Monday, March 20, 2017

United States v. Wireman

United States v. Wireman, 2017 WL 765769 (February 28, 2017)(KS)(published): This case is notable because of Judge McKay’s concurrence. The panel reviews how much a district court must say when rejecting nonfrivilous arguments asking for a variance based on policy critiques of a pertinent guideline provision. (Here, Wireman attacked USSG § 2G2.2). According to the majority, when a district court sentences the accused within the recommended imprisonment range, not much needs to be said. A court does not have to explicitly address the accused’s arguments as long as the “context and the record make clear” the court’s reasoning for rejecting those arguments. An accused will almost certainly lose a procedural unreasonableness argument if he does not object to the “method by which” the court arrived at its sentence. This means he must tell the court it has not adequately explained the sentence imposed if he wants to the court to use de novo review on appeal.

Judge McKay disagrees with the majority’s procedural unreasonableness analysis because it “has not required enough of the district court.” He writes that the court should have explained why it rejected Wireman’s policy argument because “policy critiques . . . are different and deserve more attention.” Since the guidelines “anchor a sentencing” they set “the starting point”; the parties then “argue whether the facts and circumstances” call for “a different endpoint.” Challenging the guidelines “is more like rejecting the starting point. If the applicable Guidelines do not reflect a sound judgment it stands to reason that they should not anchor the sentencing. And because the anchoring effect of the Guidelines is so strong, a winning policy argument would have an outsized effect on the sentencing proceedings.” Judge McKay also notes that when the accused has a reasoned argument for challenging the soundness of a particular guideline, the appellate court should not presume a sentence is reasonable even if it falls within the recommended imprisonment range. Still, Wireman loses because he cannot overcome plain error review.