Could the Libby Commutation Impact the Sentencing Guidelines?

The President's Order of Executive Clemency that remitted the thirty-month prison sentence of I. Lewis Libby keeps raising new questions about federal sentencing now that the White House has determined any prison term was "excessive" even though the judge faithfully applied the Federal Sentencing Guidelines.  This past Supreme Court term, the United States argued for the application of a proportionality principle when a sentencing judge departs from the Guidelines in issuing a sentence, the flip side of the reasonableness presumption for a within-Guidelines sentence.  According to the government, the further the sentence fell from the Guidelines calculation, the greater the justification required for it, otherwise it would be disproportionate and result in uneven sentences.  During the oral argument in Claiborne v. United States (here), Deputy Solicitor General Michael Dreeben asserted the following in response to a question by Justice Scalia about how to determine whether a particular Guideline sentence was reasonable:

I do think, though, that the Court should be concerned about each district judge formulating his or her own set of personal sentencing guidelines and then applying them in the court to the cases that appear on that judge's docket without any check on appellate review to ensure that, although the sentence might be in some possible world reasonable, it's out of whack with what the Sentencing Commission has prescribed and what other district judges are doing. If there is no check on appeal, then I do think that the clock has been turned back to the 1983 era before the Sentencing Reform Act; and that does not seem to me a reasonable interpretation of what the Booker remedial opinion thought it was accomplishing. What the Booker remedial opinion said that it was accomplishing was providing an important mechanism that Congress itself had intended, namely appellate review, in order to iron out sentencing differences.

And our submission is that inherently means some form of substantive proportionality review.

While the Court dismissed Claiborne because the petitioner was killed in a robbery before the decision issued, it granted certiorari in a nearly identical case from the same circuit that raises the issue of the reasonableness of a sentence that departs substantially from the Guidelines (Gall v. United States).  During the upcoming argument, will the defense, and perhaps even members of the Court, raise the Libby commutation as evidence that the Guidelines may be askew in certain instances, especially when it involves a government official with a long history of public service who is a first-time offender? 

Blog co-editor Ellen Podgor coined the apt term "Libby motion" to reflect the likely argument defendants will make in seeking a lower sentence from the trial court based on the commutation.  The same argument can be made in the Court of Appeals, and perhaps even in Gall, that the proportionality principle offered by the United States overextends the Guidelines by ignoring crucial circumstances in particular cases -- as evidenced by the "excessive" sentence handed down to Libby that presumably complied in the main with the Guidelines.  Proportionality does not work if the Guidelines themselves may lead to unreasonable sentence.  Or so will Justice Scalia ask, perchance?  (ph)