Booker Brainstorming - Session II

How better to learn what is reasonable under Booker than to learn from the efforts of others. Pre-Booker, defense attorneys could do nothing about mandatory guideline increases that seemed unfair. Meth cases is but one area where mandatory increases occurred, oftentimes causing disparity between offenders and offenses. Below is a creative idea used by Assistant Federal Defender Rita LaLumia, FDSET Chattanooga, in her effort to combat the mandatory offense level increase to 30 in a meth case involving conduct determined to have created a substantial risk of harm to the life of a minor pursuant to U.S.S.G. § 2D1.1(b)(5)(C) (now (b)(6)(C)):

"Because Mr. *** did not act with complete disregard for the health of others, he suggests that while it might be appropriate to increase his sentence by the six levels advised under § 2D1.1(b)(5)(C), a 14-level increase to offense level 30 is excessive.
Without any enhancement for risk of harm, Mr. *** would be at offense level 16. With a three-level reduction for acceptance of responsibility, an offense level of 13 and criminal history category I would result in a guideline range of 12 to 18 months. A six-level increase under § 2D1.1(b)(5)(C) results in an offense level of 19 (level 22 minus 3 levels for acceptance of responsibility) and criminal history category I, or 30 to 37 months guideline range. That six level "bump" more than doubles Mr. ***’s basic sentence. If Mr. ***’s offense level is increased to level 30 (level 27 after a 3-level reduction for acceptance of responsibility), he faces a guideline range of 70 to 87 months or almost six times the sentence he would receive at his base offense level.
Additionally, the automatic increase to offense level 30 creates a sentencing disparity among defendants with similar records who have been found guilty of similar conduct, something that should be avoided under 18 U.S.C. § 3553(a)(6). Any defendant who has a base offense level of 24 or higher receives only a six level increase for risk of substantial harm to a minor or incompetent. Any defendant who has a base offense level of 23 or lower receives a higher increase for the same criminal conduct, with that increase growing as the base offense level goes down. This example shows that while the Sentencing Commission may be in the best position to issue blanket policies regarding offenders as a group, the district courts are in the best position to fine tune a sentence to a particular defendant. This also supports the holding in United States v. Webb, 403 F.3d 373 (6th Cir. 2005) that a guideline sentence is not per se reasonable."