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1 Jefri Wood, An Outline of Selected Appellate Cases after Gall and Kimbrough 1 (2008)

handle is hein.congcourts/ouseleki0001 and id is 1 raw text is: An Outline of Selected Appellate Cases After Gall and Kimbrough
Jefri Wood
Federal Judicial Center
June 10, 2008
The following outline contains federal appellate court cases decided after December 10,
2007, when the Supreme Court released its opinions in Gall v. United States, 128 S. Ct.
586 (2007), and Kimbrough v. United States, 128 S. Ct. 558 (2007). The reader's basic
familiarity with these cases, as well as with Rita v. United States, 127 S. Ct. 2456 (2007),
and United States v. Booker, 125 S. Ct. 738 (2005), is assumed. Also, note that different
courts use different terms for a sentence that is above or below the advisory range calcu-
lated under the Guidelines, and this outline uses the terms variance, outside the Guide-
lines range, and non-Guidelines sentence, among others, to refer to a sentence that is
not within the applicable guideline range (and may or may not include a Guidelines de-
This outline is intended to provide a basic overview of appellate case law in the af-
termath of Gall and Kimbrough by providing an extensive sampling of published appel-
late opinions. It covers cases through May 29, 2008.
I. Procedure and Review
The Supreme Court's opinion in Gall, along with Kimbrough and Rita, clarified the pro-
cedures for sentencing and appellate review of sentences in federal courts. Building on
Booker, which had made the U.S. Sentencing Guidelines advisory rather than mandatory,
the Gall Court set out a basic methodology for district courts to use in sentencing and for
circuit courts to follow on appeal. [Note: The numbering of the paragraphs in sections A
and B below is for convenience only and is not part of the Court's opinion.]
A. Sentencing in the District Court
For sentencing, as set forth in Gall, 128 S. Ct. at 594-97:
(1) As we explained in Rita, a district court should begin all sentencing proceedings
by correctly calculating the applicable Guidelines range. . . . As a matter of administra-
tion and to secure nationwide consistency, the Guidelines should be the starting point and
the initial benchmark. The Guidelines are not the only consideration, however.
(2) The court should give[] both parties an opportunity to argue for whatever sen-
tence they deem appropriate.
(3) [T]he district judge should then consider all of the § 3553(a) factors to determine
whether they support the sentence requested by a party. The court
(a) may not presume that the Guidelines range is reasonable, and
(b) must make an individualized assessment based on the facts presented.
(4) If the judge determines that an outside-Guidelines sentence is warranted, he must
consider the extent of the deviation and ensure that the justification is sufficiently com-
pelling to support the degree of the variance.
This publication was undertaken in furtherance of the Center's statutory mission to conduct and stimu-
late research and development for the improvement of judicial administration. The views expressed are
those of the author and not necessarily those of the Federal Judicial Center.


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