Criminal Law Newsletter December 2007 ABA

ABA CRIMINAL LAW COMMITTEE NEWSLETTER December 2007 ABA General Practice, Solo and Small Firm Division American Bar Association Brian T Hermanson Ponca City, Oklahoma Chair (580) 762-0020 bhermanson@oklawhoma.com Kenneth Vercammen, Esq. Deputy Chair / co- Editor Edison, NJ In this Issue: 1. U.S. Supreme Court, December 10, 2007 2

Gall v. US, No. 06-7949

Watson v. US, No. 06–571

3. Kimbrough v. US, No. 06-6330 U.S. Supreme Court, December 10, 2007 4. Season's greetings from Kenneth Vercammen, Esq., his family and Frizby the dog.

5. More Criminal articles and forms added to website http://benotguilty.com/ ____________________________________________________ 1. U.S. Supreme Court, December 10, 2007

Gall v. US, No. 06-7949

In reviewing the reasonableness of sentences imposed by district judges, while the extent of the difference between a particular sentence and the recommended Sentencing Guidelines range is relevant, courts of appeals must review all sentences whether inside, just outside, or significantly outside the Guidelines range, under a deferential abuse-of-discretion standard

SUPREME COURT OF THE UNITED STATES GALL v. UNITED STATES certiorari to the united states court of appeals for the eighth circuit

No. 06–7949. Argued October 2, 2007—Decided December 10, 2007 Petitioner Gall joined an ongoing enterprise distributing the controlled substance “ecstasy” while in college, but withdrew from the conspiracy after seven months, has sold no illegal drugs since, and has used no illegal drugs and worked steadily since graduation.

Three and half years after withdrawing from the conspiracy, Gall pleaded guilty to his participation. A presentence report recommended a sentence of 30 to 37 months in prison, but the District Court sentenced Gall to 36 months’ probation, finding that probation reflected the seriousness of his offense and that imprisonment was unnecessary because his voluntary withdrawal from the conspiracy and post offense conduct showed that he would not return to criminal behavior and was not a danger to society. The Eighth Circuit reversed on the ground that a sentence outside the Federal Sentencing Guidelines range must be— and was not in this case—supported by extraordinary circumstances.

Held: 1. While the extent of the difference between a particular sentence and the recommended Guidelines range is relevant, courts of appeals must review all sentences—whether inside, just outside, or significantly outside the Guidelines range—under a deferential abuse-of-discretion standard. Pp. 7–14. (a) Because the Guidelines are now advisory, appellate review of sentencing decisions is limited to determining whether they are “reasonable,” United States v. Booker, 543 U. S. 220 , and an abuse-ofdiscretion standard applies to appellate review of sentencing decisions. A district judge must consider the extent of any departure from the Guidelines and must explain the appropriateness of an unusually lenient or harsh sentence with sufficient justifications.

An appellate court may take the degree of variance into account and consider the extent of a deviation from the Guidelines, but it may not require “extraordinary” circumstances or employ a rigid mathematical formula using a departure’s percentage as the standard for determining the strength of the justification required for a specific sentence. Such approaches come too close to creating an impermissible unreasonableness presumption for sentences outside the Guidelines range. The mathematical approach also suffers from infirmities of application. And both approaches reflect a practice of applying a heightened standard of review to sentences outside the Guidelines range, which is inconsistent with the rule that the abuse-of-discretion standard applies to appellate review of all sentencing decisions

—whether inside or outside that range. Pp. 7–10. (b) A district court should begin by correctly calculating the applicable Guidelines range. The Guidelines are the starting point and initial benchmark but are not the only consideration. After permitting both parties to argue for a particular sentence, the judge should consider all of 18 U. S. C. §3353(a)’s factors to determine whether they support either party’s proposal. He may not presume that the Guidelines range is reasonable but must make an individualized assessment based on the facts presented. If he decides on an outside-the-Guidelines sentence, he must consider the extent of the deviation and ensure that the justification is sufficiently compelling to support the degree of variation. He must adequately explain the chosen sentence to allow for meaningful appellate review and to promote the perception of fair sentencing. In reviewing the sentence, the appellate court must first ensure that the district court made no significant procedural errors and then consider the sentence’s substantive reasonableness under an abuse-of-discretion standard, taking into account the totality of the circumstances, including the extent of a variance from the Guidelines range, but must give due deference to the district court’s decision that the §3553(a) factors justify the variance. That the appellate court might have reasonably reached a different conclusion does not justify reversal. Pp. 11–14.

2. On abuse-of-discretion review, the Eighth Circuit failed to give due deference to the District Court’s reasoned and reasonable sentencing decision. Since the District Court committed no procedural error, the only question for the Circuit was whether the sentence was reasonable, i.e., whether the District Judge abused his discretion in determining that the §3553(a) factors supported the sentence and justified a substantial deviation from the Guidelines range. The Circuit gave virtually no deference to the District Court’s decision that the variance was justified. The Circuit clearly disagreed with the District Court’s decision, but it was not for the Circuit to decide de novo whether the justification for a variance is sufficient or the sentence reasonable. Pp. 14–21.

2

Watson v. US, No. 06–571

U.S. Supreme Court, December 10, 2007

In the context of criminal sentencing, a person who trades his drugs for a gun does not "use" a firearm "during and in relation to . . . [a] drug trafficking crime" within the meaning of 18 U.S.C. section 924(c)(1)(A).

After trading a controlled substance for a pistol, petitioner Watson was indicted for, inter alia, violating 18 U. S. C. §924(c)(1)(A), which sets a mandatory minimum sentence, depending on the facts, for a defendant who, “during and in relation to any … drug trafficking crime[,] … uses … a firearm.” The statute does not define “uses,” but this Court has spoken to it twice. In holding that “a criminal who trades his firearm for drugs ‘uses’ it … within the meaning of §924(c)(1),” Smith v. United States, 508 U. S. 223 , the Court rested primarily on the “ordinary or natural meaning” of the verb in context, id., at 228, understanding its common range as going beyond employment as a weapon to trading a weapon for drugs, id., at 230.

Later, in holding that merely possessing a firearm kept near the scene of drug trafficking is not “use” under §924(c)(1), the Court, in Bailey v. United States, 516 U. S. 137 , again looked to “ordinary or natural” meaning, id., at 145, deciding that “§924(c)(1) requires evidence sufficient to show an active employment of the firearm by the defendant, a use that makes the firearm an operative factor in relation to the predicate offense,” id., at 143. Watson pleaded guilty but reserved the right to challenge the factual basis for a §924(c)(1)(A) conviction and sentence. The Fifth Circuit affirmed on its precedent foreclosing any argument that Watson had not “used” a firearm.

Held: A person does not “use” a firearm under 18 U. S. C. §924(c)(1)(A) when he receives it in trade for drugs. Pp. 4–9. (a) The Government’s position lacks authority in either precedent or regular English. Neither Smith, which addressed only the trader who swaps his gun for drugs, not the trading partner who ends up with the gun, nor Bailey, which ruled that a gun must be made use of actively to satisfy §924(c)(1)(A), decides this case. With no statutory definition, the meaning of “uses” has to turn on “everyday meaning” revealed in phraseology that strikes the ear as “both reasonable and normal.” Smith, supra, 228, 230. When Watson handed over the drugs for the pistol, the officer “used” the pistol to get the drugs, but regular speech would

not say that Watson himself used the pistol in the trade. Pp. 4–5. (b) The Government’s first effort to trump ordinary English is rejected. Noting that §924(d)(1) authorizes seizure and forfeiture of firearms “intended to be used in” certain crimes, the Government infers that since some of those offenses involve receipt of a firearm, “use” necessarily includes receipt of a gun even in a barter transaction. The Government’s reliance on Smith for the proposition that the term must be given the same meaning in both subsections overreads Smith. The common verb “use” is not at odds in the two subsections but speaks to different issues in different voices and at different levels of specificity.

Section 924(d)(1) indicates that a gun can be “used” in a receipt crime, but does not say whether both parties to a transfer use the gun, or only one, or which one; however, §924(c)(1)(A) requires just such a specific identification. Pp. 5–7. (c) Nor is the Government’s second effort to trump ordinary English persuasive. It claims that failing to treat receipt in trade as “use” would create unacceptable asymmetry with Smith; i.e., it would be strange to penalize one side of a gun-fordrugs exchange but not the other. The problem is not with Smith, however, but with the limited malleability of the language it construed, and policy-driven symmetry cannot turn “receipt-in-trade” into “use.” Whatever the tension between the prior result and the outcome here, law depends on respect for language and would be served better by statutory amendment than by racking statutory language to cover a policy it fails to reach. Pp. 8–9.

3. Kimbrough v. US, No. 06-6330 U.S. Supreme Court, December 10, 2007 Under United States v. Booker, 543 U. S. 220 , the cocaine Guidelines, like all other Guidelines, are advisory only, and the Fourth Circuit erred in holding the crack/powder disparity effectively mandatory. A district judge must include the Guidelines range in the array of factors warranting consideration, but the judge may determine that, in the particular case, a within-Guidelines sentence is “greater than necessary” to serve the objectives of sentencing, §3553(a). In making that determination, the judge may consider the disparity between the Guidelines’ treatment of crack and powder offenses 4. Season's greetings from Kenneth Vercammen, Esq., his family and Frizby the

dog.

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Marijuana Traffic fines, points, jail Possession of drugs with Intent to Distribute Drugs Assault

Driving While Intoxicated Unlawful possession of weapons Terrorist Threats Shoplifting Sentencing Theft of Movable Property NJ Municipal Court and Criminal Interview Traffic Court Interview Form WE PUBLISH YOUR FORMS AND ARTICLES The Criminal Law Committee helps to keep solo and small firms members updated on criminal law and procedure. Programs presented by the committee are basic "how to's" on handling your first criminal law case, or answering questions from your clients when criminal law issues arise in the general practice context. We welcome all who wish to participate and accept all suggestions for programming ideas.

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Brian T Hermanson Ponca City, OK

Chair

(580) 762-0020 bhermanson@oklawhoma.com

Kenneth Vercammen, Esq. Deputy Chair / co- Editor KENNETH VERCAMMEN & ASSOCIATES, PC ATTORNEY AT LAW 2053 Woodbridge Ave.

Edison, NJ 08817 (Phone) 732-572-0500 (Fax)

732-572-0030

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