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U.S. Sentencing Commission Proposes Drug Guideline Reductions

Via Sentencing Law and Policy, the U.S. Sentencing Commission has issued this press release calling for comments about a suggested two level reduction in offense level for all drug offenses under the federal sentencing guidelines. The proposed reduction would amount to about 11 months per sentence but would not (and could not) affect mandatory minimum sentencing statutes.

The Commission says the amendment would reduce the number of inmates in the federal system: [More...]

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Sentencing Commission Report on Child P*rn

The U.S. Sentencing Commission has released its report on sentencing in child p*rn cases. It makes several recommendations, including lowering penalties for some offenders.

The Commission believes that the current non-production guideline warrants revision in view of its outdated and disproportionate enhancements related to offenders’ collecting behavior as well as its failure to account fully for some offenders’ involvement in child pornography communities and sexually dangerous behavior. The current guideline produces overly severe sentencing ranges for some offenders, unduly lenient ranges for other offenders, and widespread inconsistent application.

The executive summary is here and the full report is here. The findings and recommendations are here.

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Change Day for Federal Sentencing Guidelines

Every November 1, amendments to the U.S. Sentencing Guidelines go into effect. Most of the talk this year has been about the reduction for crack cocaine penalties, which are minimal and don't apply to offenses committed before August 3, 2010 (although one judge in Maine last week said he'd apply them to someone awaiting sentencing on August 3.)

And many drug defendants, including those sentenced for drugs other than crack, may get higher sentences under the enhancements that Congress Passed as part of the Fair Sentencing Act of 2010.

But, there is one change that applies to all defendants that may be helpful. For the first time, those at Level 13 with a Category 1 criminal history (no more than 1 point), with a guideline range of 12-18 months, don't have to get a prison sentence. That's because the Commission moved Level 13 from Zone D, where it's been since 1987 or whenever the zones were established, to Zone C. All Zone D sentences must be to prison. In Zone C, alternative sentences are possible. [More...]

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New Federal Drug Laws, New Sentencing Guidelines

For those who hoped for a stop to the escalation of the war on drugs, this isn't your year. During 2008, Congress snuck a few new laws in, and today the Sentencing Commission released its proposed guideline amendments for 2009 (pdf), adding the new offenses and increased penalties. They will appear in tomorrow's federal register and there are 60 days to provide comments.

What's new?

  • Ryan Haight Online Pharmacy Consumer Protection Act of 2008. (starts at page 25)
  • Drug Trafficking Vessel Interdiction Act of 2008 (starts at page 30)

The first prohibits controlled substance sales and advertising over the internet. The second prohibits drug sales on submarines (ok submersible vessels, and the difference is explained here.)

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A Sentencing Opinion Invoking Lord Denning and Dostoyevsky

Senior U.S. District Court Judge John L Kane, Jr. (Colorado) issued a brave sentencing decision today in a child p!rnography case. (Opinion in USA v. Rausch, here.)

In it, Judge Kane examines the purpose of sentencing and punishment, invoking Lord Denning, Dostoyevsky and others.

The defendant was charged with possession of less than 100 child p!rn images. The Sentencing Guidelines called for a sentence of 97 to 120 months. The Government asked for 97 months. [More...]

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Supreme Court Grants Cert, Vacates Sentencing Opinion

The Supreme Court today granted cert in a 10th Circuit sentencing guideline case. (Order here, pdf). The case is U.S. v. Garcia-Lara, 499 F.3d 1133 (10th Cir. 2007). It was a terrible decision that held district courts have to find something unusual about the defendant or his case in order to vary from the Guidelines. It's a meth case where the trial court departed below the guidelines to impose 140 months and the 10th Circuit reversed. (See below the fold for facts.)

Not only did the Supreme Court today accept cert on the case, it vacated the opinion and remanded the case for further proceedings in light of Gall v. U.S. The Supreme Court case number is 07-9799.

[Hat tip to the Colorado Federal Defender's office for the information.]

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Supreme Court Okays Departures in Drug Cases

The Supreme Court today affirmed rulings of two district court judges in cases in which they had granted downward departures from the federal sentencing guidelines. One case involved crack, the other ecstasy.

The cases are Kimbrough v. U.S., 06-6330 (opinion here, pdf) and Gall v. U.S., 06-7949, opinion here (pdf).

In Kimbrough, the Court had imposed a 15 year sentence instead of the 19 to 22 years called for by the guidelines. In Gall, the Court granted probation instead of a 30 to 37 month sentence.

Scotus Blog explains the decisons. Law Prof Doug Berman of Sentencing Law and Policy is very excited and will have a lot of commentary as soon as he's digested the opinions.

Tomorrow, the U.S. Sentencing Commission will announce its decision on whether its recent crack cocaine guideline reduction will be retroactive and thus apply to the 19,500 crack offenders now in federal prison.

Update: Two quotes from Kimbraugh on the difference between mandatory minimums and guidelines and ability of judges to consider the disparity between crack and powder cocaine penalties:

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Defendant in High Court Sentencing Case Killed, What Now?

The criminal law world has been awaiting the Supreme Court decision in U.S. v. Claiborne and U.S. v. Rita, which address unresolved questions from the Booker case (argued in the Supreme Court by TalkLeft contributor TChris) which ruled the federal sentencing guidelines are no longer mandatory.

The issue in the Claiborne case is whether a sentence below the guideline range must be justified by extraordinary circumstances. Scotus Blog reports:

The case of Claiborne v. U.S. (docket 06-5618) was heard by the Court on Feb. 20, along with a second Guidelines case (Rita v. U.S., 06-5754). The cases were heard in tandem because they both test what sentence under the Guideline may be treated as "reasonable" when challenged on appeal. The Clairborne appeal asks whether a sentence below the Guideline range is presumed to be reasonable, while the Rita case asks whether a sentence within a Guideline range is presumed to be reasonable.

But today the Public Defender's office representing Claiborne confirmed he was shot to death in Saint Louis in recent days.

So what happens to his case?

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