The Fifth Circuit’s failure to require the uncharged conduct to have a meaningful relationship with the conduct of conviction is flawed. An amendment of section 5K2.21 specifically approved the consideration of uncharged or dismissed offenses to serve as a basis for an upward departure to reflect the actual seriousness of the offense. Confusion amongst federal circuit courts of appeal arose as to whether such conduct included uncharged or dismissed criminal offenses. Interpreting the amendment’s language has caused a circuit split. The Fifth Circuit erroneously interpreted section 5K2.21 as to require nothing more than a “remote connection” between the uncharged crime and the underlying conviction. Nevertheless, case law, textual support and policy commentary from the Guidelines, as well as persuasive authority from sister circuits, imply that a more stringent “meaningful connection” standard is required. The United States Sentencing Commission Guidelines Manual (the “Guidelines”) was established to implement structure and predictability into the punishment phase of a criminal trial. Its ultimate goal is to provide a sentencing court a range to punish convicted defendants consistently, while ensuring the court retains enough discretion to craft a sentence that reflects the actual seriousness of the offense. Recently, the United States Supreme Court held that although the Guidelines are no longer mandatory, they should be given serious consideration and departures from the Guidelines range of sentencing must be clearly explained and accompanied with serious justifications. The Guidelines allow a sentencing court to consider evidence and conduct other than that used at trial in order to determine whether a departure from the applicable Guidelines range is appropriate. Nevertheless, sentences that depart from the Guidelines based on conduct that is remotely related to the conviction offense is an erroneous interpretation that should be rejected by courts.
St. Mary's University School of Law
Erin A. Higginbotham,
A Meaningless Relationship: The Fifth Circuit's Use of Dismissed and Uncharged Conduct under the Federal Sentencing Guidelines Recent Development.,
St. Mary's L.J.
Available at: https://commons.stmarytx.edu/thestmaryslawjournal/vol40/iss1/7
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