How many judges are “sentencing guidelines judges” without saying so?

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Nov 21, 2012 How many judges are “sentencing guidelines judges” without saying so?

Sentencing is a difficult part of the reality of criminal defense. Plenty of my clients avoid a conviction, and thus a sentence, but plenty do get convicted and sentenced. Consequently, when defending my clients for criminal cases, I take the following three-pronged approach to preparation: prepare for trial and pretrial battle, for settlement negotiations, and for possible sentencing. To do otherwise disserves the client.

Advisory sentencing guidelines exist in all jurisdictions where I practice criminal defense. I say advisory, because the United States Supreme Court prohibits sentencing guidelines (versus mandatory minimum sentencing, which the appellate courts permit) from being mandatory. U.S. v. Booker, 543 U.S. 220 (2005). The upside to Booker is that the judge may sentence below the guidelines. The downside is that the judge may do the opposite, as well.

Even after Booker, though, various colleagues refer to certain judges as "guidelines judges," meaning that they most often sentence within the guidelines. Even for judges who do not read all Supreme Court criminal law opinions — and I would hope that judges would read every new appellate opinion controlling their jurisdiction — they must be aware of Booker, which spelled a tectonic shift in making sentencing guidelines advisory only.

Nevertheless, plenty of judges are so accustomed to treating sentencing guidelines as mandatory pre-Booker — both as judges and as trial lawyers before that — or have limited criminal law experience to begin with, that they may be very reluctant, uncomfortable or both to deviate too often from the sentencing guidelines. They are not permitted, though, to act counter to Booker nor any other Supreme Court command.

In the foregoing context, last month the District of Columbia Circuit ordered a resentencing of Gregory Terrell, where his sentencing judge made it sound like he only deviates below the sentencing guidelines for compelling reasons, and had only gone below the guidelines twice before for compelling reasons. Terrell v. U.S., ___ F.3d  ___ (D.C. Cir., Oct. 19, 2012). 

Terrell found the trial judge to have been giving presumptive reasonableness to Terrell’s guidelines sentence, which a sentencing judge is not permitted to do. Thus, Terrell ordered that the defendant be resentenced.

How does a lawyer convince a trial judge to treat sentencing guidelines as advisory only, and not as mandatory nor as presumptively reasonable? Slamming the controlling appellate caselaw on counsel table will not do the trick, nor will having a proverbial embolism in frustration do so either. Convincing judges — and anybody else — of anything requires a focus on inspiring the judge to bring out his or her best self, in part by recognizing that the judge, being human, is fallible, has prejudices, and is not superhuman. Even the most difficult judges can be swayed, not always immediately, and sometimes at a frustratingly glacial pace, but they can be swayed. Persuading others also starts by applying the magic mirror, and by cultivating and bringing out the best in oneself, including Gandhi’s example where he was not ready to urge a child to stop overeating sugar before Gandhi himself stopped eating it. There is no "out there" for the mind. I have written more on persuading judges here, here and here.

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