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December 10, 2007

A quick take on winners and losers in Gall and Kimbrough

I have now had a chance to read both Gall and Kimbrough, and I am really intrigued and impressed by how much good stuff is packed into two relatively short opinions.  (Perhaps it helps that, for the first time in a major Apprendi, Blakely, Booker case, Justice Breyer does not have anything to say.  In a future post, I plan to do a Justice-by-Justice take on what these two rulings show us about the Justices.)  Let me provide a much-too-quick review of my sense of winners and losers:

Big Winners

  • All District Courts, which now should feel even more comfortable coming to their own independent judgments about the application of 3553(a) to reach what they consider to be just sentencing outcomes.
  • The US Sentencing Commission, which gets some dicta love in both opinions and now has even more cover for its likely decision to make its new crack guidelines retroactive.
  • Federal Defense lawyers, who now have many new and renewed arguments for arguing for below-guideline sentences.

Big Losers

  • Most Circuit Courts, which were chided in both opinions for not giving enough respect to either the Supreme Court's decision in Booker to make the guidelines advisory or to district court efforts to take seriously the idea that the guidelines are truly just advisory.
  • Some crack defendants sentenced within the old guidelines, who may have failed to preserve the argument that the crack/powder disparity alone provided a valid basis for a below-guideline sentence.

Win some, Lose some

  • The Department of Justice, which technically lost both of these cases, but likely can find enough helpful dicta to continue to urge most district courts to continue to impose within-guideline sentences.
  • Most Federal Defendants, who are not like Brian Gall and cannot always be confident that a sentencing judge won't use her discretion to impose a sentence above the guidelines.
  • Congress and the 2008 Campaigns, which could reasonably decide to make much, or to completely ignore, these rulings.

UPDATE:  I am pleased to see my friend Mark Osler has this post at SCOTUSblog with his own sense of winners and losers.  Here are headings from his post:

  • Winner: Parsimony Provision
  • Loser: Judicial Transparency
  • On the Horizon: Booker, Part 2?

December 10, 2007 at 01:17 PM | Permalink

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Comments

Your point about “most circuit courts” is well taken. I really can’t provide a logical explanation about why certain courts were resistant (even hostile) to Booker.

Posted by: S.cotus | Dec 10, 2007 1:21:10 PM

Prof. Berman, I'm getting off a supplemental letter today to the judge for a sentencing set for tomorrow. It's a good day for this particular client at least.

Posted by: Michael Levine | Dec 10, 2007 1:25:40 PM

Regarding your quip about Breyer: Ouch. But oh so true.

Posted by: | Dec 10, 2007 1:52:34 PM

I realize this is not as prevelant of a scenario, but doesn't Gall open up district courts to impose above-guideline sentences with more freedom? If so, the federal defense bar may not be such a clear-cut winner.

Posted by: Steve | Dec 10, 2007 2:09:15 PM

Steve - not really, at least in practice. The general pattern (at least in the Fourth Circuit) had been for above-the-Guideline sentences to be almost uniformly upheld while below-the-Guideline sentences were almost uniformly vacated. There's a whole lot more to win on the lower sentences than there is to lose on the higher ones, IMHO.

Legally, however, yes, you're right.

Posted by: JDB | Dec 10, 2007 2:12:35 PM

DOES INDIANA HAVE THE MEGAN LAW PAST?

Posted by: DOYLE | Dec 10, 2007 6:42:49 PM

Just a average schmo who saw a link on Google's news page and found your blog...

Back in the day (1984?) when mandatory sentencing guidelines first came along I was shocked that the judiciary allowed - what appeared to me - to be a major invasion of their rights and responsibilities. Congress shouldn't be practicing law any more than they should be practicing medicine (i.e., Terry Shaivo and reproductive rights.) It's interesting that a Supreme Court made up of social conservatives finally stood up and said that this power grab was invalid. (At least that's the way I'm understanding it...)

Do you see it like this?

Thanks,
Fred Dunayer
Sarasota, Florida

Posted by: Fred Dunayer | Dec 10, 2007 11:32:20 PM

I am a defense lawyer defending two below guideline sentences (probation) on appeal by the Government to the Third Circuit. Any buzz out there on whether the Government will voluntarily dismiss any of its pending appeals of such cases in light of Gall/Kimborough?

Posted by: Edmund Lyons | Dec 19, 2007 1:08:00 PM

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