Five Years of Appellate Problems after Booker
F. Andrew Hessick III
Arizona State University - Sandra Day O'Connor College of Law
Carissa Byrne Hessick
University of Utah - S.J. Quinney College of Law
March 10, 2010
Federal Sentencing Reporter, Vol. 22, p. 85, 2009
In United States v. Booker the U.S. Supreme Court rendered the Federal Sentencing Guidelines advisory rather than mandatory, committing sentencing decisions to the discretion of the district courts. But the Booker decision did not end with discretion. The Supreme Court also instituted appellate reasonableness review of all sentencing decisions. These two aspects of Booker’s remedy – discretion in district courts and appellate review for reasonableness – pull in opposite directions. Discretion means choice; there is no single correct sentence in any case. Substantive appellate review, by contrast, limits that choice. Appellate review promotes uniformity, and in particular adherence to the Guidelines, by cabining discretion. Since Booker, the Court has not resolved the tension between discretion and appellate review. Instead, the Court has sought to maintain district court discretion, while at the same time using appellate review to promote adherence to the Guidelines. This commentary notes that the incompatibility of discretion and appellate review has manifested itself in at least three different ways. The Court has issued decisions with conflicting language, abandoned ordinary features of presumptions and appellate review, and suggested imprecisely defined new legal tests. This commentary identifies instances where these developments have occurred and traces the resulting confusion and conflict in the circuits.
Number of Pages in PDF File: 7Accepted Paper Series
Date posted: March 12, 2010
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