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May 13, 2008

Intriguing little SORNA sentence reversal from the Fifth Circuit

In US v. Sanchez, No. 07-30578 (5th Cir. May 13, 2008) (available here), the Fifth Circuit says a lot of really interesting things in a really notable setting in a really short opinion.  Here are the starting and closing part of the opinion, which perhaps highlight why Sanchez is a must-read for sentencing fans:

Darrell Sanchez challenges the district court’s imposition of a 60-month sentence for failing to register pursuant to the Sex Offender Registration and Notification Act (“SORNA”).

Sanchez pleaded guilty to failing to register pursuant to SORNA, in violation of 18 U.S.C. § 2250. At sentencing, Sanchez and the Government agreed that “the guidelines associated with the crimes are 2X5.1 and 2X5.2 because there are no other applicable guidelines, specific to this crime.”  The district court noted that this was the only case it had ever encountered in which there was no applicable guideline, and determined that, in the absence of an applicable guideline range, it had to sentence Sanchez utilizing the factors set forth in 18 U.S.C. § 3553. The district court noted that the statutory maximum for a violation of §2250 was 10 years of imprisonment. Then, indicating that it had considered the factors set forth in § 3553(a), the district court sentenced Sanchez to a 60-month term of imprisonment and to a five-year term of supervised release.

However, unbeknownst to the district court or the parties, prior to Sanchez’s sentencing on June 11, 2007, the Sentencing Commission had promulgated and submitted to Congress a proposed guideline for violations of § 2250.  After Sanchez’s sentencing, the proposed guideline was approved by Congress and now appears in the 2007 Guidelines Manual as § 2A3.5. It is undisputed that Sanchez’s sentencing range under the proposed guideline, now § 2A3.5, would be significantly less than the 60 month sentence imposed by the district court.....

Finally, we must emphasize the narrowness of our holding.  We hold only that, where, at the time of sentencing there is no guideline in effect for the particular offense of conviction, and the Sentencing Commission has promulgated a proposed guideline applicable to the offense of conviction, the district court’s failure to consider the proposed guideline when sentencing the defendant may result in reversible plain error.

May 13, 2008 at 05:06 PM | Permalink


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Last week, Sentencing Law Policy had the details about a 5th Circuit decision reversing a sentence under the SORNA provisions of the AWA. Here is a portion of the decision:Sanchez pleaded guilty to failing to register pursuant to SORNA, in [Read More]

Tracked on May 21, 2008 9:56:50 PM


This may be the most puzzling sentencing decision of the year. It was not only error, but plain error, for a district court not to consider pending amendments to the sentencing guidelines. That’s right. Reversible error for a district court not to sua sponte consider advice from Congress that Congress had not passed yet. What if the amendments hadn’t passed? This case is just another symptom of appellate courts viewing the Guidelines as mandatory light. Don’t be fooled by the fact that a defendant actually benefited from this creative bit of reasoning. You’ll quickly see this opinion being cited in favor of pro-government results.

Posted by: | May 13, 2008 11:10:35 PM

Wether the defendent benefits, it still to be seen. The court can calculate the guideline range correctly and still choose to keep the 60-month sentence.

I can only hope that the Judge sentences this man to such ridiculous term of imprisonment, because there was something that indicated he was a real danger to society, not simply because he was a sex offender.

What scares me the most is that almost no one would find a 60 month and 5 years of supervised released unreasonable. We are talking about the maximum 10 years just for failing to register.

Posted by: EJ | May 14, 2008 12:10:43 PM

An interesting study would be what percentage caught up in the sweeps by the Feds were arrested for an unknown sex crime discovered during the sweep investigations? Since the assumption is these people are committing sex crimes and that is why they failed to register (to remain under the RADAR), and the justification for the registry is that they are likely committing crimes, and since 90% of them supposedly reoffend, 90% of them should be charged with new sex crimes along with the failure to register.

Have any of them been charged for new sex crimes in addition to the failure to register charge? It may turn out that these sweeps actually dismantle the rational basis test that was support for the registry being constitutional in the first place. But then, I don't know the actual numbers and the study may or may not support the "But most of their crimes go undetected" meme.

Posted by: George | May 16, 2008 11:30:03 AM

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