Wednesday, March 01, 2006

Sentencing Is Hard Work

About this time last year, a Federal district court judge, in imposing a sentence under the new post-Booker advisory sentencing scheme, proclaimed what you might have thought would be obvious: post-Booker sentencing is going to require a lot more work from all involved - prosecutors, defense attorneys, probation officers, and judges. A year later, it seems to me that the Government has largely slipped out of shouldering its share of the load.

In the pre-Booker days, sentencing was very mechanical and legalistic in an overwhelming majority of cases. A probation officer would prepare a Presentence Investigation Report ("PSR") that set forth the defendant's offense(s) and related illegal conduct. Base offense levels would be calculated, enhancements and reductions recommended, and Criminal History Categories set. After the PSR was disclosed to the parties, each would submit objections. Some of the objections got resolved before sentencing, while others required judicial intervention. But once that issues were settled, the sentencing process largely went on autopilot. A Guideline sentencing range was announced and the district court imposed sentence. There was rarely any argument over which specific sentence within the range was appropriate and, once imposed, the length of the sentence itself was not subject to appeal. The work load at sentencing skewed to the defense, but was largely shared by all concerned.

Now, in a post-Booker world, things follow largely the same script, until you wind up with the sentencing range. Since those ranges are now only advisory (presumptions be damned), the parties now have to convince the district court about what particular sentence is appropriate. The district court then must impose a sentence that is "sufficient, but not greater than" necessary to achieve the Congressional purposes of sentencing and the appellate courts review the results. In short, where the process once went on autopilot, it now requires significant input from the parties.

Defense attorneys have, by and large, stepped up to the plate. Lengthy sentencing memos are filed, character witnesses are called, and sentencing hearings become more detailed affairs. You'd think the Government would become equally engaged and try to come up with similar methods to assist the district court.

Alas, such is not the case. In my experience, the Government makes exactly one argument at sentencing: "the advisory Guideline range in this case adequately reflects the nature of the offense and the defendant and a sentence within that range will fulfill the purposes of sentencing." In other words, ignore Booker, don't think about a specific sentence, and just deal with the Guidelines. What startles me is that the Government's argument doesn't change, even with the advisory sentencing range does.

I just filed a brief in a case in which the defendant pleaded guilty to being a felon in possession of a firearm. The PSR calculated a sentencing range of 24 to 30 months, largely based on an offense level increase because the defendant possessed the firearm in connection with another felony offense. The defendant objected to that adjustment, which would mean a lower sentencing range. The Government, in a bare-bones sentencing memo, just repeatedly asserted that a Guideline sentence would be appropriate. At sentencing, the district court upheld the defendant's objection, lowering the sentencing range to 15 to 21 months. When it came time to argue for a specific sentence, what was the Government's line? "Impose a Guideline sentence." No difference, in spite of the change in the range.

The Government is slavishly devoted to the Guidelines. The appellate courts, including the Fourth Circuit, are unfortunately enabling that devotion by declaring that Guideline sentences are presumptively "reasonable" and therefore OK. Maybe the defense bar should stage an intervention of some kind with the Government? At least then they'd shoulder some of the load we're carrying in the brave new post-Booker world.

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