Judge Colloton calls upon Congress to address the post-Gall world

In a concurrence to an Eighth Circuit reasonableness opinion in US v. Shy, No. 06-4011 (8th Cir. Aug 15, 2008) (available here), Circuit Judge Steven Colloton expresses concerns about sentencing disparity in the post-Booker world and urges Congress to do something about it.  Here are some key passages from the concurrence:

The reason that the [below-guideline probation sentence at issue] must be affirmed is that in the aftermath of Booker, and especially Gall, the courts of appeals have only a modest role in reviewing the substantive reasonableness of sentences imposed above the statutory minimum sentence….

That the appellate court reasonably believes that a greater sentence was appropriate — i.e., that a longer term of imprisonment was necessary to satisfy the purposes of § 3553(a)(2) — is insufficient reason to reverse the district court.  And with respect to “the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct,” 18 U.S.C. § 3553(a)(6), which was thought by many after Booker to justify a more rigorous appellate review of sentences that varied substantially from the advisory guideline range, the Court indicated that because the sentencing judge in Gall merely “correctly calculated and carefully reviewed the Guidelines range, he necessarily gave significant weight and consideration to the need to avoid unwarranted disparities.” 128 S. Ct. at 599.

Within this framework, there is little room for a court of appeals to say that one judge was unreasonable to impose a sentence substantially above or below the guideline range while another was reasonable to sentence within the guidelines, or vice-versa. As it was before the Sentencing Reform Act of 1984, sentencing judges have a great deal of discretion to sentence within the wide boundaries of the statutory range of authorized penalties.  There is some degree of appellate review for substantive reasonableness that did not exist prior to the Act, and appellate courts are permitted to “take into account . . . the extent of any variance from the Guidelines range,” id. at 597, but this appellate review is quite different from that conducted under the mandatory guidelines system envisioned by Congress or even from the “proportionality review” applied to variances from the guidelines by courts of appeals in the period between Booker and Gall.  The reality is that a defendant’s ultimate sentence now depends substantially on the personal sentencing philosophy of his or her sentencing judge.

It is for Congress and the Executive to decide whether the system resulting from Booker and Gall constitutes good or bad sentencing policy.  As the policymaking branches assess recent developments, however, we should not through our opinions create the illusion that it is only an “extraordinary” case, where a sentencing judge gives “persuasive reasons,” in which a court of appeals must uphold a sentence that is substantially above or below the advisory guideline range.  A defendant just like Burton may receive a sentence of 37 months’ imprisonment or she may receive a sentence of probation, depending on the discretionary (and, no doubt, good faith) judgment of individual sentencing judges — judges who may occupy chambers in the same judicial circuit, the same district or even the same building. Whether that sort of disparity is tolerable in the federal criminal justice system, or whether there is need for legislative reform consistent with the Sixth Amendment, see, e.g., Gall, 128 S. Ct. at 603 (Souter, J., concurring), is a matter for serious deliberation.