Gall v. US

From ScotusWiki

Jump to: navigation, search

Authorship: This page is maintained by Lyle Denniston.

Contents

[edit] Briefs and Documents

Docket: 06-7949

Oral Argument: Transcript

Judgment: REVERSED in an opinion by Justice Stevens

Merits briefs

[edit] Pre-Argument Articles

[edit] Argument Preview

In Gall v. United States, the Supreme Court again returns to the question of federal judges’ authority to decide the punishment for convicted criminals under the Sentencing Guidelines crafted by the United States Sentencing Commission. The specific issue is whether a sentence that is below the bottom of the Guideline range is unlawful, unless it can be justified by “extraordinary circumstances.”

[edit] Background

As Justice David H. Souter rightly remarked recently (albeit in a dissenting opinion), “Applying the Sixth Amendment to current sentencing law has gotten complicated, and someone coming cold to this case might wonder how we reached this point.” The wonderment, perhaps, continues as the Court moves on to further clarify – or complicate – federal sentencing law.

Since the Supreme Court, in Apprendi v. New Jersey in 2000 began a virtual revolution in the constitutional roles of judges and juries in selecting criminal sentences, the Court has been searching for ways to assure that judges retain discretion but, in using it, do not impinge on the role of the newly empowered juries. The implications, from 2000 on, was that the Court sooner or later would have to sort out jury and judge roles under the federal Sentencing Guidelines, established under the authority of the Sentencing Reform Act of 1984. That was because the Guidelines appeared to allow judges to base some longer sentences on facts that had not been found by the judge, not the jury – a seeming threat, under Apprendi, to the jury’s primary role under the Sixth Amendment in finding the facts that justify a verdict and thus a sentence keyed to that verdict.

In 2004, in the 5-4 decision in United States v. Booker, the Court found that the federal sentencing regime did in fact, have this very constitutional flaw. The maximum sentence that a judge could impose was the maximum that could be justified by facts determined by the jury in reaching a guilty verdict, and yet the Guidelines seemed to mandate some stiffer sentences based upon findings that the judge made. The Court, in a second majority opinion comprising the remedy part of Booker, found a solution: make the Guidelines advisory, not mandatory, and that would restore judges’ traditional discretion on sentencing and the role of the jury was supposedly preserved. It adopted something of an “abuse of discretion” standard for appellate review of federal sentences.

In Booker, the Court laid down the principle that, after a judge had imposed a sentence under the now-advisory Guidelines system, it would be judged on appeal by a standard of “reasonableness.” But the Court did not there say what would be reasonable, and what unreasonable. It began sorting that out in the 2006-2007 Term, taking two cases: one to judge whether a sentence was presumed to be reasonable if it was within a Guideline range (Rita v. U.S., 06-5754), and a second one to judge whether a sentence that was below the bottom of the Guideline range would be reasonable (Claiborne v. U.S., 06-5618). Mario Claiborne, however, died before the Court could answer the second question in his case, on below-range sentencing. But, on June 21, 2007, it decided the Rita case by an 8-1 vote, concluding that appeals courts may -- but are not required to -- apply a presumption that a sentence within a Guideline range is reasonable, with such a presumption not binding; appeals courts, it said, are to treat a judge’s choice of sentence within a range with deference. Because the Claiborne case been taken off the docket with his death, the Court agreed on June 11, before its Rita ruling, to grant review of Gall v. United States (06-7949), a below-range case.

Brian Michael Gall is a young (28 years old), and apparently successful businessman, who had a somewhat misspent youth, but went straight. While at the University of Iowa in Ames, he was part of a ring that distributed the illegal drug known as “ecstasy”(or MDMA). He decided, however, to give up the drug business, and continued his education, getting his degree and then moving to Arizona, taking a job in construction. Federal agents approached him there, and asked about the ecstasy ring. He admitted his role, and the federal agents took no action. Later, he moved to Winter Park, Colo. A year after the agents’ visit, he was charged with conspiracy to distribute the drug. He returned to Iowa to answer the charges.

He was released, however, and started his own construction business back in Iowa. In March 2005, he pleaded guilty to the conspiracy charge. The Guidelines range for his crime was 30 to 37 months in prison. But the federal judge, basing his decision largely on Gall’s conduct since the crime years, set the sentence at 36 months on probation. That sentence, the judge concluded, was “sufficient, but not greater than necessary.” Prosecutors appealed the sentence, and the U.S. Court of Appeals for the Eighth Circuit overturned the sentence, concluding that a sentence outside the Guideline range amounted to “an extraordinary reduction” that had to be justified by “extraordinary circumstances.” It found the sentence to probation “unreasonable.”

[edit] Petition for Certiorari

Gall’s petition, filed on Nov. 22, 2006, raised a single question: was it “unreasonable,” under Booker, for a judge to impose a sentence below a Guideline range unless there was a finding of extraordinary circumstances. The U.S. Solicitor General urged the Court to hold the case until after it had decided the Claiborne case – the same position Gall’s counsel had taken. Once that case was vacated as moot, the Solicitor General recommended another case for review on the below-range issue. The Court, instead, chose Gall’s appeal, granting it on June 11, 2007 (granted simultaneously with Kimbrough v. U.S., 06-6330, another below-range case but involving the Guidelines for crack cocaine, far harsher than those for powder cocaine.) Oral argument is scheduled for Oct. 2, 2007, at 10 a.m., immediately preceding the Kimbrough case.

[edit] Merits Briefs

Gall’s brief on the merits relied primarily upon a simple argument: that the “extraordinary circumstances” test for a below-range sentence essentially transfers the sentencing discretion from the trial judge to the court of appeals, robbing the judge of the very flexibility in sentencing that the Supreme Court restored in Booker and buttressed in Rita. Just as it would be unconstitutional to presume that a below-range sentence was unreasonable (a point the brief says the government conceded in Rita), it is unconstitutional to use the “extraordinary circumstances” formula as a proxy for a presumption of unreasonableness, the brief contended.

“Implementation of an ‘extraordinary circumstances’ or ‘proportionality’ test will necessarily lead to the same constitutional defects inherent in the mandatory

Guidelines system, which this Court rejected in Booker,” Gall’s brief asserted That test, it added, “provides that a district court cannot impose a sentence outside the range recommended by the Guidelines unless the judge finds ‘extraordinary’ facts in addition to those reflected in the verdit…”

Moreover, the brief said, this test will provoke “a host of statutory problems.” The other sentencing factors laid out in the Sentencing Reform Act vest discretion in the sentencing judge, it explained.

In Gall’s own case, his brief contended, the Eight Circuit showed no deference to the judge’s findings, and in essence engaged in its own assessment. The sentencing judge’s conclusions were overturned, according to the brief, not because they were the result of an abuse of discretion, but because they were not the sentence the appeals court would have imposed based on its own independent re-weighing of the Reform Act factors. Some other appeals courts that apply the same test, it added, are actually ordering district juges to sentence within a particular range when the case returns to them.

The Apprendi problem is recurring, the brief claimed, since the Eighth Circuit approach forbids federal judges from sentencing outside the Guidelines absent additional findings of fact, “in violation of the Sixth Amendment.”

Thus, the appeal summed up, Gall’s probation sentence should be reinstated, because that is what the sentencing judge found to be more appropriate to his particular case and circumstance.

The United States’ merits brief is, in its own way, as direct and simple as Gall’s was on a different basic proposition. When a federal sentence comes up for review in an appeals court, the brief contended, that court should “apply a principle of proportionality, under which a sentence that significantly varies from the advisory guidelines range should have a correspondingly strong justification.” This will enable appeals courts, it said, to iron out “sentencing differences” and promote Congress’ goal of “avoiding unwarranted sentencing disparities.”

A proportionality principle, it argued, does not amount to a requirement of an “extraordinary” justification. “Only sentences that dramatically vary from the range require substantial justification,” the brief explained. There also is no need, it said, that every variation from a Guideline must be supported by a fact beyond what the jury found. “Considerations of policy, as well as facts, can support a variance; the test is the cogency and strength of the rationale, not whether it is fact-based.”

In short, the government contended, “proportionality review is a useful tool of appellate review, not a rigid presumption.” Courts can avoid unwarrant disparities in sentencing, according to the government, by consulting the Guidelines, “rather than some other benchmark, in assessing whether a sentence is unreasonably severe or lenient.”

Another virtue of its approach, the government asserted, was that it allows appeals courts to play a role that district courts cannot: “surveying a broader range of cases and evaluating the cogency and persuasiveness of the district court’s justification.”

Gall’s approach, the brief contended, “would effectively license almost unbounded discretion by sentencing judges, with erratic results that turned on the identity of the particular judge. It is impossible to conceive that the Congress that enacted the Sentencing Reform Act would approve that result.”

The balance struck in Gall’s case, the brief summed up, was unreasonable. While some lesser sentence that the 30-37 months in prison might have been justified, it argued, “the complete elimination of jail time – the most extreme lesser sentence available” simply was beyond the pale.

Amicus briefs have been filed by the National Association of Criminal Defense Lawyers, Families Against Mandatory Minimums, Washington Legal Foundation, New York Council of Defense Lawyers and Federal Public and Community Defenders.

[edit] Analysis

The Supreme Court, even when it voted 8-1 for the result in the Rita case in the 2006-07 Term, was divided in the rationale employed by several Justices However, Justice Stephen G. Breyer’s majority opinion spoke definitely for six Justices, including the two newest members of the Court – Chief Justice John G. Roberts, Jr., and Justice Samuel A. Alito, Jr. It may be assumed, therefore, that a majority of the Court will try to make its Booker formulation more workable in a pragmatic way when the issue is below-Guidelines rather than within-Guidelines sentencing

The two, though, perhaps are not interchangeable. A within-Guidelines system still appeals to Breyer’s sense that the Guidelines regime is well worth preserving -- within Sixth Amendment limitations, of course. But can he hold Justices Ruth Bader Ginsburg and John Paul Stevens in a majority when the concept of fitting the punishment to the individual is once more narrowed, as it might well be under either the “extraordinary circumstances” test or the government’s proposed “proportionality” test? And what are the chances that a continuingly skeptical Justices Antonin Scalia and Clarence Thomas, still worried that the Sixth Amendment jury trial right remains in some jeopardy in current sentencing doctrine, might attract the Chief Justice and Justice Alito into their sector? The argument, thus, will be closely watched to see whether constitutional principle and pragmatic inclination coincide.

[edit] Oral Argument Analysis

  • This analysis, by Lyle Denniston, is a combined recap of the instant case and the other sentencing case argued the same day, Kimbrough v. US. It originally appeared here on SCOTUSblog.

The Supreme Court, sounding even more skeptical about restricting federal judges’ power to select criminal sentences, spent two hours Tuesday in a seeming exploration of how to salvage something workable in the U.S. Sentencing Guidelines system and how to fashion a remaining – but diminished – role for appeals courts in reviewing actual sentences. One immediate impression was that the U.S. Circuit Courts may no longer be able to require sentencing judges to stay within the Guidelines except in highly unusual circumstances. The trend line in the argument appeared to be clear enough that Justice Stephen G. Breyer, a strong proponent of the Guidelines regime, at one point fretted about the end of that now-advisory federal sentencing system.

In fact, it also was Justice Breyer who summed up the task the Court confronted in back-to-back arguments in Gall v. U.S. (06-7949) and Kimbrough v. U.S. (06-6330), saying that, by the end of the day, the Court needed to hear the words it could use in a ruling that would “lead to considerable discretion” for sentencing judges, “but not totally.” While he said that “one of the major thrusts” of the Court’s past rulings was that judges should “follow the Guidelines,” even if they were not mandatory, it seemed clear that that admonition was losing some of its force with colleagues.

Justice Antonin Scalia, who with some reluctance has been going along with retaining the Guidelines system, led the chorus of argument on Tuesday that sentencing judges could openly disagree with the U.S. Sentencing Commission’s recommendations, even refusing to follow the policy judgments the Commission laid out, in order to make very certain that the Guidelines were strictly advisory. When one of the lawyers defending a below-Guideliines sentence suggested that judges would have to pay attention to the policy underlying a Guideline range and could deviate from it only if their “disagreement was reasonably grounded in the facts of the [particular] case,” Scalia countered that that concession was not necessary. “That is not my understanding” of the Court’s precedents on a sentencing regime that satisfies the Constitution, Scalia said.

The last time the Court took steps to preserve the Guidelines system, late last June, when it bowed to sentencing judges’ discretion but seemed to be preserving a fairly strong oversight role for the appeals courts, the vote was 8 to 1 (in Rita v. U.S.). But that vote was somewhat misleading at the time, because of the various positions taken by the Justices, and, on Tuesday, it was obvious that the pro-Guidelines sentiment is not that solid on the bench.

But, if the Guidelines themselves seemed to be losing some of their remaining luster among the Justices, it appeared even clearer that federal appeals courts could see their role in overseeing sentences fading into a distinctly secondary one. The Justices focused closely and repeatedly upon how to define appellate review that would not result, in practice, in making the Guidelines more or less binding. The view now embraced by several appeals courts that a sentence that fell outside a Guideline ranges would be found “unreasonable” if not justified by “extraordinary circumstances” went largely without visible support from the bench.

The Court appeared likely to have to thrash out in private discussions just what the appellate courts could do. No apparent consensus was evident during the two hours. “What is left for the appellate courts; is it just procedural,” or is it substantive, Chief Justice John G. Roberts, Jr., asked.

But the approach that the Justice Department advanced — giving appeals courts clear-cut authority to demand more justification from sentencing judges for sentences that fall “significantly outside” a Guideline range, with the need for stronger reasons rising with the amount of deviation from the range — was not embraced by any member of the Court. “We’re trying to develop a rule that can be applied sensibly,” Justice Scalia commented to Deputy Solicitor General Michael R. Dreeben. “You haven’t given us a rule…If I were a Court of Appeals judge, I would have no idea when I could [nullify an out-of-Guideline sentence] or when I could not.” Justice John Paul Stevens prodded Dreeben unsuccessfully, trying to get some more specific definition of what his “proportionality” approach would entail. Even Breyer said he was worried about Dreeben’s suggestion being too mathematical, too inflexible.

Both of the cases up for argument involved below-range sentences: Brian Michael Gall got 36 months on probation, instead of the Guideline minimum for his crime, 30 months in prison; Derrick Kimbrough got 15 years for dealing in cocaine, instead of the Guideline minimum of 19 years. But both sentences were nullified by federal appeals courts as unjustified.

The two cases, as they reached the Court, focus on whether it is “reasonable” for a sentencing judge to depart from the Guidelines – in Gall’s case, substituting probation for a prison term, in Kimbrough’s case, deviating from the 100-to-1 sentencing ratio for crack vs. powder cocaine.

In Gall, argued first Tuesday, the Justices’ examination of “reasonableness” focused not so much of when a below-range sentence would be deemed “unreasonable,” but on the division of sentencing authority between trial judges and appellate courts. While the general sentiment on the bench seemed to be in favor of tilting that balance decidedly in the trial judge’s favor, some of the Justices did express reservations if a trial judge felt that “anything goes” so long as the judge put on the record reasons for not following a Guideline range. Dreeben pressed for a significant role for appellate judges, giving them authority to take “a harder look at a case” where the judge had set a sentence “largely outside the Guidelines.” Gall’s lawyer, Washington attorney Jeffrey T. Green, argued that empowering appeals courts to insist upon stronger justifications was a move toward “a presumptive sentence,” subverting the advisory nature of the Guidelines and requiring judges to find facts that had not been found by a jury, in violation of the Sixth Amendment.

In Kimbrough, the Justices shifted from sentencing judges’ deviation from Guidelines ranges, to their authority to deviate from the Sentencing Commission’s view that Congress intended that crack cocaine crimes were more serious than powder cocaine crimes, and thus should draw much heavier sentences. The Commission has not felt free to deviate, in its Guidelines, from the 100-to-1 crack-to-powder ratio, even though Congress did not directly mandate that as a Guideline. While Dreeben, arguing this case, too, for the government, insisted that Congress had simply taken away all discretion for judges about maintaining the sentencing disparity, Kimbrough’s lawyer, Michael S. Nachmanoff, Federal Public Defender in Alexandria, Va., argued that trial judges should be free to set a cocaine sentence to fit the particular facts of each case, even if that resulted in a wide difference in sentencing of like cases. Nachmanoff went so far as to concede to Justice Ruth Bader Ginsburg that, under his approach, a judge in an individual case could opt to sentence for powder cocaine crimes as high as for crack crimes.

[edit] Opinion Analysis

Lyle Denniston originally posted this analysis on SCOTUSblog.

The Supreme Court on Monday gave federal judges new authority to set sentences for crack cocaine crimes below the range of punishment set by federal guidelines — a major restoration of flexibility for trial judges in drug cases. It ruled 7-2 that the federal guidelines on sentencing for cocaine violations are advisory only, rejecting a lower court ruling that they are effectively mandatory. Judges must consider the Guideline range for a cocaine violation, the Court said, but may conclude that they are too harsh and may sentence below the range by considering the wide disparity between the recommended punishment for crack cocaine and cocaine in powder form. Justice Ruth Bader Ginsburg wrote the decision in Kimbrough v. U.S. (06-6330).

The ruling validates the view of the U.S. Sentencing Commission that the 100-to-1 crack v. powder cocaine disparity may exaggerate the seriousness of crack crimes. The Court decision Monday rejected the Bush Administration argument that, because Congress had written the ratio into federal law, federal judges could not depart from it. The law, the Court concluded, only sets maximum and minimum sentences. “The statute says nothing about appropriate sentences within these brackets, and this Court declines to read any implicit directive into the congressional silence,” it declared.

The decision does not mean that crack cocaine crimes must be punished the same as powder cocaine crimes, but it does allow trial judges to disagree with the Guidelines’ much heavier recommendations for punishment of crack crimes. The decision also does not disturb the 100-to-1 ratio as it is spelled out in federal law (as opposed to the Guidelines); that ratio still applies at the minimum level of quantities of drugs involved in a given crime. Some 70 percent of those convicted of crack cocaines get the minimum sentence, many as a result of plea bargains. Above that level, though, the new ruling gives trial judges considerable range of choice, case by case.

Ruling in a second Guidelines case, Gall v. U.S. (06-7949), the Court — also by a 7-2 vote — cleared the way for judges to impose sentences below the specified range and still have such punishment regarded as “reasonable.” The Justices, in an opinion written by Justice John Paul Stevens, told federal appeals courts to use a “deferential abuse-of-discretion standard” even when a trial sets sets a punishment below the range. Chief Justice John G. Roberts, Jr., announced that opinion in Stevens’ absence.

The Gall decision overturned a ruling by the Eighth Circuit Court that a below-Guidelines sentence would be reasonable only if justified by “extraordinary circumstances.” It was not for the Circuit Court to decide de novo the issue of whether a variation from a Guideline range was justified, it said.

In the last of three rulings on Monday, the Court decided unanimously that one does not “use” a gun, for purposes of imposing a mandatory five-year federal sentence, if the person receives the gun in a trade for drugs. Justice David H. Souter wrote the opinion in Watson v. U.S. (06-571). “The Government may say that a person ‘uses’ a firearm simply by receiving it in a barter transaction, but no one else would. A boy who trades an apple to get a granola bar is sensibly said to use the apple, but one would never guess which way this commerce actually flowed from hearing that the boy used the granola,” Souter wrote.

The Kimbrough ruling on punishing crack cocaine offenses marks a major shift in the debate that has raged for 21 years over the much more severe sentencing required for those whose crimes involved crack cocaine. The Sentencing Commission for years asked Congress to ease the 100-to-1 ratio, and usually failed, but only recently gained some flexibility to vary the Guideline range outside that ratio. The disparity in punishment has often been challenged as racially oriented, because black offenders more often are involved in possessing or distributing crack than powder. Justice Ginsburg noted that 85 percent of those punished for crack crimes in federal court are black.

The 100-to-1 ratio is keyed to the quantity of the cocaine involved in the crime. As Justice Ginsburg explained it in practical effect: “a dealer in crack cocaine was subject to the same sentence range as a dealer in 100 times more powder cocaine.” One effect of this, Ginsburg noted, is “that a major supplier of powder cocaine may receive a shorter sentence than a low-level dealer who buys powder from the supplier but then converts it to crack.” The 100-to-1 Guidelines disparity has been somewhat relaxed as of Nov. 1 by the Sentencing Commission. The Commission is now pondering whether to make the reduced range retroactive. The change, allowed by Congress, would generally result in crack sentences between two and five times longer than for equal amounts of powder, rather than 100 times longer. With Monday’s decision, even that reduction is not binding on federal judges.

The Court’s ruling, besides shoring up the Sentencing Commission’s criticism of crack punishment, also bolsters federal trial judges who in recent months have been experimenting with easing up on crack cocaine sentences. Whether this was a valid use of their authority, because it might and does result in below-Guidelines sentences, was the issue the Court decided in Kimbrough.

The Gall case also involved a question of below-Guidelines sentencing, but was broader than the cocaine controversy. The issue there was whether any federal sentence that fell below a Guideline floor was valid if it was not supported by “extraordinary circumstances.”

The vote supporting the final outcome was the same in both sentencing cases: Chief Justice Roberts and Justices Ginsburg, Stevens, Stephen G. Breyer, Anthony M. Kennedy, Antonin Scalia and David H. Souter in the majority, Justices Samuel A. Alito, Jr., and Clarence Thomas in dissent. Scalia wrote a separate concurring opinion in Kimbrough, and he and Souter wrote separate concurring opinions in Gall.

In the case of Derrick Kimbrough of Norfolk, Va., a federal judge found the sentence dictated by the Guideline range and the crack-powder disparity to be “ridiculous,” and imposed a sentence of 15 years, which was 4 1/2 years below the bottom of the range for his crime — conspiracy with intent to distribute and possession with intent to distribute crack. The Court said on Monday that the judge’s sentence “should survive appellate inspection.”

In the case of Brian Michael Gall, a young man who dealt the illegal drug “ecstasy” while in college in Iowa but went straight after giving up drugs and going into business in Arizona and Colorado, gave himself up and pleaded guilty to conspiracy to distribute the drug. The Guideline range for his crime was 30 to 37 months in prison, but the federal judge gave him 36 months on probation, largely based on his more recent behavior. The Court said that it found this sentence to be “reasoned and reasonable,” and thus reversed the Eighth Circuit ruling that it was not.

[edit] Links and further information

[edit] SCOTUSblog

[edit] Video

  • In a video from the American Constitution Society, Carol Steiker, professor of law, Harvard University, previews Gall. [1]

[edit] Podcasts

  • Ohio State's Douglas Berman discusses the Supreme Court's ruling in this case in a 7-minute podcast. [2]
  • Ohio State's Douglas Berman previews the case in a 10-minute podcast. [3]
Retrieved from "http://www.scotuswiki.com/index.php?title=Gall_v._US"
Personal tools