Argument Preview

In Gall v. United States, the Supreme Court again returns to the question of federal judges' authority to decide the punishment for convicted criminals under the Sentencing Guidelines crafted by the United States Sentencing Commission. The specific issue is whether a sentence that is below the bottom of the Guideline range is unlawful, unless it can be justified by "extraordinary circumstances."


As Justice David H. Souter rightly remarked recently (albeit in a dissenting opinion), "Applying the Sixth Amendment to current sentencing law has gotten complicated, and someone coming cold to this case might wonder how we reached this point." The wonderment, perhaps, continues as the Court moves on to further clarify "“ or complicate "“ federal sentencing law.

Since the Supreme Court, in Apprendi v. New Jersey in 2000 began a virtual revolution in the constitutional roles of judges and juries in selecting criminal sentences, the Court has been searching for ways to assure that judges retain discretion but, in using it, do not impinge on the role of the newly empowered juries. The implications, from 2000 on, was that the Court sooner or later would have to sort out jury and judge roles under the federal Sentencing Guidelines, established under the authority of the Sentencing Reform Act of 1984. That was because the Guidelines appeared to allow judges to base some longer sentences on facts that had not been found by the judge, not the jury "“ a seeming threat, under Apprendi, to the jury's primary role under the Sixth Amendment in finding the facts that justify a verdict and thus a sentence keyed to that verdict.

In 2004, in the 5-4 decision in United States v. Booker, the Court found that the federal sentencing regime did in fact, have this very constitutional flaw. The maximum sentence that a judge could impose was the maximum that could be justified by facts determined by the jury in reaching a guilty verdict, and yet the Guidelines seemed to mandate some stiffer sentences based upon findings that the judge made. The Court, in a second majority opinion comprising the remedy part of Booker, found a solution: make the Guidelines advisory, not mandatory, and that would restore judges' traditional discretion on sentencing and the role of the jury was supposedly preserved. It adopted something of an "abuse of discretion" standard for appellate review of federal sentences.

In Booker, the Court laid down the principle that, after a judge had imposed a sentence under the now-advisory Guidelines system, it would be judged on appeal by a standard of "reasonableness." But the Court did not there say what would be reasonable, and what unreasonable. It began sorting that out in the 2006-2007 Term, taking two cases: one to judge whether a sentence was presumed to be reasonable if it was within a Guideline range (Rita v. U.S., 06-5754), and a second one to judge whether a sentence that was below the bottom of the Guideline range would be reasonable (Claiborne v. U.S., 06-5618). Mario Claiborne, however, died before the Court could answer the second question in his case, on below-range sentencing. But, on June 21, 2007, it decided the Rita case by an 8-1 vote, concluding that appeals courts may — but are not required to — apply a presumption that a sentence within a Guideline range is reasonable, with such a presumption not binding; appeals courts, it said, are to treat a judge's choice of sentence within a range with deference. Because the Claiborne case been taken off the docket with his death, the Court agreed on June 11, before its Rita ruling, to grant review of Gall v. United States (06-7949), a below-range case.

Brian Michael Gall is a young (28 years old), and apparently successful businessman, who had a somewhat misspent youth, but went straight. While at the University of Iowa in Ames, he was part of a ring that distributed the illegal drug known as "ecstasy"(or MDMA). He decided, however, to give up the drug business, and continued his education, getting his degree and then moving to Arizona, taking a job in construction. Federal agents approached him there, and asked about the ecstasy ring. He admitted his role, and the federal agents took no action. Later, he moved to Winter Park, Colo. A year after the agents' visit, he was charged with conspiracy to distribute the drug. He returned to Iowa to answer the charges.

He was released, however, and started his own construction business back in Iowa. In March 2005, he pleaded guilty to the conspiracy charge. The Guidelines range for his crime was 30 to 37 months in prison. But the federal judge, basing his decision largely on Gall's conduct since the crime years, set the sentence at 36 months on probation. That sentence, the judge concluded, was "sufficient, but not greater than necessary." Prosecutors appealed the sentence, and the U.S. Court of Appeals for the Eighth Circuit overturned the sentence, concluding that a sentence outside the Guideline range amounted to "an extraordinary reduction" that had to be justified by "extraordinary circumstances." It found the sentence to probation "unreasonable."

Petition for Certiorari

Gall's petition, filed on Nov. 22, 2006, raised a single question: was it "unreasonable," under Booker, for a judge to impose a sentence below a Guideline range unless there was a finding of extraordinary circumstances. The U.S. Solicitor General urged the Court to hold the case until after it had decided the Claiborne case "“ the same position Gall's counsel had taken. Once that case was vacated as moot, the Solicitor General recommended another case for review on the below-range issue. The Court, instead, chose Gall's appeal, granting it on June 11, 2007 (granted simultaneously with Kimbrough v. U.S., 06-6330, another below-range case but involving the Guidelines for crack cocaine, far harsher than those for powder cocaine.) Oral argument is scheduled for Oct. 2, 2007, at 10 a.m., immediately preceding the Kimbrough case.

Merits Briefs

Gall's brief on the merits relied primarily upon a simple argument: that the "extraordinary circumstances" test for a below-range sentence essentially transfers the sentencing discretion from the trial judge to the court of appeals, robbing the judge of the very flexibility in sentencing that the Supreme Court restored in Booker and buttressed in Rita. Just as it would be unconstitutional to presume that a below-range sentence was unreasonable (a point the brief says the government conceded in Rita), it is unconstitutional to use the "extraordinary circumstances" formula as a proxy for a presumption of unreasonableness, the brief contended.

"Implementation of an "extraordinary circumstances' or "proportionality' test will necessarily lead to the same constitutional defects inherent in the mandatory

Guidelines system, which this Court rejected in Booker," Gall's brief asserted That test, it added, "provides that a district court cannot impose a sentence outside the range recommended by the Guidelines unless the judge finds "extraordinary' facts in addition to those reflected in the verdit"

Moreover, the brief said, this test will provoke "a host of statutory problems." The other sentencing factors laid out in the Sentencing Reform Act vest discretion in the sentencing judge, it explained.

In Gall's own case, his brief contended, the Eight Circuit showed no deference to the judge's findings, and in essence engaged in its own assessment. The sentencing judge's conclusions were overturned, according to the brief, not because they were the result of an abuse of discretion, but because they were not the sentence the appeals court would have imposed based on its own independent re-weighing of the Reform Act factors. Some other appeals courts that apply the same test, it added, are actually ordering district juges to sentence within a particular range when the case returns to them.

The Apprendi problem is recurring, the brief claimed, since the Eighth Circuit approach forbids federal judges from sentencing outside the Guidelines absent additional findings of fact, "in violation of the Sixth Amendment."

Thus, the appeal summed up, Gall's probation sentence should be reinstated, because that is what the sentencing judge found to be more appropriate to his particular case and circumstance.

The United States' merits brief is, in its own way, as direct and simple as Gall's was on a different basic proposition. When a federal sentence comes up for review in an appeals court, the brief contended, that court should "apply a principle of proportionality, under which a sentence that significantly varies from the advisory guidelines range should have a correspondingly strong justification." This will enable appeals courts, it said, to iron out "sentencing differences" and promote Congress' goal of "avoiding unwarranted sentencing disparities."

A proportionality principle, it argued, does not amount to a requirement of an "extraordinary" justification. "Only sentences that dramatically vary from the range require substantial justification," the brief explained. There also is no need, it said, that every variation from a Guideline must be supported by a fact beyond what the jury found. "Considerations of policy, as well as facts, can support a variance; the test is the cogency and strength of the rationale, not whether it is fact-based."

In short, the government contended, "proportionality review is a useful tool of appellate review, not a rigid presumption." Courts can avoid unwarrant disparities in sentencing, according to the government, by consulting the Guidelines, "rather than some other benchmark, in assessing whether a sentence is unreasonably severe or lenient."

Another virtue of its approach, the government asserted, was that it allows appeals courts to play a role that district courts cannot: "surveying a broader range of cases and evaluating the cogency and persuasiveness of the district court's justification."

Gall's approach, the brief contended, "would effectively license almost unbounded discretion by sentencing judges, with erratic results that turned on the identity of the particular judge. It is impossible to conceive that the Congress that enacted the Sentencing Reform Act would approve that result."

The balance struck in Gall's case, the brief summed up, was unreasonable. While some lesser sentence that the 30-37 months in prison might have been justified, it argued, "the complete elimination of jail time "“ the most extreme lesser sentence available" simply was beyond the pale.

Amicus briefs have been filed by the National Association of Criminal Defense Lawyers, Families Against Mandatory Minimums, Washington Legal Foundation, New York Council of Defense Lawyers and Federal Public and Community Defenders.


The Supreme Court, even when it voted 8-1 for the result in the Rita case in the 2006-07 Term, was divided in the rationale employed by several Justices However, Justice Stephen G. Breyer's majority opinion spoke definitely for six Justices, including the two newest members of the Court "“ Chief Justice John G. Roberts, Jr., and Justice Samuel A. Alito, Jr. It may be assumed, therefore, that a majority of the Court will try to make its Booker formulation more workable in a pragmatic way when the issue is below-Guidelines rather than within-Guidelines sentencing

The two, though, perhaps are not interchangeable. A within-Guidelines system still appeals to Breyer's sense that the Guidelines regime is well worth preserving — within Sixth Amendment limitations, of course. But can he hold Justices Ruth Bader Ginsburg and John Paul Stevens in a majority when the concept of fitting the punishment to the individual is once more narrowed, as it might well be under either the "extraordinary circumstances" test or the government's proposed "proportionality" test? And what are the chances that a continuingly skeptical Justices Antonin Scalia and Clarence Thomas, still worried that the Sixth Amendment jury trial right remains in some jeopardy in current sentencing doctrine, might attract the Chief Justice and Justice Alito into their sector? The argument, thus, will be closely watched to see whether constitutional principle and pragmatic inclination coincide.

Posted in Gall v. US, Everything Else