How Gall Changes The World Of Federal Criminal Sentencing.

a. Background.

Gall v. United States profoundly reduces the importance of the U.S. Sentencing Guidelines, and substantially increases judges' discretion at sentencing. Discretionary sentencing under 18 U.S.C. § 35553(a), lost under the Sentencing Reform Act of 1984, has largely been restored.

Until Gall, a criminal sentence was presumed "reasonable" if the sentence were within a properly-calculated Guideline range. Virtually every appeal of a "reasonable" sentence by a defendant – including a 360-month sentences for first–time white collar offender Chalana McFarland – was denied.

Federal sentencing became a wholesale business, rarely involving an individual's circumstances.

Below Guideline sentences were different. If the prosecutor appealed, a reviewing court would (in the overwhelming majority of cases) decide for the government, returning the case to the district court for a stiffer resentencing.

Naturally, these presumptions encouraged judges to stay within the Guidelines, tearing away the discretion that is the essence of a judge’s responsibility, and causing harsh results nationally.

San Francisco, San Jose and Oakland federal judges – like judges across the country – stayed within the Guideline range (or went below the range at Department of Justice request) more than 80% of the time, according to 2006 statistics from the U.S. Sentencing Commission (Preliminary Quarterly Data Report Through March 31, 2007, U.S. Sentencing Commission, Table 2).

When even the current President calls a properly calculated Guidelines sentence "excessive" – as George Bush did when commuting I. Lewis ("Scooter") Libby's 30-month sentence – it is plain the federal sentencing system needed change.

b. What Gall Does.

Gall v. United States grants federal judges discretion to sentence below the U.S. Sentencing Guidelines and do the right thing in an individual case, provided the judge explains the sentence imposed. Gall strips away the muscular sentencing strength used the the Department of Justice to extract guilty pleas and demand cooperation.

Now, if the Department of Justice appeals a below–Guideline sentence, claiming it is not tough enough, the government will lose unless the prosecutor convinces the court of appeals that the judge abused his or her discretion.

“Abuse of discretion” is a broad term that encourages district court judges to consider a wide range of options beyond the matrix of the sentencing guidelines, and dramatically reduces the risk of reversal on appeal.

c. Moving Off The Guidelines Grid.

Before Gall, the conviction consequences under the U.S. Sentencing Guidelines for exercising the Sixth Amendment right to jury trial were so severe that there was in fact a "trial penalty." Federal defendants would chose a bad plea bargain rather than going to trial knowing an unavoidable and horrifically long custody term would follow if convicted at trial.

Gall changes the analysis in ways small and large.

Criminal defense lawyers will see the easy lesson that Gall opens up a world of possibilities for below-guideline sentences in the San Francisco, San Jose and Oakland courthouses. How to get to that lower sentence is described in the next post.

Federal criminal defense counsel having substantial experience already recognize the more important points.

No longer need the negotiation be on the Government’s terms and flyspecking technical issues such as two or three “points” for acceptance of responsibility, or the location of a prison for service of the sentence.

Real lawyering is more valuable than ever. Defense counsel now have significantly greater opportunities to:

  • Head off the filing of charges, by developing and demonstrating to the prosecutor an investigation’s inherent, unavoidable weaknesses, and showing that the case has little sentencing appeal to a federal judge with sentencing discretion (regardless of what the sentencing guidelines say);
  • Exercise trial skills, because going to trial holds less downside risks than before – giving the client a meaningful choice in many cases; and
  • Settle cases on better terms If the client prefers to settle the case, then the ability to assess what a case is worth (without the historical blinders of the Sentencing Guidelines) is a more important skill than ever. Developing the sentencing package to reach that result is what will make the most important difference in a client’s life.

d. Palo Alto Attorney Lee Altschuler’s Comments.

Selecting experienced and talented criminal defense counsel has always been essential to survival of a federal criminal investigation. Gall adds a new factor to consider: Does this lawyer have award-winning experience both under the Sentencing Guidelines as well as the more discretionary system now in place?

Before the Supreme Court made the Guidelines mandatory, Lee Altschuler was practicing federal criminal law in San Francisco and San Jose. He has practiced with distinction under the “old” factors of §3553(a), the pure Sentencing Guidelines; and the Guidelines as modified by Booker and now Gall v. United States.