Gall v. United States, 552 U.S. 38 (2007)
SYLLABUS
OCTOBER TERM, 2007
GALL V. UNITED STATES
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 postoffense 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-of-discretion 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.
446 F. 3d 884, reversed.
Stevens, J., delivered the opinion of the Court, in which Roberts, C. J., and Scalia, Kennedy, Souter, Ginsburg, and Breyer, JJ., joined. Scalia, J., and Souter, J., filed concurring opinions. Thomas, J., and Alito, J., filed dissenting opinions.
OPINION OF THE COURT
GALL V. UNITED STATES
552 U. S. ____ (2007)
SUPREME COURT OF THE UNITED STATES
NO. 06-7949
BRIAN MICHAEL GALL, PETITIONER v. UNITED STATES on writ of certiorari to the united states court of appeals for the eighth circuit [December 10, 2007] Justice Stevens delivered the opinion of the Court. In two cases argued on the same day last Term we considered the standard that courts of appeals should apply when reviewing the reasonableness of sentences imposed by district judges. The first, Rita v. United States, 551 U. S. ___ (2007), involved a sentence within the range recommended by the Federal Sentencing Guidelines; we held that when a district judge’s discretionary decision in a particular case accords with the sentence the United States Sentencing Commission deems appropriate “in the mine run of cases,” the court of appeals may presume that the sentence is reasonable. Id., at ___ (slip op., at 11). The second case, Claiborne v. United States, involved a sentence below the range recommended by the Guidelines, and raised the converse question whether a court of appeals may apply a “proportionality test,” and require that a sentence that constitutes a substantial variance from the Guidelines be justified by extraordinary circumstances. See Claiborne v. United States, 549 U. S. ___ (2006). We did not have the opportunity to answer this question because the case was mooted by Claiborne’s untimely death. Claiborne v. United States, 551 U. S. ___ (2007) (per curiam). We granted certiorari in the case before us today in order to reach that question, left unanswered last Term. 551 U. S. ___ (2007). We now hold that, while the extent of the difference between a particular sentence and the recommended Guidelines range is surely 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. We also hold that the sentence imposed by the experienced District Judge in this case was reasonable. I In February or March 2000, petitioner Brian Gall, a second-year college student at the University of Iowa, was invited by Luke Rinderknecht to join an ongoing enterprise distributing a controlled substance popularly known as “ecstasy.”[Footnote 1] Gall—who was then a user of ecstasy, cocaine, and marijuana—accepted the invitation. During the ensuing seven months, Gall delivered ecstasy pills, which he received from Rinderknecht, to other conspirators, who then sold them to consumers. He netted over $30,000. A month or two after joining the conspiracy, Gall stopped using ecstasy. A few months after that, in September 2000, he advised Rinderknecht and other co-conspirators that he was withdrawing from the conspiracy. He has not sold illegal drugs of any kind since. He has, in the words of the District Court, “self-rehabilitated.” App. 75. He graduated from the University of Iowa in 2002, and moved first to Arizona, where he obtained a job in the construction industry, and later to Colorado, where he earned $18 per hour as a master carpenter. He has not used any illegal drugs since graduating from college. After Gall moved to Arizona, he was approached by federal law enforcement agents who questioned him about his involvement in the ecstasy distribution conspiracy. Gall admitted his limited participation in the distribution of ecstasy, and the agents took no further action at that time. On April 28, 2004—approximately a year and a half after this initial interview, and three and a half years after Gall withdrew from the conspiracy—an indictment was returned in the Southern District of Iowa charging him and seven other defendants with participating in a conspiracy to distribute ecstasy, cocaine, and marijuana, that began in or about May 1996 and continued through October 30, 2002. The Government has never questioned the truthfulness of any of Gall’s earlier statements or contended that he played any role in, or had any knowledge of, other aspects of the conspiracy described in the indictment. When he received notice of the indictment, Gall moved back to Iowa and surrendered to the authorities. While free on his own recognizance, Gall started his own business in the construction industry, primarily engaged in subcontracting for the installation of windows and doors. In his first year, his profits were over $2,000 per month. Gall entered into a plea agreement with the Government, stipulating that he was “responsible for, but did not necessarily distribute himself, at least 2,500 grams of [ecstasy], or the equivalent of at least 87.5 kilograms of marijuana.” Id., at 25. In the agreement, the Government acknowledged that by “on or about September of 2000,” Gall had communicated his intent to stop distributing ecstasy to Rinderknecht and other members of the conspiracy. Ibid. The agreement further provided that recent changes in the Guidelines that enhanced the recommended punishment for distributing ecstasy were not applicable to Gall because he had withdrawn from the conspiracy prior to the effective date of those changes. In her presentence report, the probation officer concluded that Gall had no significant criminal history; that he was not an organizer, leader, or manager; and that his offense did not involve the use of any weapons. The report stated that Gall had truthfully provided the Government with all of the evidence he had concerning the alleged offenses, but that his evidence was not useful because he provided no new information to the agents. The report also described Gall’s substantial use of drugs prior to his offense and the absence of any such use in recent years. The report recommended a sentencing range of 30 to 37 months of imprisonment. The record of the sentencing hearing held on May 27, 2005, includes a “small flood” of letters from Gall’s parents and other relatives, his fiancé, neighbors, and representatives of firms doing business with him, uniformly praising his character and work ethic. The transcript includes the testimony of several witnesses and the District Judge’s colloquy with the Assistant United States Attorney (AUSA) and with Gall. The AUSA did not contest any of the evidence concerning Gall’s law-abiding life during the preceding five years, but urged that “the Guidelines are appropriate and should be followed,” and requested that the court impose a prison sentence within the Guidelines range. Id., at 93. He mentioned that two of Gall’s co-conspirators had been sentenced to 30 and 35 months, respectively, but upon further questioning by the District Court, he acknowledged that neither of them had voluntarily withdrawn from the conspiracy. The District Judge sentenced Gall to probation for a term of 36 months. In addition to making a lengthy statement on the record, the judge filed a detailed sentencing memorandum explaining his decision, and provided the following statement of reasons in his written judgment: “The Court determined that, considering all the factors under 18 U. S. C. 3553(a), the Defendant’s explicit withdrawal from the conspiracy almost four years before the filing of the Indictment, the Defendant’s post-offense conduct, especially obtaining a college degree and the start of his own successful business, the support of family and friends, lack of criminal history, and his age at the time of the offense conduct, all warrant the sentence imposed, which was sufficient, but not greater than necessary to serve the purposes of sentencing.” Id., at 117. At the end of both the sentencing hearing and the sentencing memorandum, the District Judge reminded Gall that probation, rather than “an act of leniency,” is a “substantial restriction of freedom.” Id., at 99, 125. In the memorandum, he emphasized: “[Gall] will have to comply with strict reporting conditions along with a three-year regime of alcohol and drug testing. He will not be able to change or make decisions about significant circumstances in his life, such as where to live or work, which are prized liberty interests, without first seeking authorization from his Probation Officer or, perhaps, even the Court. Of course, the Defendant always faces the harsh consequences that await if he violates the conditions of his probationary term.” Id., at 125. Finally, the District Judge explained why he had concluded that the sentence of probation reflected the seriousness of Gall’s offense and that no term of imprisonment was necessary: “Any term of imprisonment in this case would be counter effective by depriving society of the contributions of the Defendant who, the Court has found, understands the consequences of his criminal conduct and is doing everything in his power to forge a new life. The Defendant’s post-offense conduct indicates neither that he will return to criminal behavior nor that the Defendant is a danger to society. In fact, the Defendant’s post-offense conduct was not motivated by a desire to please the Court or any other governmental agency, but was the pre-Indictment product of the Defendant’s own desire to lead a better life.” Id., at 125–126. II The Court of Appeals reversed and remanded for resentencing. Relying on its earlier opinion in United States v. Claiborne, 439 F. 3d 479 (CA8 2006), it held that a sentence outside of the Guidelines range must be supported by a justification that “ ‘ “is proportional to the extent of the difference between the advisory range and the sentence imposed.” ’ ” 446 F. 3d 884, 889 (CA8 2006) (quoting Claiborne, 439 F. 3d, at 481, in turn quoting United States v. Johnson, 427 F. 3d 423, 426–427 (CA7 2005)). Characterizing the difference between a sentence of probation and the bottom of Gall’s advisory Guidelines range of 30 months as “extraordinary” because it amounted to “a 100% downward variance,” 446 F. 3d, at 889, the Court of Appeals held that such a variance must be—and here was not—supported by extraordinary circumstances. Rather than making an attempt to quantify the value of the justifications provided by the District Judge, the Court of Appeals identified what it regarded as five separate errors in the District Judge’s reasoning: (1) He gave “too much weight to Gall’s withdrawal from the conspiracy”; (2) given that Gall was 21 at the time of his offense, the District Judge erroneously gave “significant weight” to studies showing impetuous behavior by persons under the age of 18; (3) he did not “properly weigh” the seriousness of Gall’s offense; (4) he failed to consider whether a sentence of probation would result in “unwarranted” disparities; and (5) he placed “too much emphasis on Gall’s post-offense rehabilitation.” Id., at 889–890. As we shall explain, we are not persuaded that these factors, whether viewed separately or in the aggregate, are sufficient to support the conclusion that the District Judge abused his discretion. As a preface to our discussion of these particulars, however, we shall explain why the Court of Appeals’ rule requiring “proportional” justifications for departures from the Guidelines range is not consistent with our remedial opinion in United States v. Booker, 543 U. S. 220 (2005). III In Booker we invalidated both the statutory provision, 18 U. S. C. §3553(b)(1) (2000 ed., Supp. IV), which made the Sentencing Guidelines mandatory, and §3742(e) (2000 ed. and Supp. IV), which directed appellate courts to apply a de novo standard of review to departures from the Guidelines. As a result of our decision, the Guidelines are now advisory, and appellate review of sentencing decisions is limited to determining whether they are “reasonable.” Our explanation of “reasonableness” review in the Booker opinion made it pellucidly clear that the familiar abuse-of-discretion standard of review now applies to appellate review of sentencing decisions. See 543 U. S., at 260–262; see also Rita, 551 U. S., at ___ (Stevens, J., concurring). It is also clear that a district judge must give serious consideration to the extent of any departure from the Guidelines and must explain his conclusion that an unusually lenient or an unusually harsh sentence is appropriate in a particular case with sufficient justifications. For even though the Guidelines are advisory rather than mandatory, they are, as we pointed out in Rita, the product of careful study based on extensive empirical evidence derived from the review of thousands of individual sentencing decisions.[Footnote 2] Id., at ___. In reviewing the reasonableness of a sentence outside the Guidelines range, appellate courts may therefore take the degree of variance into account and consider the extent of a deviation from the Guidelines. We reject, however, an appellate rule that requires “extraordinary” circumstances to justify a sentence outside the Guidelines range. We also reject the use of a rigid mathematical formula that uses the percentage of a departure as the standard for determining the strength of the justifications required for a specific sentence. As an initial matter, the approaches we reject come too close to creating an impermissible presumption of unreasonableness for sentences outside the Guidelines range. See id., at ___ (slip op., at 15) (“The fact that we permit courts of appeals to adopt a presumption of reasonableness does not mean that courts may adopt a presumption of unreasonableness”).[Footnote 3] Even the Government has acknowledged that such a presumption would not be consistent with Booker. See Brief for United States in Rita v. United States, O. T. 2006, No. 06–5754, pp. 34–35. The mathematical approach also suffers from infirmities of application. On one side of the equation, deviations from the Guidelines range will always appear more extreme—in percentage terms—when the range itself is low, and a sentence of probation will always be a 100% departure regardless of whether the Guidelines range is 1 month or 100 years. Moreover, quantifying the variance as a certain percentage of the maximum, minimum, or median prison sentence recommended by the Guidelines gives no weight to the “substantial restriction of freedom” involved in a term of supervised release or probation. App. 95.
552 U. S. ____ (2007)
GALL V. UNITED STATES
552 U. S. ____ (2007)
SUPREME COURT OF THE UNITED STATES
NO. 06-7949
BRIAN MICHAEL GALL, PETITIONER v. UNITED STATES on writ of certiorari to the united states court of appeals for the eighth circuit [December 10, 2007] Justice Scalia, concurring. I join the opinion of the Court. In Rita v. United States, 551 U. S. ___, ___ (2007), I wrote separately to state my view that any appellate review of sentences for substantive reasonableness will necessarily result in a sentencing scheme constitutionally indistinguishable from the mandatory Guidelines struck down in United States v. Booker, 543 U. S. 220 (2005). Whether a sentencing scheme uses mandatory Guidelines, a “proportionality test” for Guidelines variances, or a deferential abuse-of-discretion standard, there will be some sentences upheld only on the basis of additional judge-found facts. Although I continue to believe that substantive-reasonableness review is inherently flawed, I give stare decisis effect to the statutory holding of Rita. The highly deferential standard adopted by the Court today will result in far fewer unconstitutional sentences than the proportionality standard employed by the Eighth Circuit. Moreover, as I noted in Rita, the Court has not foreclosed as-applied constitutional challenges to sentences. The door therefore remains open for a defendant to demonstrate that his sentence, whether inside or outside the advisory Guidelines range, would not have been upheld but for the existence of a fact found by the sentencing judge and not by the jury.
552 U. S. ____ (2007
552 U. S. ____ (2007
552 U. S. ____ (2007
SUPREME COURT OF THE UNITED STATES
NO. 06-7949
BRIAN MICHAEL GALL, PETITIONER v. UNITED STATES on writ of certiorari to the united states court of appeals for the eighth circuit [December 10, 2007] Justice Souter, concurring. I join the Court’s opinion here, as I do in today’s companion case of Kimbrough v. United States, post, p. ___, which follow United States v. Booker, 543 U. S. 220 (2005), and Rita v. United States, 551 U. S. ___ (2007). My disagreements with holdings in those earlier cases are not the stuff of formally perpetual dissent, but I see their objectionable points hexing our judgments today, see id., at ___ (Souter, J., dissenting), and Booker, supra, at 272 (Stevens, J., dissenting in part). After Booker’s remedial holding, I continue to think that the best resolution of the tension between substantial consistency throughout the system and the right of jury trial would be a new Act of Congress: reestablishing a statutory system of mandatory sentencing guidelines (though not identical to the original in all points of detail), but providing for jury findings of all facts necessary to set the upper range of sentencing discretion. See Rita, supra, at ___ (slip op., at 9).
ALITO, J., DISSENTING
GALL V. UNITED STATES
552 U. S. ____ (2007)
SUPREME COURT OF THE UNITED STATES
NO. 06-7949
BRIAN MICHAEL GALL, PETITIONER v. UNITED STATES on writ of certiorari to the united states court of appeals for the eighth circuit [December 10, 2007] Justice Alito, dissenting. The fundamental question in this case is whether, under the remedial decision in United States v. Booker, 543 U. S. 220 (2005), a district court must give the policy decisions that are embodied in the Sentencing Guidelines at least some significant weight in making a sentencing decision. I would answer that question in the affirmative and would therefore affirm the decision of the Court of Appeals. I In Booker, a bare majority held that the Sentencing Reform Act of 1984 (Sentencing Reform Act), as amended, 18 U. S. C. §3551 et seq., 28 U. S. C. §991 et seq., violated the Sixth Amendment insofar as it required district judges to follow the United States Sentencing Guidelines, but another bare majority held that this defect could be remedied by excising the two statutory provisions, 18 U. S. C. §§3553(b)(1) and 3742(e) (2000 ed. and Supp. IV), that made compliance with the Guidelines mandatory. As a result of these two holdings, the lower federal courts were instructed that the Guidelines must be regarded as “effectively advisory,” Booker, 543 U. S., at 245, and that individual sentencing decisions are subject to appellate review for “ ‘reasonableness.’ ” Id., at 262. The Booker remedial opinion did not explain exactly what it meant by a system of “advisory” guidelines or by “reasonableness” review, and the opinion is open to different interpretations. It is possible to read the opinion to mean that district judges, after giving the Guidelines a polite nod, may then proceed essentially as if the Sentencing Reform Act had never been enacted. This is how two of the dissents interpreted the Court’s opinion. Justice Stevens wrote that sentencing judges had “regain[ed] the unconstrained discretion Congress eliminated in 1984” when it enacted the Sentencing Reform Act. Id., at 297. Justice Scalia stated that “logic compels the conclusion that the sentencing judge … has full discretion, as full as what he possessed before the Act was passed, to sentence anywhere within the statutory range.” Id., at 305. While this is a possible understanding of the remedial opinion, a better reading is that sentencing judges must still give the Guidelines’ policy decisions some significant weight and that the courts of appeals must still police compliance. In a key passage, the remedial opinion stated: “The district courts, while not bound to apply the Guidelines, must consult those Guidelines and take them into account when sentencing. See 18 U. S. C. A. §§3553(a)(4), (5) (Supp. 2004). But compare post, at 305 (Scalia, J., dissenting in part) (claiming that the sentencing judge has the same discretion ‘he possessed before the Act was passed’). The courts of appeals review sentencing decisions for unreasonableness. These features of the remaining system, while not the system Congress enacted, nonetheless continue to move sentencing in Congress’ preferred direction, helping to avoid excessive sentencing disparities while maintaining flexibility sufficient to individualize sentences where necessary.” Id., at 264–265 (emphasis added). The implication of this passage is that district courts are still required to give some deference to the policy decisions embodied in the Guidelines and that appellate review must monitor compliance. District courts must not only “consult” the Guidelines, they must “take them into account.” Id., at 264. In addition, the passage distances the remedial majority from Justice Scalia’s position that, under an advisory Guidelines scheme, a district judge would have “discretion to sentence anywhere within the ranges authorized by statute” so long as the judge “state[d] that ‘this court does not believe that the punishment set forth in the Guidelines is appropriate for this sort of offense.’ ” Id., at 305 (opinion dissenting in part). Moreover, in the passage quoted above and at other points in the remedial opinion, the Court expressed confidence that appellate review for reasonableness would help to avoid “ ‘excessive sentencing disparities’ ” and “would tend to iron out sentencing differences.” Id., at 263. Indeed, a major theme of the remedial opinion, as well as our decision last Term in Rita v. United States, 551 U. S. ___ (2007), was that the post-Booker sentencing regime would still promote the Sentencing Reform Act’s goal of reducing sentencing disparities. See, e.g., 551 U. S., at __ (slip op., at 8), __ (slip op., at 9), __ (slip op., at 15); Booker, supra, at 259–260, 263–264. It is unrealistic to think this goal can be achieved over the long term if sentencing judges need only give lip service to the Guidelines. The other sentencing factors set out in §3553(a) are so broad that they impose few real restraints on sentencing judges. See id., at 305 (Scalia, J., dissenting in part). Thus, if judges are obligated to do no more than consult the Guidelines before deciding upon the sentence that is, in their independent judgment, sufficient to serve the other §3553(a) factors, federal sentencing will not “move … in Congress’ preferred direction.” Id., at 264 (opinion of the Court). On the contrary, sentencing disparities will gradually increase. Appellate decisions affirming sentences that diverge from the Guidelines (such as the Court’s decision today) will be influential, and the sentencing habits developed during the pre-Booker era will fade. Finally, in reading the Booker remedial opinion, we should not forget the decision’s constitutional underpinnings. Booker and its antecedents are based on the Sixth Amendment right to trial by jury. The Court has held that (at least under a mandatory guidelines system) a defendant has the right to have a jury, not a judge, find facts that increase the defendant’s authorized sentence. See id., at 230–232; Blakely v. Washington, 542 U. S. 296, 303–304 (2004). It is telling that the rules set out in the Court’s opinion in the present case have nothing to do with juries or factfinding and, indeed, that not one of the facts that bears on petitioner’s sentence is disputed. What is at issue, instead, is the allocation of the authority to decide issues of substantive sentencing policy, an issue on which the Sixth Amendment says absolutely nothing. The yawning gap between the Sixth Amendment and the Court’s opinion should be enough to show that the Blakely-Booker line of cases has gone astray. In Blakely, the Court drew a distinction—between judicial factfinding under a guidelines system and judicial factfinding under a discretionary sentencing system, see 542 U. S., at 309–310—that, in my judgment, cannot be defended as a matter of principle. It would be a coherent principle to hold that any fact that increases a defendant’s sentence beyond the minimum required by the jury’s verdict of guilt must be found by a jury. Such a holding, however, would clash with accepted sentencing practice at the time of the adoption of the Sixth Amendment. By that time, many States had enacted criminal statutes that gave trial judges the discretion to select a sentence from within a prescribed range,[Footnote 1] and the First Congress enacted federal criminal statutes that were cast in this mold. See An Act for the Punishment of certain Crimes against the United States, 1 Stat. 112.[Footnote 2] Under a sentencing system of this type, trial judges inevitably make findings of fact (albeit informally) that increase sentences beyond the minimum required by the jury’s verdict. For example, under a statute providing that the punishment for burglary is, say, imprisonment for up to x years, the sentencing court might increase the sentence that it would have otherwise imposed by some amount based on evidence introduced at trial that the defendant was armed or that, before committing the crime, the defendant had told a confederate that he would kill the occupants if they awakened during the burglary. The only difference between this sort of factfinding and the type that occurs under a guidelines system is that factfinding under a guidelines system is explicit and the effect of each critical finding is quantified. But in both instances, facts that cause a defendant to spend more time in prison are found by judges, not juries, and therefore no distinction can be drawn as a matter of Sixth Amendment principle. The Court’s acceptance of this distinction also produced strange collateral consequences. A sentencing system that gives trial judges the discretion to sentence within a specified range not only permits judicial factfinding that may increase a sentence, such a system also gives individual judges discretion to implement their own sentencing policies. This latter feature, whether wise or unwise, has nothing to do with the concerns of the Sixth Amendment, and a principal objective of the Sentencing Reform Act was to take this power out of the hands of individual district judges. The Booker remedy, however, undid this congressional choice. In curing the Sentencing Reform Act’s perceived defect regarding judicial factfinding, Booker restored to the district courts at least a measure of the policymaking authority that the Sentencing Reform Act had taken away. (How much of this authority was given back is, of course, the issue here.) I recognize that the Court is committed to the Blakely-Booker line of cases, but we are not required to continue along a path that will take us further and further off course. Because the Booker remedial opinion may be read to require sentencing judges to give weight to the Guidelines, I would adopt that interpretation and thus minimize the gap between what the Sixth Amendment requires and what our cases have held. II A Read fairly, the opinion of the Court of Appeals holds that the District Court did not properly exercise its sentencing discretion because it did not give sufficient weight to the policy decisions reflected in the Guidelines. Petitioner was convicted of a serious crime, conspiracy to distribute “ecstasy.” He distributed thousands of pills and made between $30,000 and $40,000 in profit. Although he eventually left the conspiracy, he did so because he was worried about apprehension. The Sentencing Guidelines called for a term of imprisonment of 30 to 37 months, but the District Court imposed a term of probation. Compelled to interpret the Booker remedial opinion, the District Court, it appears, essentially chose the interpretation outlined in Justice Stevens’ and Justice Scalia’s dissents. The District Court considered the sentence called for by the Guidelines, but I see no evidence that the District Court deferred to the Guidelines to any significant degree. Rather, the court determined what it thought was appropriate under the circumstances and sentenced petitioner accordingly. If the question before us was whether a reasonable jurist could conclude that a sentence of probation was sufficient in this case to serve the purposes of punishment set out in 18 U. S. C. §3553(a)(2), the District Court’s decision could not be disturbed. But because I believe that sentencing judges must still give some significant weight to the Guidelines sentencing range, the Commission’s policy statements, and the need to avoid unwarranted sentencing disparities, §3553(a)(3), (4), and (5) (2000 ed. and Supp. V), I agree with the Eighth Circuit that the District Court did not properly exercise its discretion. Appellate review for abuse of discretion is not an empty formality. A decision calling for the exercise of judicial discretion “hardly means that it is unfettered by meaningful standards or shielded from thorough appellate review.” Albemarle Paper Co. v. Moody, 422 U. S. 405, 416 (1975). Accord, United States v. Taylor, 487 U. S. 326, 336 (1988); Franks v. Bowman Transp. Co., 424 U. S. 747, 783 (1976) (Powell, J., concurring in part and dissenting in part). And when a trial court is required by statute to take specified factors into account in making a discretionary decision, the trial court must be reversed if it “ignored or slighted a factor that Congress has deemed pertinent.” Taylor, supra, at 337. See Hensley v. Eckerhart, 461 U. S. 424, 438–440 (1983) (finding an abuse of discretion where the District Court “did not properly consider” 1 of 12 factors Congress found relevant to the amount of attorney’s fees when passing the Civil Rights Attorney’s Fees Awards Act of 1976, 42 U. S. C. §1988). See also United States v. Oakland Cannabis Buyers’ Cooperative, 532 U. S. 483, 497–498 (2001) (A court exercising its discretion “cannot ‘ignore the judgment of Congress, deliberately expressed in legislation.’ Virginian R. Co. v. Railway Employees, 300 U. S. 515, 551 (1937)”); American Paper Institute, Inc. v. American Elec. Power Service Corp., 461 U. S. 402, 413 (1983) (“To decide whether [Federal Energy Regulatory Commission’s] action was … an abuse of discretion, we must determine whether the agency adequately considered the factors relevant” under the statute (internal quotation marks omitted)); Southern S. S. Co. v. NLRB, 316 U. S. 31, 46, 47 (1942) (finding an abuse of discretion where the National Labor Relations Board sought to fulfill one congressional objective but “wholly ignore[d] other and equally important Congressional objectives”). Here, the District Court “slighted” the factors set out in 18 U. S. C. §§3553(a)(3), (4), and (5) (2000 ed. and Supp. V)—namely, the Guidelines sentencing range, the Commission’s policy statements, and the need to avoid unwarranted sentencing disparities. Although the Guidelines called for a prison term of at least 30 months, the District Court did not require any imprisonment—not one day. The opinion of the Court makes much of the restrictions and burdens of probation, see ante, at 9–10, but in the real world there is a huge difference between imprisonment and probation. If the District Court had given any appreciable weight to the Guidelines, the District Court could not have sentenced petitioner to probation without very strong countervailing considerations. The court listed five considerations as justification for a sentence of probation: (1) petitioner’s “voluntary and explicit withdrawal from the conspiracy,” (2) his “exemplary behavior while on bond,” (3) “the support manifested by family and friends,” (4) “the lack of criminal history, especially a complete lack of any violent criminal history,” (5) and his age at the time of the offense, 21. App. 97. Two of the considerations that the District Court cited—“the support manifested by family and friends” and his age, ibid.—amounted to a direct rejection of the Sentencing Commission’s authority to decide the most basic issues of sentencing policy. In the Sentencing Reform Act, Congress required the Sentencing Commission to consider and decide whether certain specified factors—including “age,” “education,” “previous employment record,” “physical condition,” “family ties and responsibilities,” and “community ties”—“have any relevance to the nature [and] extent … of an appropriate sentence.” 28 U. S. C. §994(d). These factors come up with great frequency, and judges in the pre-Sentencing Reform Act era disagreed regarding their relevance. Indeed, some of these factors were viewed by some judges as reasons for increasing a sentence and by others as reasons for decreasing a sentence. For example, if a defendant had a job, a supportive family, and friends, those factors were sometimes viewed as justifying a harsher sentence on the ground that the defendant had squandered the opportunity to lead a law-abiding life. Alternatively, those same factors were sometimes viewed as justifications for a more lenient sentence on the ground that a defendant with a job and a network of support would be less likely to return to crime. If each judge is free to implement his or her personal views on such matters, sentencing disparities are inevitable. In response to Congress’ direction to establish uniform national sentencing policies regarding these common sentencing factors, the Sentencing Commission issued policy statements concluding that “age,” “family ties,” and “community ties” are relevant to sentencing only in unusual cases. See United States Sentencing Commission, Guidelines Manual §§5H1.1 (age), 5H1.6 (family and community ties) (Nov. 2006). The District Court in this case did not claim that there was anything particularly unusual about petitioner’s family or community ties or his age, but the court cited these factors as justifications for a sentence of probation. Although the District Court was obligated to take into account the Commission’s policy statements and the need to avoid sentencing disparities, the District Court rejected Commission policy statements that are critical to the effort to reduce such disparities. The District Court relied on petitioner’s lack of criminal history, but criminal history (or the lack thereof) is a central factor in the calculation of the Guidelines range. Petitioner was given credit for his lack of criminal history in the calculation of his Guidelines sentence. Consequently, giving petitioner additional credit for this factor was nothing more than an expression of disagreement with the policy determination reflected in the Guidelines range. The District Court mentioned petitioner’s “exemplary behavior while on bond,” App. 97, but this surely cannot be regarded as a weighty factor. Finally, the District Court was plainly impressed by petitioner’s “voluntary and explicit withdrawal from the conspiracy.” Ibid. As the Government argues, the legitimate strength of this factor is diminished by petitioner’s motivation in withdrawing. He did not leave the conspiracy for reasons of conscience, and he made no effort to stop the others in the ring. He withdrew because he had become afraid of apprehension. 446 F. 3d 884, 886 (CA8 2006). While the District Court was within its rights in regarding this factor and petitioner’s “self-rehabilitat[ion],” App. 75, as positive considerations, they are not enough, in light of the Guidelines’ call for a 30- to 37-month prison term, to warrant a sentence of probation. B In reaching the opposite conclusion, the Court attacks straw men. The Court unjustifiably faults the Eighth Circuit for using what it characterizes as a “rigid mathematical formula.” Ante, at 8. The Eighth Circuit (following a Seventh Circuit opinion) stated that a trial judge’s justifications for a sentence outside the Guidelines range must be “proportional to the extent of the difference between the advisory range and the sentence imposed.” 446 F. 3d, at 889 (quoting United States v. Claiborne, 439 F. 3d 479, 481 (CA8 2006), in turn quoting United States v. Johnson, 427 F. 3d 423, 426–427 (CA7 2005); internal quotation marks omitted). Taking this language literally as requiring a mathematical computation, the Court has an easy time showing that mathematical precision is not possible: “[T]he mathematical approach assumes the existence of some ascertainable method of assigning percentages to various justifications. Does withdrawal from a conspiracy justify more or less than, say, a 30% reduction? … What percentage, if any, should be assigned to evidence that a defendant poses no future threat to society, or to evidence that innocent third parties are dependent on him?” Ante, at 10. This criticism is quite unfair. It is apparent that the Seventh and Eighth Circuits did not mean to suggest that proportionality review could be reduced to a mathematical equation, and certainly the Eighth Circuit in this case did not assign numbers to the various justifications offered by the District Court. All that the Seventh and Eighth Circuits meant, I am convinced, is what this Court’s opinion states, i.e., that “the extent of the difference between a particular sentence and the recommended Guidelines range” is a relevant consideration in determining whether the District Court properly exercised its sentencing discretion. Ante, at 2. This Court’s opinion is also wrong in suggesting that the Eighth Circuit’s approach was inconsistent with the abuse-of-discretion standard of appellate review. Ante, at 10. The Eighth Circuit stated unequivocally that it was conducting abuse-of-discretion review, 446 F. 3d, at 888–889; abuse-of-discretion review is not toothless; and it is entirely proper for a reviewing court to find an abuse of discretion when important factors—in this case, the Guidelines, policy statements, and the need to avoid sentencing disparities—are “slighted.” Taylor, 487 U. S., at 337. The mere fact that the Eighth Circuit reversed is hardly proof that the Eighth Circuit did not apply the correct standard of review. Because I believe that the Eighth Circuit correctly interpreted and applied the standards set out in the Booker remedial opinion, I must respectfully dissent.[Footnote 3]
552 U. S. ____ (2007)
552 U. S. ____ (2007)
552 U. S. ____ (2007)
SUPREME COURT OF THE UNITED STATES
NO. 06-7949
BRIAN MICHAEL GALL, PETITIONER v. UNITED STATES on writ of certiorari to the united states court of appeals for the eighth circuit [December 10, 2007] Justice Thomas, dissenting. Consistent with my dissenting opinion in Kimbrough v. United States, post, p. ___, I would affirm the judgment of the Court of Appeals because the District Court committed statutory error when it departed below the applicable Guidelines range.