Colorado's U.S. Attorney Testifies On Sentencing

David M. Gaoette, U.S. Attorney for the District of Colorado, presented prepared remarks to the U.S. Sentencing Commission at a public hearing in Denver about the federal sentencing guidelines that it has crafted. The guidelines were declared non-binding because binding guidelines would be unconstitutional, by the U.S. Supreme Court in the Booker case. He notes:

Of the six federal judges in our district, three follow the guidelines, one sometimes does, and two do not use the guidelines. One judge has told one of my AUSAs that the sentencing guidelines are arbitrary and would not be followed.

How were the guidelines used in practice:

[O]ur federal law enforcement agencies have teamed up with their state and local colleagues in numerous joint task forces throughout the State. Some of the most effective task forces include the Metro Gang Task Force, the Safe Streets Task Force, North and West Metro Task Forces, and the Front Range Task Force, just to mention a few. . . . Our partnership with these various task forces has flourished, at least in part, due to the existence of tough and predictable federal sentences associated with the sentencing guidelines. It is important to note, and I can say this with certainty from the not-so-distant past when I personally handled drug trafficking cases as an Organized Crime and Drug Enforcement Task Force (OCDETF) AUSA, that many would-be criminals were fearful of the strict sentencing guidelines used by the “feds.” These drug dealers or gang members did not want to end up in federal court, because they knew they would be going to jail rather than receiving a probationary sentence, which was a likely sentence from a state court judge operating without such mandatory sentencing guidelines. In fact, some defendants actually admitted that they consciously decided not to bring a gun to a drug deal, fearing the federal sentencing enhancements.

The fact that the U.S. Sentencing Guidelines (which are more removed from the democratic process compared to either state or federal judges) cause the federal courts to subvert the decisions which would be made in the state criminal justice system, in fundamentally intrastate crimes, is troubling, not something that shows that they were a success. And, it isn't very impressive that the primary reason that we have so many task forces regarding basically intrastate crimes is to help federal and state law enforcement officials engage in venue shopping driven by legal provisions that were not formulates by Congress or a state legislature's considered decision on the merits.

Another interesting point was made about child pornography sentencing, an area which has received widespread criticism for being to harsh under the federal sentencing guidelines:

I should note that some judges are making it clear what they believe an appropriate sentence should be with little or no consideration of the advisory guideline range. Child pornography cases are especially becoming troublesome in this district, and I know the Commission has heard the same from some of my fellow U.S. Attorneys across the country. Here in this district, a defendant convicted of child pornography who possessed an extensive collection of such pornography and whose advisory guideline range was calculated at 97 to 121 months, was sentenced to one (1) day of imprisonment, credit for time served and lifetime supervision.

The U.S. Attorney for the District of Minnesota, likewise notes that below guidelines sentences are particularly common in cases of fraud (including tax fraud), firearms cases, and prostitution/pornography cases.

Judges in all areas of the country appear to believe that U.S. Sentencing Guideline sentences for child pornography are unreasonably high. He identifies 172 cases nationally in the last year where below guidelines sentences were imposed with governmental cooperation in prostitution/pornography cases and another 546 cases where judges made that call despite government opposition. He notes that:

[I]n fraud cases, the average contested below-range sentence was 5.2 months, an average decrease of 9.5 months from the guideline minimums. In firearms cases, the average contested below-range sentence was 35 months, an average decrease of 13.5 months from the guideline minimums. And, in pornography/prostitution cases, the average contested below-range sentence was 59 months, an average decrease of 26.8months from guideline minimums. . . .

The impact of Booker and its progeny on sentencing is probably felt most keenly in child pornography cases. For example, in a 2008 case where the defendant had more than 23,000 pornographic images he shared through a peer-to-peer online network, the Court ordered him to serve 24 months, even though the guideline range was 78 to 97 months. In imposing the sentence, the judge repeatedly discounted the serious nature of the crime of possession of child pornography, characterizing it as “mere viewing” (United States v. Kahmann).

In another recent child pornography case involving possession, the sentencing judge cited Kimbrough in ordering the defendant to serve 48 months, even though the Guidelines indicated a sentence of 120 months would be more appropriate. Again, the judge, although a different judge from the one in the case summarized previously, said he disagreed with the severity of the guidelines in “mere possession” cases (United States v. Kennedy-Hippchen).

Perhaps federal judges (the majority of whom were appointed by Republican administrations) are rebelling against federal sentencing guidelines in this area because they are ill crafted and out of proportion to sentences to more serious and comparable crimes like actual child molestation.

If federal judges acting in isolation across the United States believe that the sentencing guidelines are overkill for a category of offenses, then their opinion needs to be given serious consideration. Judges, not prosecutors, are responsible for deciding appropriate sentences within the statutorily authorized range, and if the U.S. Sentencing Commission can't command their respect in a period when sentencing guidelines are advisory, there is no point in having sentencing guidelines.

Both federal prosecutors were of the view that almost any sentence with an expressly articulated basis will be upheld on appeal.