In December 2007, the U.S. Supreme Court issued two decisions which give federal judges more discretion in imposing sentences significantly lower or higher than the sentencing ranges recommended in the federal Sentencing Guidelines.

First, in Kimbrough v. United States, the Court overruled seven circuit courts of appeals (including the First and Second) and ruled that sentencing courts can, on a case-by-case basis, take issue with broad-based policies enunciated by Congress or the Sentencing Commission. If a judge finds that a particular policy choice (in Kimbrough, it was the 100-to-1 cocaine-powder-to-crack-cocaine ratio) yields an unreasonably high or low sentencing range for a particular defendant, the judge may circumvent that policy choice and impose a different sentence.

Second, in Gall v. United States, the Court held that appellate courts should apply a deferential abuse of discretion standard in determining whether non-Guidelines sentences imposed by district courts were reasonable. The Court rejected the notion that a non-Guidelines sentence requires “extraordinary” circumstances and overruled, as “rigid[ly] mathematical,” the Eighth Circuit’s formulation that a deviation from the advisory Guidelines sentencing range required a justification “proportional” to the extent of the deviation. In so doing, the Court ruled that sentences considerably below the Guidelines sentencing range could by justified by the “parsimony provision” – a statutory clause described by the Court as providing “overarching” instruction to sentencing courts to “impose a sentence sufficient, but not greater than necessary” to accomplish the goals of sentencing enumerated in the same statute.

On January 7, 2008, the Supreme Court granted 75 petitions for certiorari, vacated the court of appeals decisions in those cases (covering every circuit except for the Ninth and D.C. Circuits) and remanded those cases for reconsideration in light of Gall or Kimbrough.