“This looks extraordinarily bad”

Ghostbusters debuted 25 years ago this week. In commemoration, the entire movie is free on YouTube. But it has commercials. If I wanted to see those, I would watch television, you know? What made me think of that was the Eleventh’s portentous granting of en banc review in a case that can only make bad law—extraordinarily bad, as Egon said.

What rallies the Eleventh Circuit to gather the entire bench? The idea that a 210-month sentence might be too low. To be sure, as Judge Edmondson noted, “The crime is an ugly one; the sentencing judge described the conduct as ‘horrific.’” Judge Hill called it “utterly gruesome.” (The defendant committed sex acts with children and traded in child pornography.) The district judge from the Middle District of Florida considered the guidelines’ recommended sentence of 360 months and instead imposed a mere 17.5 years. Having lost on appeal, the government will now get a chance to air this travesty of justice in an en banc review.

The government is (again) attempting to make the guidelines presumptively correct by contending that district judges must justify imposing a non-guidelines sentence. But the Supreme Court has repeatedly said that the guidelines are not law and that they need not be accorded any presumption. Indeed, Rita v. United States supposedly settled all of this already. As Justice Stevens said in his concurrence in that case, “Given the clarity of our holding, I trust that those judges who had treated the Guidelines as virtually mandatory during the post-Booker interregnum will now recognize that the Guidelines are truly advisory.”

The government is not taking that lying down. From Judge Edmondson’s panel opinion:

The government does not urge that the district court committed a procedural error in this case. The government concedes that the guidelines sentence was correctly calculated and that the sentence imposed was above the minimum sentence allowed by the statute. In effect, the government contends that Defendant’s sentence was substantively unreasonable: too lenient.

Defendant’s sentence of 210 months’ imprisonment (and a life term of supervised release) is 30 months above the statutory minimum for imprisonment: but the government argues that the departure from the guidelines sentence was not justified. The government contends that the district court relied on the view that pedophilia is an illness and contends that the district court failed to meet its obligation under section 3553(a) to consider the seriousness of the offense, the need to promote respect for the law, the need to provide just punishment for the offense, the need to afford adequate deterrence, and the need to protect the public from further crimes by the defendant.

It bodes ill for the Republic that the Eleventh is even seriously entertaining this argument. I hate to speculate, but this sort of nonsense may be just the thing to give Justice Scalia’s Rita concurrence the traction it previously lacked and restrict “reasonableness” review to procedural issues only. Or maybe something worse.