Supreme Court Argument Report: Justices Tackle Sentencing, Again

Laurel Newby

Law.com

Another Supreme Court term, another chapter in the sentencing saga. Thejustices heard argument Tuesday in two cases that test how muchdiscretion federal district court judges have in sentencing defendantsand examine the standard federal circuit court panels should apply inreviewing those sentences on appeal. At issue in one of the cases: thecontroversial 100:1 ratio used in calculating sentences for traffickingcrack as opposed to powder cocaine.

After the Court's 2005 decision in United States v. Booker madethe U.S. Sentencing Guidelines advisory rather than mandatory and heldthat appeals courts should review sentences for "reasonableness," thecircuits adopted various standards for that review. Most fall under thegeneral category of proportionality review, whereby the more thedistrict court deviates from the guidelines range, the stronger thejustification needed for the variance.

Tuesday's cases, Gall v. United States and Kimbrough v. UnitedStates, pick up where the Court left off last term, when thejustices ruled in Rita v. United States that circuit courts could presume a within-guideline sentence to be reasonable. Asecond sentencing case last term, Claiborne v. United States,concerning circuit court standards for judging reasonableness ofbelow-guidelines sentences, was vacated after oral argument due to thedeath of the petitioner.

In both cases argued Tuesday, district court judges imposedbelow-guidelines sentences for drug offenses. In Gall, thedefendant was sentenced to probation instead of approximately three years of jail time after pleading guilty in a conspiracy to distribute Ecstasy, due to mitigating factorssuch as his voluntary withdrawal from the conspiracy and the fact thathe committed the offense when he was 21 and in college. The 8th U.S.Circuit Court of Appeals found the sentence unreasonable on appeal.

In Kimbrough, the defendant pleaded guilty to drug offensesinvolving both powder and crack cocaine, as well as a firearms offense.The district court judge cited the impact of the 100:1 crack/powderratio, adopted by Congress and implemented by the sentencing guidelines,that treats 1 gram of crack cocaine as equivalent to 100 grams of powdercocaine for sentencing purposes. Stating that applying the ratio andimposing a 19- to 22-year sentence in the case was "ridiculous," thejudge sentenced the defendant to 15 years. On appeal, the 4th Circuitfound the disparity based on the disagreement with the 100:1 ratio "perse unreasonable."

Throughout the argument, some of the justices expressed what seemed tobe their desire to craft a workable set of rules to guide circuit courts'reasonableness review of district court sentencing that wouldaccommodate both sentencing judges' discretion and appellate courts'oversight -- while maintaining some sense of uniformity in sentencing.

Justice Stephen Breyer laid out his objectives early on in the firstargument: "[W]hat I want to figure out here by the end of today is whatare the words that should be written in your opinion by this Court thatwill lead to considerable discretion on [the] part of the district judgebut not totally, not to the point where the uniformity goal is easilydestroyed."

Breyer talked about what he called the "murky curtain" that is"something of a presumption" of unreasonableness for sentences outsideof the guidelines range. This "murky curtain," or uncertain standard, hesaid, "will lead to lawyers making endless arguments about whether ...they're on one side of it or the other. So let's sweep it aside."

Deputy Solicitor General Michael R. Dreeben, who argued for thegovernment in both cases, said the Court would be "sweeping aside theapproach that nine circuits have taken."

"That's correct," Breyer said.

The argument returned again and again to the problem of definingreasonableness in evaluating sentencing factors and results.

Dreeben stated that the district court judge in Kimbrough"thought it was crazy for Congress to treat crack and powder [cocaine]differently. For a judge to say Congress is crazy, I think, is a sort oftextbook example of an unreasonable sentencing factor."

Justice Antonin Scalia repeatedly expressed what seemed to befrustration at the contradiction between the advisory nature of theguidelines and the reality that a judge's deviation from them oftenresults in strict examination on appeal.

Scalia said that though the Court has "made it clear" that theguidelines are advisory, the government's approach to appellate reviewin some circumstances makes them "pretty much mandatory." At one pointhe told Dreeben, "you'rejust blowing smoke when you say that the guidelines are advisory."

Quote of the Day:

Scalia: "Indeed, it might be quite impossible to achieve uniformitythrough advisory [sentencing] guidelines, which is why Congress madethem mandatory."

Runner-Up Quote of the Day -- Also From Scalia:

Justice Ruth Bader Ginsburg, responding to attorney Jeffrey T. Green,who argued for the petitioner in Gall, pointed out the differencebetween an offender who leaves a conspiracy and lets it continue, andone who blows the whistle on a conspiracy.

Green: "Justice Ginsburg, when someone leaves the conspiracy and blowsthe whistle, typically, that individual is not charged ..."

Roberts: "Well, I'm sure that's not always true. I mean, if the leaderof some vast conspiracy is the one who blows the whistle, I suspect hemay well be charged anyway."

Green: "That's true, Your Honor. There are instances in which --"

Scalia: "Lex Luthor might."

Laurel Newby is a senior editor with Law.com.