U.S. v. Smith

7 Citing cases

  1. U.S. v. Rutherford

    323 F. Supp. 2d 911 (E.D. Wis. 2004)   Cited 4 times
    Recognizing that "drug addiction and crime go hand-in-hand"

    U.S.S.G. § 3E1.1 cmt. n. 1(g).But cf. United States v. Smith, 311 F. Supp.2d 801, 804 (E.D. Wis. 2004) (expressing doubt that under facts of case it could be said Commission adequately considered defendant's post-offense rehabilitation); J. Gordon Seymour, Downward Departures from the Federal Sentencing Guidelines Based on the Defendant's Drug Rehabilitative Efforts, 59 U. Chi. L.Rev. 837, 845 (1992) (stating "it is difficult to see what the defendant's drug rehabilitation could do to further" the goals of § 3E1.1). Courts considering whether to grant departures on this basis have often focused on drug and alcohol rehabilitation, see, e.g., United States v. Maier, 975 F.2d 944 (2d Cir. 1992);United States v. Logan, No. 02-CR-440, 2004 U.S. Dist. LEXIS 1201 (N.D. III. Feb 2, 2004); United States v. Lange, 241 F. Supp.2d 907 (E.D. Wis), and for good reason — drug addiction and crime go hand-in-hand David I. Shapiro, Sentencing the Reformed Addict: Departure Under the Federal Sentencing Guidelines and the Problem of Drug Rehabilitation, 91 Colum. L.Rev. 2051, 2071 (Dec. 1991) ("Although t

  2. U.S. v. Milne

    384 F. Supp. 2d 1309 (E.D. Wis. 2005)   Cited 5 times
    Holding that post- Booker, "courts may grant additional consideration to defendants who demonstrate acceptance beyond that necessary to obtain a two or three level reduction under § 3E1.1" because "such conduct bears directly on their character, § 3553, and on how severe a sentence is necessary to provide deterrence and punishment, § 3553"

    U.S.S.G. § 3E1.1 cmt. n. 1. In most cases, however, courts grant the reduction based on a single factor: "Entry of a plea of guilty prior to the commencement of trial combined with truthfully admitting the conduct comprising the offense of conviction, and truthfully admitting or not falsely denying any additional relevant conduct," id. cmt. n. 3, and do not consider additional conduct demonstrating acceptance, remorse or atonement, see United States v. Smith, 311 F. Supp. 2d 801, 804 (E.D. Wis. 2004). In the mandatory guideline era, courts generally held that an extraordinary demonstration of acceptance could justify a departure, id. (citing United States v. Gee, 226 F.3d 885, 900-02 (7th Cir. 2000); United States v. Carter, 122 F.3d 469, 475-76 (7th Cir. 1997)); see also United States v. Jones, 233 F. Supp. 2d 1067, 1070 (E.D. Wis. 2003) (collecting cases), but such cases were quite rare, see, e.g., United States v. Bean, 18 F.3d 1367, 1369 (7th Cir. 1994).

  3. U.S. v. Smith

    Case No. 03-CR-92 (E.D. Wis. Jun. 26, 2008)   Cited 1 times
    Holding motion based on crack amendment does not permit revisiting of other sentencing determinations

    I then departed downward by 2 levels. See United States v. Smith, 311 F. Supp. 2d 801 (E.D. Wis. 2004). The Sentencing Commission has since reduced base offense levels in crack cocaine cases by 2 levels and made the changes retroactive.

  4. U.S. v. Vasquez

    Case No. 98-CR-104 (E.D. Wis. Nov. 3, 2006)   Cited 1 times

    This is all to defendant's credit, but I cannot conclude that it overcomes the negatives in his background. Defendant states that such post-offense rehabilitation is a valid basis for a downward departure, citing United States v. Smith, 311 F. Supp. 2d 801, 810 (E.D. Wis. 2004). However, unlike in Smith, the conduct defendant cites occurred post-sentencing, not post-offense. The guidelines state that post-sentencing rehabilitation is not a basis for departure. U.S.S.G. § 5K2.19. While I am not bound by that provision, I do consider it.

  5. U.S. v. Bailey

    369 F. Supp. 2d 1090 (D. Neb. 2005)   Cited 4 times
    Granting traditional departure in child pornography case and imposing probationary sentence; stating that departure from advisory Sentencing Guidelines may be warranted when child has serious illness or condition, defendant's presence is critical to child's care and defendant's presence cannot reasonably be duplicated by using other providers

    With a 2-point role reduction, and 3 points for acceptance of responsibility, Bailey's total offense level stood at 16. The government's concession was legally well-founded.See, e.g., United States v. Borer, 394 F.3d 569, 573 n. 3 (8th Cir. 2005) (Guideline amendment requiring government's motion for an additional one point for acceptance of responsibility could not be applied retroactively under the Ex Post Facto Clause of the Constitution); United States v. Smith, 311 F. Supp. 2d 801, 806 (E.D. Wis. 2004) (application of PROTECT Act after an offense occurs, that prohibits an otherwise available downward departure, violates the Ex Post Facto Clause of the Constitution). * Criminal History: Bailey had two criminal history points and thus stood in Criminal History Category II. (PSR ¶ 48.

  6. U.S. v. Smith

    359 F. Supp. 2d 771 (E.D. Wis. 2005)   Cited 54 times
    Adopting a 20:1 ratio

    I concluded that it would be appropriate to impose a non-guideline sentence to allow small reductions for these factors. Cf. United States v. Manasrah, 347 F. Supp. 2d 634, 637 (E.D. Wis. 2004) (granting two level departure based on defendant's family circumstances); United States v. Smith, 311 F. Supp. 2d 801, 810 (E.D. Wis. 2004) (granting two level departure for post-offense rehabilitation). Considering all of the § 3553(a) factors, I concluded that a sentence of 18 months was sufficient, but not greater than necessary to serve the purposes of sentencing. III. CONCLUSION

  7. U.S. v. Eisinger

    321 F. Supp. 2d 997 (E.D. Wis. 2004)   Cited 2 times

    Thus, courts have generally concluded that a departure is permitted on this basis only if the defendant's efforts are exceptional enough to be considered atypical of the cases in which the acceptance-of-responsibility reduction is usually granted. See, e.g., United States v. Chapman, 356 F.3d 843, 848-49 (8th Cir. 2004); United States v. Smith, 311 F. Supp.2d 801, 804 (E.D. Wis. 2004); United States v. Jones, 233 F. Supp.2d 1067, 1070-71 (E.D. Wis. 2002) (collecting cases). Courts considering such departures have often focused on drug and alcohol treatment.