I’m attending the US Sentencing Commission annual seminar now under way in Philadelphia. One of the panels yesterday was A View from the Appellate Bench, featuring CA3 Chief Judge McKee.
Notable among the points made by Chief Judge McKee:
- He encouraged defense counsel to get the defendant to communicate his humanity. Putting a real human face on the defendant is helpful and necessary for sentencing.
- He almost never looks at the pre-sentence report when deciding a sentencing appeal. CA11 Judge Pryor said in his experience former district court judges tended to look at PSRs while those without prior district court service tended not to. So don’t write your brief assuming all your judges will also read the PSR.
- He observed that, even though CA3 is not one of the circuits that formally presumes a within-Guidelines sentence is reasonable, in the end it probably comes out that way. He could not recall a within-Guidelines sentence CA3 ever found substantively unreasonable.
- He strongly believes in 18 USC 3353’s parsimony principle (“a sentence sufficient, but not greater than necessary“), although he observed it is very difficult to apply. CA11 Judge Pryor, perhaps less of a strong believer in sentencing parsimony, had a chuckle over his own comment that it should be called the Goldilocks principle instead.
- He reiterated his view that PA’s sentencing framework is far superior to the federal sentencing guidelines.
- He feels it would be helpful to the circuit judges if sentencing judges explained what it is they were trying to achieve. He gave an example of a judge who imposed an above-Guidelines sentence and explained that his reason was to incapacitate the defendant as long as possible, and that was helpful to him in assessing that sentence’s reasonableness.
- He agreed with fellow panelist CA6 Judge Gibbons that judges should not refer to defendants by their first names. He commented that someone who does that shouldn’t be a judge.
- Also of note, Judge Gibbons reminded defense counsel of the importance of candor, noting that when you tell the court half the story and the court finds out the full story, that won’t be helpful to your client. She also decried the epidemic of plain-error issues on appeal caused by failing to object below.