Sunday, February 24, 2008

The Government Giveth and the Government Taketh Away

United States v. Dominguez, No. 05-7005-cr (2d Cir. February 15, 2008) (Miner, Sack, Hall, CJJ)

Carol Dominguez faced 240-months in prison: a ten-year crack minimum that was doubled because of her prior conviction. The government moved for a downward departure under 5K1.1 and 18 U.S.C. § 3553(e), then asked the court to sentence her somewhere within a 151 to 188 month range. At sentencing, the judge granted the government's motions, and then considered mitigating information from Dominguez’ family, friends, employers and the defendant herself. The judge indicated that he believed he had the “discretion to sentence you as to what I feel would be fair and reasonable under the circumstances.” He said that he had “reviewed and considered all the pertinent information including but not limited to the presentence investigation report, submissions by counsel the factors outlined in 18 U.S.C. Section 3553 and the sentencing guidelines” and sentenced her to time served - 464 days - a 93% reduction from the mandatory minimum.

The government appealed, and the circuit reversed, finding fault with the district court’s procedures. Here is what the court said should happen on remand. First, the district court must determine the correct Guideline range, which here is 240 months, the mandatory minimum. Then, since section 5K1.1 does not really apply here - it does not authorize departures below a mandatory minimum - the court must consider the government’s motion under § 3553(e), under which “any reduction may be based only on substantial assistance to the government and on no other mitigating considerations” (emphasis added). On this point, an open question here, the court joined the Fifth, Eighth and Ninth Circuits. The court ended by suggesting that the 5K1.1 factors would be “instructive in determining how much of a departure below the statutory minimum is appropriate,” even though that section does not itself apply.

Comment: This is a very strange opinion. The circuit now seems to believe that when sentencing cooperators who face a mandatory minimum, a court cannot apply § 3553(a); it can base its decision only on the extent of the cooperation. That does not really make much sense, since § 3553(a) obviously applies in all sentencings.

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