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August 22, 2007

Judge Young's take on post-Rita sentencing realities

Yesterday, Judge William Young of the District of Massachusetts, whose sentencing work always merits attention, issued an interesting opinion in United States v. Birkett, No. 06-10139 (D. Mass. Aug. 21, 2007) (available here).  There is a lot of interesting modern sentencing ground covered in Birkett, and this concluding paragraph provides a window into some parts of the opinion:

Th[e] sentence [in this case] protects Birkett’s Sixth Amendment rights by identifying the statutory limit that may be imposed given the facts to which he pled guilty.  Once this was established, the Court was not required to turn a blind eye to relevant conduct that informed the Court as to where the sentence ought fall below that statutory maximum.  In so doing, the Court considered the guidance provided by the Sentencing Commission substantively as it applied to this case and these facts, which included facts of a prior conviction that, while impermissible to raise the statutory maximum, would require a sentence more severe than the “properly” calculated advisory guidelines.  To do otherwise would exemplify the fear that sentencing judges will now apply the advisory guidelines mechanically, thus reducing the sentencing judge’s role to that of a arithmetician.  This is a fear that is only furthered by the Supreme Court’s decision in Rita, which now encourages and insulates a within-guideline sentence.

August 22, 2007 at 09:26 PM | Permalink


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OK, I'm confused. The max in the US Code for the offense of conviction is 120 months. The Guideline range calculated by Judge Young is 46 to 57 months. But the "statutory max" in Judge Young's system is 78 months, based on a Guideline cross reference that wasn't part of the Guideline calculations? I understand Judge Young's underlying theory, but don't see how his stat max can be higher than a Guideline calculation.

FWIW, Judge Young's _Griffin_ decision (made post-_Cunningham_, pre-_Rita_) where he lays out how his stat max calculations work is on appeal waiting for briefs to be filed.

Posted by: JDB | Aug 23, 2007 11:18:44 AM

To answer JDB's question, my understanding is that 78 months is the top of the guideline range for the facts the defendant admitted during the plea, based on an offense level of 20 (rather than 24, as recommended in the PSI report) and a criminal history category V. The 48-57 month range takes into account a 3 level reduction for acceptance of responsibility.

I think this approach is a good one that it prevents the prosecution from "charging light and sentencing heavy," as is often done where I practice. For instance, the prosecution will typically get an Indictment for something easy to prove, say that the defendant conspired to distribute only 5 grams or more of cocaine, but then urge that the defendant should be sentenced on the basis of a much larger quantity, say more than 500 grams, based relevant conduct with a flimsy basis.

Judge Young's theory, which seems to be on pretty solid ground if there remain, post-Booker, any Sixth Amendment concerns when a federal sentence is decided, sets the "statutory maximum" for this hypothetical offense as the top of the guideline range for the 5 grams admitted in the plea. If quantity was the only fact admitted in the plea, the statutory maximum would be based on offense level 26 and whatever the defendant's criminal history category is. If the defendant had no criminal history, the top of the range for this hypothetical offense would be 78 months. However, the government's uncharged claim that the relevant conduct included more than 500 grams would set the base offense level at 36, and the corresponding guideline range would be up to 235 months in prison. Where I practice, for the judge to impose this drastically higher sentence the government would only have to prove this 500+ gram relevant conduct by a preponderance, which could include uncorroborated hearsay from a cooperator who is hoping for a time cut. Judge Young, on the other hand, would require relevant conduct to be proved beyond a reasonable doubt to the extent the resulting sentence exceeded 78 months.

Which approach seems more in line with the Sixth Amendment's requirements, as explained in Jones, Apprendi, and Booker? Does Justice Breyer's remedial opinion in Booker make Judge Young's approach obsolete because the guidelines are merely advisory and thus the statutory maximum is in all cases that set by the US Code? Does the Due Process Clause come into play at some point?

Posted by: Mark | Aug 25, 2007 11:06:24 AM

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