Sunday, July 31, 2016

The Incredible Shrinking Career-Offender Guideline

By the time you read this blog post, yet another state offense will be declared NOT a crime of violence for guideline, ACCA, or other predicate purposes.

Or not, but the chances are pretty darned good these days, as evidenced by recent opinions in two circuits holding that robbery is not a violent felony.

And since today marks day one of the new career-offender guideline, it seems like a good time to review some career-offender facts.

In 2015, 99.8% of career offenders were sentenced to imprisonment; the average career-offender sentence was 145 months; and 3/4 of career offenders were sentenced for drug trafficking (in raw numbers, that's over 1,500 drug traffickers sentenced as career offenders).

This last figure---and the fact that drug-trafficking-only career offenders are less likely to recidivate than other career offenders---has inspired the Sentencing Commission to recommend that Congress amend the career-offender directive so that it no longer includes those defendants "who currently qualify as career-offenders based solely on drug-trafficking offenses."

What's that? You've got one of those defendants scheduled for sentencing today, and you can't wait for the amendment? Use the findings in the recommendation to argue for a variance.

As for the rest of us, as Kirk Redmond has been telling everyone and anyone who will listen for the past year, when it comes to predicate offenses:

Question Everything.

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