Supreme Court: Federal Judges Have Discretion at Sentencing
By Houston Criminal Defense Lawyer John Floyd and Paralegal Billy Sinclair
Under the Sentencing Reform Act of 1984, a federal district court judge must consider each of the factors prescribed in 18 U.S.C. § 3553(a) when imposing an appropriate criminal sentence. The § 3553 factors are:
- “Nature and circumstances of the offense” and defendant’s “history and characteristics.” Id., at (a)(1). Under U.S. Supreme Court jurisprudence the sentencing judge is limited to those facts (1) “reflected in the jury verdict,” (2) admitted by the defendant, (3) contained in defendant’s guilty plea, or (4) reflect prior convictions. See: Blakely v. Washington, 542 U.S. 296, 303 (2004) [facts affecting sentence must be found by a jury].
- The general purpose of the Sentencing Reform Act. Id., at (a)(2). The purposes of this Act are to have a sentence “(A) reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense; (B) to afford adequate deterrence to criminal conduct; (C) to protect the public from further crimes of the defendant; and (d) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner …”
- The types of sentences available. Id., at (a)(3).
- The policy statements of the U.S. Sentencing Commission. Id., at (a)(5).
- The need to avoid sentencing disparities between defendants convicted of similar conduct. Id., at (a)(6).
- The need to provide restitution to victims. Id., at (a)(7).
- The applicable sentence range recommended by the U.S. Sentencing Guidelines. Id., at (a)(4).
Three years ago the United States Supreme Court held that the Guidelines are advisory and federal district courts were not required to impose the precise sentence recommended by the Guidelines. See: United States v. Booker, 549 U.S. 220, 245-46 (2005). Two years later the Supreme Court overruled the longstanding legal premise that district courts had to apply a provision of the Guidelines that made one gram of crack cocaine the equivalent of 100 grams of powder cocaine for sentencing purposes. See: Kimbrough v. United States, 128 S.Ct. 558, 575 (2007).
In the wake of Booker, the Honorable Linda R. Reade of the United States District Court for the Northern District of Iowa on November 21, 2005 sentenced James Eric Moore to a term of 188 months in confinement and six years of supervised release following a conviction for possession with intent to distribute crack cocaine. Moore had asked Judge Reade to impose a below-Guidelines sentence in light of the recent Booker decision. The judge replied:
“With regard to the crack and powder cocaine difference, that is the law. I’m applying the law as it currently stands. If that is going to be changed, that is a congressional matter. Congress is the one who looks at the guidelines and decides whether or not they should be put in—in force … It isn’t the judges. It’s the lawmakers, and I have taken an oath to apply the law, and that’s what I will do in this sentencing.”
Judge Reade’s sentencing rationale was in direct conflict with the mandate of Booker, but understandable in light of the recent Circuit precedent in United States v. Spears, 469 F.3d 1166, 1176 (8th Cir. 2006) (en banc) [holding that neither Booker nor § 3553(a) authorized district court judges to “reject” the 100/1 powder/crack cocaine ratio set forth in the Guidelines].
Moore appealed the sentence to the United States Court of Appeals for the Eighth Circuit. The appeals court concurred with Judge Reade’s conclusion that “’neither Booker nor § 3553(a) authorizes district court to reject’ the powder cocaine to crack cocaine quantity ratio mandated by Congress and reflected in the Guidelines. See: United States v. Moore, 470 F.3d 767, 770 (8th Cir. 20060 [quoting United States v. Spears, supra.
Moore applied for certiorari review before the Supreme Court, and while his application was pending, the Court handed down its Kimbrough decision that made it indisputably clear that federal district court judges had discretion to “consider the disparity between the Guidelines treatment of crack and powder cocaine offenses” when applying § 3553(a) factors, “even in a mine-run case.” See: Kimbrough, supra. The Supreme Court, accordingly, granted Moore’s certiorari petition, vacated his sentence, and remanded the case back to the Eighth Circuit for consideration under the Kimbrough mandate.
The Eighth Circuit either did not comprehend or chose to ignore the Supreme Court’s remand instruction. Without any new briefing on the sentencing issue, the appeals court once again upheld Judge Reade’s erroneous sentencing rationale, concluding that “[a]s there was then no circuit authority to the contrary, we presume the district court was aware that Booker granted it discretion to vary downward [from the Guidelines] based upon the impact of the crack cocaine guidelines on this defendant, but elected not to exercise its discretion.” See: United States v. Moore, 518 F.3d 577, 580 (8th Cir. 2008).
Moore once again applied to the Supreme Court for certiorari review—this time proceeding pro se. The defendant argued in his certiorari petition that the Eighth Circuit’s new characterization of the district court sentencing transcript was wrong, and that the transcript made it “clear that the district court thought judges had no discre[t]ion to reject” the Guidelines’ crack/powder cocaine ratio. Even the U.S. Attorney representing the Government agreed with Moore that the Eighth Circuit had erred in its remand consideration of the Kimbrough mandate.
The Supreme Court agreed with the Moore and the Government, and for a second time reversed the Eighth Circuit, saying:
“When the District Court said that “[i]t isn’t the judges but Congress that ‘looks at the [G]uidelines and decides whether or not they should be put … in force,’ the court showed that it did not think it had the discretion later upheld by Kimbrough. The Eighth Circuit’s first decision recognized this, describing the District Court as “concluding” [correctly under circuit precedent] that it was not “authorize[d] … to reject” the crack/powder disparity. In light of the District Court’s comments at sentencing, the Court of Appeals should have remanded the case to the District Court for resentencing under Kimbrough. We express no views on how the District Court should exercise its discretion at resentencing.” See: Moore v. United States, 2008 U.S. LEXIS 7437 (Oct. 14, 2008) [internal citations omitted].
While Judge’s Reade’s initial sentencing rationale is understandable, the Eighth Circuit’s Kimbrough remand decision is not. Moore had to proceed pro se a second time to the Supreme Court to get the Eighth Circuit’s hard line sentencing attitude corrected. Counsel for the Government has to support Moore’s pro se efforts. But what if Moore had been a mentally challenged inmate – and some 35 percent of the nation’s penal population is in fact mentally challenged – and incapable of preparing a pro se certiorari petition to the nation’s highest court, he would have been left forgotten and ignored in a federal prison with a patently illegal sentence. It would have been just another unnoticed travesty of justice in the penal system.
There’s no excuse for the Eighth Circuit’s Kimbrough remand decision. Neither Booker nor Kimbrough were handed down in a language indiscernible to the Eighth Circuit. The legal reasoning of both decisions was quite clear. Perhaps the Eighth Circuit’s second remand panel still felt constrained by its en banc Spears precedent, but those three judges should have known that not even an en banc precedent overrides a Supreme Court decision.
But all’s well that ends well.