Tuesday, September 04, 2007

“Downward Departure” from Guideline Sentence must fall Below Guideline Range

In United States v. Floyd, No. 06-1513, (3d Cir. Aug. 27, 2007), the Third Circuit held that a “departure” from a Guideline sentence means a sentence below the bottom of the Guideline range rather than below a predetermined sentence within that range.

In 2004, Floyd was indicted on various counts arising from a conspiracy to distribute at least 50 grams of crack cocaine and 5 kilograms of cocaine powder. Pursuant to a plea agreement, Floyd pleaded guilty to one count of traveling interstate or causing others to travel interstate to facilitate drug trafficking, which carried a maximum sentence of 60 months in prison. 18 U.S.C. § 1952(a)(3). In exchange for pleading guilty, the government agreed to dismiss the remaining charges and to request a downward departure based on Floyd's substantial assistance with the government's prosecution of her co-defendants. At the first sentencing, the government did not move for a downward departure because, in the government's view, dismissal of the remaining charges resulted in a sufficient reduction in her sentence. With no departure motion before it, the district court calculated an applicable Guidelines range of 41 to 51 months and sentenced Floyd to 48 months in prison. The Third Circuit agreed with Floyd that “the [g]overnment did not reserve the right not to recommend a downward departure on the ground that the charge bargain turned out to be more favorable than it had originally anticipated” and remanded to the district court to determine whether Floyd's assistance was “substantial.” On remand the government chose to forego an evidentiary hearing and simply moved for the downward departure.

At Floyd's resentencing, the district court incorporated its prior rulings that established a Guideline range of 41 to 51 months. With respect to the government's motion to depart, it ruled that the case “marginally” met the criteria for a downward departure from the original sentence of 48 months. As a result, the court reduced the original sentence of 48 months by 6 months. The court then stated that the sentence “satisfie[d] the purposes” of the factors outlined in 18 U.S.C. § 3553(a), and, without altering Floyd's sentence further, imposed the sentence of 42 months.

Floyd's attorney objected, arguing that despite having granted the government's departure motion, the district court had “in essence ... imposed a guideline sentence, just downward from the initial sentence.” The court responded that the sentence of 42 months did reflect a downward departure from the 48 month original sentence.

Floyd appealed, arguing that a downward departure under the Guidelines must result in a sentence below the otherwise applicable range and that the district court “misunderstood the definition of a downward departure.”

The Third Circuit agreed, finding that the manner by which the District Court reduced Floyd's sentence– from a prior sentence of 48 months to a new sentence of 42 months– was inconsistent with proper sentencing procedure and step 2 of the Gunter process. The Circuit concluded that the definition of departure–the “imposition of a sentence outside the applicable guideline range or of a sentence that is otherwise different from the guideline sentence”(U.S.S.G. § 1B1.1 cmt. n.1(E)(2003))–does not mean a departure from a specific sentence determined within the guideline range. Such a view, it explained, that every sentence that is lower than a within-range sentence can be considered “otherwise less than the guideline sentence” (and thus a downward departure), even when it is within the applicable range, would effectively nullify any distinction between simply reducing a sentence within a range and formally departing from it. The Court has previously stated that when someone is promised the possibility of ‘a departure from the guidelines' under U.S.S.G. § 5K1.1, he or she may reasonably expect to be afforded the possibility of a sentence below the guideline range.

By departing from the previously imposed sentence, rather than from the calculated Guidelines range, the district court effectively inverted the three-step sentencing process. District courts must rule on departure motions after calculating the range but before balancing the § 3553(a) factors. Here, the court departed from the sentence it originally imposed and therefore departed after (an assumed) balancing of the statutory factors, making it impossible to effectively review the sentence.
Finally, the Court explained how the sentencing judge could appropriately arrive at the 42-month sentence:
The Court, for example, could have departed below the 41 to 51 month range (at step 2), and then varied upward within the range by balancing the § 3553(a) factors (at step 3) [or] . . . the Court could have “denied the motion for a departure and then gone on to acknowledge [Floyd's] substantial assistance by sentencing lower in the guideline range than it would otherwise have done.

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