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JUDGES’ HANDS NO LONGER TIED IN FEDERAL SENTENCING

When the federal Sentencing Guidelines were first implemented in the late 1980’s, federal judges quickly became frustrated with a new system that virtually tied their hands in terms of deciding an appropriate criminal sentence. Prior to the Guidelines, federal judges had wide discretion in imposing sentences on those who pled guilty or were convicted in federal court. The judges could take into consideration the full picture of the defendant – not only the crime he or she was charged with but also his or her family, background, education, and expression of remorse. The Guidelines dramatically changed that system, and set forth rather rigid – and mandatory — Guidelines. Whether the defendant had been accused of an intricate white collar financial fraud scheme, racketeering, drug distribution, or conspiracy to sell illegal weapons, the Guidelines left very few mechanisms for the judges to allow for any leniency or exceptions.

I remember when the Guidelines went into effect, my uncle, the late Norman P. Ramsey, Judge, U.S. District Court for the District of Maryland, never missed an opportunity to express his frustration – whether on the bench or at a family gathering. Were my uncle still alive, he would now be thanking the Supreme Court, which three years ago swung the pendulum back toward the pre-Guideline days.

In Booker v. United States, 125 S.Ct. 738 (2005), the Supreme Court ruled that the Federal Sentencing Guidelines are advisory provisions that recommend a particular sentencing range, rather than require it. Rather than simply impose a sentence within the recommended Guideline Range, a sentencing Judge must “consider the guideline range” but tailor the sentence in light of other statutory concerns as well,” particularly those set forth in 18 U.S.C. §3553(a). See Booker, 125 S.Ct. at 757. In the wake of Booker, the Fourth Circuit found plain error in a sentencing and remanded the case to the district court for re-sentencing, with the following instructions to the sentencing court:

Consistent with the remedial scheme set forth in Booker, a district court shall first calculate (after making the appropriate findings of fact) the range prescribed by the guidelines. Then, the court shall consider that range as well as other relevant factors set forth in the guidelines and those factors set forth in § 3553(a) before imposing the sentence. . . . If the court imposes a sentence outside the guideline range, it should explain its reasons for doing so.

United States v. Hughes, 2005 WL 147059, *3 (4th Cir. Jan. 24, 2005)(citations and footnote omitted). The Fourth Circuit noted that in light of the excision of § 3742(e) by the Supreme Court, it would affirm a sentence “as long as it is within the statutorily prescribed range . . . and is reasonable.” Id. (citations omitted).

Under 18 U.S.C. §3553(a), there are multiple factors to be considered in imposing a sentence. The Court must consider both:

• The history and character of the defendant@ and
• the Nature and circumstances of the offense@ including the Seriousness of the offense.@

Further, ‘ 3553 mandates that the Court impose a sentence that:

• promotes respect for the law,
• provides just punishment,
• protects the public from further crimes of the defendant,
• provides to the defendant necessary educational, medical or other correctional treatment in the most effective manner,
• avoids unwarranted disparities between similarly situated defendants, and
• allows for restitution to any victims of the offense.

Id. In considering these factors, and in imposing a sentence based upon them, Congress has directed that “the court shall impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth in paragraph (2) of this subsection.” 18 U.S.C. §3553(a).

Now that federal judges can take this entire litany of factors into consideration, defense lawyers are able to serve their clients much better. We can now present a full picture of the defendant to the judge. And, the judge now has the authority to listen, and to take such factors into consideration. Thanks to Booker, I was able to convince a federal judge to reduce a guideline sentence of 15-years, in Criminal History Category VI, to five years. For more information regarding this subject matter, please contact the author, former Assistant United States Attorney, and current federal criminal defense specialist Susan Amiot.

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