United States v. Faison
| Decision Date | 18 February 2020 |
| Docket Number | Case No.: GJH-19-27 |
| Parties | UNITED STATES OF AMERICA v. BURUDI FAISON, Defendant. |
| Court | U.S. District Court — District of Maryland |
The sentencing of defendants in federal court is such a common occurrence that it is important to occasionally pause and remember what is at stake. A human life, designed both by nature and our nation's Constitution to live free and pursue happiness, is taken away from family and familiar surroundings to serve days, months, years, or a lifetime in a prison cell. Whether it is the newly incarcerated individual's first experience with incarceration or just the most recent, he must quickly adapt to the stunning loss of freedom and privacy while struggling to maintain any sense of his personal dignity.
During the sentencing hearing, the lawyers and the judge discuss the appropriate sentence, often at great length, but after the judge announces a decision, that judge, the lawyers, and the staff move on to the next case; the hearing and outcome soon fade into distant memory. Meanwhile, for the defendant, the torture of a monotonous existence begins, while life for his family moves forward without him. For him, every day, month and year that was added to the ultimate sentence will matter. The difference between ten and fifteen years may determine whether a parent sees his young child graduate from high school; the difference between ten and fifteen months may determine whether a son sees his sick parent before that parent passes away; the difference between probation and fifteen days may determine whether the defendant is able to maintain his employment and support his family. Thus, it is crucial that judges give careful consideration to every minute that is added to a defendant's sentence. Liberty is the norm; every moment of incarceration should be justified.
In that vein, Congress has identified the factors courts must consider at sentencing in 18 U.S.C. § 3553(a), which includes the oft repeated admonition that the court should "impose asentence sufficient, but not greater than necessary, to comply with the purposes" of sentencing. And judges strive mightily to use their considerable power with great care and in concert with § 3553(a). More specific guidance is provided to judges in the form of the United States Sentencing Commission Guidelines Manual. The Manual's stated purpose is to create an "effective, fair sentencing system." U.S. SENTENCING GUIDELINES MANUAL 3 (U.S. SENTENCING COMM'N 2018). And any novice criminal practitioner can explain in broad strokes how the Sentencing Guidelines operate in an attempt to accomplish this task: base offense levels are set for a variety of offenses and then aggravating factors lead to higher sentences while mitigating factors lead to lower sentences.
But if judges are not careful, a rote application of the Guidelines can turn what is often a life-defining moment for the defendant into a check-the-box, formulaic calculation devoid of the individualized sentencing we strive for. This is, in part, because in the context of a particular crime, a seemingly sensible guideline sometimes ceases to serve what should be its primary purpose: making distinctions between defendants based on culpability.
With that, the Court turns to the specific example of Burudi Faison. At trial, Mr. Faison was convicted of Possession of Firearms and Ammunition by a person convicted of a crime punishable by a term of imprisonment exceeding a year ("Felon in Possession") and acquitted of a second count charging him with Possession of Ammunition by a person convicted of a crime punishable by a term of imprisonment exceeding a year. In short, the facts at trial established that Mr. Faison, and his father who was driving, had been involved in a road-rage confrontation, after which Mr. Faison rode back to his home, retrieved two firearms and was soon thereafter pulled over by police who discovered the firearms. Jails calls introduced into evidence suggested that he instructed his father to drive them home for the purpose of finding the guns and pursuing hisnewfound adversaries. At trial, Mr. Faison asserted a justification defense, whereby he claimed that, in fear for his safety, he had gone into a shed on his family's property looking for any weapon he could find and happened upon the firearms, which he felt he had no choice but to possess in order to defend himself against approaching assailants.1 He took the stand and testified consistent with this defense. Mr. Faison's father also took the stand to generally support his son's version of events.
The jury did not credit Mr. Faison's version of events, as reflected by its guilty verdict.
In the Pre-Sentence Report ("PSR"), Probation determined that Mr. Faison's base offense level was 22 because the offense involved the possession of a semiautomatic firearm capable of accepting a large capacity magazine and Mr. Faison had a prior conviction for a controlled drug offense, specifically a conviction in the United States District Court for the Eastern District of New York for Attempt to Possess with Intent to Distribute 500 Grams or More of Cocaine. The PSR also indicated that a two-level enhancement was appropriate because the firearm was stolen. While the defense did not dispute that the gun was stolen, the Government provided no evidence that Mr. Faison stole the gun or knew that the gun had been stolen. Mr. Faison was also assessed a four-level enhancement for possessing the firearm in connection with another felony. The Government suggested two theories for this enhancement: first, he possessed the gun with the intent to commit, at least, First Degree Assault, and second, that ammunition found in his room, for which he was acquitted, was in furtherance of drug trafficking, for which he was not charged. Finally, because both Mr. Faison and his father testified, the PSR assessed an additional two-level enhancement for obstruction of justice.
The defense challenged the Stolen Gun, Possession in Connection with a Felony, and Obstruction of Justice enhancements and contended that Mr. Faison's prior conviction for Attempt to Possess with Intent to Distribute did not qualify as a controlled drug offense for guideline purposes. If the Court were to rule in favor of Mr. Faison on each contested issue, his offense level would be 20. With a criminal history category of IV, his advisory guideline range would be 51-63 months of incarceration. Accepting all arguments from the Government and the recommendations of the PSR, Mr. Faison's offense level would be 30 with a resulting advisory guideline range of 135-168 months. Even after reducing the sentence to 120 months, which is the statutory maximum for the crime of conviction, the decision to apply or not apply certain enhancements could potentially double Mr. Faison's advisory guideline range.
As is true here, the Guidelines are often not complicated to apply. And the Court recognizes that many of the questions it grapples with here have been resolved as matters of constitutional law. Nonetheless, courts have been given some discretion in how the Guidelines are applied, leaving room for policy disagreements and, because they are advisory, varying from the Guidelines where warranted. See United States v. Booker, 543 U.S. 220, 246 (2005) ().
Regarding policy disagreements, in Kimbrough v. United States, 552 U.S. 85 (2007), the Supreme Court considered the Guidelines' disparate treatment of crack and powder cocaine offenses and held that a sentencing judge has discretion to depart from the Guidelines based on that judge's conclusion that this disparity yields sentences that are "'greater than necessary' to serve the objectives in sentencing." 552 U.S. at 91. Several circuits, including the Fourth Circuit,have interpreted Kimbrough to allow sentencing courts to vary from the Guidelines based on categorical, policy-based disagreements even outside of the crack cocaine context. See United States v. Morace, 594 F.3d 340, 349-50 (4th Cir. 2010); United States v. Engle, 592 F.3d 495, 502 (4th Cir. 2010) (...
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