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December 10, 2007

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.


December 10, 2007 at 10:36 AM | Permalink


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I wish I understood what the Court means in this passage:

In reviewing the reasonableness of a sentence outside
the Guidelines range, appellate courts may therefore take
the degree of variance into account and consider the extent
of a deviation from the Guidelines. We reject, however,
an appellate rule that requires “extraordinary” circumstances
to justify a sentence outside the Guidelines
range. We also reject 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.

Posted by: Steve | Dec 10, 2007 11:19:53 AM

Pages 15-17 make clear that the sentences of co-defendants ARE relevant and can be considered, contrary to the law in several circuits.

Posted by: | Dec 10, 2007 11:27:14 AM

Just wait. The circuits will use the Gall facts as a baseline, and will reverse sentences of probation because "this mitigating factors in this case were not nearly as persuasive as in Gall." Only an idiot would have given Gall jail time, of course.

I think if the Supremes were serious about this, they'd take a couple of cases for summary treatment when the circuits keep doing the same old thing. I can't believe, say, that the Eighth will change its spots.

Posted by: David in NY | Dec 10, 2007 11:55:14 AM

Hey Prof: Gall also states that if the sentence is within the guidelines range the appellate court may apply a presumption of reasonableness, and since 85% or more cases continue to be within-guideline sentences isn't this the rule that will have the greatest effect?

Won't sentencing judges continue to rely on the fact that within range sentences will mean no reversals (with the exception of crack sentences based on Kimbrough's reasoning)?

Posted by: dweedle | Dec 10, 2007 11:58:24 AM

Most judges give within guidelines sentences to not have their sentences overturned. However, I'm a little confused with what I wrote, because it seems that the supreme court left a back door for making the guidelins again de facto mandatory. I don't suppose anyone more experience is willing to write an analysis of the desicion?

Posted by: EJ | Dec 10, 2007 12:17:50 PM

Although I think David in NY is probably right about district judges using the Gall facts as a baseline, at least for now, defense lawyers like me should still take heart in this decision. Rejecting a presumption of unreasonableness for below guideline sentences, and insisting on a deferential abuse-of-discretion standard of review for such sentences, should make district judges feel at least a little freer to impose such sentences. It should also embolden us to keep pushing against the guidelines by developing as fully as possible Section 3553 factual arguments for sympathetic defendants.

Posted by: Larry the Red | Dec 10, 2007 1:36:51 PM

Gall certainly gives lenient appellate panels in otherwise conservative circuits lots of cover to affirm lenient sentences.

Posted by: ohwilleke | Dec 10, 2007 2:29:18 PM

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