No Error Where Distrcict Court Doesn't Know Whether Guidelines Are Still Mandatory

US v. Go: Go was a gopher in a methamphetamine distribution conspiracy. For his role in the offense - mostly running errands related to the conspiracy in return for methamphetamine - he was convicted after a jury trial of conspiracy to distribute more than 50 grams of methamphetamine. At sentencing, Go's advisory Guideline range was determined to be 188 to 235 months. Go argued for a variance down to the 10-year mandatory minimum, while the Government argued for a sentence at the bottom of the advisory Guideline range. The district court imposed a sentence of 188 months in prison.

On appeal, Go argued that the district court incorrectly concluded that it could not impose a sentence below the bottom of the advisory Guideline range without committing reversible error. At sentencing, the district court said, in part:

[The presumption of reasonableness] may mean that the guidelines are still mandatory. I don't know. But it sure sounds like when they say that they're reasonable that they're saying if a judge gives a sentence outside the guidelines, then it's per se not reasonable.

There are cases that say that it is not a proper application of the law and maybe some day the Supreme Court will decided that [see Rita, Gall, etc.]. But the point is at this moment, I'm bound to apply the guidelines as a reasonable range of punishment.

* * *

Congress has set forth a range of punishment that I have to choose from, and that range of punishment is what I said earlier, 188 to 235 months.

The Fourth Circuit rejected Go's argument, deriding his "selective" use of the record, and holding that the district court ultimately imposed the sentence it did because it was consistent with the other sentences handed out in the case. The court held that it was "clear from the sentencing record that the district court was not under the misapprehension that it could not impose a sentence outside of the advisory Guidelines range." The court also rejected Go's argument that his sentence was unreasonable.

It's worth noting that, in a footnote, the court noted that Go did not claim that the district court treated the Guidelines as presumptively reasonable and that "if the district court had done so, it would have erred." Still, it's hard to see how a district court that concludes the Guideline range is the "range of punishment that I have to choose from" set forth by Congress hasn't done just that.