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Abstract

The Guidelines’ policy behind counting most diversionary dispositions as if they were criminal convictions is that “defendants who receive the benefit of a rehabilitative sentence and continue to commit crimes should not be treated with further leniency.”15 However, it is not “further leniency” to treat a state diversionary disposition in a way that state statutes say they should not be treated, thereby ratcheting up a federal defendant’s sentence. “Further leniency” would be to give a federal defendant another diversionary disposition for the federal crime. It is not principled for the Guidelines to undo the original leniency of the state diversionary disposition by counting it the same way a conviction would be counted...The purpose of diversionary dispositions is to give an offender the chance to abide by the law during the diversionary period. If he behaves during that period, the record is supposed to be effectively “wiped clean.” If not, then the diversionary disposition turns into a conviction. If an offender commits another offense after he successfully completes the diversionary disposition, then it is a legitimate use of the first diversion not to give him another one. But it is not legitimate to use a successfully completed diversionary disposition as if it were a conviction to aggravate a subsequent sentence, in violation of express statutory language.

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