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When can (and how eagerly should) circuits declare procedural problems at sentencing mere harmless error?

By Douglas A. Berman

The question in the title of this post is prompted by a new opinion today from the Fourth Circuit panel in US v. Boulware, No. 09-5125 (4th Cir. May 11, 2010) (available here).  Here are parts of the panel's ruling (with some cites removed) that got me thinking about this issue (and that also note a circuit split in this arena): Boulware next argues that the district court did not offer sufficient reasons to show that it made an individual assessment of the specific circumstances in her case in light of the relevant factors under 18 U.S.C.A. § 3553(a) (West 2000 & Supp. 2009) and the arguments presented. The government concedes that the district court committed this procedural error, but nonetheless argues that the error was harmless. We are, of course, not bound by the government?s concession, but even assuming that the court?s explanation was insufficient, we agree with the government?s assertion that any error was harmless...continue to full post

Full post as published by Sentencing Law and Policy on May 11, 2010 (boomark / email).