More Great Federal Sentencing Stuff from Amy Baron-Evans

Rita, Gall and Kimbrough:
A Chance for Real Sentencing Improvements

Amy Baron-Evans
April 4, 2008

In a series of cases beginning in 1999, the Supreme Court examined the historical
roots of the right to jury trial in both the original Constitution and the Bill of Rights. See U.S. Const. Art. III, § 2, cl. 3, U.S. Const. Amend. 6. The Court concluded that the right to jury trial is both an individual right and a structural allocation of power to the people, and held that, in order to give it meaningful content, any fact that exposes a defendant to greater potential punishment must be found by a jury beyond a reasonable doubt. Jones v. United States, 526 U.S. 227 (1999); Apprendi v. New Jersey, 530 U.S. 466 (2000); Blakely v. Washington, 542 U.S. 296 (2004); United States v. Booker, 543 U.S. 220 (2005).

A majority of the Court in Booker applied this reasoning to hold that judicial
factfinding under the mandatory United States Sentencing Guidelines violated the Sixth Amendment. A different majority (with Justice Ginsburg in both) created a remedy, directing judges to impose a sentence that complies with 18 U.S.C. § 3553(a) and to treat the guidelines as merely advisory within that statutory framework, and instructing courts of appeals to review all sentences for reasonableness.

In its most recent cases, Rita v. United States, 127 S. Ct. 2456 (2007), Kimbrough
v. United States, 128 S. Ct. 558 (2007) and Gall v. United States, 128 S. Ct. 586 (2007), and also in Cunningham v. California, 127 S. Ct. 856 (2007), the Court gave substantive and procedural content to the remedy, making clear that Section 3553(a) is the controlling sentencing law and rejecting the devices that were used after Booker to maintain a de facto mandatory guideline system.

Part I of this paper gives an overview of how these decisions clarify that Section
3553(a) really is the controlling law and the guidelines merely advisory. Part II outlines the procedural nuts and bolts and arguments for improved procedural safeguards. Part III describes the as-applied Sixth Amendment challenge invited by Justice Scalia. The most important part of this paper is Part IV, which describes the Court’s invitation to use empirical and policy critiques of the guidelines as sword and shield.

The influence of a particular guideline on an individual sentence will now depend on whether or not it is based on sound policy in light of empirical evidence, and any improvements to individual guidelines will be driven by challenges showing that they are not.

Table of Contents

I.
Section 3553(a) Really Is The Controlling Sentencing Law. . . . . . . . . . . . . . . . . . . . . . .2
A.
Guidelines Only One of Several Factors; Parsimony and Purposes Control . . . 2
B.
No More Mindless Uniformity. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
C.
Guideline-Centric “Departureâ€? Concepts Prohibited or Ignored . . . . . . . . . . . . .3
D.
Probation Is Punishment and Is an Option In Any Case In Which It Is Not
Prohibited By Statute, Despite Contrary Guideline Limits. . . . . . . . . . . . . . . . . .4
E.
The District Courts’ Vital Role in Improving the Guidelines . . . . . . . . . . . . . . . 4
II.
Procedures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . 5
1

A.
Sentencing Procedure. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
B.
Appellate Procedure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6
C.
The District Court Has the Last Word on the “Extentâ€? of Variance. . . . . . . . . . .7
D.
No Hierarchy of Review for Different Kinds of Non-Guideline Sentences . . . . .8
E.
What Will the Remedy Be if the Courts of Appeals Again Enforce a De Facto
Mandatory Guideline System? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10
F.
Procedural Safeguards . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .11
III.
As-Applied Sixth Amendment Challenges . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .13
IV.
Lack of Empirical Basis as Sword and Shield . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
A.
A Sword in Favor of a Non-Guideline Sentence . . . . . . . . . . . . . . . . . . . . . . . . .14
B.
A Shield Against Undue Influence at Sentencing . . . . . . . . . . . . . . . . . . . . . . . .16
C.
A Shield Against Undue Influence on Appeal . . . . . . . . . . . . . . . . . . . . . . . . . . 16
D.
What to Look For and Where to Look . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
E.
Which Guidelines and Policy Statements Were Not Based on Past Practice? . . 18
F.
Have the Guidelines Evolved Based on Empirical Evidence and National
Experience Since Then? . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
1.
Commission Studies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .20
2.
Other Empirical/Policy Research . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .21
3.
Statistics Showing the Guideline is Not Being Followed . . . . . . . . . . . 22
4.
Judicial Decisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
G.
What Effect Do Congressional Actions Have on the Analysis? . . . . . . . . . . . . .24
1.
Congressional Actions That Are Not Express Directives . . . . . . . . . . . 25
2.
Express Congressional Directives . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
3.
Guidelines that Contravene Statutes . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

I.
Section 3553(a) Really Is The Controlling Sentencing Law.

A.
Guidelines Only One of Several Factors; Parsimony and Purposes
Control

The “Guidelines are only one of the factors to consider when imposing sentence.â€?
Gall, 128 S. Ct. at 602. The Guidelines, “formerly mandatory, now serve as one factor among several courts must consider in determining an appropriate sentence.â€?
Kimbrough, 128 S. Ct. at 564. “The statute, as modified by Booker, contains an
overarching provision instructing district courts to ‘impose a sentence sufficient, but not greater than necessary,’ to achieve the goals of sentencing.â€? Kimbrough, at 570.

B.
No More Mindless Uniformity

After Booker, the government successfully convinced most courts of appeals to
replicate mandatory guidelines by claiming that uniformity was the primary or only goal of the Sentencing Reform Act. This was not accurate. The Commission was directed, among other things, to “avoid[] unwarranted disparities among defendants with similar records who have been convicted of similar criminal conduct while maintaining sufficient flexibility to permit individualized sentences.â€? 28 U.S.C. §§ 991(b)(1)(B).

Judges were directed to consider “the nature and circumstances of the offense and the history and characteristics of the defendant,â€? and to “avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct.â€? 18 U.S.C. § 3553(a)(6).

No one was directed to pursue mindless uniformity, but that is what
the Commission did, and the courts of appeals enforced it before and after Booker.1

In Gall and Kimbrough, the Court rejected mindless uniformity. Echoing the
statutes, the Court recognized that a “deferential abuse-of-discretion standard could successfully balance the need to reduce unjustifiable disparities across the Nation and consider every convicted person as an individual.â€? Id. at 598 n.8 (internal quotation marks and citations omitted) (emphasis supplied).

Moreover, simply by “correctly calculat[ing] and review[ing] the guideline range,â€? a judge “necessarily [gives] significant weight and consideration to the need to avoid unwarranted disparities.â€? Gall, 128 S. Ct. at 599.

In a decisive rejection of mindless uniformity, the Court recognized
that unwarranted uniformity is every bit as objectionable as unwarranted disparity: “[I]t is perfectly clear that the District Judge . . . also considered the need to avoid unwarranted similarities among other co-conspirators who were not similarly situated.â€? Id. at 600 (emphasis in original).

In Kimbrough, the Court demoted the government’s (ironic) argument that
abandoning the 100:1 powder to crack ratio would result in disparities (“cliffsâ€? and
differences among judges) to its proper place in the statutory framework: “To reach an appropriate sentence, these disparities must be weighed against the other § 3553(a) factors and any unwarranted disparity created by the crack/powder ratio itself.â€?
Kimbrough, 128 S. Ct. at 574. See also id. at 575 (approving district court’s
consideration of the fact that the 100-1 ratio “itself created an unwarranted disparity within the meaning of § 3553(a)â€?).

The Court also suggested that the Sentencing Commission could help to avoid unwarranted disparities through “ongoing revision of the Guidelines in response to sentencing practices.â€? Id. at 573-74. Finally, mindless uniformity cannot co-exist with the Booker remedy: “These measures will not eliminate variations between district courts, but our opinion in Booker recognized that some departures from uniformity were a necessary cost of the remedy we adopted.â€? Id. at 574.

C. Guideline-Centric “Departureâ€? Concepts Prohibited or Ignored

In Gall, the Court not only used the terms “departureâ€? and “varianceâ€?
interchangeably, Gall, 128 S. Ct. at 594, 597, but made no mention whatsoever of the
“heartlandâ€? concept or the guidelines’ restrictions on consideration of individual
characteristics. This was so even though the case was all about a below-guideline
sentence based on offender characteristics that the guidelines ignore or deem “not
ordinarily relevant,� including age and immaturity, voluntary withdrawal from the
conspiracy, and self rehabilitation through education, employment, and discontinuing the use of drugs. Id. at 598-602. This strongly indicates that the “heartlandâ€? concept and the guidelines’ restrictive policy statements are no longer relevant, as some courts of appeals have held. Indeed, Section 3553(a)(1) requires the sentencing court to consider “the nature and circumstances of the offense and the history and characteristics of the defendantâ€? in every case, and the statute trumps any guideline or policy statement to the contrary. See Stinson v. United States, 508 U.S. 36, 38, 44, 45 (1993); United States v. LaBonte, 520 U.S. 751, 757 (1997).

It is no longer permissible, in imposing or reviewing a non-guideline sentence, to
use percentages or proportional mathematical calculations based on the distance “fromâ€? the guideline range, or to require “extraordinaryâ€? circumstances. Gall, 128 S. Ct. 594, 595.

D.
Probation Is Punishment and Is an Option In Any Case In Which It Is
Not Prohibited By Statute, Despite Contrary Guideline Limits.

The Gall Court disapproved of the Eighth Circuit’s characterization of Gall’s
probationary sentence as a 100% downward variance in part because it gave no weight to the substantial restriction of liberty involved in even standard conditions of probation. Gall, 128 S. Ct. at 595-96 & n.4.

Further, in some cases, like Gall, “‘a sentence of imprisonment may work to promote not respect, but derision, of the law if the law is viewed as merely a means to dispense harsh punishment without taking into account the real conduct and circumstances involved in sentencing.’â€? Id. at 599 (quoting district
court opinion).

Finally, while some courts of appeals had reversed probationary sentences when
the guideline range was outside Zone A, relying on § 3553(a)(4) (“kinds of sentence . . established [by] the guidelinesâ€?), the Court rejected the Eighth Circuit’s conclusion that probation “lies outside the range of choice dictated by the facts of this caseâ€? because Ҥ 3553(a)(3) [“kinds of sentences availableâ€?] directs the judge to consider sentences other than imprisonment.â€? Id. at 602 & n.11.

E.
The District Courts’ Vital Role in Improving the Guidelines

In Rita, Justice Breyer described the intended evolution of the Guidelines, saying
that the Commission’s work is “ongoing,â€? that it “willâ€? collect statements of reasons when district courts impose non-guideline sentences, that it “mayâ€? obtain advice from prosecutors, defenders, law enforcement groups, civil liberties associations, experts in penology, and others, and that it “can revise the Guidelines accordingly.â€? Id. at 2464.

II. Procedures

The sentencing procedures set forth in Gall and Kimbrough are an improvement
over those in use in the lower courts before these decisions. However, although Justice Breyer did not write either decision, his influence is in evidence, providing small openings, as he did in Booker and Rita, for the promotion of mandatory “guidelines creep.â€?4 The Commission is already “trainingâ€? judges, clerks and probation officers as to the purported meaning of these cases with selectively chosen statements to promote another round of mandatory guidelines creep.

It is important for defense counsel to emphasize the overall import of the Court’s
procedural framework, which accords wide leeway to the sentencing judge to impose a
non-guideline sentence on a variety of grounds. Moreover, any procedural respect the
guidelines might otherwise have is not justified unless the guideline at issue is in fact based on empirical evidence of pre-Guidelines sentencing practice or empirical evidence developed since then. The most frequently applied guidelines do not meet that test. See Part IV, infra.

A. Sentencing Procedure

The sentencing judge “should begin all sentencing proceedings by correctly
calculating the applicable Guidelines range.â€? Gall, 128 S. Ct. at 596. As a “matter of administration and to secure nationwide consistency,â€? the guideline range “should be the starting point and the initial benchmark.â€? Id. This is not particularly surprising or significant because the guideline range is the only § 3553(a) factor expressed as a number of months. Defense counsel’s sentencing memorandum, however, should ordinarily begin with a more compelling presentation, for example, the history and characteristics of the defendant or the nature and circumstances of the offense.

Because the “Guidelines are not the only consideration,â€? the judge, “after giving
both parties an opportunity to argue for whatever sentence they deem appropriate,�
“should then consider all of the § 3553(a) factors to determine whether they support the sentence requested by a party.â€? Id. The judge must independently evaluate the
appropriate sentence in light of the Section 3553(a) purposes and factors, and must
consider arguments that the guidelines should not apply on general policy grounds, case-specific grounds (including guideline-sanctioned departures), or “regardless.â€? Rita, 127 S. Ct. at 2463, 2465, 2467-68.

In doing so, the judge “may not presume that the Guidelines range is reasonable.â€? Gall, 128 S. Ct. at 596-97; see also Rita, 127 S. Ct. at 4 This phrase was coined in Sands & Kalar, An Object All Sublime — Let the Punishment Fit the
Crime: Federal Sentencing After Gall and Kimbrough, The Champion (March 2008).

The judge “must make an individualized assessment based on the facts
presented,â€? and “must adequately explain the chosen sentence to allow for meaningful
appellate review and to promote the perception of fair sentencing.� Gall, 128 S. Ct. at 597.

If the judge decides on an outside-guideline sentence, she “must consider the
extent of the deviation and ensure that the justification is sufficiently compelling to support the degree of the variance.â€? Gall, 128 S. Ct. at 597. The judge “must give serious consideration to the extent of any departure from the Guidelines and must explain his conclusion that an unusually lenient or an unusually harsh sentence is appropriate in a particular case with sufficient justificationsâ€? because the guidelines “are the product of careful study based on extensive empirical evidence derived from the review of thousands of individual sentencing decisions,â€? but “[n]otably, not all of the Guidelines are tied to this empirical evidence.â€? Id. at 594 & n.2.

The judge need not discuss arguments for or against a guideline sentence that are
not raised: “[I]t [is] not incumbent on the District Court Judge to raise every conceivably relevant issue on his own initiative.â€? Id. at 599. If the judge rejects nonfrivolous arguments for a non-guideline sentence, he must explain why. Rita, 127 S. Ct. at 2468.

B. Appellate Procedure

The court of appeals “must first ensure that the district court committed no
significant procedural error, such as failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence-including an explanation for any deviation from the Guidelines range.â€? Gall, 128 S. Ct. at 597.

If the sentence is “procedurally sound,â€? the court of appeals “then consider[s] the
substantive reasonableness of the sentence.� Id. at 597. The court of appeals must
review “all sentences-whether inside, just outside, or significantly outside the Guidelines range,â€? and regardless of the “uniqueness of the individual case,â€? under a “deferential abuse-of-discretion standard.â€? Gall, 128 S. Ct. at 591, 598. The court of appeals may not simply mouth “abuse of discretion,â€? while in fact applying a de novo standard, as the Eighth Circuit did in Gall. Id. at 600, 602.

The court of appeals may not substitute its judgment for that of the sentencing
judge: “The fact that the appellate court might reasonably have concluded that a different sentence was appropriate is insufficient to justify reversal of the district court.â€? Id. at 597. This is because “[t]he sentencing judge is in a superior position to find facts and judge their import under § 3553(a) in the individual case,â€? “sees and hears the evidence,makes credibility determinations, has full knowledge of the facts and gains insights not conveyed by the record,â€? “has access to, and greater familiarity with, the individual case and the individual defendant before him than the Commission or the appeals court,â€? and has “an institutional advantage over appellate courts in making these sorts of
determinations, especially as they see so many more Guidelines sentences than appellate courts do.� Id. at 597-98 (internal quotation marks and citations omitted).

“If the sentence is within the Guidelines range, the appellate court may, but is not
required to, apply a presumption of reasonableness.� Gall, 128 S. Ct. at 597; see also Rita, 127 S. Ct. at 2462. After Rita, courts of appeals may decline to apply a presumption of reasonableness to all within-guideline sentences, see United States v. Rutkoske, 506 F.3d 170, 180 n.5 (2d Cir. 2007); United States v. Ausburn, 502 F.3d 313, 326 n.23 (3d Cir. 2007), or to sentences within a particular guideline. See Part IV, infra.
The
presumption is “not binding,â€? id. at 2463, and has no “independent legal effect.â€? Id. at 2465. “It does not, like a trial-related evidentiary presumption, insist that one side, or the other, shoulder a particular burden of persuasion or proof lest they lose their case.â€? Id. at 2462. It does not grant “greater factfinding leewayâ€? to the Commission than to the sentencing judge. Id. at 2463. It “simply recognizes the real-world circumstance that when the judge’s discretionary decision accords with the Commission’s view of the appropriate application of § 3553(a) in the mine run of cases, it is probable that the sentence is reasonable.â€? Id.

“But if the sentence is outside the Guidelines range, the court may not apply a
presumption of unreasonableness. It may consider the extent of the deviation, but must ive due deference to the district court’s decision that the § 3553(a) factors, on a whole, justify th extent of the variance.â€? Gall, 128 S. Ct. at 597. See also Rita, 127 S. Ct. at 2467 (appeals court may not adopt a presumption of unreasonableness).

C. The District Court Has the Last Word on the “Extentâ€? of Variance.

Undeniably, there is double talk in Gall on the central question of proportionality
review,but three things are clear. First, the appeals courts must apply a “deferential abuse-of-discretion standardâ€? to “all sentences-whether inside, just outside, or significantly outside the Guidelines range,â€? and regardless of the “uniqueness of the individual case.â€? Gall, 128 S. Ct. at 591, 598.

Second, the appeals court “must give due deference to the district court’s decision that the § 3553(a) factors justify the extent of the variance.â€? Id. at 597. Third, “[t]he fact that the appellate court might reasonably have concluded that a different sentence was appropriate is insufficient to justify reversal of
the district court.� Id.

However, there are other statements that will sow confusion and be used to
promote mandatory guidelines creep, in particular, “We find it uncontroversial that a major departure should be supported by a more significant justification than a minor one.â€? Id. at 597. However, while the appeals court “will, of course, take into account the totality of the circumstances, including the extent of any variance from the Guidelines range,â€? and “may consider the extent of the deviation,â€? it “must give due deference to the district court’s decision that the § 3553(a) factors justify the extent of the variance.â€? Gall, 128 S. Ct. at 597.

Further, “applying a heightened standard of review to sentences outside the
Guidelines range . . . is inconsistent with the rule that the abuse-of-discretion standard of review applies to appellate review of all sentencing decisions-whether inside or outside the Guidelines range.â€? Id. at 596. A “rule equiring ‘proportional’ justifications for departures from the Guidelines range is not consistent with our remedial opinion inâ€? Booker. Id. at 594.

An “appellate rule that requires ‘extraordinary’ circumstances to
justify a sentence outside the Guidelines range,â€? or the use of percentages to determine the strength of the justifications required “come too close to creating an impermissible presumption of unreasonableness for sentences outside the Guidelines range.â€? Id. at 595.

D.
No Hierarchy of Review for Different Kinds of Non-Guideline

Sentences

The Commission is using dicta from Kimbrough (without identifying it as dicta)
to suggest that so-called “outside-the-heartlandâ€? “departuresâ€? are favored and judicial disagreement with the guideline based on the purposes of sentencing is disfavored. The theory behind the dicta is that District Courts are most familiar with the individual offense and offender, and the Commission at least has the capacity to formulate guidelines based on empirical data and national experience.6 Kimbrough, 128 S. Ct. at 574. “In light of these discrete institutional strengths, a district court’s decision to vary from the advisory Guidelines may attract greatest respect when the sentencing judge finds a particular case ‘outside the ‘heartland’ to which the Commission intends individual Guidelines to apply,’â€? but “while the Guidelines are no longer binding, closer review may be in order 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.� Id. at 574-75 (emphasis supplied).

Note that even on its own terms, this is descriptive of what “mayâ€? happen, not
prescriptive as to what must happen, and it would never apply if the judge articulated reasons based on evidence and/or experience showing that the guideline failed properly to reflect § 3553(a) considerations.

In any event, the Court immediately clarified that this is pure dicta: “The crack
cocaine Guidelines, however, present no occasion for elaborate discussion of this matter because those Guidelines do not exemplify the Commission’s exercise of its
characteristic role.� Kimbrough, at 575.

Indeed, “discussion of this matter,â€? even briefly, sticks out like a sore thumb. It is in conflict with everything else the Court has said, i.e., courts must impose a sentence that is sufficient but not greater than necessary to satisfy sentencing purposes, must treat the guidelines as just one among several statutory factors, must be permitted to disagree with the guidelines based solely on policy considerations, and the courts of appeals may not grant greater factfinding leeway to the Commission than to the district courts. Kimbrough, 128 S. Ct. at 564, 570; Gall, 128 S. Ct. at 602; Rita, 127 S. Ct. at 2463, 2465,2468; Cunningham v. California, 127 S. Ct. 856, 862-70 (2007).

The notion that so-called “outside-the-heartlandâ€? departures (the meaning of which remains unknown) are entitled to special deference was repudiated in Gall, which held that “all sentences-whether inside, just outside, or significantly outside the Guidelines range,â€? and regardless of the “uniqueness of the individual case,â€? must be reviewed under a “deferential abuse-of-discretion standard.â€? Gall, 128 S. Ct. at 591, 598.

So where does this dicta come from and why is it here? Justice Ginsburg cites
pages 38-39 of the transcript of oral argument in Gall, where Justice Breyer said he wants to “interpret that word ‘reasonable’ so that we get back to a situation where judges do depart when they have something unusual and maybe occasionally when they think the guideline wasn’t considered properly.â€?7 This citation and the immediate clarification that it is dicta indicate that this was an idea Justice Breyer had, but that it has no force.

Indeed, it is mandatory guidelines speak.

Justice Scalia immediately set the record straight, stating in concurrence that he
joined “the opinion only because I do not take this to be an unannounced abandonment of the following clear statements in our recent opinions.â€? Kimbrough, 128 S. Ct. at 576 (Scalia, J., concurring).

After reviewing those clear statements, he said: These statements mean that the district court is free to make its own reasonable application of the § 3553(a) factors, and to reject (after due consideration) the advice of the Guidelines [as the majority just said at p. 570]. If there is any thumb on the scales; if the Guidelines must be followed even where the district court’s application of the § 3553(a) factors is entirely reasonable; then the “advisoryâ€? Guidelines would, over
a large expanse of their application, entitle the defendant to a lesser
sentence but for the presence of certain additional facts found by judge
rather than jury. This, as we said in Booker, would violate the Sixth
Amendment. Id. (emphasis in original).

Thus, there are a variety of grounds for imposing a non-guideline sentence, with
the only hierarchy of “respectâ€? being that the controlling statute, 18 U.S.C. § 3553(a), trumps any contrary provision of the guidelines. See Stinson v. United States, 508 U.S. 36, 38, 44, 45 (1993); United States v. LaBonte, 520 U.S. 751, 757 (1997).

If the court of appeals in your circuit nonetheless begins once again to hold that
district courts are not free to make their own application of the § 3553(a) factors and to reject the advice of the guidelines after due consideration, file petitions for certiorari arguing that judicial factfinding in your case and in your circuit violates the Sixth Amendment.

E.
What Will the Remedy Be if the Courts of Appeals Again Enforce a
De Facto Mandatory Guideline System?

At least three, and maybe five, justices seem prepared to reject the Booker remedy
in a case involving judicial factfinding if the courts of appeals again enforce a de facto mandatory guideline system.

In Rita, Justices Stevens and Ginsburg said they were “not blind to the fact that,
as a practical matter, many federal judges continued to treat the Guidelines as virtually mandatory after our decision in Booker,â€? but “[o]ur decision today makes clear . . . that the rebuttability of the presumption is real,â€? and “that appellate courts must review sentences individually and deferentially whether they are inside the Guidelines range . . . or outside that range.â€? Rita, 127 S. Ct. at 2474 (Stevens, J., concurring). “Given the clarity of our holding,â€? these two justices “trust that those judges who had treated the Guidelines as virtually mandatory during the post-Booker interregnum will now recognize that the Guidelines are truly advisory.â€? Id.

Justice Scalia gives “stare decisis effect to the statutory holding of Rita,â€? but
believes that “any appellate review for substantive reasonableness will necessarily result in a sentencing scheme constitutionally indistinguishable from the mandatory Guidelines struck down inâ€? Booker. Gall, 128 S. Ct. at 602 (Scalia, J., concurring).

In repeatedly inviting as-applied Sixth Amendment challenges, see Part III, infra, Justice Scalia is apparently setting the stage to prove Justice Breyer’s remedy a failure.

Justice Souter wrote separately in Gall to state that he sees the “objectionable
pointsâ€? of Booker and Rita “hexing our judgments today.â€? Gall, 128 S. Ct. at 603
(Souter, J., concurring). He believes that the best resolution would be for Congress to “reestablish[] a statutory system of mandatory sentencing guidelines (though not identical to the original in all points of detail), but providing for jury findings of all facts necessary to set the upper range of sentencing discretion.â€? Id. By the phrase, “not identical to the original in all points of detail,â€? Justice Souter apparently contemplates simplification and improvement of the current guidelines, but whether this would occur in the hands of Congress is unclear.

It does not appear that Justice Souter believes that the Court itself
could not require jury findings, given that he joined Justice Stevens’ dissent in Booker arguing that that the Court should do so. Booker, 543 U.S. at 271-303.

Justice Thomas has now rejected the Booker remedy because it is far broader than
necessary to correct constitutional error in that it applies even when there was no judicial factfinding (as in Gall and Kimbrough), the Sixth Amendment violation is “more suitably remedied by requiring any such facts [that raise the sentence beyond the level justified by the jury verdict or the defendant’s admission] to be submitted to the jury,â€? and the Court has “assume[d] the legislative role of devising a new sentencing schemeâ€? with decisions grounded in policy considerations rather than law.â€? Kimbrough, 128 S. Ct. at 577-78 (Thomas, J., dissenting); see also Gall, 128 S. Ct. at 603 (Thomas, J., dissenting).

Some have read this to mean that Justice Thomas has reversed himself on the Sixth Amendment holding, but that is not correct. In Justice Thomas’ view, mandatory application of the guidelines did not violate the Sixth Amendment in Gall or Kimbrough because there was no judicial factfinding in those cases.

F. Procedural Safeguards

Standard of Proof. The requirement of proof beyond a reasonable doubt under
the Fifth Amendment Due Process Clause protects against factual error whenever a
potential loss of liberty is at stake. In re Winship, 397 U.S. 358, 363-64, 368 (1970). As Winship itself involved judicial factfinding in a juvenile delinquency proceeding, this is so regardless of the identity of the factfinder and whether or not the finding results in a convictionâ€? of a “crime.â€? Facts to which the reasonable doubt standard applies are not just those that go to guilt or innocence, but those that increase punishment. Mullaney v. Wilbur, 421 U.S. 684, 697-99 (1975).

The Supreme Court reaffirmed these principles in Apprendi: “Since Winship, we
have made clear beyond peradventure that Winship’s due process and associated jury
protections extend, to some degree, ‘to determinations that [go] not to a defendant’s guilt or innocence, but simply to the length of his sentence.’ This was a primary lesson of Mullaney.â€?8 Apprendi, 530 U.S. at 484. See also Jones, 526 U.S. at 240-43 & n.6;

The Court distinguished McMillan v. Pennsylvania, 477 U.S. 79 (1986) as involving a finding that resulted in a mandatory minimum sentence but that did not expose the defendant to additional punishment, within a range in which judicial discretion was otherwise entirely unfettered. See Apprendi, 530 U.S. at 486; Jones, 526 U.S. at 242

Though the Supreme Court has considered the Fifth Amendment right to proof
beyond a reasonable doubt in tandem with the Sixth Amendment jury trial right in recent cases, Apprendi, 530 U.S. at 478, it remains clear that the Fifth Amendment due process right remains distinct, id. at 476-77, and applies equally to judicial factfinding. See Schriro v. Summerlin, 542 U.S. 348, 358 (2004) (despite the absence of jury factfinding, judge’s use of the reasonable doubt standard assured that accuracy was not seriously diminished).

Thus, Booker’s resolution of the Sixth Amendment issue, which concerned
the reservation of control in the people against governmental power, did not address what standard of proof a judge must use under the Fifth Amendment to find facts that expose a defendant to additional loss of liberty. Texas v. Cobb, 532 U.S. 162, 169 (2001) (“Constitutional rights are not defined by inferences from opinions which did not address the question at issue.â€?).

Factfinding under the advisory guidelines has a determinate, numerical impact on
the guideline range, which in turn drives the length of the ultimate sentence and exposes the defendant to additional loss of liberty within the meaning of Winship, Mullaney, and Apprendi.

The judge must “calculateâ€? the guideline range “correctly,â€? Gall, 128 S. Ct. at
596, i.e., she must find the aggravating facts and assign them the required number of points. The judge must then use this “calculationâ€? as the “starting point and the initial benchmark,â€? id., and must justify any “deviationâ€? from it with a “justification [that] is sufficiently compelling to support the degree of the variance.â€? Id. at 597. This fact finding necessarily drives sentence length because the guideline range is the only § 3553(a) factor with a number affixed to it and is the benchmark from which both sentencing and appellate review proceed. Gall, 128 S. Ct. at 595. Guideline factfinding thus exposes the defendant to loss of liberty, and is therefore required to be conducted based on proof beyond a reasonable doubt under Winship, Mullaney, and Apprendi.

Thorough Adversarial Testing.

The sentencing court must “subject[] the defendant’s sentence to the thorough adversarial testing contemplated by federal sentencing procedure.â€? Rita, 127 S. Ct. at 2465. The phrase “federal sentencing procedureâ€? appears to include both the rules of procedure and the requirements of the Due Process Clause, as the citation for this proposition is “Rules 32(f), (h), (i)(C) and (i)(D)â€? and “Burns v. United States, 501 U.S. 129, 136 (1991) (recognizing importance of notice and meaningful opportunity to be heard at sentencing).â€?

The narrow holding of Burns was that an earlier version of Rule 32 that did not
include subsection (h) must be read to require advance notice of a district court’s
intention to impose an upward departure in order to avoid the serious constitutional
question whether the Due Process Clause requires notice. Burns also tells us what the components of “thorough adversarial testingâ€? are: notice, a meaningful opportunity to be heard, the right to confront adverse witnesses and evidence, and the right to a full, formal, adversarial-style hearing. See id. at 137-38.. By comparison, the Guidelines’ advice to find facts by a “preponderanceâ€? of the “probabl[y] accurateâ€? “information,â€? including hearsay, USSG § 6A1.3, p.s., is clearly deficient.

Moreover, the Commission is not empowered to advise that the preponderance standard “is appropriate to meet due process concernsâ€? because only courts are empowered by our Constitution to announce minimum constitutional standards, and the Commission is not a court. See Mistretta v. United States, 488 U.S. 361, 384-85, 393-94, 408 (1989).

Notice of Upward Variance, Probation Officer’s Recommendation.

The “thorough adversarial testingâ€? passage from Rita would also seem to decide the issue of whether notice of an upward variance under Section 3553(a) is required.9 See Irizarry v. United States, 128 S. Ct. 828 (2008) (granting certiorari to resolve this question). It also would seem to require the Probation Officer’s recommendation to be disclosed to the defendant.

III. As-Applied Sixth Amendment Challenges

In his concurrence in Gall, Justice Scalia repeated his invitation, first made in
Rita, 127 S. Ct. at 2479 (Scalia, J., concurring), to bring as-applied Sixth Amendment challenges. Gall, 128 S. Ct. at 602-03 (Scalia, J., concurring); see also Rita, 127 S. Ct. at 2473 (Stevens, J., concurring) (agreeing that such a challenge may be brought).

Noting that “the Court has not foreclosed as-applied constitutional challenges,â€?
Justice Scalia states that the “door therefore remains open for a defendant to demonstrate that his sentence, whether inside or outside the advisory Guidelines range, would not have been upheld but for the existence of a fact found by the sentencing judge and not by the jury.â€? Gall, 128 S. Ct. at 602-03 (Scalia, J., concurring).

The best cases for this argument are those in which a judicial finding of fact has a
very large impact on the sentence, especially if the facts found are crimes of which the jury acquitted or that were never charged. As stated by the Appellant in an acquitted crimes case that will be argued before the en banc Sixth Circuit on June 4, 2008: “Unless this Court can say that it would uphold Mr. White’s 264-month sentence as reasonable absent the district court’s reliance on acquitted crimes for 167 months of that sentence, the sentence violated the Sixth Amendment.â€? See Brief of Appellant, United States v. White at 12, No. 05-6596, http://www.fd.org/pdf_lib/White_Appellant_Brief.pdf.

IV. Lack of Empirical Basis as Sword and Shield

In Rita, Gall and Kimbrough, at each point at which the guidelines are denied or
given some form of procedural or substantive respect, it depends on whether the
Commission actually exercised its capacity to develop guidelines based on empirical
data. We are invited to demonstrate that the Commission failed to do so with respect to the guideline at issue, using it as both sword and shield.

A. A Sword in Favor of a Non-Guideline Sentence

District court judges must now consider and respond to nonfrivolous arguments
that the guideline sentence itself reflects an unsound judgment because it fails properly to reflect § 3553(a) considerations, does not treat defendant characteristics in the proper way, or that a different sentence is appropriate regardless. Rita v. United States, 127 S. Ct. 2456, 2465, 2468 (2007).

District courts are no longer required, or permitted, to simply defer to Commission policies. Id. Courts of appeals may not “grant greater factfinding leeway to [the Commission] than to [the] district judge.â€? Id. at 2463.

Why would Justice Breyer invite litigants and courts to test the Guidelines?
Perhaps it is because the Guidelines cannot evolve unless the Commission hears and
incorporates feedback from sentencing judges. See Rita, 127 S. Ct. at 2464 (Commission “can revise the Guidelines accordinglyâ€?) (emphasis supplied); Kimbrough, 128 S. Ct. at 573-74 (Commission “will help to ‘avoid excessive sentencing disparities’â€? through ongoing revision of the Guidelines in response to sentencing practices.â€?) (emphasis supplied). That dialogue and evolution did not occur when the guidelines were mandatory,10 as Justice Breyer has recognized.11 In any event, he needed a majority, and the Court had already held 6-3 in Cunningham v. California, 127 S. Ct. 856 (2007) that a system that does not permit judges to sentence outside a recommended range based on “general objectives of sentencingâ€? alone without a “factfinding anchorâ€? violates the Sixth Amendment. Id. at 862-70.

Thereafter, even the “Government acknowledge[d] that . . .
‘courts may vary [from Guidelines ranges] based solely on policy considerations,
including disagreements with the Guidelines.’â€?12 Kimbrough, 128 S. Ct. at 570.

Gall is an example of the Guidelines not treating defendant characteristics in the
proper way, i.e., as required by 18 U.S.C. § 3553(a). There, the Court upheld a non-
guideline sentence in which the judge imposed a sentence of probation based on
characteristics of the defendant which are required to be considered under § 3553(a)(1) and must be taken into account in order to avoid unwarranted disparities and unwarranted similarities under § 3553(a)(6), but which the Guidelines ignore or deem not ordinarily relevant, including age and immaturity, voluntary withdrawal from a conspiracy, and self rehabilitation through education, employment, and discontinuing the use of drugs. Gall, 128 S. Ct. at 598-602.

Kimbrough was an “unremarkableâ€? “mine-runâ€? case in which the guideline itself
reflects unsound judgment in that it fails properly to reflect § 3553(a) considerations. 128 S. Ct. at 575.

There, the Court upheld a below-guideline sentence in an ordinary
crack trafficking case because the crack guidelines (like all of the drug guidelines) were not based on past practice at their inception, and reflect unsound judgment in light of the purposes of sentencing and the need to avoid unwarranted disparities. The Court said: “In the main,â€? the Commission used an “empirical approach based on data about past practices, including 10,000 presentence investigation reports,â€? but it “did not use this empirical approach in developing the Guidelines sentences for drug-trafficking offenses.â€?
Id. at 567.

When a guideline is not the product of “empirical data and national
experience,â€? it is not an abuse of discretion to conclude that it “yields a sentence ‘greater than necessary’ to achieve §3553(a)’s purposes, even in a mine-run case.â€? Id. at 575.

After Kimbrough, the courts of appeals “must re-examine [their] case lawâ€?
holding that “courts were not authorized to find that the guidelines themselves, or that the statutes on which they are based, are unreasonable.â€? United States v. Marshall, slip op.,2008 WL 55989 at **8-9 (7th Cir. Jan. 4, 2008).

Of course, the facts of the case must fit whatever it is that you contend is wrong
with the guideline. For example, an argument that the career offender guideline overstates the risk of recidivism when the predicates are drug offenses does not work for a client whose only predicates are crimes of violence, though there may be other arguments to reject the career offender guideline in the case. As the Court said in Kimbrough, “the District Court properly homed in on the particular circumstances of Kimbrough’s case and accorded weight to the Sentencing Commission’s consistent and emphatic position that the crack/powder disparity is at odds with § 3553(a).â€? 128 S. Ct. at 576.

The Court did not mean that the district court properly relied on something “uniqueâ€? about Mr.Kimbrough or his offense because it made quite clear that this was an “unremarkableâ€? “mine-runâ€? case. What it meant was that the facts of the case fit what is wrong with the crack cocaine guidelines. Thus, you are not seeking a “categoricalâ€? rejection of a guideline in all possible cases, but a rejection of the guideline in this case because the facts fit the policy problems of the guideline.

This challenge must be raised and developed by counsel. While the court could
raise it sua sponte, this is unlikely and there is no recourse on appeal if it does not. See United States v. Marshall, slip op., 2008 WL 55989 at *8 (7th Cir. Jan. 4, 2008) (judge was not required to reject the career offender guideline sua sponte).

B. A Shield Against Undue Influence at Sentencing

The reason the judge must seriously consider the extent of any departure from the
guideline range and give sufficient justifications for an unusually harsh or lenient
sentence is that the guidelines are “the product of careful study based on extensive
empirical evidence derived from the review of thousands of individual sentencing
decisions.â€? Gall, 128 S. Ct. at 594. But the Court immediately qualified this general assumption: “Notably, not all of the Guidelines are tied to this empirical evidence. For example, the Sentencing Commission departed from the empirical approach when setting the Guidelines range for drug offenses, and chose instead to key the Guidelines to the statutory mandatory minimum sentences that Congress established for such crimes,â€? the effect of which “is addressed in Kimbrough.â€? Id. at 594 n.2.

In Kimbrough, the Court said that district courts must treat the guidelines as the
“starting point and initial benchmarkâ€? because the Commission “has the capacity courts lack to ‘base its determinations on empirical data and national experience.’â€? Kimbrough, 128 S. Ct. at 574 (internal citations omitted). However, this does not pertain to guidelines, like the crack guidelines, that “do not exemplify the Commission’s exercise of its characteristic institutional role. In formulating Guidelines ranges for crack cocaine offenses, as we earlier noted, the Commission looked to the mandatory minimum sentences set in the 1986 Act, and did not take account of ‘empirical data and national experience.’

Indeed, the Commission itself has reported that the crack/powder disparity
produces disproportionately harsh sanctions, i.e., sentences for crack cocaine offenses ‘greater than necessary’ in light of the purposes of sentencing set forth in § 3553(a).â€? Id. at 575 (internal quotation marks omitted).

C. A Shield Against Undue Influence on Appeal

The courts of appeals may, but are not required, to apply a presumption of
reasonableness to a within-guideline sentence. Rita, 127 S. Ct. at 2462; Gall, 128 S. Ct. at 597. After Rita, courts of appeals can still decline to apply a presumption of reasonableness to all within-guideline sentences, United States v. Rutkoske, 506 F.3d 170, 180 n.5 (2d Cir. 2007); United States v. Ausburn, 502 F.3d 313, 326 n.23 (3d Cir. 2007), or to a sentence within a particular guideline. In Rita, the basis for the non-binding- independent-legal-effect presumption was that it was “fair to assumeâ€? that the guidelines “reflect a rough approximationâ€? of sentences that “might achieve 3553(a) objectivesâ€? because the original Commission (instead of basing the Guidelines on the purposes of sentencing as Congress directed, see 28 U.S.C. § 991(b)(1)(A)) used an empirical approachâ€? based on “past practice,â€? and the Guidelines “canâ€? evolve in response to non-guideline sentencing decisions and consultation with the criminal justice community. Rita, at 2464-65 (emphasis supplied). Thus, the court of appeals should not apply a presumption of reasonableness to a sentence within a particular guideline range when the Commission did not use this empirical approach to create the guideline or amend it in response to empirical evidence or feedback from judges and other participants in the criminal justice system.

If the government argues that the “closer reviewâ€? dicta in Kimbrough, 128 S. Ct.
at 574-75, should be taken as an instruction from the Supreme Court rather than the dicta that it is, see Part II.D, supra, it simply does not apply when the guideline at issue in the case “do[es] not exemplify the Commission’s exercise of its characteristic role.â€? Kimbrough, at 575.

Put another way, if a judge relies on evidence from the Commission
itself or another reliable source showing “that the Guidelines range ‘fails properly to reflect § 3553(a) considerations’ even in a mine-run case,â€? the judge is not “var[ying] from the Guidelines based solely on the judge’s view.â€? Id. at 575 (emphasis supplied).

D. What to Look For and Where to Look

When a guideline is not the product of “empirical data and national experience,â€?
i.e., the Commission did not exercise its capacity for expertise, judges have wide leeway to reject the guideline itself as reflecting unsound judgment even in a “mine-run case.â€? Kimbrough, 128 S. Ct. at 575. This is true if the guideline (1) was not based on past practice/empirical data at its inception; (2) was created or amended after the initial set of guidelines with no empirical basis; (3) was created or amended contrary to the Commission’s own data or other available data or policy analyses; (4) has not been amended in the face of later data that shows it to be unsound; and/or (5) was created or amended for no stated reason.

Sentencing Resource Counsel and the Defender Guideline Committee are in the
process of developing an online reference manual (entitled Deconstructing The
Guidelines which will be linked from www.fd.org) that will critically examine the history and empirical basis (or lack thereof) of the most frequently encountered guidelines and policy statements.

It will also provide a guide to doing it yourself, in case the provision
at issue in your case is too rarely used to be included or has not yet been completed. Check the online manual frequently, as this will be an ongoing process.

Meanwhile, always begin by checking the Reasons for Amendment in Appendix
C of the Guidelines Manual corresponding to the amendments listed in the Historical
Note at the end of each guideline. Is there any indication that empirical evidence
supported the guideline or subsequent amendments? Often, you will find no reason,
which itself demonstrates that the amendment was not based on empirical evidence.13

Often, the Commission will cite a new law enacted by Congress. Such citations must be critically evaluated as explained in Part G, infra. Review the law cited to determine whether or not it contains a congressional directive, and if so, what it actually says.

A typical example is the reason for prohibiting consideration of lack of guidance as a youth and similar factors indicating a disadvantaged background: “This amendment provides that the factors specified are not appropriate grounds for departure.â€? USSG, App. C, amend. 466 (Nov. 1,1992).

Analyze the law’s legislative history. Where a guideline has been amended, follow these steps for each amendment.

Look for affirmative evidence that the guideline is not based on empirical
evidence, does not advance sentencing purposes, and does not avoid unwarranted
disparities or unwarranted similarities. Much of this evidence has already been
assembled in The Continuing Struggle for Just, Effective and Constitutional Sentencing After United States v. Booker (August 2006),
http://www.fd.org/pdf_lib/EvansStruggle.pdf, which addresses, to a greater or lesser
extent, restrictions and prohibitions on individual characteristics and offense
circumstances, relevant conduct, drug offenses, immigration offenses, economic crimes, firearms offenses, sex crimes, the career offender guideline, the Guidelines’ failure to properly account for first offender status, various other problems with the criminal history rules, and the unnecessary use of imprisonment.

Check for relevant materials on www.fd.org, on the Sentencing Resource page,
http://www.fd.org/odstb_SentencingResource3.htm, the Crack Cocaine page,
http://www.fd.org/odstb_CrackCocaine.htm, and the Defender Recommendations to the
Commission, http://www.fd.org/pub_SentenceLetters.htm. Many resources are also cited
in Parts E, F and G, infra.

E.
Which Guidelines and Policy Statements Were Not Based on Past
Practice?

Congress directed the Commission to consider all four statutory purposes set forth
in Section 3553(a)(2) in developing the guidelines.14 The original Commissioners,
however, “consideredâ€? only “just desertsâ€? and “crime control,â€? then expressly abandoned those two purposes when they could not agree on which should predominate.

They solved their “philosophical dilemmaâ€? by adopting an “empirical approach that uses data estimating the existing sentencing system as a starting point.â€?16 At the instance of Justice Breyer, the Court now accepts that this makes the Guidelines a “rough approximationâ€? of the statutory purposes set forth in Section 3553(a)(2), see Rita, 127 S. Ct. at 2464; Gall,128 S. Ct. at 594, but recognizes that “not all of the Guidelines are tied to this empirical evidence.â€? Id. at 594 n.2.

Further, in estimating past practice sentencing levels, the Commission did not
include probationary sentences. See Supplementary Report at 24. This was no small
omission, since nearly 40% of all defendants were sentenced to straight probation in
1984. See Fifteen Year Report at 43. As of 2002, only 14% of all defendants were
sentenced to straight probation under the restrictive mandatory Guidelines. Id. Only
7.7% received straight probation in 2007, after Booker. See U.S. Sentencing
Commission, 2007 Sourcebook, Figure D. Straight probation should be used more freely
after Gall. See Part I.D, supra.

The use of uncharged and acquitted separate offenses to calculate the guideline
range also was not based on past practice and is inconsistent with national experience. See United States v. White, Appellant’s Supplemental Brief at 22-25 (discussing evidence with respect to acquitted crimes, most of which is equally applicable to uncharged crimes), ttp://www.fd.org/pdf_lib/White_Appellant_Brief.pdf.

The Commission “deviated from average past practiceâ€? when it deemed offender
characteristics other than criminal history to be not ordinarily relevant, as one of its “‘trade-offs’ among Commissioners with different viewpoints.â€? Stephen Breyer, The Federal Sentencing Guidelines and the Key Compromises Upon Which They Rest, 17
Hofstra L. Rev. 1, 19-20 (1988). This was also contrary to congressional will. See Part G, infra.

As Justice Breyer stated in 1987, “once the Commission decided to abandon the
touchstone of prior past practice, the range of punishment choices was broadâ€? and the “resulting compromises do not seem too terribly severe,â€? but the guidelines would evolveâ€? based on information from actual practice under the guidelines. Stephen Breyer, The Federal Sentencing Guidelines and the Key Compromises Upon Which They Rest, 17 Hofstra L. Rev. 1, 18-20, 23 (1988).

F.
Have the Guidelines Evolved Based on Empirical Evidence and
National Experience Since Then?

Since then, the Commission has amended the guidelines in a “one-way upward
ratchet increasingly divorced from considerations of sound public policy and even from the commonsense judgments of frontline sentencing professionals who apply the rules.� See Frank O. Bowman III, The Failure of the Federal Sentencing Guidelines: A
Structural Analysis, 105 Colum. L. Rev. 1315, 1319-20 (2005). How to show this?

1. Commission Studies
The Commission has published studies based on empirical evidence identifying
problems with the guidelines that have not yet been addressed. In addition to the reports on crack cocaine sentencing,18 the Commission’s Fifteen Year Report identifies serious problems with the career offender guideline, the relevant conduct rules, the drug guidelines generally, and various forms of disparity that have increased under the Guidelines, most notably racial disparity and hidden disparities caused by the government’s practices as permitted and encouraged by the Guidelines.

The Commission has published three reports on recidivism, identifying numerous factors that predict reduced recidivism that are prohibited or discouraged from consideration by the Guidelines and factors that do not predict recidivism which are included in the Guidelines.

Judges have relied on these extra-guideline findings to impose non-
guideline sentences that better comply with § 3553(a),21 and are clearly free to do so after Kimbrough.

The “modestâ€? two-level reduction in the crack guidelines is “‘only . . . a partial remedy’ for the problems generated by the crack/powder disparity.â€? Kimbrough, 128 S. Ct. at 569. “The amended Guidelines still produce sentencing ranges keyed to the [now discredited] mandatory minimums in the 1986 Act.â€? Id. at 569 n.10 (emphasis supplied). The pre-amendment guidelines “produced sentencing ranges that slightly exceeded those statutory minimums,â€? while the amended ranges “includeâ€? them. Id. at 569 n.10 (emphasis in original). U.S. Sentencing Commission, Fifteen Years of Guidelines Sentencing: An Assessment of How Well the Federal Criminal Justice System is Achieving the Goals of Sentencing Reform 47-55, 76, 82, 91, 94, 102-06, 111-15, 117, 122, 131-35, 140-42 (2004).

3. Statistics Showing the Guideline is Not Being Followed

A guideline is not based on empirical evidence or national experience when
judges increasingly impose non-guideline sentences in the face of this guideline. In
March 2006, the Commission published a report on the impact of Booker which identifies some of the kinds of cases in which below-guideline sentences had increased in the first year or so after Booker, including all drug trafficking cases, career offender cases, first demonstrated to fray family and community bonds, and contribute to an increase in recidivism and future criminality.â€?); Patricia M. Wald, “What About the Kids?’: Parenting Issues in Sentencing, 8 Fed. Sent. Rep. 137 (1995) (discussing growing body of research showing that children fare better in their parents’ care than in foster care or elsewhere).

4. Judicial Decisions

Many district court decisions and some appellate decisions identify and explain
issues the Commission has not addressed. For example, after Booker, district courts have issued many decisions showing that the career offender guideline fails to distinguish between serious and non-serious offenses.29 In United States v. Ennis, 468 F. Supp. 2d 228, 234 & n.11 (D. Mass. 2006), the judge pointed out that the definition of career offender predicates covers misdemeanor convictions, contrary to 28 U.S.C. § 994(h), from states with misdemeanors punishable by more than one year. In United States v. Baird, slip op., 2008 WL 151258 (D. Neb. Jan. 11, 2008), the judge described how the child pornography guideline was not based on empirical evidence.

In at least three cases, judges have declined to follow the “bad mathâ€? embodied in the new marijuana equivalency table for crack in multi-drug cases. See United States v. Molina, slip op., 2008 WL 544703 (E.D.N.Y., Feb. 28, 2008) United States v. Horta, __ F.Supp.2d __,2008 WL 445893 (D. Me. 2008); United States v. Watkins, __ F. Supp. 2d __, 2008 WL 152901 (D. Tenn. 2008). In United States v. Quinn, 472 F. Supp. 2d 104, 111 (D. Mass. 2007), the judge identified a “structural problemâ€? in the relevant conduct rule as demonstrated by two different probation officers “calculatingâ€? ranges of 37-46 months and 151-188 months for two identically-situated defendants in the same case.

In United States v. Adelson, 441 F. Supp. 2d 506 (S.D.N.Y. 2006), the judge explained how calculations under the fraud guideline based on unintended loss and various overlapping adjustments resulted in a “patently absurdâ€? life sentence. United States v. Gener, Crim. No. 04-424-17, 2005 WL 2838984 *5 (S.D.N.Y. Oct. 26, 2005) illustrated the problem with including juvenile adjudications with a sentence of 60 days or more in the criminal history score where the juvenile offense is trivial and the length of confinement results not from the gravity of the offense but family circumstances and special needs.

Judicial decisions evaluate offenses and offenders in light of sentencing purposes
in ways that the Guidelines simply do not, for example, discussing the statistical
likelihood of recidivism of persons of the defendant’s age, educational level and work history, the deterrent value and societal cost of lengthy prison sentences for the type of offense, the community’s view of the seriousness of the offense, the efficacy of substance abuse or other mental health treatment. See, e.g., United States v. Brennan, 468 F. Supp. 2d 400, 404-08 (E.D.N.Y. 2007); United States v. Holden, No. 06-20345, 2007 WL 1712754 (E.D. Mich. June 13, 2007); United States v. Nellum, Crim. No. 2:04-30, 2005 WL 300073 (N.D. Ind. Feb. 3, 2005); United States v. Perella, 273 F. Supp. 2d 162 (D.Mass. 2003).

On the issue of addiction and treatment, which the Guidelines do not
recognize, Judge Gertner has written: The status of being addicted has an ambiguous relationship to the defendant’s culpability. It could be a mitigating factor, explaining the motivation for the crime. It could be an aggravating factor, supporting a finding of likely recidivism. Barbara S. Meierhoefer, The Role of Offense and Offender Characteristics in Federal Sentencing, 66 S. Cal. L. Rev.
367, 385 (1992).

On the other hand, the relationship between drug rehabilitation and crime is clear. If drug addiction creates a propensity to crime, drug rehabilitation goes a long way to preventing recidivism. In fact, statistics suggest that the rate of recidivism is less for drug offenders who receive treatment while in prison or jail, and still less for those treated outside of a prison setting. Lisa Rosenblum, Mandating Effective Treatment for Drug Offenders, 53 Hastings L.J. 1217, 1220 (2002).
Perella, 273 F. Supp. 2d at 164.

G. What Effect Do Congressional Actions Have on the Analysis?

After Gall and Kimbrough, the fact that a guideline (or amendment to a guideline)
was spawned by congressional action is a red flag for lack of empirical basis, raising the question whether the guideline reflects unsound judgment. See Gall, 128 S. Ct. at 594 n.2 (“For example, the Sentencing Commission departed from the empirical approach when setting the Guidelines range for drug offenses, and chose instead to key the Guidelines to the statutory mandatory minimum sentences that Congress established for such crimes.â€?); Kimbrough, 128 S. Ct. at 575 (“The crack cocaine Guidelines . . . do not exemplify the Commission’s exercise of its characteristic institutional role.

In formulating Guidelines ranges for crack cocaine offenses, as we earlier noted, the Commission looked to the mandatory minimum sentences set in the 1986 Act, and did not take account of ‘empirical data and national experience.’â€?); id. at 569 n.10 (“The amended Guidelines still produce sentencing ranges keyed to the mandatory minimums in the 1986 Act.â€?).

The Court recognizes that Congress makes mistakes, and that when the
Commission blindly follows or exacerbates a congressional mistake with guidelines that are not based on empirical evidence or experience, and that are contrary to sentencing purposes and/or create unwarranted disparities or unwarranted similarities, the courts are free to reject such guidelines. Kimbrough, 128 S. Ct. at 567-68, 569 n.2, 571-72, 574-75;
Gall, 128 S. Ct. at 594 & n.2.

Congress created the Sentencing Commission as an independent expert body and
placed it in the Judicial Branch. The Supreme Court upheld the promulgation of the
Guidelines by the Commission against Separation of Powers challenge, “not without
difficulty,â€? based in part on a prediction that the Commission would not be enlisted in the work of the political branches, but instead would bring “judicial experience and expertiseâ€? to the “neutral endeavorâ€? of sentencing, “the Judicial Branch’s own business.â€?Mistretta v. United States, 488 U.S. 361, 407-08 (1989).

Justice Scalia disagreed, stating that it was “not about commingling, but about the creation of a new Branch altogether, a sort of junior-varsity Congress.â€? Id. at 427 (Scalia, J., dissenting).

From the start, the Commission based the guidelines in very large measure on the
actions and influences of Congress and the Department of Justice, rather than
independent expertise, beginning with the Anti-Drug Abuse Act of 1986.30 The
Commission has acknowledged that the goals of sentencing reform have not been fully
achieved because, “[i]n some cases, the results of research and collaboration have been overridden or ignored . . . through enactment of mandatory minimums or specific
directives to the Commission.�31 See Fifteen Year Report at vii.

The term “directivesâ€? may convey the impression of express instructions to amend the guidelines in particular ways, but many of the guidelines were created or amended as a reflexive response to a new or increased mandatory minimum, an increased statutory maximum, an instruction to study some aspect of sentencing or to change penalties if appropriate, or behind-thescenes discussions not in the public record at all.

In some instances, the Commission exceeded an express congressional directive, or took other action that appears to contravene congressional intent.

1. Congressional Actions That Are Not Express Directives

In Kimbrough, the government acknowledged that in general, courts may vary
from the guidelines based on policy considerations alone, including disagreements with the guidelines, but argued that the 100-1 powder to crack ratio was an exception because it was a “specific policy determinationâ€? by Congress which the Commission and sentencing courts were required to follow. Id. at 570. The Court rejected this characterization because the Anti-Drug Abuse Act “mandates only maximum and minimum sentences,â€? but “says nothing about the appropriate sentences within these brackets, and we decline to read any implicit directive into that congressional silence.â€? Id. at 571.

If it were otherwise, the Commission could not have exercised its own policy
judgment to use a different method than the statute for calculating the weight of LSD. Id. at 571-72 (discussing Neal v. United States, 516 U.S. 284 (1996)).

Neither “logical incoherenceâ€? with a statute, nor a directive to study and recommend unspecified amendments, constitutes a congressional command. Id. at 571-73.

Judges are free to disagree with guidelines that were created or increased in
response to an increase in a statutory maximum, a new or increased mandatory minimum, or a directive to study or raise sentences if “appropriate.â€? The Criminal Law Committee of the Judicial Conference has urged the Commission, when deciding whether to amend the guidelines in response to a mandatory minimum, to make an assessment based on its own expert opinion and independent of any potentially applicable mandatory minimum, and if the resulting guideline, alone or in combination with specific offense characteristics, is lower than the mandatory minimum, § 5G1.1(b) can operate. See Comments of the Criminal Law Committee of the Judicial Conference (March 16, 2007), http://www.ussc.gov/hearings/03_20_07/walton-testimony.pdf.

The Criminal Law Committee suggested that the Commission could consider in its independent evaluation any information in published reports or hearing records upon which Congress may have relied. Id. This recommendation was made in connection with proposed amendments responding to the Adam Walsh Act, which has no legislative history whatsoever.

2. Express Congressional Directives

In response to the government’s argument that the Anti-Drug Abuse Act
“implicitlyâ€? required the Commission to write guidelines corresponding to the mandatory minimums and extrapolating below, between and above those two levels, the Court said that “[d]rawing meaning from silence is particularly inappropriate here, for Congress has shown that it knows how to direct sentencing practices in express terms.â€? Kimbrough, 128 S. Ct. at 571.

As an example, it referred to 28 U.S.C. § 994(h), the statute upon
which the (in many ways broader, see sub-part 3, infra) career offender guideline is
based.

Does this mean that a guideline which follows to the letter a congressional
directive stated in “express termsâ€? is immune from scrutiny as a potentially unsound
judgment? That question was not before the Court, but the answer must be “No.â€? Even
the government recognizes as much. See Brief of the United States at 29, Kimbrough v. United States (“As long as Congress expresses its will wholly through the Guidelines system, the policies in the Guidelines will best be understood as advisory under Booker and subject to the general principles of sentencing in section 3553(a).â€?); Letter stating the government’s position on the career offender guideline, docketed March 17, 2008 in United States v. Funk, No. 05-3708, 3709 (6th Cir.) (“position of the United Statesâ€? is that “Kimbrough’s reference to [§ 994(h)] reflected the conclusion that Congress intended the Guidelines to reflect the policy stated in Section 994(h), not that the guideline implementing that policy binds federal courts.â€?) (emphasis in original), available on the
Sentencing Resource Page of www.fd.org.

Congress has the exclusive right and responsibility to legislate statutory
minimums and maximums,and those outer limits trump any inconsistent guideline
range, as is obvious, and as USSG § 5G1.1 says.

But when Congress uses the Commission as a conduit for a specific sentence or sentencing increase, the resulting guideline is but one factor to be considered under § 3553(a), and is subject to the same critical analysis as other guidelines, as the courts have found in both career offender and child pornography cases. See United States v. Martin, __ F.3d __, 2008 WL 748104 (1st Cir. Mar. 21, 2008) (courts have broad discretion to sentence below career offender guideline under Gall and Kimbrough); United States v. Sanchez, __ F.3d __, 2008 WL 553517 ** 9-11 (2d Cir. Feb. 29, 2008) (Section 994(h) is a directive to the Commission,
not the courts); United States v. Marshall, slip op., 2008 WL 55989 **7-8 (7th Cir. Jan. 4, 2008) (“We must reexamine our case lawâ€? holding “that courts are not authorized to find that the guidelines themselves, or the statutes upon which they are based, are unreasonable . . . in light of the Supreme Court’s recent decision in Kimbrough.â€?); United States v. Malone, 2008 U.S. Dist. LEXIS 13648 (E.D. Mich. Feb. 22, 2008) (imposing below guideline sentence based on Commission’s reports finding career offender guideline unsound); United States v. Baird, slip op., 2008 WL 151258 (D. Neb. 2008) (“Because . . . the Guidelines for child [pornography] offenses, like the drug-trafficking Guidelines, were not developed under the empirical approach, but . . . in response to statutory directives. . . . the court affords them less deference than it would to empirically-grounded guidelines.â€?).

3. Guidelines that Contravene Statutes

Where a guideline, policy statement or commentary is inconsistent with a specific
statutory provision, the statute controls. See United States v. LaBonte, 520 U.S. 751, 757-58 (1997) (amendment of career offender guideline to define “offense statutory
maximumâ€? not to include an increased maximum under 21 U.S.C. § 851 was in conflict
with the plain meaning of “maximum term authorizedâ€? in 28 U.S.C. § 994(h) and “must
bow to the specific directives of Congressâ€?); Neal v. United States, 516 U.S. 284, 292-95 (1996) (Commission could use a constructive weight method for LSD in the guidelines instead of the actual weight method used in 21 U.S.C. § 841 as construed in Chapman, but the statute controls at the mandatory minimum levels and the Commission has no authority to override it); Stinson v. United States, 508 U.S. 36, 38, 44, 45 (1993) (guidelines, policy statements and commentary must yield to the plain meaning of a statute).

Appendix C of the Guideline Manual sets forth the Reason for Amendment for
each guideline amendment. While the Reason for Amendment may say that it was
promulgated pursuant to a statute, closer inspection may reveal that the amendment
conflicts with the statute. For example, USSG § 3B1.4 increases the offense level by two levels for use of a minor in committing a crime, regardless of the defendant’s age, but the statute pursuant to which this guideline was promulgated stated that the defendant must be at least 21 year of age. The Sixth Circuit held that because the guideline was “in conflict with a clear congressional directive,â€? it could not be applied to a defendant under the age of 21. See United States v. Butler, 207 F.3d 839, 849-52 (6th Cir. 2000).

Another example is the career offender guideline, which purports to implement 28
U.S.C. § 994(h), but which defines the predicates far more broadly than Congress
required in the statute. See Amy Baron-Evans, The Continuing Struggle for Just,
Effective and Constitutional Sentencing After United States v. Booker at 48-51 (August 2006), http://www.fd.org/pdf_lib/EvansStruggle.pdf.

Another example is Chapter 5’s policy statements deeming various offender
characteristics to be never or not ordinarily relevant. Congress directed the Commission to consider the relevance of a variety of offender characteristics, 28 U.S.C. § 994(d), and to reflect the “general inappropriateness of consideringâ€? education, vocational skills, employment record, family ties and community ties “in recommending a term of imprisonment or length of a term of imprisonment.â€? 28 U.S.C. § 994(e).

The purpose of
28 U.S.C. § 994(e) was “to guard against the inappropriate use of incarceration for those defendants who lack education, employment, and stabilizing ties,â€? but “each of these factors,â€? in both § 994(d) and (e), “may play other roles in the sentencing decision.â€? S. Rep. No. 98-225, at 175 (1983).

The purpose of 28 U.S.C. § 994(e) was not to prohibit or discourage consideration of these factors to mitigate punishment, as the Commission has done. Moreover, these factors must be considered under Section 3553(a)(1).

An interesting example which unfairly affects many sentences are the application
notes to USSG § 1B1.3 which require the guideline range to be calculated based on
uncharged and acquitted crimes. This is contrary to the plain language of the Sentencing Reform Act, was not intended by Congress according to the legislative history, and has never been reviewed by Congress because it is buried in application notes which are not required to be submitted to Congress for review, as explained in United States v. White, Appellant’s Supplemental Brief at 15-21,
http://www.fd.org/pdf_lib/White_Appellant_Brief.pdf.

The White case will be argued on June 4, 2008 before the en banc Sixth Circuit.

David Finn