Sentencing Court’s Discretion Not Limited for Career Offenders; Must Consider § 3553

United States v. Clay, No. 14-60283 (5th Cir. May 22, 2015) (Jolly, Higginson, Costa) (per curiam)
 
The district court sentenced Clay, who was classified as a “career-offender” under the Guidelines, within the guideline sentencing range of 151-188 months of imprisonment.  Without such classification, the advisory range would have been 30-37 months.  Despite the district court being “troubled” that the Defendant’s career-offender status led to an increased sentence, the district court refused to vary downward because of no “Fifth Circuit guidance” on the matter. On appeal, the panel vacated the sentence and, on remand, ordered the district court to recognize its own discretion to vary from the Guidelines’ advisory range.

The panel reasoned that the Guidelines are relevant but not dispositive in determining the appropriate sentence. The Guidelines serve only an “advisory” role, which, per the Supreme Court, a district court may defer to for a within-Guidelines sentence only “after considering the factors in 18 U.S.C. § 3553(a).” District courts must “consider the nature and circumstances of the offense and the history and characteristics of the defendant.” Further, district courts must consider “other broad concerns…, in an individualized manner, before imposing its sentence.” If the district court finds that a within-Guidelines sentence is “greater than necessary to serve the objective of sentencing,” then the district court can vary. A district court’s sentencing discretion does not depend on whether the defendant is classified as a career-offender under § 4B1.1.

The district court erred by not applying an “individualized assessment” under § 3553(a) factors. This procedural error was not harmless. The record shows that the district court had misgivings about the within-Guidelines sentence; it was not only “troubled” by it, but also admitted that had there been “Fifth Circuit guidance to vary,” which, as we know now is not necessary, “the outcome [likely] would have been different.” This would also show that perhaps the within-Guidelines sentence was in fact “greater than necessary to serve the objective of sentencing,” thus the need for district courts to exercise sentencing variation.

Thanks to FPD Intern Adam Pena for this post.

AG Holder Supports Proposed 2-Level Decrease to Drug Offense Guidelines

Start incorporating the proposed 2-level decrease into your variance arguments now.  If that proposed amendment becomes official (which it looks like it will), it won’t be official until November 2014.  However, Attorney General Eric Holder voiced his support for the proposed decrease today in his testimony before the U.S. Sentencing Commission, and he also indicated that assistant U.S. attorneys will not oppose variance requests that ask the Court to vary downward in light of the proposed change.

The Commission is accepting comment until March 18, 2014, on its proposed amendments to the Guidelines.

Here are some resources from the U.S. Sentencing Commission:

-          U.S. Sentencing Comm’n, Proposed Amendments to the Sentencing Guidelines 45 (Jan. 17, 2014), http://www.ussc.gov/Legal/Amendments/Reader-Friendly/20140114_RFP_Amendments.pdf.

-          U.S. Sentencing Comm’n, News Release, “U.S. Sentencing Commission Seeks Comment on Potential Reduction to Drug Trafficking Sentences” 1 (Jan. 9, 2014), http://www.ussc.gov/Legislative_and_Public_Affairs/Newsroom/Press_Releases/20140109_Press_Release.pdf.

 

Some resources regarding the Department of Justice’s position:

-          Horwitz, Sari, Holder Will Call for Reduced Sentences for Low-Level Drug Offenders, Wash. Post (Mar. 13, 2014), http://www.washingtonpost.com/world/national-security/holder-will-call-for-reduced-sentences-for-low-level-drug-offenders/2014/03/12/625ed9e6-aa12-11e3-8599-ce7295b6851c_story.html

-          Dep’t of Justice, Office of Public Affairs, Attorney General Holder Urges Changes in Federal Sentencing Guidelines to Reserve Harshest Penalties for Most Serious Drug Traffickers (Mar. 13, 2014), http://www.justice.gov/opa/pr/2014/March/14-ag-263.html.

Some related resources regarding changes to mandatory minimums:

-          The Smarter Sentencing Act, S. 1410.

-          Letter from Former Judges and Prosecutors to Senators Durbin and Lee regarding Smarter Sentencing Act (Dec. 9, 2013), http://www.constitutionproject.org/wp-content/uploads/2013/12/Letter-re-Smarter-Sentencing-Act-12-9-13.pdf?utm_source=PR%3A+Release+-+TCP+Letter+from+Judges+%26+Prosecutors+on+Sentencing+Reform&utm_campaign=Release+-+Smarter+Sentencing+Act+ltr&utm_medium=email.

-          U.S. Sentencing Comm’n, News Advisory, “Comment of Judge Patti B. Saris on the Senate Judiciary Committee’s Bipartisan Vote to Report the Smarter Sentencing Act” (Jan. 30, 2014), http://www.ussc.gov/Legislative_and_Public_Affairs/Newsroom/Press_Releases/20140130_News_Advisory.pdf.

-          Memorandum from U.S. Att’y Gen. Eric Holder to U.S. Att’ys & Asst. Att’y Gen. for the Crim. Div., Department Policy on Charging Mandatory Minimum Sentences and Recidivist Enhancements in Certain Drug Cases (Aug. 12, 2013), available at http://big.assets.huffingtonpost.com/HolderMandatoryMinimumsMemo.pdf.

Error to Increase Sentence Based on Defendant’s Status as a Police Officer (Impermissible Socioeconomic Factor)

United States v. Chandler, No. 12-30410 (Oct. 4, 2013) (Higginbotham, Owen, Graves)

Chandler pleaded guilty to engaging in a child exploitation enterprise and was sentenced to 547 months of imprisonment after the district court varied upward from the recommended Guidelines range by 127 months.  While he was a police officer, Chandler joined an online bulletin board and posted child pornography.  The panel found that the “district court relied extensively on the fact that Chandler was a police officer at the time of the offense,” even though there was “no evidence in the record that he used or exploited his position as a police officer, or used any knowledge or skills he gained from that position, to commit the offense or attempt to hide it.”  Consequently, the court’s comments “could be interpreted to cross the line into impermissible reliance on Chandler’s socioeconomic status as a police officer,” which, “standing alone, is not a justifiable reason to increase a sentence.”  Even on plain error review, the panel vacated Chandler’s sentence and remanded for re-sentencing.  A reminder that the “should have known better” or the “trusted community figure” factor does not warrant a higher sentence on its own.

Plain Error to Impose Sentence Based on Rehabilitative Needs

United States v. Garza, No. 11-10543 (Feb. 1, 2013) (DeMoss, Owen, Haynes)

United States v. Culbertson, No. 11-10917 (Mar. 22, 2013) (Stewart, Garza, Elrod)

In Tapia v. United States, the Supreme Court held that a district court "may not impose or lengthen a prison sentence to enable an offender to complete a treatment program or otherwise to promote rehabilitation." A court can still discuss the opportunities for rehabilitation within prison, however, as long as the prison sentence is not based on rehabilitative needs.

In Garza, the Fifth Circuit panel held that Tapia applies to revocation sentences. Garza’s revocation sentence was erroneous because the district court considered Garza’s rehabilitative needs in imposing a prison sentence. The court sentenced Garza to 24 months in prison, even though his advisory guideline range was 3 to 9 months, noting that Garza should participate in the residential institutional drug treatment program. The panel vacated the sentence and remanded for sentencing since the error was plain at the time of appeal and it affected Garza’s substantial rights.

In Culbertson, the advisory guideline range of imprisonment was 5 to 11 months. The district court imposed a sentence of 30 months and 113 days for "punishment and deterrence from further criminal activity." Defense counsel objected to the "substantive and procedural reasonableness of the sentence." The district court overruled the objection and told Culbertson that the court is trying "to give you a period of time where you can, once again, get clean and sober and stay clean and sober and come out after you serve your sentence and stop using drugs and stay on your meds." Defense counsel questioned the need to triple the guidelines, and the court responded, "I think you need that time to get yourself stabilized."

So, was the court imposing the sentence because of rehabilitation, or was the court merely discussing the opportunities for rehabilitation Culbertson could access while imprisoned?

The panel decided it was the former given the court’s explanation for the lengthy sentence, even though the court did not specifically mention a rehabilitative program. The panel found that defense counsel’s objection did not preserve the alleged error, so plain error review applied. Nonetheless, this error was plain at the time of appeal and affected his substantial rights.

Prison and the Poverty Trap - Why Longer Sentences Hurt Society

The United States’ incarceration rate is the world’s highest, and the number of Americans in state and federal prisons has quintupled since 1980. This New York Times article from February 19, 2013, "Prison and the Poverty Trap," describes how social scientists are finding that the benefits of incarceration are far outweighed by the costs. While "crime may initially decline in places that lock up more people, within a few years the rate rebounds and is even higher than before."  Such a rebound could result from the negative impact of incarceration on families, job prospects, future wages, and health. The online article has links to the various articles, books, and studies cited:

James C. Thomas & Elizabeth Torrone, Incarceration as Forced Migration: Effects on Selected Community Health Outcomes, Am J Public Health. 2006 October; 96(10): 1762–1765.

Bruce Western, Punishment and Inequality in America (2007)

Pew Charitable Trusts, Pew Quantifies the Collateral Costs of Incarceration on the Economic Mobility of Former Inmates, Their Families, and Their Children (2010)

Christopher Wildeman & Bruce Western, Incarceration in Fragile Families, The Future of Children, Volume 20, Number 2, Fall 2010, pp. 157-177

Robert H. DeFina & Lance Hannon, The Impact of Mass Incarceration on Poverty (2009)

Donad Braman, Doing Time on the Outside (2004)