From Booker to Gall: the evolution of the reasonableness doctrine as applied to white-collar criminals and sentencing variances.

• Author: Kannenberg, Casey C.
• Position: Part 1

1. INTRODUCTION II. BACKGROUND A. From There to Here: A Look at the Evolution of the U. S. Sentencing Guidelines 1. The Sentencing Reform Act of 1984 2. Apprendi, Blakely Booker, and the Reasonableness Doctrine 3. Rita and the Presumption of Reasonableness for Within-Guidelines Sentences 4. Gall and the End of the "Extraordinary Circumstances" and "Percentage" Justifications B. Federal District Court Application of the Guidelines Today III. ANALYSIS A. Tomko and Downward Variances: A Qualitative Assessment of Reasonableness 1. The Tomko Standard Announced a. Prison/No Prison Distinction: The Great Divide b. Extraordinariness i. Extraordinary Age or Medical Condition ii. Extraordinary Charitable Works iii. Extraordinary Family Situation iv. Extraordinary Restitution v. Extraordinary Rehabilitation 2. Putting It All Together: Well-Defined Parameters B. White-Collar Criminals and Upward Variances: A Functional Presumption of Reasonableness? 1. Hiding Behind the [sub section] 3553(a) Factors 2. The Eleventh Circuit: Hiding Behind Statutory Maximums 3. An Unclear Picture for Upward Variances IV. RECOMMENDATION A. Well-Defined Standards for Upward Variances B. Raise the Guidelines Ranges for White-Collar Crimes C. Eliminate Hide-Behind Strategies V. CONCLUSION I. INTRODUCTION

   The storm of United States v. Booker (1) has come and gone, leaving in its wake discernible patterns etched into the federal sentencing landscape. This tattooed terrain enjoyed relative tranquility for nearly three years after Booker, with only the minor squall of Rita v. United States (2) altering the scenery. The arrival of Gall v. United States, (3) however, signifies a radical change in the federal sentencing scheme. This Note examines the "calm" after the Booker storm, the resulting patterns in appellate review of district court sentencing practices, and the forecast for the future of such appellate review after Gall.

   Specifically, this Note examines how the U.S. Supreme Court and the circuit courts of appeal are shaping the parameters of the reasonableness doctrine as applied to white-collar criminal sentencing in the post-Booker world. (4) Where do federal appellate judges draw the line when reviewing district court sentences? Are there varying standards contingent upon whether the district court awards a variance and, if so, what are those standards for upward and downward variances? Finally, and most significantly, how does Gall affect the reasonableness doctrine as applied to white-collar criminals and sentencing variances?

   This Note addresses these questions by examining circuit court cases in the three years since Booker. Part II traces the path of the Sentencing Guidelines (the Guidelines) from their inception, through the Booker, Rita, and Gall decisions, and ultimately to their application today in the post-Booker world. Part III examines how the circuit courts apply the Booker reasonableness doctrine to white-collar criminal sentences. Specifically, Part III.A addresses the well-defined parameters for downward variances and how Gall will affect these parameters, while Part III.B focuses on the ambiguous application of the reasonableness standard to upward variances. Part IV suggests that the circuit courts should refine their reasonableness analyses for upward variances to avoid a growing disparity in sentencing for white-collar criminals. If the circuit courts prove unwilling to do this, then Part IV recommends that the Sentencing Commission raise the Guidelines ranges for white-collar crimes. (5)

2. BACKGROUND

   1. From There to Here: A Look at the Evolution of the U.S. Sentencing Guidelines

      1. The Sentencing Reform Act of 1984

         The Sentencing Reform Act of 1984 (6) (the Act) introduced "the most broad reaching reform of federal sentencing in this century." (7) Prior to the Act, a white-collar criminal could expect to receive a light sentence, typically probation (in lieu of actual prison time), a fine, or both. (8) Indeed, "[f]or many years, corporate criminal prosecutions were insignificant in both number and impact." (9) This inadequacy can be traced to the beginning of the Republic, when the Founders entrusted federal judges with a wide degree of discretion in sentencing criminals. (10) Even though prisoner rehabilitation efforts in the early twentieth century limited judicial sentencing discretion somewhat, "[f]or over two hundred years, there was virtually no appellate review of the trial judge's exercise of sentencing discretion." (11) Judicial sentencing discretion, and the resulting indeterminate sentencing practices, created considerable sentencing disparity among similarly situated defendants. (12) It was in this context that Judge Marvin E. Frankel (13) began the sentencing reform movement. (14)

         Judge Frankel's critique (15) of federal sentencing practices culminated in a proposal to create a national sentencing commission that would issue and recommend laws and rules in sentencing. (16) Senator Edward Kennedy, inspired by the work of Judge Frankel, introduced a comprehensive bill in 1975 to establish sentencing guidelines for defendants in federal cases. (17) While his efforts were not immediately successful, in 1983 a coalition of senators and the Reagan Administration introduced bills that Congress ultimately passed as the Sentencing Reform Act of 1984. (18)

         In addition to raising maximum fines for corporate offenders, the most significant aspect of the Act was that it created the U.S. Sentencing Commission (the Commission), (19) which Congress charged with enacting guidelines and sentencing policies for the federal courts. (20) In addition, the Act charged the Commission with recommending changes to criminal statutes to reflect the Commission's perspective on "what motivates and controls criminal behavior." (21) The specific purposes of the Guidelines promulgated by the Commission were (and still are) to: (1) incorporate the underlying purposes of sentencing (i.e., deterrence); (2) provide certainty and fairness in meeting the purposes of sentencing by avoiding unwanted sentencing disparity among offenders with similar characteristics who are convicted of similar conduct, while permitting sufficient judicial flexibility to consider relevant aggravating and mitigating factors; and (3) reflect, to the extent practicable, advancement in the knowledge of human behavior as it relates to the criminal justice process. (22)

         Judicial application of the Guidelines is a two-step process. First, a judge must calculate the total offense level, and then determine the defendant's criminal history category. (23) In calculating the total offense level, a judge must first determine the base level for the offense under Chapter Two of the Sentencing Guidelines Manual. (24) Next, a judge may make adjustments, if warranted, based on the factors outlined in Chapters Two and Three. (25) After a judge applies adjustments, she must then perform the second step of the process: determining the defendant's criminal history category. (26) The criminal history category is calculated by applying a number of points for each prior sentence, taking into account the length of the prior sentence. For example, a judge should add three points for each prior sentence exceeding one year and one month. (27) Criminal history categories range from Category One (zero to one criminal history point) to Category Six (13 or more criminal history points). (28)

         Once a judge has factored in any adjustments and the defendant's criminal history category, the judge must determine the correct Guidelines range for the total calculated offense level. (29) If a judge feels that the resulting Guidelines range does not "adequately reflect the proper punishment for the specific defendant," then she may impose a downward or upward departure. (30) Unless a mandatory minimum or maximum sentence bars the judge from applying a particular sentence, she usually awards a sentence from within the calculated Guidelines range. (31)

         The Guidelines took effect on November 1, 1987. (32) However, the Guidelines soon faced their first major constitutional challenge. (33) Because a large number of district courts held the Act unconstitutional, (34) the U.S. Supreme Court expedited its review of an appeal from a case in the Western District Court of Missouri. (35) In this case, Mistretta v. United States, (36) the Court held that, while the Guidelines were "an unusual hybrid in structure and authority," they were nevertheless constitutional in structure and effect. (37)

      2. Apprendi, Blakely Booker, and the Reasonableness Doctrine

         As Congress passed mandatory minimum sentences in the late 1980s and 1990s, judges began to resent the new restraints on their sentencing discretion. (38) Beginning in 2000, the U.S. Supreme Court decided a series of cases that effectively eliminated mandatory sentencing and returned to courts a high degree of discretionary power. The first of these cases, Apprendi v. New Jersey, (39) involved a challenge of New Jersey's state sentencing guidelines. (40) In this case, the Court held that state sentencing guidelines that allow a judge to enhance a defendant's sentence above the statutory maximum based entirely on judge-found facts violate the defendant's Sixth Amendment right to a jury trial. (41) While this decision only applied to state sentencing guidelines, commentators thought it inevitable that the Supreme Court would soon declare the federal Guidelines unconstitutional. (42)

         The next step toward the abolition of mandatory sentencing came in 2004 with the Supreme Court's decision in Blakely v. Washington. (43) In Blakely, the trial judge found the applicable Guidelines range to be 49-53 months, yet sentenced the defendant to 90 months after finding that the defendant acted with "deliberate cruelty." (44) The Supreme Court held that sentencing a defendant above the mandated Guidelines on the basis of facts not found by a jury violated the defendant's...