More Guidelines Amendments On the Horizon

Yesterday, in addition to promulgating some Guidelines amendments effective immediately, the Sentencing Commission submitted a new slate of amendments to Congress (official version, and redline). This group of amendments will take effect on November 1, 2008, absent Congressional action. Most of these amendments address matters that don't come up all that often (false liens, official corruption, animal fighting, and some technical issues). But there are a couple of amendments that you'll want to take a close look at.

First, the Commission has finally acknowledged the Booker line of cases in the Guidelines introduction found at the beginning of Chapter One, and put quite an interesting spin on them. According to the Commission, those cases emphasize the "continuing importance of the guidelines in the sentencing determination." There's also a paragraph that all but invites Congress to "exercise its authority through specific directives to the Commission with respect to the guidelines," noting that line in Kimbrough about how Congress knows how to do so if it wants to. (Even though several paragraphs earlier there's a paean to Mistretta.)

Second, there's some good and bad changes to guideline §2L1.2. The amendment effectively overrules the Sarmiento-Funes line of cases by defining "forcible sex offense" in the 16-level COV definition to include offenses "where consent to the conduct is not given or is not legally valid, such as where consent to the conduct is involuntary, incompetent, or coerced." The synopsis of the amendment specifically mentions that this change "would result in an outcome that is contrary to cases" such as Gomez-Gomez, Luciano-Rodriguez, and Sarmiento-Funes. (Making one wonder whether the Fives will go forward with en banc review in Gomez-Gomez.)

The amendment also effectively overrules United States v. Gonzales by adding an "offer to sell" a controlled substance as one of the acts constituting a DTO for purposes of the 12- and 16-level enhancements.

Finally, the amendment adds an application note suggesting that "a departure may be warranted" in "cases in which the applicable offense level substantially overstates or understates the seriousness of a prior conviction[,]" and gives a couple of examples. Such as when a defendant isn't hit with a 12- or 16-level DTO enhancement for a drug offense involving a quantity inconsistent with personal use (effectively codifying the dicta in Lopez-Salas, which held that possession of even a large quantity of a controlled substance isn't a DTO if the offense lacks an intent-to-distribute element, but also suggested that an upward departure might be warranted in that instance). On the other hand (and here's the good part I mentioned earlier), the note also says that "[i]n a case in which subsection (b)(1)(A) [the 16-level bump] applies, and the prior conviction does not meet the definition of aggravated felony at 8 U.S.C. § 1101(a)(43), a downward departure may be warranted." Such as a burglary-of-a-dwelling conviction for which the guy got a sentence of less than one year.