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The Rebirth of Advocacy

By Laurence A. Urgenson and Melissa H. Davis

On Jan. 12, 2005, the Supreme Court in United States v. Booker ended months of speculation as to what was to become of the Federal Sentencing Guidelines after the Court's June 2004 decision in Blakely v. Washington, and held that the guidelines were unconstitutional. To remedy the unconstitutionality, the Court excised portions of the Sentencing Reform Act that required the sentencing judge to sentence within the guidelines range and that set the standard of appellate review of sentences.

Absent the judicially excised provisions, sentencing in the federal courts is governed by 18 U.S.C. ' 3553(a), which lists the factors that must be considered in imposing a sentence and instructs that a sentence must be “sufficient, but not greater than necessary” to:

  • reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense;
  • afford adequate deterrence to criminal conduct;
  • protect the public from further crimes of the defendant; and
  • provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner. ' 3553(a)(2).

A sentencing court must also consider: “the nature and circumstances of the offense and the history and characteristics of the defendant,” 18 U.S.C. ' 3553(a)(1); “the kinds of sentences available,” 18 U.S.C. ' 3553(a)(3); the applicable sentencing guidelines range, 18 U.S.C. ' 3553(a)(4); pertinent policy statements issued by the Sentencing Commission, 18 U.S.C. ' 3553(a)(5); “the need to avoid unwarranted sentencing disparities among defendants with similar records who have been found guilty of similar conduct,” 18 U.S.C. ' 3553(a)(6); and “the need to provide restitution to any victims of the offense.” 18 U.S.C. ' 3553(a)(7).

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