Publications

Gall and Kimbrough and Their Relevance to Sentencing in White-Collar Cases

February 2008
Federal Sentencing Reporter

Ever since United States v. Booker, there has been considerable uncertainty about whether that decision made the Federal Sentencing Guidelines truly advisory. The Court’s recent decisions in Gall v. United States and Kimbrough v. United States have resolved any lingering doubt, making it “pellucidly” clear (to use Justice Stevens’s expression) that although judges still must pay some regard to the Guidelines, the Court meant what it said when it called the Guidelines advisory. Although the sentencing judge still must calculate and consider the applicable Guideline range, Gall provides that district court judges can consider nearly all facts in mitigation at sentencing, even those upon which the Guidelines discourage or prohibit reliance. Kimbrough even permits a district judge to give a particular Guideline less weight if the judge believes that it will categorically lead to overly harsh punishments.