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August 23, 2007

Government concedes in Gall that variances can be "based solely on policy disagreements with the Guidelines"

This week the Government filed its merits brief in US v. Gall, the below-guidelines reasonableness case to be heard by the Supreme Court at the start of the new Term, and it is available for download below.  Confirming an important point conceded by Deputy SG during last Term's oral arguments, the Government's Gall brief states repeatedly that policy disagreements with the Guidelines can be a valid basis for a variance — even though many circuit have held otherwise (like the Tenth Circuit in a split ruling yesterday) and even though many lower court briefs filed by the Government have argued otherwise.

Here is a brief snippet from the summary of argument in the Government's Gall brief that spotlights this important point:

Contrary to petitioner’s suggestion, proportionality review does not require an “extraordinary” justification for every non-Guidelines sentence.  Only sentences that dramatically vary from the range require substantial justification. Similarly, proportionality review does not demand that every variance be supported by a “fact” that is not encompassed within the jury verdict or guilty plea.  Considerations of policy, as well as facts, can support a variance; the test is the cogency and strength of the rationale, not whether it is fact-based.

Download gall_sg_merits.pdf

August 23, 2007 at 07:42 PM | Permalink


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Does that mean that sentences can reflect "judgment", i.e., one of the things we pay judges to do?

Posted by: federalist | Aug 23, 2007 8:14:05 PM

How can they argue their side in Kimbrough, then?

Posted by: | Aug 23, 2007 8:14:30 PM

Let's not forget the most important aspect of the SG's brief: it confirms that reasonableness review has a substantive component. Thus, contrary to the defense bar's position, an appellate court may properly determine that a sentence was too low (substantively unreasonable) even though the District Court actually weighed the 3553(a) factors and provided a sufficient explanation for the sentence it chose (procedural reasonableness). Obviously, the same holds true for sentences dramatically above the advisory Guidelines range.

Posted by: Steve | Aug 23, 2007 10:08:49 PM

Footnote 11 elaborates more on that position.

-----------begin quote
Although sentencing courts may impose non-Guidelines sentences based
on policy disagreements with the Sentencing Commission, courts may not vary
from the Guidelines under Section 3553(a) based on disagreements with policy choices mandated by Congress. See U.S. Br., Kimbrough v. United States, No. 06-6330. In addition, policy-based variances remain subject to proportionality review. Thus, the extent of the variance justified by a policy disagreement will depend on the persuasiveness of the district court’s specific, articulated support for the disagreement. In evaluating the extent of the variance justified by a policy disagreement, a court of appeals should take into account that policy based variances pose a greater risk of generating broad sentencing disparity than variances based on case-specific facts. A reviewing court should also recognize that district courts do not have the “institutional advantage” in making policy decisions that they have in assessing the application of the Section 3553(a) factors to the facts of a particular case. Koon, 518 U.S. at 98. District courts are far less well positioned than the Commission to marshal and evaluate the extensive and complex data necessary to make broad policy judgments, particularly about the culpability levels associated with categories
of crimes or conduct. See Rita, 127 S. Ct. at 2463 (noting that the Commission operates at the “wholesale” level and district courts operate at the “retail” level). Accordingly, a policy-based variance is not entitled to as much deference as a fact-based variance. See Koon, 518 U.S. at 98 (“The deference that is due depends on the nature of the question presented.”).
-------------end quote

Posted by: | Aug 24, 2007 7:04:53 AM


For starters, the SG's office can't "confirm" anything. It's making an argument. The only "confirmation" of what the law is is going to come from SCOTUS.

More importantly, your post begs the question. The real issue pending before the Supreme Court is when, or under what circumstances, or under what standard of review, may a Court of Appeals overturn a district judge's sentencing determination? If all the CoA has to say, as you do, that a sentence is "too low," where's the LAW in that? It's just a matter of personal opinion, or even taste. That's not LAW. I hope (and expect) that the Supreme Court is going to give us better guidance than "the legal standard is whether a sentence is 'too low' or 'too high'."

Posted by: Mark | Aug 24, 2007 10:45:37 AM


No need to be condescending. Of course it's up to the Supreme Court to resolve the issue, but the position of the "10th Justice" is entitled to a little bit more weight than your opinion or mine.

I'm sure the Supreme Court will provide the needed guidance, and I am quite confident that the Court will agree that the further away from the Guidelines a sentence is, the more compelling must be the reasons for the sentence (in other words, appellate review will appear to be that much more rigorous in substantial variance situations).

Thus understood, when District Courts give probation to a defendant whose Guidelines range was, say, 50-65 months, it has to say more than "I've considered the defendant's arguments and the government's arguments; weighed the 3553(a) factors; and concluded that probation is sentence that's sufficient, but no greater than necessary, to satisfy the factors set forth in 3553(a)(2)." The district court had better have a more compelling explanation than that.

But, to no one's surprise, the defense bar thinks that appellate courts are duty-bound to affirm a sentence with such an explanation. Why? Because the district court explained why it was doing what it did. That's not appellate review, that's total abdication.

I also note that you don't propose a standard of review under which sentences could be reversed as substantively unreasonable. Could it be that you don't want the Sentencing Guidelines to serve as a baseline point of comparison?

Posted by: Steve | Aug 24, 2007 11:26:13 AM

Hmm..., responding to the government's argument in the 7:04 commment above, I don't see that the government's apparent attempt in Kimbrough to make Congressionally-mandated policies (i.e., the crack guidelines) mandatory, absent factual peculiarities, can succeed. That creates a Sixth Amendment violation if the district court can only deviate from the crack guidelines based on fact-findings, not policy differences.

Posted by: David in NY | Aug 24, 2007 11:50:42 AM

How does prohibition of variance due to "policy differences" with Congress create a "6th Amendment violation"? Enquiring minds want to know.

Posted by: Dweedle | Aug 24, 2007 12:06:08 PM

Can commentators address the validity of the distinction being drawn by the government here? In other words, what basis is there for concluding that the 100:1 ratio as set forth in the guidelines (i.e., not in the mandatory minimums) constitutes a "policy choice mandated by Congress" that courts must now adhere to? How is this choice "mandated" in a 3553(a) world? Why does Congress' application of the mandatory minimums require a particular result with the guidelines?

Posted by: query | Aug 24, 2007 12:17:08 PM

The mandatory minimums require a particular result within the guidelines because if the Commission sent an amendment to Congress that didn't reflect the mandatory minimums for crack then Congress wouldn't approve it.

BTW, the "100 to 1" ratio no longer exists (or, rather, won't on Novemeber 1) throughout the crack guideline. Due to the changes the ratio is all over the place depending on the offense level.

Posted by: Dweedle | Aug 24, 2007 12:26:49 PM

This is facinating. The Courts of Appeals are taking a view contrary to the one being advanced by the SG's Office before the Supreme Court. This means one of two things: Either (1) the individual U.S. Attorneys Offices are making arguments that conflict with the SG's position, or (2) the Courts of Appeals are reversing below-Guideline sentences on grounds not pressed by the government on appeal.

Either alternative seems odd. Any AUSA who wants to appeal a below-Guideline sentence must have his or her brief approved by the SG's office. So any inconsistency in the government's position before the COAs and the Supremes would not be accidental.

And if the appellate courts have come up with this "no policy disagreement" rationale on their own, it would be a great example of why courts ordinarily decide only issues that have been tested by the adversarial process. The COA conclusion (that policy disagreements aren't allowed post-Booker) is (in my opinion, at least) in clear conflict with Blakely and Cunningham, as it permits district courts to sentence outside the Guidelines only for factual reasons.

Hmmm . . . I think I'll start doing some digging into the COA briefs in these cases.

Posted by: C.Hessick | Aug 24, 2007 12:48:47 PM

Either alternative seems odd. Any AUSA who wants to appeal a below-Guideline sentence must have his or her brief approved by the SG's office. So any inconsistency in the government's position before the COAs and the Supremes would not be accidental.

And if the appellate courts have come up with this "no policy disagreement" rationale on their own, it would be a great example of why courts ordinarily decide only issues that have been tested by the adversarial process. The COA conclusion (that policy disagreements aren't allowed post-Booker) is (in my opinion, at least) in clear conflict with Blakely and Cunningham, as it permits district courts to sentence outside the Guidelines only for factual reasons.

The earliest (or earliest prominent) articulation of the "no policy disagreement" position of which I'm aware is Judge Selya's opinion in Pho. It could be that this has been the consistent position of the government for the past 2 years, but that the Gall brief reflects that they're starting to rethink that.

Intuitively, it makes sense, but once you start applying the principle to actual cases, after a while it starts to look like the last step on the path to de facto mandatory Guidelines.

This is just my speculation. If Ms. Hessick finds the answer, it would be very interesting.

Posted by: | Aug 24, 2007 12:55:51 PM

Wow! Time to call off oral arguments and just enter a summary per curiam opinion?

Is this a concession of the war to win the battle?

Posted by: ohwilleke | Aug 24, 2007 4:29:31 PM

Why is everyone so focused on the policy disagreement issue while ignoring what the standard of review should be for substantive reasonableness in cases of substantial variances?

Posted by: Steve | Aug 24, 2007 4:33:53 PM


I did not intend to be condescending. Also, while I'm sure that the SG's office opinion carries more weight than that of a private individual or private party, I don't believe that it should carry much more. And I really hate the "Tenth Justice" business. Advocates are not judges, and judges are not advocates; the two roles are mutually exclusive.

While the SG's office rightly assists the Court in identifying areas of the law that need clarification, I question whether the Government's attorney should have any sway over the outcome of decisions. If you think that they should have a preferred opinion when a court decides a case, what other categories of litigants should have a preferred position in our courts? Let's just get rid of that whole "Equal Justice Under Law" thing on the building.

As for the standard of review that should apply on sentencing: in my opinion, any standard of review that is not highly deferential of the judgment of the district court simply eviscerates (intentionally or not) Booker. "Abuse of discretion" is a good, existing appellate standard that would be workable and affirming of Booker (as long as there's language from the Supreme Court in the opinion giving high deference to the judgment and discretion of the district courts). We'll see what happens.

If Gall is decided in such a way as to affirm Booker in practice as well as sentiment, and if Congress and the Executive don't like an advisory system with a highly deferential standard of appellate review (Booker, Rita, (?)Gall), then they should just pass and implement a system in which all sentencing facts are determined by a jury beyond a reasonable doubt. No Sixth Amendment problem there, but the DOJ (including, apparently, the SG's office) is terrified of having to actually prove their sentencing-related allegations to a jury.

That's why the contradictory positions taken by the SG's office in Gall and DOJ's lower-court briefs (approved by the SG's office) are so galling. (No pun intended.) The SG's office knows that the Supreme Court is likely skeptical of a low standard of appellate review, but that the Courts of Appeals would love a low standard of review. So the SG's office is taking opposite positions on this one issue at the same time but in different courts. If you do that long enough, nobody calls you the "Tenth Justice." They don't call you at all.

Posted by: Mark | Aug 24, 2007 5:21:30 PM

So I've done just a little bit of digging, and unfortunately many of the briefs are not available on Westlaw. However, I did uncover the following language from the USA's brief in US v. Castillo (2d Cir.), a crack case where the government appealed a district judge's decision to use a 20:1 ratio to sentence the defendant:

"Here, in sentencing Castillo, the District Court did not 'faithfully' consider the Guidelines but instead disregarded them on the question of the severity of punishment in a crack cocaine case. Put differently, Castillo's sentence was based not on his particular circumstances, but on a particular district judge's policy disagreement with the drug quantity tables in the Guidelines. Booker and Crosby, however, require sentencing judges to use the Guidelines and Section 3553(a) to fashion a sentence that will be based on the facts and circumstances of an individual case. See Booker, 125 S. Ct. at 767 (noting that the requirement that sentencing courts 'must consult [the] Guidelines and take them into account when sentencing' would 'continue to move sentencing in Congress's preferred direction, helping to avoid excessive sentencing disparities while maintaining flexibility sufficient to individualize sentences where necessary') (emphasis added). Nothing in Booker or Crosby empowers sentencing judges to reject categorically certain types of Guidelines sentences as too severe.

“The better interpretation of Section 3553(a) is that it authorizes the sentencing court to consider the seriousness of the specific offense before the court, rather than the whole category of offenses of which it is a part. Under this interpretation of § 3553(a), judges may consider whether the particular instance of misconduct before them is less serious, more serious, or as serious as the Guidelines have deemed the typical instance of that misconduct to be, but the task of determining the relative seriousness of categories of offenses remains where Congress placed it-in the Sentencing Commission. This interpretation also best comports with the plain language of Section 3553(a), which instructs judges to consider the seriousness of 'the offense,' rather than the 'category' or 'kind' of offense. Here, the District Court's understanding of its obligation to follow Booker and Crosby and its application of Section 3553(a) cannot be sustained.”

Because Castillo was a crack case, the US also included a section saying that any sentence that used a 20:1 ratio conflicted with congressional intent. But the section of the brief I've quoted above clearly articulates an argument that 3553(a) and Booker do not permit non-Guideline sentences on the basis of policy disagreement. And courts of appeals have applied the "no policy disagreement" rationale in non-crack cases. E.g., US v. Cavera, 2007 WL 1628799 (2d Cir. 6/7/2007).

One more thing: There is an interesting portion of the oral argument transcripts from Rita where Deputy Solicitor General Dreeben previously seemed to disclaim the argument that district courts may not sentence outside the Guidelines on the basis of a policy disagreement. On pages 33-34 of the transcript, he says that any system in which a district court has to make a factual finding that the case is somehow unique violates Booker. And on page 35 he seems to say that district courts must be free to impose non-Guideline sentences in the even that they disagree with the Guidelines as a matter of policy.

Posted by: C.Hessick | Aug 24, 2007 5:26:32 PM

Here's the government in United States v. Gunter, 462 F.3d 237 (CA3 2006):

"While a handful of district courts, following
Booker, have taken it upon themselves to lower guideline ranges for crack offenses based on a perceived unfairness in comparison with sentencing for powder cocaine crimes, this
is plainly beyond judicial authority, and the appellate courts to address the matter have unanimously rejected this result. See United States v. Cawthorn, 2005 WL 3148073 (8th Cir. Nov. 28, 2005); United States v. Gipson, 425 F.3d 335, 337 (7th Cir. 2005); United States v. Daniels, 147 Fed. Appx. 869, 870 n.1 (11th Cir. Sept. 2, 2005) (not precedential). The advisory guideline regarding crack cocaine is clear, and the district court would err in refusing to consider it."

The government's explanation preceding that conclusion relies heavily on Congress's authority to approve changes to the Guidelines and its affirmative refusal to do so in the context of the crack Guidelines when presented with recommendations from the Sentencing Commission:

"The defendant relied on a series of recommendations by the Sentencing Commission advocating that the 100:1 ratio of powder to crack reflected in the guideline drug quantity tables should be reduced. But the Sentencing Commission does not have the final say regarding
the content of the Sentencing Guidelines; Congress and the President do. Congress has approved the existing guidelines, and has continually refused to amend them as suggested by the Commission. Thus, reducing the guidelines for crack cocaine would not simply stand as an inappropriate downward departure, but would amount to judicial rewriting of binding law."

The Sentencing Guidelines are not simply the product of the Sentencing Commission. Rather, Congress itself, in 28 U.S.C. § 994, set forth lengthy and explicit directions regarding the formulation of the guidelines. Further, consistent with its constitutional mandate as the
legislative branch, Congress retained control over the particular content of every guideline, providing that the initial guidelines did not go into effect until Congress was afforded six months to review and accept the Sentencing Commission’s recommendations, see Pub. L. 98-473, Title II, § 235(a)(1)(B)(ii), set forth in note to 18 U.S.C.A. § 3551, and that Congress has an identical period to modify or disapprove any proposed amendment to the guidelines, see 28
U.S.C. § 994(p). Congress in fact has not hesitated to exercise that authority with respect to the very sentencing issue presented by this appeal. See, e.g., Pub.L. No. 104-38, 109 Stat. 334 (1995) (Congressional act, approved by the President, rejecting Commission’s proposed amendment altering guideline applicable to crack offenses)."

(emphasis added)

Posted by: | Aug 24, 2007 6:36:56 PM


You are forgetting (or omitting) a different way of fixing the Booker mess: make the bottom of each Guidelines range the statutory minimum for each offense. That's the easiest way to go back to the status quo ante.

Let's not kid each other: the Apprendi line of cases (culminating in Booker) wasn't about vindicating the right to a jury trial. It was, rather, the judiciary's reaction to a sentencing system it thought was unfair from a policy perspective. But it is not up to the judiciary to start using its power of judicial review to strike down sentencing laws simply because it has a policy disagreement. That's a pure power grab.

Posted by: Steve | Aug 24, 2007 8:27:01 PM

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