Kimbrough's Not Just For Crack, and How to Vary Based On Policy Disagreements with Guidelines

United States v. Simmons, No. 08-60755 (5th Cir. May 18, 2009) (King, Stewart, Southwick)

In case there was any doubt left after Mondragon-Santiago as to whether Kimbrough allows a district court to vary from the advisory Guidelines range based on policy disgreements with guidelines other than the crack guidelines, Simmons makes things crystal clear:

Kimbrough does not limit the relevance of a district court’s policy disagreement with the Guidelines to the situations such as the cocaine disparity and whatever might be considered similar. In Kimbrough, the Court referred to the following concession made by the government: “the Guidelines are now advisory and . . . , as a general matter, courts may vary [from Guidelines ranges] based solely on policy considerations, including disagreements with the Guidelines.” Kimbrough, 128 S. Ct. at 570 (emphasis added) (internal quotation marks omitted). The Court added, however, that the appellate court may need to conduct a “closer review” if the judge has varied from the Guidelines because of a belief that the resulting sentence range, even in an unexceptional case, is inconsistent with Section 3553(a) factors. Id. at 575.

Whatever else in Kimbrough might require further case development, it is evident that the Supreme Court held that a district court’s policy disagreement with the Guidelines is not an automatic ground for reversal. See id.; see also Lindsay C. Harrison, Appellate Discretion and Sentencing after Booker, 62 U. MIAMI L. REV. 1115, 1136 (2008). The Court also required a more intense review when the district court declares a properly calculated sentencing range to be inconsistent with the Guidelines’ policy factors even for an ordinary case. Kimbrough, 128 S. Ct. at 575. If the concern instead is about the suitability of the sentence under the special conditions of a particular offender, the Court did not state that “closer review” is needed.

So how does this policy disagreement work? The court provides a helpful recipe:

Consideration of a policy statement is among the factors under Section 3553(a). Disagreement with the policy should be considered along with other factors. See id. After deciding that a sentence outside the Guidelines range is justified, the court “must consider the extent of the deviation and ensure that the justification is sufficiently compelling to support the degree of variance.” Gall, 126 S. Ct. at 597. Once those thought processes lead to a decision on the proper sentence, the court must explain itself in such as way as to permit “meaningful appellate review” and satisfy the need that sentencing fairness be perceived. Id.

Pop quiz: what kind of error is a district court's mistaken belief that it cannot vary based on policy disagreements with the Guidelines? Procedural error. Don't forget to object if the district court makes that mistake in one of your cases, lest you get saddled with plain error review on appeal.