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![handle is hein.congcourts/gsenupa0010 and id is 1 raw text is: Guideline Sentencing Update
a publication of the Federal Judicial Centerj. ava*abIe via Internet at http:/Iwww.qc.gov * vol. 10, no. 1, Sept. 29, 1998
Departures
Mitigating Circumstances
D.C. Circuit holds that criminal history in §5K2.13
has broader meaning than criminal history calcu-
lated in §4A1.I. Defendant pled guilty to one count of
being a felon in possession of a firearm and faced a
sentencing range of 37-46 months. His criminal history
included four other firearms offenses, some of which
involved assaultive or threatening behavior. The district
court found that defendant suffered from post-traumatic
stress disorder (from service in the Vietnam War) and
departed under §5K2.13 to a sentence of five years' pro-
bation. In concluding that defendant's criminal history
does not indicate a need for incarceration to protect the
public, § 5K2.13, the court noted that defendant's men-
tal condition was treatable, he would not be released
from prison on another, uncompleted sentence until his
middle fifties, his criminal history score was erroneous,
and he had never actually injured any law enforcement
officers during his previous criminal conduct despite
repeated opportunities to do so. On appeal, the govern-
ment argued that criminal history as defined in Chap-
ter 4, Part A of the Guidelines was the only relevant factor
in assessing whether defendant should be incarcerated
to protect the public.
The appellate court disagreed, holding that the
'criminal history' referred to in section 5K2.13 is not lim-
ited to the meaning Chapter 4, Part A gives it. The circuit
previously held that non-violent offense in §5K2.13
should not be equated with crime of violence in § 4B 1.2.
The different purposes behind section 5K2.13 and
Chapter 4, Part A likewise suggest that the latter, de-
signed to impose greater punishment on repeat offend-
ers, should not control the meaning of'criminal history'
as used in the former, whose purpose is lenity. More-
over, the [Sentencing] Commission could have provided
that certain repeat offenders are ineligible for a departure
under section 5K2.13. That it chose not to reinforces the
view that 'criminal history' means something more in
section 5K2.13 than it does in Chapter 4, Part A.
This is not to say, however, that anything is fair game.
Rather, the sentencing court may consider only those
factors that bear on whether 'the defendant's criminal
history... indicate[s] a need for incarceration to protect
the public.' U.S.S.G. § 5K2.13. The Ninth Circuit identified
four factors: psychiatric or other medical treatment the
defendant is receiving and its likelihood of success, the
defendant's likely circumstances upon release, the
defendant's overall criminal record and the 'nature and
circumstances' of the current offense. See U.S. v. Cantu,
12 E3d 1506, 1516 (9th Cir. 1993).
In this case, the court agreed with the government's
alternative claim and concluded that [t]he sentencing
court here strayed far from these factors. For example,
although defendant's stress disorder is treatable, the
court made no findings that defendant would, in fact,
receive treatment. Also, although an individual in his
fifties may be less inclined to commit some forms of
crime, reliance on that supposition is undermined by
the central role of reduced mental capacity, which sug-
gests that the normally beneficent effects of aging maybe
ineffective and the fact that defendant's criminal his-
tory involves the use and abuse of firearms, whose exer-
cise requires no youthful vigor. The appellate court
found that the other factors relied on by the district court
were also inappropriate and remanded for resentencing
in accord with its opinion.
U.S. v. Atkins, 116 E3d 1566, 1569-71 (D.C. Cir. 1997)
(per curiam) (Henderson, J., dissented). Note: Although
a proposed Nov. 1998 amendment would substantially
revise §5K2.13, the language at issue here would remain
with only slight modification.
See Outline at VI.C..b
Aggravating Circumstances
Fifth Circuit holds that non-criminal conduct may be
considered for upward departure. Defendant pled
guilty to several counts related to possessing, transfer-
ring, and manufacturing illegal weapons, including three
machine guns and two silencers. As part of one sale,
defendant agreed to show an undercover agent how to
construct a silencer and videotaped that construction so
that others could learn his method. In that tape, he falsely
stated that he was properly licensed to manufacture the
silencer. At another point, defendant was notified by the
manufacturer of some of his weapons (which he had
illegally converted to fully automatic) that they were
about to become illegal and he should return them; de-
fendant wrote back and falsely claimed that he had sold
them. The district court departed upward on several
grounds and used the videotape and the letter to support
the ground-that defendant had attempted to conceal his
illegal conduct and to facilitate manufacture and con-
cealment by others. Defendant argued on appeal that
lying in the letter and on the video and participating in
the video were not, in themselves, criminal activities and
Guideline Sentencing Update is distributed periodically to inform judges and other judicial branch personnel of selected federal court decisions
on the sentencing reform legislation of 1984 and 1987 and the Sentencing Guidelines. Update refers to the Sentencing Guidelines and policy
statements of the U.S. Sentencing Commission, but is not intended to report Commission policies or activities. Update should not be consid-
ered a recommendation or official policy of the Center; any views expressed are those of the author.](ViewImageLocal?handle=hein.congcourts/gsenupa0010&div=1&collection=&method=preview&ext=.png&size=3)