In addition to holding that the guidelines are voluntary rather than mandatory, the Booker court directed sentencing courts to consider the Section 3553 factors in arriving at a sentence. Three recent decisions discuss 3553(a)(2)(C), which directs the court to consider the need to protect the public from future crimes of the particular defendant, as the basis for a possible downward departure based on age. In U.S. v. Eberhard, 2005 WL 1384038 (S.D.N.Y. June 9, 2005), the court rejected an argument that a 41 year old defendant in a securities fraud case should receive a downward departure from a guideline sentence based on the theory that because of his age there was little likelihood of recidivism. However, in United States v. Nellum, 2005 WL 300073 (N.D. In. Feb 3, 2000) the court found that the recidivism rate declines substantially for older defendants and thus granted a downward departure from a guideline sentence for a 57 year old defendant. See also United States v. Simon, 361 F. Supp.2d 35 (E.D.N.Y. 2005)

Since the Supreme Court’s decision in Booker, the federal sentencing guidelines have been voluntary. In compliance with the court’s opinion that those guidelines still be consulted, courts have continued to follow and apply them. See, e.g., United States v. Crawford, No. 03-00156-CR-1-1 (11th Cir. May 2, 2005)(applying guidelines post-Booker); United States v. Mathijssen, No. 04-1995 (8th Cir. May 2, 2005); United States v. Creech, No. 4:03-CR-95-1-LED (5th Cir. May 3, 2005).

One key question concerning the application of the guidelines involves acquitted conduct. For example, under the guidelines the base level for insider trading is at level 8 which translates of a sentence of 0 to 6 months. The guidelines contain certain enhancements, one of which involves the amount of profits. Under Section 2B1.1, the base level of the offense can be increased by anywhere from 2 to 30 levels, if the gain resulting from the offense exceeds $5,000. A key question in applying this portion of the guidelines concerns acquitted conduct. Suppose for example that the defendant is charged with tipping four people and the jury only finds the alleged tipper guilty of tipping two other defendants, acquitting as to the remaining two. The question is whether the trading profits of the two persons acquitted can be used to enhance the sentence of the convicted tipper. According to at least two circuit court decisions, the answer is yes. See, e.g., United States v. Price, 418 F.3d 771, (7th Cir. 2005); United States v. Duncan, 400 F.3d 1297 (11th Cir.) cert. denied, 126 S. Ct. 432 (2005). This result is justified because facts used as enhancements only have to be established by proof which equates to a preponderance of the evidence, not beyond a reasonable doubt. Under this theory, the defendant tipper can spend many more months in prison for conduct for which he was not convicted.

In contrast, three district courts have held that a sentence cannot be enhanced using conduct for which the defendant was not convicted. See, United States v. Coleman, 370 F.Supp.2d 661 (S.D. Ohio 2005); United States v. Pimental, 367 F.Supp.2d 143 (D. Mass. 2005). Essentially, these courts reason that the burden of proof on the government is beyond a reasonable doubt. While perhaps it might be better to reason that using facts from an acquittal to enhance a sentence smacks of double jeopardy and is fundamentally unfair, the result seems clearly correct.