Commentary: Gall Advances the Booker Revolution, But Also Leaves Fodder for the Court of Appeals Counter-Revolutionaries

Throughout today and tomorrow, we’ll have commentary on the decisions this morning in Gall v. US and Kimbrough v. US, both of which addressed issues in federal sentencing.

This entry is by Michael M. O’Hear of Marquette Law School. His bio and contact information are here.

In its 2005 Booker decision, the Supreme Court worked a seeming revolution in federal sentencing by declaring the sentencing guidelines to be advisory, rather than mandatory. But the brave new world of advisory guidelines has turned out to look much more like the ancien regime than many hoped (or, in some cases, feared), and a clear majority of federal sentences continue to follow the guidelines. While the story of post-Booker sentencing is a complicated one, the intermediate courts of appeals have surely played a key role in holding the revolution in check. They have routinely upheld guidelines sentences, while frequently overturning nonguidelines sentences. In the process, most circuits have adopted some version of a proportionality test, requiring that “extraordinary” deviations from the guidelines be justified by extraordinary case-specific facts. Since the emergence of this jurisprudence, many commentators have been waiting for the Supreme Court’s revolutionaries to tell the appellate courts’ counter-revolutionaries, “Yes, we really meant what we said in Booker about ‘advisory.'”

The Court’s decisions today in Gall and Kimbrough finally send that message, sort of. I’ll concentrate here on Gall, which was framed as the more general of the two cases. At the outset, it is notable that Justices Breyer and Kennedy, two consistent opponents of the Apprendi–Blakely-Booker revolution, joined the majority opinion of Justice Stevens. With decisive majorities today in both Gall and Kimbrough, as well as in Rita last June, the Court (perhaps under the influence of the new Chief Justice) seems to be moving beyond the era of consistently divisive 5-4 decisions in sentencing cases. While greater stability and predictability in sentencing jurisprudence may be a welcome consequence of more robust majorities, the consensus-building process may result in some loss of the revolutionary spirit. In Gall, for instance, it is possible that attempts to win the votes of Breyer, Kennedy, and/or Roberts resulted in some watering down of the message that might otherwise have been sent to the courts of appeals.

Gall contains two distinct strands of analysis: one dealing at an abstract level with the appellate standards of review, and the other dealing with specifics of Mr. Gall’s case. At an abstract level, the Court plainly rejects the Eighth Circuit’s extraordinary circumstances test, particularly insofar as it involved a “rigid mathematical formula” that attempted to express the degree of variation from the guidelines in percentage terms. On the other hand, the Court also emphasized the importance of the Guidelines as the “starting point and initial benchmark” in the sentencing process, and indicated that the “extent of any variance from the Guidelines range” was an appropriate factor to consider during appellate review of a sentence. Indeed–quite remarkably, I think–the Court states, “We find it uncontroversial that a major departure should be supported by a more significant justification than a minor one.” There is plenty of room, in short, for the courts of appeals to continue to apply some form of a proportionality test, and to continue to review guidelines sentences differently than nonguidelines sentences. Or, to put it differently, I think that here and in Rita the Court has at least implicitly rejected the notion advanced by some defendants and commentators (including myself) that, under 18 U.S.C. § 3553(a), the guidelines are only one factor among many to be considered at sentencing. The Court has instead given a privileged position-albeit a maddeningly uncertain one in some respects-to the guidelines, and thereby provided considerable fodder for the counter-revolutionaries.

The second strand of analysis, applying the reasonableness test to Mr. Gall’s sentence, does nothing to undermine this assessment. Although the Court found the sentence to be reasonable, the conclusion largely rested on the unusual facts of Mr. Gall’s case, specifically, his voluntary desistance from criminal activity and extraordinary pre-indictment rehabilitation. Given the basic thrust of the Court’s analysis, it will not be difficult for the government to distinguish Gall on the facts in future cases.