CRIMINAL JURISDICTION

Following Booker, Kimbrough, Rita and Gall; District Courts Exercising Power to Sentence as Deemed Appropriate, Considering Case-Specific Factors, § 3553(a)

By: Houston Criminal Defense Lawyer John Floyd and Senior Paralegal Billy Sinclair

Before 1984, criminal sentencing in federal courts was heavily criticized because of the disparate sentences imposed for similar conduct and because of the uncertainty as to the length of time offenders would actually serve in prison. But Congress changed all that with the Sentencing Reform Act of 1984. The Act was designed to produce a more even-handed determinate sentencing scheme. To accomplish this legislative objective, the Act imposed an absolute duty on federal district court judges to consider each of the seven sentencing factors set forth in 18 U.S.C. § 3553(a), required federal judges to accept the U.S. Sentencing Guidelines as mandatory, and abolished the federal parole system as well. The end result of the Act, however, quickly proved to be even more draconian than hodgepodge sentencing practices it had replaced. Federal prison sentences grew longer because of the mandatory Guidelines, and because of the abolition of parole, longer stays in federal prison became the order of the day.

Three years ago the United States Supreme Court created a hope of relief when it declared unconstitutional the determinate sentencing provisions of the Act. See: United States v. Booker, 543 U.S. 220, 245 (2005). The court remedied the constitutional dilemma created by the mandatory nature of the U.S. Sentencing Guidelines by holding that the Guidelines are only one factor federal judges must consider in sentencing. The court concluded the Guidelines are advisory and, therefore, federal judges have the discretion to impose a sentence more appropriate than one mandated by the Guidelines. Id., at 245-46.

Booker also ushered in a change in the way sentences are reviewed on appeal. It limited appellate review to a determination of whether a sentence is “reasonable” under the strict “abuse-of discretion” standard. Id., at 261. In cases involving sentences departing either up or down from the Guidelines, the appeal courts’ review the district court’s explanation for the departure is confined to a determination of whether the sentence is “reasonable” under a strict “abuse-of-discretion” standard. While an appeal courts may consider the “variance” and “extent” of departure, it cannot require that “extraordinary” circumstances exist to justify the departure or that district courts employ a rigid “mathematical formula” using a departure’s percentage as justification for a specific sentence. Applying these approaches, the Supreme Court said, would create an impermissible “presumption of unreasonableness.” Id. The court, therefore, concluded that the “abuse-of-discretion” standard should apply to all sentences, regardless of whether they are inside or outside the range of the Guidelines. Id.

In its last term, the Supreme Court handed down three significant decisions in its continuing effort to provide guidance through the labyrinth of the federal sentencing process. Those decisions are summarized below.

• Kimbrough v. United States, 125 S.Ct. 558 (2007) – The court rejected the longstanding premise that federal district courts had to apply provisions of the Guidelines that effectively made one gram of crack cocaine the equivalent of 100 grams of powder cocaine in sentencing determinations and instead held that those provisions are just one factor the sentencing court should consider as it attempts to fashion the appropriate sentence pursuant to § 3553(a). Id., at 575.
• Rita v. United States, 127 S.Ct. 2456 (2007) – The Court held that in cases involving sentences imposed within the range of the Guidelines, the appeals court may establish a “presumption of reasonableness” for those sentences and review them under the deferential “abuse-of-discretion” standard. Id., at 2465.
• Gall v. United States, 128 S.Ct. 586 (U.S. 2007) – The Court held that sentencing decisions must be reviewed on appeal strictly under the deferential “abuse-of-discretion” standard, even when the appeals court determines that a different sentence is more appropriate. Id., at 597. (more…)