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A federal judge was right to find that a criminal’s repeated gun offenses made it more likely he would commit crimes again and therefore deserved a tougher sentence, even though his prior offenses had already moved him into a higher sentencing category, a federal appeals court has ruled. Citing defendant Donovan Gayle’s “dogged criminal persistence,” the 2nd U.S. Circuit Court of Appeals found that the chance of recidivism was proper grounds for enhancing his criminal history category under the federal sentencing guidelines beyond the level set by his prior convictions. It upheld the sentence imposed by Eastern District Judge Frederic Block in United States v. Gayle, 04-0762. The appeals court agreed with the lower court in finding that Gayle was the beneficiary of “prior lenient treatment” for his previous offenses, another factor that justified a longer prison term. Gayle was arrested in 2003 in New York City for possession of a pistol. Police later learned that he had four prior felony convictions and had been previously deported from the United States. Following his guilty plea to illegal possession of a firearm while being a convicted felon and illegally re-entering the United States, the government moved for an upward departure. It pointed to Gayle’s heightened likelihood of recidivism and the leniency of his prior punishment. Including an arrest as a youthful offender, Gayle had a total of five previous convictions for firearms possession. He never paid taxes and had numerous other arrests that did not result in charges. He was classified by the probation department as a criminal history Category IV offender, but the department did not include the youthful-offender arrest, which should have set his criminal history category at the next highest level. Judge Block accepted the government’s argument and moved him to Category VI. On the appeal, Judge Dennis Jacobs said the probation department should have classified Gayle as a Category V. In this case, that would amount to a difference of five months in his sentence. “Gayle argues that the finding on which the departure rests — that the likelihood of recidivism is greater when prior convictions are for the same offense — is adequately accounted for by his otherwise applicable criminal history category,” Judge Jacobs said. “According to Gayle, the likelihood of recidivism does not depend on whether the defendant lacks the versatility and the imagination to branch out.” The government, he said, argued that 2nd Circuit case law allows a finding of “increased likelihood of recidivism based on repeated commission of similar, as opposed to various, criminal offenses.” Judge Jacobs said the court agreed with Gayle “up to a point,” because his criminal history category alone accounts for his prior convictions, “which serves as a proxy for his likelihood of recidivism.” “There is no record to compare the risk of recidivism as between repeat offenders who repeatedly commit the same offense and those who commit a variety of offenses,” he said. “We therefore assume, as Gayle urges, that in general both kinds of offenders are in the ‘heartland’ of the guidelines.” Other circuits, he said, have concluded that a defendant who commits the same crime more than once deserves greater sanctions than one who has not. But Judge Jacobs said that conclusion, while offering “intuitive appeal,” was too broad. “True, a defendant who commits the same offense has manifestly not learned his lesson; but it does not serve the goals of sentencing if the lesson absorbed is to try some other kind of offense,” he said. “We conclude that recidivism is better gauged by considering the defendant’s entire record to determine whether it involves factors” in the words of guidelines “of a kind, or to a degree, not adequately taken into consideration” by the U.S. Sentencing Commission. As for Gayle, Judge Jacobs said, “we can easily conclude that factors bearing on recidivism are outside the guidelines heartland reflected by his otherwise applicable criminal history category.” DELAY UNTIL ‘BLAKELY’ While the panel upheld Judge Block’s departure, it noted that its mandate would be delayed until the U.S. Supreme Court decides U.S. v. Booker and U.S. v. Fanfan. Those cases present the issue of whether the federal sentencing guidelines suffer from the same infirmities that caused the high court earlier this year to strike down a state sentencing scheme in Blakely v. Washington. The Blakely decision said it was unconstitutional for judges, and not juries, to find facts that increase a defendant’s sentence above a specified range. Judges Sonia Sotomayor and Peter W. Hall joined in the opinion. David A. Lewis of the Legal Aid Society’s Federal Defender Division represented Gayle. Assistant U.S. Attorneys Lee J. Freedman and Susan Corkery represented the government.

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