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Defense Lawyers Must Prepare for Federal Sentencing

By: Houston Criminal Defense Lawyer John Floyd and Paralegal Billy Sinclair

The United States Supreme Court in 1996 held that federal district court judges had discretion to depart from the recommendations of the U.S. Sentencing Guidelines. See: Koon v. United States, 518 U.S. 91, 98 (1996).

Some of these judges – many of whom were placed on the federal bench during the 12-year presidential reign of Ronald Reagan and George W. Bush because they shared the politically conservative views of judges like Robert Bork and Clarence Thomas – viewed Koon as a judicial license to enhance criminal sentences as part of the Republicans’ “war on crime.” See: United States v. Weisser, 417 F.3d 336, 346 (2nd Cir. 2005) [reversal of a district court judge’s sentence based upon multiple enhancements including a 13-level increase in the offense level and a three-level increase in the criminal history level].

Nine years after Koon – a case involving one of the Los Angeles police officers convicted in the infamous “Rodney King” freeway beating – the Supreme Court handed down United States v. Booker which limited the discretion of federal judges to enhance sentences by ruling that the Guidelines are advisory, not mandatory. See: 543 U.S. 220, 245-46 (2005).

Booker instructed federal judges that in sentencing matters they could only consider facts for enhancement that are: (1) reflected in the jury verdict; (2) admitted by the defendant; (3) contained in the defendant’s guilty plea; or (4) pertain to a prior conviction. Id. Beyond these factors, the jury had to find facts true beyond a reasonable doubt to warrant
enhancement. Id.

Two terms later the Supreme Court reinforced Booker with two strong sentencing decisions. First, in Rita v. United States the court held that any sentence imposed consistent with the Booker rule had to be presumed “reasonable” when reviewed on appeal by the federal appellate courts. See: 127 S.Ct. 2456, 2463 (2007).
Second, in Gall v. United States the court held that federal appellate courts must apply the deferential “abuse-of-discretion” standard when reviewing sentences on appeal – even those imposed within the Guidelines. See: 128 U.S. 586, 589-90 (2007). Put simply, “the fact that the appellate court might have reasonably have concluded that a different sentence was appropriate is insufficient to justify reversal.” Id. The court, however, added the caveat that a “major departure” – such as the one rejected by the Second Circuit in Weisser – “should be supported by a more significant justification than a minor one.” Id.

The First Circuit made this point quite clear in United States v. Zapete-Garcia when it reversed a district court sentence enhanced eight times the maximum sentence recommended by the Guidelines. See: 447 F.3d 57 (1st Cir. 2006). The First Circuit outlined the facts of Zapete as follows:

“In October 2004, Dionisio Zapete-Garcia (Zapete) disembarked from an airplane in Isla Verde, Puerto Rico. The flight had originated in the Dominican Republic. On arrival, Zapete presented United States immigration officials with an American permanent resident card bearing his own photograph and the name Vetilio E. Fajardo. Upon questioning, Zapete admitted that he had obtained the card fraudulently, paying approximately $1,500 for it. Federal Immigration and Customs Enforcement records revealed that Zapete had been deported from the United States twice previously, once in 1985 and once in 1987.

”That December, Zapete pleaded guilty to one count of knowingly using or attempting to use a forged, counterfeit, or altered immigration document in violation of 18 U.S.C. § 1546(a). His sentencing hearing took place on February 4, 2005 in the District Court for the District of Puerto Rico. The district judge, following the recommendation of the Pre-Sentence Investigation Report (PSR), began his calculations under the federal Sentencing Guidelines with a base offense level of 8. He then added two levels because Zapete was an unlawful alien who had previously been deported from the United States ( U.S.S.G. § 21.2(b)(1)) and subtracted two levels for acceptance of responsibility (§ 3E1.1), arriving at a total offense level of 8. Because Zapete had never before been convicted of any offense, the court determined his criminal history category to be I. The total offense level combined with the criminal history category yielded a recommended guidelines sentencing range of zero to six months. The district judge, however, after reminding the parties that [Booker] had rendered the guidelines advisory rather than mandatory, sentenced Zapete to 48 months in prison, eight times the maximum guideline-recommended sentence. As explanation for the sentence he chose, the judge stated:

“’The Court imposes this sentence based on the following factors. As it appears from the presentence report . . . this defendant has already been deported twice from the United States. He had been deported back in October of 1985 and August of 1987. It also appears from the presentence report that he was arrested on November 14, 1991, in New York City, charged with criminal possession of controlled substance, narcotics, a Class A Felony, and with criminal possession of a weapon, which is a Class D Felony. And since 1992 a bench warrant [that] has been issued for his arrest remains outstanding. For those reasons the Court imposes the sentence that it has imposed.’” Id., at 58-59 [internal citations omitted].

The district judge offered two reasons for enhancing Zapete’s sentence eight times that recommended by the Guidelines. First, the judge pointed out that Zapete had twice deported from the United States, and, second, Zapete had a prior arrest in New York years earlier and had an outstanding bench warrant against him. Id., at 60. The First Circuit addressed, and rejected, both of these factors:

“The first factor, Zapete’s previous deportations from the United States, was already accounted for in the guideline calculation: the PSR recommended, and the judge adopted, a two-level increase applicable to a defendant who ‘is an unlawful alien who has been deported (voluntarily or involuntarily) on one or more occasions prior to the instant offense.’ U.S.S.G. § 2L2.2(b)(1). When a factor is already included in the calculation of the guidelines sentencing range, a judge who wishes to rely on that same factor to impose a sentence above or below the range must articulate specifically the reasons that this particular defendant’s situation is different from the ordinary situation covered by the guidelines calculation. The judge in this case provided no such explanation. We do note that the two-level guideline enhancement in § 2L2.2(b)(1) applies to any unlawful alien defendant who has previously been deported at least once; the guideline does not recommend a steeper enhancement for defendants who have been deported multiple times. It is not necessarily unreasonable for a judge to increase the sentence of a defendant who had previously been deported more than once, and indeed Zapete had been deported twice. However, although some amount of increase for multiple violations might be reasonable if supported by an explanation, here there was no explanation for an increase of such magnitude. In any event we cannot say that one additional prior deportation reasonably warrants an eightfold increase in punishment.

“The second factor relied upon by the district judge to enhance the sentence, Zapete’s arrest in New York City in 1991 and the accompanying outstanding bench warrant, is also unpersuasive to support the magnitude of the increase. To begin with, the guidelines contain a policy statement that allows sentencing courts ‘to consider “prior similar adult criminal conduct not resulting in a criminal conviction”’ but prohibits them from basing an upward departure solely on a defendant’s prior arrest record. Although this policy statement is no longer binding, one of the seven statutory factors a judge must consider in sentencing is ‘any pertinent policy statement issued by the Sentencing Commission.’ 18 U.S.C. § 3553(a)(5). Therefore, while not controlling, the policy statement prohibiting reliance solely on arrest records must be duly considered by the district judge. There is no evidence that the judge in this case did so.” Id., at 60.

The Eighth Circuit, on the other hand, chose to misread the Booker mandate, particularly with respect to the district court judge’s enhancement authority. See: United States v. Thorpe, 447 F.3d 565 (8th Cir. 2006). See also our previous articles discussing the Eighth Circuit’s repeated conflicts with Supreme Court following Booker: Floyd, John T. and Sinclair, Billy, “Judicial War Over Crack Sentencing Comes to an End” (Jan. 30, 2009); Floyd, John T. and Sinclair, Billy, “The Judicial Wars Invoked by Crack Sentencing,” (Oct. 24, 2008): https://www.johntfloyd.com.

The Eight Circuit in Thorpe reviewed a 180-month sentence imposed for crack cocaine distribution and possession of firearm convictions. The government presented evidence that Thorpe was a member of the Murdertown Gangsters, had an extensive criminal history, and was a major drug dealer. Believing the district court judge had imposed a sentence too lenient based on the quantity of drugs allegedly distributed by Thorpe, the Government appealed. The Eighth Circuit responded in defiance of the Booker rule that any factor that enhanced a defendant’s sentence had to be established beyond a reasonable doubt:

“The government argues that the district court erred in sentencing Thorpe based on the drug quantity found by the jury beyond a reasonable doubt instead of on the amount proved by a preponderance of the evidence.

“Judicial fact-finding based upon a preponderance of the evidence standard is permitted in sentencing provided that the guidelines are applied in an advisory manner. [citing Booker]. If the district court fails to recognize that it has this authority, we will remand for resentencing unless the beneficiary of the error demonstrates that the error was harmless, such as when the district court would have imposed the same sentence absent the error. As recounted above, the district court read Booker to require the application of a beyond-a-reasonable-doubt standard of proof to drug quantity determinations. Because, as the probation officer’s comment in the PSR suggests, the guidelines calculation might well have been different had the district court realized that, as explained in our post-Booker decisions, it could constitutionally find Thorpe accountable for a drug quantity greater than that found by the jury. Thorpe has failed to demonstrate that the district court’s error was harmless.

”The government also argues that the district court erred in the extent of its departure from the guidelines range in imposing Thorpe’s sentence on Count I. We need not address this issue, however, in light of our remand for resentencing.
”We affirm the conviction, vacate the sentence, and remand to the district court for a determination of the drug quantity under a preponderance of the evidence standard and for the imposition of a sentence commensurate with the drug quantity determination.” Id., at 568-69 (internal citations omitted]. See also: United States v. Carter, 449 F.3d 1289, 1298 (D.C. Cir. 2006) [In determining the quantity of drugs attributable to a defendant, sentencing judge must point to evidence sufficient to support his/her findings].

In the wake of Booker, the Fifth Circuit dealt with two cases involving the opposite extremes in departure: downward and upward. In the downward departure case, United States v. Castillo, the Fifth Circuit held that a sentencing judge’s anger toward a government prosecutor was not a legitimate basis for imposing a more lenient sentencing than recommended by the Guidelines. See: 430 F.3d 230 (5th Cir. 2005). The appeals court stated the facts in Castillo as follows:

“On September 9, 2003, five days before Castillo was scheduled to be sentenced, Castillo filed a sentencing memorandum and motion to file this pleading under seal.’ In this memorandum, Castillo argued that the district court should depart downward from the sentencing range established by the Guidelines for two reasons. First, he contended that the district court should depart downward because of a disparity between how the government rewarded him for his cooperation versus how it rewarded Lipit for his cooperation. According to Castillo, both he and Lipit cooperated with the government, but only Lipit stood to receive a motion for downward departure by the government as a result of that cooperation. Second, Castillo moved for a downward departure under U.S.S.G. § 5H1.4 because he was HIV-positive, which, in his view,

constituted an extraordinary physical impairment. The sentencing memorandum noted that Castillo had been HIV-positive since 1993, had Hepatitis C, and suffered from muscle soreness and a groin rash. Castillo also noted in his sentencing memorandum that ‘the probation officer had submitted to the Court a confidential document describing Mr. Castillo’s condition.’ In fact, the PSR’s Second Addendum noted that ‘a confidential page to the PSR’ describing Castillo’s condition had been submitted to the court under Fed.R.Crim.P. 32(c)(3)(A). Specifically, in a sealed enveloped attached to Castillo’s sentencing memorandum was a two-page document entitled ‘Information Excluded From the Presentence Report Pursuant to Rule 32(c)(3)(A) F.R.C.P.’ According to the government, this document was never disclosed to it.

“On September 15, 2003, the day of sentencing, the government filed its response to Castillo’s sentencing memorandum. The government did not file its response under seal. In its response, it stated that Castillo had not provided the government with substantial assistance, and it argued that Castillo’s HIV-positive status was not, in and of itself, an appropriate basis for a downward departure under U.S.S.G. § 5H1.4. Unbeknownst to the government, its response to Castillo’s sentencing memorandum, along with Castillo’s sentencing memorandum, were both sealed by the district court. Although the district court had issued a separate order sealing Castillo’s motion for continuance based on cooperation, it did not issue an order sealing either his sentencing memorandum or the government’s response. According to the government, it never knew that either its response or Castillo’s sentencing memorandum was filed under seal.

”Later in the day on September 15, the district court held its sentencing hearing for Castillo. The court, adopting the PSR, first found that Castillo’s total offense level was twenty-nine, his criminal history category was I, and the applicable Guidelines range was 87-108 months imprisonment. The district court then asked Castillo’s lawyer to speak on her client’s behalf. She replied that she wanted to discuss the issues raised in her sentencing memorandum but did not want to ‘go into all the detail that’s in there, given that I filed it under seal.’ Then, after discussing Castillo’s cooperation with the government, she began to discuss Castillo’s ‘condition.’ The court inquired if drugs were available at the detention center for Castillo, and Castillo’s lawyer, citing her sentencing memorandum, responded that ‘the very nature of jail conditions is dangerous for a person in his situation.’ The court then asked whether Castillo was ‘currently ill or not currently ill.’ Castillo’s attorney replied that Castillo’s medical records were ‘pretty vague,’ that Castillo had ‘muscle aches and the persistent rash that may or may not be related to his condition,’ and then said ‘I don’t know.’ She also told the court that ‘I can’t say to the court that he qualifies.’ The court then asked additional questions about the availability of medications for Castillo, and Castillo’s lawyer once again said that ‘my real argument is that in his current condition, he should qualify for a downward departure given his increased susceptibility in the jail.’ After Castillo’s counsel finished discussing Castillo’s medical condition, Castillo addressed the court and asked for forgiveness.

”After Castillo addressed the court, the prosecutor began his presentation, stating first that Castillo had not yet provided the government with substantial assistance. The court then told the prosecutor that it did not understand the government’s written response to the motion for downward departure on health grounds and asked for clarification on the government’s position. The following exchange ensued:

“’[The prosecutor]: My entire point–and she’s right, I couldn’t find any Fifth Circuit law on this particular point and so basically what I did was I went to the other circuits, as did she, and in my citation to the United States v. Johnson [sic United States v. Rabins], the Eighth Circuit case–it’s cold and it’s difficult for me to stand beside Mr. Castillo knowing his physical condition and the sympathy that I have for him, but the fact of the matter is, this isn’t the first time in the country that this has happened and they use terms like “full-blown AIDS” and “advanced AIDS” literally in the cases–

”THE COURT: Well, you’re the first person who said that and you know this is filed under seal. So, why would you do that in this courtroom?
[The prosecutor]: My apologies. I did not know that.
THE COURT: Yes, you did know that.
[The prosecutor]: Well, I received a faxed copy from–
THE COURT: No one has said that except for you today. No one has said that except for you.
[The prosecutor]: My apologies. It was not–it was thoughtless and–
THE COURT: It was completely unnecessary, thoughtless, and rude. Y’all have a seat. I’m going to come back to you.” Id., at 233-35 [emphasis added].
After this exchange, the sentencing judge granted Castillo’s request for a downward departure and imposed a 57-month sentence. The judge stated for the record the following basis for his departure:

“’Although it is not clear to the Court the exact current medical status of [Castillo’s] condition, that is, whether he is HIV positive or he has AIDS, the Court is taking that condition into consideration specifically in this case in determining that a downward departure should be granted for two reasons. One, the Court is departing downward under 5H1.4 based on the Court’s finding that he has an extraordinary medical condition.

”’The Court is additionally departing downward under 5K2.0, finding that counsel’s action this morning deliberately placed the defendant in danger of–in possible danger and repercussions from fellow prisoners, in that counsel disclosed in the presence of other persons incarcerated with this defendant the nature of the defendant’s HIV status, suggesting even the possibility that he might have full-blown AIDS, in a manner that the Court believes is designed to potentially impact his Eighth Amendment rights. And that could place the defendant in unnecessary danger and subject him to needing additional protection, and that a departure on that basis is warranted to avoid any failure to protect issues that might arise from the unauthorized disclosure of his medical condition to other prisoners who were in the courtroom this morning.’” Id., at 236.

The sentencing judge also attached a “written statement of reasons” for his downward departure. In addition to finding Castillo had an “extraordinary physical condition,” the judge also found that the government attorney was “malicious and deliberate” in disclosing the defendant’s confidential medical condition. The judge added this confidentiality breach put Castillo in “dangerous and repercussion from fellow inmates which warrants special prison protection.” Id., at 237. The Fifth Circuit then addressed, and concluded, that the judge had abused his discretion in departing on these grounds:

“ … We conclude that the district court’s factual finding–that the prosecutor deliberately and maliciously made comments that endangered the defendant’s safety–is wholly unsupported by the record and is clearly erroneous. To begin with, nothing in the record suggests that the defendant was ever endangered. To the contrary, the government, in its brief on appeal, argues that the public disclosure of Castillo’s HIV-positive status would make him less likely to be the victim of a physical attack in prison because other inmates would want to avoid possible exposure to his bodily fluids.

”Regardless of whether the government’s argument is correct, the fact remains that the record contains not a shred of evidence suggesting that the disclosure of Castillo’s HIV-positive status would endanger his safety, and the district court never explained how it knew that the prosecutor’s comments would lead to such danger. The district court also did not order the Bureau of Prisons to take any special security precautions with respect to Castillo’s incarceration, which suggests that it was not overly concerned about his safety. Accordingly, because the district court’s factual finding that the prosecutor endangered Castillo leaves us with a definite and firm conviction that a mistake has been made, it is clearly erroneous.

”The district court’s factual finding that the prosecutor deliberately and maliciously disclosed Castillo’s HIV-positive status is also clearly erroneous. No rule in the Southern District of Texas prohibits a prosecutor from disclosing or discussing a defendant’s HIV-positive status at sentencing. Furthermore, the district court never ordered confidentiality at sentencing or took any steps to preserve confidentiality at sentencing (such as holding an in camera sentencing hearing or sealing the courtroom). Likewise, the district court never ordered that the parties refrain from mentioning Castillo’s HIV-positive status. The only rule pertaining to the disclosure of Castillo’s HIV-positive status that is potentially applicable to the present case is Fed.R.Crim.P. 32(d)(3), which prohibits the probation officer from including certain confidential information in the PSR. In accordance with this rule, the probation officer filed information about Castillo’s medical condition under seal. This rule, however, imposed no obligations whatsoever on what the prosecutor could say at sentencing. Moreover, the prosecutor in the present case claims that he did not even know about the sealed information from the probation officer. When the prosecutor filed his response to Castillo’s sentencing memorandum (discussing Castillo’s HIV-positive status), he did not file it under seal, and the district court did not issue an order sealing it. Finally, certain statements made by the district court relating to its factual finding that the prosecutor acted deliberately and maliciously–e.g., its statement that the prosecutor said that Castillo ‘might have full-blown AIDS, which is a direct violation of the confidential nature of this type of disclosure”–are factually false (e.g., the prosecutor never said that Castillo might have full-blown AIDS).” Id., at 243-44.

In the upward departure case, the Fifth Circuit in United States v. Jones confronted a case where the Guidelines recommended a sentence in the range of 46 to 57 months for a guilty plea conviction of a felon in possession of a firearm. See: 435 F.3d 541, 542 (5th Cir. 2006). Jones did not object to the PSR calculated Guidelines sentence. The sentencing judge elected to depart upward and sentenced Jones to the statutory maximum of 120 months. The sentencing judge justified the upward departure by pointing out that Jones was driving the car and was in possession of and under the influence of drugs at the time of the offense. Id. The judge felt this behavior aggravated the offense because it put the public at risk. The judge also alluded to two state offenses involving guns that occurred after the federal offense and during which Jones reportedly “used [the guns] in personal violence.” Based on Jones’ history of using guns, committing violence against others, and risk caused to society by the federal offense, the sentencing judge departed upward seven levels to a “guideline range of 97 to 121 months of imprisonment.” Id.

Jones objected to the sentence on the basis that the sentencing judge had relied upon facts not proven beyond a reasonable doubt or admitted to by him. The sentencing judge overruled the objection and the Fifth Circuit upheld the sentence on appeal. The appeals court did not reject, as the Eighth Circuit did in Thorpe, the proof beyond a reasonable doubt standard for a post-Booker upward departure but applied the harmless error rule to any error, if any, committed by the sentencing judge:

”Jones argues that the district court violated his Sixth Amendment rights under Booker when it based its upward departure, at least in part, on judicially found facts. Jones’ objection to the upward departure in the district court preserved this challenge. ‘If either the Sixth Amendment issue presented in Booker or the issue presented in Fanfan is preserved in the district court by objection, [this court] will ordinarily vacate the sentence and remand, unless we can say the error is harmless under Rule 52(a) of the Federal Rules of Criminal Procedure.’ The government bears the burden of demonstrating that the error was harmless by demonstrating beyond a reasonable doubt that the Booker error did not contribute to the sentence he received. In other words, the government must point to evidence in the record showing that the district court would have imposed the same sentence under an advisory sentencing scheme.’

”In several unpublished opinions, we have found harmless error in cases in which the district judge expressly stated that it would impose the same sentence under an advisory system or expressed disappointment that the statutory maximum sentence that it imposed was not greater. Although the record in this case does not include similar explicit statements as to what the district court would do under an advisory scheme, it does contain other evidence that the district court would have imposed the maximum statutory sentence under either a mandatory or advisory guideline scheme.

”The district court ordered an upward departure in Jones’ case under the authority of U.S.S.G. § 5K2.0. The decision to depart from a guideline sentence ‘embodies the traditional exercise of discretion by the sentencing court.’ U.S.S.G. § 5K2.0 [citing Koon]. A court has substantial discretion under the guidelines to depart from the recommended guideline range. In other words, an upward departure is in no sense mandatory. Booker only struck down the mandatory application of the guidelines when calculations were based on facts not found beyond a reasonable doubt by a jury or admitted by the defendant. As the facts relied on by the district court in making the upward departure were not applied to a mandatory provision of the guidelines, there is arguably no Booker error.

”Whether exercise of a court’s discretion to depart upward is a decision made under a ‘mandatory Guidelines regime,’ as needed for Booker error, is a matter of some uncertainty.

”We need not decide that question, because even assuming that Jones can establish Booker error under these circumstances, we find any error to be harmless. There is no argument that the mandatory nature of the guidelines affected the district court’s sentencing decision in any way. The district court properly calculated Jones’ guidelines sentence, without objection from Jones, and then exercised its discretion to depart from the sentence that would result from a mandatory application of the guidelines. Jones’ only argument under Booker is that the district court’s use of judge found facts to support the upward departure violates Booker and Blakely. He makes no argument of Booker error in relation to the calculation of the base mandatory guideline sentence.

”In this aspect, this case is distinguishable from a similar case decided by the Seventh Circuit. In United States v. Burke, 425 F.3d 400, 416-17 (7th Cir. 2005), the Seventh Circuit found the government failed to establish harmless error from alleged Booker error as to a sentence that included an upward departure. Burke had been convicted of perjury. The guidelines directed the district court to apply the guideline relevant to the criminal offense with respect to which the defendant gave false testimony. The court stated that the guidelines directed it to apply a certain cross-referenced guideline that triggered additional enhancements. The district court then upwardly departed because the criminal history category under-represented Burke’s criminal past and likelihood of recidivism. The court sentenced Burke in the middle of the range resulting from the increased criminal history category and the enhanced offense level. Burke argued that his sentence violated Booker, without limiting his argument to the upward departure as does Jones. Because the district court’s calculation of Burke’s base guideline sentence, including the cross-referencing guideline and several enhancements, was affected by a mandatory application of the guidelines, the Seventh Circuit found that the government had not established that the district court would have imposed the same sentence had the guidelines been merely advisory. Our case differs in two material respects – the nature of the defendant’s Booker challenge to his sentence and the fact that the district court in Jones’ case upwardly departed to the statutory maximum sentence.

”The district court imposed the upward departure because Jones’ case did not involve the mere possession of a firearm by a convicted felon. The departure reflected the court’s concern with the seriousness of Jones’ weapon possession while under the influence of drugs and his pattern of actually using weapons that he possessed. These are appropriate factors for an upward departure and Jones does not assert otherwise. U.S.S.G. § 5K2.0(a)(1)(A), (3). The district court found that an offense level of 28 appropriately reflected the seriousness of the circumstances of Jones’ offense. The court also specifically stated that a six-level upward departure would be insufficient and that an eight-level departure would be too much.

”Under the specific facts of this case, in which the defendant’s Booker challenge is addressed only to a discretionary aspect of the sentencing guidelines, we find that the government has met its burden of establishing beyond a reasonable doubt that any Booker error did not contribute to the sentence Jones received. Additionally, the fact that the district court departed up to the statutory maximum sentence further supports the conclusion that the district court would have imposed the same sentence under an advisory sentencing scheme.” Id., at 542-44 [internal citations omitted].

Jones reflects why defense counsel should always file a sentencing memorandum prior to sentencing. Mitigating factors need to be placed in the record before the judge imposes sentence. Further, if the judge elects to depart upward on any of the following permissible grounds that the defendant’s conduct caused,

Death
Physical injury
Extreme psychological injury
Abduction or unlawful restraint
Property damage or loss
Possession or use of weapons or dangerous instrumentalities
Disruption of a government function
Extreme conduct
Facilitation or concealment of another offense
Danger to the public welfare
Participation in a violent street gang

Possession of a high-capacity semiautomatic firearm in connection with a crime of violence or controlled substance

defense counsel should object if the sentencing judge and/or the government does not provide the defendant reasonable notice that these grounds may be used to justify the departure. See: Burns v. United States, 501 U.S. 129, 138 (1991).

All the circuits have adopted a position similar to the Fifth Circuit in Jones that most Booker errors are harmless if there is a legitimate independent basis for the sentence ultimately imposed. See: United States v. Kelly, 446 F.3d 688, 692-93 (7th Cir. 2006) [error, if any, permitting potentially unreliable hearsay harmless because it bore “substantial indica of reliability]; United States v. Red Bird, 450 F.3d 789, 794 (8th Cir.2006) [error adjusting sentence under mandatory regime harmless because court would have imposed same sentence and sentence not unreasonable]; United States v. Cornelio-Pena, 435 F.3d 1279, 1289 (10th Cir. 2006) [error treating Guidelines as mandatory harmless because court announced alternative sentence in advisory capacity].

Sentencing in federal courts is a minefield of varying potentialities. The only safe rule for a defense attorney trying to step through this minefield is to take sentencing procedures as seriously and with the same degree of preparation as he/she does the trial on the merits.

SOURCE: The Georgetown Law Journal, 37th Annual Review of Criminal Procedure (2008).

By: Houston Criminal Defense Attorney John Floyd and Paralegal Billy Sinclair