Sentencing guidelines are at judge's discretion – except when overturned

The U.S. Supreme Court returned judicial discretion in sentencing to the federal trial courts two years ago in United States v. Booker.
Or did it?
Appellate decisions handed down since Booker indicate the 8th U.S. Circuit Court of Appeals has a “disturbing pattern” of not allowing trial judges to use discretion to sentence defendants outside of the U.S. Sentencing Guidelines, according to criminal defense attorney Bartholomew J. Baumstark. This, despite the Supreme Court holding that the guidelines are advisory in nature.
The 8th Circuit added to this pattern Wednesday with a decision reversing the below-guideline sentences of Anthony and Sheila Gentile, siblings who pleaded guilty to conspiracy to possess pseudoephedrine knowing it would be used to manufacture a controlled substance.

Gentile sentences

After considering factors that would result in both upward and downward departures from the guidelines, U.S. District Judge Catherine Perry sentenced Anthony Gentile to 48 months, or four years, in prison. The judge sentenced Sheila Gentile to one day of incarceration and three years of supervised release.
In sentencing Sheila Gentile, Perry took into account the defendant’s family situation, that she is a single mother and full-time caretaker of a 2 year old and that she lives with her mother and stepfather who both work full time and have a variety of medical complications.
When Perry sentenced Anthony Gentile, she said the recommended guideline sentence, as applied to Gentile, “is greater than necessary to meet the sentencing objectives of the statutes.” With multiple prior convictions, Gentile should have received a sentence in the guideline range of 100 to 125 months, or about eight to 10 years, according to the 8th Circuit, but Perry classified those prior convictions as “relatively petty crimes” and said that range was “much greater than is necessary to achieve the sentencing goals of deterrence, incapacitation, just punishment, and to meet the other factors set out in the statute.”
Perry also questioned the Sentencing Commission’s policy on pseudoephedrine, which bases the sentence to the amount of methamphetamine that could be produced from the amount of pseudoephedrine actually in possession.

Appellate review

The 8th Circuit dispensed with that reasoning immediately by noting that “disagreement with a policy enunciated by the Sentencing Commission is not a proper factor upon which to base a variance.”
“Here, the sentencing court offered a general critique of the policy judgment underlying the pseudoephedrine quantity tables rather than pointing to specific circumstances that might make the tables unreasonable for Mr. Gentile’s case,” wrote Circuit Judge Diana Murphy, former chairwoman of the Sentencing Commission. “Instead, the district court substituted its own policy views for those of Congress and the Sentencing Commission, an independent agency within the judicial branch created by Congress to develop sentencing policy and promulgate guidelines.”
That’s the same thing Baumstark says the 8th Circuit is doing. “They’re taking the sentencing decision made by the trial court, who is the court who should be making these determinations, and they’re wiping it out and replacing it with their own. That’s not their job,” he said.
For a downward variance, “the standard is supposed to be abuse of discretion,” he said. “And any lawyer knows that if you have won something at the trial and the question at the appellate level is whether or not the trial court abused its discretion, you’ve got it in the bag. You should – if the judge has done their job and taken a careful look at the facts and made a good, reasoned, well-thought-out decision, which is what Judge Perry did.”

Specific factors

The 8th Circuit further rejected the specific factors that led Perry to depart with the guidelines for each of these defendants. The appellate court said Anthony Gentile’s criminal history was significant and the fact that he committed offenses to feed his addiction “does not distinguish him from many other offenders.” Even without the criminal history points, Gentile’s sentencing range was 57 to 71 months, and his 48-month sentence still fell below that range.
Sheila Gentile’s family responsibilities aren’t significant enough to warrant a downward departure, said the court. Neither her child nor her nephew, whom she also cares for, requires special attention, and neither would suffer unusual harm without Gentile in the home, said the court. For her sentence, the guideline range was 37 to 46 months.
Jan Diltz of the Department of Justice declined to comment on the case, saying in an e-mail that she will “defer to the public documents, i.e. the decision.”

Clarification coming?

In December the U.S. Supreme Court granted writs of certiorari in two sentencing cases – Claiborne v. United States from the 8th Circuit and Rita v. United States from the 4th Circuit. Oral arguments in the two cases have been scheduled for Feb. 20.
The cases have garnered a lot of attention from those interested in sentencing issues. Nine groups have filed amicus briefs in the cases, including a group of law professors who study the issue, the National Association of Criminal Defense Lawyers, The Sentencing Project in conjunction with the American Civil Liberties Association, the Federal Public Community Defenders with the national Association of Federal Defenders and the Washington Legal Foundation with Allied Educational Foundation.
The New York Council of Defense Lawyers, in addition to filing amicus briefs, set up a Web site devoted to the cases, which can be found at www.nycdl.org.
The NYCDL also compiled a database of 1,515 post-Booker cases to demonstrate the “practical impact of the presumption of reasonableness and the requirement of extraordinary circumstances,” according to the Web site.
“NYCDL discovered that the courts of appeals have affirmed nearly all within- and above-guidelines sentences while reversing nearly all below-guidelines sentences appealed by the government. These findings suggest that the courts of appeals are applying reasonableness review in a manner inconsistent with the statutory text,” the organization announced on its Web site.
According to the organization’s findings, the 8th Circuit vacated only one of 22 appeals by defendants of above-guideline sentences and reversed 27 of 28 below-guideline sentences appealed by the government. The one case, United States v. Burns, was affirmed by the 8th Circuit panel and then reheard by the court en banc, according to the NYCDL.
The trend has not gone unnoticed by at least one former 8th Circuit judge. In an opinion handed down last July, then-Senior Circuit Judge Gerald W. Heaney wrote about the trend in a long footnote to United States v. Matthew Meyer. At that time the appellate court had affirmed 12 of 12 sentences above the guideline range and reversed 16 of 19 below-guideline sentences. Heaney listed each of those cases in his footnote.
“Affirming upward variances at a rate of 92.3% while affirming downward variances at a rate of 15.8% could hardly be viewed as uniform treatment, and seems contrary to 18 U.S.C. 3553(a)(6)’s concern with eliminating unwarranted sentence disparity,” he wrote. “It is consistent, however, with our circuit’s disposition of sentence departures before Booker. See United States v. Yirkovsky, 338 F.3d 936, 942-44 (8th Cir. 2003) (Heaney, J., dissenting) (noting that the Eighth Circuit affirmed upward departures at a rate much higher than with downward departures). It is difficult to accept that 3553(a)(6) is satisfied where a circuit treats sentencing appeals in a consistently disparate manner.”
The two other judges on the panel, Lavenski Smith and Ray Gruender, distanced themselves from the footnote.
Baumstark can’t predict what the Supreme Court will do about this trend, but he’s certain of one thing: “It’s not going to stop unless the Supreme Court tells them to stop.”