Colorado Bench Ignoring US Sentencing Guidelines

Law Week Online
By Matt Masich, LAW WEEK COLORADO
DENVER — Have some of Colorado’s federal trial judges turned their backs on sentencing guidelines? Colorado’s top federal prosecutor thinks so. At least one judge and the state’s federal public defender disagree.
Testifying before the U.S. Sentencing Commission at a public hearing in Denver last week, David Gaouette, U.S. attorney for Colorado, said that certain unnamed district judges have routinely disregarded sentencing guidelines in the four years since the U.S. Supreme Court’s Booker decision. Though guidelines are no longer mandatory, judges are still supposed to consult them before issuing sentences.
“The advisory nature of the sentencing guidelines, post-Booker, has resulted in greater inconsistencies in sentences among our judges,” Gaouette wrote in testimony he submitted to the commission. He said he was particularly concerned that the departures from the guidelines result in more lenient sentences.
“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 [assistant U.S. attorneys] that the sentencing guidelines are arbitrary and would not be followed.”
Gaouette declined to identify the judges he thought ignored the guidelines, or to specify which judges he counted among the six he mentioned. Colorado has five federal judges, who have mixed criminal and civil dockets, and five senior judges, who are allowed to exclude criminal or civil cases if they choose.
Disparities few, others say
Commission Chair Ricardo Hinojosa seemed surprised by Gaouette’s claims.
“I have yet to hear of judges just coming out on the bench and saying it’s not going to be a guideline sentence,” Hinojosa said.
Gaouette replied that he drew his conclusions either from observing judges’ sentencing habits or from remarks judges made off the record.
John Kane, senior judge on Colorado’s U.S. District Court, and Raymond Moore, federal public defender for Colorado and Wyoming, said the advisory guideline system is not creating the unwarranted sentencing disparities Gaouette alleges.
Colorado is not experiencing a case of “judges gone wild,” Moore told the panel.
Kane said all of Colorado’s federal judges follow the Supreme Court’s ruling that the guidelines must be considered first when formulating sentences. Regarding Gaouette’s remarks about judges refusing to follow the guidelines, Kane told Law Week Colorado, “I don’t believe that statement is true. It’s not accurate.”
Gaouette favors mandatory sentencing guidelines while Kane is a fan of the current advisory system. Interestingly, both of them used Kane’s 2008 sentencing decision in United States v. Rausch to try to prove their points.