Tuesday, May 13, 2008

When No Guideline Yet Exists for Offense, and Sentencing Commission Has Proposed One, It's Plain Error Not to Consider It at Sentencing

United States v. Sanchez, No. 07-30578 (5th Cir. May 13, 2008) (Jones, Barksdale, Stewart)

Lots of Sentencing Guidelines amendments are bad. But every now and then the Commission proposes an amendment that would actually result in reduced sentences. Wouldn't you like to be able to take advantage of those proposed amendments before they actually go into effect? Well here's some support for an argument that the district court has to at least consider the nascent guidelines.

Our facts: Sanchez was convicted of failing to register as a sex offender, in violation of 18 U.S.C. § 2250. At the time of his sentencing, there was no specific guideline applicable to that crime, and the court concluded that there was no sufficiently analogous guideline to apply. The district court noted that the statutory maximum was 10 years, stated it had considered the 3553(a) factors, and sentenced Sanchez to 60 months' imprisonment.

"However, unbeknownst to the district court or the parties, prior to Sanchez’s sentencing on June 11, 2007, the Sentencing Commission had promulgated and submitted to Congress a proposed guideline for violations of § 2250." And that guideline would have resulted in an advisory range much lower than the 60 months Sanchez received (either 15 to 21 or 21 to 27, depending on which party's calculation is correct).

Sanchez appealed, arguing that the district court erred by not considering the proposed guideline when imposing sentence. Since he didn't raise this argument in the district court, the court of appeals reviewed for plain error.

The court first concluded that there was error, and that it was plain. Under Gall, it is "signficant procedural error" to miscalculate or to fail to calculate the applicable Guidelines range. When there is no applicable guideline for a felony offense, guideline §2X1.5 directs a court to "apply the most analogous offense guideline." If there's not one of those, then "the provisions of 18 U.S.C. § 3553 shall control, except that any guidelines and policy statements that can be applied meaningfully in the absence of a Chapter Two offense guideline shall remain applicable.” In United States v. Armstead, the Fifth Circuit stated that, "'[w]hen dealing with a new statutory crime, we believe the courts should defer to the authority of the Sentencing Commission to define, by amending the guidelines, which particular guideline will be applicable to the new crime.'" Furthermore, where "'evidence of the [Sentencing] Commission’s policies and goals are publicly available to the courts, we should utilize those proposed new amendments in making determinations as to ‘analogous guidelines’ for sentencing purposes under § 2X5.1.'" Thus,
although Armstead arose in a different context, the Court’s statements regarding the propriety of considering proposed guidelines are relevant to the case at hand. Here, although there was no applicable guideline at the time of sentencing, “evidence of the [Sentencing] Commission’s policies and goals” was publicly available to the district court in the form of the proposed amendments to the guidelines. Id. Therefore, the district court should have “defer[red] to the authority of the Sentencing Commission” and utilized the proposed new amendments in determining Sanchez’s sentencing range. The district court’s failure to do so constituted plain error.

And that failure affected Sanchez's substantial rights under the United States v. Villegas standard. The fact that his sentence was more than twice as long as the high end of even the Government's calculations under the proposed guideline was enough to show that, absent the error, Sanchez would have received a different sentence. For the same reason, "this plain error also affects the fairness of the judicial proceedings and warrants the exercise of our discretion to correct the error."

But lest defense attorneys get any wise ideas, the opinion concludes with this admonition:
Finally, we must emphasize the narrowness of our holding. We hold only that, where, at the time of sentencing there is no guideline in effect for the particular offense of conviction, and the Sentencing Commission has promulgated a proposed guideline applicable to the offense of conviction, the district court’s failure to consider the proposed guideline when sentencing the defendant may result in reversible plain error.

Nevertheless, the rationale for considering new offense guidelines would surely seem to apply any time there's a proposed amendment waiting to take effect, even amendments to existing guidelines. That's especially so now that the Guidelines are merely advisory, rather than mandatory. So you might not want to wait until November 1st to haul out the good part of these proposed amendments.

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