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September 14, 2004

Wouldn't most sentences be lower if the guidelines are non-severable?

As detailed in this recent post, I am worried about some potentially peculiar and problematic consequences of a ruling that the federal guidelines are (partially or totally) not severability. Moreover, though in this seemingly long-ago post I posited that the severability debate is a tussle between concerns about lawlessness and leniency, I am now thinking that, if the SG's non-severability argument prevails, we will have a federal sentencing world that is both lawless and lenient.

As noted before, the SG's advocacy of non-severability seems driven principally by a concern that some defendants "could receive a sentencing windfall," SG brief at 68, if the guidelines were deemed severable. But won't (many?) defendants be able to receive a bigger windfall if the guidelines are declared non-severable (especially if the guidelines become inapplicable in all cases)? I suspect that most federal judges agree with Justice Kennedy's assertion to the ABA last year that "[o]ur resources are misspent, our punishments too severe, our sentences too long ... [and thus the] Federal Sentencing Guidelines should be revised downward." If so, won't most federal judges go even lower without any guideline constraints than if constrained by the guidelines applied in a Blakely-compliant way?

Consider, for example, the Booker facts before the Supreme Court. With the guidelines severable and still partially binding, Booker must get at least 210 months. But with the guidelines non-severable and just advisory — though with the SRA's mandate in 18 USC 3553(a) that a judge "impose a sentence sufficient, but not greater than necessary, to comply with the purposes" of punishment — Booker could receive a sentence as low as 120 months.

Alternatively, consider Martha Stewart's case. First, if the guidelines are completely non-severable in all cases (as two district judges have held), she has a right to resentencing; at resentencing she would have a reasonable argument that the SRA's requirement of "a sentence sufficient, but not greater than necessary," would call for a sentence with no jail time. Second, even if the guidelines are deemed non-severable only in cases with Blakely factors, Martha's lawyers might claim now that her case involves a Blakely factor so she can argue for a lower sentence under the government's non-severability theory.

Finally, consider the interesting and potent arguments made in a recent brief that I received (and provide for downloading below) that established due process and ex post facto doctrines preclude a judge from "retroactively increasing the potential penalty from the applicable Guidelines range to the statutorily prescribed maximum." In other words, constitutional doctrines may preclude judges from imposing harsher sentences if freed from guideline constraints — i.e., judges only discretion in a "non-severed guidelines world" may be to be more lenient (which, of course, may be what they really want to do anyway).
Download blakelybrooks_severability_memorandum.pdf

After I get through all this headache causing analysis, I come to wonder whether defense attorneys might in the end argue for non-severability, too, in Booker and Fanfan.

September 14, 2004 at 01:59 PM | Permalink


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Prof. Berman, I must disagree with you. There have been 201 G.W. Bush appointees to the federal bench. Those, on top of the dozens of Clinton appointees (who are often regarded as centrists) and the G.H.W. Bush appointees, have all judged only under a Guidelines scheme. Regardless of whether they like the Guidelines, these judges at least see the Guidelines as guideposts for sentencing. For example, look at the district court opinions that declare the Guidelines unseverable. When making their sentencing decisions, they use the Guidelines as a starting point and give some reasons for going lower. I have not seen an opinion in which a judge, feeling free from the guidelines, has stated "and I give a considerably lower sentence because the Guidelines are too harsh for this particular crime." Judges have accepted the fact that Congress views these sentences as what society wants. The most outspoken judicial opponents of the Guidelines are in a very small minority. My point is that the current federal judiciary, on average, my give lower sentences if the Guidelines were completely nonbinding, but they won't give drastically lower sentences.

Then compare the results if the Guidelines ARE severable. A few examples:
Aggravated Assault (2A2.2) -- base offense level of 15, with total possible enhancements of 15. For someone in Category II criminal history, that doubles the sentence; for someone in Category V that quadruples it.

Larceny (2B1.1) -- base offense level of 6, with the possibility to max out the scale. Even with a "medium level" larceny, the enhancements would add 2, 3, or 4 times the offense level number.

Insider Trading (is this Martha's Guideline?) Base offense level of 8, but if the loss is greater than $5,000 the Larceny scale applies (adding up to 30 levels)

Drug Offenses (2D1.1) -- even though the base offense level should be set by the charge proved to the jury, enhancements are easily available to push the defendant to the bottom (that is the highest levels) or near the bottom.

Kiddie Porn (2G2.2) -- Base offense level of 17, with a possibility of 23 levels' more enhancement.

Yes, indeed, there are other offenses in which there are fewer enhancements, and a judge would more likely give lower sentences if the Guidelines were just guidelines (For example, interception of communications 2H3.1, obstructing officers 2A2.4, Criminal sexual abuse 2A3.1). But on balance, as a criminal defense attorney, I would be arguing that the current federal judges are BOUND to the base offense level and nothing MORE (at least in the short term). Otherwise, the jduges, in their discretion, may sentence HIGHER than the Guideline range (or certainly higher than the base offense level). You've reported on that happening, and I've heard about it, too.

Posted by: district clerk battling blakely | Sep 14, 2004 3:46:12 PM

If the guidelines are ruled unseverable and thus only advisory it will be interesting to see how sentencing hearings are effected. I've seen a great number which were short, witnessless affairs wherein, after a short Defense argument, the judge imposes the lower end of the guidelines. If there's no predestined sentence I think those hearings will get a lot longer.

While I think that some sentences will be greater than they would have been previously, I'd put money on a long term downward trend as a lot of factors which are not considered now are weighed against the brutal guidelines.

Posted by: ken | Sep 14, 2004 7:25:47 PM

In the division* in which I practice, a holding of non-severability will likely result in higher sentences in many cases. In fact, during the early afterglow of Blakely one judge told defendants that they could either have their Blakely objection or a guidelines sentence. That was widely viewed as a thinly veiled threat of higher-than-guidelines sentences for defendants who argued Blakley to its full extent. Fortunately, this judge's hands are tied for the time being by the law of the circuit on Blakley (although that is, amazingly, a point of some contention). If SCOTUS holds that Blakely applies to the guidelines and that the guidelines are non-severable, then Lord knows what will happen on remand to all the defendants who have been preserving Blakely in the last few months. That due process/ex post facto argument may get a workout.

*According to local lore, this is one of the few places where average sentences decreased with the advent of the guidelines.

Posted by: anon | Sep 15, 2004 1:42:33 AM

Hello. My dad was sentenced in September and I was wondering if you could get re-sentenced after the Blakly law was imposed? Could someone e mail me back about this matter please?

Posted by: Dionne Barrett | Oct 11, 2004 7:29:09 PM

I am a defendant with one charge of larceny I don't really understand my case because I dont know if they are going to use actual or intended loss because they made recovery in my case Im just trying to get a better understanding of the federal sentencing guildelines

Posted by: Patrice Oliver | Feb 25, 2008 5:47:27 PM

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