Academic journal article Fordham Urban Law Journal

"Reasonably Predictable": The Reluctance to Embrace Judicial Discretion for Substantial Assistance Departures

Academic journal article Fordham Urban Law Journal

"Reasonably Predictable": The Reluctance to Embrace Judicial Discretion for Substantial Assistance Departures

Article excerpt


In United States v. Booker, the Supreme Court held that the Federal Sentencing Guidelines ("the Guidelines") are no longer mandatory. (1) Even so, in its remedial opinion, the Booker Court instructed sentencing courts to continue to consult the Guidelines (2) and instructed appellate judges to consider the reasonableness of the lower court's sentences. (3) As a result of this recent decision, there has been a flurry of speculation within academia and the blogosphere about the extent of federal judicial discretion in determining sentences. (4)

Because Booker created an advisory sentencing regime, (5) there is much guesswork regarding how much influence the Guidelines should retain. (6) While judges must consult the Guidelines and use them as a basis for calculating sentences, (7) it is unclear to what extent they should be able to diverge from the Guidelines and impose sentences that are lesser or higher than the Guidelines sentence. (8)

Within the realm of expanded judicial discretion are sentence reductions due to a defendant's cooperation with the government, namely, where there are no statutory mandatory minimums. (9) Cooperation is one of several bases for sentencing departures. Prior to Booker, judges had discretion to depart from the Guidelines where the government made a section 5K1.1 motion after receiving substantial assistance, or cooperation, from a defendant. (10) PostBooker cooperation departures are particularly fascinating because they clearly illustrate of the manner in which Booker may expand a judge's power to "do what's right," (11) while simultaneously limiting a prosecutor's discretion by allowing the judge to depart from the Guidelines without a motion from the government. (12) As this Comment illustrates, however, most appellate courts are reluctant to affirm sentences where the district court judge has exercised this discretion in the context of cooperation departures. (13) The majority of courts have either failed to analyze how Booker impacts the mechanics of section 5K1.1 cooperation departures, (14) or failed to address the question. (15) Appellate courts have been particularly reluctant to affirm sentences where the sentence is lower than that which is recommended under the Guidelines. (16) Nonetheless, several courts have used 18 U.S.C. [section] 3553(a), the statute describing offender characteristics that judges should consider at sentencing, as a mechanism for granting sentences below the Guidelines to account for an offender's cooperation. (17)

This Comment focuses on the nuances of post-Booker cooperation departures and sentence variances. Section 5Kl.1 of the Guidelines governs the provision of cooperation, or substantial assistance, departures. (18) This provision was the primary method for defendants to receive cooperation departures prior to Booker. (19) The section 5K1.1 provision allowed substantial assistance departures where the prosecution actually benefited from the defendant's cooperation. (20) This Comment discusses how this aspect of the substantial assistance provision has been implicated by expanded judicial discretion.

First, Part I.A of this Comment will provide an overview of the original goals of the Sentencing Commission and the section 5K1.1 substantial assistance provision. Part I.B of the Comment summarizes United States v. Booker and its impact on cooperation departures. Finally, post-Booker application of section 5K1.1 and 18 U.S.C. [section] 3553(a) to substantial assistance is explored in Part II and is followed by a recommendation in Part III. This Comment argues that judges should not only consider a defendant's cooperation with the government at sentencing, but they should also consider those efforts where the cooperation does not amount to substantial assistance.


A. The Sentencing Guidelines and Section 5K1.1

The Guidelines came into effect in 1989 and provided mandatory sentencing guidelines for federal offenders. …

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