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February 12, 2014

Drug sentencing reform talk already impacting federal sentences in Tennessee (and elsewhere?)

Two recent local sentencing stories from Tennessee reporting on two different federal judges imposing reduced sentences in drug cases suggest that all the on-going talk about significant drug sentencing reform coming from the US Sentencing Commission and the US Senate is already impacting the work of federal judges.  Here are the headlines, links and basics:

Federal Judge Varies Downward On Drug Sentence; Says "War On Drugs" A "Dismal Failure"

Federal Judge Sandy Mattice, calling the "War on Drugs" a "dismal failure," on Monday morning varied downward on a sentence for a drug "smurf."

Larry Gertsman had been facing a minimum 121 months in federal prison for his role in obtaining pseudoephedrine pills for a meth cook and for the fact a gun was found at the trailer where the meth was being cooked.

Judge Mattice noted the 121 months was one month more time than he gave to the meth cook, George Alder Jr. He sentenced Gertsman to 90 months in prison.

Judge Mattice said, "When a conspiracy is charged like this, addicts are being prosecuted the same way as the manufacturer." He said some of the sentencing schemes have "outrageous results." He added, "These cases seem increasingly arbitrary."

Judge, Noting That Federal Drug Sentences Are Likely To Be Cut, Gives 3 Whitwell Defendants A Break

Federal Judge Curtis Collier, saying that he expects Congress to lower sentences for drug defendants, on Thursday gave reduced time to three Whitwell residents involved in a major marijuana operation.

Judge Collier, focusing on "sentencing disparity," said Congress seems headed for passage of the Smarter Sentencing Act. He said it has the endorsement of the Department of Justice and support from senators from different political backgrounds. He also said the federal Sentencing Commission has issued guidelines for reduced drug sentences. The act would shift the focus to putting away hardcore and violent defendants in federal prisons.

Judge Collier said sponsors of the bill say that under current sentencing all of the Department of Justice budget is going to be eaten up by the cost to operate federal prisons. The act would basically cut drug sentences in half and also increase the use of the "safety valve" to cut time on mandatory sentences. There was also discussion at the sentencing for Jackie Morrison, Sammy Nance and Ollie Frizzell about some states, including Colorado, legalizing marijuana.

The sentencing range for the ringleader, Morrison, was 121-151 months. He got 72 months. Nance faced 37-46 months and was given 24 months. Ms. Frizzell had a sentencing range of 27-33 months and got 30 months. However, she had already gotten a break for cooperating with the government.

In addition to wondering if there is some special reason that these two notable stories emerge from two different Tennessee federal courts over the last few days, I am especially curious to know if similar trends may be emerging in other federal district courts around the nation.

I have previously noted that early statistics from the US Sentencing Commission suggested that the number of judge-sponsored below-guideline sentences may be increasing ever since AG Eric Holder gave his big ABA speech last August about excessive use of incarceration for low-level offenders.  And now that the USSC has called for an across-the-board reduction of all the drug guidelines and the Senate Judiciary Committee has moved the Smarter Sentencing Act, I could readily imagine that what these two Tennessee federal judges have done is more the norm than the exception in the thousands of low-level drug cases being prosecuted now in federal courts.

February 12, 2014 at 01:04 PM | Permalink


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Doug --

If it seemed (to some judges) that Congress were going to pass HIGHER sentences for some sorts of offenses, do you think it would be equally proper, under Booker's broad-ranging discretion, for those judges to give above-current-guidelines sentences to reflect what they thought Congress was likely to enact?

Posted by: Bill Otis | Feb 12, 2014 1:32:37 PM

Bill, like an aging segregationist in the era of civil rights, having spent his life damaging our nation with a harsh, unjust, racist, and wasteful policy, can only double down as others free themselves from his hysterical worldview.

Posted by: mfd | Feb 12, 2014 1:41:14 PM

mfd --

It's hard to argue with an analysis as refined as yours, but I think you might want to be a little more specific there in Step 2.

Posted by: Bill Otis | Feb 12, 2014 3:08:39 PM

I am a defense attorney in the Northern District Of Illinois. Over the last couple of months several judges have noted the movement towards sentencing reform and the evolving societal view of drug offenses and sentence and have given lower sentences than I normally would expect. Not necessarily just the liberals or libertarian types.

Posted by: Blair | Feb 12, 2014 3:30:31 PM

Blair --

Is there an "evolving" view of drug offenses, or just pot offenses? If there is any more societal approval for heroin, meth, PCP & Co., I haven't seen it, but am open to taking a look at the evidence.

Posted by: Bill Otis | Feb 12, 2014 4:11:27 PM

Bill, you ask a good questions for which I think the answer is YES, especially if/when all three branches with a sentencing focus/responsibility (Congress, USSC and DOJ) were to all be discussing seriously and systematically the need for sentences being higher for a certain class of offenses.

So, for example, if AG Holder gave a big speech to the ABA saying he thinks illegal gun sellers are being sentenced too leniently, and if the USSC proposed guidelines to increase the sentences for illegal gun sales across the board, and if Congress had a bill moving forward with bi-partisan support to increase sentence for illegal gun sales, then I do think it would be "proper, under Booker's broad-ranging discretion, for [federal] judges to give above-current-guidelines sentences" for these offenses.

Indeed, upon reflection, I do not think it is a hard call to say under such circumstances that federal judges would have discretion to give higher sentences for this class of offenses. What is a hard question is whether judges ought to feel LEGALLY OBLIGATION IN DISCHARGING THEIR 3553(a) DISCRETION to give longer sentences if/when all these branches were expressing the view that current sentences are too lenient. Of course, that is a hypothetical question now. But what is the corollary real question now is whether judges should feel legally obliged to give below-guideline drug sentences, at least to all non-violent drug offenders, given that AG Holder has given a big speech to the ABA saying he thinks non-violent drug offenders are sentenced too harshly, and the USSC has now proposed guidelines to decrease the sentences for drug offenses across the board, and Congress has a bill moving forward with bi-partisan support to cut mandatory sentence for drug offenses.

Posted by: Doug B. | Feb 12, 2014 4:45:57 PM

Doug --

My own view of it is that courts should follow the law existing at the time of judgment, not the law they guess is going to come about in X amount of time.

This episode reminds me of the Leal Garcia case in SCOTUS (http://www.supremecourt.gov/opinions/10pdf/11-5001.pdf), in which DOJ filed a truly preposterous brief arguing that Garcia's execution should be delayed because the Senate MIGHT consider a bill that would make self-executing the international treaty that purportedly would result in relief for the defendant. (The Senate never even considered, much less passed, the bill. The whole thing was a charade staged by Pat Leahy).

The Court said, "First, we are doubtful that it
is ever appropriate to stay a lower court judgment in light
of unenacted legislation. Our task is to rule on what
the law is, not what it might eventually be."

Of course district judges know better than the Supreme Court, just as Jack Weinstein knows better than Congress and the Second Circuit -- at least we it comes to protecting distributors of child pornography.

Not that it makes any difference anyway. Judges Mattice and Collier can impose whatever sentence they like, and can do so now just as they could have last year or the year before. How many times does the post-Booker Court have to say that the guidelines are "advisory only?"

Not for nothing has sentencing slid further and further toward entropy, in which the guidelines, now followed barely half the time anyway, become an open joke.

As the importance of the guidelines decreases, the importance of MM's increase.

BTW, did I ever mention to you the importance of MM's?

Posted by: Bill Otis | Feb 12, 2014 5:17:03 PM

Bill, the cases i was referring to are cocaine cases. Whether or not there is a greater societal acceptance of cocaine as a substance is certainly up for debate. I do think there is change as to societies views on the appropriate sentence in cocaine cases. I am sure that the judges I have come across were referring to the latter more than the former. That is there seems to be an evolving view in the branches of government that drug offenses do not justify the length of sentences that are commonly handed out in drug cases. I think that as the commission and the senate take steps towards reducing drug sentences, judges are reticent to hand down a lengthy sentence to one defendant where, in all likelihood, a similarly situated defendant a couple of months or years from now will face a much lower guidelines or statutory range. I only commented to note that the trend described in the articles out of Tennessee exists In the Northern District of Illinois as well.

Posted by: Blair | Feb 12, 2014 5:31:47 PM


I'm with you and in fact I'd go one step further. In general, I do not think that judges ought to consider policy questions at all in their sentencing regardless of whether it results in a higher or lower sentence.

Posted by: Daniel | Feb 12, 2014 6:11:28 PM

Bill, the CURRENT MANDATORY FEDEREAL SENTENCING LAW -- the statury provisions of 3553a --- requires judges to impose sufficient but not greater than necessary sentences to serve the stated goals of federal sentencing. Congess through action on SSA, Holder in speeches and new charging policies, and the USSC in proposed guidelines are all saying in their varied ways that the current drug guidelines are greater than necessary. That is why I think federal judge may be BASED ON CURRENT LAW obligated to give below guideline sentences. Likewise, if all the branches said the current guidelines were too low to serve 3553a goal, I think judges might likewise be obligated to give higher sentences.

Notably, when the guidelines are well constructed, they are still followed in roughy 90% of case. But when they are poorly constructed as in drug and CP and soe fraud cases, they ar followed much less. But in all cases, the law of 3553 must be followed unless and until congress amends this law. And a decade after experience with Booker, few seem interested in doing so on either side of the aisle.

Posted by: Doug B. | Feb 12, 2014 7:47:17 PM

Doug --

The Court has made it clear that the judge, relying upon HIS OWN JUDGMENT, and not that of Congress, the AG, the USSC or anyone else, may impose the sentence he thinks best. That is the exact holding of Gall and Kimbrough.

Given that, it makes no difference what Congress enacted, either in the original statutes or later (and still less does it make a difference what Congress MIGHT enact or what guidelines the USSC MIGHT implement).

I thought Gall and Kimbrough were wrongly decided, and I said at the time that they would come back to bite the hand that fed them. Since the High Court has now given inferior court judges virtually carte blanche to do their own thing according to their own lights, there is no such thing as being "obligated to give below guideline sentences," just as there is no such thing as being "obligated" to give within or above guidelines sentences. When the guidelines became advisory in Booker, and then became advisory-on-steroids in Gall and Kimbrough, then (with the sole exception of statutory mandatory minimums), the whole idea of "obligated" disappeared.

P.S. I love your use of the phrase "well constructed" to mean "sufficiently low to be satisfactory to liberals and the defense bar," while "poorly constructed" is used to mean "too high to be satisfactory to liberals and the defense bar."

Posted by: Bill Otis | Feb 12, 2014 8:18:20 PM

Bill, the judges must have their judgment informed by 3553a and that judgment must be reasonable. You are right that these standards create few rigid obligations, but they still are obligations -- e.g., a judge that gave the stat max or the stat min in every case would be reversed some times and thus be obligated to conform his judgment to the content of 3553a and the norms of reasonableness.

What I am saying is merely that the standards of 3553a and reasonableness is itself to be informed by the work of all three branches with sentencing responsibility. You instead contend --- in my view wrongly and harmfully --- that 3553a and reasonableness provide no legal guidance at all. Though what I really think you believe is that the rigidity and severity of the guidelines is better law than the flexibility and wisdom of 3553a. That is a fine opinion, but one that Congress has rejected for a decade now since Booker, because it seem to have decided --- in my view rightly and helpfully --- that giving judges sentencing power via the flexibility and wisdom of 3553a is now preferable to giving prosecutors sentencing power through the rigidity and severity of the guidelines.

Posted by: Doug B. | Feb 13, 2014 4:26:57 AM

Oh, and well constructed means satisfactory in light of the 3553a commands to federal judges appointed by diverse presidents and poorly constructed means unsatisfactory to federal judges appointed by federal judges. I love your misguided and self-serving view that all federal judges are in the pocket of liberals and the defense bar. I suspect Mayor Nagin now hopes you are right, but I know you are not.

Posted by: Doug B. | Feb 13, 2014 4:30:58 AM

Doug --

That climb-down was accomplished in record time.

Your original contention was that a district judge may, based on current law, be "obligated to give below guideline sentences" in drug cases.

In your more recent incarnation, the word "obligated" is conspicuously missing. In its stead is the massively watered-down proposition that the court's judgment must be "informed" by 3553(a), "and that judgment must be reasonable."

But even that climb-down fails to rescue your argument. The whole point of Gall and Kimbrough is that what is "reasonable" under 3553(a) is FOR THE JUDGE TO DETERMINE, no matter what Congress or the Commission (much less DOJ) have said in policies that have actually been adopted, still less in policies that might be (or might not be) adopted, to one extent or another, sometime in the future, maybe.

The error in your argument becomes clearer the more you elucidate it. For example, you say in your second paragraph that "the standards of 3553a and reasonableness is itself to be informed by the work of all three branches with sentencing responsibility."

Actually, Section 3553(a) says not one word about how and by what sources the "not greater than necessary" standard is to be informed. And, to the extent there is any non-statutory law on that question, it consists of the Supreme Court's guidance in Gall and Kimbrough, which guidance is precisely that the sentencing court IS FREE TO IGNORE WHAT CONGRESS AND THE COMMISSION SAY.

P.S. Still, if I am to criticize deficiencies in your argument, I must in candor criticize the deficiencies in mine. You're right to point out that my take on the meaning of the phrase "poorly constructed guidelines" did not adequately include assessments from the bench. I am thus constrained to re-formulate the definition of "poorly constructed guideline" to mean, "too high to be satisfactory to liberals, the defense bar, and ideologically-oriented, power-grabbing, law-ignoring, defendant-hugging judges like Jack Weinstein & Co."

Posted by: Bill Otis | Feb 13, 2014 7:53:24 AM

Bill, there are a number of high- and low- profile cases in which federal prosecutors have appealed sentences they think unreasonably low and circuit courts have used the reasonableness standard informed by 3553(a) to conclude the sentencing judge is OBLIGATED to give a higher sentence. (The Bistline and Ivey CP cases in the 6th and 11th Circuits, the Lynne Stewart case in the 2d Cir and the Millenium Bomber case in the 9th Circuit are just a few examples that come to mind.) Ergo, you are just flat-out wrong on the law: well-established circuit jurisprudence after Gall and Kimbrough establishes that sentencing judges are NOT free to sentence however they desire within statutory mins and maxes. There are still legal obligations here, ones defined by 3553(a) and enforced by circuit courts through reasonableness review.

I am not surprised you are eager to ignore the reality of modern federal sentencing law because the reality reveals that circuit courts regularly rule, when the government appeals, that sentencing judges are obligated to give LONGER sentences. In contrast, a full decade since Booker, the court have almost never have ruled that they are obligated to give SHORTER sentences than even badly broken guideline demand. (The Dorvee ruling from the 2d Circuit is the closest to such a ruling.) You ignore this reality because it undermines your claim that sentenced judges are lawless AND that mandatory minimums are needed to serve the rule of law (rather than what they really serve, which is the rule of prosecutors).

More fundamentally, the factors set forth in 3553(a)(2)(A) & (B) necessarily implicate policy concerns being discussed by the branches when saying a judge must consider the need for the sentence "to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense" and "afford adequate deterrence to criminal conduct."

Because a sophisticated discussion of this established statutory law does not serve your policy goals, Bill (which always seems to be giving still more sentencing power to prosecutors and taking such power away from judges), I am not surprised you are eager to dumb down this discussion of the guidelines flaws with complaints about "ideologically-oriented, power-grabbing, law-ignoring, defendant-hugging" judges. In contrast, I am eager to think through how "law-following" judges are supposed to discharge their responsibilities when all three branches with a sentencing focus/responsibility (Congress, USSC and DOJ) are all discussing seriously and systematically the need for drug sentence to be lower in order to, as 3553(a)(2) demands, better ensure federal sentences "reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense" and "afford adequate deterrence to criminal conduct."

Finally, I wonder if you have complained to others about Judge Sandy Mattice being a "ideologically-oriented, power-grabbing, law-ignoring, defendant-hugging" judge. I am pretty sure he was appointed to the bench by Prez. Bush with the strong support of the two GOP senators from Tennessee. I am also pretty sure this is the same guy who served as United States Attorney for the Eastern District of Tennessee before he became a judge. Maybe you and your pals at NAAUSA can arrange to have him flogged as a traitor to your cause at your next meeting.

Posted by: Doug B. | Feb 13, 2014 11:45:11 AM

Doug --

You scold me for avoiding "a sophisticated discussion of...established statutory law" without once mentioning the elephant in the room -- that the SCOTUS, most conspicuously in Booker but also notably in Gall and Kimbrough, effectively RE-WROTE the governing statutes.

In continuing the scolding, you say that I "ignore the reality of modern federal sentencing law" without even mentioning those three cases -- cases which, vastly more than anything else, HAVE DETERMINED WHAT MODERN FEDERAL SENTENCING LAW IS. What it is is what I have described: While a district court's sentence must be "reasonable" (sure), the court remains free to (1) decide for itself that "reasonable" means something either more or less than the Congressional and/or Sentencing Commission policy would have it; and (2) to make its decision about what constitutes a reasonable sentence without incorporating the views of any particular source, be it the Commission or the Attorney General.

There is actually a quick, easy way to demonstrate the error of your original proposition, which keyed on the world "obligated."

You said that, in light of the AG's position; the SSA's having made it out of committee in one chamber of the Congress; and the USSC's as-yet unadopted proposals to lower the drug sentencing guidelines, a district judge may, based on current law, be "OBLIGATED to give below guideline sentences" in drug cases (emphasis added).

Fine. I'll go you one better. Let's imagine that the SSA had become law and that the Commission's proposal had already been adopted and was in force. Would it then be the case that district judges would be "obligated" to give sentences that conformed to these new, more lenient rules?

Nope. Not in the slightest. District judges may, at sentencing, implement their own views about the seriousness of the drug involved, notwithstanding the fact that Congress and/or the Commission may have a different view (Kimbrough). And the courts of appeals may not presume that such an outside-the-guidelines sentence is unreasonable (Gall).

If anything, Kimbrough's holding applies in this setting a fortiori, since both the SSA and the Commission's proposals are broad brush, and do not even purport to include findings about the dangerousness of any specific drug. Thus, for example, a judge who perceived a growing problem with high school kids taking "Molly" (a particularly dangerous form of Ecstasy) could easily put together a "reasonable" basis for, not only refusing to go along with the SSA's and the Commission's more lenient rules, but for imposing an upward departure from the PRESENT rules.

Under Gall and Kimbrough, a defendant who appealed such a sentence would not get a single vote.

Posted by: Bill Otis | Feb 13, 2014 2:27:23 PM

Good points, Bill, though let's get precise: SCOTUS did not re-write the SRA, it just took out the parts that made the guidelines mandatory rather than advisory. And I am scolding you because you keep representing that what SCOTUS did was eliminate ALL applicable law, whereas in fact they just changed the focal point of legal analysis at federal sentencing from the detailed rule-based guidelines to the much-less-detailed, standard-based statutory provisions of 3553(a).

Though it may be semantics in your mind, I think 3553(a) and reasonableness review can and does have some real legal bite which would prevent a district judge from implementing his own views about the seriousness of the drug involved if that view is way out of the mainstream. For example, I do not think Judge Sandy Mattice (or any other federal judge) could give the stat max to each and every marijuana offender he sees based on a view that the need to deter use of this drug in Tennessee and elsewhere is now uniquely pressing given the state law reforms taking place elsewhere. Similarly, I do not think a judge could express his concern/opposition to the SSA by maxing out all drug offenders in every case.

You are 100% right, of course, that if/when a judge provides a reasoned and reasonable account based on 3553(a) for why he thinks an higher sentence is appropriate in a particular case, that decision is sure to be affirmed on appeal. But, in telling contrast to when prosecutors want to max out defendants using their law-free charging powers, any and all sentencing decisions by judges here have to be explained in terms of the applicable statutory law set out by Congress AND are subject to review in light of that law.

My own (law-favoring) views about the force that should be given to the 3353(a) factors set forth by Congress AND reasonableness review leads me to want to believe judges should feel obligated to attend to the considered and consistent statements about what sentences are viewed as too long (or too short) coming from Congress, and the AG and the USSC. But you are right that, sadly, it is very rare that circuit judges find district judges obligated to do much of anything at sentencing. And I do blame SCOTUS for that, though I think it was the sentence upheld in Rita, not the ones upheld in Gall and Kimbrough, that sent the harmful signal that circuits should serious question within-guideline sentences for being too long or too short.

Posted by: Doug B. | Feb 13, 2014 5:29:29 PM

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