Monday, June 16, 2008

Third Circuit Examines United States v. Gunter In Light of Supeme Court's Sentencing Jurisprudence

In United States v. Gunter, No. 07-1291, (3d Cir. June 9, 2008), the Third Circuit discussed the impact of the Supreme Court's recent sentencing cases on its precedential opinion in United States v. Gunter, 462 F.3d 237 (3d Cir. 2006), which set forth the following three-step process that district courts must use for sentencing:

(1) Courts must continue to calculate a defendant's Guidelines sentence precisely as they would have before United States v. Booker, 543 U.S. 220 (2005).

(2) In doing so, they must formally rule on the motions of both parties and state on the record whether they are granting a departure and how that departure affects the Guidelines calculation, and take into account the Circuit's pre-Booker case law, which continues to have advisory force; and

(3) Finally, courts are required to exercise their discretion by considering the relevant 18 U.S.C. § 3553(a) factors in setting the sentence they impose regardless whether it varies from the sentence calculated under the Guidelines.

Gunter, 462 F.3d at 247.

Facts & Procedural History: Detectives found Gunter in a motel with 72.5 grams of crack and a loaded firearm. Gunter was indicted for conspiracy to distribute in excess of 50 grams of crack (in violation of 21 U.S.C. § 846), possession with intent to distribute in excess of 50 grams of crack (in violation of 21 U.S.C. § 841(a)(1)), possession of crack with the intent to distribute within 1,000 feet of a school (in violation of 21 U.S.C. § 860(a)), carrying a firearm during and in relation to a drug trafficking crime (in violation of 18 U.S.C. § 924(c)), and possession of a firearm by a convicted felon (in violation of 18 U.S.C. § 922(g)(1)). A jury convicted Gunter on all counts.

Gunter asked the District Court to sentence him below his Guidelines range on several grounds, including the “disparity” created by the longer sentences recommended for offenses involving crack cocaine. The District Court refused to do so, stating that it could not “second guess Congress' ... intent.” The Third Circuit reversed and remanded for resentencing.

On remand, and pursuant to the Third Circuit’s precedential opinion in United States v. Gunter, 462 F.3d 237 (3d Cir. 2006), the District Court held a second sentencing hearing. The court adopted the Guidelines range from the first sentencing hearing, which included a range of 235 to 293 months' imprisonment for the drug offenses, plus a consecutive 60 months' imprisonment for the 18 U.S.C. § 924(c) offense. This led to a total Guidelines range of 295 to 353 months' imprisonment.

The District Court imposed a below-Guidelines sentence of 283 months' imprisonment. Gunter appealed, arguing that although the District Court recognized correctly that it could not establish a new crack-to-powder ratio for purposes of calculating the Guidelines range under Step 1, the District Court incorrectly concluded that it could not disagree with the Guidelines at Step 3 solely on policy grounds.

Court's Analysis: Pursuant to United States v. Booker, 543 U.S. 220 (2005), and United States v. Cooper, 437 F.3d 324 (3d Cir. 2006), the Third Circuit reviewed Gunter’s sentence for reasonableness. The Court cited United States v. Gall, 128 S.Ct. 586 (2007) and its recent sentencing jurisprudence, which held that the district courts' sentencing decisions are to be reviewed under a deferential abuse of discretion standard. The Court noted the continuing vitality of its decision in United States v. Cooper, 437 F.3d 324 (3d Cir. 2006), which should be read in light of Gall, and the district court's broad sentencing discretion.

Turning to its prior Gunter decision (462 F.3d 237), the Court stated that Gall reemphasized the post-Booker sentencing structure set forth in the Court's precedent. After reviewing the entire sentencing transcript, the Court determined that the District Court "was cognizant of and acted consistent with the caselaw of this Circuit and recent rulings of the Supreme Court pertaining to the crack-to-powder ratio."

The Court explained:

Once Steps 1 and 2 of the sentencing process are completed, Gunter allows district courts to consider the crack-to-powder ratio along with the 3553(a) factors at Step 3 when sentencing defendants, noting that “the District Court erred under Booker in treating the crack/powder cocaine sentencing differential ... as mandatory.” Gunter, 462 F.3d at 248-49. Nevertheless, Gunter prohibits categorical rejection of the 100:1 ratio. Id. at 249 (“[W]e do not suggest (or even hint) that the Court categorically reject the 100:1 ratio and substitute its own, as this is verboten.”). On the surface, these two principles appear to conflict somewhat.

This Court used its decision in United States v. Ricks, 494 F.3d 394 (3d Cir. 2007), to clear up any confusion in the Gunter holding . . . [D]istrict
courts should first calculate the correct Guidelines range and rule on any departure motions. . . . This obviously means that a correct Guidelines sentence must be made using the applicable Guidelines crack-to-powder ratio. Failure to properly calculate the Guidelines is a procedural error that requires remand unless the error is harmless. Ricks further explained that at Step 3, the district court cannot categorically disagree with the crack-to-powder sentencing disparity; rather, the district court may consider the disparity, but only in reference to individual, case-specific factors under 18 U.S.C. §
3553(a). The Court stated: ‘In short, a district court may, at step three, view the sentencing disparity as too vast. However, it must do so as applied to the particular defendant that appears before the court.’

The Court noted that Ricks was followed by the Supreme Court's decision in Kimbrough v. United States, 128 S.Ct. 558 (2007), which stated that it would not be an abuse of discretion for district courts to conclude when sentencing a particular defendant that the crack/powder disparity yields a sentence greater than necessary to achieve § 3553(a)'s purposes. Stating that Kimbrough's language was consistent with the Court's own statements in Ricks and Gunter: the Court stated:

Simply put, a district court may not employ a “rubber stamp” approach that categorically rejects the crack/powder disparity without an individualized assessment of the § 3553(a) factors and the facts of a particular case. Such an approach would be tantamount to the district court setting its own crack/powder ratio, which Gunter and Ricks forbid. Nevertheless, even in an ordinary case, the district court may determine that the crack/powder ratio yields a sentence that is greater than necessary after giving proper consideration to the § 3553(a) factors and the circumstances of the particular case. The district court would then be free to disagree with the policy underlying the crack/powder ratio as applied to that particular defendant and make an appropriate downward variance in its sentence. The difference between what a court may do and may not do goes beyond mere words. There must be meaningful consideration of the § 3553(a) factors and the particular circumstances of the case before a
variance is made.

The Third Circuit concluded that the District Court carefully considered all of the relevant § 3553(a) factors and made a variance below the Guidelines range, noting in particular Appellant's “efforts at reducing the chances of recidivism and increasing the chances for successful supervised release.” The below-Guidelines variance further illustrates the District Court's understanding of the advisory nature of the Guidelines. Because the District Court complied with the controlling case law of this Circuit and the Supreme Court, the Court affirmed the overall length of the District Court's sentence.

The Court, however, vacated Gunter's sentence on Count 5, because the District Court's concurrent sentence of 223 months on Count 5, which charged a violation of 18 U.S.C. § 922(g), exceeded the statutory maximum of 10 years. On remand, the District Court must reduce Gunter's sentence to no more than 120 months. This change does not affect the overall sentence of 283 months.

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The District Court's indication of the sentence it would impose before the defendant allocuted was not reversible plain error.

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