Monday, July 10, 2006

Sentence below Guidelines Found Reasonable

United States v. Hewlett, No. 05-2532 (July 10, 2006): Mr. Hewlett’s guidelines called for a life sentence. The statutory minimum was 20 years; the maximum, life. The government recommended 30 years in prison; the district court imposed a sentence of 20 years. The government cross appealed on the ground that 20 years was unreasonable.

The panel gave short shrift to this argument. Since the government had asked for 30 years, the Court did not see 20 years as unreasonable. The sentencing judge’s references to Mr. Hewlett’s "redeeming qualities," his "family history," and his age were sufficient explanation of the variance.

In a concurring opinion, Judge Easterbrook noted that the government did not file an information under 21 U.S.C. sec. 851 regarding Mr. Hewlett’s prior convictions, which would have mandated a life sentence. Judge Easterbrook also noted that by statute, 28 U.S.C. sec. 994(h), the district judge should have imposed a sentence at or near life, since Hewlett was a career offender and the current conviction was for a drug offense. A sentence of 20 years did not satisfy this directive. But since the government never made that argument, it had forfeited the point. This discussion emphasizes that Booker does not change the message of 28 U.S.C. sec. 994(h).