Nacchio Sentencing Series--Nottingham's Discretion

This entry is the fifth in the Nacchio Sentencing Series and answers the following question:

5. To what extent is Nottingham bound by the Federal Sentencing Guidelines and under what circumstances can he depart from the Guidelines?

According to 18 USCS § 3553(a), Judge Nottingham must consider the following factors in imposing Nacchio’s sentence: (1) the nature and circumstances of the offense and the history and characteristics of the defendant; (2) the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense; (3) production of an adequate deterrence to criminal conduct; and (4) the protection of the public from further crimes of the defendant

The sentencing statute (18 USCS § 3553(b)(1) does mandate that the sentence come within the range determined by the federal sentencing guidelines. This statute does permit a court to depart from a guideline-specified sentence only when it finds "an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described."

However, in United States v. Booker , 543 US 220 (2005), the Supreme Court held that18 USCS § 3553(b)(1), which makes the Federal Sentencing Guidelines mandatory, is incompatible with the requirements of the Sixth Amendment and therefore must be severed and excised from the Sentencing Reform Act of 1984. The basis for this ruling was the court’s concern that all facts in which punishment was to be determined should be found by the jury “beyond a reasonable doubt.” Sentencing judges had been applying facts by a “preponderance of evidence” standard by the sentencing judge related to issues germane to sentencing, but not presented to the jury.

The Supreme Court also held that henceforth, the guidelines are not mandatory but should be treated as advisory. The Supreme Court’s decision goes on to state that sentencing judges are still required after Booker to consult the guidelines and to offer a reasoned basis for refusing to apply a sentence within the range determined by the guidelines since unreasonableness of the sentence will be reviewed by the appeals court.

Certainly, since the federal sentencing guidelines are now merely advisory and not mandatory, Nottingham will have more discretion to increase or decrease the sentence outside the range specified by the guidelines, even though ultimately Nottingham’s sentence could be reviewed on appeal for “unreasonableness.” Consequently, Nottingham will explain in some detail his reasons for departing from the range specified by the guidelines. It will be very interesting indeed to see if Nottingham does give Nacchio a sentence higher than 87 months (7 years and three months) or lower than 70 months (2 months shy of 6 years) and the applicable aggravating or mitigating circumstances for departing from the guidelines.  Whatever, the final sentence, Nacchio must serve 85% of the prison term.