Appellate Review of Federal Sentencing Determinations

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In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

A series of decisions clarified the “unreasonableness” standard of appellate review that Booker established for federal sentencing determinations under the now-advisory federal guidelines.1 First, Rita v. United States held that “a court of appeals may apply a presumption of reasonableness to a district court sentence that reflects a proper application of the Sentencing Guidelines.” 2 In other words, if a district court calculates the defendant’s sentencing range correctly and imposes a sentence within that range, it does not violate the Sixth Amendment for the appellate court to presume the reasonableness of the sentence.3 While recognizing that such a presumption would have some tendency to encourage district courts to follow the guidelines, the Supreme Court held that the presumption nevertheless does not violate the jury trial right because it does not go so far as to “forbid” deviation from the guidelines ranges absent judicial fact-finding.4

Whereas Rita concerned appellate review of sentences within the guidelines ranges, the Court took up the matter of appellate review of sentences that deviate from the guidelines (non-guidelines sentences) in Gall v. United States.5 There, the Court reaffirmed that the “unreasonableness” standard of review applies to all federal sentences, including non-guidelines sentences.6 “Appellate courts may . . . consider the extent of a deviation from the Guidelines,” 7 but they may not “apply a presumption of unreasonableness” to non-guidelines sentences.8 Nor may appellate courts apply standards of review that “come too close” to a presumption of unreasonableness, such as a rule that non-guidelines sentences must be supported by “extraordinary circumstances” or a “rigid mathematical formula that uses the percentage of a departure as the standard for determining the strength of the justifications required for a specific sentence.” 9 To subject non-guidelines sentences to additional scrutiny of this sort, the Court reasoned, would too nearly resemble a requirement that sentencing judges follow the guidelines—exactly what Booker struck down.10

Two cases concerned below-guidelines sentences imposed for crack cocaine offenses. In Kimbrough v. United States11 and Spears v. United States,12 the Supreme Court held that district courts have authority to “vary from the crack cocaine Guidelines based on policy disagreement with them, and not simply based on an individualized determination that they yield an excessive sentence in a particular case.” 13 Until 2007, the federal guidelines employed a “100-to-1 ratio” that treated every gram of crack cocaine as equal to 100 grams of powder cocaine for purposes of setting sentencing ranges for cocaine offenses.14 The Supreme Court concluded in both Kimbrough and Spears that the discretion left to district courts under the post-Booker advisory guidelines permits “categorical disagreement” with the crack cocaine provisions by the sentencing court and is subject only to deferential abuse-of-discretion review of the imposition of a particular sentence.15 Accordingly, in both cases, the Court reversed appellate court decisions that treated non-guidelines sentences based on categorical disagreement with the crack cocaine guidelines as invalid per se.16 The Supreme Court did not clarify, however, whether its holding extended beyond the crack cocaine provisions to categorical disagreement with other guidelines provisions.17

1: One narrow aspect of the post-Booker federal guidelines, concerning modifications to already-imposed sentences following a subsequent reduction in the applicable guidelines range, does remain binding. Dillon v. United States, 560 U.S. 817, 819 (2010) (holding that Booker does not require treating as advisory a guidelines provision that “instructs courts not to reduce a term of imprisonment below the minimum of an amended sentencing range [made retroactively applicable] except to the extent the original term of imprisonment was below the range then applicable” ); id. at 828 ( “[S]entence-modification proceedings . . . are not constitutionally compelled. We are aware of no constitutional requirement of retroactivity that entitles defendants sentenced to a term of imprisonment to the benefit of subsequent Guidelines amendments. . . . Viewed that way, [sentence-modification] proceedings . . . do not implicate the Sixth Amendment right to have essential facts found by a jury beyond a reasonable doubt.” ).
2: 551 U.S. 338, 347 (2007).
3: Id. at 350–51.
4: Id. at 352–53 ( “The Sixth Amendment question . . . is whether the law forbids a judge to increase a defendant’s sentence unless the judge finds facts that the jury did not find . . . . A nonbinding appellate presumption that a Guidelines sentence is reasonable does not require the sentencing judge to impose that sentence. Still less does it prohibit the sentencing judge from imposing a sentence higher than the Guidelines provide for the jury-determined facts standing alone.” ) (emphasis in original).
5: 552 U.S. 38 (2007).
6: Id. at 41. The Court equated the “unreasonableness” standard with an abuse of discretion standard. Id. ( “[C]ourts of appeals must review all sentences—whether inside, just outside, or significantly outside the Guidelines range—under a deferential abuse-of-discretion standard.” ).
7: Id. at 47.
8: Id. at 51.
9: Id. at 47.
10: Id. Gall contains perhaps the most comprehensive description of the requirements of appellate review of federal sentences under the post-Booker guidelines: “[The appellate court] must first ensure that the district court committed no significant procedural error, such as failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the [sentencing statute] factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence—including an explanation for any deviation from the Guidelines range. Assuming that the district court’s sentencing decision is procedurally sound, the appellate court should then consider the substantive reasonableness of the sentence imposed under an abuse-of-discretion standard. When conducting this review, the court will, of course, take into account the totality of the circumstances, including the extent of any variance from the Guidelines range. If the sentence is within the Guidelines range, the appellate court may, but is not required to, apply a presumption of reasonableness. But if the sentence is outside the Guidelines range, the court may not apply a presumption of unreasonableness. It may consider the extent of the deviation, but must give due deference to the district court’s decision that the [sentencing statute] factors, on a whole, justify the extent of the variance. The fact that the appellate court might reasonably have concluded that a different sentence was appropriate is insufficient to justify reversal of the district court.” 552 U.S. at 51.
11: 552 U.S. 85 (2007).
12: 555 U.S. 261 (2009).
13: Spears, 555 U.S. at 843; see also Kimbrough, 552 U.S. at 110 ( “[I]t would not be an abuse of discretion for a district court to conclude when sentencing a particular defendant that the crack/powder disparity yields a sentence ‘greater than necessary’ to achieve [the federal sentencing statute’s] purposes, even in a mine-run case.” ).
14: Kimbrough, 552 U.S. at 96–97. The federal guidelines drew the 100-to-1 ratio from the Anti-Drug Abuse Act of 1986, Pub. L. No. 99-570, which used the ratio in setting mandatory minimum sentences for cocaine offenses. Kimbrough, 552 U.S. at 97.
15: Spears, 555 U.S. at 264; Kimbrough, 552 U.S. at 110.
16: Spears, 555 U.S. at 263; Kimbrough, 552 U.S. at 91.
17: In both cases, the Court mainly limited its statements of holding to the crack cocaine guidelines. Spears, 555 U.S. at 265–66 ( “[D]istrict courts are entitled to reject and vary categorically from the crack cocaine guidelines . . . .” ) (emphasis added); Kimbrough, 552 U.S. at 110 (holding that district courts may disregard the “crack/powder disparity” ); but see id. at 91 ( “We hold that, under Booker, the cocaine guidelines, like all other Guidelines, are advisory only, and that the Court of Appeals erred in holding the crack/powder disparity effectively mandatory.” ). The Court also premised its reasoning partly upon considerations unique to the cocaine guidelines. See id. at 109–110 (concluding that the cocaine guidelines “do not exemplify the [Sentencing] Commission’s exercise of its characteristic institutional role” because the Commission based those provisions upon the mandatory minimums in the 1986 Anti-Drug Abuse Act and not upon empirical data).