Appellate Review of Sentencing Policy Decisions After <i>Kimbrough</i>

In Kimbrough v. United States the U.S. Supreme Court addressed a question left open in United States v. Booker: whether to permit district courts to make sentencing decisions based on a policy disagreement with the Federal Sentencing Guidelines. The Booker Court, in order to avoid a Sixth Amendment jury right problem inherent in mandatory sentencing regimes, had held that the Guidelines were purely "advisory" and that district courts had discretion to sentence outside the ranges prescribed by the Guidelines. Ultimately, the Kimbrough Court held that district courts could sentence outside the advisory Guideline range based solely on a policy disagreement with the Guidelines, as opposed to limiting judicial discretion to case-specific criteria. At the same time, however, the Kimbrough opinion contained language suggesting that sentences based on policy disagreements with those Guidelines that are the product of the U.S. Sentencing Commission’s expertise may be subject to "closer" appellate review.

This Symposium Article explores the differing approaches regarding sentencing policy decisions taken by U.S. Courts of Appeals since the Kimbrough decision. It notes that the varying degrees of appellate scrutiny are largely attributable to (a) some courts electing not to follow the dicta in Kimbrough for when "closer review" may be warranted and (b) the circuits' disagreement regarding Kimbrough's effect on previous circuit precedent. The Article also suggests how to promote sentencing uniformity among district courts without running afoul of the Sixth Amendment.