Unprecedented

By Wayne Fricke; June 1999

     A year ago we wrote about a case involving the District Court’s departure from the sentencing guideline range based on Koon v. United States, 518 U.S. 81, 116 S. Ct. 2035, 135 L.Ed.2d 392 (1996).  The case involved a charge of assault with intent to kill.  Our client received a five year mandatory sentence for a gun charge and a one day sentence for the substantive  crime.  This departure to one day was from a guideline range of 87 to 108 months.  The government appealed the departure.

     On May 6, 1999, the Ninth Circuit decided the case of United States of America v. Brenda Lee Working, 98-30121, upholding Judge Tanner’s decision to depart 21 levels from the applicable guideline range.  The Ninth Circuit agreed with the District Court that defendant’s behavior could be classified as aborrent behavior and the extent of the departure was not clear error. 

     The significance of this case is the level of departure.  Prior to this time the published cases addressing departures, which were sustained on appeal, involved departures of four or five levels.  Until this date, there had never been a departure upheld where the District Court reduced the sentence by 21 offense levels.  Indeed, in the Ninth Circuit the two greatest downward departures previously noted were of 15 levels and 19 levels, both of which were reversed on appeal.  See United States v. Green, 105 F.3d 1321, (9^th Cir. 1997), and United States v. Colace, 126 F.3d 1229 (9^th Cir. 1997).  Pursuant to Green and Colace, the government argued in part that the District Court’s departure to this degree in this case was patently unreasonable and should be reversed.  The Ninth Circuit distinguished the above two cases and found  that in the context of the facts of this case, when applying the clear error standard and giving the District Court “the deference it is due,” it could not find that the lower court abused its discretion in deciding to depart 21 levels.  Thus, the one day sentence for the substantive crime of assault with intent to kill was upheld. 

     This case now gives courts a greater confidence that decisions to substantially depart will not be reversed on appeal.  For the first time in the country there is now a published case that allows departure of a great magnitude and therefore prevents the government from arguing that any departure of over four or five levels is patently unreasonable and unprecedented.

     The key, of course, is to create the record.  Whether through testimony, affidavits, letters, psychological diagnoses, or otherwise, the record must provide the District Court with a basis to depart and insure that the record is such that appellate courts will give the deference due to the District Court under the “clear error” standard and affirm the sentence.