July 20, 2009
Seventh Circuit blesses considering defendant's cooperation without a 5K motion from the government
Tucked in the back of a long panel opinion dealing with various sentencing issues is a notable statement about a district judge's post-Booker discretion that, I believe, formally breaks some new ground for the Seventh Circuit. Near the end of US v. Knox, No. 06-4101 (7th Cir. July 20, 2009) (available here), the Seventh Circuit panel makes this statement: "We agree with Davis that, as a general matter, a district court may consider a defendant’s cooperation with the government as a basis for a reduced sentence, even if the government has not made a § 5K1.1 motion."
In the immediate wake of Booker, federal prosecutors often contested and/or complained if a district judge sought to reduce a based on a defendant's cooperation absent a government 5K motion. In the wake of Gall and Kimbrough, I do not believe federal prosecutors still resist the notion that a district court's sentencing authority extends this far. Nevertheless, the fact that the Seventh Circuit expressly declares in this new ruling that a "defendant’s cooperation with the government as a basis for a reduced sentence" even absent a government motion seems noteworthy.
July 20, 2009 at 12:45 PM | Permalink
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I think the splitting of Congressionally mandated career offender enhancements and USSC chosen career offender enhancements is the more important take away from this opinion. If the enhancement is only binding for those offenses Congress actually names that gives judges even more leeway.
Did these three have the same lawyer? It seems strange that two of them would raise and preserve the Kimbrough style argument but the third did not. Especially when that third defendant was the one who would have been most helped by the objection.
Posted by: Soronel Haetir | Jul 20, 2009 3:02:04 PM
The Second Circuit found exactly the same thing back in 2006 in United States v. Fernandez, holding (among other things) that the power to consider such cooperative efforts resides in 18 U.S.C. § 3553(a)(1), "even if those efforts did not yield a Government motion for a downward departure pursuant to U.S.S.G § 5K1.1" -- which the Second Circuit then defines as "non-5K cooperation." Specifically, the Second Circuit held that 18 U.S.C. § 3553(a)(1) is "worded broadly" and "contains no express limitations as to what 'history and characteristics of the defendant' are relevant. This sweeping provision presumably includes the history of the defendant's cooperation and characteristics evidenced by cooperation, such as remorse or rehabilitation."
Here's the write-up on the Second Circuit Sentencing Blog: http://federalsentencing.typepad.com/developments_in_federal_s/2006/04/major_second_ci.html
Posted by: Harlan Protass | Jul 20, 2009 10:39:22 PM
It won't be a truly level playing field until defense attorneys are allowed to bribe and extort witnesses.
Posted by: John K | Jul 21, 2009 1:05:25 PM
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Posted by: חלקי חילוף לרכב בתל אביב | Jan 3, 2011 8:26:18 AM