Thursday, September 26, 2013
Kevin Bennardo (Louisiana State University, Baton Rouge - Paul M. Hebert Law Center) has posted Sweeping Up Guideline Floors: The Misguided Policy of Amendment 767 to the U.S. Sentencing Guidelines Manual (60 UCLA Law Review Discourse 60 (2013)) on SSRN. Here is the abstract:
Amendment 767 to the U.S. Sentencing Guidelines Manual, effective November 1, 2012, significantly modified the calculation of Guidelines ranges for federal defendants convicted of multiple counts where at least one of the counts is subject to a mandatory minimum sentence. The amendment, which altered section 5G1.2 of the Guidelines and its commentary, provides that the minimum statutory sentence for any count in a multicount conviction raises the floor of the Guidelines range for all counts.
The U.S. Sentencing Commission set forth two reasons for Amendment 767: to resolve a circuit split and to make it easier for district courts to calculate departures and variances by reducing the likelihood of arriving at multiple Guidelines ranges.
By linking the Guidelines range to a statutory minimum sentence applicable to a different count of conviction, Amendment 767 divorces the punishment determination from the underlying conviction. Such decoupling is counter to both the moral underpinnings of sentencing — an offender’s punishment should not exceed her just desserts — and the statutory directive that district courts should impose a sentence that is no greater than necessary to achieve the goals of sentencing and fix a just punishment. Furthermore, Amendment 767 places additional administrative burdens on the criminal justice system by increasing the need to resentence defendants upon the vacation of a single count of conviction and by incentivizing prisoners to challenge more sentences and convictions through habeas petitions. Therefore, the changes wrought by Amendment 767 are not good sentencing policy and district courts would be well advised to vary from Guidelines ranges calculated through amended section 5G1.2.