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Courts Have Discretion in Sentencing Guidelines Deviations

By Robyn Hagan Cain | Last updated on

The U.S. Sentencing Guidelines are just that. Guidelines. Suggestions. They're non-binding. In the D.C. Circuit Court of Appeals, they're not even presumptively reasonable.

Judges are permitted to deviate from the Guidelines when sentencing criminal defendants, and an appellate court will typically uphold a lesser sentence as long as the judge explains her reasoning for deviating from the Guidelines.

Gregory Terrell pleaded guilty to unlawful possession with intent to distribute five grams or more of cocaine base. In 2007, the district court sentenced him to 210 months of imprisonment, 5 years of supervised release, and a $100 special assessment.

Terrell challenged the sentence, arguing that it violated the ex post facto clause because the U.S. Sentencing Guidelines Manual applied by the district court was promulgated after he committed the offense of conviction and may have resulted in a harsher sentence than the one yielded by the Manual in effect at the time of offense. He also claimed that the district court had an erroneously limited view of its discretion to impose a below-Guidelines sentence following the Supreme Court's decision in United States v. Booker.

Terrell's lost his ex post facto argument, but the D.C. Circuit Court of Appeals vacated and remanded his sentence based on the district court's mistaken concept of its discretion. Let's discuss the win.

Throughout Terrell's case, USSG § 3E1.1(a) directed a sentencing court to reduce a defendant's offense level by two levels if he "clearly demonstrates acceptance of responsibility for his offense." The second part of the provision -- §3E1.1(b) -- was amended after Terrell committed the offense.

At the time of offense, §3E1.1(b) directed the district court to reduce a defendant's offense level by one additional level -- to award a "third point" for acceptance of responsibility -- if the initial offense level was 16 or higher and the defendant "assisted authorities in the investigation or prosecution of his own misconduct" either by timely providing complete information regarding his involvement or by timely notifying authorities of his intention to plead guilty. With the amendment, which went into effect in 2003, §3E1.1(b)'s third point became available only "upon motion of the government."

During Terrell's sentencing proceedings, the judge expressed a desire to award the third point, and asked the attorneys and the probation officer who attended the hearing whether he had discretion to do so sua sponte. Based on their responses, he concluded that he did not.

Shortly before Terrell was sentenced, the D.C. Circuit rejected the idea that the USSG range should be considered presumptively reasonable, finding instead that the court must "evaluate how well the applicable Guideline effectuates the purposes of sentencing enumerated" in 18 USC § 3553(a) with respect to each individual defendant. The Supreme Court endorsed the same rule shortly after Terrell was sentenced in Rita v. United States.

Based on those rulings, the appellate court found that the district court erred in treating the Guidelines as presumptively reasonable, and vacated Terrell's sentence.

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