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January 25, 2005

Notable post-Booker decision from Judge Hornby

The District of Maine has been setting the pace with post-Booker rulings, but with everything else going on I have not had a chance to post about the rulings in Quirion v. US, 2005 WL 83832 (D. Me. Jan. 14, 2005) (recommending denial of habeas motion), Stevens v. US, 2005 WL 102958 (D. Me. Jan. 18, 2005) (same), Hamlin v. US, 2005 WL 102959 (D. Me. Jan. 19, 2005) (same), or In re Beal, 2005 WL 112402 (D. Me. Jan. 19, 2005) (denying downward departure while noting "although not bound to apply the Guidelines, the sentencing court must 'consult those Guidelines and take them into account when sentencing,'" but not imposing a specific sentence).

But meriting detailed discussion is Judge D. Brock Hornby's ruling in US v. Jones, 2005 WL 121730 (D. Me. Jan 21, 2005), which I just found on-line.  Judge Hornby in Jones is sentencing a mentally impaired first-offender for illegal gun possession.  Similar to the work of his colleague Judge Woodcock in the Beal case noted above, Judge Hornby starts his analysis by running through a traditional departure analysis using pre-Booker circuit precedent to conclude "a Guidelines-type departure is not appropriate here" even though "the defendant, the government and Probation all ask me to depart 1 level under the Guidelines to a Zone C sentence, because it affords greater flexibility in the terms of confinement."

Then, Judge Hornby turns to an analysis of "whether to follow the Guidelines."  In this post-Booker analysis, Judge Hornby finds:

If I were in Zone C of the Guideline sentencing provisions, I could implement a so-called split sentence.... Together with other restrictive terms (continued mental health treatment, medication maintenance, abstinence from drugs and alcohol, prohibited association with others consuming drugs or alcohol, prohibited possession of any weapons, and permitting the supervising officer to search his residence for violations), I find that such a sentence would contribute to both the mental health of this defendant and the protection of the community.

Following Booker, I review the sentencing factors in 18 U.S.C. § 3553(a) in determining whether to apply the now advisory Guidelines. One factor listed there is "the need for the sentence imposed--... (D) to provide the defendant with needed ... medical care, or other correctional treatment in the most effective manner." 18 U.S.C. § 3553(a)(2)(D).  The sentence I contemplate here would accomplish that better than the Guideline sentence.  Another listed factor is the need "to protect the public from further crimes of the defendant."  Id. § 3553(a)(2)(C).  I conclude that the marginal protection to the public afforded by a few more months in prison is more than offset by the increased risk upon this defendant's later release after the interruption of his treatment and other regimens.  The sentence I contemplate here will in all likelihood better protect the public over the long term than the Guideline sentence.  Section 3553(a)(1) instructs me to consider "the nature and circumstances of the offense and the history and characteristics of the defendant." I have already addressed this in large part, but I also observe that here it is undisputed that the defendant would have rid himself of his firearms after his first hospitalization had he known that he could no longer legally possess them.  Addressing the other section 3553(a) factors, I conclude that my sentence will adequately reflect the offense seriousness, promote respect for the law, provide just punishment and afford adequate deterrence. 18 U.S.C. § 3553(a)(1)(A),(B). (Sentencing disparity [FN5] and restitution are not at issue here. Id. § 3553(a)(6), (7).)

[FN5] I recognize that sentencing disparity is theoretically always at issue since one of the goals of sentencing is to impose similar punishments upon similarly situated defendants.  But the sentence I impose here will not materially impede achievement of that goal.

January 25, 2005 at 08:32 AM | Permalink


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He did give the lower sentence, right?

His detailed, written, explanation is the most powerful tool judges have to blunt problematic congressional "fixes." If and when there are legislative hearings on the Booker "problem," a robust record of well-reasoned explanations like this will do much to counter the notion that judges are simply giving away the courthouse without reason.

So, I hope that judges will take the extra time to issue this type of written explanation in EVERY non-guidelines sentence (they're probably required under USSG rules anyway), rather than just providing one orally. Perhaps one of the pertinent organizations can begin collating and studying them with an eye towards generating a compelling report, just in case the USSG's efforts aren't adequate in this area.

Posted by: Alex E. | Jan 25, 2005 9:55:23 AM

I heard just the oppisite -- but im probably wrong.

Posted by: mark | Jan 25, 2005 8:22:46 PM

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