There being nothing of particular interest issued in the last couple of days [okay, so I'm about a week late with this] we are going to reach back to a case from January, United States v. Bistline, 665 F.3d 758 (2012), to discuss some important observations by the sentencing resource counsel on the holding in that case.
Bistline was a government appeal of a sentence of 1 day in jail followed by 10 years of supervised release in a possession of child pornography case for a 67-year old defendant with no prior criminal record and who had suffered 2 strokes in the preceding 11 years with an advisory guideline range of 63 – 78 months. (The Probation Office had recommended a sentence of 24 months.) In reaching that sentence the district court noted that the guideline in question, §2G2.2, was seriously flawed due, in part, to Congress’ involvement in its creation. (The child pornography guidelines are nationally among the most departed or varied downward from.)
In finding the sentence to be unreasonable, the Court of Appeals first reviewed the district court’s rejection of §2G2.2 based on Congress’ role in its development. In doing so the Court of Appeals first noted that "if a district court chooses to disagree with a guideline, we will ‘scrutinize closely’ its reasons for doing so," id. at 761, and then noted that "a district court cannot reasonably reject §2G2.2 – or any other guidelines provision – merely on the ground that Congress exercised, rather than delegated, its power to set the policies reflected therein." Id. at 762. Attempting to distinguish the guidelines challenge to the crack-to-powder ratio in Kimbrough, the Court notes that the ratio, although derived from the relevant statute, was all the Commission’s doing. The Court then held that "when a guideline comes bristling with Congress’s own empirical and value judgments – or even just value judgments – the district court that seeks to disagree with the guideline on policy grounds faces a considerably more formidable task than the district court did in Kimbrough. A court that disagrees with §2G2.2 must take on this formidable task." Id. at 764. Having set the bar so high, it is small wonder that the Court finds the district court here unable to top it.
Also, addressing the district court’s consideration of the § 3553(a) factors relating to the "history and characteristics of the defendant," the Court of Appeals, citing to U.S. v. Christman, 607 F.3d 1110 (6th Cir. 2010), found that the sentence was unreasonable because the characteristics that the district court cited in support of its downward variance – age, physical condition and family responsibilities – "are all discouraged factors under the guidelines."
These rulings raise serious questions that appear to conflict with the Supreme Court’s post-Booker sentencing cases. First, with regard to the "closer scrutiny" the Court of Appeals would now apply to variances based on policy disagreements, the Supreme Court in Kimbrough refused to apply such closer scrutiny to the decision of the district court there to vary the sentence based on the problems with the crack guidelines because the Commission was not acting in its "characteristic institutional role" in creating the crack guideline, in part because it followed Congress’ lead in using the 100:1 ratio for the mandatory minimums. Kimbrough, 128 S.Ct. at 575. As such, the district court’s rejection of §2G2.2 on policy grounds based on the Commission’s failure to act in its usual institutional role is one of the decisions that is exempt from "closer review" under Kimbrough. The Court of Appeals’ attempt to distinguish Kimbrough as being all about the Commission (and not Congress) would seem to be unavailing where 1) Congress created the 100:1 ratio and used it to set the mandatory minimum sentences in the statute, 2) the Commission brought the problems with the crack-to-powder ratio to Congress’ attention at least twice before the Fair Sentencing Act and Congress refused to change it (that is, Congress continued to mandate the policy to the Commission), and 3) the government argued in Kimbrough that "Congress ‘not only disapproved of the 1:1 ratio,’ ... it also made clear ‘that the 1986 Act required the Commission (and sentencing courts) to take drug quantities into account, and to do so in a manner that respects the 100:1 ratio.’ Brief of the United States 35." Id. at 572. (emphasis added.)
Further, in Gall v. U.S., 128 S.Ct. 586 (2007), the Court stated, "We reject, however, an appellate rule that requires ‘extraordinary’ circumstances to justify a sentence outside the Guidelines range.[at 595] ... Most importantly, ... the exceptional circumstances requirement ... reflect[s] a practice ... of applying a heightened standard of review to sentences outside the Guidelines range. This is inconsistent with the rule that the abuse-of-discretion standard of review applies to appellate review of all sentencing decisions – whether inside or outside the Guidelines range. [at 596]"
Second, the Court of Appeals’ decision is further undermined by the Supreme Court’s decision in Spears, 129 S.Ct. 840 (2009), in which it stated, "The correct interpretation of [the holding in Kimbrough] is the one offered by the [8th Circuit] dissent in Spears II: ... The only fact necessary to justify such a variance is the sentencing court’s disagreement with the guidelines – its policy view that the 100-to-1 ratio creates an unwarranted disparity.’" 129 S.Ct. at 842. And in case that didn’t make it clear enough, the Court stated, "That was indeed the point in Kimbrough: a recognition of district courts’ authority to vary from the crack cocaine Guidelines based on policy disagreement with them, and not simply based on an individualized determination that they yield an excessive sentence in a particular case." Id. at 843. (emphasis in original).
With regard to the Court of Appeals’ ruling on the "discouraged" Chapter 5H considerations, it first appears that the Court may have been applying an earlier version of the guidelines, unaware that a change was made in 2010. (Compare, e.g., §5H1.1 – Age (Policy Statement)  "Age ... is not ordinarily relevant in determining whether a departure is warranted." with §5H1.1 , "Age ... may be relevant in determining whether a departure is warranted..."; and, §5H1.4 , "Physical condition or appearance ... is not ordinarily relevant in determining whether a departure may be warranted." with §5H1.4 , "Physical condition or appearance ... may be relevant in determining whether a departure may be warranted...".)
Second, the Court of Appeals’ holding with regard to the Chapter 5H factors appears to be contrary to the Supreme Court’s rulings in Gall v. U.S., 128 S.Ct. 586 (2007) and Pepper v. U.S., 131 S.Ct. 1229 (2011), where the Supreme Court’s own analysis shows the relevant question in reviewing a request for variance is whether those factors are relevant to the purposes of sentencing in § 3553(a), not whether or not the Commission permits, prohibits or discourages the factor. In Pepper the Court refused to find a sentence unreasonable despite a policy statement, §5K2.19, expressly prohibiting the use of post-sentencing rehabilitation as the basis for a lower sentence, as the district court did in Pepper. In doing so the Court stated, "our post-Booker decisions make clear that a district court may in appropriate cases impose a non-Guidelines sentence based on a disagreement with the Commission’s views." 131 S.Ct. at 1247.
In an amicus brief filed by the Federal Defenders of the Sixth Circuit in support of Bistline’s request for rehearing en banc, the Defenders point out that the decision of panel in Bistline that Congress is free to marginalize the Commission all it wants because it created the Commission – to treat it as a "junior varsity," to borrow Justice Scalia’s phrase – may very well violate the constitutional bicameralism and presentment requirements as well as raise issues of separation of powers that were only avoided in Mistretta by a finding that Congress was not using the Commission as a "junior varsity." The Court of Appeals’ creation of this higher standard of review also essentially takes us back to mandatory guidelines, in violation of Booker and the Sixth Amendment. The Court of Appeals denied rehearing and rehearing en banc on February 29, 2012. Keep an eye out for the cert petition that is sure to follow.