Petitioners Brief — Gall v. United States
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No. 06-7949
IN THE
Supreme Court of the United States
BRIAN MICHAEL GALL,
Petitioner,
UNITED STATES OF AMERICA,
Respondent.
On Writ of Certiorari
to the United States Court of Appeals
for the Eighth Circuit
BRIEF FOR THE PETITIONER
MARC MILAVITZ
THE ALTERNATIVE LAW
OFFICE OF MARC MILAVITZ
1733 Canyon Blvd.
Boulder, CO 80302
(303) 442-2166
JEFFREY L. FISHER
STANFORD LAW SCHOOL
559 Nathan Abbott Way
Stanford, CA 94305
(050) 724-7081
SARAH O’ ROURKE SCHRUP
NORTHWESTERN UNIVERSITY
SUPREME COURT PRACTICUM
357 East Chicago Avenue
Chicago, IL 60611
(312) 503-0063
JEFFREY T. GREEN*
QuIN M. SORENSON
PANKAJ VENUGOPAL
BRIAN E. NELSON
SIDLEY AUSTIN LLP
1501 K Street, N.W.
Washington, D.C. 20005
(202) 736-8000
MICHAEL DWYER
DAVID HEMINGWAY
FEDERAL PUBLIC DEFENDER
OFFICE
1010 Market Street
Suite 200
St. Louis, MO 63101
(314) 241-1255
Counsel for Petitioner
July 18, 2007
* Counsel of Record
aN AR nO ET OES
WiLSON-EPES PRINTING Co., INC. — (202) 789-0096 — WasninGTon, D.C. 20002
QUESTION PRESENTED
Whether, when determining the “reasonableness” of a
district court sentence under United States v. Booker, 543
U.S. 220 (2005), it is appropriate to require district courts to
justify a sentence outside the range recommended by the
United States Sentencing Guidelines with a finding of
extraordinary circumstances.
(i)
TABLE OF CONTENTS
SPARE ESO Ue FRI EI ce cccesaccecsscsseses sctnssbscssosesocosons
BPM SP GRP BFIEE FE ve ecesiesisensscoscsocenscsnssnccascesosones
I i tineestdelininlanddoameadembennaiianiiagy:
TT itiiainiehistciiaicistatennereitheisibaciatiaepesnesiinhesiinnines
CONSTITUTIONAL AND STATUTORY PRO-
ey PTD inirasnasicniccnscsnnesnibnsesitivedsnnisisesonts
THE EXTRAORDINARY CIRCUMSTANCES
TEST ESTABLISHES A PRESUMPTION OF
UNREASONABLENESS THAT IS_ CON-
TRARY TO THE HOLDINGS IN BOOKER
I aiid ihierhinliciinciosacitiinntnindiliabaipitiasineneaphidiatnsi
A. The Extraordinary Circumstances Test Vio-
lates The Constitutional Right To A Jury Trial
Under The Sixth Amendment....................:.0005
B. The Extraordinary Circumstances Test Con-
travenes The Sentencing Reform Act.................
C. The Extraordinary Circumstances Test Is
Inconsistent With The “Reasonableness”
Standard Of Appellate Review Adopted In
SIT icdiistlebhenintidaginsiainiididubadscpieddaetiiuiedbitetedidpitctnein
THE DISTRICT COURT’S CHOICE OF A
BELOW-GUIDELINES SENTENCE IN THIS
CASE WAS REASONABLE. ..................00ccsecceseeees
(111)
10
10
12
19
29
iv
TABLE OF CONTENTS - continued
Page
A. The District Court Considered All Relevant
Factors And Imposed The Sentence That Was
“Sufficient But Not Greater Than Necessary”
To Comply With The Purposes Of Sentencing.. 30
B. The District Court’s Choice Of A Below-
Guidelines Sentence Was Supported By
Extraordinary Circumstances. .................c00c00000 35
Sg iesccenssissesihissieiantulaiunibcniesininnaicipiiaeiubbentads 37
Vv
TABLE OF AUTHORITIES
CASES Page
Apprendi v. New Jersey, 530 U.S. 466 (2000)...... 12,13
Blakely v. Washington, 542 U.S. 296 (2004) .. 12, 14, 18
Clark v. Martinez, 543 U.S. 371 (2005)........000000.... 15
Concrete Pipe & Prods. of Cal. Inc. v.
Construction Laborers Pension Trust for S.
eae 23
Cooter & Gell v. Hartmarx Corp., 496 U.S. 384
EEE a 26
Cunningham vy. California, 127 S. Ct. 856
EELS ee a a a eee 12, 18, 19
Koon v. United States, 518 U.S. 81 (1996) ..0........ 23, 24,
26, 28
Pierce v. Underwood, 487 U.S. 552 (1988) .......0.... 26
Raytheon Co. v. Hernandez, 540 U.S. 44 (2003)... 11
Rita v. United States, 127 S. Ct. 2456 (2007) ....... passim
United States vy. Armendariz, 45\ F.3d 352 (Sth
EERE SE ahaa IN ne eee 10
United States v. Bishop, 469 F.3d 896 (10th Cir.
2006), cert. denied, 127 S. Ct. 2973 (2007)......... 10
United States v. Booker, 543 U.S. 220 (2005)...... passim
United States v. Borho, 485 F.3d 904 (6th Cir.
ESTES a ee 16, 20, 21
United States v. Clay, 483 F.3d 739 (11th Cir.
CEES aE a Fee Oe RT ee 36
United States v. Cook, 291 F.3d 1297 (11th Cir
SE eR 24
United States v. Craven, 239 F.3d 91 (ist Cir
EEE ee 35
United States v. Davis, 458 F.3d 491 (6th Cir.
2006), petition for cert. filed, No. 06-7784
LR 10, 11, 16
United States v. DeShon, 183 F.3d 888 (8th Cir.
EEE AT TE 36
vi
TABLE OF AUTHORITIES - continued
Page
United States v. Dean, 414 F.3d 725 (7th Cir.
EE ern eee awe ae oe eS 10, 18
United States v. Ferguson, 456 F.3d 660 (6th Cir
EY Eero SP NEU A Re OLY aD 11
United States v. Gentile, 473 F.3d 888 (8th Cir
RR ee eae enamwe teem Skene Stn tener ames 16, 20
United States v. Givens, 443 F.3d 642 (8th Cir
ARE NA ee a A eS ae on be 36
United States v. Hedgepeth, 434 F.3d 609 (3d
Cir.), cert. denied, 126 S. Ct. 2055 (2006) .......... 17
United States v. Hildreth, 485 F.3d 1120 (10th
Cir. FOBT) ap enenigeenreossdecrevens is iinietneidiitatiateadiiaaia 10, 21
United States v. Howard, 454 F.3d 700 (7th Cir.
a ID a A ee a CREME — a 11,21
United States v. Hurst, 78 F.3d 482 (10th Cir -
Ee ee. NR 24
United States v. Kelley, 359 F. 3d 1302 (10th Cir
EE ee 24
United States v. Kendall, 446 F,3a°782 (8th Cir.
2006), cert. denied, 127 §. Ct. 2954 (2007). a 10
United States v. Kimbrough, No. 06-6330 (U,S.
cert. granted June 11, 2007)... .ccccccceccc cee 16
United States v. Likens, 464 F.3d 823 (8th Cir. .
EE ve ioe Re on Se Se oe 17, 24, 34
United States v. Maloney, 466 F.3d 663 (8th Cir
ei ictetinneniissesinadinssiveieiiuleidelanitieiaisibeclicitatlaealiaiesdtintt Mitts 16
United States v. Marvin, 135 F.3d 1129 (7th Cir
EERE ie ale eo Ew GS ON Ee 24
United States v. Mateo, 471 F.3d 1162 (10th Cir.
2006), cert. denied, 127 S. Ct. 2890 (2007)....... 16, 20
United States v. Matheny, 450 F. 38 $35 (6th Cir.
ET fll en 21
United States v. McMannus, 4 F 3d 871 (Sth
Bo Bitte cnccctentionennadsartaie tt cena memaismmsnsnauitan 14
Vil
TABLE OF AUTHORITIES -— continued
Page
United States v. McVay, 447 F.3d 1348 (11 Cir.
rea aeiaciadioenccnciciiahlenaiiteniineaehh ia aati aa aces 10
United States v. Medearis, 451 F.3d 918 (8th Cir.
Se icadnienecniahieancinenitanibiieniatieteigiinhs vndllasimensiniitictataiaiiinnteies 36
United States vy. Moreland, 437 F.3d 424 (4th
Cir.), cert. denied, 126 S. Ct. 2054 (2006) ........ passim
United States v. Murray, 275 U.S. 347 (1928)........ 33
United States v. Myers, 439 F.3d 415 (8th Cir.
SE nD NE NT OE SNE EO 11,21
United States v. Nelson-Rodriguez, 319 F.3d 12
Ee ee en ee 17
United States v. Newlon, 212 F.3d 423 (8th Cir.
ti iesidaaiasapiieibieiccidei bdiateieiiasRiitiasiiicthta ti ae ass 36
United States v. Pho, 433 F.3d 53 (ist Cir.
SANE Se COIS ae 16, 20
United States v. Pyles, 482 F.3d 282 (4th Cir.
Te Te 36
United States v. Rajwani, 476 F.3d 243 (Sth Cir.),
amended on other grounds, 479 F.3d 904 (Sth
St acitieiapntsibchiseapiinhtichaceniaileraitidas ciliate hi lin 25
United States v. Rattoballi, 452 F.3d 127 (2d Cir.
ee iecicceiecinenesiehltittiilinici ati lake aati alah cic 1]
United States v. Rogers, 400 F.3d 640 (8th Cir.
2005), cert. denied, 126 S. Ct. 1020 (2006)......... 36
United States v. Salinas, 365 F.3d 582 (7th Cir.
EAP Ar eR Senn ON eR 24
United States vy. Smith, 440 F.3d 704 (Sth Cir.
EES LE FE RACES AY ae ae 16
United States v. Smith, 445 F.3d 1 (ist Cir.
LETS Gree oe ce ee ee eae a RS ORS 10
United States v. Spears, 469 F:3d 1166 (8th Cir.
2006), petition for cert. filed, No. 06-9864
I 16
United States v. Stevenson, 396 F.3d 538 (4th
Cir.), cert. denied, 544 U.S. 1067 (2005) ............ 23
Vili
TABLE OF AUTHORITIES ~— continued
Page
United States v. Thurston, 456 F.3d 211 (1st Cir.
2006), petition for cert. filed, 75 U.S.L.W. 3121
(U.S. Sept. 14, 2006) (No. 06-378)... 25
United States v. Tsosie, 376 F.3d 1210 (10th Cir.
2004), cert. denied, 543 U.S. 1155 (2005) .......... 24
United States v. Ture, 450 F.3d 352 (8th Cir.
ELIE SAR MRR Se Urea I, ete Seen NO 17, 25
United States v. Valtierra-Rojas, 468 F.3d 1235
(10th Cir. 2006), cert. denied, 127 S. Ct. 2935
EE ee CEC eee 11
United States vy. Wall, No. 99-1626, 2000 WL
280322 (2d Cir. Mar. 16, 2000)... eee. 24
United States v. Wallace, 458 F.3d 606 (7th Cir.
2006), petition for cert. filed, No. 06-7779
I I 10
United States v. White Face, 383 F.3d 733 (8th
SS MI cihcascsaiccindiniltlsiiebiiciealaleinaii 24
United States v. Williams, 472 F.3d 835 (11th Cir.
ER eC ee ee Pe 16, 20
United States v. Workman, 80 F.3d 688 (2d Cir.
ESS ERE See Aan UN 36
CONSTITUTION AND STATUTES
I |
IA I passim
REE RR a Ne ee eee Nears 1,25
a 1,35
Se ne 3
6S Ra 3
RULE
a EE Ws Ulli icseciecidstimnctdovenenvnsmninlinnishigeatadaians 14
we
1X
TABLE OF AUTHORITIES - continued
LEGISLATIVE HISTORY Page
5 | Eee ne eS 29
SCHOLARLY AUTHORITIES
Albert W. Alschuler, Disparity: The Normative
and Empirical Failure of the Federal
Guidelines, 58 Stan. L. Rev. 85 (2005) ............... 28
!_loyd D. Johnston et al., Monitoring the Future:
National Results on Adolescent Drug Use 2006
Pamela B. Lawrence & Paul J. Hofer, An
Empirical Study of the Application of the
Relevant Conduct Guideline § 1B/.3, 10 Fed.
ny SET innrccninncinmisinsnsensnnnaicstbedibocds 28
OTHER AUTHORITIES
FRENTE 7
NT RP a Reo IY 6
| ETN ES ee eee ae eee ac ee rN er 5,31
aS TE RN ACE ae Rea et 5.3]
| EER ees ae 32
a ac eae ee 5, 32
EES Se oi aes ea PPR 31
ER Rf ree eee ee 5,31
REESE, BI oS Re nee eo ND 5,31
U.S. Sentencing Comm'n, Fifieen Years of
Guidelines Sentencing: An Assessment of How
Well the Federal Criminal Justice System Is
Achieving the Goals of Sentencing Reform
OPINIONS BELOW
The opinion of the United States Court of Appeals for the
Eighth Circuit is reprinted in the Joint Appendix at J.A. 129-
39. It is also available at 446 F.3d 884. The opinion of the
United States District Court for the Southern District of lowa
is reprinted in the Joint Appendix at J.A. 118-27 and is also
available at 374 F. Supp. 2d 758.
JURISDICTION
The United States Court of Appeals for the Eighth Circuit
entered its judgment on May 12, 2006, see J.A. 140, and
denied a petition for rehearing en banc on July 7, 2006, see
J.A. 141. The petition for a writ of certiorari was filed on
November 22, 2006, and granted on June 11, 2007. The
jurisdiction of this Court rests on 28 U.S.C. § 1254.
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED
The Sixth Amendment to the United States Constitution
provides in pertinent part: “In all criminal prosecutions, the
accused shall enjoy the right to a speedy and public trial by an
impartial jury... .”
The relevant portions of the Sentencing Reform Act, as
amended, 18 U.S.C. §$ 3553(a) & (c), 3742(c) & (f), 3582(a),
are included as an appendix to this brief.
STATEMENT OF THE CASE
This case presents the issue that the Court could not address
this past Term because of the unfortunate death of Mario
Claibome (No. 06-5618): whether the extraordinary
circumstances test is inconsistent with United States v.
Booker, 543 U.S. 220 (2005). The test requires that a
sentence which deviates from the range recommended by the
United States Sentencing Guidelines be supported by
2
“extraordinary circumstances.” 446 F.3d at 889 (J.A. 137).
In essence, it presumes such a sentence to be unreasonable in
the absence of a sliding scale of affirmative proof to the
contrary, which depends upon how much the sentence
“deviates” from the Guidelines range. As this Court strongly
suggested in Rita v. United States, 127 S. Ct. 2456 (2007),
this presumption of unreasonableness is wholly inconsistent
with the “across the board” reasonableness standard set forth
in Booker and, therefore, is both unlawful and
unconstitutional. /d. at 2467.
Mr. Gall’s Sentence
While a student at the University of iowa in early 2000, at
the age of 21 and struggling with drugs and alcohol, Brian
Michacl Gall met a man named Luke Rinderknecht. Mr.
Rinderknecht dealt in a drug known scientifically as
methylenedioxymethamphetamine (“MDMA”), popularly
referred to in its tablet form as “ecstasy.” Sent’g Tr. 6-7, 53
(J.A. 66); PSR 7, 14 (Sealed J.A. 151). Ecstasy produces an
immediate psychedelic and energizing effect, ana is a popular
drug among young people. Sec, e.g., Lloyd D. Johnston et
al., Monitoring the Future: National Results on Adolescent
Drug Use 2006, at 35-36 (2007). Mr. Gall began purchasing
tablets of ecstasy from Mr. Rinderknecht and his associates,
both fer his own use and for resale to other college students.
By September 2000, he had distributed several thousand
tablets on behalf of Mr. Rinderknecht and had made $30,000
to $40,000 in profits. Sent’g Tr. 6-7 (J.A. 66); PSR 4, 7-8
(Sealed J.A. 152).
Mr. Gall then decided to change his life. Intending to focus
on his classes, he stopped using drugs and alcohol in
September 2000. He scheduled a meeting with Mr.
Rinderknecht and declared that “he was getting out of the
drug business and wanted nothing more to do with the
conspiracy.” 374 F. Supp. 2d at 761 (J.A. 122); see Sent’g
Tr. 32-33, 44 (J.A. 86); PSR 3-5 (Sealed J.A. 148). Mr.
Rinderknecht thereafter sold no ecstasy to Mr. Gall. and Mr.
3
Gall neither used nor sold ecstasy or any other drug. 374 F.
Supp. 2d at 761-63 (J.A. 123-24); Sent’g Tr. 22-23, 32-33, 44
(J.A. 78, 94-95); PSR 5-7, 14 (Sealed J.A. 148-52). Mr. Gall
continued with his studies and graduated in 2002. He then
moved to Arizona and accepted a job in the construction
industry. PSR 5-7, 15 (Sealed J.A. 148-52, 160-61).
A year later, while still in Arizona, Mr. Gall was
approached by federal law enforcement agents. They asked
whether he had been involved in a conspiracy to distribute
ecstasy. Sent’g Tr. 19-20 (J.A. 75). Mr. Gall frankly
admitted to his involvement with Mr. Rinderknecht. 374 F.
Supp. 2d at 760 n.1 (J.A. 120); Sent’g Tr. 19-22, 30 (J.A. 75).
The agents took no other action at that time.
More than a year later, and four years after his involvement
with Mr. Rinderknecht, the Government charged Mr. Gall
with conspiracy to distribute ecstasy. Indictment (J.A. 8).
Upon learning of the indictment, Mr. Gall voluntarily
returned to Iowa and surrendered to federal authorities.
Sent'g Tr. 19-24, 30 (J.A. 75-79). During a subsequent
debriefing, he again acknowledged his involvement in the
conspiracy and provided information concerning its conduct.
He was then released on his own recognizance. /d. (J.A. 75-
79). He resettled in lowa and has since opened his own
construction business, which has been quite successful and
employed several individuals. 374 F. Supp. 2d at 762-63
(J.A. 123-24); Sent’g Tr. 19-21 (J.A. 75-77); PSR 13 (Sealed
J.A. 157).
On March 2, 2005, shortly after this Court decided Booker,
Mr. Gall pleaded guilty to conspiracy to distribute a
controlled substance. See 21 U.S.C. §§ 841(b)(1)(C), 846.
An accompanying plea agreement recites that the maximum
sentence for the offense is twenty years’ imprisonment, that
there is no applicable mandatory minimum, and that the final
sentence to be imposed is solely within the discretion of the
District Court. Plea Agr. 2-3 (J.A. 13). It also stipulates that,
because Mr. Gall withdrew from the conspiracy in September
a
4
2000, the 1999 version of the Guidelines should apply and
that, in calculating the recommended Guidelines range, Mr.
Gall should be held accountable for 10,000 tablets of ecstasy
~ the total number of tablets distributed by both Mr. Gall and
his co-conspirators during Mr. Gall’s participation in the
conspiracy (even though Mr. Gall himself had distributed less
than that amount). /d. at 2 n.1 (J.A. 13); PSR 4 (Sealed J.A.
146).
A presentence investigation report was prepared in advance
of sentencing. PSR (Sealed J.A. 142-65). It advised that,
under the Guidelines, Mr. Gall should be assigned one
criminal history point’ and that his final offense level, based
on distribution of 10000 ecstasy tablets (and after
adjustments under the “safety valve” and acceptance-of-
responsibility provisions), was 19. The recommended range
of imprisonment was 30 to 37 months. PSR 9-12, 18-20
(Sealed J.A. 153-56, 162-65). Neither party objected to the
report's Guidelines application. Sent’g Tr. 3-5 (J.A. 62-64).
Mr. Gall argued that the statutory factors of 18 U.S.C.
§ 3553(a) as well as the departure provisions of the
Guidelines justified giving him a sentence below the
“advisory” Guidelines range. Def.’s Sent’g Mem. (J.A. 26).
He relied on several mitigating facts: his unilateral and
unprompted post-offense rehabilitation, his age at the time of
the offense, the aberrant nature of his conduct, his
cooperation with authorities, his remorse, his acceptance of
responsibility, and the benefits that his current business was
conferring upon the community. /d. at 8-13 (J.A. 31-35).
' The single criminal history point was assigned to Mr. Gall as a result
of a conviction in December 1997 of improper storage of a firearm,
arising from his failure to close a bag used to store a rifle during a hunting
trip. PSR 10-12 (Sealed J.A. 155-56). No criminal points were assigned
for Mr. Gall’s other two offenses: a conviction in March 1997 of
underage possession of alcohol, for which he paid a fine, and a conviction
in March 2000 of possession of less than an ounce of marijuana, for which
he received a one-year deferred judgment. /d. (Sealed J.A. 155-56).
5
The District Court denied the motion for downward
departure. 374 F. Supp. 2d at 760-61 (J.A. 120). As the
District Court suggested, the Guidelines explicitly discourage
or even prohibit consideration of most of the facts identified
by Mr. Gall. See Guidelines §§ SH1.1, 5H1.4, 5H1.11,
5K2.0(d)(2), SK2.16. However, the District Court stated that
these facts “are more aptly considered under the statutory
factors listed in 18 U.S.C. § 3553(a).” 374 F. Supp. 2d at
760-61 (J.A. 120).
Weighing the factors of § 3553(a), the District Court
concluded that a sentence of probation for three years was
“sufficient, but not greater than necessary,” to satisfy the
relevant purposes of punishment. /d. at 761-64 (J.A. 122-26).
In a detailed and carefully reasoned opinion, the District
Court found that Mr. Gall had entered into the conspiracy as a
result of immaturity and drug addiction, had later voluntarily
withdrawn from the conspiracy and stopped using drugs, had
been completely forthcoming about his involvement in the
crime when approached by law enforcement agents, and had
since become a law-abiding and productive member of
socicty — a finding supported by the “small flood” of letters
from Mr. Gall’s family, friends and work colleagues. /d. at
761-63 (J.A. 122-24). The experienced federal district judge
saw no need to sentence Mr. Gall to a term of imprisonment
in light of his successful and self-initiated rehabilitation and
the low likelihood of recidivism; in fact, the District Court
stated that doing so would negatively impact Mr. Gall’s
progress and would promote “not respect, but derision, of the
law.” Jd. at 763 (J.A. 126).
At the same time, the District Court stressed that a sentence
of probation is “not an act of leniency” but a “substantial
restriction of freedom.” /d. (J.A. 126). The terms of Mr.
Gall’s sentence require him to report regularly to a probation
officer, to submit to searches of his home and person, to
submit to substance abuse testing, and to participate in drug
and mental health treatment as directed by the probation
6
officer. Judgment 2-3 (J.A. 106-107). He is prohibited from
leaving the jurisdiction or transferring employment without
approval from the probation officer. Mr. Gall’s sentence also
bars him from patronizing any establishment engaged
primarily in the sale of alcoholic beverages. Jd. (J.A. 109).
These restrictions, the District Court determined, represent
“just punishment” for the offense and properly balance the
purposes of sentencing. 374 F. Supp. 2d at 761-64 (J.A. 122-
26).
Appellate Review
The Government appealed Mr. Gall’s sentence, and the
Eighth Circuit reversed. 446 F.3d at 885 (J.A. 129).
Characterizing the sentence as a “100% downward variance”
from the Guidelines range, the Eighth Circuit stated that “[a]n
extraordinary reduction must be supported by extraordinary
circumstances.” /d. at 889 (J.A. 137) (quoting United States
v. Dalton, 404 F.3d 1029, 1033 (8th Cir. 2005)). The court of
appeals criticized the sentencing judge for giving “too much
weight” to Mr. Gall’s withdrawal from the conspiracy, his age
at the time of the offense, and his post-offense rehabilitation
and for not “properly weigh[{ing]” the seriousness of the
offense and the need to avoid unwarranted sentencing
disparities. /d. at 889-90 (J.A. 138).
The Eighth Circuit offered a number of specific points in
support of its decision. It reasoned that the chosen sentence
was unwarranted because Mr. Gall had already received a
“significant benefit” from being sentenced under the 1999
version of the Guidelines rather than later versions which
recommended higher sentences for ecstasy distribution, see
id. (J.A. 138) — despite the fact that ex post facto principles
prohibited application of the later versions, see Guidelines
§ 1B1.11. Similarly, the court of appeals asserted that Mr.
Gall had benefited from the District Court’s decision not to
hold him “accountable for quantities of ecstasy distributed by
other members of the conspiracy subsequent to his
withdrawal,” sce 446 F.3d at 890 (emphasis added) (J.A. 138)
7
- although Mr. Gall could not legally have been held
accountable for these quantities, see Guidelines § 1B1.3 cmt.
n.2, illus. c (noting that an individual involved in a drug
conspiracy is accountable only for the drugs distributed
during the period in which he or she has agreed to participate
in the conspiracy). The Eighth Circuit also criticized the
District Court’s observation that Mr. Gall’s immaturity may
have played a role in the offense, see 446 F.3d at 890 (J.A.
138) — particularly its reliance upon studies such as those
Suggesting that “human brain development may not become
complete until the age of twenty-five,” see 374 F. Supp. 2d at
762 n.2 (J.A. 123) — without ever explaining why scientific
literature could not be used to bolster the conclusion that Mr.
Gall’s participation in the conspiracy was aberrant and that he
is unlikely to return to such behavior. Finally, the court of
appeals stated bluntly that the District Court “ignored the
serious health risks ecstasy poses,” see 446 F.3d at 890 (J.A.
138) — even though the District Court plainly acknowledged
during the sentencing hearing that distribution of ecstasy was
a serious offense, see Sent’g Tr. 47, 50 (J.A. 97, 99). Based
on these purported errors in the District Court’s judgment, the
Eighth Circuit deemed the sentence unreasonable. 446 F.3d
at 890 (J.A. 139).
SUMMARY OF ARGUMENT
The Government has conceded, as it must, that a
presumption of unreasonableness for non-Guidelines
sentences is unlawful and unconstitutional. See Brief for
United States at 34-35, Rita, 127 S. Ct. 2456 (No. 06-5754).
And yet the extraordinary circumstances test, as applied by
the Eighth Circuit in reversing the judgment of sentence in
this case, establishes just such a presumption for sentences
outside the Guidelines. Under the test, the courts of appeals
will not, in any case, find a non-Guidelines sentence
reasonable absent affirmative proof in support thereof and
will further require that, the more extensive the deviation
from the recommended range, the greater the affirmative
8
proof — or the more “extraordinary” the circumstances — must
be. This standard is plainly contrary to the Constitution and
the Sentencing Reform Act, as interpreted by this Court in
Booker and Rita.
Implementation of an “extraordinary circumstances” or
“proportionality” test will necessarily lead to the same
constitutional defects inherent in the mandatory Guidelines
system, which this Court rejected in Booker. The Sixth
Amendment is implicated when “the law forbids a judge to
increase a defendant’s sentence uniess the judge finds facts
that the jury did not find (and the offender did not concede).”
Rita, 127 S. Ct. at 2466 (emphasis in original). The
extraordinary circumstances test does nothing less. It
provides that a district court cannot impose a sentence outside
the range recommended by the Guidelines unless the judge
finds “extraordinary” facts in addition to those reflected in the
verdict or plea. For this reason alone, the extraordinary
circumstances test must be rejected.
In addition to its constitutional flaws, the extraordinary
circumstances test also poses a host of statutory problems.
The Sentencing Reform Act vests discretion in the sentencing
judge to weigh the factors and purposes relevant to sentencing
and to decide upon the sentence that is “sufficient but not
greater than necessary” to achieve those ends. § 3553(a).
The extraordinary circumstances test infringes upon this
discretion. It compels the district court to impose sentence
within the range recommended by the Guidelines,
notwithstanding the court's assessment of the relevant factors
and determination of the appropriate sentence.
Moreover, the test violates this Court's admonitions in Rita
and Booker that reasonableness review should be highly
deferential. Under this standard, courts of appeals should
overturn a judgment as “unreasonable” only if the district
court abused its discretion by failing to comply with the
statute or by imposing a sentence that no rational judge in the
same position could have potentially imposed. Courts
9
operating under the extraordinary circumstances test,
however, are exercising de novo review over the sentence and
the district court’s assessment of the facts relevant thereto.
This method of review is indistinguishable from the standard
set forth in the statutory provision specifically excised in
Booker. \n its application, the test effectively reconstructs the
same mandatory Guidelines system that Booker intended to
dismantle.
Application of the extraordinary circumstances test infected
the Eighth Circuit’s opinion in this case. While purporting to
recognize that the judgment of sentence should be reviewed
only for abuse of discretion, the Eighth Circuit in actuality
showed no deference to the District Court’s findings. Relying
on the extraordinary circumstances test, the court engaged in
de novo review to determine whether, in its view, the facts of
the case were sufficiently “extraordinary” to justify a sentence
of probation. The sentence was reversed by the Eighth
Circuit not because it represented an abuse of discretion, but
because it was not the same sentence that the court of appeals
would have imposed according to its independent re-weighing
of the § 3553(a) factors.
The judgment of the District Court was well-supported by
the record. Mr. Gall voluntarily withdrew from the
conspiracy, graduated from college, and thereafter became a
productive member of society. There is no reason to believe
that a sentence of imprisonment was necessary to protect
society or provide “just punishment”; to the contrary, there is
every reason to believe, as the District Court stated, that a
sentence of imprisonment would serve none of the articulated
purposes of punishment, would irrevocably harm Mr. Gall,
and would promote “not respect, but derision, of the law.”
374 F. Supp. 2d at 763 (J.A. 126). The findings of the
District Court fully justify the sentence of probation and, in
fact, constitute “extraordinary circumstances” in support of
the variance, even if that flawed test should have been
applied. The decision of the Eighth Circuit should be
10 . .
reversed with instructions to affirm the judgment of the
District Court.
ARGUMENT
I. THE EXTRAORDINARY CIRCUMSTANCES
TEST ESTABLISHES A PRESUMPTION OF
UNREASONABLENESS THAT IS CONTRARY TO
THE HOLDINGS IN BOOKER AND RITA.
The extraordinary circumstances test establishes a
presumption of unreasonableness for sentences outside the
range recommended by the Guidelines. Under that test, all
sentences outside the recommended range are mvalid unless
the sentencing court finds suppiemental facts that may be
deemed sufficiently “extraordinary” to demonstrate that the
calculated Guidelines sentence. is inappropriate.” See, e.g.,
e
* Eight courts of appeals have expressly adopted the. “extraordinary
circumstances test,” or some, variant thereof. See’ United States v. Smith,
445 F.3d 1, 4 (Ist Cir. 2006); United States v: Moreland, 437 P.3d 424,
434 (4th Cir.), cert. denied, 126 S. Ct. 2054 (2006): United States v.
Armendariz, 451 F.3d 352, 358 (Sth Cir. 2006); United States v. Davis,
458 F.3d 491, 496 (6th Cir. 2006); United States v. Dean, 414 F.3d 725,
729 (7th Cir. 2005), United States v. Kendall, 446 F 3d 782, 785 (8th Cir.
2006), cert. denied, 127 S. Ct. 2973 (2007); United States v. Bishop, 469
F.3d 896, 907 (10th Cir. 2006); United States v. McVay, 447 F.3d 1348,
1357 (11th Cir. 2006). The circuits applying the test have offered varying
formulations of this amorphous test and, indeed, have struggled not only
to define the level of justification necessary to support a non-Guidelines
sentence but even to develop a nomenclature by which to describe their
conclusions. See, e.g., United States v. Hildreth, 485 F.3d 1120, 1127-28
(10th Cir. 2007) (distinguishing among an “extreme,” Rage een 3 and
“significant” variances, which must respectively be suppoftéd by
“extraordinary,” “dramatic,” and “sufficient” justifications); United States
v. Wallace, 458 F.3d 606, 614 (7th Cir. 2006) (stating that a a “World
Series™ variance requires a “World\Senes” justification); cf Transcript of
Oral Argument at 43, United States v. Claiborne, 127 S. Ct. 2245 (2007)
(No. 06-5618) (noting that the “extraordinary circumstance” test “sounds
like a slogan”) (Breyer, J.). But, no matter the name applied, the test
retains the same basic framework in each circuit in which it is applied: it
United States v. Davis, 458 F.3d 491, 496 (6th Cir. 2006). On
review, the court of appeals will assume that sentences
outside the Guidelines are unreasonable in the absence of
such affirmative evidence to the contrary. See id.; United
States v. Myers, 439 F.3d 415, 417-18 (8th Cir. 2006); United
States v. Moreland, 437 F.3d 424, 433 (4th Cir.), cert. denied,
126 S. Ct. 2054 (2006). This is the very definition of a
“presumption.” See, e.g., Raytheon Co. v. Hernandez, 540
U.S. 44, 49-50 n.3 (2003), cited in Rita, 127 S. Ct. at 2463
(“{A] trial-related evidentiary presumption... insist[s] that
one side, or the other, shoulder a particular burden of
persuasion or proof lest they lose their case.”). While the
Government and the courts of appeals have attempted to
characterize the test otherwise - precisely because they
understand the problems inherent in such a presumption’ —
they cannot disguise the test’s fundamental operation in
requiring a greater quantum and quality of evidence to
support a sentence outside the Guidelines range than that
necessary for one within it.
A presumption of unreasonableness conflicts fatally with
this Court’s interpretation of the Sixth Amendment and the
requires any non-Guidelines sentence to be supported by supplemental
findings of the sentencing court. See, e.g., Davis, 458 F.3d at 496 (“| The
farther the judge's sentence departs from the guidelines sentence .. . the
more compelling the justification based on factors in section 3553(a) must
be.”) (quoting Dean, 414 F.3d at 729); see also United States v.
Rattoballi, 452 F.3d 127, 134 (2d Cir. 2006) (stating that circuits applying
the test hold that “district courts [must] offer a more compelling
accounting the farther a sentence deviates from the advisory Guidelines
range’).
‘Eg. Moreland, 437 F.3d at 433-34 (stating that the extraordinary
circumstances test is not a presumption of unreasonableness); United
States v. Ferguson, 456 F.3d 660, 664-65 (6th Cir. 2006) (same); United
States v. Howard, 454 F.3d 700, 703 (7th Cir. 2006) (same); Afvers, 439
F.3d at 417 (same); United States v. Valtierra-Rojas, 468 F.3d 1235, 1239
(10th Cir. 2006) (same), cert. denied. 127 S. Ct. 2935 (2007), see Rita,
1278. Ct. at 2467.
12
Sentencing Reform Act. It forbids district courts from
sentencing Outside the Guidelines absent additional findings
of fact, in violation of the Sixth Amendment; it impinges on
the discretion granted to district courts under the Act; and it
reconstructs the de novo standard of appellate review that this
Court excised in Booker. The presumption of unreason-
ableness, and the extraordinary circumstances test from which
it arises, must be rejected.
A. The Extraordinary Circumstances Test Violates
The Constitutional Right To A Jury Trial Under
The Sixth Amendment.
The Sixth Amendment guarantees that a defendant will
suffer no greater punishment upon conviction than that which
is authorized under governing law based solely on the facts
found by a jury or admitted in a plea. Cunningham v.
California, 127 S. Ct. 856, 860 (2007). A court is therefore
constitutionally prohibited from imposing a sentence above
that authorized exclusively by the verdict or plea. /d.; Blakely
v. Washington, 542 U.S. 296, 303-04 (2004); Apprendi v.
New Jersey, 530 U.S. 466, 490 (2000).
The Court has applied this standard to invalidate sentencing
schemes that forbid the trial judge from imposing sentence
outside a particular range in the absence of additional findings
beyond those reflected in the verdict. In Blakely, state law
established a sentencing range based upon facts reflected in
the guilty verdict or plea and then allowed the judge to
sentence above that range only if he or she made prescribed
findings of fact or found other “substantial and compelling
reasons” for doing so. 542 U.S. at 299-300. In Booker, the
mandatory Guidelines prohibited the judge from imposing
sentence above the “base” range, as determined by the facts
found by the jury or admitted by the defendant, absent factual
findings warranting an enhancement or departure. 543 U.S. at
226-27, 233-34. And, most recently in Cunningham, state
law directed the judge to impose a presumptive “middle term”
sentence, established by reference to the verdict or plea,
13
unless the judge found “circumstances in aggravation” or
“circumstances in mitigation” warranting a sentence in the
“upper term” or the “lower term.” 127 S. Ct. at 862-68. All
of these systems were deemed unconstitutional because they
established a sentencing range based on the facts reflected in
the verdict or plea and then forbade the trial judge from
imposing a sentence above that range in the absence of
additional, judge-made findings of fact. See Rita, 127 S. Ct.
at 2466 (“The Sixth Amendment question, the Court has said,
is whether the law forbids a judge to increase a defendant’s
sentence uniess the judge finds facts that the jury did not find
(and the offender did not concede).”) (emphasis in original).
The extraordinary circumstances test gives rise to a
sentencing system materially indistinguishable from those at
issue in Blakely, Booker, and Cunningham. Under the test,
the only manner in which the sentencing court can impose a
sentence above the base Guidelines range (determined by the
facts reflected in the verdict or plea) is (i) by making
additional findings that enhance the range under the
Guidelines or (ii) by making findings that justify a variance
under § 3553(a). See, e.g., 446 F.3d at 889 (J.A. 136-37). In
either case, the findings increase the maximum punishment to
which the defendant is exposed; yet, they are made by the
judge, not the jury. This violates the “bright-line rule” of
Apprendi: “[A)ny fact that increases the penalty for a crime
beyond the prescribed statutory maximum must be submitted
to a jury, and proved beyond a reasonable doubt.” 530 U.S. at
490.
Indeed, the test imposes a double factfinding requirement in
many cases. Initially, sentencing courts must often find facts
beyond those reflected in the jury’s verdict or the defendant's
plea to establish the Guidelines sentence.’ These findings, if
* Although “over 95% of all federal criminal prosecutions are
terminated by a pica bargain{] and . . . in almost half of the cases that go to
trial there are no sentencing enhancements,” Booker, 543 U.S. at 273-74
14
they increase the permissible sentence above the base range
established by the verdict or plea, constitute a violation of the
-Sixth Amendment. See Booker, 543 U.S. at 234-36. Then, if
the sentence to be imposed is above the Guidelines range, the
test requires the court to find and articulate additional facts in
support thereof. This second level of factfinding serves to
increase the permissible sentence even farther above the base
range and likewise constitutes a violation of the Sixth
Amendment. See, e.g., Blakely, 542 U.S. at 299-300. In this
regard, the test exacerbates the extra-verdict factfinding that
engenders Sixth Amendment questions in the first instance.
The fact that Mr. Gall’s sentence is lower than the
recommended Guidelines range does not diminish the import
of the constitutional questions engendered by an
extraordinary circumstances test. The extraordinary circum-
stances test is structural and systemic: it affects all sentences
outside the Guidelines in the jurisdictions in which it has been
adopted. See, e.g., United States v. McMannus, 436 F.3d
871, 874 (8th Cir. 2006). In this respect (and as explained
further infra), the test cabins the constitutionally mandated
discretion of the sentencing court to treat the Guidelines as
wholly advisory. See Rita, 127 S. Ct. at 2463-67; Booker,
543 U.S. at 246. It requires the sentencing court to give the
Guidelines range “special weight” by necessitating significant
additional findings, and significant additional work, to justify
any “deviation.”
It is no answer to suggest that the Court could ameliorate
constitutional concerns by holding that the test shall apply
only to sentences lower than the base Guidelines range. First,
such a holding (even if it could be somehow justified under
the language and history of the statute, see infra) would raise
(Stevens, J., dissenting in part), it remains the case that many plea
agreements — like the one executed by Mr. Gall, see Plea Agr. (J.A. 12) -
do not address all (or, sometimes, any) of the outstanding factual disputes
material to sentencing, requiring the district judge to resolve those issues
during subsequent proceedings. See Fed. R. Crim. P. 32(f), (g), (i).
15
the significant risk of restoring the Guidelines range to a de
facto mandatory status by emphasizing their “special weight”
at the district court level. See Rita, 127 S. Ct. at 2465-67
(stating that a rule presumptively requiring the district court
to sentence within the Guidelines range would raise
constitutional concerns). Second, this Court expressly
rejected the imposition of such a “one-way ratchet” as a
permissible outcome in Booker. 543 U.S. at 266 (“[W]e do
not see how it is possible to {treat the Guidelines as advisory
in some cases but] leave the[m] as binding in other cases. . . .
We do not believe that such ‘one-way lever{s]’ are com-
patible with Congress’ intent.”’) (internal citation omitted); see
Rita, 127 S. Ct. at 2477 n.2 (Scalia, J., concurring in the
judgment) (“[S]ince reasonableness review should not
function as a one-way ratchet, we must forswear the notion
that sentences can be too low in light of the need to abandon
the concept that sentences can be too high.”’). Finally, the
very fact that the extraordinary circumstances test would
violate constitutional protections in a number of cases, even if
it does not do so here, justifies consideration of the issue in
this case. See Clark v. Martinez, 543 U.S. 371, 380-81
(2005) (“If one of [two plausible statutory constructions]
would raise a multitude of constitutional problems, the other
should prevail — whether or not those constitutional problems
pertain to the particular litigant before the Court.”).
It is also no answer to characterize the extraordinary
circumstances test as merely a requirement that district courts
fully articulate the reasons for non-Guidelines sentences. See
Brief of Respondent at 34, United States v. Claiborne, 127 S.
Ct. 2245 (2007) (No. 06-5618) (“Resp. Claiborne Brief).
While courts of appeals may properly demand articulation of
the specific reasons for sentences outside the Guidelines (just
as they must demand an articulation of reasons even for
sentences inside the Guidelines range), see § 3553(c), the
extraordinary circumstances test goes farther. It requires that
the sentencing court offer not only more explanation, but
16
additional findings of fact to support a sentence outside the
Guidelines and further requires that those facts meet the
qualitative test of being unusual to the point of being
“extraordinary” or “compelling.” See, e.g., United States v.
Maloney, 466 F.3d 663, 668 (8th Cir. 2006) (requiring
“exceptional facts”); Davis, 458 F.3d at 500 (requiring
“extraordinary facts”). Thus, the sentencing court cannot
satisfy the quantitative or qualitative nature of the test merely
by saying or writing more. See Moreland, 437 F.3d at 436
(character-izing district court’s recitation of reasons as
“exemplary” but overturning judgment as unreasonable); see
also, e.g., United States v. Mateo, 471 F.3d 1162, 1170 (10th
Cir. 2006) (requiring “dramatic facts”), cert. denied, 127 S.
Ct. 2890 (2007); United States v. Smith, 440 F.3d 704, 707
(Sth Cir. 2006) (stating that justification should be “fact-
specific”).” Indeed, the Government itself has characterized
the test as requiring the sentencing court to identify “facts” in
support of a sentence outside the Guidelines. Resp.
Claiborne Brief at 36. No reported decision has upheld a
non-Guidelines sentence under the extraordinary circum-
stances test based solely on the facts found by the jury.°
* Moreover, courts have frequently held that a district court may not
vary from the Guidelines based solely on policy disagreements with the
Commission or Congress. F.g., United States v. Gentile, 473 F.3d 888,
892-93 (8th Cir. 2007); see also United States v. Spears, 469 F.3d 1166,
1174-75 (8th Cir. 2006) (en banc) (citing cases); United States v.
Williams, 472 F.3d 835, 838-39 (11th Cir. 2006) (Murphy, J., concurring)
(same); Mateo, 471 F.3d at 1171 (same); United States v. Pho, 433 F.3d
53, 64-65 (Ist Cir. 2006) (same). The Court will address the issue of
whether a district court may consider policy disagreements regarding the
crack-powder ratio in crafting a sentence in United States v. Kimbrough,
No. 06-6330 (U.S. cert. granted June 11, 2007).
* Several courts have gone so far as to suggest that a factor will be
deemed “extraordinary” - so as to justify a variance from the recommend
range — only if it is not adequately taken into consideration in the
Guidelines. See United States v. Borho, 485 F.3d 904, 912-16 (6th Cir.
2007) (criticizing reliance upon medical and mental conditions as grounds
for a non-Guidelines sentence as those factors are discouraged under the
17
Further, most criminal verdicts are gencral in nature, stating
only whether the defendant is guilty or not. Even special
verdicts normally include only those factual inquiries
necessary to establish the minimum elements of the charged
offense and statutory sentencing enhancements. See, e.g.,
United States v. Hedgepeth, 434 F.3d 609, 613-14 (3d Cir.),
cert. denied, 126 S. Ct. 2055 (2006); United States v. Nelson-
Rodriguez, 319 F.3d 12, 46-47 (1st Cir. 2003). The verdict
gencrally says nothing about the particular offender or the
particular offense or whether the defendant's circumstances
differ from those of other defendants convicted of similar
crimes. And verdicts do not, except in capital cases, require
juries to find facts in mitigation. The only means by which a
judge can determine that a case 1s somehow different from the
run of the mine — i.¢., “extraordinary” — ts through additional
findings of fact. Most often this is done by adopting the
presentence investigation report, the allegations of which may
suffer from evidentiary flaws not subject to traditional
adversarial challenge. See, e.z., Booker, 543 U.S. at 304
(Scalia, J., dissenting in part) (criticizing the practice of
“judges determin{ing] ‘real conduct’ on the basis of
bureaucratically prepared, hearsay-riddled presentence
reports” as opposed to “adher[ing] to the old-fashioned
process of having juries find the facts that expose a defendant
to increased prison time”’) (emphasis in original).
Respondent has suggested that the range of factors upon
which a non-Guidelines sentence may be based are broader
than those upon which a traditional Guidelines departure
could be granted. See Resp. Claiborne Brief at 39. This
proposition, even if truc, is irrelevant. The Sixth Amendment
Guidelines); United States v. Likens, 464 F.3d 823, 826 (8th Cir. 2006)
(concluding that issues such as age and drug addiction — because they are
labeled as discouraged factors under the Guidelines — are “not ordinarily
extraordinary circumstances” and cannot support a variance); United
States v. Ture, 480 F.3d 352, 359 (8th Cir. 2006) (because the factors
identified by the district court “weighed heavily in [calculating the|
Guidelines range,” those factors did not support the variance).
18
problem arises not because limitations are placed on the
judge’s discretion to choose among the facts sufficient to
justify an increased sentence, but because the judge is obliged
to make additional findings to authorize the sentence in the
first place. See Blakely, 542 U.S. at 305 (“Whether the
judge’s authority to impose an enhanced sentence depends on
finding a specified fact, one of several specified facts, or any
aggravating fact, it remains the case that the jury’s verdict
alone does not authorize the sentence.) (internal paren-
theticals omitted), guoted in Cunningham, 127 S. Ct. at 865.
Respondent has also attempted to salvage the test by stating
that it applies only to “significant” variances. See Resp.
Claiborne Brief at 38. This is incorrect as a matter of law.
The courts of appeals that have adopted the test most often
apply it whenever the sentence falls outside the Guidelines.
See, e.g., United States v. Dean, 414 F.3d 725, 729 (7th Cir.
2005) (“[T]he farther the judge’s sentence departs from the
guidelines sentence .. . the more compelling the justification
based on factors in section 3553(a) [must be].”); see supra
note 3. More importantly, it is wholly immaterial to the
constitutional inquiry. Whether the court of appeals applies
the test to all sentences outside the Guidelines or only to those
that are somehow determined to be “significantly” outside the
recommended, the result is the same: the court of appeals has
imposed an additional factfinding requirement and a
limitation on the discretion of the district court to impose a
sentence above or below a certain range. See Rita, 127 S. Ct.
at 2466.
The extraordinary circumstances test establishes a
presumption of unreasonableness in violation of the Sixth
Amendment. See id. at 2467; see also Booker, 543 U.S. at
311 (Scalia, J., dissenting in part) (“[A]ny system which held
it per se unreasonable (and hence reversible) for a sentencing
judge to reject the Guidelines is indistinguishable from the
mandatory Guidelines system that the Court today holds
unconstitutional.”). The cure for the constitutional problem
19
lies in the invalidation of the extraordinary circumstances test
in all of its forms. This will render the Guidelines
“genuinely” advisory and give district courts the discretion to
sentence within the statutory range based on a rational
assessment of the relevant factors. Cunningham, 127 S. Ct. at
871. Such an approach would “encounter no Sixth Amend-
ment shoal.” /d.
B. The Extraordinary Circumstances Test Contra-
venes The Sentencing Reform Act.
The Sentencing Reform Act is unambiguous. It directs the
sentencing judge to “consider” the iactors and purposes
relevant to punishment and to “impose” the sentence that is
“sufficient but not greater than necessary” to satisfy those
purposes. Rita, 127 S. Ct. at 2467 (quoting § 3553(a)). The
statute contains no hierarchy of factors and does not mandate
that a district court give greater or controlling weight to the
Guidelines or other considerations. Booker, 543 U.S. at 304-
05 (Scalia, J., dissenting in part) (“The statute provides no
order of priority among all th[{e] factors.”). To the contrary,
as this Court recognized in Rita, the modified statute
contemplates — indeed, requires - that district courts have the
discretion to give the relevant factors and purposes the weight
they rationally deem appropriate in light of the circumstances
of the case. § 3553(a); see Rita, 127 S. Ct. at 2465.
To be sure, the discretion granted to sentencing courts is
not unbounded. Pursuant to the Court’s opinion in Booker,
sentencing courts will look to Congress's articulation of the
sentencing purposes and factors set forth in § 3553(a) and
must give reasons for the sentence imposed, as required by
§ 3553(c), whether that sentence is inside or outside the
Guidelines range. Booker, 543 U.S. at 259-61; see Rita, 127
S. Ct. at 2463-69. The sentencing court must also honor
Congress’s plain directive to impose the sentence that is
“sufficient but not greater than necessary” to achieve the
purposes of sentencing. /d. at 2463 (quoting § 3553(a)). But
it is the sentencing judge, and the sentencing judge alone,
20
who holds the authority to weigh the principles and factors
relevant to punishment and, based upon a rational assessment
of those considerations, to determine the appropriate sentence
in cach individual case. /d.
The extraordinary circumstances test abrogates this
Statutory discretion. By mandating that a district court
impose sentence within the Guidelines range absent
“extraordinary circumstances,” the test effectively forces the
district court to give greater weight to a single factor — the
range recommended by the Guidelines — than to all of the
other factors and purposes listed in § 3553(a). The sentencing
court cannot disagree with the Guidelines or decide that the
policies on which they are based do not deserve weight in a
particular case. See, e.g., United States v. Gentile, 473 F.3d
888, 892-92 (8th Cir. 2007); United States v. Williams, 472
F.3d 835, 838-39 (11th Cir. 2006); Mateo, 471 F.3d at 1171;
United States v. Pho, 433 F.3d 53, 64-65 (1st Cir. 2006).
Rather, it is compelled under the test to accord the Guidelines
controlling authority unless other facts provide affirmative
and “extraordinary” justifications for imposing a sentence
different than the recommended range. See, e.g., United
States v. Borho, 485 F.3d 904, 912-16 (6th Cir. 2007); see
also 446 F.3d at 889 (J.A. 136-37).
The test is also inconsistent with Congress's overarching
command that the District Court must impose the sentence
that is “sufficient but not greater than necessary.” § 3553(a).
This command is neither superfluous statutory language nor a
simple mandate for leniency. It carries strong historical and
moral underpinnings and prohibits punishment that serves no
distinct purpose or may otherwise be deemed gratuitous in
light of the characteristics of the defendant and the nature of
the crime. Brief of Families Against Mandatory Minimums
as Amicus Curiae Supporting Petitioner at 5-12, Rita, 127 S.
Ct. 2456 (No. 06-5754) (“FAMM Brief”). Yet, under the test,
the sentencing court is barred from determining that a
sentence outside the Guidelines would serve the purposes of
se
am
21
punishment in a particular case, unless the facts of the case
can be deemed somehow “extraordinary.” See, e.g., Borho,
485 F.3d at 912-16; see also 446 F.3d at 889 (J.A. 136-37).
This showing will necessarily be difficult to make in the
majority of “ordinary” cases — especially in light of restrictive
circuit court precedent on the issue. See, e.g., United States
v. Howard, 454 F.3d 700, 703 (7th Cir. 2006); United States
v. Matheny, 450 F.3d 633, 642: (6th Cir. 2006); Myers, 439
F.3d at 417; Moreland, 437 F.3d at 433. District courts will
therefore regularly be forced to impose a Guidelines sentence
despite their determination that a lesser (or greater) one would
be “sufficient but not greater than necessary” to meet the
purposes of § 3553(a).
This Court recognized in Booker and Rita that, under the
revised version of the Act, the range recommended by the
Guidelines is merely “advisory.” Rita, 127 S. Ct. at 2467;
Booker, 543 U.S. at 246. While the sentencing court must
“consider” and “consult” the Guidelines, Booker, 543 U.S. at
246, the judge must then be free to determine, based upon a
rational assessment of the § 3553({a) factors, that a different
sentence is “sufficient but not greater than necessary” to
satisfy the purposes of punishment. Rita, 127 S. Ct. at 2462-
65.
A sentencing court operating under the burden of the
extraordinary circumstances test simply cannot make a
reasoned decision based upon its assessment of the statutory
factors, principles, and purposes. Instead, a court contem-
plating a sentence different from the Guidelines range must
engage in a further exercise of finding, specifying, and
articulating — with increasing levels of emphasis (depending
on some undefined measure of distance from the Guidelines
calcu-lation) — additional facts to justify its decision. F.g.,
United States v. Hildreth, 485 F.3d 1120 (10th Cir. 2007).
Heaven help the judge who, despite a careful articulation of
reasons, does not discuss every single one of the statutory
factors under § 3553(a) and make supplemental findings of
22
fact that can be characterized as “extraordinary.” Such
incompleteness is grounds for reversal, see 446 F.3d at 889
(J.A. 137), despite the fact there is no such requirement for
judges who impose sentence within the Guidelines. Such a
double-standard for imposing sentence is expressly rejected
by Rita, see 127 S. Ct. at 2465 (“[T]he sentencing court does
not enjoy the benefit of a legal presumption that the
Guidelines sentence should apply.”), and is_ wholly
inconsistent with Booker, see 543 U.S. at 264 (“The district
courts, while not bound to apply the Guidelines, must consult
those Guidelines and take them into account when
sentencing.”) (emphasis added).
C. The Extraordinary Circumstances Test Is Incon-
sistent With The “Reasonableness” Standard Of
Appellate Review Adopted In Booker.
The extraordinary circumstances test tums = a
constitutionally balanced sentencing regime on its head. In its
current guise, it functions (as before Booker) to permit a court
of appeals to overturn a judgment of sentence solely because
the appellate court would have imposed a different sentence
than the district court. Under the test, appellate courts need
not give deference to the district court’s determination that a
non-Guidelines sentence is appropriate. Rather, they may
exercise essentially de novo review over sentences to
determine whether, in their view, the magnitude of the
variance is justified by “extraordinary circumstances.” See,
e.g , Moreland, 437 F.3d at 433-34.
In Booker, this Court excised from the Sentencing Reform
Act the provision that directed courts of appeals to exercise de
novo review over non-Guidelines sentences to determine
whether they “depart to an unreasonable degree from the
applicable guidelines range.” 543 U.S. at 259-61 (citing 18
U.S.C. § 3742(e)). In place of this provision, the Court held
that courts of appeals should review sentences “across the
board” to determine whether they are “reasonable” in light of
all of the factors and purposes of § 3553(a). /d. This form of
23
review, based on the pre-2003 version of the statute, was
intended to be highly deferential. See id. This standard,
properly construed, contemplates that a judgment will be
overturned on appeal as “unreasonable” only if the district
court abused its discretion by failing to comply with the
statute or by imposing a sentence that no rational judge in the
same position could have potentially imposed. See Rita, 127
S. Ct. at 2465 (noting “our explanation in Booker that
appellate ‘reasonableness’ review merely asks whether the
trial court abused its discretion”); id. at 2470-71 (Stevens, J.,
concurring) (“Booker replaced the de novo standard of review
required by 18 U.S.C. § 3742(e) with an abuse-of-discretion
standard that we called ‘reasonableness’ review.”’) (internal
citation omitted); cf. Concrete Pipe & Prods. of Cal., Inc. v.
Constr. Laborers Pension Trust for S. Cal., 508 U.S. 602, 622
(1993) (in reviewing a finding to determine whether it is
“reasonable,” an appellate court should affirm even when it
would have reached a different result so long as a rational
jurist could have potentially reached the challenged result).
This standard is consonant with the principle, previously
recognized by this Court, that “[{d]istrict courts have an
institutional advantage over appellate courts in making these
sorts of determinations.” Koon v. United States, 518 U.S. 81,
98 (1996) (stating that district courts must have the flexibility
to resolve questions “involving multifarious, fleeting, special,
narrow facts that utterly resist generalization’) (internal
quotes omitted). Only district courts have direct exposure to
the defendant and the opportunity to assess the evidence and
testimony as it is presented, in the context of the entire case.
See United States v. Stevenson, 396 F.3d 538, 543 (4th Cir.)
(“[B]jecause trial courts conduct the factfinding process
repeatedly and routinely, they develop a facility — indeed an
expertise — to which appellate courts should find it wise to
Fy
24
defer."), cert. denied, 544 U:S, 1067 (2005).’ There is
inherent tension among the statutorily enumerated purposes
of punishment, see Rita, 127 S$» Ct. at 2464 (noting that “the
goals of uniformity and proportionality often conflict’)
(emphasis in original), and there is no single “right” sentence
that a court of appeals should dictate in a given case, see
Koon, 518 U.S. at 98. Rather, reconciliation of the
conflicting statutory purposes and choice of the final sentence
are properly left to the sentencing judge, with the court of
appeals refereeing the proceedings to ensure. that, the
judgment is not out of rational bounds. “Rifa, 127 S. Ct. at
2464 (“[Dhifferent judges (nd others) can differ as to how
best to reconcile the disparate ends ef punishment.”)
The cases cited by the C ari in Booker as cnlegittvine
reasonableness review bear this out. These decisions do not
require exceptional circumstafices to. justify variances from
the Guidelines range. See United States v. White, Kace, 383
F.3d 733, 739 (8th Cir. 2004); United States y. Hurst, 78 F.3d
482 (10th Cir. 1996); see also United States v. Tsosie, 376
F.3d 1210, 1218 (10th Cir. 2004), cert. denied, 543 U.S. 1155
(2005); United States v. Kelley, 359 F.3d 1302, 1304-05 (10th
Cir. 2004); United States v. Cook, 291 F.3d 1297, 1302 (11th
Cir. 2002); United States v. Wall, No. 99-1626, 2000 WL
280322, at *3-4 (2d Cir. Mar. 14, 2000); United States v.
Marvin, 135 F.3d 1129, 1136 (7th Cir. 1998). Rather,ahey
recognize that the advisory range, while entitled’ to
consideration, should “inform{] rather than cabin[]_ the
exercise of the judge’s discretion.” Uited-States v. Salinas,
365 F.3d 582, 588-90 (7th Gir. 2004). Just as reasonableness
review in the revocation co is not tethered to the
advisory range, so must en review post-Booker
<
” See also Likens, 464 F.3d at 827 n.| (Bright, J. dissenting) (“In his
tenure as a federal district judge, Judge Pratt [the sentencing judge here]
has sentencéd approximately nin® hundred ninety offenders ..« al! of
whom he has looked in the eyeewhen imposing a sentence.” ).
‘
: >
Si’ -
25
remain unchained to the Guidelines. Bricf of Petitioner at 26,
Rita, 127 S. Ct. 2456 (No. 06-5754).
The standard applied under the extraordinary circumstances
test is materially indistinguishable from the standard applied
under the provision of § 3742(c) excised in Booker. That
provision required appellate courts to review de novo a non-
Guidelines sentence to determine whether it “depart[s] to an
unreasonable degree from the applicable guidelines range.”
§ 3742(e). The extraordinary circumstances test is merely a
surrogate for this excised standard, giving definition to those
sentences that “depart to an unreasonable degree” — that is,
those which are not accompanied by additional, peculiar
circumstances that rise to the level of extraordinary or
compelling. See, e.g., Moreland, 437 F.3d at 433. This is an
express invitation to courts of appeals to impose their own
judgment in the matter, as opposed to deciding (as they
should) only whether the district court’s sentence was
reasonable under the facts at hand. See Rita, 127 S. Ct. at
2483 n.7 (Scalia, J., concurring in the judgment) (“Courts
have no power to add provisions that might be desirable now
that certain provisions have been excised.”’).
The most vivid illustrations of the type of de novo review
exercised by courts of appeals under the extraordinary
circumstances test are found in numerous opinions where the
courts of appeals have instructed district courts that they must
sentence within a particular range on remand. United States
v. Rajwani, 476 F.3d 243, 253 (Sth Cir.) (no more than 92
months* imprisonment), amended on other grounds, 479 F.3d
904 (Sth Cir. 2007); United States v. Thurston, 456 F.3d 211,
220 (Ist Cir. 2006) (no less than 36 months’ imprisonment):
Moreland, 437 F.3d at 437 (no less than 20 years’
imprisonment); see also United States v. Ture, 450 F.3d 352,
359 (8th Cir. 2006) (requiring district court to impose
sentence of imprisonment on remand). That these courts have
taken this step — deciding for themselves the permissible
range of sentences — exposes the pernicious effect of the
26
extraordinary circumstances test. In this fashion, the test
entirely supplants the deference to the district court’s exercise
of judgment that the Court found critical in Booker and Rita.
See Rita, 127 S. Ct. at 2463-66; Booker, 543 U.S. at 260-61.
The test endorses the mistaken view that courts of appeals are
empowered to engage in de novo review of the facts of the
case and to decide for themselves what the appropriate
sentence should be.
Nor does the extraordinary circumstances test find support
in the prior decisions of this Court cited in Booker: Pierce v.
Underwood, 487 U.S. 552 (1988), Cooter & Gell v. Hartmarx
Corp., 496 U.S. 384 (1990), and Koon. These cases
emphasize that, under abuse-of-discretion review, the district
court must be granted deference to assess the evidence and
render judgment based on the individual circumstances of the
case. E.g., Koon, 518 U.S. at 99. Nothing in these decisions
suggests that the court of appeals should weigh the pertinent
factors itself or may direct the district court to give greater or
lesser weight to one of the relevant considerations. As the
Court remarked in Koon: “{I}t is not the role of an appellate
court to substitute its judgment for that of the sentencing court
as to the appropriateness of a particular sentence.” /d. at 97
(quoting Williams v. United States, 503 U.S. 193, 205
(1992)).
The extraordinary circumstances test cannot legally coexist
with the presumption of reasonableness recently upheld in
Rita. The presumption of reasonableness, as this Court noted,
is a purely appellate standard. /d. at 2462-68. It imposes no
limitation on the district court and interferes in no way with
the sentencing judge’s authority under § 3553(a) to impose a
sentence within or without the range recommended by the
Guidelines. /d. It merely acknowledges that, when the
sentencing judge has weighed all of the relevant factors and
has nevertheless determined in the exercise of his or her
discretion that a sentence within the Guidelines range is
appropriate, the court of appeals may generally assume that
bts
27
the sentence represents a “reasonable” exercise of that
discretion. /d.
In Rita, the Court emphasized that one basis for such
confidence in the result lies in the confluence of the district
court’s judgment with that of the Commission. /d. The
validity of this rationale, however, turns on whether the
district court has independently exercised its judgment. See
id. at 2465 (“In determining the merits of these arguments, the
sentencing court does not enjoy the benefit of a legal
presumption that the Guidelines sentence should apply.”).
The extraordinary circumstances test encroaches on this
judgment by mandating that the district court give
presumptive weight to one factor: the range recommended by
the Guidelines. It does not merely “encourage” district courts
to sentence within the Guidelines: it compels them to do so in
the absence of special circumstances.
There is no basis to presume a non-Guidelines sentence
unreasonable. A judge who imposes a sentence outside the
Guidelines thereby indicates that he or she has declined to
adopt the findings and recommendations of the Sentencing
Commission as inconsistent with the needs of the case at bar.
See id. at 2464-65. In such a case, unlike when the judge
imposes sentence within the Guidelines, there is no alignment
of the “judge’s discretionary decision [and] the Commission's
view of the appropriate application of § 3553(a)” and no
reason for an appellate court to assume that the range
recommended by the Guidelines represents the “sufficient but
not greater than necessary” sentence. /d. at 2463-65 (internal
citation omitted). To the contrary, to presume the Guidelines
range to be “correct” would improperly grant greater
deference to the Commission than to the sentencing judge.
who is tasked under the Sentencing Reform Act with crafting
the final sentence in an individual case. /d. In other words,
the test improperly “grant[s] greater factfinding leeway to an
expert agency than to a district judge.” /d.
28
“That the district court retains much of its traditional
discretion does not mean appellate review is an empty
exercise.” Koon, 518 U.S. at 98. Courts of appeals are still
empowered to correct legal error by the district courts and to
ensure that those courts follow the statutory mandate to
consider all relevant factors and determine the sentence that is
“sufficient but not greater then necessary.” See Rita, 127 S.
Ct. at 2462-65. An appellate panel may assess the reasons
given by the district court to assure that they are not irrational
or irrelevant — such as, for instance, a policy that Yankees
fans should receive lighter sentences than Red Sox fans, see
id. at 2473 (Stevens, J., concurring); id. at 2482-83 & n.6
(Scalia, J., concurring in the judgment) — and may overturn
judgments that are so plainly excessive (or unjustifiably
lenient) that a rational judge in the same position could not
have imposed the same sentence. Sce id. at 2462-65.
Rejection of the extraordinary circumstances test is thus
perfectly in accord with this Court’s observation that, even
after Booker, “appellate review[]... would tend to iron out
sentencing differences.” 543 U.S. at 263. There is no need,
nor any statutory basis, to engraft onto the system a
presumption of unreasonablencss in order to compel
compliance with the Guidelines or promote uniformity.”
“Whether the Guidelines themselves are effective in promoting
uniformity 1s open to debate. Mandatory application of the Guidelines has
been shown to exacerbate, not reduce, disparities among sentences in the
federal system. Albert W. Alschuler, Disparity: The Normative and
Empirical Failure of the Federal Guidelines, 58 Stan. L. Rev. 85 (2005),
Pamela B. Lawrence & Paul J. Hofer, An Empirical Studv of the
Application of the Relevant Conduct Guideline § 1B/.3, 10 Fed. Sent’g
Rep. 16 (1997). The Sentencing Commission itself has acknowledged that
the relevant conduct rules give rise to “significant sentencing disparit[ies}”
and that “questions remain about how consistently [they] can be applied.”
U.S. Sentencing Comm'n, Fifieen Years of Guidelines Sentencing. An
Assessment of How Well the Federal Criminal Justice System Is Achieving
the Goals of Sentencing Reform 27, 50 (2004).
29
The legislative history of the Sentencing Reform Act
confirms that Congress expected that sentencing judges
would exercise discretion in individual cases to choose the
appropriate sentence for the defendant, whether or not that
sentence falls outside the Guidelines range. See S. Rep. No.
98-225, at 52 (1983) (“[T]he sentencing judge has an
obligation to consider all the relevant factors in a case and to
impose a sentence outside the Guidelines in an appropriate
case.”); id. at 150 (“The sentencing provisions of the reported
bill are designed to preserve the concept that the discretion of
ihe sentencing judge has a proper place in sentencing and
should not be displaced by the discretion of an appellate
court.”). To the extent that disparities may sometimes result
from full and reasoned application of § 3553(a), these
disparities are not “unwarranted” at all. Rather, they reflect
the proper and intended functioning of the Act, which gives
discretion to the sentencing judge to decide upon the
appropriate sentence. Rita, 127 S. Ct. at 2463. Affirmance of
such sentences, even though they lie outside the Guidelines
range, is thus fully consistent with congressional intent and
the statutory language, which is more than can be said for the
extraordinary circumstances test.
Il. THE DISTRICT COURT’S CHOICE OF A
BELOW-GUIDELINES SENTENCE IN_ THIS
CASE WAS REASONABLE.
Here, the District Court considered the relevant factors
under § 3553(a), imposed the sentence that it determined was
“sufficient but not greater than necessary” to satisfy the
relevant purposes, and offered a thorough explanation for its
decision. The Eighth Circuit failed to give deference to the
District Court’s determination and, instead, reversed the
sentence on the ground that the facts identified by the District
Court were not “extraordinary.” This standard should not
have been applied and, in any event, should have led the court
of appeals to affirm the sentence.
30
A. The District Court Considered All Relevant
Factors And Imposed The Sentence That Was
“Sufficient But Not Greater Than Necessary” To
Comply With The Purposes Of Sentencing.
The District Court in this case imposed a sentence
rationally grounded in the § 3553(a) factors and consistent
with the statute’s command to impose the sentence that is
“sufficient but not greater than necessary” to mect the
purposes of punishment. One need look no further than the
careful sentencing memorandum prepared by the District
Court as confirmation. In the introductory section of that
memorandum, the District Court recognized that, “[iJn
fashioning a sentence that is ‘sufficient, but not greater than
necessary,” it must consider all factors and purposes of
§ 3553(a), which it then listed individually. 374 F. Supp. 2d
at 759-60 (J.A. 118-19). There is no doubt that the District
Court appreciated its duties under the statute.
In compliance with those duties, the District Court started
with an assessment of the range and policies recommended
under the Guidelines. See § 3553(a)(4), (5). It adopted the
findings of the presentence report and concluded that the
recommended range of imprisonment was 30 to 37 months.
374 F. Supp. 2d at 760 (J.A. 119-20). It then denied Mr.
Gall’s motions for a downward departure under the
Guidelines- based upon his age, his cooperation, his
acceptance of responsibility, his remorse, his post-offense
rehabilitation, his voluntary withdrawal, and the “aberrant”
nature of the offense — while noting that these factors could
be “better discussed” and “more aptly considered” under
§ 3553(a). Jd. at 760-61 (J.A. 120-22).
As to the “nature and circumstances of the offense” and
Mr. Gall’s “history and characteristics,” § 3553(a)(1), the
District Court found that Mr. Gall’s conduct did not involve
violence or firearms and “appears to stem from his addictions
to drugs and alcohol.” 374 F. Supp. 2d at 761-62 (J.A. 122).
Mr. Gall was using ecstasy and other drugs regularly when he
3!
met Mr. Rinderknecht, and there is little doubt that his
addictions induced him to participate in the distribution
conspiracy. See Sent’g Tr. at 53 (J.A. 101-02). The District
Court also indicated that Mr. Gall’s offense could be
attributed in part to his immaturity, noting that “all of [Mr.
Gall’s] criminal conduct, including the present offense,
occurred when he was twenty-one-years old or younger.” 374
F. Supp. 2d at 761-62 (J.A. 123). Notably, neither of these
factors — substance abuse and youth — are relevant facts under
the Guidelines. Guidelines § 5H1.1 (“Age (including youth)
is not ordinarily relevant in determining whether a departure
is warranted.”); id. § 5H1.4 (“Drug or alcohol dependence or
abuse is not a reason for a downward departure.”).
Perhaps most important to the District Court’s decision was
another fact that the Guidelines substantially discount: Mr.
Gall’s acceptance of responsibility and _post-offense
rehabilitation. See 374 F. Supp. 2d at 762-64 (J.A. 122-26):
cf. Guidelines § 5K2.0(d)(2) (prohibiting departure based on
“defendant's acceptance of responsibility for the offense’’).
Mr. Gall voluntarily withdrew from the conspiracy in
September 2000,? and when later approached by law
enforcement agents - nearly three vears after the events at
issue — he forthrightly admitted to his involvement in the
crime. Cf. id. § 5K2.16 (stating that voluntary disclosure is
* Mr. Gall’s voluntary withdrawal from the conspiracy may be even
more significant in light of the fact that he had obtained $30,000 to
$40,000 from the scheme. These profits were, as characterized in the
presentence report, “easy money,” PSR at 14 (Sealed J.A. 159), and must
have been highly tempting for someone in Mr. Gall’s position, “from a
working-class family [with] few financial resources,” 374 F. Supp. 2d at
762 n.3 (J.A. 124). Cf Guidelines § SH1.12 ('[C ]ircumstances indicating
a disadvantaged upbringing are not relevant grounds in determining
whether a departure is warranted”). That Mr. Gall, unlike his
codefendants, nevertheless abandoned the venture reflects positively on
his character, even if (as the District Court suggested, see 374 F. Supp. 2d
at 762 n.3 (J.A. 123)) the retention of profits from criminal activity
gencrally militates in favor of punishment.
32
not a ground for departure if it occurs as part of an
investigation). Since the time of the offense, he has graduated
from college, learned a trade, and built a successful business.
Cf. id. § SH1.11 (“[E}mployment-related contributions[] and
similar prior good works are not ordinarily relevant in
determining whether a departure is warranted.”). He has
remained sober and ‘aw-abiding during this period, becoming
a productive member of the community. Cf. id. § 5H1.6
(“[C}]ommunity ties are not ordinarily relevant in determining
whether a sentence should be below the applicable guideline
range.”). The District Court correctly characterized his post-
offense behavior as “exemplary,” prompting a “small flood of
letters from family, friends, and work colleagues attesting to
{Mr. Gall’s] character.” 374 F. Supp. 2d at 762-64 (J.A. 124-
26).
The District Court also addressed the “kinds of sentences
available” and the “need to avoid unwarranted sentence
disparities among defendants with similar records who have
been found guilty of similar conduct.” See § 3553(a)(3), (6).
It noted that the United States Code authorized a sentence of
either probation or imprisonment for the offense of which Mr.
Gall was convicted. 374 F. Supp. 2d at 762-64 (J.A. 124-25);
see PSR 18-19 (Sealed J.A. 162-64). It also reiterated that the
Guidelines generally call for a term of imprisonment of 30 to
37 months for similar offenses committed by defendants in
the same criminal history category. 374 F. Supp. 2d at 762-
64 (J.A. 124-26). Nevertheless, the District Court found that
several considerations, primarily Mr. Gall’s post-offense
rehabilitation, set Mr. Gall apart from other defendants and
warranted a disparate sentence in this case.
No circumstances weighed strongly in favor of
imprisonment. That Mr. Gall had voluntarily withdrawn from
the conspiracy, had terminated his own drug and alcohol
abuse, and had become a productive member of socicty
strongly suggested that he would “neither... retum to
criminal behavior nor [pose] a danger to society.” /d. (J.A.
33
124-26). Indeed, the District Court found that a sentence of
imprisonment would threaten Mr. Gall’s progress and send a
message that the law is “merely a means to dispense harsh
punishment without taking into account the real conduct and
circumstances involved in sentencing.” /d. (J.A. 124-26).
The sentence was therefore consonant with the “sufficient,
but not greater than necessary” provision of § 3553(a), which
strongly muilitates against incarceration without purpose or
beneficial effect for the individual and society. See FAMM
Brief at 5-12. Incarceration of individuals like Mr. Gall
undoubtedly would discourage the very type of withdrawal
and forthright admission that he evinced for the simple reason
that such actions would only result in the same or similar
punishment afforded to those who did not make such efforts.
As the District Court recognized, this would promote “not
respect, but derision, of the law.” 374 F. Supp. 2d at 762-64
(J.A. 124-26).
A sentence of probation was wholly appropriate in this
case. Probation has long been recognized as the best means
by which socicty can impose punishment on an individual
who poses little or no threat of recidivism and for whom
imprisonment would be unjustified and counter-productive.
E.g., United States v. Murray, 275 U.S. 347, 357-58 (1928)
(“Probation is the attempted saving of a man who has taken
one wrong step, and whom the judge thinks to be a brand who
can be plucked from the burning at the time of the imposition
of the sentence.”’). Mr. Gall fits this description. Entirely of
his own volition, he has since shown himself to be willing and
able to conform with governing law and reintegrate into the
community. Imprisonment would be not only unduly
punitive but would in fact harm socicty’s interests by
removing a productive, law-abiding member from its ranks.
The decision not to incarcerate Mr. Gall does not remove
the taint of Mr. Gall’s conviction or its collateral
consequences for his future. These consequences will be
long-lasting for Mr. Gall, who was only 26 years old at the
34
time of sentencing. Mr. Gall will, moreover, be subject to
strict limitations on his freedom of movement and conduct for
the next three years. And, as the District Court noted, he
would “always face[] harsh consequences... if he violates
the conditions of his probationary term.” 374 F. Supp. 2d at
762-64 (J.A. 124-26) (“[PJrobation is not an act of
leniency.”). The District Court plainly acted within its
discretion in finding that a sentence of probation for three
years, with special conditions, satisfied the purposes set forth
in § 3553(a)(2). See United States v. Likens, 464 F.3d 823,
827 (8th Cir. 2006) (Bright, J., dissenting) (“[T]hree years’
probation . . . serve[s] to significantly curtail [the defendant’s]
mobility, activities, drug-use, and personal freedom while
sparing the citizens of this country the expense of
incarcerating a person in poor health who is no danger to
society. Incarceration is not the only, and indeed not even
always the best, means of punishing or deterring crime.”).
The sentence was reversed by the Eighth Circuit not
because it represented an abuse of discretion, but because it
was not the same sentence that the court of appeals would
have imposed. The Eighth Circuit’s opinion asserts that the
District Court “did not properly weigh” the seriousness of the
offense, “placed too much emphasis” on Mr. Gall’s post-
offense rehabilitation, and should have given “significant
weight” to the possibility of unwarranted sentencing
disparities. 446 F.3d at 889-90 (J.A.138-39). These
statements reflect a decided lack of deference to the District
Court’s reasoned judgment.
Most telling is the Eighth Circuit’s bald assertion that “the
record does not show that the district court considered
whether a sentence of probation would result in unwarranted
sentencing disparities.” /d. at 890 (J.A. 139). This is simply
incorrect. The District Court identified this factor explicitly
in its sentencing memorandum as bearing on the appropriate
sentence. 374 F. Supp. 2d at 760 (J.A. 119). It noted that the
Guidelines recommended a range of imprisonment for the
35
offense at issue, and recognized that a sentence of probation
was facially disparate from those imposed in other cases
involving similar conduct. /d. at 764 (J.A. 126). Yet, citing
Statutory policy that “imprisonment is not an appropriate
means of promoting correction and rehabilitation,” § 3582(a),
it found that the disparity was fully warranted by the
particular circumstances of the case, including Mr. Gall’s
exceptional rehabilitation. 374 F. Supp. 2d at 762-64 (J.A.
122-27). The District Court thus did fully consider, and give
appropriate weight to, the “need to avoid unwarranted
sentence disparities among defendants with similar records
who have been found guilty of similar conduct.”
§ 3553(a)(6).” There was thus no abuse of discretion in the
District Court’s judgment, and the sentence should have been
affirmed as reasonable.
B. The District Court’s Choice Of A Below-Guide-
lines Sentence Was Supported By Extraordinary
Circumstances.
Even under de novo review of the type contemplated by the
extraordinary circumstances test and applied by the Eighth
Circuit, the court of appeals erred. Contrary to its conclusion,
the facts of this case — particularly Mr. Gall’s post-offense
rehabilitation — constitute “extraordinary circumstances” that
justify the sentence imposed by the District Court.
Post-offense rehabilitation is extraordinary if it is genuine,
enduring, and undertaken independent of any threat of
criminal sanctions. E.g., United States v. Craven, 239 F.3d
91, 100 (Ist Cir. 2001). Mr. Gall’s rehabilitation is all of
The court of appeals mischaracterized the sentence of probation
imposed on Mr. Gall as a “100° downward variance.” 446 F.3d at 889
(J.A. 137). This is correct only when viewed from the inflexible
standpoint that incarceration was compulsory here. It also presumes that
the range recommended by the Guidelines is the benchmark by which the
final sentence is to be determined, thereby improperly elevating the
Guidelines over the other factors of § 3553(a).
36
these. His withdrawal from the conspiracy was voluntary and
self-motivated (and occurred long before its discovery by
authorities). Cf. United States v. Pyles, 482 F.3d 282, 285,
292 (4th Cir. 2007) (reversing non-Guidelines sentence when
the defendant did not commence rehabilitation until after
arrest); United States v. Givens, 443 F.3d 642, 645 (8th Cir.
2006) (same); United States v. Medearis, 451 F.3d 918, 921
(8th Cir. 2006) (same). He has since completed his university
education, earned a reputation as a reliable and honest
employee, remained sober, and led a law-abiding life. Cf.
Moreland, 437 F.3d at 437 (reversing variance because of the
defendant’s “desultory pursuit of his education and his spotty
employment history”); United States v. Rogers, 400 F.3d 640,
642 (8th Cir. 2005) (reversing variance when the defendant
committed two parole violations), cert. denied, 126 S. Ct.
1020 (2006). These circumstances are demonstrably .
“extraordinary,” and justify the non-Guidelines sentence in
this case pursuant to these precedents. See United States v.
Clay, 483 F.3d 739, 742 (11th Cir. 2007) (upholding variance
when defendant commenced rehabilitation prior to arrest);
United States v. Newlon, 212 F.3d 423, 424-25 (8th Cir.
2000) (upholding departure); United States v. DeShon, 183
F.3d 888, 889, 891 (8th Cir. 1999) (same); United States v.
Workman, 80 F.3d 688, 701-02 (2d Cir. 1996) (same).
CONCLUSION
For the foregoing reasons, the Court should reverse the
decision of the Court of Appeals for the Eighth Circuit and
remand with instructions to affirm the judgment of the
District Court.
MARC MILAVITZ
THE ALTERNATIVE LAW
OFFICE OF MARC MILAVITZ
1733 Canyon Blvd.
Boulder, CO 80302
(303) 442-2166
JEFFREY L. FISHER
STANFORD LAW SCHOOL
559 Nathan Abbott Way
Stanford, CA 94305
(650) 724-708 |
SARAH O'ROURKE SCHRUP
NORTHWESTERN UNIVERSITY
SUPREME COURT PRACTICUM
357 East Chicago Avenue
Chicago, [IL 60611
(312) 503-0063
Respectfully submitted,
JEFFREY T. GREEN*
QUIN M. SORENSON
PANKAJ VENUGOPAL
BRIAN E,. NELSON
SIDLEY AUSTIN LLP
1501 K Street, N.W.
Washington, D.C. 20005
(202) 736-8000
MICHAEL DWYER
DAVID HEMINGWAY
FEDERAL PUBLIC DEFENDER
OFFICE
1010 Market Strect
Suite 200
St. Lours, MO 63101
(314) 241-1255
Counsel for Petitioner
July 18, 2007
* Counsel of Record
ADDENDUM
STATUTORY ADDENDUM
18 U.S.C. § 3553. Imposition of a sentence
(a) Factors to be considered in imposing a sentence.—The
court shall impose a sentence sufficient, but not greater than
necessary, to comply with the purposes set forth in paragraph
(2) of this subsection. The court, in determining the particular
sentence to be imposed, shall consider—
(1) the nature and circumstances of the offense and the
history and characteristics of the defendant;
(2) the need for the sentence imposed—
(A) to reflect the seriousness of the offense, to pro-
mote respect for the law, and to provide just
punishment for the offense;
(B) to afford adequate deterrence to criminal con-
duct;
(C) to protect the public from further crimes of the
defendant; and
(D) to provide the defendant with needed education-
al or vocational training, medical care, or other
correctional treatment in the most effective manner;
(3) the kinds of sentences available;
(4) the kinds of sentence and the sentencing range estab-
lished for—
(A) the applicable category of offense committed by
the applicable category of defendant as set forth in
the guidelines-
(1) issued by the Sentencing Commission pur-
suant to section 994(a)(1) of tithe 28, United
States Code, subject to any amendments made
to such guidelines by act of Congress (regard-
less of whether such amendments have yet to be
incorporated by the Sentencing Commission
2
into amendments issued under section 994(p) of
title 28); and
(ii) that, except as provided in section 3742(g),
are in effect on the date the defendant is
sentenced; or
(B) in the case of a violation of probation or super-
vised release, the applicable guidelines or policy
Statements issued by the Sentencing Commission
pursuant to section 994(a)(3) of title 28, United
States Code, taking into account any amendments
made to such guidelines or policy statements by act
of Congress (regardless of whether such amend-
ments have yet to be incorporated by the Sentencing
Commission into amendments issued under section
994(p) of title 28);
(5) any pertinent policy statement—
(A) issued by the Sentencing Commission pursuant
to section 994(a)(2) of title 28, United States Code,
subject to any amendments made to such policy
statement by act of Congress (regardless of whether
such amendments have yet to be incorporated by the
Sentencing Commission into amendments issued
under section 994(p) of title 28); and
(B) that, except as provided in section 3742(g), is in
effect on the date the defendant is sentenced. '
(6) the need to avoid unwarranted sentence disparities
among defendants with simiiar records who have been
found guilty of similar conduct; and
(7) the need to provide restitution to any victims of the
offense.
* * * *
' So in original. The period probably should be a semicolon.
3
(c) Statement of reasons for imposing a sentence.-—The court,
at the time of sentencing, shall state in open court the reasons
for its imposition of the particular sentence, and, if the
sentence—
(1) is of the kind, and within the range, described tn
subsection (a)(4) and that range exceeds 24 months, the
reason for imposing a sentence at a particular point
within the range; or
(2) is not of the kind, or is outside the range, described
in subsection (a)(4), the specific reason for the impo-
sition of a sentence different from that described, which
reasons must also be stated with specificity in the written
order of judgment and commitment, except to the extent
that the court relies upon statements received in camera
in accordance with Federal Rule of Criminal Procedure
32. In the event that the court relies upon statements
received in camera in accordance with Federal Rule of
Criminal Procedure 32 the court shall state that such
Statements were so received and that it relied upon the
content of such statements.
If the court does not order restitution, or orders only partial
restitution, the court shall include in the statement the reason
therefor. The court shall provide a transcription or other
appropriate public record of the court’s statement of reasons,
together with the order of judgment and commitment, to the
Probation System and to the Sentencing Commission,,’ and, if
the sentence includes a term of imprisonment, to the Bureau
of Prisons.
* * * *
‘So in original. The second comma probably should not appear.
4
18 U.S.C. § 3742. Review of a sentence
* * * *
(ec) Consideration.—Upon review of the record, the court of
appeals shall determine whether the sentence—
(1) was imposed in violation of law;
(2) was imposed as a result of an incorrect application of
the sentencing guidelines;
(3) is outside the applicable guideline range, and
(A) the district court failed to provide the written
statement of reasons required by section 3553(c);
(B) the sentence departs from the applicable guide-
line range based on a factor that—
(1) does not advance the objectives set forth in
section 3553(a)(2); or
(11) is not authorized under section 3553(b); or
(111) is not justified by the facts of the case; or
(C) the sentence departs to an unreasonable degree
from the applicable guidelines range, having regard
for the factors to be considered in imposing a
sentence, as set forth in section 3553(a) of this ttle
and the reasons for the imposition of the particular
sentence, as stated by the district court pursuant to
the provisions of section 3553(c); or
(4) was imposed for an offense for which there is no
applicable sentencing guideline and is_ plainly
unreasonable.
The court of appeals shall give due regard to the opportunity
of the district court to judge the credibility of the witnesses,
and shall accept the findings of fact of the district court unless
they are clearly erroneous and, except with respect to
determinations under subsection (3)(A) or (3)(B), shall give
5
due deference to the district court's application of the
guidelines to the facts. With respect to determinations under
subsection (3)(A) or (3){B), the court of appeals shall review
de novo the district court's application of the guidelines to the
facts.
(f) Decision and disposition.-—If the court of appeals deter-
mines that —
(1) the sentence was imposed in violation of law or
imposed as a result of an incorrect application of the
sentencing guidelines, the court shall remand the case
for further sentencing proceedings with such instructions
as the court considers appropriate;
(2) the sentence is outside the applicable guideline range
and the district court failed to provide the required
statement of reasons in the order of judgment and com-
mitment, or the departure is based on an impermissible
factor, or is to an unreasonable degree, or the sentence
was imposed for an offense for which there is no
applicable sentencing guideline and is plainly unreason-
able, it shall state specific reasons for its conclusions
and—
(A) if it determines that the sentence is too high and
the appeal has been filed under subsection (a), it
shall set aside the sentence and remand the case for
further sentencing proceedings with such instruct-
ions as the court considers appropriate, subject to
subsection (g);
(B) if it determines that the sentence is too low and
the appeal has been filed under subsection (b), it
shall set aside the sentence and remand the case for
further sentencing proceedings with — such
instructions as the court considers appropriate,
subject to subsection (g):
6
(3) the sentence is not described in paragraph (1) or (2),
it shall affirm the sentence.
* * * *
18 U.S.C. § 3582. Imposition of a sentence of imprisonment
(a) Factors to be considered in imposing a term of imprison-
ment.—The court, in determining whether to impose a term
of imprisonment, and, if a term of imprisonment is to be
imposed, in determining the length of the term, shall consider
the factors set forth in section 3553(a) to the extent that they
are applicable, recognizing that imprisonment is not an
appropriate means of promoting correction and rehabilitation.
In determining whether to make a _ recommendation
concerning the type of prison facility appropriate for the
defendant, the court shall consider any pertinent policy
statements issued by the Sentencing Commission pursuant to
28 U.S.C. 994(a)(2).
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.