Thursday, November 05, 2009

Shoupe Departures Applicable to Criminal History Only, Not Offense Level

In United States v. Grier, No. 07-3507 (3d Cir., 10/26/2009) ,the defendant challenged the district court’s ruling that it did not have the authority to reduce his offense level as an overstatement of the seriousness of his offense, pursuant to § 4A1.3. Prior to 2003, the Third Circuit had interpreted U.S.S.G. § 4A1.3 to permit a downward departure from a defendant’s career offender status if the court found that the career offender designation over-represented his criminal history. In United States v. Shoupe, 35 F.3d 835 (3d Cir. 1994), the Third Circuit had ruled that, in the absence of a definition for the term "departing" as used in § 4A1.3, this section permitted a downward departure to both the criminal history category as well as the offense level. However, in 2003, the Sentencing Commission amended § 4A1.3 to provide a specific downward departure where the defendant’s criminal history category substantially over-represents the seriousness of his criminal history or his likelihood of recidivism. The 2003 amendments also provided a definition of the term "departure" as used in the amended version of § 4A1.3. Pursuant to the 2003 amendments, § 1B1.1 now provides a definition of the term "departure" that specifically addresses the downward departure provided in § 4A1.3. The definition provided in the current § 1B1.1 for the term "departure" as used in § 4A1.3 addresses only the assignment of the criminal history category. The court in Grier concluded that the 2003 amendments superseded Shoupe.

Also, the government had argued that Shoupe was no longer good law after United States v. Booker, 543 U.S. 220 (2005) and United States v. Gunter, 462 F.3d 237 (3d Cir. 2006). The court, however, concluded that Shoupe was not impacted by Booker and Gunter because a consideration of Shoupe departures falls squarely within Step Two of the three-step process mandated by Booker, namely, formally ruling on any departure motions.

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