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Supreme Court sentencing deluge

By: dmc-admin//December 17, 2007//

Supreme Court sentencing deluge

By: dmc-admin//December 17, 2007//

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On Dec. 10, attorneys across the United States received their copies of the latest version of the federal Sentencing Guidelines from Thomson West.

But on the same morning, the U.S. Supreme Court issued two decisions limiting the significance of those guidelines, and a third narrowing the definition of “use” of a firearm during a drug offense.

In Gall v. U.S., the Court held that the deferential abuse-of-discretion standard that the appellate courts apply to sentences within the guidelines also applies to sentences outside the guidelines, regardless of whether they are just outside them, or extraordinarily outside them.

The Supreme Court overruled Seventh Circuit precedent it construed as holding that an extraordinary variance must be justified by extraordinary circumstances. U.S. v. Johnson, 427 F.3d 423, 426-427 (7th Cir. 2005).

In the second case, Kimbrough v. U.S., the court held that a district court may deviate from the sentencing guidelines for crack cocaine, based on the disparity between sentences for crack and powder cocaine.

That decision overrules Seventh Circuit precedent, which disallowed a below-guideline sentence based on a district court’s disagreement with that disparity. U.S. v. Miller, 450 F.3d 270, 275-276 (7th Cir. 2006).

The third decision issued Dec. 10, Watson v. U.S., held that accepting a firearm as payment for controlled substances does constitute “use” of a firearm in connection with a drug offense. That holding reaffirms existing Seventh Circuit precedent, however. U.S. v. Westmoreland, 122 F.3d 431 (7th Cir. 1997).

Gall

In 2000, Brian Gall joined an ongoing conspiracy to distribute MDMA (ecstacy), and netted more than $30,000 before voluntarily withdrawing from the conspiracy seven months later.

The district court found that he no longer uses or sells drugs, and has rehabilitated himself. As a result of his rehabilitation, the district court sentenced him to 36 months probation, although the applicable guideline range was 30 to 37 months imprisonment.

The Eighth Circuit reversed, citing the Seventh Circuit’s opinion in Johnson with approval, concluding that a “100 percent downward variance” must be supported by extraordinary circumstances. U.S. v. Gall, 446 F.3d 884 (8th Cir. 2006).

The Supreme Court granted certiorari, and reversed the Eighth Circuit, in an opinion by Justice John Paul Stevens.

Iterating its holding in U.S. v. Booker, 543 U.S. 220 (2005), that appellate review of sentencing is for reasonableness, the court concluded that both the mathematical formula employed by the Eighth Circuit, and the extraordinary circumstances approach of the Seventh, are incompatible with that standard.

The court wrote, “[T]he approaches we reject come too close to creating an impermissible presumption of unreasonableness for sentences outside the Guidelines range (cite omitted).”

Reviewing the district court’s sentence under the deferential reasonableness standard, the court held the sentence was reasonable, and reversed the Eighth Circuit’s reversal.

Among the two concurrences (by Scalia and Souter) and the two dissents (by Thomas and Alito), only the Alito dissent discussed the merits of the case in depth, concluding, “It is unrealistic to think that this goal [of avoiding excessive sentencing disparities] can be achieved over the long term if sentencing judges need only give lip service to the Guidelines.”

Kimbrough

Derrick Kimbrough was convicted of cocaine offenses (including crack cocaine) and was sentenced to the statutory minimum (180 months), although the applicable guideline range was 228 to 270 months.

The district court contrasted the guideline range with that which would have applied if all the cocaine was powder (97 to 106 months), and concluded that the statutory minimum was “clearly long enough” to accomplish the sentencing objectives in 18 U.S.C. 3553(a).

The Fourth Circuit vacated the sentence concluding that a sentence outside the guidelines range is “per se unreasonable when it is based on a disagreement with the sentencing disparity for crack and powder cocaine offenses.”

The Supreme Court granted certiorari, and reversed, in an opinion by Justice Ruth Bader Ginsburg.

The court began with a review of the history of the 100-1 ratio: the 1986 Act creating the ratio with respect to mandatory minimums; the Sentencing Commission’s creation of guideline ranges that maintain that ratio; a subsequent attempt by the Commission to ameliorate the ratio; Congress’ rejection of that attempt; and finally, the Commission’s partial amelioration of the ratio, effective Nov. 1, 2007, which did not prompt any congressional action.

The government acknowledged that district courts may vary from the guidelines based on policy considerations, including disagreements with the guidelines, but contended that the 100-1 ratio reflected a “specific policy determination” that bound the courts.

However, the court disagreed, for a variety of reasons.

First, the court noted that the 1986 Act only employed the ratio in establishing mandatory minimums – minimums which still must be adhered to, even when a district court has policy disagreements regarding the guidelines.

Second, the Commission’s most recent action to ameliorate the effects of the ratio were met with congressional silence, in contrast to its earlier efforts.

Finally, the court acknowledged when it issued Booker that departures from uniformity in sentencing would be an unavoidable cost of making the guidelines advisory; thus, there may be disparity in the treatment of crack cocaine defendants among different judges, but the disparity is not an unwarranted one under Booker.

The court further noted that the creation of the guideline ranges for crack cocaine differed from other offenses. The guideline ranges generally were based on empirical data of what sentences were imposed before the guidelines. However, since crack cocaine and the guidelines came into existence about the same time, there was no empirical data to support those guidelines.

The court thus concluded, “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 sec. 3553(a)’s purpose, even in a mine-run case.”

Applying the deferential reasonableness standard to Kimbrough, the court concluded that the sentence was not an abuse of discretion, and reversed the Fourth Circuit’s vacation of the sentence.

Watson

Michael A. Watson met with a government informant, and traded 24 doses of OxyContin for a .50 caliber semiautomatic pistol.

After Watson pleaded guilty to distributing the dr
ug, and “using” the pistol in relation to the crime, the district court added to the drug sentence a 60 month consecutive sentence pursuant to 18 U.S.C. 924(e) for using the gun during the drug offense. He appealed, but the Fifth Circuit affirmed.

The U.S. Supreme Court accepted certiorari, and reversed in an opinion by Justice David H. Souter, holding that a person does not use a firearm within the statute, when he trades narcotics to obtain a gun.

The court acknowledged that, in Smith v. U.S., 508 U.S. 223 (1993), it held that a criminal who trades his firearm for drugs “uses” it during and in relation to a drug trafficking offense.

However, the court concluded that the corollary was not true, and that it would be contrary to plain English to hold it was.

Souter wrote, “The Government may say that a person ‘uses’ a firearm simply by receiving it in a barter transaction, but no one else would. A boy who trades an apple to get a granola bar is sensibly said to use the apple, but one would never guess which way this commerce actually flowed from hearing that the boy used the granola.”

Accordingly, the court reversed the Fifth Circuit’s affirmance of Watson’s sentence.

Analysis

In Wisconsin, the three opinions have three different effects. Watson merely reaffirms existing law, set forth in Westmoreland.

Kimbrough effects a major change, overruling the holding in Miller that judicial disagreement with the crack/powder ratio is not a permissible ground for a below-guideline sentence. It also implicitly abolishes the Seventh Circuit’s distinction between common and particularized factors, set forth in U.S. v. Wallace, 458 F.3d 606, 611 (7th Circuit 2006).

The guideline sentences for crack are harsh on all defendants. Thus, the Seventh Circuit’s holding in Wallace — that there must be a reason why a guideline sentence is too harsh, particular to the defendant, rather than shared by all defendants — is now untenable.

However, Gall’s effect is unclear.

The Supreme Court rejects Seventh Circuit precedent that an extraordinary departure must be justified by extraordinary circumstances, a precedent that the court maintains was established in Johnson.

However, the law in the Seventh Circuit is far more nuanced than the Court gives it credit for (in fact, the court in Johnson actually affirmed a 236 month sentence, even though the guideline range was only 70-87 months).

The Court describes the law in both the Seventh Circuit and the Eighth Circuit as requiring that an extraordinary variance from the guideline range requires extraordinary circumstances.

What the Seventh Circuit actually requires is that the greater the deviation, the more compelling the district court's EXPLANATION must be. U.S. v. Dean, 414 F.3d 725, 729 (7th Cir. 2006). When the Seventh Circuit reviews a non-guideline sentence for reasonableness, it cites Dean for the applicable standard of review, not Johnson; the Seventh Circuit has also explicitly rejected the “mathematical” or “proportional” formula embraced by the Eighth Circuit.

The most comprehensive discussion of reasonableness review in the Seventh Circuit is Judge Sykes’ opinion in U.S. v. Wachowiak, 496 F.3d 744 (7th Cir. 2007) (affirming a 70 month sentence, despite a guideline range of 121-151 months).

In Wachowiak, the Court surveys a large number of prior published cases involving review of a non-guideline sentence for reasonableness.

The Court lists only four cases in which it vacated a sentence as unreasonably low; in almost every case, the district court imposed a probation-only sentence (or one-day imprisonment): Wallace; U.S. v. Repking, 467 F.3d 1091 (7th Cir. 2006); and U.S. v. Goldberg, 491 F.3d 668 (7th Cir. 2007). In the fourth, U.S. v. Roberson, 474 F.3d 432 (7th Cir. 2007), the court vacated a one-month sentence for bank robbery.

The Court in Wachowiak also cites numerous cases in which it has affirmed substantial variances from the departures: U.S. v. Baker, 445 F.3d 987 (7th Cir. 2006)(87 months imposed, despite guideline range of 108-135 months); and U.S. v. Ngatia, 477 F.3d 496 (7th Cir. 2007) (84 months imposed, despite guideline range of 188-235 months).

In Ngatia, the Seventh Circuit stated that, regardless of whether a sentence is inside or outside the guidelines, it is subject to “only light appellate review.” Id., 477 F.3d at 501-502.

That is very similar to the Supreme Court’s statement in Gall: “the abuse-of-discretion standard of review applies to appellate review of all sentencing decisions — whether inside or outside the guidelines range.” That is not necessarily inconsistent with Dean’s holding that a court must explain why it is deviating from the guidelines.

Thus, it could be said that Gall is consistent with the Seventh Circuit’s standard, notwithstanding the Court’s assumption it is rejecting that standard.

However, this interpretation would ignore the Supreme Court’s conclusion that the Eighth Circuit’s standard “gives no weight to the ‘substantial restriction of freedom’ involved in a term of supervised release or probation.” That statement may be equally true of the Seventh Circuit’s standard insofar as it frequently results in reversals of probation-only sentences.

Wachoviak, and all the Seventh Circuit cases cited therein affirming non-guideline sentences, entailed a significant prison sentence, while all the reversals involved none (or next to none).

Like the cases in which the Seventh Circuit vacated below-guideline sentences, Gall also involved a probation-only sentence, despite a guideline range calling for significant prison time.

In light of Gall, the Seventh Circuit will have to reconsider the application of its own standard, when it comes to probation-only sentences, if not the standard itself.

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