Tenth's Latest Attempt at Reasonableness Review

For any federal practitioner who thought that Rita, Gall, and Kimbrough clarified the state of reasonableness review, take a look at US v. Smart. The majority affirms the district court's sentence of 120 months for a defendant convicted of inducing a minor to engage in sexually explicit conduct, despite the fact that he received an enhancement for obstruction of justice and did not receive acceptance of responsibility because he exercised his right to trial. The district court declines to impose the guideline sentence of 168-210 months because of the potential disparity with a more serious co-defendant who pled guilty and received 120 months.

The United States appealed, arguing that it was improper for the judge to consider the disparity and the trial penalty in its sentence. The Tenth affirms, rejecting the government's contention that disparity is an improper consideration in light of Gall. The Court likewise finds that "[b]ecause the district court plainly did not rely on Smart's decision to go to trial as a justification for its downward variance, we need not decide whether such a consideration would constitute procedural error after Gall." Also noteworthy is the Tenth's explicit rejection of its prior decision in Garcia-Lara, relying on the intervening law set forth in Gall and Kimbrough.

The dissent, however, takes issue with the distinction between procedural and substantive reasonableness offered by the majority. Judge Hartz, while not actually finding that there was procedural error, would characterize a district court's consideration of erroneous factors as procedural error rather than analyzing the substantive reasonableness of the sentence as the majority does. Hartz's concerns over the characterization of error are likely unnecessary in this particular case, but his assessment of error is at least interesting.

I suspect that other justices, inclined to give less deferential review to defendants who have prevailed in the district court, will likely strain their analysis to ensure that many errors are characterized as procedural rather than substantive. While the opinion and dissent may not appear to be ground-breaking at first glance, the issue at stake is indeed great as it affects the very standard of review that will apply on appeal.