Transcript Post-United States v. Booker, 543 U.S. 220, 125 S. Ct. 738

Post-United States v. Booker,
543 U.S. 220, 125 S. Ct. 738
(2005)
A Discussion of Post-Booker Variances;
Kimbrough v. United States, 128 S. Ct. 558 (2007);
and
Gall v. United States, 128 S. Ct. 586 (2007).
Tracy Dreispul
Assistant Federal Public Defender
400 N. Florida Street, Suite 2700; Tampa, FL 33602
813-228-2715
[email protected]
United States v. Booker
543 U.S. 220, 125 S. Ct. 738 (2005)

Constitutional Holding:
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
5th & 6th Amendments Require All Facts Essential
to Punishment to be Proven Beyond a
Reasonable Doubt (“BARD”)
Remedial Holding:
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Courts must consider the Guidelines, but are not
bound to apply them in every case.
“Reasonableness Review”
U.S. Sentencing Commission
Preliminary Quarterly Data Report
1st Quarter 2008
U.S. Sentencing Commission
Preliminary Quarterly Data Report
1st Quarter 2008
U.S. Sentencing Commission
Preliminary Quarterly Data Report
1st Quarter 2008
U.S. Sentencing Commission
Preliminary Quarterly Data Report
1st Quarter 2008
70%
National
11th Cir.
MDFL
60%
50%
40%
30%
20%
10%
0%
Within
Range
Upward
Departure
Booker
upward
Govt
NGS
Downward Downward
D.D. w
Booker
Rita v. United States
127 S. Ct. 2456 (2007)


The Sixth Amendment allows “presumption” of
reasonableness on appeal to a sentence that is
imposed within the properly-calculated
Guidelines range.
Not a district court presumption

Assumes district court independently reviews case
and finds guideline sentence appropriate after
consideration of § 3553(a) factors.
MINE RUN

Presumption ❝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.❞
11th Cir. Does Not Have
Presumption



United States v. Talley, 431 F.3d 784, 788 (11th
Cir. 2005) (cited in Rita as an example of
opinions rejecting presumption).
United States v. Hunt, 459 F.3d 1180, 1184
(11th Cir. 2006) (rejecting presumption of
guideline applicability at district court level).
BUT: Would expect GL to be reasonable in
typical case
Gall v. United States, 128 S. Ct.
586 (2007)


QP: Whether a court of appeals may
apply a “proportionality test,” and require
that a sentence that constitutes a
substantial variance from the Guidelines
be justified by extraordinary
circumstances.
“converse question” to Rita
Undisputed Facts:
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“A month or two” during college, distributed ecstasy.
> $30,000
Voluntarily withdrew
graduated
moved to Illinois, later Colorado
1 ½ year later questioned by DEA. Admits conduct
2 years after interview with DEA -- 3 ½ years after
withdraw from conspiracy -- indicted.
Voluntarily surrenders
Starts successful business while on pretrial release
“small flood” of letters & character witnesses
Sentence: 36 mos. Probation
“Any term of imprisonment . . . would be
counter effective by depriving society of
the contributions of the Defendant”
Eighth Cir. Vacates Sentence

“Proportionality test” : Sentence outside
guidelines must be supported by
justification “proportional” to the extent of
the difference between the guideline and
the sentence imposed.
Supreme Court: Reverses Eighth
Circuit.


Proportionality Test Inconsistent with Booker
“[W]hile the extent of the difference between a
particular sentence and the recommended
Guidelines range is surely relevant, courts of
appeals must review all sentences - whether
inside, just outside, or significantly outside the
Guidelines range, - under a deferential abuse-ofdiscretion standard.”
Gall v. United States – cont’d.

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Court must give “serious consideration” to
extent of departure;
must “explain his conclusion that an
unusually lenient or an unusually harsh
sentence is appropriate in a particular
case with sufficient justifications”
Gall v. United States – cont’d.


Appellate courts may take degree of
variance into account and consider the
extent of a deviation.
Rejects requirement of “extraordinary”
circumstances to justify a sentence
outside the Guidelines range.
Gall rejects mathematical formula

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One-sided approach, as probation is always
“100%” departure,
Gives no weight to probation or supervised
release as “substantial restriction of freedom.”
128 S. Ct. at 595. See also id. at 596
Reaffirms no presumption in district court.
128 S. Ct. at 595.
Probation is “Substantial
Restriction of Freedom”

District Court: Not act of leniency

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strict reporting conditions
alcohol and drug testing
not able to change or make decisions about life
circumstances
harsh consequences for violation
Supreme Court: “We recognize that custodial
sentences are qualitatively more severe than
probationary sentences. Offenders on
probation are nonetheless subject to
several standard conditions that restrict
their liberty.” Id. at 595-96 (emphasis added).
Gall v. United States: Sentencing
Procedure

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Correctly calculate GL range
GL “starting point and initial benchmark.”
GL not only consideration.
Give both parties the opportunity to argue “for
whatever sentence they deem appropriate
Consider “all of the § 3553(a) factors to
determine whether they support the sentence
requested by a party.”
May not presume the GL range reasonable.
Sentencing Procedure – cont’d.

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Individualized determination based on facts.
Consider extent of deviation from GL and ensure
that justification is sufficiently compelling to
support variance.
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“We find it uncontroversial that a major departure
should be supported by a more significant justification
than a minor one.”∙
“Adequately explain the chosen sentence to
allow for meaningful appellate review and to
promote the perception of fair sentencing.”
Appellate Review

Reasonableness = Abuse of Discretion
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All sentences, inside and outside GL range, reviewed
for abuse of discretion
Ensure no significant procedural error
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failing to calculate GL
improperly calculating GL
failing to consider § 3553(a) factors
selecting a sentence based on clearly erroneous facts
failing to adequately explain the chosen sentence

including an explanation for any deviation from GL
Appellate Review – Cont’d.
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Substantive reasonableness
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totality of the circumstances
extent of any variance
May, but is not required, to apply presumption of
reasonableness to sentences within GL
May not apply presumption of unreasonableness
to sentence outside Guidelines.
May consider extent of deviation, but must give
deference

District courts “institutional advantage”
Gall Holding:
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Eighth Circuit gave too little deference
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Too close to de novo review.
Sentence reflected “reasoned and
reasonable decision that the § 3553(a)
factors, on the whole, justified the
sentence.”
Kimbrough v. United States,
128 S. Ct. 558 (2007)

QP: Whether a sentence outside the
guidelines range is per se unreasonable
when it is based on a disagreement with
the sentencing disparity for crack and
powder cocaine offenses.
Crack vs. Powder
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Same Active Ingredient
Same physiological and psychotropic
effects
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but crack is absorbed faster, and produces a
shorter, more intense high.
Old Guidelines: Crack sentences 3 - 6
times longer than powder sentences for
offenses involving equal amounts of drugs
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(Now 2-5 times longer)
Unwarrated Disparity
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Disparity "generally unwarranted"
“fails to meet the sentencing objectives
set forth by Congress in both the
Sentencing Reform Act and the 1986 Act."
No Empirical Support for Drug
Weight as Proxy
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Congress sought “to link the ten-year
mandatory minimum trafficking prison
term to major drug dealers and to link the
five-year minimum term to serious
traffickers.” 1995 Report 119.
1986 Act uses drug weight as “sole proxy
to identify ‘major’ and ‘serious’ dealers.”
Kimbrough, 128 S. Ct. at 566-67.
No Empirical Support for Drug
Weight as Proxy

❝In the main, the Commission developed Guidelines
sentences using an empirical approach based on data
about past sentencing practices, including 10,000
presentence investigation reports. . . .
The Commission did not use this empirical
approach in developing the Guidelines sentences
for drug-trafficking offenses. Instead, it
employed the 1986 Act’s weight-driven scheme. ❞
....
❝ The crack cocaine Guidelines . . . do not exemplify the
Commission’s exercise of its characteristic institutional
role.❞
No Empirical Support for Drug
Weight as Proxy


Gall, 128 S. Ct. at 586 n.2
United States v. Ennis, 468 F.Supp.2d 228 (D.
Mass. 2006)
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“happenstance”
“fortuitous”
Paul J. Hofer & Mark H. Allenbaugh, The Reason
Behind the Rules: Finding and Using The
Philosophy of the Federal Sentencing Guidelines,
40 Am. Crim. Law Rev. 19, 70-72 (2003).

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“important moral questions of culpability are relatively
neglected”
“false precision”
Commission Repeatedly
Recommended Lessening Disparity
1995 1-to-1
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1997 5-to-1
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U.S.S.C. Special Report to Congress: Cocaine and Federal
Sentencing Policy (Feb. 1995)
http://www.ussc.gov/r_congress/NEWCRACK.PD
2002 – 20-to-1
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http://www.ussc.gov/crack/exec.htm
U.S.S.C. Report to Congress: Cocaine and Federal Sentencing
Policy (May 2002)
http://www.ussc.gov/r_congress/02crack/2002crackrpt.htm
2007: U.S.S.C., Report to Congress: Cocaine and
Federal Sentencing Policy (May 2007)
Commission’s 3 Major Problems
with Disparity
(1) Based on "assumptions about the relative
harmfulness of the two drugs" that "more
recent research and data no longer
support” Kimbrough, 128 S. Ct. at 568.
Commission’s 3 Major Problems
with Disparity
(2) “inconsistent with" Congressional
policy to punish major drug dealers
more severely than low-level dealers.

“anomalous” result that “retail crack dealers get
longer sentences than the whole-sale drug
distributers who supply them the powder cocaine
from which their crack is produced.”
Commission’s 3 Major Problems
with Disparity
(3) "fosters disrespect for and lack of
confidence in the criminal justice system
because of a widely-held perception that
it promotes unwarranted disparity based
on race”

3553(a)(1)(A): respect for the law
Amendment 706
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"modest amendment”
“partial remedy”
“Any comprehensive solution requires
appropriate legislative action by
Congress.” 2007 Report.
“no higher than 20-to-1.”
Kimbrough: Holding
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Under Booker, the cocaine Guidelines, like
all other Guidelines, are advisory only.
Guidelines require “Respectful
Consideration” (citing Gall)
“Array” of factors to consider
Crack/powder disparity may be considered
“even in a mine-run case.”
Disparity
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Gov't: disparity created by sentencing “cliffs” around
threshold amounts and by the result of different
sentences for similar crimes.
Court: sentencing courts must consider disparity,
including “cliffs”
Booker requires some disparity
70% of crack offenders = base offense levels at or 2
levels above man mins.
“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.”
United States v. Stratton, 519 F.3d
1305 (11th Cir. 2008)
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Reconsiders prior opinion rejecting crack/powder
argument.
Kimbrough overruled United States v. Williams, 456 F.3d
1553 (11th Cir. 2006), which concluded that federal
courts were "not at liberty to supplant [Congress's]
policy decision" that "crack offenders should be punished
more.”
In Kimbrough, the Supreme Court overruled Williams
and determined that 'it would not be an abuse of
discretion for a district court to conclude when
sentencing a particular defendant that the crack/powder
disparity yields a sentence 'greater than necessary' to
achieve [18 U.S.C.] § 3553(a)'s purposes, even in a mine
run case." 128 S. Ct. at 566 n.4, 575.
18 U.S.C. 3553(a) Factors
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nature and circumstances of the offense
history and characteristics of the offender
seriousness of the offense
Need to promote respect for the law
just punishment
General deterrence
Specific deterrence
correctional treatment
The kinds of sentences available
The GL
Policy Statements
Restitution
Disparity
18 U.S.C. 3553(a)(2)(A) Just
Punishment
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Do Guidelines Provide Just Punishment?
Overstate criminal history?
Double-count criminal history?
Overstate seriousness of the offense?
Has Congress tinkered with methodology?
18 U.S.C. 3661

“No limitation shall be placed on the
information concerning the background,
character, & conduct” of the client.
Prohibited Factors

U.S. v. Velasquez, --- F.3d ---, 2008 WL
1776588 (11th Cir. Apr. 21, 2008)

Improper for court to sentence defendant
based on disagreement with ICE decision
allow bond.
3553(a)(2)(C) Protection of the
Public from your client
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Recidivism Studies

http://www.ussc.gov/publicat/RecidivismSalientFac
torCom.pdf
“A Comparison of the Federal Sentencing Guidelines
Criminal History Category and the U.S. Parole
Commission Salient Factor Score”
http://www.ussc.gov/publicat/Recidivism_General.pdf
 “Measuring Recidivism: The Criminal History
Computation of the Federal Sentencing Guidelines”
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3553(a)(2)(C) (Recidivism)–
Cont’d.
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AGE
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Over 50 less likely
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United States v. Thomas, 360 F. Supp. 2d 238, 243 (D. Mass.
2005) (. . . “at the time of his release in his late fifties or early
sixties, will offer no danger to the community.” )
Gender – women less likely than men
Marital Status
Educational Level
Employment Status
Criminal History Points
Length of Sentence – Recidivism
Correlation
3553(a)(2)(C) (Recidivism)–
Cont’d.
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Minimal Prior Imprisonment = lesser
sentence needed for deterrence.
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United States v. Qualls, 373 F. Supp. 2d 873, 877
(E.D. Wis. 2005).
United States v. Rivera, 2006 WL 3432062 (S.D.N.Y.
Nov. 29, 2006).
United States v. Blackmond, 2006 WL 1676288
(S.D.N.Y. June 14, 2006).
Good Behavior Since Offense
Positive life changes
Geographic Disparity
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Illegal Reentry Cases
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Fast Track
Prior convictions treated differently
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8 U.S.C. s 1326 / USSG 2L1.2
USSG 2K2.1
Career Offender
Carrying a Concealed Firearm =
Career Offender
Fast Track Disparity

Defendants sentenced in districts without authorized
early disposition programs . . . can be expected to
receive longer sentences than similarly-situated
defendants in districts with such programs. This type
of geographical disparity appears to be at odds with
the overall Sentencing Reform Act goal of reducing
unwarranted disparity among similarly-situated
offenders.
U.S. Sentencing Comm'n, Report to Congress:
Downward Departures from the Federal Sentencing
Guidelines at 66-67 (Oct.2003), available at
http://www.ussc.gov/departrpt03/departrpt03.pdf.
18 U.S.C. 3553(a)(6): Avoid
Unwarranted Disparity
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What is “Unwarranted”?
Congress Created Disparity?
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Fast Track
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United States v. Arevalo-Juarez, 464 F.3d 1246 (11th Cir. Sept.
15, 2006).
5th Cir: Kimbrough & Gall don’t change the fact that
it’s not unwarranted. United States v. GomezHerrera, --- F.3d ---, 2008 WL 886091 (5th Cir. Apr. 3,
2008).
See also U.S. v. Morales Bravo, 2008 WL 821066 (11th
Cir. Mar. 28, 2008) (applying Arevalo without
mentioning Kimbrough).
3553(a)(6): Unwarranted Disparity

Cooperators v. Non-Cooperators
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United States v. Jaber, 362 F. Supp. 2d 365, 381 (D.
Mass. 2005): “[T]here is something troubling about
the extent to which differences in sentencing were
driven not by differences in the crime, but by the
happenstance of the way the government indicted,
the jurisdictions of indictment, and who ran to
cooperate first.”
United States v. Aldridge, 413 F.3d 829, 835-36 (8th
Cir. 2005) (remanding a case for resentencing after
Booker because the district court judge found that the
cooperator was “the older, wiser, and more culpable
defendant,” but felt constrained to impose a guideline
sentence on the non-cooperator)
Career Offender
Ennis, 468 F.Supp.2d 228 (D. Mass. 2006)
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Not “Proportional” USSG 1A1.1
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20 year GL sentence same as max punishment for:
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Sexual abuse 18 USC 2242
Sexual exploitation of children 18 USC 2251
Enticement into slavery 18 USC 1583
Terrorism 18 USC 2322
Torture 18 USC 1340A
Kidnapping 18 USC 1201
Seditious Conspiracy
18 USC 175
Biological Weapons 175(c)
GLs higher than selling someone in slave trade or
transmitting secret national defense info.
“Double counting” (same prior used for c.o. & 851)
15 Year Report
http://www.ussc.gov/15_year/15year.htm
 Overstates of risk of recidivism
 Racial disparities (“Fifteen Years of Guideline
Sentencing”)
U.S. v. Cani, --- F. Supp. ---, 2008
WL 435159 (M.D. FL. Feb. 14,
2008)
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.10 grams of heroin – “passed along” to inmate.
On street, BOL 12. In Prison, BOL 26.
14 levels higher than if on the street.
13 levels higher than mere possession
CAREER OFFENDER
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GL = 262-327 months.
Originally sentenced to 12 months; 11th Cir. Reversed.
U.S. v. Cani – cont’d.
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GLs Greater than Necessary; Do not
comply with 3553
“Low-level” offense;
“quite small” amount
No evidence of smuggling in
U.S. v. Cani – cont’d.
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Court troubled by c.i., serving life, who
had previously given heroin to Cani for
personal use.
“transaction largely orchestrated by the
government”
“construction of the transaction to include
a distribution offense augmented” penalty
U.S. v. Cani – cont’d.
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Addiction -- Although prohibited under the
Guidelines, appropriate under 3553(a)(1):
history & characteristics of the defendant.
“By inviting Cani to participate in a transaction in
close proximity to heroin, the drug to which he
is addicted, the Government exerted a sort of
pressure on Cani.”
ALSO: Guard smuggled drugs in.
“The Government should bear some
responsibility”
U.S. v. Livesay, 2007 WL
18101895 (11th April 23, 2008)
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$1.4 Billion Fraud
D cooperated early
5K1.1 – Court imposed Probation
Vacated by 11th Cir.
D continued to cooperate
Gov’t Rec’d 20 months (GL 78-97 mo)
Court reimposed Probation
U.S. v. Livesay, - cont’d.
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Procedural Error
Considered factor not relating to 5K1.1
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Early withdrawal from conspiracy not related to
cooperation. Court listed 3553(a) factors, but “gave
no reasoning or indication of what facts justified such
a significant variance from the advisory Guidelines
range.”
Compare to Talley, Scott, Robles, etc.
D. Ct. recused self from further proceedings
United States v. Pugh, 515 F.3d
1179 (11th Cir. 2008)
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Vacates Probationary sentence for c.p.
GL 97-120
First time offender
Not pedophile
Low risk of recidivism
“district court relied heavily on Pugh’s
history, characteristics and motive”
U.S. v. Pugh – cont’d.

Abuse of discretion: “firm conviction that
the district court committed a clear error
of judgment in weighting the 3553(a)
factors by arriving at a sentence that lies
outside the range of reasonable sentences
dictated by the facts of the case.”
U.S. v. Pugh – cont’d.
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“Utterly failed to promote general
deterrence, reflect the seriousness of
Pugh’s offense, show respect for the law,
or address in any way the relevant
Guidelines policy statements and
directives.”
Only 1 COA case upholding probation in
c.p. (1 year house arrest).
No supervised release also factor
Pugh: Focusing on “one” factor is a
sign of an unreasonable sentence.
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“the nature and circumstances of the offense
and the history and characteristics of the
defendant,”
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First-time offender without a history suggesting he would
abuse children
Addicted to adult pornography and had sought treatment
Not a pedophile and presented low risk of recidivism
Complied with terms of pretrial release
Possession was “passive” and “incidental” to true goal of
developing online relationships
D had taken steps to REPORT receipt of c.p. to AOL and to
his family.
Notice Requirement
United States v. Irizarry, 458 F.3d 1208
Given Booker, parties cannot claim unfair
surprise or inability to present informed
comment-the Supreme Court's concerns in
Burns-when a district court imposes a
sentence above the guidelines range
based on the section 3553(a) sentencing
factors


Cert. granted
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