By: Matthew A. Ford
The Supreme Court, in United States v. Booker, found
the United States Sentencing Guidelines unconstitutional, uprooting
nearly twenty years of structured sentencing in federal courts. As
a result of this uprooting, judges now have much greater discretion
in sentencing. Appellate review of sentencing decisions, however,
limits this discretion by requiring district courts to impose only
reasonable sentences. This comment considers reasonableness
review in the context of white-collar crime by analyzing a recent
circuit court decision, United States v. Davis, 458 F.3d
491 (6th Cir. 2006).
In Davis, the Court of Appeals for the Sixth Circuit vacated a
one-day prison sentence imposed on a defendant convicted of two
counts of bank fraud where the recommended Sentencing Guidelines
range was thirty to thirty-seven months, because it found the
sentence unreasonable. In finding the sentence unreasonable,
the court relied primarily on (1) the numerical variance between
the sentence imposed and the recommended Guideline Sentence and (2)
the unlikelihood that the sentence would deter others from
committing similar crimes. The court’s reliance on numerical
variance and deterrence represents an unhealthy trend in
post-Booker sentencing, because such reliance tends to shift the
balance of power towards the legislature and prosecutors and away
from judges in the unique position to give individualized
sentences.
This comment urges courts to refrain from this mode of analysis and
to rely more heavily on the social harm caused by white-collar
crimes as a basis for finding nominal sentences of white-collar
criminals unreasonable. Reliance on social harm as a
justification for punishment reflects the criminal nature of
white-collar crimes. It also helps strike a balance between
prosecutorial power and judicial discretion.