Wednesday, March 9, 2005

Downward Departures After Booker

A Sixth Circuit opinion on March 8 (U.S. v. Hamm) discusses the issue of downward departures after the invalidation of the Sentencing Guidelines in Booker.  The defendant, convicted of trying to meet with a fourteen year old "girl" he met through an internet chat room, sought a downward departure on the grounds of diminished capacity, aberrant behavior and extraordinary postoffense rehabilitation.  The district court referred to the restrictions imposed by the PROTECT Act limiting downward departures, but did not explicitly rely on that provision in rejecting the downward departure (which was adopted after the defendant's conviction, and therefore was not directly applicable anyway).  The Sixth Circuit found that, because it was unclear whether the judge would have given a downward departure if Booker had been decided -- and the restrictions on downward departures lifted -- there was a plain error requiring a remand for another sentencing hearing.  The court stated:

Based upon the district court’s imposition of a sentence at the low end of the range and its apparent sympathy for Hamm, we believe that the court might have sentenced Hamm to fewer than 33 months in prison if it had felt that it were free to do so. Of course, the district court might also have opted not to depart from the recommendation of the Sentencing Guidelines, but it never had the opportunity to make that decision. We therefore conclude that the error affected Hamm’s substantial rights.

Hamm is important for those cases still on appeal in which a downward departure was sought, which is frequently the case in white collar crime cases.  Also check Sentencing Law & Policy (here) for its discussion of Hamm and related developments. (ph)


UPDATE: The Second Circuit took a similar position as Hamm in remanding for resentencing when the district judge's comments on the authority to depart downward are ambiguous and may indicate the judge believed the Guidelines would not permit a departure that would now be allowed under Booker.  See U.S. v. Zedner (available on Second Circuit website here), in which the underlying offense was bank fraud. (ph)

Judicial Opinions, Sentencing | Permalink

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