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Federal judges within the 2nd U.S. Circuit Court of Appeals are apparently relishing their newfound ability to more easily depart from the rigidity of the U.S. Sentencing Guidelines. Since the U.S. Supreme Court rulings in U.S. v. Booker and U.S. v. Fanfan rendered the sentencing guidelines merely advisory last January, less than half (48.8 percent) of all the sentences handed down in the 2nd Circuit have fallen within guideline ranges, according to the latest data provided by the U.S. Sentencing Commission. The 2nd Circuit encompasses Connecticut, Vermont and the Southern District of New York. The information is current up through Aug. 3. That percentage of within-range sentencings is the lowest of any of the federal system’s 12 circuits — and a sharp decrease from the 2nd Circuit’s previous results. In the 2003 fiscal year, its sentencing judges adhered to guideline ranges in nearly two out of every three sentences (63 percent). Sentencing judges from the 2nd Circuit are now imposing sentences below guideline recommendations in one of every four cases, according to the commission’s data. That’s up from one out of every five or six cases in the preceding three years. The 25 percent of the judge-initiated, below-range sentences is the highest rate of all the circuits and well above the national average of 13 percent. As for adhering to the guideline ranges post- Booker, the 5th Circuit has the highest rate at 71.5 percent. The national average is 61.7 percent. ONGOING DEBATE The president of the Connecticut Criminal Defense Lawyers Association, Bridgeport, Conn., solo Michael A. Fitzpatrick, said the lower number of within-range sentences reflected in the commission’s statistics is not surprising. “Over the last several years, I have often heard federal judges say from the bench that they would have imposed a lower sentence but for the guidelines,” he said. “Our departure rate is one of the highest in the country,” said U.S. Attorney Kevin J. O’Connor. “The departure figure was higher than we would have liked it to be both pre- and post- Booker. We’ve always felt we’d like to see that percentage decrease.” Sentencing Commission figures show that federal prosecutors in the 2nd Circuit have agreed to departures in 24.5 percent of post- Booker sentencings. Most government-sponsored departures are for defendants who provided substantial assistance to the government; however, the figure also includes statutorily authorized departures for other reasons. The government-sponsored departure rate of 24.5 percent is up slightly from the pre- Booker rate of 20.3 percent in the 2003 fiscal year. Federal prosecutors in the 9th Circuit — which has a comparable within-guidelines range of 49 percent, but a judge-initiated departure rate of only 12.2 percent post- Booker — sponsored departures in 38.4 percent of sentences. The variation in sentences among the circuits was a debate that went on before Booker, O’Connor noted, when the guidelines were in place to ensure uniformity in sentencing. “It’s easy to make generalizations about departure rates, but you need to look at all the factors that go into sentencing on a case-by-case basis, so that you’re not comparing apples and oranges,” O’Connor said. Still, many Connecticut federal defense attorneys say they have changed their sentencing arguments as a result of Booker. Assistant Federal Public Defender Paul F. Thomas said he stresses to the court that a below-range sentence no longer needs to fit within the confines of statutorily defined parameters. Thomas described one sentencing he had since Booker in which the new advisory status of the guidelines made a stark difference. It was a theft/fraud case, and his client faced a guidelines sentence of 21 to 27 months in prison. “None of the circumstances rose individually to the level of supporting a departure, but the judge thought two years was too much,” he said. “In a pre- Booker world, the court would have sentenced my client to a sentence at the low end of the range.” The judge in this post- Booker case, however, handed down a sentence of just a year and a day, he noted. Although Thomas observed that Booker “adds another significant layer to our arguments for a lesser sentence,” any bid for a sentencing departure still be “compelling and well founded,” he said. Fairfield, Conn., attorney Auden Grogins echoed Thomas’s assessment. “I still, of course, use guidelines departures in my sentencing arguments, but other mitigating factors definitely play a part now, too. Courts now have a fuller picture,” she said.

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