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Post-Post-United States v. BookerUnited States v. Booker, , 543 U.S. 220, 125 S. Ct. 738 543 U.S. 220, 125 S. Ct. 738
(2005) (2005)
A Discussion of Post-A Discussion of Post-BookerBooker Variances; Variances; Kimbrough v. United StatesKimbrough v. United States, 128 S. Ct. 558 (2007); , 128 S. Ct. 558 (2007);
and and Gall v. United StatesGall v. United States, 128 S. Ct. 586 (2007)., 128 S. Ct. 586 (2007).
Tracy DreispulTracy DreispulAssistant Federal Public DefenderAssistant Federal Public Defender
400 N. Florida Street, Suite 2700; Tampa, FL 33602400 N. Florida Street, Suite 2700; Tampa, FL 33602813-228-2715813-228-2715
United States v. Booker 543 U.S. 220, 125 S. Ct. 738 (2005)
Constitutional Holding: 5th & 6th Amendments Require All Facts
Essential to Punishment to be Proven Beyond a Reasonable Doubt (“BARD”)
Remedial Holding: Courts must consider the Guidelines, but are
not bound to apply them in every case. “Reasonableness Review”
U.S. Sentencing Commission Preliminary Quarterly Data Report
1st Quarter 2008
U.S. Sentencing Commission Preliminary Quarterly Data Report
1st Quarter 2008
U.S. Sentencing Commission Preliminary Quarterly Data Report
1st Quarter 2008
U.S. Sentencing Commission Preliminary Quarterly Data Report
1st Quarter 2008
0%
10%
20%
30%
40%
50%
60%
70%
WithinRange
UpwardDeparture
Bookerupward
GovtDownward
NGSDownward
D.D. wBooker
National
11th Cir.
MDFL
Rita v. United States127 S. Ct. 2456 (2007)
The Sixth Amendment allows “presumption” of reasonableness on appeal to a sentence that is imposed within the properly-calculated Guidelines range.
Not a district court presumption Assumes district court independently reviews
case and finds guideline sentence appropriate after consideration of § 3553(a) factors.
MINE RUN
Presumption ❝recognizes the real-world circumstance that when the judge's discretionary decision accords with the Commission's view of the appropriate application of § 3553(a) in the mine run of cases, it is probable that the sentence is reasonable.❞
11th Cir. Does Not Have Presumption
United States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005) (cited in Rita as an example of opinions rejecting presumption).
United States v. Hunt, 459 F.3d 1180, 1184 (11th Cir. 2006) (rejecting presumption of guideline applicability at district court level).
BUT: Would expect GL to be reasonable in BUT: Would expect GL to be reasonable in typical casetypical case
Gall v. United States, 128 S. Ct. 586 (2007)
QP: Whether a court of appeals may apply a “proportionality test,” and require that a sentence that constitutes a substantial variance from the Guidelines be justified by extraordinary circumstances.
“converse question” to Rita
Undisputed Facts: “A month or two” during college, distributed
ecstasy. > $30,000 Voluntarily withdrew graduated moved to Illinois, later Colorado 1 ½ year later questioned by DEA. Admits conduct 2 years after interview with DEA -- 3 ½ years after
withdraw from conspiracy -- indicted. Voluntarily surrenders Starts successful business while on pretrial release “small flood” of letters & character witnesses
Sentence: 36 mos. ProbationSentence: 36 mos. Probation
“Any term of imprisonment . . . would be counter effective by depriving society of the contributions of the Defendant”
Eighth Cir. Vacates SentenceEighth Cir. Vacates Sentence
“Proportionality test” : Sentence outside guidelines must be supported by justification “proportional” to the extent of the difference between the guideline and the sentence imposed.
Supreme Court: Reverses Eighth Supreme Court: Reverses Eighth Circuit.Circuit.
Proportionality Test Inconsistent with Booker
“[W]hile the extent of the difference between a particular sentence and the recommended Guidelines range is surely relevant, courts of appeals must review all sentences - whether inside, just outside, or significantly outside the Guidelines range, - under a deferential abuse-of-discretion standard.”
Gall v. United States – cont’d.Gall v. United States – cont’d.
Court must give “serious consideration” to extent of departure;
must “explain his conclusion that an unusually lenient or an unusually harsh sentence is appropriate in a particular case with sufficient justifications”
Gall v. United States – cont’d.Gall v. United States – cont’d.
Appellate courts may take degree of variance into account and consider the extent of a deviation.
Rejects requirement of “extraordinary” circumstances to justify a sentence outside the Guidelines range.
Gall Gall rejects mathematical formula
One-sided approach, as probation is always “100%” departure,
Gives no weight to probation or supervised release as “substantial restriction of freedom.” 128 S. Ct. at 595. See also id. at 596
Reaffirms no presumption in district court. 128 S. Ct. at 595.
Probation is “Substantial Restriction Probation is “Substantial Restriction of Freedom”of Freedom”
District Court: Not act of leniency strict reporting conditions alcohol and drug testing not able to change or make decisions about life
circumstances harsh consequences for violation
Supreme Court: “We recognize that custodial sentences are qualitatively more severe than probationary sentences. Offenders on probation are nonetheless subject to several standard conditions that restrict their liberty.” Id. at 595-96 (emphasis added).
Gall v. United States: Sentencing Procedure
Correctly calculate GL range GL “starting point and initial benchmark.” GL not only consideration. Give both parties the opportunity to argue
“for whatever sentence they deem appropriate
Consider “all of the § 3553(a) factors to determine whether they support the sentence requested by a party.”
May not presume the GL range reasonable.
Sentencing Procedure – cont’d.
Individualized determination based on facts. Consider extent of deviation from GL and
ensure that justification is sufficiently compelling to support variance. “We find it uncontroversial that a major
departure should be supported by a more significant justification than a minor one.”∙
“Adequately explain the chosen sentence to allow for meaningful appellate review and to promote the perception of fair sentencing.”
Appellate Review
Reasonableness = Abuse of DiscretionReasonableness = Abuse of Discretion All sentences, inside and outside GL range,
reviewed for abuse of discretion Ensure no significant procedural error
failing to calculate GL improperly calculating GL failing to consider § 3553(a) factors selecting a sentence based on clearly erroneous
facts failing to adequately explain the chosen sentence
including an explanation for any deviation from GL
Appellate Review – Cont’d.Appellate Review – Cont’d.
Substantive reasonableness totality of the circumstances extent of any variance
May, but is not required, to apply presumption of reasonableness to sentences within GL
May not apply presumption of unreasonableness to sentence outside Guidelines.
May consider extent of deviation, but must give deference District courts “institutional advantage”
GallGall Holding: Holding:
Eighth Circuit gave too little deference Too close to de novo review.
Sentence reflected “reasoned and reasonable decision that the § 3553(a) factors, on the whole, justified the sentence.”
Kimbrough v. United StatesKimbrough v. United States, , 128 S. Ct. 558 (2007)128 S. Ct. 558 (2007)
QP: Whether a sentence outside the guidelines range is per se unreasonable when it is based on a disagreement with the sentencing disparity for crack and powder cocaine offenses.
Crack vs. Powder
Same Active Ingredient Same physiological and psychotropic
effects but crack is absorbed faster, and
produces a shorter, more intense high. Old Guidelines: Crack sentences 3 -
6 times longer than powder sentences for offenses involving equal amounts of drugs (Now 2-5 times longer)
Unwarrated DisparityUnwarrated Disparity
Disparity "generally unwarranted" “fails to meet the sentencing
objectives set forth by Congress in both the Sentencing Reform Act and the 1986 Act."
No Empirical Support for Drug Weight as Proxy
Congress sought “to link the ten-year mandatory minimum trafficking prison term to major drug dealers and to link the five-year minimum term to serious traffickers.” 1995 Report 119.
1986 Act uses drug weight as “sole proxy to identify ‘major’ and ‘serious’ dealers.” Kimbrough, 128 S. Ct. at 566-67.
No Empirical Support for Drug Weight as Proxy
❝In the main, the Commission developed Guidelines sentences using an empirical approach based on data about past sentencing practices, including 10,000 presentence investigation reports. . . . The Commission did not use this empirical approach in developing the Guidelines sentences for drug-trafficking offenses. Instead, it employed the 1986 Act’s weight-driven scheme. ❞. . . .
❝ The crack cocaine Guidelines . . . do not exemplify the Commission’s exercise of its characteristic institutional role.❞
No Empirical Support for Drug Weight as Proxy
Gall, 128 S. Ct. at 586 n.2 United States v. Ennis, 468 F.Supp.2d 228
(D. Mass. 2006) “happenstance” “fortuitous”
Paul J. Hofer & Mark H. Allenbaugh, The Reason Behind the Rules: Finding and Using The Philosophy of the Federal Sentencing Guidelines, 40 Am. Crim. Law Rev. 19, 70-72 (2003). “important moral questions of culpability are
relatively neglected” “false precision”
Commission Repeatedly Commission Repeatedly Recommended Lessening DisparityRecommended Lessening Disparity 1995 1-to-1
http://www.ussc.gov/crack/exec.htm 1997 5-to-1
U.S.S.C. Special Report to Congress: Cocaine and Federal Sentencing Policy (Feb. 1995)
http://www.ussc.gov/r_congress/NEWCRACK.PD 2002 – 20-to-1
U.S.S.C. Report to Congress: Cocaine and Federal Sentencing Policy (May 2002)
http://www.ussc.gov/r_congress/02crack/2002crackrpt.htm
2007: U.S.S.C., Report to Congress: Cocaine and Federal Sentencing Policy (May 2007)
Commission’s 3 Major Problems with Disparity
(1) Based on "assumptions about the relative harmfulness of the two drugs" that "more recent research and data no longer support” Kimbrough, 128 S. Ct. at 568.
Commission’s 3 Major Problems with Disparity
(2) “inconsistent with" Congressional policy to punish major drug dealers more severely than low-level dealers.
“anomalous” result that “retail crack dealers get longer sentences than the whole-sale drug distributers who supply them the powder cocaine from which their crack is produced.”
Commission’s 3 Major Problems with Disparity
(3)"fosters disrespect for and lack of confidence in the criminal justice system because of a widely-held perception that it promotes unwarranted disparity based on race”
3553(a)(1)(A): respect for the law3553(a)(1)(A): respect for the law
Amendment 706Amendment 706
"modest amendment” “partial remedy” “Any comprehensive solution
requires appropriate legislative action by Congress.” 2007 Report.
“no higher than 20-to-1.”
KimbroughKimbrough: Holding: Holding
Under Booker, the cocaine Guidelines, like all other Guidelines, are advisory only.
Guidelines require “Respectful Consideration” (citing Gall)
“Array” of factors to consider Crack/powder disparity may be
considered “even in a mine-run case.”
DisparityDisparity Gov't: disparity created by sentencing “cliffs”
around threshold amounts and by the result of different sentences for similar crimes.
Court: sentencing courts must consider disparity, including “cliffs”
Booker requires some disparity 70% of crack offenders = base offense levels at
or 2 levels above man mins. “To reach an appropriate sentence, these
disparities must be weighed against the other § 3553(a) factors and any unwarranted disparity created by the crack/powder ratio itself.”
United States v. Stratton, 519 F.3d 1305 (11th Cir. 2008)
Reconsiders prior opinion rejecting crack/powder argument.
Kimbrough overruled United States v. Williams, 456 F.3d 1553 (11th Cir. 2006), which concluded that federal courts were "not at liberty to supplant [Congress's] policy decision" that "crack offenders should be punished more.”
In Kimbrough, the Supreme Court overruled Williams and determined that 'it would not be an abuse of discretion for a district court to conclude when sentencing a particular defendant that the crack/powder disparity yields a sentence 'greater than necessary' to achieve [18 U.S.C.] § 3553(a)'s purposes, even in a mine run case." 128 S. Ct. at 566 n.4, 575.
18 U.S.C. 3553(a) Factors18 U.S.C. 3553(a) Factors nature and circumstances of the offense history and characteristics of the offender seriousness of the offense Need to promote respect for the law just punishment General deterrence Specific deterrence correctional treatment The kinds of sentences available The GL Policy Statements Restitution Disparity
18 U.S.C. 3553(a)(2)(A) Just 18 U.S.C. 3553(a)(2)(A) Just PunishmentPunishment
Do Guidelines Provide Just Punishment?Do Guidelines Provide Just Punishment? Overstate criminal history?Overstate criminal history? Double-count criminal history?Double-count criminal history? Overstate seriousness of the offense?Overstate seriousness of the offense? Has Congress tinkered with Has Congress tinkered with
methodology?methodology?
18 U.S.C. 366118 U.S.C. 3661
““No limitationNo limitation shall be placed on the shall be placed on the information concerning the information concerning the background, character, & conduct” of background, character, & conduct” of the client. the client.
Prohibited FactorsProhibited Factors
U.S. v. Velasquez, U.S. v. Velasquez, --- F.3d ---, 2008 --- F.3d ---, 2008 WL 1776588 (11WL 1776588 (11thth Cir. Apr. 21, 2008) Cir. Apr. 21, 2008) Improper for court to sentence Improper for court to sentence
defendant based on disagreement with defendant based on disagreement with ICE decision allow bond.ICE decision allow bond.
3553(a)(2)(C) 3553(a)(2)(C) Protection of the Protection of the Public from your clientPublic from your client
Recidivism StudiesRecidivism Studies http://www.ussc.gov/publicat/
RecidivismSalientFactorCom.pdf ““A Comparison of the Federal Sentencing A Comparison of the Federal Sentencing
Guidelines Criminal History Category and the U.S. Guidelines Criminal History Category and the U.S. Parole Commission Salient Factor Score”Parole Commission Salient Factor Score”
http://www.ussc.gov/publicat/Recidivism_General.pdfhttp://www.ussc.gov/publicat/Recidivism_General.pdf ““Measuring Recidivism: The Criminal History Measuring Recidivism: The Criminal History
Computation of the Federal Sentencing Computation of the Federal Sentencing Guidelines”Guidelines”
3553(a)(2)(C) (Recidivism)– 3553(a)(2)(C) (Recidivism)– Cont’d.Cont’d.
AGEAGE Over 50 less likely Over 50 less likely United States v. ThomasUnited States v. Thomas, 360 F. Supp. 2d 238, 243 (D. , 360 F. Supp. 2d 238, 243 (D.
Mass. 2005) (. . . “at the time of his release in his late Mass. 2005) (. . . “at the time of his release in his late fifties or early sixties, will offer no danger to the fifties or early sixties, will offer no danger to the community.” )community.” )
Gender – women less likely than menGender – women less likely than men Marital StatusMarital Status Educational LevelEducational Level Employment StatusEmployment Status Criminal History PointsCriminal History Points
Length of Sentence – Recidivism Length of Sentence – Recidivism CorrelationCorrelation
3553(a)(2)(C) (Recidivism)– 3553(a)(2)(C) (Recidivism)– Cont’d.Cont’d.
Minimal Prior Imprisonment = lesser Minimal Prior Imprisonment = lesser sentence needed for deterrence. sentence needed for deterrence.
United States v. QuallsUnited States v. Qualls, 373 F. Supp. 2d 873, , 373 F. Supp. 2d 873, 877 (E.D. Wis. 2005).877 (E.D. Wis. 2005).
United States v. United States v. Rivera, 2006 WL 3432062 Rivera, 2006 WL 3432062 (S.D.N.Y. Nov. 29, 2006).(S.D.N.Y. Nov. 29, 2006).
United States v. BlackmondUnited States v. Blackmond, 2006 WL , 2006 WL 1676288 (S.D.N.Y. June 14, 2006).1676288 (S.D.N.Y. June 14, 2006).
Good Behavior Since OffenseGood Behavior Since Offense Positive life changesPositive life changes
Geographic DisparityGeographic Disparity
Illegal Reentry CasesIllegal Reentry Cases Fast TrackFast Track
Prior convictions treated differentlyPrior convictions treated differently 8 U.S.C. s 1326 / USSG 2L1.28 U.S.C. s 1326 / USSG 2L1.2 USSG 2K2.1USSG 2K2.1 Career OffenderCareer Offender
Carrying a Concealed Firearm = Carrying a Concealed Firearm = Career OffenderCareer Offender
Fast Track DisparityFast Track Disparity Defendants sentenced in districts without
authorized early disposition programs . . . can be expected to receive longer sentences than similarly-situated defendants in districts with such programs. This type of geographical disparity appears to be at odds with the overall Sentencing Reform Act goal of reducing unwarranted disparity among similarly-situated offenders.
U.S. Sentencing Comm'n, Report to Congress: Downward Departures from the Federal Sentencing Guidelines at 66-67 (Oct.2003), available at http://www.ussc.gov/departrpt03/departrpt03.pdf.
18 U.S.C. 3553(a)(6): Avoid 18 U.S.C. 3553(a)(6): Avoid Unwarranted DisparityUnwarranted Disparity
What is “Unwarranted”?What is “Unwarranted”? Congress Created Disparity?Congress Created Disparity?
Fast TrackFast Track United States v. Arevalo-Juarez, 464 F.3d 1246 (11th
Cir. Sept. 15, 2006). 55thth Cir: Cir: KimbroughKimbrough & & GallGall don’t change the fact don’t change the fact
that it’s not unwarrantedthat it’s not unwarranted. United States v. . United States v. Gomez-HerreraGomez-Herrera, --- F.3d ---, 2008 WL 886091 , --- F.3d ---, 2008 WL 886091 (5(5thth Cir. Apr. 3, 2008). Cir. Apr. 3, 2008).
See also U.S. v. Morales BravoSee also U.S. v. Morales Bravo, , 2008 WL 2008 WL 821066 (11821066 (11thth Cir. Mar. 28, 2008) (applying Cir. Mar. 28, 2008) (applying ArevaloArevalo without mentioning without mentioning KimbroughKimbrough).).
3553(a)(6): Unwarranted Disparity3553(a)(6): Unwarranted Disparity
Cooperators v. Non-CooperatorsCooperators v. Non-Cooperators United States v. JaberUnited States v. Jaber, 362 F. Supp. 2d 365, 381 , 362 F. Supp. 2d 365, 381
(D. Mass. 2005):(D. Mass. 2005): “[T]here is something troubling “[T]here is something troubling about the extent to which differences in about the extent to which differences in sentencing were driven not by differences in the sentencing were driven not by differences in the crime, but by the happenstance of the way the crime, but by the happenstance of the way the government indicted, the jurisdictions of government indicted, the jurisdictions of indictment, and who ran to cooperate first.”indictment, and who ran to cooperate first.”
United States v. AldridgeUnited States v. Aldridge, 413 F.3d 829, 835-36 , 413 F.3d 829, 835-36 (8th Cir. 2005)(8th Cir. 2005) (remanding a case for (remanding a case for resentencing after Booker because the district resentencing after Booker because the district court judge found that the cooperator was “the court judge found that the cooperator was “the older, wiser, and more culpable defendant,” but older, wiser, and more culpable defendant,” but felt constrained to impose a guideline sentence felt constrained to impose a guideline sentence on the non-cooperator)on the non-cooperator)
Career OffenderCareer Offender EnnisEnnis, 468 F.Supp.2d 228 (D. Mass. 2006), 468 F.Supp.2d 228 (D. Mass. 2006)
Not “Proportional” USSG 1A1.1Not “Proportional” USSG 1A1.1 20 year GL sentence same as max punishment for:20 year GL sentence same as max punishment for:
Sexual abuse 18 USC 2242Sexual abuse 18 USC 2242 Sexual exploitation of children 18 USC 2251Sexual exploitation of children 18 USC 2251 Enticement into slavery 18 USC 1583Enticement into slavery 18 USC 1583 Terrorism 18 USC 2322Terrorism 18 USC 2322 Torture 18 USC 1340ATorture 18 USC 1340A Kidnapping 18 USC 1201Kidnapping 18 USC 1201 Seditious ConspiracySeditious Conspiracy 18 USC 17518 USC 175 Biological Weapons 175(c)Biological Weapons 175(c)
GLs higher than selling someone in slave trade or GLs higher than selling someone in slave trade or transmitting secret national defense info.transmitting secret national defense info.
““Double counting” (same prior used for c.o. & Double counting” (same prior used for c.o. & 851)851)
15 Year Report15 Year Report
http://www.ussc.gov/15_year/15year.htmhttp://www.ussc.gov/15_year/15year.htm Overstates of risk of recidivismOverstates of risk of recidivism Racial disparities (“Fifteen Years of Racial disparities (“Fifteen Years of
Guideline Sentencing”)Guideline Sentencing”)
U.S. v. CaniU.S. v. Cani, --- F. Supp. ---, 2008 , --- F. Supp. ---, 2008 WL 435159 (M.D. FL. Feb. 14, WL 435159 (M.D. FL. Feb. 14,
2008)2008) .10 grams of heroin – “passed along” to .10 grams of heroin – “passed along” to
inmate.inmate. On street, BOL 12. In Prison, BOL 26.On street, BOL 12. In Prison, BOL 26. 14 levels higher than if on the street.14 levels higher than if on the street. 13 levels higher than mere possession13 levels higher than mere possession CAREER OFFENDERCAREER OFFENDER
GL = 262-327 months.GL = 262-327 months. Originally sentenced to 12 months; 11Originally sentenced to 12 months; 11thth Cir. Cir.
Reversed.Reversed.
U.S. v. CaniU.S. v. Cani – cont’d. – cont’d.
GLs Greater than Necessary; Do not GLs Greater than Necessary; Do not comply with 3553comply with 3553
““Low-level” offense; Low-level” offense; ““quite small” amountquite small” amount No evidence of smuggling inNo evidence of smuggling in
U.S. v. CaniU.S. v. Cani – cont’d. – cont’d.
Court troubled by c.i., serving life, Court troubled by c.i., serving life, who had previously given heroin to who had previously given heroin to Cani for personal use.Cani for personal use.
““transaction largely orchestrated by transaction largely orchestrated by the government”the government”
““construction of the transaction to construction of the transaction to include a distribution offense include a distribution offense augmented” penaltyaugmented” penalty
U.S. v. CaniU.S. v. Cani – cont’d. – cont’d.
Addiction -- Although prohibited under the Addiction -- Although prohibited under the Guidelines, appropriate under 3553(a)(1): Guidelines, appropriate under 3553(a)(1): history & characteristics of the defendant.history & characteristics of the defendant.
““By inviting Cani to participate in a By inviting Cani to participate in a transaction in close proximity to heroin, transaction in close proximity to heroin, the drug to which he is addicted, the the drug to which he is addicted, the Government exerted a sort of pressure on Government exerted a sort of pressure on Cani.”Cani.”
ALSO: Guard smuggled drugs in.ALSO: Guard smuggled drugs in. ““The Government should bear some The Government should bear some
responsibility”responsibility”
U.S. v. LivesayU.S. v. Livesay, 2007 WL , 2007 WL 18101895 (1118101895 (11thth April 23, 2008) April 23, 2008)
$1.4 Billion Fraud$1.4 Billion Fraud D cooperated earlyD cooperated early 5K1.1 – Court imposed Probation5K1.1 – Court imposed Probation Vacated by 11Vacated by 11thth Cir. Cir. D continued to cooperateD continued to cooperate Gov’t Rec’d 20 months (GL 78-97 Gov’t Rec’d 20 months (GL 78-97
mo)mo) Court reimposed ProbationCourt reimposed Probation
U.S. v. LivesayU.S. v. Livesay, - cont’d., - cont’d.
Procedural ErrorProcedural Error Considered factor not relating to 5K1.1Considered factor not relating to 5K1.1
Early withdrawal from conspiracy not related to Early withdrawal from conspiracy not related to cooperation. Court listed 3553(a) factors, but cooperation. Court listed 3553(a) factors, but “gave no reasoning or indication of what facts “gave no reasoning or indication of what facts justified such a significant variance from the justified such a significant variance from the advisory Guidelines range.”advisory Guidelines range.”
Compare to Compare to Talley, Scott, Robles, etc.Talley, Scott, Robles, etc. D. Ct. recused self from further D. Ct. recused self from further
proceedingsproceedings
United States v. PughUnited States v. Pugh, 515 F.3d , 515 F.3d 1179 (111179 (11thth Cir. 2008) Cir. 2008)
Vacates Probationary sentence for c.p.Vacates Probationary sentence for c.p. GL 97-120GL 97-120 First time offenderFirst time offender Not pedophileNot pedophile Low risk of recidivismLow risk of recidivism ““district court relied heavily on Pugh’s district court relied heavily on Pugh’s
history, characteristics and motive”history, characteristics and motive”
U.S. v. Pugh – cont’d.U.S. v. Pugh – cont’d.
Abuse of discretion: “firm conviction Abuse of discretion: “firm conviction that the district court committed a that the district court committed a clear error of judgment in weighting clear error of judgment in weighting the 3553(a) factors by arriving at a the 3553(a) factors by arriving at a sentence that lies outside the range sentence that lies outside the range of reasonable sentences dictated by of reasonable sentences dictated by the facts of the case.”the facts of the case.”
U.S. v. PughU.S. v. Pugh – cont’d. – cont’d.
““Utterly failed to promote general Utterly failed to promote general deterrence, reflect the seriousness of deterrence, reflect the seriousness of Pugh’s offense, show respect for the Pugh’s offense, show respect for the law, or address in any way the law, or address in any way the relevant Guidelines policy relevant Guidelines policy statements and directives.”statements and directives.”
Only 1 COA case upholding probation Only 1 COA case upholding probation in c.p. (1 year house arrest).in c.p. (1 year house arrest).
No supervised release also factorNo supervised release also factor
Pugh: Pugh: Focusing on “one” factor is a Focusing on “one” factor is a sign of an unreasonable sentence. sign of an unreasonable sentence.
““the nature and circumstances of the the nature and circumstances of the offense and the history and characteristics offense and the history and characteristics of the defendant,”of the defendant,”
First-time offender without a history suggesting he First-time offender without a history suggesting he would abuse childrenwould abuse children
Addicted to adult pornography and had sought Addicted to adult pornography and had sought treatmenttreatment
Not a pedophile and presented low risk of recidivismNot a pedophile and presented low risk of recidivism Complied with terms of pretrial releaseComplied with terms of pretrial release Possession was “passive” and “incidental” to true goal Possession was “passive” and “incidental” to true goal
of developing online relationshipsof developing online relationships D had taken steps to REPORT receipt of c.p. to AOL and D had taken steps to REPORT receipt of c.p. to AOL and
to his family.to his family.
Notice RequirementNotice Requirement
United States v. IrizarryUnited States v. Irizarry, 458 F.3d 1208, 458 F.3d 1208Given Given Booker,Booker, parties cannot claim unfair parties cannot claim unfair
surprise or inability to present informed surprise or inability to present informed comment-the Supreme Court's comment-the Supreme Court's concerns in concerns in BurnsBurns-when a district court -when a district court imposes a sentence above the imposes a sentence above the guidelines range based on the guidelines range based on the section 3553(a)section 3553(a) sentencing factors sentencing factors
Cert. grantedCert. granted
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