Addressing departures, the court in United States v. Coleman, 188 F.3d 354 (6th Cir. 1999), held that any factor not specifically forbidden by the guidelines can be the basis for a departure. The court further held that a sentencing court may aggregate departure factors that, standing alone, may not be sufficient to support the departure. Here, selective prosecution was a permissible factor to consider.

The defendant's sentence in United States v. Crawford, 169 F.3d 590 (9th Cir. 1999), was enhanced based on his distribution of drugs within 1000 feet of a school. The defendant was originally charged with distributing drugs in a protected location, but plead guilty to a different distribution charge which was not in a protected location. The enhancement was based on relevant conduct. The court held that relevant conduct has no role in choosing the applicable offense guidelines section, and therefore, the enhancement was not proper.

The Sixth Circuit recently addressed the ability to impose a more severe sentence on a defendant following a successful appeal. In United States v. Jackson, 181 F.3d 740 (6th Cir. 1999) the judge relied on a revised pre-sentence report which included a prior conviction that the original report had overlooked. Under North Carolina v. Pierce, there is a presumption of vindictiveness when a harsher sentence is imposed, which can be rebutted in some cases. The court held that the presumption was not rebutted in this case, even though the court thoroughly articulated its reasons for imposing a more severe sentence. The factors on which the sentence was based existed at the time the original sentence was imposed, and the court failed to set forth any conduct or factor which came to the court's attention after the first sentence was imposed.

Unjustified departures - United States v. McMutuary, 2000 F.3d 499 (7th Cir. 1999). The Court departed below the statutory minimum on a co-defendant without a government motion. As a result, the co-defendant received home detention, while the other defendants faced sentences ranging from 135 to 198 months. Court holds unjustified departure on a co-defendant may be basis for departure sentence on other defendants. This is different from the case where departure for the co-defendant is justified, which cannot be basis for departure.

Sentencing - aiding and abetting - United States v. Hendrick, 177 F.3d 547 (6th Cir. 1999). Defendant was convicted of aiding and abetting the possession of a firearm by a felon. The principal's offense level was 24, based on 2 convictions for controlled substance offenses or crimes of violence. The Court assessed the same offense level to the defendant, even though he did not have two such convictions. Court holds the offense level must be based on the defendant's own criminal record.

In United States v. Dale, 178 F.3d 429 (6th Cir. 1999), the defendant was charged with conspiracy to distribute both crack cocaine and marijuana. The jury returned a general verdict finding the defendant guilty. Court holds that where general verdict is returned, court should sentence the defendant for the offense carrying the shorter sentence.

Search and Seizure

United States v. Pruitt, 192 F.3d 132 (11th Cir. 1999). Questioning a driver stopped for speeding about matters unrelated to the stop may violate the fourth amendment. Here, the officer asked the defendant about the purpose of his trip, his occupation, and how much he paid for his van. He also asked if there were drugs or anything illegal in the van. The officer finally asked for and received consent to search. Court holds the lengthy detention, in the absence of reasonable suspicion, was improper. Court also expressed concern that the defendants were detained solely because they were Hispanic, and the van had out-of-state tags.

Jailhouse Informants

An extremely significant decision is Dodd v. State, 2000 WL 12030, 2000 OK CR 2 (Okla. Crim. App. Jan. 06, 2000)(No. F-97-26). There, the court addressed the common practice of using jailhouse informers. The court noted inherent unreliability of such witnesses and held a court should be "exceedingly leery" of such witnesses, especially where there is an indication that they may have received some benefit in return for their testimony. The court established a procedure whereby a defendant must be given notice before trial of such testimony, as well as information concerning benefits the informant may have received, and information which could be used to impeach him. The court also required a reliability hearing.

(Thanks to Prison Legal News for compiling some of the above material)

Seattle case sets important precedent

(U.S. District Court Western District, Seattle, Case No CR 98 - 03552) In United States v. William Farrell, Mr. Farrell plead guilty to conspiracy to import 25,000 pounds of marijuana from Asia. His range started at 240 months. Judge Zilly departed downwards to 144 months. The first basis was unremarkable: Mr. Farrell has a number of physical problems that make his stay in jail harder, and his life-expectancy shorter. There is some precedent for that. But the second basis was new. I argued that as a Buddhist he was foreclosed from escaping through the door used by most federal drug defendants; a 5k motion based on snitching someone off. I made an analogy to contempt, and the judge accepted it.

The government has decided not to appeal so, if we don't talk about this case, no one will know about it, and no one will be able to use the idea.

Thanks to Seattle attorney Jeffrey Steinborn for this case summary.