A recent decision, out of the Court of Appeals for the Second Circuit, finally addressed the question of “reasonableness” of a post-Booker sentence. Since Booker, sentencing Guidelines have not been mandatory, and judges have been able to take other factors into account. As set out in 18 U.S.C. § 3553(a), these include:
- The nature and circumstances of the offense; and that the sentence:
- reflect the seriousness of offense;
- promote respect for law;
- represent just punishment;
- provide deterrence;
- protect the public; and
- avoid unwarranted sentencing disparities
There has been some debate as to whether the sentencing Guidelines are now no more important than any other factor judges may consider, or whether they remain the pre-eminent factor. Judge Sifton of the Eastern District of New York acknowledged the issue in Jackson v. U.S., 2005 U.S. Dist. LEXIS 4551 (EDNY Mar. 17, 2005), noting that “the Second Circuit had yet to rule on the ‘degree of consideration’ of the Guidelines that is required, or . . . weight . . . to be given.” He cited U.S. v. Wilson, 350 F.Supp.2d 910, 925 (D. Utah 2005) (“heavy weight,” with non-Guideline sentences only in “unusual cases”); U.S. v. Peach, 356 F.Supp.2d 1018 (D.N.D.2005) (“substantial weight,” “presumptively reasonable”); U.S. v. Ranum, 353 F.Supp.2d 984 (E.D.Wis.2005) (“equal weight”); U.S. v. Myers, 353 F.Supp.2d 1026 (S.D. Iowa 2005) (“equal weight”). Judge Sifton adopted the “equal weight” standard, believing that anything else might run afoul of the Booker prohibition against sentencing defendants on facts not found beyond a reasonable doubt.
Well, he won’t be doing that again! Despite Booker, courts in the Second Circuit (New York, Connecticut, Vermont) must now give the Guidelines the highest deference. According to the Second Circuit Court of Appeals, the Guidelines are, as a matter of law, first among equals.
After Booker, we defense lawyers assumed judges would start flexing their “discretion muscles” and impose sentences they believed to be just and fair, no matter what the Guidelines indicated. Drug and money-laundering defendants are particularly victimized by the Guidelines, which are quantity-driven. But we were wrong. In the event, judges have tended to follow the Guidelines meekly, and when they have strayed from them they have rarely strayed far.
In U.S. v. Rattoballi, Judge Grisea of the Southern District of New York did stray some distance. He sentenced a defendant to probation rather than the 27 months indicated by the Guidelines, basing his decision on factors that were relevant to the particular defendant, though by no means unique to him: loss of prestige, loss of business, family problems, and so on. In all the circumstances, Judge Grisea considered probation the proper sentence. My guess is, this judge would have continued to look for the fair and appropriate sentence, case by case — something he had done in the days before the Guidelines became mandatory. He read Booker the way I did, as a brief to consider the sentencing Guidelines — to use them as a starting point, if you will — and then make adjustments in line with the facts, so as to arrive at a reasonable and fair disposition of each particular case. That would be the inclination of judges with a moderate and/or independent streak; Judge Grisea is a moderate.
Mr. Rattoballi was part owner of a printing company who resorted to bribery as a way of generating business. A crime? Sure. The crime of the century? Hardly. Being prosecuted upended Mr. Rattoballi’s life. Business suffered. Twelve employees looked to him for their livelihoods, and the collapse of the firm would have hurt them and their dependents. Rattoballi’s standing in the industry was destroyed. He had been living with this case for years, and he was not a young man. What Judge Grisea saw was a disgraced and broken defendant who had already suffered greatly. The judge took the view that the harm to this particular defendant, his family and employees outweighed any good that could come from a prison sentence, and so gave him probation instead.
The appeals court reversed. It played up the history and lofty ideals behind the Guidelines, made a song-and-dance about the reverence with which they should be treated. “[They] cannot be called just another factor,” the court said of the Guidelines. “[They] represent approximately two decades of close attention to federal sentencing policy” and are the “product of years of careful study.” It called the Guidelines Commission “an expert agency.”
Hopefully, this case — or one like it — will reach the U.S. Supreme Court, and the Second Circuit’s belief in the primacy of the Guidelines will be struck down. No one expects judges to lead an insurrection against the rule of law. They never have, and they shouldn’t. But they should have the ability to bring their consciences, wisdom and life experience into play in the sentencing process. Booker does not require us to treat the Guidelines as sacrosanct, nor to elevate them above other factors relevant to the matter of sentencing in a given case. The Second Circuit may have interpreted Booker that way, but with luck it will be shown to have been mistaken.
Until that happens, though, no judge can simply do what he or she thinks is right. Thanks to the terrible appeals decision in Rattoballi, at least temporarily order trumps justice yet again.