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What Are We Leaving on the Table at Sentencing? Examining the Sentencing Guidelines and the § 3553(a) Factors • Colin Stephens, Smith & Stephens • John Rhodes, Federal Defenders of Montana • Technical Support by Ken Michael, Federal Defenders of Montana

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What Are We Leaving on the Table at Sentencing? Examining the Sentencing Guidelines and the § 3553(a) Factors. Colin Stephens, Smith & Stephens John Rhodes, Federal Defenders of Montana Technical Support by Ken Michael, Federal Defenders of Montana. - PowerPoint PPT Presentation

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WHY IS THIS CLIENT DIFFERENT THAN ALL THE OTHER HUNDREDS THAT COME BEFORE THE JUDGE?

What Are We Leaving on the Table at Sentencing? Examining the Sentencing Guidelines and the 3553(a) Factors

Colin Stephens, Smith & Stephens

John Rhodes, Federal Defenders of Montana

Technical Support by Ken Michael, Federal Defenders of Montana

Alleyne v. United States, 133 S. Ct. 2151, 186 L. Ed. 2D 314 (June 17, 2013).

Alleyne is basically a simple syllogism:

Any fact that, by law, increases the penalty for a crime is an element that must be submitted to the jury and found beyond a reasonable doubt; Mandatory minimum sentences increase the penalty for a crime;

Ergo, any fact that increases the mandatory minimum is an element that must be submitted to the jury.Interestingly, Alleyne addressed a situation where there already was a mandatory minimum which was then increased by judicial fact finding.Does a fact which triggers a mandatory minimum in the first place also require submission to a jury? Yes.Elevating the low-end of a sentencing range heightens the loss of liberty associated with the crime . . . . This reality demonstrates that the core crime and fact triggering the mandatory minimum sentence together constitute a new, aggravated crime, each element of which must be submitted to the jury.The oral argument in Alleyne really did not address the factual minutia of the case. Rather, it addressed the grander question of what facts require submission to a jury.One of the phrases that reoccurred in the oral argument was whether the defendant has the right to have issues which would give rise to a more lenient sentence submitted to a jury. This contrasts with Blakely and Apprendi rulings regarding the submission of facts which trigger a more extreme sentence. Its really the same argument from a different perspective. The Alleyne Court agreed.Its essentially a defendants right to have the jury decide this:versus this:Alleyne is not (or highly unlikely to be) retroactive. All courts have denied applying retroactively. Basically, if Apprendi wasnt retroactive, no way will Alleyne be.

For an interesting article on the problem with retroactive application of certain SCOTUS cases, check out the article Gideons Shadow on the Social Sciences Research Network. Available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2248366The fall-out from Alleyne could be significant as there are a number of bogus exceptions and carve-outs to a full application of Apprendi. The issue in Alleyne was only one such exception. Fines was another issue that the Court determined required submission to the jury during the last term in Southern Union.

The largest of these exceptions is the prior conviction exception, i.e., a case where the mandatory minimum sentence is triggered or increased due to the presence of a prior conviction, e.g., 851 increases.SCOTUS, especially Justice Thomas, seems to be shifting more and more toward determining that any issue which affects the sentence in a significant way must be submitted to the jury.

Decisions like Southern Union and Alleyne put decisions like Almendarez- Torres on the endangered species list. In Almendarez-Torres, SCOTUS concluded that the Constitution does not require submission of a defendants prior convictions to a jury, in that case it was the fact that the defendant had been previously deported. Justice Scalia disagreed and wrote an excellent dissent in which he refused to draw distinctions between elements of the crime and sentencing factors. Almendarez-Torres was a 5-4 split. Notably, Justice Thomas was in the majority in Almendarez-Torres. Later, Justice Thomas would then go on to join the majority in Apprendi. In a concurring opinion, Justice Thomas stated that he had incorrectly joined the majority in Almendarez-Torres. (I interpret this to mean that Justice Scalia had forgotten to turn his blinker on prior to the conference on Almendarez-Torrez).The exception to trial by jury for establishing the fact of a prior conviction finds its basis not in the Constitution, but in precedent of this Court. Moreover, it has long been clear that a majority of this Court now rejects that exception. (Rangel-Reyes v. United States, 547 U.S. 1200 (2006) (Thomas., J. dissenting on denial of cert.)).

Southern Union Co., 132 S. Ct. 2344 (2012). Criminal fines increase a defendants maximum possible sentence. Therefore, the Sixth Amendment reserves determinations regarding an increase in fine to a jury.

Southern Union was charged and convicted by jury of multiple counts the Resource Conservation and Recovery Act.RCRA provides that a fine of not more than $50,000 per day for each violation. The issue comes down to a factual finding of how many days and how many violations. Those must be decided by a jury.Cases like Southern Union and Alleyne demonstrate the importance of not forgetting about the Constitution during sentencing. It can be an important tool for effective sentencing advocacy.They also demonstrate that we should keep pushing, even when the issue has been decided. On the issue of the prior-conviction exception to Apprendi, that issue seems to be ripe for challenge.

The caveat is, however, that we may not want priors to be admitted. Thus, we should also not forget about Old Chief v. United States, 519 U.S 172 (1997).Arguing constitutional rights, with the exception of the Eighth Amendment, has been largely ignored in the modern era. In days of yore, a conviction for a specific crime carried a specific offense. Rachel E. Barkow, Recharging the Jury: The Criminal Jurys Constitutional Role in an Era of Mandatory Sentencing, 152 U. Pa. L. Rev. 33 (2003).

Such a scheme deprived courts from even considering most constitutional issues.Constitutional rights which have been recognized at sentencing are:

Right to effective assistance of counsel at sentencing (Glover v. United States, 531 U.S. 198 (2001)).Interestingly, this issue is raised most often in capital cases, i.e., counsel was ineffective in presenting mitigation evidence. However,there is nothing which suggests that efficacy during sentencing islimited to capital cases. Limited privilege against self-incrimination (Mitchell). In Burns v. United States, 501 U.S. 129 (1991), the Court noted that counsel failure to give defendant advance notice of facts that would result in a higher sentence might raise serious due process concerns. Certain substantive due process rights have been recognized: Court cant base a sentence on materially untrue assumptions about the defendants criminal record; Court cant punish a defendant for a successful appeal; Court cant consider race, national origin, or gender in sentencing; Religious beliefs may still be up in the air, but generally not unless the religious belief somehow gave rise to the crime (polygamy; Rastafarianism, etc.).The basic function of constitutional rights is to limit the governments ability to interfere with civil liberties. Sentencing is the process by which the government determines precisely how much liberty it will take from a defendant. Sentencing courts therefore should not impose sentence based on matters protected by the Constitution.Clarissa B. Hessick & F. Andrew Hessick, Recognizing Constitutional Rights at Sentencing, California Law Rev. (2011). Just dont forget about the Constitution during sentencing. Some questions need to be explored even in the face of contrary case law.

Does consideration of acquitted conduct in imposing a sentence violate Double Jeopardy?Does consideration of acquitted conduct at sentencing violate a defendants Sixth Amendment right to a jury trial?Even if the judge believes the defendant committed the crimedespite the acquittal, is it still appropriate for the judge to punish the acquitted defendant through a different means?How conscious are we of the trial tax? Defendants who go to trial routinely receive longer sentences that those who do not. Is this a de facto punishment for a defendant exercising his constitutional rights?Is a denial of leniency because the defendant chose to go to trial the same as an increase in punishment?16Does a harsher sentence because of the defendants failure to express remorse during sentencing violate his Fifth Amendment right?Mitchell is limited in its holding to factual determinations respecting the circumstances and details of the crime. (Mitchell, 526 U.S. at 328). Does enhancing a sentence for not showing remorse violate the First Amendments protection to free speech?It seems like a content-based punishment to me.West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943) (The Government cannot, as a general matter, punish an individual for refusing to speak). The Ninth shot this argument down in U.S. v. Smith, 424 F.3d 992 (9th Cir. 2005) (ruling, apparently, that sentencing factors (recidivism, amenability to rehabilitation, etc.), trumped the First Amendment. REALLY!?Obviously, you dont have to do any of these. However, they are worth thinking about on the off chance that will also make the judge think.If you ever get in a pinch, repeating the following lines will alleviate most problems, especially in Judge Molloys Court:Your honor, that information was passed along to me by Mr. Rhodes and Mr. Stephens. They were (and always are) in error. I apologize for listening to them.

WHY IS THIS CLIENT DIFFERENT THAN ALL THE OTHER HUNDREDS THAT COME BEFORE THE JUDGE?

18 3553(a)1-7INDIVIDUAL CHARACTERISTICS Individual Characteristics

MITIGATION FROM THE STARTALL ABOUT HUMANIZING YOUR CLIENTWorking with pretrial services officer for releaseRelaying that same information to the AUSAGet to know your clientreleasesGet to know your pretrial services officerGet to know available services

The Supreme Court instructsUnited States v. Tucker, 404 U.S. 443, 446 (1972)Sentencing inquiry [is] broad in scope, largely unlimited either as to the kind of information [judges] may consider, or the source from which it may comeWilliams v. Tucker, 337 U.S. 241, 246 (1949)both before and since the American colonies became a nation, courts in this country and in England practiced a policy under which a sentencing judge could exercise a wide discretion in the sources and types of evidence used to assist him in determining the kind and extent of punishment to be imposed within limits fixed by lawWilliams v. TuckerHighly relevant if not essential to his selection of an appropriate sentence is the possession of the fullest information possible concerning the defendants life and characteristics.

And Congress agrees18 U.S.C. 3661No limitation shall be placed on the information concerning the background, character, and conduct of a person convicted of an offense, which a court of the United States may receive and consider for the purpose of imposing an appropriate sentence.Pretrial Services InterviewRight to answer questionsRight not to answer questionsAnswers must be truthfulDo not discuss offense conductDo not discuss other criminal conductDo not discuss criminal history

Appeal Waivers

Scope of Change of Plea WaiverMitchell v. United States, 526 U.S. 314, 317 (1999):

Two questions relating to criminal defendants Fifth Amendment privilege against self-incrimination are presented to us.Mitchell, 526 U.S. at 317The first is whether, in the federal criminal system, a guilty plea waives the privilege in the sentencing phase of the case, either as a result of the colloquy preceding the plea or by operation of law when the plea is entered.We hold the plea is not a waiver of the privilege at sentencing.Mitchell, 526 U.S. at 317The second question is whether, in determining facts about the crime which bear upon the severity of the sentence, a trial court may draw an adverse inference from the defendants silence.We hold a sentencing court may not draw the adverse inference.

PSR ProcessDo not permit uncounseled contact between the USPO and your client

Attend all meetings

Screen all paperwork

PSR InterviewRight to answer questionsRight not to answer questionsAnswers must be truthfulDo not discuss offense conductAcceptance of Responsibility StatementDo not discuss other criminal conductDo not discuss criminal history

Acceptance of ResponsibilityU.S.S.G. 3E1.1(a)

If the defendant clearly demonstrates acceptance of responsibility for his offense, decrease the offense level by 2 levels.

Acceptance of Responsibility StatementGet it in writing

United States Sentencing Guidelines800 pound gorilla

Make the Guidelines Work for your Client

Significant Procedural Error Reversible procedural error is:Fail to calculate the Guidelines correctlyTreat the guidelines as mandatoryFail to consider 3553(a) factorsFail to address parties argumentsFail to adequately explain sentenceComes before review for substantive reasonableness

Gall, 552 U.S. at 51.44United States v. Flores, 2013 U.S. Dist. App. LEXIS 15960 (9th Cir. August 2, 2013)360 months-to-life district court range180 months sentence imposed292-to-365 months correct range, per 9th Circuitwe cannot say whether the district court would impose the same sentence if it kept the correct Guidelines in mind throughout the processGuidelines One DimensionalGuidelines = math without subtraction

Acceptance of Responsibility reduction

Safety Valve and minor role reductions

Up, up and away

4647Evolved in a One-Way Upward RatchetAmended in a one-way upward ratchet increasingly divorced from considerations of sound public policy and even from the commonsense judgments of frontline sentencing professionals who apply the rules. Frank O. Bowman III, The Failure of the Federal Sentencing Guidelines: A Structural Analysis, 105 Colum. L. Rev. 1315, 1319-20 (2005).

47Guidelines Flawed in Both DirectionsGuidelines range results almost exclusively from aggravating factors

Mitigating factors, 3553(a)(1), NOT Included in the calculationAnd policy statements generally prohibit or discourage mitigating factors as departure

Minimal attempt to reflect Need for Deterrence, Incapacitation, Rehabilitation in the most effective manner, 3553(a)(2), based on the defendants individual characteristics

Kinds of sentences permitted by statute other than prison, 3553(a)(3), rarely recommended

48All aggravating factors, no mits except measly role and AOR.Underserve probation1984: 38% of defendants received straight probation

18 U.S.C. 3582(a): The court, in determining whether to impose a term of imprisonment, and if a term of imprisonment is to be imposed, in determining the length of the term, shall consider the factors set for in section 3553(a) to the extent they are applicable, recognizing that imprisonment is not an appropriate means of promoting correction and rehabilitation.28 U.S.C. 994(a)(1)The Commission . . . shall promulgate . . . guidelines . . . for use of a sentencing court in determining the sentence . . . including (A) a determination whether to impose a sentence to probation, a fine, or a term of imprisonment [and] (B) a determination as to the appropriate amount of a fine or the appropriate length of a term of probation or a term of imprisonment. First Time Non-Violent Offenders Were Supposed To Get Probation.

U.S.S.C. shall insure that the guidelines reflect the general appropriateness of imposing a sentence other than imprisonment in cases in which the defendant is a first offender who has not been convicted of a crime of violence or an otherwise serious offense. 28 U.S.C. 994(j).

51Commn ignored the directive, and ignores empirical evidence.Congress intendedprobation and other alternatives for:Drug treatment Educational programsVocational trainingEmployment skillsMental health treatmentMedical treatmentS. Rep. No. 98-225, at 172-75 (1983)Courts Must Consider All Kinds of Available Sentences, and Can Sentence Below Guidelines ZonesMust consider all kinds of sentences available by statute, 3553(a)(3), even if the kinds of sentence . . . established [by] the guidelines recommend only prison. United States v. Gall, 552 U.S. 38, 59 & n.11 (2007).

Probation authorized for any offense with a statutory maximum below 25 years unless expressly precluded. See 18 USC 3561(a); 18 USC 3559(a). 53If Judge Likes DeparturesChapter 5 of the GuidelinesAlso listed in back of 2012 Manual35 downward departure provisionsOften subject to narrow restrictions and limitations23 neutral departure provisions (up or down)12 of which appear in rarely used GLsWatch out -- 166 upward departure provisionsOften very broadly statedNever argue for a departure alone.

Deconstruction

BREAK DOWN THE ANCHORING EFFECT OF A NUMBER

DISABUSE THE JUDGE OF MISCONCEPTIONS ABOUT THE GUIDELINES, EDUCATE THE JUDGE ABOUT HOW THEY ARE FLAWED, AND ADVOCATE 3553(a) FROM THERE

Courts Must Consider All Mitigating Factors, and Ignore Contrary Policy StatementsGall v. United States, 552 U.S. 38, 50 n.6, 56-60 (2007)

Section 3553(a)(1) is a broad command to consider . . . the history and characteristics of the defendant

Court approved variance based on factors the policy statements deem not relevant or not ordinarily relevant and which ignored the policy statements57Gall v. United States, 552 U.S. 38 (2007)Judge appropriately gave significant weight to voluntary withdrawal from the conspiracyabstained from drugs, completed education, established businessage and immaturity at the time of the offense

All supported the conclusion that imprisonment was not necessary to deter Mr. Gall or to protect the public from further crimes by him

The Court made no mention of policy statements that said these factors were not relevant, or had to be atypical58

Question is Whether the Facts are Relevant to Purposes and ParsimonyPepper v. United States, 131 S. Ct. 1229, 1242-43 (2011)

No question that Peppers remaining drug-free for five years attending college and achieving high grades succeeding at work re-establishing a relationship with his fathermarrying and supporting a family

Are highly relevant to the need for deterrence, incapacitation, and treatment and training

And bear directly on the District Courts overarching duty to impose a sentence sufficient, but not greater than necessary to serve the purposes of sentencing

59Supreme Court showed us how.

Cant just say, my client overcame a drug problem HOW does that fact connect to the purposes of sentencing?

Notice that all of these factors are forbidden or discouraged as grounds for departure.How it was supposed to beTwo reasons it may be fair to assume that the Guidelines, insofar as practicable, reflect a rough approximation of sentences that might achieve 3553(a)s objectives. Rita v. United States, 551 U.S. 338, 350 (2007).

U.S.S.C. used empirical approach to develop initial guidelines, beginning with an empirical examination of 10,000 presentence reports setting forth what judges had done in the past

Guidelines can evolve in response to judicial decisions, sentencing data, criminological research, and consultation with experts and all stakeholders (not just DOJ)

Rita, 551 U.S. at 349-50.60But not all guidelines were developed in this mannerGall v. United States, 552 U.S. 38, 46 & n.2 (2007) Kimbrough v. United States, 552 U.S. 85, 96 (2007) 62But not all of the Guidelines are tied to this empirical approach. Gall, 552 US at 46 n.2 (referencing Kimbrough to explain variance)Ranges set significantly higher than past practice for the most common offenses, e.g., drugs, career offender, white collar, many others

Did not include probationary sentences in estimating average sentence length, or in making probation available

Prohibited or deemed not ordinarily relevant offender characteristics always considered in the past

Radical relevant conduct rule: same sentence for acquitted and uncharged crimes as if charged and convicted

Ratcheted up throughout pre-Booker era over 750 amendments often without regard to research or sentencing data62But Booker has changed this USSC is making ameliorating changes for first time in history.Courts May Vary From Guidelines That Lack Empirical Basis and Recommend Punishment Greater Than NecessaryRita, 551 U.S. at 351, 357Judge may find the Guidelines sentence itself fails properly to reflect 3553(a) considerations, or reflects an unsound judgment

Kimbrough v. United States, 552 U.S. 85, 101 (2007) courts may vary [from Guideline ranges] based solely on policy considerations, including disagreements with the Guidelines (citing Rita)

not an abuse of discretion to conclude that a guideline that is not the product of empirical data and national experience . . . yields a sentence greater than necessary to achieve 3553(a)s purposes, even in a mine-run case63Three points:The guideline was not developed by the Commission in its characteristic institutional role, i.e., not based on empirical data and national experience.

The guideline recommends punishment that is greater than necessary to serve the purposes of sentencing under 3553(a)(2).

The sentence you propose better serves the purposes of sentencing.You need to establish in order to get a variance b.o. a pol dis, and also avoid closer review.64Not Just CrackIllegal reentry: United States v. Amezcua-Vasquez, 567 F.3d 1050 (9th Cir. 2009)

Career offender: United States v. Mitchell, 624 F.3d 1023 (9th Cir. 2010)

Child pornography: United States v. Henderson, 649 F.3d 955 (9th Cir. 2011)

Use Decisions of Other JudgesUntil the Commission does the job right, which should take considerable time, it should lower the ranges in drug trafficking cases by a third for the reasons set forth above. In the meantime, the current ranges will be given very little weight by this Court.

United States v. Diaz, 2013 WL 322243 (E.D.N.Y Jan. 28, 2013) (Gleeson, J.)

Career offender guideline as applied to low-level, non-violent drug addicts has the potential to overstate the seriousness of a defendant's record and her risk of re-offending, to result in a sentence significantly greater than necessary to protect the public by deterring further crimes of the defendant, to result in unwarranted sentencing uniformity and unwarranted sentencing disparities among defendants found guilty of similar conduct, to result in an unduly harsh sentence which does not promote respect for the law, and to be inconsistent with the obligation to apply all of the relevant 3553(a) factors

United States v. Newhouse, __ F. Supp. 2d __, 2013 WL 346432, *28 (N.D. Iowa Jan. 30, 2013) (Bennett, J.)

The Sentencing Commission to this day has never been able to articulate why it has two points for this, or four points for that. . . . These are just numbers. And yet once they are placed the whole thing is blessed and said to be rational.

Judge Rakoff (E.D.N.Y.) (keynote speech at the ABAs Natl Inst. on White Collar Crime, March 2013).Hmmmm. That sounds very familiar . . . . . Um, 3553(a)? Lets see how it would work.67The Ninth Circuit Gets ItHenderson, 649 F. 3d at 963 & n.3

A district courts disagreement with a guideline not developed by the U.S.S.C. based on empirical data and national experience is subject to abuse-of-discretion review

The fact that the Guidelines conform to Congressional directives does not insulate them from a Kimbrough challenge.

[S]entencing judges can reject any Sentencing Guideline, provided that the sentence is reasonable.

Mitchell, 624 at 1030.Vulnerable guidelinesDrugsFraudRelevant conductIllegal reentryCareer offenderChild pornographyFirearmsRelevant Conduct???????????

Congressional Staff Describe the Bidding War in Congress That Led to the Drug GuidelinesIt was this frenzied, panic atmosphereIll see you five years and raise your five years. It was the crassest political poker game. Michael Isikoff & Tracy Thompson, Getting Too Tough on Drugs: Draconian Sentences Hurt Small Offenders More Than Kingpins, Wash. Post, Nov. 4, 1990, at C1, C2 (quoting Eric Sterling, counsel to the House Subcommittee on Crime at the time)See also Eric Sterling, Legislative Scatology, http://justiceanddrugs.blogspot.com/2009_02_01_archive.html

Heart of Sentencing Advocacy

18 U.S.C. 3553(a)Shall impose a sentence sufficient but not greater than necessary to satisfy the need for just punishment in light of the seriousness of the offense, deterrence, incapacitation, rehabilitation in the most effective manner

In light of all offense and offender circumstances, all kinds of sentences available by statute, and avoiding unwarranted disparities.Sentence that Complies with the Statute! Use as guiding framework for your argument. Make the judge engage with it.

73CHARACTER VIDEOADMISSIBILITY (SOME JUDGES MAY OBJECT?)COSTSPROVIDES THE EMOTION AND PASSION MISSING FROM A LETTER (maybe substitutes for testimony)INTERVIEWS OF FAMILY MEMBERS, TEACHERS, EMPLOYERS, COUNSELORSLESS IS MOREExperts at sentencingChild pornographyComputer forensicPsychosexual evaluation (MSOTA)Meth lab quantity projectionDrug abuserForensic account?Writ of habeas corpus ad prosequendumConcurrent v. consecutive sentence18 U.S.C. 358418 U.S.C. 3585U.S.S.G. 5G1.3

What Kind of EvidenceExplain why it happened and why the sentence you propose is appropriate withFacts about the offenseFacts about the history and characteristics of the defendant

Research Why do those facts matter to the purposes of sentencing? E.g., research establishes that defendants over age 40 recidivate at a low rate

77Get It On the Record!PSRGet favorable facts into PSRF.R.Crim.P. 32(i)(3) objectionAdduce evidenceWitnessesDocumentationWhy?Thats how we implement advocacy on the record

Not much explanation required for a Guidelines sentence if you dont contest it. Rita, 551 U.S. at 357.

Must consider only nonfrivolous arguments

Must explain why if court rejects them. Id. at 351, 357.

If court fails to explain how the sentence complies with 3553(a) or fails to address your arguments and evidence, object, and then gain reversal for procedural error. Gall, 552 U.S. at 51.

79

When courts of appeals reverse for inadequate explanation or failure to adequately address a nonfrivolous argument, the sentence on remand is different

in the majority of cases.

Jennifer Niles Coffin, Where Procedure Meets Substance: Making the Most of the Need for Adequate Explanation (Nov. 2011), http://www.fd.org/pdf_lib/Procedure_Substance.pdf; CHAMPION, MAR. 2012, at 36.

Every defendant who asserts that his or her personal circumstances warrant leniency is compelled to supply a factual predicate for the contention, and defendants who do not . . . are at the mercy of the instincts and intuitions of the sentencing judge.United States v. Chapman, 694 F.3d 908, 914 (7th Cir. 2012)

[S]tock arguments in mitigation often can be rejected with little or even no explanation. United States v. Gary, 613 F.3d 706, 709 (7th Cir. 2010).

81Variances Reversed Because No EvidenceReversing below-guideline sentence of probation because the district court based its disagreement with the Commissions policy advising imprisonment for tax offenders on a hunch that prison is not a deterrent. United States v. Bragg, 582 F.3d 965, 969 (9th Cir. 2009)

This evidence is readily available but it wasnt presented.82Avoid departure language when arguing 3553(a)ExceptionalExtraordinaryUnusualAtypicalHeartland

UNLESS ITS TRUE

When you use this language, you are inviting departure analysis by the court.

When you frame your arguments using departure language such as atypical, heartland, extraordinary, you are trafficking in mandatory guidelines. 83Use Language of 18 USC 3553(a)Every sentence must comply with itShall impose a sentence sufficient, but not greater than necessary to satisfy the need forJust punishment, the seriousness of the offense, respect for lawGeneral deterrenceIncapacitation (protect the public from defendant)Rehabilitation in the most effective manner

Shall considerall offense and offender circumstancesall kinds of sentences available by statuteavoiding unwarranted disparities and unwarranted similaritiesThe not so new law ---84Nature and circumstances of the offense and history and characteristics of the defendantMitigating Factors Formerly Subject to Departure Law No More Math Without Subtraction Part IV

Empirical research, sentencing data, judicial decisionsAgeEducation and vocational skillsMental and emotional conditionsPhysical condition, drug or alcohol dependence or abuse, gambling addiction, physiqueEmployment recordFamily ties and responsibilitiesPost-sentencing rehabilitationRole in the offenseCriminal historyMilitary, civic, charitable work, public service, employment, good worksLack of guidance as a youth, disadvantaged upbringingSubstantial assistancePretrial release compliance, acceptance of responsibilityRehabilitation

86Part IV contains empirical research, statistics and case law.If the client is young Young offenders reform in a shorter period of time. Laurence Steinberg & Elizabeth S. Scott, Less Guilty by Reason of Adolescence: Developmental Immaturity, Diminished Responsibility, and the Juvenile Death Penalty, 58 Am. Psychologist 1009, 1011-14 (2003)Robert J. Sampson & John H. Laub, Crime in the Making: Pathways and Turning Points Through Life, 39 Crime & Delinq. 396 (1993)

Young offenders (e.g., in their 20s) are less culpable than the average offender because of brain development.

Jay N. Giedd, Structural Magnetic Resonance Imaging of the Adolescent Brain, 1021 Annals N.Y. Acad. Science 105-09 (2004); Margo Gardner & Laurence Steinberg, Peer Influence on Risk Taking, Risk Preferences and Risky Decision Making in Adolescence and Adulthood: An Experimental Study, 41 Developmental Psych. 625, 632 (2005); Federal Advisory Committee on Juvenile Justice, U.S. Dept of Justice, Office of Juvenile and Delinquency Prevention, Annual Report 8 (2005), www.ncjrs.gov/pdffiles1/ojjdp/212757.pdf.

Miller v. Alabama, 132 S. Ct. 2455, 2464-66 (2012); Graham v. Florida, 130 S. Ct. 2011, 2026-27 (2010); Roper v. Simmons, 543 U.S. 551, 567, 569-70 (2005)

87Keep in mind recid here is defined to include SR violations.Just Punishment, Respect for the Law, and Seriousness of the Offense 3553(a)(2)(A)Prison can be unjust punishmentMedical problems BOP will not adequately treatBOP often does not provide required medical services to inmates. U.S. Dept of Justice, Office of the Inspector General, Audit Division, The Federal Bureau of Prisons Efforts to Manage Health Care (Feb. 2008), http://www.justice.gov/oig/reports/BOP/a0808/final.pdf.

U.S. v. Martin, 363 F.3d 25 (1st Cir. 2004) U.S. v. Gee, 226 F.3d 885 (7th Cir. 2000)U.S. v. Pineyro, 372 F. Supp. 2d 133 (D. Mass. 2005)U.S. v. Rausch, 570 F. Supp. 2d 1295 (D. Colo. 2008)

Empirical research shows that defendants who are old, young, small are subject to abuse, rape, violence in prisonNo More Math Without Subtraction at 64-66, 104, 109-10, http://www.fd.org/docs/select-topics---sentencing/No_More_Math_Without_Subtraction.pdf

Prison Is Unjustly Punitive in This CaseMedical problems BOP often does not provide required medical services to inmates. U.S. Dept of Justice, Office of the Inspector General, Audit Division, The Federal Bureau of Prisons Efforts to Manage Health Care (Feb. 2008), http://www.justice.gov/oig/reports/BOP/a0808/final.pdf.

Defendants who are older and/or infirm suffer moreHannah T.S. Long, The Inequality of Incarceration, 31 Colum. J. L. & Soc. Probs. 321, 343-44 (1998) U.S. Dept of Justice, National Institute of Corrections, Correctional Health Care: Addressing the Needs of Elderly, Chronically Ill, and Terminally Ill Inmates, at 10 (2004) Elaine Crawley & Richard Sparks, Older Men in Prison: Survival, Coping, and Identity, in The Effects of Imprisonment 343, 346-47 (Alison Liebling & Shadd Maruna eds., 2005)90Culpability of Young OffendersYoung offenders (up to mid-20s) are less culpable than older offenders.

Jay N. Giedd, Structural Magnetic Resonance Imaging of the Adolescent Brain, 1021 Annals N.Y. Acad. Science 105-09 (2004)Margo Gardner & Laurence Steinberg, Peer Influence on Risk Taking, Risk Preferences and Risky Decision Making in Adolescence and Adulthood: An Experimental Study, 41 Developmental Psych. 625, 632 (2005)Federal Advisory Committee on Juvenile Justice, U.S. Dept of Justice, Office of Juvenile and Delinquency Prevention, Annual Report 8 (2005), www.ncjrs.gov/pdffiles1/ojjdp/212757.pdfMiller v. Alabama, 132 S.Ct. 2455 (2012); Graham v. Florida, 130 S.Ct. 2011 (2010)

Evidence Regarding the Need for IncapacitationLengthy imprisonment increases recidivism by disrupting employment, reducing prospects of future employment, weakening family ties, and exposing less serious offenders to more serious offenders.

Miles D. Harer, Do Guideline Sentences for Low-Risk Drug Traffickers Achieve Their Stated Purposes?, 7 Fed. Sent. Rep. 22 (1994)

Lynne M. Vieraitis et al., The Criminogenic Effects of Imprisonment: Evidence from State Panel Data 1974-2002, 6 Criminology & Pub. Poly 589, 591-93 (2007)

U.S.S.C., Staff Discussion Paper, Sentencing Options Under the Guidelines 18-19 (Nov. 1996), http://www.ussc.gov/Research/Working_Group_Reports/Simplification/SENTOPT.HTM

93Not Necessary to Protect the Public from Further Crimes of the DefendantDrug offenders have lower than average rates of recidivism. U.S.S.C., Measuring Recidivism: The Criminal History Computation of the Federal Sentencing Guidelines 13 (2004) (Offenders sentenced in fiscal year 1992 under fraud, (16.9%), larceny,(19.1%), and drug trafficking, (21.2%), are overall the least likely to recidivate.)

The drug guideline does not identify defendants most in need of incapacitation. [N]o apparent relationship between the sentencing guideline final offense level and recidivism risk. Neil Langan & David Bierie, Testing the Link Between Drug Quantity and Later Criminal Behavior among Convicted Drug Offenders (Paper presented at the American Society of Criminologys annual meeting in Philadelphia Nov. 4, 2009)Young offenders Reform in a shorter period of time.

Laurence Steinberg & Elizabeth S. Scott, Less Guilty by Reason of Adolescence: Developmental Immaturity, Diminished Responsibility, and the Juvenile Death Penalty, 58 Am. Psychologist 1009, 1011-14 (2003)

Robert J. Sampson & John H. Laub, Crime in the Making: Pathways and Turning Points Through Life, 39 Crime & Delinq. 396 (1993)

Graham, Miller, Roper

AgeRecidivism rates decline relatively consistently as age increases, from 35.5% under age 21, to 9.5% over age 50.

USSC, Measuring Recidivism (2004), http://www.ussc.gov/publicat/Recidivism_General.pdf

(includes technical supervised release violations not all new crimes)96

Recidivism Drops Precipitously with AgeRobert J. Sampson, and John H. Laub, Life-Course Desisters: Trajectories of Crime Among Delinquent Boys Followed to Age 70, 451 CRIMINOLOGY 555 (2003) 97These are OFFENSES.First OffendersMinimal or no prior involvement with the criminal justice system is a powerful predictor of reduced likelihood of recidivism.

A Comparison of the Federal Sentencing Guidelines Criminal History Category and the U.S. Parole Commission Salient Factor Score, 15 (Jan. 4, 2005), http// www. ussc. gov/ publicat/ Recidivism Salient FactorCom.pdf.

Recidivism and the First Offender (May 2004), http://www.ussc. gov/publicat/Recidivism-First Offender.pdf.

Those with 0 points have lower recidivism rates than others in Criminal History Category I.Michael Edmund ONeill, Abrahams Legacy: An Empirical Assessment of (Nearly) First-Time Offenders in the Federal System, 42 B.C. L. Rev. 291 (2001).

First Offenders 0 pointsEven lower recidivism rates than other defendants in Criminal History Category I.

Michael Edmund ONeill, Abrahams Legacy: An Empirical Assessment of (Nearly) First-Time Offenders in the Federal System, 42 B.C. L. Rev. 291 (2001).

A Comparison of the Federal Sentencing Guidelines Criminal History Category and the U.S. Parole Commission Salient Factor Score, 15 (Jan. 4, 2005), http// www. ussc. gov/ publicat/ Recidivism Salient FactorCom.pdf.

Recidivism and the First Offender (May 2004), http://www.ussc. gov/publicat/Recidivism-First Offender.pdf.Other characteristics predicting low risk of recidivismUSSC, Measuring Recidivism (2004), http://www.ussc.gov/publicat/Recidivism_General.pdfFirst Offender: rate of reconviction for those with 0 points is 3.5%, with 1 point is 5.5%, with 2 or more points is 10.3%

Employment History: recidivism rate far less if employed in past year than if unemployed

Education: the more education, the lower the recidivism rate

Family: recidivism lower if ever married even if divorced

Abstinence from drug use: recidivism rate far lower if abstinent for past year than if used drugs

Non-Violent Offender: fraud, larceny and drug offenders the least likely to recidivate

100Keep in mind recid here is defined to include SR violations.Lengthy imprisonment increases recidivism by disrupting employment, reducing prospects of future employment, weakening family ties, and exposing less serious offenders to more serious offenders.

Miles D. Harer, Do Guideline Sentences for Low-Risk Drug Traffickers Achieve Their Stated Purposes?, 7 Fed. Sent. Rep. 22 (1994)

Lynne M. Vieraitis et al., The Criminogenic Effects of Imprisonment: Evidence from State Panel Data 1974-2002, 6 Criminology & Pub. Poly 589, 591-93 (2007)

U.S.S.C., Staff Discussion Paper, Sentencing Options Under the Guidelines 18-19 (Nov. 1996), http://www.ussc.gov/Research/Working_Group_Reports/Simplification/SENTOPT.HTM

101Evidence Regarding General Deterrence

Debunk the Myth: Severity Has No Deterrent Effect

Michael Tonry, Purposes and Functions of Sentencing, 34 Crime & Just. 1, 28 (2006)Zvi D. Gabbay, Exploring the Limits of the Restorative Justice Paradigm: Restorative Justice and White Collar Crime, 8 Cardozo J. Conflict Resol. 421, 447-48 (2007) Andrew von Hirsch et al., Criminal Deterrence and Sentence Severity: An Analysis of Recent Research (1999)David Weisburd et al., Specific Deterrence in a Sample of Offenders Convicted of White Collar Crimes, 33 Criminology 587 (1995)Francis T. Cullen et al. Prisons Do Not Reduce Recidivism: The High Cost of Ignoring Science, Prison Journal 91: 48S (2011)Debunk the deterrence myth in every case.103Incapacitating a low-level drug seller prevents little, if any, drug selling; the crime is simply committed by someone else.

U.S.S.C., Fifteen Year Review at 134; U.S.S.C., Cocaine and Federal Sentencing Policy at 68 (1995)

Unnecessary for DeterrenceNo evidence that increased drug sentences have a deterrent or other crime control effectThose assigned by chance to receive prison time and their counterparts who received no prison time were re-arrested at similar rates over a four-year time frame. Donald P. Green & Daniel Winik, Using Random Judge Assignments to Estimate the Effects of Incarceration and Probation on Recidivism among Drug Offenders, 48 Criminology 357 (2010)[I]t is unlikely that the dramatic increase in drug imprisonment was cost-effective. Ilyana Kuziemko & Steven D. Levitt, An Empirical Analysis of Imprisoning Drug Offenders, 88 J. of Pub. Econ. 2043, 2043 (2004) Evidence Regarding Rehabilitation in the Most Effective MannerTapia v. United States 654 U.S. ___ (2011)Holding: 18 U.S.C. 3582(a) does not permit a sentencing court to impose or lengthen a prison term to foster a defendants rehabilitation, unanimously reversing Ninth Circuit

Mental Health Treatment Works and Costs LessDale E. McNiel & Rene L. Binder, Effectiveness of a Mental Health Court in Reducing Criminal Recidivism and Violence, 16 Am. J. Psychiatry 1395-1403 ( 2007)

Ohio Office of Criminal Justice Services, Research Briefing 7: Recidivism of Successful Mental Health Court Participants (2007), http://www.publicsafety.ohio.gov/links/ocjs_researchbriefing7.pdf

BOP costs $29,000+ a year

Treatment and training in most effective manner

Only 15.7% of federal prison inmates with substance abuse disorders receive treatment after admission to BOP. Statement of Faye Taxman, Professor, George Mason University, Drug Treatment for Offenders: Evidence-Based Criminal Justice and Treatment Practices, Testimony before Subcomm. on Commerce, Justice, Science, and Related Agencies (Mar. 10, 2009)

BOP cannot provide treatment to many who need and want it. U.S. Government Accountability Office, Bureau of Prisons: Growing Inmate Crowding Negatively Affects Inmates, Staff, and Infrastructure 20-21 (Sept. 2012), http://www.gao.gov/assets/650/648123.pdf

Community residential treatment programs for offenders on probation or supervised release offer better options and access to drug treatment than a lengthy prison sentence. Natl Center on Addiction and Substance Abuse, Behind Bars II: Substance Abuse and Americas Prison Population. P. 40, tbl. 5-1 Drug treatment works and saves moneyNatl Institute on Drug Abuse, National Institutes of Health, Principles of Drug Abuse Treatment for Criminal Justice Populations (2006), http://www.nida.nih.gov/PDF/PODAT_CJ/PODAT_CJ.pdf

Susan L. Ettner et al., Benefit-Cost in the California Treatment Outcome Project: Does Substance Abuse Treatment Pay for Itself?, Health Services Res. 41(1), 192-213 (2006)

Drug treatment in the community works even better.Missouri Sentg Advisory Commn, Smart Sentencing, Vol. 1, Issue 4 (July 20, 2009)

Doug McVay, Vincent Schiraldi, & Jason Ziedenberg, Justice Policy Institute Policy Report, Treatment or Incarceration: National and State Findings on the Efficacy of Cost Savings of Drug Treatment Versus Imprisonment at 5-6, 18 (2004)

Elizabeth K. Drake, Steve Aos, & Marna G. Miller, Washington State Institute for Public Policy, Evidence-Based Public Policy Options to Reduce Crime and Criminal Justice Costs: Implications in Washington State (2009), http://www.wsipp.wa.gov/rptfiles/09-00-1201.pdf. Medical Condition U.S. v. Alemenas, 553 F.3d 27 (1st Cir. 2009) U.S. v. McFarlin, 535 F.3d 808 (8th Cir. 2008)U.S. v. Spigner, 416 F.3d 708 (8th Cir. 2005) U.S. v. Garcia-Salas, 2007 WL 4553913 (10th Cir. Dec. 27, 2007)U.S. V. Rodriguez-Quezada, 2008 WL 4302518 (S.D.N.Y. Sept. 15, 2008)U.S. v. Carmona-Rodriguez, 2005 WL 840464 (S.D.N.Y. April 11, 2005)

112Need for Deterrence 3553(a)(2)B)Debunk the MythNo particular amount of imprisonment or any imprisonment is necessary for deterrence. Michael Tonry, Purposes and Functions of Sentencing, 34 Crime & Just. 1, 28 (2006)Zvi D. Gabbay, Exploring the Limits of the Restorative Justice Paradigm: Restorative Justice and White Collar Crime, 8 Cardozo J. Conflict Resol. 421, 447-48 (2007) Andrew von Hirsch et al., Criminal Deterrence and Sentence Severity: An Analysis of Recent Research (1999)David Weisburd et al., Specific Deterrence in a Sample of Offenders Convicted of White Collar Crimes, 33 Criminology 587 (1995)Francis T. Cullen et al. Prisons Do Not Reduce Recidivism: The High Cost of Ignoring Science, Prison Journal 91: 48S (2011)Debunk the deterrence myth in every case. Increases in severity have no deterrent effect. Courts often recite that a long prison sentence will serve the purpose of deterrence, but they have no evidence of this. Its a gut instinct, not actually supported by the evidence. If we present the actual evidence, the studies that show that increases in sentence length do not increase deterrence, the court will have to address it, and when they do, they are likely to say something that gives you basis for appeal: I dont believe it. Its just common sense.114Sentencing Options 3553(a)(3)Community Service rehabilitative, saves the community money, saves incarceration costs, keeps families together, integrates community

House arrest

Electronic monitoring115Disparity Caused by Failure to File Motion Under 5K1.1589 variances for cooperation without 5K1.1 motion

U.S.S.C., 2011 Sourcebook, tbls.25, 25A, 25B.

U.S. v. Arceo, 535 F.3d 679, 688 & n.3 (7th Cir. 2008)U.S. v. Blue, 557 F.3d 682, 686 (6th Cir. 2009) U.S. v. Jackson, 296 Fed. Appx 408, 409 (5th Cir. 2008)U.S. v. Doe, 218 Fed. Appx 801, 805 (10th Cir. 2007)U.S. v. Fernandez, 443 F.3d 19, 35 (2d Cir. 2006)U.S. v. Lazenby, 439 F.3d 928, 933 (8th Cir 2006)116When gov unfairly refuses, or, as in Chicago, when govt attaches unfair conditions, i.e., cant argue any variance, dont get role adjustment, so plead straight up and ask judge to take cooperation into account.Sentencing Resources www.fd.orgSentencing by the StatuteInformation on sentencing purposes, variances, probation, how to determine past practice, deconstruction

No More Math Without SubtractionEmpirical research, statistics, and caselaw on numerous mitigating factors

Where Procedure Meets Substance: Making the Most of the Need for Adequate Explanation (Nov. 2011)

Appellate Decisions After Gall

Hemingway & Hinton, Departures and Variances -- Outline of Caselaw on All Kinds of Variances and Departures

Fighting Fiction with Fact: Research to Help Advocate for Lower Sentences

Deconstructing the Guidelines -- sample memos, papers, articles

117All on fd.org. All get updated occasionally.

Read S by S all the way through.

Use Math W/O Subtraction as Needed.Sentencing ResourcesU.S.S.C. (annual) Sourcebook Federal Sentencing Guidelines HandbookFederal Sentencing Law and PracticeDefending A Federal Criminal Case, Chapter 17Sentencing Law and Policy blogNinth Circuit blogSCOTUS blog