By Edward Juel
The Daily Record Newswire
I recently spent four days in New Orleans, three of which I attended the annual U.S. Sentencing Commission Conference. I came back not just five pounds heavier after eating the best food in America, but enlightened as to some of the recent changes in this area of the law that provide new opportunities for sentencing advocacy.
The panelists at the conference — federal appellate and trial court judges, Sentencing Commission members, defense attorneys, federal public defenders and others — discussed new developments in federal sentencing that should result in renewed opportunities for advocacy that have been unavailable to practitioners for many years.
The new tools derive from:
1) the 2010 amendments to the guidelines that allow trial courts more leeway in taking into account individual characteristics and case-specific circumstances in devising sentences appropriate to achieving the goals of sentencing in the first place; and
2) the May 19, 2010, memorandum to federal prosecutors from U.S. Attorney General Eric Holder, which similarly allows prosecutors to take into account individual circumstances unique to a particular defendant when recommending a sentence.
The upshot for criminal defense attorneys practicing in federal court is that what had previously been practically unavailable during the mandatory sentencing guidelines regime from 1987 to 2005 — opportunities to argue for and obtain a sentence that is based not just on a numerical calculation, but that may take into account the unique circumstances of the crime and the defendant — are now encouraged.
2010 amendments
The 2010 amendments to the sentencing guidelines will take effect in November 2010, barring congressional action, and according to Section 1B1.1 (application instructions) are in part
in response to the U.S. Supreme Court’s decision in Booker v. United States, 543 U.S. 220 (2005), and its progeny, making the guidelines advisory only rather than mandatory.
Chapter 5, Part H (specific offender characteristics), for example, has now been amended to specifically allow the sentencing court to consider four individual factors previously forbidden (as “not ordinarily relevant”) from consideration under the guidelines:
1) age;
2) mental and emotional conditions;
3) physical condition, including drug or alcohol dependence or abuse, and/or gambling addiction; and
4) military service.
In an apparent attempt to make the guidelines more relevant in a post-Booker world, the amendment thus would allow the sentencing court to consider under the guidelines factors that courts have been directed to consider for the last five years under §3553(a).
In light of the amendment, defense counsel should employ a three-pronged attack at sentencing.
First and often forgotten, is a challenge to the calculation of the applicable sentencing guidelines range itself. The calculation of the appropriate guidelines sentence is often fraught with mistakes and/or miscalculations.
Several of the hypothetical cases in which probation officers, defense lawyers and prosecutors in attendance were asked to vote in an attempt to decide the correct guidelines range typified the errors that can be made. A guidelines consultant proves especially useful in this area.
Second, defense attorneys should move for departures from the applicable guidelines range when warranted and not rely solely on arguments for variances under 3553(a).
The 2010 amendment directing courts to now consider departures based on age, mental and emotional conditions, physical condition and military service provides defense attorneys with more to argue in the realm of departures before getting to arguments in favor of a variant sentence.
And finally, of course, defense counsel must argue for variances under 3553(a) when appropriate (which is to say, in most cases). As the amended commentary to Section 1B1.1 states, although a departure is still a “guidelines” sentence since it is a “sentence [] imposed under the framework set out in the Guidelines,” a variant sentence is a sentence that is outside the guidelines framework.
Although the concepts are separate, knowing your judge’s preferences regarding departures versus variances is important since some judges prefer to address one over the other, and not both, at sentencing.
This trifurcated approach is confirmed in the newly amended application instructions to §1B1.1, which state that the District Court should first determine the correct guidelines range employing the usual combination of factors relating to the defendant’s offense level (specific offense characteristics, role-in-the offense adjustments and so forth) and criminal history category.
The guidelines then direct the sentencing court to consider Parts H and K of Chapter 5 to determine whether any departures are applicable. Only then should the court consider the applicable factors under §3553(a) in determining whether a variant sentence is appropriate.
Although not new by any means, preparation of your client for allocution at sentencing has taken on increased importance when you are arguing that the individual circumstances of your client and his case call for a sentencing departure and/or a variant sentence.
Judges agreed that allocution could be critical for these reasons, and panelists confirmed the importance of assisting your client in the preparation of his statement, having him rehearse the statement, and emphasizing to him the importance of sticking to the script, so to speak.
Relatedly, letters from defendants’ families, employers, coworkers, AA sponsors, etc., when done appropriately, now have added potential to impact sentencing in ways that they did not prior to Booker and the 2010 amendments.
Significantly, the guidelines were also amended this year to expand the availability of alternatives to incarceration (such as intermittent confinement, community confinement or home confinement) in cases in which such sentences “may be appropriate to accomplish a specific treatment purpose.”
The amendments expand Zones B and C of the Sentencing Table in Chapter 5 to increase the pool of defendants eligible for these alternatives to imprisonment.
It is an area where judges are particularly receptive to resourceful approaches at sentencing, since studies and experiences have shown that offenders whose sentences fall within this range have shown fewer incidences of recidivism when they receive non-imprisonment sentences that include provisions for drug and alcohol counseling, for example.
One panelist also noted that judges are receptive to creative approaches to conditions of supervised release and for similar reasons: It is in the interest of the courts, the defendants and the public to find specific conditions that will result in rehabilitation, reduced rates of recidivism and increased public safety as a result.
Holder memo
The other new tool available to defense attorneys and sentencing consultants comes courtesy of the May 19, 2010, memorandum from AG Holder to all federal prosecutors setting forth a new “Department Policy on Charging and Sentencing.”
The Holder memo, the result of a year-long internal review of sentencing and corrections policies, repeals two prior memos of former Deputy Attorney General James Comey and the charging and sentencing memo of 2003 issued by then-Attorney General John Ashcroft.
The memo is itself a long overdue response from the Department of Justice to the sea change wrought in federal sentencing by the Booker decision, a change heretofore seemingly ignored by federal prosecutors who, based on the Comey and Ashcroft directives, routinely sought sentences within the calculated guidelines range, as if the caselaw following Booker explicating the now-advisory nature of the guidelines did not exist.
In contrast to the prior lock-step approach to sentencing, the two-and-a-half page Holder memo uses the term “individualized assessment” four times in acknowledging that not all cases, and certainly not all criminal defendants committing similar crimes, are alike.
The approach directed under the Holder memo no longer encourages prosecutors to seek sentences within the calculated guidelines range “in all but extraordinary cases.”
Instead, prosecutors are now directed that, while they “should generally continue to advocate for a sentence within [the calculated guidelines] range,” the now-advisory nature of the guidelines requires that “advocacy at sentencing — like charging decisions and plea agreements — must also follow from an individualized assessment of the facts and circumstances of each particular case.”
The attorney general stated simply that “equal justice depends on individualized justice, and smart law enforcement demands it.”
For sentencing purposes at least, the real import of the change in direction from Justice may be that individual AUSAs are now empowered to take into account circumstances in a given case that may require “individualized justice” in order to achieve the stated goal of “equal justice.”
Time will tell, but the Holder memo’s directive to front-line prosecutors would seem to encourage defense counsel to call on prosecutors to employ their new-found increased flexibility in approaching sentences.
Persuading the AUSA that your client’s case is atypical enough that a sentence within the guidelines would actually result in an injustice should be easier with the Holder memo as a backdrop. The language in the memo itself states that “[unwarranted disparities] can also result, however, from a failure to analyze carefully and distinguish the specific facts and circumstances of each particular case.”
Prosecutors who hold to the old-line approach risk losing credibility with District Court judges who are aware that the government is no longer required to seek a guidelines sentence “in all but extraordinary cases.”
Finally, it is important to acknowledge that these developments do not portend a return to the “Wild West” of pre-guidelines sentencing. The guidelines are today what they always should have been — guiding principles on which prosecutors, defense counsel and the sentencing court rely in arguing for, and fashioning, a sentence that:
1) accomplishes the purposes of providing a sentence “sufficient, but not greater than necessary” to punish the individual defendant appropriately; and
2) does so in a way that does not result in “unwarranted disparities” in the sentences received by similarly situated criminal defendants in the various federal districts.
That said, the purpose of the sentencing guidelines, both pre- and post-Booker, was not to avoid all disparities among the various District courts in sentences for defendants convicted of similar crimes and conduct, but rather to avoid unwarranted disparities.
The 2010 amendments to the sentencing guidelines and the Holder memo both appear to recognize this and, in so doing, provide defense attorneys and sentencing consultants with more room to argue than we have had in years.
Edward Juel is an appellate specialist in solo practice in Boston.
