The New Booker Era – Just Like the Old: Troubling Entrenchment in Federal Sentencing Habits

Although somewhat idiosyncratic, and arguably esoteric, to those of us specializing in federal criminal defense, one of the more important decisions in the past decade regarding the rights of individuals convicted of federal crimes is United States v. Booker, 543 U.S. 220 (2005), wherein the Supreme Court of the United States (SCOTUS), in essence, ruled that the United States Sentencing Guidelines (USSG), a uniform sentencing grid system that had been dictating sentencing ranges for defendants in federal courts throughout the country for close to twenty-five years, are no longer mandatory and that courts are not duty bound to sentence any defendant in strict conformity with the Guidelines, but instead duty bound to sentence in accordance with the seven (7) different factors, covering a variety of individual and collective considerations, set forth in the Sentencing Reform Act of 1984 and codified in 18 U.S.C. § 3553(a). In apparent response to courts "not quite getting this" the first time, SCOTUS went on to subsequently clarify that while courts should begin all sentencing proceedings "…by correctly calculating the applicable Guidelines range… [The court] may not presume the Guidelines range is reasonable…" Gall v. United States, 128 S. Ct. 586 (2007), and then to make sure they were clear about this, SCOTUS repeated in yet another decision that "[T]he sentencing court does not enjoy the legal presumption that a Guidelines sentence should apply." Nelson v. United States, 129 S. Ct. 890 (2009). The net result of all this has been the welcome relief to practitioners like me who are sometimes left with trying to negotiate the best possible "deal" for clients in response to overwhelming evidence in some cases, instead of taking a chance at trial, knowing that "district court judges are, as a result, generally forced to impose sentences outside the recommended range", United States v. Cavera, 550 F.3d 180 (2nd Cir. 2008). So if all this is so, and if SCOTUS has been so emphatic in advising federal courts that the applications have changed when it comes to sentencing, why is it that U.S. Attorneys throughout the nation insist on, and only recommend, Guidelines sentences? And why is it that U.S. Probation Departments throughout the country, at least those who view their role as recommending sentences to judges (as opposed to just providing the mathematical calculations judges are advised to "begin with") consistently recommend Guidelines sentences? In short, why is it that, on the government side, aside from most judges who now do seem to follow the dictates of Booker and its progeny (although I have been in other federal districts outside of Massachusetts where I’ve been told that judges still ignore it), it seems as though Booker never even happened? Now, I’m not saying that U.S. Attorneys Offices are still foolish enough to ignore SCOTUS’ clear holding and try to prevent defense attorneys from arguing/advocating for below-Guidelines sentences as is now their Constitutional right to do, but I am saying that the next time an AUSA offers one of my clients a deal involving a non-Guidelines sentence recommendation by his or her office (unless cooperation is involved), and the next time U.S. Probation recommends a sentence to the Court for one of my clients that is not within the Guidelines, it will be the first time! Maybe it’s habit, maybe it’s laziness, maybe it’s push-back, and maybe since we have what we want on the defense side — the ability not to be restricted by the USSG — we have nothing to complain about. But, the fact is, as long as it remains DOJ policy for U.S. Attorneys to dig in their heels and only recommend within Guidelines sentences in exchange for guilty pleas or guilty verdicts, and as long as Probation continues to only recommend Guidelines sentences in their required Pre-Sentence Reports in those jurisdictions where they in fact make sentencing recommendations to judges, and as long as those of us on the defense bar need to, frankly, scope out in advance of sentencing hearings whether the sentencing judge is a "Guidelines Judge", it really is as though Booker never happened. I’m not sure about the aptness of tree-falling-in-the-woods-with-nobody-hearing analogies but there is something discouraging, if not mildly troubling, about the new post-Booker era being not that much different from the old pre-Booker period. Just sayin’…!

If you have been accused of a crime and you need a lawyer to represent you please contact Brad Bailey at 781-589-2828