M - Voice For The Defense Online

july/august 2007
ment can be justified only by a careful, impartial
weighing of the statutory sentencing factors. It may
not be based on idiosyncratic penological views
(such as that the severity of criminal punishment
has no significance for the victims of crime, but only
for the criminals), disagreement with congressional
policy, or weighting criminals’ interests more heavily
than those of victims and potential victims.
***
The judge neglected considerations of deterrence
and desert, which dominate the federal criminal
code, in favor of undue emphasis on rehabilitation,
and seemed even to think that any prison sentence,
however short, is inconsistent with rehabilitation.
That is not the theory of either the criminal code
or the Sentencing Reform Act, which actually
downplays the significance of rehabilitation as a
penological goal by rejecting imprisonment as a
means of promoting it.
We do not rule that a sentence below a properly calculated
guidelines range would have been improper
in this case. The guidelines are merely advisory, and
the statutory sentencing factors (a laundry list of
incommensurables which guides consideration but
does not dictate the sentence or even the sentencing
range) leave plenty of discretion to the sentencing
judge. But that discretion was abused in this case,
and the judgment is therefore reversed and the case
remanded for resentencing.
The Fifth Circuit’s Road Map
The United States Court of Appeals for the 5th Circuit
gave guidance to the judges and lawyers of the Circuit on
how to arrive at a proper non-Guideline sentence in United
States v. Smith, 440 F.3d 704 (5th Cir. 2006):
After Booker, a court may impose a non-Guideline
sentence — a sentence either higher or lower than
the relevant Guideline sentence. Before imposing a
non-Guideline sentence, however, the court must
consider the Sentencing Guidelines. In light of this
duty, ‘a district court is still required to calculate
the guideline range and consider it advisory.’ United
States v. Angeles-Mendoza, 407 F.3d 742, 746 (5th
Cir.2005) (emphasis in original). Consequently, if
it decides to impose a non-Guideline sentence, the
court should utilize the appropriate Guideline range
as a ‘frame of reference.’ See United States v. Fagans,
406 F.3d 138, 141 (2d Cir.2005); United States v.
Jackson, 408 F.3d 301, 305 (6th Cir.2005).
Additionally, the district court must more thoroughly
articulate its reasons when it imposes a non-Guideline
sentence than when it imposes a sentence under
authority of the Sentencing Guidelines. Mares, 402
F.3d at 519. These reasons should be fact-specific
and consistent with the sentencing factors enumerated
in section 3553(a). Id. The farther a sentence
varies from the applicable Guideline sentence, ‘the
more compelling the justification based on factors
in section 3553(a)’ must be. United States v. Dean,
414 F.3d 725, 729 (7th Cir.2005)
The Judges Who Failed to Follow the Road Map in
Smith
In spite of the roadmap provided in Smith, district
judges of the circuit continue to have their cases vacated and
remanded for resentencing:
• In United States v. Walters, ___ F.3d ___, 2007 WL
1776250 (5th Cir. 2007), United States District Judge Orland
L. Garcia of the Western District of Texas sentenced
a defendant to a term of 720 months for a violation of
18 U.S.C. §924(c)(1). The Guidelines recommended the
minimum 360 months for this count. Citing Smith, the
Court concluded that:
The court at no time pointed to specific facts
from the crime, other than the use of a bomb,
to explain why 60 years, as opposed to the
Guideline recommendation of 30 years, was
appropriate.
***
We conclude that the court did not adequately
articulate reasons consistent with the sentencing
factors to support to unreasonableness of
the sentence.
In • United States v. Rajwani, 476 F.3d 243 (5th Cir. 2007),
United States District Judge John H. McBryde of the
Northern District of Texas sentenced a defendant to two
terms of 120 months to be served concurrently for violations
of 18 U.S.C. §§142 and 143 to be served concurrently.
The Guidelines recommended a range of 37 to 46
months. The Court found no circumstances in the case
that took it so far beyond the heartland of fraud offenses
as to “eviscerate the Guidelines of all applicability.” [Note:
As is not uncommon, the Court suggested how Judge
McBryde might sentence the defendant on remand: “Our
review of the record persuades us that a sentence beyond
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