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February 16, 2005

Topical highlights from Day 2 of the USSC hearings

Rather than provide testimony highlights as I did here for USSC hearing day 1, I thought it might be more beneficial to spotlight some of the biggest topical issues developed during the second day and throughout all the hearings.  Though I urge review of the testimony linked here for a more thorough account of issued covered, here are just a few of the topics still spinning in my mind after the hearings.

1. The collection and presentation of post-Booker data: As stressed in this prior post, everyone is focused on the importance of district courts providing, and the USSC effectively analyzing, post-Booker data.  But a number of Commissioners astutely asked about how the data ought to be parsed.  Especially important, as a number of folks noted, was how cases involving a variance from the guidelines are coded, assessed and publically discussed.

2. The availability and nature of appeals: A few witnesses, including Robert McCampbell representing DOJ, suggested that the appellate review provisions of 3742 are still to be read to mean that sentences within the guidelines after Booker are not subject to appeal for general reasonableness (though, of course, the guideline calculations could still be challenged for all the "old" reasons).  This important and interesting issue of when appeals are even authorized will, I suspect, need to be litigated in the months ahead.  Relatedly, all the state sentencing witnesses noted that no jurisdiction with true advisory guidelines has any track-record with appellate review.  Thus, the federal guidelines are in uncharted territory with advisory guidelines with appeals, and everyone at the hearings could only begin to suggest what reasonableness review will come to look like.

3.  The substantial substantial assistance problem: A number of folks addressed how 5K1.1 departures will operate in an advisory system, and McCampbell suggested that the loss of the leverage which facilitated truly effective cooperation in a mandatory system was DOJ's biggest worry.  More than a few witnesses suggested different small ways to address try to address this matter, and I think it will be an area to be watching very closely in the weeks ahead.

February 16, 2005 at 11:59 PM | Permalink


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I think DOJ's concern about substantial assistance is a red herring. Those who practiced before the guidelines know that DOJ got plenty of cooperation without the need for a 5k motion. Also, Rule 35(b) still requires a government motion, so they have lots of levers to pull.

Pre-1987, I never argued for a reduced sentence based on cooperation without getting letters from AUSAs' detailing the cooperation and recommending a cut.

Posted by: Richard Crane | Feb 17, 2005 11:15:46 AM

I am a loved one of someone incarcerated in the Feds with a sentence of 12 1/2 years. He was given the opportunity to obtain a 5K.1 sentence reduction after he was sentenced. A family member of his helped him by making several drug buys from one person which led to a 7 year sentence for him and had to testify in another case stemming from one of the undercover buys, but was found not guilty because the other guy would not cooperate. The prosecutor has filed a motion for a 2 level sentence reduction. We feel he should get at least 3 because that is what they give you for acceptance of responsibility which is nothing compared to work done as an informant. We retained a lawyer to handle the Rule 35. The attorney now claims that it cannot be negotiated and that it's up to the government as to what they feel it's worth. He seems to blow us off when we contact him as if we are bothering him because we are asking questions and not just accepting it as he seems to care less now. We were told by several attorneys in the beginning that any cooperation after sentencing leads to a much larger reduction as opposed to cooperation done before sentencing. What is the average reduction in a 5K.1 on a small scale? Are we expecting too much? We don't feel that his lawyer really even tried to negotiate with the prosecutor because he has been paid and doesn't care now. We have no way to know if he has tried or not, but from his attitude in our hearts we believe he has done nothing except look at the motion that was filed and made no attempt to fight for more. His attitude is very non-chalant now compared to when he was trying to get our money, he was all positive feedback. Due to his attitude and lack of interest we feel that he more than likely recieved the motion recommending 2 levels and just accepted it because he has more important cases or something. He only called us with this news ironically after we had to contact him after months of not hearing from him at all. It is very disheartening because we hoped for more. The detective felt a lot had been done and was the one who pushed for the 5K.1 opportunity to even allow assistance after sentencing. His lawyer is acting as if getting the motion filed was such a big accomplishment. How is that when they wouldn't allow cooperation that would not have helped him. Apparently, the motion has been filed already by the prosecutor and we are waiting for a court date, so is it too late in the game to switch lawyers to attempt a renegotiation if possible? Or is there a way for us to find out if he really attempted to plead our case for a larger reduction...for maybe even just one more level? We are very disappointed and frustrated and feel as if he has the money and now could care less. Our hopes seem to be fading away considering the judge may not give him the low end, which the atty. seems to think, but we think he's just saying that to keep us pacified for now. Do we have to just accept what they have recommended for just 2 levels when his family member put his life on the line so to speak for his behalf? What can we do if anything?

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