Post-Booker Sentence Reviews Under the Guidelines

An Eleventh Circuit opinion in United States v. Crawford (here) considers the government's challenge to a sentence in a case involving a scheme to defraud the government of over $400,000 from illicit transactions in WIC coupons, specifically the district court's failure to find "more than minimal planning" under 2F.1.1(the roughly equivalent provision now would be 2B1.1(8)(C) "sophisticated means") and a downward departure because the case was "outside the heartland."  Crawford operated a store called "Mr. Wick, Jr." (note the play on the government's Women, Infants and Children assistance program), and engaged in over 100 transactions with one seller of WIC coupons over a 5-year period.  The district court sentenced Crawford to 60 months probation, plus restitution, and the government appealed the sentence.

The first step was to determine the standard of review in light of Booker making the Sentencing Guidelines advisory rather than mandatory.  The court stated that Booker did not alter the standard of review involving application of the Guidelines:

Nothing in Booker suggests that a reasonableness standard should govern review of the interpretation and application as advisory of the Guidelines by a district court. See Villegas, — F.3d at —, 2005 WL 627963 at *4. Booker did not affect 18 U.S.C. section 3742(f), which mandates remand of any case in which the sentence "was imposed as a result of an incorrect application of the sentencing guidelines . . . ." Id. at —, 2005 WL 627963 at *5. Although under Booker, the Sentencing Guidelines are an advisory rather than a mandatory regime, the district court remains obliged to "consult" and "take into account" the Guidelines in sentencing . . . This consultation requirement, at a minimum, obliges the district court to calculate correctly the sentencing range prescribed by the Guidelines."

The Eleventh Circuit overturned the district court's finding that Crawford's misconduct was "purely opportune" and not the product of more than minimal planning: "The district court found that each of the over 100 instances in which Crawford bought vouchers from Kelley was purely opportune. That determination was clearly erroneous. The sheer number of transactions alone makes it highly unlikely that each transaction was purely opportune. Crawford wrote 184 checks to Kelley between April 12, 1996, and March 22, 2001, totaling $434,032."

Regarding the downward departure because the case was outside the heartland, the district found that a variety of factors in combination, including extreme remorse, substantial assistance to the government (despite the absence of a prosecutor's motion for a departure), lack of criminal sophistication, and that the loss overstated the criminality, supported the departure.  The Eleventh Circuit reversed because it could not determine how some factors which are discouraged (remorse) or prohibited (substantial assistance with no departure motion) played into the departure decision, therefore a remand was necessary. (ph)