WHY IS THIS CLIENT DIFFERENT THAN ALL THE OTHER HUNDREDS THAT
COME BEFORE THE JUDGE?
What Are We Leaving on the Table at Sentencing? Examining the
Sentencing Guidelines and the 3553(a) Factors
Colin Stephens, Smith & Stephens
John Rhodes, Federal Defenders of Montana
Technical Support by Ken Michael, Federal Defenders of
Montana
Alleyne v. United States, 133 S. Ct. 2151, 186 L. Ed. 2D 314
(June 17, 2013).
Alleyne is basically a simple syllogism:
Any fact that, by law, increases the penalty for a crime is an
element that must be submitted to the jury and found beyond a
reasonable doubt; Mandatory minimum sentences increase the penalty
for a crime;
Ergo, any fact that increases the mandatory minimum is an
element that must be submitted to the jury.Interestingly, Alleyne
addressed a situation where there already was a mandatory minimum
which was then increased by judicial fact finding.Does a fact which
triggers a mandatory minimum in the first place also require
submission to a jury? Yes.Elevating the low-end of a sentencing
range heightens the loss of liberty associated with the crime . . .
. This reality demonstrates that the core crime and fact triggering
the mandatory minimum sentence together constitute a new,
aggravated crime, each element of which must be submitted to the
jury.The oral argument in Alleyne really did not address the
factual minutia of the case. Rather, it addressed the grander
question of what facts require submission to a jury.One of the
phrases that reoccurred in the oral argument was whether the
defendant has the right to have issues which would give rise to a
more lenient sentence submitted to a jury. This contrasts with
Blakely and Apprendi rulings regarding the submission of facts
which trigger a more extreme sentence. Its really the same argument
from a different perspective. The Alleyne Court agreed.Its
essentially a defendants right to have the jury decide this:versus
this:Alleyne is not (or highly unlikely to be) retroactive. All
courts have denied applying retroactively. Basically, if Apprendi
wasnt retroactive, no way will Alleyne be.
For an interesting article on the problem with retroactive
application of certain SCOTUS cases, check out the article Gideons
Shadow on the Social Sciences Research Network. Available at
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2248366The
fall-out from Alleyne could be significant as there are a number of
bogus exceptions and carve-outs to a full application of Apprendi.
The issue in Alleyne was only one such exception. Fines was another
issue that the Court determined required submission to the jury
during the last term in Southern Union.
The largest of these exceptions is the prior conviction
exception, i.e., a case where the mandatory minimum sentence is
triggered or increased due to the presence of a prior conviction,
e.g., 851 increases.SCOTUS, especially Justice Thomas, seems to be
shifting more and more toward determining that any issue which
affects the sentence in a significant way must be submitted to the
jury.
Decisions like Southern Union and Alleyne put decisions like
Almendarez- Torres on the endangered species list. In
Almendarez-Torres, SCOTUS concluded that the Constitution does not
require submission of a defendants prior convictions to a jury, in
that case it was the fact that the defendant had been previously
deported. Justice Scalia disagreed and wrote an excellent dissent
in which he refused to draw distinctions between elements of the
crime and sentencing factors. Almendarez-Torres was a 5-4 split.
Notably, Justice Thomas was in the majority in Almendarez-Torres.
Later, Justice Thomas would then go on to join the majority in
Apprendi. In a concurring opinion, Justice Thomas stated that he
had incorrectly joined the majority in Almendarez-Torres. (I
interpret this to mean that Justice Scalia had forgotten to turn
his blinker on prior to the conference on Almendarez-Torrez).The
exception to trial by jury for establishing the fact of a prior
conviction finds its basis not in the Constitution, but in
precedent of this Court. Moreover, it has long been clear that a
majority of this Court now rejects that exception. (Rangel-Reyes v.
United States, 547 U.S. 1200 (2006) (Thomas., J. dissenting on
denial of cert.)).
Southern Union Co., 132 S. Ct. 2344 (2012). Criminal fines
increase a defendants maximum possible sentence. Therefore, the
Sixth Amendment reserves determinations regarding an increase in
fine to a jury.
Southern Union was charged and convicted by jury of multiple
counts the Resource Conservation and Recovery Act.RCRA provides
that a fine of not more than $50,000 per day for each violation.
The issue comes down to a factual finding of how many days and how
many violations. Those must be decided by a jury.Cases like
Southern Union and Alleyne demonstrate the importance of not
forgetting about the Constitution during sentencing. It can be an
important tool for effective sentencing advocacy.They also
demonstrate that we should keep pushing, even when the issue has
been decided. On the issue of the prior-conviction exception to
Apprendi, that issue seems to be ripe for challenge.
The caveat is, however, that we may not want priors to be
admitted. Thus, we should also not forget about Old Chief v. United
States, 519 U.S 172 (1997).Arguing constitutional rights, with the
exception of the Eighth Amendment, has been largely ignored in the
modern era. In days of yore, a conviction for a specific crime
carried a specific offense. Rachel E. Barkow, Recharging the Jury:
The Criminal Jurys Constitutional Role in an Era of Mandatory
Sentencing, 152 U. Pa. L. Rev. 33 (2003).
Such a scheme deprived courts from even considering most
constitutional issues.Constitutional rights which have been
recognized at sentencing are:
Right to effective assistance of counsel at sentencing (Glover
v. United States, 531 U.S. 198 (2001)).Interestingly, this issue is
raised most often in capital cases, i.e., counsel was ineffective
in presenting mitigation evidence. However,there is nothing which
suggests that efficacy during sentencing islimited to capital
cases. Limited privilege against self-incrimination (Mitchell). In
Burns v. United States, 501 U.S. 129 (1991), the Court noted that
counsel failure to give defendant advance notice of facts that
would result in a higher sentence might raise serious due process
concerns. Certain substantive due process rights have been
recognized: Court cant base a sentence on materially untrue
assumptions about the defendants criminal record; Court cant punish
a defendant for a successful appeal; Court cant consider race,
national origin, or gender in sentencing; Religious beliefs may
still be up in the air, but generally not unless the religious
belief somehow gave rise to the crime (polygamy; Rastafarianism,
etc.).The basic function of constitutional rights is to limit the
governments ability to interfere with civil liberties. Sentencing
is the process by which the government determines precisely how
much liberty it will take from a defendant. Sentencing courts
therefore should not impose sentence based on matters protected by
the Constitution.Clarissa B. Hessick & F. Andrew Hessick,
Recognizing Constitutional Rights at Sentencing, California Law
Rev. (2011). Just dont forget about the Constitution during
sentencing. Some questions need to be explored even in the face of
contrary case law.
Does consideration of acquitted conduct in imposing a sentence
violate Double Jeopardy?Does consideration of acquitted conduct at
sentencing violate a defendants Sixth Amendment right to a jury
trial?Even if the judge believes the defendant committed the
crimedespite the acquittal, is it still appropriate for the judge
to punish the acquitted defendant through a different means?How
conscious are we of the trial tax? Defendants who go to trial
routinely receive longer sentences that those who do not. Is this a
de facto punishment for a defendant exercising his constitutional
rights?Is a denial of leniency because the defendant chose to go to
trial the same as an increase in punishment?16Does a harsher
sentence because of the defendants failure to express remorse
during sentencing violate his Fifth Amendment right?Mitchell is
limited in its holding to factual determinations respecting the
circumstances and details of the crime. (Mitchell, 526 U.S. at
328). Does enhancing a sentence for not showing remorse violate the
First Amendments protection to free speech?It seems like a
content-based punishment to me.West Virginia State Board of
Education v. Barnette, 319 U.S. 624 (1943) (The Government cannot,
as a general matter, punish an individual for refusing to speak).
The Ninth shot this argument down in U.S. v. Smith, 424 F.3d 992
(9th Cir. 2005) (ruling, apparently, that sentencing factors
(recidivism, amenability to rehabilitation, etc.), trumped the
First Amendment. REALLY!?Obviously, you dont have to do any of
these. However, they are worth thinking about on the off chance
that will also make the judge think.If you ever get in a pinch,
repeating the following lines will alleviate most problems,
especially in Judge Molloys Court:Your honor, that information was
passed along to me by Mr. Rhodes and Mr. Stephens. They were (and
always are) in error. I apologize for listening to them.
WHY IS THIS CLIENT DIFFERENT THAN ALL THE OTHER HUNDREDS THAT
COME BEFORE THE JUDGE?
18 3553(a)1-7INDIVIDUAL CHARACTERISTICS Individual
Characteristics
MITIGATION FROM THE STARTALL ABOUT HUMANIZING YOUR CLIENTWorking
with pretrial services officer for releaseRelaying that same
information to the AUSAGet to know your clientreleasesGet to know
your pretrial services officerGet to know available services
The Supreme Court instructsUnited States v. Tucker, 404 U.S.
443, 446 (1972)Sentencing inquiry [is] broad in scope, largely
unlimited either as to the kind of information [judges] may
consider, or the source from which it may comeWilliams v. Tucker,
337 U.S. 241, 246 (1949)both before and since the American colonies
became a nation, courts in this country and in England practiced a
policy under which a sentencing judge could exercise a wide
discretion in the sources and types of evidence used to assist him
in determining the kind and extent of punishment to be imposed
within limits fixed by lawWilliams v. TuckerHighly relevant if not
essential to his selection of an appropriate sentence is the
possession of the fullest information possible concerning the
defendants life and characteristics.
And Congress agrees18 U.S.C. 3661No limitation shall be placed
on the information concerning the background, character, and
conduct of a person convicted of an offense, which a court of the
United States may receive and consider for the purpose of imposing
an appropriate sentence.Pretrial Services InterviewRight to answer
questionsRight not to answer questionsAnswers must be truthfulDo
not discuss offense conductDo not discuss other criminal conductDo
not discuss criminal history
Appeal Waivers
Scope of Change of Plea WaiverMitchell v. United States, 526
U.S. 314, 317 (1999):
Two questions relating to criminal defendants Fifth Amendment
privilege against self-incrimination are presented to us.Mitchell,
526 U.S. at 317The first is whether, in the federal criminal
system, a guilty plea waives the privilege in the sentencing phase
of the case, either as a result of the colloquy preceding the plea
or by operation of law when the plea is entered.We hold the plea is
not a waiver of the privilege at sentencing.Mitchell, 526 U.S. at
317The second question is whether, in determining facts about the
crime which bear upon the severity of the sentence, a trial court
may draw an adverse inference from the defendants silence.We hold a
sentencing court may not draw the adverse inference.
PSR ProcessDo not permit uncounseled contact between the USPO
and your client
Attend all meetings
Screen all paperwork
PSR InterviewRight to answer questionsRight not to answer
questionsAnswers must be truthfulDo not discuss offense
conductAcceptance of Responsibility StatementDo not discuss other
criminal conductDo not discuss criminal history
Acceptance of ResponsibilityU.S.S.G. 3E1.1(a)
If the defendant clearly demonstrates acceptance of
responsibility for his offense, decrease the offense level by 2
levels.
Acceptance of Responsibility StatementGet it in writing
United States Sentencing Guidelines800 pound gorilla
Make the Guidelines Work for your Client
Significant Procedural Error Reversible procedural error is:Fail
to calculate the Guidelines correctlyTreat the guidelines as
mandatoryFail to consider 3553(a) factorsFail to address parties
argumentsFail to adequately explain sentenceComes before review for
substantive reasonableness
Gall, 552 U.S. at 51.44United States v. Flores, 2013 U.S. Dist.
App. LEXIS 15960 (9th Cir. August 2, 2013)360 months-to-life
district court range180 months sentence imposed292-to-365 months
correct range, per 9th Circuitwe cannot say whether the district
court would impose the same sentence if it kept the correct
Guidelines in mind throughout the processGuidelines One
DimensionalGuidelines = math without subtraction
Acceptance of Responsibility reduction
Safety Valve and minor role reductions
Up, up and away
4647Evolved in a One-Way Upward RatchetAmended in a one-way
upward ratchet increasingly divorced from considerations of sound
public policy and even from the commonsense judgments of frontline
sentencing professionals who apply the rules. Frank O. Bowman III,
The Failure of the Federal Sentencing Guidelines: A Structural
Analysis, 105 Colum. L. Rev. 1315, 1319-20 (2005).
47Guidelines Flawed in Both DirectionsGuidelines range results
almost exclusively from aggravating factors
Mitigating factors, 3553(a)(1), NOT Included in the
calculationAnd policy statements generally prohibit or discourage
mitigating factors as departure
Minimal attempt to reflect Need for Deterrence, Incapacitation,
Rehabilitation in the most effective manner, 3553(a)(2), based on
the defendants individual characteristics
Kinds of sentences permitted by statute other than prison,
3553(a)(3), rarely recommended
48All aggravating factors, no mits except measly role and
AOR.Underserve probation1984: 38% of defendants received straight
probation
18 U.S.C. 3582(a): The court, in determining whether to impose a
term of imprisonment, and if a term of imprisonment is to be
imposed, in determining the length of the term, shall consider the
factors set for in section 3553(a) to the extent they are
applicable, recognizing that imprisonment is not an appropriate
means of promoting correction and rehabilitation.28 U.S.C.
994(a)(1)The Commission . . . shall promulgate . . . guidelines . .
. for use of a sentencing court in determining the sentence . . .
including (A) a determination whether to impose a sentence to
probation, a fine, or a term of imprisonment [and] (B) a
determination as to the appropriate amount of a fine or the
appropriate length of a term of probation or a term of
imprisonment. First Time Non-Violent Offenders Were Supposed To Get
Probation.
U.S.S.C. shall 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.
28 U.S.C. 994(j).
51Commn ignored the directive, and ignores empirical
evidence.Congress intendedprobation and other alternatives for:Drug
treatment Educational programsVocational trainingEmployment
skillsMental health treatmentMedical treatmentS. Rep. No. 98-225,
at 172-75 (1983)Courts Must Consider All Kinds of Available
Sentences, and Can Sentence Below Guidelines ZonesMust consider all
kinds of sentences available by statute, 3553(a)(3), even if the
kinds of sentence . . . established [by] the guidelines recommend
only prison. United States v. Gall, 552 U.S. 38, 59 & n.11
(2007).
Probation authorized for any offense with a statutory maximum
below 25 years unless expressly precluded. See 18 USC 3561(a); 18
USC 3559(a). 53If Judge Likes DeparturesChapter 5 of the
GuidelinesAlso listed in back of 2012 Manual35 downward departure
provisionsOften subject to narrow restrictions and limitations23
neutral departure provisions (up or down)12 of which appear in
rarely used GLsWatch out -- 166 upward departure provisionsOften
very broadly statedNever argue for a departure alone.
Deconstruction
BREAK DOWN THE ANCHORING EFFECT OF A NUMBER
DISABUSE THE JUDGE OF MISCONCEPTIONS ABOUT THE GUIDELINES,
EDUCATE THE JUDGE ABOUT HOW THEY ARE FLAWED, AND ADVOCATE 3553(a)
FROM THERE
Courts Must Consider All Mitigating Factors, and Ignore Contrary
Policy StatementsGall v. United States, 552 U.S. 38, 50 n.6, 56-60
(2007)
Section 3553(a)(1) is a broad command to consider . . . the
history and characteristics of the defendant
Court approved variance based on factors the policy statements
deem not relevant or not ordinarily relevant and which ignored the
policy statements57Gall v. United States, 552 U.S. 38 (2007)Judge
appropriately gave significant weight to voluntary withdrawal from
the conspiracyabstained from drugs, completed education,
established businessage and immaturity at the time of the
offense
All supported the conclusion that imprisonment was not necessary
to deter Mr. Gall or to protect the public from further crimes by
him
The Court made no mention of policy statements that said these
factors were not relevant, or had to be atypical58
Question is Whether the Facts are Relevant to Purposes and
ParsimonyPepper v. United States, 131 S. Ct. 1229, 1242-43
(2011)
No question that Peppers remaining drug-free for five years
attending college and achieving high grades succeeding at work
re-establishing a relationship with his fathermarrying and
supporting a family
Are highly relevant to the need for deterrence, incapacitation,
and treatment and training
And bear directly on the District Courts overarching duty to
impose a sentence sufficient, but not greater than necessary to
serve the purposes of sentencing
59Supreme Court showed us how.
Cant just say, my client overcame a drug problem HOW does that
fact connect to the purposes of sentencing?
Notice that all of these factors are forbidden or discouraged as
grounds for departure.How it was supposed to beTwo reasons it may
be fair to assume that the Guidelines, insofar as practicable,
reflect a rough approximation of sentences that might achieve
3553(a)s objectives. Rita v. United States, 551 U.S. 338, 350
(2007).
U.S.S.C. used empirical approach to develop initial guidelines,
beginning with an empirical examination of 10,000 presentence
reports setting forth what judges had done in the past
Guidelines can evolve in response to judicial decisions,
sentencing data, criminological research, and consultation with
experts and all stakeholders (not just DOJ)
Rita, 551 U.S. at 349-50.60But not all guidelines were developed
in this mannerGall v. United States, 552 U.S. 38, 46 & n.2
(2007) Kimbrough v. United States, 552 U.S. 85, 96 (2007) 62But not
all of the Guidelines are tied to this empirical approach. Gall,
552 US at 46 n.2 (referencing Kimbrough to explain variance)Ranges
set significantly higher than past practice for the most common
offenses, e.g., drugs, career offender, white collar, many
others
Did not include probationary sentences in estimating average
sentence length, or in making probation available
Prohibited or deemed not ordinarily relevant offender
characteristics always considered in the past
Radical relevant conduct rule: same sentence for acquitted and
uncharged crimes as if charged and convicted
Ratcheted up throughout pre-Booker era over 750 amendments often
without regard to research or sentencing data62But Booker has
changed this USSC is making ameliorating changes for first time in
history.Courts May Vary From Guidelines That Lack Empirical Basis
and Recommend Punishment Greater Than NecessaryRita, 551 U.S. at
351, 357Judge may find the Guidelines sentence itself fails
properly to reflect 3553(a) considerations, or reflects an unsound
judgment
Kimbrough v. United States, 552 U.S. 85, 101 (2007) courts may
vary [from Guideline ranges] based solely on policy considerations,
including disagreements with the Guidelines (citing Rita)
not an abuse of discretion to conclude that a guideline that is
not the product of empirical data and national experience . . .
yields a sentence greater than necessary to achieve 3553(a)s
purposes, even in a mine-run case63Three points:The guideline was
not developed by the Commission in its characteristic institutional
role, i.e., not based on empirical data and national
experience.
The guideline recommends punishment that is greater than
necessary to serve the purposes of sentencing under 3553(a)(2).
The sentence you propose better serves the purposes of
sentencing.You need to establish in order to get a variance b.o. a
pol dis, and also avoid closer review.64Not Just CrackIllegal
reentry: United States v. Amezcua-Vasquez, 567 F.3d 1050 (9th Cir.
2009)
Career offender: United States v. Mitchell, 624 F.3d 1023 (9th
Cir. 2010)
Child pornography: United States v. Henderson, 649 F.3d 955 (9th
Cir. 2011)
Use Decisions of Other JudgesUntil the Commission does the job
right, which should take considerable time, it should lower the
ranges in drug trafficking cases by a third for the reasons set
forth above. In the meantime, the current ranges will be given very
little weight by this Court.
United States v. Diaz, 2013 WL 322243 (E.D.N.Y Jan. 28, 2013)
(Gleeson, J.)
Career offender guideline as applied to low-level, non-violent
drug addicts has the potential to overstate the seriousness of a
defendant's record and her risk of re-offending, to result in a
sentence significantly greater than necessary to protect the public
by deterring further crimes of the defendant, to result in
unwarranted sentencing uniformity and unwarranted sentencing
disparities among defendants found guilty of similar conduct, to
result in an unduly harsh sentence which does not promote respect
for the law, and to be inconsistent with the obligation to apply
all of the relevant 3553(a) factors
United States v. Newhouse, __ F. Supp. 2d __, 2013 WL 346432,
*28 (N.D. Iowa Jan. 30, 2013) (Bennett, J.)
The Sentencing Commission to this day has never been able to
articulate why it has two points for this, or four points for that.
. . . These are just numbers. And yet once they are placed the
whole thing is blessed and said to be rational.
Judge Rakoff (E.D.N.Y.) (keynote speech at the ABAs Natl Inst.
on White Collar Crime, March 2013).Hmmmm. That sounds very familiar
. . . . . Um, 3553(a)? Lets see how it would work.67The Ninth
Circuit Gets ItHenderson, 649 F. 3d at 963 & n.3
A district courts disagreement with a guideline not developed by
the U.S.S.C. based on empirical data and national experience is
subject to abuse-of-discretion review
The fact that the Guidelines conform to Congressional directives
does not insulate them from a Kimbrough challenge.
[S]entencing judges can reject any Sentencing Guideline,
provided that the sentence is reasonable.
Mitchell, 624 at 1030.Vulnerable guidelinesDrugsFraudRelevant
conductIllegal reentryCareer offenderChild
pornographyFirearmsRelevant Conduct???????????
Congressional Staff Describe the Bidding War in Congress That
Led to the Drug GuidelinesIt was this frenzied, panic atmosphereIll
see you five years and raise your five years. It was the crassest
political poker game. Michael Isikoff & Tracy Thompson, Getting
Too Tough on Drugs: Draconian Sentences Hurt Small Offenders More
Than Kingpins, Wash. Post, Nov. 4, 1990, at C1, C2 (quoting Eric
Sterling, counsel to the House Subcommittee on Crime at the
time)See also Eric Sterling, Legislative Scatology,
http://justiceanddrugs.blogspot.com/2009_02_01_archive.html
Heart of Sentencing Advocacy
18 U.S.C. 3553(a)Shall impose a sentence sufficient but not
greater than necessary to satisfy the need for just punishment in
light of the seriousness of the offense, deterrence,
incapacitation, rehabilitation in the most effective manner
In light of all offense and offender circumstances, all kinds of
sentences available by statute, and avoiding unwarranted
disparities.Sentence that Complies with the Statute! Use as guiding
framework for your argument. Make the judge engage with it.
73CHARACTER VIDEOADMISSIBILITY (SOME JUDGES MAY
OBJECT?)COSTSPROVIDES THE EMOTION AND PASSION MISSING FROM A LETTER
(maybe substitutes for testimony)INTERVIEWS OF FAMILY MEMBERS,
TEACHERS, EMPLOYERS, COUNSELORSLESS IS MOREExperts at
sentencingChild pornographyComputer forensicPsychosexual evaluation
(MSOTA)Meth lab quantity projectionDrug abuserForensic account?Writ
of habeas corpus ad prosequendumConcurrent v. consecutive
sentence18 U.S.C. 358418 U.S.C. 3585U.S.S.G. 5G1.3
What Kind of EvidenceExplain why it happened and why the
sentence you propose is appropriate withFacts about the
offenseFacts about the history and characteristics of the
defendant
Research Why do those facts matter to the purposes of
sentencing? E.g., research establishes that defendants over age 40
recidivate at a low rate
77Get It On the Record!PSRGet favorable facts into
PSRF.R.Crim.P. 32(i)(3) objectionAdduce
evidenceWitnessesDocumentationWhy?Thats how we implement advocacy
on the record
Not much explanation required for a Guidelines sentence if you
dont contest it. Rita, 551 U.S. at 357.
Must consider only nonfrivolous arguments
Must explain why if court rejects them. Id. at 351, 357.
If court fails to explain how the sentence complies with 3553(a)
or fails to address your arguments and evidence, object, and then
gain reversal for procedural error. Gall, 552 U.S. at 51.
79
When courts of appeals reverse for inadequate explanation or
failure to adequately address a nonfrivolous argument, the sentence
on remand is different
in the majority of cases.
Jennifer Niles Coffin, Where Procedure Meets Substance: Making
the Most of the Need for Adequate Explanation (Nov. 2011),
http://www.fd.org/pdf_lib/Procedure_Substance.pdf; CHAMPION, MAR.
2012, at 36.
Every defendant who asserts that his or her personal
circumstances warrant leniency is compelled to supply a factual
predicate for the contention, and defendants who do not . . . are
at the mercy of the instincts and intuitions of the sentencing
judge.United States v. Chapman, 694 F.3d 908, 914 (7th Cir.
2012)
[S]tock arguments in mitigation often can be rejected with
little or even no explanation. United States v. Gary, 613 F.3d 706,
709 (7th Cir. 2010).
81Variances Reversed Because No EvidenceReversing
below-guideline sentence of probation because the district court
based its disagreement with the Commissions policy advising
imprisonment for tax offenders on a hunch that prison is not a
deterrent. United States v. Bragg, 582 F.3d 965, 969 (9th Cir.
2009)
This evidence is readily available but it wasnt
presented.82Avoid departure language when arguing
3553(a)ExceptionalExtraordinaryUnusualAtypicalHeartland
UNLESS ITS TRUE
When you use this language, you are inviting departure analysis
by the court.
When you frame your arguments using departure language such as
atypical, heartland, extraordinary, you are trafficking in
mandatory guidelines. 83Use Language of 18 USC 3553(a)Every
sentence must comply with itShall impose a sentence sufficient, but
not greater than necessary to satisfy the need forJust punishment,
the seriousness of the offense, respect for lawGeneral
deterrenceIncapacitation (protect the public from
defendant)Rehabilitation in the most effective manner
Shall considerall offense and offender circumstancesall kinds of
sentences available by statuteavoiding unwarranted disparities and
unwarranted similaritiesThe not so new law ---84Nature and
circumstances of the offense and history and characteristics of the
defendantMitigating Factors Formerly Subject to Departure Law No
More Math Without Subtraction Part IV
Empirical research, sentencing data, judicial
decisionsAgeEducation and vocational skillsMental and emotional
conditionsPhysical condition, drug or alcohol dependence or abuse,
gambling addiction, physiqueEmployment recordFamily ties and
responsibilitiesPost-sentencing rehabilitationRole in the
offenseCriminal historyMilitary, civic, charitable work, public
service, employment, good worksLack of guidance as a youth,
disadvantaged upbringingSubstantial assistancePretrial release
compliance, acceptance of responsibilityRehabilitation
86Part IV contains empirical research, statistics and case
law.If the client is young Young offenders reform in a shorter
period of time. Laurence Steinberg & Elizabeth S. Scott, Less
Guilty by Reason of Adolescence: Developmental Immaturity,
Diminished Responsibility, and the Juvenile Death Penalty, 58 Am.
Psychologist 1009, 1011-14 (2003)Robert J. Sampson & John H.
Laub, Crime in the Making: Pathways and Turning Points Through
Life, 39 Crime & Delinq. 396 (1993)
Young offenders (e.g., in their 20s) are less culpable than the
average offender because of brain development.
Jay N. Giedd, Structural Magnetic Resonance Imaging of the
Adolescent Brain, 1021 Annals N.Y. Acad. Science 105-09 (2004);
Margo Gardner & Laurence Steinberg, Peer Influence on Risk
Taking, Risk Preferences and Risky Decision Making in Adolescence
and Adulthood: An Experimental Study, 41 Developmental Psych. 625,
632 (2005); Federal Advisory Committee on Juvenile Justice, U.S.
Dept of Justice, Office of Juvenile and Delinquency Prevention,
Annual Report 8 (2005),
www.ncjrs.gov/pdffiles1/ojjdp/212757.pdf.
Miller v. Alabama, 132 S. Ct. 2455, 2464-66 (2012); Graham v.
Florida, 130 S. Ct. 2011, 2026-27 (2010); Roper v. Simmons, 543
U.S. 551, 567, 569-70 (2005)
87Keep in mind recid here is defined to include SR
violations.Just Punishment, Respect for the Law, and Seriousness of
the Offense 3553(a)(2)(A)Prison can be unjust punishmentMedical
problems BOP will not adequately treatBOP often does not provide
required medical services to inmates. U.S. Dept of Justice, Office
of the Inspector General, Audit Division, The Federal Bureau of
Prisons Efforts to Manage Health Care (Feb. 2008),
http://www.justice.gov/oig/reports/BOP/a0808/final.pdf.
U.S. v. Martin, 363 F.3d 25 (1st Cir. 2004) U.S. v. Gee, 226
F.3d 885 (7th Cir. 2000)U.S. v. Pineyro, 372 F. Supp. 2d 133 (D.
Mass. 2005)U.S. v. Rausch, 570 F. Supp. 2d 1295 (D. Colo. 2008)
Empirical research shows that defendants who are old, young,
small are subject to abuse, rape, violence in prisonNo More Math
Without Subtraction at 64-66, 104, 109-10,
http://www.fd.org/docs/select-topics---sentencing/No_More_Math_Without_Subtraction.pdf
Prison Is Unjustly Punitive in This CaseMedical problems BOP
often does not provide required medical services to inmates. U.S.
Dept of Justice, Office of the Inspector General, Audit Division,
The Federal Bureau of Prisons Efforts to Manage Health Care (Feb.
2008), http://www.justice.gov/oig/reports/BOP/a0808/final.pdf.
Defendants who are older and/or infirm suffer moreHannah T.S.
Long, The Inequality of Incarceration, 31 Colum. J. L. & Soc.
Probs. 321, 343-44 (1998) U.S. Dept of Justice, National Institute
of Corrections, Correctional Health Care: Addressing the Needs of
Elderly, Chronically Ill, and Terminally Ill Inmates, at 10 (2004)
Elaine Crawley & Richard Sparks, Older Men in Prison: Survival,
Coping, and Identity, in The Effects of Imprisonment 343, 346-47
(Alison Liebling & Shadd Maruna eds., 2005)90Culpability of
Young OffendersYoung offenders (up to mid-20s) are less culpable
than older offenders.
Jay N. Giedd, Structural Magnetic Resonance Imaging of the
Adolescent Brain, 1021 Annals N.Y. Acad. Science 105-09 (2004)Margo
Gardner & Laurence Steinberg, Peer Influence on Risk Taking,
Risk Preferences and Risky Decision Making in Adolescence and
Adulthood: An Experimental Study, 41 Developmental Psych. 625, 632
(2005)Federal Advisory Committee on Juvenile Justice, U.S. Dept of
Justice, Office of Juvenile and Delinquency Prevention, Annual
Report 8 (2005), www.ncjrs.gov/pdffiles1/ojjdp/212757.pdfMiller v.
Alabama, 132 S.Ct. 2455 (2012); Graham v. Florida, 130 S.Ct. 2011
(2010)
Evidence Regarding the Need for IncapacitationLengthy
imprisonment increases recidivism by disrupting employment,
reducing prospects of future employment, weakening family ties, and
exposing less serious offenders to more serious offenders.
Miles D. Harer, Do Guideline Sentences for Low-Risk Drug
Traffickers Achieve Their Stated Purposes?, 7 Fed. Sent. Rep. 22
(1994)
Lynne M. Vieraitis et al., The Criminogenic Effects of
Imprisonment: Evidence from State Panel Data 1974-2002, 6
Criminology & Pub. Poly 589, 591-93 (2007)
U.S.S.C., Staff Discussion Paper, Sentencing Options Under the
Guidelines 18-19 (Nov. 1996),
http://www.ussc.gov/Research/Working_Group_Reports/Simplification/SENTOPT.HTM
93Not Necessary to Protect the Public from Further Crimes of the
DefendantDrug offenders have lower than average rates of
recidivism. U.S.S.C., Measuring Recidivism: The Criminal History
Computation of the Federal Sentencing Guidelines 13 (2004)
(Offenders sentenced in fiscal year 1992 under fraud, (16.9%),
larceny,(19.1%), and drug trafficking, (21.2%), are overall the
least likely to recidivate.)
The drug guideline does not identify defendants most in need of
incapacitation. [N]o apparent relationship between the sentencing
guideline final offense level and recidivism risk. Neil Langan
& David Bierie, Testing the Link Between Drug Quantity and
Later Criminal Behavior among Convicted Drug Offenders (Paper
presented at the American Society of Criminologys annual meeting in
Philadelphia Nov. 4, 2009)Young offenders Reform in a shorter
period of time.
Laurence Steinberg & Elizabeth S. Scott, Less Guilty by
Reason of Adolescence: Developmental Immaturity, Diminished
Responsibility, and the Juvenile Death Penalty, 58 Am. Psychologist
1009, 1011-14 (2003)
Robert J. Sampson & John H. Laub, Crime in the Making:
Pathways and Turning Points Through Life, 39 Crime & Delinq.
396 (1993)
Graham, Miller, Roper
AgeRecidivism rates decline relatively consistently as age
increases, from 35.5% under age 21, to 9.5% over age 50.
USSC, Measuring Recidivism (2004),
http://www.ussc.gov/publicat/Recidivism_General.pdf
(includes technical supervised release violations not all new
crimes)96
Recidivism Drops Precipitously with AgeRobert J. Sampson, and
John H. Laub, Life-Course Desisters: Trajectories of Crime Among
Delinquent Boys Followed to Age 70, 451 CRIMINOLOGY 555 (2003)
97These are OFFENSES.First OffendersMinimal or no prior involvement
with the criminal justice system is a powerful predictor of reduced
likelihood of recidivism.
A Comparison of the Federal Sentencing Guidelines Criminal
History Category and the U.S. Parole Commission Salient Factor
Score, 15 (Jan. 4, 2005), http// www. ussc. gov/ publicat/
Recidivism Salient FactorCom.pdf.
Recidivism and the First Offender (May 2004), http://www.ussc.
gov/publicat/Recidivism-First Offender.pdf.
Those with 0 points have lower recidivism rates than others in
Criminal History Category I.Michael Edmund ONeill, Abrahams Legacy:
An Empirical Assessment of (Nearly) First-Time Offenders in the
Federal System, 42 B.C. L. Rev. 291 (2001).
First Offenders 0 pointsEven lower recidivism rates than other
defendants in Criminal History Category I.
Michael Edmund ONeill, Abrahams Legacy: An Empirical Assessment
of (Nearly) First-Time Offenders in the Federal System, 42 B.C. L.
Rev. 291 (2001).
A Comparison of the Federal Sentencing Guidelines Criminal
History Category and the U.S. Parole Commission Salient Factor
Score, 15 (Jan. 4, 2005), http// www. ussc. gov/ publicat/
Recidivism Salient FactorCom.pdf.
Recidivism and the First Offender (May 2004), http://www.ussc.
gov/publicat/Recidivism-First Offender.pdf.Other characteristics
predicting low risk of recidivismUSSC, Measuring Recidivism (2004),
http://www.ussc.gov/publicat/Recidivism_General.pdfFirst Offender:
rate of reconviction for those with 0 points is 3.5%, with 1 point
is 5.5%, with 2 or more points is 10.3%
Employment History: recidivism rate far less if employed in past
year than if unemployed
Education: the more education, the lower the recidivism rate
Family: recidivism lower if ever married even if divorced
Abstinence from drug use: recidivism rate far lower if abstinent
for past year than if used drugs
Non-Violent Offender: fraud, larceny and drug offenders the
least likely to recidivate
100Keep in mind recid here is defined to include SR
violations.Lengthy imprisonment increases recidivism by disrupting
employment, reducing prospects of future employment, weakening
family ties, and exposing less serious offenders to more serious
offenders.
Miles D. Harer, Do Guideline Sentences for Low-Risk Drug
Traffickers Achieve Their Stated Purposes?, 7 Fed. Sent. Rep. 22
(1994)
Lynne M. Vieraitis et al., The Criminogenic Effects of
Imprisonment: Evidence from State Panel Data 1974-2002, 6
Criminology & Pub. Poly 589, 591-93 (2007)
U.S.S.C., Staff Discussion Paper, Sentencing Options Under the
Guidelines 18-19 (Nov. 1996),
http://www.ussc.gov/Research/Working_Group_Reports/Simplification/SENTOPT.HTM
101Evidence Regarding General Deterrence
Debunk the Myth: Severity Has No Deterrent Effect
Michael Tonry, Purposes and Functions of Sentencing, 34 Crime
& Just. 1, 28 (2006)Zvi D. Gabbay, Exploring the Limits of the
Restorative Justice Paradigm: Restorative Justice and White Collar
Crime, 8 Cardozo J. Conflict Resol. 421, 447-48 (2007) Andrew von
Hirsch et al., Criminal Deterrence and Sentence Severity: An
Analysis of Recent Research (1999)David Weisburd et al., Specific
Deterrence in a Sample of Offenders Convicted of White Collar
Crimes, 33 Criminology 587 (1995)Francis T. Cullen et al. Prisons
Do Not Reduce Recidivism: The High Cost of Ignoring Science, Prison
Journal 91: 48S (2011)Debunk the deterrence myth in every
case.103Incapacitating a low-level drug seller prevents little, if
any, drug selling; the crime is simply committed by someone
else.
U.S.S.C., Fifteen Year Review at 134; U.S.S.C., Cocaine and
Federal Sentencing Policy at 68 (1995)
Unnecessary for DeterrenceNo evidence that increased drug
sentences have a deterrent or other crime control effectThose
assigned by chance to receive prison time and their counterparts
who received no prison time were re-arrested at similar rates over
a four-year time frame. Donald P. Green & Daniel Winik, Using
Random Judge Assignments to Estimate the Effects of Incarceration
and Probation on Recidivism among Drug Offenders, 48 Criminology
357 (2010)[I]t is unlikely that the dramatic increase in drug
imprisonment was cost-effective. Ilyana Kuziemko & Steven D.
Levitt, An Empirical Analysis of Imprisoning Drug Offenders, 88 J.
of Pub. Econ. 2043, 2043 (2004) Evidence Regarding Rehabilitation
in the Most Effective MannerTapia v. United States 654 U.S. ___
(2011)Holding: 18 U.S.C. 3582(a) does not permit a sentencing court
to impose or lengthen a prison term to foster a defendants
rehabilitation, unanimously reversing Ninth Circuit
Mental Health Treatment Works and Costs LessDale E. McNiel &
Rene L. Binder, Effectiveness of a Mental Health Court in Reducing
Criminal Recidivism and Violence, 16 Am. J. Psychiatry 1395-1403 (
2007)
Ohio Office of Criminal Justice Services, Research Briefing 7:
Recidivism of Successful Mental Health Court Participants (2007),
http://www.publicsafety.ohio.gov/links/ocjs_researchbriefing7.pdf
BOP costs $29,000+ a year
Treatment and training in most effective manner
Only 15.7% of federal prison inmates with substance abuse
disorders receive treatment after admission to BOP. Statement of
Faye Taxman, Professor, George Mason University, Drug Treatment for
Offenders: Evidence-Based Criminal Justice and Treatment Practices,
Testimony before Subcomm. on Commerce, Justice, Science, and
Related Agencies (Mar. 10, 2009)
BOP cannot provide treatment to many who need and want it. U.S.
Government Accountability Office, Bureau of Prisons: Growing Inmate
Crowding Negatively Affects Inmates, Staff, and Infrastructure
20-21 (Sept. 2012), http://www.gao.gov/assets/650/648123.pdf
Community residential treatment programs for offenders on
probation or supervised release offer better options and access to
drug treatment than a lengthy prison sentence. Natl Center on
Addiction and Substance Abuse, Behind Bars II: Substance Abuse and
Americas Prison Population. P. 40, tbl. 5-1 Drug treatment works
and saves moneyNatl Institute on Drug Abuse, National Institutes of
Health, Principles of Drug Abuse Treatment for Criminal Justice
Populations (2006),
http://www.nida.nih.gov/PDF/PODAT_CJ/PODAT_CJ.pdf
Susan L. Ettner et al., Benefit-Cost in the California Treatment
Outcome Project: Does Substance Abuse Treatment Pay for Itself?,
Health Services Res. 41(1), 192-213 (2006)
Drug treatment in the community works even better.Missouri Sentg
Advisory Commn, Smart Sentencing, Vol. 1, Issue 4 (July 20,
2009)
Doug McVay, Vincent Schiraldi, & Jason Ziedenberg, Justice
Policy Institute Policy Report, Treatment or Incarceration:
National and State Findings on the Efficacy of Cost Savings of Drug
Treatment Versus Imprisonment at 5-6, 18 (2004)
Elizabeth K. Drake, Steve Aos, & Marna G. Miller, Washington
State Institute for Public Policy, Evidence-Based Public Policy
Options to Reduce Crime and Criminal Justice Costs: Implications in
Washington State (2009),
http://www.wsipp.wa.gov/rptfiles/09-00-1201.pdf. Medical Condition
U.S. v. Alemenas, 553 F.3d 27 (1st Cir. 2009) U.S. v. McFarlin, 535
F.3d 808 (8th Cir. 2008)U.S. v. Spigner, 416 F.3d 708 (8th Cir.
2005) U.S. v. Garcia-Salas, 2007 WL 4553913 (10th Cir. Dec. 27,
2007)U.S. V. Rodriguez-Quezada, 2008 WL 4302518 (S.D.N.Y. Sept. 15,
2008)U.S. v. Carmona-Rodriguez, 2005 WL 840464 (S.D.N.Y. April 11,
2005)
112Need for Deterrence 3553(a)(2)B)Debunk the MythNo particular
amount of imprisonment or any imprisonment is necessary for
deterrence. Michael Tonry, Purposes and Functions of Sentencing, 34
Crime & Just. 1, 28 (2006)Zvi D. Gabbay, Exploring the Limits
of the Restorative Justice Paradigm: Restorative Justice and White
Collar Crime, 8 Cardozo J. Conflict Resol. 421, 447-48 (2007)
Andrew von Hirsch et al., Criminal Deterrence and Sentence
Severity: An Analysis of Recent Research (1999)David Weisburd et
al., Specific Deterrence in a Sample of Offenders Convicted of
White Collar Crimes, 33 Criminology 587 (1995)Francis T. Cullen et
al. Prisons Do Not Reduce Recidivism: The High Cost of Ignoring
Science, Prison Journal 91: 48S (2011)Debunk the deterrence myth in
every case. Increases in severity have no deterrent effect. Courts
often recite that a long prison sentence will serve the purpose of
deterrence, but they have no evidence of this. Its a gut instinct,
not actually supported by the evidence. If we present the actual
evidence, the studies that show that increases in sentence length
do not increase deterrence, the court will have to address it, and
when they do, they are likely to say something that gives you basis
for appeal: I dont believe it. Its just common sense.114Sentencing
Options 3553(a)(3)Community Service rehabilitative, saves the
community money, saves incarceration costs, keeps families
together, integrates community
House arrest
Electronic monitoring115Disparity Caused by Failure to File
Motion Under 5K1.1589 variances for cooperation without 5K1.1
motion
U.S.S.C., 2011 Sourcebook, tbls.25, 25A, 25B.
U.S. v. Arceo, 535 F.3d 679, 688 & n.3 (7th Cir. 2008)U.S.
v. Blue, 557 F.3d 682, 686 (6th Cir. 2009) U.S. v. Jackson, 296
Fed. Appx 408, 409 (5th Cir. 2008)U.S. v. Doe, 218 Fed. Appx 801,
805 (10th Cir. 2007)U.S. v. Fernandez, 443 F.3d 19, 35 (2d Cir.
2006)U.S. v. Lazenby, 439 F.3d 928, 933 (8th Cir 2006)116When gov
unfairly refuses, or, as in Chicago, when govt attaches unfair
conditions, i.e., cant argue any variance, dont get role
adjustment, so plead straight up and ask judge to take cooperation
into account.Sentencing Resources www.fd.orgSentencing by the
StatuteInformation on sentencing purposes, variances, probation,
how to determine past practice, deconstruction
No More Math Without SubtractionEmpirical research, statistics,
and caselaw on numerous mitigating factors
Where Procedure Meets Substance: Making the Most of the Need for
Adequate Explanation (Nov. 2011)
Appellate Decisions After Gall
Hemingway & Hinton, Departures and Variances -- Outline of
Caselaw on All Kinds of Variances and Departures
Fighting Fiction with Fact: Research to Help Advocate for Lower
Sentences
Deconstructing the Guidelines -- sample memos, papers,
articles
117All on fd.org. All get updated occasionally.
Read S by S all the way through.
Use Math W/O Subtraction as Needed.Sentencing ResourcesU.S.S.C.
(annual) Sourcebook Federal Sentencing Guidelines HandbookFederal
Sentencing Law and PracticeDefending A Federal Criminal Case,
Chapter 17Sentencing Law and Policy blogNinth Circuit blogSCOTUS
blog