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November 12, 2005

Booker oldies but goodies

One of many benefits I get from having chances to roam the country talking about Booker is that I often learn about great Booker rulings that I did not see when they were first decided.  For example, one of my co-panelists yesterday was ND Illinois Judge Matthew Kennelly, and he mentioned his interesting and thoughtful fast-track decision in US v. Medrano-Duran, 386 F. Supp. 2d 943 (N.D. Ill. Aug 11, 2005).  Here are the highlights:

[T]he Court determined that the disparity between Medrano-Duran and illegal re-entry defendants in districts with early disposition programs was an unwarranted disparity among similarly situated defendants within the meaning of § 3553(a)(6). In imposing sentence, the Court reduced Medrano-Duran's advisory Guideline range by three offense levels, which appeared to be the average of the departures given in districts whose early disposition programs are departure-based as provided in the PROTECT Act and § 5K3.1.  That reduced Medrano-Duran's range to forty-one to fifty-one months, a range that the Court found to be sufficient, but not greater than necessary, to meet the purposes of § 3553(a)(2).  In imposing the particular sentence, the Court considered Medrano-Duran's personal characteristics, including his youth, the fact that he had no prior illegal re-entry offenses, and the fact that he committed no other crimes following his return to this country in 2004.

Similarly, last week when participating in Arizona State's punishment symposium, one speaker spotlighted the interesting and thoughtful decision by Judge Curtis Collier in US v. Phelps, 366 F. Supp. 2d 580 (E.D. Tenn. Apr. 01, 2005), discussing post-Booker sentencing methodolofy the weight that should be given to the guidelines. Here are the highlights:

[T]he Court [believes] the advisory Guidelines should be treated as a major and persuasive factor among the universe of considerations contemplated by § 3553(a).  This is not to say the advisory Guidelines range is per se reasonable or that sentences should fall within that range absent some exceptional or extraordinary circumstance.  To "consult" the Guidelines in this manner would result in a de facto mandatory Guidelines regime not readily distinguishable from that which the Supreme Court found violative of the Sixth Amendment in Booker.  Rather, the Court believes the Guidelines should be understood as the result of a democratic and deliberative process designed to give tangible expression to the nation's collective penal philosophy, taking into account the assorted broad principles and ideals underlying criminal sentencing. It is not for this Court to second-guess those determinations or apply its own ideological gloss thereto; rather, the Court is charged with giving effect to those abstract policy, moral, and philosophical judgments and it best does so by faithfully and completely applying the Guidelines.  However, Congress, the Sentencing Commission, and the Guidelines are inherently limited in their ability to account for all of the relevant § 3553(a) factors in all cases.  Accordingly, the Court will treat the advisory Guidelines as controlling with respect to that of which they are capable of being and purport to be representative (i.e., society's collective opinion as to the sort of sentence merited by a faceless defendant who has committed a particular offense under certain abstract circumstances), but will endeavor to render its own judgment as to the presence and weight of the various sentencing objectives in a particular case.

November 12, 2005 at 08:41 AM | Permalink


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Kennelly -- simplistic -- What about Congress?

Collier -- sophisticated and balanced.

Posted by: Hmm | Nov 12, 2005 5:35:41 PM

Medrano-Duran is even more interesting for the information it provides for a response to the argument that because a fast track departure is based on prosecutorial discretion and/or because is a case management device blessed by Congress, the disparity is warranted: “There is nothing in § 3553, Booker, or any other existing authority to support a construction of § 3553(a)(6) that allows Congress and prosecutors to determine what sentence disparities are warranted and unwarranted but prevents a court from doing so. . . . If fast track programs were limited to districts that are swamped by illegal re-entry cases, a decent argument perhaps could be made that Medrano-Duran is not similarly situated to persons charged in those districts. But even though this may once have been the case, it is no longer. Based on the government's submission in this case, the Attorney General has approved early disposition programs in the Districts of Oregon, Idaho, Nebraska, and North Dakota, in which each Assistant United States Attorney, on average, handles only two or three illegal re-entry cases per year. And an early disposition program was also approved in the Western District of Washington, which has less than one illegal re-entry case per prosecutor per year--0.58 cases per prosecutor, to be exact, for the fiscal year 2003. See Govt. Supp. Resp. at 7 (citing data from http://www.ussc.gov/LINKTOJP.HTM). It would be difficult to describe the illegal re-entry caseload in those districts as unduly burdensome, let alone overwhelming.”

Posted by: Amy | Nov 13, 2005 1:25:46 PM

Phelps' assertion that the Guidelines are the "result of a democratic and deliberative process designed to give tangible expression to the nation's collective penal philosophy, taking into account the assorted broad principles and ideals underlying criminal sentencing" is not an accurate description of reality. Through a process that is in many ways not democratic and has thwarted the Commission's deliberative role, the Guidelines produce sentences that are far greater than necessary to achieve sound sentencing policy goals in many cases and classes of cases. For an interesting analysis of how that has come about, see Frank. O Bowman III, The Failure of the Federal Sentencing Guidelines: A Structural Analysis, 105 Colum. L. Rev. 1315 (May 2005).

Posted by: Amy | Nov 13, 2005 1:44:32 PM

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