May 19, 2006
More friendly advice on crack sentencing for Third Circuit
As detailed in this press release from the ACLU, the amicus team lead by Professor Mark Osler has filed another brief on post-Booker crack sentencing. The brief, which supports of the exercise of post-Booker discretion to vary from the notorious 100-to-1 crack/powder guideline sentencing ratio, has now been filed in the Third Circuit case of US v. Ricks. The amicus brief can be accessed at this link, and below are just a few posts on the crack sentencing issues.
Some related posts:
- New ACS issue brief on crack sentencing disparity
- Amicus brief in crack sentencing appeal
- Another crack at an amicus brief on crack sentencing
- Yet another amicus crack at crack sentencing
- Insightful report and analysis of Booker on crack
- What is the Sentencing Commission fiddling while the crack guidelines burn?
May 19, 2006 at 07:04 AM | Permalink
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The Fifth Circuit in U.S. v. Sterling, 05-30181 (May 11, 2006) made the following conundrum the basis for review of deviations versus departures;
“The court calculated Sterling’s guidelines sentence range,
used that range as a frame of reference, and made a carefully explained upward deviation based primarily on Sterling’s criminal history without making an upward departure under the guidelines.”
Walter Sterling appeals the sentence imposed following his
guilty-plea conviction of possession of a firearm by a convicted
felon. He argues that his sentence, a non-guideline upward deviation to the statutory maximum of 120 months of imprisonment, was unreasonable because the district court made an upward deviation based on his criminal history without following the procedures for making an upward departure under the guidelines based on his criminal history.
The court however found, “This is the proper procedure when imposing a non-guideline sentence. See United States v. Smith, 440 F.3d 704, 708 (5th Cir. 2006). Whether an upward departure would have been warranted is immaterial, because the court made an upward deviation outside the guidelines range, instead of an upward departure.”
The Tenth Circuit in a workman’s compensation case O’Shea v. Welch No. 02-3343, 11-25-2003, explained deviation as constituting departure, a rule that the Fifth Circuit should consider before extending imprudent precedent any further in appellate jurisprudence.
The rule has been stated that:
[w]hether there has been a deviation so material or substantial as to constitute a complete departure is usually a question of fact. In some cases the deviation may be so marked, and in others so slight relatively, that the court can say that no conclusion other than that the act was or was not a departure could reasonably be supported; while in still others the deviation may be so uncertain in extent and degree in view of the facts and circumstances as to make the question of what inferences should be drawn from the evidence properly one for the jury.
The difference between review and remand for departure versus deviation is astounding in that in the Fifth Circuit there will be no correction for deviation in a non-guideline sentence, but immediate remand for departure of a guideline sentence
everything else being equal, but who can tell where deviation ends and departure begins. But when a deviation or variance is substantial, it becomes “the tail that wags the dog” and morphs into a departure, now a fact question exists which is the province of the jury.
Variance from the guidelines would therefore create a non-guideline sentence and such a “downward” deviation in Ricks case like the upward deviation in Sterling “is the proper procedure”, the court in Ricks made a downward deviation instead of a downward departure.
Posted by: Barry Ward | May 19, 2006 8:02:47 AM
I met a member of congress the other night. She indicated the way she intends to address the disparity (crack/powder ratio) is to INCREASE cocaine powder, meth, and heroin to the same guideline ratio as crack cocaine. Interesting fix.
Posted by: rls | May 20, 2006 10:37:56 AM
Posted by: | Oct 14, 2008 11:13:54 PM