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March 28, 2014

Federal judge robustly defends drug guidelines ... after robustly varying from them

Thanks to this post by Paul Cassell over at The Volokh Conspiracy, titled "Are the federal sentencing guidelines for drug dealing unduly harsh?", I have had a chance to see and read a remarkable 70+-page opinion by US District Judge James Browning in US v. Reyes, CR 12-1695 (D.N.M. March 2014) (available here).   For any and everyone concerned about federal (or even state) sentencing for drug offenses, this opinion is a must-read.  Reyes also provides a remarkable case-specific window into the modern drug trade and the persons who get caught up within it.  And the validity and role of various uses of judicial discretion after Booker also is front-and-center in this opinion.

I am going to make all my sentencing students read this opinion, and this openning to the opinion helps highlight why it covers so many important issues:

THIS MATTER comes before the Court on Defendant Kayla Marie Reyes’ Sentencing Memorandum and Motion for a Downward Variance, filed March 21, 2013 (Doc. 45)(“Sentencing Memorandum”).  The Court held a sentencing hearing on January 6, 2014. The primary issues are: (i) whether the Court will vary downward to a sentence of 15 months to reflect Defendant Kayla Marie Reyes’ comparatively minimal involvement in an overall drug conspiracy; (ii) whether the Court should vary from the advisory guideline range because of a substantive disagreement, under Kimbrough v. United States, 552 U.S. 85 (2007), with the United States Sentencing Commission’s Guideline ranges for drug trafficking violations, as did the Honorable John Gleeson, District Judge for the United States District Court for the Eastern District of New York, in United States v. Diaz, No. 11-CR-00821-2, 2013 WL 322243 (E.D.N.Y. Jan. 28, 2013); and (iii) whether the Court should consider the costs of incarceration and supervised release in sentencing.  

The Court will vary downward, but not as much as Reyes requests: it will vary to a sentence of 30 months, which the Court concludes best reflects the factors that Congress laid out in 18 U.S.C. § 3553(a).

The Court concludes that Judge Gleeson’s criticisms of the Commission’s Guideline ranges for drug trafficking lack a sound basis.  Accordingly, the Court will not adopt his substantive disagreement under Kimbrough v. United States with the Commission’s Guideline for drug trafficking offenses. The Court varies for reasons tied to the factors in § 3553(a) and to Reyes’ individual circumstances, and not because of a substantive disagreement with the Commission’s ranges for drug trafficking. Finally, the Court will not consider the costs of incarceration and supervised release in sentencing, because the factors in § 3553(a) do not clearly permit the Court to consider costs, and because those concerned about the fiscal implications of criminal justice policy should petition the other branches of government and should not ask the Court to consider such implications in sentencing an individual defendant. 

As this introduction hints, I could readily write a few dozen blog posts about this Reyes opinion (and might do a few more in the weeks ahead). But my most fundamental insight about the opinion appears in the title to this post: Judge Browning makes a very forceful argument in support of the federal drug sentencing guidelines, but he is doing so in a case in which he concludes that they should not be followed. If Judge Browning really thinks these guidelines are so sound, I do not quite understand why he feels it necessary (or even legally appropriate) to vary from them.

March 28, 2014 at 12:12 PM | Permalink


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Admittedly, I've only skimmed the opinion, but the reasoning doesn't seem particularly puzzling or internally inconsistent. He respectfully disagrees with Judge Gleeson's view that there's something fundamentally or structurally wrong with the drug guidelines, but he recognizes that in any given case, the 3553(a) factors may militate in favor of a significant variance.

That is, a variance isn't warranted simply as a matter of course, on the grounds that the default range is based on flawed guidelines (i.e., a Kimbrough-type variance). But a variance may be warranted if the facts and circumstances of the offense or the characteristics of the offender warrant it, just like with any other case.

Posted by: GCW321 | Mar 28, 2014 3:15:33 PM

personally I think these double sentence things are illegal. Unless the appeals court can show some type of legal violation accompanied with criminal charges for the sentenceding judge. you don't get a do-over just because someone doesn't like the sentence issued.

Posted by: rodsmith | Mar 28, 2014 4:49:04 PM

Speaking of must reads, this is a must see:

Orange Is the New Black (Netflix)

Edgy, funny, powerful, emotional, honest. Someone involved knows this game inside and out.

Posted by: George | Mar 28, 2014 5:38:41 PM

Fair reading, GCW321, but if the drug guidelines are fundamentally sound, why would a variance (as opposed to a traditional departure) be needed or justified? Departures were the means the guidelines would foster consideration of distinctive individual factors. Variances seem to be the way to impose a sentence that finds the guidelines fundamentally inconsistent with the factors of 3553 in this case.

Ironically, I do not think there is really anything too distinctive about the defendant here, and I do not think Judge Browning thinks she is atypical either. Instead, it seems he just thinks the guidelines in this case call for a sentence that is unjustifiably long. That seems to be the heart of Judge Gleeson's criticisms of the guideline. And Gleeson advocates a 1/3 reduction, whereas Browning here with his variance gave closer to a 1/2 reduction from the middle of the calculated guideline range.

Posted by: Doug B. | Mar 28, 2014 6:33:00 PM

Technical truth about guideline sentencing: The guidelines are advisory only, but when the judge departs (or varies, if you like) he should give case-specific reasons, including, if he wants, his personal disagreement with USSC or even Congressional policy. See Booker, Gall, Kimbrough.

Actual truth about guideline sentencing: The judge can do whatever he wants and rest assured that he'll virtually always get away with it, since, for one reason, the present DOJ appeals only an infinitesimal percentage of outside-the-range sentences.

Posted by: Bill Otis | Mar 28, 2014 6:57:50 PM

The parlance of sentencing is akin to zoning laws. We have variances, guidelines, departures, upgrades,... It sure is a far cry from an eye for an eye and a tooth for a tooth. The statutes defining the crime need to define the sentence and leave small room for "variance". Congress needs to rethink this situation. There is too much time spent in the huddle. Courts need to focus on other issues. Like zoning laws and cops who arrest you for putting up a sign warning other drivers of speed traps ahead.

Posted by: Liberty1stl | Mar 29, 2014 12:17:10 PM

good one liberty1st

Posted by: rodsmith | Mar 29, 2014 5:18:28 PM

Liberty1st, what makes you think that the time judges spend deliberating over sentences is what keeps them from focusing on other issues? Do you have any evidence for your claim that sentencing decisions are taking up a significant portion (let alone "too much") of district judges' work?

Posted by: Curious | Mar 29, 2014 6:20:34 PM

curious I'd think the ever increasing number of judicial redo's over sentneces would be self explanatory.

Posted by: rodsmith | Mar 29, 2014 10:41:24 PM

Rodsmith, can you draw that out a little further? I'm not sure I follow.

Posted by: Curious | Mar 31, 2014 8:49:35 AM

LOL now that's just sad curious. if you check the records there are 1,000's of hearings if not 10's of thousnads over redoing a legal court sentence. every one of those takes time and energy and resources that are not being used for real activity. sorry but I don't consider sentence redo's legal unless the state can so some type of criminal consqiracy between either the DA, Judge and the defendant.

Posted by: rodsmith | Mar 31, 2014 11:39:31 PM

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