The diktats of criminal history and Booker‘s potential virtue

The Seventh Circuit’s decision today in US v. Rosas, No. 04-2929 (7th Cir. May 19, 2005) (available here) does not break any new Booker ground, but it does provide a stark reminder of the significance of the federal guidelines’ criminal history diktats.  It also highlights why the post-Booker world, if properly constructed and kept free from too much Congressional interference, could be a much better federal sentencing world than what came before.

The facts of Rosas are hardly unique: the case involved a defendant with a criminal past who pled guilty to various drug and firearm charges.  The legal issue is whether the defendant’s prior conviction for fleeing a police officer qualifies as a “crime of violence,” which would in turn requiring sentencing as a career offender under USSG § 4B1.1.  Rosas caught my eye because this seemingly small (and substantively irrelevant?) legal dispute over whether fleeing a police officer is a “crime of violence” had enormous impact on the defendant’s fate:  the defendant’s guideline range was to be 77 to 96 months, but it jumped to 262 to 327 months if his fleeing prior was classified as a “crime of violence.”

The Rosas court’s legal analysis of this issue under pre-Booker law seems sound (circuit precedent apparently compels treating fleeing a police officer as a “crime of violence”).  But, tellingly, the court’s analysis never includes any consideration or judgment about the factual specifics of the defendant’s priors or, more importantly, whether it makes sense for 15 years of a man’s life to hinge on a legal debate over whether fleeing qualifies as a “crime of violence.” 

Thankfully, Booker provides a remedy that could allow these case to be treated in a much sounder way.  No longer do criminal history diktats define an unalterable sentencing range; though a district judge must consider the diktats, she must also now consider the broad mandates of 3553(a) to explore whether a sentence for Rosas in the range of 262 to 327 months is “sufficient, but not greater than necessary” to achieve the purposes of punishment and the other goals set forth in 3553(a).  Though a judge post-Booker might still opt to follow the guidelines’ diktats, that decision will now necessarily flow from a broader exercise of judgment, and a form of judgement that after Booker must be attentive to many factors that seem, at least to me, a lot more significant than whether fleeing a police officer qualifies as a “crime of violence.”