More on the joys of criminal history diktats

A few months ago in this post, I commented on the significance of the federal sentencing guidelines' criminal history diktats and expressed hope that the Booker remedy might allow courts to give less attention to (substantively irrelevant) criminal history diktats and more attention to the (substantively sensible) mandates of 3553(a).  But, because criminal history diktats remain key to some mandatory minimum sentences, and because most circuit courts seem inclined to enforce the strict calculation of guideline ranges even post-Booker, I suppose the diktats are here to stay.  Two recent circuit court cases highlight this depressing reality about the persistence of these diktats:

• Today, the Sixth Circuit gives us an incredibly thorough and thoughtful account in US v. Cole, No. 04-1702 (6th Cir. Aug. 11, 2005) (available here) of how to determine "when a defendant's prior conviction is 'similar' to an offense listed under § 4A1.2(c) such that the prior conviction may not be counted towards his criminal history score."  Though college kids might be very interested in this case — the issue arises as the court assesses whether a state conviction for being a minor in possession of alcohol should increase the defendant's criminal history score — I find the decision remarkable for its review of the amazing jurisprudence that has developed around this criminal history diktat of "similar."

• Yesterday, the diktat arose in the context of mandatory minimum sentencing for the Second Circuit in US v. Glen, No. 04-2394 (2d Cir. Aug. 10, 2005) (available here).  The defendant had been sentenced to a mandatory life term under § 841(b)(1)(A) based on two prior felony convictions, but the Second Circuit discovered that, technically, one of the defendant's convictions from 1977 was not "final" because, even three decades later, the defendant could possibly still pursue his appeal.  Appellate Law & Practice provides more details here about Glen, which is a decision that would surely make Franz Kafka proud of the operation of the federal sentencing system.