A Gall-ing Approach to Reasonableness Review: the Eighth Circuit's Sentencing Review in United States v. Gall Exemplifies the Agony (and Ecstasy) Facing the Post-booker Federal Judiciary

• Jurisdiction: United States,Federal
• Citation: Vol. 40
• Publication year: 2022

40 Creighton L. Rev. 353. A GALL-ING APPROACH TO REASONABLENESS REVIEW: THE EIGHTH CIRCUIT'S SENTENCING REVIEW IN UNITED STATES V. GALL EXEMPLIFIES THE AGONY (AND ECSTASY) FACING THE POST-BOOKER FEDERAL JUDICIARY

Creighton Law Review

Vol. 40

INTRODUCTION

The United States Congress enacted the Sentencing Reform Act of 1984 (SRA) in an attempt to remedy sentencing disparities within the federal court system.(fn1) The SRA created the United States Sentencing Commission, which in turn issued the mandatory United States Sentencing Guidelines ("Guidelines") to ease the disparities.(fn2) Over twenty years later in United States v. Booker,(fn3) the United States Supreme Court attempted to resolve the Sixth Amendment issues posed by the mandatory nature of the Guidelines.(fn4) When the Booker Court eventually rendered the Guidelines advisory, it also inferred a standard of reasonableness for appellate review of sentences.(fn5) In the months since the Booker decision, the federal judiciary has imposed sentences in approximately 40,000 cases.(fn6)

In United States v. Gall,(fn7) the United States Court of Appeals for the Eighth Circuit determined a downward variance from an advisory Guidelines range was unreasonable.(fn8) The Gall court presumed a Guidelines sentence was reasonable.(fn9) The Gall court then determined the district court unreasonably departed from the permissible Guidelines sentence since no extraordinary circumstances justified the non-Guidelines sentence.(fn10)

This Note will examine the Eighth Circuit's post-Booker appellate review of sentencing decisions and critique Eighth Circuit methodol-ogy as applied in Gall.(fn11) This Note will first review the facts and holding of Gall.(fn12) This Note will then examine Booker, its progeny in the federal circuits, and applications of reasonableness review in the Eighth Circuit.(fn13) Next, the Note will analyze the effect of a court presuming an advisory Guidelines sentence is reasonable.(fn14) This Note will proceed by exploring the consequences of requiring extraordinary justifications for large variances from the advisory Guidelines.(fn15) In conclusion, this Note will demonstrate the Eighth Circuit's approach to reasonableness review undermines the goal of consistent imposition of federal sentences.(fn16)

FACTS AND HOLDING

In United States v. Gall,(fn17) Brian Michael Gall ("Gall") participated in a conspiracy to distribute methylenedioxymethamphetamine ("MDMA"), popularly known as ecstasy.(fn18) Gall joined the conspiracy in February 2000, when a friend introduced him to Luke Rinderknecht ("Rinderknecht").(fn19) Gall, Rinderknecht, and several others arranged the sale and transfer of ecstasy.(fn20) At the outset, Rinderknecht sold Gall one-hundred ecstasy tablets at a time, which Gall then distributed.(fn21) From February to May 2000, Gall traveled from his home in Iowa City, Iowa to meet with Rinderknecht in Pella, Iowa a total of six times, each time purchasing 100 tablets of ecstasy.(fn22)

Two months after Gall joined the conspiracy, Rinderknecht introduced Gall to Theodore Sauerberg ("Sauerberg") and then moved to California.(fn23) These three then met to discuss the continued operation of the ecstasy distribution ring.(fn24) After this meeting, Gall's involvement in the distribution ring increased.(fn25) In June 2000, one month after the planning session, Sauerberg received 5,000 ecstasy tablets from Rinderknecht.(fn26) Gall then received ecstasy from Sauerberg in increments of 1,000 tablets.(fn27) Individual customers bought ecstasy from Gall, and Gall paid Sauerberg from the proceeds.(fn28) In total, Gall collected $85,000, which Rinderknecht retrieved from Sauerberg after flying in from California.(fn29)

One or two months after the 5,000-tablet June shipment, Rinderknecht mailed another 5,000-tablet package to Iowa, which Sauerberg accepted and dispensed to Gall in increments of 1,000.(fn30) These transactions operated just as before, with Rinderknecht receiving the final $85,000 from Sauerberg.(fn31) Gall knew his patrons sold the ecstasy throughout the community.(fn32) Various estimates put Gall's total earnings from the sale of ecstasy between $30,000 and $40,000.(fn33)

Concerned with Sauerberg's lack of discretion in discussing the system with outsiders, Gall decided to terminate his involvement in the conspiracy.(fn34) Rinderknecht came to Iowa City, and met with Gall, and Gall advised Rinderknecht of his desire no longer to be included in the drug trade.(fn35) After leaving the conspiracy, Gall began studies at the University of Iowa, completed his degree in 2002, and relocated to Arizona.(fn36) In Arizona, Gall believed he had left his criminal conduct in the past.(fn37)

Six months after Gall moved to Arizona, federal agents approached him to discuss his involvement in the Iowa ecstasy distribution.(fn38) Once approached by the agents, Gall admitted he had been a member of the conspiracy.(fn39) On April 28, 2004, a grand jury indicted Gall on a charge of conspiracy to distribute the MDMA tablets.(fn40) Upon learning of the indictment and issuance of an arrest warrant, Gall went back to Iowa and turned himself in.(fn41) On March 2, 2005, Gall entered a guilty plea to one count of conspiracy to distribute MDMA, a Class C felony.(fn42) At sentencing, the government requested a thirty-month jail sentence, but on May 27, 2005, the United States District Court for the Southern District of Iowa sentenced Gall to three years of probation.(fn43) Five days later, Judge Robert Pratt issued a Sentencing Memorandum explaining why the court imposed probation rather than time in prison.(fn44)

In the Sentencing Memorandum, the district court explained that since Gall left the drug trade in September of 2000, the parties agreed the 1999 edition of the United States Sentencing Guidelines, rather than the most recent edition, was applicable, and the government requested the minimum sentence advised by the former.(fn45) In its Sentencing Memorandum, the court adopted the calculations provided in the Presentence Report ("PSR") presented to the court.(fn46) The PSR calculations positioned Gall at an ultimate offense level of nineteen.(fn47) Gall's criminal history was Category I, which, when coupled with the final offense level, suggested a sentencing Guidelines prison term of thirty to thirty-seven months.(fn48)

In meting out Gall's three-year probation, the court first considered the nature and circumstances of Gall's offense.(fn49) The court noted Gall's contributions to the conspiracy were not accompanied by any aggravating factors such as violence or firearms.(fn50) Rather, the lone reason for the offense level was the quantity of ecstasy involved.(fn51)

The court next considered Gall's character and reasoned that Gall's criminal history developed due to drug and alcohol dependency.(fn52) Further, the court recognized the conspiracy offense, as well as each of Gall's previous criminal offenses, occurred at or before the age of twenty-one.(fn53) The court maintained it could not lightly consider Gall's age and relative lack of maturity during the time of the drug distribution.(fn54) The court noted the United States Supreme Court had previously relied on various studies indicating that maturity levels may determine the likelihood of engaging in criminal activity.(fn55) The court conceded the offender's age did not excuse criminal acts, but did merit consideration during sentencing.(fn56) Moreover, the court complimented Gall on his behavior after leaving the ecstasy distribution conspiracy and commended Gall for obtaining a college degree, starting a business, and maintaining his sobriety.(fn57) The court also credited Gall for voluntarily leaving the drug trade.(fn58)

The court then discussed the need for a sentence of probation.(fn59) Explaining that the offense necessitated a sentence reflective of its serious nature, the court stated probation is "a substantial restriction on freedom, it is not forgiveness, and it is not an endorsement of the offense."(fn60) Consistent with statutory provisions, the court recognized Gall's offense was a Class C felony rather than a Class A or B felony for which the Guidelines precluded probation.(fn61) The court stressed that probation did not equate with leniency on its part, pointing out probation required Gall, inter alia, to undergo drug and alcohol screenings, receive clearance for employment and residency changes, and subject himself to severe penalties if he ever violated its terms.(fn62) The court reasoned Gall had consciously made efforts toward a better life; thus, a prison term would be counterproductive.(fn63)

The court concluded its memorandum acknowledging the sentencing Guidelines did not recommend probation in this case.(fn64) However, the court supported its reasoning for probation by citing case law observing that the Guidelines recommendations failed to parallel properly the severity of the offense conduct when based solely on drug quantity.(fn65) The court found the circumstances surrounding Gall's participation in the conspiracy and his character after leaving the conspiracy justified choosing probation over imprisonment.(fn66) The court further reasoned probation complied with the statutory factors set forth in 18 U.S.C. § 3553(a) of the Sentencing Reform Act of 1984 ("SRA").(fn67)

The government appealed the sentence of the...