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A Rational Post-Booker Proposal for Reform of Federal Sentencing Enhancements for Prior Convictions

46 Pages Posted: 29 Jul 2011  

Caleb E. Mason

Brown White & Osborn LLP

Scott Lesowitz

United States Attorney's Office

Date Written: April 10, 2011

Abstract

In this article we propose a solution to one of the more vexing problems in current federal sentencing jurisprudence: applying the sentencing enhancements for one of the most commonly-prosecuted federal crimes – re-entry after deportation, in violation of 8 U.S.C. Section 1326. We argue that the current categorical approach to classifying crimes for purposes of applying the enhancements is unnecessary, creates absurd results, and contravenes the Sentencing Commission’s mandate to promulgate empirically-grounded real-offense guidelines. We urge a systematic classification of state crimes based on empirical surveys of state caselaw and charging practices, and a revised enhancement guideline that recognizes differences in relative severity. We give examples of the kind of surveys that would be required, and set out proposed guidelines revisions.

Keywords: Booker, sentencing, guidelines, prior convictions, aliens

Suggested Citation

Mason, Caleb E. and Lesowitz, Scott, A Rational Post-Booker Proposal for Reform of Federal Sentencing Enhancements for Prior Convictions (April 10, 2011). North Illinois University Law Review, Vol. 31, No. 2, 2011. Available at SSRN: https://ssrn.com/abstract=1896705

Caleb E. Mason (Contact Author)

Brown White & Osborn LLP ( email )

333 S. Hope St.
40th Floor
Los Angeles, CA 90071
United States
2134062949 (Phone)
2134062949 (Fax)

Scott Lesowitz

United States Attorney's Office

United States

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