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Appellate Review of Federal Criminal Sentences: Let the Battle Begin!

Kish Law LLC

There are battles brewing over appellate review of federal criminal sentences. The recent decision from the United States Supreme Court in Gall v. United States appeared to end these battles, but recent cases show that the controversy will continue for a while.

Let’s go over again for a moment how all this came about, and then let’s talk about what has happened recently. Remember, the United States Sentencing Guidelines came into law in 1987, and these rules are considered by many to be overly harsh. Many judges who were required to follow these rules also felt the Guidelines went way too far in requiring long prison sentences. Myself and other lawyers fought against these rules for years, and the Supreme Court finally declared the Guidelines unconstitutional in 2005. However, the Supreme Court also said that the Guidelines are “advisory”, and that judges at least need to consult these rules before imposing a sentence. After the Supreme Court said that the Guidelines are no longer mandatory, a growing group of judges used their new-found discretion to impose sentences that were shorter than what was called for by these sentencing rules. Predictably, prosecutors got angry and went running to the appellate courts asking that these shorter sentences get reversed. I have written previously about this topic.

In the recent Gall decision, the Supreme Court made clear that it wants the sentencing judge to have the greatest amount of discretion in this area. In that case, the Guidelines called for 30-37 months in prison, but the sentencing judge chose to put that young defendant on probation. The appellate court reversed, but the Supreme Court said the sentencing judge was well within his discretion in imposing that sentence. Gall would seem to show that sentences outside the range called for by the Guidelines will almost always be upheld.

However, a battle seems to be brewing in the United States Court of Appeals for the Eleventh Circuit. Three days after Christmas (and a mere 18 days after the ink was dry on the Supreme Court’s Gall decision) a split panel of that court affirmed a lower sentence imposed on a defendant convicted of possessing child pornography. The defendant had a truly horrific childhood, with his father getting murdered, the defendant was then physically abused by other family members, and the defendant then was put into foster care, where he was repeatedly sexually abused. The sentencing judge reduced the sentence for this defendant down to 7 years, which was below the Guidelines’ range. The majority of two judges affirmed this shorter sentence. However, a blistering dissent from Judge Joel Dubina perhaps is the opening salvo in the next line of battles in this area. Judge Dubina simply could not understand how such a lower sentence is “reasonable”, even though the Supreme Court recently said that the sentencing judge has tremendous discretion in this area. Look for this and other cases to possibly be taken up by the entire Eleventh Circuit when they occasionally give what we call “en banc” review to selected decisions.

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