Sentencing Guidelines: Downward Departure Based on Age.

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)