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May 19, 2009

Notable Fifth Circuit ruling about reach/impact of Kimbrough

The Fifth Circuit issued a notable sentencing ruling yesterday in US v. Simmons, No. 08-60755 (5th Cir. May 18, 2009) (available here).  This case has bounced up and down as the district court and the Fifth Circuit try to figure out post-Booker sentencing rules.  Here is the latest insights from the Fifth Circuit about Kimbrough and related matters:

Kimbrough does not limit the relevance of a district court’s policy disagreement with the Guidelines to the situations such as the cocaine disparity and whatever might be considered similar....

Whatever else in Kimbrough might require further case development, it is evident that the Supreme Court held that a district court’s policy disagreement with the Guidelines is not an automatic ground for reversal ... [though it called for] a more intense review when the district court declares a properly calculated sentencing range to be inconsistent with the Guidelines’ policy factors even for an ordinary case. Kimbrough, 128 S. Ct. at 575.  If the concern instead is about the suitability of the sentence under the special conditions of a particular offender, the Court did not state that “closer review” is needed.

Therefore, the district court’s disagreement with the policy statement concerning age as applied to this defendant’s case is relevant to the sentencing decision.  Consideration of a policy statement is among the factors under Section 3553(a).  Disagreement with the policy should be considered along with other factors. See id.  After deciding that a sentence outside the Guidelines range is justified, the court “must consider the extent of the deviation and ensure that the justification is sufficiently compelling to support the degree of variance.”  Gall, 126 S. Ct. at 597.  Once those thought processes lead to a decision on the proper sentence, the court must explain itself in such as way as to permit “meaningful appellate review” and satisfy the need that sentencing fairness be perceived.  Id.

May 19, 2009 at 10:05 AM | Permalink


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The decision is clearly right. I'm not sure what the argument would be for limiting the reach of Kimbrough/Spears to crack cases.

Posted by: anonymous | May 19, 2009 11:12:29 AM

The idea that Kimbrough and Spears must be limited to crack cases is, IMHO, grossly off base. I've commented on this subject when Judge Gibbons (6th Cir.) issued a concurring opinion suggesting such should be the case. http://sentencing.typepad.com/sentencing_law_and_policy/2009/04/little-sixth-circuit-ruling-flags-enduring-question-over-kimbroughs-reach.html

I'll also note that I know AUSAs where I practice have argued that Kimbrough/Spears must be limited to crack cases, but that position has yet to win the day in any of those cases.

Posted by: DEJ | May 19, 2009 11:38:12 AM

Judge Gibbons highlights some interesting language in Kimbrough, but I'm not sure what the basis would be for treating other Guidelines differently.

I think that even in crack cases, if a judge varies from the Guidelines based solely on "policy disagreement," the judge would have to explain the basis for that disagreement, and the court of appeals would review for reasonableness. In non-crack cases, I see no reason why the same would not be true.

At the district court stage, it would be harder to justify a policy-based disagreement with the Guidelines because (1) the USSC generally does a better job with the other Guidelines, and (2) the policy arguments aren't as readily available.

And from the perspective of a court of appeals, a district court's policy disagreement with other Guidelines is less likely to be "reasonable."

None of that means, however, that a district court can only vary on policy grounds in crack cases.

Posted by: anonymous | May 19, 2009 4:00:34 PM

anonymous, I think that the crack GL is the prototypical example of a GL that the USSC did not do a good job with (because it felt it had to follow 100:1), but I disagree that the USSC has done a much better job with the other Guidelines. In fact, most of the GLs are not empirically based. Similarly, contrary to your statement, there are "policy arguments" that are readily available for many of the other Guidelines (gun, illegal reentry, fraud, child porn...just to name a few).

And your argument that "a district court's policy disagreement with other Guidelines is less likely to be 'reasonable'" on appeal is ONLY true if the Guideline at issue was the product of the USSC's empirical analysis and its institutional role. If the GL is not, then the principles of Kimbrough equally apply to that Guideline.

Posted by: DEJ | May 20, 2009 2:17:49 AM

DEJ: blanket statements like "most of the GLs are not empirically based" are not serious arguments.

First, "empirical" data is still only one factor, not the only factor, in developing sentencing policy - read the SCOTUS opinions.

Second, I'd like you to be specific about which guidelines you think lack empirical basis - apparently it's "most" of them - so let's have the detailed list rather than a pointless broadside. This cavalier dismissive attitude is troubling and transparently baseless.

The crack guideline is very, very different from other GL's because the USSC has issed at least 3 rather long reports saying, explicitly, that the sentencing regime imposed by Congress is wrong. You may not like the fact that the USSC chose to follow the ratio rather than continually concoct GL amendments that would have (a) born no relation to the statutory punishment; and (b) would have been struck by the Congress, but there is good reason for the USSC to keep the ratio: the will of Congress. In 1995, after issuing one of its reports, the USSC sent amendments to Congress that would have equalized punishment for crack and powder. I am not sure how many amendments to the guideliens Congress has overruled in 20 years, but there is at least this one huge slap at the USSC at least. It helps to know the facts.

While jurists with the ability to read and research (or with clerks who have the ability) are able to consider the very unique situation involving the crack guidelines, some advocates apparently are not so inclined. It's easier to engage in ad hominem attacks on the Commission and its process without even knowing the basic facts of crack sentencing policy, or for that matter, the USSC deliberative process. It's hard to take such arguments seriously and I'm not surprised most judges don't.

A cursory review of Kimbrough and Gall reveal that the Commission's opinion about crack, based on experience and expertise, was far more important to the Court than the wild-eyed opinions of ill-informed advocates. Or do you think those statements from the high court regarding the Commission's expertise were just kind words to help salve the low self-esteem of the Commissioners? Unlike so many defense attorneys the SCOTUS did some homework.

Posted by: CrackFacts | May 20, 2009 9:58:21 AM

I did name the Guidelines that I encounter most frequently, which are also not empirically based. Firearms, Illegal reentry, fraud, child porn. All of those are subject to policy attacks as not being arrived at through the USSC's study and analysis. You can think it's baseless, but you'd be wrong.

Second, the Supreme Court has said that USSC did not need to peg the Guidelines to the mand. mins. The USSC could act without further Congressional action, although it is obvious they don't want to.

I don't need a history lesson. I know that the the proposed 1995 amendment has been the only amendment Congress rejected. But we know much more now than we did in 1995.

Finally, I have engaged in no ad hominem attacks. Pointing out that the most frequently used Guidelines are not the product of the USSC's empirical analysis is a legitimate complaint, in light of the Court's rationale in Kimbrough.

Posted by: DEJ | May 23, 2009 5:52:24 PM

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