U.S. Supreme Court issues two decisions limiting significance of recent attorney guideline documents.

Byline: David Ziemer

On Dec. 10, attorneys across the United States received their copies of the latest version of the federal Sentencing Guidelines from Thomson West.

But on the same morning, the U.S. Supreme Court issued two decisions limiting the significance of those guidelines, and a third narrowing the definition of use of a firearm during a drug offense.

In Gall v. U.S., the Court held that the deferential abuse-of-discretion standard that the appellate courts apply to sentences within the guidelines also applies to sentences outside the guidelines, regardless of whether they are just outside them, or extraordinarily outside them.

The Supreme Court overruled Seventh Circuit precedent it construed as holding that an extraordinary variance must be justified by extraordinary circumstances. U.S. v. Johnson, 427 F.3d 423, 426-427 (7th Cir. 2005).

In the second case, Kimbrough v. U.S., the court held that a district court may deviate from the sentencing guidelines for crack cocaine, based on the disparity between sentences for crack and powder cocaine.

That decision overrules Seventh Circuit precedent, which disallowed a below-guideline sentence based on a district court's disagreement with that disparity. U.S. v. Miller, 450 F.3d 270, 275-276 (7th Cir. 2006).

The third decision issued Dec. 10, Watson v. U.S., held that accepting a firearm as payment for controlled substances does constitute use of a firearm in connection with a drug offense. That holding reaffirms existing Seventh Circuit precedent, however. U.S. v. Westmoreland, 122 F.3d 431 (7th Cir. 1997).

Gall

In 2000, Brian Gall joined an ongoing conspiracy to distribute MDMA (ecstacy), and netted more than $30,000 before voluntarily withdrawing from the conspiracy seven months later.

The district court found that he no longer uses or sells drugs, and has rehabilitated himself. As a result of his rehabilitation, the district court sentenced him to 36 months probation, although the applicable guideline range was 30 to 37 months imprisonment.

The Eighth Circuit reversed, citing the Seventh Circuit's opinion in Johnson with approval, concluding that a 100 percent downward variance must be supported by extraordinary circumstances. U.S. v. Gall, 446 F.3d 884 (8th Cir. 2006).

The Supreme Court granted certiorari, and reversed the Eighth Circuit, in an opinion by Justice John Paul Stevens.

Iterating its holding in U.S. v. Booker, 543 U.S. 220 (2005), that appellate review of sentencing is for reasonableness, the court concluded that both the mathematical formula employed by the Eighth Circuit, and the extraordinary circumstances approach of the Seventh, are incompatible with that standard.

The court wrote, [T]he approaches we reject come too close to creating an impermissible presumption of unreasonableness for sentences outside the Guidelines range (cite omitted).

Reviewing the district court's sentence under the deferential reasonableness...