In the post-Booker world in which we live where most sentences are being upheld on appeal as being reasonable, it is even more important to be creative at the district court level in showing that a sentence within the advisory guideline range is not reasonable, especially in light of the Sixth Circuit’s Williams/Foreman decisions extending a presumption of reasonableness to sentences falling within the advisory guideline range. Below is an example of creative lawyering by my colleague, Assistant Federal Defender Rita LaLumia, in a methamphetamine case to combat the unfairness that results when the offense level is increased to Offense Level 30 pursuant to U.S.S.G. § 2D1.1(b)(5)(C) for having created a substantial risk of harm to the life of a minor. The reasoning applies equally to any mandatory guideline enhancement to a certain offense level where a less culpable offender is treated more harshly than a more culpable offender by the mandatory offense level increase. Because the Sentencing Guidelines are now merely advisory, the district court’s are no longer required to sentence within the guideline range and the below reasoning gives a good argument pursuant to 18 U.S.S.G. § 3553(a)(6) ("the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct) to impose a more reasonable sentence falling far below the advisory guideline range.
Pursuant to U.S.S.G. § 2D1.1(b)(5)(C), a 6-level increase in offense level is applied if the offense (1) involved the manufacture of methamphetamine, and (2) created a substantial risk of harm to the life of a minor. If the resulting offense level is less than 30, the offense level mandatorily is increased to 30, regardless of the drug quantity involved in the offense of conviction Given this provision and the district court’s determination that the enhancement applied, the offense level in this case rose to Offense Level 30 from Offense Level 14 (based upon the drug offense involving 7 grams of methamphetamine). With only a 6-level increase, the resulting guideline range would have been 30 to 37 months based on a total offense level of 19 and a criminal history category of I. Without any enhancement for risk of harm, the defendant faced an offense level of 16 based on the drug quantity alone, providing a guideline range of 12 to 18 months. Thus, the 6-level increase alone essentially more than doubled his guideline range. With the full 14-level increase to Offense Level 30, he faced a guideline range of 70 to 97 months or almost six times the sentence he would receive at his base offense level.
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 6-level increase for creating a substantial risk of 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 and appellate courts are in the best position to fine tune a reasonable sentence to a particular defendant as required by Booker.