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February 24, 2018

Some hints and help for sentencing Rob Anon under the modern federal sentencing guidelines

As stressed in class last week, the next two weeks are going to involve detailed discussions of federal sentencing policies and practice before and after modern guideline reforms. 

We will begin on Monday with a deep discussion of the sentencing realities faced in sentencing Rob Anon in a pre-guideline world (the world Judge Marvin Frankel criticizes in the excerpt in our text which you should read and re-read).  In addition to imagining how you, as a judge, would sentence Rob Anon in this world, think also about how prosecutors and defense attorneys would approach sentencing in a pre-guideline world. 

We will then turn to sentencing Rob Anon under the modern federal sentencing guidelines.  I highly encourage class members to try to figure out how to identify and assess federal guideline sentencing laws relevant to Rob Anon with just the help of on-line search materials or traditional legal research resources (and feel free to use the comments to express frustration).  Consider that a federal defendant or a novice lawyer taking on his or her first federal criminal case will not likely have access to any perfect guide (or even "Guidelines for Dummies") to enable ready understanding of the federal sentencing guidelines.

If and when you would like some basic guideline sentencing help, you can turn to these links which take you to key guideline provisions for Rob Anon appearing in the "official" on-line version of the now-applicable US Sentencing Guidelines as provided on the US Sentencing Commission's website:

I highly encourage class members to start working through these "basic" federal guideline sentencing materials on their own (again feeling free to use the comments to express frustration) before looking for any more sentencing help.  That said, if (when?) you want or need even more help, here is a link to a worksheet created by the US Sentencing Commission intended to aid in the guideline sentencing process:

As you work through this assignment, give particular thought to the array of challenges that modern federal sentencing law may present for modern federal sentencing lawyers.   If you want to think particularly about the import and impact of sentencing law for the work of defense attorneys, perhaps check out this article I wrote some years ago seeking to highlight "the array of challenges that the Federal Sentencing Guidelines create for defense counsel."

February 24, 2018 in Class activities, Guideline sentencing systems, Who decides | Permalink


Currently working through a stab in the dark on applying the sentencing standards, and if I'm anywhere near kind of close, I'm so frustrated with the amount of time I'm required to give Rob in a post-guidelines, pre-Booker world. I want to remove the points for the injury or the use of the gun in the commission of the crime, but am still unclear if I can do so under the federal sentencing guidelines. His co-defendants, Zweite (Did the physical act of taking the money) and Tercero (pushed the old man and brandished the gun), who were guilty of those crimes. Granted, Rob did keep more than half of what Zweite grabbed, but he did not initially take the money. It makes it worse knowing the other two pled to receive lower charges and sentences. Do I have to hit Rob with all of these additional points done in the commission but not by him? Does it change because he was the organizer and manager? Can I say that a he was a minimal participant in the actual criminal conduct even though he was the original organizer? A minor participant?

Basically I'm looking for any way out of giving Rob almost 200 months of prison time (which might be achieved purely by fixing my mistakes in determining the zone he falls into.)

Posted by: Shelby Slaven | Feb 25, 2018 8:05:14 PM

I think you are definitely "near kind of close," Shelby. Federal judges before Booker were routinely frustrated by the severity of the guideline scheme in many cases, and you clearly sense how those judges might be inclined to "finesse" guideline calculations to try to reach a recommended range more in line with their sentencing inclinations.

As you reflect on your efforts, Shelby and others, think about whether it is the process or just the outcome that rankles. If, for example, you had authority to cut the calculated guideline range in half (which is what the Booker ruling, in a sense, now permits), would you find the sentencing calculations so frustrating? Do you find the factors that the guidelines consider --- use of a weapon, injury caused, money taken, role in the offense, criminal history --- appropriate under the circumstances?

We will discuss all these matters and many more in the coming weeks. Thanks for your comment, and keep them coming!

Posted by: Doug B | Feb 25, 2018 9:26:23 PM

At first I thought I was going to like the guidelines because I thought it would prevent the leniency, but just realized it also prevents me from sentencing him to the higher number of years I want him to have. Double edged sword.

Posted by: Hillary | Feb 28, 2018 12:28:20 PM

As we work through the sentencing of Rob Anon, the shortcoming of the Sentencing Guidelines have become readily apparent. For what on its face seemed like a straightforward set of facts to apply to Guidelines has left our class in a large disparity, even in terms of the range in which Rob Anon should be sentenced. Was the old man's hip injury a bodily injury, serious bodily injury, or was it life-threatening? Was there a firearm brandished or was it simply 'used' in the commission of the offense? The answer to these questions could mean months and months of prison time either docked or added for the defendant. So, while these Guidelines were supposed to establish a structured and predictable set of prison ranges, the system still carries with it the same possible discretion, disparity, and discrimination we have been worried about all semester.

As highlighted in the article you authored, especially in a post-Booker world where these sentence ranges are not mandatory, there remains a large possibility for disparity. Specifically, less-skilled (or less well-financed) attorneys are unlikely to use proper advocacy to obtain departures from these advisory Guidelines. As demonstrated in the Rob Anon example, there are multiple examples where a plain set of facts can result in different sentencing outcomes under the Guidelines. It is up to the defense attorneys to be zealous advocates to their clients. But, even with the Guidelines, poor defendants with less-skilled attorneys run the risk of ending up with harsher sentences than defendants with the means to pay for a skilled attorney. Thus, while commendable in theory, the Guidelines seem to provide us with a time-consuming, confusing system that produces the same sentences fraught with discretion, disparity, and discrimination that the Guidelines sought to remedy.

Posted by: Dave Haba | Feb 28, 2018 8:05:20 PM

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