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January 26, 2009

New opinion from Judge Adelman explaining why drug guidelines merit less respect under 3553(a)

I just received a short but still important new sentencing decision from US District Judge Lynn Adelman. Judge Adelman imposes a below-guideline sentence in US v. Thomas, No. 08-CR-238 (E.D. Wisc. Jan. 24, 2009) (available for download below), based on part on the conclusion that the powder cocaine drug trafficking guideline is entitled to less respect because it is not based on an "empirical approach" or  study and expertise from the US Sentencing Commission. Here is a key paragraph from the opinion in Thomas:

As indicated above, the guidelines recommended that defendant served 27-33 months in prison.  In considering this recommendation, I noted that the Sentencing Commission “departed from the empirical approach when setting the Guidelines range for drug offenses, and chose instead to key the Guidelines to the statutory mandatory minimum sentences that Congress established for such crimes.”  Gall, 128 S. Ct. at 594 n.2.  The Commission did not at the time of adoption explain how this scheme furthered the purposes of sentencing or otherwise justify the recommended sentences by reference to past practice or other research or study, and sentences in drug cases have since increased far above pre-guideline practice.  See U.S. Sentencing Commission, Fifteen Years of Guideline Sentencing 48-49, 53 (2004).  Such guidelines, which do not take account of empirical data and national experience, and do not exemplify the Commission’s exercise of its characteristic institutional role, are generally entitled to less respect. See Kimbrough, 128 S. Ct. at 575.

Download Judge Adelman written memo for drug variance

January 26, 2009 at 03:26 PM | Permalink


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This "deconstructionist argument" should not carry the day when applied to powder cocaine. Mandatory minimums are not implicated in an offense level of 22. The Commission was indeed following past practice in setting an offense level of 22 for a quantity involving 384 grams of cocaine. One of the major starting points for the sentencing guidelines was the US Parole Commission's guidelines. This offense under the Parole Commission Guidelines would yield a range of 24-36 months for a first offender and 36-48 months for an offender with criminal history of Thomas. Thus, the Sentencing Guidelines range found by the Court was at the low end of past federal practice!!!!

I support more individualized sentencing and this defendant's personal history may well have supported a 5 month prison term. However, the Court should not hide behind these ever-broadening "deconstructionist" arguments when in fact they just wanted to give someone a "break".

Posted by: mjs | Jan 26, 2009 4:24:16 PM

I agree completely, MJS. The deconstructionist argument has become a panacea: judges or defendants pick a guideline that they find too severe, analyze its history, and then argue that it is entitled to little or no deference.

Posted by: Da Man | Jan 27, 2009 2:59:39 PM

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