State v. Bise: New Standard of Appellate Review of Sentencing Decisions

By Stevie Phillips

In a unanimous Tennessee Supreme Court opinion handed down on September 26, Chief Justice Wade outlines the historical development of state and federal sentencing guidelines.

In short, he observes that the 2005 amendments to Tennessee's 1989 Sentencing Act were passed for the purpose of bringing our sentencing scheme in line with United States Supreme Court sentencing decisions, namely Apprendi and its progeny.  This is the first time since the passage of those amendments that the Tennessee Supreme Court has had an opportunity to address the effect of those Supreme Court decisions on Tennessee's standard of appellate review. 

In the view of the Court, the effect is that "de novo appellate review and the 'presumption of correctness' [has] ceased to be relevant.  Instead, sentences imposed by the trial court within the appropriate statutory range are to be reviewed under an abuse of discretion standard with a 'presumption of reasonableness.'"

You can read the full opinion here. 

The Tennessee Court of Criminal Appeals on Split Confinement

By Stevie Phillips

Harvey Brian Cochran was convicted of reckless homicide, a Class D felony.  On appeal, he argued that the trial court erred by failing to follow the sentencing guidelines before denying him an alternative sentence.  An alternative sentence is any sentence that does not involve complete confinement. 

The CCA determined that Cochran was a favorable candidate for alternative sentencing because he was convicted of a Class D felony.  Under T.C.A. § 40-35-101(6)(A), the burden therefore fell to the State to present “evidence to the contrary.”  In determining whether such evidence exists, the trial court should consider the factors set out in T.C.A. § 40-35-103(1)(A)(C):  whether confinement is necessary to protect society, avoid depreciating the seriousness of the offense, or deter others.  The trial court should also consider whether less restrictive sentences have been applied unsuccessfully to the defendant in the past. 

Here, the trial court explicitly found that these factors did not apply, and the CCA saw nothing in the record on appeal to refute this finding.  Nonetheless, the trial court denied alternative sentencing on the basis of lack of remorse or truthfulness as it related to Cochran’s potential for rehabilitation under T.C.A. § 40-35-103(5).  As the CCA explained, a defendant’s potential for rehabilitation should only be considered when determining the type and length of the alternative sentence once the court has ruled that complete confinement is improper. 

As a result, Cochran was still a candidate for alternative sentencing.  The CCA reversed and ordered a sentence of split confinement – ninety days in jail and the remainder on supervised probation. 

The full opinion can be found here.  

Sixth Circuit Court of Appeals: Sentence can be revisited if ‘based on’ revised crack cocaine guidelines

by Lee Davis

• US v. MICHAEL D. JACKSON

FSA: challenges powder v. crack

This appeal arises from the conviction of Michael Jackson after pleading guilty in June 2009 to one count of intent to distribute more than five grams of cocaine. Jackson was found to be a Career Offender. The district court delayed his sentencing for more than a year, anticipating Congress was about to pass a new law regarding crack cocaine sentencing guidelines. The court felt it could not wait any longer and sentenced Jackson on July 16, 2010.

Jackson filed a timely notice of appeal. The Fair Sentencing Act was passed almost immediately thereafter, on August 3, 2010. At Jackson’s sentencing, the district court discussed at length the terrible disparity between the crack and powder cocaine sentencing guidelines. The district court clearly wanted Jackson to have a more fair sentence but felt its hands were tied. The district court ultimately decided to grant a 38-month downward variance from the Career Offender guideline.

Jackson seeks a remand to the district court for re-sentencing in light of the recent reduction in crack cocaine sentences. The government contends no reduction should be allowed given that his sentence was based on the Career Offender guidelines and not the crack cocaine guidelines. The Sixth Circuit recognized that Jackson’s criminal history meant that the Career Offender guidelines had to be considered but held that the district court should have the opportunity to revisit the sentence in light of new crack cocaine sentencing guidelines.

What appears to have happened is that the district court varied downward from the Career Offender guideline to a sentence more in lie with the what it believed was reasonable given the crack versus powder cocaine disparity. The Sixth Circuit says it believes had the revised guidelines been in place, it is clear the district court would have sentenced Jackson to a reduced sentence. Because the district court found Jackson to be a Career Offender and then sentenced him below the range for Career Offenders, noting a disagreement with crack guidelines, it is clear to the Sixth Circuit that the sentence was “based on” the crack guidelines as much as the Career Offender guidelines.

The Court further discussed the instruction in Freeman v. United States to:

… isolate whatever marginal effect the since-rejected Guideline had on the defendant’s sentence. Working backwards from this purpose, §3582(c)(2) modification proceedings should be available to permit the district court to revisit a prior sentence to whatever extent the sentencing range in question was a relevant part of the analytic framework the judge used to determine the sentence.

The majority held that the crack cocaine guidelines were clearly a relevant part of the analytic framework used by the district court to determine Jackson’s sentence. The Sixth Circuit was clear to take no position regarding whether Jackson’s sentence should be changed, but remanded the decision to the district court to consider the retroactive crack cocaine guidelines. 

To read the full opinion, click here.

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Lee Davis practices law in federal court in the sixth circuit representing people in federal cases.

Implementing Fairness: Supreme Court Hears Case Regarding the Fair Sentencing Act

It was reported in the Courthouse News Service, that the Supreme Court on Monday agreed to hear two cases related to the issue of retroactivity and the 2010 Fair Sentencing Act (FSA), which deals with sentencing guidelines for powder cocaine and crack cocaine offenses.

Under the FSA, a conviction for the distribution of 280 grams of crack cocaine now carries a 10-year mandatory sentence, up from the previous level of 50 grams that triggered the mandatory minimum. The same sentence continues in effect for distribution of 5 kg of powder cocaine, so the FSA reduces the disparity in sentencing of crack and powder cocaine to 18:1 from 100:1.

There is currently a three-way split at the circuit court level regarding the implementation of the FSA. The 1^st Circuit Court of Appeals has held that the FSA standards apply to sentencing which occurs after the guidelines were promulgated, so after November 1, 2010.  The 1^st Circuit has said this is the case regardless of when the underlying offense was committed. The 3^rd Circuit Court of Appeals, however, has held that the FSA standards apply to sentencing that occurs only after the FSA was enacted on, so after August 3, 2010. The 3^rd Circuit has also said this is the case regardless of when the underlying offense was committed. The 5^th, 7^th and 8^th Circuits have all held that the FSA does not apply unless the underlying offense was committed after August 3, 2010. The 6th Circuit has held that FSA is not retroactive.


However, closer to home, Chief Judge Curtis Collier ruled in US v. Toney Robinson, Docket No. 1:10-CR-66 that in the Eastern District the Fair Sentencing Act applies to defendants whose offense occurred before August 3, 2010, and who are sentenced after that date.  Judge Collier distinguishes Robinson from the Sixth Circuit's Carradine opinion.

The cases before the Supreme Court both arise from the 7^th Circuit. Both petitioners were found guilty of crack cocaine offenses before Congress passed the FSA. In one case, the criminal was sentenced after the FSA was enacted, but before guidelines to implement the Act were put into effect. In the other case, the convict was sentenced after both the enactment of the FSA and the passage of the implementing guidelines. In each case the courts refused to apply the new FSA standards, choosing to instead sentence the criminals to significantly longer prison terms. The 7^th Circuit affirmed the lower courts’ decisions.

The federal government initially asserted that the FSA standards would not apply to offenses committed before August 3, 2010. It later changed its mind. This summer Attorney General Eric Holder issued a memo stating that the FSA guidelines should apply to all sentences "that occur on or after August 3, 2010, regardless of when the offense conduct took place.” 

The Supreme Court is now faced with the decision of choosing between the Circuit Courts. The justices must decide whether the new guidelines apply to sentences imposed after the FSA became law for offenses that were committed before the FSA was enacted.


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