June 06, 2008

In two key decisions issued in December 2007, the United States Supreme Court has picked up where it left off following last term’s ruling in Rita v. United States, and has provided further – and much-needed – guidance to lower courts and practitioners as to the mechanics of federal sentencing in the post-Booker era in which the Sentencing Guidelines are no longer mandatory. In its two latest decisions, Gall v. United States, 128 S. Ct. 586 (2007), and Kimbrough v. United States, 128 S. Ct. 558 (2007), the Court has made clear that district court judges have substantial discretion to impose non-Guidelines sentences and need not find extraordinary circumstances in order to justify such sentences, as had been previously required by many courts of appeals.   And perhaps more importantly for defendants and their attorneys, the courts of appeals may not apply a presumption of unreasonableness to non-Guidelines sentences, and instead must give due deference to the sentencing judge’s decision that the 18 U.S.C. § 3553(a) factors, on the whole, justify the sentence imposed.

Although these decisions should be heralded by defense attorneys as confirming that a Guidelines sentence may not simply be presumed reasonable, and that sentencing judges have been restored substantial discretion to impose below-Guidelines sentences, it cannot be overlooked that such discretion includes the ability to impose not only below-Guidelines sentences, but also sentences above the Guidelines range. Although the impact of Gall/Kimbrough in the lower courts has been immediate, as shown by numerous lower court opinions issued in the weeks following the Supreme Court’s latest sentencing pronouncements, the long-term impact of these decisions on the number of non-Guidelines sentences imposed, and the extent of such deviations, remains to be seen.

A. The Gall/Kimbrough Opinions

In Rita v. United States, 127 S. Ct. 2456 (2007), the Court held that a court of appeals may, but is not required to, presume that a sentence that falls within the applicable Guidelines range is reasonable for purposes of appellate review. A companion case argued with Rita, Claiborne v. United States, raised the corollary question of whether the courts of appeals may apply a proportionality test to review sentences, and in doing so require that a sentence that constitutes a substantial variance from the applicable Guidelines range be justified by extraordinary circumstances. The Court did not reach the question raised in Claiborne due to the petitioner’s untimely death, which mooted the case. The Court granted certiorari in Gall v. United States to address that very question, and on December 10, 2007, in an opinion delivered by Justice Stevens, rejected the notion that extraordinary circumstances were required to justify a sentence outside the range, or that rigid use of mathematical formulas (that use a percentage of a departure) as a standard for determining the justification for a variance to a specific sentence were required. Instead, Justice Stevens wrote that a court of appeals must apply a deferential, abuse-of-discretion standard, regardless of whether the sentence is inside, just outside, or significantly outside the Guidelines range, and that a district judge’s justification to vary from the Guidelines simply must be sufficiently compelling to support such a deviation.

In Gall, the petitioner, while a second-year college student, joined an ongoing enterprise distributing the controlled substance known as Ecstasy. Shortly after joining the enterprise, Gall decided to stop using Ecstasy, and a few months later, voluntarily withdrew from the criminal conspiracy and ceased using and selling illegal drugs altogether. He later graduated from college, and was successfully employed in the construction industry. More than three years after withdrawing from the conspiracy, Gall was charged, along with seven other defendants, with participating in a six-year conspiracy to distribute Ecstasy, cocaine, and marijuana. Gall subsequently pleaded guilty, and the presentence report called for sentencing in the range of 30 to 37 months. The District Court, however, imposed a 36-month sentence of probation, which it believed was warranted in light of Gall’s withdrawal from the conspiracy; extraordinary post-offense conduct, including his graduating from college and starting a successful business; support from family and friends; lack of criminal history; and age at the time of the offense. In addition to making a lengthy statement on the record, the District Court filed a detailed sentencing memorandum explaining its decision, and provided a complete statement of reasons in the final judgment. The District Court further noted that probation, “rather than ‘an act of leniency,’ is a ‘substantial restriction on freedom,’” because Gall would be required to comply with strict reporting conditions, submit to alcohol and drug testing, seek approval of his probation officer should he wish to relocate or change jobs, and face harsh consequence should he violate any of the terms of his probation.

On appeal, the 8th Circuit reversed, applying a proportionality test which requires that a sentence outside the Guidelines range must be supported by a justification that “is proportional to the extent of the difference between the advisory range and the sentence imposed.” The sentenced imposed by the District Court failed this test, the 8th Circuit held, because a sentence of probation constituted a “100 percent downward variance,” and was not supported by extraordinary circumstances.

At the outset of its opinion reversing the 8th Circuit, the Supreme Court reaffirmed once again that, although they are now advisory, the Sentencing Guidelines nonetheless merit significant consideration in the sentencing process, because they are “the product of careful study based on extensive empirical evidence derived from the review of thousands of individual sentencing decisions.” As such, a district judge must set forth a sufficient explanation for why an unusually harsh or lenient sentence is justified under the circumstances of a given case, and may not simply presume that a Guidelines sentence is reasonable. On appeal, a court of appeals is entitled to “take the degree of variance into account and consider the extent of a deviation from the Guidelines.” The Court explicitly rejected the 8th Circuit’s approach and held that a court of appeals is not permitted to require a showing of extraordinary circumstances to justify a sentence outside the Guidelines range, nor may an appellate court make 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.” The flaw in these approaches, the Court wrote, is that they “come too close to creating an impermissible presumption of unreasonableness for sentences outside the Guidelines range.” The Court specifically rejected the notion that a heightened standard of review should be applied to sentences outside the Guidelines range, instead making clear that the abuse-of-discretion standard of review applies, regardless of whether the sentence is inside or outside the range.

The Court’s opinion in Gall further proceeded to provide guidance for district judges in imposing sentences and for appellate judges in reviewing the reasonableness of such sentences. Justice Stevens reiterated that the Guidelines themselves should be “the starting point and the initial benchmark” for a district judge. However, the Guidelines are not the only consideration; a district judge must give proper consideration to all of the 18 U.S.C. § 3553(a) factors, and may not simply presume that the applicable Guidelines range is reasonable. If the judge decides that a non-Guidelines sentence is appropriate, he or she must “ensure that the justification is sufficiently compelling to support the degree of the variance” and must adequately explain why the sentence was chosen in order to allow for meaningful appellate review.

In reviewing sentences, the Court held that a court of appeals first must ensure that the district judge did not commit procedural error, such as improperly calculating the Guidelines range, treating the Guidelines as mandatory, or failing to consider the § 3553(a) factors. Next, the court of appeals should consider the substantive reasonableness of the sentence under an abuse-of-discretion standard. If the sentence is within the Guidelines range, the Court of Appeals may, but is not required to, apply a presumption of reasonableness. But if the sentence is outside the range, the Court of Appeals may not apply a presumption of unreasonableness. The Appellate Court may consider the extent of the variance, but must give “due deference to the district court’s decision that the § 3553(a) factors, on a whole, justify the extent of the variance.” Notably, the Court observed that “[t]he fact that the Appellate Court might reasonably have concluded that a different sentence was appropriate is insufficient to justify reversal of the District Court.” Such deference is mandated, according to the Court, because the sentencing judge is in a “superior position to find facts and judge their import under § 3553(a) in the individual case,” which is attributable to an institutional advantage that district courts have over appellate courts in making these types of determinations.

The Court concluded by determining that the district court reasonably imposed a sentence of probation on Gall, and properly justified why it had selected such a non-Guidelines sentence in light of the § 3553(a) factors, and that the 8th Circuit had not given sufficient deference to the district court’s sentencing decision. Justice Stevens found that the district court had quite properly attached great weight to Gall’s voluntary withdrawal from the conspiracy, his immaturity at the time of the offense, and his self-motivated rehabilitation, all of which were sufficient to reasonably justify a sentence of probation in this case, notwithstanding that the Guidelines called for a term of imprisonment of 30 to 37 months. The Court specifically rejected the 8th Circuit’s holding that Gall’s sentence of probation “lies outside the range of choice dictated by the facts of the case,” and in a passage sure to be cited by defense lawyers arguing for below-Guidelines sentences, wrote that since the Guidelines are no longer mandatory, “the ‘range of choice dictated by the facts of the case’ is significantly broadened.”

In a companion opinion delivered the same day as Gall, the Court held in Kimbrough v. United States, 128 S. Ct. 558 (2007), that the Guidelines governing cocaine offenses, like all other Guidelines, are advisory only, and that a sentencing judge may consider the highly controversial disparity between the Guidelines’ treatment of crack and powder cocaine offenses in rendering an appropriate sentence. The defendant in Kimbrough was charged with drug and firearms offenses involving crack and powder cocaine, and pleaded guilty in an agreement pursuant to which he acknowledged responsibility for 56 grams of crack and 92.1 grams of powder cocaine.  The applicable Guidelines range for Kimbrough’s offenses was 228 to 270 months (compared to 97 to 106 months had he been responsible for an equivalent amount of powder cocaine only). The district court sentenced Kimbrough to 15 years (180 months) — which was the statutory minimum sentence for the charged offenses —finding that this case exemplified the “disproportionate and unjust effect that crack cocaine guidelines have in sentencing.” The 4th Circuit reversed in an unpublished decision, holding that a non-Guidelines sentence is per se unreasonable when it is based upon a disagreement with the sentencing disparity for crack and powder cocaine offenses. In an opinion written by Justice Ginsburg, the Court reversed and, as in Gall, found that the court of appeals failed to give the appropriate deference due to the sentencing judge: “Giving due respect to the District Court’s reasoned appraisal, a reviewing court could not rationally conclude that the 4.5 year sentence reduction Kimbrough received qualified as an abuse of discretion.”

Although Kimbrough’s treatment of the crack/powder disparity is of less relevance for white-collar practitioners, one particular aspect of Justice Ginsburg’s opinion for the Court is cause for some concern for defendants and their counsel. In Part IV of her opinion, Justice Ginsburg wrote that “a district court’s decision to vary from the advisory Guidelines may attract greatest respect when the sentencing judge finds a particular case ‘outside the “heartland” to which the Commission intends individual Guidelines to apply.’”  On the other hand, Justice Ginsburg noted that “closer review may be in order when the sentencing judge varies from the Guidelines based solely on the judge’s view that the Guidelines range ‘fails property to reflect § 3553(a) considerations’ even in a mine-run [or typical] case.” These passages suggest that a sentencing judge may be constrained in varying based solely on a policy disagreement with a particular Guideline, but, as Justice Scalia points out in his concurring opinion rejecting this reading of Justice Ginsburg’s opinion, “the 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.”

B. The Impact of Gall/Kimbrough in the Lower Courts

The decisions in Gall and Kimbrough have had an immediate impact upon numerous sentencing appeals currently pending before the Supreme Court and in the lower courts. With respect to its own docket, since Gall and Kimbrough were issued, the Supreme Court granted certiorari in numerous sentencing cases and vacated and remanded those appeals for further consideration in light of Gall and Kimbrough. Two white collar cases among this group are particularly instructive. In Davis v. United States, No. 07-206, the Supreme Court vacated and remanded for reconsideration the case of a tax protestor who had received a non-Guidelines sentence of probation conditioned upon one year of house arrest, despite failing to file tax returns for 12 years. In that case, the 4th Circuit had vacated the sentence, finding that the district court (1) erroneously discarded the importance of deterrence in imposing sentence; (2) failed to impose a sentence that reflected the seriousness of the offense and provided just punishment; and (3) relied too heavily on the defendant’s extraordinary record of charitable contributions. In another case, Taylor v. United States, No. 07-388, the defendant was convicted of aiding and assisting in the preparation of false tax returns, and was sentenced to a non-Guidelines sentence of one year in a halfway house and five years of probation. Following the government’s appeal, the First Circuit reversed, finding that the district court failed to give full consideration to the § 3553(a) factors, including the nature and circumstances of the defendant’s crime, the need to reflect the seriousness of the crime, and the need for deterrence. In both of these cases, the district courts imposed non-Guidelines sentences that were significantly below the applicable Guidelines range, and the courts of appeals ruled that such sentences were unreasonable. With their judgments vacated and the cases remanded, the courts of appeals will have to consider these sentences anew within the prism of Gall’s command that they “must give due deference to the district court’s decision that the § 3553(a) factors, on the whole, justify the extent of the variance.”

A number of recent appellate decisions illustrate how lower courts are approaching sentencing in the aftermath of Gall and Kimbrough. As noted above, the Court’s two opinions stress that district court judges are entitled to more discretion in sentencing, which should in most instances benefit defendants and their lawyers who will argue for below-Guidelines sentences as an appropriate exercise of sentencing discretion. Exemplifying that point, on December 28, 2007, the 4th Circuit in United States v. Pauley, 511 F.3d 468 (4th Cir. 2007), affirmed a 42-month sentence in a child pornography case where the Sentencing Guidelines called for a sentence of 78 to 97 months. Such a variance was appropriate, the court of appeals held, in light of numerous mitigating factors, including (1) the small number of pornographic photographs found in the defendant’s home; (2) the victim’s face did not appear in the photos; (3) the defendant’s deep remorse; (4) the defendant was a good father and teacher; (5) the defendant lost his teaching certificate and his pension as a result of the offense conduct; and (6) the defendant agreed to a lifetime of supervised release. In contrast, the 11th Circuit held in United States v. Pugh, 515 F.3d 1179 (11th Cir. Jan. 31, 2008), that a probationary sentence in a child pornography case, where the Guidelines called for a 97 to 120 month sentence, could not be affirmed “even under the most recent Supreme Court precedent, affording substantial deference to the district court’s sentencing determinations.”

On the other hand, some recent lower court rulings have confirmed that defendants will not always benefit in the post-Gall era. For example, on December 20, 2007, the 6th Circuit affirmed above-Guidelines sentences in two cases as appropriate exercises of the sentencing judges’ discretion under the facts of each case. In United States v. Bolds, 511 F.3d 568 (6th Cir. 2007), the Court of Appeals upheld a sentence of 24 months in a violation of supervised release case where the advisory Guidelines range was 4 to 10 months. In United States v. Lane, 509 F.3d 771 (6th Cir. 2007), the Court of Appeals upheld a 68 month sentence in a wire fraud case where the Guidelines called for a sentence of 41 to 51 months. In United States v. Ramirez, 2008 WL 185509 (11th Cir. Jan. 23, 2008), the 11th Circuit affirmed, with little explanation, a 60-month statutory maximum sentence in a larceny case involving $1,000 of personal property, where the Guidelines called only for an eight to 12 month sentence. And most recently, in United States v. Evans (No. 06-4789, May 27, 2008), the 4th Circuit affirmed, in an identity fraud case, a sentence of 125 months, which represented an over 300 percent upward deviation from the Guidelines range of 24 to 30 months.

Although it remains to be seen whether the Court’s latest decisions in Gall and Kimbrough will increase the number of non-Guidelines sentences imposed, the clear message from these decisions is that the sentencing judge is in the best position to determine the appropriate sentence to be imposed and that the appellate courts must give due deference to that assessment when reviewing sentences for reasonableness. Perhaps more importantly, the sentencing judge must not presume that a Guidelines sentence is reasonable, but instead must make an individualized assessment based upon the facts presented. Like the defendant in Gall, this should open the door for sentencing judges to give meaningful consideration of such subjective characteristics such as the defendant’s age, character, family circumstances, charitable and civic contributions, and post-offense rehabilitation – factors that were given little or no weight under the advisory Guidelines regime. As the en banc 6th Circuit observed in United States v. Vonner, 516 F.3d 382 (6th Cir. 2008), “Booker breathes life into the authority of district court judges to engage in individualized sentencing within reason in applying the § 3553(a) factors to the criminal defendants that come before them.” Although a return to individualized sentencing in the post-Booker era should bode well for criminal defendants (particularly white-collar offenders), it is too early to tell whether the Court’s pronouncements in Gall and Kimbrough truly herald a new era in federal criminal sentencing, or whether sentencing judges will continue to be drawn to, and guided by, the Sentencing Guidelines in making sentencing determinations.

Mr. Lee is a former trial attorney with the United States Department of Justice. He is a partner in the Philadelphia office of Blank Rome LLP and member of the firm’s White Collar, Government, and Internal Investigations practice group. Mr. Lee may be reached at 215-569-5352 and [email protected].