Aberrant Behavior Departure to Probation Affirmed

U.S. v. Maese, 2005 WL 1995580 (8/19/05)(unpub'd) - The 10th upholds an 8 level downward departure for aberrant behavior to get the sentence to probation. The defendant-owner of a trucking company was convicted of misprision of a felony for concealing who likely was responsible for the marijuana found in one of his trucks. However, he otherwise did great community work in Mexico and on the border. The 10th indicates that in some cases, such as aberrant behavior cases, it is very hard to determine the level of departure based on a perfect analogy to the guidelines. The 10th let the departure slide, although it has previously said an 8 level departure is reserved for truly extraordinary cases and it has disapproved of departing a certain amount to get to a particular target sentence. The district judge did a good job of explaining the reasons for the sentence [e.g. "I have never seen anyone in my 10 years as a judge that has done so many good works"], and besides, under Booker the judge would have an easier time to justify the sentence on remand anyway.