The Court also makes clear that any attempt to give special weight to the sentencing guideline is contrary to its holding in Booker, which means the guidelines are advisory. See also, Kimbrough v. United States, 552 U.S. ___, 2007 WL 4292040 (Dec. 10, 2007) (allowing judges to impose lower sentences based on the unfairness of the 100 to 1 crack cocaine ratio). Both cases, decided the same day make it clear that the district courts are only required to give “some weight” to the advisory guidelines, as they are to the other 18 U.S.C. § 3553(a) factors.
Kimbrough goes one step beyond doing away with any special weight appellate courts have attached to the guidelines. It holds that a district court’s judgment that a particular sentence is “sufficient, but not greater than necessary” is entitled to great weight, even if the district court’s judgment is based on its disagreement with the policies behind the applicable guideline. Of particular note is the Court’s holding that the district court in Kimbrough had properly imposed a below-guideline sentence to avoid the unwarranted disparity a guideline sentence would create between the defendant in that case, who was convicted on crack cocaine charges, and defendants convicted of powder cocaine offenses. Kimbrough gives defense attorneys license to think creatively about how guideline sentences themselves create “unwarranted disparities.” It is now entirely possible to obtain a lower non-guideline sentence by arguing that a particular guideline sentence would create unwarranted disparities with sentences imposed in similar state cases. For example, the extremely harsh guidelines for simply downloading child pornography from the internet may be particularly vulnerable to attack after Kimbrough.
We believe that as a result of Kimbrough and Gall the pendulum has shifted dramatically back to where judges have more discretion than they have ever had since pre-guideline days in fashioning an appropriate sentence in a particular case. As such we believe that with our background, experience and knowledge of federal sentencing and prison matters, we can be more valuable than ever in assisting counsel and their clients in obtaining the lowest possible sentence and if it is one of incarceration to be served at the best place possible, under terms and conditions that will enable one to be released at the earliest possible opportunity.
For a no-obligation discussion of a particular case, please do not hesitate to contact us.