United States v. Martin, No. 04-6428 (Feb. 21, 2006). This case provides two useful theories to note for future use. First, in his concurrence, Judge Martin suggests that a Guidelines sentence may be unreasonable when common sense and fairness calls for imposing a criminal-history category that is less than what the Guidelines formally call for. Second, the majority opinion explains how the meth precusor conversion ratio guideline, and perhaps other guidelines, could be successfully challenged on procedural grounds.
Judge Martin starts by lamenting how the Court has unwisely interpreted USSG 4A1.2(a)(2)'s provision that defines what is a "related" offense for purposes of calculating criminal history. Indeed, counsel for the government was asked at oral argument for an example of two offenses that could be "related" under the current doctrine: "Counsel had no idea." Judge Martin finds an example in Dr. Evil from Austin Powers (because he has announced his precise common scheme before embarking on his plan), and notes the absurdity that the commonplace insophisticated federal offender who commits a string of similar crimes to support a habit is treated more harshly than a Dr. Evil because that offender's crimes will not be deemed related. "It seems to me we apply the antithesis of common sense in these cases."
Judge Martin goes on to explain that the sentencing court must calculate the Guidelines by treating such offenses as not "related;" however, the sentencing court is then obligated to impose "a sentence sufficient, but not greater than necessary to comply with the purposes" set forth in 3553(a). "That is, a district court may look beneath the specific criminal history score and determine whether [the defendant's series of offenses] merit the increase sentence that the Guidelines suggest."
Finally, and most importantly, it seems that Judge Martin suggests that, in certain circumstances, it would be unreasonable for purposes of appellate reveiw for a sentencing court to decline to impose a sentence shorter than the suggested Guidelines range: "In such circumstances [where the related-offense doctrine overstates the criminal history], there is nothing that would preclude a Guidelines sentence from being declared unreasonable."
The majority opinion gives an important roadmap for a challenge to the Guideline's 2:1 ratio for meth precursors. Anyone with a meth-precursor case can try to mount a renewed challenge to this Guideline using the rule in Martin. Martin indicates that the ratio would be found to be invalid if the defendant can prove that the DEA report upon which the Sentencing Commission relied when arriving at the 2:1 ratio does not contain scientific data.
Martin also establishes a new rule that may be useful in challenging other guidelines: When Congress describes a procedure for the Commission to arrive at a guideline, then the Commission must follow that procedure to the letter or else the guideline is invalid. The burden of proof of deviation from the required procedure is on the party challenging the guideline.