The Illegality of Resentencing

Abstract:     
The Supreme Court in United States v. Booker held that mandatory application of the United States Sentencing Guidelines is inherently unconstitutional and, to preserve the federal sentencing structure, it excised several provisions of the United States Code that required district courts to adhere to the Guidelines in sentencing criminal defendants. Yet, the Court did not address one provision of the Code, 18 U.S.C. Section 3742(g)(2), that still requires district courts to adhere to the Guidelines in resentencing criminal defendants. This article explores this provision and concludes that it renders all resentencing in the federal system illegal, in violation of either the statute or the Constitution. District courts are called upon to recognize the unconstitutionality of 18 U.S.C. Section 3742(g)(2) sua sponte and to excise it from the United States Code.

Number of Pages in PDF File: 14

Keywords: sentencing, resentencing, booker, 3742(g)

JEL Classification: K14

Accepted Paper Series