"Reasonably predictable": the reluctance to embrace judicial discretion for substantial assistance departures.

• Author: Geronimo, I. India

INTRODUCTION

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.

1. FEDERAL SENTENCING AND BOOKER

   1. The Sentencing Guidelines and Section 5K1.1

      The Guidelines came into effect in 1989 and provided mandatory sentencing guidelines for federal offenders. (21) The Sentencing Commission Report of 1991, which described the goals of the Guidelines, identified six objectives for mandatory sentences: "assuring 'just' [] punishment, more effective deterrence, more effective incapacitation of the serious offender, elimination of sentence disparities, stronger inducements for knowledgeable offenders to cooperate in the investigation of others, and judicial economies resulting from increased pressure on defendants to plead guilty." (22)

      Section 5K1.1 of the Guidelines provided for a departure from the mandatory sentence where the defendant provided substantial assistance to the prosecution. (23) Defendants had to actually provide substantial assistance to the government in order to benefit from this departure. (24) In other words, the cooperation was required to result in increased prosecution and further the prosecutorial enterprise before the defendant would receive the benefit of a reduced sentence. The provision of a sentencing departure is initiated by a government motion requesting a sentence reduction due to the defendant's cooperation with the prosecution. (25) In some courts, the government provides the judge with a suggested sentencing range based on the extent of the defendant's cooperation, timeliness of cooperation, and other related factors. (26) The sentence reduction for substantial assistance can provide a multiple-level departure from the Guidelines. (27) As a result, the section 5K1.1 provision can significantly reduce the defendant's sentence. (28) Many critics of the section 5K1.1 provision argue that it provides the prosecutor with too much discretion. (29) The judge, however, has the discretion to grant or deny the government's section 5K1.1 motion. (30) Thus, the section 5K1.1 departure requires agreement between the prosecutor and the judge. (31)

      The original version of the section 5K1.1 provision granted substantial assistance departures where defendants made a good faith effort to cooperate with the prosecution. (32) In 1989, however, the Sentencing Commission amended the section 5K1.1 provision, requiring that substantial assistance be actually provided. (33) The Sentencing Commission claimed that this amendment was a clarification of the original provision. (34)

      This change is significant because it required actual provision of substantial assistance and did not consider a good faith effort to provide substantial assistance for a sentencing departure. (35) The Sentencing Commission stated that the original language suggested that the attempt to cooperate with the government would warrant a departure. (36) The original language, however, required a "good faith effort" to provide substantial assistance, not a mere desire to do so. (37) Thus, this "clarification" between a good faith effort to provide and actual provision of substantial assistance, in reality, seems to have been a substantial change to the Guidelines, and not a mere "clarification." Furthermore, as a result of this change, prosecutors focused on the actual fruits of the information that defendants provided, rather than the offender characteristics that substantial assistance demonstrates. (38)

   2. Summary of United States v. Booker

      In United States v. Booker, the Supreme Court held that the Guidelines were only advisory. (39) The Court issued both a doctrinal opinion, written by Justice Stevens, and a remedial opinion, written by Justice Breyer. (40) In its remedial opinion, the Supreme Court required that judges consult the Guidelines, even though they are not bound by them. (41) The Booker Court struck down [section] 3553(b) of the federal sentencing statute, which required courts to impose sentences within the Guidelines. (42)

      The facts of the case follow. Based on the results of the jury trial, Respondent Booker received a sentence between 210 and 262 months in prison under the Guidelines. (43) Despite this, the district court judge held a post-sentencing hearing and determined, by a preponderance of the evidence, that Booker could be held accountable for an additional 566 grams of cocaine for sentencing purposes. (44) This finding increased Booker's sentence to one between 360 months and life imprisonment. (45)

      In addition, Respondent Fanfan, the second defendant to the case, was convicted of a crime that placed his sentence at seventy-eight months under the Guidelines. (46) During a sentencing hearing following the trial, the judge found additional facts that raised Fanfan's sentence to a sentence between 188 and 235 months. (47)

      In its doctrinal opinion, the Booker Court addressed the constitutionality of the Guidelines. (48) Under the Sixth Amendment, defendants have a right to a fair jury trial. (49) The common law incorporates the right to be proven guilty beyond a reasonable doubt into the nexus of Sixth Amendment rights. (50) Under the mandatory system, both Booker's and Fanfan's Sixth Amendment rights were violated because the Guidelines allowed judicial fact-finding under a "preponderance of the evidence" standard. (51) The Booker Court noted that if the Guidelines were advisory, this problem would not exist. (52) Under an advisory sentencing system, the judge can assess the factors she finds most relevant without a finding from the jury, distinguishing it from the mandatory fact-finding under the mandatory sentencing scheme. (53) The Court noted the previous legislative scheme allowed judges to make certain factual findings and grant sentence enhancements as an aggravating factor interfering with the offenders' Sixth Amendment rights. (54) As a result of this practice, the judge, not the jury, became the main factfinder whose decision impacted the defendant. (55)

      The doctrinal opinion concluded that under a mandatory sentencing regime, fact-finding that increased the sentence of the defendant must be brought before the jury. (56) The Booker Court held that despite the efficiency issues that may arise, any judicial fact-finding...