Supreme Court Issues Important Rulings Reaffirming the Centrality of District Courts' Sentencing Discretion

In two widely-awaited decisions, published yesterday, the Supreme Court reaffirmed the centrality of the district court's sentencing discretion, which should be reviewed on appeal on a "deferential abuse-of-discretion standard," whether the sentence was inside, above or below the applicable range dictated by the Sentencing Guidelines.  In Gall v. United States, No. 06-7949, the Court reversed the Eight Circuit's reversal of a probationary sentence for an ecstasy distribution conviction, where the Guidelines had called for a sentence of between 30 to 37 months.  The Court found that the Eighth Circuit failed to give due deference to the district court's "reasoned and reasonable decision." Noting that the Eighth Circuit clearly disagreed with the sentencing court's determination, the Court held "it is not for the Court of Appeals to decide de novo whether the justification for a variance is sufficient or the sentence reasonable."  Slip Op. at 21. Quoting from the amicus brief submitted by the Federal Public and Community Defenders, the Court pointed out “The sentencing judge is in a superior position to find facts and judge their import under §3553(a) in the individual case. The judge sees and hears the evidence, makes credibility determinations, has full knowledge of the facts and gains insights not conveyed by the record.”  Slip Op. at 13.

In Kimbrough v. United States, No.06-6330, the Court reversed the Fourth Circuit's reversal of a below-Guidelines sentence that had been based in part on the sentencing court's disagreement with the 100-1 sentencing disparity for crack and powder cocaine offenses. Since the cocaine guidelines, like all guidelines, are now simply advisory, the Court held, a district court is free to consider the disparity between the Guidelines' treatment of crack and powder offenses.

These decisions will be the subjects of extensive commentary, so I will limit my remarks to an initial list of defense nuggets from Gall that may prove useful in sentencing pitches:

• District Court May Not Presume that Guideline Sentence is Reasonable:  While appellate courts may adopt a presumption of reasonableness for a within-Guidelines sentence, the district court may not.  Although starting with the Guideline range as a benchmark, the sentencing judge "may not presume that the Guidelines range is reasonable. He must make an individualized assessment based on the facts presented."  Slip Op. at 11-12.
• Judge Must Consider Sentences Other Than Imprisonment: "[T]he Guidelines are only one of the factors to consider when imposing sentence, and §3553(a)(3) directs the judge to consider sentences other than imprisonment." Slip Op. at 20-21.
• Probation is no free pass: "Offenders on probation are nonetheless subject to several standard conditions that substantially restrict their liberty . . . Probationers may not leave the judicial district, move, or change jobs without notifying, and in some cases receiving permission from, their probation officer or the court. They must report regularly to their probation officer, permit unannounced visits to their homes, refrain from associating with any person convicted of a felony, and refrain from excessive drinking. Most probationers are also subject to individual 'special conditions' imposed by the court."  Slip Op. at 9-10.
• Probationary Sentence May In Fact Promote Respect for Law: "Moreover, the unique facts of Gall’s situation provide support for the District Judge’s conclusion that, in Gall’s case, 'a sentence of imprisonment may work to promote not respect, but derision, of the law if the law is viewed as merely a means to dispense harsh punishment without taking into account the real conduct and circumstances involved in sentencing.'"  Slip Op. at 15.
• Sentencing Court Should Avoid Unwarranted Sentencing Similarities: "[I]t is perfectly clear that the District Judge considered the need to avoid unwarranted disparities, but also considered the need to avoid unwarranted similarities among other co-conspirators who were not similarly situated."  Slip Op. at 17.
• Prison Sentences for Co-Defendants May Alleviate Societal Need for Prison Sentence in Instant Case: "The . . . legitimate concern that a lenient sentence for a serious offense threatens to promote disrespect for the law is at least to some extent offset by the fact that seven of the eight defendants in this case have been sentenced to significant prison terms."  Slip Op. at 15.
• Self-Motivated Rehabilitation Deserves Great Weight: "The District Court quite reasonably attached great weight to Gall’s self-motivated rehabilitation, which was undertaken not at the direction of, or under supervision by, any court, but on his own initiative."  Slip Op. at 21.
• Evidence of Rehabilitation Decreases Need for Specific Deterrence or Protection of Public: Gall's rehabilitation "also lends strong support to the conclusion that imprisonment was not necessary to deter Gall from engaging in future criminal conduct or to protect the public from his future criminal acts."  Slip Op. at 21.
• Immaturity at Time of Offense and Increased Maturity at Time of Sentencing are Mitigating Factors: "Given the dramatic contrast between Gall’s behavior before he joined the conspiracy and his conduct after withdrawing, it was not unreasonable for the District Judge to view Gall’s immaturity at the time of the offense as a mitigating factor, and his later behavior as a sign that he had matured and would not engage in such impetuous and ill-considered conduct in the future."  Slip Op. at 20.
  

Finally, I note that Kimbrough does not yield as much defense-fodder as Gall, since much of the decision is concerned with the validity and fairness of the 100/1 crack-cocaine disparity, a disparity which does not "exemplify the [Sentencing] Commission's exercise of its characteristic institutional role" since it was based on mandatory minimum sentences and not "empirical data and national experience."  Slip Op. at 21.  On a more universal note, however, in Kimbrough the Court found reasonable the district court's variance below the Guidelines in part because of the defendant's lack of prior felony convictions, military service with honorable discharge and "steady history of employment."  Slip Op. at 22.