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THE LAW OF SENTENCING UNDER BOOKER AND ITS PROGENY

This section contains articles explaining federal sentencing law in light of the Supreme Court's decisions in Booker, Rita, Gall, and Kimbrough, and providing arguments for non-guidelines sentences.

 

  • Sentencing By the Statute
    by Amy Baron-Evans, National Federal Defender Sentencing Resource Counsel
    Part I of this paper argues that defense attorneys should refocus sentencing courts on the sentencing purposes and parsimony principle of the governing sentencing statute, 18 U.S.C. §3553(a). It also offers several suggestions regarding the kinds of facts and considerations that may be relevant to each sentencing purpose. Part II discusses "consideration" of the advisory guideline range and what role, if any, sentencing purposes and empirical evidence of past practice have played in the guidelines' development. Part III discusses deconstruction of the guideline range and construction of a purpose-driven sentence. Part IV argues that the first question in every case in which prison is not statutorily required should be whether probation will suffice. Part V offers suggestions for objective, well-reasoned bases that can be used, alone or in combination, to support a non-guideline sentence of probation or a shorter prison term. Part VI provides step-by-step examples of how to construct a purpose-driven sentence in different types of cases.

  • Four Steps Towards Better Advocacy: How to Approach Your Client’s Sentencing After Booker, Rita, Gall and Kimbrough
    by Molly L. Roth, Assistant Federal Public Defender, W.D. TX
    When preparing for sentencing post-Booker, attorneys should be well-versed in all the factors listed in 18 U.S.C. § 3553(a), have a working understanding of the federal sentencing guidelines, and be prepared to investigate mitigation facts for creative presentation to the sentencing court. This brief guide offers four steps for lawyers to take as they analyze their cases in preparation for sentencing. It also links to in-depth resources that thoroughly discuss recent Supreme Court case law, explain the history and functioning of the guidelines, and offer attorneys concrete investigation tips.

  • Where Procedure Meets Substance: Making the Most of the Need for Adequate Explanation
    by Jennifer Niles Coffin, Staff Attorney, Sentencing Resource Project
    (This article explains how reversal of a sentence for certain procedural errors under the abuse of discretion standard leads more often than not to substantively different results.)

  • Appellate Decisions After Gall 
    by Amy Baron-Evans and Jennifer Niles Coffin, Sentencing Resource Counsel Project
    (List of citations to appellate court reversals of sentencing decisions)

  • Sentencing Appeals (2008-2009)
    by Denise Barrett and Sara Noonan, National Federal Defender Sentencing Resource Counsel
    (This summary of selected post-Booker appellate decisions is intended to assist practitioners in setting up an appellate issue in the district court and on appeal.)

  • Departures and Variances
    by David Hemingway ,Research and Writing Specialist, and Janet Hinton, Paralegal, E.D. MO.
    This document, adapted from a chapter in the upcoming Defending a Federal Criminal Case, compiles cases supporting a variety of downward departures and variances from the advisory guidelines.

  • Judges Are Free to Disagree With Any Guideline, Not Just Crack
    by Amy Baron-Evans and Jennifer Coffin, National Federal Defender Sentencing Resource Counsel
    (This article presents arguments and supporting caselaw for the proposition that all guidelines are advisory, even if they are the product of an explicit congressional directive to the Sentencing Commission).

  • After Irizarry: (1) Due Process Requires Notice and Adversarial Testing of Aggravating Facts (2) Object and Seek a Continuance if Surprised by Aggravating Facts (3) Argue that the Reason is a "Departure" (August 11, 2008)
    by Amy Baron-Evans, National Federal Defender Sentencing Resource Counsel
    In Irizarry v. United States, 553 U.S. __, 128 S. Ct. 2198 (2008), the Supreme Court held that the notice requirement of Federal Rule of Criminal Procedure 32(h) does not extend to a "variance" from the recommended guidelines range. This article emphasizes the distinction between notice of a judge's contemplation of a variance, and notice of and opportunity for adversarial testing of aggravating facts, and argues that the latter is still required even after Irizarry.

  • Rita, Gall and Kimbrough: A Chance for Real Sentencing Improvements (May 11, 2008)
    by Amy Baron-Evans, National Federal Defender Sentencing Resource Counsel
    Part I of this article gives an overview of how recent Supreme Court cases clarify that Section 3553(a) is the controlling law and the guidelines are merely advisory. Part II outlines the procedural nuts and bolts set forth by these cases, and presents arguments for improved procedural safeguards. Part III describes the as-applied Sixth Amendment challenge invited by Justice Scalia in Rita and Gall. Part IV describes the Court’s invitation to use empirical and policy critiques of the guidelines as sword and shield, and offers suggestions for how to do so.

    For additional discussion of the Supreme Court's post-Booker caselaw and tips for effective sentencing advocacy in light of this caselaw, see What is Lovely (and Not So Lovely) About Rita – Implications for Gall, Kimbrough and Future Cases (September 12, 2007). (To access briefs and data referenced in the Rita article, please click here .) For resources demonstrating that particular guidelines are not based on empirical evidence, do not advance sentencing purposes, and do not avoid unwarranted disparities or unwarranted similarities, see The Continuing Struggle for Just, Effective and Constitutional Sentencing After United States v. Booker (August 2006).

  • The Supreme Court, the Senators and DOJ All Agree: Judges Must Be Free to Disagree with the Sentencing Commission as a Matter of Policy in Order to Avoid a Sixth Amendment Violation (April 2007)
    by Amy Baron-Evans, National Federal Defender Sentencing Resource Counsel

  • Sentencing Post-Booker (April 10, 2006)
    by Amy Baron-Evans, National Federal Defender Sentencing Resource Counsel

  • Section 3553(a)(2) and the USSC's newly released reports on recidivism (January 2006)
    by Amy Baron-Evans, National Federal Defender Sentencing Resource Counsel
    This article explores the use of the U.S. Sentencing Commission's own recidivism studies to argue that the criminal history rules yield a longer sentence than that required under 18 U.S.C. § 3553(a).