Oral Argument: October 2, 2007
Court Appealed From: United States Court of Appeals for the Eighth Circuit (May 12, 2006)
FEDERAL SENTENCING GUIDELINES, MANDATORY MINIMUMS, SIXTH AMENDMENT, REASONABLE, OUTSIDE, EXTRAORDINARY CIRCUMSTANCES
In 2000, Brian Michael Gall was involved in a drug ring for approximately 8 months. Five years later, he pled guilty to conspiracy to distribute a controlled substance. The judge sentencing Gall chose to impose a sentence far below the sentence range recommended by the United States Sentencing Guidelines (“Guidelines”) because of Gall’s exemplary and law-abiding behavior after he left the conspiracy. On appeal, this sentence was held unreasonable because of its great deviation from the sentence range recommended by the Guidelines. In two recent cases, the Supreme Court held that requiring a judge to impose a sentence within the Guidelines sentence range violates the Sixth Amendment, but that a sentence within the Guidelines range can be presumed reasonable. Consequently, though courts are not required to sentence within the Guidelines range, they are expected to consider the range in their sentencing decisions, and it is uncertain how much discretion they have to depart from the range. Gall v. United States will clarify the role of the Federal Sentencing Guidelines in sentencing decisions and what justification is needed for a departure from the Guidelines sentencing range.
Whether, when determining the “reasonableness” of a district court sentence under United States v. Booker, 543 U.S. 220 (2005), it is appropriate to require district courts to justify a deviation from the United States Sentencing Guidelines with finding of extraordinary circumstances.
Can a district court impose a sentence outside of the range recommended by the United States Sentencing Guidelines without providing an extraordinary reason to justify the deviation?
In early 2000, Brian Michael Gall, began selling methylenedioxymethamphetamine (“MDMA” or ecstasy) as part of a drug distribution ring in Iowa. U.S. v. Gall, 446 F.3d 884, 885 (8th Cir. 2006). Gall would purchase MDMA in 1,000 tablet increments, and then sell the tablets to others whom he knew were distributing the drug in the community. Id. While part of the drug conspiracy, Gall earned $30,000 to $40,000 in profit. Brief for Petitioner at 2. In September 2000, Gall decided to leave the drug conspiracy. Gall, 446 F.3d at 886. He then completed his college education, and following graduation, moved to Arizona and began working in the construction industry. Brief for Petitioner at 3.
In 2003, Gall was approached by federal agents who questioned him about his involvement in the drug distribution conspiracy. Brief for Petitioner at 3. Gall admitted to his involvement, and in 2004, the government charged Gall with conspiracy to distribute ecstasy. Id. Following the indictment, Gall voluntarily returned to Iowa and surrendered to federal authorities. Id. He resettled in Iowa, and opened up a successful construction business where he employed several people. Id. In March 2005, Gall pled guilty to conspiracy to distribute a controlled substance. Id.
When imposing a sentence, federal courts consider the sentencing factors listed in 18 U.S.C. § 3553 (“Section 3553”). These factors include the “nature and circumstances of the offense,” the characteristics of the defendant, the protection of the public, and the sentence range recommended by the Federal Sentencing Guidelines. Id. Under 1999 Guidelines, which were applied because Gall’s criminal activity occurred when they were in effect, the recommended sentence range for Gall was 30 to 37 months imprisonment. Gall, 446 F.3d at 886. The District Court denied Gall’s motion for a departure from the Guidelines sentence range based on Gall’s behavior after leaving the conspiracy. Id. at 887. However, when the court applied the Section 3553 sentencing factors, it gave particular weight to Gall’s voluntary withdrawal from the drug conspiracy, his “exemplary” behavior while on bond, the public support of his family and friends, the lack of any other criminal history, and his immaturity at the time of the drug conspiracy, and sentenced Gall to three years probation and required drug and alcohol testing and counseling – a sentence far below the sentence range recommended by the Guidelines. See id. at 886-88. The Government appealed, and the Eighth Circuit Court of Appeals reversed and remanded for new sentencing, holding that extraordinary variations from the sentence range prescribed by the Guidelines must be supported by “extraordinary justifications.” Gall, 446 F.3d at 889. Gall petitioned the Supreme Court for certiorari, which was granted on June 11, 2007. Gall v. United States, 127 S.Ct. 2933 (2007).
The Supreme Court’s decision in this case will influence the future of criminal sentencing. See Brief for Respondent at 12. Though in United States v. Booker, the Court ruled that courts are not required to sentence within the range prescribed by the United States Sentencing Guidelines, it has not addressed how much latitude a court has to deviate from that sentencing range. The Court will determine whether a trial court must justify a criminal sentence falling outside the Guidelines range with a judicial finding of “extraordinary circumstances.” See Brief for Petitioner at 12-13. This determination rests upon the Court’s interpretation of the Sixth Amendment’s guarantee of a trial by jury for criminal defendants. See id. at 12-14. The decision will also clarify the proper scope of appellate review when a party appeals a criminal sentence. See id. at 22.
The U.S. Sentencing Commission designed the Federal Sentencing Guidelines to minimize disparities in sentences for similar crimes, while giving courts flexibility to consider other relevant factors when sentencing. An Overview of the U.S. Sentencing Commission at 1. Until recently, sentencing within the Guidelines range was mandatory, except in rare instances when a case contained elements not adequately considered by the Sentencing Commission. Booker, 543 U.S. at 234-35. However, in 2005, the Court held in United States v. Booker, that requiring courts to sentence within the Guidelines range violated the Sixth Amendment right to a jury trial, because it resulted in a sentence based on facts found by the judge rather than by the jury. Two years later, in United States v. Rita, the Court held that it did not violate the Sixth Amendment for an appellate courts to presume that a sentence within the Guidelines range is reasonable. 127 S. Ct. 2456, 2467 (2007). The Court cautioned, however, that this does not mean an appellate court reviewing a sentence falling outside the Guidelines range can presume the sentence is unreasonable. Id.
In Gall, the Court will clarify what an appellate court should do when reviewing a sentence outside of the Guidelines range. The Eighth Circuit found Gall’s sentence unreasonable using a proportionality or “extraordinary circumstances” test, which requires that a sentence that varies significantly from the Guidelines range have a correspondingly strong justification. See Brief for Petitioner at 12. Gall argues that this test violates the Sixth Amendment because it requires a judge to find facts beyond those found by the jury. Id. The Government argues that the test does not require a judge to find additional facts, only to point to atypical facts or policy reasons in support of the sentence. Brief for Respondent at 35. The Government also argues that the proportionality test will further Congress’s goal of reducing sentencing disparities. Id. at 8. However, amici argue that a decision in favor of Gall will give judges the discretion to impose criminal sentences based on all of the facts presented at trial, and will therefore further the social policies of deterrence of crime and retribution for criminal acts. See Brief of Amici Curiae Washington Legal Foundation, et al. at 2.
The Sixth Amendment of the United States Constitution grants criminal defendants the right to a jury trial where each element of the crime is proven “beyond a reasonable doubt” before he or she is found guilty. U.S. Const. amend. VI. Consequently, a sentencing court can only base the defendant’s sentence on those facts, other than a prior conviction, found by a jury “beyond a reasonable doubt.” Apprendi v. New Jersey, 530 U.S. 466, 490 (2000).
In 1987, at the behest of Congress, the U.S. Sentencing Commission, promulgated the United States Sentencing Guidelines. An Overview of the U.S. Sentencing Commission at 1-2. The purpose of the Guidelines was to standardize sentences for similar crimes, while giving sentencing courts discretion to consider all relevant factors when sentencing within that range. Id. Judges were required to impose sentences within the Guidelines’ range, and were permitted to depart from that range only when they found “aggravating or mitigating circumstances” not adequately contemplated by the Sentencing Commission. United States v. Booker, 543 U.S. at 234-35. Almost twenty years after their promulgation, the Supreme Court held that, if mandatory, the Guidelines violated the Sixth Amendment, because they required sentencing courts to rely on facts not presented to the jury, and thus not proven beyond a reasonable doubt. Id. at 245-46. Consequently, the Court excised the portion of the sentencing statute, 18 U.S.C. § 3553(b)(1), that made sentencing within the Guidelines range mandatory, and ruled that sentencing courts must consider the sentencing factors found in 18 U.S.C. § 3553, including the Guidelines sentence range, but are not required to sentence within that range. Booker, 543 U.S. at 245-46, 259.
Additionally, the Court excised 18 U.S.C. § 3742(e), a provision requiring appellate courts to conduct a de novo review of departures from the Guidelines sentence range. Booker, 543 U.S. at 259; 18 U.S.C. § 3742(e). When an appellate court reviews a lower court’s decision de novo, it may rule as though it is the first court to hear the case and does not need to defer to the district court’s findings. See Brief for Petitioner at 22. In place of de novo review, the Court held that an appellate court may appropriately review a sentencing court’s decision for “unreasonableness.” See Booker, 543 U.S. at 261.
Later, in Rita v. United States, the Court continued to develop its Sixth Amendment jurisprudence. 127 S. Ct. 2456 (2007). Limiting the Booker decision, the Court explained that the Sixth Amendment does not strictly prohibit a sentencing court from relying on facts not found “beyond a reasonable doubt” by a jury; it only prohibits requiring sentencing courts to do so. Id. at 2466. Indeed, a sentencing court must, at the very least, consider those factors deemed important by the Sentencing Commission. Id. The Court also held that, upon review, any sentence falling within the Guidelines range was presumptively reasonable, but cautioned that sentences falling outside the Guidelines range may not be presumed unreasonable. Id. at 2462-63, 2467.
The United States maintains that the Eighth Circuit was correct when it ruled that Gall’s sentence of three year probation, rather than the 30-37 month imprisonment indicated by the Guidelines, was unreasonable, because such a significant deviation from the Guidelines range should require substantial justification. Brief for Respondent at 8-11. In particular, the Government argues that the Court’s prior holdings call for appellate courts to engage in a proportionality review of sentences imposed by lower courts. Id. at 7. The Government claims proportionality review is consistent with the Sixth Amendment, because it does not require a judge to make additional findings of fact to justify a sentence outside of the Guidelines (though it does not prevent the judge from making such findings); rather, a judge can support the deviation by pointing to atypical facts or policy reasons. Id. at 34-35, 38.
The Government contends that the reasonableness review adopted in Booker is the equivalent of the “old abuse-of-discretion” standard, and that under this standard, a sentence is reasonable if the factors supporting it are sufficient to justify the magnitude of departure. Brief for Respondent at 23. The Government argues that, because Rita held that sentences within the Guidelines range are presumptively reasonable, sentences outside of the Guidelines range cannot be presumed reasonable; thus, the further a sentence is from the Guidelines range, the greater the chance it is unreasonable. Id. The Government denies that such a review would be akin to requiring appellate courts to conduct a de novo review of the sentence, because appellate courts would respect the district court’s role as fact finder and its case-specific findings. Id. at 24.
Finally, the United States also argues that proportionality review best serves Congress’s goal of reducing disparities in sentencing, because it will promote a more balanced and consistent application of the Section 3553 factors. Brief for Respondent at 14, 28. Thus, appellate courts should use the Guidelines as a qualitative benchmark when evaluating sentences, because they reflect the Sentencing Commission’s “expert and reasoned judgment” on how to weigh the Section 3553 factors. Id. at 18-19.
Gall argues that implementation of the proportionality, or extraordinary circumstances, test used by the Eighth Circuit and supported by the United States, would replicate the same constitutional defects that the Court invalidated in Booker, and would result in de novo rather than deferential appellate review in violation of both Booker and Rita. Brief for Petitioner at 8-9. Further, Gall maintains that an extraordinary circumstances test will lead to a presumption that a sentence outside of the Guidelines is unreasonable absent affirmative evidence to the contrary, in violation of the Court’s dictates in Rita. Id. at 10-11. In support of this contention, Gall notes that, in all circuits which have adopted the extraordinary circumstances test, the appellate courts require district courts to support their sentences with supplemental findings. Id. at 11, n.2.
Gall further maintains that the extraordinary circumstances test violates the Sixth Amendment, because it would establish a sentencing range based upon the Guidelines, and require a judge to justify any departure from that range by finding additional extraordinary and compelling facts, rather then simply articulating a valid reason. Brief for Petitioner at 13, 16. He argues this would limit the discretion of judges by forcing them to give the Guidelines special weight in sentencing decisions, and would thus restore the Guidelines to a “de facto mandatory status.” Id. at 14-15.
Finally, Gall argues that the extraordinary circumstances test is not consistent with the reasonableness test established in Booker. Brief for Petitioner at 22-23. Gall argues that the reasonableness review is highly deferential to the sentencing court’s assessment of the Section 3553 factors. Id. Therefore, the appellate court should only overturn a judgment in the case of legal error, or where the sentence imposed was one that “no rational judge in the same position could have potentially imposed.” Id. at 23, 28. However, this standard would probably not advance the Congress’s goal of reducing disparities in sentencing, because it is so deferential to the district court’s judgment. Brief for Petitioner at 27.
The Supreme Court’s decision in this case will significantly influence the future of criminal sentencing, because it will establish a rule governing when and how a district court can sentence outside of the sentencing range prescribed by the United States Sentencing Guidelines. See Brief for Respondent at 12. This decision will expand the Court’s earlier decisions in United States v. Booker and United States v. Rita, and further clarify the interaction between the United States Sentencing Guidelines and the Sixth Amendment. Finally, this decision will determine whether Brian Michael Gall will spend three years on probation or three years in jail.
Edited by: Tim Birnbaum
- Brief Amicus Curiae of Families Against Mandatory Minimums
- Brief Amici Curiae of the Federal Public and Community Defenders and The National Association of Federal Defenders
- Brief Amicus Curiae of the National Association of Criminal Defense Lawyers
- Brief Amici Curiae of the New York Council of Legal Defense Lawyers