United States Sentencing Guideline 2010 Amendments

United States Sentencing Guideline 2010 Amendments

FY 2009 Within Range Sentences National 56.8% (59.4 FY 2008) 4th Circuit 62.8% (66.3 FY 2008) E.D.N.C. 56.3% (56.2% FY 2008) Average Length of Prison Drug trafficking: National 81.2 months EDNC 156.3 Firearms: National 91.5 EDNC 134.4 Pornography/Prostitution: National 121.2 EDNC 258.6

ALTERNATIVES TO INCARCERATION

Zone Expansion Zone C to B for Treatment Alternative

5C1.1 n. 6 and 8 D abuser of drugs/alcohol or suffer from a significant mental illness Defendant s criminality is related to the treatment problem to be addressed Consider likelihood of success of program and whether lesser sentence will increase risk to public from further crimes of D Consider effectiveness of treatment program Chapter 5, Part H Revises 4 Policy Statements on Offender Characteristics Age Mental and Emotional Conditions Physical Condition, Including Drug/Alcohol Dependence Military Service Revises Intro Commentary

5 H1.1 Age

Recidivism rates decline relatively consistently as age increases. USSC, Measuring Recividism Gall (age at time of offense) Gray, 453 F.3d 1323 (11 th Cir. 2006) ( 5H1.3 Mental and Emotional Conditions

5H1.4 Physical Condition, Including Drug/Alcohol Dependence Military Service

Cultural Assimilation 2L1.2, n. 8 Defendant formed cultural ties primarily with the United States from having resided continuously in the United States from childhood Those ties provided primary motivation for the defendant s illegal reentry or continued presence in U.S. Departure not likely to increase risk to public from further crimes of defendant

1B1.1 3 Step Process Sets forth a 3 step process to arrive at appropriate sentence Could undermine advisory nature of guidelines Differs from process set forth in Rita and Gall Requires a court to consider a departure when not raised May cause judges to take more restrictive view of variances under 3553(a) 3 step process (1) The court shall determine the kinds of sentences and the guideline range by following 8 detailed steps and considering the relevant provisions as appropriate or applicable; (2) The court shall then consider Parts H and K of Chapter 5, Specific Offender Characteristics and Departures, and any other policy statements or commentary in the guidelines that might warrant consideration in imposing sentence: (3) The court shall then consider the applicable factors in 18 USC 3553(a) taken as a whole.

1B1.1 3 Step Process Tension betten 1B1 and 5h on as a whole versus emphasis on uniformity Recency 4A1.1(e)

Hate Crimes Matthew Shepard & James Byrd, Jr. Hate Crimes Prevention Act created two new offenses: Appendix A amended to refer 18 U.S.C. 249 offenses to 2H1.1 USSG 3A1.1 enhancement in subsection (a) covers crimes motivated by gender identity Appendix A amended to refer 18 U.S.C. 1380 offenses to 2A2.2, 2A2.3, and 2B1.1 Chapter 8 Sentencing of Organizations Remediation efforts Reasonable steps to remedy harm Ensure compliance & ethics programs effective Culpability Score Effective compliance & ethics program 3 level decrease Decrease if organization meets 4 criteria Direct reporting obligations Simplification of recommended probation conditions

Miscellaneous Security fraud statute to cover commodities fraud Theft or damage of Cultural Heritage Resources Unlawful disclosure of information related to social security eligibility Iodine upgraded to a list I chemical, increases maximum base offense level to 30 Resources Determining Your Client s Likelihood of Success under Community Supervision and Improving the Odds for a Non Prison Sentence, available at fd.org David Hemingway and Janet Hinton, Departures and Variances, available at fd.org

Resource Determining Your Client s Likelihood of Success under Community Supervision and Improving the Odds for a Non Prison Sentence, available at fd.org.

www.src project.org

Child Porn Scholarship Jesse P. Basbaum, Sentencing for Possession of Child Pornography: A Failure to Distinguish Voyeurs from Pederasts (publication forthcoming in Hastling L. Jrnl, May) http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1 457197 Juror Views on Just Punishment James Gwin, Juror Sentiment on Just Punishment: Do the Federal Sentencing Guidelines Reflect Community Values?, 4 Harvard Law & Policy Rev. 173 (2010)

Prior Conviction Enhancements in Illegal Reentry Cases Doug Keller, Why the Prior Conviction Enhancements in Illegal Re Entry Cases are Unjust and Unjustified (and Unreasonable too) (forthcoming in 51 Boston College L. Rev. (2010)