REDUCED CRACK-COCAINE GUIDELINES UNDER FAIR SENTENCING ACT RETROACTIVE
EFFECTIVE NOVEMBER 1, 2011

Prisoners eligible for a reduction of their sentence under reduced crack-cocaine guidelines pursuant to the Fair Sentencing Act made retroactive June 30, 2011, can begin petitioning judges for a revised sentence beginning November 1, 2011. Thousands of defendants sentenced under the disparate and unfair 100:1 ratio of powder cocaine to crack cocaine are now eligible for consideration under the new 18:1 ratio.

Prisoners who used weapons during their crimes or have significant criminal histories will be eligible for review, but the judge has the discretion not to grant any relief. The presentation of meaningful information to the court for a reduction in the sentence for those who are eligible may be necessary to get the reductions particularly in these types of cases. Approximately 12,000 offenders are eligible for court review.

The reductions are not automatic. A lawyer is needed to file paperwork in court for the prisoner seeking a reduction, and it would have to be approved by the judge. Prisoners do not necessarily have to appear in court unless their case is unusual or more complicated, however prosecutors will also be allowed to weigh in on the request for the reduction.

AMENDMENTS TO THE SENTENCING GUIDELINES – Updated June 25, 2010

1. Alternatives to Incarceration – This amendment is a two part amendment expanding the availability of alternatives to incarceration. The amendment provides a greater range of sentencing options to courts with respect to certain offenders (drug abuse and/or mental illness) by expanding Zones B and C of the Sentencing Table by one level each and addresses cases in which a departure from imprisonment to an alternative to incarceration may be appropriate to accomplish a specific treatment purpose.

a) The amendment expands Zones B and C by one level for each Criminal History Category of the Sentencing Table in Chapter 5. Accordingly, under the amendment, defendants in Zone C with an applicable guideline ranch of 8-14 months or 9-15 months are moved to Zone B, and defendants in Zone D with an applicable guideline range of 12-18 months are moved to Zone C.

b) The amendment also clarifies certain cases where a departures may be appropriate, specifically amending §5C1.1 (Imposition of a Term of Imprisonment), application note 6 that a departure from the sentencing options authorized for Zone C to accomplish a specific treatment purpose where a defendant is a drug abuser or suffers from significant mental illness and the criminality is related to the treatment problem.

2. Specific Offender Characteristics –

a) Introductory Commentary – This amendment to Chapter 5 Part H to the Introductory Commentary addresses that although Booker and § 3553 requires the courts to consider the history and characteristics of the defendant, to avoid unwarranted sentencing disparities the court should not give them excessive weight. The amendment suggests using them not for a sentence outside the applicable guidelines range, but for other reasons, such as determining the sentence within the guideline range, the type of sentence (e.g. probation or imprisonment) and other aspects of an appropriate sentence.

b) Now Relevant

(1) Age § 5H1.1

(2) Mental and Emotional Condition § 5H1.3

(3) Physical Condition § 5H1.4

(4) Military Service § 5H1.11

3. Cultural Assimilation – An amendment to §2L1.2 specifically allows a downward departure for cultural assimilation. “Such a departure should be considered only in cases where

(A) the defendant formed cultural ties primarily with the United States from having resided continuously in the United States from childhood,

(B) those cultural ties provided the primary motivation for the defendant’s illegal reentry or continued presence in the United States, and

(C) such a departure is not likely to increase the risk to the public from further crimes of the defendant.

In determining whether such a departure is appropriate, the court should consider, among other things,

(1) the age in childhood at which the defendant began residing continuously in the United States,

(2) whether and for how long the defendant attended school in the United States,

(3) the duration of the defendant’s continued residence in the United States,

(4) the duration of the defendant’s presence outside the United States,

(5) the nature and extent of the defendant’s familial and cultural ties inside the United States, and the nature and extent of such ties outside the United States,

(6) the seriousness of the defendant’s criminal history, and

(7) whether the defendant engaged in additional criminal activity after illegally reentering the United States.”

4. Three Step Sentencing Process – The Commentary to §1B1.1 is amended to reflect the three step sentencing process, (1) to determine the guideline range, (2) to consider whether the case warrants a departure, “departure” being a term of art under the Guidelines; (3) to consider whether the case warrants a variance, “variance” referring to a sentence outside the guideline range other than as provided for in the Guidelines.

Most circuits agree on this three-step approach, but the Seventh Circuit has gone so far to state that departures are obsolete. United States v. Johnson, 427 F.3d 423 (7th Cir. 2006).

5. Recency – This amendment eliminates the “recency” points provided in subsection (e) of §4A1.1 (Criminal History Category). Under subsection (e), one or two points were added to the criminal history category if the defendant committed the instant offense less than two years after release from imprisonment on a sentence counted under subsection (a) or (b) or while in imprisonment or escape status. Under the Commission’s review, prompted because courts often cite criminal history issues as reason for deviating from the guidelines, this subsection was found to be only a minimally predictive indicator of recidivism.

6. Individual Rights and Hate Crimes – This amendment to § 2H1.1 is the

result of the two new offenses created by the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act.

a) The first new offense, 18 U.S.C. § 249, makes it unlawful, whether or not acting under color of law, to willfully cause bodily injury to any person or, through the use of fire, a firearm, a dangerous weapon, or an explosive or incendiary device, to attempt to cause bodily injury to any person because of the actual or perceived race, color, religion, national origin, gender, sexual orientation, gender identify, or disability of any person. Up to 10 years or up to life it the offense includes kidnapping, aggravated sexual abuse, or any attempt to kill, or if death results from the offense.

b) The second new offense, 18 U.S.C. § 1389 (Prohibition on attacks on United States servicemen on account of service), makes it unlawful to knowingly assault or batter a United States serviceman or an immediate family member of a United States serviceman, or to knowingly destroy or injure the property of such serviceman or immediate family member, on the account of the military service of that serviceman or the status of that individual as a United States serviceman. Varying degrees of punishment depending on conduct, 2 to 10 years.

7. Sentencing of Organizations –

a) The amendment amends the Commentary to §8B2.1 (Effective Compliance and Ethics Program) by adding an application note that clarifies the remediation efforts required to satisfy the seventh minimal requirement for an effective compliance and ethics program under subsection (b)(7). Subsection (b)(7) requires an organization, after criminal conduct has been detected, to take reasonable steps (1) to respond appropriately to the criminal conduct and (2) to prevent further similar criminal conduct. The new application note describes the two aspects of subsection (b)(7). With respect to the first aspect, the application note provides that the organization should take reasonable steps, as warranted under the circumstances, to remedy the harm resulting from the criminal conduct. The application note further provides that such steps may include, where appropriate, providing restitution to identifiable victims, other forms of remediation, and self-reporting and cooperation with authorities. With respect to the second aspect, the application note provides that an organization should assess the compliance and ethics program and make modifications necessary to ensure the program is effective. The application note further provides that such steps should be consistent with §8B2.1(b)(5) and (c), which also require assessment and modification of the program, and may include the use of an outside professional advisor to ensure adequate assessment and implementation of any modifications.

This application note was added in response to public comment and testimony suggesting that further guidance regarding subsection (b)(7) may encourage organizations to take reasonable steps upon discovery of criminal conduct. The steps outlined by the application note are consistent with factors considered by enforcement agencies in evaluating organizational compliance and ethics practices.

b) The amendment also amends subsection (f) of §8C2.5 (Culpability Score) to create a limited exception to the general prohibition against applying the 3-level decrease for having an effective compliance and ethics program when an organization’s high-level or substantial authority personnel are involved in the offense. Specifically, the amendment adds subsection (f)(3)(C), which allows an organization to receive the decrease if the organization meets four criteria:

(1) the individual or individuals with operational responsibility for the compliance and ethics program have direct reporting obligations to the organization’s governing authority or appropriate subgroup thereof;

(2) the compliance and ethics program detected the

offense before discovery outside the organization or before such discovery was reasonably likely;

(3) the organization promptly reported the offense to the appropriate governmental authorities; and

(4) no individual with operational responsibility for the compliance and ethics program participated in, condoned, or was willfully ignorant of the offense.

The new subsection (f)(3)(C) responds to concerns expressed in public comment and testimony that the general prohibition in §8C2.5(f)(3) operates too broadly and that internal and external reporting of criminal conduct could be better encouraged by providing an exception to that general prohibition in appropriate cases.

c) The amendment also adds an application note that describes the “direct reporting obligations” necessary to meet the first criterion under §8C2.5(f)(3)(C). The application note provides that an individual has “direct reporting obligations” if the individual has express authority to communicate personally to the governing authority “promptly on any matter involving criminal conduct or potential criminal conduct” and “no less than annually on the implementation and effectiveness of the compliance and ethics program”. The application note responds to public comment and testimony regarding the challenges operational compliance personnel may face when seeking to report criminal conduct to the governing authority of an organization and encourages compliance and ethics policies that provide operational compliance personnel with access to the governing authority when necessary.

G. Departures

1. Calculate the guidelines before Booker.

2. Motions for departures, courts must rule on them first.

3. Then incorporate 3553 factors to be considered.

Combine departures and variances if one is not enough. Departures are still under a heartland analysis even though Booker indicates the guidelines are not mandatory. However, using this analysis on departures you may be able to get a departure more readily than a variance. Using the departure and variance factors may be enough for a lesser sentence.

a) Departures require notice, variance applications, whether upward or downward, do not require notice. See United States v. Vanderwerfhorst, 576 F.3d 929 (9th Cir. 2009). But see United States v. Garcia-Robles, 562 F.3d 763 (6th Cir. 2009) (sentence was procedurally unreasonable because the district court failed to provide defendant with an opportunity meaningfully to address the district court’s chosen sentence above the guidelines).

b) Guidelines are not presumptively reasonable to district court. See United States v. Smith, 566 F.3d 410 (4th Cir. 2009).

c) Mere reference to 3553 factors is enough to avoid an inference of a presumption. See United States v. Boyce, 564 F.3d 911 (8th Cir. 2009).

The Sentencing Commission is trying to tie the variance to the guidelines by suggesting personal characteristics are to be used to determine where in the guidelines a sentence should fall.

H. 3553 Factors/Variances

1. The judge did not give reason for one month more than guideline range, remanded for resentencing. United States v. Grams, 566 F.3d 683 (6th Cir. 2009).

2. Variances can also be applied to conditions of confinement if you can prove the conditions were unusually harsh. See United States v. Turner, 569 F.3d 637 (7th Cir. 2009)(allowing without deciding the possibility).

3. The Sixth Circuit has determined that the District court does not have to explain whether an above guideline sentence was a departure or variance. See United States v. Herrera-Zuniga, 571 F.3d 568 (6th Cir. 2009). Other circuits do require this distinction since they both constitute different standards. This case discusses those differences.

5. Rehabilitation as Reason for Imprisonment or Longer Sentence –

a) The Sixth Circuit examined the conflict between § 3553(a)(2)(D) duty to consider the defendant’s need for “educational or vocational training, medical care, or other correctional treatment” and § 3582(a) admonition not to use imprisonment to promote correction and rehabilitation in United States v. Jimenez, 08-6435, 2010 WL 1993298 (6th Cir. May 20, 2010). The defendant contended that the district court used an impermissible factor to impose a longer-than-necessary sentence. The court held that the district court not permitted to consider rehabilitation in deciding whether to imprison a person, but permitted to consider it in imposing a longer sentence.

b) Some circuits have construed § 3582(a) as prohibiting the use of rehabilitation as a goal both in deciding whether to imprison and whether to impose a longer prison term. In re Sealed Case, 573 F.3d 844, 848-51 (D.C. Cir. 2009); United States v. Manzella, 475 F.3d 152, 156-61 (3d Cir.2007)United States v. Yehuda,238 Fed.Appx. 712, 713 (2d Cir. 2007)United States v. Tsosie,376 F.3d 1210, 1213-14 (10th Cir. 2004)United States v. Brown, 224 F.3d 1237, 1239 (11th Cir. 2000).

c) Others, including the Sixth Circuit, have construed § 3582(a) as barring the sentencing court from choosing prison, rather than a non-incarceration sentence, to promote rehabilitation, but allowing the court to select a longer prison term to promote rehabilitation. United States v. Jackson, 70 F.3d 874, 879-80 & n. 6 (6th Cir. 1995); United States v. Duran, 37 F.3d 557, 561 (9th Cir. 1994); United States v. Hawk Wing, 433 F.3d 622, 629-30 (8th Cir.2006); United States v. Giddings, 37 F.3d 1091, 1096-97 (5th Cir. 1994).

7. Guidelines Presumptively Unreasonable? – United States v. Dorvee, No. 09-0648 (2d Cir. May 11, 2010) expressly states that the child porn guideline, at §2G2.2, is beset with “irrationality” and that “unless applied with great care, [this guideline] can lead to unreasonable sentences that are inconsistent with what § 3553 requires.” Slip op. at 16, 19. The Dorvee opinion further explains that by “concentrating all offenders at or near the statutory maximum, §2G2.2 eviscerates the fundamental statutory requirement in § 3553(a) that district courts consider ‘the nature and circumstances of the offense and the history and characteristics of the defendant’ and violates the principle, reinforced in Gall, that courts must guard against unwarranted similarities among sentences for defendants who have been found guilty of dissimilar conduct.” Slip op. at 19. And the Dorvee opinion finishes up by reiterating that the child porn guideline is an “eccentric Guideline of highly unusual provenance which, unless carefully applied, can easily generate unreasonable results.” Slip op. at 21. The court held the defendant’s guidelines sentence of 233 months at the statutory maximum to be substantively unreasonable in light of the facts of the case.

***Use this case in other kinds of cases as well where the guidelines tend to concentrate defendants near the statutory maximum such as fraud cases where due to sizeable loss amounts, the fraud guidelines have a tendency to place many defendants in the life sentence range (and beyond).

8. Procedural Error, Harmless Error –

a) United States v. Wallace, 597 F.3d 794 (6th Cir. 2010) – the court held defendant’s sentence that was twice as high as her co-defendant who was more culpable to be procedurally unreasonable as unsupported by reasons and plain error.

b) United States v. Boulware, No. 09-5125 (4th Cir. May 11, 2010) – Although according to Booker and progeny, the district court must consider defendant’s §3553(a) reasons for a variance, the failure to do so may be harmless according to the Fourth Circuit.

c) There is a circuit split as to whether procedural error in sentencing can be harmless, plain, or effects substantial rights. Some circuits find the error automatic because it does not give the court of appeals the meaningful opportunity to review the sentence. United States v. Hirliman, 503 F.3d 212, 215 (2d Cir.2007); In re Sealed Case, 527 F.3d 188, 193 (D.C. Cir. 2008); United States v. Acevedo, 219 Fed. Appx. 828, 833 (10th Cir. 2007); United States v. Blackie, 548 F.3d 395, 402 (6th Cir. 2008). Other circuits examine what was presented at sentencing and allow plain and harmless error analysis. United States v. Whitelaw, 580 F.3d 256, 262+ (5th Cir. 2009).

I. EX POST FACTO GUIDELINES – CIRCUIT SPLIT

1. United States v. Sweeney, 08-cr-212, May 27, 2010 – Southern District of New York Judge Richard J. Holwell said the Constitution’s ex post facto clause — Article I, Section 9, Clause 3 — would be violated if Brennan Sweeney were sentenced to a longer prison term than the guidelines called for in 2003 when the FBI raided his apartment. Holwell held that “retroactive application of the guidelines increases poses a ‘significant risk of increased punishment.'” In October 2003, FBI agents found child pornography on Sweeney’s computers. Sweeney consented to an interview and admitted to possessing more than 1,000 images of children. The FBI seized his computers but inexplicably did not arrest Sweeney until March 2008. He pleaded guilty in May 2009 to possessing and distributing child pornography. The guidelines at the time of his confession called for a sentencing range of two years and three months to two years and nine months. But the current guidelines call for a much longer sentence — a range of six years and six months to eight years and one month.

2. United States v. Lewis, No. 09-4343 (4th Cir. March 27, 2010) – the Ex Post Facto Clause still limits the authority of district courts to rely on newer, more severe, now-advisory federal sentencing guidelines.

“Post-Booker, the courts of appeals have disagreed on whether the Ex Post Facto Clause prohibits a sentencing court from retroactively applying severity-enhancing Guidelines amendments. In United States v. Turner, the D.C. Circuit recognized this disagreement and ruled that such retroactive application contravenes the Ex Post Facto Clause. See 548 F.3d 1094, 1100 (D.C. Cir. 2008). Two years earlier, the Seventh Circuit had concluded, in United States v. Demaree, that the Ex Post Facto Clause does not bar retroactive application of severity-increasing Guidelines amendments. See 459 F.3d 791, 795 (7th Cir. 2006).”