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May 19, 2005

The diktats of criminal history and Booker's potential virtue

The Seventh Circuit's decision today in US v. Rosas, No. 04-2929 (7th Cir. May 19, 2005) (available here) does not break any new Booker ground, but it does provide a stark reminder of the significance of the federal guidelines' criminal history diktats.  It also highlights why the post-Booker world, if properly constructed and kept free from too much Congressional interference, could be a much better federal sentencing world than what came before.

The facts of Rosas are hardly unique: the case involved a defendant with a criminal past who pled guilty to various drug and firearm charges.  The legal issue is whether the defendant's prior conviction for fleeing a police officer qualifies as a "crime of violence," which would in turn requiring sentencing as a career offender under USSG § 4B1.1.  Rosas caught my eye because this seemingly small (and substantively irrelevant?) legal dispute over whether fleeing a police officer is a "crime of violence" had enormous impact on the defendant's fate:  the defendant's guideline range was to be 77 to 96 months, but it jumped to 262 to 327 months if his fleeing prior was classified as a "crime of violence."

The Rosas court's legal analysis of this issue under pre-Booker law seems sound (circuit precedent apparently compels treating fleeing a police officer as a "crime of violence").  But, tellingly, the court's analysis never includes any consideration or judgment about the factual specifics of the defendant's priors or, more importantly, whether it makes sense for 15 years of a man's life to hinge on a legal debate over whether fleeing qualifies as a "crime of violence." 

Thankfully, Booker provides a remedy that could allow these case to be treated in a much sounder way.  No longer do criminal history diktats define an unalterable sentencing range; though a district judge must consider the diktats, she must also now consider the broad mandates of 3553(a) to explore whether a sentence for Rosas in the range of 262 to 327 months is "sufficient, but not greater than necessary" to achieve the purposes of punishment and the other goals set forth in 3553(a).  Though a judge post-Booker might still opt to follow the guidelines' diktats, that decision will now necessarily flow from a broader exercise of judgment, and a form of judgement that after Booker must be attentive to many factors that seem, at least to me, a lot more significant than whether fleeing a police officer qualifies as a "crime of violence."

May 19, 2005 at 01:36 PM | Permalink


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Doug, thanks for pointing me to the book, Harsh Justice. Your comments on this case are illustrative of my view that the guideline sentences are far harsher than necessary to achieve a just sentence and that advocates should hammer this point vigorously.
See August 9, 2003 Speech of Justice Anthony Kennedy at the ABA Annual Meeting (available at http://www.abanews.org/kencomm/amkspeech03.html) (“Our resources are misspent, our punishments too severe; our sentences too long. In the federal system the sentencing guidelines are responsible in part for the increased terms....The Federal Sentencing Guidelines should be revised downward.); see James Q. Whitman, Harsh Justice (Oxford Press 2003) paperback ed. at 223 n. 72 (“the makers of sentencing guidelines succeeded only in contributing to the making of a law of punishment that shows obstinately little concern for the personhood of offenders...a law that tends to treat offenders as something closer to animals than humans, and that has correspondingly sought, more and more frequently, simply to lock them away”); id at page 19 (“American punishment is comparatively harsh, comparatively degrading, comparatively slow to show mercy”); Michael Tonry, The Handbook of Crime And Punishment (Oxford Press 1998) paperback ed. at page 3 (“Contemporary policies concerning crime and punishment are the harshest in American history and of any Western country.”).

Best regards,

Michael Levine

Posted by: Michael Levine | May 19, 2005 2:20:28 PM

It doesn't look like Booker is causing any sentences to be decreased. In our case guideline was 37-41 months but the judge added 46 months for relevant conduct. We thought that should go away with Booker, but the judge just ruled on a limited remand he would increase the sentence if asked to re-sentence today. What kind of justice is that? I think the SC left us hanging out to dry. Apprendi and Booker clearly state that you should not do time for something of which you have not been convicted or pleaded guilty to. What am I missing here?

I don't see that it will benefit anyone. Judges are too afraid of being seen as being soft on crime. Justice Kennedy was right, many of those incarcerated do not need to be there.

Why are federal penalties higher than state penalties and why no parole in the federal system? It costs more to house an inmate than it does to keep an eye on him.

Common sense is not governing the actions of our government, congress or prosecutors.

Also, prosecutors have too much leeway and use the FBI to coerce people into testifying and lying under oath or face criminal charges themselves. You hear about it all the time, but most Defendants end up with court appointed attys who don't have the resources available to them to dispute such things. Equal justice for all????

Posted by: ST | May 19, 2005 3:10:03 PM

I appreciate your thoughts on the proper analysis after remand but I think the 7th Circuit is, as usual, thinking otherwise. Have you seen Judge Easterbrook's comments in U.S. v. Woodward, 04-2498 (May 18, 2005)? He claims, in the context of ordering a limited Paladino remand that "Booker does not affect Section 994(h), which calls for career offenders to be sentenced at or near the statutory maximum." Interesting reading of 994(h) and Booker. Not surprising though.

Stephen Williams

Posted by: Stephen Williams | May 19, 2005 3:58:28 PM

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