CHANGES & DEVELOPMENTS

Federal sentencing has undergone significant Constitutional reform in the last ten years.  The United States Sentencing Guidelines no longer determine, although they still strongly influence, the penalty a court imposes on the defendant.  While this important change in federal sentencing law does not necessarily translate into leniency for the defendant, the courts have regained their authority to consider a wide range of general and specific facts about a criminal defendant when imposing a sentence.  This makes leniency possible, but does not always assure it.  The changes are a significant improvement over the state of the law as it existed in 2005. 


Sentencing law continues to experience the reforms that began with the Supreme Court’s decision in Apprendi v. New Jersey in 2000.  In a series of decisions over this decade, the United States Sentencing Guidelines have become merely advisory - i.e., a non-binding recommendation to the sentencing court, instead of automatically imposing lengthy sentences over and above those required by statute.  Readers are cautioned that the process of reform is slow and that the changes have so far only led to modest reductions in average sentences.  Greater reform, however, is anticipated.


In a modest reform, the United States Sentencing Commission passed amendments in May 2007 modifying the drug quantity thresholds to reduce base offense levels for cocaine base (crack cocaine) to the statutory mandatory minimum penalties.  These amendments became retroactive on March 3, 2008 and now benefit prisoners serving a sentence of incarceration.  The sentences for crack cocaine are now between two and five times longer than sentences for powder cocaine instead of a disparity of three and six times longer sentences as existed before the amendments. 


The Senate Judiciary committee has recommended 19:0 passage of a bill Majority Whip Richard Durbin of Illinois to reduce the cocaine sentencing disparity.  The proposed legislation does not achieve parity but reduces the drug equivalency from 100:1 to 18:1 and eliminates mandatory minimum penalties for simple possession of cocaine base.  The new law could reduce average sentences by about 30 months.  (The bill contains significant legislative compromises, some of them unfavorable to the defense.)


Other areas traditionally associated with harsh, unjust sentences, like the Armed Career Criminal statute and the Career Offender Guideline, have begun to soften.  The Supreme Court’s recent decisions in United States v. Johnson (Florida state-law battery crime involving "actual and intentional touching" not a "crime of violence") and Begay v. United States (risk of injury alone does enough to make felony drunk driving a "violent felony" unless purposeful, violent and aggressive conduct involved) have narrowed the definition of crimes of violence. The rules established in these Armed Career Criminal 18 USC §924(e) cases and other pending cases promise to cure the historically unjust and overbroad application of the Career Offender guideline, though the extent of changes remain to be determined. 


One of the most severe and inequitable sections of the Guidelines, the "Career Offender" Guideline, is on a course of reform.  Recent Supreme Court decisions in Rita, Gall, Kimbrough, Begay, Chambers, Johnson and other cases collectively promise to cure historically widespread application of unwarranted decades-long Career Offender sentences to the broad range of repeat minor drug and firearms law offenders typically prosecuted in the federal courts. Many states have criminal statutes for misdemeanor assault and minor drug offenses that the US Sentencing Guidelines continue to characterize as violent felonies and serious drug offenses for Guidelines purposes. By creating overbroad definitions of the predicate offenses, repeatedly overstepping its statutory authority, the United States Sentencing Commission has historically caused courts to impose unwarranted, excessive sentences.  Minor offenders in federal court have typically been punished with the same decades long sentences as a violent international drug traffickers would receive.  The current direction in the Supreme Court's decision now all but promises to cure these abuses.


GUIDELINES SENTENCING

Some background about Guidelines sentencing law is necessary to explain the changes.  In 1984, Congress passed the Sentencing Reform Act and directed the United States Sentencing Commission to promulgate the Guidelines in 1987 essentially with force of law.  Originally intended to redress unfair treatment in sentencing of traditionally disadvantaged groups, the US Sentencing Guidelines were supposed to assure that sentences were consistent with the seriousness of the offense and the offender's criminal history.  The original United States Sentencing Commission was tasked with establishing sentence ranges based on past practices and data gathered from thousands of pre-Guidelines sentencing reports. The Commission was supposed to establish sentence ranges that were consistent with historical average sentences and then apply those sentences more equitably than in the past by periodic review of judicial decisions, sentencing and offender data, comment and expert advice.


The original US Sentencing Commission maintained that the Guidelines ranges it promulgated were based on average past sentences and produced Guidelines ranges within historical norms.  Such pronouncements notwithstanding, the Commission devised sentencing ranges that were and are considerably more severe than past practice, whether in response to unrecorded Congressional pressure or on its own initiative.


Many of the worst abuses in sentencing have occurred in the area "Career Offender" Guidelines "enhancement" of USSG §4B1.1.  The Career Offender Guideline raises the defendant's Criminal History Category and offense level toward the statutory maximum.  (The most recent average career offender sentence is about 180 months.)  The Career Offender Guideline applies for adult defendants being convicted of a felony "crime of violence" or "controlled substance offense" who have two predicate felony convictions for a crime of violence or a controlled substance offense.


The result of strict application of the US Sentencing Guidelines was to remove judges and juries from the process of determining a defendant's sentence and give that power to Department of Justice prosecutors.  Because the only penalty a court could impose was the one mandated by the Guidelines, the prosecutor's charging decisions led inevitably to the ever-lengthening sentences for the defendant by mechanistic application of the Guidelines. The jury and the judge were removed from the process of finding any aggravating or mitigating elements of the crime or determining the nature or length of the punishment. The intractable problem with this scheme was that the range of penalty for a given federal crime is usually broad, such as zero to thirty years for fraud crimes or five to forty years for a many drug crimes. Juries were only allowed to determine whether a defendant had committed the elements of a highly generic offense with no opportunity to find the facts that determined the penalty imposed on the defendant.  Similarly, federal judges were denied their traditional power and frustrated in their statutory duty to impose only so much punishments as fit the crime. 


Instead, the task of finding facts about the offense of conviction, the defendant's personal circumstances and criminal history fell to US Probation officers trained to produce a document known as a PSR or "pre-sentence investigation report".  The jury's central constitutional function and power to find facts had effectively been handed to an administrative officer.  The Guidelines' basic penalty (or offense level) for most offenses is determined by factual findings about the crime; these are the types of determinations that the Constitution required a jury to make.  For example, in a prosecution for mail fraud or wire fraud, the penalty is driven in large part by the dollar value of the fraud scheme and the number of persons affected.  The Guidelines provide nuanced rules to apply when making such a finding, requiring the Probation Officer to determine the reasonably foreseeable pecuniary harm of the scheme.  Likewise, in a drug conspiracy, the defendant's offense level is determined by the amount of drugs foreseeably attributed to the defendant's participation in the conspiracy.  The Pre-Sentence Investigation Report ("PSR"), and not the jury's findings during the trial, determined the sentence almost exclusively (remembering that federal sentencing ranges are often broad, e.g., 0 - 30 years).  Thus the probation officer's PSR, approved by the judge in an informal hearing not subject to the Federal Rules of Evidence, determined the defendant's sentence.  This process described above - of determining a defendant's sentence in by a court investigation and by finding the facts on a preponderance of the evidence in a sentencing hearing not subject to evidentiary safeguards - is sometimes called determinative sentencing.


In 2000, the Supreme Court found an opportunity to address the problem of determinative sentencing and the jury's constitutionally diminished fact-finding role in a case called Apprendi v. New Jersey, 530 U.S. 466 (2000).  The defendant in Apprendi had pled guilty to firearms offenses for firing a gun into his neighbors' house. In pleading guilty, defendant denied that his behavior was racially motivated and maintained in his testimony at the sentencing hearing that it was instead the result of gross intoxication.  The crimes to which the defendant pled guilty carried a ten-year maximum sentence. Looking to a New Jersey hate-crimes statute, the judge found on a preponderance of the evidence that the defendant's conduct had been racially motivated and the judge therefore added a concurrent twelve-year sentence, essentially adding two years to the ten-year maximum sentence for the crime of conviction (by guilty plea).  The only finding of racial motivation was a judicial finding without a jury and not on evidence beyond a reasonable doubt but upon a preponderance of the evidence.  Justice Stevens, a moderate, writing for a moderate and conservative majority, reasoned that the fact-finding scheme of New Jersey's hate crimes law violated the Sixth Amendment guaranty of the right to a jury trial.  Specifically, Apprendi held that Constitution requires that any fact that increases the penalty for a crime beyond the prescribed statutory maximum, other than the fact of a prior conviction, must be submitted to a jury and proved beyond a reasonable doubt.


In the three years following Apprendi, federal appeals courts routinely denied challenges to the constitutionality of Guidelines sentences, reasoning that only sentences imposed beyond the statutory maximum sentence, not those based on judicial findings of aggravating Guidelines factors, were prohibited by the sixth amendment.  The courts rejected these challenges based on the idea that aggravating Guidelines factors were no different from the operation of statutory minimum sentences. Accordingly, what had seemed like a landmark case for sentencing reform, had had little effect on federal court sentencing practice. Because statutory maximum sentences for many federal offenses are so high (20, 30, 40 years and life), the process of judicial finding of aggravating factors escaped constitutional review as sentences usually fell below the "default statutory maximum".


The Supreme Court's decision in Blakely four years later made clear that any scheme of determinate sentencing offended the sixth amendment right to jury trial, regardless of whether a sentence fell below the highest statutory maximum sentence. Blakely v. Washington, 542 U.S. 296 (2004).  In Blakely, the defendant had kidnapped his wife at knife point, taking her across state lines and forcing the couple's minor son to follow in the wife's car, ending in the son's escape and the defendant's arrest by FBI.  The defendant pled to a lesser offense with a Washington state guidelines sentence of no more than 53 months, but the judge found  "substantial and compelling" additional factors ("deliberate cruelty") and sentenced Blakely to 90 months.  The maximum sentence for the crime of conviction (the crime to which Blakely pled guilty) was ten years.  Blakely's sentence was thirty months (or two and a half years) below the statutory maximum sentence.


In deciding Blakely, the Court interpreted the term "statutory maximum" to mean the maximum sentence allowed by a mandatory state sentencing guideline and not the "default statutory maximum".  Justice Scalia, writing for the majority, reasoned that giving content to the right of jury trial was "no procedural formality, but a fundamental reservation of power in our constitutional structure" and that "the judge's authority to sentence derives wholly from the jury's verdict."  The Washington state-court judge's finding of "deliberate cruelty" had not been submitted to a jury, and Blakely had not admitted to acting with "deliberate cruelty."  The Court read Apprendi as having held that the "statutory maximum" punishment was "the maximum sentence a court may impose without any additional findings." "Deliberate cruelty" was not an element of the crimes in Blakely's guilty plea; therefore, the judge could not lawfully use that fact to sentence Blakely to any term longer than the 53-month mandatory guideline, despite the fact that the maximum statutory penalty was ten years. 


In the wake of Blakely, the Department of Justice officially maintained that the Supreme Court's decision applied only to state-court sentencing schemes and not the US Sentencing Guidelines.  Both sides of the criminal bar acknowledged, however, that the Supreme Court would soon decide a constitutional challenge to the US Sentencing Guidelines. 


That decision came only six months later in US v. Booker, 543 US 220 (2005).  The simplest description of the rule of the Booker case is that the US Sentencing Guidelines are not mandatory. A jury found defendant Booker guilty of  possessing more than 50 grams of cocaine base with intent to distribute.  The judge found on a preponderance of the evidence at sentencing that Booker had possessed 92 grams of cocaine base, had distributed an additional 560 grams and obstructed justice.  The findings of weight increased Booker's offense level by four points and added an enhancement for obstruction, placing Booker in a range of 360 months to life in prison. None of these findings had been submitted to a jury.  The Judge sentenced Booker to the lowest term, 360 months. 


Booker appealed to the Seventh Circuit, which reversed and remanded the District Court sentence.  The government appealed to the Supreme Court.  In Booker, the Court held that because US Sentencing Guidelines were mandatory, any fact necessary to impose a sentence above the range authorized in the Guidelines must be found by a jury beyond a reasonable doubt. The decision remedied this constitutional infirmity by making the Guidelines non-mandatory and merely advisory.  Sentences outside the Guidelines could only be challenged on appeal for "reasonableness." 


The Booker holding is a split or two-part majority.  Justice John Paul Stevens wrote the first portion, finding that the mandatory scheme of the United States Sentencing Guidelines violated the sixth amendment right to a jury trial because any fact that increases the defendant's punishment above the statutory maximum must be submitted to a jury and proved beyond a reasonable doubt.  Justice Breyer wrote the second half of the majority opinion containing the remedy to the sixth amendment violation making the Guidelines non-mandatory.  Justice Stevens dissented from this portion of the majority opting instead for a scheme where the jury would be asked to decide the existence of any aggravating factors that increased a defendant's Guidelines sentence.  Many jurists agree with Justice Stevens' dissent and have questioned whether merely making the Guidelines "advisory" cures the problem posed by judicial finding of the facts that increase a defendant's sentence.  Indeed, Booker tellingly received the same 30-year sentence after remand.


Booker left unanswered questions about how the Courts were to apply new principles.  Would all elements of the offense have to be submitted to the jury for consideration, like the weight of drugs or the amount of financial loss?  Would the jury have a second set of deliberations to determine these factors once it had reached a guilty verdict?  Had judges not always made factual determinations when deciding to give a defendant a lighter or a heavier sentence?


Rita v. United States, 551 US 338 (2007), stands for the proposition that a US Court of Appeals may apply a non-binding presumption of reasonableness to a properly-calculated Guidelines sentence; a District Court, however, may not apply the same presumption and must consider all statutory factors after correctly calculating a Guidelines sentence.


In Rita v. US, the Bureau of Alcohol Tobacco and Firearms contacted defendant and asked to examine a machinegun kit he had received from a gun importer under investigation.  Rita denied that the government agent had asked him for the gun kit, and also denied that he had spoken soon thereafter about the gun kit to someone at InterOrdnance. The government charged and convicted Rita after jury trial with perjury, false statements, and obstruction of justice. The Pre-Sentence Investigation Report calculated a guidelines sentence range of 33 to 41 months' incarceration and found there “appears to be no circumstance or combination of circumstances that warrant a departure from the prescribed sentencing guidelines.” At sentencing, the court offered that the defendant could argue within the Guidelines’ framework, for a departure from the applicable Guidelines range on the ground that his case fell outside the “heartland” OR that the sentencing factors set forth in 18 USC §3553(a) warranted a lower sentence independent of the Guidelines.


Rita appealed his 33-month sentence arguing that it “unreasonable” because it did not account for “the defendant’s history and characteristics,” and that it violated the "parsimony clause" of the Sentencing Reform Act prohibiting sentences that are  "greater than necessary" to achieve the purposes of 18 USC §3553(a)(2). The Fourth Circuit denied Rita's appeal holding that “a sentence imposed within the properly calculated Guidelines range . . . is presumptively reasonable.” The Court of Appeals noted in its dicta that it expected most sentences would continue to fall within the applicable guideline range.  The United States Supreme Court accepted certiorari on a finding that split existed among the Circuit Courts of Appeal whether to apply a "presumption of reasonableness" to sentences within the Guidelines range.


Writing for the majority, Justice Breyer held that a Court of Appeals may apply a presumption of reasonableness to a District Court sentence upholding a properly-calculated Guidelines sentence.  This presumption is not a legally-binding presumption of correctness but rather merely reflected the fact that both the United States Sentencing Commission and a US District Court Judge had reached the same conclusion about the appropriateness of a defendant's sentence.  The Rita decision applies the opposite rationale in the sentencing court; there, the Guidelines are not presumptively reasonable.  Instead, the trial court calculates the Guidelines range, and then considers an appropriate for the individual defendant in light of the statutory sentencing factors of 18 U. S. C. §3553(a). Then the Court must determine whether the Guidelines provide sentence no greater than necessary to achieve the aims of the Sentencing Reform Act.


Kimbrough v. United States, 552 U.S. 85 (2007).  In Kimbrough, the Supreme Court held that the District Court was reasonable imposing only mandatory minimum sentences based solely on the Court's determination that the Guidelines sentences for crack cocaine had a “disproportionate and unjust effect" and were greater than necessary to accomplish the purposes of the Sentencing Reform Act.  Justice  Ginsburg writing for the majority reasoned that a judge may consider the disparity between the Guidelines’ treatment of crack and powder cocaine offenses and determine that a Guidelines sentence is “greater than necessary” to serve the objectives of sentencing under 18 U. S. C. §3553(a).

Gall v. United States.  The Supreme Court's decision in Gall stands for the proposition that the Courts of Appeals must review all sentences under a highly deferential abuse of discretion standard, regardless of range of variance between the sentence and the Federal Sentencing Guidelines recommendation.  The defendant in Gall was involved in an ecstasy distribution conspiracy but withdrew from the conspiracy and distanced himself entirely from illegal drugs before prosecution years before pleading guilty.  The court imposed a sentence of probation despite the PSR's recommendation of over three years in prison.  The Eighth Circuit Court of Appeals reversed the District Court and ordered resentencing on the reasoning that a court's sentence outside the Guidelines range must be proportional and that a probationary sentence such as the court imposed would require extraordinary justification. In an opinion by Justice Stevens, the Supreme Court reversed.  Under Gall, Courts of Appeals must review all sentences under a deferential abuse of discretion standard; there is no requirement of proportionality between the sentence imposed and the Guidelines recommendation.  The Court also noted that Courts of Appeal did not have authority to conduct a de novo review of a District Court's sentence.



DIMINISHING THE IMPORTANCE OF THE GUIDELINES

The Court's holdings in Kimbrough and Rita have broad implications for all areas of Guidelines sentencing, especially in restricting application Career Offender guideline. The Career Offender Guideline has been an area of systemic injustice since the beginning of Guidelines sentencing. The Career Offender guideline typically generates sentences upwards of 151 months.  The average Career Offender sentence has ranged historically between 180 and 190 months.  Congress charged the United States Sentencing Commission with establishing Guidelines ranges and directed that it provide a system of maximum sentencing for a select group of recidivist violent offenders.  The Commission was supposed to but did not apply empirical data and national experience to define a small group of offenders engaged in a pattern of violent felony conduct and punish them with sentences that protected the public from further crimes. 


Instead, the Commission created broad definitions of predicate offenses to include prior convictions for non-violent misdemeanors and minor drug possession offenses. The applicable statutory direction was to punish violent felony offenders and drug traffickers who had two prior felony convictions for "crimes of violence" and "serious drug offenses".  These predicates were supposed to be - by federal statutory definition - crimes like murder, rape, arson, felony assault and serious narcotics trafficking offenses.  The Commission, however, without consulting historical data or performing its institutional function, expanded its Guidelines definitions to include any state-law misdemeanor drug crimes and non-violent offenses.  Petty offenders in federal court for the first time were now subject to decades-long sentences even where they had served only months-long county jail sentences in the past.


After Kimbrough and Rita, judges are free to disagree with the Guidelines, even a factually ordinary case, as long as it can be shown that the US Sentencing Commission did not act in the "exercise of its characteristic institutional role".  If it can be shown that a Guideline, like Career Offender, is not based on the Commission's study of empirical data and that the Commission has not conducted review and made revision based on sentencing data, expert information and judicial decisions, then the Court is free without more to fashion a sentence at variance with the Guidelines, absent any further findings.  See, Amy Baron-Evans, Jennifer Coffin and Sara Noonan, DECONSTRUCTING THE CAREER OFFENDER GUIDELINE, March 11, 2010.  Given the more restrictive definitions the Supreme Court has imposed on predicate "violent felony" convictions in Begay and Johnson, defendants may view challenges to career offender designation with greater optimism.



                A little sunshine, finally.

FEDERAL SENTENCING