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Proffer agreements are analyzed under commercial contract law frameworks, but given solicitude for federal constitutional rights
Proffer agreements, are analyzed under contract law per United States v. Carrillo, 709 F.2d 35, 36 (9th Cir. 1983). A cooperation agreement is analogous to a plea bargain agreement and therefore this agreement may be analyzed in terms of contract law standards. In construing the terms of an agreement the government and defendant's obligations, courts employ traditional contract law principles. With regards to proffers, courts are mindful to remember that the contract is part of an ongoing criminal proceedings where additional restraints may apply. Proffer agreements part of criminal proceedings are unique contracts and all ordinary contract principles are supplemented with this concern for defendant’s rights to fundamental fairness under the Due Process Clause. United States v. Farmer, 543 F.3d 363, 374 (7th Cir. 2008). In construing a proffer agreement between the government and defendant, courts must follow a three step approach. First, the court must ask whether the terms of the agreement on their face are construed in a clear and unambiguous manner. If they are, then the court will not look to extrinsic sources to determine their meaning. If not, then courts turn to the facts of the case to determine what the government laid out and what defendant reasonably understood to be the terms of the agreement. Finally, if ambiguities still remain, a court ought to resolve those ambiguities against the government. United States v. Plascencia–Orozco, 852 F.3d 910, 919 (9th Cir. 2017). Like a commercial contract, federal proffer agreements following the traditional black letter rules yield to the substantive and procedural requirements of both federal and state rules of criminal procedure intended to safeguard the rights of the accused. Breazeale v. Victim Services, Inc., 878 F.3d 759, 769 (9th Cir. 2017). First, this “contract” right is constitutionally based and reflects specific concerns that differ from commercial contracts and cover a greater breadth of concerns than regular contract law. Second, with respect to federal prosecutions, the courts’ concerns reach even farther than just protection of the defendant’s constitutional rights. It also encompasses concerns for the honor of the government, public trust in the administration of justice, and the effective administration of justice vis a vis the federal judiciary. United States v. Thompson, 403 F.3d 1037, 1039 (8th Cir. 2005). Accordingly constitutional and supervisory concerns dictate holding the Government to a greater degree of responsibility for imprecise language or ambiguities in plea agreements than the federal defendant and far greater than parties in a commercial contract dispute. This is particularly appropriate where, the Government presents a written agreement for the same reasons that underpin a private contract. Because defendant arrives at a plea agreement at the expense of his constitutional rights, federal prosecutors are held to high standards of both promise and performance. United States v. Rivera-Rodriguez, 489 F.3d 48, 57 (1st Cir. 2007) Meeting this obligation requires more than oral promises. Federal precedent demands not only explicit repudiation of the government’s assurances, but also in the interest of fairness, be read to forbid "end-runs" around their promises. United States v. Saxena, 229 F.3d 1, 6 (1st Cir. 2000). Because of this, courts construe agreements in federal criminal cases strictly against the government which is usually the party that drafts these proffers and plea agreements thus conferring it advantages in bargaining power. Principles of contract law allow defendant to cure a breach of the terms The contract law principal requires that the breaching party be given notice of its breach and adequate opportunity to cure it. Where the government is seeking to deprive defendant of a liberty interest but may be predicated upon a perceived breach of an ambiguous agreement, lack of notice or an opportunity to cure results in a fundamental denial of due process. Unlike in commercial contract law, when a breach causes no harm and all that the inured party is entitled to by way of remedy are nominal damages, when the federal government committed a serious breach of a plea agreement, it can call for remand for re-sentencing. The breach must be material or substantial, and just a mere technical error. Hartjes v. Endicott, 456 F.3d 786, 790 (7th Cir. 2006).
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Motion for Downward Departure Due to Diminished Capacity
Defendant, by and through his counsel, moves for a downward departure pursuant to U.S.S.G. § 5K2.13 due to diminished capacity U.S.S.G. § 5K2.13 provides that “a downward departure may be warranted if (1) the defendant committed the offense while suffering from significantly reduced mental capacity; and (2) the reduced mental capacity contributed substantially to the commission of the offense”. If such a departure is warranted, the extent of the downward departure should mirror the extent to which the reduced capacity contributed to the commission of the offense. Per § 5K2.13, on the basis of diminished capacity, a downward departure is not allowed if (1) the significantly reduced mental capacity was caused by voluntary use of drugs; (2) the facts and circumstances of the defendant's offense indicate a need to protect the public because the offense involved actual violence or serious threats of violence; or (3) the criminal history indicates a need to incarcerate to protect the public. Defendant's significantly reduced mental capacity due to a manic episode that did not involve actual violence or threats of violence could qualify for a reduction. In United States v. Nowicki, 252 F.Supp.2d 1242, 1252 (2003) held that a defendant could receive a diminished capacity departure despite because Defendant's criminal history does not indicate the need to incarcerate in order to protect the public as a false statement on a 4473 is not a violent crime. § 5K2.13 defines “significantly reduced mental capacity” as a significantly impaired ability to 1) understand the wrongfulness of the behavior or 2) to exercise the power of reason; or impaired ability to control behavior that defendant knows is wrong. A doctor diagnoses a defendant as suffering from bipolar disorder 1 with psychotic features. After noting that defendant was predisposed to developing manic symptoms because of his family history of Manic-Depressive illness/Bipolar 1, the forensic doctor provided his opinion that the addition of the antidepressant triggered a manic episode the manic ie precipitated a Manic Switch resulting in inappropriate behaviors seen with normal full blown mania including engaging in behaviours with high risk for painful consequences, impulsive behaviours, increased agitation and argumentativeness, decreased need for sleep, feelings of invincibility, abnormal energy and goal driven behaviour. The doctor opined that defendant's bipolar condition contributed substantially to his commission of these offenses. He diagnosed defendant with bipolar disorder 1, among other conditions. He concluded that he was severely psychiatrically ill at the time of the offenses, and his behavior was substantially influenced by the mental illness which then directly led to the illegal conduct. As the defendant's medical history reflects, the manic episode lead him to engage in increasingly argumentative, inappropriate and impulsive behaviors, which progressed to psychotic symptoms and illegal activities like ________. The illegal activities began with shoplifting and petty theft as a means of obtaining a rush or thrill, but ultimately progressed to inappropriately engaging in more serious crimes of ________. The DMS-V notes that manic individuals frequently do not recognize that they are in an acute episode or are ill; a term professionally known as anosognosia and often will resist efforts to be treated. They frequently stop and start medication leading to a sub clinical level of serum medication levels. The DSM-V goes on to state they may engage in activities of a disorganized or bizarre quality, gambling and anti-social behaviors may accompany the manic episode. Ethical concerns may be disregarded even by those who are typically very conscientious. Additionally, “adverse consequences of a manic episode often result from poor judgment and hyperactivity.” In a manic episode “expansiveness, unwarranted optimism, grandiosity and poor judgment often lead to an imprudent involvement in pleasurable activities such as buying sprees, reckless driving, foolish business investments and sexual behavior unusual for the person even though these activities are likely to have painful consequences. The individual may ?? It is my opinion that at the time of the alleged embezzlement, Mr. Stewart was suffering from a mental illness namely bipolar disorder mania with psychotic features. The mania with psychotic features was in my opinion triggered by the use of the antidepressants, and it is unfortunate that the treating physician failed to recognize the problem and intervene appropriately. It is my opinion that while in the manic episode, Defendant was unable to appreciate the wrongfulness of his conduct, and his judgment and reasoning was substantially affected. It is my opinion that the manic symptoms are directly responsible for his behavior, and but for the antidepressant induced manic symptoms, the illegal behavior would not have occurred. Defendant has been prescribed varying doses of Lithium from a couple of years ago to the present to treat his bipolar disorder, as shown by treatment records. To qualify for a downward departure for diminished capacity under § 5K2.13, defendant's reduced mental capacity must be a contributing cause of the offense, but does not need not be the sole cause. United States v. McBroom, 124 F.3d 533, 549 n. 14 (3d Cir. 1997). A departure under § 5K2.13 does not require a finding that the defendant's impairment is somehow an extraordinary circumstance, unique, or outside of the heartland [sic] per Guidelines. Rather, the standard focuses only on the facts of the case, unlike the departures under Chapter 5H, which relies on comparisons with other defendants' fact patterns.. United States v. Shore, 143 Supp.2d 74, 80 (D.Mass. 2001). Courts recognized that bipolar disorder is a serious mental illness that impairs a defendant's ability to reason and to control behavior known to be wrongful. Accordingly, courts have frequently granted downward departures for diminished capacity under § 5K2.13 to defendants suffering from bipolar disorder. § 5K2.13 indicates, diminished capacity departure is not limited to a defendant who is unable to reason, or process information normally as the section covers those who cannot control their conduct, even if their cognitive abilities are unimpaired. United States v. Cantu, 12 F.3d 1506, 1512 (9th Cir. 1993) opined that reduced mental capacity refers not only to a lack of full capacity of functioning, but also emotional regulation conditions. For that reason, evidence from lay witnesses that a manic defendant who did not look or act strangely in the public eye does not foreclose a downward departure under § 5K2.13. The district court is entitled to rely on uncontested expert psychiatric testimony and its findings based on that evidence will not be overturned on appeal on the grounds of clearly erroneous or abuse of discretion. Downward departures for a diminished capacity under § 5K2.13 serve a public interest purpose by identifying defendants who are less culpable because their actions were rooted in their psychiatric problems. United States v. Shore, 143 F.Supp.2d 74, 83 (D.Mass. 2001). Federal Agent's Use of a Prohibited Person as a Confidential Informant to solicit purchase and possess firearm from the Defendant constitutes outrageous conduct requiring dismissal of the indictment
The first indictment charging Defendant established that a prior felony record rendered him a prohibited person and thus subject him to the federal Brady restrictions per 18 U.S.C. 922(g)(1). Ironically, the very statute used to charge Defendant equally prohibits the government's primary witness, from also possessing a firearm. Such restrictions, however, did not prevent the government's witness from attempting to possess firearms after her self-imposed and self-serving five year time. Defendant avers that it is not only outrageous for federal agents to fail to properly vet their informant, but it's even more egregious for the named informant to make excuses and assign blame for her conduct on others. The goal of the investigation should never obviate the proper procedures or protocols, neither should the end result include an excuse for the failings or short-cuts taken by federal law enforcement. Dismissal of an indictment on the ground that the government engaged in outrageous conduct requires that defendant show that given the totality of the circumstances the government's conduct violated fundamental fairness, appealing to the universal sense of justice, safeguarded by the Due Process Clause of the Fifth Amendment. see United States v. Russell, 411 U.S. 423, 432 (1973). Outrageous government conduct occurs when the actions of law enforcement officers or informants are “so outrageous that due process principles would absolutely bar the government from invoking judicial processes to obtain a conviction.” Id. at 431-32. Now as to whether defendant showed outrageous governmental conduct existed turns upon his showing of the totality of the circumstances as in no single factor controls and the government's defense “can only be invoked in the rarest and most outrageous circumstances.” United States v. Tobias, 662 F.2d at 387 (5th Cir. 1981, cert. denied, 457 U.S. 1108 (1982). Previous courts are silent as to the existence of outrageous government conduct doctrine, instead only discussing it in various dicta. See United States v. Jayyousi, 657 F.3d 1085, 1111 (11th Cir. 2011). Defendant recognizes the high hurdle that must be cleared to demonstrate such conduct. Further, there is no bright line dictating when federal law enforcement conduct crosses the line between acceptable and outrageous, so every case should be evaluated based on the particular facts. In the present case, there are two primary areas driving the concern: first, law enforcements failure to properly vet their informant's criminal history thereby allowing a convicted felon to possess a firearm; and second, the informant's failure to acknowledge their felony conviction to multiple law enforcement agencies. Had it been known, defendant avers it would have directly altered the investigation and caused law enforcement to, find an alternate informant without prohibitions, or seek proper approval to use a convicted felon in a sting operation to purchase firearms. It is often said that the ends do not justify the means. The most destructive of ideas is that extraordinary times justify extraordinary measures. The government relies on the notion that society faces violence and social destruction so it must deal with these enemies by whatever means and that our high aims, and future historians will justify and forgive. To the contrary, defendant avers his arrest and conviction do not justify the failure by law enforcement, the lack of procedure, the shortcut to the finish line, i.e. the means of attaining it. It tramples on our rights under the Fourth Amendment that protect us against unreasonable search and seizure. We put as much stock into the Fifth Amendment Due Process right of citizens to fundamental fairness within the executive and judicial process. Law Enforcement and their paid informants should not be free to make Machiavellian choices to abide by whatever principles they determine necessary in order to reach their goal, no matter how worthy. To allow such conduct is outrageous. The reason the means are important, maybe even more important than the ends, is because how we get to a goal is indicative of our ethics, morals, and adherence to the rule of law. Only then will respect for the process be lauded. The combination of these circumstances rise to the level of outrageous conduct and since the misconduct was brought to the attention of the court by defendant's motion and Rule 29 motion for judgment of acquittal, it ought be considered in the context of the entire trial, as to whether the conduct may have prejudiced his substantial rights. United States v. Bosby, 675 F.2d 1174, 1185 (11th Cir.1982). Given the above discussion, both verdicts should be reversed. Darick Dewayne DILLARD, Defendant-Appellant, v. UNITED STATES OF AMERICA, Plaintiff-Appellee., 2022 WL 4182811, at *10–14 Verdict, Agreement and Settlement
United States District Court, UNITED STATES OF AMERICA, v. Defendant Agreement to Plead Guilty (with Stipulations and Appeal Waiver) The United States of America, by and through __________, United States Attorney for the District of ______, and _________ Assistant United States Attorney, enter into the following Agreement based upon the promises and understandings set forth below. 1. Guilty Plea. Defendant agrees to plead guilty to the Indictment herein pursuant to Rule 11 of the Federal Rules of Criminal Procedure (Fed. R. Crim. P.). The Indictment charges the Defendant with having violated Title 18, United States Code, Section 922(g)(4) (possession of a firearm by a person previously involuntarily committed to a mental institution). Defendant and the Government agree that Defendant's plea of guilty is conditional in that he reserves the right, on appeal from judgment herein, to have an appellate court review this Court's decision dated ______ on Defendant's Motion to Dismiss Indictment. The Government consents to the Defendant's conditional guilty plea. 2. Sentencing/Penalties. Defendant agrees to be sentenced on the charge described above. Defendant understands that the penalties that are applicable to the charge described above are as follows: A. A maximum prison term of 10 years (18 U.S.C. § 924(a)(2)); B. A maximum fine of $250,000 (18 U.S.C. § 3571(b)(3)); C. A mandatory special assessment of $100.00 that Defendant agrees to pay at or before the time that he enters a guilty plea; and D. A term of supervised release of not more than 3 years. Defendant understands that the Defendant's failure to comply with any of the conditions of supervised release may result in revocation of supervised release, requiring the Defendant to serve up to 2 additional years in prison for any such revocation of supervised release pursuant to 18 U.S.C. §3583. 3. Agreements Regarding Sentencing. The parties agree to make the following non-binding recommendations as to sentencing: A. The parties agree to recommend that the Court find that the Defendant has accepted responsibility for the offenses of conviction, and that the Court should reduce the Defendant's Adjusted Offense Level by three levels under U.S.S.G. § 3E1.1. The Government reserves the right not to recommend a reduction under U.S.S.G. § 3E1.1 if, at any time between his execution of this Agreement and sentencing, the Defendant: (a) fails to admit a complete factual basis for the plea; (b) fails to truthfully admit his conduct in the offense of conviction; (c) engages in conduct which results in an adjustment under U.S.S.G. § 3C 1.1; or (d) falsely denies or frivolously contests relevant conduct for which the Defendant is accountable under U.S.S.G. § 1B1.3. Defendant understands that he may not withdraw the guilty plea if, for any of the reasons listed above, the Government does not recommend that he receive a reduction in Offense Level for acceptance of responsibility; B. That either of the following guideline analyses is appropriate in this case: (1) a determination that the base offense level for the offense of conviction is 14 under U.S.S.G. §2K2.1(a)(6) because the defendant was a prohibited person at the time the defendant committed the instant offense; an increase of the base offense level of 14 by 4 levels under U.S.S.G. §2K2.1(b)(6) because the defendant used or possessed a firearm in connection with another felony offense, namely reckless conduct with a dangerous weapon, or (2) a determination that the cross reference of U.S.S.G. §2K2.1(c)(1)(A) requires the application of U.S.S.G. §2A2.2 because the defendant used or possessed a firearm in connection with the commission of another felony offense, namely aggravated assault within the meaning of U.S.S.G. §2A2.2. Under U.S.S.G. §2A2.2, the base offense for the offense of conviction is 14 and that base offense level is increase by 5 levels under U.S.S.G. §2A2.2(b)(2) because a firearm was discharged. C. That the offense level determined under either analysis should be increased by an additional 6 levels under U.S.S.G. §3A1.2(c)(1) because the defendant knew or had reasonable cause to believe that a person was a law enforcement officer and assaulted such officer during the course of the offense, within the meaning of U.S.S.G. §3A1.2(c)(1). The parties expressly agree and understand that should the Court reject either or both of the recommendations of the parties, Defendant will not thereby be permitted to withdraw his plea of guilty. The parties agree and understand that the Court has the discretion to impose any lawful sentence. 4. Appeal Waivers. Defendant is aware that Title 18, United States Code, Section 3742 affords a defendant the right to appeal the sentence imposed. Knowing that, Defendant waives the right to appeal the following: A. Defendant's conditional guilty plea and any aspect of Defendant's conviction in the above-captioned case with the exception of the right of appeal that he has preserved to have an appellate court review this Court's decision dated 9/21/10 on Defendant's Motion to Dismiss Indictment; and B. A sentence of imprisonment that does not exceed 51 months. Defendant's waiver of his right to appeal shall not apply to appeals based on a right that has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review. The number of months mentioned in this paragraph does not necessarily constitute an estimate of the sentence that the parties expect will be imposed. 5. Consequences of Breach. If Defendant violates or fails to perform any obligations under this agreement (“a breach”), the United States will be released from its obligations hereunder and may fully prosecute Defendant on all criminal charges that can be brought against Defendant. With respect to such a prosecution: A. The United States may use any statement that Defendant made pursuant to this agreement, including statements made during plea discussions and plea colloquies, and the fact that Defendant pleaded guilty, and Defendant hereby waives any claim under Rule 410 of the Federal Rules of Evidence or Rule 11(f) of the Federal Rules of Criminal Procedure that such statements and guilty plea are inadmissible. B. Defendant waives any and all defenses based on the statute of limitations with respect to any such prosecution that is not time-barred on the date that this agreement is signed by the parties. If the United States chooses to exercise its rights under this paragraph, the determination of whether Defendant has committed a breach shall be made by the Court upon an appropriate motion. In a proceeding on such motion, the United States shall have the burden to establish Defendant's breach by a preponderance of the evidence. 6. Speedy Trial Waiver. Defendant agrees to waive, and hereby does waive, any and all rights he might have under the Speedy Trial Act, 18 U.S.C. §§ 3161-64, from the date of the execution of this Agreement and continuing thereafter through and including the date upon which sentence is imposed. In the event that the Court determines that Defendant has breached this Agreement, as set forth in Paragraph 5 of this Agreement, then the waiver described in this Paragraph shall continue through and including the date on which the Court determines that such a breach has occurred. Defendant expressly consents to the entry of an Order by the Court excluding such periods of time from such consideration. 7. Abandonment. Defendant agrees to voluntarily abandon all right, claim, title, and interest in the firearms listed in the Indictment: a Remington Model 721.270 rifle, bearing serial number 193890; and a Midland-Armsport Model 1126, 12 gauge shotgun, bearing serial number 8710558. Defendant agrees to hold the United States, its agents and employees, harmless from any claims whatsoever in connection with the seizure, abandonment, disposition, and destruction of the firearms. 8. Validity of Other Agreements; Signature. This Agreement supersedes any prior understandings, promises, or conditions between this Office and Defendant. However, in the event that Defendant fails to enter his guilty plea or is allowed to withdraw his guilty plea entered hereunder, and the Court determines that Defendant has not breached this agreement, then any proffer agreement between the parties shall remain in effect. No additional understandings, promises, or conditions will be entered into unless in writing and signed by all parties. The signature of Defendant in the space designated signifies his full and voluntary acceptance of this Agreement. I have read this Agreement and have carefully reviewed every part of it. I understand it and I have voluntarily agreed to it. I am legal counsel for Defendant. I have carefully reviewed every part of this Agreement with Defendant. To my knowledge, defendant's decision to enter into this Agreement is an informed and voluntary one. Date: ________ Defendant’s sentence based on the United States Sentencing Commission’s interpretation
United States v. McIntosh, No. 23-1899 (3d Cir., Dec. 23, 2024), covers firearms policy outside the arena of 922 (g) prohibitors. The case discusses the legal doctrine of Auer deference given to federal agencies in regards to their interpretation of rules and regulations. Specifically, this case delves into sentencing “enhancements” for stealing a firearm capable of accepting a “large capacity magazine” and possession of a firearm “in connection with another felony offense.” Federal courts follow an official set of Sentencing Guidelines that categorize different types of offenses by seriousness, then mete out various increases and decreases depending on the facts of te case and mitigating or aggravating factors about the victims, defendant, and the nature of how he carried out the crime. After applying all the relevant factors the Guidelines refer the court to a specific chart, which assigns a sentence timeline corresponding to the judge’s findings. Federal law, 18 U.S.C. § 3553, commands federal courts to apply the Guidelines. The Supreme Court has held that the Constitution requires the Guidelines to be “advisory” rather than binding on Article III courts. However, judges still must explain their reasons for not following the Guidelines for each departure. When a defendant appeals his sentence, the Supreme Court held that appellate courts are to presume that a trial judge’s sentence is reasonable if it follows the Guidelines. The U.S. Sentencing Commission, an independent agency comprised of a few judges and highly-credentialed lawyers, publishes the Sentencing Guidelines, and amends them. The Commission also publishes an official Commentary on the Guidelines, which provides clarification about the Commission’s intended meaning of various sections. The Guidelines are intricate and sometimes confusing, so courts often refer to the Commission’s Commentary for illumination – and that is what happened in McIntosh. The level of deference courts should give to this commentary has been a subject of debate, particularly after the Supreme Court’s decision in Kisor v. Wilkie. The Guidelines cover firearms; especially ones used in the commission of a crime. It is important to note that these are not additional charges that the defendant faced – they are not “crimes,” and a defendant is not convicted of violating these rules. Instead, these rules come up after the conviction, at the sentencing, as factors that can result in a longer sentence. The guidelines at issue were the following: 2K2.1(a)(4)(B): This enhancement applies when defendant, who is prohibited from possessing firearms, is also convicted of a crime involving a “semiautomatic firearm that is capable of accepting a large capacity magazine” (greater than 15 rounds) 2K2.1(b)(6)(B): This enhancement applies when defendant “possessed any firearm in connection with another felony offense” The Commentary, clarifies to gives definitions for “large capacity magazine” and “another felony offense” “Large Capacity Magazine” Enhancement: U.S.S.G. § 2K2.1(a)(4)(B) covers possessing a “semiautomatic firearm that is capable of accepting a large capacity magazine,” Note 2 defines “large capacity magazine” as more than 15 rounds of ammunition “Another Felony Offense” Enhancement: U.S.S.G. § 2K2.1(b)(6)(B) covers possessing a firearm “in connection with another felony offense”. Application Note 14 (B) clarifies that this enhancement applies even if a firearm is found and taken during the commission of an unrelated to firearms crime Kisor v. Wilkie contained a dissenting opinion by Justice Kagan, who required numerous factors for courts to consider before deferring to federal agencies about the interpretation of their regulations. The Third Circuit has since distilled Kisor to a three-part test, for when relevant Guideline wording is truly ambiguous and whether the Commission’s interpretation is “reasonable,” and “whether the character and context of the agency interpretation entitles it to controlling weight.” It concluded that “in connection to another felony” and “large capacity magazine” were both inherently ambiguous terms, and that the two notes defining these terms were reasonable. Because the Commission undertook notice-and-comment rulemaking for this Commentary as well as the Guidelines, it was not merely a post-hoc rationalization, but was something the agency had carefully considered beforehand, and had followed APA rules and subjected the changes to public comment (a step some agencies skip). Thus the Commission's notes satisfied the third part of the test. The court clarified that the Sentencing Commission has the authority to conclude that the possession of certain kinds of firearms by prohibited persons is especially dangerous, even if possession of such weapons by the general public is not otherwise prohibited by law. Deference to the commentary is unnecessary as the Guidelines’ text is clear enough on its own, and suggested that there are Second Amendment constitutional muster problems with the sentencing enhancement as it applies to “large capacity magazines.” The discussion of how to define “large capacity magazine” is particularly interesting, especially because Second Amendment challenges to state bans on such magazines are currently pending on appeal in various courts. Defendant attacked the Commentary’s interpretation from several angles, all of which the court rejected. He challenged the history of the Guidelines, which was originally included after the enactment of the 1994 assault weapon ban. After the federal assault weapons ban sun-setted in 2004, the Commission amended § 2K2.1(a), removing all references to the expired law 18 U.S.C. § 921(a)(30). The revised Guidelines replaced the deleted phrases with the term “semiautomatic firearm capable of accepting a large capacity magazine, effectively reviving the federal assault weapons ban's teeth. The Commission then defined this phrase in Note 2 by stating that a semiautomatic firearm with a magazine capable of accepting more than 15 rounds of ammunition. This is a phenomenon where one statute expires, but other related laws and regulations that referenced the now-defunct law are still on the books, and are left unamended, or are vaguely revised necessitating clarification from the agency tasked with making said revisions. These cases highlight the ongoing debate over the level of deference applied to Sentencing Commission’s interpretations especially after Kisor v. Wilkie. Deference is appropriate when the commentary clarifies genuinely ambiguous Guidelines provisions and falls within the Commission’s expertise. Loper Bright Enterprises v. Raimondo which overruled Chevron deference under which courts would defer to ATF's reasonable interpretation of ambiguous united states code statutes (as opposed to agency? regulations, the issue in McIntosh). Loper Bright held that courts must exercise independent judgment to determine the best reading of a statute. Loper Bright did not address deference to agency interpretations of their own regulations so Auer deference remains largely unaffected. Therefore, the lower courts have continued to defer to the Sentencing Commission’s Commentary under Kisor. Downward departures are sentences outside of the US guidelines range which are given power and effect via policy statements in the sentencing guidelines manual. In Congress's Sentencing Reform Act, and as the Guidelines Manual, it is impossible to adhere to a rigid set of guidelines intended to encompass all ranges of individual conduct relevant to a sentencing framework. Downward departures were incorporated into the guidelines framework to allow for flexibility to permit individualized sentences if the fact pattern allows. Downward departures covers conduct with mitigating or aggravating factors that is not already accounted for in general sentencing practices. Downward variances are sentences outside of the guideline range that are not imposed within the guidelines framework. Courts may impose sentences that vary from the guidelines because while the guidelines remain the starting point and initial starting places in sentencing practice, a court may determine that a sentence outside of the guidelines framework is warranted based upon the statutory sentencing factors under 18 U.S.C. § 3553(a). Because downward departures are part of the guidelines framework, while downward variances are not, sentencing typically first calculate any departures before considering whether to vary. Although departures and variances have the same ultimate result they are treated differently procedurally when it comes to notice and appellate review.
In addition to the nature and circumstances of the offense and defendant's history and characteristics, the Court must consider the “need for the sentence imposed” to serve the punitive, deterrent, protective and rehabilitative purposes of sentencing, the types of sentences available, the need to avoid unwarranted disparity and, of course, the advisory guidelines range. The guidelines are an important consideration, but they are not the only consideration in determining the appropriate sentence. Gall v. United States, 552 U.S. 38, 49 (2007). The guidelines reflect a approximation of sentences that might achieve § 3553(a)’s import. Kimbrough v. United States, 552 U.S. 85, 109 (2007) A sentencing court may not presume that the Guidelines range is reasonable. Gall, 552 U.S. at 50. Rather, the sentencing court must make an assessment based on the facts presented. A court’s final determination must reflect § 3553(a)’s overarching instruction to impose a sentence sufficient, but not greater than necessary to accomplish the sentencing goals advanced in 3553(a)(2), namely, retribution, deterrence, incapacitation, and rehabilitation. In making these individual assessments, sentencing courts are free to disagree with the guidelines’ recommended sentence in any particular case, and may impose a different sentence based on a contrary view of what is appropriate under § 3553(a). This includes the liberty to disagree with “policy decisions” of Congress or the Sentencing Commission. Pepper v. United States, 131 S. Ct. 1229, 1241 (Mar. 2, 2011) Spears v. United States, 129 S. Ct. 840, 843 (2009) held that in appropriate cases a court may impose an alternative sentence based on a disagreement with the Commission’s views. Likewise, a court may issue an alternative sentence when it opines that the Commission’s guideline's reasoning rests on unconvincing policy rationales not reflected in the sentencing statutes and the courts may vary from particular guideline because of policy disagreement with that guideline. |
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Juvenile Dependency and
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