Government concedes in Gall that variances can be “based solely on policy disagreements with the Guidelines”
This week the Government filed its merits brief in US v. Gall, the below-guidelines reasonableness case to be heard by the Supreme Court at the start of the new Term, and it is available for download below. Confirming an important point conceded by Deputy SG during last Term’s oral arguments, the Government’s Gall brief states repeatedly that policy disagreements with the Guidelines can be a valid basis for a variance — even though many circuit have held otherwise (like the Tenth Circuit in a split ruling yesterday) and even though many lower court briefs filed by the Government have argued otherwise.
Here is a brief snippet from the summary of argument in the Government’s Gall brief that spotlights this important point:
Contrary to petitioner’s suggestion, proportionality review does not require an “extraordinary” justification for every non-Guidelines sentence. Only sentences that dramatically vary from the range require substantial justification. Similarly, proportionality review does not demand that every variance be supported by a “fact” that is not encompassed within the jury verdict or guilty plea. Considerations of policy, as well as facts, can support a variance; the test is the cogency and strength of the rationale, not whether it is fact-based.