Another (very different) view of Booker from a district court
Here we go again!! As I suspected (and suggested in posts here and here), Judge Cassell’s Wilson ruling was not the last word, but only the first word on the look of the post-Booker federal sentencing world. A quite distinct perspective comes today from US District Judge Lynn Adelman in US v. Ranum, Case No. 04-CR-31 (D. Wisc. Jan 19, 2005).
In Ranum, which can be downloaded below, Judge Adelman writes 13 thoughtful pages to “explain how I understand Booker and why I sentenced defendant Ranum to a year and a day in prison.” The entire opinion is rich with insights and powerful statements. For example, Judge Adelman writes:
Sentencing will be harder now than it was a few months ago. District courts cannot just add up figures and pick a number within a narrow range. Rather, they must consider all of the applicable factors, listen carefully to defense and government counsel, and sentence the person before them as an individual. Booker is not an invitation to do business as unusual.
And in a lengthy and key introductory passage, Judge Alderman documents the disagreement with Judge Cassell’s approach in Wilson:
The directives of Booker and § 3553(a) make clear that courts may no longer uncritically apply the guidelines and, as one court suggested, “only depart . . . in unusual cases for clearly identified and persuasive reasons.” United States v. Wilson, Case No. 2:03-CR-0082, 2005 WL 78552, at *1 (D. Utah Jan. 13, 2005). The approach espoused in Wilson is inconsistent with the holdings of the merits majority in Booker, rejecting mandatory guideline sentences based on judicial fact-finding, and the remedial majority in Booker, directing courts to consider all of the § 3353(a) factors, many of which the guidelines either reject or ignore. For example, under § 3553(a)(1) a sentencing court must consider the “history and characteristics of the defendant.” But under the guidelines, courts are generally forbidden to consider the defendant’s age, U.S.S.G. § 5H1.1, his education and vocational skills, § 5H1.2, his mental and emotional condition, § 5H1.3, his physical condition including drug or alcohol dependence, § 5H1.4, his employment record, § 5H1.5, his family ties and responsibilities, § 5H1.6, his socio-economic status, § 5H1.10, his civic and military contributions, § 5H1.11, and his lack of guidance as a youth, § 5H1.12. The guidelines’ prohibition of considering these factors cannot be squared with the § 3553(a)(1) requirement that the court evaluate the “history and characteristics” of the defendant. The only aspect of a defendant’s history that the guidelines permit courts to consider is criminal history. Thus, in cases in which a defendant’s history and character are positive, consideration of all of the § 3553(a) factors might call for a sentence outside the guideline range.
Further, § 3553(a)(2)(D) requires a sentencing court to evaluate the need to provide the defendant with education, training, treatment or medical care in the most effective manner. This directive might conflict with the guidelines, which in most cases offer only prison. See U.S.S.G. § 5C1.1 (describing limited circumstances in which court can impose sentence other than imprisonment). In some cases, a defendant’s educational, treatment or medical needs may be better served by a sentence which permits the offender to remain in the community.
In addition, § 3553(a)(7) directs courts to consider “the need to provide restitution to any victims of the offense.” In many cases, imposing a sentence of no or only a short period of imprisonment will best accomplish this goal by allowing the defendant to work and pay back the victim. The guidelines do not account for this. In fact, the mandatory guideline regime forbid departures to facilitate restitution. United States v. Seacott, 15 F.3d 1380, 1388-89 (7th Cir. 1994).
Finally, in some cases the guidelines will clash with § 3553(a)’s primary directive: to “impose a sentence sufficient, but not greater than necessary to comply with the purposes” of sentencing.
In sum, in every case, courts must now consider all of the § 3553(a) factors, not just the guidelines. And where the guidelines conflict with other factors set forth in § 3553(a), courts will have to resolve the conflicts.
In a word, WOWSA!!
UPDATE: Here is a pdf version if you have problems with the download: Download us_v_ranum.pdf (and commentary about the opinion is now here).