Booker's Impact on the Standard of Review Governing Supervised Release and Probation Revocation Sentences

Abstract

Traditionally, federal appellate courts have applied a "plainly unreasonable" standard of review to appeals of probation and supervisedrelease revocation sentences. This standard is found in 18 U.S.C. § 3742(e), which contains review standards for all federal sentences and provides that the "plainly unreasonable" standard applies specifically to sentences for which there are no Sentencing Guidelines. Because the Guidelines dealing with postrevocation sentences are, and have always been, advisory policy statements, appellate courts have almost universally determined that they should apply the "plainly unreasonable" standard to such sentences. United States v. Booker] potentially affected this standard because it made the entire Guidelines scheme advisory by severing and excising both 18 U.S.C. § 3553(b), the provision requiring district courts to apply the Guidelines in a mandatory fashion, and § 3742(e). In place of § 3742(e), Booker explained that appellate courts should apply a reasonableness standard to their review of sentencing decisions. Since Booker, several appellate courts have considered whether this new reasonableness standard supersedes the "plainly unreasonable" standard in the context of reviewing supervised release and probation revocation sentences. They have taken three different approaches. The first assumes that the old "plainly unreasonable" standard is the same as the new reasonableness standard. The second concludes that Booker's reasonableness standard is different from, and supersedes, the "plainly unreasonable" standard. The third