WELCOME TO THE OFFICIAL RICHARD E GERSTEIN JUSTICE BUILDING BLOG. THIS BLOG IS DEDICATED TO JUSTICE BUILDING RUMOR, HUMOR, AND A DISCUSSION ABOUT AND BETWEEN THE JUDGES, LAWYERS AND THE DEDICATED SUPPORT STAFF, CLERKS, COURT REPORTERS, AND CORRECTIONAL OFFICERS WHO LABOR IN THE WORLD OF MIAMI'S CRIMINAL JUSTICE. THIS BLOG HAS BEEN CALLED "THE DEFINITIVE BLOG ON MIAMI CRIMINAL LAW" BY THE NY TIMES, THE WASHINGTON POST, THE POPE, AND DONALD TRUMP WHO ALSO ONCE SAID IT WAS "REALLY GREAT". POST YOUR COMMENTS, OR SEND RUMPOLE A PRIVATE EMAIL AT HOWARDROARK21@GMAIL.COM

Tuesday, December 11, 2007

FEDERAL (yawn) SENTENCING

Here is some shocking news. You might want to sit down before you read this. The Supreme Court decided yesterday that Judges must issue .....(hang on now)
reasonable sentences.

Granted, some Judges North of the Border were fit to be tied upon hearing the news, as well as an unfortunate minority of Judges in our building, but other than that, the decisions issued yesterday by the Supreme Court in Kimbrough HERE and Gall HERE were run of the mill, post Booker/Blakley federal sentencing cases.

Because we are a full service blog, we will summarize the decisions for you, so you don't have to waste precious time reading case law.


1) The majority opinion by Justice Ginsberg in Kimbrough is nothing earth shaking. Rather, in post Booker sentencing, the decision affirms the trial court’s ability to fashion a sentence above or below the guidelines, so long as the sentence is reasonable, and addresses the statutory provisions that a sentencing court must consider. Ginsberg wrote:

The ultimate question in Kimbrough’s case is “whether the sentence was reasonable—i.e., whether the District Judge abused his discretion in determining that the §3553(a) factors supported a sentence of [15 years] and
justified a substantial deviation from the Guidelines range.”


Yawn. So what else is new? Judges have to issue a reasonable sentence that accomplishes the goals of §3553(a). So long as a Judge says the sentence meets those goals, and does a fairly accurate on the record analysis of the specific factors in 3553, an appellate court should not disturb it.

What caught our attention was Justice Thomas’s dissent. The dissent in Kimbrough is a fairly nifty “I told you so” repudiation of the remedy of Booker.

Thomas wrote:

The Court, (in the Booker line of cases) however, chose a more sweeping remedy. Despite acknowledging that under the mandatory Guidelines not “every sentence gives rise to a Sixth Amendment violation,” the Court rendered the Guidelines advisory in their entirety and mandated appellate review of all sentences for “reasonableness.”

As will be seen, Thomas has a problem with the remedy of Booker.

As a result of the Court’s remedial approach, we are now called upon to decide a multiplicity of questions that have no discernibly legal answers.

In other words, Congress makes the law, court’s interpret the law. But here, according to Thomas, the Court has gone beyond invalidating the sentencing scheme of the guidelines. The court has manufactured a remedy, which after Booker, it must now continually define.


And if you know Justice Thomas like we know Justice Thomas, you know that he has no patience for judicial law making.

Congress did not mandate a reasonableness standard of appellate review—
that was a standard the remedial majority in Booker fashioned out of whole cloth. The Court must now give content to that standard, but in so doing it does not and
cannot rely on any statutory language or congressional intent.

We are asked here to determine whether, under the new advisory Guidelines regime, district courts may impose sentences based in part on their disagreement with
a categorical policy judgment reflected in the Guidelines.
But the Court’s answer to that question necessarily
derives from something other than the statutory language or congressional intent because Congress, by making the Guidelines mandatory, quite clearly intended to bind district courts to the Sentencing Commission’s categorical policy judgments. By rejecting this statutory approach, the Booker remedial majority has left the Court with no law to apply and forced it to assume the legislative role of devising a new sentencing scheme.

Rumpole says, what Justice Thomas does, and does very well, is point out the philosophical problem with post Booker sentencing: that the decisions apply court created remedies and thus now require the court to define the parameters of the remedy previously created. In Justice Thomas's world (and perhaps the world envisioned by our Constitution) Congress creates the law, the courts interpret the law.

In the other sentencing decision issued today, Gall v.US., Justice Stevens answered the question that the court could not get to last year: whether a reviewing court must apply a proportionality test to a sentence that is below the guidelines- meaning that should a sentence that is way below the guidelines be required to be supported by extraordinary reasons explaining the departure? Or is any departure that meets the reasonableness requirement valid no matter how disparate the variance between the guideline sentence and the ultimate sentence?


The Court had granted cert in a case asking just that question last year, but alas the Appellant assumed room temperature before the case was argued, mooting the decision, for him at least.

Justice Stevens wrote:

We also reject 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...


Assuming that the district court’s sentencing decision is procedurally sound, the appellate court should then consider the substantive reasonableness
of the sentence imposed under an abuse-of-discretion standard. ..But if the sentence is outside the Guidelines range, the court may not apply a presumption of unreasonableness. It may consider the extent of the deviation, 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. 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.


While Stevens does a better job than Ginsberg of explaining and defending the post Booker sentencing scheme, the message of both cases is the same: a reasonable sentence carries the day.

See you in court, where we generally avoid this whole messy problem by going to trial...and winning.

ps. You know things must be slow if we are driven out of boredom to read (gasp) case law.

18 comments:

Anonymous said...

Yawn -- There are only 9 justices so even you should manage to spell their names correctly. Ginsburg, not Ginsberg.

Anonymous said...

zzzzzzzzzzzzzzzzzzzz

Anonymous said...

Barzee and Carlos Martinez look ike the main contenders in the poll to replace BHB.

Is Barzee really up for it?

Colonel Angus said...

The JNC has sent six names up to the Governor for the soon to be open County Court Seat being vacated by Judge Mercedes Bach. They are:
Yvonne Colodny
Thomas Rebull
Rodney Smith
David Peckins
Lisa Walsh
Migna Sanchez-Llorens

God help us all....

Anonymous said...

Is the Honorable Julio Jiminez bound by these new Supreme Court Decisions?

Anonymous said...

This is a serious post. If anyone knows of an attorney who might be willing to pursue a case of Executive Clemency from the governor for an indigent man would they please post names on the blog. All normal procedures had just aged out when this case came to us. Thank you.

Anonymous said...

Maybe, just maybe, we might get a measure of due process back into the federal courts.

CAPTAIN said...

THE CAPTAIN REPORTS:

The Committee has met, the interviews were conducted, and the finalists to replace Judge Mercedes Bach - those names that will sent to the Governor's office, are as follows:

1. Yvonne Colodny
2. Migna Sanchez-Llorens
3. David Peckins
4. Thomas Rebull
5. Rodney Smith
6. Lisa Walsh

The Governor still has the names of six others pending for the replacement of Judge Jorge Perez. Those names are:

1. Joseph Davis
2. Judge Darrin Gayles
3. Judge Bronwyn Miller
4. David Peckins
5. Judge George Sarduy
6. Lisa Walsh

CAPTAIN OUT ........

Anonymous said...

Rump: have you been out on your yacht all day? I'm surprised you haven't taken the opportunity to "scoop" your favorite federal blogger. Judge Jordan already denied Thompson's motion AND called into question his respresentations in previous pleadings. However nobel a cause may be, the rule of law must be followed.

Anonymous said...

Hey Cap'n, it seems that the good Colonel Angus has beat you to the post of the six names sent to the Governor for the County Court seat by almost five hours. Someone else out there has less of a life than you do!

Anonymous said...

Rump: have you been out on your yacht all day? I'm surprised you haven't taken the opportunity to "scoop" your favorite federal blogger. Judge Jordan already denied Thompson's motion AND called into question his respresentations in previous pleadings. However nobel a cause may be, the rule of law must be followed.

Anonymous said...

A Peckins-Walsh double-dip! Will both of these perennial hopefuls be adorning the bench soon?

Fake $chleppi said...

If Rodney Smith becomes a Judge, then I am sending back my bar tab..I mean bar card.

Anonymous said...

RODNEY SMITH!!!!??? The former ASA?!!!! Let's Go DP and/or LW!!!!!....Jeez.

Anonymous said...

Has anyone seen the "Thompson/Tunis ReduxII"? Judge Jordan issued an order today that stated in part that at least one of Thompson's {previous} claims, which Judge Jordan accepted as true, "WAS NOT ACCURATE". What does this say about Thompson's other motion which was featured on this blog? Has anyone ever seen Judge Tunis get up and walk off the bench as was described, forbid discovery or deny a legitimate continuance when someone's family member was in fact 'dieing' of cancer? Hey Rump....it's Tuesday and it's still going on.

Anonymous said...

6 kids shot at Las Vegas bus stop. Now that's what I'm talking about. Keep up the good shooting. /s/President of the NRA

Anonymous said...

MIAMI LOVES MIGNA
NOW THE JQC LOVES HER TOO
IT WON'T BE VERY LONG
BEFORE SHE'S IN COURTROOM 2-2

Anonymous said...

DEAR U.S. SUPREME COURT JUSTICES: Please use the case currently pending before you to , in dictum, document the horrific amount of gun violence in the U.S. and give tacit permission for states and localities to severley restrict handgun possession, ownership, and give permission of LEO to do stop and frisk of juveniles-currently the most dangerous people in American society other than white male politicians. IN the D.C gun case they will probably uphold a citizen's right to have a handgun in their home. P.S. There have been 7 mass shootings in the U.S. in the last week alone. I guess we won't see any Congressional action unless someplace like a school that all the congressmen send their kids to in washington has a mass shooting. Could it be that our youth are so violent because they have seen our country engage in two wars in Iraq because of oil prices and are currently engaged militarily occupying a country and killing its civilians by the thousands even after our commander in chief and president has publicly admitted that Iraq did not attack us on 9/11. Since 1991 juveniles committing crimes with guns has become an epidemic. Thank you Bush family for imploring a whole generation of children to be violent and that murder is tacitly approved by the White HOuse and Presidency. You are war criminals, should be indicted and imprisoned.