Issue: August, 2008
Author: John D. Olive
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Federal Sentencing Landscape post-Gall: Tenth Circuit Perspective
At the Sentencing Guidelines Seminar held in Orlando, Florida, this May, several appellate judges spoke about the profound sense of powerlessness and irrelevance they perceive in their oversight functions in a post-Gall world. While some of their comments were tongue-in-cheek, there is a ring of truth to the idea that federal district court judges are basking in the joy of exercising substantial discretion.
Such discretion is hard to fathom for those of us who were around five years ago when the Protect Act severely restrained sentencing judges’ ability to depart from the guideline range. Congress nearly prohibited departures in sex offense cases, and placed almost all departures in the “rare” category. Judges were warned their departure rates would be closely monitored.
The rigidity in sentencing dismayed many practitioners. In hindsight, though, the Protect Act was the zenith of the pendulum swing, and the momentum is now headed the other direction, led by a series of Supreme Court decisions, commencing with United States v Booker, 543 U.S. 220 (2005). The Supreme Court held that mandatory guidelines were unconstitutional. Rather than throwing them out completely, the Court rendered the Sentencing Guidelines advisory.
The remedial portion of Booker clarified that sentencing in the federal system commences with a properly calculated guideline range. The Tenth Circuit, in United States v Crockett, 435 F.3d 1305 (10th Cir. 2006), clarified that a properly calculated advisory guideline range is based upon all facts established by a preponderance standard. This procedure offends some, but the important consideration is that this guideline range is advisory, not mandatory. The post-Gall opinion of United States v Todd, 515 F.3d 1128 (10th Cir. 2008), reiterates that a procedural violation occurs if the advisory guideline range is incorrectly calculated.
Federal district judges may not impose sentences within the advisory guideline range without explanation if a defendant has raised a non-frivolous argument for a departure or variance. Ignoring counsel’s argument and imposing a within-range sentence invites remand, per United States v Sanchez-Juarez, 446 F.3d 1109 (10th Cir. 2006).
Furthermore, United States v Begay, 470 F.3d 964 (10th Cir. 2006), holds that, even if the district court can articulate why a sentence within the advisory guideline range is reasonable, this does not preclude the possibility that a sentence outside the guideline range may also be reasonable. In any given case, there may exist a broad range of reasonable sentences.
While district courts were laboring to determine how to impose a “reasonable” sentence as described in Booker, the Supreme Court was winding up to throw a curve ball in Rita v. United States, 127 S.Ct. 2456 (U.S. 2007). The Rita Court announced that “reasonableness” is a standard reserved for appellate review, and that the overarching concern at the district court level is arriving at a sentence “sufficient, but not greater than necessary,” to comply with the purposes of sentencing enumerated in 18 U.S.C. § 3553(a)(2). The appellate court then reviews the sentence for “reasonableness.”
To see the pendulum still swinging away from the Protect Act, we turn to Gall v United States, 128 S.Ct. 586 ( 2007). The Supreme Court sharply curtailed appellate courts by imposing an abuse of discretion standard in reviewing sentences. Gone are the days of mathematical formulas to calculate how far a sentence has drifted away from the guideline range, with correspondingly increased scrutiny. If the district court provides rational reasons for the sentence, that sentence will probably survive appeal. In Gall, the district court used the youth of the defendant as an 18 U.S.C. § 3553(a) factor. The district court came very close to characterizing the defendant’s youth in a manner reminiscent of the prohibited factor of “Lack of Guidance as a Youth,” codified at U.S.S.G. § 5H1.12. The Supreme Court not only failed to reprove the district court, it found that youth has always been an important factor in sentencing! The Tenth Circuit reached a similar conclusion regarding the “discouraged” factor of “Family Ties and Circumstances” in United States v Munoz-Nava, 524 F.3d 1137 (10th Cir. 2008).
How does an abuse of discretion standard operate in the Tenth Circuit, post-Gall? The case of United States v Smart, 518 F.3d 800 (10th Cir. 2008) provides an interesting glimpse, as does Munoz-Nava. In short, all sentences – in or out of the advisory guideline range – are reviewed under a “deferential, abuse of discretion standard.” Another case demonstrating the limitations of circuit courts in reviewing sentences is United States v Huckins, 2008 WL 2514460 (10th Cir. (2008). The Tenth Circuit upheld an 18-month prison sentence for Possession of Child Pornography when the advisory guideline range was 78 to 97 months.
We can see why appellate court judges are feeling shell-shocked. However, they are not toothless. In cases where procedural error occurs, sentences are still vulnerable. Failing to allow a party to provide evidence for establishing a specific offense characteristic will draw a remand, as seen in United States v Pena, 522 F.3d 1108 (10th Cir. 2008). Ignoring a non-frivolous argument by a party for a sentence based upon 18 U.S.C. § 3553(a) factors will also fail, as we saw in Sanchez-Juarez, supra. On the other hand, pursuant to United States v A.B., 2008 WL 2498026 (10th Cir. (2008), it is still improper to grant a departure or variance pursuant to a Substantial Assistance Motion per U.S.S.G. § 5K1.1 or 18 U.S.C. § 3553(e), for any factor other than Substantial Assistance.
Another mandatory procedure was created in United States v Atencio, 476 F.3d 1099 (10th Cir. 2007) en banc -- that of giving notice if the district court varied from the advisory guideline range, as is required for departures. However, Atencio was recently overturned by Irizarry v United States, 2008 WL 2369164 (S.Ct. 6/12/08). So, the district court may “surprise” the government or the defendant by varying from the guideline range at sentencing based upon an 18 U.S.C. § 3553(a) factor. Variances, then, are not subject to the notice requirement, while departures are.
In summary, since 2003, the federal sentencing landscape has markedly shifted. At the Sentencing Guidelines Seminar in May 2008, the Sentencing Commission announced a symposium would be held in Washington, D.C., in mid-July, to discuss “alternatives to incarceration.” On the table were such topics as creating federal drug courts and revising the language for sentencing options in Zones A, B and C. By the time this article is being read, that symposium will be a month or so past, but the trend continues toward more sensible sentences. However, mandatory minimums still limit judges’ ability to exercise discretion in many cases. Perhaps, with time, some inroads can be made there as well. Meanwhile, from the perspective of a U.S. Probation Officer who has worked in the system since 1991, the present climate is the healthiest it has ever been. It is a climate in which creativity and hard work by attorneys, probation officers and judges can be rewarded as never before in the history of the Sentencing Guidelines.
For those who practice regularly in federal court, please feel free to make use of a Sentencing Guideline Database which is updated monthly and is located at www.wyp.uscourts.gov. Additional resources are also located on the U.S. Sentencing Commission website at www.ussc.gov.
John D. Olive is a sentencing guidelines specialist and Senior U.S. Probation Officer for the District of Wyoming.
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