The weighty guidelines question after Gall

I have now re-read the Supreme Court’s work in Gall, and I am intrigued by a weighty question left unaddressed by the majority opinion — namely, how much weight can and should the guidelines be given in a post-Booker advisory sentencing system. 

After Booker, many lower courts tried out various terms to define the amount of weight to be given to advisory guidelines — ranging from “heavy” to “substantial” to “considerable” — although the nomenclature seemed more important as an attitude than as a concrete standard.  Notably, the majority opinion in Gall does not directly address this issue.  Intriguingly, the Gall majority says “the Guidelines are only one of the factors to consider when imposing sentence,” Gall slip op. at 20-21, but earlier it indicated that “district courts must begin their analysis with the Guidelines and remain cognizant of them throughout the sentencing process.” Id. at 11 n.6.

Intriguingly, Justice Alito’s solo dissent is focused on weight issues.  He repeatedly asserts his view that the Booker remedy should be interpreted to mean that “sentencing judges must still give some significant weight to the Guidelines sentencing range.”  Slip op. at 8.  But the fact that he is writing alone — and does not get the vote of any Justices who joined the Booker remedy, not even Justice Breyer who is such a guideline fan — suggests that all the other Justices do not think that the guidelines must be given “some significant” weight.  That said, as Justice Alito stresses in the final footnote of his dissent, it does seem that the Court still believes the guidelines must be given “some weight.”

In short, after Booker, it seems that federal sentencing does not require giving “some significant weight” to the advisory guidelines, and yet giving them “some weight” is still required.  Got that district judges?