Rebellion: The Courts of Appeals' Latest Anti-Booker Backlash

22 Pages Posted: 23 Aug 2014 Last revised: 28 Jan 2015

Alison Siegler

University of Chicago Law School

Date Written: August 1, 2014

Abstract

For over twenty-five years, federal courts of appeals have rebelled against every Supreme Court mandate that weakens the United States Sentencing Guidelines. Since the Court made the Guidelines advisory in United States v Booker, the rebellion has intensified, with the appellate courts consistently ensuring adherence to the Guidelines by over-policing sentences that fall outside the Guidelines and under-policing within-Guidelines sentences. The courts of appeals are now staging a new revolt, creating appellate rules — carve-outs — that enable them to reject meritorious challenges to within-Guidelines sentences.

Part I describes the previous rebellions. Part II introduces the current rebellion. Part II.A discusses what I term the “stock carve-out,” an appellate rule that violates the sentencing statute and the Sixth Amendment by allowing sentencing judges to ignore mitigating arguments regarding defendants’ personal characteristics. Part II.B discusses the “§ 3553(a)(6) carve-out,” a rule that similarly violates the statute and precedent by allowing sentencing judges to ignore disparity arguments. Part III concludes.

Suggested Citation

Siegler, Alison, Rebellion: The Courts of Appeals' Latest Anti-Booker Backlash (August 1, 2014). University of Chicago Law Review, Vol. 82, 2015, Forthcoming. Available at SSRN: https://ssrn.com/abstract=2484762

Alison Siegler (Contact Author)

University of Chicago Law School ( email )

1111 E. 60th St.
Chicago, IL 60637
United States

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