1 / 67

Post- United States v. Booker , 543 U.S. 220, 125 S. Ct. 738 (2005)

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

cecily
Download Presentation

Post- United States v. Booker , 543 U.S. 220, 125 S. Ct. 738 (2005)

An Image/Link below is provided (as is) to download presentation Download Policy: Content on the Website is provided to you AS IS for your information and personal use and may not be sold / licensed / shared on other websites without getting consent from its author. Content is provided to you AS IS for your information and personal use only. Download presentation by click this link. While downloading, if for some reason you are not able to download a presentation, the publisher may have deleted the file from their server. During download, if you can't get a presentation, the file might be deleted by the publisher.

E N D

Presentation Transcript

  1. 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 Tracy_Dreispul@fd.org

  2. United States v. Booker543 U.S. 220, 125 S. Ct. 738 (2005) • Constitutional Holding: • 5th & 6th Amendments Require All Facts Essential to Punishment to be Proven Beyond a Reasonable Doubt (“BARD”) • Remedial Holding: • Courts must consider the Guidelines, but are not bound to apply them in every case. • “Reasonableness Review”

  3. U.S. Sentencing Commission Preliminary Quarterly Data Report1st Quarter 2008

  4. U.S. Sentencing Commission Preliminary Quarterly Data Report1st Quarter 2008

  5. U.S. Sentencing Commission Preliminary Quarterly Data Report1st Quarter 2008

  6. U.S. Sentencing Commission Preliminary Quarterly Data Report1st Quarter 2008

  7. Rita v. United States127 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.

  8. 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.❞

  9. 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

  10. 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

  11. Undisputed Facts: • “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

  12. Sentence: 36 mos. Probation “Any term of imprisonment . . . would be counter effective by depriving society of the contributions of the Defendant”

  13. 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.

  14. 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-of-discretion standard.”

  15. Gall v. United States – cont’d. • 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”

  16. 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.

  17. Gall rejects mathematical formula 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.

  18. Probation is “Substantial Restriction of Freedom” • District Court: Not act of leniency • 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).

  19. Gall v. United States: Sentencing Procedure • 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.

  20. Sentencing Procedure – cont’d. • Individualized determination based on facts. • Consider extent of deviation from GL and ensure that justification is sufficiently compelling to support variance. • “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.”

  21. Appellate Review • Reasonableness = Abuse of Discretion • All sentences, inside and outside GL range, reviewed for abuse of discretion • Ensure no significant procedural error • 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

  22. Appellate Review – Cont’d. • Substantive reasonableness • 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”

  23. Gall Holding: • Eighth Circuit gave too little deference • Too close to de novo review. • Sentence reflected “reasoned and reasonable decision that the § 3553(a) factors, on the whole, justified the sentence.”

  24. 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.

  25. Crack vs. Powder • Same Active Ingredient • Same physiological and psychotropic effects • 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 • (Now 2-5 times longer)

  26. Unwarrated Disparity • Disparity "generally unwarranted" • “fails to meet the sentencing objectives set forth by Congress in both the Sentencing Reform Act and the 1986 Act."

  27. No Empirical Support for Drug Weight as Proxy • 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.

  28. 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.❞

  29. 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) • “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). • “important moral questions of culpability are relatively neglected” • “false precision”

  30. Commission Repeatedly Recommended Lessening Disparity • 1995 1-to-1 • http://www.ussc.gov/crack/exec.htm • 1997 5-to-1 • 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 • 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)

  31. 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.

  32. 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.”

  33. 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

  34. Amendment 706 • "modest amendment” • “partial remedy” • “Any comprehensive solution requires appropriate legislative action by Congress.” 2007 Report. • “no higher than 20-to-1.”

  35. Kimbrough: Holding • 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.”

  36. Disparity • 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.”

  37. United States v. Stratton, 519 F.3d 1305 (11th Cir. 2008) • 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.

  38. 18 U.S.C. 3553(a) Factors • 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

  39. 18 U.S.C. 3553(a)(2)(A) Just Punishment • Do Guidelines Provide Just Punishment? • Overstate criminal history? • Double-count criminal history? • Overstate seriousness of the offense? • Has Congress tinkered with methodology?

  40. 18 U.S.C. 3661 • “No limitation shall be placed on the information concerning the background, character, & conduct” of the client.

  41. 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.

  42. 3553(a)(2)(C) Protection of the Public from your client • Recidivism Studies • http://www.ussc.gov/publicat/RecidivismSalientFactorCom.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”

  43. 3553(a)(2)(C) (Recidivism)– Cont’d. • AGE • Over 50 less likely • 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

  44. Length of Sentence – Recidivism Correlation

  45. 3553(a)(2)(C) (Recidivism)– Cont’d. • Minimal Prior Imprisonment = lesser sentence needed for deterrence. • 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

  46. Geographic Disparity • Illegal Reentry Cases • Fast Track • Prior convictions treated differently • 8 U.S.C. s 1326 / USSG 2L1.2 • USSG 2K2.1 • Career Offender

  47. Carrying a Concealed Firearm = Career Offender

  48. 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.

More Related