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Guidelines Case Analysis

By: dmc-admin//January 11, 2006//

Guidelines Case Analysis

By: dmc-admin//January 11, 2006//

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This opinion is probably the most thorough, post-Booker, to consider the various issues concerning discretionary departures.

Previous decisions, cited by the court for support, address narrow issues only. The decision thus makes a good blueprint for any attorney working on a discretionary departure issue.

First, the case makes clear that, at the trial level, the defendant must raise an explicit reasonableness challenge, even if he unsuccessfully argued for a discretionary downward departure. Failure to do that will result in forfeiture of the reasonableness argument.

Second, post-Booker, the refusal of the district court to grant a discretionary downward departure is no longer barred on jurisdictional grounds, but is “obsolete,” because the Guidelines are not mandatory.

Common sense would suggest that, if downward departures are obsolete, then there is no reason to ask for them in the trial court.

However, other circuits have not abandoned them. The Second Circuit, for example has held that the jurisdictional bar on reviewing a discretionary downward departure survives Booker. U.S. v. D’Oliveira, 402 F.3d 130, 133 (2d cir. 2005). Implicit in this holding is that defendants can still request discretionary departures in the district court.

Until the proper treatment of discretionary downward departures is ultimately resolved, it is wise for defense counsel to raise any argument for a sentence below the guidelines in terms of both reasonableness and downward departures.

The interplay of the court’s discussion of the amendment to the guidelines, and the lower sentences of the co-defendants, is also noteworthy.

Several co-conspirators withdrew shortly before the Nov. 1, 2001 amendments — which almost doubled the guideline range for fraud — and thus received much lower sentences; the vast majority, but not all, of Vaughn’s activities also took place before the change, but he was sentenced within the higher range.

Instead of agreeing with Vaughn, however, that this is a reason for a sentence below the guidelines, the district court stated that he would likely have imposed a sentence greater than the guideline range, had all of Vaughn’s conduct happened to occur before the amendment.

However, it does not appear that that is what happened to the co-defendants; they apparently were sentenced in accordance with the 2000 guidelines, sans an upward departure of any kind.

Related Links

7th Circuit Court of Appeals

Related Article

Amendment does not affect reasonableness

One reason the district court gave for not imposing a lower sentence was Vaughn’s significant criminal record. Presumably, however, this was accounted for in the calculation of his criminal history, and thus is not relevant to whether his offense level, and thus, the ultimate sentence, is arbitrarily longer than that of his co-defendants.

A goal of the guidelines is uniformity. It is true that, where sentences are disparate because of proper calculation of the guidelines, there is no unfair disparity in the legal sense.

However, where the disparity is wholly the result of an amendment to the guidelines, and it affects some co-conspirators but not others, merely because the latter withdrew from the conspiracy a short while earlier, a good argument can still be made in the district court for a lower sentence, even if the decision in the case at bar will foreclose appeal if that argument is unsuccessful.

– David Ziemer

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David Ziemer can be reached by email.

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