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Sentencing update: Booker

The US Supreme Court has granted certiorari in two cases to clean up the Booker mess.  You'll remember that Booker held that mandatory application of the Federal sentencing guidelines violated the right to jury trial, but left the Guidelines in place as "advisory," and commanded the appellate courts to henceforth confine its review of sentences to whether the sentence was "reasonable." Now we get to find out what that meant.

Since Booker, the Circuit Courts have wrestled with the question of how much weight to give to the Guidelines.  Six circuits have held that a sentence within the Guidelines is "presumptively reasonable."  Four others have disagreed, holding that the Guidelines are only one of the factors to consider in fashioning a sentence.  The 6th Circuit has varied; earlier decisions followed the latter approach, but more recent ones have moved toward the former view, and the corollary that sentences outside the Guidelines are presumptively unreasonable.  Typical of this trend is US v. Davis, a case from three months ago, where the trial judge had sentenced the defendant to one day in prison and one year of home arrest, because the defendant was 70 years old and the offense had occurred 14 years ago.  The 6th Circuit reversed, noting that the Guidelines called for a 30-37 month sentence, and the trial court's deviation was too much.

The two cases accepted by the Supreme Court for review will deal with both sides of that question.  In the first, out of the 8th Circuit, the defendant was sentenced to 15 months in prison on a drug conviction that the Guidelines provided a sentence of 37 to 46 months.  The appellate court reversed, noting that a trial court could deviate from the Guidelines only under "exceptional circumstances."  The second case is from the 4th Circuit; the defendant there was sentenced to 33 months, and the appellate court affirmed that sentence as reasonable simply because it was within the Guidelines.

Argument is expected in February.

This post is somewhat unusual for me, because I don't usually do much about Federal law here.  Some of my readers do a fair amount of Federal criminal work, so I'll touch on it from time to time.  If you do a lot of it, one thing you might want to check as a resource is the 6th Circuit Blog, which is a combined effort by the Federal Public Defenders of that Circuit.  I've included a link to it in the Blogroll on the right sidebar.

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