express language, other courts rely on a mixture of Booker’s remedial opinion and the inclusion of the Guidelines in § 3553. Because reference to the Guidelines in § 3553 was not excised, circuits use the section’s continued validity to justify deference to the Guidelines. See, e.g., United States v. Mares, 402 F.3d 511, 518–19 (5th Cir. 2005). 139. Mares, 402 F.3d at 519 (holding that the court will infer the sentencing judge considered § 3553 factors for within-Guidelines sentences). The Fifth Circuit has not adopted the presumption of reasonableness. However, the extremely deferential review it does apply makes it essentially the equivalent. See United States v. Carty, 520 F.3d 984, 993–94 (9th Cir. 2008) (recognizing the split, but holding that “[t]he difference appears more linguistic than practical”). 140. Mares, 402 F.3d at 519. 141. In fact, it was the split between circuits that originally justified the Court granting certiorari in Rita. Rita, 551 U.S. 338, 345–46 (2007). 142. United States v. Gonzalez, 134 F. App’x 595, 598 (3d Cir. 2005) (“Although the Sentencing Guidelines are not mandatory, sentences within the prescribed range are presumptively reasonable.”); United States v. Johnson, 445 F.3d 339, 341 (4th Cir. 2006) (“[A] sentence within the proper advisory Guidelines range is presumptively reasonable.”); United States v. Alonzo, 435 F.3d 551, 554 (5th Cir. 2006) (“We agree with our sister circuits that have held that a sentence within a properly calculated Guideline range is presumptively reasonable.”); United States v. Williams, 436 F.3d 706, 708 (6th Cir. 2006) (“We now join several sister circuits in crediting sentences properly calculated under the Guidelines with a rebuttable presumption of reasonableness.”); United States v. Mykytiuk, 415 F.3d 606, 608 (7th Cir. 2005) (“[A]ny sentence that is properly calculated under the Guidelines is entitled to a rebuttable presumption of reasonableness.”); United States v. Lincoln, 413 F.3d 716, 717 (8th Cir. 2005) (holding that when a defendant’s sentence is within the Guidelines’ range “it is presumptively reasonable”); Kristl, 437 F.3d at 1054 (“[W]e join our sister circuits and hold that a sentence that is properly calculated under the Guidelines is entitled to a rebuttable presumption of reasonableness.”). 2018] DEFERENCE ERRORS 1233 conclusion.153 In relation to congressional intent, the Court held that because Congress had delegated authority to the EPA, it was important to recognize that Congress intended the EPA to be the leader in environmental policy.154 Part and parcel of this recognition, the Court explained, was deference to the policy decisions that Congress had entrusted to the EPA.155 The Court relied heavily on this notion of “delegation.”156 Based on a desire to effectuate the congressional grant of power, the Court held that, unless the new “bubble” definition was one Congress would not have sanctioned, it would not disturb the EPA’s interpretation.157 It explained that the power to gap fill is implicit in any congressionally created program that requires the formulation of policy.158 From that premise, the Court inferred congressional delegation to an agency in all undefined terms and unfilled holes in that agency’s enacting statute.159 Because the Court found that Congress authorized the EPA to make policy decisions, it concluded the agency was the better vehicle to make policy decisions like the proper definition of “stationary source.”160 Moreover, in upholding the EPA’s construction as permissible, the Court stressed the fact that the matter at issue was “technical and complex” and the EPA had more expertise than the Court.161 It noted that the EPA considered the issues in a “detailed and reasoned fashion” and the decision involved “reconciling competing policies.”162 It held that courts had consistently deferred to an agency’s definition whenever it involved resolving conflicting policies, and whenever an understanding of the statutory policy depended upon “more than ordinary knowledge respecting the matters subject to agency regulation.”163 Recognizing that the EPA’s expertise 153. Id. at 865. 154. Id. 155. Id. 156. See id. at 842–44. 157. Id. at 845. 158. Id. at 843. 159. See id. 160. Id. at 865. 161. Id. at 863. 162. Id. at 865. 163. Id. at 844–45 (citing Nat’l Broad. Co. v. United States, 319 U.S. 190 (1943); Labor Bd. v. Hearst Publ’ns, Inc., 322 U.S. 111 (1944); Republic Aviation Corp. v. Labor Bd., 324 U.S. 793 (1945); SEC v. Chenery Corp., 322 U.S. 194 (1947); Labor Bd. v. Seven-Up Bottling Co., 344 U.S. 344 (1953)). 1234 UNIVERSITY OF COLORADO LAW REVIEW [Vol. 89 went beyond the judiciary’s, the Court felt comfortable deferring to the “bubble” definition.164 Finally, the Chevron Court discussed political accountability. The Court explained that, while unelected courts must sometimes make policy decisions, administrative agencies were the bodies better suited to that task.165 The Court argued that “[w]hile agencies are not directly accountable to the people, the Chief Executive is, and it is entirely appropriate for this political branch to make such policy choices.”166 It stressed that it is proper for the federal judiciary, which lacks a “constituency,” to defer to decisions made by actors who can be held politically accountable.167 Thus, Chevron explained that agencies deserve deference when they interpret, or act pursuant to, their enacting statutes.168 In explaining part of what has now famously been named the Chevron two-step,169 the Court operationalized this deference, holding that where delegation is explicit, agency decisions control unless they are “arbitrary, capricious, or manifestly contrary to statute.”170 Where, on the other hand, the delegation is implicit, courts should uphold agency construction if it is “reasonable.”171 Here, the Commission received an express delegation of authority to create the Guidelines.172 The SRA created the Commission for the stated purpose of establishing sentencing policies with supporting guidelines and policy statements.173 Thus, under traditional administrative law, there is an express delegation of policy-making authority to the Commission and the Guidelines are subject to arbitrary and capricious review.174 164. Chevron, 467 U.S. at 865. 165. Id. at 865–66. 166. Id. 167. Id. 168. Id. at 843–45. 169. Lewie Briggs, The Chevron Two Step, YOUTUBE (May 4, 2014), https://www.youtube.com/watch?v=uHKujqyktJc [https://perma.cc/BNS7-RLXM]. 170. Chevron, 467 U.S. at 844. 171. Id. 172. 28 U.S.C. § 994(b)(1) (2012). 173. 28 U.S.C. §§ 991, 994 (2012). 174. Chevron, 467 U.S. at 843–44 (“If Congress has explicitly left a gap for the agency to fill, there is an express delegation of authority to the agency to elucidate a specific provision of the statute by regulation. Such legislative regulations are given controlling weight unless they are arbitrary, capricious, or manifestly 2018] DEFERENCE ERRORS 1235 Arbitrary and capricious review requires a court to determine if the agency has “examine[d] the relevant data, and articulate[d] a satisfactory explanation for its action including a rational connection between the facts found and the choice made.”175 The reviewing court must not substitute its own judgment for that of the agency.176 Under arbitrary and capricious review, the court’s only investigation will be whether the agency’s decision was based on a consideration of the “relevant factors,” or if it represents a “clear error of judgment.”177 The court may only overturn an agency action if the agency (1) relied on factors Congress did not intend it to rely on, (2) entirely failed to consider an important aspect of the problem, (3) offered an explanation counter to the evidence, or (4) is so implausible it cannot be ascribed to a difference of opinion between experts.178 Chevron and administrative jurisprudence focus on agency expertise and legislative delegation. The resulting caselaw show a strong willingness to defer to agency definitions where these factors are present. Part III below explains that these factors for deference are not present for the Commission, and thus de facto Chevron deference for the Guidelines is therefore unjustified. The remainder of this Part, however, shows how the same considerations of expertise and legislative intent lead to a standard indistinguishable from current deference in administrative law. B. The Appellate Presumption of Reasonableness Is Chevron Deference in Disguise Both Chevron and the presumption of reasonableness justify themselves based on a conception of agency expertise and legislative deference.179 Moreover, the appellate presumption mirrors Chevron’s arbitrary and capricious standard because both tests assume the agency’s decision— either the Commission’s Guidelines or some other agency policy contrary to the statute.”). 175. Motor Vehicles Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 42 (1983). 176. Id. at 43. 177. Id. 178. Id. 179. See, e.g., Chevron U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 864–66 (1984); United States v. Mykytiuk, 415 F.3d 606 (7th Cir. 2005). 1238 UNIVERSITY OF COLORADO LAW REVIEW [Vol. 89 accurately weighed the section 3553 factors.194 It noted the number of sentences the Commission reviews, the opinions from the criminal justice community it considers,195 and the Commission’s ability to adjust the Guidelines to fit the Commission’s conception of equitable sentences, which it applauded.196 Taken together, Booker and Rita establish that the Court views the Commission as an expert agency meriting deference. Summarizing these holdings in Kimbrough v. United States, the Supreme Court held that the Commission has capacity the courts lack: to “base its determinations on empirical data and national experience, guided by a professional staff with appropriate expertise.”197 The Court recognized that this expertise is why Guidelines sentences reflect a rough approximation of valid, reasonable sentences.198 The parallels between Chevron’s justifications for agency deference and the appellate presumption of reasonableness for within-Guidelines sentences are striking. First and foremost, both schemes ground themselves in deference to expertise in a given area. Chevron recognizes that judges are generalists and permits agencies to use their expertise to solve problems where the judiciary is less knowledgeable. Like Chevron, the appellate presumption of reasonableness also recognizes the deficiencies of courts, deferring to the Commission and its sentencing expertise.199 Moreover, the Chevron Court deferred to the EPA’s definition of “stationary source” because it represented an expert agency balancing the competing goals of reducing air pollution and economic growth. Likewise, in Rita, the Court upheld deference to the Commission because the Commission used its expertise to balance the competing goals of 194. Rita, 551 U.S. at 348–49. 195. Id. 196. Id. 197. Kimbrough v. United States, 522 U.S. 85, 109 (2007) (emphasis added) (citation omitted). 198. Id. In creating the presumption of reasonableness, lower courts reflected the Supreme Court’s deference to the Commission’s determination of proper sentences. See, e.g., United States v. Rueda-Zarate, 291 F.App’x. 364, 366 (2d Cir. 2008) (discussing due respect to the fact that the Guidelines are “the product of careful study based on extensive empirical evidence derived from the review of thousands of individual sentencing decisions”). 199. Kimbrough, 522 U.S. at 109; United States v. Mykytiuk, 415 F.3d 606 (7th Cir. 2005). The courts’ assumption that the Commission warrants deference is not correct. See infra Section III.A. 2018] DEFERENCE ERRORS 1239 proportionality and uniformity announced in the SRA.200 b. Deference to Legislative Intent Both the appellate presumption of reasonableness and Chevron deference rely on agency determinations out of a desire to defer to legislative intent. An eagerness to continue to fulfill the mandates of the SRA fueled the development of the presumption in other circuits. Many circuits felt that, without a presumption, the SRA’s goals of sentencing uniformity would fall by the wayside.201 In United States v. Mares, the Fifth Circuit examined the post-Booker SRA for the first time.202 The court concluded that the excised provision of sections 3553 and 3742 did not change the SRA’s goals.203 And in recognition of the statutory goals of uniformity and the deference due to the sentencing judge under the SRA, the court held that it would rarely find within- Guidelines sentences “unreasonable.”204 Similarly, in United States v. Mykytiuk, the Seventh Circuit argued that the Guidelines were essential to achieve one of the major goals of the SRA, “a fair and uniform sentencing regime across the country.”205 Courts held that the best way to effectuate the intent of Congress was to give the 200. Rita, 551 U.S. at 349. 201. See, e.g., Mykytiuk, 415 F.3d 606 (arguing that the Guidelines remain an essential tool in creating a fair and uniform sentencing regime); see also Rita, 551 U.S. at 347 (“[T]he presumption reflects the nature of the Guidelines-writing task that Congress set for the Commission and the manner in which the Commission carried out that task.”). 202. United States v. Mares, 402 F.3d 511, 519 (5th Cir. 2005) (holding that the court will infer the sentencing judge considered § 3553 factors for within- Guidelines sentences). The Fifth Circuit did not expressly adopt the presumption in Mares. The opinion came months after Booker and was one of the first attempts to make sense of the confusing remedial opinion. See id. However, subsequent caselaw makes clear that Mares created a presumption of reasonableness. United States v. Alonzo, 435 F.3d 551, 554 (5th Cir. 2006) (“[W]e are simply recognizing that our language in Mares comports with subsequent precedent in other circuits. In other words, there does not seem to be a practical difference between the burden of rebutting a presumption of reasonableness afforded a properly calculated Guideline range sentence and the burden of overcoming the great deference afforded such a sentence.”). 203. Mares, 402 F.3d at 519. 204. Id. 205. 415 F.3d at 608; see S. REP. NO. 98-225, reprinted in 1984 U.S. CODE CONG. & ADMIN. NEWS 3182, 3223 (explaining that Congress’s goal was to provide for nationwide uniformity in sentencing). 1240 UNIVERSITY OF COLORADO LAW REVIEW [Vol. 89 Guidelines a special place in sentencing review and afford them special deference in order to further the goals of uniform sentencing.206 The parallels are, again, striking.207 While deference to legislative intent is not new to the judiciary, deference to agencies on this basis is more unusual. The fact that both Chevron and the presumption rely so heavily on a congressional delegation of power highlights the similarities between the two standards. Moreover, as this next Section shows, not only do the standards rest on the same foundations, they are also equivalents in practice. 2. Arbitrary and Capricious Review The appellate presumption of reasonableness mirrors Chevron’s arbitrary and capricious standard.208 The presumption (1) defers to the findings of the Commission, (2) creates a high bar that is difficult to overcome, and (3) only overturns the Guidelines if the Commission commits a procedural error.209 These features of the presumption mirror the essential aspects of arbitrary and capricious review.210 a. Deference to the Commission The appellate presumption of reasonableness defers to the findings of the Commission represented in the Guidelines. It is well established that, in the right circumstances, an appellate 206. Mykytiuk, 415 F.3d at 608. 207. Chevron, too, deferred to the EPA in order to better effectuate the goals of Congress. In discussing the competing polices set forth in the Clean Air Act, the Court held that it was enough to merit deference that the Act gave power to the EPA to untangle and balance the conflicting policies at issue. Chevron U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 865 (1984). It held that, once there is delegation, the matter is at an end, and the courts should allow the agency to whom power has been delegated to make the policy choice Congress intended it to make. Id. 208. See Motor Vehicles Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 42 (1983). Under arbitrary and capricious review, the court may only overturn an agency action if it (1) relies on factors Congress did not intend it to rely on, (2) entirely fails to consider an important aspect of the problem, (3) offers an explanation counter to the evidence, or (4) is so implausible it cannot be ascribed to a difference of opinion between experts. Id. 209. See, e.g., United States v. Dorvee, 616 F.3d 174, 188 (2d Cir. 2006). 210. See supra Section II.A. 2018] DEFERENCE ERRORS 1243 overturning within-Guidelines sentences.223 Such sentences rarely fail on appeal.224 For example, in the Fourth Circuit, there is no case overturning within-Guidelines sentences as substantively unreasonable.225 Further, besides assuring that overturning a within-Guidelines sentence will be “rare,” most cases offer little guidance on what would actually justify such a result.226 Thus, not only is the bar high, at times it can be hard to even see where the bar is set. It is little wonder that few sentences successfully overcome the presumption of reasonableness.227 223. Mares is not alone in expressing concern about non-Guidelines sentences. See, e.g., supra note 44. In fact, sentences falling outside the Guidelines’ ranges seem to be the only place where the courts are willing to engage in a searching analysis of the substantive reasonableness of a sentence. Caselaw following the presumption of reasonableness certainty establishes this focus. See, e.g., United States v. Baucom, 486 F.3d 822 (4th Cir. 2007), vacated sub nom. Davis v. United States, 552 U.S. 1092 (2008) (mem.); United States v. Taylor, 499 F.3d 94 (1st Cir. 2007), vacated, 552 U.S. 1092 (2008) (mem.); United States v. Smith, 445 F.3d 1, 4 (1st Cir. 2006). Another explanation for this trend is that the appellate presumption of reasonableness dampens appeals. Because defendants with within-Guidelines sentences are less likely to succeed, some might decide not to pursue an appeal on this point. 224. Often, a sentence will fail on “procedural grounds.” Here, the appellate court reverses based on district court error. Usually, reversible error occurs when the district court misunderstands the law (United States v. Montague, 438 F. App’x 478 (6th Cir. 2011)), treats the Guidelines as presumptively reasonable (Nelson v. United States, 555 U.S. 350, 351 (2009)), or the court improperly weighs the § 3553 factors (United States v. Sharp, 436 F.3d 730, 738 (7th Cir. 2006)). 225. A Westlaw search conducted on March 20, 2017 revealed no cases where a within-Guidelines sentence failed on substantive ground. The Fourth Circuit’s presumption of reasonableness is even less searching than arbitrary and capricious review. Under its caselaw, the presumption can only be rebutted by a showing that the sentence did not adequately further § 3553 factors. United States v. Louthian, 756 F.3d 295, 306 (4th Cir. 2014). The quality of the Commission’s work is not even up for dispute. This forgiving test is more problematic than most. Arbitrary and capricious review, while limited, provides an important check on agency action. See Louis J. Verilli, Deconstructing Arbitrary and Capricious Review, 92 N.C. L. REV. 722, 723 (“Hard look review provides a critical check against unconstrained agency power.”). The Fourth Circuit’s presumption gives the Commission immense power to ignore fact-finding and accuracy-ensuring procedures. While the Commission does not generally cut these corners, the inability and refusal to check the Commission is troubling. See, e.g., United States v. Franklin, 785 F.3d 1365, 1372 n.2 (10th Cir. 2015). 226. See supra note 25 and accompanying text. 227. See United States v. Cutler, 520 F.3d 136 (2d Cir. 2008) (overturning a within-Guidelines sentence for improper departures), abrogated by United States v. Cavera, 550 F.3d 180, 189 (2d Cir. 2008) (holding Cutler implied too meddlesome of a review); United States v. Montague, 438 F. App’x 478, 483 (6th Cir. 2011) (sentencing court misunderstood the law); United States v. Sharp, 436 1244 UNIVERSITY OF COLORADO LAW REVIEW [Vol. 89 The high bar set by the appellate presumption of reasonableness mirrors the exacting requirements of arbitrary and capricious review. Because arbitrary and capricious review is “narrow” and grounded in deference,228 challengers to agency action fail at a prodigious rate. Arbitrary and capricious challenges brought to the Supreme Court fail 87 to 92 percent of the time.229 There is a similar (or even higher) rate of failure for challenges to the Guidelines.230 In terms of upholding agency action, the presumption of reasonableness has essentially the same effect as arbitrary and capricious review. Both create an extremely limited opportunity for challenges to succeed upon appeal. c. Overturning the Commission on Procedural Error Finally, the only place where courts are active in overturning within-Guidelines sentences is when the Guidelines do not represent a reasoned, Commission-driven, decision. In the rare instance that a sentence is overturned based on a Guideline’s inadequacy, the justification for such reversal is that the agency did not act in its traditional capacity.231 Specifically, a guideline is most likely to be ignored when the Commission did not exert its “expertise” when it created the Guidelines.232 Child pornography sentences best capture this trend in the F.3d 730, 738 (7th Cir. 2006) (“[A] defendant can only rebut the presumption by demonstrating that the sentence is unreasonable when measured against § 3553(a) factors.”). 228. Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971). 229. ADRIAN VERMEULE, LAW’S ABNEGATION: FROM LAW’S EMPIRE TO THE ADMINISTRATIVE STATE app. to chapter 5 (2016) (“[A]gencies win arbitrariness challenges to the Supreme Court about 87%-92% of the time.”). 230. See, e.g., supra note 225. Importantly, arbitrary and capricious review removes deference to the district court from the analysis. The increased failure of within-Guidelines sentences can probably be attributed to the “double deference” that includes deference to the district court. See Rita v. United States, 551 U.S. 338, 347 (2007). 231. See United States v. Dorvee, 616 F.3d 174, 183 (2d Cir. 2010) (refusing to grant deference to the child pornography guidelines). 232. United States v. Cavera, 550 F.3d 180 (2d Cir. 2008) (citing Kimbrough v. United States, 552 U.S. 85 (2007), which held that a district court may disagree with the sentencing commission solely on policy grounds). This is not relevant here except to show again that the district court holds all the power and appellate courts are restrained. 2018] DEFERENCE ERRORS 1245 caselaw. In United States v. Dorvee, the Second Circuit held that a 240-month sentence for distribution of child pornography was unreasonable.233 The court held that the sentence’s unreasonableness resulted in part from the fact that the child pornography guidelines “[did] not exemplify the Commission’s exercise of its characteristic institutional role.”234 The court recited a history of the PROTECT Act,235 focusing specifically on Congress’s interference with the Guidelines.236 Citing traditional administrative law, the court concluded that the child pornography guideline was not entitled to weight, and that the district court had improperly relied on the Guidelines in that instance.237 Invalidation of within-Guidelines sentences based on the failings of the Commission exactly mirrors arbitrary and capricious review. As the Dorvee court explained: [D]eference to the Guidelines is not absolute or even controlling; rather, like our review of many agency determinations, “[t]he weight of such a judgment in a particular case will depend upon the thoroughness evident in [the agency’s] consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control.”238 233. 616 F.3d at 183 (holding that the district court was justified in not following the child pornography guideline). The Second Circuit does not apply the actual language of the presumption of reasonableness. However, it follows the “great weight” test which creates a similar standard. See supra Part II. 234. Dorvee, 616 F.3d at 188. 235. Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today Act (PROTECT Act) attempted to combat the sexual abuse of children. PROTECT Act, Pub. L. No. 108-21, 117 Stat. 650 (2003) (codified in scattered sections of 18, 21, 28, and 42 U.S.C.). Specifically, the PROTECT Act mandated changes to the child pornography guidelines, setting out the applicable factors judges must consider. Mark H. Allenbaugh, Who’s Afraid of the Federal Judiciary? Why Congress’ Fear of Judicial Sentencing Discretion May Undermine a Generation of Reform, CHAMPION, June 2003, at 6. 236. 616 F.3d at 184–87. 237. Id. at 188 (citing Skidmore v. Swift, 323 U.S. 134 (1944) and United States v. Mead Corp., 533 U.S. 218 (2001)). It is worth noting that this reliance on administrative law is far from the norm. Even cases discussing Dorvee skip over its reliance on administrative law. See, e.g., United States v. Morain, 594 F. App’x 520, 525 (10th Cir. 2014) (distinguishing Dorvee on its facts). 238. 616 F.3d at 188 (quoting Skidmore, 323 U.S. at 140). 1248 UNIVERSITY OF COLORADO LAW REVIEW [Vol. 89 aggravating factors since their inception.247 In fact, one of the judiciary’s main complaints about the SRA was that it invaded judicial independence in an area central to its expertise.248 In fiscal year 2015, the federal bench sentenced 71,184 felonies and Class A misdemeanors.249 If these numbers are typical, that averages to about 104 criminal penalties imposed by a district judge every year.250 Data regarding the number of sentencing appeals was not available, but assuming that just 10 percent of offenders appeal their sentence, then federal appeals courts would hear approximately 7,000 sentencing appeals in a single year.251 While the Commission takes a different approach from the judiciary, it does the same job as Article III courts. In Rita v. United States, the Court actually held that this was the case.252 In elucidating the benefits of the Commission, the Court applauded the SRA for creating a scheme wherein the sentencing judge and the Commission carry out “the same basic section 3553(a) objectives, the one, at retail, the other wholesale.”253 Recognizing that the Commission brings a new lens to sentencing policy does not necessarily support the deferential approach taken by appellate courts. The operative fact here is that the Commission’s charge is to interpret and apply the same section 3553 factors that district courts are supposed to be applying.254 For example, in creating the Guideline for 247. See id. 248. Id. at 524 (“American judges waxed indignant on the subject of any external sentencing restrictions. Sentencing discretion was central to their work, a pillar of judicial independence.”). 249. GLENN R. SCHMITT & ELIZABETH JONES, OVERVIEW OF FEDERAL CRIMINAL CASES: FISCAL YEAR 2015, at 1 (2016), http://www.ussc.gov/sites/default /files/pdf/research-and-publications/research-publications/2016/FY15_Overview_ Federal_Criminal_Cases.pdf [https://perma.cc/UTT2-JPRR]. 250. This number comes from the 71,184 criminal sentences divided by the 678 district judges currently on the bench. 251. This amount of cases speaks to the possible benefit more robust review of criminal sentence could bring to federal criminal law. As discussed in the Introduction, the legal arguments in this Comment should be seen against the background of the practical harms created by the presumption of reasonableness. The appeals presenting sentencing issues offer the opportunity for guidance from appellate courts. However, the presumption of reasonableness currently constricts that opportunity. Seven thousand cases a year provides ample opportunity to develop a substantive sentencing doctrine. 252. 551 U.S. 338, 348 (2007). 253. Id. (emphasis added). 254. See 18 U.S.C. § 3553(a) (2012) (requiring the district courts to consider 2018] DEFERENCE ERRORS 1249 burglary, the Commission must balance and enhance section 3553 factors. The courts have the same duty in fashioning an individual sentence for a criminal defendant convicted of burglary. Because both the courts and the Commission weigh the same sentencing factors, the Commission’s expertise is redundant. The only difference is the circumstances in which the section 3553 factors are applied. The fact that most guidelines simply track federal sentencing practices highlights the overlap between the Commission’s and the judiciary’s expertise. The Commission creates the Guidelines by collecting data from sentences imposed across the country.255 From this data, the Commission develops raw sentencing ranges.256 Most of these raw ranges remain untouched, becoming the official range in the Guidelines.257 If the Commission brought new expertise to sentencing policy, one would expect the Commission to be more active in revising the raw data ranges. This inaction shows that the Guidelines are often nothing more than a restatement of federal sentencing practices. Such inaction suggests that the Commission does not bring new expertise to sentencing practices and is thus undeserving of appellate deference. Even assuming that the Commission is an expert at balancing section 3553 factors,258 the fact that judges are also experts in the same area significantly undermines the de facto deference the Commission receives. Article III judges can certainly benefit from the Commission’s guidance in carrying out the duties of their office. This is not in question. Rather, and balance certain factors in arriving at the appropriate sentence); 28 U.S.C. § 994(g) (2012) (requiring the Commission to “meet the purposes of sentencing set forth in section 3553(a)” when creating the Guidelines); see also Rita, 551 U.S. at 48 (“[T]he presumption reflects the fact that, by the time an appeals court is considering a within-Guidelines sentence on review, both the sentencing judge and the Sentencing Commission will have reached the same conclusion as to the proper sentence in the particular case.”). 255. See GUIDELINES MANUAL, supra note 80, § 1A1.3; see also supra Section I.B. 256. See GUIDELINES MANUAL, supra note 80, § 1A1.3. 257. See id. 258. There are strong concerns about what expertise the Commission actually commands. As discussed above, the Guidelines are based off the sentencing ranges developed through the Commission’s empirical study. These original ranges are rarely changed. Expertise concerns are especially salient considering that the Commission is balancing these factors based on the elements of a crime in the abstract, rather than faced with a specific set of facts constituting a crime. See GUIDELINES MANUAL, supra note 80, § 1A1.3; Section III.A.2. 1250 UNIVERSITY OF COLORADO LAW REVIEW [Vol. 89 what is at issue is whether that guidance is entitled to what is functionally Chevron deference. Courts are the constitutionally mandated arbiters of criminal sentencing.259 In areas where they are already experts, there is no reason to defer.260 Again, this does not render the Commission useless as it can still provide guidance to district courts. But, Chevron deference only makes sense where the judiciary’s expertise is not sufficient to make a decision.261 Here, because the courts already have expertise in the subject of sentencing criminal defendants, courts may not grant legally significant deference at the appellate level. Under Chevron, where the judiciary is already an expert, it cannot defer to the expertise of another.262 2. The Commission’s Expertise Is Less than That of Article III Courts Not only does the Commission’s expertise overlap with the judiciary’s, the Commission has less expertise than Article III judges. The central weakness in the Commission’s expertise is that it cannot really claim it is “better” at balancing a highly subjective and context-dependent set of factors.263 The Commission does examine federal sentencing practice and distills common factors that, in addition to the considerations 259. U.S. CONST. art. III, § 2 (“The Judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority.”). An interesting question is whether Congress has the authority to delegate the powers of the judicial branch to the Commission. While Mistretta v. United States considered the nondelegation doctrine in the context of the SRA, the Court only asked whether Congress had impermissibly delegated. No mention was made of the assault on the judiciary’s constitutional authority. See 488 U.S. 361 (1989). That question, however, is beyond the scope of this Comment. A short answer is that it probably does not violate of the nondelegation doctrine. See Mark Thomson, Who Are They To Judge?: The Constitutionality of Delegations by Courts to Probation Officers, 96 MINN. L. REV. 306 (2011) (explaining how the nondelegation doctrine applies when the judiciary delegates to probation officers). 260. Chevron U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 865 (1984). 261. Id. 262. See id. 263. See 18 U.S.C. § 3553 (2012). Of course the same can be said of Congress. But the weight given to valid congressional enactments is controlled by Article I and the separation of powers. U.S. CONST. art. I, § 1. Deference to the Commission is (functionally) controlled by Chevron. The deference inquiry is therefore different and is justified by normative commitments to expertise and legislative intent that do not hold water here. Chevron, 467 U.S. at 864–66. 2018] DEFERENCE ERRORS 1253 and where the Government acts at its fullest power. B. Chevron Is Inapplicable to Criminal Law and Best Serves Civil Cases Simmering below the surface of recent scholarship and Supreme Court precedent is a fundamental concern with administrative involvement with criminal law.280 This line of caselaw seems to be motivated by one compelling observation: criminal law is different. “Because of the seriousness of criminal penalties, and because criminal punishment usually represents the moral condemnation of the community,” special attention should be given when an institution besides the judiciary is involved in determining criminal penalties.281 In short, looking at the aspects of criminal law that are unique, Article III judges should impose sentences, not an independent Commission. Scholars and judges have recently questioned whether administrative agencies should be involved in defining criminal conduct.282 The majority of this critique has come through criticism of agency interpretation of so-called “hybrid statutes.”283 Hybrid statutes regulate conduct through both criminal and civil penalties.284 One of the earliest examples of a hybrid statute is the Sherman Act.285 That Act creates criminal penalties in sections 1 and 2, but allows for private civil actions in section 15. Prominent agencies like the FTC286 and EPA287 exercise jurisdiction over these so-called hybrid statutes. Scholars argue that Chevron deference should not be 280. See, e.g., Jonathan Marx, How to Construe a Hybrid Statute, 93 VA. L. REV. 235, 267 (2007) (describing path-dependence and the contexts in which courts should apply the rule of lenity in a civil context); Sanford N. Greenberg, Who Says It’s a Crime?: Chevron Deference to Agency Interpretations of Regulatory Statutes 58 U. PITT. L. REV. 1 (1996). 281. United States v. Bass, 404 U.S. 336, 348 (1971) (discussing the rule of lenity). 282. See, e.g., Greenberg, supra note 280; United States v. Thompson/Center Arms Co., 504 U.S. 505 (1992). 283. See Marx, supra note 280, at 267. 284. The Sherman Act is a classic example of a hybrid statute. See, e.g., 15 U.S.C. §§ 1–37(a) (2012) (establishing criminal penalties for violations of §§ 1–3, and civil liability for violations of § 15). 285. 15 U.S.C. §§ 1–2, 15. 286. See 15 U.S.C. §§ 1–3. 287. See 33 U.S.C. § 1319(c)(1) (2012). 1254 UNIVERSITY OF COLORADO LAW REVIEW [Vol. 89 applied to agency interpretation of the criminal aspects of these hybrid statutes because criminal law is fundamentally different. Sanford Greenberg, for example, argues that the doctrine of lenity288 and Chevron deference are incompatible, and that this incongruity requires that a criminal liability exception be read into Chevron.289 In his article, Mr. Greenberg argues that the rule of lenity conflicts with Chevron deference because agencies, unlike courts, are not bound to interpret criminal penalties in hybrid statutes narrowly.290 He maintains that the freedom of agencies to interpret administrative crimes broadly undercuts the lenity doctrine’s three-part justification of legislative supremacy, fair warning, and separation of powers.291 While the Supreme Court has not squarely confronted a conflict between an agency interpretation and the rule of lenity, the Court at least has expressed concern over hybrid statutes intruding on the values furthered by the lenity doctrine.292 Beginning in 1992, the Supreme Court announced a line of cases that construed civil statutes narrowly because of their potential criminal implications.293 Extrapolating from these cases, one can reasonably conclude that the Supreme Court also recognizes a distinction between criminal and civil law that undercuts the de facto Chevron deference operationalized by the presumption of reasonableness. 288. Under the doctrine of lenity, “ambiguity concerning the ambit of criminal statutes should be resolved in favor of lenity.” United States v. Bass, 404 U.S. 336, 347–48 (1971) (quoting Rewis v. United States, 401 U.S. 808, 812 (1971)). 289. Greenberg, supra note 280, at 14–15; see also Cass R. Sunstein, Nondelegation Canons 18, at 2115–16 (John M. Olin Program in Law and Econ., Working Paper No. 82, 1999) (suggesting that principles of statutory interpretation, including the rule of lenity, should not be overcome by agency interpretation). 290. Greenberg, supra note 280, at 15. 291. Id. at 16. For Mr. Greenberg’s full argument concerning the rule of lenity see id. at 15–21. 292. See, e.g., United States v. Thompson/Center Arms Co., 504 U.S. 505, 517– 18 (1992). I find the lenity doctrine particularly interesting because the doctrine grounds itself in constitutional policy, rather than specific textual clauses. See Sunstein, supra note 289; United States v. Brown, 333 U.S. 18, 25–26 (1948) (“Lenity is not an inexorable command.”). Chevron is somewhat similar in this respect. Considering how these two doctrines play together, attention should be paid to the competing values at stake, and purposeful reasoning should resolve conflicts. Here, Chevron’s interest in good, efficient government and expert-driven policy must bow to fair notice and legislative supremacy. 293. See Thompson/Center Arms Co., 504 U.S. at 517–18; Leocal v. Ashcroft, 543 U.S. 1, 11–12 n.8 (2004); Clark v. Martinez, 543 U.S. 371, 380 (2005). 2018] DEFERENCE ERRORS 1255 This line of cases began in United States v. Thompson/ Center Arms Co.294 There, while recognizing that it was construing a tax provision in a civil context,295 the Court nevertheless applied the rule of lenity.296 It explained that the definition of firearm in this context could have potential criminal consequences for certain parties.297 Recognizing this possibility, the Court held that it was proper “to apply the rule of lenity and resolve the ambiguity in Thompson/Center’s favor.”298 Twelve years later, the Court affirmed this reasoning through two cases involving civil application of a statute that could have criminal repercussions.299 In Leocal v. Ashcroft, the Court issued dicta that the rule of lenity would limit the statutory definition of a “crime of violence” in a deportation context because of the possible criminal applications.300 In Clark v. Martinez, the Court delivered further dicta that, in reference to laws with possible criminal application, “the lowest common denominator, as it were, must govern.”301 The Court’s application of the rule of lenity to civil statutes with criminal implications, and the academy’s concern of Chevron’s ability to frustrate the purpose of that rule, suggests that the rule of lenity reasonably denies agencies the ability to interpret criminal statutes. This was the position of Justices Scalia and Thomas when they dissented from a denial of certiorari in 2014.302 In that case, the Second Circuit deferred 294. 504 U.S. 505 (1992). 295. Thompson/Center concerned section 5821 of the National Firearms Act. It taxed anyone making a “firearm.” The Bureau of Alcohol, Tobacco and Firearms imposed this tax on Thomson/Center for manufacturing certain guns. Id. at 506– 09. 296. Id. at 517. 297. Id. (citing various tax crimes). 298. Id. 299. Leocal v. Ashcroft, 543 U.S. 1, 11–12 n.8 (2004) (holding that lenity must apply to a deportation statute that had criminal implications as well); Clark v. Martinez, 543 U.S. 371, 380 (2005) (“It is not unusual to give a statute’s ambiguous language a limiting construction called for by one of the statute’s applications, even though other of the statute’s applications, standing alone, would not support the same limitation. The lowest common denominator, as it were, must govern.”). 300. Leocal, 543 U.S. at 12 n.8. 301. Martinez, 543 U.S. at 380. 302. Whitman v. United States, 135 S. Ct. 352, 353–54 (2014) (Scalia, J., dissenting from denial of certiorari). The Court recently had the opportunity to consider Justice Scalia’s argument. However, it did not do much with it. The Court used only a few lines to find that neither Chevron nor lenity applied to the 1258 UNIVERSITY OF COLORADO LAW REVIEW [Vol. 89 The rule’s emphasis on legislative supremacy counsels against deference to the Sentencing Commission. True, because the Commission does not define criminal conduct per se, it might seem a poor candidate for the rule’s application.315 Nevertheless, defining criminal conduct necessarily includes delineating punishment.316 It makes no substantive difference if the Commission is defining the elements of the crime or the amount of punishment. Both are equal steps to the same end.317 Congress’s grant to the Commission therefore implicates the rule of lenity. To be sure, Congress has every right to delegate “at least some authority that it could exercise itself.”318 But the rule of lenity’s concern for legislative supremacy suggests that, where Congress delegates power to define criminal punishment, courts should exercise caution. An abstract grant of power to an agency, while valid in the civil context, raises concerns when the setting is criminal.319 Necessary to the act of creating an agency like the Commission it is not itself a constitutional mandate, it is rooted in a constitutional principle, and serves as a time-honored nondelegation canon.”). 315. However, the distinction between sentencing facts and elements has always been tortured. See Apprendi v. New Jersey, 530 U.S. 466 (2000) (explaining that “sentencing facts” must still be proven to the jury beyond a reasonable doubt). While the Commission does not create penal law in the traditional sense, the Commission still identifies conduct relevant to punishment. 28 U.S.C. § 994(c)(2)–(3) (2012) (requiring the Sentencing Commission to consider mitigators and aggravators, and the amount of damage the crime caused). Pursuant to its duties, the Commission identifies acts that can bear on the length of a sentence. See, e.g., GUIDELINES MANUAL, supra note 80, § 2G2.1 (raising the presumptive sentence based on whether the offense involved contact with a child or the use of a computer). To the extent that the Guidelines punish specific conduct, the rule of lenity’s interest in legislative supremacy is triggered. However, as this Section argues, the rule of lenity’s pull is stronger than that, and in fact counsels that the Guidelines not be given legal deference on appeal. 316. The whole purpose of criminal law is to define and deter culpable, antisocial conduct. The simple act of defining an act as illegal cannot achieve the purposes of criminal law. The state must create some deterrence. The definition of a crime, therefore, cannot exist without the definition of a punishment. 317. See, e.g., Apprendi, 530 U.S. 482 (explaining the link between verdict and sentence, and applying a functional approach to determine which facts must be found by a jury). See also United States v. Bass, 404 U.S. 336, 348 (1971) (“[C]riminal punishment usually represents the moral condemnation of the community.”) (emphasis added). 318. Loving v. United States, 517 U.S. 748, 758 (1996). As discussed previously, this Comment does not attempt to revive a debate about the nondelegation doctrine. But see United States v. Grundy, 695 F. App’x 639 (2d Cir. 2017), cert granted, 2018 WL 1143828 (U.S. Mar. 5, 2018) (No. 17-6086). 319. Whitman v. United States, 135 S. Ct. 352, 353–54 (2014) (Scalia, J., dissenting from denial of certiorari); Bass, 404 U.S. 336, 348 (1971). 2018] DEFERENCE ERRORS 1259 is a relinquishment of legislative power. Congress could have created legislation mirroring the Sentencing Guidelines, but has instead given that power to the Commission. In the criminal context, this relinquishment of power is troubling. If a body is going to prescribe general rules delineating deprivations of liberty, it should be Congress, not the Commission. Finally, the presumption’s permissive approach to legislative supremacy is problematic regardless of any political accountability the Sentencing Commission (and its commissioners) may or may not have.320 As discussed in Part II, the Chevron Court’s deference to administrative agencies is in part justified because an agency is more politically accountable than a court.321 True enough, but agencies are also certainly less politically accountable than Congress.322 Because the weighty decision to deprive a person of liberty is so serious, lenity requires that if a sentencing scheme is to be adopted, Congress, not an agency, should be the one to pass it. This is true regardless of how politically accountable the agency at issue is. There is, however, a counterargument. Lenity’s legislative- 320. As an independent agency, the Commission receives for cause protections. Independent agencies are an interesting aspect of the regulatory state, and beyond the scope of this Comment. It is sufficient to say that there is some concern about the political accountability of these agencies. See PHH Corp. v. Consumer Fin. Prot. Bureau, 839 F.3d 1, 25–29 (2016) (discussing the CFPB and independent agencies). Whether these agencies are in fact politically accountable, however, is somewhat beside the point. While political accountability is important when considering other agencies, because the Commission deals with criminal law, different rules apply. 321. Chevron U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 865–66 (1984) (“[A]n agency to which Congress has delegated policy-making responsibilities may, within the limits of that delegation, properly rely upon the incumbent administration’s views of wise policy to inform its judgments. While agencies are not directly accountable to the people, the Chief Executive is, and it is entirely appropriate for this political branch of the Government to make such policy choices – resolving the competing interests which Congress itself either inadvertently did not resolve, or intentionally left to be resolved by the agency charged with the administration of the statute in light of everyday realities.”). 322. No agency head is directly selected by the people. Members of Congress are. Structurally, therefore, they are more politically accountable. A recent study further shows how the premise that agencies are politically accountable is not always true. See generally David E. Lewis & Abby K. Wood, Judicial Deference and Agency Accountability (July 2011) (unpublished manuscript), https://my.vanderbilt.edu/davidlewis/files/2011/12/lewis-and-wood-paper-v.9.pdf) [https://perma.cc/2HXZ-DKRD]. 1260 UNIVERSITY OF COLORADO LAW REVIEW [Vol. 89 supremacy concerns unusually focus on the body defining the elements of a crime.323 Because the Sentencing Commission deals with punishment—rather than the creation—of substantive crimes, one could argue that lenity is inapplicable, that it is better to have an agency define sentences because at least the agency is more accountable than the courts. However, a court determining punishment in an individual case is different from an agency determining a scheme of punishment for all cases. A court acting in an individual case is fulfilling its constitutional duty: deciding the single case and controversy in front of it. Determining an individual sentence is not a legislative task, but a judicial one.324 Creating a Guidelines scheme, however, is legislative. The deference enshrined in the presumption of reasonableness gives legal effect to a legislative-type scheme created by an agency. Lenity requires that such generally applicable schemes only receive legal effect if passed by Congress.325 2. Fair Notice Counsels Against De Facto Chevron Deference Separate from these structural concerns, de facto deference to the Commission additionally undermines the due process interest in providing fair notice of what conduct is criminal. Again, because criminal law is different, the rule of lenity reads criminal statutes narrowly so that a criminal defendant will only be convicted of conduct that the law clearly outlaws.326 The Guidelines can serve this interest by giving criminal defendants facing impending prosecution an idea of the sentence they will likely receive upon plea or conviction. However, in a broader and deeper sense, the Guidelines actually provide less fair notice to criminal defendants. The statutory grant of power to the Commission is vague and 323. Bass, 404 U.S. at 348. 324. See U.S. CONST. art. III, § 2, cl. 1 (“The judicial power shall extend to all cases, in law and equity, arising under this Constitution.”); Aubin v. United States, 943 F.Supp. 126, 128 (D. Mass. 1996) (“[T]he imposition of a sentence . . . is a core judicial function.”). 325. Bass, 404 U.S. at 348. 326. Id. (“[A] fair warning should be given to the world in language that the common world will understand, of what the law intends to do if a certain line is passed. To make the warning fair, so fair as possible the line should be clear.”) (quoting McBoyle v. United States, 283 U.S. 25, 27 (1931)). 2018] DEFERENCE ERRORS 1263 focus on the section 3553 factors. While this step may not solve the various difficulties appellate courts have had in defining substantive reasonableness, this review will at least remove the unjustified deference to the Commission,336 focus appellate courts on providing sentencing courts with guidance, and aid in proper execution of section 3553. At the outset, one should note that several circuits are not far off from this more thorough standard of review. Often the healthiest sentencing review comes from circuits that have not explicitly adopted the presumption of reasonableness.337 Perhaps the best of that group is the Second Circuit. As discussed previously in Part II, in United States v. Dorvee, the reviewing court engaged in a wholesome review of the Guidelines.338 The court held that, because the child pornography guideline did not exemplify the Commission’s exercise of its characteristic institutional role, a sentence based on those Guidelines was unreasonable.339 The willingness to question the Commission represents a positive step toward a workable test in keeping with the law. Questioning the Commission, however, is not enough. Deference to the Sentencing Commission should be absent from appellate review. Appellate courts should refocus their review on the district court and review the sentences for substantive fairness. The best way to achieve this goal is for appellate courts to redefine their standard of review for federal sentences. A drastic change is not necessary to remove deference to the Commission. Appellate courts simply should redefine the 336. D. Michael Fisher, Still in Balance? Federal District Court Discretion and Appellate Review Six Years After Booker, 49 DUQ. L. REV. 641, 650 (2011) (“Despite the Supreme Court’s best efforts in Booker, Rita, Gall, and Kimbrough to clarify the scope and definition of reasonableness review, the courts of appeal remain unclear as to the exact test to be applied when conducting substantive reasonableness review.”). 337. United States v. Jimenez-Beltre, 440 F.3d 514, 515 n.2 (1st Cir. 2006) (fearing the “presumption language” would be too controlling on district courts); United States v. Fernandez, 443 F.3d 19, 27 (2d Cir. 2006) (“We therefore decline to establish any presumption, rebuttable or otherwise, that a Guidelines sentence is reasonable.”); United States v. Carty 520 F.3d 984, 994 (9th Cir. 2008) (“We recognize that a Guidelines sentence ‘will usually be reasonable,’ and this done, we see no particular need for an appellate presumption that says so.”) (citation omitted); United States v. Talley 431 F.3d 784, 788 (11th Cir. 2005) (“[O]rdinarily we would expect a sentence within the Guidelines range to be reasonable.”). 338. 616 F.3d 174, 183 (2d Cir. 2010). 339. Id. at 188. 1264 UNIVERSITY OF COLORADO LAW REVIEW [Vol. 89 two-tiered approach taken by appellate courts when engaging in federal sentencing review. They should continue to divide their sentencing review into two distinct parts, beginning with a procedural review340 and followed by a substantive review. No change to the procedural test is necessary.341 The courts simply must remove the presumption of reasonableness from the substantive review of sentences. Removing the appellate presumption of reasonableness is supported by both caselaw and the legislative history of the SRA. It better reflects Booker’s remedial opinion and the SRA.342 In Booker, the Court held that the Guidelines would still continue to play a role in sentencing.343 However, the Court only mentioned the Guidelines’ role in terms of district courts.344 The Court mentioned no such requirement when discussing the new appellate standard of reasonableness.345 In fact, by excising section 3742(e),346 the Court removed any statutory requirement for appellate courts to consider whether a sentence fell within the Guidelines.347 An appellate test that ignores the applicability of the Guidelines better accords with Booker (and the text of the post-Booker SRA) and solves the deference problems raised by an appellate presumption of 340. Under Gall v. United States, appellate courts must follow a two-tiered standard of review. The first step is to review the district court’s procedure. Under this procedural review, appellate courts ensure that the district court properly calculated and considered the Guidelines. If the court is satisfied that the procedural requirements of the SRA were met, it then engages in a substantive review of the actual sentence imposed. It is under this aspect of review where the court reviews for unreasonableness and where the appellate presumption of reasonableness guides appellate courts. See Gall v. United States, 552 U.S. 38, 51 (2007); see also supra note 124 and accompanying text. This standard is borrowed from the appellate standard for motion for a new trial after a jury verdict or intentional torts by state actors. 341. Procedural review is important and cannot be changed. There is a statutory mandate in the SRA that certain procedures should be followed by district courts. See Gall, 552 U.S. at 51. 342. The appellate presumption of reasonableness does not represent the most well-reasoned standard of review. That is to say, when judges step outside of “saying what the law is,” and try to write new law, they often fail. The scramble to define the bounds of “unreasonableness” (another instance of judges writing law (see United States v. Booker, 543 U.S. 220, 303 (2005) (Scalia, J., dissenting))) led to some hastened decisions. This new standard erases those mistakes. 343. Booker, 543 U.S. at 264. 344. See id. 345. Id. at 261–62. 346. Id. 347. 18 U.S.C. § 3742(e)(3)(B) (2012). The excised portion pertinent to the sentencing phase retained its reference to the Sentencing Guidelines. 2018] DEFERENCE ERRORS 1265 reasonableness for within-Guidelines sentences. This test would also track a significant strain in the SRA’s legislative history. At the time of its creation, many congresspersons believed that the Commission would simply aid judges in making better, more rational sentencing law.348 These congressmen and women did not expect the Guidelines to carry binding force.349 Rather, many proponents of the SRA envisioned the Commission’s role as research oriented, policy driven, and above all, advisory.350 The role of the Commission that this Comment envisions reflects this view of the Guidelines’ proper place. Finally, it should be noted that removing the appellate presumption of reasonableness will not harm Congress’s goal of reducing “unwarranted sentencing disparities.”351 Judges are still required to consider possible sentencing disparities in imposing punishments.352 In addition, the Commission will continue its work, and sentencing judges are required to reference those Guidelines as well.353 While increased appellate discretion may lead to some discrepancy between circuits, discrepancy is not always a bad thing. Most likely these discrepancies will reflect the area and culture in which a particular court resides, and should lead to a healthy debate in the federal judiciary about how the courts should approach crime and punishment. The net effect would be increased scrutiny of sentences and, overall, a fairer sentencing system. It may be enough to simply recognize that the appellate presumption of reasonableness is unjustified, should be removed, and leave it at that. However, while removing the presumption would be a sufficient remedy, because the presumption occupies such a large place in sentencing review, the questions of what is to replace the presumption of reasonableness merits some discussion. While the Supreme Court has held that all sentences— whether within the Guidelines or not—should be reviewed for an “abuse of discretion,”354 the circuits are substantially split 348. See Gertner, supra note 36, at 530. 349. Id. 350. Id. 351. 18 U.S.C. § 3553(a)(6) (2012). 352. Id. 353. 18 U.S.C. § 3553(a)(4). 354. Id. 1268 UNIVERSITY OF COLORADO LAW REVIEW [Vol. 89 discretion,373 there should certainly be some element of deference to the district court in the correct standard of review.374 But discretionary decisions are also not a purely factual matter where district courts’ particularities make them the ideal decider and where district courts receive the most deferential review.375 There are doctrinal and legal matters at issue in a sentencing decision that an appellate court is well- suited to decide.376 It is a mixed question of law and fact.377 In adopting an abuse of discretion standard, Gall seemed to honor this fact.378 The abuse of discretion standard announced in Gall thus grants more power to appellate courts to overturn district courts than if it were reviewing a pure fact issue.379 The critical question becomes defining the contours of that power in the context of sentencing review.380 While the Second Circuit has defined appellate review narrowly, the goals of the SRA and the remedial opinion in Booker suggest a more intrusive version of abuse of discretion review. The SRA placed some of the onus on maintaining the dual goals of doctrinal coherence and economy of judicial administration.”). 373. Gall v. United States, 552 U.S. 38 (2007). 374. Highmark Inc., 134 S.Ct. 1744, 1748 (explaining that the discretionary decision whether a case was “exceptional” under the Patent Act’s fee shifting provision should be with the district court because “the district court is ‘better positioned’ to decide whether a case is exceptional”). 375. See Wright, supra note 371. 376. See Russell, 499 U.S. at 231–32 (describing the appellate court as the ideal body to serve the goals of uniformity and judicial economy). 377. Pullman-Standard v. Swint, 456 U.S. 273, 289 n.19 (1982) (explaining that a mixed question of law and fact is one where “the historical facts are admitted or established, the rule of law is undisputed, and the issue is whether the facts satisfy the [] standard”). Sentencing decisions are controlled by statutory and constitutional provisions, and involve “admitted or established” historical facts. See id. Like the Miranda caselaw, one could see development of a common law that would aid judges in determining a sentence. See Thompson Keohane, Miranda in Custody Determinations: Mixed Questions of Fact and Law, 62 MO. L. REV. 211, 224 (1997) (“As a result of Thompson, federal courts will be able to define the ‘in custody’ aspect of Miranda, which should foster uniformity in the application of Miranda nationwide . . . .”). 378. Gall, 552 U.S. at 57–59. 379. See Pullman-Standard, 456 U.S. at 284–85 n.14. 380. There is no one version of abuse of discretion. Courts apply different versions of that standard in different contexts. Carrisa B. Hessick & F. Andrew Hessick, Appellate Review of Sentencing Decision, 60 ALA. L. REV. 1, 15 (2008) (discussing the deferential version of abuse of discretion of when to schedule a trial, and the searching version of abuse of discretion applied to the grant of a preliminary injunction). 2018] DEFERENCE ERRORS 1269 uniform sentences on the federal judiciary.381 The Booker remedial majority stressed that, by granting appellate review, they were forwarding Congress’s goal of uniformity across the federal judiciary the best they could.382 Appellate courts are the proper bodies to enforce these cross-system checks on district courts.383 Promoting uniformity requires courts to provide guidance; and, in order to provide guidance, appellate courts must be more scrutinizing of district courts. An active version of an abuse of discretion standard is therefore warranted. Beyond stressing that appellate review would serve uniformity, Booker offers additional evidence that a more searching version of the abuse of discretion standard should be applied to sentencing appeals. Booker’s reasonableness standard is an unusual appellate standard. Review for “reasonableness” is not usually applied to review of a district court’s decision.384 While Gall has interpreted the reasonableness standard as “abuse of discretion,”385 it is noteworthy that Justice Breyer’s remedial opinion nowhere mentioned this standard of review.386 Because Breyer and the remedial majority in Booker did not expressly call for review for abuse of discretion, and because they were invested in ensuring continued uniformity in federal sentencing, the remedial opinion probably envisioned a robust and searching standard of review.387 “Reasonableness” seems to call for an appellate standard that engages with the sentence. While reasonableness is poorly defined,388 it is also probably more searching than the Second Circuit’s “shock to 381. See 18 U.S.C. § 3742 (2003) (setting out sentencing appeals and permitting appellate action when the district court varied from the Sentencing Guidelines). 382. United States v. Booker, 543 U.S. 220, 264 (2005) (noting that retention of sentencing appeals, “by providing appellate review, would tend to iron out sentencing differences . . . . [W]e believe congress would have preferred” the retention of sentencing appeals.). 383. See Salve Regina Coll. v. Russell, 499 U.S. 225, 231–32 (1991). 384. Id. 385. Gall v. United States, 552 U.S. 38, 49–50 (2007). 386. See Booker, 543 U.S. at 260 (setting out unreasonableness standard). 387. Id. at 246 (explaining that the advisory system still maintained a “connection between the sentence imposed and the offender’s real conduct—a connection important to the increased uniformity of sentencing that Congress intended its Guideline system to achieve”). 388. See Craig D. Rust, When “Reasonableness” Is Not Reasonable, 26 TOURO L. REV. 75, 101 (2010) (summarizing circuit court precedent on substantive review of sentences). 1270 UNIVERSITY OF COLORADO LAW REVIEW [Vol. 89 conscious” abuse of discretion standard.389 To be sure, it is probably still a deferential standard of review, but because the original standard announced in Booker seemed to expect more from appellate courts than the extreme deference adopted by the Second Circuit, creating a standard that is more scrutinizing of the district court is probably more in line with Booker’s original formulation. Appellate courts should remove the presumption of reasonableness from their jurisprudence and apply Booker’s “reasonableness” standard actively. Not only is this scrutinizing standard supported by the SRA and Booker, it also creates the happy result of guidance for district courts. By applying an active version of the abuse of discretion standard, appellate courts would still defer. But this deference would be directed wholly at the sentencing court, not the Commission. The standard would require courts to actually engage in the substantive fairness of the punishment. Appellate judges would have to consider the application of the sentencing factors and whether they believed the sentence was fair. Thus, as recognized in Rigas, the standard would reach the correct balance of “placing great trust in sentencing courts while still recognizing the [appellate court’s] responsibility to examine the actual sentence itself.”390 CONCLUSION Consider again the case of Mr. Franklin.391 Had the Tenth Circuit foregone the presumption of reasonableness, it could have delivered an opinion grounded in well-reasoned and justified legal doctrine. And, in doing so, it could have facilitated the development of a federal sentencing common law that would serve the goals of uniformity embodied in the SRA. Abdication of the judiciary’s function through the de facto deference embodied in the presumption of reasonableness has made the judiciary less effective. And this harm to the 389. Booker’s remedial opinion expected appellate courts–at some level–to apply the section 3553(a) factors. See Booker, 543 U.S. at 260 (“Section 3553(a) remains in effect, and sets forth numerous factors that guide sentencing. Those factors in turn will guide appellate courts, as they have in the past, in determining whether a sentence is unreasonable.”). 390. United States v. Rigas, 583 F.3d 108, 123 (2d Cir. 2009). 391. See United States v. Franklin, 785 F.3d 1365 (10th Cir. 2015).