Sentencing Law and Policy

"Child Pornography and Criminal Justice Reform"

The title of this post is the title of this notable new article now available via SSRN and authored by Dawinder Sidhu and Kelsey Robinson. Here is its abstract:

Drug offenses lie at the heart of the movement for criminal justice reform, and for good reason.  The defining attributes of prevailing drug policy — severe and disproportionate penalties owning to a retributive, factually flawed, and hurried congressional process — apply to the child pornography context as well.  In this Article, we identify the common issues with drug and child pornography sentencing and outline the doctrinal implications of this shared foundation, especially as to district court discretion to vary under Kimbrough v. United States.

Though drug sentencing is problematic enough, child pornography is arguably worse.  The U.S. Sentencing Commission has disavowed these guidelines and invited judges to vary from them.  Judges have done just that, varying in 63% of all cases, more than any other offense type.  Thus, in this Article, we also suggest how the improvements to this uniquely distressed area of law can inform criminal justice reform more generally, especially as to substantive reasonableness review under Gall v. United States, mandatory minimum sentences, and sunset provisions for penalty levels.

Child pornography is not part of the conversation for criminal justice reform.  We take on child pornography sentencing, and in doing so hope to ensure that the movement for criminal justice reform is both correct and complete.

As Booker enters its adolescence, do we really know much of substance about substantive reasonableness review?

The question in the title of this post is prompted in part by a couple of recent reasonableness rulings from the Sixth and Tenth Circuits that seemed noteworthy: in US v. Heard, No. 17-3062 (6th Cir. Sept. 11, 2018) (available here), a split Sixth Circuit panel upholds an above-guideline sentences over a spirited dissent in firearm cases; in US v. Staples, No. 17-2068 (10th Cir. Aug 27, 2018)  (available here), a unanimous Tenth Circuit panel reverses a below-guideline sentences in a fraud case.  These decisions reflect one feature of nearly all criminal appeals, namely that the government wins and the defendant loses.  But I was inspired to pose the question in the title of this post because these these decisions also reinforce my sense that, even 13 years into the post-Booker world, there is still very little jurisprudential substance to substantive reasonableness review.  These decisions represent data points, but not much more.

In this post some months ago, I provided a string cite of commentary  documenting the mess that reasonableness review has become in the circuits.   I will provide this list again in part because it support my belief that federal sentencing law and practice would benefit significantly from the Supreme Court's further engagement with reasonableness review.  See, e.g.,  Carrie Leonetti, De Facto Mandatory: A Quantitative Assessment Of Reasonableness Review After Booker, 66 DePaul L. Rev. 51 (2016) (lamenting disparate circuit approaches to reasonableness review creating a “patchwork of guideline sentencing in which defendants’ sentences are dictated more by the happenstance of geography than by the Supreme Court’s jurisprudence”); Note, More Than a Formality: The Case for Meaningful Substantive Reasonableness Review, 127 Harv. L. Rev. 951 (2014) (discussing a “number of notable circuit splits” concerning reasonableness review); D. Michael Fisher, Still in Balance? Federal District Court Discretion and Appellate Review Six Years After Booker, 49 Duq. L. Rev. 641, 649-61 (2011) (noting that “the courts of appeals have differed over how to apply the [reasonableness] standard” and “have split on several important legal questions”).

As long-time readers know, I used to regularly report on circuit reasonableness rulings in the years after Booker and the follow up cases of Rita, Gall and Kimbrough.  But now I barely notice these cases and rarely report on them, because there seems to me little significance in individual data points absent broader jurisprudential developments.  But maybe I am missing something, and thus the question here posed.

"Fun with Numbers: Gall's Mixed Message Regarding Variance Calculations"

The title of this post is the title of this notable new student note by Nicholas Deuschle now available via SSRN. Here is the abstract:

This Comment seeks to resolve an unaddressed issue stemming from recent developments in the Supreme Court’s sentencing jurisprudence.  In Gall v. United States, the Supreme Court required that appellate courts "consider the extent of the deviation" of criminal sentences imposed outside the Sentencing Guidelines range.  The Court, however, provided little guidance as to what this requirement means.  Specifically, how should appellate courts calculate that deviation from the Sentencing Guidelines?

What are the odds SCOTUS grants cert in the (in)famous Rubashkin case?

The question in the title of this post is prompted by this recent commentary by Harlan Protass in the Des Moines Register headlined "Jail sentence doesn't fit the crime." Here are snippets:

Sholom Rubashkin, a first-time, non-violent offender, was convicted in 2009 of bank fraud related to his operation of a kosher slaughterhouse in Postville.  He is no Boy Scout.  He committed financial fraud, was convicted at trial and deserves punishment.  Like any defendant found guilty of having committed a federal crime, Rubashkin also was constitutionally entitled to consideration of all arguments for leniency, an explanation of the reasons for the sentence he received, and review of that punishment by a higher court.

But when Chief District Judge Linda R. Reade of the U.S. District Court for the Northern District of Iowa disregarded her obligation to consider Rubashkin’s grounds for mercy and instead just sentenced him to 27 years behind bars, she left the appellate judges who examined Rubashkin’s case with no means for determining whether the penalty she imposed was fair, just or reasonable.  That’s why it’s so important for the U.S. Supreme Court to hear Rubashkin’s appeal....

A series of recent Supreme Court decisions prohibit judges from mechanically adhering to federal guidelines.  Rather, judges are supposed to use their own judgment when meting out sentences, including consideration of all factors that might mitigate the sentence suggested by the guidelines. Simply put, judges are required to impose sentences that fit both the offender and the offense and are supposed to jail defendants for only as long as is “sufficient, but not greater than necessary” to reflect a host of penal objectives.

In Rubashkin’s case, Judge Reade paid only lip service to these legal requirements.  She dispatched her obligation to consider factors other than the federal guidelines in a mere four pages of her 52-page sentencing decision.  She essentially gave the back of her hand to the mitigating detail presented by Rubashkin’s lawyers, including his responsibility for 10 children, his extensive charitable activities, the absence of any indication that he was motivated by greed, and, most significantly, the disproportionality of the sentence recommended by federal guidelines as compared to those handed down in fraud cases of similar size and scope.

On appeal, the U.S. Court of Appeals for the Eighth Circuit essentially ignored Judge Reade’s omissions, inaccurately stating that she had “explicitly discussed each possible basis” for a shorter sentence than that called for by federal guidelines.  In doing so, that court failed to fulfill its own obligation to ensure that sentences conform with the constitutional standards set by the Supreme Court.

To ensure the promise of a fair and just criminal justice system, it is critical that the Supreme Court, which is currently considering his request for a hearing, review Rubashkin’s case.  It should find that judges must state on the record — in a written statement of reasons or during the sentencing hearing itself — that they considered and how they accounted for each and every mitigating factor.

This is of particular importance to those who receive sentences measured in decades, not years, like the 27-year prison term that Rubashkin received.  The alternative — silence by sentencing judges — is constitutionally unacceptable, not only for the likes of Rubashkin, but also for any other citizen who might one day run afoul of the law.

As detailed in an amicus brief on sentencing issues I authored to support Rubashkin's cert petition (discussed here), I concur with this commentary's advocacy for SCOTUS review in this case focused on sentencing issues.  In addition, as detailed in this ABA Journal report, my amicus brief was one of six filed in support of cert.  One amicus brief, authored by former SG Seth Waxman, concerns recusal issues based on the presiding judge's pre-trial involvement with prosecutors as "was signed by 86 former officials and judges, including former attorneys general and other prior Justice Department officials. They include former FBI directors Louis Freeh and William Sessions, former Attorneys General Edwin Meese and Dick Thornburgh, and former Solicitor General Kenneth Starr." And, other amicus briefs "were filed by the National Association of Criminal Defense Lawyers ..., the Association of Professional Responsibility Lawyers, a group of 40 legal ethics professors, and the Justice Fellowship. Some of the briefs deal only with the fairness of the sentence, while others deal with recusal issues and the 8th Circuit's new trial standard."

All this amicus support, together with the fact that former SG (and SCOTUS magician) Paul Clement is representing Rubashkin before the High Court, surely raises significantly the odds of a cert grant.  But, while making a cert grant more likely, it is hard to ever assert that a cert grant in a federal criminal case is "probable."  Indeed, in this effective Slate commentary focused upon the judicial bias issues raised by the case, Emily Bazelon concludes with this sober assessment:

The larger problem here is that, practically speaking, federal judges have enormous leeway in deciding whether to take themselves off a case because of potential bias or perceived bias.  When they make a bad call, there are rarely any consequences. In all likelihood, the Supreme Court will turn Rubashkin down and refuse to intervene this time, too.  The jury who convicted Rubashkin sat for 18 days and reviewed more than 9,000 exhibits, and the justices probably have as little appetite for a do-over as they do for smacking down Judge Reade.  But even if you can’t bring yourself to care much about the fate of Sholom Rubashkin, the oddities of this case don’t sit well.  Judges shouldn’t be able to make up their own rules for policing themselves.

As this Supreme Court docket sheet reveals, the feds will not be filing a response to all the cert advocacy until at least early July, and thus the Justices will not be considering this case directly until well into summer.  To its credit, SCOTUS recently has not shield away from taking up high-profile criminal cases raising high-profile issues (see, e.g., US v. Skilling), and thus I am a bit more optimistic that Bazelon that SCOTUS will take up the Rubashkin case.  But I am eager to hear from readers as to whether they think this might be just wishful thinking on my part.

Pepper providing a bit of spice to SCOTUS sentencing docket

Here at the National Law Journal,  Marcia Coyle has a new piece on the Pepper federal sentencing case on the Supreme Court's docket for the upcoming term.  The piece is headlined "Brief of the Week: Conflict over rehabilitation and resentencing," and here are excerpts:

The [Pepper] case offers the justices an opportunity to provide some guidance to sentencing judges about how much weight to give an offender's successful rehabilitation if he or she must be resentenced following appeals....

Pepper ... actually sought prison time in order to get into a 500-hour drug treatment program offered at a federal prison in Yankton, S.D. The judge sentenced him to 24 months in prison so he could qualify for the drug program. In 2005, he finished his prison sentence and began five years of supervised release.

In the meantime, however, the government appealed the 24-month sentence. In 2009, after three resentencing hearings, four reviews by the U.S. Court of Appeals for the 8th Circuit, another appeal by the government and an appeal by Pepper, Pepper was ordered back to prison by a different sentencing judge for an additional 41 months.

At the time of that last sentencing, Pepper had turned 29, had been married for two years to a woman with a 7-year-old daughter and was their primary support. He also was attending college full-time and was a Sam's Club overnight assistant manager who had been named associate of the year.

In Pepper's case, the 8th Circuit said, "We commend Pepper on the positive changes he has made in his life. However, the law of our circuit is clear. '[E]vidence of [a defendant]'s post-sentence rehabilitation is not relevant and will not be permitted at resentencing because the district court could not have considered that evidence at the time of the original sentencing.'"

Pepper's counsel, Alfredo Parrish of Kruidenier Dunn Boles Gribble Parrish Gentry & Fisher in Des Moines, Iowa, contends that the circuits are split on whether judges may consider post-sentencing rehabilitation in granting a downward departure from a guideline-recommended sentence....

Parrish relies in part on Gall v. U.S., a 2007 decision in which the justices rejected the 8th Circuit's policy that sentencing judges must justify downward departures with findings of extraordinary circumstances. The Gall case involved post-offense rehabilitation. "There appear to be hints in Gall that considering post-offense and post-sentencing rehabilitation in extraordinary circumstances is permissible at sentencing," Parrish said in his petition.

In a twist in the Supreme Court, the government now agrees with Pepper that post-sentencing rehabilitation is a factor to be considered. In its brief in opposition to Pepper's petition, then Solicitor General Elena Kagan wrote: "No provision in Section 3553(a) prohibits a court from considering at resentencing a defendant's efforts at rehabilitation undertaken after his initial sentencing. On the contrary, Section 3553(a) specifically instructs sentencing Courts to consider `the history and characteristics of the defendant.'"

The government had urged the court to vacate the 8th Circuit's judgment and remand the case for consideration of the government's latest views and recent case law. But the justices decided to hold arguments.

The justices appointed Adam Ciongoli, a former clerk to Justice Samuel Alito Jr. and now general counsel of Willis Group Holdings, to defend the 8th Circuit judgment.

And on July 22, the district judge who added the 41 months to Pepper's sentence — Chief Judge Linda Reade of the Northern District of Iowa — approved his release from prison pending the decision in the Supreme Court.

This is one of 11 cases from which now Justice Kagan has said she will recuse herself because of her involvement in the case. The Court has not scheduled arguments yet.

"Fast-Track Sentencing Disparity: Rereading Congressional Intent to Resolve the Circuit Split"

The title of this post is the title of an important new Comment by Thomas Gorman that now appears in the University of Chicago Law Review (and is available here via SSRN).  This Comment throughtfully engages with what I view to be one of the most interesting and dynamic (and consequential) post-Booker issues. Here is the abstract:

Early Disposition Programs -- commonly referred to as "fast-track" sentencing - allow a federal prosecutor to offer a below-Guidelines sentence in exchange for a defendant's prompt guilty plea and waiver of certain pre-trial and post-conviction rights.  Typically, fast-track sentencing is used to quickly process an overwhelming caseload of immigration offenses. Fast-track programs received official sanction when Congress, in the PROTECT Act, directed the Sentencing Commission to authorize them.  This authorization requires both the local US Attorney and the Attorney General to approve the implementation of each program. As a result, fast-track sentencing is presently approved in just a fraction of judicial districts. Therefore, not all defendants are eligible for a reduced fast-track sentence, and eligibility is dependent on where they are found and prosecuted.

Defendants in non-fast-track districts argue that this geographic disparity triggers 18 USC § 3553(a)(6), which states that sentencing courts must consider "the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct."  These defendants argue that sentencing courts in non-fast-track districts have the discretion to grant below-Guidelines sentences to mitigate the disparity.

The circuit courts uniformly agreed that sentencing courts could not mitigate the fast-track disparity prior to the Supreme Court’s decision in United States v Kimbrough.  In Kimbrough, the Court noted that the Sentencing Guidelines are advisory, and that sentencing courts have broad discretion to impose a below-Guidelines sentence if it is necessary to ensure that the sentence is “sufficient, but not greater than necessary.”  Congress, if it wants to limit this discretion, must do so explicitly. In light of this decision, the circuits have begun to reconsider their precedent on fast-track sentencing and a split has developed.  The First and Third Circuits now hold that "sentencing courts can consider items such as fast-track disparity" when deciding whether to grant a below-Guidelines sentence.  The Fifth, Ninth and Eleventh Circuits continue to hold that sentencing courts may not mitigate the fast-track disparity.

This Comment attempts to resolve the split by arguing that circuit courts have erred by focusing on the one-sentence authorization of fast-track in the PROTECT Act.  The statutory language is ambiguous, so it is not helpful in resolving the debate. Therefore, this Comment argues for an investigation of legislative intent.

An intent analysis requires a thorough examination of congressional efforts to reform sentencing, rather than a limited inquiry into the PROTECT Act’s one-sentence authorization of fast-track.  The purpose of the fast-track authorization is clearer when the statute is considered in the context of Congress’ long campaign to reform sentencing.  For the last 30 years, Congress has consistently prioritized two goals: promoting harsh sentences and reducing unwarranted sentencing disparities.  These goals are also what drove Congress to authorize a limited form of fast-track sentencing.

This Comment argues that granting sentencing courts the discretion to mitigate the fast-track disparity is more supportive of Congress’ goals than any alternative.  It is also more consistent with the Supreme Court’s recent rulings defending judicial discretion.

New scholarship complaining that reasonableness review is now quite unreasonable

Now appearing on SSRN is this notable forthcoming article discussing the mess that is reasonableness review of federal sentences in the circuits.  The piece is titled "When ‘Reasonableness’ is Not so Reasonable: The Need to Restore Clarity to the Appellate Review of Federal Sentencing Decisions after Rita, Gall, and Kimbrough," and here is the abstract:

Judges, like anyone else who works for a living, need standards.  Judges need to know what rules to apply, when to apply them, and who to apply them to.  And judges, just like you or I, want to know how their work will be reviewed.  Unfortunately, in many circuits, federal district court judges do not know how, or even if, their work will be reviewed by appellate courts in the context of criminal sentencing decisions.

Booker completely changed the sentencing landscape in the federal court system, but it left many questions as to what standards appellate courts would apply in reviewing sentencing decisions.  The Supreme Court issued three opinions in 2007, Rita, Gall, and Kimbrough, in an attempt to resolve several of the circuit splits that resulted when the Supreme Court repealed the mandatory sentencing guidelines in Booker.  Practically speaking, these decisions failed to clarify what authority appellate courts wield in the sentencing process, and how appellate judges should exercise that authority.

This Article examines how the contradictory language from Rita, Gall, and Kimbrough not only failed to provide clarity, but created new inter- and even intra-circuit splits.  This Article argues that these problems can only be resolved by articulating clear and practicable standards that prioritize the sentencing factors contained in 18 U.S.C. § 3553(a), rather than continuing to weigh them all equally.  Specifically, the Supreme Court could require district court judges to take advantage of the wealth of sentencing data being collected by the U.S. Sentencing Commission to justify particular sentences for defendants by reference to those given to similarly situated defendants across the nation.  This solution has the potential to achieve the balance that has thus far eluded the Court between both Congress’ legislative intent behind the original enactment of the mandatory sentencing guidelines, and the Court’s Sixth Amendment concerns raised in Booker.

Any profound thoughts on the state of federal sentencing a year after Gall and Kimbrough?

It just dawned on me this morning that yesterday marked the one-year anniversary of the Supreme Court's decisions in Gall and Kimbrough, the two cases in which the Justices made extra clear that Booker really meant that the guidelines were to be treated as truly advisory.  Though the US Sentencing Commission seems unlikely to produce a "one-year-later" report on the impact of Gall and Kimbrough, it seems fair to suggest that these cases have had an important and consequential effect on federal sentencing outcomes and atmospherics. 

I could opine at length about my own impressions of the tangible and intangible impact of Gall and Kimbrough, but this post is mostly designed to encourage reader input.  Specifically, I am eager to hear from commentors concerning whether and how Gall and Kimbrough should be celebrated or cursed one year later.  I would also love to hear suggestions about what institutions like the US Sentencing Commission, the Justice Department and Congress should be thinking about as we start year two of the post-Gall/Kimbrough world (and approach year five(!) of the post-Booker world).

Thoughtful analysis of Gall

The Daily Report legal newspaper has this effective piece on Gall by Steven Sadow headlined "Gall offers options at trial: Fewer defendants will plead, as judges can depart from guidelines more often."  Here is an excerpt:

Sentencing has finally moved from the hands of the prosecutors and the harshness of the Federal Sentencing Guidelines back to the discretion of the district court judges. The federal sentencing menu options have changed, and white-collar criminal defendants can, and should, consider retaining veteran trial lawyers. Attorneys who fit this mold have real experience defending criminal cases in the courtroom, will not be dissuaded to go to trial when the facts and legal issues demand it and will not settle out of fear of a presumed harsher guideline sentence.

Examining some circuits' unreasonable efforts at reasonable review

A helpful reader called my attention to a new federal sentencing note (which will appear in the William & Mary Law Review this fall) now available here via SSRN.  The note critically examines the effects of Rita and Gall in the Sixth and Tenth Circuits; here is the abstract:

Paul Sedore pleaded guilty to two counts for defrauding the Internal Revenue Service, conspiracy to defraud the IRS and identity theft. Based only on the facts that Sedore admitted in his guilty plea and his criminal history, the Federal Sentencing Guidelines would have recommended 12 to 18 months in prison.  But based on the facts that the sentencing judge found, by a preponderance of the evidence, which Sedore did not admit and the jury did not find beyond a reasonable doubt, the Guidelines advised a range of 84 to 105 months.  The court sentenced Sedore to 84 months. Had another judge sentenced Sedore to 84 months without finding those additional facts, the court of appeals would likely reverse this hypothetical sentence as unreasonable.

The Sentencing Guidelines are hardly as advisory as the Supreme Court imagines.  In United States v. Booker, the Supreme Court tried and failed to establish an appellate standard of review of sentences that both promotes uniformity and does not violate the Sixth Amendment right to a jury trial.  In Rita v. United States and Gall v. United States, the Court considered mechanisms that federal appellate courts use to enforce the Sentencing Guidelines, the presumption of reasonableness and proportionality review.  As in Booker, the Court tried and failed to rein in the courts' infringements on the jury trial right.  By closely examining the Sixth and Tenth Circuits, this Note demonstrates how the combination of the presumption of reasonableness, the double standard of procedural reasonableness, and proportionality review still violate the Sixth Amendment.  Short of Congressional overhaul, this Note argues that the Supreme Court should solve its inherently flawed Booker remedy by prohibiting substantive reasonableness review and requiring uniform sentencing explanations from district courts.

Eighth Circuit affirms large above-guideline sentence

The Eighth Circuit today in US v. Austad, No. 07-1376 (8th Cir. Mar. 5, 2008) (available here), affirms an above-guideline sentence with heavy reliance on Gall.  Here is the start and end:

Christopher Austad (Austad) pled guilty to mailing threatening communications in violation of 18 U.S.C. § 876(c).  After calculating a sentencing Guidelines range of 37 to 46 months imprisonment, the district court sentenced Austad to 84 months imprisonment.  Austad appeals, arguing the sentence is unreasonable, and that the district court failed to consider Austad’s history and circumstances. We affirm....

As the Supreme Court reminds us [in Gall], “[t]he sentencing judge is in a superior position to find facts and judge their import under § 3553(a) in the individual case.  The judge sees and hears the evidence, makes credibility determinations, has full knowledge of the facts and gains insights not conveyed by the record.” id. (citation omitted).  Given these considerations, we cannot say the district court abused its discretion in sentencing Austad.  Even if Austad’s sentence were considered “unusually harsh,” the district court explained the sentence with “sufficient justifications.”  See id. at 594.

Two important (but unpublished!?!) defendant wins in the Eighth Circuit

I am not sure what bother me more: the fact that federal defendants rarely prevail in sentencing appeals or the fact that when they do some circuit seem eager to suggest these rulings are inconsequential by deciding they should be "unpublished."  Two rulings from the Eighth Circuit today, as reported on its official opinion page, get more worked up on this topic today.  Here are the unofficial summaries:

US v. McDonald, No. 05-1617 (8th Cir. Mar. 4, 2008) (available here):

[UNPUBLISHED] [Per Curiam - Before Bye, Beam and Gruender, Circuit Judges]:  On remand from the Supreme Court for reconsideration under Gall v. U.S.  Under the more deferential abuse-of- discretion review outlined in Gall, the district court did not abuse its discretion in sentencing defendant to 132 months, and the sentence is affirmed.

US v. Weston, No. 07-1048 (8th Cir. Mar. 4, 2008) (available here):

[UNPUBLISHED] [Per Curiam - Before Bye, Smith and Benton, Circuit Judges]: District court erred in applying the presumption of reasonableness; this error is now plain, and the record shows a reasonable probability that defendant would have received a lesser sentence but for the error; case remanded for resentencing.

When might the USSC have some post-Gall/Kimbrough data to share?

It has now been more than two full months since the Supreme Court decisions in Gall and Kimbrough, and I am really wondering if these rulings have had a significant impact on district court sentencing outcomes.  From various conversations and news reports (and early judicial scholarship), Gall and Kimbrough have been viewed as dramatically important statements of the scope of post-Booker discretion that district judges now possess.  But the proof is in the data, and the US Sentencing Commission has not released any post-Gall/Kimbrough data (even though probably more than 10,000 sentences have now been imposed since Gall and Kimbrough came down).

I do not fault the USSC on this data front; the Commission has surely been busy dealing with crack retroactivity issues and other matters.  But, as regular readers know, I sure like my sentencing data, and I am starting to get an itch for up-to-date data concerning the latest sentencing work from the federal district courts.

A loooong Eleventh Circuit opinion reversing below-guideline sentence

Though I doubt it will be quite as exciting as either the Lost season premire or the Democrats playing one-on-one, part of my evening plans now include readind the Eleventh Circuit's new 50-page(!) opinion addressing reasonableness review in US v. Pugh, No. No. 07-10183 (11th Cir. Jan 31, 2008) (available here). Here is how the long opinion starts:

This appeal tests the nature and extent of appellate review over sentencing under the new regime of advisory Sentencing Guidelines.  After thorough review, we are constrained to conclude that even under the most recent Supreme Court precedent, affording substantial deference to the district court’s sentencing determinations, the district court abused its discretion by imposing a probationary sentence on the defendant in this case.

Here, the government appealed from the non-custodial sentence of defendant Bruce Clayton Pugh (“Pugh”), who downloaded on his computer over a period of several years at least 68 images of child pornography, as well as videos of an adult male raping an infant girl and of a young girl performing oral sex on an adult male.  The advisory Sentencing Guidelines range recommended for the offense to which Pugh pled guilty -- knowing possession of images of child pornography that were mailed, shipped or transported by computer in violation of 18 U.S.C. §§ 2252A(a)(5)(B) and 2256(8)(A) -- was 97 to 120 months’ imprisonment.  The district court nevertheless sentenced Pugh to a five-year probationary term. In so doing, the district court relied heavily on Pugh’s history, characteristics and motive in imposing a non-custodial sentence for a crime that fell on the high end of the Guidelines sentencing table. But in our view, the district court did not provide a sufficiently compelling justification to support the degree of its variance, nor did it give any apparent weight to many other important statutory factors embodied by Congress in 18 U.S.C. § 3553(a) that must be considered at sentencing.  As we see it, this probationary sentence utterly failed to adequately promote general deterrence, reflect the seriousness of Pugh’s offense, show respect for the law, or address in any way the relevant Guidelines policy statements and directives.  Accordingly, we hold that this sentence is unreasonable, and therefore vacate and remand so that the district court can re-calculate the defendant’s sentence.

Explaining more fully my concern about the Eleventh Circuit's work in Ramirez

A number of commentors are concerned about my quick critique of the Eleventh Circuit work in US v. Ramirez, No. 07-13060 (11th Cir. Jan. 23, 2008) (available here).  Ramirez affirms an above-guideline sentence by relying heavily on Gall. 

One (unnamed) commentor assails me for a a lack of "objectivity" because I critique this affirmance of an above-guideline sentence but often praise affirmances of below-guidelines sentences.  This commentor encourages me to "Show some balance, or at least the illusion of balance!"  Up for justified challenge, let me explain in more "objective" detail the range of concerns I have with the Ramirez decision.

First, as a matter of questionable procedure, why is this Ramirez ruling issued as an unpublished decision without the defendant getting an opportunity for oral argument?  As written, the Ramirez ruling implies that Gall overrules at least three prior (post-Booker) Eleventh Circuit published opinions.  If this is what Ramirez means, shouldn't this opinion have been published? 

Second, as a matter of sloppy style, the Ramirez opinion devotes more than five full pages to reciting (applicable?) post-Booker precedents, but has only a few sentences discussing the case facts.  Here, in toto, is what the opinion informs the reader about the facts of the case under review:

Luis Ramirez [was convicted of] larceny of personal property, in violation of 18 U.S.C. §§ 661 and 2. Ramirez’s guideline range was 8-12 months, but the district court sentenced him to the statutory maximum of 60 months imprisonment.  Ramirez argues on appeal that the district court ... overemphasi[zed] his criminal history, [and] failed to consider the $1,000 loss amount, and ... nullified the two-level decrease he received for acceptance of responsibility.

So, all we know from the Ramirez opinion is that a defendant with an long criminal history stole $1000 of personal property and received the statutory maximum sentence after accepting responsibility.  We don't know what his true guideline range was because, as the USSC sentencing table shows, there is no guideline range of 8-12 months.  The actually range must have been either 8-14 months or 6-12 months (and I am guessing the latter).

Third, as a matter of suspect substance, the Ramirez opinion notes that, in a recent Valdes ruling, 500 F.3d 1291 (11th Cir. 2007), the Eleventh Circuit "vacated Valdes’s sentence and remanded to the district court because it was unclear whether the court was departing upwardly under U.S.S.G. § 4A1.3 or whether the court was applying a variance based on the 18 U.S.C. § 3553(a) factors, and, therefore, the record was 'insufficient to permit the affirmance of the sentence.'"  Valdes seems to be exactly on point to justify a remand here.  However, without explaining whether Valdes has been overruled by Gall or is distinguishable, the Ramirez opinion affirms simply because "the district court properly calculated the advisory guideline range, considered the relevant § 3553(a) factors, articulated its reasons in open court, considered Ramirez’s arguments, and had a reasoned basis for its decision."

Finally, as a matter of dubious doctrine, the Ramirez opinion cites Rita, but that SCOTUS ruling makes clear that circuit courts must do more than police just the procedural reasonableness of sentencing decision-making.  Though Justice Scalia advocated review only of procedural reasonableness in his concurrence, the Rita majority made very clear that substantive reasonableness review was important:

In sentencing, as in other areas, district judges at times make mistakes that are substantive.  At times, they will impose sentences that are unreasonable.  Circuit courts exist to correct such mistakes when they occur.

Despite all these problems with the Ramirez opinion, I am still not prepared to call the outcome wrong until I know more about the underlying facts.  But all the points above raise a lot of red flags.  That's why in my original post I stated that I have a "concern" about the "troubling" Ramirez ruling because the "panel seems to essentially abdicate its responsibility to assess the substantive reasonableness of a stat-max sentence when the defendant had viable arguments that his sentence was far greater than necessary in light of all the 3553(a) consideration." 

As for my "objectivity" and "balance," I do not think I have ever hidden my view (bias?) that many federal prison sentences for non-violent crimes seem too long in light of Congressional purposes.  At least seven SCOTUS Justices seemed to ratify that view through the rulings in Gall and Kimbrough.  Meanwhile, I have also indicated my view (bias?) that many federal and state sentences for violent crimes seem too short.  Because Ramirez apparently involves a non-violent crime, I am especially curious about what facts justified a stat max sentence, and I really wish the Eleventh Circuit had done a more effective job assessing and explaining why that state max sentence was substantively reasonable.

An intoxicating way to celebrate the Gall ruling

Long-time readers with great memories may recall an entertaining opinion written in right after Booker by US District Judge Richard Kopf.  In this opinion, as detailed here, Judge Kopf promised to buy a beer for judicial colleagues who took a different view of Booker if Judge Kopf's view turned out to be wrong.   As explained here, after the Supreme Court's ruling in Gall, Judge Kopf concluded not only that he owed his judicial colleagues a beer, but also that he owed me one, too. 

Though I did not think Judge Kopf owed me anything, I was not about to refuse a beer from a federal judge. (According to a little known Czech legend, the deity Radegast, who is the god of mutuality and is said to have invented beer, ensures that a lawyer will have his motions denied for a full year after he refuses a beer from a judge.)

But, as I wondered how Judge Kopf might "pay up," never did I expect what arrived in my office today: a huge box shipped from from Bucket O' Brew.  As the picture above reveals, Judge Kopf selected the Northwest Bucket (see UPDATE) for my imbibing pleasure (and just in time for a long weekend with lots of great sports to watch).  As the picture above shows, Judge Kopf sent me a total of six beers, which means I have an extra beer to share with almost every member of the Gall majority. (I have a feeling that Justice Souter is not much of a beer drinker, but that I might need to keep the fridge full for the likes of Justices Scalia and Ginsburg when they get together to party). 

To reinforce what a great sense of humor Judge Kopf has, check out the shipping label that Judge Kopf engineered.  If you click on the second picture here, you should be able to see that my last name is misspelled as "Beerman."   To paraphrase one of my favorite philosophers, "Mmmmm, Beer-man."

UPDATE:  I was pleased to discover, after getting home and unpacking my brew bucket, that Judge Kopf had in fact sent me the Party Barge.  This smooth-sailing barge includes a full dozen beers, which means that I have a brewski for every member of the Court and even a few extra for Justices Alito (who perhaps can start to understand the hidden genius of both Booker opinions if he gets a little sloshed).  I wonder what drinking games the Justices like to play at their parties.

Sixth Circuit affirms above-guideline sentence based on Gall

More proof that the Gall decision will not always benefit defendants comes today in US v. Klups, No. 06-1931 (6th Cir. Jan. 10, 2008) (available here), which affirms an above-guidelines sentence by relying heavily on Gall.  Here is how the opinion ends (some cites tweaked):

Klups argues that because his sentence is “twice the high end of the advisory Guideline range” the district judge had to offer a “compelling justification” for the sentence. Prior to the Supreme Court’s opinion in Gall, we held “that the farther the sentencing court varies from the guidelines range one way or another, the more compelling the justification for that variance must be.”  United States v. Funk, 477 F.3d 421, 426 (6th Cir. 2007).  The majority opinion in Gall, however, “reject[ed] . . . an appellate rule that requires ‘extraordinary’ circumstances to justify a sentence outside the Guidelines range . . . [as well as] 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.” 128 S. Ct. at 595.  The Court in Gall explained “why the Court of Appeals’ rule requiring ‘proportional’ justifications for departures from the Guidelines range is not consistent with our remedial opinion in United States v. Booker, 543 U.S. 220 (2005).”  Id. at 594. Certainly, in considering the § 3553(a) factors in the course of determining “that an outside-Guidelines sentence is warranted,” the district judge “must consider the extent of the deviation and ensure that the justification is sufficiently compelling to support the degree of the variance.”  Id. at 597.  Gall, however, further clarified the distinction between the role of the district courts and that of the courts of appeals.  After Gall, “we no longer apply a form of proportionality review to outside-Guidelines sentences” ... United States v. Bolds, No. 07-5602, 2007 WL 4440403, at *10 (6th Cir. 2007).  We conclude, in the words of the Supreme Court in Gall, that “[o]n abuse of discretion review, [we give] due deference to the [d]istrict [c]ourt’s reasoned and reasonable decision that the § 3553(a) factors, on the whole, justified the sentence.” Gall, 128 S. Ct. at 602.

Effective review of Gall and Kimbrough basics

I was pleased to receive and now post en effective basic summary of the Supreme Court's work in Gall and Kimbrough. Here is the e-mail I received describing the effort:

Attached is a Summary by David Debold from Gibson, Dunn & Crutcher LLP Entitled: “Two Supreme Court Decisions in December 2007 Highlight the Advisory Nature of the Federal Sentencing Guidelines”.  David Debold is the Editor of the Criminal Justice Section Publication Practice Under the Federal Sentencing Guidelines, click Practice Under the Federal Sentencing Guidelines for information on the publication.

Download aba_treatise_gall_and_kimbrough_supp.doc

Eighth Circuit relies on Gall to affirm significant upward variance

As I have noted before, the fact that Gall seemed to loosen the stardards for appellate review of variances will not always benefit defendants. Proof comes today from the Eighth Circuit, which today in US v. Braggs, No. 07-1148 (8th Cir. Jan. 7, 2007) (available here), affirms an above-guidelines sentence by relying heavily on Gall. Here is how the opinion starts:

Keisha Braggs pled guilty to fraudulent use of an unauthorized access device, which carries a maximum term of 10 years of imprisonment. 18 U.S.C. § 1029(a)(2). Although the Sentencing Guidelines recommended a sentence of 15 to 21 months, the district court imposed a sentence of 48 months.  Braggs challenges her sentence as unreasonable.  Guided by the Supreme Court’s decision in Gall v. United States, 552 U.S. ___, No. 06-7949 (Dec. 10, 2007), we affirm.

Some related post on post-Gall circuit decisions:

• Fourth Circuit affirms below-guideline sentence in first big post-Gall ruling
• Split Eleventh Circuit affirms below-guideline sentence in another post-Gall ruling
• Sixth Circuit affirms two above-guideline sentences

Lots of Gall and Kimbrough GVRs this morning from SCOTUS

The first 17 pages of this new order list released by the Supreme Court this morning are taken up a whole big bunch of Gall and Kimbrough GVRs — which means the Supreme Court Granted the petition for review, and then Vacated the circuit court's decision below, and then Remanded the case for further consideration by lower courts in light of the decisions in Gall and Kimbrough.

I quickly counted about 75 GVRs in those pages and same the names of many of the defendants in some of the better-known crack/powder circuit cases — e.g., Pho from the First Circuit, Eura from the Fourth Circuit, Jointer from the Seventh Circuit, Spears from the Eighth Circuit.  These GVRs are not that surprising, but how the circuit courts deal with all these cases they got wrong the first time will be interesting to watch.

Relatedly, I would be grateful if readers could spotlight in the comments any other notable cases appearing on — or missing from — this long GVR list.

A circuit's struggles after Gall and Kimbrough

Writing in the Fulton County Daily Report, Alyson Palmer has this long article headlined "11th Circuit Wrestles With Sentencing: Panels split in upholding sentences in child pornography and bribery cases that fell below sentencing guidelines."  Here are excerpts from the start of the piece:

To many, the justices from the U.S. Supreme Court last month sent a simple message to appeals courts around the country: When reviewing the sentencing decisions of trial judges, back off.

But last week a judge on the 11th U.S. Circuit Court of Appeals signaled that he's not rolling over. Judge Joel F. Dubina's response to the high court came in a case in which federal prosecutors in Florida had challenged as too lenient a seven-year sentence for a distributor of child pornography. The sentence was more than five years under the sentencing range outlined in the federal sentencing guidelines, but over Dubina's dissent, two other judges affirmed the seven-year term.

That decision appears to follow the deferential approach adopted by the high court in a pair of major sentencing decisions issued Dec. 10, Gall v. United States, 128 S.Ct. 586, and Kimbrough v. United States, 128 S.Ct. 558.... While it didn't cite Gall specifically, another dissent issued this week, in the long-running bribery case of two men convicted over a Fulton County, Ga., bond deal, also demonstrated that the 11th Circuit is wrestling with sentences. In that case, Judge Edward Carnes was on the losing end of a 2-1 vote that affirmed the sentences of Michael deVegter and Richard P. Poirier Jr., which prosecutors argued were too short.

Split Eleventh Circuit affirms below-guideline sentence in another post-Gall ruling

When it rains, it pours (at least when it comes to reasonableness review on a Friday afternoon).  Not long after I saw the Fourth Circuit's Pauley decision upholding a below-guideline sentence as reasonable, I discovered a similar (though split) Eleventh Circuit ruling in US v. McBride, No. 06-16544 (11th Cir. Dec. 28, 2007) (available here).  Here is how the majority opinion in McBride begins:

In this child pornography case, the government appeals Robert McBride (“Defendant”)’s 84-months’ sentence on the grounds that the district court committed clear error in weighing the § 3553(a) factors and imposed an unreasonable sentence.  Because the district court did not commit a clear error in judgment in imposing the sentence, we affirm the sentence.

Here are snippets of the dissent in McBride:

Though I agree with the majority that the district court followed the proper procedures in calculating the Guidelines range and considering the 18 U.S.C. § 3553(a) factors, I disagree with the majority’s conclusion that the sentence imposed is substantively reasonable, and thus, I respectfully dissent....

Though the district court gave lip-service to other § 3553(a) factors, the district court’s downward departure was based largely, if not solely, on the defendant’s childhood, which it deemed to be one of the worst it had ever seen.  Some reduction might have been appropriate based on the defendant’s childhood, but a downward departure of almost 50% from the bottom of the Guidelines range was unreasonable when the other § 3553(a) factors, such as reflecting the seriousness of the offense, the need for deterrence, and the need to protect the public, all support a more lengthy term of incarceration than the one given.

Fourth Circuit affirms below-guideline sentence in first big post-Gall ruling

A decision just released by the Fourth Circuit today in US v. Pauley, No. 07-4270 (4th Cir. Dec. 28, 2007) (available here), suggests that at least one circuit got the back-off message that the Supreme Court seemed eager to send to the courts of appeals in Gall and Kimbrough.  Here is the opening paragraph in Pauley:

Larry Pauley pled guilty to one count of possessing photographs that contained images of child pornography, 18 U.S.C. § 2252A(a)(5)(B). At sentencing, the district court determined that Pauley’s Guidelines range was 78 to 97 months’ imprisonment. After considering this range in conjunction with the factors set forth in 18 U.S.C. § 3553(a), the district court sentenced Pauley to forty-two months’ imprisonment.  Finding no abuse of discretion, we affirm the sentence imposed by the district court.

The decision goes on to discuss sentencing review and Gall at some length.  And this passage discussing the particulars of the district court's sentencing decision provides a sense of the overall tone of the opinion:

In its consideration of the § 3553(a) factors, the district court correctly found in the exercise of its discretion that other facts warranted a sentence lower than that recommended by the Guidelines range. The district court found that Pauley warranted a lower sentence because he was deeply remorseful and, besides the criminal conduct at issue, he was a good father and teacher.  Such considerations were appropriate because they are directly tied to § 3553(a)(1)’s directive that the court consider the history and characteristics of the defendant.  18 U.S.C. § 3553(a)(1).  The district court also found that Pauley warranted a lower sentence because he lost his teaching certificate and his state pension as a result of his conduct. Consideration of these facts is consistent with § 3553(a)’s directive that the sentence reflect the need for "just punishment," id. § 3553(a)(2)(A), and "adequate deterrence," id. § 3553(a)(2)(B).  The district court further explained that a lower sentence would allow Pauley to be rehabilitated through the counseling he will receive during incarceration, and the court noted that a lifetime of supervised release would reduce the risk of Pauley becoming a repeat offender and would deter him from future criminal conduct.  These are also valid considerations under § 3553(a).  In sum, considering all of the factors that the district court viewed as mitigating in their totality, we hold that the thirty-six month downward variance was supported by the justifications necessary to uphold the sentence.

Disparities, trial penalty and Gall in Skilling reply brief

Thanks to this post at White Collar Crime Prof Blog, I was able to access the 162-page reply brief(!) filed by Jeff Skilling's legal team in his Fifth Circuit appeal.  The sentencing arguments begin on page 143, and these disparity arguments are developed starting at page 152:

Skilling’s 24.3-year sentence reflects a profound and unwarranted disparity compared to the (1) uniformly below-Guidelines sentences imposed on eight even more culpable high-ranking executives from major corporations; and (2) the 5.5 year sentence imposed on co-defendant Richard Causey.

In developing point (2), the reply brief makes these points (with some cites omitted) about the relevance of co-defendant disparity:

The [Enron] Task Force says the district court was prohibited from considering the sentence imposed on former Enron CAO Richard Causey because the Guidelines and sentencing statutes concern “nationwide” disparities rather than those among co-defendants.  This is not the law.  This Circuit has long recognized the district court’s ability to consider co-defendants’ sentences.  Similarly, in the post-Booker, advisory-Guidelines regime, courts regularly consider the sentences imposed on co-defendants. Indeed, just this month, the Supreme Court expressly approved of a sentencing court’s giving “specific attention to the issue of disparity when [it] inquired about the sentences already imposed by a different judge on two…co-defendants.”  Gall, slip op. at 9....

There is no rational and lawful basis for the 19-year disparity between Causey and Skilling’s sentences. The only ground offered by the district court [Skilling’s decision to exercise his right to trial] was contrary to the Constitution.

Though the Fifth Circuit might not reach sentencing issues in the Skilling appeal, this case is worth watching closely if they do because these kinds of disparity arguments seem especially important in the wake of Rita, Gall and Kimbrough.

Sixth Circuit affirms two above-guideline sentences

As many have noted, giving district courts broader discretion to go outside the guidelines will not always benefit defendants.  Proof of this comes from the Sixth Circuit's pudding of criminal rulings today, in which these two decisions affirm above-guideline sentences:

• US v. Lane, No. 07-5129 (6th Cir. Dec. 20, 2007) (available here)

• US v. Bolds, No. 07-5062 (6th Cir. Dec. 20, 2007) (available here)

Drugged commentary on the sentencing week that was

Over at FindLaw, Mark Allenbaugh has this new piece titled "A Positive Development in All the Sentencing Insanity: How The Supreme Court and the U.S. Sentencing Commission Have Begun to Correct the Damage Done by the War on Drugs." Here is how it starts:

Since the Nixon Administration, our nation has been engaging in a relentless, yet futile War on Drugs — not on crime, but specifically on drugs.  This war has not only been costly, but also done virtually nothing to stem the influx of drugs into our nation or Americans' drug use.  In fact, some have argued that the War on Drugs has actually created incentives for illicit drug manufacturers to develop new products such as methamphetamine and Ecstasy, as well as to develop better and more efficient distribution channels through Mexico, and perhaps even China.

And yet, despite clear indications that we long ago lost this war (at least as defined by the ways we are fighting it and the rhetoric we use), we mindlessly continue along the same path.

But despite all this despairing history, there now is a glimmer of hope for more sane drug sentencing — in the form of two December 10 decisions from the Supreme Court.

I do not view last week's amazing federal sentencing events as anything close to a referendum or even a significant turning point on the "war on drugs."  That said, I do not think it is coincidental or inconsequential that Gall and Kimbrough involved drug offenses.  And, as Mark's commentary notes at the end on this commentary, the critical question going forward is "What Will Congress Do?".

AFDA webcast on lastest federal sentencing developments

As detailed on this page, Gregory Nicolaysen, the founder of the Association of Federal Defense Attorneys (AFDA), has organized another of his great audio webcast for this Wednesday (December 19) at 12noon ET to allow me to discuss Kimbrough, Gall, the new crack guidelines and related federal sentencing happenings  and its possible aftermath. 

Unlike other groups seeking big bucks for webcasts, the AFDA usually only charges a nominal fee and the Greg has made this webcast free for everyone.  The webcast will be an informal interview conducted over live streaming audio, with accompanying text posted to a viewing screen and links to PDF files containing materials relevant to the topics discussed. To attend this webcast, simply:

• Go to the AFDA home page and put your cursor on the Audio Webcast bar, then...
• In the drop-down menu that appears, select "Attend A Webcast," then...
• Enter the following: Username: AFDA (all caps; case-sensitive); Password: 121907

Though I plan primarily to recap and expand upon some commentary already appearing here, I'd be grateful if readers might use the comments to note any issues that seem particular important for me to cover during this webcast.

A Gall sighting (or citing?) in the Sixth Circuit

I think the Sixth Circuit wins the award for being the first federal appeals court to issue a published reasonableness decision incorporating the Supreme Court's work in Gall into its discussion.  In US v. Lalonde, No. 06-4536 (6th Cir. Dec. 12, 2007) (available here), a panel affirms a within-guideline sentence and starts its sentencing discussion with these Gall goodies:

Post-Booker, the Sentencing Guidelines are no longer mandatory, United States v. Booker, 543 U.S. 220, 260-61 (2005), and “the ‘range of choice dictated by the facts of the case’ is significantly broadened.” United States v. Gall, 552 U.S. --, No. 06-7949, Slip Op. at 20 (Dec. 10, 2007).  However, the Sentencing Act, 18 U.S.C. § 3553(a), “nonetheless requires judges to take account of the Guidelines together with other sentencing goals” when fashioning a defendant’s sentence. Booker, 543 U.S. at 261 (emphasis added). As the Supreme Court just recently clarified in Gall, “the Guidelines should be the starting point and the initial benchmark” in determining a sentence and “a district court should begin all sentencing proceedings by correctly calculating the applicable Guidelines range.” Slip Op. at 11 (emphasis added); accord United States v. Gale, 468 F.3d 929, 934 (6th Cir. 2006) (Post-Booker, “the district court must still consider the Guidelines in fashioning a defendant’s sentence, and must construe them correctly in doing so.”).

On appeal, we must ensure that the district court properly calculated the advisory Guidelines range as part of its overall consideration of the § 3553(a) factors. See Gall, Slip Op. at 12 (directing appellate courts to “ensure that the district court committed no significant procedural error, such as failing to calculate (or improperly calculating) the Guidelines range”).

Eighth Circuit needs no Gall to affirm above-guideline sentence

As many folks recognize, the pro-discretion ruling in Gall does not ensure lighter sentences for everyone: Gall seems to give district courts even more discretion to sentence above the guidelines and should lead circuit courts to review these decisions more deferentially.  However, a decision handed down this morning by the Eighth Circuit in US v. Jones, No. 07-1212 (8th Cir. Dec. 11, 2007) (available here), highlights that district and circuit courts really did not need Gall to feel comfortable imposing and approving above-guideline sentences. 

In Jones, the district court relied on the defendant's misconduct in jail while awaiting sentencing to add nearly 1.5 years of additional imprisonment to his suggested guideline sentence.  The Eighth Circuit panel in Jones, not surprisingly, finds a way to uphold this enhanced sentence despite a thin sentencing record that it has previously found insufficient to support reduced sentences.  This Jones opinion was likely completed last week; it does not mention Gall, though Jones now seems sounder in the wake of the Supreme Court's repeated assertion that reasonableness review should be highly deferential.

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?

Judicial reactions, formal and informal, to Gall and Kimbrough

As detailed in this Los Angeles Times piece, headlined "To some jurists, high court ruling brings vindication," federal sentencing judges long troubled by the rigidity and severity of the federal guidelines are sure to celebrate the Supreme Court's work yesterday in Gall and Kimbrough.  Here is the start of the article:

To judges and others who long battled strict federal sentencing rules for crack cocaine offenders -- considered draconian and racist by longtime opponents -- Monday's Supreme Court decision brought vindication.  "I am delighted," said veteran Los Angeles federal Judge Terry J. Hatter Jr., who for more than 20 years has publicly assailed federal sentencing laws as ill-conceived and unfairly targeted toward minorities. "This brings some justice back to our justice system," the 74-year-old jurist added.

The article also reminded me that some circuits have still pending some major en banc cases dealing with various post-Booker issues that now may look different after Gall and Kimbrough (e.g., the Sixth Circuit has yet to decide Vonner and the Ninth Circuit still has Zavala and Carty to resolve). 

More generally, as Michael O'Hear and Carissa Hessick have rightly stressed in posts at SCOTUSblog, there is plenty of dicta in Gall and Kimbrough to allow, in Hessick's words, "those appellate courts that have clung to the Guidelines in the wake of the Court's decision in Booker to continue to do so."

In sum, then, as was true after Booker and Rita, how lower courts formally and informally react and construct an understanding of Gall and Kimbrough will determine whether the decision marks a significant turning point, or just a relatively minor tweak, in the post-Booker federal sentencing universe.

All the sentencing discretion that's fit to analyze

Effectively covering the Supreme Court's work in Gall and Kimbrough, the New York Times has these two strong pieces:

• From Linda Greenhouse here, "Court Restores Sentencing Powers of Federal Judges"

• From Adam Liptak here, "Given the Latitude to Show Leniency, Judges May Not"

Both article astutely note that another big federal sentencing story may break Tuesday afternoon.  As Liptak's piece explains:

Indeed, this week's sentencing decision most likely to have the broadest short-term impact is not on the Supreme Court’s docket.  On Tuesday, the United States Sentencing Commission is set to decide whether more than 19,000 federal prisoners convicted on charges involving crack cocaine should be eligible for re-sentencing based on amendments to the guidelines that became effective last month. The amendments reduced the disparity between sentences for crack and powder cocaine.

A manic Monday recap, and a dinner break

I predicted over the weekend that this could be quite the sentencing day, and it sure has not disappointed.  Of course, the strong statements by a strong majority of the Supreme Court in Gall and Kimbrough is the most consequential news (and How Appealing collects early media coverage here).  But I suspect non-lawyers will ultimately end up spending more time talking about the federal sentences given today to Michael Vick and Conrad Black.  Whatever your interest, as I head out to a needed dinner break, here is a review of my posts covering manic Monday (many of which have great reader comments):

SCOTUS RULINGS IN GALL AND KIMBROUGH

• SCOTUS rules for the defendants in Gall and Kimbrough!!
• The start of the majority opinion in Gall
• The start of the majority opinion in Kimbrough
• A quick take on winners and losers in Gall and Kimbrough
• A quick Justice-by-Justice review of Gall and Kimbrough
• FSG are truly advisory (even in crack cases), but what about....

OTHER NOTABLE SENTENCING NEWS

• Michael Vick gets 23 months in prison
• Conrad Black gets 78 months (after a favorable guideline ruling)
• Scooter Libby drops appeal ... is a holiday pardon on the way?
• SCOTUS also rules for the defendant in Watson

As we reflect on all these developments, it is worth spotlighting that both Michael Vick and Conrad Black ended up getting within-guideline sentences.  This is a useful reminder that, even now after the Supreme Court has clarified in Gall and Kimbrough that the federal guidelines are really, truly, yes-we-really-mean-it advisory, lots of sentencing judges are still going to be following the guidelines advice.

A quick Justice-by-Justice review in Gall and Kimbrough

There is so much to say about the substance of the rulings in Gall and Kimbrough (basics here), and I will likely need a few days to unpack all the important particulars.  Here I want to do a quick Justice-by-Justice review what we see in Gall and Kimbrough, in part because I think it could foreshadow the Court's work on any number of future sentencing issues.  So here goes:

Justice Ginsburg, the author of Kimbrough, reveals yet again that she only agreed to the Breyerian Booker remedy on the theory that the guidelines would be truly advisory.  Throughout her opinion she emphasizes a number of key facets of a truly advisory guideline system that should help ensure district courts appreciate how much discretionary sentencing authority they now have.

Justice Stevens, the author of Gall, reveals yet again that he can give the defense bar lots of great dicta.  His Rita concurrence was full of potent dicta, and many aspects of the Gall ruling support arguments of stressed by defense attorneys (e.g., the seriousness of supervised release and probation terms; the importance of co-defendant disparity under 3553(a)(6)).

Chief Justice Roberts and Justices Breyer and Kennedy, the three Justices who do not bark at all but join both majority opinions, reveal general disinterest and/or general exhaustion.  As was true with his vote in Cunningham, CJ Roberts seems more interested in harmony and stare decisis than in grinding and particular sentencing ax.  As shown by their opinions in Rita and Cunningham, Justices Breyer and Kennedy seem most concerned that guidelines, the Commission, and judicial power remain vibrant even in Apprendi-land, and Justice Breyer likely got both Justices Stevens and Ginsburg to add a bit of dicta to that end in Gall and Kimbrough.

Justice Scalia, the author of brief concurrences in both Gall and Kimbrough, continues to emphasize his concern with sentencing procedures and the Sixth Amendment.  Especially for issues like acquitted conduct enhancements, it is nice to see Justice Scalia continue to stress the viability of "as-applied constitutional challneges to sentences."

Justices Souter and Thomas, both of whom write separately to show they are still mad at Ginsburg for following the Breyer pied piper down the road of advisory guidelines, express their aggravation for the tangled web that the Booker remedy has weaved.  Ever the genteel New Englander, Justice Souter makes a simple call to Congress to get back to mandatory guidelines that respect the Sixth Amendment; ever the grumpy Gus, Justice Thomas makes an impassioned statement that, because the post-Booker jurisprudence has become so lawless, he's just not going to take it anymore.

Justices Alito, who authors the only real substantive dissent in either case, shows that his pro-prosecution instincts are stronger than his allegiance to statutory text.  Nowhere is his dissent does he address the parsimony mandate of 3553(a), even though he concedes that a reasonable jurist "could conclude that a sentence of probation [for Brian Gall] was sufficient in this case to serve the purposes of punishment set out" in 3553(a)(2).   

A quick take on winners and losers in Gall and Kimbrough

I have now had a chance to read both Gall and Kimbrough, and I am really intrigued and impressed by how much good stuff is packed into two relatively short opinions.  (Perhaps it helps that, for the first time in a major Apprendi, Blakely, Booker case, Justice Breyer does not have anything to say.  In a future post, I plan to do a Justice-by-Justice take on what these two rulings show us about the Justices.)  Let me provide a much-too-quick review of my sense of winners and losers:

Big Winners

• All District Courts, which now should feel even more comfortable coming to their own independent judgments about the application of 3553(a) to reach what they consider to be just sentencing outcomes.
• The US Sentencing Commission, which gets some dicta love in both opinions and now has even more cover for its likely decision to make its new crack guidelines retroactive.
• Federal Defense lawyers, who now have many new and renewed arguments for arguing for below-guideline sentences.

Big Losers

• Most Circuit Courts, which were chided in both opinions for not giving enough respect to either the Supreme Court's decision in Booker to make the guidelines advisory or to district court efforts to take seriously the idea that the guidelines are truly just advisory.
• Some crack defendants sentenced within the old guidelines, who may have failed to preserve the argument that the crack/powder disparity alone provided a valid basis for a below-guideline sentence.

Win some, Lose some

• The Department of Justice, which technically lost both of these cases, but likely can find enough helpful dicta to continue to urge most district courts to continue to impose within-guideline sentences.
• Most Federal Defendants, who are not like Brian Gall and cannot always be confident that a sentencing judge won't use her discretion to impose a sentence above the guidelines.
• Congress and the 2008 Campaigns, which could reasonably decide to make much, or to completely ignore, these rulings.

UPDATE:  I am pleased to see my friend Mark Osler has this post at SCOTUSblog with his own sense of winners and losers.  Here are headings from his post:

• Winner: Parsimony Provision
• Loser: Judicial Transparency
• On the Horizon: Booker, Part 2?

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.

Discuss.

Advice for the Justices on Gall

Greg Poe and Brian Willen have this short article on Gall in the current issues of Legal Times. The piece is entitled "Tailored To the Crime: Sentencing case shows need to defend judicial discretion," and it concludes with this sound tripartite advice to the Justices:

First, there should be no thumb on the scale in favor of a guideline sentence.  Although the judge must consider the advisory guideline range, that range is not to be treated as a tether.  Congress has set out a variety of factors to guide courts in sentencing.  Judges must assess those factors and articulate how any particular sentence would advance the legislative goals.

Second, the sentence ultimately imposed, whether inside or outside of the guideline range, should be entitled to substantial deference on appeal as long as the district court follows correct procedures and articulates substantial reasons for the sentence. Such deference recognizes a trial judge’s superior ability to assess the facts and circumstances of each case.  But deference is not abdication, and appellate review would allow true outlier sentences to be corrected.

Third, judges must respect the statutory command to impose a sentence “sufficient, but not greater than necessary” to achieve specified purposes of punishment. This “parsimony principle,” which traces back to Montesquieu, has been a central maxim in American criminology since the framing of the Constitution.

A reasonable analysis of the challenges of reasonableness review

Over at FindLaw is this new essay by Mark Allenbaugh and Donald Purdy discussing the Gall and Kimbrough cases. The piece is entitled "Drugs, Disparity, and Judicial Sentencing Discretion: Two Cases Invite the Roberts Court To Finally Clarify What Constitutes A Reasonable Sentence Under the Now-Advisory U.S. Sentencing Guidelines."  Here are snippets:

During oral argument, the Court clearly was concerned about the lack of a clear substantive definition on appeal for "reasonableness" in this context.  The Court seems caught between a rock and a hard place.  A forgiving "reasonableness" standard would essentially take federal sentencing back to the pre-Guidelines era, where similarly-situated defendants could and did receive grossly disparate sentences. Yet a strict and closely-Guidelines-based reasonableness standard, conversely, would seem to simply effectively make the Guidelines mandatory once again....

Without clarification from the Court regarding both appellate "reasonableness" review and the specific meaning of the Court's declaration that the Guidelines are now advisory, federal sentencing will become increasingly chaotic, and we will indeed see the strange "Wonderland" of sentencing Justice Scalia predicted in his dissent in Booker two years ago.

Gall and Kimbrough SCOTUS argument wrap-up

Thanks to this post at How Appealing, everyone can quickly catch up with major newspaper coverage of yesterday's oral arguments in the two Booker reasonableness cases.  This editorial from the Washington Post puts an interesting spin on what the take-away should be from the Kimbrough case:

By the end of yesterday's Supreme Court argument in Kimbrough v. U.S., two things seemed clear.  First, thousands of defendants charged with crack cocaine offenses will continue to face irrationally long sentences.  Second, the justices probably will move further down a path that will lead to the slow, painful death of the federal sentencing guidelines.

Also, this law.com coverage rightly highlights that Justice Scalia had the line of the day during the Kimbrough argument: "Indeed, it might be quite impossible to achieve uniformity through advisory guidelines, which is why Congress made them mandatory."

Wrap-up of recent blog coverage of Gall and Kimbrough:

• Debating discretion: time for oral argument in Gall and Kimbrough
• First-cut reactions to the Gall transcript
• First-cut reactions to the Kimbrough transcript
• A fitting take on SCOTUS sentencing cases fit to be tied
• Is Gall the most important SCOTUS sentencing case?
• Should Kimbrough be vacated and remanded given USSC amendments and SG concessions?
• Am I foolish to dream about consensus in Gall and Kimbrough?

First-cut reactions to the Gall transcript

As I hinted here, I am finding the transcript in Gall more frustrating than enlightening.  My frustration primarily stems from the fact that the advocates failed to explore how the explicit text of 3553(a) can and should give content to reasonableness review.  Particularly disappointing was the failure of Gall's lawyer to stress that the government has never effectively shown --- or even really argued --- that Brian Gall's below-Guideline sentence was insufficient to achieve the sentencing purposes Congress set forth in 3553(a)(2).

Though 3553(a) is has lots of vague language, a number of valuable sentencing principles can and should be derived from the text that Congress enacted (and that Booker made central to the application of an advisory guideline scheme).  Rather than try to concoct an array of legal definitions for reasonableness review, I believe the Supreme Court should simply encourage circuit courts to determine and explain, on a case-by-case basis, whether and how a particular sentencing outcome serves the purposes that Congress set out in the statutory text of the Sentencing Reform Act.  As the last section of Rita suggests, the process should be more important than any specific outcome.  If the process is thoughtful, reasoned, and respectful of congressional broad goals as expressly stated in 3553(a), significant appellate deference should be the norm.  But, if the process is not thoughtful or poorly reasoned, or is plainly disrespectful of the text of 3553(a), then more searching appellate review seems justified.

Venting aside, the competing voices of the Justices in Gall is really intriguing.  Particularly notable is the way in which Justice Scalia seems to be channeling the late Justice Brennan, such as when he suggest it could not possibly be unreasonable for a sentencing judge to say he "thought only in a rare case should there be jail time."

Read all about it: Gall and Kimbrough transcripts

Now available at this SCOTUS webpage are the transcripts from this morning's oral argument in Gall and Kimbrough.  Based on brief reports from folks in attendance, the arguments we nuanced and I will have lots of comments once I get to consume these transcripts.  I think I'll read the Gall transcript first, since that case was argued first, and then the Kimbrough transcript.

Fellow readers (and/or argument attendees) are welcome to use the comments to share their thoughts and insights.  Lyle Denniston has shared his views at SCOTUSblog with this post entitled "Analysis: More trouble for Guidelines."

UPDATE:  Though I am finding the transcripts a bit more frustrating than enlightening, but I did very much enjoy seeing Jeff Green in the Gall argument talk about the reasonableness of a sentencing judge looking to a "legal database, for example, or even a blog or something like that."

Am I foolish to dream about consensus in Gall and Kimbrough?

As I eagerly await the transcripts of the Gall and Kimbrough arguments to be available here this afternoon, I cannot help but dream about the Justices finding their way in these cases to some consensus on post-Booker sentencing standards.  I am driven to dream in part by this spot-on commentary by Benjamin Wittes at the New Republic lamenting the Court's recent divisiveness.  Here are snippets:

Chief Justice John G. Roberts Jr. has spoken eloquently about the importance of unanimity and the corrosive effect of separate opinion-writing on the court's institutional capital.... But it's hard to identify important areas in which the court [last term] spoke with a strong voice that rose above the polarized views of its members.  The court, rather, performed exactly as believers that it is nothing more than a political institution would have predicted.  And it made fools of those of us who believe in it as something more elevated: an institution that aspires to rule based on principle....

[N]ow it's a new day and a chance to start over.  And who knows?  A few months from now, last term may seem far away; the brethren may seem once more fraternal; and the institution may look a little more like a court ruling on law than a fractious bunch of politicians striking exactly the poses their constituencies expect of them.  But I'm not holding my breath.  And I'm not excited about watching them try.

Of course, when addressing Sixth Amendment issues, the Court has been deeply divided for a decade now, and the new Justices have not yet been able to quell to squalling.  However, Gall and Kimbrough ultimately have more to do with judicial discretion and appellate review than with the Sixth Amendment, and back in 1996 the Court came together in Koon to deliver a unanimous ruling (per Justice Kennedy) that embraced broader district court sentencing discretion and light appellate review.  I think there is a real chance that the Court might find consensus in these principles again.  (But, then again, a few weeks ago I also thought there was real chance the Mets and Padres would be gearing up for the MLB playoffs right now.)

Debating discretion: time for oral argument in Gall and Kimbrough

It is sentencing two-for-Tuesday in the Supreme Court later this morning: the Gall and Kimbrough reasonableness cases are due to be argued starting at 10am (and transcripts of the arguments ought to be available here by this afternoon).  Warren Richey has this article in the Christian Science Monitor previewing both cases, and the AP has this new report focused on Kimbrough and crack sentencing.

I have, of course, lots and lots of posts on these cases, most of which can be accessed through the Gall case index and the Kimbrough case index (the briefs are there, too).  In addition, the posts spotlighted below have some of my focused commentary on these cases.

• SCOTUS scratches my sentencing itch, but also has me scratching my head
• Read all about Rita (and get ready for Gall and Kimbrough)
• A few of my scholarly thoughts on Rita

On Gall:

• Talk about having Gall
• Is Gall the most important SCOTUS sentencing case?
• Detailing sound "policy disagreements with the Guidelines" to justify variances

On Kimbrough:

• Thinking through Kimbrough and the state of crack sentencing
• Latest FSR issue covers crack sentencing
• Should Kimbrough be vacated and remanded given USSC amendments and SG concessions?

UPDATE:  NPR has this nice overview piece by Nina Totenberg , and SCOTUSblog has basics and links to its wiki here.

Is Gall the most important SCOTUS sentencing case?

The long-standing debate over crack sentencing policy ensures that the Kimbrough case gets lots of media attention (see here and here), and national fixation with the death penalty ensures that Baze will always be an above-the-fold story (see here and here).  Nevertheless, as we gear up for a major SCOTUS sentencing term, I think Gall may end up being the case and ruling with the greatest long-term significance and impact. 

Whether the Supreme Court uses Gall to broaden or restrict the scope of post-Booker discretion, the decision in Gall is likely to impact greatly how all district courts sentence after Booker.  The decision will also likely frame future debates over Booker as a new Attorney General (and eventually a new administration) takes stock of federal sentencing realities. 

For more on the Gall case and related issues, the Des Moines Register has this helpful article and this effective editorial.  The article notes that the Gall case "could affect criminal sentences in every federal courtroom in America," and the editorial calls for "Congress [to] eliminate the garden-variety drug prosecutions and return the federal courts to their original purpose of hearing major criminal cases that cut across state lines and exceed local authority and resources."

Some related SCOTUS new Term posts:

• A big SCOTUS sentencing Term in the works?
• Serious SCOTUS sentencing fun soon to begin
• Baze lethal injection case index
• Gall reasonableness case index
• Kimbrough reasonableness case index

UPDATE:  This CNN piece about the new SCOTUS Term is headlined "Law-and-order issues top Supreme Court docket."

Read all about Rita (and get ready for Gall and Kimbrough)

I am pleased to see that the Denver University Law Review now has all the papers in its special symposium on Rita now available at this link.  A list of the titles and contributors shows why anyone interested in federal sentencing after Booker has to cruise over and check out all the paper in the symposium:

• Rerouted on the Way to Apprendi-land: Booker, Rita, and the Future of Sentencing in the Federal Courts: An Introduction
  Sam Kamin 

• Rita, Reasoned Sentencing, and Resistance to Change
  Douglas A. Berman 

• Empirical Questions and Evidence in Rita v. United States
  Paul J. Hofer 

• Rita, District Court Discretion, and Fairness in Federal Sentencing   
  Hon. Lynn Adelman & Jon Deitrich

• Rita Needs Gall—How to Make the Guidelines Advisory
  Hon. Nancy Gertner

• An Appellate Perspective On Federal Sentencing After Booker and Rita
  Hon. Jeffrey S. Sutton

Reply briefs in Gall and Kimbrough

Though I am still in a haze over Baze (details here), sentencing fans should be sure not to forget that we are but a week away from oral argument in the Booker reasonableness cases of Gall and Kimbrough.  Helping to get my mind back on these federal sentencing cases — which are, realistically, a lot more important to a lot more defendants than Baze — are the just-filed reply briefs from the petitioners.

Based on a quick review, both briefs look like great reads, and they can be downloaded here:

Download 066330_kimbrough_reply.pdf

Download gall_reply_brief.pdf

Detailing sound "policy disagreements with the Guidelines" to justify variances

This weekend I read closely the Government's brief in Gall (available here).  The brief is quite well done and effective, in part because it makes many sound and significant concessions.  Most critically, as previously highlighted here, the Government's brief repeatedly explains that district courts can vary from the Guidelines "based solely on policy disagreements with the Guidelines."  Gov't Brief in Gall at 36; accord id. at 37 n.11 ("sentencing courts may impose non-Guidelines sentences based on policy disagreements with the Sentencing Commission"); see also id. at 32 ("variances need not be justified solely on factual grounds but may ... be based on reasoned policy considerations").

In light of this important concession, I decided to begin a list of "reasoned policy considerations" for disagreeing with certain Guidelines.  Notably, as highlighted below, some policy reasons for varying from the Guidelines are suggested by the Commission's own research.  For now, I have started this list without detailed explanations, though I may annotate this list in future posts (and readers are encouraged to add to the list in the comments).

Policy Reasons for Variances Suggested by the Commission

1.  Crack guidelines are much too harsh relative to powder guidelines, especially for low-level offenders

2.  Career offender guidelines are too harsh, especially for offenders with relatively minor prior offenses

3.  Criminal history category I may overstate the risk of recidivism for "true" first offenders

Policy Reasons for Variances Suggested by Many Others

4.  The guidelines unduly emphasize quantities (like loss calculations and drug weights) and ignore true culpability considerations based on a defendant's mental state

5.  The guidelines too readily rely on uncharged (and even acquitted) conduct to greatly increase offense levels

6.  The guidelines categorize many minor prior offenses as "crimes of violence" to enhance sentences

7.  The guidelines fail to encourage alternatives to incarceration, especially for non-violent first offenders

8.  The guidelines fail to incorporate relevant personal circumstances, such as mental conditions, prior good works (like military service), family circumstances, drug dependence

9.  The guidelines generally fail to give voice and attention to victims' interests or to the interest of other third parties impacted by the crime and punishment

Government concedes in Gall that variances can be "based solely on policy disagreements with the Guidelines"

This week the Government filed its merits brief in US v. Gall, the below-guidelines reasonableness case to be heard by the Supreme Court at the start of the new Term, and it is available for download below.  Confirming an important point conceded by Deputy SG during last Term's oral arguments, the Government's Gall brief states repeatedly that policy disagreements with the Guidelines can be a valid basis for a variance — even though many circuit have held otherwise (like the Tenth Circuit in a split ruling yesterday) and even though many lower court briefs filed by the Government have argued otherwise.

Here is a brief snippet from the summary of argument in the Government's Gall brief that spotlights this important point:

Contrary to petitioner’s suggestion, proportionality review does not require an “extraordinary” justification for every non-Guidelines sentence.  Only sentences that dramatically vary from the range require substantial justification. Similarly, proportionality review does not demand that every variance be supported by a “fact” that is not encompassed within the jury verdict or guilty plea.  Considerations of policy, as well as facts, can support a variance; the test is the cogency and strength of the rationale, not whether it is fact-based.

Download gall_sg_merits.pdf

Top-side briefs in Gall and Kimbrough

All the briefs on the petitioners/defendants' side of the two pending SCOTUS reasonableness cases, Gall v. United States and Kimbrough v. United States, were filed last week. I believe all of these briefs can be accessed at this page created on the New York Council of Defense Lawyers ("NYCDL") website.  (In addition, Paul Rashkind has assembled a lot of the briefs here, and I believe they will also appeal on this defender website eventually.)

I have only so far had a chance to read some of the briefs (in part because I was helping with this NYCDL brief in Gall).  There appears to be a lot of interesting and important post-Rita work being done in these briefs, and readers are encouraged to spotlight particular efforts and passages they consider especially notable.  I hope to find time after the bottom-side briefs are filed to comment on what the Justices might think about what they are being told.

UPDATE:  I have been told that briefs on the defender website are available here for Gall and here for Kimbrough.

Talk about having Gall

Though the Supreme Court's cert grant yesterday in Kimbrough (details here and here) is deservedly getting a lot of attention because of the long-standing debate over federal crack sentencing, the decision by the Justices to take up Gall to replace Claiborne is also very significant. 

As detailed in the district court's sentencing opinion (available below), the facts in Gall are quite compelling in support of a below guideline sentence.  Here is one of many choice paragraphs from the terrific Judge Pratt of Iowa explaining his sentencing decision in Gall:

Any term of imprisonment in this case would be counter effective by depriving society of the contributions of the Defendant who, the Court has found, understands the consequences of his criminal conduct and is doing everything in his power to forge a new life.  The Defendant's post-offense conduct indicates neither that he will return to criminal behavior nor that the Defendant is a danger to society.  In fact, the Defendant's post-offense conduct was not motivated by a desire to please the Court or any other governmental agency, but was the pre-Indictment product of the Defendant's own desire to lead a better life.  Indeed, a sentence of imprisonment may work to promote not respect, but derision, of the law if the law is viewed as merely a means to dispense harsh punishment without taking into account the real conduct and circumstances involved in sentencing.

Download Gall_District_Sent._Mem.pdf

Of course, the Eighth Circuit, which reversed the below-guideline probation sentence given to Brian Michael Gall, saw matters differently.  I briefly discussed the circuit opinion in Gall in this post, and here is a paragraph from the panel's opinion that explains its basic view of the case:

Here, the district court imposed a sentence of probation when the bottom of Gall's advisory Guidelines range was 30 months' incarceration.  In essence, this amounts to a 100% downward variance, as Gall will not serve any prison time. Such a variance is extraordinary. "An extraordinary reduction must be supported by extraordinary circumstances." United States v. Dalton, 404 F.3d 1029, 1033 (8th Cir. 2005); see also Claiborne, 439 F.3d at 481 (holding that the district court's imposition of a 15-month sentence when the Guidelines range was 37 to 46 months' imprisonment, a 60% downward variance, was unreasonable).  We conclude that this extraordinary variance is not supported by extraordinary justifications.