Let Judges Be Judges! — Post-Koon Downward Departures: Part 2 — Offense Rehabilitation

[vc_row][vc_column width=”1/1″][vc_column_text]

Let Judges Be Judges! — Post-Koon Downward Departures: Part 2 — Offense Rehabilitation

BY ALAN ELLIS
Criminal Justice, Spring 1998

[EDITOR’S NOTE: This is a series about downward departures recognized by the court in light of the 1996 Supreme Court’s decision in United States v. Koon. Part 1 discussed diminished capacity. Part 3 will feature aberrant behavior.]

Legislative history of the Sentencing Reform Act of 1984 reflects that it was not Congress’s aim to straight jacket a sentencing court, compelling it to impose sentences like a robot inside a sentencing guidelines’ glass bubble, and preventing it from exercising discretion, flexibility, or independent judgment. The sentencing judge has an obligation to consider all the relevant factors in a case and to impose a sentence outside the guidelines in an appropriate case. The purpose of the U.S. Sentencing Guidelines is to provide a structure for evaluating the fairness and appropriateness of the sentence for an individual offender, not to eliminate the thoughtful imposition of individualized sentences. (S.Rep. No. 225, 98th Cong., 2d Sess. 52 (1984), reprinted at 1994 U.S.C.C.A.N. 3182, 3235.)

Prior to U.S. v. Koon,— U.S.—, 135 L.Ed.2d 392, 116 S.Ct. 2035 (1995), many judges, mindful of Congress’s goal of eliminating unwarranted disparity in the sentencing of similar offenders for similar offenses, misperceived that the resultant guidelines that had been promulgated to implement this policy had forced them into imposing mechanical sentences in virtually all cases. Unless a downward departure was specifically provided for in the guidelines, it was all too often thought that a sentencing judge had virtually no power to depart.

And then along came Koon. Koon reminded judges that they could still be judges and with it the straight jacket loosened. For example, in the area of post-offense rehabilitation, the Fourth Circuit in U.S. v. Brock, 108 F.2d 31 (4th Cir.1997) reversed pre-Koon case law and held that post-offense rehabilitation was now a proper ground for a downward departure. Earlier Fourth Circuit precedent—U.S. v. Van Dyke, 895 F.2d 984, 986-86 (4th Cir.1990)—had held that post-offense rehabilitative methods could be considered for an acceptance of responsibility adjustment pursuant to U.S.S.G. § 3E1.1, but could not be a mitigating circumstance providing further sentence mitigation through a downward departure.

Brock pleaded guilty to two counts of credit card fraud. The district court, despite expressing a desire to depart downward, refused the defendant’s request for a downward departure based upon his post-offense rehabilitative efforts because it believed it lacked the authority to depart based on Van Dyke.

On appeal, the Brock court vacated the defendant’s sentence holding that “extraordinary exceptional efforts of rehabilitation” could constitute a proper basis for consideration of a downward departure.

In reaching its decision, the Brock court relied on the Supreme Court’s opinion in Koon, which it read as support for the conclusion that the factor of “post-offense rehabilitation” had not been forbidden by the U.S. Sentencing Commission as a basis for departure under the appropriate circumstances. Since post-offense rehabilitation is not a forbidden factor, the Brock court next sought to fit the factor into one of the other categories identified in Koon:

(1) Was the factor encouraged by the commission as a basis for departure and was it either (a) taken into account in the applicable guideline itself or (b) not taken into account in the guidelines; (2) was the factor discouraged by the commission as a basis for departure; or (3) was the factor unmentioned by the commission?

If the factor is one upon which the commission encourages departure and it is not taken into account by the applicable guidelines, a court may exercise its discretion and depart on that basis. If an encouraged factor is taken into account in the applicable guideline, or if the factor is a discouraged one, then departure is permissible only if the factor is present to an exceptional degree or in some other way makes the case different from the ordinary case where the factor is present.

Similarly, if the factor is neither encouraged or discouraged—as in the case of post-offense rehabilitation—but listed by the commission as one appropriately considered in applying an adjustment to the guidelines, a court may depart only if the factor is present to such an exceptional or extraordinary degree that it removes the case from the heartland of decisions to which the guideline is fashioned to apply.

Finally, if a factor is one that is unmentioned by the guidelines, a court must take into consideration the structure and theory of both relevant individualized guidelines and the guidelines taken as a whole and then determine whether the circumstances presented are sufficient to remove the case from the heartland of applicable guidelines.

Adopting the reasoning of Van Dyke, the Brock court concluded that the guidelines had already taken into account the factor of post-offense rehabilitation because the commentary to the guidelines expressly instructed that such effort be considered in determining a defendant’s eligibility for an acceptance of responsibility adjustment pursuant to U.S.S.G. § 3E1.1, Application Note 1(g). Therefore, the court concluded a departure based on post-offense rehabilitation was warranted when it is “present to such an exceptional degree that the situation cannot be considered typical under the circumstances of which an acceptance of responsibility adjustment is granted.” Thus, the appellate court remanded the case to the district court to set forth specific factual findings concerning what efforts on Brock’s part it considered exceptional enough to make the case atypical of those situations in which the acceptance of responsibility adjustment is usually sufficient to reward post- offense rehabilitation.

In United States v. Sally, 116 F.3d 76 (3d Cir.1997), in light of recent decisions in Koon and Brock, the Third Circuit vacated Sally’s sentence and remanded the case to the district court to determine whether Sally was entitled to a downward departure based on his post-offense rehabilitative methods.

Sally was a bagger and lookout for a crack conspiracy when he was 17 years old. As a result of his participation in the conspiracy, Sally was indicted and convicted of drug charges as well as charges relating to the use of a gun in drug trafficking. He was sentenced in December 1991.

In 1996, Sally’s conviction for use of a gun during drug trafficking was dismissed pursuant to a section 2255 motion. As a consequence, his sentence was vacated and a resentencing hearing held later that year. At the hearing, Sally’s counsel requested that the district court consider a downward departure based on a combination of the two factors: (1) the fact that Sally was 17 years old during half the time he participated in the conspiracy, and (2) the fact that since he was first jailed, Sally had demonstrated increased maturity, earning a GED and an additional nine college credits. These factors, Sally’s counsel argued, presented “sufficiently unusual circumstances” to permit the court to depart downward. After reviewing Koon and Brock, the Third Circuit held that post-offense rehabilitation efforts, including those that occur postconviction, may constitute a significant factor warranting a downward departure provided that the efforts are so exceptional as to remove the particular case from the heartland in which the acceptance of responsibility adjustment was intended to apply. In setting a standard for post-offense rehabilitation, the Third Circuit indicated that, at a minimum, there must be evidence demonstrating that a defendant “had made concrete gains towards turning his life around” before a sentencing court could properly rely on extraordinary post-offense rehabilitation efforts as a basis for downward departure:

Unlike the usual adjustment for acceptance of responsibility where defendants may all-too-often be tempted to feign remorse for their crimes and be rewarded for it, I view the opportunity for downward departure based on extraordinary or exception al post-conviction rehabilitation efforts as a chance for truly repentant defendants to earn reductions in their sentence based on the demonstrated commitment to repair and to rebuild their lives. As such I conclude that as a baseline, downward departures based on extraordinary or exceptional post-conviction rehabilitation efforts are proper provided that the sentencing court makes factual findings demonstrating that the defendant has achieved real gains in rehabilitating himself and changing his behavior.

Child cyberporn cases—the current “crime du jour”—seem to lend themselves to downward departures based on post-offense rehabilitative efforts. In United States v. Barton, 76 F.3d 499 (2d Cir.1996), the defendant pleaded guilty to knowingly receiving interstate commerce material involving pictures of minors engaged in sexually explicit conduct in violation of 18 U.S.C. § 2252(a)(2). At sentencing, over the government’s objections, the court departed from the sentencing guideline range of 15-21 months’ imprisonment in light of Barton’s psychological condition, his limited involvement with child pornography, his nonpredatory nature, and his efforts towards rehabilitation. It sentenced him to a term of probation subject to electronically monitored home confinement, psychiatric and/or psychological counseling, and community service.

Although the Second Circuit agreed that an individual convicted of receiving child pornography may be entitled to a downward departure in light of his or her rehabilitative efforts, provided those efforts are truly extraordinary, the court noted that the evidence in Barton’s case did not justify the sentencing judge’s finding that the defendant had made extraordinary efforts at rehabilitation. The court of appeals stated that the mere fact that Barton had sought rehabilitation did not of itself justify a reduction in sentence because a tentative step towards rehabilitation was not usually enough to warrant a downward departure. Barton’s psychotherapist had not cited any objective indications of his patient’s progress towards overcoming his condition. Thus, the court of appeals vacated Barton’s sentence and remanded for resentencing.

The court contrasted the case with United States v. Maier, 975 F.2d 944, 948-49 (2d Cir.1992), which approved a downward departure to probation in light of a heroin defendant’s extraordinary efforts in overcoming her addiction, only after the district court had:

Conscientiously examined all the pertinent circumstances, including the nature of the defendant’s addiction, the characteristics of the program she had entered, the progress she had made, objective indications of her determination to rehabilitate herself, and her therapist’s assessment of her progress towards rehabilitation and the hazards of interrupting that progress.

Significantly, however, the Barton court invited the district court, on remand, to allow the government and Barton full opportunity to offer any further relevant evidence substantiating Barton’s rehabilitation. The opinion ended by stating that if the sentencing judge then found support in the record for a conclusion that Barton’s rehabilitative efforts were extraordinary, reducing his sentence from a minimum of 15 months to probation would not be unreasonable. On remand, the sentencing judge did just that.

In another child pornography case, Judge Richard G. Kops of the District of Nebraska granted a defendant a downward departure on the grounds that he was unusually susceptible to abuse in prison and had engaged in extraordinary post- offense efforts at rehabilitation. (U.S. v. Shafky, 939 F.Supp. 695 (D.Neb.1996).) Shafky, a Nebraska state trooper at the time of the commission of the offense, was a gay male of diminutive stature who was charged in a highly publicized case of receiving pornography involving minors.

Among the factors that the court considered in finding extraordinary post- offense rehabilitation was the fact that Shafky had entered a nationally recognized sex offender program at the University of Minnesota Medical School; the nature of the program; the progress he was making to rehabilitate himself; his therapist’s assessment of his progress towards rehabilitation; the fact that his progress had been described by the program director as being “extraordinary”; the hazards of interrupting that progress; and finally, his excellent long-term prognosis and minimal risk of reoffending. Rather than impose a sentence of 15-21 months’ incarceration as called for by the guidelines, the judge placed Shafky on probation conditioned upon six months of home confinement, completion of the sex offender program, community service, and a fine. Finally, in yet another child pornography case, the Eighth Circuit also recognized that exceptional post-offense rehabilitation may warrant a downward departure. In United States v. Kapitzke, 130 F.3d 820, No. 97-1540 (8th Cir.1997), the defendant had exposed himself in front of a 13-year-old girl. In his truck and at home, police found pictures and computer files of child pornography from the Internet. The district court departed downward based on the financial burden of defendant’s imprisonment on his family, his susceptibility to abuse in prison, and his post-offense rehabilitation efforts.

After eight months of sex offender and chemical dependency treatment, the director of the sex offender treatment program was “extremely impressed” with Kapitzke’s efforts and believed that he had a high probability of success. His chemical dependency counselor had never had a client work harder than Kapitzke and believed his prognosis was “very good.” Finally, a doctor experienced in addiction medicine described the defendant’s recovery up to that point as “truly outstanding.” The Eighth Circuit reversed, finding that the first two reasons did not justify a departure, but the third did. Because the appellate court did not know if the district court would have imposed the same sentence absent the invalid departure factors—probation conditioned upon nine months of community confinement with work release—it remanded for resentencing. On remand, the sentencing was identical to the prior sentence.

Downward departures for post-offense rehabilitation have also been recognized in the area of chemical dependency. In the leading pre-Koon case of U.S. v. Maier, supra, the evidence disclosed that Maier had been purchasing distributable quantities of heroin during a two-year period that ended with the arrest of her supplier. Maier pled guilty to distribution of heroin and possession of heroin with intent to distribute. At her request, sentencing was delayed three months to permit her to enter a residential drug treatment program. Subsequently, sentencing was further postponed for more than a year to allow her the opportunity to pursue additional rehabilitative programs. This included a methadone maintenance program at St. Luke’s-Roosevelt Hospital in New York City, a three-week, in patient detoxification program in Newark, and treatment by a psychoanalyst specializing in addiction disorders. At sentencing, Judge Robert W. Sweet, of the Southern District of New York, initially determined that the applicable guideline range for Maier was 51-63 months. However, taking note of his departure authority as well as the statutory command that the sentencing judge “shall consider,” among other things, “the history and characteristics of the defendant” and the need for the sentence imposed to provide the defendant with needed medical care in the most effective manner, 18 U.S.C. § 3553(a)(2)(D), the judge departed downward from the applicable guideline range and imposed a sentence of three years probation conditioned upon Maier participating in a community drug treatment program adding that revocation of probation would be mandatory for possession of a controlled substance.

On appeal, the Second Circuit discussed at length the extent to which a drug addict’s efforts at rehabilitation could permit a downward departure from the applicable sentencing guideline range, noting that one of the arguments espoused by the government against awarding such a departure rested in large part on the view that “rehabilitation is no longer a direct goal of sentencing.” The Maier court disagreed, noting only that the Sentencing Reform Act of 1984 stands for the significantly different proposition that rehabilitation is not an appropriate ground for imprisonment:

[The] Sentencing Commission shall ensure that the guidelines reflect the inappropriateness of imposing a sentence to a term of imprisonment for the purpose of rehabilitating the defendant or providing the defendant with needed educational or vocational training, medical care or other correctional treatment. (28 U.S.C. § 994(k)).

The Sentencing Reform Act rejects imprisonment as a means of promoting rehabilitation. Congress wanted to make sure that no defendant was locked up in order to put him in a place where it was hoped that rehabilitation would occur. Incarceration would have to be justified by some traditional penological purposes of incapacitation, general deterrence, specific deterrence, and retribution. But Congress expressed no hostility to rehabilitation as an objective of sentencing and required sentencing judges to consider, among other things, “providing the defendant with needed educational or vocational training, medical care or other correctional treatment in the most effective manner.”

Since rehabilitation may not be a basis for incarceration but must be considered as a basis for a sentence, Congress must have anticipated that sentencing judges could use their authority, in appropriate cases, to place a defendant on probation in order to enable him to obtain “needed … medical care or other correctional treatment in the most effective manner.” (18 U.S.C. § 3553(a)(2)(D).)

In United States v. Workman, 80 F.3d 668 (2d Cir.1995), defendant Jamison was granted a two-level downward departure that would take into account his rehabilitation. Upon finishing service of a 152-day sentence in Michigan for another offense in the fall of 1990, Jamison left a gang in which he was a member and joined the U.S. Army. He rehabilitated himself and completed his military service honorably. Moreover, the rehabilitation was not undertaken in the face of impending federal prosecution for the crimes at issue in the appeal. It was an independent and quite impressive effort. Although the government correctly argued that military service itself was not a ground for downward departure and the Second Circuit agreed, it nonetheless found that military service as a sign of rehabilitation would warrant a post-offense rehabilitation downward departure.

In United States v. Core, 125 F.3d 74 (2d Cir.1997), the defendant was resentenced on an unchallenged drug conviction after he had successfully challenged a related firearms conviction. He sought a downward departure for postconviction rehabilitation during incarceration on the initial sentence. He proffered evidence of his rehabilitation in prison. The district court declined to depart, not because it found departure unwarranted on the facts but because it believed departure was forbidden under the circumstances. In reversing, the court of appeals found nothing in the pertinent statutes or the sentencing guidelines that prevented a sentencing judge from considering postconviction rehabilitation in prison as a basis for departure if resentencing became necessary. Accordingly, it remanded for resentencing so that the district court could consider whether the facts of this case warranted a downward departure.

In Core, as in other cases, the government contended that in formulating the guidelines, the commission adequately considered a defendant’s postconviction rehabilitation. To demonstrate this “adequate consideration,” the government relied principally on U.S.S.G. § 3E1.1(a), which permits a two-level reduction “if the defendant clearly demonstrates acceptance of responsibility for his offense.” In rejecting a similar argument in Maier, the Second Circuit noted that “to permit 3E1.1 to serve as the Commission’s adequate consideration of all mitigating post-offense conduct … therefore precluding departures regardless of anything constructive that the defendant might do after his arrest, that benefits himself, his family or his community, undermines the statutory standard for departures, 18 U.S.C. § 3553(b), as well as the statutory requirement to consider the ‘characteristics of the defendant’ 18 U.S.C. § 3553(a)(1).” (Maier, 975 F.2d at 948.) The government also argued that because of a 1992 amendment to the commentary to 3E1.1, Maier was no longer controlling. This commentary provides a non- exclusive list of “appropriate considerations” for the sentencing court to use in determining whether a defendant is entitled to a reduction for acceptance of responsibility. (U.S.S.G. § 3E1.1, Application Note 1.) In an amendment effective November 1, 1992, and promulgated after Maier, the commission added to this list as a new consideration, post-offense rehabilitative efforts (e.g., counseling or drug treatment). (U.S.S.G. § 3E1.1, Application Note 1(g).) The government contended that the inclusion of post-offense rehabilitation as a factor relevant to the deduction for acceptance of responsibility provided adequate consideration of such rehabilitation and precluded departure on that basis. Answering this argument, the Core court stated:

We see no indication that the Commission intended its mention of post-offense rehabilitation as one factor affecting acceptance of responsibility to preclude consideration of rehabilitation as a basis for departure. Acceptance of responsibility is easily achieved and is accordingly of relatively low value. Credit for acceptance of responsibility can be earned by any offender who admits the offense, pleads guilty and is found not to have persisted in criminal conduct. See U.S.S.G. § 3E1.1, Application Note 3.

Defendants who accomplish a successful rehabilitation go far beyond what is required to qualify for the deduction under 3E1.1. The successful rehabilitation for a criminal on the other hand is a valuable achievement of the criminal process.

The imbalance between the importance of this successful rehabilitation for the criminal offender and the relatively small significance attached to acceptance of responsibility suggests that the commission did not intend its inclusion of rehabilitation as one factor bearing on acceptance of responsibility to bar departure based on successful rehabilitation. It also suggests that a highly successful rehabilitation is not taken into consideration appropriately (“in kind” and “degree”) by the mention of rehabilitation as a factor affecting (U.S.S.G. § 3E1.1.) In United States v. Williams, 65 F.3d 301 (1995), the Second Circuit took the highly unusual step of granting a downward departure not to reward a defendant’s post-offense rehabilitation, but rather, in order to allow the defendant to enter a Bureau of Prisons drug treatment program to which he had been admitted. The Second Circuit approved the district court’s use of its departure power to facilitate–as opposed to rewarding–rehabilitation for the following reasons:

1. The court noted that 18 U.S.C. § 3553(a)(2)(D) mandates a sentencing court to take account of the defendant’s need for “medical care or treatment” in the most effective manner.

2. The court was mindful of the uncertain effect that prison life might have had on Williams’s attitude and how it might thwart any post-prison opportunities for rehabilitation, should such opportunities still exist after a significant number of years, considering the vagaries of federal funding.

The Williams court recognized that the sentencing judge did not depart from the guideline sentencing range of 130-162 months simply because Williams had entered a drug treatment program. Rather, it departed because, under the facts of the case, there was effectively no other sentence that would accord with the requirements of 18 U.S.C. § 3553(a)(2)(D):

The district court determined that Williams was an excellent candidate for rehabilitation given his prior history, demeanor, post-arrest resolve, and acceptance into a “special and selective” treatment program based on criteria apprised by experts in the field. However, the only program available to Williams would not take him unless he were within 18 to 36 months of release. To sentence him to even the minimum term of 130 months, the district court reasons, would require Williams to wait some six or seven years to begin treatment. If in the interim … the program was terminated for budgetary or other reasons or Williams’ resolve weakened under the pressures of prison life, the chance of curing him of his addiction and perhaps his criminal ways would vanish.

The court of appeals concluded that the purpose of the sentencing guidelines was to provide a structure for evaluating the fairness and appropriateness of a sentence for individual defendants, not to eliminate the thoughtful imposition of individualized sentences.

Recognizing that the sentence reasonably accounted for Williams’s rehabilitative needs as described by 18 U.S.C. § 3553(a)(2)(D) and that if Williams was cured of his addiction, it might ultimately serve to protect the public from future criminal acts that he might otherwise commit, the court of appeals approved a lengthy supervised release term to allow the district court to sentence Williams to a prison term within his guideline range should he fail to meet the requirements of supervised release. The court of appeals, however, took the unprecedented step of then vacating the sentence and remanding for resentencing so the court could amend its sentence to ensure that, if Williams entered and then abandoned drug treatment, he would be returned to prison.

A downward departure for post-offense rehabilitation has not been limited to child pornography or drug cases. In United States v. Nieman, 929 F.Supp. 254 (S.D.N.Y.1993), the court departed downward from a guideline range of 10-16 months to probation conditioned upon 10 months of home confinement in a case in which the defendant had been convicted of mail fraud and use of a false Social Security number.

Judge Vincent L. Broderick of the Southern District of New York was presented with the question of whether nonnarcotic rehabilitation prospects may be a basis for a downward departure from the guidelines in an appropriate case where “chances of rehabilitation without imprisonment are good but with imprisonment are minimal or non-existent.” Finding that Congress had directed that, in addition to deterrence and prevention of further crime, an objective of sentencing is to provide “the defendant with … correctional treatment in the most effective manner,” 18 U.S.C. § 3553(a)(2)(D), Judge Broderick held that:

Where a regime combining effective punishment for purposes of deterrence and supervision for purposes of prevention can further be combined with rehabilitation efforts involving that supervision, the objective of the statute may be fulfilled; if incarceration would be ineffective for these purposes and counterproductive from the viewpoint of rehabilitation, a departure from the Guidelines is appropriate.

Judge Broderick also noted that nothing in the statutes or case law suggests a restriction of rehabilitation to any one type of regimen or that any single type of problem lends itself to rehabilitative measures:

Members of the defense were his family, community and religious institutions and appropriately tailored community service help to guide a wrongdoer toward useful citizenship.

Home confinement may be rehabilitational as well as punitive if the person involved must modify a lifestyle and become aware of the consequences of committing illegal acts, while at the same time avoiding the sometimes negative atmosphere in places of imprisonment.

Judge Broderick concluded:

The Guideline would, without departure, have called for imprisonment for ten to sixteen months, which would interfere with rather than enhance Nieman’s prospect for rehabilitation. Moreover, the home detention with explicit family and community reinforcement will exert greater general deterrence than Nieman’s isolation from the rest of society.

Akin to post-offense rehabilitation is the concept of a defendant’s extreme remorse. Although the guidelines may discourage the consideration of a defendant’s remorse as a basis for a downward departure in most cases, they do not contain an absolute ban on a district court’s indulging in such a consideration. Hence, the United States Court of Appeals for the Seventh Circuit remanded a case for resentencing because the district court incorrectly believed that it could not base a downward departure on post-offense extraordinary remorse. (U.S. v. Jaroszensko, 92 F.3d 486 (7th Cir.1996).) A final note on a thoughtful decision by Judge Jack B. Weinstein, senior district court judge of the Eastern District of New York. Judge Weinstein, a longtime pioneer in federal sentencing, recently held that in light of the new downward departure for post-offense rehabilitation, sentencing may be postponed in order to allow a defendant further sufficient time to demonstrate rehabilitation prior to the imposition of sentence. (U.S. v. Flowers,— F.Supp. —, 1997 App. LEXIS 17029 (1997).) Analogizing delay in sentencing in order to give a defendant an opportunity to demonstrate post- offense rehabilitation to federal pretrial diversion, Judge Weinstein stated:

With the advent of the Federal Sentencing Guidelines, it has been argued that rehabilitation has a subsidiary role compared to deterrence and just desserts punishment as rationales for sentencing.

This view is mistaken. Rehabilitation is still a fundamental consideration for federal sentencing. Recent cases have underscored the importance of rehabilitation as a factor to be taken into account when rendering a sentence.

So essential is the issue of rehabilitation under my criminal justice system that presentence rehabilitation may be used as a ground for downward departure from the too-rigid Federal Sentencing Guidelines.

Downward departure for post-arrest rehabilitation complements the notion of just retribution, because the rehabilitated offender … has both an assorted responsibility for her actions and taken positive steps towards reintegration into productive society.

Judge Weinstein concluded:

Under the appropriate circumstances, adequate steps should be taken to allow a defendant facing sentencing an opportunity to rehabilitate herself and change her circumstances. Such steps may include in an appropriate circumstance and with adequate controls, granting a request for deferred sentencing, similar to the sort of adjournment granted under structured diversion programs, so that a defendant may restore herself, on her own, to her “greatest potential.” Koon made clear that a federal court’s examination of whether a factor can ever be an appropriate basis for a departure is limited in determining whether the commission has proscribed, as a categorical matter, consideration of the factor. If the answer to the question is “no”–as it will be most of the time–the sentencing court must determine whether the factor, as occurring in the particular circumstances, takes the case outside the heartland of the guideline.

Race, sex, national origin, creed, religion, or socioeconomic status; lack of youthful guidance or similar circumstances indicating a disadvantaged upbringing; personal financial difficulties or economic pressure on a trade or business may never provide an appropriate basis for a departure. All other factors, however, may potentially provide a basis for departure under appropriate circumstances.

Let judges be judges. Creative lawyering will help.

Note: The author gratefully acknowledges the assistance of his associate, Wayne M. Anderson, in providing valuable research for this article.[/vc_column_text][/vc_column][/vc_row]