United States Sentencing Guideline 2010 Amendments FY 2009 Within - - PDF document
United States Sentencing Guideline 2010 Amendments FY 2009 Within Range Sentences National 56.8% (59.4 FY 2008) 4th Circuit 62.8% (66.3 FY 2008) E.D.N.C. 56.3% (56.2% FY 2008) Average Length of Prison Drug trafficking: National
United States Sentencing Guideline 2010 Amendments
National
56.8% (59.4 FY 2008)
4th Circuit
62.8% (66.3 FY 2008)
E.D.N.C.
56.3% (56.2% FY 2008)
Drug trafficking:
National 81.2 months EDNC 156.3
Firearms:
National 91.5 EDNC 134.4
Pornography/Prostitution:
National 121.2 EDNC 258.6
D abuser of drugs/alcohol or suffer from a significant
mental illness
Defendant’s criminality is related to the treatment
problem to be addressed
Consider likelihood of success of program and
whether lesser sentence will increase risk to public from further crimes of D
Consider effectiveness of treatment program
Revises 4 Policy Statements on Offender Characteristics
Age Mental and Emotional Conditions Physical Condition, Including Drug/Alcohol Dependence Military Service
Revises Intro Commentary
“Recidivism rates decline relatively consistently as age
increases.” USSC, Measuring Recividism
Gall (age at time of offense) Gray, 453 F.3d 1323 (11th Cir. 2006) (
Defendant formed cultural ties primarily with the
United States from having resided continuously in the United States from childhood
Those ties provided primary motivation for the
defendant’s illegal reentry or continued presence in U.S.
Departure not likely to increase risk to public from
further crimes of defendant
Sets forth a 3‐step process to arrive at appropriate sentence Could undermine advisory nature of guidelines Differs from process set forth in Rita and Gall Requires a court to consider a departure when not raised May cause judges to take more restrictive view of variances under 3553(a) (1) The court shall determine the kinds of sentences and the guideline range” by following 8 detailed steps and considering the relevant provisions as “appropriate” or “applicable; (2) “The court shall then consider Parts H and K of Chapter 5, Specific Offender Characteristics and Departures, and any other policy statements or commentary in the guidelines that might warrant consideration in imposing sentence: (3) “The court shall then consider the applicable factors in 18 USC 3553(a) taken as a whole.
Tension betten 1B1 and 5h on “as a whole” versus
emphasis on uniformity
Matthew Shepard & James Byrd, Jr. Hate Crimes
Prevention Act created two new offenses:
Appendix A amended to refer 18 U.S.C. 249 offenses to
2H1.1
USSG 3A1.1 enhancement in subsection (a) covers
crimes motivated by gender identity
Appendix A amended to refer 18 U.S.C. 1380 offenses to
2A2.2, 2A2.3, and 2B1.1
Remediation efforts
Reasonable steps to remedy harm Ensure compliance & ethics programs effective
Culpability Score
Effective compliance & ethics program – 3 level decrease Decrease if organization meets 4 criteria
Direct reporting obligations Simplification of recommended probation conditions
Security fraud statute to cover commodities fraud Theft or damage of Cultural Heritage Resources Unlawful disclosure of information related to social
security eligibility
Iodine upgraded to a list I chemical, increases
maximum base offense level to 30
Determining Your Client’s Likelihood of Success
under Community Supervision and Improving the Odds for a Non‐Prison Sentence, available at fd.org
David Hemingway and Janet Hinton, Departures and
Variances, available at fd.org
Determining Your Client’s Likelihood of Success under Community Supervision and Improving the Odds for a Non‐Prison Sentence, available at fd.org.
Jesse P. Basbaum, Sentencing for Possession of Child
Pornography: A Failure to Distinguish Voyeurs from Pederasts (publication forthcoming in Hastling L. Jrnl, May)
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1
457197
James Gwin, Juror Sentiment on Just Punishment: Do
the Federal Sentencing Guidelines Reflect Community Values?, 4 Harvard Law & Policy Rev. 173 (2010)
Doug Keller, Why the Prior Conviction Enhancements
in Illegal Re‐Entry Cases are Unjust and Unjustified (and Unreasonable too) (forthcoming in 51 Boston College L. Rev. (2010)