Commentators have characterized this week’s decisions by the US Supreme Court (Kimbrough v. US and Gall v. US) dealing with sentencing guidelines as victories for criminal defendants. See the December 10 entry in the Volokh Conspiracy. At first blush, Kimbrough and Gall appear to be victories for opponents of the Sentencing Guidelines. In Kimbrough, the Court addressed the disparity in the sentencing guidelines related to convictions for possession of crack cocaine and powder cocaine and affirmed that district court judges are free to impose sentences lower than the guidelines. In Gall, the Court held that a district court sentence of a defendant to a below-guidelines sentence should be reviewed only under a deferential abuse of discretion standard.
A case pending in the Eastern District of New York demonstrates that the grant of greater discretion to district court judges in the use of sentencing guidelines may also result in above-guideline sentencing. The December 13th edition of the New York Sun reports on a gun trafficking case in Brooklyn where Judge Charles Sifton of U.S. District Court sought to impose on a defendant a longer sentence than that sought by the prosecutors. The 2nd U.S. Circuit Court of Appeals overruled Judge Sifton on the theory that the stricter sentence would create widespread disparities across the country for how people are sentenced for violating the same federal law. Judge Sifton has reasoned that judges should be permitted to impose longer sentences for gun crimes in New York based on the large population of the community where the unregistered gun was transported. See 5 Fed Sent’g Rep. 303 (May/June, 1993). The Sun article states “Criminal defense lawyers and prosecutors are watching to see if the Supreme Court's case emboldens Judge Sifton to try again to get the longer sentence to stick.”