Vol. 31, No. 4, #4. Federal Sentencing Landscape post-Gall: Tenth Circuit Perspective.

• Author: Author: John D. Olive

Wyoming Bar Journal

2008.

Vol. 31, No. 4, #4.

Federal Sentencing Landscape post-Gall: Tenth Circuit Perspective

Wyoming Bar Journal Issue: August, 2008 Author: John D. Olive Federal Sentencing Landscape post-Gall: Tenth Circuit Perspective

At the Sentencing Guidelines Seminar held in Orlando, Florida, this May, several appellate judges spoke about the profound sense of powerlessness and irrelevance they perceive in their oversight functions in a post-Gall world. While some of their comments were tongue-in-cheek, there is a ring of truth to the idea that federal district court judges are basking in the joy of exercising substantial discretion. Such discretion is hard to fathom for those of us who were around five years ago when the Protect Act severely restrained sentencing judges' ability to depart from the guideline range. Congress nearly prohibited departures in sex offense cases, and placed almost all departures in the "rare" category. Judges were warned their departure rates would be closely monitored.

The rigidity in sentencing dismayed many practitioners. In hindsight, though, the Protect Act was the zenith of the pendulum swing, and the momentum is now headed the other direction, led by a series of Supreme Court decisions, commencing with United States v Booker, 543 U.S. 220 (2005). The Supreme Court held that mandatory guidelines were unconstitutional. Rather than throwing them out completely, the Court rendered the Sentencing Guidelines advisory.

The remedial portion of Booker clarified that sentencing in the federal system commences with a properly calculated guideline range. The Tenth Circuit, in United States v Crockett, 435 F.3d 1305 (10th Cir. 2006), clarified that a properly calculated advisory guideline range is based upon all facts established by a preponderance standard. This procedure offends some, but the important consideration is that this guideline range is advisory, not mandatory. The post-Gall opinion of United States v Todd, 515 F.3d 1128 (10th Cir. 2008), reiterates that a procedural violation occurs if the advisory guideline range is incorrectly calculated.

Federal district judges may not impose sentences within the advisory guideline range without explanation if a defendant has raised a non-frivolous argument for a departure or variance. Ignoring counsel's argument and imposing a...