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June 12, 2007

Talk about having Gall

Though the Supreme Court's cert grant yesterday in Kimbrough (details here and here) is deservedly getting a lot of attention because of the long-standing debate over federal crack sentencing, the decision by the Justices to take up Gall to replace Claiborne is also very significant. 

As detailed in the district court's sentencing opinion (available below), the facts in Gall are quite compelling in support of a below guideline sentence.  Here is one of many choice paragraphs from the terrific Judge Pratt of Iowa explaining his sentencing decision in Gall:

Any term of imprisonment in this case would be counter effective by depriving society of the contributions of the Defendant who, the Court has found, understands the consequences of his criminal conduct and is doing everything in his power to forge a new life.  The Defendant's post-offense conduct indicates neither that he will return to criminal behavior nor that the Defendant is a danger to society.  In fact, the Defendant's post-offense conduct was not motivated by a desire to please the Court or any other governmental agency, but was the pre-Indictment product of the Defendant's own desire to lead a better life.  Indeed, a sentence of imprisonment may work to promote not respect, but derision, of the law if the law is viewed as merely a means to dispense harsh punishment without taking into account the real conduct and circumstances involved in sentencing.

Download Gall_District_Sent._Mem.pdf

Of course, the Eighth Circuit, which reversed the below-guideline probation sentence given to Brian Michael Gall, saw matters differently.  I briefly discussed the circuit opinion in Gall in this post, and here is a paragraph from the panel's opinion that explains its basic view of the case:

Here, the district court imposed a sentence of probation when the bottom of Gall's advisory Guidelines range was 30 months' incarceration.  In essence, this amounts to a 100% downward variance, as Gall will not serve any prison time. Such a variance is extraordinary. "An extraordinary reduction must be supported by extraordinary circumstances." United States v. Dalton, 404 F.3d 1029, 1033 (8th Cir. 2005); see also Claiborne, 439 F.3d at 481 (holding that the district court's imposition of a 15-month sentence when the Guidelines range was 37 to 46 months' imprisonment, a 60% downward variance, was unreasonable).  We conclude that this extraordinary variance is not supported by extraordinary justifications.

June 12, 2007 at 01:19 PM | Permalink


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I think the Eighth Circuit case demonstrates the way in which so many judges cannot let go of the security blanket of the guidelines. It rests entirely upon the seriousness of the crime, which it restates in at least three different ways, thus giving it triple its actual value. It finds that this factor, which it explicitly measures in Guidelines terms, outweighs each of the factors on which the district court relied, including the defendant's voluntary cessassation of criminal activity, his law-abiding life for about five years, and his positive contributions to society in the meantime. If there is anybody who was misapplying the 3553 factors in this case, it was the Circuit court, not the district court. My bet is the Eighth Circuit is going to look really, really bad after the Supremes get through with them.

As a factual matter, this is a perfect case for probation. It demonstrates the blindness of the guidelines for mitigating factors, their couterproductive insistence on imprisonment for those who present no danger to society, and thus, that district courts must have full discretion to vary from them be free of them in order to do justice.

Posted by: David in NY | Jun 12, 2007 2:24:06 PM

I think the Gall case is a great vehicle (better than Claiborne or Beal) to review a reversal of a downward variance. The 8th Circuit, in essense, imposed its view of the facts over the well-reasoned views of the district court.

Posted by: DEJ | Jun 12, 2007 4:40:11 PM

I agree with the comments above. Gall is a great case to determine the discretion available to district courts, as well as the standard of appellate review post-Booker. I like it much more than Claiborne. Now if the Court will wait to decide Rita until Gall is ready for decision . . . .

Posted by: Mark | Jun 12, 2007 5:20:29 PM

I agree Gall's is a galling opinion, in which appellate judges substitute their views for those of the district judge who actually examined and evaluated the living and breathing person being sentenced.

That said, I think its wrong to suggest Gall is clearly a stronger case of rehabilitation than Claiborne. Were Gall's educational opportunities no better than Claiborne's, I wonder? Gall ultimately corrected himself in superb (indeed, super) ways, but so did Mario Claiborne. One's opinion of which case manifested stronger rehabilitation may depend on which defendant's background resembles one's own.

Posted by: zca | Jun 12, 2007 6:07:46 PM

I didn't mean to appear to opine regarding the substance of Gall's and Claiborne's rehabilitation issues. I just like fact that Gall does not involve crack and, more than that, I think the contrast between the district-court opinion and the CoA's treatment of the case is an excellent "vehicle" for the Court to decide whether to give district judges significant sentencing discretion.

I'm glad the Court is allowing proper briefing and argument. Even a Rita decision fairly soon will be ok, since we know Gall's coming.


Posted by: Mark | Jun 12, 2007 7:09:57 PM

I have been sanguine about Rita coming before Gall, but this morning I remembered Justice Scalia's response to the government's argument that the district courts would not consider the appellate "presumption of reasonableness" at sentencing, roughly paraphrased as: "They won't unless they want their sentences to be affirmed on appeal ...." I guess I'm coming around to Prof. Berman's apparent concern that courts will become more entrenched in their attachment to the guidelines if Rita adopts the presumption, however much the court says it's only an "appellate" presumption. And it's not clear that Gall and Kimpbrough can undo that, although they might.

Posted by: David in NY | Jun 13, 2007 9:56:22 AM

Being in a presumption Circuit, I know that district judges ALL the time reference the presumption of reasonableness, not b/c they want to be affirmed, but merely because it's there. There are even judges who don't like the Guideline range in a particular case who have said, "but this Circuit has said the Guidelines are presumptively reasonable." Objections to that statement are futile; no matter how much you stress that district judges are to follow 3553(a) and not reasonableness, the mere fact that the presumption is there is difficult to overcome.

Therefore, YES, if Rita is issued by itself and SCOTUS affirms the presumption, then district courts will look to the Guidelines even more. Gall and Kimpbrough are needed to undue that temptation, which posses clear Sixth Amendment problems.

If the presumption is going to be affirmed, then "the trio" of cases should be issued at the same time (IMHO).

Posted by: DEJ | Jun 13, 2007 11:51:45 AM

In a lot of circuits, a district court that treats the guidelines as presumptively correct at sentencing is violating the law of their circuit. See United States v. Fernandez, 443 F.3d 19, 33 (2d Cir. 2006); United States v. Pickett, 475 F.3d 1347, 1353 (D.C. Cir. 2007); United States v. Brown, 450 F.3d 76, 81-82 (1st Cir. 2006); United States v. Demaree, 459 F.3d 791, 794-95 (7th Cir. 2006). If judges are saying that, they're committing reversible error, seems to me, as will be evident from Rita even if it accepts an appellate presumption.

Posted by: David in NY | Jun 13, 2007 1:00:28 PM

David in NY, while I haven't looked at each of those cases, I think most circuits would agree that if the court only referenced the presumption of reasonableness and then sentenced within the Guidelines, then that would be reversible error. However, the problem is that most courts say that so long as the district court says he considers 3553(a), then it's not reversible error.

See US v. Terrell, 445 F.3d 1261 (10th Cir. 2006) ("But just as we presume on appeal that a sentence within the applicable Guideline range is reasonable, so are district courts free to make the same presumption - so long as they also consider the other factors listed in 3553(a).").

Thus, district courts say they are sentencing based on 3553(a), but because of the presumption, they sentence within the Guidelines.

Posted by: DEJ | Jun 13, 2007 1:47:31 PM

See, I think the 10th is wrong in Terrell. If the district court says the guidelines are presumptively correct, it's error under Booker, since it makes the guidelines virtually as mandatory as they used to be (certainly as binding as the guidelines in Cunningham). And the fact that the district court considers the other factors under 3553 does not ameliorate the situation, since the court was always required to consider those factors, even before Booker, but that consideration could not remove the error under Booker of treating the Guidelines as mandatory.

But I know what you mean. Given the judges' apparent unwillingness to engage in the act of real judging, rather than simply following a manual, it's a hard sell. They just have to have that security blanket, apparently.

Posted by: David in NY | Jun 13, 2007 2:34:17 PM

I just wrote a brief arguing that the sentencing judge calling the guidelines the presumptive imprisonment range is inviting the same error found in Cunningham. We'll see how that argument is received.

Posted by: DEJ | Jun 13, 2007 2:49:54 PM

Hmm, this is more than a year ago, but I can't help noting that I was right.

"My bet is the Eighth Circuit is going to look really, really bad after the Supremes get through with them."

Posted by: David in NY | Feb 27, 2008 4:27:44 PM

Extraordinary circunstance, my son is in federal custody sice 1989. He appeal his case 1993. The case send back to lower court to resentece. Since that time the court has done nothing in this case I had send a letter to the court of appleal not hear from them yet. I want to know if this is legal. I have been reading your cases for almost 10yrs.to help my son.
see usv.hector hernandez 89-229no 39 also appeal no.92-1064
Thank you

Posted by: Celia Arnaldi | Mar 26, 2008 3:20:46 PM

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