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February 8, 2005

Simon says offender characteristics now quite relevant to federal sentencing

I just noticed on-line a terrific district court Booker opinion from last week authored by Indiana US District Judge Philip Simon.  The case is US v. Nellum, 2005 US Dist LEXIS 1568 (N.D. Ind. Feb. 3, 2005) (also available here), and in the interpretive battle over the weight to be given to the guidelines, Judge Simon says in Nellum that Judge Adelman in Ranum and Judge Pratt in Myers have the better approach.

The defendant in Nellum was a relatively small-time crack dealer who turned to a life of crime to support his crack habit.  After carefully computing the defendant's guideline range, Judge Simon then turned to consider the 3553(a) factors.  In so doing, Judge Simon concluded that the defendant's age, family ties, drug addiction, medical condition and past military service, all previously discouraged or prohibited factors, were now "very relevant."  Considering these factors, along with the "very serious" nature of dealing crack, Judge Simon imposed a sentence of 108 months' imprisonment (which was nearly 5 years longer than the sentence sought by the defendant, but 5 years shorter than the guideline sentence urged by the prosecution).

Nellum merits praise and close examination for its thoughtful use of US Sentencing Commission recidivism data and its effectively analysis of the relevance of offender characterisitcs in the application of 3553(a).  The decision also spotlights (while dodging) a fascinating jurisprudential issue raised by crack offense sentencing:

Nellum argued at sentencing that the disparity between the sentencing guidelines for crack versus powder cocaine (the infamous 100 to 1 ratio), see generally USSG ยง2D1.1(c), should be considered in crafting an appropriate sentence. Indeed, Nellum pointed this Court to a November 2004 report issued by the US Sentencing Commission in which it noted that in 2001 it "recommended that the crack cocaine threshold be raised ... replacing the 100 to 1 ratio with a 20 to 1 ratio." USSC, Fifteen Years of Guidelines Sentencing: An Assessment of How Well the Criminal Justice System is Achieving the Goals of Sentencing Reform, at 132. Congress did not act on that request. In the November 2004 report, the Commission again stated that "Revising the crack cocaine thresholds ... would dramatically improve the fairness of the federal sentencing guidelines."  Id.  As one court put it, "the Sentencing Commission with its ability to collect sentencing data, monitor crime rates, and conduct statistical analyses, is perfectly situated to evaluate deterrence arguments." US v. Wilson, 2005 WL 78552, at *8 (D. Utah Jan. 13, 2005).  There can be no doubt that this issue is extremely controversial and one which this Court will no doubt face in future sentencings.  However, the Court found that it need not address the 100-to-1 powder to crack cocaine ratio in crafting this sentence. Instead, the Court relied on the myriad of factors it was already required to take into consideration in arriving at Nellum's sentence.

February 8, 2005 at 08:31 PM | Permalink


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Posted by: ahsan | May 31, 2005 10:47:18 AM

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