News Release

Supreme Court Decisions Affirm Judicial Discretion, ‘Advisory' Sentencing Guidelines

Third Decision Holds Defendant Who Received Firearm As Payment Did Not “Use” It

Washington, DC­ (December 10, 2007) -- In two cases today, the U.S. Supreme Court affirmed its confidence that experienced federal judges have the discretion to craft an appropriate sentence that is “sufficient, but not greater than necessary” to accomplish the goals set forth by Congress in the Sentencing Reform Act of 1984. Today’s cases firmly establish that the federal sentencing guidelines are “advisory” only and that sentences within and outside the guidelines must be “reasonable.”

In one of those cases, Kimbrough v. United States, No. 06-6330, the Court held that a sentencing judge can consider the enormous disparity in punishments for crack versus powder cocaine in sentencing a defendant who sold crack below the guidelines range, based in part on the sentencing commission’s own criticism of the crack/powder disparity.

The Kimbrough decision is timely—the U.S. Sentencing Commission may vote Tuesday afternoon (Dec. 11) whether to make retroactive the Nov. 1 crack cocaine guideline amendment that ameliorated some of the disparity. (The punishments for crack and powder are still subject to the congressionally-mandated minimum sentences, which continue to treat crack 100 times more harshly than powder.)

In the second sentencing guidelines case, Gall v. United States, No. 06-7949, the Court held that sentences outside the guidelines range do not need to be justified by “extraordinary circumstances,” as some courts have held. Instead, the sentencing court’s reasoning only need be compelling enough to justify the sentence. Once the appeals court has determined that the trial court did not make any procedural errors, it should not overturn the defendant’s sentence unless the trial court clearly abused its discretion.

The reasoning of the Eighth Circuit – that “extraordinary” circumstances must exist to justify a sentence outside the guidelines – comes too close to creating a presumption of unreasonableness for sentences that are otherwise justified, the Court said.

“The cases are the clearest and strongest rulings to date that federal trial judges can exercise their discretion to take their sentencing responsibilities seriously again,” said Carmen D. Hernandez, president of the National Association of Criminal Defense lawyers (NACDL). “There is no doubt left that an inappropriate guidelines calculation is open to challenge – individually, as imposed in a particular case, and categorically, where the Commission has not followed Congress’ command that a sentence be “sufficient, but not greater than necessary.”

NACDL filed a friend-of-the-court brief in the Supreme Court in support of petitioners Derrick Kimbrough and Brian Gall. The brief argued that the Eighth Circuit’s “extraordinary circumstances” requirement for a sentence outside the guidelines was inconsistent with the Court’s prior decisions in United States v. Booker, 543 U.S. 220 (2005), and Rita v. United States, 551 U.S. __ (2007), and that sentencing judges must consider whether the guideline ranges applicable to a given offense adequately represent a sound balancing of all the statutory factors pertinent to selecting the sentence for a particular case or group of cases within that category. The brief was authored by

“Today’s decisions should give the Sentencing Commission the same confidence in the federal judiciary as the Supreme Court, when it votes whether to make the recent crack amendment retroactive,” Hernandez said.

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In a third case handed down today in which NACDL argued in favor of the prevailing petitioner, the Court held that a person who trades his drugs for a gun does not “use” a firearm “during and in relation to” a drug-trafficking offense, a crime which carries a mandatory 5-year sentence. In Watson v. United States, No. 06-571, the defendant, Michael Watson, told an undercover informant that he wished to buy gun. The informant replied that he knew a firearms dealer who would trade Watson a handgun for oxycodone. Watson was arrested and convicted for “using” the firearm that he received in exchange for the pills. The Supreme Court decided that “the meaning of the verb ‘uses’” must turn on its “everyday meaning.”

In a previous ruling, the Court held that a person who trades a gun for drugs “uses” the firearm in a drug transaction, but that case too turned on the ordinary meaning of “use.”

“The Government may say that a person ‘uses’ a firearm simply by receiving it in a barter transaction, but no one else would,” the Court said. Distinguishing the prior ruling, the Court explained, “A boy who trades an apple to get a granola bar is sensibly said to use the apple, but one would never guess which way this commerce actually flowed from hearing that the boy used the granola.”

NACDL’s amicus curiae briefs in support of petitioners Gall and Kimbrough, and petitioner Watson, are on NACDL’s Amicus Web Page at  

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The National Association of Criminal Defense Lawyers is the preeminent organization advancing the mission of the criminal defense bar to ensure justice and due process for persons accused of crime or wrongdoing. A professional bar association founded in 1958, NACDL's many thousands of direct members in 28 countries – and 90 state, provincial and local affiliate organizations totaling up to 40,000 attorneys – include private criminal defense lawyers, public defenders, military defense counsel, law professors and judges committed to preserving fairness and promoting a rational and humane criminal legal system.