How do federal courts of appeals apply Booker reasonableness review after Gall?

• Author: Marshall, Anne Louise

1. INTRODUCTION II. THE MODERN SENTENCING REGIME A. United States v. Booker and Rita v. United States B. The Effects of Gall v. United States and Kimbrough v United States III. OVERVIEW OF THE STANDARDS USED A. Abuse of Discretion Standard 1. Ninth Circuit 2. Second Circuit B. Proportional Justification Standard 1. Proportional Justification Circuits 2. Analysis of Two Standards Used Before Gall 3. The Superiority of the Ninth Circuit's Abuse of Discretion Standard IV. PRE-GALL STANDARDS SUMMARY V. GALL REVIEW AND THE NINTH CIRCUIT's STANDARD A. How Gall and Kimbrough Furthered Sentencing Court Discretion B. Post-Gall Standards Survey C. Adoption of the Ninth Circuit's Standard VI. CONCLUSION I. INTRODUCTION

   Since the landmark sentencing case United States v. Booker, (1) in which the Supreme Court deemed advisory the federal Sentencing Guidelines used mandatorily for 18 years, courts have struggled to put in place a sentencing regime that not only respects the newly advisory nature of the Guidelines, but also lends consistency and meaningful appellate review of sentences for reasonableness. The federal Circuits were split into two camps of appellate review standards until recently, with the majority using proportional justification review and the minority using basic abuse of discretion review. In late 2007, the Supreme Court came down on the side of the abuse of discretion standard in Gall v. United States. (2)

   This Note is an overview of federal appellate review of criminal sentencing during the period 2006 through 2008, before and after Gall, in which the Supreme Court decided a reasonable sentence does not need to be justified by extraordinary circumstances solely because it is outside the Sentencing Guidelines range. (3) The paper argues that the appellate courts' review of sentencing was quite limited by the Supreme Court in Gall, but that the Ninth Circuit has practiced a standard of review, abuse of discretion, under which the Circuit's review of criminal sentences for reasonableness remains meaningful and is not wholly dependent on which judge is assigned the case. While the majority of the Circuits are new to totality of the circumstances and abuse of discretion sentencing review, this Note illustrates that they may follow the experience of the Ninth Circuit and two other Circuits that have utilized abuse of discretion review since 2005. Part II of this Note is a summary of sentencing jurisprudence and review methods employed since United States v. Booker, the decision making the Federal Sentencing Guidelines advisory. (4) Part III is a description of the language and methods employed by each Circuit Court of Appeals in evaluating a criminal sentence for reasonableness under the advisory Sentencing Guidelines' factors, found in 18 U.S.C. [section] 3553(a), which includes subjective factors like the defendant's personal characteristics and history, circumstances and seriousness of the crime, and the need to avoid unwarranted sentencing disparities. (5)

   Part IV is a summary of appellate review standards used by each Circuit after Booker and before Gall. The Booker remedial opinion instructs reviewing courts to use the statutory sentencing factors of [section] 3553(a) to determine the reasonableness of a sentence, but it does not detail how reasonableness should be established. (6) Each of the Circuits employs one of two standards of review: "abuse of discretion" or "proportional justification." (7) Under abuse of discretion review, used by the minority of Circuits before Gall, appellate courts examine lower court rulings for procedural and substantive reasonableness, using a calculation of the advisory Sentencing Guidelines range as a yardstick. (8) The courts that use an abuse of discretion standard review Guidelines and non-Guidelines sentences for substantive reasonableness without any differentiation in analysis. (9) The Ninth Circuit uses abuse of discretion review, but unlike the other Circuits, does not apply the Rita presumption--a presumption that any sentence within the Guidelines is reasonable--automatically, to Under proportional justification review, however, an appellate court requires non-Guidelines sentences to be justified by extraordinary circumstances. In proportional justification analyses, the larger a sentence's variance from the Guidelines, the more extraordinary the circumstances must be for the sentence to be considered reasonable. (11)

   Part V of this Note will illustrate why the Ninth Circuit's abuse of discretion standard is more effective in furthering the statutory sentencing goals than the proportional justification review or the abuse of discretion review with an automatic Rita presumption for Guidelines sentences. Proportional justification Circuits should adopt similar language to adapt to the most recent Supreme Court jurisprudence on reasonableness review in Gall and Kimbrough. Achieving Congress' traditional sentencing goals is important because Booker was premised on the idea that the Guidelines are still applicable insofar as sentences can be evaluated on the factors set out in [section] 3553(a). In Booker, the Supreme Court held that the Constitution mandates the criminal justice system prioritize achieving those goals through individualized sentencing based on jury-found facts in addition to the Congressional goal of reducing unwarranted sentencing disparity.

2. THE MODERN SENTENCING REGIME

   1. United States v. Booker and Rita v. United States

      Before January 2005, under the mandatory U.S. Sentencing Guidelines, a court could depart from the prescribed sentencing range in two circumstances: (I) for reasons stated in the Guidelines, or (2) because the court found an aggravating or mitigating circumstance not adequately taken into consideration by the Sentencing Commission. (12) The Guidelines' calculations sometimes required the sentencing judge to find facts that could increase the punishment beyond the statutory maximum sentence available for the violation for which the defendant was convicted. (13) In Booker v. United States, the Supreme Court found that this requirement under the Guidelines conflicted with the Sixth Amendment because it allowed a judge, rather than a jury, to make the sentencing determination. (14) The Court reasoned that the Sixth Amendment requires any fact necessary to support a sentence exceeding the maximum authorized by the facts to be admitted by the defendant in a guilty plea or proved to a jury beyond a reasonable doubt, notwithstanding availability of sentencing departures under federal Guidelines. (15)

      In Booker, the Supreme Court's remedy to this Constitutional conflict was to make the Sentencing Guidelines advisory rather than mandatory, excising from the Federal Sentencing Act the provision establishing Standards of review on appeal and creating a standard of review: reasonableness. (16) Under this standard, a court upholds a sentence if the sentencing court has formulated the sentence according to the [section] 3553(a) factors (17) and the sentence is sufficient, but not greater than necessary to comply with the purposes of the statutory sentencing factors. (18) Under this solution, the Guidelines continue to play a substantial role in sentencing at the district court level. Every Circuit Court of Appeals' review standard requires a Guidelines sentence calculation at the beginning of the sentencing court process. (19) Most district courts have adopted a three-step sentencing process, resulting from the Guidelines calculation and consideration of the sentencing factors of [section] 3553(a). (20) The Guidelines' relationship to statutory law remained in effect after Booker for crimes that have statutory minimum and maximum sentences.

      In Rita v. United States, (21) which was decided in 2006, the Supreme Court elaborated on the new sentencing regime it envisioned. The Court in Rita approved a presumption of reasonableness for sentences within the Guidelines range. (22) This presumption is only relevant to the reasonableness test applied by appeals courts, and is not designed to be part of the procedure employed by courts of first instance. (23) The Court has said the reasonableness standard is comparable to the deferential "abuse of discretion" standard. (24)

      Federal Circuits struggled to find a method for testing the reasonableness of criminal sentences that used the Guidelines to analyze reasonableness but treated the Guidelines as advisory; in other words, a standard that respects the central holdings of Booker and Rita. (25) Booker requires the district courts to treat the Guidelines as advisory, and Rita allows the appellate courts to treat sentences within the Guidelines as presumptively reasonable. (26) By modifying the rote application of the Guidelines calculation as a procedural safeguard only and adding another layer of consideration of the [section] 3553(a) factors to the sentencing process, "Booker requires appellate courts to ensure sentences are both reasoned and reasonable." (27) Booker left intact the sentencing factors of [section] 3553(a), which were meant to create a framework in which courts evaluate the facts relevant to devising a reasoned sentence. (28)

      Booker stands for the proposition that "[t]he only salient question was whether 'the jury's verdict alone ... authorize[d] the sentence.'" (29) However, a record of jury-found facts is not the only thing that can render a sentence reasonable. Appellate courts look at much more than this, (30) and sentences that are authorized by the jury's verdict alone must also be found reasonable as defined by other factors.

      The best way for appellate courts to maintain the advisory nature of the Guidelines and to preserve reasonable sentences that fall outside the Guidelines range is to apply the standard of review used by the Ninth Circuit, called abuse-of-discretion review, as explained infra, Part IV.B.3.

   2. The Effects of Gall v. United States and Kimbrough...