VOL. CXCVII – NO. 9 - INDEX 684
An incisivemedia publication
AUGUST 31, 2009
Criminal Law
Federal Sentencing: U.S. Supreme Court Continues
To Expand Opportunities for Zealous Advocacy
By Lawrence S. Lustberg, Michael A.
Baldassare and Joshua C. Gillette
R
ecent changes to federal sentencing
law portend a paradigmatic shift
in how courts approach sentencing.
Defense counsel now has a meaningful
opportunity in this critical phase of the
criminal process to contest the draconian
sentences our clients have faced for the
last two decades. This article discusses
the broad implications of Kimbrough v.
United States, 128 S. Ct. 558 (2007),
and how defense counsel can best assert
Kimbrough arguments at sentencing.
In United States v. Booker, 543 U.S.
220 (2005), holding that the federal sentencing guidelines were not mandatory,
but were merely one of the several factors
listed in 18 U.S.C. Section 3553(a) that
courts must consider at sentencing, the
Supreme Court essentially instructed district judges to generate individualized sentences “from scratch” by considering all
of the Section 3553(a) factors on a blank
slate, employing the sentencing “recipe” contained in the relevant “advisory”
Guidelines as just that — advice, merely
Lustberg is chair of, Baldassare is
director in, and Gillette is counsel in the
criminal defense department of Gibbons
in Newark.
a suggestion as to one possibly appropriate sentence in a particular case, to be
given no presumptively greater weight
than any other of the numerous other
Section 3553(a) sentencing factors. This
instruction that district courts exercise the
grave responsibility of sentencing using
the less specific guideposts of the Section
3553(a) factors, subject to appellate reversal if the result is deemed “unreasonable,”
met the resistance one might expect from
judges accustomed to applying the timehonored, specific, essentially reversalproof “recipes” of the guidelines. Indeed,
resistance was so great that, since Booker,
the Supreme Court has found it necessary
to stress that the guidelines are not to
be given presumptive weight by district
courts. See Nelson v. United States, 129 S.
Ct. 890, 892 (2009).
In December 2007 the Supreme Court
decided Kimbrough, which has emerged as
a critical decision that has begun rendering the guidelines less and less relevant.
Focusing on the United States Sentencing
Commission’s “important institutional
role” vis-à-vis courts and Congress, i.e.,
the commission’s having “the capacity
courts lack to base its determinations on
empirical data and national experience,
guided by a professional staff with appropriate expertise,” the Court held that district courts could completely disregard
sentences suggested by the crack cocaine
guidelines since they “do not exemplify
the commission’s exercise of its characteristic institutional role” because in
formulating them “the commission looked
to the mandatory minimum sentences
… and did not take account of empirical
data and national experience.” Although
Kimbrough addressed the crack guideline,
its holding — that the commission’s failure to base a guideline on valid data and
expert analysis warrants judicial scrutiny
and possible disregard of a guideline — is
not limited to crack cocaine offenses but
applies to “all other Guidelines.”
Kimbrough’s significance for current
practice is its holding that, in discharging this newly-restored duty to construct
a sentence “from scratch,” rather than
uncritically accept a guideline, a court may
determine that a guideline’s sentencing
“recipe” should be categorically rejected
or significantly discounted, because it
was derived from bad “ingredients” —
e.g., inadequate data about the harms
caused by the crime at issue, recidivism,
rehabilitation, or preguidelines sentencing
practice, or a failure by the commission
to revise the guideline in light of judicial
decisions, sentencing data, and comments
from experts. Where a guideline suffers
these defects, the Court said in Kimbrough
(and reinforced earlier this year in Spears
Reprinted with permission from the AUGUST 31, 2009 edition of New Jersey Law Journal. © 2009 Incisive Media US Properties, LLC. All rights reserved. Further duplication without permission is prohibited.
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NEW JERSEY LAW JOURNAL, AUGUST 31, 2009
v. United States, 129 S. Ct. 840 (2009)),
the sentencing court may substitute its
own sentencing formula “based solely on
policy considerations, including disagreements with the Guidelines.” This reaffirms
the authority district courts have possessed
since Rita v. United States, 127 S. Ct.
2456 (2007), decided before Kimbrough,
to vary from guideline sentences because
a particular Guideline “fails properly to
reflect § 3553(a) considerations, reflects
an unsound judgment, does not treat defendant characteristics in the proper way, or
that a different sentence is appropriate
regardless.”
Some courts misapprehend a
Kimbrough argument as asking them to
“redo the Guidelines” by analyzing empirical data. Courts resist doing so, and the
Justice Department encourages this reluctance, arguing for deference to the guidelines on the ground that courts lack the
“institutional competence” that the commission has to examine national sentencing
data. But this is a red herring. A Kimbrough
argument does not require judges to do the
commission’s work — which, after all,
was to determine appropriate punishment
for the vast majority of federal offenders.
Instead, the argument is that where the
commission has not done its work satisfactorily, the sentencing court must do its
work — fashioning a just sentence for the
defendant before the court, sufficient but
not greater than necessary to fulfill the
Section 3553 sentencing purposes — with
no (or only minor) aid from the otherwise
pertinent guideline.
In holding that a guideline’s flaws can
render it invalid to meet the goals of criminal sentencing, Kimbrough has imparted to
defense counsel a critical new role in the
sentencing process. While Booker restored
defense counsel’s right (and duty) to argue
individualized factors about our clients,
as we are uniquely suited to do because
we know our clients and their version of
events, Kimbrough — reinforced by Spears
— have now provided defense counsel the
capability and the obligation to critically
examine the applicable guideline in each
case for defects in its creation, rendering
it unable to fulfill the goals of sentencing
Congress established in Section 3553(a).
Just as courts considering Kimbrough
arguments are not required to exceed their
capabilities by analyzing national data
to “redo” the commission’s job, neither
must any individual defense counsel do
so. Counsel can argue for a non-guidelines
sentence merely by showing that, in promulgating a guideline, the commission did
not do its job, i.e., that it failed to act in
“the exercise of its characteristic institutional role.” A Kimbrough argument may
be viable if the guideline:
• seems geared to always meet a
mandatory minimum, regardless
of mitigating factors or culpability,
without the commission making
its own assessment of appropriate
punishment based upon empirical
evidence and national sentencing policies and trends, because
while Congress sets mandatory
minimums and maximums, the
Commission does not discharge
its role if it just follows what
Congress does;
• treats factors present in every
case as aggravating factors warranting increased punishment;
• was increased merely because of
political pressure from a member
of Congress, indicating the commission did not discharge its role
to create guidelines that result
from a collaborative, deliberative process of sentencing experts
rather than politics and “tough on
crime” re-election considerations;
• was increased with little debate
or consideration and no empirical
evidence — based upon actions
taken by the Department of
Justice.
Defense counsel can identify such deficiencies by scrutinizing the legislative
history of the statute of conviction, the
history of the relevant guideline and any
197 N.J.L.J.684
amendments, and publicly-available statistics and studies created and used by the
sentencing commission. Key resources are
on the commission’s Web site, especially
Appendix C to the guidelines containing
the commission’s rationale for amendments, which may reveal a particular
guideline as lacking in sound reasoning
or supporting data and thus worthy of less
or no consideration in sentencing. Briefs
are available from other lawyers who
have already marshaled compelling arguments to “deconstruct” some guidelines
and persuaded district courts to apply
the Kimbrough argument to many guidelines; some are available at the Federal
Public Defenders Web site. While these
are useful starting points, counsel should
bear in mind that this area of law is still
developing, so that there may be defects
in a guideline others have not yet spotted,
and that an effective Kimbrough argument
does not just attack the guideline but also
explains why the defects identified make
the guideline unable to generate a just
sentence in the specific circumstances
of the defendant. Kimbrough’s reasoning explodes the guidelines, and in its
wake, defense attorneys have convinced
district courts that other guidelines, like
the crack guideline, were not based upon
a complete and sensible analysis of valid
empirical data and thus should be ignored
or at least given less weight in the balance
than the other Section 3553(a) factors.
These have included the guidelines for
possession of child pornography, criminal history, career offenders, “fast-track”
disparity in immigration cases, noncrack
drug offenses, firearms, illegal re-entry,
health care, securities, tax, and identity
fraud, and even murder. See Amy BaronEvans et al., “Judges Are Free to Disagree
With Any Guideline.”
Zealous counsel’s task now is to
persuade sentencing courts to shift their
approach to sentencing to realize that there
is no good reason to use a flawed guideline, even if doing so may in some cases be
affirmed as harmless error. An argument
can and should be made that Kimbrough
modifies the sentencing procedure the
Third Circuit set forth pre-Kimbrough in
United States v. Gunter, 475 F.3d 556 (3d
Cir. 2007), i.e., calculating the guidelines
197 N.J.L.J.684
NEW JERSEY LAW JOURNAL, AUGUST 31, 2009
first and then moving to the remaining
Section 3553(a) factors. Gunter’s mandate
to calculate the guidelines first should
be skipped if a compelling Kimbrough
argument has been presented — why go
through the guidelines calculation if that
guideline makes no sense? But even if
the guideline is not entirely invalidated,
and even under Gunter, the district court
may at least discount the value attached
to Section 3553(a)(4) & (5) and fashion
the defendant’s sentence based upon the
remaining Section 3553(a) factors.
Using creative approaches and col-
3
laborating with colleagues to shine a light
on flawed guidelines, defense counsel can
capitalize on Kimbrough to help defendants receive sentences that make sense
and, for the first time in over two decades,
truly temper justice with mercy, as befits
a civilized society. ■