Friday, January 14, 2005

Booker: Fight "Great Weight" Given to Guidelines

The most immediate Booker problem is fighting the "status quo" assumption that a default reasonable sentence is the guideline range. Judge Cassell's decision, and other alternative factors at sentencing..

Prolific and speedy Utah District Judge Cassell has struck again, issuing the first Booker decision, where he gives "great weight" to the guidelines in the exercise of his discretion. (He issued the first Blakely decision as well). Here is a quote:

Having reviewed the applicable congressional mandates in the Sentencing Reform Act, the court concludes that considerable weight should be given to the Guidelines in determining what sentence to impose. The Sentencing Reform Act requires the court to impose sentences that "reflect the seriousness of the offense, promote respect for the law, provide just punishment, afford adequate deterrence, [and] protect the public."7 The court must also craft a sentence that "afford[s] adequate deterrence to criminal conduct" and "protect[s] the public from further crimes of the defendant."8 Finally, the court should "avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct."9

The full Cassell opinion can be found here.

Rebel with a Cause FPD Barry Portman has rallied the ND Cal troops with the cry that the guidelines are just one of many factors at sentencing, and not the most important one at that. The blog below discusses other factors that should be considered. Here are helpful statutory cites for other factors:

* 18 USC 3553(a) factors
* 18 USC 3661 -- everything should be considered.
* 18 USC 3582: "recognizing that imprisonment is not an appropriate means of promiting correction and rehabilitation."
* Formerly prohibited factors in Chapter 5H of the guidelines.

These other (more equitable) factors for sentencing are discussed in more detail on the blog below.

As Barry has emphasized, the sentencing guideline range is not the "de facto" reasonable sentence. (Note that the guidelines are the last factor mentioned in 3553(a). In fact, because the guidelines do not consider these other equitable factors, they are by definition too high -- they do not consider the age of the offender, post-offense rehabilitation, sentencing discrepancies among districts, courts, or defendants, the additional punishment of deportation, mental health or addiction issues, lack of youthful guidance.

AFPD Hilary Fox has come up with the great idea of standardizing our sentencing memos, to discuss these other statutes and factors in every case. An alternative PSR mindframe, as it were. We're working on that framework here in the Northern District.

In sum, hell no to status quo.

Steven Kalar, Senior Litigator ND Cal

____________________Forward Header_____________________
Subject: Cassell post-Booker
Author: "David Beneman"
Date: 1/14/2005 9:53 AM

Judge Cassell (D UT) has issued what appears to be the first post-Booker
memo and it is TERRIBLE.

U.S. v. Wilson,

Read and weep. The radical right has been planning for this.

David Beneman
Levenson Vickerson & Beneman
P.O. Box 465
Portland, ME 04112
phone:207-775-5200 ext. 104
fax: 207-772-1829


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