Tuesday, March 27, 2007

Compound Interest on the Nickle-and-Dimed

In its Fifteen Years of Guidelines Sentencing: An Assessment of How Well the Federal Criminal Justice System is Achieving the Goals of Sentencing Reform, the United States Sentencing Commission, discussing the career offender provisions of the Guidelines, noted that the career offender provision was a sentencing rule "that [has] a disproportionate impact on a particular offender group [namely, African-Americans] but that serve[s] no clear sentencing purpose . . . The recidivism rate for career offenders more closely resembles the rates for offenders in the lower criminal history categories in which they would be placed under the normal criminal history scoring rules in Chapter Four of the Guidelines Manual. The career offender guideline thus makes the criminal history category a less perfect measure of recidivism than it would be without the inclusion of offenders qualifying only because of prior drug offenses." At 134 (emphasis in original). "[C]riminologists and law enforcement officials testifying before the [Sentencing] Commission have noted that retail-level drug traffickers are readily replaced by new drug sellers so long as the demand for a drug remains high. Incapacitating a low-level drug seller prevents little, if any, drug selling; the crime is simply committed by someone else." Id.

Jimmy Gene Brumley was a nickle-and-dime street dealer who appears to have sold drugs mainly to support his own habit. He was caught by police in Memphis, Tennessee, with such a small amount of Dilaudid and Vicodin tablets that his offense level based on the quantity of drugs was an 8. [While federal court has, in most districts, been reserved for large quantity drug cases, the U.S. Attorney for the Western District of Tennessee has for years prosecuted what would anywhere else be small quantity state drug cases, using the hammer of the crack cocaine sentences and the career offender provisions to the benefit of the Bureau of Prisons and the stockholders of Correctional Corporation of America.] When the calculation of Jimmy Gene's criminal history was factored in, his Guidelines range was 12 - 18 months. Coupled with some intensive drug treatment, a high-end of the range sentence might have helped Jimmy Gene break the cycle of drug use and imprisonment at a total cost to taxpayers of about $37,000.

In addition to other things, however, Jimmy Gene was also a career offender under the Guidelines. This pushed his offense level from 8 to level 32 and pushed his criminal history to the highest category, VI, with a concomitant range of 151 - 188 months. At the sentencing hearing, Jimmy Gene's defense attorney pointed out that this was a twelve-fold increase for the conduct to which he had pleaded guilty, pointed out the role that his drug addiction had played in his life (and its impact on his criminal history) and urged the court to impose a lower sentence. Although acknowledging the impact of his drug usage and his "urgent need for drug counseling," the district court imposed a sentence of 144 months.

On appeal, Brumley argued that the district court had failed to analyze how the 144 months would further the objectives of § 3553(a) more than the lower sentence he proposed, and had failed to explain its rationale for the imposition of the 144 months. United States v. Brumley, No. 05-6747 (slip op. 5) (6th Cir. Jan. 9, 2007) (unpublished). Writing for Judges Moore and Clay, District Judge Bell notes the presumption accorded to sentences within the Guidelines range. Id. at 3. Brumley's sentence, of course, was actually just below the Guidelines range. "However, because it was below the guideline range, and because we are considering a challenge to the sentence by Brumley rather than by the government, his sentence is entitled to the presumption of reasonableness." One searches in vain for the legal support for this newly-crafted proposition. There is none. One searches, also in vain, for the dissent from Judge Moore, who originally refused in U.S. v. Webb to find a within-range sentence to be per se reasonable.

One continues this same Grail quest for some sign of objection from Judge Clay, who once wrote, "While the Williams Court erred in the first instance by holding that a sentence within the Guidelines range is presumptively reasonable on appeal, the majority has now alarmingly compounded that error by holding that district courts may consider a sentence within the Guidelines range to be presumptively reasonable. ... Nothing in the text of the § 3553(a) elevates the now-advisory Guidelines sentence above other factors or permits the district court to 'presume' that the advisory sentence would be reasonable for an individual defendant." United States v. Cage, 458 F.3d 537 (6th Cir. 2006) (Clay, J., dissenting). In a footnote in Cage, Judge Clay noted, "I also question whether the rebuttable presumption language in Williams should be considered to be binding on this Court given the fact that the Webb Court had already stated that it declined to hold that a sentence within the Guidelines range is per se reasonable." Id. at n2.

What happened to the objections of these two reasoned jurists to the march back to mandatory Guidelines that they saw as contrary to the Supreme Court's holding in Booker? Have they changed their positions? Have they been overwhelmed by the press of sentencing appeals? That is not clear. The only thing that is clear is that they go along with Judge Bell's expansion of the presumption of reasonableness where, apparently, no one has gone before. But I digress ...

What of Jimmy Gene's arguments against the reasonableness of his sentence? Addressing the district court's alleged failure to explain the sentence it chose, Judge Bell writes, "A defendant's 'mere allegation that the sentence imposed is greater than necessary to achieve the goals of punishment outlined in § 3553(a) is insufficient to rebut the presumption of reasonableness,' and the fact that the district court did not give a defendant the more lenient sentence he requested does not jusitfy setting his sentence aside." Citing U.S. v. Dexta, 2006 WL 3589790 (6th Cir. 2006). This, of course, does not answer the question of whether the district court complied with the procedural requirement that it explain its sentence. Judge Bell finds that because the district court addressed the § 3553(a) factors the sentence was both procedurally and substantively reasonable.

No one ever explains why a twelve-fold sentence for a drug addict, that will cost the taxpayers around $300,000, is "sufficient, but not greater than necessary" to accomplish the aims of sentencing as opposed to the lower sentence requested. Given the acknowledgement by the Sentencing Commission itself in its Fifteen Year report that the career offender provisions are a poor measure of recidivism, the blind faith adherence to the Guidelines (and worse, given the expansion of the presumption) shown by both the district court and the Court of Appeals in this case raises questions about the continued vitality of Booker.

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