Craft & Sheppard's Supreme Court Review

Sentencing Guidelines (SG) & Sentencing 

In U.S. v. Booker, the Court declared that the federal SG violated the Sixth Amendment, but judges still must use them in sentencing criminals. Booker created much confusion about using the “effectively advisory” SG.  Under 18 U.S.C. § 3742(e), departures from a sentence within the SG’s range are subject to a de novo appellate standard of review.  In Rita v. U.S., 127 S. Ct. 2456 (2007), the Court held that appellate courts may presume that a sentence within Guidelines’ range typically is reasonable.  In Gall v. U.S., the Court directed federal appellate courts to review all sentences under the deferential abuse-of-discretion standard and upheld a lenient sentence for a self-rehabilitated drug dealer.  A recreational drug-using student joined a conspiracy to distribute ecstasy, affirmatively withdrew from it, had not sold or used drugs since, graduated from college, was working, had no significant criminal history, and did not organize or lead the conspiracy.  Years later, he admitted his role in the crime, but could not finger other conspirators not then known to agents.  He pleaded guilty.  The 30-37 months recommended sentence by the SG was identical to the ringleaders’. The trial judge departed from SG range, found jail time unnecessary, placed Gall on probation for 36 months, and explained his rationale.  The High Court upheld the trial court’s lenient sentence.  Separately, in Kimbrough v. U.S., noting that courts consider the advisory only SG as one factor in sentencing under 18 U.S.C. § 3553(a), the Court ruled that a trial judge may examine the disparity (100:1 ratio) between how the SG factors treat crack cocaine versus powder cocaine and impose a sentence on a crack cocaine drug trafficker that is less than the SG range.  The Court rejected the argument that a “sentence outside” the SG  “range is per se unreasonable” because of a mere disagreement with the SG sentencing disparity for crack and powder cocaine crimes. Nonetheless, when a federal statute sets a precise punishment for a crime or enhancement, the Court usually literally reads and applies the statute and may disregard context.  Before Booker, the Court had held the SG as mandatory and to allay due process concerns about notice to defendants about an upward departure in sentencing, Fed. R. Crim. Proc. 32 was promulgated.  Rule 32 required notice to a defendant before an upward departure or increasing the sentence above the SG’s range.  In light of Booker, the Court in Irizarry v. U.S. found since the SG is no longer mandatory, strict compliance with Rule 32 is not necessary.  In another decision, U.S. v. Ressam, the defendant tried to enter the U.S. with explosives in his trunk to detonate at an airport, lied about his identity on a customs’ form, and committed a felony, 18 U.S.C.  § 1001.  “During the commission” of that felony (lying on the form), he was carrying an explosive and also violated 18 U.S.C. § 844(h).  Sec. 844(h) added ten years to the punishment.  The rub was the absence of a tie between lying on the form and the explosives.  The Court literally read the Act’s text and upheld the higher sentence.