Defense Attorneys, As Well As Judges and Prosecutors, Must Get Their Heads In The Post-Booker Process

In United States v. Blue, 557 F.3d 682 (6th Cir. 2009), when a proffered plea agreement required her to plead guilty to additional conduct that she denied committing in order for the government to file a §5K1.1 motion for assistance she had provided, Blue decided to accept an offer that did not require her to admit the additional conduct, but which did not include the filing of the §5K1.1 motion. In the post-Booker landscape, so far so good. Blue filed a motion for downward departure under §5K1.1, and argued that the district court should depart downward based on her assistance to the government. When the district court declined the invitation, and sentenced her to 292 months, Blue appealed.

In an opinion written by Judge Martin, the Court notes that, "post-Booker, the government's failure to file a Section 5K1.1 departure does not necessarily preclude a sentencing court from taking into account substantial assistance when considering the appropriate sentence in light of the Section 3553(a) factors." (557 F.3d at 685) What does matter, however, is whether the district court is considering the issue as a §5K1.1 departure motion, or a request for a variance under § 3553(a). And this is where the case goes off the track for Ms. Blue.

"Even after Booker, absent an unconstitutional motive, a district court may not award a Section 5K1.1 departure pursuant to the Guidelines without a government motion." (Id. at 686.)(emphasis in original) And a district court's refusal to depart downward is still, after Booker, not reviewable on appeal.

Blue's problem is that she never -- either in the district court or on appeal -- argued that the court could consider her assistance to the government as the basis for a downward variance under § 3553(a) as relevant to what sentence was sufficient, but not greater than necessary. As a result, she ended up waiving the argument and wasting her time on appeal.

Blue's Lesson for the Rest of Us: Always present mitigation as grounds for both a Guidelines departure and a downward variance under § 3553(a). Given that the district courts must still consider the Guidelines, the failure to address a ground for departure under the Guidelines may very well be unreasonable on appeal. And any ground that is limited by some Guidelines factor (e.g. the §5K1.1 requirement that the government, not the defendant, must file the §5K1.1 motion), can still be considered under § 3553(a) as relevant to what sentence is sufficient, but not greater than necessary, to achieve the aims of sentencing. Even a ground that is prohibited by the Guidelines can now be considered under the § 3553(a) factors as relevant to sentencing. If we fail to do this, then not only will our clients not get the lower sentences they deserve, but all of our appellate efforts will be in vain.