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May 21, 2008

District court opinion takes apart career offender guideline

Providing a fitting complement to Judge Nancy Gertner's recent work on what "similarly situated" means under the guidelines (discussed here), Judge Lynn Adelman has a new opinion deconstructing the career offender rules in US v. Seib, No. 07-CR-215 (E.D. Wisc. May 16, 2008) (available for download below).  In addition to covering lots of important post-Booker ground, Judge Adelman drops this telling footnote in Seib which speaks volumes about modern federal sentencing realities:

This case demonstrated how the complexity of the career offender guideline can flummox even the shrewdest lawyers and probation officers, with potentially dramatic consequences.  Defendant faced a guideline sentence more than three times longer under the career offender provision.  One wonders how many prisoners languish behind bars for years under an improper career offender designation.

Download seib_sen_memo_on_career_offender.pdf

May 21, 2008 at 08:48 PM | Permalink


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"One wonders how many prisoners languish behind bars for years under an improper career offender designation."

Some people might wonder how many criminals got back on the street prematurely under an improper failure to designate them as career offenders.

Complexity -- of the career offender provision specifically and the guidelines generally -- cuts both ways. In a system that fully takes account of all relevant factors concerning the offender and the offense behavior, complexity is inevitable.

This is not because the Sentencing Commission has set out to bedevil us. It's because life is complex.

Posted by: Bill Otis | May 21, 2008 10:12:55 PM

Whats so complex about this? The probation office never should have made the defendant a career offender because some of the priors they relied upon were to old to score since they were committed before the defendant was 18 even though defendant was prosecuted or treated as an adult in those prior prosecutions. See 4A1.2(d). Have to go to prison for a term exceeding one year and one month for the time frames to count priors is extended for offenses committed prior to age 18. Defendant never went to prison as a result of those priors. Thus, if they were older than 5 years, no points can be assessed and they cannot be used as career offender predicates.

Posted by: ash | May 22, 2008 9:38:33 AM

I had a similar situation with a cold record appeal (where our office is appointed to handle the appeal of someone we did not previously represent). Client had 4 prior felonies and the PSR designated him a career offender, but didn't ID the predicates. Nobody objected, guy got 262 months. Upon review (a) 2 of the priors didn't count because they were too old; (b) one other prior did count; but (c) the fourth one, while a drug possession felony, didn't meet the definition of "controlled substance offense" because it didn't involve distribution. The guy should have gotten (and did, on remand) the mandatory minimum 60 months.

To its credit, after I filed the brief, the Government quickly agreed to a joint remand to correct the situation.

Having said that, I agree with ash that this isn't terribly complex, just time consuming.

Posted by: JDB | May 22, 2008 3:32:36 PM

I don't get this either. There is nothing terribly complex here. And the district judge did not "take apart" the career-offender guidelines. (if by that you meant she criticized their applicability or how they treat past convictiosn) The probation office made a mistake (how often that happens, I am unsure), but the district court judge in less than 3 pages (including full citations to the relevant guidelines' provisions) methodically stepped through the career offender provisions and explained why they didn't apply.

Posted by: Alex | May 22, 2008 4:48:20 PM

Is anybody else uncomfortable with the so-called "cliffs" here. Meaning: the addition of one fact, that may have occurred 20 years ago, might be the determinant of whether the defendant gets 262 months or 60 months?

Posted by: A DC Wonk | May 23, 2008 8:34:45 AM

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