Departure Affirmed

Just as there is much backsliding toward a scheme that would effectively re-institute mandatory Guidelines, the Sixth Circuit's decision in United States v. Husein, No. 05-2548 (6th Cir. 3/2/07) (Gilman, Martin & Cole, JJ.), shows clearly how advisory guidelines can work post-Booker.

Fadya Husein pleaded guilty to her role in two sales of a total of 763 ecstasy pills. (She helped arrange the meetings and was physically present, but was neither the buyer nor seller.) Her Guideline sentencing range was found to be 37 - 46 months in prison. As mitigation at sentencing, she offered that her father was a stroke victim who required around-the-clock attention which she and her mother provided, and that she was the only one in the household with a driver's license, critical for those occasions when her father needed to be taken to the doctor or the hospital. (Interestingly, after reading this information in defendant's sentencing memorandum, the district judge sent the probation officer to the house to report on the extent of the father's problems, which he did.) After hearing proof about Ms. Husein's necessary part in the household, the district court granted a downward departure and sentenced her to 1 day of imprisonment and 3 years supervised release with 270 days of home confinement as a condition thereof.

In affirming the district court sentence, the Court of Appeals confirms certain principles that would seem to naturally flow from a finding that the Guidelines are advisory and are but one factor to be considered. The panel first notes that the circumstances of Ms. Husein's situation meet the definition in §5H1.6 for exceptional family circumstances. Beyond that, however, the court points out that "'[p]ost-Booker caselaw confirms Husein's understanding that family circumstances can form the basis of either a Guidelines-authorized departure or a non-Guidelines, § 3553(a)-based departure, also known as a variance." (Slip op. at 8) Adopting language from the Ninth Circuit, the court notes that "[i]n the broader appraisal[ ] available to district courts after Booker, courts can justify consideration of family responsibilities, an aspect of the defendant's history and characteristics, 18 U.S.C. § 3553(a)(1), for reasons extending beyond the Guidelines; district courts now have the discretion to weigh a multitude of mitigating and aggravating factors that existed at the time of mandatory Guidelines sentencing, but were deemed not ordinarily relevant, such as age, education and vocational skills, mental and emotional conditions, employment record, and family ties and responsibilities.'" (Slip op. at 9) (citing U.S. v. Menyweather, 431 F.3d 692 (9th Cir. 2005).

In finding the sentence to be substantively reasonable, the court noted that there was no mandatory minimum sentence applicable to Ms. Husein. The significance of this fact may resonate beyond the facts of this case: "Congress thus not only envisioned, but accepted, the possibility that some defendants found guilty of that subsection of the statute would receive no jail time at all. This is especially significant in the area of drug-related crimes, where mandatory minimum sentences ... are most common. ... Accordingly, if a mandatory minimum denies discretionary authority to a sentencing judge, then that authority is a fortiori restored where, as here, no mandatory minimum exists." (Slip op. at 11)

The Court also notes that, as to departures from the Guidelines (and not variances under § 3553), the pre-PROTECT Act standard of abuse-of-discretion review was the appropriate standard of review.

The sentence in this case was affirmed because of the work of defense counsel in presenting the district court with all of the facts that it needed to make this decision, and by the careful and thoughtful way that the district court approached this sentencing and explained its decisions. The result here is consistent with the Sixth Circuit's rulings in cases like United States v. (Lonnie) Davis, 458 F.3d 505 (6th Cir. 2006), in which the Court upheld a district court's within-Guidelines sentence based on the district court's careful review of the facts and its thorough explanation of the reasons for its sentence. Its recognition of the broader landscape in which judges can work post-Booker also appears to be more consistent with the intent of Booker than those decisions that would take us back to mandatory guidelines (de facto if not de jure).

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