Second Circuit Reiterates that Within-Guidelines Sentence is not Presumptively Reasonable

Yesterday, in United States v. Whitley, 2007 WL 2694403 (2d Cir. September 17, 2007), the Second Circuit reaffirmed its refusal to hold that a within-Guidelines sentence is presumptively reasonable. In denying appellate counsels' motions to withdraw in two cases, the Court found the lawyers' Anders briefs inadequate because neither brief addressed the procedural and substantive reasonableness of the sentences imposed. [For the lay reader, Anders v. California, 386 U.S. 738 (1967) holds that appellate counsel may move to withdraw as counsel on the grounds that there is no non-frivolous basis for appeal.] Since both sentences had been within the applicable Sentencing Guidelines, the Court implicitly held that within-Guidelines sentences did not absolve the appellate lawyers from the responsibility to "conduct a conscientious examination of possible grounds for appeal," and in particular, to determine if an even lower sentence was warranted. Given that in Rita v. United States, 127 U.S. 2456(2007), the Supreme Court recently authorized (but did not require) circuit courts to treat within-Guidelines sentences as presumptively reasonable, it is certainly a relief to see the Second Circuit reiterate in Whitley its refusal to "establish any presumption, rebuttable or otherwise, that a Guidelines sentence is reasonable" (quoting United States v. Fernandez, 443 F.3d 19, 27(2d Cir. 2006)).