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January 22, 2007

Judge Gertner keeps contributing to a post-Booker common law

A new year brings a new terrific Booker read from US District Judge Nancy Gertner in US v. Germosen, No. 05-cr-10120 (D. Mass. Jan. 16, 2007) (available below).  In Germosen, Judge Gertner provides a critical analysis of the the guidelines' treatment of first offenders and "aberrant behavior" on the way to granting a variance in a drug case. 

As usual, Judge Gertner's contributions to the common-law development of post-Booker doctrines defies a summary; here is one of many notable passages from Germosen:

The Sentencing Reform Act, 28 U.S.C. § 994(j) directed the Sentencing Commission to deal specifically with first offenders. It ordered the Commission to "insure that the guidelines reflect the general appropriateness of imposing a sentence other than imprisonment in cases in which the defendant is a first offender who has not been convicted of a crime of violence or an otherwise serious offense..."  Id.

The Commission, however, implemented that statutory directive by redefining "serious offense" in a way that was entirely inconsistent with prior practice, and not at all based on any real data or analysis.  First offender status was folded into criminal history category I.  Category I included those who had never had any encounters with the criminal justice system, never been arrested, as well as individuals who had been arrested and convicted but received short sentences.  Shortly after the implementation of the Guidelines, it was clear that the Commission's decisions led to a far higher incarceration rate for non-violent first offenders than had been the pattern pre-Guidelines.

Because Judge Gertner granted a substantial variance in Germosen — varying from a a 37-46 month guideline range to a sentence of probation for two years with six months home detention and community service — I suspect the government is likely to appeal.  I think the fact that Judge Gernter explained her approach in an opinion of 20+ page ought to garner her sentencing decision a presumption of reasonableness, but I doubt the First Circuit will adopt this suggestion.

Download GermosenJan162007.pdf

January 22, 2007 at 01:04 AM | Permalink


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