Struggle for Constitutional Sentencing after Booker

In United States v. Booker, 543 U.S. 220 (2005), the Supreme Court held that judicial determinations of fact not found by a jury or admitted by the defendant to increase sentences under the Federal Sentencing Guidelines violated the Sixth Amendment. As a remedy, the Court excised 18 U.S.C. § 3553(b), which created a presumption in favor of the guideline range (“the court shall . . . unless the court finds . . .”), and excised 18 U.S.C. § 3742(e), which was designed to enforce the guidelines (by requiring de novo review of the factual basis, legal basis and extent of any departure, while reviewing within guideline sentences for correctness). The Court made § 3553(a) the governing sentencing law, thus rendering the guidelines “advisory,” and prescribed a unitary standard of review “ unreasonableness” with regard to § 3553(a) for all sentences within or outside the guideline range.

Eighteen months later, seven courts of appeals say the guidelines are presumptively reasonable on appeal. While purporting to apply an abuse of discretion standard to belowguideline sentences, this review is virtually equivalent to de novo. District court judges within these circuits, and even some in circuits that have rejected this view, apply a presumption at sentencing, while finding the facts by a mere preponderance of the “probably accurate” hearsay. In short, federal defendants continue to be sentenced in violation of their constitutional rights.

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