Thursday, January 13, 2005

Booker: What's now available for sentencing

The guidelines are just one source for sentencing guidance -- and the least important one at that. Fight the status quo assumption that a guideline sentence is de facto reasonable, by relying on additional authority discussed below.

FPD Defender Barry Portman has rallied the troops, arguing that we should reject the "halter-training" that a guideline sentence is de facto reasonable. Additional sources for sentencing facts are discussed below.

1. Must consider the guidelines, but not only the guidelines. The Breyer majority opinion states that the "district courts, while not bound to apply the Guidelines, must consult those Guidelines and take them into account when sentencing." See 18 USC §§ 3553(a)(4). United States v. Booker, __ U.S. __, 2005 WL 50108, *27 & n.1 (U.S. Jan. 12, 2005) (Breyer, J.) Therefore, at minimum the district court has to consider the guideline calculations and ranges.

Note, however, that 18 USC § 3553(a) lists the guidelines as the last among the factors. The first factor is "the natue and circumstances of the offense and the history and characteristics of the defendant." As Barry has emphasized, a court should determine the sentence first, then check its conclusions against what the guidelines recommend. The "holistic" sentence, that encompases all factors (including prohibited factors), should necessarily be lower, because the guideline range does not include previously prohibited or discouraged factors.

2. Section 3553(a) Factors: Look back to 18 USC § 3553(a) factors -- they are often more equitable than the guidelines. (These are also expressly endorsed in the Breyer opinion). Here they are:

* Nature and circumstances of the offense, and the history and characteristics of the defendant;

* Need for sentence imposed to:

- reflect the seriousness of the offense, promote respect for the law, and provide just punishment;
- afford adequate deterrence
- protect public from further crimes of the defendant
- provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner
- kinds of sentencing available


18 USC § 3553(a).

3. Section 3661: Other statutory authority puts facts wide open for sentencing. Section 3661 of Title 18 states:

Use of information for sentencing

No 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.

18 USC § 3661. Note again that Section 3661 is expressly endorsed in the Breyer majority Booker decision.

4. Section 3582: Still surviving is the wonderful language of Section 3582 of Title 18:

(a) Factors to be considered in imposing a term of imprisonment. -- The court, in determining whetehr 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 forth in section 3553(a) to the extent that they are applicable, recognizing that imprisonment is not an appropriate means of promoting correction and rehabilitation.

18 USC § 3582.

5. Previously prohibited factors: Section 5H of the guidelines have a shopping list of previously prohibited factors that now may be available. These include the age of the defendant, education and vocational skills, mental and emotional conditions, physical condition, employment record, family ties and responsibilities, role in the offense, etc.

There is a welcome Pandora's box of previously prohibited factors that we can, and should, now argue at sentencing. For example, the fact that a defendant will be deported after a sentence can be considered, as can the unavailability of drug treatment in prison. Sentencing discrepancies among defendants, and among districts, is fair game. Post-offense rehabilitation is certainly included, as is charitable works and lack of youthful guidance. Moreover, refusal to consider these factors in sentencing is arguably "unreasonable" for appellate review, in light of the above authority.

Steven Kalar, Senior Litigator ND Cal.


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