Client Alert

U.S. Supreme Court Significantly Expands Discretion of District Courts under Sentencing Guidelines

December 18, 2007

In two cases decided last week—Gall v. United States and Kimbrough v. United States—the U.S. Supreme Court continued to expand the discretion of federal courts sentencing criminal defendants. For most of the past two decades, that discretion had been greatly circumscribed by the United States Sentencing Guidelines. Two years ago, in United States v. Booker, 543 U.S. 220 (2005), the Court restored a significant measure of discretion to sentencing judges, finding that the Guidelines were "advisory" rather than mandatory, and that reviews on appeal would be limited to determining whether a sentence was "reasonable." 543 U.S. at 245. The exact contours of that reasonableness standard were undefined by Booker, leaving practitioners and observers with significant questions as to its meaning. In Gall and Kimbrough, the Court has now provided some answers, and made clear that those contours are quite expansive.

Background

The United States Sentencing Guidelines were adopted in 1987, primarily to address what was perceived as excessive disparities in sentencing. Prior to the Guidelines, sentencing decisions were left largely to the discretion of individual judges, and sentences varied widely. Critics complained that two similarly situated individuals committing the same offense could receive vastly different sentences—from 5 years imprisonment to probation, for example—depending on the proclivities of the sentencing judge. To eliminate such disparities and establish more uniformity throughout the United States, Congress created the United States Sentencing Commission, which in turn promulgated the Guidelines.

Contrary to the impression created by their name, however, the Guidelines were far more than mere "suggestions." The statute made them mandatory, 18 U.S.C. § 3553(b)(1), and required the sentencing court to impose a sentence that fell within a narrow range of months, unless the court could find one of a limited number of bases for departing from that range. The statute further required that, on appeal, any such departures from the Guidelines range be reviewed de novo. 18 U.S.C. § 3742(e).

Two years ago, in Booker, the Court held that the mandatory nature of the Guidelines violated the Sixth Amendment of the Constitution. To remedy this problem, the Court severed and excised the provision of the statute that rendered the Guidelines mandatory, thus rendering the Guidelines “effectively advisory.” 543 U.S. at 245. The Court also severed and excised the statute’s provision requiring de novo review on appeal of any departures from the Guidelines ranges, 18 U.S.C. § 3742(e), because that provision depended on the Guidelines’ mandatory status. 543 U.S. at 245. Accordingly, appellate review of sentencing decisions would henceforth be limited to determining whether they were "reasonable." The Court left it for future decisions to clarify what this standard meant, and thus set the stage for the two decisions announced last week.

The Recent Decisions

In Gall, the Supreme Court upheld a sentence of probation for a defendant who had sold ecstasy while in college, but had stopped after approximately seven months and then gone on to graduate and start his own successful construction business. The Guidelines called for a prison sentence between 30 and 37 months. Because of the defendant's laudable post-offense conduct, though, the district court sentenced him to probation. The Eighth Circuit reversed on the ground that a sentence outside the Guidelines range must be supported by a justification that is "proportional to the extent of the difference" between the Guidelines range and the actual sentence. Characterizing the difference between the Guidelines range of 30-37 months and probation as "extraordinary," the Eighth Circuit found that such a variance must be—and in this case was not—supported by extraordinary circumstances.

The Supreme Court rejected this approach. While the extent of the difference between a particular sentence and the Guidelines range is relevant, it said, following the Eighth Circuit's approach would "come too close to creating an impermissible presumption of unreasonableness for sentences outside the Guidelines range." Rather, "courts of appeals must review all sentences—whether inside, just outside, or significantly outside the Guidelines range—under a deferential abuse-of-discretion standard," under which lower court decisions must stand unless the appellate court finds the lower court has abused its discretion. In applying this standard, courts of appeal must "take into account the totality of the circumstances" and must "give due deference” to the district court's decision. The Supreme Court reversed and, based on the record before it, concluded that the district court’s sentence was reasonable.

The second case, Kimbrough, presented the more specific question of whether a sentence below the Guidelines range was per se unreasonable when based on the sentencing court's disagreement with the Guidelines' disparate treatment of crack cocaine and powder cocaine. (The Guidelines called for sentences for crack three to six times longer than for offenses involving the same amounts of powder, based on the premise that crack cocaine was significantly more harmful than powder cocaine—a premise that led to controversy almost from the outset, with critics claiming among other things that it was racially biased and resulted in sentences that were far too harsh.)

In Kimbrough, along with other crimes the defendant had distributed crack, and faced a Guidelines range of 19–22.5 years. The district court observed that the defendant's Guidelines’ range would have been significantly lower—approximately 8-9 years—had he distributed cocaine powder. Concluding that the Guidelines' harsher treatment of crack was both disproportionate and unjust, the district court sentenced the defendant to a term of 15 years. The Fourth Circuit vacated this sentence, holding that a downward departure based solely on disagreement with the Guidelines’ treatment of crack was per se unreasonable. The Supreme Court, however, reversed. The Court held that, in considering the Guidelines, the district court was free to determine that a within-Guidelines sentence was greater than necessary to serve the objectives of sentencing, and that "[i]n making that determination, the judge may consider the disparity between the Guidelines’ treatment of crack and powder cocaine offenses."

Conclusion

Taken together, Gall and Kimbrough make clear that the door pushed ajar by Booker will remain wide open. In Gall, the Court upheld a sentence substantially outside the Guidelines range, and stressed that sentencing determinations must receive substantial deference and be reversed only for an abuse of discretion. In Kimbrough, the Court went even further, blessing a departure from the Guidelines based primarily on the district court’s own disagreement with the scheme of the Guidelines itself.

Prior to adoption of the Guidelines, the fate of a criminal defendant faced with sentencing often depended to a significant degree on the type of judge—lenient or harsh—assigned to his case. Whether Gall and Kimbrough signal the beginning of a return to that era remains to be seen. It is clear, however, that while the Guidelines must be "the starting point and initial benchmark" for sentencing decisions, Gall, 552 U.S. at __ (slip op., at 11), the Supreme Court has given district courts considerable latitude to deviate from that benchmark, with much lower risk that such deviations will be countermanded on appeal.