Are the Sentencing Guidelines More Than 'Advisory'?

Gall still requires district judges to consider the Guidelines by calculating the Guidelines range correctly. They must then analyze the factors in 18 U.S.C. ' 3553(a) and explain the reasons for the sentence. On appeal, the appellate court should determine whether these procedural requirements were satisfied. If so, the appellate court must then determine whether the sentence was substantively reasonable, applying an abuse of discretion standard.

Gall has been heralded as returning sentencing discretion to district courts. See Steven H. Sadow: Gall Gives Defendants Real Option to Stand Trial. 30 Nat'l L.J., S2, March 24, 2008. Virtually every circuit court to address the new sentencing standards has broadly deferred to district courts. See, e.g., United States v. Martin, No. 06-1983, 2008 WL 748104 (1st Cir. March 21, 2008); United States v. Lehman, 513 F.3d 805 (8th Cir. 2008); United States v. Smart, 518 F.3d 800 (10th Cir. 2008).

The Second Circuit and Cutler

The Second Circuit went in a different direction. In Cutler, defendants Cutler and Freedman were convicted of a series of counts charging bank, mail and tax fraud causing more than $100 million in losses. Although the Guidelines recommended lengthy prison sentences for both, the district judge sentenced Cutler to 366 days' imprisonment and Freedman to three years' probation. The judge explained the departures from the Guidelines by assessing the nature of the misconduct, defendants' roles in the conspiracies, their health and family circumstances, and the likelihood of deterrence. The court weighed a host of important factors. It also made clear that it would have imposed the same sentences as non-Guidelines sentences.

The government appealed and the Second Circuit vacated and remanded, finding not only that the judge had procedurally erred but also holding that the sentences were 'substantively unreasonable.' Slip op. at 77. Judge Pooler wrote a concurring opinion stating that once the court found procedural error, it should have simply remanded.

What was unusual about the majority opinion was its detailed critique of the sentencing court's rationale. It parsed the district court's explanations, reaching contrary inferences and alternative explanations, disagreeing with the sentencing judge's characterization of evidence, the nature of the crime as well as the defendants' role. It reached substantive conclusions such as: the district court 'erred by ' exceeding its departure authority' slip op. at 40, certain rationales offered by the sentencing judge were 'detrimental to the 'perception of fair sentencing',' slip op. at 40, or 'would promote disrespect for the law,' slip op. at 57.

In making these findings, the Second Circuit clearly emphasized the vital importance of the Guidelines and appeared to give relatively little deference to the sentencing court. For example, the court rejected the district court's decision to depart downward for Freedman because of his health and his unique relationship with his mentally disabled brother and elderly mother-in-law. Citing pre-Booker cases, the Cutler majority concluded 'these circumstances fall far short of a basis for departure.' Slip op. at 68.

Conclusion

The lack of deference to the sentencing court was most sharply illustrated in the circuit court's analysis of Freedman's medical problems, which the district court believed could not be adequately addressed by the Bureau of Prisons. Freedman was 68, suffered from serious heart ailments and depression, and had a near-fatal bout with infection that left him comatose over several days prior to sentencing. After a detailed review of the record, the appellate panel interpreted the record to support its own view that Mr. Freedman's condition was not as bad as the district court thought. Whoever has the better part of the argument, one would have thought that under Gall, there should be no argument at all because the district court's findings had support in the record.

It is hard to square Cutler with Gall. It is also unclear whether Cutler will remain an outlier or become precedent upon which other courts will limit the discretion of sentencing judges, in deference to the Sentencing Guidelines.

Tai H. Park is a partner in the litigation group at Shearman & Sterling LLP, where his practice focuses on white-collar criminal defense and internal investigation matters. W. Owen Russell, an associate at the firm, provided research support.

The Second Circuit's decision in United States v. Cutler, Nos. 05-2516(L), 05-3303-cr(L), 05-6178-cr(XAP) (2d Cir. March 17, 2008), cast a cloud over the question of how far a sentencing judge can depart from the so-called 'advisory' Sentencing Guidelines. In late December 2007, the Supreme Court appeared to have settled that issue. In Gall v. United States , 128 S. Ct. 586 (2007), the Court clarified that appellate courts must give broad leeway to sentencing judges even where their sentences depart from the Guidelines. Most Circuits, following Gall, have applied that principle. Until Cutler. There, confronted with a lenient sentence imposed on two white collar defendants convicted after a three-month trial, the Second Circuit cited Gall, but applied an exacting review that discounted virtually every rationale offered by the experienced trial judge. It remains to be seen how the Second Circuit's law will develop in this area.

Much-Needed Direction

Since the Court held in United States v. Booker , 543 U.S. 220 (2005), that the Guidelines cannot be mandatory, judges and litigants puzzled over the status of the Guidelines. In Gall, the Supreme Court gave much-needed direction. The Court affirmed a sentence of probation for a reformed 'ecstasy' drug dealer, who would have gotten 30 to 37 months in prison under the Guidelines. The Eighth Circuit had carefully parsed the sentencing judge's rationale and concluded that where a district court departs from the Guidelines to an extraordinary extent, it must identify extraordinary circumstances. The Supreme Court disagreed. While a sentence post-Booker must be reasonable, appellate courts must give deference to district judges and refrain from analysis that 'come[s] too close to creating an impermissible presumption of unreasonableness for sentences outside the Guidelines range.' Gall 128 S. Ct. at 595. The Gall Court emphasized that district courts are due deference because they see and hear the evidence, make credibility findings, gain insights not apparent from the cold record, and as an institution, they see and apply many more Guidelines sentences than the appellate courts.

Gall still requires district judges to consider the Guidelines by calculating the Guidelines range correctly. They must then analyze the factors in 18 U.S.C. ' 3553(a) and explain the reasons for the sentence. On appeal, the appellate court should determine whether these procedural requirements were satisfied. If so, the appellate court must then determine whether the sentence was substantively reasonable, applying an abuse of discretion standard.

Gall has been heralded as returning sentencing discretion to district courts. See Steven H. Sadow: Gall Gives Defendants Real Option to Stand Trial. 30 Nat'l L.J., S2, March 24, 2008. Virtually every circuit court to address the new sentencing standards has broadly deferred to district courts. See, e.g., United States v. Martin, No. 06-1983, 2008 WL 748104 (1st Cir. March 21, 2008); United States v. Lehman , 513 F.3d 805 (8th Cir. 2008); United States v. Smart , 518 F.3d 800 (10th Cir. 2008).

The Second Circuit and Cutler

The Second Circuit went in a different direction. In Cutler, defendants Cutler and Freedman were convicted of a series of counts charging bank, mail and tax fraud causing more than $100 million in losses. Although the Guidelines recommended lengthy prison sentences for both, the district judge sentenced Cutler to 366 days' imprisonment and Freedman to three years' probation. The judge explained the departures from the Guidelines by assessing the nature of the misconduct, defendants' roles in the conspiracies, their health and family circumstances, and the likelihood of deterrence. The court weighed a host of important factors. It also made clear that it would have imposed the same sentences as non-Guidelines sentences.

The government appealed and the Second Circuit vacated and remanded, finding not only that the judge had procedurally erred but also holding that the sentences were 'substantively unreasonable.' Slip op. at 77. Judge Pooler wrote a concurring opinion stating that once the court found procedural error, it should have simply remanded.

What was unusual about the majority opinion was its detailed critique of the sentencing court's rationale. It parsed the district court's explanations, reaching contrary inferences and alternative explanations, disagreeing with the sentencing judge's characterization of evidence, the nature of the crime as well as the defendants' role. It reached substantive conclusions such as: the district court 'erred by ' exceeding its departure authority' slip op. at 40, certain rationales offered by the sentencing judge were 'detrimental to the 'perception of fair sentencing',' slip op. at 40, or 'would promote disrespect for the law,' slip op. at 57.

In making these findings, the Second Circuit clearly emphasized the vital importance of the Guidelines and appeared to give relatively little deference to the sentencing court. For example, the court rejected the district court's decision to depart downward for Freedman because of his health and his unique relationship with his mentally disabled brother and elderly mother-in-law. Citing pre-Booker cases, the Cutler majority concluded 'these circumstances fall far short of a basis for departure.' Slip op. at 68.

Conclusion

The lack of deference to the sentencing court was most sharply illustrated in the circuit court's analysis of Freedman's medical problems, which the district court believed could not be adequately addressed by the Bureau of Prisons. Freedman was 68, suffered from serious heart ailments and depression, and had a near-fatal bout with infection that left him comatose over several days prior to sentencing. After a detailed review of the record, the appellate panel interpreted the record to support its own view that Mr. Freedman's condition was not as bad as the district court thought. Whoever has the better part of the argument, one would have thought that under Gall, there should be no argument at all because the district court's findings had support in the record.

It is hard to square Cutler with Gall. It is also unclear whether Cutler will remain an outlier or become precedent upon which other courts will limit the discretion of sentencing judges, in deference to the Sentencing Guidelines.

Tai H. Park is a partner in the litigation group at Shearman & Sterling LLP, where his practice focuses on white-collar criminal defense and internal investigation matters. W. Owen Russell, an associate at the firm, provided research support.