Federal Criminal Defense Blog : Georgia Federal Criminal Defense Lawyer & Attorney : Gillen Withers & Lake Law Firm : White Collar Crime, RICO, Trial : Atlanta, Savannah, GA

Last month, the U.S. Sentencing Commission issued its 2010 Proposed Amendments to the U.S. Sentencing Guidelines, which may be viewed here, which contain much of interest for both corporate and individual defendants.

In regard to corporations or “organizational" defendants, the Commission has proposed several changes to Chapter Eight of the Guidelines. The Proposed Amendments amend Guideline Section §8B2.1, governing compliance and ethics programs for corporations, by adding language in the Application Notes regarding personnel who must be aware of an organization’s document retention policies and conform to such policies and setting forth “reasonable steps that an organization should take after detection of criminal conduct.” The steps are:

First, the organization should respond appropriately to the criminal conduct. In the event the criminal conduct has an identifiable victim or victims the organization should take reasonable steps to provide restitution and otherwise remedy the harm resulting from the criminal conduct. Other appropriate responses may include self-reporting, cooperation with authorities, and other forms of remediation. Second, to prevent further similar criminal conduct, the organization should assess the compliance and ethics program and make modifications necessary to ensure the program is more effective. The organization may take the additional step of retaining an independent monitor to ensure adequate assessment and implementation of the modifications.

Section 8D1.4, governing conditions for probation for corporations or organizations, is also amended to provide, as conditions of probation, that an organization develop and submit a compliance and ethics program and retain an independent monitor. The amendment further provides that organizations must disclose any material adverse changes in its business or financial condition or prosepects, and any new criminal prosecutions, civil litigation, administrative proceedings, investigations or formal inquiries commenced against the organization.

Last September, the Commission had stated that one of its policy priorities would be to study alternatives to incarceration. Accordingly, the Proposed Amendments increase “Zone B” and “Zone C” of the Guidelines’ Sentencing Table by one level. Defendants with Guidelines calculations falling within Zone B are eligible, instead of a sentence of imprisonment, to have imposed “a sentence of probation that includes a condition or combination of conditions that substitute intermittent confinement, community confinement, or home detention for imprisonment…” pursuant to Section §5C1.1(b)(3).

The Commission has sought comments on its Proposed Amendments. It has also sought comments on potential revisions to certain specific offender characteristics as a basis for downward departure in sentence pursuant to the policy statements in Chapter 5 of the Guidelines, including age; mental and emotional condition; physical condition; military, civic, charitable, or public service, employment-related contributions and record of prior good works; and lack of guidance as a youth. The Commission has stated that it has considered eliminating these statements pursuant to the Supreme Court’s decision in Booker, which mandated that sentencing courts consider a defendant’s “history and characteristics” pursuant to Section 3553(a) in fashioning a reasonable sentence. Under the “old” Guidelines system, such factors were either prohibited or discouraged grounds for a downward departure in sentence.

The Proposed Amendments also take into account the Supreme Court’s landmark holding in United States v. Booker, 543 U.S. 220 (2005) that the Guidelines are advisory, rather than mandatory, by amending the instructions on applying the Guidelines in Section 1B1.1 to provide that, after a sentencing court has determined the proper sentencing range under the Guidelines and considered the factors in 18 U.S.C. § 3553(a), “[t]he court shall then determine the sentence (i.e., a sentence within the guideline range, a departure, or a variance), considering the applicable factors in 18 U.S.C. § 3553(a) taken as a whole.”

The Proposed Amendments expand courts’ authority to impose probation as an alternative to incarceration in certain drug cases in a new proposed Guideline Section 5C1.3 provided that the defendant participates in a substance abuse treatment program and meets certain additional criteria. The Amendments furthermore suggest changes to determining a defendant’s criminal history in terms of the recency of prior offenses. Finally, the Proposed Amendments also recommend so-called “hate crimes” enhancements under Section 3A1.1 which provide for an increase of 3 or more levels to a defendant’s offense level where “the defendant intentionally selected any victim or any property as the object of the offense of conviction because of the actual or perceived race, color, religion, national origin, ethnicity, gender, gender identity, disability, or sexual orientation of any person…”
 

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In Irizarry v. United States, (No. 06-7517), the Petitioner plead guilty in district court to making a threatening interstate communication to his ex-wife in violation of 18 U.S.C. § 875. Although the presentence report recommended a Federal Sentencing Guidelines range of 41-to-51 months in prison, the district court imposed the statutory maximum sentence—60 months in prison and 3 years of supervised release— rejecting the petitioner’s objection that he was entitled to notice that the court was contemplating an upward departure.  The Supreme Court announced that defendants are not entitled to notice of a variance from the guideline sentence prior to sentencing.

The Eleventh Circuit had affirmed the sentence, reasoning that Federal Rule of Criminal Procedure 32(h), which states that “[b]efore the court may depart from the applicable sentencing range on a ground not identified . . . either in the presentence report or in a party’s pre-hearing submission, the court must give the parties reasonable notice that it is contemplating such a departure,” did not apply because the sentence was a variance, not a Guidelines departure.

The Supreme Court affirmed finding that the notice requirement of Rule 32(h) does not extend to a "variance" from the recommended guidelines range. According to the Supreme Court, "The due process concerns that motivated the Court to require notice in a world of mandatory Guidelines no longer provide a basis for this Court to extend the rule set forth in [Burns v. United States, 501 U. S. 129 (1991)], either through an interpretation of Rule 32(h) itself or through Rule 32(i)(1)(C)."

The Court adopted the use of the Eleventh Circuit's term - "variance" - in finding that there is a difference between a mandatory guidelines departure and a variance pursuant to the factors set forth in 18 U.S.C. § 3553. So, departures, the Supreme Courts says, were “a term of art under the Guidelines” and referred only to non-Guidelines sentences imposed under the framework set out in the Guidelines. A "variance" is any factor under section 3553 that may warrant a non-guideline sentence, and the defendant does not have a statutory, or constitutional right to be advised of every variance, although district court’s should be cautious in making certain that defendants have adequate notice.

So, departures are now a deceased creature of the guidelines era.

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The Eleventh Circuit’s decision in United States v. Pugh, No. 07-10183, 2008 WL 253040 (11th Cir., January 31, 2008) is interestingly at odds with the result in its decision in United States v. McBride, 511 F.3d 1293, 1296 (11th Cir. 2007), decided about a month before Pugh.

In McBride, in which the Court of Appeals affirmed the district court’s downward departure from a recommended Sentencing Guidelines range of 151 to 188 months to impose an 84-month sentence on the defendant, who pled guilty to distributing child pornography, because the defendant’s father had been murdered, the defendant had been physically and sexually abused as a child, suffered from various health problems and had enrolled in a sexual treatment program.

Although the Court did not cite Gall, it rejected the government’s argument on appeal that “although the district court discussed many of the [18 U.S.C.] § 3553(a) factors, it failed to give proper weight to some while overemphasizing others,” id. at 1297, holding that the Court:

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