Friday, August 11, 2006

US v. Mohamed, No. 05-50253 (8-11-06). This is an important sentencing case. Be care what you wish for when it comes to "reasonableness." The defendant was found guilty of conveying a false terrorist threat. he was getting back at co-workers that did him wrong. His crim history was I, and his guidelines were 12 to 18 mos. the court sentenced him to 60. Was it reasonable? The 9th (yes, the 9th) through B. Fletcher (yes, B. Fletcher) held it was indeed reasonable. The 9th first had to deal with how they should assess the sentence because the district court styled it as a "departure." Is the fact that a court uses a departure, under the guidelines, different from a variance? An interesting question. The 9th analyzed the issue, and concluded that a departure, styled as such, should be reviewed under a reasonableness standard. Tthe 9th considered that such a departure could be had under a variance, and so should look at the two, arriving at the same place, under the same standard. This comports with the 7th Cir's approach. As the 9th wrote:

[4] For these reasons, we side with the Seventh Circuit and
we elect to review the district court’s application of the advisory
sentencing guidelines only insofar as they do not involve
departures. To the extent that a district court has framed its
analysis in terms of a downward or upward departure, we will
treat such so-called departures as an exercise of post-Booker
discretion to sentence a defendant outside of the applicable
guidelines range. In other words, any post-Booker decision to
sentence outside of the applicable guidelines range is subject
to a unitary review for reasonableness, no matter how the district
court styles its sentencing decision.

This is a "unitary" approach. It is counter to some other circuits, that have given more of a deference to departures under the guidelines (abuse of discretion). "Departures" under the guidelines though are still assessed in the reasonableness analysis, and how the guidelines characterize a departure can weigh in reasonableness. The guidelines determinations are still de novo.

As for the reasonableness, the 9th really doesn't define it here, but opines that this sentence as indeed reasonable . Tthe district court stated that the sentence was imposed to protected the public, deterrence, and promote law. The factors that made the sentence reasonable was the costs and expense that this hoax of a terrorist attack caused law enforcement (LAPD spent $50,000 and diverted resources), the underrepresentation of the defendant's criminal history (he was living here illegally for yerars and had been involved in a number of frauds for which he was never charged not sentenced). The guidelines themselves stated taht the guidelines may not take into account all the costs for a hoax. Finally, the five year sentence was less than half of the stat max.


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