Judge Presnell speaks on 5K after Booker
In addition to being a great day for the Irish, St. Patty’s Day 2005 will also go down as an amazing day for the common law of sentencing. The March 17 sentencing work of Judge Sifton in Simon and Judge Goodwin in Gray covers an array of important post-Booker issues, with Simon especially effective on crack sentencing and the purposes of punishment, and Gray doing amazing work on sentencing issues concerning burdens of proof, Crawford and ex post facto doctrine. And now we should add to the Irish stew of notable March 17 opinions the work of Florida District Judge Gregory Presnell in US v. Belvett, No. 6:04-cr-199-Orl-31DAB (MD Fla Mar. 17, 2005).
Judge Presnell made his mark on the post-Blakely sentencing world in various ways, as detailed here and here and here, and now in Belvett he addresses departures for substantial assistance under 5K1.1. Though, as with Simon and Gray, the full Belvett opinion (which can be downloaded below) merits a close read, here is a choice snippet that flows from the prosecutor’s objection to Judge Presnell granting a larger 5K1.1 departure than requested by the government:
This case presents the next logical step in the government’s philosophically one-sided bid to marginalize the judicial branch. Despite the government’s constant refrain that it seeks uniformity in sentencing, the government’s actual policy reveals that refrain to be disingenuous. [FN 4]
[FN 4] One of the basic goals of the sentencing guidelines was to reduce sentencing disparity. However, with respect to substantial assistance departures, this goal has not been achieved. Indeed, the commentators and the U.S. Sentencing Commission itself have noted the substantial sentencing disparity among Districts in the application of Section 5K1.1. It would be naive to think that court discretion is the primary culprit driving the disparity, as the government controls the framing of Section 5K1.1 motions and often gets the departure it recommends.