Sentencing Mitigation

Sentencing Mitigation and Beyond Principles of Booker that Works

• Though the Booker decision is not a panacea of relief it is nonetheless a successful tool in the arsenal of criminal defense work.
• Start with knowing what you can use to mitigate your plea or sentence.
• In the plea process it is not always good to have every issue regarding the guidelines stipulated to. If you can, leave as much open as possible especially if the issue is debatable. Of course if something is offered by the government that reduces your relevant conduct exposure stipulating to it in a plea agreement may be the right thing to do.
• The first priority is to object, object, and object, to enhancement applications under the guidelines. Since the guidelines are no longer mandatory judges are listening to old and new arguments and giving more credit to defense interpretations... Read More
  
  

Federal Sentencing Guidelines, The Importance of Objections

3rd Circuit outlines review of post-Booker sentences. The Third Circuit outlined how it will proceed to review sentences for reasonableness after U.S. v. Booker, 543 U.S. 230 (2005). First, the appellate court must be satisfied that the court exercised its discretion by considering the relevant sentencing factors in 18 U.S.C. §3553(a). The record must demonstrate the trial court gave meaningful consideration to the §3553(a) factors. The court need not discuss every argument made by a litigant if an argument is clearly without merit. The court is not required to discuss and make findings as to each of the §3553(a) factors if the records make clear the court took the factors into account in sentencing. A court is also not required to routinely state by rote that they have read the Booker decision or that they know the sentencing guidelines are now advisory. the appellate court must also determine whether those factors were reasonably applied to the circumstances of the case. While it is less likely that a "within-guidelines" sentence, as opposed to an "outside-guidelines" sentence will be unreasonable, the panel refused to adopt a rebuttable presumption of reasonableness for "within-guidelines" sentences. Defendants already bear the burden of proving the unreasonableness of sentences on appeal.
U.S. v. Cooper, 473 F.3d 324 (3rd Cir. 2006)... Read More

The Federal Sentencing Guidelines, A Troubling Historical Perspective

We have reached the precipice of 20 years of debate and dissent surrounding sentencing reform and the Federal Sentencing Guidelines. Numerous advocates for sentencing reform have pleaded their positions to Congress, to the bar, and to the public.² We have seen the devastating effects that mandatory minimum sentences and the death of judicial discretion have had on the huge increase in prison populations. In both state and federal prisons, the inmate population has increased from approximately 400,000 inmates in 1984 to an estimated 1.4 million at the beginning of 2004.³ While numerous reasons likely are behind this increase, the guidelines and the shift from judicial to prosecutorial discretion have had a significant impact on these numbers. No longer are judges able to address a defendant with full knowledge that the imposed sentence will be a just one. The guidelines channel concepts of mercy and humanity into a grid plotted by an accountant-like judge. What started as an admirable goal of eliminating disparities in sentencing procedures has been transformed by Congress into a tool that is used more often for political gain than for the realization of policy goals in sentencing. Since 1984, Article III has been pushed by the wayside, and the traditional role of judges as decision-makers has been legislated away. In its stead, we have prosecutors determining the fate of the accused. The recently enacted PROTECT Act and Attorney General John Ashcroft's memo to federal prosecutors may be the proverbial "straw that broke the camel's back."⁴ Thomas S. Kuhn, the author of The Structure of Scientific Revolutions, would recognize that the law is reaching a critical impasse: It is time for a "paradigm shift" in the way we think about sentencing.⁵...Read More

United States v. Booker: Where Are We Now?

IT HAS BEEN a long journey for the Supreme Court in deciding the best way to handle the Federal Sentencing Guidelines in sentences that include aggravating factors that a jury had not proved. The journey started back in 2000 with the decision handed down in Apprendi v. New Jersey,¹ when the Supreme Court held "other than the fact of a prior conviction any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt." From there it went to Ring v. Arizona, ² in which the Court reaffirmed the conclusion that a characterization of critical facts is constitutionally irrelevant, and that those matters of sentencing enhancements should be left for the jury to decide. Finally, in Blakely v. Washington,³ the Court dealt with a determinate sentencing scheme similar to the one provided in the Federal Sentencing Guidelines, again stating that a jury should determine any factor that increases a sentence using a standard of review based on reasonable doubt not on the preponderance of the evidence. There is no reason to relive all these cases and go through each of the details through which these cases espoused relief for those who were the subject of their review. Everyone is more than familiar with these cases, having tried to use them in support of more lenient sentences...Read More

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