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§670 Age, Education, Skills
(U.S.S.G. §§5H1.1 -.2)
First Circuit
Second Circuit
Third Circuit
Fourth Circuit
Fifth Circuit
Sixth Circuit
Seventh Circuit
Eighth Circuit
Ninth Circuit
Tenth Circuit
D.C. Circuit
Miscellaneous
1st Circuit says § 5H1.2 does not bar downward departure for job loss to innocent employees. (670) Defendants ran a small business that employed 12 people. They requested a downward departure arguing that if they were imprisoned for their tax crimes, their business would fail, causing 12 innocent employees to lose their jobs. The district court, relying on U.S. v. Sharapan, 13 F.3d 781 (3d Cir. 1995) and § 5H1.2, found that as a matter of law, business failure and third party job loss could not serve as the basis for a downward departure. The First Circuit reversed, ruling that § 5H1.2 does not bar downward departures based on job loss to innocent employees. First, under Koon v. U.S., 518 U.S. 81, 116 S.Ct. 2035 (1996), departure factors should not be ruled out on a categorical basis. Also, the loss of employment to innocent employees does not necessarily fall within the term “vocational skills.” Vocational skills may or may not be related to job loss to others. Since Koon held that job loss by the defendant resulting from his incarceration cannot be categorically excluded from consideration, then job loss to innocent employees resulting from defendant’s incarceration may also not be categorically excluded from consideration. U.S. v. Olbres, 99 F.3d 28 (1st Cir. 1996).
1st Circuit upholds 360-month sentence imposed upon 54-year-old man. (670) Defendant asserted that the imposition of a 360-month sentence on a 54-year old man amounted to a life sentence, and that the district court failed to consider whether a life sentence was appropriate for his crimes. The 1st Circuit rejected this argument. A defendant’s age is not relevant in determining a sentence, except when the offender is elderly and infirm. Since defendant was neither, the district court correctly applied the sentencing guidelines. U.S. v. Doe, 921 F.2d 340 (1st Cir. 1990).
2nd Circuit rejects claim that court imposed jail term simply because it could not impose a fine. (670) Defendant argued that the district court violated § 5H1.10 by imposing a jail term only because it could not impose a fine due to his indigence. The Second Circuit disagreed. The district court stated in its written opinion that it did not consider defendant’s inability to pay a fine in deciding whether to sentence him to a prison term. There was no reason to discredit the court’s explanation. The challenged portion of the transcript did not establish that the judge viewed imprisonment, supervised release, and a fine as mutually exclusive sentencing alternatives. U.S. v. Abrar, 58 F.3d 43 (2d Cir. 1995).
2nd Circuit rejects claim that court imposed jail term simply because it could not impose a fine. (670) Defendant argued that the district court violated § 5H1.10 by imposing a jail term only because it could not impose a fine due to his indigence. The Second Circuit disagreed. The district court stated in its written opinion that it did not consider defendant’s inability to pay a fine in deciding whether to sentence him to a prison term. There was no reason to discredit the court’s explanation. The challenged portion of the transcript did not establish that the judge viewed imprisonment, supervised release, and a fine as mutually exclusive sentencing alternatives. U.S. v. Abrar, 58 F.3d 43 (2d Cir. 1995).
3rd Circuit remands to reconsider departure based on disparity and age of 62-year old defendant. (670) Defendant was 62-years old, but was not alleged to be in poor physical health. The district court departed downward from 168 months to a sentence of 150 months because of defendant’s age, and to reduce disparity with co-defendants’ sentences. The 3rd Circuit remanded for reconsideration of the departure. Departures based on age are permitted when the defendants are elderly and infirm and home confinement is equally efficient and less costly. But appropriate findings to support a downward departure on this ground alone were not made. Under U.S. v. Higgins, 967 F.2d 841 (3rd Cir. 1992), sentence disparity among co-defendants is not a sufficient basis for departure. However, because it was unclear from the record whether there were unusual circumstances that would constitute an exception to the Higgins rule, the case was remanded for reconsideration. ), superseded by guideline on other grounds as state in U.S. v. Corrado, 53 F.3d 620 (3d cir. 1995).
3rd Circuit rejects downward departure despite risk to business with 30 employees. (670) The district court departed downward because it believed that defendant’s incarceration would cause his business to fail and result in the loss of about 30 jobs and other economic harm to the community. The 3rd Circuit reversed, holding that this departure was inconsistent with section 5H1.2, which provides that departures based on a defendant’s “vocational skills” are generally not permitted. Defendant’s supposedly unique ability to keep his business operating would qualify as a vocational skill. Section 5H1.2 represents the Sentencing Commission’s conclusion that the goals of punishment outweigh the goal of protecting society from the harm that it might suffer if it is deprived of defendant’s work-related contribution. U.S. v. Sharapan, 13 F.3d 781 (3rd Cir. 1994).
4th Circuit holds departure downward based on age was clear error. (670) Defendant was a 23 year old male. The district court departed downward based partly on defendants age, pursuant to guidelines § 5H1.1. The 4th Circuit reversed, ruling that there was nothing extraordinary about defendant’s age and to depart on the basis of age was clear error. U.S. v. Summers, 893 F.2d 63 (4th Cir. 1990).
4th Circuit holds that age is not ordinarily relevant for sentencing purposes. (670) The 4th Circuit held, inter alia, that § 5H1.1 of the guidelines made it clear that age is ordinarily not relevant for sentencing purposes, and that therefore it could not rule in favor of a drug defendant who argued that his age should have been considered by the sentencing court. U.S. v. Daiagi, 892 F.2d 31 (4th Cir. 1989).
4th Circuit rules guidelines adequately consider a defendant’s age and health problems. (670) Defendant challenged the district court’s refusal to depart under section 5H1.1 and 5H1.4 based on his age and health problems. The 4th Circuit ruled that it could not review the decision. It was clear that the district judge was aware that she could depart but concluded that defendant’s age and health problems were not extraordinary enough to warrant such action. The court also rejected defendant’s claim that age and physical condition were not adequately taken into consideration by the sentencing commission. The court refused to “rewrite” the guidelines, simply because it might be at odds with some portion of the sentencing act’s legislative history. Because the guidelines were submitted to Congress and subject to its modification, Congress could have substituted its own guidelines, if it had felt a particular factor was not adequately considered. It did not do so. U.S. v. Penn, 17 F.3d 70 (4th Cir. 1994).
5th Circuit allows court to consider defendant’s age in deciding whether to depart. (670) At defendant’s sentencing hearing, the district court imposed a 20-year below-Guidelines sentence, stating that it was sufficient for a 48-year old man. The case was remanded for resentencing because the court erroneously refused to apply a particular enhancement. After the enhancement was applied, defendant’s offense level was 43, which translated into life imprisonment under the Guidelines. The court imposed a sentence of life imprisonment, finding that age alone was not a sufficient reason to vary. The Fifth Circuit held that the court erred in finding that it lacked discretion to consider defendant’s age in deciding whether to depart or vary. Guideline § 5H1.1 does state that age is not ordinarily relevant in determining whether to depart, except when the defendant is elderly and infirm. The district court’s belief that its disagreement with § 5H1.1 was not an appropriate consideration was inconsistent with Kimbrough v. U.S., 128 S.Ct. 558 (2007) and other recent Supreme Court cases. U.S. v. Simmons, 568 F.3d 564 (5th Cir. 2009).
5th Circuit vacates departure based on 43-year-old’s age, character and family responsibilities. (670) Defendant’s offense level of 44 mandated a guideline sentence of life imprisonment. The trial court only sentenced defendant to 240 months, stating that it believed a 20-year sentence was long enough in light of the fact that the 43-year old defendant would be 64 or 65 when he got out of prison. The 5th Circuit reversed, since under § 5H1.1 age is an improper basis for departure unless the defendant is elderly and infirm at the time of sentencing. Defendant was in good health and not under a doctor’s care or taking any medication. Defendant’s character, family responsibilities and community ties were also improper grounds for a downward departure. U.S. v. Fierro, 38 F.3d 761 (5th Cir. 1994).
5th Circuit reverses downward departure based upon defendant’s young age. (670) The district court departed downward from 151 months and sentenced defendant to 120 months because of defendant’s young age (18). The 5th Circuit reversed, holding that the guidelines have adequately taken into consideration a defendant’s age in section 5H1.1. This section specifies extremely limited circumstances under which age may be the basis for a departure. Being young is not a permissible consideration under the guidelines. U.S. v. White, 945 F.2d 100 (5th Cir. 1991).
5th Circuit rules departure based on education and socio-economic status was improper. (670) The district court stated that it was departing from the guidelines because defendant was “one of the top persons, scholastically speaking,” was a “gifted, talented individual,” and because “the system [had] not been harsh with [him].” The Fifth Circuit ruled that it was “clear from these stated reasons that the court was sentencing [defendant] based upon his education and his socio-economic status.” Since “[t]he guidelines do not permit such distinctions,” a sentence based on these factors is unreasonable under 18 U.S.C. § 3742(e) (2). U.S. v. Burch, 873 F.2d 765 (5th Cir. 1989).
6th Circuit says court adequately considered defendant’s age and alleged ill health. (670) Defendant argued in his sentencing memo that he should receive a sentence below the bottom of the guideline range because of his age (then 62) and supposed ill-health. During defendant’s sentencing hearing, the district court did not address these arguments specifically, but said there was “nothing in the record to warrant going outside the recommended guideline range, nothing in the 3553(a) factors.” The court then imposed a sentence at the very bottom of the guideline range. Defendant argued that the court committed procedural error when it failed to address his arguments specifically. The Sixth Circuit disagreed. Courts are not required to give the reasons for rejecting any and all arguments by the parties for alternative sentences. Defendant’s arguments were directed to the § 3553(a) factors. The district court said that it saw nothing with respect to those factors that support a below-guideline sentence. On this record, that response, “though brief, was legally sufficient.” U.S. v. Locklear, 631 F.3d 364 (6th Cir. 2011).
6th Circuit reverses downward variance based on defendant’s vocational skills and family ties. (670) Defendant pled guilty to two counts of possessing child pornography and was sentenced to 57 months. After a successful appeal, the district court re-sentenced defendant to five days in prison—the time he spent in custody when first arrested—and 15 years of supervised release. The court cited defendant’s severe back pain, his role as the primary caregiver for his elderly, ailing mother, his remorse, his career as a musician and composer, and his compliance with his release conditions while on bail. The Sixth Circuit reversed. Educational and vocational skills, as described in § 5H1.2, are a discouraged departure factor, and so should be relied upon only in exceptional cases. The district court abused its discretion in finding, without explanation, that the fact that defendant wrote and played music, in and of itself, was a mitigating factor. Family circumstances are also a discouraged factor, § 5H1.6. There were feasible alternatives available to care for defendant’s mother, including his siblings or a nursing home. U.S. v. Christman, 607 F.3d 1110 (6th Cir. 2010).
7th Circuit says 78-month sentence was not de facto life sentence for 70-year-old defendant. (670) Defendant pled guilty to drug and firearms charges, and was sentenced to 78 months, which fell at the bottom of his 78-97 month guideline range. Defendant’s lawyer filed an Anders brief, seeking leave to withdraw on the ground that there was no colorable ground for an appeal. The only possible ground was the judge’s decision not to give a below-guidelines sentence despite defendant’s age. Defendant’s lawyer had argued that defendant should get a shorter sentence because he was 70 years old, and might die before he was released from prison. The Seventh Circuit found that the sentence imposed was reasonable, and defendant’s current lawyer was right to disclaim the existence of a colorable ground of appeal. Although persons convicted of a crimes committed when they are 70 or older are unlikely to commit further crimes, defendant was an unusual case. He was devoted to guns and drugs, and hosted parties in his home at which he and his guests consumed drugs, and he bought and sold guns in his crime-ridden neighborhood. Moreover, he was not frail. His age and physical condition did not make his sentence a de facto life sentence. U.S. v. Johnson, 685 F.3d 660 (7th Cir. 2012).
7th Circuit holds that court adequately considered defendant’s arguments for leniency. (670) Defendant was convicted of using his position as a township official to obtain kickbacks on contracts awarded to a company owned by an acquaintance. He argued that the district judge failed to consider his arguments for leniency at sentencing, in particular, his age and decorated military career. The Seventh Circuit held that the district court properly imposed a within-guidelines sentence, and there was no procedural error. The court expressly considered defendant’s age, stating that it did not go to a higher sentence because of defendant’s age. The judge also mentioned defendant’s accomplishments. Finally, the judge explained why the sentence was appropriate in light of defendant’s arguments. The judge rejected defendant’s argument that he was a good father, noting that he put his children in harm’s way by fraudulently procuring health insurance on their behalf. The judge was also bothered by the amount of time, six years, that defendant was involved in criminal activity. Finally, the judge noted that defendant’s cut from the contracts, $68,000, could have been used by the township to help the poor. U.S. v. Cantrell, 617 F.3d 919 (7th Cir. 2010).
7th Circuit upholds below-guideline sentence for tax fraud and money laundering. (670) Defendant was convicted of tax fraud and money laundering, resulting in an 87-108 month advisory sentencing range. The Seventh Circuit affirmed a 24-month sentence, finding that the sentencing judge articulated sufficient reasons for the downward variance. Although the district court cited several factors, the court relied primarily on its finding that (1) based on defendant’s age, she was unlikely to commit future crimes, and (2) the seriousness and characteristics of her offenses were not part of the heartland of money laundering offenses. The district court considered defendant’s age (61) to be a mitigating factor, not because she was infirm, but because her age set her apart from the average offender and made it less likely that she would commit these crimes again. The district court’s conclusion that defendant’s offense was less serious than other types of money laundering was supported by the Sentencing Commission’s 1997 report, which highlighted its particular concern with concealment of the proceeds of drug trafficking, promotion of criminal conduct, and use of sophisticated forms of money laundering. U.S. v. Carter, 538 F.3d 784 (7th Cir. 2008).
7th Circuit holds that above-guideline sentence for 58-year old diabetic was not unreasonable. (670) Defendant pled guilty to being a felon in possession of a firearm. The guideline range for his offense was 188-235 months, but the district court imposed a sentence of 264 months, citing his frightening criminal history, which included multiple rapes, kidnappings, and armed robberies. Defendant argued that the sentence was unreasonably long, noting that his age (58) and his diabetic condition meant the sentence amounted to a life sentence. The Seventh Circuit held that the sentence was not unreasonable. While age may be a reason to depart downward where the defendant is elderly and infirm, § 2H1.1, defendant was not yet elderly or infirm, or for any other reason harmless. Moreover, the panel challenged defendant’s claimed life expectancy of 64, finding that even with his diabetes it was 76.5. Finally, even if the tendency to commit crimes diminishes with age, given defendant’s unusually violent criminal history, the judge could certainly worry about what defendant might do in his seventies. U.S. v. Bullion, 466 F.3d 574 (7th Cir. 2006).
7th Circuit cannot review discretionary refusal to depart downward based on age. (670) Defendant challenged the district court’s denial of a departure based on his age. The Seventh Circuit held that it lacked discretion to review the refusal to depart. The district court specifically stated that although it might have discretion to grant a downward departure on the basis of defendant’s age pursuant to § 5H1.1, it was not merited in this case. It was within the court’s discretion to refuse to make the downward departure. U.S. v. Mattison, 153 F.3d 406 (7th Cir. 1998).
7th Circuit agrees that appeal of failure to depart based on age would be frivolous. (670) Defendant’s court-appointed appellate counsel filed a motion to withdraw, claiming any appeal would be frivolous. A potential ground for appeal was whether there should have been a downward departure due to defendant’s age. The Seventh Circuit granted the motion to withdraw, agreeing that an appeal of the court’s failure to depart based on defendant’s age would be frivolous. A defendant’s age is not ordinarily relevant in determining whether a sentence should be outside the applicable guideline range. There was nothing about defendant’s age (56) or health that justified a downward departure. Moreover, defendant did not move for a downward departure before the sentencing court, and thus waived any challenge to this issue. U.S. v. Kellum, 42 F.3d 1087 (7th Cir. 1994).
7th Circuit upholds reliance on age, role in offense and length of criminal activities to sentence at top of range. (670) The 7th Circuit rejected defendant’s claim that the district court failed to state with particularity its reasons for imposing a sentence at the top of the guideline range as required by 18 U.S.C. section 3553(c)(1). The district court stated that it was basing defendant’s sentence on his age, his role in the offense and the length of time that his criminal conduct lasted. Although age is not ordinarily relevant in sentencing and defendant’s managerial role was already taken into account under guideline section 3B1.1, the district court was entitled to consider that defendant’s age allowed him to use a younger family member in the conspiracy. The sentence also reflected the district court’s conclusion that defendant “should have known better.” Moreover, the length of defendant’s criminal conduct supported the sentence. Defendant had already been indicted in Texas when he moved to Wisconsin to start the same illegal business, bringing with him a five-year supply of chemicals. U.S. v. Fairchild, 940 F.2d 261 (7th Cir. 1991).
7th Circuit reverses downward departure based on age, physical condition, restitution and “single act of aberrant behavior.” (670) Defendant was convicted of bank fraud and was sentenced below the applicable guideline range. After the government filed its notice of appeal, the court filed a memorandum stating that the downward departure was based on the defendant’s age and physical condition, the fact that the offense was a “single act of aberrant behavior,” and the fact that the dollar loss overstated the seriousness of the offense because a plan of restitution had been undertaken prior to indictment. The 7th Circuit reversed, finding these reasons were either improper or insufficiently articulated to justify departure. U.S. v. Carey, 895 F.2d 318 (7th Cir. 1990).
8th Circuit allows probation for crack defendant given age and poor health. (670) Defendant pled guilty to conspiracy to distribute crack, under the general conspiracy statute, 18 U.S.C. § 371, rather than 21 U.S.C. § 841(b)(1) (A). His guideline range was 97-121 months, but the statutory maximum under § 371 was five years. Based on his poor health (serious heart condition and related problems), age (56 at the time of sentencing) and post-arrest rehabilitation, the district court sentenced him to three years’ probation. Because a residence facility was unable to handle defendant’s medical needs, the court placed him on home detention. The Eighth Circuit held that the sentence was not unreasonable. The Guidelines and decisions prior to Gall allow variances on the basis of poor health. Guideline § 5H1.4 permits a court to give a non-prison sentence if the defendant is “seriously infirm” and it would be less costly than imprisonment. Section 5H1.1 also permits a court to consider alternative forms of incarceration for an elderly, infirm defendant that would be “equally efficient” as incarceration. U.S. v. McFarlin, 535 F.3d 808 (8th Cir. 2008).
8th Circuit rejects departure in child porn case for high intelligence, disruption of education and loss of career. (670) Defendant was convicted of receiving child pornography. The Eighth Circuit reversed a downward departure based on defendant’s high intelligence and candidacy for a doctoral degree in chemistry. A defendant’s intelligence is an unlisted factor for departure, and departures based on such factors should be highly infrequent. The fact that defendant’s conviction disqualified him from working as a forensic chemist for a law enforcement office as he had dreamed also did not warrant a departure. It is not unusual for a convicted felon to be barred from work in law enforcement. Also, interruption of an inmate’s education during incarceration is not unusual enough to warrant departure. Finally, the fact that defendant might be subject to abuse in prison because he was a child pornographer did not warrant a departure. U.S. v. Drew, 131 F.3d 1269 (8th Cir. 1997).
8th Circuit agrees that 62-year-old in good health was not entitled to downward departure. (670) Defendant argued that the district court should have departed downward based on his age (62) at the time of sentencing. The 8th Circuit found no error in the district court’s refusal to depart. Under sections 5H1.1 and 5H1.4, although there may be grounds to depart when a defendant is elderly and infirm, age and physical condition should not generally be taken into account in sentencing. The district court considered defendant’s age and concluded it was not relevant, and noted that defendant was in good physical condition. There was no evidence that defendant was “infirm” within the meaning of § 5H1.1. U.S. v. Rimell, 21 F.3d 281 (8th Cir. 1994).
8th Circuit rejects downward departure for hardship caused by chiropractor’s absence from rural community. (670) The district court departed downward to a combined sentence of work release and community service so that defendant’s special services as a chiropractor would remain available in his small rural community. The 8th Circuit held that the district court erred in finding that defendant’s absence from the community would impose such a significant hardship as to justify a departure. There was evidence that at least 23 other chiropractors within a 50-mile radius of defendant’s town and at least 35 chiropractors in a town 70 miles away were accepting new patients. This evidence did not even address the availability of other doctors. Judge Loken dissented. U.S. v. Groene, 998 F.2d 604 (8th Cir. 1993).
9th Circuit allows departure for susceptibility to abuse in prison. (670) A defendant’s unusual susceptibility to abuse by other inmates while in prison may warrant a downward departure. Koon v. U.S., 518 U.S. 81, 111-12 (1996); U.S. v. Lara, 905 F.2d 599, 603 (2d Cir. 1990). Here, the district court found that the defendant – who was convicted of child pornography – was susceptible to abuse in prison because of a “combination” of factors: “his stature, his demeanor, his naiveté, [and] the nature of the offense.” On appeal, a divided Ninth Circuit affirmed, even though it was unclear from the record how defendant’s 5’11” height and 190 pounds made his “stature” a basis to depart. As for his demeanor, described as “positive and caring,” the defense expert said that “these are not good characteristics to have in prison.” Although the district court did not describe what it meant by “naiveté,” the majority thought this characteristic might make defendant “less able to protect himself from ill-meaning inmates.” The majority also held that the district court could consider the nature of the offense in deciding whether defendant was susceptible to abuse in prison. Judge Graber dissented. U.S. v. Parish, 308 F.3d 1025 (9th Cir. 2002).
10th Circuit affirms downward departure for career offender. (670) The district court departed downward from the career offender guidelines because defendant’s two previous convictions were committed within two months of each other when he was only 20 years old, and were punished by concurrent sentences. The 10th Circuit affirmed, finding that the reasons for the departure, taken together, were adequate. Although the guidelines advise that age is not ordinarily relevant, it was proper to consider age “in the context of the other circumstances of a defendant’s criminal history.” Similarly, it was proper for the district court to look at the short period of time between defendant’s two previous crimes “in the context of defendant’s age and the state court’s treatment of the two convictions.” The court concluded that the guidelines did not sufficiently consider “this unique combination of factors in defendant’s criminal history.” Judge Baldock dissented from this portion of the opinion. U.S. v. Bowser, 941 F.2d 1019 (10th Cir. 1991).
10th Circuit applies guidelines to conspiracy which straddled defendant’s 18th birthday. (670) Defendant participated in a drug conspiracy from March 1989 through his arrest on July 9, 1989. His 18th birthday was on June 19, 1989. The 10th Circuit upheld the application of the guidelines to his offense, despite his claim that most of his criminal conduct took place while he was a juvenile. It was defendant’s criminal conduct after he became an adult to which section 2D1.1(a)(3) applied. Moreover, the fact that defendant was barely 18 when he committed the illegal acts did not support an argument that the guidelines were misapplied. Section 5H1.1 states that age, including youth, is not ordinarily relevant in determining whether a departure is justified. The guidelines’ failure to consider a defendant’s age does not violate due process. U.S. v. Leroy, 984 F.2d 1095 (10th Cir. 1993).
D.C. Circuit says retroactive prohibition of “youthful guidance” departure would violate ex post facto clause. (660) Effective November 1, 1992, the guidelines were amended by section 5H1.12 to prohibit departure based on lack of guidance as a youth. The D.C. Circuit held that applying this guideline retroactively to offenses committed before November 1, 1992 would violate the ex post facto clause. Thus, for offenses committed before November 1, 1992, the court retains discretion to depart downward for defendant’s lack of guidance as a youth and history of child abuse. However, there must be a plausible causal nexus between the lack of guidance and exposure to domestic violence and the offense for which the defendant is being sentenced. In addition, the court should consider whether defendant’s childhood exposure to domestic violence was sufficiently extraordinary to be weighed under section 5H1.3, which states that mental and emotional conditions are not ordinarily relevant in deciding whether to depart. U.S. v. Clark, 8 F.3d 839 (D.C. Cir. 1993).
D.C. Circuit upholds failure to depart downward based upon defendant’s young age. (670) The D.C. Circuit affirmed the district court’s refusal to depart downward based upon defendant’s age. The district court understood the scope of its authority on the question of age, but concluded that defendant did not present sufficiently unusual circumstances to justify the departure. The fact that the same judge granted a departure in a similar case did not give defendant a basis to attack the court’s exercise of discretion in his case. The appellate court also rejected defendant’s claim that guideline § 5H1.1, which states that a defendant’s age is not ordinarily relevant, was invalid because the Sentencing Commission failed to give reasons for adopting it. U.S. v. Lopez, 938 F.2d 1293 (D.C. Cir. 1991).
Illinois District Court rules defendant’s age was proper grounds for downward departure given the length of the guideline sentence. (670) Defendant was convicted of being a felon in possession of a firearm and various narcotics offenses. Due to his extensive criminal history, the appropriate guideline sentence would result in incarceration for longer than his life expectancy. The Northern District Court of Illinois held that departure from the guidelines was warranted because incarceration for the statutory minimum, but below the suggested guideline range would serve the purpose of ensuring that the defendant would not be likely to commit more crimes (§ 4A1.3). A sentence to the minimum 30-year guideline range would result in life imprisonment, given the 42 year old defendant’s life expectancy of 28.7 years. “Departure was warranted because a civilized society locks up people until age makes them harmless, but does not keep them in prison until they die.” Thus, the court declined to address whether the guideline sentence would constitute cruel and unusual punishment. U.S. v. Garrett, 712 F.Supp. 1327 (N.D. Ill. 1989).
Article critiques guideline limiting consideration of age. (670) A student author reviews the case law construing § 5H1.1, which states that an offender’s age is “not ordinarily relevant” in considering whether to depart from a guidelines sentence. Though the Commission did intend judges to take account of age in some cases, the guideline as drafted has misled courts about when the factor is appropriately considered. The author suggests clarifications of the guideline. Note, The Federal Sentencing Guidelines and Elderly Offenders: Walking a Tightrope Between Uniformity and Discretion (and Slipping), 2 Elder L.J. 69-95 (1994).
Article advocates flexibility in sentencing older defendants. (670) A student author provides an overview of the type of crimes most commonly committed by the elderly. The author also addresses the guidelines’ approach to sentencing the elderly, noting that courts have been reluctant to sentence elderly criminals differently from younger ones; this approach is compared to the approach of various states. The author advocates increased consideration of a defendant’s age, arguing that a prison sentence for an elderly defendant is unequal to the same sentence for a younger defendant, because the sentence is a larger part of the elderly defendant’s remaining life expectancy. Note, The Sentencing of Elderly Criminals, 29 Am. Crim. L. Rev. 1025-44 (1992).