§14 Sentencing


Sentencing is a critical stage of a criminal proceeding perhaps the most important. Effective legal representation at sentencing is critical in reaching determinations that accurately and fairly administer justice. The sentencing court has broad discretion and a judge may “conduct an inquiry broad in scope, largely unlimited either as to the kind of information he may consider, or the source from which it may come.” United States v. Tucker, 404 U.S. 443, 446, 30 L.Ed.2d 592, 92 S.Ct. 589 (1972). However, the sentencing decision must rest on reliable information and appropriate considerations.

A sentence that rests on “improper or inaccurate” information or allegations that are “materially untrue” violates due process. Dorszynski v. United States, 418 U.S. 424, 431 n.7, 41 L.Ed.2d 855 94 S.Ct. 3042 1974); Townsend v. Burke, 334 U.S. 736, 741, 92 L.Ed. 1690, 68 S.Ct. 1252 (1948). As long as the information is sufficiently reliable, it need not have been the subject of the charged offense.

The information need not have been introduced at trial nor even admissible at trial. The defense counsel can also use this latitude when investigation uncovers mitigating information. The sentencing court may consider hearsay information, though it need not consider all hearsay information provided to it. Williams v. New York, 337 U.S. 241, 93 L.Ed. 1337, 69 S.Ct, 1079 (1949). The court can rely on hearsay and can consider the absence of a denial of the hearsay by the defendant as indicia of reliability. United States v. Weston, 448 F.2d 626 (9th Cir. 1971).

Hearsay must be objected to by defense counsel at sentencing and in the PSR Report. Defense counsel should prepare to show the unreliability or falsity of harmful hearsay in written submissions. Defense counsel could question reliability by calling on the government to disclose whether and how the claim has been verified.

The sentencing court may consider conduct for which the defendant was acquitted at trial but may not base the sentence on misinformation of a constitutional magnitude. An acquittal does not prove the defendant’s innocence, merely the absence of proof beyond a reasonable doubt. United States v. Watts, 519 U.S. 148, 136 L.Ed.2d 554,

The sentencing court may consider its conclusion that the defendant lied while testifying at trial, testimony that included “willful and material falsehoods”. United States v. Grayson, 438 U.S. 41, 57 L.Ed.Zd 582, 98 S.Ct. 2610 (1978).

The defendant retains his Fifth Amendment privilege against self-incrimination at sentencing regardless of whether the conviction resulted from a guilty plea or a trial. Defendant did not waive right to remain silent at sentencing. Mitchell v. United States, 526 U.S. 314, 143 L.Ed.2d 424, 119 S.Ct. 1307 (1999). Defendant had options of motion for a new trial, appeal, certiorari and collateral attack thus had not been finally and irrevocably adjudged guilty. Fifth Amendment violated when defendant had not been warned of his right to remain silent at a pre-trial hearing or that any statement made could be used against him at sentencing. Estelle v. Smith, 451 U.S. 454, 68 L.Ed.2d 359, 101 S.Ct. 1866 (1981). The defendant cannot be compelled to make statements that could be used to determine whether prior convictions exist that would trigger enhanced penalties.

The sentencing court in unusual circumstances may consider refusal to cooperate in the continuing investigation of a crime to which the defendant is linked. Roberts v. United States, 445 U.S. 552, 63 L.Ed.2d 622, 100 S.Ct. 1358 (1980). Roberts was careful to note “the absence of any reason for the defendant’s refusal to cooperate” and that the defendant never claimed that he was “unable” to assist the government. Roberts also cautioned that “legitimate fears of physical retaliation and self-incrimination” merit “serious consideration” if timely asserted before the sentencing court. Roberts, at 559.

The sentencing court must watch for constitutional issues beyond due process. Counsel should be alert to any indication that the court has considered ex parte communications in its sentencing determinations. Code of Judicial Conduct, Canon 3(A)(4) and (C)(l). In extreme situations, a sentence may implicate the Eighth Amendment prohibition against cruel and unusual punishment. Solem v. Helm, 463 U.S. 277, 77 L.Ed.2d 637, 103 S.Ct. 3001 (1983).

A. United States Sentencing Guidelines (U.S.S.G.)

Despite the fact that the U.S.S.G implemented in 1987 are advisory, not mandatory, pursuant to Booker supra, most district judges are still sentencing based on the guidelines. See, United States v. Booker, 543 U.S. 220, 160 L.Ed.2d 621, 125 S.Ct. 738 (2005). The district judge retains discretion to depart upward or downward from the guidelines sentence along with other mitigating factors though “[o]ther 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.” Blakely v. Washington, 542 U.S. 296, 159 L.Ed.2d 403, 124 S.Ct. 2531, 2537 (2004)(quoting Apprendi v. New Jersey, 530 U.S. 466, 490, 147 L.Ed.2d 435, 120 S.Ct. 2348 (2000)).

In Booker supra, the Supreme Court ruled that its Sixth Amendment holding in Blakely applied to the U.S.S.G. Instead of being bound by the Sentencing Guidelines, Booker requires a sentencing court to consider Guidelines ranges, but permits the court to tailor the sentence in light of other statutory concerns as well. Sentencing courts must treat the guidelines as just one of a number of sentencing factors set forth in 18 U.S.C. §3553(a)

Sentencing courts may no longer uncritically apply the guidelines which are only one of seven equally important factors it must consider in determining a sentence that is “sufficient, but not greater than necessary”, to comply with the purposes of sentencing pursuant to 18 U.S.C. §3553(a)(2).

After Booker supra, district courts still must state reasons for the sentences they impose pursuant to 18 U.S.C. §3553(c) When that sentence is outside the guidelines range, Section 3553(c) (2) still requires the court to provide a written explanation in the Judgment and Commitment Order for why the sentence is outside the guideline range. Booker supra has established a new test and standard for “reasonableness”. If the judge indicates he is giving “substantial weight” to the sentencing guidelines or intends to “substantially depart” from the guidelines, he must give the parties notice before the sentencing hearing.

Booker has almost returned sentencing to pre-guideline days in which arguments that humanize a defendant and mitigate guilt can produce as sentence as low as probation unless probation is prohibited by law, or unless a mandatory minimum applies. Section 3553(a) requires a court to fashion a sentence which is “sufficient, but not greater than necessary” to achieve the goals of sentencing, one of which is to provide a defendant with the rehabilitation he needs. Section 3553(a)(Z)(D). At the same time section 3582(a) requires the court to “recognize [that] imprisonment is not an appropriate means of promoting correction or rehabilitation.”

Booker offers new opportunities for defendants to lock in a particular sentence in a plea agreement under Fed.R.Cr.P. Rule 11(c)(l)(C). This may be a way to restore some of the certainty to sentencing taken away by Booker. Non-binding plea agreements are of little value to the defendant and should not be agreed to by the defendant without locking in a sentence along with any relevant conduct and enhancements that may be contemplated by the government or the court.

After Booker, the government has less leverage to force a defendant into a plea agreement and waive the right to appeal and Sixth Amendment trial rights, to seek a downward departure or non-guideline sentence. Counsel should only agree to such waivers when the defendant is receiving something substantial in exchange.

After Booker, cooperation with the government will remain an important way for defendants to earn lesser sentences, but in cases with mandatory minimums, it will be crucial to lock in the government’s obligation to file a motion pursuant to 18 U.S.C. §3553(e). A defendant cannot rely on the government’s verbal promise or the advise of ineffective counsel that these downward departures may be considered at sentencing.

In the case of mandatory minimums, there is no advantage to the defendant claiming actual innocence to a plea agreement. The defendant will receive the same mandatory sentence under a plea agreement as they would by going to trial and fighting their case. Make the government prove their case beyond a reasonable doubt.

“Sentencing court’s consideration of facts and circumstances beyond those found by jury or admitted by defendant does not violate Sixth Amendment right to jury trial constitutional infirmity arises only when extra-verdict findings are made in mandatory guidelines system.” United States v. Ameline, 409 F.3d 1073 (9th Cir. 2005). There is no Sixth Amendment violation if the U.S.S.G. are advisory. The prior conviction category is a narrow exception. United States v. Tighe, 266 E.3d 1187, 1194 (9th Cir. 2001).

The Court of Appeals for the Sixth Circuit adopted an “essential characteristics” approach to determining whether a prior minor offense is “similar to” certain enumerated offenses that U.S.S.G. §4A1.2(c)(2) says may never be counted toward an offender’s criminal history score. United States v. Cole, 403 F.3d 764, 768 (6th Cir. 2005).

Departures outside the “heartland” of the U.S.S.G. are reviewed for eligibility by four rules. Koon v. United States, 518 U.S. 81, 135 L.Ed.2d 392, 116 S.Ct. 2035 (1996). Three-level reductions for acceptance of responsibility are pursuant to U.S.S.G. §3El.l(a) United States v. Brown, 985 F.2d 478, 482 (9th Cir. 1993). There are a combination of factors involving mitigating circumstances. United States v. Cook, 938 F.2d 149 (9th Cir. 1991).

Every defendant should be considered as an “individual” and every case as a “unique study in the human failings that sometimes mitigate … the crime and the punishment to ensue.” Koon, at 2047. Before a district court can depart upward from the applicable guidelines range on a ground not already identified in the pre-sentence report or by the government, the court must give notice to the parties that it is contemplating such a ruling. Burns v. United States, 501 U.S. 129, 115 L.Ed.2d 123, 111 S.Ct. 2182 (1991).

“History shows that the mandatory nature of the Guidelines has produced particular results which led trial judges to express that the sentences imposed were unjust, grossly unfair, or disproportionate to the crime committed, and the judges would otherwise have sentenced differently.” United States v. Antonakopoulas, 399 F.3d 68, 81 (1st Cir. 2005).

Four rules apply in reviewing S5K2.0 eligibility in Koon supra:
[1] If the special factor is a forbidden factor, the sentencing court cannot use it as a basis for departure. [2] If the special factor is an encouraged factor, the court is authorized to depart if the applicable guideline does not already take it into account. [3] If the special factor is a discouraged factor, or an encouraged factor already taken into account by the applicable guideline, the court should depart only if the factor is present. [4] If a factor is unmentioned in the guidelines, the court must, after considering the “structure and theory of both relevant individual guidelines and the Guidelines taken as a whole,” decide whether it is sufficient to take the case out of the Guideline’s heartland.

“The goal of the Federal Sentencing Guidelines (18 U.S.C. Appx) is to reduce unjustified disparities and so reach towards the evenhandedness and neutrality that are the distinguishing marks of any principled system of justice.” Koon, at 84.

Sentencing factors include the history and characteristics of the defendant and the characteristics of the offense committed. Under the guidelines, courts are generally forbidden from considering the defendant’s age, educational and vocational skills, mental and emotional condition, physical condition including drug or alcohol dependence, employment record, family ties and responsibilities, socio-economic status, civic and military contributions and lack of guidance. U.S.S.G. §5H1.1 – §5H1.12.

This flies in the face of the requirement that the court evaluate the “history and characteristics” of the defendant when the guidelines only permit the court to consider prior criminal history especially when a defendant’s history is positive.

Under the guidelines, there are very limited circumstances in which a court can impose sentence other than imprisonment. U.S.S.G. 55Cl.l. This conflicts with section 3553(a)(2)(D) which requires a sentencing court to evaluate the need to provide the defendant with education, training, treatment or medical care which is often lacking in prison. Now, that the guidelines are advisory, not mandatory, many of these factors may be considered by a sentencing judge in determining an appropriate sentence.

Section 3553(a)(7) directs courts to consider “the need to provide restitution to any victims of the offense.” Imposing a non-custodial sentence of a short period of incarceration may best accomplish this goal by allowing the defendant to work and pay back the victims. Once again, the guidelines do not account for this arrangement.

Sentencing factors that must be considered in determining what type and length of sentence satisfies the primary directive of section 3553(1) “sufficient, but not greater than necessary.”

Section 3553 (a)(2) states that such purposes are: (A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense; (B) to afford adequate deterrence to criminal conduct; (C) to protect the public from further crimes of the defendant; and (D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner.

In evaluating the nature and circumstances of the offense, sentencing factors include:

  • Defendant’s role in the offense
  • Eligibility for safety valve relief
  • Eligibility for substantial assistance by cooperation for downward departures and breaking mandatory minimum sentences for specific offenses
  • Acceptance of responsibility for pleading guilty
  • Extraordinary acceptance of responsibility for pleading in a timely manner and the government avoiding preparation for trial

The court has the authority to depart downward on the basis of a combination of sentencing factors or “mitigating circumstances.” United States v. Cook, 938 F.2d 149 (9th Cir. 1991).

Finally, the court must determine the defendant’s prior criminal history and not over-represent his or her criminality for minor offenses. When defendant’s prior criminal history over-represents the seriousness of his criminality, he or she should be afforded relief from the harsh consequences of a rote application of the guidelines. United States v. Brown, 985 F.2d 478, 482 (9th Cir. 1993)(age at time of prior convictions and nature of those convictions – DUIs – are proper factors to consider in determining whether career offender status significantly over-represents the seriousness of the defendant’s criminal history).

Specific offenses involving drugs or weapons may be subject to mandatory minimum sentences which can only be lessened by §5K1.0 substantial assistance agreements with the government. Even if the guidelines sentence is less than the mandatory minimum sentence, the mandatory sentence not the guidelines sentence will apply. This is crucial to consider in any negotiated plea agreement with the government. Other enhancements to sentencing include armed career criminal and career offenders. These are offenses pursuant to the three-strikes law.


B. Pre-sentence Investigation Report (PSI) or (PSR)

Fed.R.Cr.P.32 outlines the procedures for pre-sentence investigation and preparation of the pre-sentence investigation report, also known as a PSI or PSR. This report is prepared by a probation officer with defense counsel present and submitted to the court before sentencing. The report must be given to the defendant and his attorney at least 35 days before sentencing unless a shorter time is agreed by the defendant.

The PSR includes any prior criminal record, information about a defendant’s personal history, family, medical, characteristics, financial condition and circumstances underlying the defendant’s behavior, the impact of the crime on any victims and the characteristics of the offense committed. The probation officer will include the applicable sentencing guidelines and verified information that may be used in relation to sentencing, also known as relevant conduct. This information must be based on specific evidence not conjecture or speculation. However, PSR findings may be admitted as accurate if the defendant fails to object to them at the time of sentencing. United States v. Scrivner, 114 F.3d 964 (9th Cir.1997).

Counsel can alert the probation officer to errors in the court records and correct factual inaccuracies before they appear in the final report. Counsel should pay attention to the accuracy of prior convictions and is notoriously unreliably reported from other jurisdictions. If the sentencing judge receives additional information excluded from the PSR, but which may be used in determining a sentence, the judge must give the defendant and counsel an opportunity to respond to that information.

If the defendant pled guilty before a judge, then a consistent version should be reported to the probation officer. Contradictory statements could result in a perjury charge. Counsel must make a tactical decision about whether or not to discuss the case with the probation officer. Admission of the defendant’s statements to a probation officer during the pre-sentence investigation would constitute “error of the clearest kind.” Gregg v. United States, 394 U.S. 489, 492, 22 L.Ed.2d 442, 89 S.Ct. 1134 (1969).

District court erred in failing to make findings on defendant’s objections to pre-sentence report. District court’s failure to make necessary findings on defendant’s objection to pre-sentence report required that sentence be vacated and defendant re-sentenced. United States v. Del Muro, 87 F.3d 1078 (9th Cir. 1996).

Furthermore, the Bureau of Prisons promulgated a new regulation that prohibits inmates from having copies of their own PSI Reports in their possession which has a drastic effect on the rights of all inmates to appeal their cases and seek post-conviction relief on section 2255 motions and other remedies. Access to the PSI Report is required for appeals challenging the application of the U.S.S.G. It’s highly recommended to secure a copy of the PSI if you intend to appeal.


C. Sentencing Allocution and Counsel’s Preparation

Counsel’s understanding of sentencing practices informs the handling of the defendant’s case from the day of appointment. Even the defendant who steadfastly maintains innocence and intention to go to trial must be kept informed about the exposure that is risked. Sentencing alternatives should be a major part of any plea offers or negotiations. The primary purpose of most plea agreements is to reduce exposure to incarceration.

Counsel must be effective in every aspect of the proceeding including sentencing and direct appeals. Counsel’s responsibility at sentencing includes:

  1. become familiar with all available sentencing alternatives, including the practical consequences of each, and with community or other facilities that may be of assistance in devising an appropriate sentencing plan;
  2. investigate the particular judge’s sentencing practices;
  3. fully explain to the client the “consequences of the various dispositions available,” as well as “the nature of the pre-sentence investigation process, in particular the significance of statements made by the accused during that investigation;
  4. seek to verify all information contained in the pre-sentence report, and “be prepared to supplement or challenge it if necessary;
  5. “present to the court any ground which will assist in reaching a proper disposition favorable to the accused,” including any favorable information not contained in the pre-sentence report;
  6. “in an appropriate case be prepared to suggest a program of rehabilitation based on the lawyer’s exploration of employment, educational and other opportunities made available by community services”;
  7. “alert the accused to the right of allocution.. .and to the possible dangers of making a statement that might tend to prejudice an appeal.”

These responsibilities of counsel at sentencing are sourced from the ABA Standards for Criminal Justice, 4-8.1 (The Defense Function)(3d ed. 1993).

Counsel should prepare for sentencing allocution well before the sentencing hearing. Counsel may seek other court resources for expert assistance at sentencing. Both counsel and the defendant must be permitted to speak, or “allocute,” before sentencing. Counsel’s allocution should begin before the sentencing hearing in the form of a “Sentencing Memorandum.”

The Ninth Circuit held in a case of first impression, that the federal Victim’s Rights Act gives victims the right to speak in open court during federal sentencing proceedings. Kenna v. U.S. District Court for the Central District of California, 435 F.3d 1011 (9th Cir. 2006).

For cases involving orders of forfeiture or restitution, the Third Circuit was unanimous in concluding there is no constitutional problem with a judge making the findings underlying a forfeiture order, but was split 7-5 on whether the same is true with regard to restitution orders. The Third Circuit held that the Sixth Amendment right to jury trial does not preclude a judge from ascertaining the amount of forfeiture or restitution to be imposed on an offender. United States v. Leahy, 438 F.3d 328 (3rd Cir. 2006)(en banc).

D. Sentencing Memorandum and Hearing

The “Sentencing Memorandum” can respond, clarify or correct information presented in the PSI Report which should be reviewed before final preparation of the written allocution. The defendant’s most sympathetic personal traits, character reference letters from family and community members can assist the court in arriving at a more complete picture of the defendant. The court is not required to allow such testimony, but it can still be presented through a proffer or a letter to the judge through counsel. Furthermore, the “Sentencing Memorandum” can detail the history and characteristics of the defendant and any mitigating circumstances to assist the sentencing judge.

The defendant must be present at the sentencing hearing and have the opportunity to speak, hake realistic statements, avoid clichés and minimization of the offense. Effective counsel is often better able to bring before the court statements concerning the defendant, his prior record, family, environment and facts germane to the mitigation of his punishment.

The government is also entitled to allocute at the sentencing hearing unless as part of a plea agreement the government agrees not to allocute at sentencing. An agreement not to allocute at sentencing will be strictly enforced. Santobello v. New York, 404 U.S. 257, 30 L.Ed.2d 427, 92 S.Ct. 495 (1971). If the government fails to abide by an agreement, the defendant is entitled either to withdraw the guilty plea or be sentenced by a different judge. Santobello, at 262-63.

In crimes involving “victims,” written statements may be submitted to the court. Victim impact statements must be written and available to counsel before the hearing. After the sentencing hearing the court will issue a ”Judgment in a Criminal Case” with the title and section of the offense, counts dismissed, term of imprisonment and recommendations to the Bureau of Prisons, the conditions of supervised release with criminal monetary penalties and the reasons, if any, for departing from the guidelines range.

E. Mitigating Factors for Sentencing

Since Booker supra, the Supreme Court held that the sentencing guidelines are advisory only, not mandatory. The other factors set forth in 18 U.S.C. §3553(a must also be considered in fashioning the appropriate sentence. Because the guidelines are not binding, “courts need not justify a sentence outside of them by citing factors that take the case outside the ‘heartland’.” United States v. Ranum, 353 F.Supp.2d 984, 987 (E.D.Wis.2005); United States v. Williams, 436 F.3d 706 (6th Cir. 2006)(“The district court’s sentence [below the guidelines] does not have to be justified as a downward departure. After Booker, the sentencing Guidelines are advisory, and the sentencing court, in its own discretion, can move below the advisory Guidelines range without a motion for downward departure as long as the resulting sentence is reasonable.”). Thus mitigating factors can be raised during sentencing as suggestions instead of motions for “downward departures.”

”In the ‘broader appraisal,’ available to district courts after Booker, courts can now…have the discretion to weigh a multitude of mitigating and aggravating factors that existed at the time of the mandatory Guidelines sentencing, but were deemed ‘not ordinarily relevant,’ such as age, education and vocational skills, mental and emotional conditions, employment record, and family ties and responsibilities.” United States v. Menyweather, 431 F.3d 692, 700 (9th Cir. 2005).

Even if the district court denies the traditional downward departure based on a certain mitigating factor, it may nevertheless consider the same factor and reach the same sentence under the 3553(a) analysis. United States v. McBride, 434 F.3d 470 (6th Cir. 2006)(“Now, because the Guidelines are no longer mandatory and the district court need only consider them along with the analysis of the section 3553(a) factors, the decision to deny a Guidelines-based downward departure is a smaller factor in the sentencing calculus. Furthermore, many of the very factors that used to be grounds for a departure under the Guidelines are now considered by the district court with greater latitude under section 3553(a).”).

The district court may now consider even those mitigating factors that the advisory guidelines prohibit or make irrelevant including poverty, racial discrimination and humiliation, drug abuse and addiction, dysfunctional family background, lack of guidance as youth. “The guidelines prohibition of considering these factors cannot be squared with the Section 3553(a)(l) requirement that the court evaluate the ‘history and characteristics’ of the defendant.” Ranum, at 984 . Thus in cases where a defendant’s history and character are positive, consideration of all of the section 3553(a) factors might call for a sentence outside the guideline range.

When arguing that the proposed sentence be sufficient, but not greater than necessary to satisfy the purposes of sentencing, suggest: (1) the advisory guidelines sentence is too harsh and does not promote respect for the law, but rather than opposite; (2) all applicable downward departures from pre-Booker law; (3) all mitigating factors for a sentence below guideline range; (4) that the sentence must be just; (5) that mercy and compassion are a fundamental part of the justice system.

Fashioning a just sentence is not a mere mathematical exercise and must in the end involve the exercise of sound and intelligent judgment. A rational and humane system of justice must consider the socio-economic and educational background of the defendant. Rehabilitation has returned as a forceful mitigating factor because it is the goal of punishment pursuant to 18 U.S.C. §3553(a)(Z)(D) That goal cannot be achieved if a defendant has nothing to look forward to beyond imprisonment. Hope is a necessary condition of mankind and severe punishment destroys all hope and takes away the possibility of a productive and useful life. Punishment should not be more severe than necessary to satisfy the goals of sentencing.

At the American Bar Association annual meeting, Supreme Court Justice Anthony Kennedy said: “Our resources are misspent, our punishments too severe; our sentences too long … the sentencing guidelines are responsible in part for the increased terms…[and they] should be revised downward.” Ranum, at 985 n.1.

Examples of mitigating factors than can be suggested or argued at sentencing include:

  • Advisory guideline is too harsh and greater than necessary for the purpose of sentencing
  • Sentence does not promote respect for the law, but rather the opposite
  • Advisory guideline calculated by a preponderance standard is too high when compared to standard beyond reasonable doubt
  • Mitigating factor can be raised as suggestion instead of downward departure
  • Criminal conduct is atypical and outside heartland of guideline
  • Lack of knowledge or criminal intent
  • Downward adjustment for role in the offense is adequate to show defendant’s peripheral involvement
  • Career offender and 851 enhancements results in unfair compounding of sentence
  • Uncharged conduct substantially increases the sentence
  • Criminal history significantly overstates propensity to commit crimes recidivism
  • Length of time before committing first crime is a deterrent to recidivism
  • Criminal conduct constituted aberrant behavior
  • Downward adjustment for rendering aid to victim
  • Downward adjustment to substitute community confinement or probation for prison
  • Enabling defendant to be eligible for boot camp, counseling or other rehabilitation
  • Enabling defendant to make restitution to victims
  • Loss table overstates amount of loss or seriousness of offense
  • Amount of loss triggers multiple enhancements at high offense level
  • Money laundering incidental to underlying crime
  • Defendant suffered extraordinary physical or sexual abuse as child, was exposed to domestic violence or was a holocaust survivor or war refugee
  • Defendant is elderly, infirm or incapacitated, in need of medical care
  • Defendant is youthful and immature mental age
  • Defendant expressed extreme remorse
  • Amount of drugs overstated defendant’s culpability
  • Drugs were of very low purity and defendant had no knowledge or control
  • Disparity between types of drugs
  • Defendant is an addict who delivered small quantities
  • Government controls offense level by deciding quantity of drugs
  • Defendant disclosed the crime voluntarily and ceased criminal activity
  • Defendant manifested “super” acceptance of responsibility
  • Defendant showed utter lack of sophistication
  • Cooperation with authorities to prosecute others
  • Cooperation with authorities to not prosecute others
  • Cooperation with judiciary and administration of justice
  • Downward adjustment for cooperation when government fails to make 5K.I motion
  • Cooperation saved life of informant or endangered self
  • Cooperation with Congressional Committee
  • Cooperation with third party on behalf of defendant
  • Extraordinary family situations where incarceration has harsh effect
  • Extraordinary effect on business causing loss of jobs
  • Excellent employment history
  • Exceptional good works, charitable and community activities, good deeds
  • Extraordinary mental and emotional condition or tragic personal history
  • Defendant punished sufficiently by collateral consequences
  • Defendant’s loss of business, assets and source of income and civil forfeiture
  • Conditions of incarceration excessively harsh or abusive
  • Downward adjustment for disparity in sentencing or punishment for acquitted conduct
  • Totality of the circumstances

F. Government’s Refusal to File §5K.1 Motion

Where the government’s refusal to file a motion for downward departure under §5KlL11 for a defendant’s substantial assistance is in bad faith or is so arbitrary that it could present a due process question, the sentencing court may depart downward from the sentencing guidelines. United States v. Mena, 925 F.2d 354, 355 (9th Cir. 1991).

The court may depart downward where the government refuses to make such motion based on substantial cooperation. United States v. Khoury, 62 F.3d 1138 (9th Cir. 1995). See, United States v. Treleaven, 35 F.3d 458 (9th Cir. 1994); United States v, Paramo, 998 F.2d 1212 (3rd Cir. 1993)(case remanded to determine whether government’s refusal to make §5K1.1 motion for only co-conspirator who went to trial was pre-textual) .

A provision of a plea agreement stating that the government “may request” a downward departure from the U.S. Sentencing Guidelines if the defendant provides substantial assistance did not reserve discretion for prosecutors to refuse to request a departure for reasons unrelated to an honest evaluation of the quality of the defendant’s assistance. Prosecutors could not justify a refusal to move for a departure on the ground that the charge bargain made in the plea bargain turned out to be such a good deal for the defendant that an additional reduction in sentence was not warranted. United States v. Floyd, 428 F.3d 513 (3d. Cir. 2005).

The Second Circuit held that a government motion is no longer an absolute prerequisite to a district court’s imposition of a sentence, below the guidelines range to reward the defendant for cooperating with authorities. United States v. Fernandez, 443 F.3d 19, 34 (2d Cir. 2006).

G. Ninth Circuit Review

The Court of Appeals reviews the district court’s interpretation of the Sentencing Guidelines de novo, the district court’s application of the Sentencing Guidelines to the facts of the case for abuse of discretion, and the district court’s factual findings for clear error pursuant to 18 U.S.C.A. §3742(e) United States v. Menyweather, 431 F.3d 692 (9th Cir. 2005).

In the wake of Booker, federal sentencing is now governed by 18 U.S.C. §3553(a). The Ninth Circuit continues to address challenges to a district court’s interpretation and application of the Guidelines because, although the district court is not bound by the Guidelines, it still should “consult them for advice as to the appropriate sentence.” United States v. Kimbrew, 406 F.3d 1149, 1152 (9th Cir. 2005).

After Booker, the district court still is “required to articulate the reasons for the extent of the departure in sufficiently specific language to allow appellate review.” United States v. Working, 224 P.3d 1093, 1102 (9th Cir. 2000)(en bane).

After Booker, Courts of Appeal are to apply a “reasonableness” standard of review to federal sentences which means that appellate courts should employ an “abuse of discretion” standard.

Relief of sentencing is required for a defendant who shows a right to relief on appeal and he must receive it in due measure, else due process is not satisfied. United States v. Howard, 894 F.2d 1085, 1090 (9th Cir. 1990). See, Hicks v. Oklahoma, 447 U.S. 343, 347, 65 L.Ed.2d 175, 100 S.Ct. 2227 (1980)(deprived petitioner of liberty without due process of law by simply affirming the sentence imposed). “Due process…expresses the requirement of fundamental fairness.” Lassiter v. Dep’t of Soc. Services, 452 U.S. 18, 24, 68 L.Ed.2d 640, 101 S.Ct. 2153 (1981).

In the wake of Booker, the Ninth Circuit convened an en banc panel of judges to resolve sentencing issues on direct appeal in United States v. Ameline, 409 F.3d 1073 (9th Cir. 2005). Sentencing court’s consideration of facts and circumstances beyond those found by jury or admitted by defendant does not violate Sixth Amendment right to jury trial; constitutional infirmity arises only when extra-verdict findings are made in mandatory guidelines system.

Under “plain error” standard of review, appellate court may exercise its discretion to notice forfeited plain error, i.e., error that is plain and that affects substantial rights, if it seriously affects fairness, integrity, or public reputation of judicial proceedings. Even where appellate briefs filed by parties do not raise Booker objection to defendant’s sentence, issue may be raised and should be considered by appellate court.

Government bears burden of proof for any contested fact that sentencing court would find necessary to determine base offense level; court may not simply rely on factual statements in pre-sentence report.

When defendant requests downward adjustment to sentence, defendant bears burden of proof; when government seeks upward adjustment to sentence, it bears burden of proof. Ameline, at 1074.

The Ninth Circuit has adopted the “limited remand” procedure articulated by the Second Circuit in Crosby, 397 F.3d 117 – 120 to assess the existence of plain error in pre-Booker sentencing appeals.

The en banc Court of Appeals for the First Circuit spurned both an approach to appellate review of federal sentences that has been adopted by some other circuits as well as the approach urged by the Department of Justice. The court said the sentence range provided by the U.S.S.G. should be given “substantial weight” by a federal district court, but a sentence imposed within the guidelines range is not per se “reasonable,” or even presumptively so, for purposes of the standard of review imposed by Booker. United States v. Jimenez, 440 F.3d 514 (1st Cir. 2006).

The “Rule of Lenity” should favor the preservation of close-call issues for appeal and a remand for re-sentencing with the benefits of a post-Booker system. See, United States v. R.L.C., 915 F.2d 320, 325 (8th Cir. 1990)(citing Ladner v. United States, 358 U.S. 169, 178, 3 L.Ed.2d 199, 79 S.Ct. 209 (1958), affirmed 503 U.S. 291 (1992)).

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