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February 19, 2005

More on departures and variances: not quite as easy as 123

In this recent post, I spotlighted the importance of a post-Booker protocol in which judges first (1) calculate an applicable guideline range, then (2) make traditional departure determinations, and then (3) decide whether to follow or vary from the (now advisory) guidelines based on 3553(a).  I also expressed concern that it would be dangerously easy for courts to collapse the departure and variance considerations (steps 2 and 3 above), especially in cases where a traditional departure is plausible but unlikely.  (TalkLeft has an astute recent post, Booker, FanFan 1-2-3, commenting on these matters.)

A district court Booker decision that just came on-line, US v. Mullins, 2005 WL 372209 (WD Va., Feb. 16, 2005) (available here), confirms that some post-Booker decisions may not be as easy as 123.  In Mullins, Chief US District Judge James Jones finds it "reasonable to sentence the defendant below the advisory sentencing guideline range" after his guilty plea to two firearm charges, but does so after suggesting, but not conclusively ruling on, the possibility of a departure:

The ground for the requested downward departure here is unmentioned in the Sentencing Guidelines, and thus under pre-Booker procedure, I would determine whether the fact that the conduct used to compute the guideline range is no longer criminal is sufficient to justify a departure.  Whether consideration of guideline authorized departures in the post-Booker world is necessary is a question that remains to be answered. I need not decide that issue, however, since I find that in any event, a variance below the applicable guideline range is called for in this case.

There has been yet no authoritative formulation following Booker as to the weight to be given to the formerly mandatory sentencing guidelines.  Regardless of the precise weight to be given to the Sentencing Guidelines, however, I find that evaluation of the statutory sentencing goals justifies a sentence below that of the guidelines.  The applicable sentencing statute left untouched by Booker requires a sentencing court to impose a sentence not greater than necessary to comply with certain listed sentencing purposes, including "afford[ing] adequate deterrence to criminal conduct." 18 U.S.C.A. § 3553(a)(2)(B).  In the present case, neither the defendant nor others can be deterred by a sentence based on the guideline range for possession of a semiautomatic assault rifle, since that conduct is no longer criminal.  Instead, the more apt guidelines range should be based on the conduct that is still criminal — selling a firearm without the proper documentation. That offense has a base offense level of 12. USSG § 2K2.1(a)(7). Adding the stipulated increases and subtracting the reduction for acceptance of responsibility produces a total offense level of 21, which has a sentencing range of 37 to 46 months for Criminal History Category I.

Taking into account the guidelines as well as the sentencing goals of § 3553(a), I find that a reasonable sentence in this case is 40 months imprisonment.  This sentence gives recognition to the guideline range while also applying an appropriate reduction because of the removal of criminality of the offense used to calculate that range.

Because of the understandable decision not to rule expressly on the departure issue, I think the Sentencing Commission will have to code the Mullins case as a "variance."  However, both because a departure likely would have been appropriate and because Judge Jones linked the degree of his variance to the guidelines, this case hardly seems to be a "non-Guidelines" sentence.  Mullins thus spotlights how hard it will be for the USSC to code and present effectively post-Booker data, even though as noted here everyone consider such data work to be among the USSC's most critical tasks now.

February 19, 2005 at 11:51 AM | Permalink


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At the risk of sounding like those who advocate simplifying the tax code, I wonder whether there's really any principled reason to go through the "three-step analysis" (guideline, departure, variance). Since Booker reaffirms the need to consider all 3553(a) factors, why should courts first determine a presumptive sentence under guidelines that artificially limit their consideration?

The Sentencing Commission could do everyone a real service and save a forest of trees if it modified the guidelines to allow all 3553(a) factors to be considered with respect to possible departures. That would allow the sentencing process to be more honest and make the departure data it generates more illuminating. It's time for the Commission to abandon the idea that sentences should be determined without regard to those factors and to conform the guidelines to the system Booker created. Adhering to an outdated mode of analysis simply because it's generated 15 years of case law seems an awful waste of time and energy.

Not having read the recent testimony before the Commission, I don't know if others have already made this suggestion. If they have, I second it.

Posted by: Alex E. | Feb 19, 2005 3:45:07 PM

I really dislike the use of the term "variance" to describe any non-Guidelines sentence. To me, it's not only pejorative, but also reinforces the notion that the Guideline range constitutes some sort of presumptively reasonable sentence. There is absolutely no basis for that approach other than custom, as 3553(a) itself sets up no hierarchy of sentencing goals (and to the extent that it does, treats the applicable Guideline range as the fourth-most-important consideration).

In my mind, it makes every bit as much sense to refer to a Guidelines sentence as a "variance" from one that is compelled by any of the other 3553(a) factors, given that the Guidelines prohibit or discourage many of the considerations mandated by 3553(a) and that the ranges produced by Guidelines calculations are far too harsh in many, if not most, cases. It's just maddening that there's such a strong push towards treating the Guidelines as de facto mandtory in the wake of a Supreme Court decision rendering them merely advisory, and this whole "variance" concept plays into the mistaken notion that the Guidelines range is the first among equals under 3553(a). That approach may help facilitate data collection and number crunching for the Sentencing Commision, but, to paraphrase Justice Scalia's opinion in Blakey, the Fifth and Sixth Amendments aren't concerned with administrative efficiency.

Posted by: anon | Feb 21, 2005 2:25:15 AM

I heartily agree with anon, but we're talking only about a question of Congressional intent, rather than power. This raises the broader question of whether Congress--and I speak on the premise that it fully controls the Sentencing Commission--could choose to control the sentencing process without running afoul of the constitution. The time is ripe to bring this issue to a head.

Certainly, within limits, Congress can define what societal behavior is criminal and it can also specify the maximum punishment possible following conviction. Aren't there reinvigorated arguments now that mandatory minimums and other types of sentencing constraints invade the exclusive province of the judiciary, violating separation of powers and substantive due process, in addition to other doctrines? Yes, I'm basically arguing that Mistretta was wrongly decided but we know the Feeney amendment belied the fiction that the Sentencing Commission is only an arm of the judiciary and would likely have required the Supreme Court to revisit that decision had Blakely and Booker not intervened.

I think it will be quite some time before we have a better climate than the present one for the judiciary to reassert itself by casting off centralized legislative efforts to control a process that can be fairly be implemented only on an individualized basis. So, it would be very helpful if people could suggest arguments (perhaps as comments to an initial SL&P post?) those of us on the front lines can use to try to develop a body of favorable case law and ultimately to get this fundamental issue before the Supreme Court.

This is probably best done, in the first instance, when favorable facts (sympathetic defendant, guidelines level lower than statutory mandatory minimum) and a progressive judge align to make a good test case. If someone has such a case, please step up to the plate now and identify yourself. I can be e-mailed privately so you can avoid revealing that you think you have a "good" judge and I'll coordinate getting arguments and resources directed to you.

Posted by: Alex E. | Feb 21, 2005 10:38:40 AM

In a post yesterday, Professor Berman asks whether "there are any on-going efforts within the defense bar to identify sympathetic defendants with compelling facts to provide an effective test case" against mandatory minimums. If responses indicate that organizations are already working on this type of project, I'd suggest that people submit proposed test cases directly to them. If not, I may offer myself up as a clearinghouse once again. For now, I'm temporarily putting my request for test cases on hold.

In the meantime, if there's a candidate case that simply can't wait, I'd be happy to screen it and to assist in getting resources directed your way. A promising appeal with a well-developed record in a progressive circuit would be wonderful (and probably won't require any outside help) but my guess is that the best opportunities will be found in district court cases in which defendants have not yet been sentenced. To make the process manageable for me, I'd like to receive submissions only from lawyers, as they're usually best equipped to provide the specific information I'd need. If defendants or family members can provide everything I've requested, however, that's not a hard and fast rule.

To allow me to manage a potentially large number of responses, though, every submission must contain all of the following information in labeled and numbered paragraphs in this specific sequence:

(1) CASE NAME: case name, district or circuit, docket number (including district court number, if case is on appeal)

(2) JUDGE: name of district judge and a brief opinion about the judge's likely receptiveness to a mandatory minimum challenge with citations to prior favorable or unfavorable sentencing decisions (with brief descriptive parentheticals for each)

(3) METHOD OF CONVICTION: whether the conviction was by plea or trial (and whether any trial was by jury or judge)

(4) FACTS: a description of the facts of the underlying case, not exceeding 150 words

(5) STATUTORY PROVISIONS/MANDATORY MINIMUMS: a listing of all charges, by name and statutory provision (including subsections), of which the defendant stands convicted (and also acquitted if there was a trial), the mandatory minimum sentence applicable to each charge and an indication of whether it will be served consecutively or concurrently to any other imposed (with supporting statutory citations)

(6) SENTENCING GUIDELINES: a brief summary of the defendant's criminal history (convictions and sentences, regardless of whether they're counted under the guidelines), a description of the guidelines criminal history analysis and resulting score, a description of the guidelines offense level and resulting sentencing range

(7) OTHER SENTENCING FACTORS: a description, also not to exceed 150 words each, of any favorable and unfavorable personal characteristics or circumstances that would likely influence discretionary sentencing (or resentencing if the case is on appeal)

(8) STATUS OF APPEAL: if the case is on appeal, a description of its procedural status, including dates each party's brief has been, or is due to be, filed and the oral argument date, if one's been scheduled.

Posted by: Alex E. | Feb 22, 2005 10:39:50 AM

Looking for informaton on downward departures for an already sentences federal prisoner, non violent and age 75 with cancer. Any suggestions?
Trying everything to look into.
Thank you for any help you can give me.
Helena DiPietro

Posted by: Helena DiPietro | Mar 28, 2006 12:22:54 AM

I looking to try to understand downward departures and variances as to sentencing.My husband is charged with firearm violations only because he is mentally ill, not because he used any weapon in a crime. I'm trying to find out how he can be sentenced. He has no prior convictions of any kind, he has family ties, honorable military service, mental illness, age 55, physical illnesses. His offense is level 4, can anyone help me understand how many months he could be facing? Thanks so much Pam Copeland

Posted by: Pam Copeland | Sep 25, 2007 11:40:47 AM

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Posted by: | Oct 14, 2008 7:12:32 AM

Life about decisions you make , encounter , develope or learn by experience or other's . The SRA is a law that our congress promulgate , to proclaim their state of righteous on paper . The Law have been circumvented , and never provided a solution to the issue on crime and war on drugs . The minority , poor caucasians are statitics . We are not considered as a virtue product in society nor our children . They provide more institutions for us then , schools . They always have solution to termoils when we interfere in their neighborhoods or private schools . I have a problem with individual's that procrastinate and always have theorys , and no logics . America was built around three part judicial systems . Only the rich . Builds and destroys . I feel as though we need to consistant on our votes , changing prejudice laws. Vow to stay on our Senators actions , wake the goverment up . Because they have been asleep for a long time .

Posted by: tina harris | Nov 11, 2009 10:42:39 PM

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