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Sentencing
Advocacy for White Collar Defendants:
Show Some Gall
By
David DuMoucel, George Donnini, Joseph Richotte
I. Introduction
On Monday, December 10, 2007, the United States
Supreme Court issued two sentencing decisions that are likely to have a
significant effect on sentences in white-collar cases, although neither
case involved white-collar defendants.
These two cases build upon the Court’s decisions in Booker[1]
and Rita.[2] The Court reaffirmed that the sentencing
guidelines are advisory, that the district courts have wide discretion to
impose sentences under § 3553(a), and that appellate courts are limited to
a deferential, abuse-of-discretion standard of review of criminal
sentences.
II. Gall and Kimbrough
In Gall v. United States,[3]
the defendant participated in a conspiracy to distribute controlled substances. He voluntarily withdrew from the
conspiracy, graduated from college, and started a rather profitable
construction business. More than
three-and-a-half years elapsed between his withdrawal from the conspiracy
and the indictment. The Government
asked the district court to impose a guidelines sentence, which called for
30-37 months’ imprisonment.
The court sentenced Gall to three years’ probation. The Eighth Circuit reversed, ruling that
sentences that substantially deviate from the guidelines range had to be
supported by extraordinary circumstances.
It concluded that there were no extraordinary circumstances
warranting what it believed to be such a lenient sentence.
In a 7-2 decision, the Court upheld the
sentence as reasonable, noting that probation restrictions are serious
curtailments of a defendant’s liberty interests. It held that the review of a district
court’s sentence is subject to an abuse-of-discretion standard,
regardless of whether the sentence is inside or outside the guidelines
range. Appellate courts may consider
the degree of variance from the guidelines, but they cannot require
“extraordinary” circumstances or adherence to a
percentage-based formula as a measure of a sentence’s
reasonableness. The Court explained
that these “proportional” approaches impermissibly presume that
non-guidelines sentences are unreasonable.
The decision reaffirms that district judges are to be afforded wide
latitude in crafting a reasonable sentence tailored to each particular
defendant under § 3553(a).
In his concurring opinion, Justice Scalia noted
that Gall does not foreclose as-applied constitutional challenges to
sentences. He reiterated his Apprendi[4]
position that the sentencing judge still is limited to using only those
facts (other than a previous conviction) found by the jury, regardless of
whether a sentence is reasonable under the abuse-of-discretion
standard. Therefore, the possibility
exists that a reasonable sentence nonetheless may be unconstitutional.
In the other case, Kimbrough v. United
States,[5]
the Court added its view to the controversy surrounding the now-former
100-to-1 sentencing disparity between crack cocaine and powder
cocaine. The district court imposed
a significantly below-guidelines sentence because it concluded that the
15-year mandatory minimum was sufficient to meet the sentencing objectives
in 18 U.S.C. § 3553(a). The Fourth
Circuit reversed. It ruled that a
below-guidelines sentence is per se unreasonable when it is based on
the district court’s disagreement with the guidelines’
disparate treatment of the two types of cocaine.
In another 7-2 decision, with an identical
majority, the Supreme Court upheld the district court’s sentence:
“We hold that, under Booker, the cocaine Guidelines, like all
other Guidelines, are advisory, and that the Court of Appeals erred in
holding the crack/powder disparity effectively mandatory.” The Court observed that sentencing judges
may determine that guidelines sentences are “greater than
necessary” to serve sentencing objectives in any particular
case. In making that determination,
they can consider the disparity between the guidelines’ treatment of
crack cocaine and powder cocaine offenses.
The Court applied Gall, and it concluded that the district
court did not abuse its discretion in sentencing the defendant to the
mandatory minimum.
III. Sentencing Advocacy
In the wake of Gall
and Kimbrough, both the defense bar and prosecutors have an
opportunity to reinvigorate the sentencing hearing. For defense counsel, the “range of
choice dictated by the facts of the case” is significantly broadened.[6] For assistant U.S. attorneys, the guidelines
remain the starting point, and the logic of Gall dictates that
circuit courts also must give deference to above-guidelines sentences.
A.
Defense Advocacy
Gall and Kimbrough provide potentially
positive news for white-collar defendants.
The Court reassured district judges that the guidelines are
advisory, and it rebuked some circuit courts for failing to give deference
to the district courts when reviewing sentences for reasonableness. Defense counsel should use this
opportunity to make sentencing arguments for significant variances from the
guidelines range.
For example, Gall notes the very
legitimate function of non-custodial sentences. The majority chided the Fourth Circuit
for downplaying the substantial restrictions that probation places on
defendants’ liberty interests.[7] The case can be read to support probation
as a reasonable alternative to lengthy terms of imprisonment. In fact, district judges arguably cannot
sentence someone to jail time unless it would be reasonable: Ҥ
3553(a)(3) directs the judge to consider sentences other than
imprisonment.”[8] In many cases, defense counsel have been
reluctant, if not unwilling, to ask for a probationary sentence because
such a request had virtually no chance of being imposed and because they
feared that an opportunity to argue for a below-guidelines sentence would
be lost. Counsel should now argue,
in appropriate cases, that sentencing afterthoughts, such as probation or
supervised release, should be recognized as the principal vehicles for
punishment because they are substantial restrictions of freedom.[9] For instance, rather than a guidelines
sentence of 24-30 months, counsel may consider asking for probation for a
term of years with several specialized, onerous restrictions in lieu of a
prison term.[10]
Even if the court is determined to impose jail
time, counsel might persuade the sentencing judge to give the guidelines
range less weight. No other Justice
concurred with Justice Alito’s dissent, which stressed his view that
district courts must give “the policy decisions that are embodied in
the Sentencing Guidelines at least some significant weight in making
a sentencing decision.”[11] As Professor Douglas Berman observed,
this suggests that the majority believes district judges need give them
only some consideration.[12] Indeed, the majority noted that a
district judge gives significant weight and consideration to the need for
unwarranted sentencing disparities simply by correctly calculating and
carefully reviewing the guidelines range.[13]
Counsel might also consider trying a hybrid
approach. Some judges may be more
open now to the idea of short period of incarceration for first-time,
white-collar defendants, followed by home confinement and then a
substantial period of supervised release.
Alternatively, some judges may be amenable to a short prison term on
one count and probation as to the remaining counts. There are many combinations that could
reduce a defendant’s prison term.
In addition, Justice Steven provided the
defense bar with some helpful dicta on unwarranted sentencing
disparities. He praised the district
court for looking to avoid unwarranted sentencing similarities,
recognizing that improperly treating unlike cases similarly is just as much
a form of disparate treatment as treating like cases dissimilarly.[14] In cases involving multiple white-collar
defendants, defense counsel should consider mens rea arguments for
lower sentences. There often is one
defendant who may be technically guilty, but who did not consciously set
out to defraud the victim(s).
Defense counsel should argue that sentencing that defendant in the
same manner as the more culpable defendants is unreasonable because it runs
counter to Congress’s sentencing goals. When there is only one defendant, counsel
might review the sentencing judge’s previous treatment of similar
white-collar offenses and draw enough factual distinctions to obtain a
lower-than-usual sentence. Of course,
counsel can (and should) take a more “macro” approach by
obtaining data on all of the judges within the district or circuit, or even
nationally, to help the court craft a reasonable sentence.
In short, Gall and Kimbrough call
for the federal defense bar to think outside the box that has been placed
around them for quite some time. For
many judges and attorneys who have never practiced without being subject to
the guidelines, this will require some re-thinking and (hopefully) some
getting used to.
B.
Government Advocacy
Even though the Government did not prevail on
either case, Gall and Kimbrough do contain language that is
useful to the prosecution as well.
As Justice Stevens notes in Gall, it remains clear that
“a district judge must give serious consideration to the extent [he]
depart[s] from the Guidelines, and [he] must explain his conclusion that an
unusually lenient . . . sentence is appropriate . . . with sufficient
justifications.”[15] Under § 3553(a)(6), a sentencing court
must consider the need to avoid unwarranted sentencing disparities among
defendants with similar records. And
as the Court observed, the guidelines are “the product of careful
study based on extensive empirical evidence derived from the review of
thousands of individual sentencing decisions.”[16] Prosecutors readily can argue that unduly
lenient sentences create the very unwarranted sentencing disparities
that Congress sought to avoid under the Sentencing Reform Act.
At the same time, prosecutors also seem to have
a freer hand to argue for above-guidelines sentences. Prosecutors can argue that Gall
goes both ways; appellate courts are limited to an abuse-of-discretion
review, “whether inside, just outside, or significantly outside the
Guidelines range,”[17]
and that includes above-guidelines sentences. Consider, for example, a pending case in
the Southern District of New York.[18] Although the U.S. Attorney’s Office
apparently did not seek an above-guidelines sentence, the district court
tacked on an additional 6 months to the top of the guidelines range for
firearms trafficking because it felt that the presence of illegal weapons
in densely-populated urban areas posed a greater risk to the community than
similar conduct in rural areas. The
Second Circuit reversed on unwarranted-disparity grounds before Gall
was issued. Yet the Government could
argue at the re-sentencing hearing that it is reasonable for the court to
impose this slightly higher sentence.
As long as the judge explains why the increased sentence is both
individualized and reasonable (rather than a formulaic increase for all
firearms offenses) the sentence likely would be upheld under an
abuse-of-discretion review.[19]
Although the guidelines remain the starting
point, prosecutors cannot rely on them to argue that a particular sentence
is appropriate, or even reasonable. Gall
and Kimbrough send a clear signal that assistant U.S.
attorneys, just like defense counsel, must advocate for sentences by
focusing on § 3553(a) factors.
IV. Conclusion
With the exception of a few constitutional
restrictions, judges can consider almost any fact when fashioning a
sentence.[20] Gall and Kimbrough present
prosecutors and defense attorneys with the opportunity to reinvigorate
sentencing hearings with some zealous advocacy that focuses on individualized
factors. It seems like “déjà
vu all over again.”
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