Sentencing Law and Policy

Thoughtful analysis of Gall

The Daily Report legal newspaper has this effective piece on Gall by Steven Sadow headlined "Gall offers options at trial: Fewer defendants will plead, as judges can depart from guidelines more often."  Here is an excerpt:

Sentencing has finally moved from the hands of the prosecutors and the harshness of the Federal Sentencing Guidelines back to the discretion of the district court judges. The federal sentencing menu options have changed, and white-collar criminal defendants can, and should, consider retaining veteran trial lawyers. Attorneys who fit this mold have real experience defending criminal cases in the courtroom, will not be dissuaded to go to trial when the facts and legal issues demand it and will not settle out of fear of a presumed harsher guideline sentence.

Examining some circuits' unreasonable efforts at reasonable review

A helpful reader called my attention to a new federal sentencing note (which will appear in the William & Mary Law Review this fall) now available here via SSRN.  The note critically examines the effects of Rita and Gall in the Sixth and Tenth Circuits; here is the abstract:

Paul Sedore pleaded guilty to two counts for defrauding the Internal Revenue Service, conspiracy to defraud the IRS and identity theft. Based only on the facts that Sedore admitted in his guilty plea and his criminal history, the Federal Sentencing Guidelines would have recommended 12 to 18 months in prison.  But based on the facts that the sentencing judge found, by a preponderance of the evidence, which Sedore did not admit and the jury did not find beyond a reasonable doubt, the Guidelines advised a range of 84 to 105 months.  The court sentenced Sedore to 84 months. Had another judge sentenced Sedore to 84 months without finding those additional facts, the court of appeals would likely reverse this hypothetical sentence as unreasonable.

The Sentencing Guidelines are hardly as advisory as the Supreme Court imagines.  In United States v. Booker, the Supreme Court tried and failed to establish an appellate standard of review of sentences that both promotes uniformity and does not violate the Sixth Amendment right to a jury trial.  In Rita v. United States and Gall v. United States, the Court considered mechanisms that federal appellate courts use to enforce the Sentencing Guidelines, the presumption of reasonableness and proportionality review.  As in Booker, the Court tried and failed to rein in the courts' infringements on the jury trial right.  By closely examining the Sixth and Tenth Circuits, this Note demonstrates how the combination of the presumption of reasonableness, the double standard of procedural reasonableness, and proportionality review still violate the Sixth Amendment.  Short of Congressional overhaul, this Note argues that the Supreme Court should solve its inherently flawed Booker remedy by prohibiting substantive reasonableness review and requiring uniform sentencing explanations from district courts.

Eighth Circuit affirms large above-guideline sentence

The Eighth Circuit today in US v. Austad, No. 07-1376 (8th Cir. Mar. 5, 2008) (available here), affirms an above-guideline sentence with heavy reliance on Gall.  Here is the start and end:

Christopher Austad (Austad) pled guilty to mailing threatening communications in violation of 18 U.S.C. § 876(c).  After calculating a sentencing Guidelines range of 37 to 46 months imprisonment, the district court sentenced Austad to 84 months imprisonment.  Austad appeals, arguing the sentence is unreasonable, and that the district court failed to consider Austad’s history and circumstances. We affirm....

As the Supreme Court reminds us [in Gall], “[t]he sentencing judge is in a superior position to find facts and judge their import under § 3553(a) in the individual case.  The judge sees and hears the evidence, makes credibility determinations, has full knowledge of the facts and gains insights not conveyed by the record.” id. (citation omitted).  Given these considerations, we cannot say the district court abused its discretion in sentencing Austad.  Even if Austad’s sentence were considered “unusually harsh,” the district court explained the sentence with “sufficient justifications.”  See id. at 594.

Two important (but unpublished!?!) defendant wins in the Eighth Circuit

I am not sure what bother me more: the fact that federal defendants rarely prevail in sentencing appeals or the fact that when they do some circuit seem eager to suggest these rulings are inconsequential by deciding they should be "unpublished."  Two rulings from the Eighth Circuit today, as reported on its official opinion page, get more worked up on this topic today.  Here are the unofficial summaries:

US v. McDonald, No. 05-1617 (8th Cir. Mar. 4, 2008) (available here):

[UNPUBLISHED] [Per Curiam - Before Bye, Beam and Gruender, Circuit Judges]:  On remand from the Supreme Court for reconsideration under Gall v. U.S.  Under the more deferential abuse-of- discretion review outlined in Gall, the district court did not abuse its discretion in sentencing defendant to 132 months, and the sentence is affirmed.

US v. Weston, No. 07-1048 (8th Cir. Mar. 4, 2008) (available here):

[UNPUBLISHED] [Per Curiam - Before Bye, Smith and Benton, Circuit Judges]: District court erred in applying the presumption of reasonableness; this error is now plain, and the record shows a reasonable probability that defendant would have received a lesser sentence but for the error; case remanded for resentencing.

When might the USSC have some post-Gall/Kimbrough data to share?

It has now been more than two full months since the Supreme Court decisions in Gall and Kimbrough, and I am really wondering if these rulings have had a significant impact on district court sentencing outcomes.  From various conversations and news reports (and early judicial scholarship), Gall and Kimbrough have been viewed as dramatically important statements of the scope of post-Booker discretion that district judges now possess.  But the proof is in the data, and the US Sentencing Commission has not released any post-Gall/Kimbrough data (even though probably more than 10,000 sentences have now been imposed since Gall and Kimbrough came down).

I do not fault the USSC on this data front; the Commission has surely been busy dealing with crack retroactivity issues and other matters.  But, as regular readers know, I sure like my sentencing data, and I am starting to get an itch for up-to-date data concerning the latest sentencing work from the federal district courts.

A loooong Eleventh Circuit opinion reversing below-guideline sentence

Though I doubt it will be quite as exciting as either the Lost season premire or the Democrats playing one-on-one, part of my evening plans now include readind the Eleventh Circuit's new 50-page(!) opinion addressing reasonableness review in US v. Pugh, No. No. 07-10183 (11th Cir. Jan 31, 2008) (available here). Here is how the long opinion starts:

This appeal tests the nature and extent of appellate review over sentencing under the new regime of advisory Sentencing Guidelines.  After thorough review, we are constrained to conclude that even under the most recent Supreme Court precedent, affording substantial deference to the district court’s sentencing determinations, the district court abused its discretion by imposing a probationary sentence on the defendant in this case.

Here, the government appealed from the non-custodial sentence of defendant Bruce Clayton Pugh (“Pugh”), who downloaded on his computer over a period of several years at least 68 images of child pornography, as well as videos of an adult male raping an infant girl and of a young girl performing oral sex on an adult male.  The advisory Sentencing Guidelines range recommended for the offense to which Pugh pled guilty -- knowing possession of images of child pornography that were mailed, shipped or transported by computer in violation of 18 U.S.C. §§ 2252A(a)(5)(B) and 2256(8)(A) -- was 97 to 120 months’ imprisonment.  The district court nevertheless sentenced Pugh to a five-year probationary term. In so doing, the district court relied heavily on Pugh’s history, characteristics and motive in imposing a non-custodial sentence for a crime that fell on the high end of the Guidelines sentencing table. But in our view, the district court did not provide a sufficiently compelling justification to support the degree of its variance, nor did it give any apparent weight to many other important statutory factors embodied by Congress in 18 U.S.C. § 3553(a) that must be considered at sentencing.  As we see it, this probationary sentence utterly failed to adequately promote general deterrence, reflect the seriousness of Pugh’s offense, show respect for the law, or address in any way the relevant Guidelines policy statements and directives.  Accordingly, we hold that this sentence is unreasonable, and therefore vacate and remand so that the district court can re-calculate the defendant’s sentence.

Explaining more fully my concern about the Eleventh Circuit's work in Ramirez

A number of commentors are concerned about my quick critique of the Eleventh Circuit work in US v. Ramirez, No. 07-13060 (11th Cir. Jan. 23, 2008) (available here).  Ramirez affirms an above-guideline sentence by relying heavily on Gall. 

One (unnamed) commentor assails me for a a lack of "objectivity" because I critique this affirmance of an above-guideline sentence but often praise affirmances of below-guidelines sentences.  This commentor encourages me to "Show some balance, or at least the illusion of balance!"  Up for justified challenge, let me explain in more "objective" detail the range of concerns I have with the Ramirez decision.

First, as a matter of questionable procedure, why is this Ramirez ruling issued as an unpublished decision without the defendant getting an opportunity for oral argument?  As written, the Ramirez ruling implies that Gall overrules at least three prior (post-Booker) Eleventh Circuit published opinions.  If this is what Ramirez means, shouldn't this opinion have been published? 

Second, as a matter of sloppy style, the Ramirez opinion devotes more than five full pages to reciting (applicable?) post-Booker precedents, but has only a few sentences discussing the case facts.  Here, in toto, is what the opinion informs the reader about the facts of the case under review:

Luis Ramirez [was convicted of] larceny of personal property, in violation of 18 U.S.C. §§ 661 and 2. Ramirez’s guideline range was 8-12 months, but the district court sentenced him to the statutory maximum of 60 months imprisonment.  Ramirez argues on appeal that the district court ... overemphasi[zed] his criminal history, [and] failed to consider the $1,000 loss amount, and ... nullified the two-level decrease he received for acceptance of responsibility.

So, all we know from the Ramirez opinion is that a defendant with an long criminal history stole $1000 of personal property and received the statutory maximum sentence after accepting responsibility.  We don't know what his true guideline range was because, as the USSC sentencing table shows, there is no guideline range of 8-12 months.  The actually range must have been either 8-14 months or 6-12 months (and I am guessing the latter).

Third, as a matter of suspect substance, the Ramirez opinion notes that, in a recent Valdes ruling, 500 F.3d 1291 (11th Cir. 2007), the Eleventh Circuit "vacated Valdes’s sentence and remanded to the district court because it was unclear whether the court was departing upwardly under U.S.S.G. § 4A1.3 or whether the court was applying a variance based on the 18 U.S.C. § 3553(a) factors, and, therefore, the record was 'insufficient to permit the affirmance of the sentence.'"  Valdes seems to be exactly on point to justify a remand here.  However, without explaining whether Valdes has been overruled by Gall or is distinguishable, the Ramirez opinion affirms simply because "the district court properly calculated the advisory guideline range, considered the relevant § 3553(a) factors, articulated its reasons in open court, considered Ramirez’s arguments, and had a reasoned basis for its decision."

Finally, as a matter of dubious doctrine, the Ramirez opinion cites Rita, but that SCOTUS ruling makes clear that circuit courts must do more than police just the procedural reasonableness of sentencing decision-making.  Though Justice Scalia advocated review only of procedural reasonableness in his concurrence, the Rita majority made very clear that substantive reasonableness review was important:

In sentencing, as in other areas, district judges at times make mistakes that are substantive.  At times, they will impose sentences that are unreasonable.  Circuit courts exist to correct such mistakes when they occur.

Despite all these problems with the Ramirez opinion, I am still not prepared to call the outcome wrong until I know more about the underlying facts.  But all the points above raise a lot of red flags.  That's why in my original post I stated that I have a "concern" about the "troubling" Ramirez ruling because the "panel seems to essentially abdicate its responsibility to assess the substantive reasonableness of a stat-max sentence when the defendant had viable arguments that his sentence was far greater than necessary in light of all the 3553(a) consideration." 

As for my "objectivity" and "balance," I do not think I have ever hidden my view (bias?) that many federal prison sentences for non-violent crimes seem too long in light of Congressional purposes.  At least seven SCOTUS Justices seemed to ratify that view through the rulings in Gall and Kimbrough.  Meanwhile, I have also indicated my view (bias?) that many federal and state sentences for violent crimes seem too short.  Because Ramirez apparently involves a non-violent crime, I am especially curious about what facts justified a stat max sentence, and I really wish the Eleventh Circuit had done a more effective job assessing and explaining why that state max sentence was substantively reasonable.

An intoxicating way to celebrate the Gall ruling

Long-time readers with great memories may recall an entertaining opinion written in right after Booker by US District Judge Richard Kopf.  In this opinion, as detailed here, Judge Kopf promised to buy a beer for judicial colleagues who took a different view of Booker if Judge Kopf's view turned out to be wrong.   As explained here, after the Supreme Court's ruling in Gall, Judge Kopf concluded not only that he owed his judicial colleagues a beer, but also that he owed me one, too. 

Though I did not think Judge Kopf owed me anything, I was not about to refuse a beer from a federal judge. (According to a little known Czech legend, the deity Radegast, who is the god of mutuality and is said to have invented beer, ensures that a lawyer will have his motions denied for a full year after he refuses a beer from a judge.)

But, as I wondered how Judge Kopf might "pay up," never did I expect what arrived in my office today: a huge box shipped from from Bucket O' Brew.  As the picture above reveals, Judge Kopf selected the Northwest Bucket (see UPDATE) for my imbibing pleasure (and just in time for a long weekend with lots of great sports to watch).  As the picture above shows, Judge Kopf sent me a total of six beers, which means I have an extra beer to share with almost every member of the Gall majority. (I have a feeling that Justice Souter is not much of a beer drinker, but that I might need to keep the fridge full for the likes of Justices Scalia and Ginsburg when they get together to party). 

To reinforce what a great sense of humor Judge Kopf has, check out the shipping label that Judge Kopf engineered.  If you click on the second picture here, you should be able to see that my last name is misspelled as "Beerman."   To paraphrase one of my favorite philosophers, "Mmmmm, Beer-man."

UPDATE:  I was pleased to discover, after getting home and unpacking my brew bucket, that Judge Kopf had in fact sent me the Party Barge.  This smooth-sailing barge includes a full dozen beers, which means that I have a brewski for every member of the Court and even a few extra for Justices Alito (who perhaps can start to understand the hidden genius of both Booker opinions if he gets a little sloshed).  I wonder what drinking games the Justices like to play at their parties.

Sixth Circuit affirms above-guideline sentence based on Gall

More proof that the Gall decision will not always benefit defendants comes today in US v. Klups, No. 06-1931 (6th Cir. Jan. 10, 2008) (available here), which affirms an above-guidelines sentence by relying heavily on Gall.  Here is how the opinion ends (some cites tweaked):

Klups argues that because his sentence is “twice the high end of the advisory Guideline range” the district judge had to offer a “compelling justification” for the sentence. Prior to the Supreme Court’s opinion in Gall, we held “that the farther the sentencing court varies from the guidelines range one way or another, the more compelling the justification for that variance must be.”  United States v. Funk, 477 F.3d 421, 426 (6th Cir. 2007).  The majority opinion in Gall, however, “reject[ed] . . . an appellate rule that requires ‘extraordinary’ circumstances to justify a sentence outside the Guidelines range . . . [as well as] the use of a rigid mathematical formula that uses the percentage of a departure as the standard for determining the strength of the justifications required for a specific sentence.” 128 S. Ct. at 595.  The Court in Gall explained “why the Court of Appeals’ rule requiring ‘proportional’ justifications for departures from the Guidelines range is not consistent with our remedial opinion in United States v. Booker, 543 U.S. 220 (2005).”  Id. at 594. Certainly, in considering the § 3553(a) factors in the course of determining “that an outside-Guidelines sentence is warranted,” the district judge “must consider the extent of the deviation and ensure that the justification is sufficiently compelling to support the degree of the variance.”  Id. at 597.  Gall, however, further clarified the distinction between the role of the district courts and that of the courts of appeals.  After Gall, “we no longer apply a form of proportionality review to outside-Guidelines sentences” ... United States v. Bolds, No. 07-5602, 2007 WL 4440403, at *10 (6th Cir. 2007).  We conclude, in the words of the Supreme Court in Gall, that “[o]n abuse of discretion review, [we give] due deference to the [d]istrict [c]ourt’s reasoned and reasonable decision that the § 3553(a) factors, on the whole, justified the sentence.” Gall, 128 S. Ct. at 602.

Effective review of Gall and Kimbrough basics

I was pleased to receive and now post en effective basic summary of the Supreme Court's work in Gall and Kimbrough. Here is the e-mail I received describing the effort:

Attached is a Summary by David Debold from Gibson, Dunn & Crutcher LLP Entitled: “Two Supreme Court Decisions in December 2007 Highlight the Advisory Nature of the Federal Sentencing Guidelines”.  David Debold is the Editor of the Criminal Justice Section Publication Practice Under the Federal Sentencing Guidelines, click Practice Under the Federal Sentencing Guidelines for information on the publication.

Download aba_treatise_gall_and_kimbrough_supp.doc

Eighth Circuit relies on Gall to affirm significant upward variance

As I have noted before, the fact that Gall seemed to loosen the stardards for appellate review of variances will not always benefit defendants. Proof comes today from the Eighth Circuit, which today in US v. Braggs, No. 07-1148 (8th Cir. Jan. 7, 2007) (available here), affirms an above-guidelines sentence by relying heavily on Gall. Here is how the opinion starts:

Keisha Braggs pled guilty to fraudulent use of an unauthorized access device, which carries a maximum term of 10 years of imprisonment. 18 U.S.C. § 1029(a)(2). Although the Sentencing Guidelines recommended a sentence of 15 to 21 months, the district court imposed a sentence of 48 months.  Braggs challenges her sentence as unreasonable.  Guided by the Supreme Court’s decision in Gall v. United States, 552 U.S. ___, No. 06-7949 (Dec. 10, 2007), we affirm.

Some related post on post-Gall circuit decisions:

• Fourth Circuit affirms below-guideline sentence in first big post-Gall ruling
• Split Eleventh Circuit affirms below-guideline sentence in another post-Gall ruling
• Sixth Circuit affirms two above-guideline sentences

Lots of Gall and Kimbrough GVRs this morning from SCOTUS

The first 17 pages of this new order list released by the Supreme Court this morning are taken up a whole big bunch of Gall and Kimbrough GVRs — which means the Supreme Court Granted the petition for review, and then Vacated the circuit court's decision below, and then Remanded the case for further consideration by lower courts in light of the decisions in Gall and Kimbrough.

I quickly counted about 75 GVRs in those pages and same the names of many of the defendants in some of the better-known crack/powder circuit cases — e.g., Pho from the First Circuit, Eura from the Fourth Circuit, Jointer from the Seventh Circuit, Spears from the Eighth Circuit.  These GVRs are not that surprising, but how the circuit courts deal with all these cases they got wrong the first time will be interesting to watch.

Relatedly, I would be grateful if readers could spotlight in the comments any other notable cases appearing on — or missing from — this long GVR list.

A circuit's struggles after Gall and Kimbrough

Writing in the Fulton County Daily Report, Alyson Palmer has this long article headlined "11th Circuit Wrestles With Sentencing: Panels split in upholding sentences in child pornography and bribery cases that fell below sentencing guidelines."  Here are excerpts from the start of the piece:

To many, the justices from the U.S. Supreme Court last month sent a simple message to appeals courts around the country: When reviewing the sentencing decisions of trial judges, back off.

But last week a judge on the 11th U.S. Circuit Court of Appeals signaled that he's not rolling over. Judge Joel F. Dubina's response to the high court came in a case in which federal prosecutors in Florida had challenged as too lenient a seven-year sentence for a distributor of child pornography. The sentence was more than five years under the sentencing range outlined in the federal sentencing guidelines, but over Dubina's dissent, two other judges affirmed the seven-year term.

That decision appears to follow the deferential approach adopted by the high court in a pair of major sentencing decisions issued Dec. 10, Gall v. United States, 128 S.Ct. 586, and Kimbrough v. United States, 128 S.Ct. 558.... While it didn't cite Gall specifically, another dissent issued this week, in the long-running bribery case of two men convicted over a Fulton County, Ga., bond deal, also demonstrated that the 11th Circuit is wrestling with sentences. In that case, Judge Edward Carnes was on the losing end of a 2-1 vote that affirmed the sentences of Michael deVegter and Richard P. Poirier Jr., which prosecutors argued were too short.

Split Eleventh Circuit affirms below-guideline sentence in another post-Gall ruling

When it rains, it pours (at least when it comes to reasonableness review on a Friday afternoon).  Not long after I saw the Fourth Circuit's Pauley decision upholding a below-guideline sentence as reasonable, I discovered a similar (though split) Eleventh Circuit ruling in US v. McBride, No. 06-16544 (11th Cir. Dec. 28, 2007) (available here).  Here is how the majority opinion in McBride begins:

In this child pornography case, the government appeals Robert McBride (“Defendant”)’s 84-months’ sentence on the grounds that the district court committed clear error in weighing the § 3553(a) factors and imposed an unreasonable sentence.  Because the district court did not commit a clear error in judgment in imposing the sentence, we affirm the sentence.

Here are snippets of the dissent in McBride:

Though I agree with the majority that the district court followed the proper procedures in calculating the Guidelines range and considering the 18 U.S.C. § 3553(a) factors, I disagree with the majority’s conclusion that the sentence imposed is substantively reasonable, and thus, I respectfully dissent....

Though the district court gave lip-service to other § 3553(a) factors, the district court’s downward departure was based largely, if not solely, on the defendant’s childhood, which it deemed to be one of the worst it had ever seen.  Some reduction might have been appropriate based on the defendant’s childhood, but a downward departure of almost 50% from the bottom of the Guidelines range was unreasonable when the other § 3553(a) factors, such as reflecting the seriousness of the offense, the need for deterrence, and the need to protect the public, all support a more lengthy term of incarceration than the one given.

Fourth Circuit affirms below-guideline sentence in first big post-Gall ruling

A decision just released by the Fourth Circuit today in US v. Pauley, No. 07-4270 (4th Cir. Dec. 28, 2007) (available here), suggests that at least one circuit got the back-off message that the Supreme Court seemed eager to send to the courts of appeals in Gall and Kimbrough.  Here is the opening paragraph in Pauley:

Larry Pauley pled guilty to one count of possessing photographs that contained images of child pornography, 18 U.S.C. § 2252A(a)(5)(B). At sentencing, the district court determined that Pauley’s Guidelines range was 78 to 97 months’ imprisonment. After considering this range in conjunction with the factors set forth in 18 U.S.C. § 3553(a), the district court sentenced Pauley to forty-two months’ imprisonment.  Finding no abuse of discretion, we affirm the sentence imposed by the district court.

The decision goes on to discuss sentencing review and Gall at some length.  And this passage discussing the particulars of the district court's sentencing decision provides a sense of the overall tone of the opinion:

In its consideration of the § 3553(a) factors, the district court correctly found in the exercise of its discretion that other facts warranted a sentence lower than that recommended by the Guidelines range. The district court found that Pauley warranted a lower sentence because he was deeply remorseful and, besides the criminal conduct at issue, he was a good father and teacher.  Such considerations were appropriate because they are directly tied to § 3553(a)(1)’s directive that the court consider the history and characteristics of the defendant.  18 U.S.C. § 3553(a)(1).  The district court also found that Pauley warranted a lower sentence because he lost his teaching certificate and his state pension as a result of his conduct. Consideration of these facts is consistent with § 3553(a)’s directive that the sentence reflect the need for "just punishment," id. § 3553(a)(2)(A), and "adequate deterrence," id. § 3553(a)(2)(B).  The district court further explained that a lower sentence would allow Pauley to be rehabilitated through the counseling he will receive during incarceration, and the court noted that a lifetime of supervised release would reduce the risk of Pauley becoming a repeat offender and would deter him from future criminal conduct.  These are also valid considerations under § 3553(a).  In sum, considering all of the factors that the district court viewed as mitigating in their totality, we hold that the thirty-six month downward variance was supported by the justifications necessary to uphold the sentence.

Disparities, trial penalty and Gall in Skilling reply brief

Thanks to this post at White Collar Crime Prof Blog, I was able to access the 162-page reply brief(!) filed by Jeff Skilling's legal team in his Fifth Circuit appeal.  The sentencing arguments begin on page 143, and these disparity arguments are developed starting at page 152:

Skilling’s 24.3-year sentence reflects a profound and unwarranted disparity compared to the (1) uniformly below-Guidelines sentences imposed on eight even more culpable high-ranking executives from major corporations; and (2) the 5.5 year sentence imposed on co-defendant Richard Causey.

In developing point (2), the reply brief makes these points (with some cites omitted) about the relevance of co-defendant disparity:

The [Enron] Task Force says the district court was prohibited from considering the sentence imposed on former Enron CAO Richard Causey because the Guidelines and sentencing statutes concern “nationwide” disparities rather than those among co-defendants.  This is not the law.  This Circuit has long recognized the district court’s ability to consider co-defendants’ sentences.  Similarly, in the post-Booker, advisory-Guidelines regime, courts regularly consider the sentences imposed on co-defendants. Indeed, just this month, the Supreme Court expressly approved of a sentencing court’s giving “specific attention to the issue of disparity when [it] inquired about the sentences already imposed by a different judge on two…co-defendants.”  Gall, slip op. at 9....

There is no rational and lawful basis for the 19-year disparity between Causey and Skilling’s sentences. The only ground offered by the district court [Skilling’s decision to exercise his right to trial] was contrary to the Constitution.

Though the Fifth Circuit might not reach sentencing issues in the Skilling appeal, this case is worth watching closely if they do because these kinds of disparity arguments seem especially important in the wake of Rita, Gall and Kimbrough.

Sixth Circuit affirms two above-guideline sentences

As many have noted, giving district courts broader discretion to go outside the guidelines will not always benefit defendants.  Proof of this comes from the Sixth Circuit's pudding of criminal rulings today, in which these two decisions affirm above-guideline sentences:

• US v. Lane, No. 07-5129 (6th Cir. Dec. 20, 2007) (available here)

• US v. Bolds, No. 07-5062 (6th Cir. Dec. 20, 2007) (available here)

Drugged commentary on the sentencing week that was

Over at FindLaw, Mark Allenbaugh has this new piece titled "A Positive Development in All the Sentencing Insanity: How The Supreme Court and the U.S. Sentencing Commission Have Begun to Correct the Damage Done by the War on Drugs." Here is how it starts:

Since the Nixon Administration, our nation has been engaging in a relentless, yet futile War on Drugs — not on crime, but specifically on drugs.  This war has not only been costly, but also done virtually nothing to stem the influx of drugs into our nation or Americans' drug use.  In fact, some have argued that the War on Drugs has actually created incentives for illicit drug manufacturers to develop new products such as methamphetamine and Ecstasy, as well as to develop better and more efficient distribution channels through Mexico, and perhaps even China.

And yet, despite clear indications that we long ago lost this war (at least as defined by the ways we are fighting it and the rhetoric we use), we mindlessly continue along the same path.

But despite all this despairing history, there now is a glimmer of hope for more sane drug sentencing — in the form of two December 10 decisions from the Supreme Court.

I do not view last week's amazing federal sentencing events as anything close to a referendum or even a significant turning point on the "war on drugs."  That said, I do not think it is coincidental or inconsequential that Gall and Kimbrough involved drug offenses.  And, as Mark's commentary notes at the end on this commentary, the critical question going forward is "What Will Congress Do?".

AFDA webcast on lastest federal sentencing developments

As detailed on this page, Gregory Nicolaysen, the founder of the Association of Federal Defense Attorneys (AFDA), has organized another of his great audio webcast for this Wednesday (December 19) at 12noon ET to allow me to discuss Kimbrough, Gall, the new crack guidelines and related federal sentencing happenings  and its possible aftermath. 

Unlike other groups seeking big bucks for webcasts, the AFDA usually only charges a nominal fee and the Greg has made this webcast free for everyone.  The webcast will be an informal interview conducted over live streaming audio, with accompanying text posted to a viewing screen and links to PDF files containing materials relevant to the topics discussed. To attend this webcast, simply:

• Go to the AFDA home page and put your cursor on the Audio Webcast bar, then...
• In the drop-down menu that appears, select "Attend A Webcast," then...
• Enter the following: Username: AFDA (all caps; case-sensitive); Password: 121907

Though I plan primarily to recap and expand upon some commentary already appearing here, I'd be grateful if readers might use the comments to note any issues that seem particular important for me to cover during this webcast.

A Gall sighting (or citing?) in the Sixth Circuit

I think the Sixth Circuit wins the award for being the first federal appeals court to issue a published reasonableness decision incorporating the Supreme Court's work in Gall into its discussion.  In US v. Lalonde, No. 06-4536 (6th Cir. Dec. 12, 2007) (available here), a panel affirms a within-guideline sentence and starts its sentencing discussion with these Gall goodies:

Post-Booker, the Sentencing Guidelines are no longer mandatory, United States v. Booker, 543 U.S. 220, 260-61 (2005), and “the ‘range of choice dictated by the facts of the case’ is significantly broadened.” United States v. Gall, 552 U.S. --, No. 06-7949, Slip Op. at 20 (Dec. 10, 2007).  However, the Sentencing Act, 18 U.S.C. § 3553(a), “nonetheless requires judges to take account of the Guidelines together with other sentencing goals” when fashioning a defendant’s sentence. Booker, 543 U.S. at 261 (emphasis added). As the Supreme Court just recently clarified in Gall, “the Guidelines should be the starting point and the initial benchmark” in determining a sentence and “a district court should begin all sentencing proceedings by correctly calculating the applicable Guidelines range.” Slip Op. at 11 (emphasis added); accord United States v. Gale, 468 F.3d 929, 934 (6th Cir. 2006) (Post-Booker, “the district court must still consider the Guidelines in fashioning a defendant’s sentence, and must construe them correctly in doing so.”).

On appeal, we must ensure that the district court properly calculated the advisory Guidelines range as part of its overall consideration of the § 3553(a) factors. See Gall, Slip Op. at 12 (directing appellate courts to “ensure that the district court committed no significant procedural error, such as failing to calculate (or improperly calculating) the Guidelines range”).

Eighth Circuit needs no Gall to affirm above-guideline sentence

As many folks recognize, the pro-discretion ruling in Gall does not ensure lighter sentences for everyone: Gall seems to give district courts even more discretion to sentence above the guidelines and should lead circuit courts to review these decisions more deferentially.  However, a decision handed down this morning by the Eighth Circuit in US v. Jones, No. 07-1212 (8th Cir. Dec. 11, 2007) (available here), highlights that district and circuit courts really did not need Gall to feel comfortable imposing and approving above-guideline sentences. 

In Jones, the district court relied on the defendant's misconduct in jail while awaiting sentencing to add nearly 1.5 years of additional imprisonment to his suggested guideline sentence.  The Eighth Circuit panel in Jones, not surprisingly, finds a way to uphold this enhanced sentence despite a thin sentencing record that it has previously found insufficient to support reduced sentences.  This Jones opinion was likely completed last week; it does not mention Gall, though Jones now seems sounder in the wake of the Supreme Court's repeated assertion that reasonableness review should be highly deferential.

The weighty guidelines question after Gall

I have now re-read the Supreme Court's work in Gall, and I am intrigued by a weighty question left unaddressed by the majority opinion — namely, how much weight can and should the guidelines be given in a post-Booker advisory sentencing system. 

After Booker, many lower courts tried out various terms to define the amount of weight to be given to advisory guidelines — ranging from "heavy" to "substantial" to "considerable" — although the nomenclature seemed more important as an attitude than as a concrete standard.  Notably, the majority opinion in Gall does not directly address this issue.  Intriguingly, the Gall majority says "the Guidelines are only one of the factors to consider when imposing sentence," Gall slip op. at 20-21, but earlier it indicated that "district courts must begin their analysis with the Guidelines and remain cognizant of them throughout the sentencing process." Id. at 11 n.6.

Intriguingly, Justice Alito's solo dissent is focused on weight issues.  He repeatedly asserts his view that the Booker remedy should be interpreted to mean that "sentencing judges must still give some significant weight to the Guidelines sentencing range."  Slip op. at 8.  But the fact that he is writing alone — and does not get the vote of any Justices who joined the Booker remedy, not even Justice Breyer who is such a guideline fan — suggests that all the other Justices do not think that the guidelines must be given "some significant" weight.  That said, as Justice Alito stresses in the final footnote of his dissent, it does seem that the Court still believes the guidelines must be given "some weight."

In short, after Booker, it seems that federal sentencing does not require giving "some significant weight" to the advisory guidelines, and yet giving them "some weight" is still required.  Got that district judges?

Judicial reactions, formal and informal, to Gall and Kimbrough

As detailed in this Los Angeles Times piece, headlined "To some jurists, high court ruling brings vindication," federal sentencing judges long troubled by the rigidity and severity of the federal guidelines are sure to celebrate the Supreme Court's work yesterday in Gall and Kimbrough.  Here is the start of the article:

To judges and others who long battled strict federal sentencing rules for crack cocaine offenders -- considered draconian and racist by longtime opponents -- Monday's Supreme Court decision brought vindication.  "I am delighted," said veteran Los Angeles federal Judge Terry J. Hatter Jr., who for more than 20 years has publicly assailed federal sentencing laws as ill-conceived and unfairly targeted toward minorities. "This brings some justice back to our justice system," the 74-year-old jurist added.

The article also reminded me that some circuits have still pending some major en banc cases dealing with various post-Booker issues that now may look different after Gall and Kimbrough (e.g., the Sixth Circuit has yet to decide Vonner and the Ninth Circuit still has Zavala and Carty to resolve). 

More generally, as Michael O'Hear and Carissa Hessick have rightly stressed in posts at SCOTUSblog, there is plenty of dicta in Gall and Kimbrough to allow, in Hessick's words, "those appellate courts that have clung to the Guidelines in the wake of the Court's decision in Booker to continue to do so."

In sum, then, as was true after Booker and Rita, how lower courts formally and informally react and construct an understanding of Gall and Kimbrough will determine whether the decision marks a significant turning point, or just a relatively minor tweak, in the post-Booker federal sentencing universe.

All the sentencing discretion that's fit to analyze

Effectively covering the Supreme Court's work in Gall and Kimbrough, the New York Times has these two strong pieces:

• From Linda Greenhouse here, "Court Restores Sentencing Powers of Federal Judges"

• From Adam Liptak here, "Given the Latitude to Show Leniency, Judges May Not"

Both article astutely note that another big federal sentencing story may break Tuesday afternoon.  As Liptak's piece explains:

Indeed, this week's sentencing decision most likely to have the broadest short-term impact is not on the Supreme Court’s docket.  On Tuesday, the United States Sentencing Commission is set to decide whether more than 19,000 federal prisoners convicted on charges involving crack cocaine should be eligible for re-sentencing based on amendments to the guidelines that became effective last month. The amendments reduced the disparity between sentences for crack and powder cocaine.

A manic Monday recap, and a dinner break

I predicted over the weekend that this could be quite the sentencing day, and it sure has not disappointed.  Of course, the strong statements by a strong majority of the Supreme Court in Gall and Kimbrough is the most consequential news (and How Appealing collects early media coverage here).  But I suspect non-lawyers will ultimately end up spending more time talking about the federal sentences given today to Michael Vick and Conrad Black.  Whatever your interest, as I head out to a needed dinner break, here is a review of my posts covering manic Monday (many of which have great reader comments):

SCOTUS RULINGS IN GALL AND KIMBROUGH

• SCOTUS rules for the defendants in Gall and Kimbrough!!
• The start of the majority opinion in Gall
• The start of the majority opinion in Kimbrough
• A quick take on winners and losers in Gall and Kimbrough
• A quick Justice-by-Justice review of Gall and Kimbrough
• FSG are truly advisory (even in crack cases), but what about....

OTHER NOTABLE SENTENCING NEWS

• Michael Vick gets 23 months in prison
• Conrad Black gets 78 months (after a favorable guideline ruling)
• Scooter Libby drops appeal ... is a holiday pardon on the way?
• SCOTUS also rules for the defendant in Watson

As we reflect on all these developments, it is worth spotlighting that both Michael Vick and Conrad Black ended up getting within-guideline sentences.  This is a useful reminder that, even now after the Supreme Court has clarified in Gall and Kimbrough that the federal guidelines are really, truly, yes-we-really-mean-it advisory, lots of sentencing judges are still going to be following the guidelines advice.

A quick Justice-by-Justice review in Gall and Kimbrough

There is so much to say about the substance of the rulings in Gall and Kimbrough (basics here), and I will likely need a few days to unpack all the important particulars.  Here I want to do a quick Justice-by-Justice review what we see in Gall and Kimbrough, in part because I think it could foreshadow the Court's work on any number of future sentencing issues.  So here goes:

Justice Ginsburg, the author of Kimbrough, reveals yet again that she only agreed to the Breyerian Booker remedy on the theory that the guidelines would be truly advisory.  Throughout her opinion she emphasizes a number of key facets of a truly advisory guideline system that should help ensure district courts appreciate how much discretionary sentencing authority they now have.

Justice Stevens, the author of Gall, reveals yet again that he can give the defense bar lots of great dicta.  His Rita concurrence was full of potent dicta, and many aspects of the Gall ruling support arguments of stressed by defense attorneys (e.g., the seriousness of supervised release and probation terms; the importance of co-defendant disparity under 3553(a)(6)).

Chief Justice Roberts and Justices Breyer and Kennedy, the three Justices who do not bark at all but join both majority opinions, reveal general disinterest and/or general exhaustion.  As was true with his vote in Cunningham, CJ Roberts seems more interested in harmony and stare decisis than in grinding and particular sentencing ax.  As shown by their opinions in Rita and Cunningham, Justices Breyer and Kennedy seem most concerned that guidelines, the Commission, and judicial power remain vibrant even in Apprendi-land, and Justice Breyer likely got both Justices Stevens and Ginsburg to add a bit of dicta to that end in Gall and Kimbrough.

Justice Scalia, the author of brief concurrences in both Gall and Kimbrough, continues to emphasize his concern with sentencing procedures and the Sixth Amendment.  Especially for issues like acquitted conduct enhancements, it is nice to see Justice Scalia continue to stress the viability of "as-applied constitutional challneges to sentences."

Justices Souter and Thomas, both of whom write separately to show they are still mad at Ginsburg for following the Breyer pied piper down the road of advisory guidelines, express their aggravation for the tangled web that the Booker remedy has weaved.  Ever the genteel New Englander, Justice Souter makes a simple call to Congress to get back to mandatory guidelines that respect the Sixth Amendment; ever the grumpy Gus, Justice Thomas makes an impassioned statement that, because the post-Booker jurisprudence has become so lawless, he's just not going to take it anymore.

Justices Alito, who authors the only real substantive dissent in either case, shows that his pro-prosecution instincts are stronger than his allegiance to statutory text.  Nowhere is his dissent does he address the parsimony mandate of 3553(a), even though he concedes that a reasonable jurist "could conclude that a sentence of probation [for Brian Gall] was sufficient in this case to serve the purposes of punishment set out" in 3553(a)(2).   

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?

The start of the majority opinion in Gall

Though the Kimbrough decision may garner more attention because of the historical controversies over crack sentencing, the Gall decision likely will be the most consequential for post-Booker sentencing realities.  Here is how Justice Stevens summarizes the majority's decision:

We now hold that, while the extent of the difference between a particular sentence and the recommended Guidelines range is surely relevant, courts of appeals must review all sentences — whether inside, just outside, or significantly outside the Guidelines range — under a deferential abuse-of-discretion standard.  We also hold that the sentence imposed by the experienced District Judge in this case was reasonable.

Discuss.

Advice for the Justices on Gall

Greg Poe and Brian Willen have this short article on Gall in the current issues of Legal Times. The piece is entitled "Tailored To the Crime: Sentencing case shows need to defend judicial discretion," and it concludes with this sound tripartite advice to the Justices:

First, there should be no thumb on the scale in favor of a guideline sentence.  Although the judge must consider the advisory guideline range, that range is not to be treated as a tether.  Congress has set out a variety of factors to guide courts in sentencing.  Judges must assess those factors and articulate how any particular sentence would advance the legislative goals.

Second, the sentence ultimately imposed, whether inside or outside of the guideline range, should be entitled to substantial deference on appeal as long as the district court follows correct procedures and articulates substantial reasons for the sentence. Such deference recognizes a trial judge’s superior ability to assess the facts and circumstances of each case.  But deference is not abdication, and appellate review would allow true outlier sentences to be corrected.

Third, judges must respect the statutory command to impose a sentence “sufficient, but not greater than necessary” to achieve specified purposes of punishment. This “parsimony principle,” which traces back to Montesquieu, has been a central maxim in American criminology since the framing of the Constitution.

A reasonable analysis of the challenges of reasonableness review

Over at FindLaw is this new essay by Mark Allenbaugh and Donald Purdy discussing the Gall and Kimbrough cases. The piece is entitled "Drugs, Disparity, and Judicial Sentencing Discretion: Two Cases Invite the Roberts Court To Finally Clarify What Constitutes A Reasonable Sentence Under the Now-Advisory U.S. Sentencing Guidelines."  Here are snippets:

During oral argument, the Court clearly was concerned about the lack of a clear substantive definition on appeal for "reasonableness" in this context.  The Court seems caught between a rock and a hard place.  A forgiving "reasonableness" standard would essentially take federal sentencing back to the pre-Guidelines era, where similarly-situated defendants could and did receive grossly disparate sentences. Yet a strict and closely-Guidelines-based reasonableness standard, conversely, would seem to simply effectively make the Guidelines mandatory once again....

Without clarification from the Court regarding both appellate "reasonableness" review and the specific meaning of the Court's declaration that the Guidelines are now advisory, federal sentencing will become increasingly chaotic, and we will indeed see the strange "Wonderland" of sentencing Justice Scalia predicted in his dissent in Booker two years ago.

Gall and Kimbrough SCOTUS argument wrap-up

Thanks to this post at How Appealing, everyone can quickly catch up with major newspaper coverage of yesterday's oral arguments in the two Booker reasonableness cases.  This editorial from the Washington Post puts an interesting spin on what the take-away should be from the Kimbrough case: