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December 27, 2006

Judge Gertner takes on the career offender guidelines

The holiday season has not kept US District Judge Nancy Gertner from completing her latest Booker opus, US v. Ennis, No. 03-cr-10298 (D. Mass. Dec. 21, 2006) (available below).  In Ennis, Judge Gertner assails the application of the career offender guideline, and here is one of many choice snippets:

This memorandum will address why in the sentencing of three defendants ... who qualify as "career offenders" under the United States Sentencing Guidelines after United States v. Booker, 543 U.S. 221 (2005).  Many courts, while announcing that the Guidelines are advisory, are in fact following them nearly as rigorously as they had before Booker.  Under the circumstances, it is especially important to spell out the legal limitations of the career offender guidelines, in general, and in their application to these cases, in particular.  Let me be clear: If I choose not to follow the career offender guidelines in the case of these defendants, it is not because I simply disagree with them and chose to substitute my own idiosyncratic philosophy of sentencing. It is because the career offender guidelines as applied to the cases at bar are wholly inconsistent with the purposes of sentencing in 18 U.S.C. ยง 3553(a).

Download gertner_career_offender_opinion.pdf

December 27, 2006 at 07:38 AM | Permalink


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From my reading of just the quoted snippet, Judge Gertner seems to have learned some, but not all, of the magic words that the regional circuits have set forth. If Pho is to be followed, Judge Gertner should be reversed. In Pho, as in the other regional circuit opinions, the distinction is between disagreement with the Guidelines themselves and belief that IN THE INDIVIDUAL CASE the Guidelines AS APPLIED TO THE DEFENDANT do not adequately serve the purposes of sec. 3553(a). The fact that Judge Gertner has good reasons for categorically rejecting a provision of the Guidelines is not sufficient (under Pho and under most of the regional circuit opinions dealing with crack sentencing). I think that the distinction that the regional circuits have set forth is silly, and the substance of the crack opinions is that there are good and bad magic words that sentencing judges can use when departing from the Guidelines.

Judge Gertner opinion is consistent with the logic in Judge Bye's dissenting opinion in Spears (en banc, Dec. 5, 2006), in particular Judge Bye's statements at pp. 21-22, but Judge Bye's logic has failed to grab a majority in any circuit (except maybe the CA3, but Gunter is something of an ink blot).

I wish I'd gotten my thoughts on this together in time for the "lightning round" request for the FSR...

Posted by: Bill | Dec 27, 2006 8:10:38 AM

Bill: If you can get me a draft by the end of next week, you might still make it into the Feb. 2007 FSR issue on Claiborne + Rita.

Posted by: Doug B. | Dec 27, 2006 9:40:28 AM

It seems that where Judge Gertner gets herself into trouble is by refusing to apply the Guidelines as they are written, and instead concocting her own version of how she wishes they were written (or how she thinks they should operate in a specific case). Instead of registering her disagreement with the purportedly advisory Guidelines range by simply doing a 3553(a) analysis and choosing a varied sentence accordingly, she instead uses her analysis of the 3553(a) factors to alter the operation of the Guidelines themselves.

(I get this from this particular opinion when she chooses a lower criminal history score. Perhaps I am mistaken, and such a move is a proper application of the Guidelines. Still, I think my generalization is accurate because this has been her approach to the crack guideline and the reasonable doubt standard as well.)

Personally, I do not fault her for this. Indeed, it may be one of the most reasonable ways for a district judge to exercise her Booker discretion. And in any event, it is certainly the most honest reflection of what is really going on in the district courts at sentencing, IMHO. But for some reason, all that appellate courts see when confronted with a sentence derived in this manner is a deliberate disregard of congressional policy as expressed in the Guidelines.

Now, I certainly think that the citcuit courts' position in this regard is patently incorrect on its own terms; district courts, in order to have a judge-based Guidelines system, simply must be able to disagree with congressional policy. But I think that Guidelines variances explained in terms other than how Judge Gertner explains them might be more palatable to the courts of appeal (notwithstanding the pattern of reversals in downward variance cases).

Posted by: | Dec 27, 2006 2:03:59 PM

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