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CRIMINAL PROCEDURE: SENTENCING

FINAL EXAMINATION STUDY GUIDE


Fall 2010
By: Joshua Ryan Collums

I. Sentencing Policies
a. Deterrence1
i. Discouraging Risk Taking. If the public is made to believe that criminal
behavior will be answered by painful consequences, it is hoped that some
individuals will be discouraged from risking such consequences.
ii. Respect for the Law. On a more abstract plane, the imposition of
punishment may disseminate a generalized message that criminal
transgressions are treated seriously by society. Thus, information about
criminal sentences may encourage people to respect the law as a whole and
increase the numbers of law-abiding citizens.
iii. Irrational Offenders/Irrational States of Mind. Both special and general
deterrence have an assumption that people weight rationally the
consequences of their behavior.
1. Irrational offenders or offenses routinely committed in irrational
states of mind are thus affected little by the possibility of criminal
sanctions.
iv. Severe Mandatory Sentencing Can Backfire. Can arouse public sympathy for
the offender on whom it is imposed, the community not only fails to be
deterred, it also loses respect for criminal justice.
1. Courts therefore rely on equity to require or permit a lesser
sentence in specific cases.
v. Dissemination of Sentencing? Only a small amount of the thousands of
sentences are reported each day in the mass media.
vi. Disconnect Between Crime and Sentencing. The long period of time that
frequently stretches between crime and sentence imposition weakens the
rationale.
b. Retribution
i. Retribution is the older of sentencing rationales and springs from the
notion that the criminal owes the community a measure of suffering
because of that which he inflicted.
1. It has been the most broadly supported sentencing rationale since
the 1980s.

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Deterrence is utilized in either of two forms: general or special. While deterrence includes individual deterrence
directed at prevented the specific offender from repeating the same or other criminal acts, it is also include general
deterrence which aims to discourage the general public from recourse to crime.
2. Retributivists believe that punishment is justified when it is
deserved. It is deserved when the wrongdoer freely chooses to

wrongdoer should be punished whether or not it will result in a


utilitarian reduction in crime.
ii. Central to the retributive concept is the notion that inflicting punishment
on willful offenders will restore some abstract balance of right and wrong
to the social order.
1. Underlying this notion: offenders themselves, not environmental
influences, are morally responsible for criminal activity; and
criminal codes embody current morality.
iii. Collective Vengeance. So strong is this demand that even its expression in
death sentences has been legitimized by our highest court upon pragmatic
grounds.
iv.

anti-social impulses.
c. Incapacitation
i. There is no question that some degree of disablement occurs whenever
groups of offenders are incarcerated or are subjected to the restraint and
surveillance of nonprison sanctions.
1. To this extent, all sentencing systems are incapacitative,
intentionally or not.
ii. Most Will Get Out. The weakness of incapacitation as a rationale for
incarceration is obvious: offenders are incapacitated only as long as their
confinement lasts. Thus, advocates of this sentencing theory must endorse
extremely long terms at enormous taxpayer expense.
iii. Most Dangerous Offenders Only? The most efficient use is to restrict this
rationale to justifying imprisonment for only the most dangerous offenders
and recognize the need for more accurate presentence studies.
d. Rehabilitation
i. This rationale analogizes crime to a disease which for any number of

should therefore attempt to cure or at least treat this disease.


1. Remedies range from vocational training and psycho-therapy
through electrical and chemical behavior modification to
incarceration, depending on which is considered most effective for
the particular offender.
ii. As recently as the 1960s and early 1970s, rehabilitation was the prevailing
theory of sentencing and corrections, and was the principal justification for
the traditional structure for indeterminate sentences and parole.

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1. Rehabilitation, however, has lost its position of preeminence almost
everywhere, but has hardly disappeared from view.
2. Many incarcerative and nonincarcerative programs continue to
attempt to reform offenders while at the same time serving other
goals, such as punishment, deterrence and incapacitation.
iii. Rehabilitation has been offered as an approach to the key weakness of
incapacitation: its failure to deal with the fact most prisoners will
eventually be released into the community. Thus, society can actually be
protected only by rehabilitating offenders.
iv. Diluted by Other Rationales. The doctrinal strength it gathered from
embracing or satisfying other sentencing rationales became an impediment
when rehabilitation objectives were diluted by concerns for deterrence, in
e. Restitution
i. Restitution requires that offenders compensate their injured victims.
ii. This consequentialist purpose aims toward the restoration of losses suffered
by crime victims, when possible. Obviously, restitution cannot adequately
be achieved in all criminal cases.
1. Some injuries defy compensation and most offenders lack the
resources to make adequate payments.
2. When restitution can be made, however, it is hard to posit a reason
not to provide for it in the criminal justice system
iii. Since the 1990s, financial restitution has become an integral part of

iv. Other Sentencing Rationales. Restitution rides upon a variety of sentencing


rationales, although most courts ties it to deterrence and rehabilitation.
v. Compared with Fines
designed to punish, and forfeitures, which dispossess the offender.
II. Indeterminate Sentencing
a. Indeterminate Sentencing. Under this type of system, the legislature prescribes broad
potential sentencing ranges and the trial judge sentences without meaningful legal
guidance and typically without offering a detailed explanation for the sentence.
i. Role of Parole Boards. An executive branch agency usually determines the
actual sentence a defendant serves.
ii. There are virtually no judicial opinions explaining or reviewing a sentence,
and legal counsel ordinarily makes oral arguments at sentencing hearings
without any written submissions to the court.
b. Williams v. New York 337 U.S. 241 (1949).
i. Tribunals passing on the guilt of a defendant always have been hedged in
by strict evidentiary procedural limitations. But both before and since the
American colonies became a nation, courts in this country and in England
practiced a policy under which a sentencing judge could exercise a wide

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discretion in the sources and types of evidence used to assist him in
determining the kind and extent of punishment to be imposed within the
limits fixed by law.
ii. In addition to the historical basis for different evidentiary rules governing
trial and sentencing procedures there are sound practical reasons for the
distinction.
1. In a trial before verdict the issue is whether a defendant is guilty of
having engaged in certain criminal conduct of which he has been
specifically accused.
a. Rules of evidence have been fashioned for criminal trial
which narrowly confine the trial contest to evidence that is
strictly relevant to the particular offense charged.
2. A sentencing judge, however, is not confined to the narrow issue of
guilt. His task within fixed statutory or constitutional limits is to
determine the type and extent of punishment after the issue of guilt
has been determined.
a. Highly relevant if not essential to his selection of an
appropriate sentence is the possession of the fullest

characteristics. And modern concepts individualizing


punishment have made it all the more necessary that a
sentencing judge not be denied an opportunity to obtain
pertinent information by a requirement of rigid adherence
to restrictive rules of evidence properly applicable at trial.
iii. Undoubtedly the New York statutes emphasize a prevalent modern
philosophy of penology that the punishment should fit the offender and not
merely the crime.
1. The belief no longer prevails that every offense in a like legal
category calls for an identical punishment without regard to the past
life and habits of a particular offender.
c. McMillan v. Pennsylvania, 477 U.S. 79 (1986).
i. In re Winship
against conviction except upon proof beyond a reasonable doubt of every
fact necessary to constitute the crime with which he is charged.
ii. Patterson v. New York stressed that in determining what facts must be

elements of the offense is usually dispositive.


1. However, in certain limited circumstances Winship -
doubt requirement applies to facts not formally identified as
elements of the offense charged.

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iii.
sentencing consideration rather than an element of a particular offense, we
s
requires that visible possession be proved by at least clear and convincing
evidence.
1. Like the court below, we have little difficulty concluding that in
this case the preponderance standard satisfies due process. Petitioners do
not and could not claim that a sentencing court may never rely on a
particular fact in passing sentencing without finding that fact by

traditionally heard evidence and found facts without any prescribed


burden of proof at all. See Williams v. New York.
III. Determinate Sentencing
a. Sixth Amendment In all criminal prosecutions, the accused shall enjoy the right to a
speedy and public trial, by an impartial jury of the State and district wherein the crime shall
have been committed, which district shall have been previously ascertained by law, and to be
informed of the nature and cause of the accusation; to be confronted with the witnesses against
him; to have compulsory process for obtaining witnesses in his favor, and to have the
Assistance of Counsel for his defence
b. Overview of the Federal Sentencing Guidelines: How the Guidelines Work
i. Offense Seriousness. The sentencing guidelines provide 43 levels of offense
seriousness the more serious the crime, the higher the offense level.
1. Base Level. Each type of crime is assigned a base offense level,
which is the starting point for determining the seriousness of a
particular offense. More serious types of crimes have higher base
offense levels.
2. Offense Characteristics. Each offense type typically carries with it a
number of specific offense characteristics. These are factors that
vary from offense to offense, but that can increase or decrease the
base offense level and, ultimately, the sentence an offender receives.
ii. Adjustments. Adjustments are factors that can apply to any offense. Like
specific offense characteristics, they increase or decrease the offense level.
1. Categories of offense adjustments include: victim-related

justice.
2. Multiple Counts of Conviction. When there are multiple counts of
conviction, the guidelines provide instructions on how to achieve a
s provide incremental
punishment for significant additional criminal conduct. The most
serious offense is used as a starting point. The other counts
determine whether to and how much to increase the offense level.

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iii. Criminal History. The guidelines assign each offender to one of six criminal

how recently these crimes took place.


1. Criminal History Category I is assigned to the lease serious criminal
record and includes many first-time offenders.
2. Criminal History Category VI is the most serious category and
includes offenders with lengthy criminal records.
iv. Determining the Guideline Range. The final offense level is determined by
taking the base offense level and then adding or subtracting from it any
specific offense characteristics and adjustments that apply. The point at
which the final offense level and the criminal history category intersect on

guideline range.
v. Sentencing Options. In addition to providing a guideline range, there are a
series of rules that determine the availability of non-imprisonment
sentencing options for offenders.
vi. Departures. After a guideline range is determined, if the court determines
that there is a factor that the guidelines did not adequately consider, it may

1. When departing, the judge must state the reason for the departure.
If the sentence is an upward departure, the offender may appeal the
sentence; if it is a downward departure, the government may
appeal.
2. Substantial Assistance Departure. One special kind of departure is the

be granted if the offender has provided substantial assistance in the


investigation or prosecution of another offender.
a. Made by Prosecution. A motion to depart for substantial
assistance must be made by the prosecution, but it is the
judge who decides whether to grant it and, if so, to what
extent.
c. Sentencing Reform Act.2 The Act, as adopted, revises the old sentencing process
in several ways:
i. It rejects imprisonment as a means of promoting rehabilitation, and it states
that punishment should serve retributive, educational, deterrent, and
incapacitative goals.
ii. It consolidates the power that had been exercised by the sentencing judge
and the Parole Commission to decide what punishment an offender should
suffer. This is done by creating the United States Sentencing Commission,

2
As set out in Mistretta v. United States (1989).

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directing that Commission to devise guidelines to be used for sentencing,
and prospectively abolishing the Parole Commission.
iii. It makes all sentences basically determinate. A prisoner is to be released at
the completion of his sentence reduced only by any credit earned by good
behavior while in custody.
iv.
although it preserves for the judge the discretion to depart from the
guidelines applicable to a particular case if the judge finds an aggravating or
mitigating factor present that the Commission did not adequately consider
when formulating guidelines. The Act also requires the court to state its

imposing a sentencing different from that described in the guideline.


v. It authorizes limited appellate review of the sentence. It permits a
defendant to appeal a sentence that is above the defined range, and it
permits the Government to appeal a sentence that is below that range. It
also permits either side to appeal an incorrect application of the guideline.
d. Mistretta v. United States, 488 U.S. 361 (1989).
i. Nondelegation Doctrine. The Nondelegation doctrine is rooted in the
principle of separation of powers that underlies our tripartite system of
Government.
1. Th

ii. Assistance from Other Branches. Recognition that the separation-of-powers


principle and the nondelegation doctrine in particular, do not prevent
Congress from obtaining the assistance of its coordinate Branches.
1.
another branch, the extent and character of that assistance must be
fixed according to common sense and the inherent necessities of the
government coordination.
a. Intelligible Principle. So long as Congress shall lay down by
legislative act an intelligible principle to which the person or
body authorized to exercises the delegated authority is
directed to conform, such legislative action is not a

iii. In light of our approval of broad delegations, we harbor no doubt that


Congres
sufficiently specific and detailed to meet constitutional requirements.
iv. Location of the Commission. That judicial rulemaking, at least with respect to
some subjects, falls within this twilight area3 is no longer an issue for
dispute. None of our cases indicate that rulemaking per se is a function that
3
Youngstown separation of powers argument.

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may not be performed by an entity within the Judicial Branch, either
because rulemaking is inherently nonjudicial or because it is a function
committed exclusively to the Executive Branch.
1. Although the judicial power of the United States is limited by

have never held, and have clearly disavowed in practice, that the
Constitution prohibits Congress from assigning to courts or
auxiliary bodies within the Judicial Branch administrative or
rulemaking duties that, in the words of Chief Justice Marshall, are

judgments which the j


e. In re Winship, 397 U.S. 358 (1970).
i. Facts. At age twelve, Samuel Winship was arrested and charged as a
juvenile delinquent for breaking into a woman's locker and stealing $112
from her pocketbook. The charge also alleged that had Winship's act been
done by an adult, it would constitute larceny. Relying on Section 744(b) of
the New York Family Court Act, which provided that determinations of
juvenile's guilt be based on a preponderance of the evidence, a Family
Court found Winship guilty, despite acknowledging that the evidence did
not establish his guilt beyond a reasonable doubt. Winship's appeal of the
burden of proof,
was rejected in both the Appellate Division of the New York Supreme
Court and in the New York Court of Appeals before the Supreme Court
granted certiorari.
ii. Expressions in many opinions of this Court indicate that it has long been
assumed that proof of a criminal charge beyond a reasonable doubt is
constitutionally required.
iii. The reasonable-doubt standard plays a vital role in the American scheme of
criminal procedure. It is a prime instrument for reducing the risk of
convictions resting on factual error. The standard provides concrete
substance for the presumption of innocence

iv. The same considerations that demand extreme caution in fact finding to
protect the innocent adult apply as well to the innocent child.
v. Due Process commands that no man shall lose his liberty unless the
Government has borne the burden of convincing the factfinder of his guilt.
To this end, the reasonable-doubt standard is indispensable, f
trier of fact the necessity of reaching a subjective state of certitude of the facts in issue.
1. Lest there remain any doubt about the constitutional stature of the
reasonable-doubt standard, we explicitly hold the Due Process Clause

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protects the accused against conviction except upon proof beyond a reasonable
doubt of every fact necessary to constitute the crime with which he is charged.
f. Apprendi v. New Jersey, 530 U.S. 466 (2000).
i. Facts. Charles C. Apprendi, Jr. fired several shots into the home of an
African-American family. While in custody, Apprendi made a statement,
which he later retracted, that he did not want the family in his
neighborhood because of their race. Apprendi was charged under New
Jersey law with second-degree possession of a firearm for an unlawful
purpose, which carries a prison term of 5 to 10 years. The count did not
refer to the state's hate crime statute, which provides for an enhanced
sentence if a trial judge finds, by a preponderance of the evidence, that the
defendant committed the crime with a purpose to intimidate a person or
group because of race. After Apprendi pleaded guilty, the prosecutor filed a
motion to enhance the sentence. The court found, by a preponderance of
the evidence, that the shooting was racially motivated and sentenced
Apprendi to a 12-year term on the firearms count. In upholding the
sentence, the appeals court rejected Apprendi's claim that the Due Process
Clause requires that a bias finding be proved to a jury beyond a reasonable
doubt. The State Supreme Court affirmed.
ii. Issue. Whether the Due Process Clause of the Fourteenth Amendment
requires that a factual determination authorizing an increase in the
maximum prison sentence for an offense from 10 to 20 years be made by a
jury on the basis of proof beyond a reasonable doubt.
iii. Beyond a Reasonable Doubt Standard. Beyond a Reasonable Doubt Standard.
At stake in this case are constitutional protections of surpassing importance:

together, these rights indisputably entitle a criminal defendant to a jury


determination that he is guilty of every element of the crime with which
he is charged, beyond a reasonable doubt.
iv. Other than the fact of a prior conviction,4 any fact that increases the penalty for a
crime beyond the prescribed statutory maximum must be submitted to a jury, and
proved beyond a reasonable doubt.

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Apprendi preserves the Almendarez-Torres
of prior offenses. The Court also held in Harris v. United States, 536 U.S. 545 (2002), that a sentencing judge can find
those facts necessary to trigger a minimum sentencing provision.

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g. Ring v. Arizona, 536 U.S. 584 (2002).5
i. The Court in Ring
unconstitutional because it allowed judges to find whether factors justifying
imposition of the death penalty exist.
h. Blakely v. Washington, 542 U.S. 296 (2004).
i. Facts. Blakely pleaded guilty to the kidnapping of his estranged wife and
the facts admitted in his plea supported a maximum sentence of 53 months.
Washington state law allows a judge to impose a sentence above the
standard range if he finds "substantial and compelling reasons" for doing so
that were not computed into the standard range sentence. The judge in this
case imposed an "exceptional" sentence of 90 months after determining
Blakely had acted with "deliberate cruelty." Blakely appealed, arguing that
this sentencing procedure deprived him of his federal Sixth Amendment
right to have a jury determine beyond a reasonable doubt all facts legally
essential to his sentence. A state appellate court affirmed the sentence and
the state supreme court denied review.
ii. This case requires us to apply the rule we expressed in Apprendi v. New
Jersey
penalty for a crime beyond the prescribed statutory maximum must be

iii. Statutory Maximum for Apprendi Purposes. Our precedents make clear that
the maximum sentence a
judge may impose solely on the basis of the facts reflected in the jury verdict or
admitted by the defendant. In other w

additional facts, but the maximum he may impose without any additional
findings.
iv.
allow, the jury has not found all the facts which the law makes essential to
the punishment and the judge exceeds his proper authority.
i. United States v. Booker, 543 U.S. 220 (2005).
i. Primary Holding. Concluded that the Sixth Amendment, as construed in
Blakely, applies to the Federal Sentencing Guidelines.
ii.
1. As the dissenting opinions in Blakely recognized, there is no
distinction of constitutional significance between the Federal
Sentencing Guidelines and the Washington procedures at issue in
that case.

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The Court in Schriro v. Summerlin, 542 U.S. 348 (2004), held that the rules from Apprendi and Ring are not to be
applied retroactively.

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2. If the Guidelines as currently written could be read as merely
advisory provisions that recommended, rather than required, the
selection of particular sentences in response to differing sets of facts,
their use would not implicate the Sixth Amendment.
3. Blakely applies to the Federal Sentencing Guidelines.
iii.
1. The Court adopts an approach which makes the Guidelines system
advisory while maintaining a strong connection between the
conduct a connection
important to the increased uniformity of sentencing that Congress
intended it Guidelines system to achieve.
2. Application of these criteria indicates that we must sever and excise
two specific statutory provisions: the provision that requires
sentencing courts to impose a sentence within the applicable
Guidelines range (in the absence of circumstances that justify
departure), and the provision that sets forth standards of review on
appeal, including de novo review of departures from applicable
Guidelines range.
3. Standard of Review for Sentences Post-Booker. The text of the statute
in effect before 2003 directed appellate courts to review sentences
outside the guidelines range to determine whether the sentence was
unreasonable, having
imposing a sentence, as set forth in § 3553(a).6
a. Section 3553(a) remains in effect, and sets forth numerous
factors that guide sentencing. Those factors in turn will
guide appellate courts, as they have in the past, in
determining whether a sentence is unreasonable.
iv. Post-Booker, the Sentencing Guidelines are only advisory. The Supreme
Court and the lower courts continue to struggle with what it means for the
Sentencing Guidelines to be advisory and not mandatory.
1. Sentences falling within the advisory guidelines are presumptively
reasonable. Rita v. United States, 127 S. Ct. 2456 (2007).
2.
decision to impose a sentence outside the Guidelines range. Gall v.
United States, 128 S. Ct. 586 (2007).
j. 18 U.S.C. 3553(a). Factors to be Considered in Imposing a Sentence.
(a) Factors to be considered in imposing a sentence.--The court shall impose a sentence
sufficient, but not greater than necessary, to comply with the purposes set forth in paragraph

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-of-discretion
standard of review. See United States v. Husein, 478 F.3d 318 (6th Cir. 2007).

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(2) of this subsection. The court, in determining the particular sentence to be imposed, shall
consider--
(1) the nature and circumstances of the offense and the history and characteristics of
the defendant;
(2) the need for the sentence imposed--
(A) to reflect the seriousness of the offense, to promote respect for the law,
and to provide just punishment for the offense;
(B) to afford adequate deterrence to criminal conduct;
(C) to protect the public from further crimes of the defendant; and
(D) to provide the defendant with needed educational or vocational training,
medical care, or other correctional treatment in the most effective manner;
(3) the kinds of sentences available;
(4) the kinds of sentence and the sentencing range established for--
(A) the applicable category of offense committed by the applicable category of
defendant as set forth in the guidelines--
(i) issued by the Sentencing Commission pursuant to section
994(a)(1) of title 28, United States Code, subject to any
amendments made to such guidelines by act of Congress (regardless
of whether such amendments have yet to be incorporated by the
Sentencing Commission into amendments issued under section
994(p) of title 28); and
(ii) that, except as provided in section 3742(g), are in effect on the
date the defendant is sentenced; or
(B) in the case of a violation of probation or supervised release, the
applicable guidelines or policy statements issued by the Sentencing
Commission pursuant to section 994(a)(3) of title 28, United States Code,
taking into account any amendments made to such guidelines or policy
statements by act of Congress (regardless of whether such amendments have
yet to be incorporated by the Sentencing Commission into amendments
issued under section 994(p) of title 28);
(5) any pertinent policy statement--
(A) issued by the Sentencing Commission pursuant to section 994(a)(2) of
title 28, United States Code, subject to any amendments made to such
policy statement by act of Congress (regardless of whether such amendments
have yet to be incorporated by the Sentencing Commission into amendments
issued under section 994(p) of title 28); and
(B) that, except as provided in section 3742(g), is in effect on the date the
defendant is sentenced.1
(6) the need to avoid unwarranted sentence disparities among defendants with similar
records who have been found guilty of similar conduct; and
(7) the need to provide restitution to any victims of the offense.

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k. Sentencing Court Errors Post-Booker7
i. First. Sentencing judge violates the Sixth Amendment by making factual
findings and mandatorily enhancing a sentence above the range applicable
to facts found by a jury or admitted by a defendant.
ii. Second. Sentencing judge commits procedural error by mandatorily
applying the applicable Guidelines range that was based solely on facts
found by a jury or admitted by a defendant. The Court in its Remedy
Opinion made clear that, even though the resulting sentence would not
violate the Sixth Amendment, the judge would have erred by mandatorily
acting under the now-excised requirement of subsection 3553(b)(1). A
sentence explicitly based upon a non-existent statutory provision, even if

selected.
iii. Third. A sentencing judge commits statutory error in violation of 3553(a)

applicable ranges) as well as the other factors listed in section 3553(a), and
instead simply selected what the judge deemed an appropriate sentence
without such required consideration.
iv. Fourth. A sentencing judge also violates 3553(a) by limiting consideration
of the applicable Guidelines range to the facts found by the jury or
admitted by the defendant, instead of considering the applicable Guidelines
range, as required by 3553(a)(4), based on the facts found by the court.
l. Departures. The SRA gives judges express authority to depart from the guidelines

into consideration by the Sentencing Commission in formulating the guidelines

3553(b).
i. Statutory Departures. Section 28 U.S.C § 994(n) directs that judges

1. . This provision for departure is based

ii. Guidelines Departure. According to the Guidelines Manual, a sentencing

factors differ significantly from the norm and were therefore not considered
by the drafters of the guidelines.
1. United States v. Koon, 518 U.S. 81 (1993). The Court held that a

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United States v. Crosby, 397 F.3d 103 (2d Cir. 2005).

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most cases be due substantial deference, for it embodies the traditional

m. United States v. Husein 478 F.3d 318 (6th Cir. 2007).


i. Procedural Reasonableness. A sentence is procedurally unreasonable if the
district judge fails to consider the applicable Guidelines range or neglects to
consider the other factors listed in 18 U.S.C. § 3553(a), and instead simply
selects what the judge deems an appropriate sentence without such
required consideration.
1. . The district court need not discuss
each and every § 3553(a) factor, but the reasons that it does provide
for the sentence must sufficiently reflect consideration akin to those
enumerated in the statute.
ii. Substantive Reasonableness. A sentence is substantively unreasonable if the
district court selects the sentence arbitrarily, bases the sentence on
impermissible factors, fails to consider pertinent § 3553(a) factors, or gives
an unreasonable amount of weight to any pertinent factor.
n. United States v. Watts, 519 U.S. 148 (1997).
i. 18 U.S.C. § 3661
concerning the background, character and conduct of a person convicted
or an offense which a court of the United States may receive and consider
for the purpose of imposing an appropriate sentence.
1. Williams v. New York
relevant if not essential
appropriate sentence is the possession of the fullest information

ii. Acquitted Charges? Under the pre-Guidelines sentencing regime, it was


well established that a sentencing judge may take into account facts
introduced at trial relating to other charges, even ones of which the
defendant has been acquitted. The Guidelines did not alter this aspect of

1. In Witte v. United States, 515 U.S. 389 (1995), the Court explained
that sentencing enhancements do not punish a defendant for crime
of which he was not convicted, but rather increase his sentence
because of the manner in which he committed the crime of
conviction.
2. Different Standard of Proof at Trial and Sentencing. Acquittal on
criminal charges does not prove that the defendant is innocent; it
merely proves the existence of reasonable doubt as to his guilt. It is
impossible to know exactly why a jury found a defendant not guilty
on a certain charge.

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a. The Guidelines, on the other hand, state that it is

a preponderance of the evidence, and the Court has held


that application of the preponderance standard at sentencing
generally satisfies due process. McMillan v. Pennsylvania
(1986).
o. Double Jeopardy. The Supreme Court in Witte v. United States rejected a double
jeopardy claim, noting th

i. The opinion also concluded that the same practice is acceptable under the
federal sentencing guidelines.
p. Presentence Investigation.
i. In the federal system, presentence reports are required. See Fed. R. Crim.
Pro. 32(c)-(h).
IV. Confrontation Clause and Sentencing
a. The evidentiary rules governing hearsay do not apply to sentencing hearing in
federal or state courts. Howeve
(and the equivalent provisions of a state constitution) still might require that a
defendant be allowed to cross-examine witnesses at the sentencing hearing.
b. Crawford v. Washington, 541 U.S. 36 (2004).
i. Bars
unavailable and the defendant had a prior opportunity for cross
examination of the declarant.
c. Pre-Crawford. Before Crawford, courts mostly concluded that the confrontation
clause did not apply to the evidence presented during a sentencing hearing.
i. Post-Crawford. After Crawford, the lower federal courts and state courts
reopened the question of whether the use of testimonial hearsay during
noncapital sentencing proceedings violates the
rights. Most have concluded that it does not.
d. Capital Cases. The imposition of a death sentence based on information that a
defendant does not have the opportunity to deny or explain may run afoul of the
confrontation clause.
V. Right to Remain Silent
a. Mitchell v. United States, 526 U.S. 314 (1999).
i. The Supreme Court held that a defendant, after pleading guilty to a
specific offense, can assert her Fifth Amendment privilege against self-
incrimination at the sentencing hearing and not have the judge draw an adverse
inference
ii.
functioned as a waiver of her right to remain silent at sentencing.

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iii. Relied on Griffin v. California, 380 U.S. 609 (1995), which held that it is
constitutionally impermissible for the prosecutor or judge to comment at

VI. Capital Punishment (& the Eighth Amendment)


a. Arbitrariness. A consensus seems to have emerged that the Constitution prohibits
death imposed by sentencers with unbridled discretion; to minimize risks of
arbitrary and capricious imposition, the sentencing decision must be made under a
system of guided discretion.
i. Furman v. Georgia, 408 U.S. 238 (1972).
1.
being struck by lightning is cruel and unusual. I simply conclude
that the Eighth and Fourteenth Amendments cannot tolerate the
infliction of a sentence of death under legal systems that permit this
unique penalty to be so wantonly and so freakishly imposed.
b. Systematic Structure to Avoid Arbitrary Imposition
i. Gregg v. Georgia, 428 U.S. 153 (1976).
1.
mitigating circumstances, it must find and identify at least one
statutory aggravating factor before it may impose a penalty of

c. Categorical Exclusions.
i. Proportionality is the key concept for testing whether the intrinsic nature
. The inquiry is whether in

disproportional for the act under scrutiny to carry a death sentence. See
Law of Sentencing § 6:2 Death Sentences.
ii. Coker v. Georgia, 433 U.S. 584 (1977). (Rape of an Adult Woman)
1. Furman and Gregg and companion cases settled that the death
penalty is not invariable cruel and unusual punishment within the
meaning of the Eighth Amendment; it is not inherently barbaric or
an unacceptable mode of punishment for crime; neither is it always
disproportionate to the crime for which it is imposed.
2. At no time in the last 50 years have a majority of the States
authorized death as punishment for rape.
a. In reviving death penalty laws to satisfy Furman
none of the states that had not previously authorized death
for rape chose to include rape among capital felonies.
3. Rape is without doubt deserving of serious punishment; but in
terms of moral depravity and of the injury to the person and to the
public, it does not compare with murder, which does involve the
unjustified taking of human life. Although it may be accompanied

16
by another crime, rape by definition does not include the death of
or even the serious injury to another person. The murderer kills;
the rapist, if no more than that, does not.
a. Life is over for the victim of the murderer; for the rape
victim, life may not be nearly so happy as it was, but it is
not over and normally is not beyond repair.
iii. Other Categorical Exclusions
1. Kennedy v. Louisiana, 554 U.S. ___ (2008) (rape of a child); Atkins
v. Virginia, 536 U.S. 304 (2002) (mentally retarded); Roper v.
Simmons, 543 U.S. 551 (2005) (offenders under 18 years of age);
Tison v. Arizona, 481 U.S. 137 (1987) (must have a mens rea of at
least reckless indifference to human life).
iv. Graham v. Florida 130 S. Ct. 2011 (2010). (Life Without Parole for Non-
Homicide Juvenile Offenders).
1. To determine whether a punishment is cruel and unusual, courts

of decency that mark the progress of a maturing Estelle v.


Gamble, 429 U.S. 97 (1976).
2. Proportionality Concept
precedents consider punishments challenged not as inherently
barbaric but as disproportionate to the crime. The concept of
proportionality is central to the Eighth Amendment. Embodied in

Weems v. United States, 217 U.S.


349 (1910).
a.
sentences fall within two general classifications. The first
involves challenges to the length of term-of-years sentences
given all the circumstances in a particular case. The second
comprises cases in which the Court implements the
proportionality standard by certain categorical restrictions
on the death penalty.
3. Categorical Rules. This classification in turns consists of two subsets,
one considering the nature of the offense, the other considering the
characteristics of the offender.
a. Nature of the Offense. With respect to the nature of the
offense, the Court has concluded that capital punishment is
permissible for nonhomicide crimes against individuals.
b. Characteristics of the Offender. In cases turning on the
characteristics of the offender, the Court has adopted

17
categorical rules prohibiting the death penalty for defendants
who committed their crimes before the age of 18 or whose
intellectual functioning is in a low range.
4. In cases adopting categorical rules the Court has taken the
following approach:
a.
standards, as express in legislative enactments and state

against the sentencing practice at issue.


b.

meaning and purpose, the Court must determine in the


exercise of its own judgment whether the punishment in
question violates the Constitution.
5. This case, however, involves a term-of-years sentence challenge but
one that implicates an entire class of offenders who have committed
a range of crimes.
a. As a result, the appropriate analysis is one used in cases that
involved the categorical approach.
i. Roper established that because juveniles have lessened
culpability they are less deserving of the most severe
punishments.
ii. As for the punishment, life without parole is the
second most severe penalty permitted by law. It is
true that a death sentence is unique in its severity
and irrevocability yet life without parole sentences share
some characteristics with death sentences that are shared by
no other sentences.
6. The Constitution prohibits the imposition of a life without parole
sentence on a juvenile offender who did not commit homicide. A
State need not guarantee the offender eventual release, but if it
imposes a sentence of life it must provide him or her with some
realistic opportunity to obtain release before the end of that term.
d. Mandatory Death Sentences
i. Woodson v. North Carolina, 428 U.S. 280 (1976).
1. North Carolina enacted a new statute that was essentially
unchanged from the old, pre-Furman statute except that it made the
death penalty mandatory.

18
2. It is now well established that the Eighth Amendment draws much

a. One of
treatment of capital punishment has been the rejection of
the common-law practice of inexorably imposing a death
sentence upon every person convicted of a specified offense.
3. h penalty statute for first-degree
murder departs markedly from contemporary standards respecting
the imposition of punishment of death and thus cannot be applied

standards.
4. The statute fails to allow the particularized consideration of relevant
aspects of the character and record of each convicted defendant
before the imposition upon him of a sentence of death.
a. In Furman, members of the Court acknowledged what
cannot fairly be denied that death is a punishment different
from all other sanctions in kind rather than degree.
e. Mitigating Evidence
i. Lockett v. Ohio, 438 U.S. 586 (1978).
1. We conclude that the Eighth and Fourteenth Amendments require
that the sentencer, in all but the rarest kind of capital case, not be
precluded from considering, as a mitigating factor, any aspect of a
ances of the offense
that the defendant proffers as a basis for a sentence less than death.
2. Given that the imposition of death by public authority is so
profoundly different from all other penalties, we cannot avoid the
conclusion that an individualized decision is essential in capital
cases.
a. The nonavailability of corrective or modifying mechanisms
with respect to an executed capital sentence underscores the
need for individualized consideration as a constitutional
requirement in imposing the death sentence.
ii. Elaboration on Lockett. The Court has elaborated on the basic holding of
Lockett in a series of cases on jury instructions and evidentiary rulings. See
Eddings v. Oklahoma
told jury to ignore nonstatutory mitigating evidence); Skipper v. South
Carolina, 476 U.S. 1 (1986) (defendant can put in evidence of good
behavior in prison to demonstrate nondangerousness).

19
iii. Access to Aggravating Evidence. Defense counsel must also have access to the
aggravating evidence that the prosecutor plans to present, to prepare for
cross-examination or other testing of its accuracy. See Gardner v. Florida,
430 U.S. 349 (1977) (defense counsel must have access to all information
in the presentence investigation report provided to the sentencer, based on
the right to confrontation).
f. Victim Impact Evidence
i. State v. Muhammad, 678 A.2d 164 (N.J. 1996).
1. Historically, the legal system did not view crime victims as having
any rights. Because criminal attacks were viewed as attacks and
threats on the entire community, and were prosecuted by the state

another piece of evidence.


2. In Payne v. Tennessee, 501U.S. 808 (1991), the Supreme Court
overruled the prior holdings of Booth v. Maryland (1987), in which
the Court held that the Eighth Amendment prohibits a capital
sentencing jury from receiving victim impact evidence relating to
the personal characteristics of the murder victim and the emotional
South Carolina v.
Gathers (1989) in which the Supreme Court extended the rule
adopted in Booth to statement made by the prosecutor about the
personal qualities of the victim.
a. Payne rejected two of the premises underlying Booth and
Gather:
i. Evidence of the personal characteristics of the victim
and of the emotional impact of the crime on the

blameworthiness
ii. Only evidence of moral culpability is relevant to a
capital sentencing decision.
b. Booth unfairly weighted the scales in a capital trial because it
allowed the defendant to introduce virtually all mitigating
evidence concerning his own circumstance, but barred the
State from offering any victim impact evidence.
c. If a State chooses to permit the admission of victim impact
evidence and prosecutorial argument on that subject, the
Eighth Amendment erects no per se bar.
d. Victim impact evidence is simply another form or method
of informing the sentencing authority about the specific
harm caused by the crime in question, evidence of a general
type longer considered by sentencing authorities.

20
e. Payne left undisturbed the holding in Booth that the

and opinions about the crime, the defendant, and the


appropriate sentence violates the Eighth Amendment.
VII. The Eighth Amendment
a. Excessive bail shall not be required, nor excessive fines imposed, nor cruel and
unusual punishments inflicted
b. Two concerns of Eighth Amendment cases:8
i. Excessiveness
ii. Barbaric
c. In Rummell v. Estelle, 445 U.S. 263 (1980), the defendant was sentenced, under the

years for his third felony: obtaining $120.75 by false pretenses. The Supreme
Court, in a decision authore
did not amount to cruel and unusual punishment.
d. Determining When a Sentence is Proportional
i. Solem v. Helm, 463 U.S. 277 (1983)
1. Facts. Helm was convicted of writing a check from a fictitious
account, a crime carrying with it a five-year jail sentence.
However, since this was his seventh felony conviction in South
Dakota since 1964, he was sentenced to life imprisonment without
parole under a state recidivist statute.
2. essive bail shall not be
required, nor excessive fines imposed, nor cruel and unusual

punishments, but also sentences that are disproportional to the


crime committed.
3. When sentences are reviewed under the Eighth Amendment,
courts should be guided by objective factors that our cases have
recognized:
a. First, we look to the gravity of the offense and the harshness
of the penalty.
i. State is justified in punishing a recidivist more
severely than it punishes a first offender.
ii. The court in Rummell v. Estelle relied heavily on the
fact that there was a possibility of parole.
b. Second, it may be helpful to compare the sentences imposed
on other criminals in the same jurisdiction. If more serious

8
Gregg
barbaric excessive n to the
crime committed.

21
crimes are subject to the same penalty, or to less serious
penalties, that is some indication that the punishment at
issue is excessive.
c. Third, courts may find it useful to compare the sentences
imposed of the same crime in other jurisdictions.
4. Concurrence
a. The prevailing view up to now has been that the Eighth
Amendment reaches only the mode of punishment and not
the length of a sentence of imprisonment.
ii. Harmelin v. Michigan, 501 U.S. 957 (1991)
1. Justice Scalia, in a historical analysis, stated that the Eighth
Amendment does not require proportionality review. He
continued that Eighth Amendment challenges should be limited to
attacks on the mode of punishment.
2. Justice Kennedy identified four principles that should govern:
a. Deference should be given to legislatures as to the
appropriate sentence for specific crimes.
b. The Eighth Amendment does not mandate adoption of any
one penological theory.
c. Marked divergences both in underlying theories of
sentencing and in length of prescribed prison terms are the
inevitable, often beneficial result of the federal structure.
d. Proportionality review should be informed by objective
factors to the maximum extent possible.
e. Proportionality and Three Strikes Laws
i. Ewing v. California, 538 U.S. 11 (2003)
1. Facts. On March 12, 2000, Gary Ewing, a serial offender with a
long history of criminal convictions, was arrested for stealing three
golf clubs, each worth $399, from a Los Angeles-area golf course.
At the time of his arrest, Ewing was on parole from a 9-year prison
term for convictions in three burglaries and one robbery. Under
California's three strikes law, another felony conviction would
require a sentence of 25 years to life. Ewing was charged with and
convicted of one count of felony grand theft for the incident at the
golf course. During sentencing, Ewing requested the judge in the
case exercise discretion permitted under California law and reduce
the conviction to a misdemeanor. The judge declined and
sentenced Ewing in accordance with the three strikes law.
2. Throughout the States, legislatures enacting three strikes laws made
a deliberate policy choice that individuals who have repeatedly
engaged in serious or violent criminal behavior, and whose conduct

22
has not been deterred by more conventional approaches to
punishment, must be isolated from society in order to protect the
public safety.
3. When the California Legislature enacted the three strikes law, it
made a judgment that protecting the public safety requires
incapacitating criminals who have already been convicted of at least
one serious or violent crime. Nothing in the Eighth Amendment
prohibits California from making that choice.
4. -guess these policy
choices. It is enough that the State of California has a reasonable
basis for believing that dramatically enhanced sentences for habitual
felons advances the goals of its criminal justice system in a
substantial way.
f. Multiple Charges and the Eighth Amendment
i. Proportionality review can only be applied to each conviction, not to the
sum of the consecutive prison terms imposed.

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