Two years ago in United States v. Booker, the Supreme Court held that the mandatory federal sentencing guidelines violated the Sixth Amendment. To remedy the constitutional problems, the court held that the guidelines were "effectively advisory," that 18 U.S.C. 3553(a) governs a district court's sentencing decisions, and that the courts of appeals are to review sentences for unreasonableness. In Rita v. United States, decided this past June, the Supreme Court held that courts of appeals may, but need not, apply a presumption of reasonableness to within-guidelines sentences; the Court also made clear that the standard of review is abuse of discretion, and that district judges are not to apply a presumption of reasonableness to guidelines ranges when determining the sentence. The Supreme Court recently granted certiorari in two other cases, Gall v. United States and Kimbrough v. United States raising post-Booker sentencing issues. In Gall, the Court will decide whether a substantial variance from the guidelines must be justified by extraordinary circumstances, and in Kimbrough, whether the sentencing court is free in applying 18 U.S.C. 3553(a) to disagree with policy choices, such as the powder-to-crack cocaine ratio, made by the Sentencing Commission.
On July 26, 2007, NYCDL filed an amicus brief in Gall. NYCDL's brief focuses principally on the importance of alternatives to incarceration, particularly for low-level narcotics offenders and white collar defendants, and argues that proportionality review is inconsistent with congressional intent. In connection with the brief, NYCDL also updated its database of post-Booker reasonableness review cases (first filed in Rita) in the Eighth Circuit, and filed an appendix including this data.
Counsel for NYCDL on these briefs included Alexandra A.E. Shapiro (Counsel of Record) and Nathan H. Seltzer of Latham & Watkins LLP, and Professor Douglas Berman of The Ohio State University, Moritz College of Law.
To review a copy of NYCDL's brief in Gall v. United States, click here.
To review a copy of NYCDL's updated reasonableness review database, click here.
Gall v. United States Supreme Court Merits Stage Briefs
* Brief for Petitioner Brian Michael Gall
Kimbrough v. United States
Supreme Court Merits Stage Briefs
* Brief for Petitioner Derrick Kimbrough Other Amicus Briefs
* Brief for the National Association of Criminal Defense Lawyers
* Brief for the Washington Legal Foundation
* Brief for Families Against Mandatory Minimums
* Brief for Sentencing Project and Center for the Study of Race & Law at University of Virginia
* Brief for the Federal Public Community Defenders & the National Association of Federal Defenders (Kimbrough)
* Brief for the Federal Public Community Defenders & the National Association of Federal Defenders (Gall)
* Brief for the NAACP Legal Defense Fund
* Brief for the American Civil Liberties Union
Kimbrough Briefs
* Brief for Petitioner
