Shand, a Jamaican citizen, has an extensive history of arrests and convictions. After pleading guilty to illegal reentry, he was sentenced to 77 months in prison, the low end of the U.S. Sentencing Guidelines range determined after district court denied the government a four-point reduction under Guidelines §5K3.1, and calculated Shand’s Guidelines range based on an otherwise unchallenged offense level of 21. Second Circuit affirmed, rejecting Shand’s claim the court lacked authority to deny the government’s departure motion. Rejecting Shand’s various arguments—and discussing the use of the permissive “may” in a policy statement adopted by the Sentencing Commission pursuant to the PROTECT Act of 2003—Second Circuit, citing United States v. Fernandez and United States v. Huerta, held the permissive “may” foreclosed Shand’s argument that the district court must depart downward upon a government motion under §5K3.1. The inclusion of “may” suggested that the sentencing judge retains discretion over whether to grant such a departure. Further, whether of not §5K3.1 was designed to conserve resources at the U.S. Attorney’s Offices, it vests with district court judges the sole discretion to grant departures on government motions.
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