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May 23, 2008

Seeking any and all reports from USSC conference

I am eager to hear reports of any kind from the Seventeenth National Annual Seminar on the Federal Sentencing Guidelines, which wrapped up today down in Florida.  I was supposed to attend/participate in this always amazing event, but life got in the way of my plans.  Consequently, I hope any readers who were able to attend might report on any notable moments from the event.

May 23, 2008 at 04:44 PM | Permalink


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I suppose the biggest "headline" from the Federal Sentencing Guidelines seminar was Judge Sutton's frank comment that federal circuit court judges are "increasingly irrelevant" to sentencing after Rita, Gall, and Kimbrough. The other circuit court judges on that panel (Hartz of the Tenth and Riley of the Eighth) acknowledged as much, but were less accepting of their new roles. Judge Riley labeled the Supreme Court's recent guidelines opinions "incoherent," and Judge Hartz sketched a theory of substantive reasonableness, tied to conformity to the policies underlying the guidelines, that would allow the circuit courts more of a role. Riley also commented that the "egos" of federal circuit court judges would create a tension in this new era. On a later panel, Judge Gibbons, who sits with Sutton on the Sixth Circuit, said she felt "marginally less irrelevant" than Judge Sutton does: There's "not much we can do to control disparity," but we can affect the "fringes" of departures and variances.

There were several statistics from the Commission staff, summarized by Judge Hinojosa that after Gall and Kimbrough, below-guidelines sentences seem to be where they were after Koon but before the PROTECT Act: with non-government-sponsored below-guidelines sentences at about 10%. Also, the Commission's statistics indicate that the average crack sentence reduction under retroactivity has been from 125 months to 103, though it was noted several times that the Commission thinks it has not received data on a rather large number of reductions (perhaps 25%).

One dispute that persisted through a few panels was how broadly to read Kimbrough. The narrow reading is that the crack guideline is "unique" (per Associate Deputy Attorney General Deborah Rhodes), because of the Commission's long-expressed opposition to the mandatory minimums on which its guideline was based; the broad view (pushed by criminal defense attorneys Amy Baron-Evans and Jim Felman) is that any guideline not based on emprical analysis or judicial input is suspect after Kimbrough. In response to this latter argument, Judge Gibbons noted that it would be "anomalous" for guidelines resulting from congressional directives to be more vulnerable than those merely based on sentencing data.

One district court judge (Robin Cauthron, W.D. Okla.) said that she and her colleagues are just now realizing the power they have in sentencing; judges who previously liked the "cover" provided by the guidelines are slowly losing that mindset. In a separate panel of district court judges, Judge Gertner tried to spur this trend ("This is a moment of great creativity in sentencing."), contrasting a limited approach (with district judges playing variations on the guidelines approach) to a more wide-ranging attitude marked by skepticism about certain guidelines (career offender, criminal history, drug quantity, and dollar loss were the ones she mentioned), comparison with sentences of other defendants and in other districts and jurisdictions, and attention to alternative sanctions. Perhaps in response, Judge Breyer (N.D. Cal.) warned that too much loose sentencing might lead to congressional enactment of more mandatory minimums. (On that theme, Judge Riley, in the appellate judges panel discussion, wondered whether Gall and Kimbrough might presage Supreme Court recognition of district court power to ignore mandatory minimums.)

Judge Merryday (M.D. Fla.) rounded out the district court judges panel with a humorous lampooning of the language in presentence reports, sentencing memoranda, and judicial opinions (for example, playing variations on the phrase "post-Booker world"). "Sentencing Law and Policy" also caught some jibes, characterized four times (though here my notes fail me, so I'm paraphrasing) as "Professor Berman's comprehensive and increasingly essential blog." The first time he said it the audience nodded, the second time the response was quizzical, the third time we laughed, and the fourth time we roared.

Posted by: Bob Batey | May 25, 2008 8:14:14 AM

Thanks, Bob, for this awesome report. I think it is sad and telling that federal district judges are still fearing the boogey-man of mandatory minimums even though we have gone 3.5 years in the Booker regime with very little kick-back from Congress through MMs.

Sounds like the judges had lots of interesting things to say and that the "post-Booker world" is still evolving and thus I will have to keep trying to keep up my comprehensive and increasingly essential blog.

Posted by: Doug B. | May 25, 2008 3:44:14 PM

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