BLOG BULLETS:

• Treating the guidelines as advisory also means a court can look to the underlying purpose of a guideline in considering whether and how to apply it and can also look to guidelines other than the ones that technically apply.
• You can use this approach to reconstruct a better and more appropriate guideline for a particular offense or offender.
• But remember that even such a “reconstructed” guideline is only just one of the § 3553(a) factors and no more than a better “starting point and . . . initial benchmark.”

NOW THE BLOG:

The now advisory nature of the guidelines suggests as a corollary that the consideration they are given can be more flexible. By that, I mean the courts can consider and apply them in light of their underlying purpose and also consider other guidelines that don’t technically apply but are suggestive about appropriate sentencing in the particular case before the court. As a sort of parallel to the deconstruction we’ve been talking about, I’ve labeled this approach reconstruction, by which I mean reconstructing a better and more appropriate guideline for the case at hand. So I thought I’d give you some examples of this idea of reconstruction.

Example 1 – Illegal reentry: Section 2B1.1(b)(1) of the illegal reentry guideline increases the offense level by anywhere from 4 to 16 levels depending on the seriousness of the defendant’s prior convictions. The purpose of this graduated enhancement is arguably to protect society from returning defendants who are more dangerous than other returning defendants, though some some courts have suggested other purposes. To the extent this is the purpose, why not reconstruct the guideline to apply the enhancement only if the defendant commits an offense of comparable seriousness after returning? Or at least not apply the enhancement if the defendant returns and remains crimefree for a lengthy period of time?

Example 2 – Possession of pseudoephedrine: Section 2D1.11 makes the base offense level for possession of pseudoephedrine the same as the base offense level for the amount of methamphetamine the pseudoephedrine would make. Presumably this is aimed at people who have the pseudoephedrine in preparation for manufacturing methamphetaminine, but are caught before they start. But suppose your client is just what’s called a “smurf,” i.e., the guy who’s purchasing the pseudoephedrine to sell or deliver to the guy who’s manufacturing. If that’s your guy, why not reconstruct and apply the 4-level or 2-level reduction in § 3B1.1 for your guy’s minimal or minor role in the overall planned offense? Or even if your guy is more involved, why not reconstruct to incorporate a 3-level decrease by analogy to the 3-level decrease in § 2X1.1(b) for a conspiracy or attempt that’s stopped well short of completion of the planned crime?

Example 3 – Career offender: Remember from the discussion of the career offender guideline in my post last week that this guideline is based not on empirical research but on a statutory provision – 28 U.S.C. § 994(h) – that specifically instructed that defendants who were convicted of a crime of violence or a drug trafficking offense and had two prior convictions for such offenses should receive a sentence near the maximum term for the new offense. The legislative history of this provision – in the form of comments from one of the main sponsors of the Sentencing Reform Act, the late Senator Edward Kennedy, which are quoted in United States v. Lawrence, 916 F.2d 553 (9th Cir. 1990) and United States v. Chartier, 970 F.2d 1009 (2d Cir. 1992) – indicates it is aimed at a “relatively small number of repeat offenders [who] are responsible for the bulk of violent crime on our streets,” Lawrence, 916 F.2d at 555 n.4 (quoting 128 Cong. Rec. 26,518 (remarks of Sen. Kennedy)), and “5 percent of all criminals” who commit “50 percent of all violent crimes,” Chartier, 970 F.2d at 1015 (quoting 128 Cong. Rec. 26,518 (remarks of Sen. Kennedy)). So why not reconstruct and not apply the career offender guideline if this isn’t your client?

Example 4 – Assault resulting in great bodily injury: The guideline offense level under the aggravated assault guideline in § 2A2.2 is 21 if there’s permanent or life-threatening injury, without any requirement of an intent to cause the injury; it’s sufficient that the injury just happens to result from the assault. Compare the involuntary manslaughter guideline in § 2A1.4 that would apply if death had resulted; the offense level under that guideline is 18 even if the conduct that caused the death was reckless and only 12 if the conduct was just criminally negligent. So why not reconstruct to use the involuntary manslaughter guideline if the great bodily injury from the assault was not intended? With a reduction of some additional levels because the result of great bodily injury is less serious than the result of death?

So those are some examples of reconstruction. In addressing the 18 U.S.C. § 3553(a)(4) factor of the guidelines, consider not just the guidelines’ technical application but also their underlying purpose and other guidelines that are relevant even if not technically applicable. Then reconstruct the guideline to create a better, more appropriate guideline.

And don’t stop there, because even this reconstructed guideline is just “one factor among the § 3553(a) factors,” which is to “be given [no] more or less weight than any other [factor].” United States v. Carty, 520 F.3d 984, 991 (9th Cir. 2008) (en banc). It simply gives you a better “starting point and . . . initial benchmark.” Id. (quoting Gall v. United States, 552 U.S. 38, 49 (2007) and Kimbrough v. United States, 552 U.S. 85, 108 (2007)).

Finally, to sum up with the moral of all these posts. Don’t take the guidelines for granted, even in their now “advisory” form. Look behind the curtain, like Dorothy in the Wizard of Oz. See here. And say it the way it is, like the kid in “The Emperor with New Clothes.” See here.