Second Circuit Issues Notable Decision Distilling Recent Developments in Sentencing Jurisprudence and Clearly Reaffirming Centrality of Sentencing Court’s Discretion

In a lengthy opinion authored by Judge Reena Raggi, the Second Circuit has elegantly distilled recent developments in federal sentencing jurisprudence.  In the process, it has categorically reaffirmed the centrality of the “individualized assessment” of the district court, which “has access to, and greater familiarity with, the individual case and the individual defendant before [it]” and is charged with the “particular trust” of ensuring that “every convicted person [be considered] as an individual and every case as a unique study in human failings that sometimes mitigate, sometimes magnify, the crime and the punishment to ensue” (quoting various recent Supreme Court cases).    

The immediate sentencing issue in United States v. Jones, 05-5879-cr, 2008 WL 2500252 (2d Cir. June 24, 2008), was whether a sentencing court may use money attributable to drug transactions to determine quantity of drugs relevant to sentencing (brief answer, yes) and whether the sentencing court’s ambiguous statements regarding its power to reject the Sentencing Commission’s 100-1 crack-cocaine guideline ratio mandated resentencing (brief answer, also yes).

But the Jones Court also took the opportunity to do an extensive review of recent Second Circuit and Supreme Court sentencing jurisprudence.  While it does not break any new ground, its detailed analysis of the interplay between the Sentencing Guidelines and the requirement of individualized sentencing should give a district court pause before it blindly adheres to applicable guideline ranges.  The entirety of the decision is a must-read for any federal practitioner, but here are some very quotable highlights (with lots of citations omitted):

• Sentencing court may not presume Guidelines range is reasonable.  “In short, while a sentencing court is statutorily obligated to give fair consideration to the Guidelines before imposing sentence, in the end, it must make an ‘individualized assessment’ of the sentence warranted by § 3553(a) ‘based on the facts presented.’”

• Deference to sentencing court derives from its unique ability to make individualized assessments.  “[D]istrict courts have two distinct institutional advantages over appellate courts . . .(1) [they impose scores of sentences each year, and (2) [are] in a superior position to find facts relevant to sentencing and to judge their import under § 3553(a).  In the latter respect, district courts hear all the evidence relevant to sentencing, make credibility determinations, and interact directly with the defendant. In the process, they ‘gain[ ] insights not conveyed by the record’ that are often critical to identifying a just sentence.”

• Appellate court may not presume the unreasonableness of a non-Guidelines sentence.  “The Sixth Amendment prohibits appellate courts from applying rules or standards of review that effectively place a ‘thumb on the scales’ in favor of Guidelines sentences.”   A non-Guidelines sentences is not viewed with inherent suspicion” or subject to a “higher standard of review than abuse of discretion.”

• Previous precedent requiring “extraordinary circumstances” is no longer operative.  “An appellate court may not demand ‘extraordinary’ circumstances to justify non-Guidelines sentences,” although, “a major variance from the Guidelines range ‘should be supported by a more significant justification than a minor one’”

• District courts enjoy considerable discretion in identifying the grounds that can justify a non-Guidelines sentence.  And these grounds may include ones previously rejected under pre-Booker precedent, such as “a policy disagreement with the Sentencing Commission.”  

• District courts are free to disagree with the Sentencing Commission, but such disagreements are subject to “closer review” where Commission did typical empirical and experiential study.  Supreme Court requires “closer review . . . when the sentencing judge varies from the Guidelines based solely on the judge’s view that the Guidelines range fails properly to reflect §3553(a) considerations even in a mine-run case,” but “it appeared to limit this possibility to cases involving Guidelines based on the Commission's traditional empirical and experiential study.”

• Reviewing court may not substitute its view of what is the “right” sentence.  “[Appellate court may not] reject a variance simply because the resulting sentence differs from that which the reviewing court might have imposed if it had been entrusted with that responsibility.”  “[E]ven experienced district judges may reasonably differ, not only in their findings of fact, but in the relative weight they accord competing circumstances. Such reasonable differences necessarily mean that, in the great majority of cases, a range of sentences – frequently extending well beyond the narrow ranges prescribed by the Guidelines – must be considered reasonable.”  Appellate court, therefore, will only reject “those outlier sentences that reflect actual abuse of a district court's considerable sentencing discretion.”

Richard Willstatter adds: Many district judges are still unnecessarily wedded to the Sentencing Guidelines.  Defense counsel seeking a downward variance from the Guidelines pursuant to 18 USC 3553(a) should commence their sentencing memoranda with reference to the Jones case. Since Booker, many district courts have been reluctant to sentence below the Guidelines even if they really think the guideline sentence is too high.  Jones may give them "a shot of courage" (though we may see this shot act in the opposite direction).