December 12, 2007
On December 10, 2007, the Supreme Court issued two 7-2 decisions clarifying that federal district judges have significant discretion to impose sentences below (or above) those called for under the Federal Sentencing Guidelines. These new decisions, in Gall v. United States, No. 06-7949, and Kimbrough v. United States, No. 06-6330, reinforce and further clarify the rulings in United States v. Booker and Rita v. United States that the Guidelines are merely advisory (one factor among several that must be considered by the sentencing judge) and that appellate courts may review sentences only for reasonableness, under the deferential abuse of discretion standard. Booker has had a limited impact in practice, because in its aftermath a majority of courts of appeals have required “extraordinary circumstances” for many non-Guidelines sentences, making it difficult for district judges to justify treating the Guidelines as truly advisory. In Gall, however, the Supreme Court rejected the “extraordinary circumstances” requirement as dangerously close to an impermissible presumption of unreasonableness for non-Guidelines sentences and inconsistent with the abuse of discretion standard of review.
The Gall opinion, authored by Justice Stevens, provided new guidance for lower courts. A district court must start with calculating the Guidelines range as an initial benchmark, but then is required to consider all “of the §3553(a) factors to determine whether they support the sentence requested by a party.” Put differently, the district court “may not presume that the Guidelines range is reasonable” but “must make an individualized assessment based on the facts presented.” If deciding to impose a non-Guidelines sentence, the district court must ensure that the justification supports the variance. Finally, the district court “must adequately explain the chosen sentence to allow for meaningful appellate review and to promote the perception of fair sentencing.”
An appellate court must first ensure that the district court committed no significant procedural error (e.g., the judge properly calculated the Guidelines range, considered the §3553(a) factors and adequately explained the chosen sentence). Next, the appellate court must consider the substantive reasonableness of the sentence under an abuse-of-discretion standard. Although the appellate court may apply a presumption of reasonableness to sentences within the Guidelines range, “the court may not apply a presumption of unreasonableness” to sentences outside the Guidelines range. Rather, while the appellate court may consider the extent of the deviation from the Guidelines, it “must give due deference to the district court’s decision that the §3553(a) factors, on the whole, justify the extent of the variance. The fact that the appellate court might reasonably have concluded that a different sentence was appropriate is insufficient to justify reversal of the district court.”
Applying these standards, the Supreme Court held that the court of appeals in Gall had erred in failing to give deference to the district court’s decision “that the §3553(a) factors justified a significant variance” from the Guidelines. Brian Gall’s voluntary withdrawal from the drug conspiracy in which he had participated, and his rehabilitation, each of which lends “strong support to the District Court’s conclusion that Gall is not going to return to criminal behavior and is not a danger to society,” created a reasonable basis for sentencing him to probation.
In an opinion authored by Justice Ginsburg, the Supreme Court also faulted the court of appeals in Kimbrough for its lack of deference to the district court’s decision in that case, which involved trafficking in crack cocaine. The Supreme Court explained that “a reviewing court could not rationally conclude that the 4.5-year sentence reduction Kimbrough received qualified as an abuse of discretion.” Rather, “in determining that 15 years was the appropriate prison term, the District Court properly homed in on the particular circumstances of Kimbrough’s case and accorded weight to the Sentencing Commission’s consistent and emphatic position that” the disparate penalties for crack and powder cocaine are “at odds with §3553(a).” The district court properly addressed all “the relevant §3553(a) factors, including the Sentencing Commission’s reports criticizing” the disparate penalties and appropriately “framed its final determination in line with §3553(a)’s overarching instruction to ‘impose a sentence sufficient, but not greater than necessary’ to accomplish the sentencing goals.”
Of potential concern to criminal defendants is the Supreme Court’s dictum in Kimbrough that sentences outside the Guidelines range “attract greatest respect” when the case is not “a mine-run case” and that “closer review may be in order” in a mine-run case “when the sentencing judge varies from the Guidelines based solely on the judge’s view that the Guidelines range ‘fails properly to reflect §3553(a) considerations.’” Nonetheless, the majority opinion admitted that this issue was not properly presented in this case because the crack Guidelines “do not exemplify the Commission’s exercise of its characteristic institutional role” that would warrant the type of respect it receives in mine-run cases, on account of the Commission’s failure to take account of “empirical data and national experience.” Accordingly, it would “not be an abuse of discretion for a district court to conclude when sentencing a particular defendant that the crack/powder disparity yields a sentence ‘greater than necessary to achieve §3553(a)’s purposes, even in a mine-run case.” Of particular note, Justice Scalia’s concurrence in Kimbrough takes issue with this dictum, explaining that, consistent with the requirements of the Sixth Amendment, this dictum cannot be read as a withdrawal from the holdings in Booker, Gall and Rita that a district court is “free to make its own reasonable application of the §3553(a) factors, and to reject (after due consideration) the advice of the Guidelines.”
It remains to be seen whether these two decisions will affect the number of sentences imposed outside of the Guidelines. The Supreme Court has now clearly signaled that judges have the power to impose non-Guidelines sentences, but the decision whether to exercise that power on a case-by-case basis ultimately rests with those same judges. In any event, while few defendants have the significant mitigating circumstances present in petitioner Gall’s case, the absence of such significant circumstances should not require a within-Guidelines sentence. To the contrary, the Supreme Court in Gall made clear that in every case–including an ordinary case or a “mine-run case”–the district court “may not presume that the Guidelines range is reasonable” but “must make an individualized assessment based on the facts presented,” based on all of the §3553(a) factors.
Gibson Dunn attorneys Miguel A. Estrada and David Debold, assisted by Minodora D. Vancea, filed an amicus brief in support of the defendants in these two cases, on behalf of the National Association of Criminal Defense Lawyers (NACDL). The Supreme Court adopted a test consistent with that advocated in Gibson Dunn’s brief for NACDL: That the proper formulation of reasonableness review “is one that gives the district court appropriate deference under the abuse of discretion standard fashioned by this Court in Rita and Booker and that focuses on whether the district judge considered all of the pertinent statutory factors as they apply to that particular case. The court of appeals should also examine whether the judge, after considering those factors, complied with the duty to impose a sentence sufficient, but ‘not greater than necessary’ to achieve the statute’s purposes.” Gibson Dunn represented NACDL in these matters as part of the firm’s and its lawyers’ strong commitment to performing significant work on a pro bono basis.
The Supreme Court’s decisions are available at:
This Update was prepared by Ms. Vancea and by Mr. Debold, who is also co-chair of the Practitioners Advisory Group to the United States Sentencing Commission and previously served as Special Counsel to the Commission.
Gibson, Dunn & Crutcher lawyers are available to assist in addressing any questions you may have regarding these issues. Please contact the Gibson Dunn attorney with whom you work, Miguel A. Estrada (202-955-8257, [email protected]) or David Debold (202-955-8551, [email protected]) in the firm’s Washington, D.C. office.
Gibson Dunn’s White Collar Defense and Investigations Practice Group has vast experience defending against a wide range of federal and state prosecutions in a variety of areas. For more information on the firm’s business crimes practice, please contact any member of the group, or practice group Co-Chairs
Thomas E. Holliday (213-229-7370, [email protected]) – Los Angeles
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