Tuesday, January 30, 2007

Third Circuit Upholds Large Upward Variance, Explaining that Ratcheting Procedure Not Required

The Third Circuit clarified yesterday, in United States v. Colon, that the ratcheting procedure district courts must employ when departing upward under the Guidelines for criminal history -- i.e., individually and sequentially considering each next-higher criminal history category -- does not apply to upward variances in consideration of the Section 3553(a) factors. The Court has previously held that ratcheting is still required post-Booker when district courts are departing under the Guidelines, United States v. King, 454 F.3d 187, 193 (3d Cir. 2006), but to require a similarly Guidelines-centric methodology for variances impermissibly "tie[s] the courts hands" by giving the Guidelines undue primacy in the Section 3553(a) calculus. Colon, slip op. at 7. Booker "doubly diminished" the Guidelines, the Court says, first by rendering them advisory and second by putting them on an even plane with the other Section 3553(a) factors. Colon, slip op. at 4.

Here, the demotion of the Guidelines worked to the defendant's detriment. The Third Circuit affirmed a 180-month sentence on a Guidelines range of 70-87 months (offense level 25, criminal history category III). The variance was far in excess of even the Guidelines range for a level 25 offender assuming a category VI criminal history (110-137 months), but was reasonable, the Court held, given the circumstances of the defendant's prior crimes. It remains to be seen whether the Third Circuit will take such a broad view of reasonableness when considering a similarly drastic variance below the Guidelines range.

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