March 2008
Supreme Court Further Undercuts Sentencing Guidelines
By Douglas E. Motzenbecker, LITIGATION NEWS Editor-in-Chief
Departures from guidelines to require less rigorous standard of review
Building on its 2005 decision in United States v. Booker [PDF] in which it declared the Federal Sentencing Guidelines unconstitutional, the U.S. Supreme Court has now held that, in reviewing a district court’s sentence in criminal cases, appellate courts must review the sentence under a deferential abuse-of-discretion standard. In Gall v. United States, [PDF] the Court concluded that departures from the guidelines need not be supported by extraordinary circumstances, subjected to heightened review, or presumed invalid.
In another case decided the same day as Gall, Kimbrough v. United States, [PDF] the Court effectively eviscerated the guidelines with respect to the substantial disparity between sentences for crack and powdered cocaine offenses.
In Booker, the Court declared the guidelines unconstitutional because they required the district court to sentence defendants on the basis of facts that had not been found by a jury, which violated the Sixth Amendment. The Court added that, going forward, the guidelines would be merely advisory. Since Booker, the federal courts have sought to determine the extent to which the guidelines remain relevant and how departures from the guidelines must be reviewed on appeal. Gall addressed those issues and resolved them largely in the defendant’s favor.
“Gall is an important decision. It reemphasizes that sentencing is a matter of district court discretion, discretion that had been limited, if not eliminated, by the sentencing guidelines in their pre-Booker heyday,” notes Lawrence S. Lustberg, Newark, NJ, former Co-Chair of the ABA Section of Litigation’s Criminal Litigation Committee.
“Gall really puts the guidelines in their place, making absolutely clear that, while the guidelines remain the starting point in any federal sentencing, they are not the ending point,” Lustberg adds, noting that the Court’s “approach is refreshing after the last two decades, in which guidelines-based rigidity rather than real judicial decision-making had been the basis of federal sentencing.”
In Gall, the defendant was charged with conspiring with two codefendants to distribute over 10,000 ecstasy pills from which he personally earned a $30,000 profit. The defendant was 21 at the time, in college, and himself a drug user. Seven months into the conspiracy, which reportedly lasted six years, the defendant informed his conspirators that he was withdrawing from the scheme. He subsequently stopped using drugs, completed college, and established his own construction business. He had no other criminal history and did not organize or lead the conspiracy, which involved no weapons or violence. Numerous family members and supporters wrote the sentencing judge to urge leniency.
Although the defendant’s two conspirators were convicted and given custodial terms of 30 and 35 months, respectively, the court sentenced the defendant to only 36 months’ probation—when the guidelines mandated a sentence ranging from 30 to 37 months. The judge found it particularly significant that, unlike the defendant, the conspirators had not withdrawn from the scheme or rehabilitated themselves.
The U.S. Court of Appeals for the Eighth Circuit, however, reversed the district court decision, finding that the sentencing judge failed to justify its extreme departure from the guidelines. In its brief in support of the proportionality test adopted by the Eighth Circuit, the United States urged the Court to give the guidelines greater weight, arguing that “[n]o measure other than the Guidelines can serve as an effective benchmark for proportionality review.”
The Supreme Court reinstated the sentence imposed by the district judge. It rejected the Eighth Circuit’s criticisms that the judge gave too much weight to the defendant’s withdrawal from the conspiracy, and that a probationary sentence would create unwarranted disparities in comparison to other punishments.
The Court found that additional mitigating factors included the defendant’s young age, the fact that he had completed college and founded a profitable business, and that many supporters had written the district judge to urge leniency. It held that, taken as a whole, these factors were sufficient to meet Booker’s mandate that the sentence need only be reasonable, and that the Eighth Circuit had failed to show sufficient deference to the district court’s judgment.
Under Gall, a sentencing judge must correctly determine what sentence is required under the guidelines, apply the seven-factor test specified in the guidelines (see 18 U.S.C. § 3553(a)), and then, the Court said, make “an individualized assessment based on the facts presented.”
According to Thomas A. Gilson, Phoenix, Co-Chair of the Criminal Litigation Committee, this means that “sentencing judges must still calculate and consider the guidelines range (which is based on the nature of the offense and the defendant’s criminal history), just as they did when the guidelines were binding, but Gall suggests that judges will have more discretion than they have had in years to depart, either up or down, from what the guidelines recommend.”
Even so, Gall should not be “read to mean that the Court has gone soft on crime,” Gilson says. “The Court took no position on whether district courts should be issuing harsh or lenient sentences. Indeed, it made clear that appellate courts are not to substitute their own judgment for that of the sentencing judge, whatever it may be.”
Although the Court affirmed the noncustodial sentence, “it is just as easy to imagine that with a different defendant, the review would have resulted in a sentence at or above the guidelines range—for example, for a defendant with a different criminal history,” says Laurie S. Fulton, Washington, DC, Gilson’s Co-Chair. “As I read Gall, it requires an individualized analysis of certain factors in reaching a sentencing determination, rather than the one-size-fits-all approach under the guidelines.”
In adopting the abuse of discretion standard of review, the Court “recognizes that the district court has the most information available to it, and that an appellate court cannot substitute its own analysis of the sentencing factors,” Fulton notes.
Gilson believes that, despite Gall, the guidelines will remain relevant in sentencing: “Some judges will take advantage of their liberation from the guidelines and impose more sentences above or below them. Under the Court’s recent precedent, however, sentences imposed within the guidelines are presumptively reasonable, so in most cases judges are still likely to follow them.”
