Eleventh Circuit emphasizes “objective risk assessment” in affirming large downward variance

While I was off watching the Sixth Circuit in action in a capital case (basics here, webcast here), the Eleventh Circuit issued what could be an extremely significant post-Booker opinion in US v. Clay, No. 06-10088 (11th Cir. Apr. 3, 2007) (available here).  Both the facts and rulings in Clay merit careful review, and here is just one of a passages in Clay that many defendants are likely to use to argue for a below-guideline sentence:

One of the purposes of our sentencing system is to impose “the punishment that most effectively lessens the likelihood of future crime, either by deterring others or incapacitating the defendant.” U.S.S.G. ch. 1, pt. A, introductory cmt. 3.  Both the Guidelines calculations and the sentencing factors of section 3553(a) require a judge to consider characteristics of the defendant and the offense that make it more or less likely that the defendant will reoffend. 

This record reflects that the sentencing judge engaged in precisely this kind of objective risk assessment and then entered a sentence “sufficient but not greater than necessary” to satisfy the purposes of section 3553(a).  The enhancements for the firearm and the acquitted conduct reflect that, unlike some other defendants who possess ten boxes of cold medicine, Clay had been involved in the drug trade for years, was armed during the offense, and required longer incapacitation to protect the community and provide just punishment.  The departure for postoffense rehabilitation reflects that, unlike some other defendants, Clay has fundamentally changed since his offense, poses a lesser risk to the community, and does not require incapacitation for too long.

I sincerely hope the Supreme Court embraces these sentiments in Claiborne and Rita — especially the notion that section 3553(a) requires a judge to conduct a “kind of objective risk assessment” in order to avoid imposing a prison sentence that leads to “incapacitation for too long.”  If SCOTUS does follow these principles, it should lead to victories for both Mario Claiborne and Victor Rita, neither of who seem too likely to reoffend given the facts of their offenses and their personal background.  (These principles ought also help out Lewis Libby in his upcoming sentencing, too.)

Among other notable aspects of Clay is who molded the opinion.  Clay was authored by Judge Pryor with Judge Carnes and the Ninth Circuit’s Judge Farris sitting by designation.