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December 11, 2007

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?

December 11, 2007 at 11:28 AM | Permalink


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If the Guidelines have to be given weight, doesn't it stand to reason that sentences which deviate further from the Guidelines must be supported by greater justifications/explanations by the district court? (I think the majority opinion admits as much.) And if so, isn't this a proportionality system, albeit one that doesn't necessarily use numbers? The only real difference between the majority opinion and Justice Alito's dissent, then, is the ratio of deviation to justification that satisfies the statute. If district courts must only give "some weight" to the Guidelines, then for every 2 parts deviation from the Guidelines sentence you might need only 1 part justification. (Oops, I'm using numbers....) If district courts must give "significant weight" to the Guidelines, however, every 2 parts of deviation might requires 2 parts of explanation. The majority and the dissent ultimately require the same analytical structure. The difference is that Alito has the balls to acknowledge what's going on and put a label on the amount of weight he thinks the Guidelines should receive. Whether "significant" weight is the proper amount of weight is another question.

Posted by: | Dec 11, 2007 11:55:04 AM

I agree with the previous commenter that the system articulated by the Gall majority is ultimately a Guidelines-centric proportionality regime, but I think the real cause of why this is so has been missed. The real issue is that Gall requires district courts to "BEGIN all sentencing proceedings by correctly calculating the applicable Guidelines range." Slip op. at 11 (emphasis added). Only THEN may the district court "make an individualized assessment based on the facts presented," and if it wants to vary from the Guidelines range based on those facts, it must support "a major departure" with "a more significant justification than a minor one." Id. at 12. As long as the sentencing process begins with the calculation of a Guidelines range, and requires that more significant Guidelines departures receive greater justification, it will be a Guidelines-centric propoportionality regime, regardless of whether we entitle those Guidelines to slight weight, some weight, or significant weight.

One of two things must happen for this to change: (1) the first step of the sentencing process must consist of district judges making a preliminary determination of a defendant's sentence based purely on the facts of the case; or (2) major departures need not be justified by more significant justifications. But the Gall majority found the position that greater departures from the Guidelines should require greater justification to be "uncontroversial," slip op. at 12. And the spectre of district judges simply viewing the facts of the case and then determining, "Well, I think this is crime deserves 54 months" is unsettling. A Guidelines-centric proportionality regime would seem to be firmly entrenched.

Posted by: Chris | Dec 11, 2007 12:42:17 PM

Gall is a reaction to the circuits constructing "rigor" tests for sentencing outside the Guidelines that were never contemplated by the Booker majority. The "weight" to be given is purposefully wiggly, as if no justice joining Alito's dissent.

The procedure appears clear: start with the guidelines and work from there. If you go down (or up), include an explanation. The higher down (or up), the better the explanation. As long as you follow this course, the circuits better keep their hands off your sentence and stop creating their own barriers to non-guidelines sentences. We realize that these explanations are largely rhetorical, and we expect that. So if you want to give a major departure, couch you explanation in major departure language. And circuits, mind your own business.

For lawyers, the test will be whether they can produce the explanations, and rhetoric necessary to justify the departures, to support their position. Work harder on sentence and you can escape the guidelines. Do nothing and let the PRS speak for itself, and the defendant will get a guidelines sentence. The ball is back in the lawyer's court and, if hit well enough, in the judge's.

Posted by: SHG | Dec 11, 2007 1:24:10 PM

A second thought: can Gall be read as treating the "weight" issue the same way that Rita treated the "presumption" issue? It seems to me that Gall does not foreclose the possibility that a circuit court could choose to give "significant weight" to the Guidelines across the board, but only that circuit courts are not *required* to do so. The Gall majority only rejects two applications of the Guidelines: (1) that requiring extraordinary circumstances to justify a variance from the Guidelines, and (2) that requiring the use of a rigid mathematical system of proportionality. The majority's rejection of Justice Alito's position seems only to stand for the proposition that courts *need not* give "significant weight" to the Guidelines; the statute's only *requirement* is that the Guidelines be given "some weight." And "some weight" encompasses a wide range of possibilities.

Posted by: Chris | Dec 11, 2007 1:36:02 PM

If the Guidelines are the starting point and must be calculated, does this mean that traditional departures must be included in that calculation? The vast majority of circuits have said yes. But the Seventh Circuit has said departures don't matter post-Booker. It seems that with Gall and Kimbrough's greater recognition of district judge discretion, it doesn't matter whether we're dealing with a departure or a variance--as long as the sentencing adjustment is explained in 3553(a) terms and is reasonable, the sentence will be upheld. Wouldn't we simplify things by largely scrapping the old departure framework? Wouldn't we end up with both greater flexibility AND more purposeful sentences as long as the 3553(a) factors are the basis for the adjustment?

Posted by: Stu Dent | Dec 11, 2007 2:26:13 PM

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