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Are the Sentencing Guidelines More Than 'Advisory'?
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.
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