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August 7, 2008

Before a Sentencing Court Turns Assault Into Murder, It Needs to Follow the Proper Standards

Yesterday, in United States v. Azure, the Eighth Circuit vacated and remanded the sentence imposed on defendant Tamara Azure, a/k/a Tamara Wind, after the district court essentially used two assault convictions to impose a sentence for a dismissed murder charge.  In doing so, the Eighth Circuit focused on the failure to apply proper standards, but did not consider the appropriateness of relying on a dismissed charge to achieve a massive increase in the imposed sentence. 

The sentencing court stated it was “troubled by the tail wagging the dog,” in that while Wind had pled guilty to “two penny-ante assaults with a dangerous weapon, . . . those convictions were being converted into a sentencing hearing for murder.”  Despite the supposed reservation, the district court was apparently more concerned with the defendant’s violent (though largely not prosecuted) past and the dismissed murder count, and proceeded to jack up the sentence from the guidelines ranges of 37 to 46 months for each charge to a total sentence of 180 months.  The district court cleverly achieved this sentencing feat by increasing the defendant’s criminal history from I to VI and then imposing consecutive sentences. 

The Eighth Circuit held that the district court erred in upwardly departing with respect to criminal history: 

The court departed upward to criminal history category VI from category I, “taking into account [Wind’s] past long and detailed history of violence, including the use of dangerous weapons, knives, forks, and [among] other things, biting people.” The court did not attempt to assign hypothetical criminal history points to the conduct that did not result in convictions, and then determine what the appropriate criminal history category would be. ... While the district court is not required to engage in a “ritualistic exercise in which the sentencing court mechanically discusses each criminal history category it rejects en route to the category it selects,” . . . the court must provide sufficient indicia of why the intermediary categories are inappropriate. This is particularly important when the upward departure takes the defendant from the lowest to the highest criminal history category. The court also did not compare Wind’s criminal history with that of other defendants who are assigned criminal history category VI.

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Without the benefit of additional analysis by the district court, we cannot conclude that the district court’s “findings were adequate to explain and support the departure in this particular case.” Collins, 104 F.3d at 145. Failing to adequately explain an upward departure is a significant procedural error, as is improperly calculating the advisory Guidelines range. Gall, 128 S. Ct. at 597. Because, on this record, we conclude the district court abused its discretion in determining the extent of the upward departure based upon underrepresented criminal history, we must remand.


The Circuit also held that the sentencing court erred in considering the murder without finding that the government had met its burden of rebutting, by a preponderance of the evidence, Wind’s defense of self-defense:

The district court did not correctly apply the burden of proof when considering the absence of self defense as related to the conduct underlying dismissed Count III. Count III alleged that Wind “willfully, deliberately, and with premeditation and with malice aforethought” killed Pickner “by stabbing him in the chest with a knife.” At the sentencing hearing, Wind countered this murder charge by raising self defense as a justification for Pickner’s death. The court acknowledged that the government bears the burden of proving an absence of self defense once the issue is called into question during a trial, but indicated it was unsure of the proper allocation of the burden of proof when considering the issue at sentencing. This was a significant procedural error. After self defense became an issue at sentencing, the government bore the burden of establishing Wind did not act in self defense by a preponderance of the evidence.

While the remand forces the district court to recalculate Wind's guideline range, there is no assurance that the court will not reimpose the same sentence.  Indeed, given the court's power to achieve precisely the same result through § 3553(a) variances and the imposition of consecutive sentences, the propriety of treating Wind as a criminal history category VI offender may prove irrelevant.

Download UnitedStatesvAzure.pdf

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