Thursday, November 04, 2010

Career Offenders Ineligible for Mitigating Role Adjustment

United States v. Cashaw, No. 09-51035 (5th Cir. Nov. 2, 2010) (per curiam) (King, Garwood, Davis)

As it turns out, this appears to be the first time the Fifth Circuit has held as such.  Cashaw had argued that he was eligible for the adjustment because "the career offender provision does not expressly preclude a downward adjustment for a minor participant and . . . this court has never ruled to the contrary."

The court pointed first to guideline §1B1.1, which sets out the order of operations for Guidelines calculations.  Chapter 2 first (base offense level and specific offense characteristics), Chapter 3 next (where the mitigating role adjustment is found), thence onward to Chapter 4 (home of the whopper career offender guideline).  Applying a Chapter 3 adjustment after applying the career offender guideline—which "provides an alternate offense level if the defendant qualifies as a career offender and the career offender offense level is greater than the 'otherwise applicable' offense level"—would disrupt the order mandated by §1B1.1 (sort of like saying you should have been allowed to eat your dessert before supper, upon learning that mom wouldn't let you have any dessert at all because you refused to eat your broccoli, or something like that).  "The only chapter Three adjustment explicitly permitted by Guidelines § 4B1.1(b), and thus authorized by the instructions, is the acceptance of responsibility adjustment."

As for Cashaw's argument that the career offender guideline doesn't explicitly prohibit a mitigating role adjustment,
The fact that the career offender provision authorizes an adjustment for acceptance of responsibility, but no other adjustments, demonstrates that the Sentencing Commission intended for no other adjustment to apply. As one of our sister circuits succinctly put it, “[h]ad the Sentencing Commission intended for all Chapter Three adjustments to follow a career offender adjustment, there would have been no need for the Commission to expressly indicate the permissibility of a reduction [for acceptance of responsibility].” Furthermore, implying a minor participant adjustment into the career offender provision would prevent implementation of Congress’ directive that career offenders “receive a sentence of imprisonment at or near the maximum term authorized.”
(cites omitted).

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