Tuesday, January 02, 2007

Sentencing and the Parsimony Provision

In US v. Shalon Dragon, No. 05-4906 (12/29/06), the 3rd Circuit ruled that district courts need not expressly apply the "parsimony provision" when sentencing.

Dragon pleaded guilty to identity theft and faced a guideline range of 37 to 46 months in prison. The judge imposed 44 months, and Dragon appealed arguing that the judge failed to articulate why a lower sentence within the guideline range would not have been sufficient. Dragon argued that this omission violated the "parsimony provision" in 18 usc 3553(a), which states:

The court shall impose a sentence sufficient, but not greater than
necessary, to comply with the purposes set forth in paragraph (2) of this
subsection [which lists the four basic purposes of sentencing].

The Circuit ruled that "district judges are not required by the parsimony provision to routinely state that the sentence imposed is the minimum sentence necessary to achieve the purposes set forth in section 3553(a)(2)." Instead, the judges need only state adequate reasons for the sentence, give due consideration to the 3553(a) factors, and consider any arguments properly presented by the parties which have legal merit and a factual basis.

As Prof. Berman aptly sums it up in his blog (click here): "So, to review, after Booker district courts must still precisely and accurately calculate advisory guideline ranges, but they need not explain how their sentences comply with the one mandatory directive that Congress set forth in § 3553(a). Might one suggest this is another example of activist judges putting their policy preferences over the express text enacted by Congress?"

On the other hand, note that this issue was not expressly raised before the sentencing court, and thus the review before the Circuit was for plain error. The parsimony provision argument may fare better if expressly raised legally and factually before the sentencing court, since then it is an argument "properly presented by the part[y] which [has] legal merit and a factual basis in the record." For this reason, defense counsel should certainly continue to press this argument in the district courts.

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