Federal Sentencing Alert

By Wayne C. Fricke; July 2000

     Recently, the United States Sentencing Guidelines Commission submitted for congressional approval Amendment 13 to the guidelines which would add a policy statement governing “Aberrant Behavior” departures for defendants sentenced for federal crimes.

     The proposed amendment would become effective November 1, 2000.  The policy statement would read as follows:

Ҥ5K2.20 Aberrant Behavior

     A sentence below the applicable guideline range may be warranted in an extraordinary case if the defendant’s criminal conduct constituted aberrant behavior.  However, the court may not depart below the guidelines range on this basis if (1) the offense involved serious bodily injury or death; (2) the defendant discharged a firearm or otherwise used a firearm or a dangerous weapon; (3) the instant offense of conviction is a serious drug trafficking offense; (4) the defendant has more than one criminal history point, as determined under Chapter Four (Criminal History and Criminal Livelihood); or (5) the defendant has a prior federal, or state, felony conviction, regardless of whether the conviction is countable under Chapter Four.

Commentary

Application Notes:

     1.  For purposes of this policy statement—

‘Aberrant behavior’ means a single criminal occurrence or single criminal transaction that (A) was committed without significant planning; (B) was of limited duration; and (C) represents a marked deviation by the defendant from an otherwise law-abiding life.

     ‘Dangerous weapon,’ ‘firearm,’ ‘otherwise used,’ and ‘serious bodily injury’ have the meaning given those terms in the Commentary to §1B1.1 (Application Instructions).

     ‘Serious drug trafficking offense’ means any controlled substance offense under title 21, United States Code, other than simple possession under 21 U.S.C. § 844, that because the defendant does not meet the criteria under  §5C1.2 (Limitation on Applicability of Statutory Mandatory Minimum Sentences in certain Cases), results in the imposition of a mandatory minimum term of imprisonment upon the defendant.

     2.  In determining whether the court should depart on the basis of aberrant behavior, the court may consider the defendant’s (A) mental and emotional conditions; (B) employment record; (C) record of prior good works; (D) motivation for committing the offense; and (E) efforts to mitigate the effects of the offense.”

     The reason for the amendment is to settle a conflict between the circuits regarding what constitutes a single act of aberrant behavior.  Currently, there is a dispute in the circuits as to whether the aberrant behavior departure applies to serious offenses and whether it can apply to cases involving planning.  The majority of the circuits have held to this date that it could only be used as a basis for departures in spontaneous crimes, whereas a minority of circuits, including the Ninth Circuit, have held that a single act is not necessarily limited to spontaneous crimes, but could apply in a situation where there is more planning, so long as the departure was short lived.

     If this amendment goes into effect, the change will be closer to the Ninth Circuit law and be applicable in situations where there is more than a “single act.”  However, it would no longer  apply to serious offenses, such as murder, or offenses involving a firearm as a limitation currently not existing in the Ninth Circuit.

     Thus, if this proposed amendment goes into effect in November of this year, departures will not be available for a number of offenses based on “Aberrant Behavior.” 

     Therefore, in considering plea resolutions in relation to moving for aberrant behavior departures in the coming months, one needs to be aware of this proposed change.