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.
Gall has had a particularly significant impact on the review of sentences imposed in illegal possession of child pornography cases in the Fifth Circuit. On June 9, 2008 the court of appeal dealt with a case involving a defendant who possessed 400 images of hardcore child pornography and convicted pursuant to 18 U.S.C. 2252A(a)(5)(B). See: United States v. Rowan, 530 F.3d 379 (5th Cir. 2008) The defendant in Rowan was given a 60-month probated sentence because the district court found he had no criminal history and would benefit from continuing medical treatment by a psychologist. Id.
The Fifth Circuit pointed out that Gall limited its review of the district court’s decision to impose a probated sentence under the deferential “abuse-of-discretion” standard. Id., at 381. That review involves a bifurcated process. First, the appeals court must determine if the district court committed any significant procedural errors [miscalculating or failing to calculate the proper Guidelines range or failing to consider § 3553(a) factors or failing to explain the sentence deviation from the Guidelines range]. Second, absent significant procedural error, the sentence is reviewed for “substantive reasonableness.” Id. See also: Gall, supra, 128 S.Ct. at 597.
The appeals court then set forth the three categories in which federal sentences fit:
- Those within a properly calculated Guidelines range;
- Those outside a properly calculated Guidelines range that are based on an allowed upward or downward departure; and
- Those outside a properly calculated Guidelines range that was not based on an allowed departure. Id., at 381.
The court then held that Rowan’s 60-month probated sentence fell within the third category and, therefore, was a “non-Guidelines sentence.” Id. When confronted with such sentence, the appeals court said Gall required it to “give due deference to the district court’s decision that the § 3553(a) factors, on a whole, justify the extent of the variance, and even if the appellate court concluded a different sentence was more appropriate, that was an “insufficient” basis for reversing the district court’s sentencing decision. Id.
Finding “no significant procedural error” in the district court’s sentencing decision, and that the court had properly calculated the Guidelines range and heard arguments concerning appropriate sentences and meticulously considered the § 3553(a) factors, the appeals court found the 60-month probated sentence “appropriate” in light of Gall. Id.
Following the lead of Rowan, the Fifth Circuit approved another 60-month probated sentence imposed on a defendant convicted of possessing child pornography [15 images obtained from the Internet] even though the district court had committed significant procedural errors . See: United States v. Duhon, No. 05-30387, Slip Opinion (Aug. 18, 2008). The district court in Duhon listed the following five reasons it relied upon for imposing the probated sentence:
- Defendant did not have a criminal history,
- There was no indication the defendant posed a threat to the public,
- Defendant would benefit from continuing psychological treatment,
- Incarceration would cause the defendant to lose his Social Security disability benefits; and
- Defendant’s co-defendant received probation for similar conduct. Id., Slip Opinion at 2-3.
The Fifth Circuit had previously vacated and remanded the case for re-sentencing. See: United States v. Duhon, 440 F.3d 711 (5th Cir. 2006). Duhon sought certiorari review in the U.S. Supreme Court, and following Gall, the Supreme Court remanded the case back to the Fifth Circuit. See: Duhon v. United States, 128 S.Ct. 853 (2008). With the case back before the appeals court, the Government challenged “the procedural soundness of Duhon’s sentence. According to the Government, the district court committed reversible error when it miscalculated the Guideline range. Moreover, the Government asserts that the district court improperly considered the sentence Duhon’s codefendant received in its analysis. Finally, the Government contends that the district court failed to consider relevant Guideline provisions.” Id., Slip Opinion at 4.
Unlike in Rowan, the Fifth Circuit found the district court in Duhon had committed a procedural error when it “applied only one of the enhancements recommended by the PSR.” With respect to the Government’s other two challenges [district court committed procedural error by considering the codefendant’s probation and failed to consider pertinent Guideline provisions], the appeals court said the Government had not preserved these objections, therefore, it reviewed them for plain error. Id., Slip Opinion at 5.
The appeals court concluded that because the sentencing transcript reflected that the district court believed strongly probation was appropriate sentence, “we cannot say that any potential error was outcome determinative and so affected substantial rights as to allow us to remand the case to the district court.” Id., Slip Opinion at 8-9.
Significantly, before reaching that conclusion, the appeals court found that the district court had indeed committed a procedural error when it considered the sentencing disparity between the defendant and his codefendant. Id., Slip Opinion at 6. The Fifth Circuit also found that because the district court did not acknowledge the Guideline precluding probation for Duhon, it could not presume that this provision had been considered. The court, however, pointed out that “given recent United States Supreme Court precedent,” it was “unclear” whether “we can still require district courts to acknowledge Guideline provisions.” Id. Slip Opinion at 8 [citing Rita v. United States, 128 S.Ct. at 2468].
Two months before Rowan, the Fifth Circuit ruled that Gall did not present any change of law in that circuit relative to non-Guideline sentences. See. United States v. Bonilla, 524 F.3d 647, 656 (5th Cir. 2008). See also: United States v. Tzep-Mejia, 461 F.3d 522, 525-26 (5th Cir. 2006) [district court must properly calculate the applicable Guideline range before imposing non-Guideline sentence]; United States v. Smith, 440 F.3d 704, 707 (5th Cir. 2006) [district court should provide “fact-specific” reasons consistent with § 3553(a) before imposing non-Guideline sentence].
Following the lead of Tzep-Mejia, the Bonilla court held that a district properly exercises its discretion when imposing a non-Guideline sentence if the court considers the possible guideline ranges that might apply to a defendant with and without a disputed enhancement, rejects the ranges as being either too high or too low, applies the case-specific factors under § 3553(a), and imposes a sentence between the two ranges. Id. The Bonilla court concluded:
“We find that the district court followed a similar process in this case and the resulting non-guideline sentence did not result from the district court’s error in applying the crime of violence enhancement. The only aspect of Bonilla’s guideline calculation that was in dispute was the crime of violence enhancement discussed previously. Neither party disagrees with the district court’s guideline calculation before the enhancement. The district court erroneously concluded that the enhancement should apply to the defendant. However, like the district court in Tzep-Mejia, the court in this case imposed an alternative non-guideline sentence stating, ‘I believe that I have calculated the guidelines correctly, but even if I am wrong about the guidelines, this is the sentence that I would impose in any event.’ Although the district court did not comment on the guideline ranges that would apply with and without the enhancement, the record reflects no disagreement between the parties or confusion by the district court about the guidelines range before and after the enhancement. The defendant argued in his objections to the PSR that without the enhancement ‘he should be scored at Level 6, at a Category I, with a sentencing range of 0-6 months, at Zone A.’ At sentencing the district court specifically referenced his consideration of the parties’ arguments made at sentencing and in the reports before exercising its discretion to impose a sentence of 41 months. As in Tzep-Mejia, Bonilla’s sentence did not result from an incorrect application of the guidelines.” Id., at 656-57.
The Fifth Circuit in Duhon cited Bonilla with approval. “The facts in this case are indistinguishable from Bonilla. Here, the district court was aware of the correct Guideline range because it was in the PSR, and the Government had vehemently argued for the enhancements during the sentencing proceeding. While it ultimately erred by failing to apply the enhancements, the district court declared that it would have sentenced Duhon to six months probation even if it miscalculated the Guideline range. Under Bonilla, the district court’s error is not reversible, and we cannot remand on this basis.” Id., Slip Opinion, at 5.
While the Duhon court concurred with Bonilla, the court conceded that the issue of whether a district court must acknowledge a pertinent Guideline provision remains unresolved. It is clear, however, that both Gall and Rita have given federal district courts greater leeway and authority to fashion a sentence it deems appropriate and that sentence will not be disturbed on appeal absent a significant abuse-of-discretion. See: Duhon, supra; Rowan, supra.