Federal Sentencing After Blakely

By Keith Williams

Published in the North Carolina Academy of Trial Lawyers Magazine

August 2007

All of us who practice criminal law in state or federal court have heard about the Blakely revolution in the last few years. Facts that in the past were decided by judges at sentencing now get decided by juries beyond a reasonable doubt. The Blakely framework reached federal criminal court in United States v. Booker, 543 U.S. 220 (2005), but the Fourth Circuit and other federal appeals courts have limited its impact. According to the latest information from the United States Sentencing Commission, less than ten percent of the sentences imposed in federal court in late 2006 and early 2007 were lower because of Blakely and Booker.

What happened? Good question. I will try to answer by providing a brief history of federal sentencing, a summary of the current state of the law, and some prospects for improvement in the near future.

A Brief History of Federal Sentencing

Back in the days when dinosaurs roamed the land and men were discovering fire, federal judges had the authority to impose sentences as they saw fit in criminal cases. Certain judges were known for light sentencing, and others were known for harsh sentencing. The President and Congress in the early 1980's decided that was a problem. They felt that federal sentencing should be predictable across the board, so that a defendant sentenced for a federal crime in Michigan by Judge Jones should receive roughly the same sentence as a defendant sentenced for the same crime in Florida by Judge Smith.

It was a laudable goal, but the means to the end were problematic, to say the least. Congress created a draconian system known as the United States Sentencing Guidelines which reduced federal sentencing to a formula, effective November 1, 1987. Every federal crime was assigned a certain number of points called a "base offense level." The level was increased by "specific offense characteristics," such as the dollar amount of loss in a white collar fraud case or the total quantity of crack in a drug case. The Guidelines further adjusted the offense level for issues such as the use of a weapon, obstruction of justice, and acceptance of responsibility. Adding and subtracting the various points yielded the "adjusted offense level."

A separate point total was then determined for the person's record of prior convictions; more convictions equaled more points. Finally, the adjusted offense level and the criminal history points were taken together to determine a sentencing range from a graph, with the adjusted offense level on the vertical side of the graph and the criminal history points on the horizontal.

The intersection of the two points on the graph was a sentencing range that gave the judge a minimum number of months and a maximum number of months. A range of 70-87 months, for example, meant that the judge was required to impose a sentence of at least 70 months but not more than 87 months. Absent rare findings of "upward departures" or "downward departures," the judge was not allowed to go above or below the Guideline range.

The findings of fact required by the Guidelines were made by the judge at sentencing by a preponderance of the evidence. In a white collar case, for example, the dollar amount involved in the fraud was a specific offense characteristic. The higher the amount, the longer the sentence. But the jury had no role in determining the amount. The jury found the person guilty beyond a reasonable doubt of the offense charged in the indictment, but the judge determined the amount of loss by a preponderance of the evidence at sentencing. The judge was free to increase the loss amount at sentencing based upon his review of the "relevant conduct," even if it involved evidence that was never presented to the jury.

As a general rule, the Guideline penalties were harsh. Taken in conjunction with mandatory minimum sentences set by statute for specific crimes such as drug offenses, the Guidelines encouraged many people to plead guilty. This was especially true because one of the most effective ways to get a "downward departure" from the Guideline range was to cooperate with the Government by providing information about others committing crimes. Federal criminal defense was transformed into an often distasteful business of encouraging your client to plead guilty and cooperate as soon as possible, to maximize the chance that his information would be useful to the Government in prosecuting someone else.

One of the potential constitutional problems with the Guidelines was the violation of a defendant's right to a jury trial. If we all have a Sixth Amendment right to be tried by a jury, why did the judge have the power to increase the person's sentence based on facts found at sentencing without a jury? The question became more urgent in federal court after the Supreme Court issued decisions applying to state court cases in Apprendi v. New Jersey, 530 U.S. 466 (2000), and Blakely v. Washington, 542 U.S. 296 (2004). The decisions held that a judge could not go beyond the jury's factual findings and impose an aggravated sentence based on additional facts found by the judge at sentencing. Federal practitioners wondered: would the same rule be applied in federal court?

The answer was a resounding "maybe." In United States v. Booker, 543 U.S. 220 (2005), the Court held that the federal Guidelines violated the Sixth Amendment right to trial by jury. Specifically, the Court found that when the judge at sentencing made the findings required by the Guidelines, s/he was going beyond the facts found by the jury at trial (or admitted by the defendant as part of his plea). The defendant could not be sentenced with a mandatory system of Guidelines that required these additional findings of fact at sentencing.

What was the remedy for the Sixth Amendment violation? Making the Guidelines "advisory," rather than mandatory. The judge would continue to do all of the Guideline calculations, but the Guideline sentencing range would no longer bind the judge. Instead, it would be one factor among many for the judge to consider at sentencing. As long as the judge was not required to impose a sentence within the Guideline range, the Court found no Sixth Amendment problem in directing the judge to consider the Guideline sentence as a non-binding recommendation. And as long as the sentence was "reasonable" in light of the sentencing factors contained in 18 U.S.C. 3553(a) (the "3553(a) factors"), the Court said the sentence should be upheld on appeal.

Current State of the Law

It is an understatement to say that many of us in federal court were pleased by the Booker decision. Euphoric is probably a better word. The Guidelines had been put in their place, judges were free to be judges, and lawyers finally had an opportunity to do real lawyering at sentencing.

We began preparing for sentencing hearings by gathering evidence needed to support the 3553(a) factors that were favorable to our clients. The mitigating factors included such things as the defendant's need for education, vocational training, and medical care, as well as the defendant's "history and characteristics." We got counseling records, school transcripts, medical records, and anything else we could find to support an argument for a sentence below the Guideline range. A source of particular joy was noting in a Sentencing Memo that the Guideline range was merely "advisory" and that it no longer controlled the outcome of the case.

Early decisions looked promising. Cases such as United States v. Hughes, 401 F.3d 540 (4th Cir. 2005) held that in light of Booker, "the discretion of a sentencing court is no longer bound by the range prescribed by the guidelines." Id. at 546. Over time, however, our enthusiasm began to fade as decisions from the various circuit courts of appeal took an increasingly more restrictive view of Booker and the Blakely revolution.

How did this happen? If the only appellate review was for a determination of reasonableness, what basis did the appellate courts find to reverse and remand below-Guideline sentences? The answer: they held that a sentence within the Guideline range was "presumptively reasonable." And although at times denied, the inescapable corollary was that a sentence below the Guideline range was presumptively unreasonable.

The trend was illustrated in three cases published by the Fourth Circuit in the first half of 2006. The first involved Charles Green, who pled guilty to distributing crack. He qualified for an especially harsh sentence under the Guidelines because he was a "career offender," a status reserved for defendants with bad records. But the trial judge gave Mr. Green a lower sentence after considering factors such as his young age, his efforts to obtain employment, and the lack of any involvement with violence or guns. United States v. Green, 436 F.3d 449, 453-54 (4th Cir. 2006).

The Fourth Circuit reversed. "Even though it is now a given that the Sentencing Guidelines are advisory, district courts are not left with unguided and unbounded sentencing discretion." Id. at 455. The Fourth Circuit said that in refusing to impose a sentence within the Guideline range, the district court "simply expressed disagreement with Congress' decision to base career offender status on two prior drug offenses, without any need to involve firearms or violence." Id. at 459.

The Fourth Circuit also said that the career offender guideline reflected the policy of Congress and that "[t]he district court was not free to ignore that policy judgment and substitute [its own]." With all due respect to the Fourth Circuit, if the judiciary is a co-equal branch of government, and if the Supreme Court ruled that the Guidelines were merely advisory, why does a court lack the authority to substitute its policy decision for those expressed by Congress in the Guidelines? Perhaps limiting the application of a harsh general policy in a particular case based on specific facts is an essential feature of the checks and balances in our constitutional government.

The second Fourth Circuit case in this trend involved Brian Moreland, a man charged with two counts of possession with intent to distribute crack cocaine. Mr. Moreland went to trial and was convicted. At sentencing, he too was found to be a career offender. Based upon his offense and his prior convictions, the Guideline sentencing range was thirty years to life. But the trial court considered the 3553(a) factors and found that the sentencing range "grossly overstated [Mr. Moreland's] prior criminal conduct." United States v. Moreland, 437 F.3d 424, 428 (4th Cir. 2006). As a result, the court imposed a sentence of ten years, the mandatory minimum under the statute.

On appeal, the Fourth Circuit reflected on its role in reviewing post- Booker sentences and then vacated the sentence and remanded for resentencing. Our task in reviewing a post- Booker federal sentence is to determine whether the sentence is within the statutorily prescribed range and is reasonable. Although this standard clearly requires us to afford a degree of deference to the sentencing decisions of the district court, 'reasonableness' is not a code-word for 'rubber stamp.' " Id. at 433 (internal quotation marks omitted).

Having gotten over the rubber stamp hurdle, the Fourth Circuit then uttered the words that effectively reinstated mandatory Guidelines: "[a] sentence that falls within the properly calculated advisory guideline range is entitled to a rebuttable presumption of reasonableness." Id. Did you feel the wind just go out of our sails? A Guideline sentence is reasonable; a below-Guideline sentence is not. To be sure, the Fourth Circuit protested that its decision did not mean that a below-Guideline sentence was "presumptively unreasonable," but the damage to Booker had been done. Id. Applying the principles to Mr. Moreland's case, the Fourth Circuit "conclude[d] that the district court committed a clear error of judgment by arriving at a sentence outside the limited range of choice dictated by the facts of the case." Id. at 436 (citations and quotes omitted).

The final decision in this ugly trend was United States v. Johnson, 445 F.3d 339 (4th Cir. 2006). Artez Johnson pled guilty to three drug counts. His Guideline range was 97-121 months, but his creative lawyer urged the trial court to impose a lower sentence. The lawyer argued that the trial court was not bound by the advisory Guidelines and that the court should refuse to apply the "grouping" provisions of the Guidelines that resulted in a higher sentencing range.

The trial court rejected the argument and imposed a sentence within the Guideline range. The Fourth Circuit affirmed. Citing Green and Moreland, the court declared that "certain principles" were relevant at any sentencing, and " foremost among these is that a sentence within the proper advisory Guidelines range is presumptively reasonable." Id. at 341 (emphasis added). Why? For several reasons, according to the court.

First, we've done it this way for a long time. "By now, the Guidelines represent approximately two decades of close attention to federal sentencing policy. It would be an oddity, to say the least, if a sentence imposed pursuant to this congressionally sanctioned and periodically superintended process was not presumptively reasonable." Id. at 342.

Second, the Guidelines already account for all of those pesky sentencing factors in 18 U.S.C. 3553(a). No need to weigh the other factors along with the Guideline sentencing range, because "[t]he 3553(a) factors are built into the Guidelines." Id. at 343. Apparently, this point eluded the Supreme Court in Booker, which expressly "require[d] a sentencing court to consider Guideline ranges, but permit[ted] the court to tailor the sentence in light of other statutory concerns as well, see 3553(a)." Booker at 757 (citations omitted).

Third, the Guidelines themselves are fair and just to criminal defendants. "[T]he Guidelines range applicable to each defendant is an individualized determination." Id. at 343. "To assure reliability, the defendant may object to those facts with which he disagrees, requiring the district court to rule on any disputed portions of the presentence report. The entire process, in short, is designed to lead to a full and credible set of facts particular to the defendant himself." Id. at 344.

It may be that to a careful reader, the decision in Johnson sounds more like legislative policymaking than judicial reasoning. Perhaps the Fourth Circuit was substituting its policy decisions for those of the Supreme Court? Be that as it may, it is the law of the land in federal court in North Carolina.

So what is the current official policy to follow at sentencing in federal court? First, the court determines the Guideline range. Second, the court considers whether a sentence within the Guideline range serves the sentencing factors in 3553(a). If not, the court decides whether any of the narrow Guideline grounds for "downward departure" or "upward departure" should be applied. If even then the court determines that the sentence does not fit with the 3553(a) factors, the court is legally permitted to give a higher or lower sentence based upon those factors. In all cases, the court must stay within any mandatory minimum or maximum sentence provided by statute for the offense of conviction.

Official policy aside, the restrictive application of Booker's reasonableness review on appeal has caused most trial judges to stay within the Guidelines. According to the United States Sentencing Commission's website, only 8.4 percent of all sentences imposed in federal court from October 1, 2006, through March 31, 2007, were below the Guideline range due to Booker and the 3553(a) factors. United States Sentencing Commission Preliminary Quarterly Data Report, March 2007, Table 1.

Prospects for Improvement

Criminal defendants across the country have run into Booker problems similar to the ones we are experiencing in the Fourth Circuit. Three cases pending at the Supreme Court are being closely watched for signs of change.

One case was Claiborne v. United States. Claiborne came from the Eighth Circuit, and it had two issues: whether the below-Guideline sentence imposed on Mario Claiborne was reasonable and whether a below-Guideline sentence must be justified by "extraordinary circumstances." Unfortunately, Mr. Claiborne died on May 30, 2007, and the Supreme Court dismissed his case as moot on June 4. Claiborne v. United States, --- U.S. ---, 127 S. Ct. 2245 (2007). The case has apparently been replaced by the Court's grant of certiorari on June 11 in Gall v. United States, --- U.S. ---, 2007 WL 1660978 (2007). The Gall case is expected to raise issues similar to those in Claiborne

The second case of note is Rita v. United States, and it arose from right here in North Carolina. An excellent attorney, Assistant Federal Public Defender Tom Cochran of the Middle District of North Carolina, represents Victor Rita. Mr. Rita is a 59-year old veteran who was called before a grand jury to testify about his dealings with a company that allegedly sold illegal gun parts. The Government contended that Mr. Rita lied to the grand jury, and he was indicted for perjury, making false statements, and obstruction of justice. He went to trial and testified that he had been truthful to the grand jury, but he was nevertheless convicted on all counts.

At sentencing, Tom noted that Mr. Rita had honorably served as a veteran, that he had ongoing health problems due in part to his military service, and that he was subject to potential victimization while in prison. The district court refused to give a sentence below the Guideline range, imposing instead a sentence of 31 months at the bottom of the range. Mr. Rita appealed.

The Fourth Circuit disposed of Mr. Rita's appeal in a per curiam unpublished opinion. "[W]hile we believe that the appropriate circumstances for imposing a sentence outside the guideline range will depend on the facts of individual cases, we have no reason to doubt that most sentences will continue to fall within the applicable guideline range. Indeed, a sentence imposed within the properly calculated Guidelines range ... is presumptively reasonable." United States v. Rita, 177 Fed. Appx. 357 (4th Cir. 2006) (internal cites and quotes omitted).

Tom filed a cert petition with the Supreme Court, and the Court granted his petition on the following issues:

1) Was the district court's choice of a within-Guidelines sentence reasonable? 2) In making that determination, is it consistent with United States v. Booker , 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), to accord a presumption of reasonableness to within-Guidelines sentences? 3) If so, can that presumption justify a sentence imposed without an explicit analysis by the district court of the 18 U.S.C. § 3553(a) factors and any other factors that might justify a lesser sentence?

Rita v. United States, --- U.S. ---, 127 S. Ct. 551 (2006).

The third case of interest pending at the Supreme Court is Kimbrough v. United States, --- U.S. ---, 2007 WL 1660977 (2007). Like Rita, the Kimbrough case arises from an unpublished decision in the Fourth Circuit. Derrick Kimbrough pled guilty in a typical "guns and drugs" case. He was facing a statutory mandatory minimum sentence of ten years on the drug charge plus a consecutive five years on the gun charge. His Guideline range was 228-270 months. The trial court at sentencing noted that the Guidelines impose 100 times greater punishment on crack cocaine than on powder cocaine. Believing that the disparity was unfair, the court imposed a reduced sentence of 180 months.

The trial court was in good company in criticizing the crack / powder disparity contained in the Guidelines. The United States Sentencing Commission itself recently raised the issue in a report to Congress calling for change. "The current quantity-based penalties overstate the relative harmfulness of crack cocaine compared to powder cocaine [, . . and they also] overstate the seriousness of most crack cocaine offenses." Report to the Congress: Cocaine and Federal Sentencing Policy, United States Sentencing Commission (May 2007) at 8.

Nevertheless, the Fourth Circuit in Kimbrough said that "a sentence that is outside the guidelines range is per se unreasonable when it is based on a disagreement with the sentencing disparity for crack and powder cocaine offenses." United States v. Kimbrough, 174 Fed. Appx. 798, 799 (4th Cir. 2006). The Fourth Circuit was restating its position as earlier described in United States v. Eura, 440 F.3d 625, 634 (4th Cir. 2006). The issue caught the attention of the Supreme Court this time around, and it is now slated to be addressed as part of the Court's evolving Blakely and Booker jurisprudence.

Rita is expected to be decided this term, while Gall and Kimbrough will likely be decided at the Court's 2007-08 term. The three cases taken together have the potential to revive the Blakely revolution in federal court.


We can hope that the pending cases in the Supreme Court will revisit the constitutionality of the federal Sentencing Guidelines and will perhaps even declare that the Guidelines as a whole should be invalidated on constitutional grounds. But more likely, we will see an incremental approach to change, likely upholding the presumption of reasonableness while at the same time allowing some additional flexibility for the sentencing judge in specific cases.

We live with the legacy of the 1980's, when Congress decided to interfere with the traditional sentencing authority of the courts by creating the Guidelines. The trend continues today, with the legislative branch interfering with the judicial branch on various issues in both state and federal government. As advocates, we must remind our judges of their constitutional duty to be a co-equal branch of government that provides checks and balances on the executive and legislative branches. For those who are judges, they must summon the courage to declare that the Constitution trumps extreme legislative action taken for short-term political gain.

Federal sentencing continues to evolve. Stay tuned for further developments.

Thanks for reading.

Bio: Keith Williams is a board-certified specialist in federal and state criminal law who practices in Greenville, North Carolina.

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