Government gets 6th Circuit remand (but still may be unhappy)

In an unpublished disposition in US v. Hairston, No. 04-3038 (6th Cir. Apr. 7, 2005) (available here), the government prevailed in its sentencing appeal, but it might not be happy with the terms of the victory.   It received a Booker remand, but along the way the Sixth Circuit spoke favorably about post-offense rehabilitation as grounds for a downward departure.

The government claimed in Hairston that the district court erred in granting an eight-level downward sentencing departure based on extraordinary post-offense rehabilitation.  The Sixth Circuit concluded: “In light of Booker, and the fact that the district court sentenced Hairston under the now-erroneous impression that the Guidelines are mandatory, we are convinced that the proper course of action is to vacate Hairston’s sentence and remand for resentencing.”

Continuing on, however, the court decided to addresss the departure issue “because the district court will need to consider the correct Guidelines-recommended sentence in fashioning its own post-Booker sentence on remand.”  And in so doing, the Sixth Circuit states (citations ommitted):

We think that the district court was correct to consider Hairston’s successful efforts to overcome his drug problems and transform his life sufficiently extraordinary to justify a reduction in his sentence for post-offense rehabilitation.

Our view of Hairston’s case comports with the result reached under the Sentencing Guidelines by a number of courts, which have considered a variety of factors in determining whether a defendant’s efforts at rehabilitation justify a downward departure.  While we note that no list of factors can exhaust all relevant considerations in evaluating efforts at post-offense rehabilitation, courts in this context have considered: drug and alcohol rehabilitation; church and community involvement; steady employment, psychiatric treatment/counseling, and support of dependents; and compliance with conditions of pre-trial release.

Interestingly, the Sixth Circuit ended this opinion with a suggestion that the district court better justify the extent of its departure: “While we are convinced that the district court did not err in departing downward under the Guidelines, we instruct the district court on remand to provide a more detailed rationale for the extent of its reduction in Hairston’s sentence so that this Court can properly review for reasonableness on any subsequent appeal.”