Sentence Below Advisory Guideline Range Held to Be Reasonable
U.S. v. Chavez-Diaz, --- F.3d ----, 2006 WL 1000811(10th Cir. April 18, 2006)
Two primary issues: (1) Review for Reasonableness. Briscoe did something interesting here. The 10th, in what at first glance seems troubling, explicitly converts D’s argument for a mitigated sentence under 3553 into an argument for a downward departure in part, it seems, because D (validly) cited pre-Booker departure cases in support of the factual grounds for the mitigation he asserted. But Briscoe uses this as a jumping off point to blur the distinction, post-Booker, between requests for downward departures and 3553 mitigated variances. This is a good move, actually. However, so as not to overrule language in Kristl and Sierra-Castillo that there is no jurisdiction to review refusals to depart even after Booker, Briscoe emphasizes that because D’s argument was framed in 3553 terms, and not in downward departure terms, it was reviewable. (Result: sentence was reasonable, district court considered the grounds raised by the D, and gave him a lower sentence, but for different reasons. Apparently not wanting to forfeit his right to appeal the aggravated felony status of his prior drug conviction, D pleaded straight up to reentry after deportation. The PSR calculated his adjusted guidelines at level 21 (8 plus 16 for aggravated prior with 3 points off for acceptance), CH II, for a range of 41 to 51 months. The trial court found no grounds for departure, and did not accept D’s argument that his prior conviction should not be assessed at 16 points. However, because it did sentence two other Ds similarly situated who had entered 11(c)(1)(C) pleas, to avoid disparity the judge (Black) sentenced D to a sentence similar to theirs: 30 months (as if level 19, CH I).).
Issue (2): A sentence on a prior conviction is “suspended” only if judicially suspended, and not if administratively suspended. So, state court sentence of six years, with the option for the INS to pick D up and deport him immediately, was not a suspended sentence, even though INS deported him less than a month after sentencing. According to records and transcripts of the state court proceedings, the sentence was a six year sentence, and that it amounted to less was only because the INS decided to pick D up immediately. Therefore, the 16 level increase for aggravated felony applied to D’s guidelines for reentry offense.
This case appears to be good, creative post-Booker sentencing advocacy by the attorney.
Practice Tip: ALWAYS frame your reasons for a lower sentence under Sec. 3553.
Two primary issues: (1) Review for Reasonableness. Briscoe did something interesting here. The 10th, in what at first glance seems troubling, explicitly converts D’s argument for a mitigated sentence under 3553 into an argument for a downward departure in part, it seems, because D (validly) cited pre-Booker departure cases in support of the factual grounds for the mitigation he asserted. But Briscoe uses this as a jumping off point to blur the distinction, post-Booker, between requests for downward departures and 3553 mitigated variances. This is a good move, actually. However, so as not to overrule language in Kristl and Sierra-Castillo that there is no jurisdiction to review refusals to depart even after Booker, Briscoe emphasizes that because D’s argument was framed in 3553 terms, and not in downward departure terms, it was reviewable. (Result: sentence was reasonable, district court considered the grounds raised by the D, and gave him a lower sentence, but for different reasons. Apparently not wanting to forfeit his right to appeal the aggravated felony status of his prior drug conviction, D pleaded straight up to reentry after deportation. The PSR calculated his adjusted guidelines at level 21 (8 plus 16 for aggravated prior with 3 points off for acceptance), CH II, for a range of 41 to 51 months. The trial court found no grounds for departure, and did not accept D’s argument that his prior conviction should not be assessed at 16 points. However, because it did sentence two other Ds similarly situated who had entered 11(c)(1)(C) pleas, to avoid disparity the judge (Black) sentenced D to a sentence similar to theirs: 30 months (as if level 19, CH I).).
Issue (2): A sentence on a prior conviction is “suspended” only if judicially suspended, and not if administratively suspended. So, state court sentence of six years, with the option for the INS to pick D up and deport him immediately, was not a suspended sentence, even though INS deported him less than a month after sentencing. According to records and transcripts of the state court proceedings, the sentence was a six year sentence, and that it amounted to less was only because the INS decided to pick D up immediately. Therefore, the 16 level increase for aggravated felony applied to D’s guidelines for reentry offense.
This case appears to be good, creative post-Booker sentencing advocacy by the attorney.
Practice Tip: ALWAYS frame your reasons for a lower sentence under Sec. 3553.
posted by Anonymous at 3:23 PM
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