September 1, 2009 DEPARTURES AND VARIANCES1 David Hemingway and Janet

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McLeod, and Amy Lowe, Law Clerks for the Federal Defender, St. Louis, MO. Many thanks to Michael R. Levine, Esq. for allowing us the use of his excellent publication c171 EASY MITIGATING FACTORS, d October 1, 2006 (updated monthly and available by contacting MichaelLevineESQ@aol.com ). -i- b) Criminal history category over-represents the seriousness of past criminal conduct or exaggerates a defendant's propensity to commit crimes .......................................................................................................12 c) The Sentencing Commission has recognized that the career offender designation can overstate the risk of recidivism ...................................... 15 d) Career offender designation conflicts with purposes of sentencing ...................................................................................................................15 e) Alien who reenters and whose prior conviction is not serious .....15 f) 16-level enhancement for alien is arbitrary, capricious, and unfair since it raises both guideline and criminal history .............................16 6) The defendant 9s cooperation. ............................................................16 a) Defendant cooperated with authorities to investigate and prosecute others ....................................................................................................16 b) Cooperation not involving prosecution of another ...................................17 c) Cooperation in the absence of §5K1.1 motion. ..............17 d) Cooperation with state or local authorities ...............................................18 e) Cooperation by a third-party on Defendant 9s behalf ...............................18 f) Attempted cooperation .............................................................................18 7) Effect of imprisonment on the defendant .........................................................19 a) The defendant 9s health, need for medical care ........................................19 8) Deficiencies of imprisonment .............................................................................21 a) Alien who will be deported ......................................................................21 b) Aliens face more severe restrictions in prison than non-aliens .........21 c) A longer sentence would impair defendant 9s rehabilitation .....................21 d) Proper to permit more community service in lieu of prison ....................................................................................................................22 9) Post-offense, post-conviction, and post-sentencing rehabilitation ............................................................................................................................... .23 10) Prison has greater significance for those imprisoned for the first time ..........25 11) Vulnerability to victimization or abuse in prison ............................................25 12) Age ........................................................................................................................26 13) Effect of imprisonment on third parties ...........................................................27 a) Extraordinary family circumstances or where incarceration would have harsh effect on innocent family members .................................................29 b) Cost to taxpayers of lengthy incarceration. ..............................................29 14) Limited culpability of defendant .......................................................................30 -ii- a) Downward adjustment for role in the offense is inadequate to show defendant 9s peripheral involvement ........................................................30 b) Defendant had no knowledge of, or control over, amount or purity of drugs .........................................................................................................30 c) Defendant was accessory after-the-fact ................................................. 31 d) Defendant was member of conspiracy for a brief time .............................31 e) Minimal role in the offense ......................................................................31 f) Defendant had limited, though not a minor, role in offense .....................32 15) Defendant 9s intent or motive ..............................................................................32 a) Lack of knowledge, criminal intent, or mens rea .....................................32 b) Motive not venal ........................................................................................32 c) Defendant 9s conduct did not threaten the harm sought to be prevented by the law proscribing the offense 3 perceived lesser harm ........................33 d) Defendant acted with less culpable intent ................................................34 16) Victim's conduct substantially provoked the offense behavior .....................34 17) Government responsibility for criminal behavior ..........................................34 18) Alien who reentered for honorable motive or to prevent perceived greater harm ....................................................................................................................34 19) Defendant 9s Behavior .........................................................................................35 a) Defendant 9s conduct was aberrant ............................................................35 b) Aberrant behavior that does not qualify for downward departure ............37 20) Defendant is law abiding citizen who just did a dumb thing ..........................37 21) Duress or Coercion .............................................................................................37 22) Attempts by defendant to mitigate the harm ...................................................38 a) Extraordinary restitution ...........................................................................38 b) Voluntary disclosure of crime ..................................................................38 c) Voluntary cessation of crime before discovery ........................................39 d) Extraordinary demonstration of acceptance of responsibility ..............39 e) Extreme remorse .....................................................................................40 23) Defendant 9s Personal History ............................................................................40 a) Lengthy period of time since commencement of offense ........................40 b) Brief period of time previously served in prison ......................................40 c) Defendant 9s otherwise outstanding character ........................................41 d) Excellent employment history ................................................................41 e) Defendant 9s good deeds and past integrity; exceptional charitable, community, or military service ...............................................................42 -iii- f) Disadvantaged childhood, victimization, lack of guidance as a youth ....................................................................................................................44 g) Early death of parents ..............................................................................46 h) Death of sibling and close friend ............................................................46 i) Defendant 9s personal characteristics and the offense were atypical ........46 j) Holocaust survivor ..................................................................................47 24) Cultural heritage and sociological factors .....................................................47 25) Mental condition and history ...........................................................................47 a) Extraordinary physical, sexual, or psychological abuse suffered as a child ..........................................................................................................47 b) Defendant is youthful and immature .......................................................49 c) Defendant 9s diminished mental capacity ...............................................49 d) Mental retardation or impaired intellectual functioning .......................52 e) Compulsive Gambling Disorder ...............................................................52 f) Battered Woman Syndrome .......................................................................53 g) Defendant 9s mental and emotional condition .................53 26) Guidelines overstate seriousness of the offense ...............................................54 a) Child pornography guidelines are inflated and lack empirical support ....54 b) Drugs were of very low purity ..............................................................55 c) Disparity caused by crack to powder ratio ...............................................55 d) Loss table overstates amount of loss or seriousness of offense .......57 e) Loss amount causes multiple overlapping enhancements at higher offense level ..........................................................................................................58 f) Money laundering is only incidental to underlying crime or where not drug related ......................................................................................58 g) The defendant showed utter lack of sophistication .............................59 27) Restitution for life is akin to a life sentence ......................................................59 28) Accounting for prejudicial government actions ..............................................59 a) Government controls offense level by determining drug type and quantity ...................................................................................................................59 b) Prosecutor or defense misconduct prejudices defendant 9s plea bargaining .................................................................................................59 c) Prosecutor 9s misconduct and improper investigation ..............................60 d) Government could have brought less serious charge ................................60 e) Dual prosecution by state and federal authorities ................................60 f) Imperfect entrapment 3 aggressive encouragement by agents .............60 g) Sentencing entrapment or manipulation ...................................................60 h) Delay in arrest or charge or sentencing ..................................................61 i) Delay in sentencing deprives defendant of chance for concurrent sentence ....................................................................................................................62 -iv- j) Pre-indictment delay prejudicing defendant .............................................62 29) Pretrial confinement 9s adverse effect on defense preparation .......................62 30) Recidivism ............................................................................................................62 a) Drug rehabilitation reduces recidivism .................................................. 63 b) General deterrence satisfied by short sentences for white collar offenses ....................................................................................................................63 c) Older defendants and low risk of recidivism .......................................63 d) Young/first time/immature offenders and low risk of recidivism ............64 31) Ability of defendant to pay restitution ..............................................................65 a) To enable defendant to make restitution. .................................................65 32) Crediting punishment already received ............................................................66 a) Defendant was already punished .............................................................66 b) Credit for time served on state case whether related or not ......................66 c) Alien who should receive credit for time served on INS detainer ............67 d) Accounting for other punishment required on other counts .................67 33) Defendant already punished by other events ...................................................67 a) Defendant already punished by collateral consequences .........................67 b) Harshness of pretrial or presentence confinement ...................................68 c) Defendant had extraordinary punishment not contemplated by guidelines ....................................................................................................................69 34) Sentencing disparity ...........................................................................................69 a) Co-defendant disparity .........................................................................69 b) Disparity in plea-bargaining policies among districts ........................72 c) Disparity between federal and state sentences .........................................73 35 Considerations of sentencing policy ..................................................................73 a) Uncharged relevant conduct substantially increases the sentence .......73 b) BOP refuses to honor judicial recommendation of CTC .........................74 36) The advisory guideline calculated by a preponderance standard is too high when compared to that calculated by proof beyond a reasonable doubt ......74 37) Basic justice and fairness ...................................................................................74 a) The totality of the circumstances ..............................................................74 b) Sua sponte departure ......................................................................76 c) Judge 9s own sense of what is fair and just ................................................76 III) CONCLUSION ...............................................................................................................77 -v- IV) SUGGESTED READING ..............................................................................................77 I. DEPARTURES AND VARIANCES ^.01. INTRODUCTION cIt has been uniform and constant in the federal judicial tradition for the sentencing judge to consider every convicted person as an individual and every case as a unique study in the human failings that sometimes mitigate, sometimes magnify, the crime and the punishment to ensue. Gall v. United States , 128 S. Ct. 586, 598 (2007), quoting Koon v. United States , 518 U.S. 81, 113 (1996). The Sentencing Reform Act, 18 U.S.C. §3551 et seq., imposes an coverarching instruction d that district courts must select a sentence csufficient but not greater than necessary d to achieve the sentencing goals in section 3553(a)(2). Kimbrough v. United States , 128 S. Ct. 558, 570 (2007). Those goals include the need for the sentence to (A) reflect the seriousness of the offense, promote respect for the law, and provide just punishment, (B) afford adequate deterrence to criminal conduct, (C) protect the public from further crimes of the defendant, and (D) provide the defendant with educational or vocational training, medical care, or other correctional treatment in the most effective manner. Gall , at 597, n. 6. To arrive at a sentence that serves those goals without being greater than necessary, the Act directs the judge to consider the many factors listed in §3553(a)(1) - (7). These considerations are more than a laundry list of discrete sentencing factors. They comprise ca tapestry of factors, through which runs an overarching principle, d the court 9s duty cconstruct a sentence that is minimally sufficient to achieve the broad goals of sentencing. d United States v. Rodriguez , 527 F.3d 221, 228 (1 Cir. st 2008). Section 3553(a)(1) begins with the cbroad command d to consider the nature and circumstances of the offense and the history and characteristics of the defendant. The statute also requires judges to consider the types of sentences available by statute, section 3553(a)(3), including csentences other than imprisonment, d such as probation. See Gall , id ., and at 595-596 and n.4, 602 (probationary sentence reflected consideration of types of sentence available, and discussing probation as substantial restriction on freedom based on conditions of supervision). Although sections 3553(a)(4) & (5) require the district court to consider the advisory Sentencing Guidelines range and relevant policy statements by the Sentencing Commission, the Guidelines can provide only a crough approximation d of what might be an appropriate sentence. Rita v. United States , 127 S.Ct. 2456, 2465 (2007). Section 3553(a)(6) requires the district court to consider the need to avoid unwarranted disparities in choosing a sentence, yet this encompasses a corresponding duty to avoid cunwarranted similarities d among defendants who are not similarly situated. See Gall , at 600 (sentence of probation reflected defendant 9s voluntary withdrawal from conspiracy, whereas conspirators who did not withdraw received prison terms). Finally, section 3553(a)(7) requires that the court consider the need for restitution, if applicable. -1- The Supreme Court envisions that a district court will normally begin its analysis by accurately calculating the Guideline range, but then may consider arguments that the Guideline sentence should not apply because the guideline itself fails properly to reflect Section 3553(a) considerations, reflects an unsound judgment, does not treat defendant characteristics in the proper way, or that a different sentence is appropriate regardless. Rita , at 2468. As the defendant 9s advocate, defense counsel 9s sentencing memorandum should ordinarily begin with a more compelling presentation of, for example, the history and characteristics of the defendant or the nature and circumstances of the offense. See Amy Baron-Evans, Rita , Gall and Kimbrough: A Chance for Real Sentencing Improvements , 5 (March 10, 2008) (hereinafter cReal Improvements d ). The Court places nothing off-limits for district courts. All the Guidelines are advisory and a judge may determine that any within Guidelines sentence is cgreater than necessary d to serve the objectives of sentencing. Kimbrough , at 564. District courts may not simply defer to policies of the Commission. Rita , at 2468. Judges may disagree with the guideline range based solely on policy grounds even in a mine-run case, without justifying this disagreement based on an individualized determination that they yield an excessive sentence in a particular case. Spears v. United States , 129 S. Ct. 840, 843 (2009); Kimbrough , at 567-69. Rita, Kimbrough and Spears supply this power even when the Guideline 9s provision is a direct reflection of a congressional directive, Rodriguez , 522 F.3d at 230, or where that disagreement applies in other cmine-run d situations, or to a wide class of offenders or offenses. Kimbrough, at 574-75, Spears , at 843. Guidelines that are not based on cempirical data and national experience d do not reflect expertise developed by the Commission and judges have wide leeway to reject them as reflecting cunsound judgment. d Kimbrough , at 575. This applies when a guideline (1) was not based on past practice/empirical data at its inception; (2) was created or amended after the initial set of guidelines with no empirical basis; (3) was created or amended contrary to the Commission 9s own data or other available data or policy analysis; (4) has not been amended in the face of later data that shows it to be unsound; and/or (5) was created or amended for no stated reason. See Real Improvements , at 17-18. Counsel should consult the Reason for Amendment listed in Appendix C of the Guidelines Manual and the Federal Register for indications of any empirical evidence supporting applicable guidelines and their amendments. Often there is no reason listed, which should be taken to reflect a lack of underlying empirical evidence. See Real Improvements , at 17-18 and n. 13. For additional supporting case law and arguments, see Amy Baron-Evans, et al., Judges Are Free to Disagree With Any Guideline , available at http://www.fd.org/pdf_lib/Free%20to%20Disagree%20with%20Any%20Guideline.final.pdf . Affirmative evidence that guidelines were not based on empirical evidence has been assembled in Amy Baron-Evans, The Continuing Struggle for Just, Effective, and Constitutional Sentencing after United States v. Booker (August 2006), available at http:// www.fd.org/pdf_lib/EvansStruggle.pdf, which addresses restrictions and prohibitions on individual characteristics and offense circumstances, relevant conduct, drug offenses, immigration offenses, economic crimes, firearms offenses, child pornography, sex crimes, the career offender guideline, the Guidelines 9 failure to properly account for first offender status, -2- various other problems with the criminal history rules, and the unnecessary use of imprisonment. Such affirmative evidence has also been compiled on the career offender, child pornography, firearms, relevant conduct, and tax guidelines, and with respect to the absence of probation for most offenders in the guidelines, on the Deconstructing the Guidelines page, http://www.fd.org/odstb_SentencingResource3.htm#DECONS. The Commission did not include probationary sentences when estimating the past practice sentencing levels it employed to establish guideline ranges. See U.S. Sentencing Commission, Fifteen Years of Guidelines Sentencing: An Assessment of How Well the Federal Criminal Justice System is Achieving the Goals of Sentencing Reform , 43 (2004). Prior to the Guidelines, almost 40 percent of all defendants were sentenced to straight probation. In 2008, only 7.4 percent received straight probation. See U.S. Sentencing Commission, 2008 Sourcebook of Federal Sentencing Statistics , Figure D, at 27. After Gall , straight probation should be used more freely. Gall , at 595-96 and n.4. Counsel should urge district courts to reject the advisory guideline in light of policy considerations, such as the Commission's failure to adequately distinguish different levels of culpability or any factors the Commission deemed never or not ordinarily relevant to sentencing determinations. See, e.g., USSG § 5H1.6 (discouraging departures based on family ties and duties), § 5H1.2 (discouraging consideration of defendant's education or vocational skills), § 5H1.5 (same as to defendant's employment record), § 5H1.1 (same as to defendant's age), § 5H1.11 (same as to defendant's military, civic, charitable, or public service record). Counsel must be particularly careful to fully articulate the grounds for rejecting the guideline range in ordinary cases, however, to gird a non-guidelines sentence for appellate review. The Supreme Court noted in dicta in Kimbrough that ccloser review d may be in order for non-Guidelines sentences "based solely on the judge's view that the Guidelines range 'fails properly to reflect § 3553(a) considerations' even in a mine-run case." Kimbrough, at 575. However, disagreement with a guideline that does cnot exemplify the Commission 9s exercise of its characteristic institutional role d is entitled to as much appellate crespect d as a fact-based departure or variance. See Spears , 129 S.Ct. at 843; Kimbrough , 128 S.Ct. at 574-75. To avoid application of the ccloser review d dicta , make sure the judge states that the guideline was not based on empirical data and national experience. Counsel should also be creative in consulting research the Commission has not collected or conducted in many areas highly relevant to sentencing purposes in the wake of Booker . Examples include studies on the efficacy and cost savings of drug treatment, education and job training over lengthy incarceration in reducing crime, on brain and personality development in youth by the National Institutes of Health and others, as cited by the district court in Gall and the Supreme Court in Roper v. Simmons , 543 U.S. 551, 570 (2005), reports from the Department of Justice and others showing that lengthy prison terms are being served by too many offenders with little risk of recidivism and without deterrent value, research on the adverse impact of incarceration on children and families, analyses of the suitability of members of immigrant populations for intermediate sanctions, reports on the efficacy of victim mediation as an alternative to incarceration, and studies demonstrating that contrary to myth, recidivism rates for sex offenders are lower than in the general criminal population, and that community treatment for sex offenders is effective. -3- Additional resources can be found on the fd.org website to assist you in making these arguments, including Sentencing by the Statute , the various Deconstructing the Guidelines papers, Determining Your Client 9s Likelihood of Success under Community Supervision and Improving the Odds for a Non-Prison Sentence , the Defender 9s Sentencing Resource Manual: Using Statistics and Studies to Redefine the Purposes of Sentencing , available at http://www.fd.org/pdf_lib/SentencingResourceManualMay2007.pdf, on the Sentencing Project 9s website at http://www.sentencingproject.org, in the Defender 9s written comments to the Commission at http://www.fd.org/pub_SentenceLetters.htm, and in the written and oral testimony of witnesses who testified at Commission hearings, http://www.ussc.gov/HEARINGS.HTM. Counsel must thoroughly investigate and advocate the facts pertaining to the case and the defendant that mitigate the crime and its punishment. The district court must make an cindividualized assessment d based on all the circumstances of the case and under all of the § 3553(a) factors, and must not presume that the advisory guideline range is creasonable, d Gall , at 597, or that the guideline sentence is the correct one. Nelson v. U.S., 129 S.Ct. 890, 892 (2009) , Gall , at 596-97 , Rita , at 2465. Judges cannot require an extraordinary reason to deviate from the guideline range based on § 3553(a) factors . Gall, at 595 ; Nelson, at 892. In Gall , the district court imposed probation rather than a guideline prison term of 36-47 months based on myriad factors: Gall was a young man from a working class background who joined a drug distribution scheme but then withdrew from it a few months later, despite the good money he made in it. He gave up drugs, obtained his degree and was working when arrested. Even after Gall was charged, he started his own business. A csmall flood d of letters sent to the judge attested to the authenticity of Gall 9s rehabilitation and his strong family and community support. In light of these facts, the court concluded a harsh sentence would cpromote not respect, but derision, of the law d as an arbitrary means of dispensing harsh punishment. 128 S.Ct. at 599. The formal departures authorized by the Guidelines provide a meager start in justifying a lower sentence, because of the limited grounds authorizing departure and the requirement of extraordinary circumstances required for departures based on reasons the Guidelines disfavored. Counsel should be alert to overly restrictive limitations appearing in cdepartures d case law, as these restrictions have no application to sentencing variances. See United States v. Jones , 460 F.3d 191, 194 (2 Cir. 2008)(the government 9s citation of pre- Booker variances from the nd Guidelines are not subject to the restrictions limiting Guidelines departures). cFactors ordinarily considered irrelevant in calculating the advisory guideline range, or in determining whether a guideline departure is warranted, can be relevant in determining whether to grant a variance. . . . d United States v. Chase , 560 F.3d 828, 830 (8 Cir. 2008). In fashioning a sentence sufficient but th not greater than necessary to achieve the sentencing goals, district courts care not only permitted, but required to consider 8the history and characteristics of the defendant. 9 . . . As a consequence, factors such as a defendant 9s age, medical condition, prior military service, family obligations, entrepreneurial spirit, etc., can form the bases for a variance even though they would not justify a departure. d Id . at 830-31. -4- Ultimately, district courts in every jurisdiction must choose the minimally sufficient sentence to fulfill the purposes of sentencing based on a consideration of all § 3553(a) factors. Kimbrough , at 570. If a guideline sentence is greater than necessary to achieve those purposes, a different sentence must be imposed. See, e.g., Gall , at 593 (district court determined probation, rather than guideline prison term, was sufficient without being greater than necessary to serve sentencing goals). The district court = s judgment cannot ever be determined by a choice between a Guidelines departure or a sentence under Section 3553(a). The Court must consider all the section 3553(a) factors in every case. See Koon v. United States , 518 U.S. at 108 ( A So long as the overall sentence is > sufficient but not greater than necessary to comply = with the [statutory sentencing] goals, the statute is satisfied. Section 3553(a) @ ). 2. Suggested argument framework In general, counsel should approach sentencing as follows: (1) Humanize the client by presenting a rich and compelling story starting with the sympathetic history and characteristics of the defendant, then the unique circumstances of the offense. Tie the facts and circumstances to the purposes of sentencing in Section 3553(a). (2) Make all factual and legal arguments concerning the correct application of the Guidelines and for the lowest advisory guideline range. (Do not neglect this step). Make sure sentencing letters and memos are made a part of the record and incorporated into your objections and sentencing memo. (3) You may include in step (2) traditional departure grounds that are available. In a case involving a discouraged or prohibited factor, be sure that the judge states, in the alternative, that s/he would impose the same sentence for a reason or reasons under Section 3553(a). This helps to insulate the departure from appellate reversal. Although some judges view traditional departures to be obsolete after Booker , other judges feel more secure in granting guideline departures. Some judges prefer to call any non-guideline sentence a cdeparture. d For those judges, learn how to use USSG § 5K2.0. Know your judge. (4) Critically examine the history and basis of the applicable Guidelines if warranted. Where, as is often the case, they were not based on empirical data or national experience, argue that the judge should reject the guidelines as unsound. Present a persuasive well-reasoned alternative basis for the sentence based on § 3553(a), arguing for a sentence below the guideline range. Explain why the guideline sentence is greater than necessary to achieve the goals of sentencing in § 3553(a)(2), based on the § 3553(a) factors. (5) Ask the court to state that it is departing downward if there is a basis for doing so, and in every case that it is imposing the sentence that is minimally sufficient to achieve the goals of sentencing based on all of the Section 3553(a) factors present in the case. (6) Defense counsel should further provide detailed findings to assist the court in explaining its factual findings and rationale for departure or a non-Guideline sentence with -5- reference to the § 3553(a) factors. Provide all available authority that exists to grant a given departure or non-Guideline sentence. Counsel should make sure that the written Judgment and Statement of Reasons form are wholly accurate in reflecting the court 9s reasons and the government 9s position with respect to any below-guideline sentence. If not, counsel should timely seek clerical corrections. See Fed.R.Crim.P. Rules 35(a) and 36. (7) Preserve objections to the district court 9s rejection of your arguments for a lesser sentence as required in your jurisdiction to avoid plain error review. Several circuits require objections to defects in the procedure by which a sentence is imposed, such as the district court 9s failure to adequately explain its sentence, but not to claims of csubstantive unreasonableness d based on the length of sentence. This is the rule in the First, Second, Third, Fifth, Sixth, Eighth, Ninth, Tenth, and Eleventh Circuits. The Eleventh Circuit requires a district court objection to the substantive reasonableness of a sentence to avoid plain error review. The Second Circuit requires parties to object in the district court to preserve claims that the district court failed to consider all the section 3553(a) factors. The issue is unresolved in the Fourth Circuit but at least one panel has applied plain error review to a procedural error. The Seventh Circuit has thus far rejected claims that a party must object after sentence is imposed to challenge the court 9s rejection of the arguments they presented for a different sentence. ^.02.SELECTED MITIGATING FACTORS AND DOWNWARD DEPARTURES 1. The Guideline sentence conflicts with § 3553(a) 9s directive to impose a sentence csufficient but not greater than necessary. d Kimbrough v. U.S., 128 S.Ct. 558, 564 (2007)(holding that district court did not abuse its discretion when it imposed lesser sentence based on its disagreement with Sentencing Commission 9s policy determinations; that district court properly imposed below-guideline sentence to avoid unwarranted disparity caused by Guidelines 9 treatment of crack and powder cocaine offenses which produced sentence greater than necessary to accomplish goals of sentencing; See discussion of Kimbrough in Introduction above); U.S. v. Irey , 2009 WL 806860 (11th Cir. March 30, 2009) (affirming 210 month sentence for man convicted of using minors to engage in sexually explicit conduct, despite a guideline range of life and a statutory cap of 360 months, deferring to the district court 9s reliance on Irey 9s age, strong family support, service as peer mentor regarding substance abuse, quest for treatment of his pedophilia, and low to medium risk of recidivism); U.S. v. Robertson , 2009 WL 260705 (6 Cir. 2009)(case remanded for th consideration of argument that double-counting a prior drug conviction in calculating both the criminal history category and the offense level, though not procedurally unsound, may have produced a sentence greater than necessary to achieve the §3553(a) sentencing goals); United States v. Munoz-Nava , 524 F.3d 1137 (10th Cir. 2008)(upheld sentence of one year and one day as reasonable for defendant convicted of possession with intent to distribute 100 grams of heroin with guideline range of 46-57 months where district court determined guideline range was greater than necessary to meet goals of § 3553(a)(2) and focused on his personal history and characteristics, including long work record, community support, lack of criminal record, and caregiver and sole supporter of his young son and elderly parents, and low recidivism risk); U.S. v. Mendoza , 543 F.3d 1186 (10th Cir. 2008) (affirming 240 month sentence the district court -6- deemed parsimonious for defendant 9s involvement in meth ring, despite guideline range of 324- 405 months); U.S. v. Orsburn, 525 F.3d 543, 546-547 (7 Cir. 2008)(finding that in some cases th use of USSG §2C1.1, rather than USSG § 2B1.1 may produce greater punishment that is warranted.); U.S. v. Rowan , 530 F.3d 379 (5 Cir. 2008) (affirming district court 9s determination th that the §3553(a) factors as a whole warranted a sentence of 60 months probation for possession of child pornography rather than a guideline term of 46-57 months); U.S. v Johnson , 273 Fed. Appx. 95 (2 Cir. 2008) (unpub) (trial judge departed one level to impose 30 years rather than nd life against 19 year old convicted of Hobbs Act conspiracy that included substantive count of felony murder finding the homicide as reckless rather than intentional and that a life sentence under the circumstances was ctoo harsh d ). U.S. v. Beiermann, 599 F.Supp.2d 1087 (N.D. Iowa 2009)(imposing 90 months with 10 years supervised release under § 3553(a), rejecting guideline range of 210-262 mos. resulting from § 2G2.2 child porn guideline on categorical, policy grounds because it did not reflect empirical analysis and impermissibly and illogically skewed sentences for even caverage d defendants to the upper end of the statutory range, contrary to the goal of producing a sentence no greater than necessary for just punishment, and on basis of an individualized determination); U.S. v. Jacob, 2009 WL 1849942, *16, *24 (N.D.Iowa June 26, 2009)(rejecting guideline sentence of LIFE and cparties 9 alternative guideline range d of 292-365 months in enticement of minor and transporting child pornography case as excessive and disproportionately harsh compared to defendant 9s criminal conduct and history, and imposing 151 months w/10 yrs. supervision because §§ 2G2.1, 2G2.2, and § 4B1.5 enhancement for cpattern of activity involving sexual conduct d improperly skews sentences upward, without regard to defendant 9s history and characteristics, specific conduct or degree of culpability, blurring distinctions between least and worst offenders and they do not reflect empirical analysis but congressional mandates that undermined work of Sentencing Comm 9n. and due to defendant 9s immaturity, lack of judgment, social isolation, no significant criminal history or history of sex offenses involving children, no serious risk of predatory sexual violence, and his extensive support from friends and family); U.S. v. Hodges , 2009 WL 366231 (E.D.N.Y. Feb. 12, 2009) (balancing all factors in light of the parsimony mandate supported a non-guideline sentence for 43-year-old with history of struggling with heroin addiction whose remote priors were non-violent, and who ran his own business successfully for 10 years before a relapse into drugs led to the instant offense); U.S. v. McElheney, 2009 WL 1904565 (E.D.Tenn. July 2, 2009)(finding 135 to 168 month guideline range for receipt of child pornography was greater than necessary to achieve statutory sentencing goals, thus imposing 78-months where court found child pornography guidelines lack empirical support, defendant did not produce or distribute child pornography though he continued to download multiple images after he was indicted, the lesser statutory maximum for possessing child pornography than for receipt created sentencing disparity and sentences of other courts demonstrated guideline sentence would create disparity); U.S. v. Lupton, 2009 WL 1886007 (E.D.Wis. June 29, 2009)(non-guideline sentence of 24 mos. imposed upon finding 41 to 51 guideline range was greater than necessary, due to Sentencing Commn. 9s failure to adequately explain why significantly greater penalties are warranted for honest services fraud under USSG § 2C1.1 versus garden variety money/property fraud under § 2B1.1 for which the range would have been 24-30 months, defendant 9s lack of prior record, and offense conduct did not reflect the sort of governmental corruption to which the statutes and guidelines are generally targeted); U.S. -7- v. Cani, 545 F.Supp. 2d 1235 (M.D.Fla. 2008)(non-guideline sentence of 60 months imposed based on finding that career offender Guideline range of 262-327 months was far greater than necessary to achieve sentencing goals given government 9s role in drug offense, defendant 9s heroin addiction, small drug quantity involved and other factors and personal circumstances); U.S. v. Taylor , 2008 WL 2332314 (S.D.N.Y., June 2, 2008) (judge rejects cdraconian d guideline range of 151-188 months for first offender convicted of child porn offenses, whom psychiatrists agreed posed no threat to minors at large, and imposes statutory minimum sentence of 60 months though judge also deemed it greater than necessary); U.S. v. Adelson , 441 F. Supp. 2d 506 (S.D.N.Y. 2006) ( court focused on § 3553(a) factors to impose 42 months, noting that guideline sentence of life would be an absurd result not fitting the circumstances); U.S. v. Qualls , 373 F. Supp. 2d 873 (E.D.Wis. 2005) (career offender guideline may create sentences far greater than necessary, such as where qualifying offenses are designated crimes of violence but do not suggest a risk justifying such a sentence, or where the prior sentences were short, causing an increase in the guideline range); U.S. v. Ranum , 353 F. Supp. 2d 984, 986 n.1 (E.D.Wis. 2005) (the guidelines clash with § 3553(a) 9s primary directive to 8impose a sentence sufficient, but not greater than necessary to comply with the purposes 9 of sentencing, also quoting Justice Kennedy 9s 2004 speech to the ABA that cprison sentences are too long... d); U.S. v. Redemann , 295 F. Supp. 2d 887 (E.D.Wis. 2003) (court departed downward two levels in bank fraud case, in part because the case fell outside heartland and the guideline range of 18 to 24 months was greater than necessary to satisfy sentencing purposes.); U.S. v. Gaind , 829 F. Supp. 669 (S.D.N.Y. 1993) (parsimony provision required departure in part because destruction of defendant 9s business already achieved to significant extent some but not all of the § 3553(a) objectives). See also U.S. v. Vidal-Reyes , 562 F.3d 43 (1 Cir. 2009) (consistent with parsimony st mandate, a judge sentencing a defendant on an 18 U.S.C. §1028A aggravated identity theft conviction may take into account that statute 9s requirement of a consecutive two year sentence in selecting a sentence for other charges that are not predicate offenses). 2. The Guidelines do not fully implement the statutory objectives of sentencing Rita v. U.S., 127 S.Ct. 2456, 2473 (2007) (Stevens, J. and Ginsburg, J., concurring. ( cThe Commission has not developed any standards or recommendations that affect sentencing ranges for many individual characteristics. Matters such as age, education, mental or emotional condition, medical condition (including drug or alcohol addiction), employment history, lack of guidance as a youth, family ties, or military, civil, charitable, or public service are not ordinarily considered under the Guidelines. See USSG. Manual §§ 5H1.1-6, 11, and 12 (Nov. 2006). These are, however, matters that § 3553(a) authorizes the sentencing judge to consider. See, e.g., 18 U.S.C. § 3553(a)(1)). d c[I]t is fair to assume that the Guidelines, insofar as practicable, reflect a rough approximation of sentences that might achieve § 3553(a) 9s objectives. d Id. at 2465 (majority opinion) (emphasis added). The sentencing judge may take into consideration that the Guidelines sentence should not apply cbecause the Guidelines sentence itself fails properly to reflect § 3553(a) considerations... d Id. at 2465. -8- U.S. v. Regalado , 518 F.3d 143 (2 Cir. 2008) (declaring Court will remand cases where nd the record does not reveal whether the court would have imposed a non-Guidelines sentence had it known it was free to reject the crack-powder ratio to serve the sentencing objectives of §3553(a)) ; U.S. v. Seval , 293 Fed. Appx. 834 (2 Cir. 2008) (unpub) (remanded where record nd shows judge did not appreciate his authority to consider that the guidelines reflect unsound judgment); U.S. v. Wachowiak , 496 F.3d 744 (7th Cir. 2007) (affirming 70-month sentence imposed for 24-year-old student convicted of possessing child porn, who presented low risk of recidivism in light of treatment and strong family support, where guideline range of 121-150 months was greater than necessary for sentencing purposes); U.S. v. Cabrera , 567 F.Supp.2d 271 (D. Mass. 2008) (district court granted 3553(a) variance to safety-valve eligible homeless man caught in sting operation who was at most a delivery man sent at the last minute to pick up drugs from undercover agents; even adjusted for his minimal role, the 37-46 month guideline range was too onerousness for a first offender whose recidivism risk Sentencing Commission studies indicated to be low); U.S. v. Stern , 590 F.Supp.2d 945 (N.D. Ohio 2008) (12 months and 1 day imposed rather than a guideline term of 47-56 months for the child porn conviction of a first offender who never molested any minor, the court noting that the child porn guidelines do not reflect the empirical data, national experience, and independent expertise characteristic of the Commission's institutional role and lack coherent sentencing foundation); U.S. v. Jones , 352 F. Supp.2d 22 (D. Me. 2005) (where mentally ill defendant convicted of possessing a firearm had a guideline range of 12-to-18 months, and no other downward departure applied, a sentence in Zone C (6 months-to-time served) better insured continuing medical care, or other correctional treatment in the most effective manner and cthe marginal protection to the public afforded by a few more months in prison is more than offset by the increased risk upon this defendant's later release after the interruption of his treatment and other regimens.); U.S. v. Greer , 375 F. Supp. 2d 790 (E.D. Wis. 2005) (in drug case guideline range of 46-48 months cwas greater than necessary to satisfy the purposes of sentencing [and] no period of imprisonment was appropriate d because if defendant were imprisoned, her young children would suffer, her mother had serious medical problems, children 9s father was in prison, and they would likely be put in foster care. Further, requiring her to give birth in prison, then lose custody of her newborn could cause severe damage to both her and the child); 3. A non-guideline sentence is authorized after Booker based on § 3553(a) factors even for grounds that did not support departure See U.S. v. Chase , 560 F.3d 828 (8 Cir. 2009) (the Supreme Court 9s decisions th compelled iteration that cthe standards governing departures do not bind a district court when employing its discretion with respect to variances, d and the case is remanded because Chase 9s advanced age, military service, health issues, and employment history could all warrant a downward variance under §3553(a)); U.S. v. Howe , 543 F.3d 128 (3d Cir. 2008) (affirming 2 years of probation with 3 months of home confinement for wire fraud despite a guideline range of 18-24 months, as district court could rely on its finding of Howe 9s heartfelt remorse at sentencing despite his denial of fraudulent intent at trial and defense based on blaming another, as well as the defendant 9s devotion to family and prior military service); U.S. v. Jenkins , 537 F.3d 1 (1 Cir 2008) (Although district court denied departure for overstated criminal history, it st varied 62 months below the minimum 262 guideline sentence after balancing defendant 9s history -9- as a gross recidivist against his history as a low-level, non-violent drug offender) ; U.S. v. Zavala , 300 Fed. Appx. 792 (11th Cir. 2008) (affirming variance sentence of 178 months for a defendant who was not in a position to be able to provide substantial assistance concerning drug conspiracy, in light of codefendant leader who won a substantial assistance departure and a 188- month sentence; Zala should not be punished for his lesser knowledge); U.S. v. Spigner , 416 F.3d 708 (8th Cir. 2005) (post- Booker remand granted for defendant convicted of selling more than 50 grams of crack, even though defense agreed not to ask for downward departures based on health, § 5H1.4, because district court can still impose a sentence below the now advisory guidelines, which permit broader considerations of sentencing implications, including the § 3553(a)(d) goal of providing medical care in the most effective manner); U.S. v. Menyweather , 431 F.3d 692 (9th Cir. 2005) (eight-level departure upheld in embezzlement of $500,000 in light of broader, post- Booker discretion to weigh multitude of factors previously deemed cnot ordinarily relevant d); U.S. v. Cuevas-Mendoza , 2008 WL 4120060 (D. Kan. Aug. 26, 2008) (granting motion for variance based on overstated criminal history after denying requests for departure, resulting in an 18 month prison sentence for illegal reentry); U.S. v. Hodges , 2009 WL 366231 (E.D. N.Y. Feb. 12, 2009) (court could consider the role drug addiction played in defendant 9s prior convictions in assessing his history and characteristics, though they did not justify a departure). 4. The criminal conduct is atypical or outside the cheartland d of conduct reflected by the guideline. § 5K2.0; Rita v. U.S., 127 S.Ct. 2456( 2007)(majority opinion) (sentencing court may consider disregarding the Guidelines sentence where the case falls outside the cheartland d to which the Commission intends individual Guidelines to apply); See U.S. v. Garate , 543 F.3d 1026 (8 Cir. 2008) (After Gall , the circuit now affirms 30 months for traveling with intent to th engage in sexual conduct with minor despite guideline range of 57-71 months, which district court based on defendant 9s age, immaturity, lack of a prior record, and the fact Garate cwas not a predator and did not fit the profile of many pedophiles convicted of the same crime d) ; U.S. v. Lehmann , 513 F.3d 805 (8th Cir. 2008) (sentence of probation affirmed where justified by the atypical nature and circumstances of the felon in possession of firearm offense and by the defendant 9s need to care for her nine-year-old developmentally-disabled son); U.S. v. Parish , 308 F.3d 1025 (9th Cir. 2002) (eight-level departure granted in child porn case because defendant 9s possession of photographs, which were automatically downloaded when he viewed them, was outside the heartland of much more serious crimes that typical pornographers engage in, according to psychiatrist); U.S. v. Sicken , 223 F.3d 1169 (10th Cir. 2000) (four-level departure proper where anti-nuclear protestors, convicted of sabotage, destroyed property at missile site but posed no real danger to national security, and fell outside the heartland); U.S. v. Lupton, 2009 WL 1886007 (E.D.Wis. 6/29/2009)(non-guideline sentence of 24 mos. imposed, finding 41 to 51 guideline range greater than necessary, in part because offense conduct did not reflect the sort of governmental corruption to which the statutes and guidelines are generally targeted, USSC 9s failure to adequately explain why significantly greater penalties are warranted for honest services fraud under §2C1.1 versus money/property fraud under §2B1.1 and defendant 9s lack of prior record); U.S. v. West , 552 F. Supp. 2d 74 (D. Mass. 2008) (judge imposed 180 months for possessing cocaine with intent to distribute instead of career offender -10- range of 262-327 months based on priors committed in defendant 9s early twenties, reasoning that drug dealing was not West 9s main line of business, and that two sales of about $750.00 worth of cocaine did not merit what could amount to a life sentence for a 38-year-old); U.S. v. Stern , 590 F.Supp.2d 945 (N.D. Ohio, Dec. 19, 2008) (adolescent age at which child porn defendant began viewing photos of subjects his own age distinguished him from the typical child porn defendant, and formed part of the basis for a sentence of 12 months and a day rather than one within the 46- 57 month guideline); U.S. v. Grinbergs , 2008 WL 4191145 (D.Neb. Sept. 8, 2008) (defendant sentenced to a year and a day for possessing child porn rather than a guideline term of 46-57 months, in part because the child porn guidelines were built around distribution or attempted distribution rather than crimes of mere possession); U.S. v. Crocker , 2007 WL 2757130 (D. Kan. Sept. 30, 2007) (Downward variance granted based on advisory Guidelines and several factors. Court noted that the defendant was remorseful, bettered herself by getting a college education, intent to repay the money, need for mental health treatment, her responsibilities as a parent, she used the money to pay for medical expenses, and a 2007 amendment to the Guidelines which would lower her range had the new Guidelines been in effect.); U.S. v. Rosenthal , 266 F. Supp. 2d 1068 (N.D. Cal. 2003) (downward departure to one day in jail from 30-month range granted because defendant 9s reasonable belief that he was authorized to grow marijuana for medicinal purposes took case out of heartland); U.S. v. Allen , 250 F. Supp. 2d 317 (S.D.N.Y. 2002) (defendant convicted of drugs and guns entitled to 8-level departure under § 5K2.0 from 80 to 30 months due to his mental immaturity, psychological problems, and mild retardation, which took case out of heartland); U.S. v. Singh , 224 F. Supp. 2d 962 (E.D.Pa. 2002) (departure from 37 months to 21 months granted defendant who illegally reentered U.S. to see his dying mother and who intended to stay only a week); U.S. v. Nachamie , 121 F. Supp. 2d 285 (S.D.N.Y. 2000) (defendant 9s initial lack of intent to defraud and diminished intent thereafter made case catypical d and could be basis for downward departure under § 5K2.0); U.S. v. Hemmingson , 157 F.3d 347 (5th Cir. 1998) (downward departure proper for defendant 9s singular illegal $20,000 campaign contribution because it was not within the heartland of money laundering cases involving long-running, elaborate schemes). 5. Criminal history/career offender guidelines improperly inflate sentence 5A. U.S.S.G. ' 4A1.3 ( cIf reliable information indicates that the defendant 9s criminal history category substantially over-represents the seriousness of the defendant 9s criminal history or the likelihood that the defendant will commit other crimes, a downward departure may be warranted. d) and U.S.S.G. ' 4B1.1. U.S. v. Boardman, 528 F.3d 86, 87-88 (1 Cir. 2008)(holding that Kimbrough granted st district courts cbroader freedom d to determine whether prior convictions qualify as predicate crimes of violence for purposes of the career offender Guideline); U.S. v. Sanchez , 517 F.3d 651, 662-67 (2 Cir. 2008)(remanded for clarification as to whether sentence was affected by nd judge 9s mistaken view that 28 U.S.C. Sec. 994(h) restricted his authority to impose a non- Guideline sentence or to grant further downward departure; district court granted 2-level downward departure because career offender offense level failed to account for defendant 9s lesser role in the drug conspiracy, remarked that guideline sentence of 188 months was longer than necessary and defendant could be deterred by even mandatory minimum 120 months, but -11- that it lacked authority to impose lower sentence; holding that 994(h) 9s instruction to the Sentencing Commission that it assure sentences for career offenders cat or near d statutory maximum did not deprive district court of authority to impose shorter sentences by way of a non-Guideline sentence or departure; no statutory provision requires career offenders to be sentenced at or near the statutory maximum and district court must only consider Congress 9s views in context of ' 3553(a) considerations); U.S. v. Ennis , 468 F.Supp.2d 228, 234 & n.11 (D.Mass.2006)(observing that career offender predicates include misdemeanor convictions contrary to 28 U.S.C. Sec. 994(h), from states with misdemeanors punishable by more than one year); U.S. v. Hodges , 2009 WL 366231 (E.D. N.Y., Feb. 12, 2009) (rejecting career offender range for 43-year-old whose prior convictions were remote, non-violent, and reflected his drug addiction, and the most serious offense occurred in his early twenties, leading to a 10 year sentence that he completed); U.S. v. Moreland , 568 F. Supp. 2d 674 (S.D. W. Va. 2008) (career offender guideline range of 30 years to life rejected in favor of 120 months for a man convicted of sale and possession of small amount of cocaine base, with a non-violent record so meager that the total quantity involved in his entire criminal history cwould rattle around in a matchbox d, and whose predicate offenses had no temporal proximity to each other or the instant offense); U.S. v. Patzer , 548 F.Supp.2d 612 (N.D.Ill.,2008) (13 year prison term imposed for bank robbery and gun offense despite a career offender range of 346-411 months, because Patzer 9s priors were less serious than most predicate crimes, and in light of his difficult childhood and the improper diagnosis of and treatment for his ADD from which his offense conduct stemmed). 5B. Criminal history category over-represents the seriousness of past criminal conduct or exaggerates a defendant 9s propensity to commit crimes 3 U.S. v. Herrick, 545 F.3d 53 (1 Cir.2008) (court granted departure from criminal st history category IV to category III , concluding the defendant 9s CHC overstated the likelihood he would reoffend, particularly where his last conviction was 12 years earlier); U.S. v. Jenkins , 537 F.3d 1 (1 Cir 2008) (Although district court denied departure for overstated criminal st history, it varied 62 months below the minimum 262 guideline sentence after balancing defendant 9s history as a gross recidivist against his history as a low-level, non-violent drug offender); U.S. v. Sanchez , 517 F.3d 651, 655-58 (2 Cir. 2008)(departures granted from career nd offender category VI to V for overstated criminal history where record as to one defendant consisted of two prior felony drug convictions, committed when defendant was very young and he had never served more than 18 months in jail and guideline range was 262-327 and as to other defendant, offenses were committed when defendant was in his teens and sentences were short; see above discussion of Sanchez regarding remand for clarification of whether district court felt constrained by 28 U.S.C.. Sec. 994(h) and for determination of whether court would have sentenced defendant to same prison term in absence of perceived limitation); U.S. v. Mishoe , For crimes committed on or after October 27, 2003, the Guidelines prohibit a downward 3 departure in criminal history category for armed career criminals and repeat dangerous sex offenders. See USSG § 4A1.3(b) (2) (2004 ed.). In addition, for career offenders, a departure "may not exceed one criminal history category." § 4A1.3(b)(3). In the wake of Booker and Rita , such restrictions on sentencing discretion are advisory only and do not foreclose the imposition of non-guideline sentences based on consideration of all the § 3553(a) factors in a given case. -12- 241 F.3d 214 (2d Cir. 2001) (horizontal departure in criminal history category may be warranted where prior sentences were lenient); U.S. v. Villarini , 298 Fed. Appx. 79 (2 Cir. 2008) (unpub) nd (court applied departure to use guideline range of 168-210 months because career offender range of 188-235 months overstated criminal history); U.S. v. Jones , 216 F. App 9x 189 (3d Cir. 2007) (departure granted for overstated criminal history prior to Booker ); U.S. v. Yerena-Magana , 478 F.3d 683 (5th Cir. 2007) (The Fifth Circuit affirmed a downward departure from category II to category I for possession with intent to distribute marijuana. The defendant 9s prior crimes were illegal reentry and possession with intent to distribute and they occurred at almost the same time. The PSR assessed one point for these priors. The district court disagreed, assessed two points, but then granted downward departure.); U.S. v. Collington , 461 F.3d 805 (6th Cir. 2006) (120- month sentence in drugs-and-gun case upheld in the face of 188 -235 months advisory range, in part because the judge found that defendant had never been in custody for a substantial period, despite criminal history category of IV); U.S. v. Gregor , 339 F.3d 666 (8th Cir. 2003) (district court may depart downward on the basis that career offender designation overrepresented criminal history where burglary did not involve breaking and entering); U.S. v. Lamb , 214 F. App 9x 908 (11th Cir. 2007) (affirming 181 months for drug and firearm offenses despite Guideline minimum of 420 months, in light of defendant 9s youth when he committed the crimes that made him a career offender and his employment at Humane Society); U.S. v. Thomas , 361 F.3d 653 (D.C. Cir. 2004) (because arrests prove nothing, court erred in considering long arrest record to justify denial of downward departure for over-represented criminal history), vacated and remanded in light of Booker , 543 U.S. 1111 (2005). U.S. v. Evans , 2009 U.S. Dist. LEXIS2700 (D. Conn., Jan. 13, 2009) (defendant convicted of crack crimes sentenced to 120 months rather than career offender range of 168-210 months which increased his criminal history category from category III to category VI, and in light of extraordinary rehabilitation); U.S. v. Garrison , 560 F.Supp.2d 83 (D. Mass. 2008) (judge compares sentences and backgrounds of other defendants caught up in same federal-local drug enforcement sweep and imposes non-guideline term, noting that criminal history categories promote false uniformity as they do not distinguish defendants whose convictions are non- violent from those with violent priors); U.S. v. McCormick , 2008 WL 268441 (D. Neb. Jan. 28, 2008) (District court granted a departure based on overstated criminal history because the defendant had no crimes of violence as compared to usual category V defendants. The Court also varied because the defendant had already been released and became a productive member of society, he completed drug rehabilitation program, and he was a low risk of recidivism.); U.S. v. Benkahla , 501 F.Supp.2d 748 (E.D. Va. 2007) (Court departed downward under 4A1.3 for overstated criminal history. Under the Guidelines, a terrorism enhancement applied which automatically raised the criminal history to category VI regardless of the actual criminal history. The court concluded that it was not prevented from departing especially since Benkahla had no criminal history. The court set the criminal history category at I and sentenced him to the bottom of the Guidelines range.); Marion v. U.S. , 2008 WL 4602304 (D. Maine Oct. 15, 2008) (district court departed one criminal history category from the career offender level, noting that one of the predicate crimes was punished by only a fine and the other predicate offense brought the defendant a suspended sentence and then, upon his violation of probation, only 30 days; the district court observed that the sentencing judge 9s opinion in imposing sentence for the priors was more reliable proof of the nature of the crimes than the untested allegations i

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