Doing Kimbrough justice: implementing policy disagreements with the federal sentencing guidelines.

• Author: Michelman, Scott

TABLE OF CONTENTS I. INTRODUCTION II. THE KIMBROUGH POLICY VARIANCE IN THE ADVISORY GUIDELINE SYSTEM A. The Sentencing Revolution of 2005 B. Booker's Implications: Rita, Gall, and Kimbrough III. DISTRICT COURTS' RESPONSES TO KIMBROUGH AND GALL A. Courts' Divergent Approaches to Policy-Variance Procedure B. Underpinnings of the Blended Approach IV. RECONCILING POLICY-BASED AND OFFENDER-BASED VARIANCES A. The Virtues of an Extra Analytical Step B. When the Blended Approach Remains Appropriate C. Practicality V. APPELLATE COURTS' ROLE IN DOING KIMBROUGH JUSTICE VI. CONCLUSION I. INTRODUCTION

In 1987, pursuant to the Sentencing Reform Act of 1984, the new United States Sentencing Commission (Commission) inaugurated a new era in federal sentencing law by promulgating the United States Sentencing Guidelines (Guidelines). (1) The Guidelines are a complex system of federal sentencing rules that instruct judges to find particular aggravating and mitigating facts about each offense and weigh these facts according to a matrix of offense and offender characteristics that specifies a sentencing range expressed in numbers of months' imprisonment (e.g., a range of 57 to 71 months); judicial adherence to the Guidelines was mandatory from 1987 until 2005. (2)

The period of strict Guideline adherence came to an end with the watershed Supreme Court decision United States v. Booker, (3) which rendered the Guidelines advisory instead of mandatory and thereby freed sentencing judges to vary from the Guidelines on the basis of factors specific to individual criminal cases. (4) Following Booker, the Court has clarified the procedures by which an advisory-Guideline sentence ought to be imposed (5) and expanded the substantive reasons for which Guideline variances are permitted. (6) Unfortunately, the Supreme Court has not always given clear and comprehensive guidance about how district courts should carry out their new substantive responsibilities within the procedural framework the Court has prescribed. With respect to one particular aspect of the advisory-Guideline regime--a sentencing court's important power to vary from a Guideline based on a policy disagreement with the Guideline as a whole rather than its application to a particular offender--the Supreme Court's lack of clarity has led to inconsistency among district courts with respect to sentencing procedure, and has spawned sentencing practices that may inhibit district courts from exercising the full range of policy discretion the Supreme Court has authorized. To date, these shortcomings in federal sentencing practice have been little discussed either in academic literature or by sentencing courts themselves. This Article identifies procedural inconsistencies in federal sentencing practice and diminutions of the policy-variance power, and then proposes a new procedure that will facilitate fair and transparent exercise of policy-variance authority.

The divergent procedural practices we aim to address can be traced to two Supreme Court decisions issued on the same day in December 2007. In Kimbrough v. United States, (7) the Court held that sentencing judges could vary not only for individualized reasons specific to an offender and an offense--as was made clear from the start of the advisory-Guideline era, in Booker (8)--but also on the basis of a district court's categorical policy disagreement with the Guidelines. (9) Such a policy-based variance need not be anchored to the facts of a particular case; the Court made clear that this type of variance is permissible even in a "mine-run" (i.e., run of the mill, or average) case. (10)

But on the same day it decided Kimbrough, the Supreme Court, in Gall v. United States, (11) also laid down a specific procedural framework for imposing sentences under the advisory-Guideline regime--and this framework did not include a step for application of a policy-based variance. (12) Today it is clear that both individualized and policy-based variances are permissible--and in fact, policy-based variances have been applied by district courts to a multitude of different types of offenses (13)--but there is no agreement on a procedure for integrating policy-based variances with variances based on individual offender characteristics. (14) In fact, in nearly every case in which district courts have applied policy-based Kimbrough variances, they have done so without analyzing or even mentioning the question of how the policy and individualized considerations interact.

The result is a jurisprudential hodgepodge in which the practical application of Kimbrough varies (no pun intended) from district to district. Some courts attempt to separate out the individual- and policy-based reasons that underlie Guideline variances. But most do not: Many courts merely name their policy disagreement with a Guideline as one among many factors, including factors specific to a given offender and offense, supporting a variance. other courts express disapproval of a Guideline and announce they will afford it "less deference" than other Guidelines, without specifying what effect that determination has on a given sentence. As a result of the inconsistency in sentencing procedures around the country, defendants, lawyers, and appellate courts frequently cannot tell whether courts are exercising the full range of sentencing discretion that is now available to them. Are courts packaging policy-based concerns in the language of individualized consideration because they fear reversal under a procedurally murky Supreme Court jurisprudence in which policy-based variances are simultaneously authorized and omitted from the Court-mandated sentencing procedure? Are courts faithfully applying Kimbrough or sidestepping it? Of practical significance both to the ongoing development of the Guidelines themselves and to the sentencing of individual defendants, does a court's conflation of individual- and policy-based variances produce a sentence that obscures, rather than elucidates, policy problems with the relevant Guideline, and (most concretely) yields too high or low a sentence?

In this Article, we aim both to document and to propose a solution to the tension between the scope of discretion permitted in Kimbrough and the failure of the Gall sentencing framework to identify a procedure for courts to exercise that discretion in the sentencing analysis. First, having examined Kimbrough sentencing decisions from around the country, we analyze how courts have wrestled with Kimbrough against the backdrop of other recent Supreme Court pronouncements on sentencing. Our descriptive conclusion is that courts are divided on a question most of them fail even to acknowledge, much less confront: If, as the Supreme Court has instructed, courts should make sentencing decisions by first calculating the range dictated by the Guidelines and then varying as appropriate based on the individual characteristics of the offender, at what stage of the analysis and on what terms can a court interpose a categorical Kimbrough policy disagreement with the prescribed Guideline range? Unacknowledged divisions over that basic procedural question have led courts to inconsistent practices that can skew sentencing outcomes, obscure the reasons for the imposition of sentences, and minimize a critical aspect of sentencing courts' newfound discretion. We trace the origins of these divisions both to the Supreme Court's recent jurisprudence and to some of the ossified assumptions and practices left over from the pre-Booker era.

Second, we offer a normative prescription we hope will recommend itself to sentencing courts and to the advocates that appear before them. The first component is to urge district courts to reconcile Kimbrough and Gall by taking the approach applied by a small but growing handful of courts around the country: making room for a new step of the sentencing analysis in which policy disagreements can be considered and applied before individual offender characteristics are taken into account. Such a process would not only promote consistency within sentencing procedure and harmony within sentencing law, but also as a substantive matter would ensure that the parties can secure the benefits of the sentencing court's discretion along each of the dimensions the Supreme Court has identified as appropriate for judicial consideration in the new advisory-Guideline regime. In addition, encouraging judicial frankness about the bases for variance would help identify areas of the Guidelines that judges believe are in need of reform and thereby facilitate the dialogue between courts and the Commission that Congress expected when it enacted the Sentencing Reform Act of 1984, (15) and that the Supreme Court has hailed as a salutary by-product of the advisory-Guideline system. (16) The second component of our prescription is to urge appellate courts to refine the existing two-prong appellate standard of review--in which courts review advisory-Guideline sentences for compliance with Gall procedures and for substantive reasonableness--to build in procedural recognition of Kimbrough policy variances and substantive review of the bases for those variances that is both meaningful and sufficiently deferential. A revised standard will ensure that the Guidelines do not functionally revert to the mandatory operation the Supreme Court held unconstitutional in Booker.

Part II of this Article briefly sketches the history of the jurisprudence governing federal sentencing in this age of new discretion, including Booker, Gall, and Kimbrough. Part III sets forth our descriptive thesis about the procedural lacuna between Kimbrough and Gall, catalogues district courts' divergent responses, and explores the substantive implications of the inconsistency in sentencing practice. Part IV explains our central prescription for resolving the apparent tension between Kimbrough and Gall: We propose that courts adopt a uniform framework...