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.