More on departures and variances: not quite as easy as 123
In this recent post, I spotlighted the importance of a post-Booker protocol in which judges first (1) calculate an applicable guideline range, then (2) make traditional departure determinations, and then (3) decide whether to follow or vary from the (now advisory) guidelines based on 3553(a). I also expressed concern that it would be dangerously easy for courts to collapse the departure and variance considerations (steps 2 and 3 above), especially in cases where a traditional departure is plausible but unlikely. (TalkLeft has an astute recent post, Booker, FanFan 1-2-3, commenting on these matters.)
A district court Booker decision that just came on-line, US v. Mullins, 2005 WL 372209 (WD Va., Feb. 16, 2005) (available here), confirms that some post-Booker decisions may not be as easy as 123. In Mullins, Chief US District Judge James Jones finds it “reasonable to sentence the defendant below the advisory sentencing guideline range” after his guilty plea to two firearm charges, but does so after suggesting, but not conclusively ruling on, the possibility of a departure:
The ground for the requested downward departure here is unmentioned in the Sentencing Guidelines, and thus under pre-Booker procedure, I would determine whether the fact that the conduct used to compute the guideline range is no longer criminal is sufficient to justify a departure. Whether consideration of guideline authorized departures in the post-Booker world is necessary is a question that remains to be answered. I need not decide that issue, however, since I find that in any event, a variance below the applicable guideline range is called for in this case.
There has been yet no authoritative formulation following Booker as to the weight to be given to the formerly mandatory sentencing guidelines. Regardless of the precise weight to be given to the Sentencing Guidelines, however, I find that evaluation of the statutory sentencing goals justifies a sentence below that of the guidelines. The applicable sentencing statute left untouched by Booker requires a sentencing court to impose a sentence not greater than necessary to comply with certain listed sentencing purposes, including “afford[ing] adequate deterrence to criminal conduct.” 18 U.S.C.A. § 3553(a)(2)(B). In the present case, neither the defendant nor others can be deterred by a sentence based on the guideline range for possession of a semiautomatic assault rifle, since that conduct is no longer criminal. Instead, the more apt guidelines range should be based on the conduct that is still criminal — selling a firearm without the proper documentation. That offense has a base offense level of 12. USSG § 2K2.1(a)(7). Adding the stipulated increases and subtracting the reduction for acceptance of responsibility produces a total offense level of 21, which has a sentencing range of 37 to 46 months for Criminal History Category I.
Taking into account the guidelines as well as the sentencing goals of § 3553(a), I find that a reasonable sentence in this case is 40 months imprisonment. This sentence gives recognition to the guideline range while also applying an appropriate reduction because of the removal of criminality of the offense used to calculate that range.
Because of the understandable decision not to rule expressly on the departure issue, I think the Sentencing Commission will have to code the Mullins case as a “variance.” However, both because a departure likely would have been appropriate and because Judge Jones linked the degree of his variance to the guidelines, this case hardly seems to be a “non-Guidelines” sentence. Mullins thus spotlights how hard it will be for the USSC to code and present effectively post-Booker data, even though as noted here everyone consider such data work to be among the USSC’s most critical tasks now.