December 10, 2007
What do Gall and Kimbrough Mean for White Collar Cases
The Supreme Court issued opinions today in the long awaited cases of Kimbrough v. United States and Gall v. United States. Both decisions provide added deference to the district court decision on sentencing. In Kimbrough the Court finds that a "judge may consider the disparity between the Guidelines' treatment of crack and powder cocaine offenses." And in Gall the Court finds that "while the extent of the difference between a particular sentence and the recommended Guidelines range is surely relevant, courts of appeals must review all sentences -- whether inside, just outside, or significantly outside the Guidelines range-- under a deferential abuse-of-discretion standard." In Gall, the Court found "that the sentence imposed by the experienced District Judge.... was reasonable."
These decisions may be important in white collar cases, especially those with absurd loss values that provide unreasonable and draconian sentences. One need only look to our President's words in
pardoning commuting the sentence of I "Scooter" Libby when he found a guideline sentence "excessive" in a white collar case to say that a below guidelines sentence may be more reasonable.
Justice Stevens in Gall is critical of the exclusive mathematical computation as the end-all decision. He places much power in the hands of the district court -- the trier of fact. He states, "if the sentence is outside the Guidelines range, the court may not apply a presumption of unreasonableness. It may consider the extent of the deviation, but must give due deference to the district court's decision that the section 3553(a) factors, on a whole, justify the extent of the variance."
What does this mean in the white collar world?
- For the defendant - you have much to gain in the trial court, but you also have a lot to lose - be sure and present strong sentencing evidence before the district court judge.
- For the district court judge - you now have more power and your decision carries a lot more weight; you also have discretion to move beyond the guidelines when the guideline sentence is "excessive."
- For the government - don't just assume the guidelines will be imposed.
Addendum - CNN reports that I Scooter Libby is dropping his appeal. (see here)
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