Probation Officers Advisory Group to the United States
January 25, 2005
Minutes of Telephone Conference
Meeting opened by Pamela Montgomery. Present during the telephone conference were Cathy Battistelli, Colleen Rahill-Bueler, Joan Leiby, Betsy Ervin, David Wolfe, Barry Case, Mary Jo Delaney, Lisa Wirick, Jim Mitzel, Felippe Ortiz, Deb Marshall, Suzanne Ferreira, Doug Mathis, and John Fitzgerald.
The discussion centered on procedural issues that representatives experienced since the Booker/Fanfan was issued by the U.S. Supreme Court. Specifically, were courts applying the guidelines and/or sentencing outside the guideline regime? Officers agreed that there has been a significant amount of confusion in the interim between the Blakely and Booker decisions. While many cases have been awaiting sentencing, cases appear to be going forward now. During the intervening months, some defendants entered guilty pleas without a plea agreement or the parties agreed not to apply relevant conduct.
Since the Booker decision, it appears that many courts are applying the guidelines in an advisory fashion but may not be using the word "departure" or "reasonable reduction" if sentencing outside the range. Instead, new words such as "deviation" were being used. Procedurally, most members stated judges were applying the guidelines, then looking at departures, and then proceeding to any aggravating or mitigating factors to be considered under 18 U.S.C. § 3553(a).
It was noted that some districts have already modified the presentence report to indicate the guidelines were being applied in an advisory capacity and added another section regarding Aggravating and Mitigating Factors Identified Pursuant to § 3553(a). In other courts, waivers prior to sentencing are required with defendants either agreeing to be sentenced in the guideline system or to a sentence outside the guidelines.
A concern was raised by all members regarding the use of the current Statement of Reasons. Some probation officers are now writing lengthy narratives regarding the sentencing hearing while other judges are relying on statements made on the record to justify their sentences.
Finally, everyone agreed that it was very early in the "post Booker world" to arrive at any final determinations.