November 13, 2014

Federal Bar Council News / Written by: Bennette Deacy Kramer

On January 12, 2005, the Supreme Court delivered opinions in United States v. Booker and United States v. Fanfan, holding that the Sixth Amendment, as construed in Blakely v. Washington, 124 S. Ct. 2531 (2004), applied to the Federal Sentencing Guidelines and rendered the mandatory Federal Sentencing Guidelines unconstitutional.

Justice Stevens wrote the majority opinion, which was joined by Justices Scalia, Souter, Thomas, and Ginsburg. Justice Breyer, joined by Chief Justice Rehnquist and Justices O'Connor and Kennedy, dissented. In a second majority opinion, Justice Breyer, joined by Chief Justice Rehnquist and Justices O'Connor, Kennedy, and Ginsburg, concluded that the provisions of the Sentencing Reform Act, which make the guidelines mandatory, are incompatible with the Court's Sixth Amendment jury trial holding, that those provisions must be severed, and that the severance made the guidelines advisory, and consequently constitutional.

On March 31, 2005, the Federal Bar Council and the Eastern District Association co-sponsored a program to discuss federal sentencing afterBooker. The program was held in the Ceremonial Courtroom of the Eastern District Courthouse in Brooklyn. The Honorable John Gleeson, United States District Judge for the Eastern District of New York, was the program chair and moderator. The other panel members were: The Honorable William K. Sessions, III, Chief United States District Judge for the District of Vermont and Vice Chair of the U. S. Sentencing Commission; The Honorable Gerard E. Lynch, United States District Judge for the Southern District of New York; Deborah Rhodes, United States Department of Justice, Criminal Division, Ex-Officio Commissioner, U.S. Sentencing Commission; Professor Leonard Orland of the University of Connecticut School of Law; and Alan Vinegrad, partner at Covington & Burling and former United States Attorney for the Eastern District of New York.

First, Orland provided an overview of the Court's decisions considering the Sentencing Guidelines from Mistretta, where the Court upheld the constitutionality of the Sentencing Guidelines, through Booker and Fanfan. Orland pointed to Apprendi, in which the Court struck down the New Jersey sentencing statute in 2002 as a landmark decision. He finished with a discussion of the two majority opinions in Booker.

Alan Vinegrad then discussed United States v. Crosby, 397 F.2d 103 (2d Cir. 2005), and United States v. Fleming, 397 F.3d 95 (2d Cir. 2005), in which the Second Circuit gave guidance to the district courts in applying Booker. Vinegrad said that Booker had raised three issues which the lower courts had to address: (1) what does it mean to consider the guideline range; (2) what is "reasonable" in the sentencing context; and (3) what is the standard of appellate review. In Crosby, the Second Circuit indicated that post-Booker the sentencing focus has shifted to the factors set forth in 18 U.S.C. § 3553(a). The seven factors that sentencing courts must consider are: (1) "the nature and circumstances of the offense and the history and characteristics of the defendant"; (2) "the need for the sentence imposed," ranging from punishment to deterrence to correction; (3) "the kinds of sentences available"; (4) "the kinds of sentence and the sentencing range established" requiring reference to the Sentencing Guidelines; (5) policy considerations; (6) the need to avoid disparities among defendants with similar records and guilty of similar conduct; and (7) "the need to provide restitution to any victims of the offense." The Second Circuit does not envision a return to the pre-Sentencing Guidelines era, but states that sentences should be more individualized than under mandatory guidelines. The standard of appellate review will be an abuse of discretion.

In Fleming, the Second Circuit adopted a deferential standard toward district court sentencing decisions, concluding that if a district court indicated that it was aware of the guideline range and did not misunderstand it, then the Second Circuit would accept that the court had duly considered the range, and would not micromanage deciding whether the sentence was "reasonable."

A spirited discussion followed. Judge Lynch said he had not held many hearings to develop facts after Booker and Fanfan, because defendants do not want them. Judge Lynch believes that judges are freer after Booker to calculate the guidelines, determine individual facts, and impose sentence. Stipulations of fact in connection with plea agreements are the same as when the guidelines were mandatory. Judge Lynch said that in most cases the guidelines are not out of line, but there are exceptional cases where the guidelines are just plain wrong. He gave as an example the statute requiring sentencing ratios for convictions relating to crack cocaine. Judge Lynch pointed to Simon v. United States, 2005 WL 711916 (E.D.N.Y. Mar. 17, 2005), a recent decision by Judge Sifton in which he refused to apply the crack cocaine guidelines on resentencing. Judge Lynch noted that departures from the guidelines are generally for small amounts of time. Judge Gleeson said that judges look at the Justice Department appeal guidelines when departing as a "safe harbor."

Judge Sessions said that the statistics that the Commission has received show that there are lots of hearings across the country. Sentencing has become a three step process: (1) make an analysis under the guidelines; (2) address the grounds for departure (which in any event is part of the guidelines); and (3) arrive at a range and address adjustments. Courts across the country are split on what emphasis to give the guidelines.

In response to a question from Judge Gleeson, Rhodes said that if there is a dispute over the guideline range, the sentencing court must follow the same "calculate, adjust, sentence" process as before, and then determine if the resulting sentence is "reasonable." The court must explain why a sentence is "reasonable." The Justice Department has taken the position that the guidelines are presumptively "reasonable" and must be given great weight in sentencing. The closer a sentence is to the presumptively reasonable, the less likely the government will appeal.

Judge Sessions sees the sentencing situation heading for a struggle among branches of government over who controls sentencing policy. The Supreme Court is confronting Congress at its core. Judge Sessions said that the Commission has tried to soften the clash between Congress and the judiciary, but that Congress has had a severe reaction to the Commission's efforts. He noted that the Sentencing Commission took a stand against the crack ratios which Judge Sifton addressed in Simon, but Congress has consistently rejected the Commission's position. It is best to approach sentencing on a case by case basis and compare the severity of the individual sentences under the guidelines to the circumstances of individual defendants. The Commission tracks sentences: post-Booker 62 percent of sentences are within the guidelines, compared to 65 percent pre-Booker. Departures based on grounds other than substantial assistance to the government have moved from about 11 percent to 13 percent. Upward adjustments or departures have tripled from .8 percent to two percent.

Following a break, Rhodes explained the concerns of the Justice Department. She said that it had not yet submitted proposed legislation to Congress; however, it takes the position that judges should follow the same procedures and consider the same factors as before, and is concerned that the "reasonableness" standard will introduce a basis for disparity in sentences. The Justice Department will appeal sentences in order to iron out unreasonable disparities. The Justice Department is also concerned that defendants will have less incentive to cooperate, believing that they have more leverage without cooperating. The Justice Department believes that when it negotiates with a defendant, it is entitled to complete truth. The ability to negotiate for the complete truth impacts on the integrity of the trial system.

Vinegrad said that following Booker the government had required more waivers in plea agreements. In the Southern District, the government requires stipulated guidelines ranges, and an agreement that a sentence within the guidelines range is "reasonable." The Eastern District standard plea agreement is more artful, but reaches the same result. The government and defendant agree that the defendant will be sentenced within the range. Neither the Southern District nor the Eastern District agreements bind the judge. Rhodes commented that the Department of Justice agrees that the plea agreements are not meant to bind the court. Judge Gleeson noted that waivers of appeals in plea agreements remain enforceable.

Judge Lynch cautions defense lawyers not to enter plea agreements unless a defendant gets something in return. In preparing for sentencing, all defense lawyers need to do is present facts to the court, i.e., mitigating factors, family circumstances, crime, etc. With the facts, the judge can figure out if there are grounds for departure. A sentencing judge focuses on the facts of the case presented by the parties, not their guidelines arguments.

Judge Sessions said the Commission would provide leadership, models, and proposed legislation in the on-going debate on sentencing policy. The Sentencing Commission is composed of members of the judiciary, nominated by the president, and confirmed by Congress. They must balance the interests of all three branches of government. The Commission will have some say in sentencing policy, and will hold hearings with experts. Judge Sessions sees three theoretical options: (1) incorporating the right to a jury trial in the guidelines, but expanding the ranges and limiting enhancements; (2) adopting a non-mandatory, advisory system with modest changes; or (3) creating a mandatory system, setting forth sentences from lowest to highest. The Commission has not gone to Congress. It is waiting for a sense of whether there are problems or not, and, if there are problems, what they are. In the meantime, the Commission will leave the sentencing guidelines advisory and expand them to incorporate the concerns of the judges, the Department of Justice, and the White House. The greatest fear of the Commission is that Congress will overreact. It wants to make sure the next Congressional reaction is moderate and not too dramatic. If too dramatic, the courts will try to correct it and Congress will react again. Judge Lynch suggested that the Commission needs to speak up regarding what the data shows and what the sentencing policy should be. Since it is the expert on sentencing, it must make its views known.

The discussion was lively and informative. The Program Chair was Michael E. Horowitz of Cadwalader Wickersham & Taft, Commissioner, U.S. Sentencing Commission, and the program earned attendees two CLE credits.

Bennette Deacy Kramer is a partner at Schlam Stone & Dolan.

[This article is reprinted with permission from the June 2005 issue of the Federal Bar Council News. Copyright © 2005 Federal Bar Council. All rights reserved. Further duplication without permission is prohibited.]