Split Noted: Does the Same Standard of Substantive Reasonableness Apply to Both Initial Sentencing and Revocation Proceedings?

Per United States v. Robe, 2008 WL 918722, *3 (8th Cir. Apr. 7, 2008)

Donny Bear Robe pled guilty to involuntary manslaughter after he led police on a drunken high speed chase, during which a passenger was ejected from the open bed of his pickup. He was sentenced to two years in prison and three years of supervised release. Four months into his supervised release, Bear Robe was arrested for driving while intoxicated; he had a BAC of 0.214. The guidelines range for this violation is 3 to 9 months imprisonment, but the district court imposed the statutory maximum 24 months imprisonment and an additional 12 months of supervised release.

This Eighth Circuit panel reviews this sentence for its procedural soundness and substantive reasonableness. Judge Colloton, on behalf of a unanimous panel, notes that the circuits are split on what the proper standard to evaluate reasonableness. Appellate courts are directed by the statute to evaluate if a revocation sentence is “plainly unreasonable.” 18 U.S.C. § 3742(e)(4). In Booker, however, the Supreme Court excised this standard of review for initial sentencing in order to make the guidelines system advisory. In its place, the Supreme Court recommended an ‘unreasonableness’ standard, as opposed to ‘plainly unreasonable,’ to be applied in light of the § 3553(a) factors.

Most circuits – the CAs 2,6,8,10,11 – apply the same Booker standard to review both initial sentencing and revocation proceedings. The CAs 4,5, on the other hand, continue to apply the plainly unreasonable standard for revocation proceedings. The Eleventh Circuit has suggested that there really is no difference between the two. In this case, that is certainly true; the above-guidelines sentence is affirmed as both procedural sound and substantively reasonable.