Federal Appeals Courts Offer Disparate Approaches to Appellate Review of Sentences Post-Rita

Matthew Lee
June 5, 2008 — 916 views  

In the wake of the United States Supreme Court’s latest sentencing pronouncement in Rita v. United States, 127 S. Ct. 2456 (2007), which held that federal appeals courts could presume that sentences within the applicable Sentencing Guidelines range are reasonable (and therefore could affirm such sentences), the circuit courts have charted widely divergent approaches in attempting to apply the Rita holding in determining whether sentences are reasonable. In an opinion surely intended to discourage appeals of guidelines sentences, the Seventh Circuit has held that an appeal challenging a sentence within the applicable guidelines range may well be considered frivolous. The Sixth Circuit, on the other hand, has signaled that it will carefully scrutinize even within-guidelines sentences to ensure that sentencing judges sufficiently articulate their reasons for imposing such a sentence. Finally, several recent decisions from the Third Circuit are indicative of that circuit’s increasing tendency to reverse sentences below the applicable guidelines range and evidence the court’s view that the guidelines must still be accorded significant weight by sentencing judges.

In the Seventh Circuit case, the court of appeals held that an appeal of a sentence that is within the guidelines range would in most cases be considered frivolous, and strongly discouraged such appeals. See United States v. Gammicchia, 2007 WL 2265134 (7th Cir. Aug. 9, 2007). There, the defendant was convicted of obstruction of justice and sentenced at the bottom of the guidelines range. On appeal, he argued that the district court should have exercised its discretion to impose an even lower sentence based upon his and his wife’s health problems and the fact that lower sentences were imposed upon co-defendants in the case. In affirming the sentence as reasonable, the Seventh Circuit began its opinion with a warning: “we write in the hope of heading off what is assuming the proportions of an avalanche of utterly groundless sentencing appeals.” Id. at *1. The court applied the presumption of reasonableness to within-Guidelines sentences as approved by the Supreme Court in Rita, and held that the defendant presented “no even colorable argument that the sentence is unreasonably severe.” Id. at *3. Finally, the court called the appeal frivolous and held that, in such a case, “the defendant’s attorney should file an Anders motion rather than waste the Court’s time on a lost cause.” Id. at *1.

In contrast, the Sixth Circuit has held that a sentence is procedurally unreasonable where the district court failed to set forth sufficient explanation on the record for why the court imposed a sentence within the Guidelines range. See United States v. Thomas, 2007 WL 2287740 (6th Cir. Aug. 10, 2007). In that case, where the defendant was convicted of bank robbery, the district court imposed a 240-month sentence of imprisonment, which was in the middle of the Guidelines range and also coincided with the statutory maximum for the offense. On appeal, the Sixth Circuit held that “the record makes clear that the district court considered the applicable guidelines range, but not much else,” and “otherwise never mentioned anything resembling the [18 U.S.C.] § 3553(a) factors.” Id. at *3. Concluding that the district court did not “set forth enough to satisfy the appellate court that [it] has considered the parties’ arguments and has a reasoned basis for exercising its own legal decision making authority,” the court vacated the defendants’ sentence as unreasonable, even though it fell within the applicable guidelines range. Id. at *4.

The Third Circuit, which has demonstrated no hesitancy in recent cases to reverse below-guidelines sentences, has held that a district court improperly ignored the Sentencing Guidelines when it imposed a sentence of four months in a child pornography case where the uidelines called for a prison term in the range of 37-46 months. See United States v. Goff, 2007 WL 2445637 (3d Cir. Aug. 30, 2007). The court made clear its view of the continuing importance of the guidelines post-Booker, stating that, “because the guidelines reflect the collected wisdom of various institutions, they deserve careful consideration in each case. Because they have been produced at Congress’s direction, they cannot be ignored.” Id. at *5. Concluding that the district court “gave the Guidelines themselves short shrift,” the Third Circuit held that a four-month sentence was a “drastic reduction and unreasonable in light of the facts and circumstances revealed in the record.” Id. at *8.

In another recent case, the Third Circuit held that a district court’s sentence of probation and house arrest in a tax case was not reasonable where the guidelines called for a prison term in the range of 12-18 months. See United States v. Tomko, 2007 WL 2350765 (3d Cir. Aug. 20, 2007). Although recognizing that the Sentencing Guidelines are now advisory, the Third Circuit nonetheless held they “must still be afforded due weight,” and they “continue to be a vital force in sentencing.” Id. at *5. Moreover, although noting that the sentencing judge’s decision was entitled to “great deference,” the appeals court held that “we do believe that closer appellate scrutiny of sentences that deviate from the norm is necessary to prevent the unwarranted disparities that bedeviled the pre-Sentencing Reform Act discretionary sentencing regime and prompted reform.” Id. at *8. In a spirited dissent, Judge D. Brooks Smith wrote that the majority was improperly conducting what amounted to de novo review of the sentencing court’s decision and that its opinion “curtails the deference we afford sentencing courts to impose a reasonable sentence, regardless of whether that sentence substantially varies either up or down from the guidelines range.” Id. at *14.

The cases discussed above reflect the divergent paths that the circuit courts are following as they attempt to conduct appellate review of sentences consistent with the Supreme Court’s pronouncements in Booker and Rita. Judges and practitioners can expect to receive additional guidance from the Supreme Court in the upcoming term in two cases that were argued on October 2, 2007. In the first, Kimbrough v. United States, 06-6330, the Court will address the meaning of a provision in the Sentencing Reform Act requiring that a sentence be “sufficient but not greater than necessary” to carry out the purposes of sentencing. In that case, where the defendant pleaded guilty to drug offenses involving powder and crack cocaine, the sentencing judge imposed a 15-year sentence where the Guidelines called for a sentence of 19-22 years. The Fourth Circuit reversed, finding such a sentence to be per se unreasonable. In the second case, Gall v. United States, 06-7949, the Court will address the reasonableness standard of review in the context of a sentence that was significantly below the applicable guidelines range. There, the defendant pleaded guilty to a drug conspiracy and received a sentence of probation based upon several mitigating factors, including his age at the time of the offense. On appeal, the Eighth Circuit reversed, finding the sentence imposed to be unreasonable. The Supreme Court’s decisions in these two cases, expected to be issued sometime in the spring of 2008, will hopefully further clarify this area and provide the circuit courts, as well as district courts, much-needed guidance in the post-Booker era.

To learn more about the issues discussed in this article please contact Matthew D. Lee at [email protected] or by calling him at 215.569.5352.

Matthew Lee

Blank Rome LLP