Career Offender for Non-Violent Offenses? U.S. v. Pineda, Sixth Circuit Court of Appeals, Filed November 13, 2018
Should a defendant be treated as a career offender for non-violent offenses?
In U.S. v. Pineda, the defendant challenged her sentence as substantively unreasonable, although the district court granted a downward departure of 20 months below the applicable guidelines range. In part, Pineda challenged her sentence on grounds that the predicate offenses made her a career offender for non-violent offenses, and “the career-offender classification overrepresented the seriousness of her criminal history.”
Although the Sentencing Commission has recommended that the career offender guideline be amended to require a violent offense as either a predicate offense or the current offense, that change has not been made. Although district courts have the discretion to disagree with the career offender guideline and to grant a downward departure from an otherwise harsh career offender-driven guideline range, it is not reversible error for a court to calculate a defendant’s guidelines range based on non-violent career offender status.
Pineda pled guilty to two counts of heroin distribution in violation of 21 U.S.C. §841(a)(1). She was classified as a career offender for non-violent offenses based on prior convictions for drug offenses – a state court conviction for selling drugs and a federal conviction for maintaining a drug-involved premises.
Because of the career offender classification, her guidelines range was 188 to 235 months in prison. After “considering” mitigating factors under Section 3553(a), the district court granted a 20-month downward departure and sentenced her to 168 months (14 years).
Should Career Offender Status be Based Only on Violent Offenses?
The sentencing commission has recommended “that the career-offender enhancement be reserved for defendants who have committed a ‘crime of violence.’” Pineda’s offenses were not “crimes of violence,” and she argued on appeal that “the career-offender classification overrepresented the seriousness of her criminal history.”
Pineda’s prior offenses were 1) selling a small amount of crack cocaine when she was 18, and 2) maintaining a drug-involved premises when she was 20 years old. But for these prior nonviolent offenses, her guidelines range would have been 15 to 21 months instead of 188 to 235 months.
Although the sentencing commission has made the recommendation, there is currently no requirement that a predicate offense or the current offense be violent. Part of Pineda’s argument on appeal was that “low-level drug traffickers like her should not categorically be subject to the career offender guideline’s increased penalties.”
She is right, but the law as currently written does not agree…
What did the Sentencing Commission Say About Career Offender Status Based on Non-Violent Offenses?
In its report to Congress, the Sentencing Commission recommended that career offender status be based only on violent offenses, noting that “the career offender guideline is overbroad and too harsh in its treatment of some offenders, particularly those offenders who qualify as career offenders on the basis of drug offenses alone.”
Their findings included:
- There are clear and notable differences between drug trafficking only career offenders and those career offenders who have committed a violent offense;
- Career offenders who have committed a violent instant offense or a violent prior offense generally have a more serious and extensive criminal history, recidivate at a higher rate than drug trafficking only career offenders, and are more likely to commit another violent offense in the future;
- Courts and the government generally perceive violent only career offenders differently from other career offenders. This perception is reflected in current sentencing practices, with violent only career offenders receiving fewer and less extensive departures or variances from the guidelines; and
- On the other hand, drug trafficking only career offenders are more likely to receive a sentence below the career offender guideline range. In fact, the average sentence imposed in the cases involving drug trafficking only career offenders (134 months) is nearly identical to the average guideline minimum (131 months) before application of the career offender guideline.
The Sentencing Commission’s findings, however reasonable, do not apply to actual cases, though. At least, not until Congress accepts their recommendations and makes the changes…
Although the district court has the discretion to depart from the guidelines range, the Sixth Circuit held that the district court did not err by using the career-offender guidelines range as its starting point in determining her sentence.
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