The Afternoon Sessions of the National Seminar on the Fed Sentencing Guidelines has breakout sessions. There are about 7 choices but you can only go to two (unless you have a clone.) This one is on Departures under the guidelines and Variancese relying on 3553a factors. I am hoping they focus on how to work the departures down using what appears to be the courts reluctance to move away from the guidlines. I think our best chance for sentencing fairness is to convince the court that the variance you want is in the guidelines, get adjusted guideline assessments (Corrected guideline assessments is a better term) then push for the 3553a adjustment if you still need it. If you are only looking for a slight adjustment you are not going to need a whole lot of reason for it. Hence you may get it and not get an appeal of it either.
Our panel is about to begin.
Dave Axelrod from Forensic Dispute Services Columbus OH
Hon Paul Borman ED MICH
Ron Tenpas DOJ
Larry Nathan Nathans & Biddle Baltimore Md.
Hon John Steer Vice Chair USSC
First issue: Are the guidelines really advisory?
Judge Borman: A lot of judges are afraid to vary from USSG. You calculate the Guidelines but if they don't do enough, you can use 3553a
Even in Presumption of Reasonableness Circuits you can still get to where you want to go. You must remember the district court must sentence not more than is necessary to fufill the meaning of the guidelines. In the end you will see mostly guideline sentencing. If it is within the guidelines, it will more than likely be reasonable too.
The Sentence must be the judges sentence and not from somewhere else.
Larry Nathans: When Booker came out, there was confusion but now the courts look at the guidelines and then the departures, then the 3553a factors.
Deputy AG Tenpas: The district court can more readily use the departure notes to get the 3553a factor in a little more easily without going to a variances
John Steer: Is there a blurring of the line between departure and variances?
Data suggests there is substitutability, Booker did not cause a reduction in downward departures but post Booker Judges are using 3553a as a reason in their departures. (In other words judges are getting more liberal in granting departures on things that might not have been a departure in the past. Look at the notes!!)
Nathans: My Judges are being real careful they want to hold loss and fatico hearings and they are anaylzing departures as departures. There are all kinds of 5h factors 3563a includes the 5h factors.
This is the ground for a departure if you can't find a departure then you want to go for the 3553a sentence
Axelrod: I always argued 3553a even before Booker but I think there is a better chance now that Booker is law. And you have a better chance in Ct of App.
Borman": You gotta look at the guidelines first. To the extent that lawyers use the guidelines to get to where they want to go, then the judge doens't have to go to outside the guideline for a variance. The Dist. Court's job is not to give a reasonable sentence but to give a sentence that is not more than is necessary to fufill the guidline's goals of sentencing. Reasonableness is decided by the appellate courts. (We have to train our judges that the new rules require him to focus on the client and let the Appellate guys worry about disparity.)
Probation is lagging behind in giving the courts reasons why it might want to grant a variance.
Moderator Prof Sara Sun Beale Duke Univ. asked:
What should the Probation Officer do as to 3553a factors.
Ron Tenpas: Many of the things pointed to for variance are facts in the body of the report. There ought to be some care given to reported facts that would support variances. There are three options one is avoid the 3553a material all together. One is to restate the parties views and then a third option where the probation officer gives potential reasons for departure. It would upset the the DOJ if PO's started coming up with ideas as to why the court should go outside of the guidelines. (Funny when they talk about a certain crime requireing more than guideline time, they don't complain.)
Borman: In my reports there is a form box for the court to consider Factors that may warrant a variance.
Nathans: Probation officers are always making factual determinations that concern the prosecution but should also put in the defense concern.
Tenpas: I disagree that PO is making a factual determination. It is the court that makes these decisions. It is appropriate for the po to put factors a party brings to its attention but wrong for probation to find this stuff themselves.
Booker was particular about the remedy and it took out specific rules. It didn't change the rules as to presentence report. The report was to let both sides know in advance what is coming and what they had to address at the sentence.
John Steer: PO is trained to know what is in the USSG and what was in the pre-booker cases too. They can also be trained to note a few of the things that might get pointed to a variance, but to go too far further (like suggesting a reason for the variance.)
Axelrod: POs make this type of fact decision in determing loss or for almost any number of things. I think it is reasonable to say to them you can make factual determinatins. Nothing prevents a po from reading 3553a and using it. Where they think they're present, that the factors be included for the judge to use.
Beale: An Amendment to rule 32 will be to order the po's to make certain findings or at least protect the court by letting the court tell probation what they want to know.
Borman: Thats not new. most judges either ask for more information or to make some finding of facts. Parties have to do their jobs. Probations job is to take information, the work of the court is to bring the information to the court but the parties need to do the work and get the information to probation and the court.
US v. Walker carves out a place for judges to give an advance notice of when the court will depart. It should happen all the time but notice is rarely given.
5k departure for substantial assistance. Is the court now allowed to decide on a defense motion for substantial assistance?
DOJ is really concerned about this type of departure.
The war or fight we will encounter will be about what PO should and should not put into the report. Should PO include the 3553a material? If yes, should it be proactive or should they depend on and or report what the attys send them. Borman is of opinoin it is not necessarily job of PO to find the informatin by itself and that if the advocate doesn't do his job too bad.
The audience made up of mostly PO's liked that position.
The main message I walked away with was how important it is that we dig out the issues and look for the 3553a and departure material. You have to study the departure notes and the cases.