In federal courts the judges are suppose to have discretion to vary upwards or downwards from the U.S. Sentencing Guidelines when sentencing a defendant. It has been approximately two years since the U.S. Supreme Court made this determination. Yet, judges are not always allowed this discretion. Recently in the 8th U.S. Circuit Court of Appeals a trial court's (district court's) sentences for a brother and sister charged with conspiracy to possess pseudoephedrine knowing that it would be used to manufacture methamphetamine were vacated and remanded for new sentences more in compliance with the Sentencing Guidelines.
In sentencing the brother and sister the trial court departed downward on each sentence due to factors that the trial court listed. In addition the trial court made statements regarding the Sentencing Commission policy on pseudoephedrine, which sets forth a formula based on the presumed amount of methamphetamine that could be produced from the amount of pseudoephedrine possessed. The trial court indicated that the formula was not as "simple" as perhaps the Sentencing Commission believed. The 8th Circuit reviewed the factors considered as well as the trial court's view on the formula and found them unreasonable and an abuse of discretion.
Bottom line - if the trial court departs downward from the U.S. Sentencing Guidelines and the district attorney isn't happy and appeals, your sentence may be vacated and your case remanded for resentencing in compliance with the Sentencing Guidelines.
Source: U.S. v. Gentile, 2007 U.S. App. LEXIS 909 (8th Cir. Jan. 17, 2007); Missouri Lawyers Weekly, January 22, 2007
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