Monday, October 05, 2009

Plain error when district court, after granting downward departure, imposes sentence higher than bottom of pre-departure Guidelines range.

Representing criminal defendants in sentencing, "you can't always get what you want, but if you try sometimes [and sometimes even if you don’t try in the district court], you might find you get what you need". In United States v. Vazquez-Lebron, No. 08-3222 (filed October 2, 2009), the Third Circuit held that a defendant was entitled to re-sentencing when the District Court imposed a sentence that failed to provide defendant the benefit of a 5K1.1 departure that it had already granted him.

Following his indictment for drug trafficking, defendant – who ultimately pleaded guilty pursuant to a written plea agreement – provided DEA agents with information concerning a fellow drug trafficker, and later testified before a grand jury. Based on this substantial assistance, the Government, before sentencing, moved for a one-level downward departure pursuant to U.S.S.G. § 5K1.1.

At the sentencing hearing, the District Court – in the first step of the Gunter sentencing process – properly calculated defendant’s offense level as 23 and criminal history category as I, yielding a Guidelines sentencing range of 46 to 57 months' imprisonment. Then, in Gunter step two, the District Court granted the Government’s 5K1.1 one-level downward departure motion: that reduction yielded a Guidelines range of 41 to 51 months' imprisonment. The District Court imposed a sentence of 48 months: at the upper end of the custody range that included the one-level departure, but also within the original, pre-departure custody range. Defendant did not object to the sentence.

On appeal, defendant argued that he was entitled to re-sentencing because the District Court committed plain error by imposing a sentence that was two months higher than the bottom of the original pre-departure Guidelines range, without any indication that it was applying an upward variance under 18 U.S.C. § 3553(a). Defendant argued that the District Court erroneously failed to give effect to the one-level departure that it granted when it imposed a sentence above the bottom of the pre-departure Guideline range.

The Third Circuit agreed. First, at Gunter step two, the District Court was required to calculate a sentence below the bottom of the otherwise applicable Guidelines range by U.S.S.G. § 1B1.1, cmt. n.1.E (defining downward departure as a "departure that effects a sentence less than a sentence that could be imposed under the applicable guideline range or a sentence that is otherwise less than the guideline sentence."). Quoting its earlier decision in United States v. Floyd, 499 F.3d 308, 312-13, the Court ruled that when a district court grants a downward departure, the sentence it imposes "must be less than the bottom of the otherwise applicable Guidelines range." Here, where the post-departure 41 to 51 months Guidelines range overlapped with the original pre-departure 46 to 57 months Guidelines range, the District Court’s Gunter-step two calculation required a sentence less than 46 months. The District Court could have imposed a 48-month sentence only if the District Court explicitly supported an upward variance in reliance on the § 3553(a) sentencing factors– but the District Court did not do so here.

The Court further held that this sentence was plain error, because the Guidelines definition of "downward departure" was unequivocal, and clearly explicated in Floyd. The Court further held that this error was prejudicial because it was unclear whether the District court intended to vary the sentence upwards, or whether it failed to realize that it did not give defendant the benefit of the departure that it had granted. Significantly, the Court emphasized that "very few procedural errors by a District Court will fail to be prejudicial, even when the Court might reasonably have imposed the same sentence under the correct procedure. . . . [and] an error of procedure is seldom harmless."

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