Are the Sentencing Guidelines More Than 'Advisory'?

The Second Circuit's decision in United States v. Cutler, Nos. 05-2516(L), 05-3303-cr(L), 05-6178-cr(XAP) (2d Cir. March 17, 2008), cast a cloud over the question of how far a sentencing judge can depart from the so-called 'advisory' Sentencing Guidelines. In late December 2007, the Supreme Court appeared to have settled that issue. In Gall v. United States, 128 S. Ct. 586 (2007), the Court clarified that appellate courts must give broad leeway to sentencing judges even where their sentences depart from the Guidelines. Most Circuits, following Gall, have applied that principle. Until Cutler. There, confronted with a lenient sentence imposed on two white collar defendants convicted after a three-month trial, the Second Circuit cited Gall, but applied an exacting review that discounted virtually every rationale offered by the experienced trial judge. It remains to be seen how the Second Circuit's law will develop in this area.