Sentencing Guidelines

Alan Vinegrad and Douglas Bloom

01-13-2006


On Jan. 12, 2005, the Supreme Court issued its landmark decision in United States v. Booker.¹ While many predicted that the Court would hold that the federal Sentencing Guidelines violated the Sixth Amendment, few predicted the course the Court would take in establishing a remedy.

It has been a year since Justice John Paul Stevens declared the guidelines unconstitutional in one majority opinion and Justice Stephen Breyer rendered them "advisory" in another. In that time, Booker has changed the federal sentencing landscape, with a notable increase in below-the-range sentences.² At the same time, however, sentencing procedure has remained largely unchanged.

The Numbers

Since Booker, the United States Sentencing Commission has been keeping close track of the number of below-the-range sentences. Those statistics reveal that Booker has had a significant impact on sentencing decisions. Nationwide, 62 percent of sentences are within the guideline range, as opposed to 72 percent in the pre-Blakely³ year preceding Booker (Oct. 1, 2003 to June 24, 2004). Sentences falling below the guideline range jumped from 27 percent during the pre-Blakely year to 37 percent since Booker. Sentences above the guideline range remained constant, at approximately 1 percent of all cases.⁴

Although not as dramatic, the number of sentences falling below the guideline range has also increased compared to the three-year period preceding the effective date of the PROTECT Act (Oct. 27, 2003). The PROTECT Act restricted downward departures and strengthened the standard of review for sentences falling outside the guideline range. As a result, after the PROTECT Act but before Blakely, judges may have felt constrained in their ability to impose below-the-range sentences. Even so, below-the-range sentences still increased from 33 percent (pre-PROTECT Act) to 37 percent (post-Booker).

Most of the recent increase in below-the-range sentences was in cases in which the government did not seek or sponsor the lower sentence. Such cases increased from 5 percent (pre-Blakely) to 13 percent (post-Booker). Government-sponsored, below-the-range sentences — mostly for cooperating defendants — increased more modestly, from 22 percent in the pre-Blakely year to 24 percent after Booker.

In the U.S. Court of Appeals for the Second Circuit, the change has been more pronounced. Sentences within the guideline range have fallen from 64 percent to 49 percent. Non-government-sponsored, below-the-range sentences increased from 14 percent to 25 percent, while government-sponsored, below-the-range sentences increased from 22 percent to 25 percent. Of the 25 percent of nongovernment-sponsored, below-the-range sentences, 7.2 percent involved downward departures from the guideline range, while 17.4 percent involved below-the-range sentences imposed pursuant to Booker or 18 USC §3553(a), the general sentencing provision.

Despite the increase in below-the-range sentences, however, both average and median sentences remain unchanged. Both pre-Blakely and post-Booker, the average sentence in all cases nationwide was 56 months, and the median sentence was 33 months. Even within three of the four major offense categories — drug trafficking, firearms violations, and theft/fraud — there was virtually no change in the length of sentences. The one exception was immigration offenses, where "fast track" programs have dramatically reduced the amount of prison time — from 40 to 15 months — imposed on defendants sentenced to a combination of prison and community confinement.

The disparity between the increase in below-the-range sentences and the relative constancy of actual prison terms is not easily explained. It is possible that judges are countering recent increases in some base offense levels with more below-the-range sentences. It is also possible that while judges are more frequently imposing below-the-range sentences, the amount of sentencing benefit awarded to these defendants is minimal.

Post-'Booker' Sentencing Procedure

Even post-Booker, judges are required to "consider" the guidelines and accompanying policy statements. While some courts, such as the U.S. District Court for the District of Nebraska⁵ and the U.S. District Court for the District of Utah,⁶ have taken this requirement to mean that judges should only rarely deviate from the guidelines, other courts, including the Second Circuit, have taken a more expansive view.

In United States v. Crosby⁷ and the companion case United States v. Fleming,⁸ the Second Circuit held that, in general, the sentencing judge will still be required to calculate the applicable guideline range. This calculation need not always be precise, however. The judge can decline to resolve particular guideline issues or fact disputes if resolution of those matters will not change the ultimate sentence. Such a situation may arise, for instance, where the remaining §3553(a) factors so strongly suggest a non-guideline sentence that the precise guideline calculation is of little significance.

Once the judge has calculated the applicable guideline range, the judge then must decide whether to impose a sentence within that range, grant a recognized departure, or, if the remaining §3553(a) factors warrant, impose a non-guideline sentence. In enunciating the standard for appellate review, Fleming held that "[a]s long as the judge is aware of both the statutory requirements and the sentencing range or ranges that are arguably applicable, and nothing in the record indicates misunderstanding about such materials or misperception about their relevance," then the judge will be presumed to have "considered" the guidelines.⁹

That said, Crosby makes clear that judges are not free to disregard the guidelines or treat them as "casual advice." The §3553(c) requirements that judges announce in open court the rationale for their sentence and provide a written explanation "with specificity" of a sentence imposed outside the applicable guideline range remain in place. The Second Circuit made clear in United States v. McNeil¹⁰ that it considers a judge's mistake in calculating the applicable guideline range as possible grounds for reversal.

In other respects, defendants have been unable to extend the Booker decision to other aspects of sentencing procedure. The preponderance-of-the-evidence standard still applies to sentencing facts;¹¹ judges are still free to use hearsay evidence in sentencing proceedings;¹² and the Supreme Court's decision in United States v. Watts¹³ — that acquitted conduct can be taken into account in determining the defendant's sentence — is still good law.¹⁴

A number of other attacks on pre-Booker sentencing procedure have met a similar fate. In United States v. Fruchter,¹⁵ the Second Circuit held that criminal forfeiture proceedings can still be conducted by a judge using a preponderance-of-the-evidence standard. In Vaughn, the Court held that an increased sentence after remand for resentencing does not violate the Ex Post Facto Clause. In McNeil, the Second Circuit held that a sentence for violation of supervised release, when added to the original term of imprisonment, can exceed the guideline range for the original offense without violating the Sixth Amendment.

Appellate Review

While sentencing procedure has not changed significantly, appellate review of sentencing decisions has, and the change should please the defense bar. In addition to rendering the guidelines advisory, Justice Breyer's decision excised the PROTECT Act's de novo standard of appellate review of non-guideline sentences, replacing it with "reasonableness" review. The Second Circuit, in Fleming, held that reasonableness review applies to all sentences, regardless of whether there exists an applicable guideline.

A clear definition of reasonableness remains elusive. Crosby expressly declined to provide a per se rule for reasonableness, instead analogizing to supervised release revocation cases reviewed under the standard of "plainly reasonable." The Court did state, however, that its review would not be limited to the length of the sentence but would also include "procedural errors." These errors include treating the guidelines as mandatory, failing to find the facts necessary to compute the guideline range, and failing to consider the §3553(a) factors in determining the sentence. Even so, post-Booker, judges not only have more discretion in selecting an appropriate sentence, but also exercise this discretion under a less stringent standard of appellate review.

Pre-'Booker' Sentences

The proper disposition of the large number of pre-Booker direct review cases has created a split among the circuits. A number of courts, including the U.S. Courts of Appeals for the Third¹⁶ and Sixth circuits,¹⁷ have declared that pre-Booker sentences necessarily fail plain-error review and all cases on direct review must be remanded for resentencing. The U.S. Courts of Appeals for the Tenth Circuit has taken a more-stringent view of plain-error analysis, holding that defendants must demonstrate prejudice in the prior sentencing hearing. This showing generally requires an objection at sentencing to the evidentiary basis of judge-found facts or a suggestion on the record by the judge that the sentence would have been different if not for the then-mandatory nature of the guidelines.¹⁸

The Second Circuit struck a middle course with the now-familiar "Crosby remand." Those cases on direct review where a Sixth Amendment challenge was not preserved are remanded to the district court for the sole purpose of determining if the sentence, given the advisory nature of the guidelines, would have deviated in a "non-trivial manner" from the sentence imposed. If so, then the defendant is entitled to be resentenced. If not, then there was no prejudice under plain-error analysis.

Although Crosby suggested the same procedure would apply to cases in which the objection had been properly preserved, in United States v. Lake¹⁹ the Second Circuit revisited the question and, following other circuits, concluded that, under the harmless error standard, the appellate court must first determine whether a mandatory application of the guidelines was harmless. If the government cannot demonstrate that the judge would have imposed the same sentence with advisory guidelines, the case must be remanded for resentencing; otherwise, the error was harmless and no relief will be afforded. Resentencing might also be warranted if the lower court made an error in calculating the applicable guideline range in the first instance.²⁰ This is because such an error may have "an appreciable influence even under the discretionary sentencing regime that will govern resentencing."²¹

Given the increase in below-the-range sentences and availability of a Crosby remand for unpreserved objections, defendants in many direct-review cases will get a second bite at the sentencing apple, with the possibility of a lower sentence.

Collateral Review

Booker has not brought good news to all defendants, however. An issue not squarely decided by either Booker opinion was the availability of collateral review of pre-Booker sentences. In United States v. Green,²² the Second Circuit held that Booker does not apply to second or successive habeas petitions. Then, in United States v. Guzman,²³ the Court held that Booker does not apply to any habeas cases. According to Guzman, Booker was not "apparent to all reasonable jurists" and, therefore, the decision announced a new constitutional rule. Because neither of the Teague²⁴ exceptions applies (Booker does not establish a substantive rule or affect the fundamental fairness or accuracy of the criminal proceeding), Booker does not apply retroactively to cases on collateral review.

Legislative 'Fixes'

At the close of his opinion in Booker, Justice Breyer noted that "[t]he ball lies in Congress' court." So far, Congress has not run with that ball. Prior to Booker, a number of proposals were floated through Congress to save the guidelines, should the Supreme Court find them unconstitutional. The most prominent of those proposals was the "topless guidelines" of Professor Frank O. Bowman III, M. Dale Palmer Professor of Law at Indiana University School of Law, in which the high end of each sentencing range would be the statutory maximum. Since Booker, however, Professor Bowman has retreated from that proposal,²⁵ and Congress, for the time being, appears to have followed suit.

If Congress does respond, it may be to the detriment of the real-conduct and proportionate sentencing the guidelines were designed to promote. Booker has been cited on the floor of both the House of Representatives and Senate in connection with calls for the enactment of new mandatory minimum statutes.²⁶ If that were to happen, Booker may prove to be a temporary respite from harsh sentences for some defendants, countered by sentencing "uniformity" enforced through mandatory minimums — ultimately undermining the goal of individualized sentences based on the nature of the offense as well as the history and characteristics of the offender.

Alan Vinegrad, former U.S. Attorney for the Eastern District of New York, is a partner at Covington & Burling. Douglas Bloom is an associate at the firm.

Endnotes:

1. 543 US 220 (2005).

2. The phrase "below-the-range sentence" is used in this article to refer to a sentence in which the judge either granted a downward departure under the guidelines or imposed a sentence below the guideline range based on Booker or 18 USC §3553(a)'s general sentencing standard.

3. Blakely v. Washington, 542 U.S. 296 (2004).

4. Post-Booker sentencing statistics can be found in the Sentencing Commission's Dec. 1, 2005 report, available at www.ussc.gov/Blakely/PostBooker_120105.pdf.

5. United States v. Wanning, 354 F. Supp. 2d 1056 (D. Neb. 2005) (Kopf, J.).

6. United States v. Wilson, 350 F. Supp. 2d 910 (D. Utah 2005) (Cassel, J.).

7. 397 F.3d 103 (2d Cir. 2005).

8. 397 F.3d 95 (2d Cir. 2005).

9. Fleming, 397 F.3d at 100.

10. 415 F.3d 273 (2d Cir. 2005).

11. United States v. Vaughn, No. 04-5136 CR(L), 2005 WL 3219706 (2d Cir. Dec. 1, 2005).

12. United States v. Martinez, 413 F.3d 239 (2d Cir. 2005).

13. 519 U.S. 148 (1997).

14. Vaughn, 2005 WL 3219706 at *5.

15. 411 F.3d 377 (2d Cir. 2005).

16. United States v. Davis, 407 F.3d 162 (3d Cir. 2005).

17. United States v. Barnett, 398 F.3d 516 (6th Cir. 2005).

18. United States v. Dazey, 403 F.3d 1147 (10th Cir. 2005); see also United States v. Gonzalez-Huerta, 403 F.3d 727 (10th Cir. 2005).

19. 419 F.3d 111 (2d Cir. 2005); see also United States v. Fagans, 406 F.3d 138 (2d Cir. 2005).

20. United States v. Rubenstein, 403 F.3d 93 (2d Cir. 2005); United States v. Savarese, 404 F.3d 651 (2d Cir. 2005).

21. Rubenstein, 403 F.3d at 98.

22. 397 F.3d 101 (2d Cir. 2005).

23. 404 F.3d 139 (2d Cir. 2005).

24. Teague v. Lane, 489 U.S. 288 (1989).

25. Implications of the Booker/Fanfan Decision for the Federal Sentencing Guidelines: Hearing Before the Subcomm. on Crime, Terrorism, and Homeland Sec. of the H. Comm. on the Judiciary, 109th Cong. 29 (2005) (statement of Frank O. Bowman, III), available at http://commdocs.house.gov/ committees/judiciary/ hju98624.000/hju98624_0f.htm.

26. 151 Cong. Rec. H10090-02 (Nov. 9, 2005) (statement of Rep. Sensenbrenner); 151 Cong. Rec. S4549-01 (Apr. 28, 2005) (statement of Sen. Grassley).