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February 2, 2005

Hearing the sweet sounds of Booker

Right after Booker was handed down, I joked in this post that Justice Ginsburg must have been listening to The Who in chambers because the lyrics to Won't Get Fooled Again captured the essence of the Booker decision.  Picking up the musical theme, Marc Fernich and Debra Karlstein ask at the outset of their review of Booker developments whether Booker is "David Byrne's 'same as it ever was'? Or Bob Dylan's 'revolution in the air'?"

The (iPod-inspired) article by Fernich and Karlstein is formally entitled "United States v. Booker: Miracle or Mirage?" and it is available for download below.  The article provides not only an overview of Booker basics, but also an amazingly up-to-the minute review of all the post-Booker federal court rulings.  (Even today's 7th Circuit's decision on retroactivity is included.)  As the authors explain, the article "explores some of Booker's conflicting legal implications and offers tips for effectively negotiating them."

Download fernichkarlstein_booker_article.pdf

UPDATE: Marc Fernich and Debra Karlstein have delivered an updated version of their piece incorporating some of the latest cases through Feb. 3.  Here it is:

Download latest_fernch_booker_article.rtf

February 2, 2005 at 03:48 PM | Permalink


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Except for the mischaracterization of the merits majority holding: it found the SRA unconstitutional as applied, not on its face. The Fernich/Karlstein article is an excellent primer. The argument that they, as well as others, make on the ex post facto impact is intriguing and should carry the day in the event that the sentencing court attempts to impose a sentence in excess of that which it could have imposed under mandatory Guidelines.
On the other hand, the BRD and retroactive (also BRD based) arguments are probably doomed to failure unless (and at least until) SCOTUS overrules United States v. Watts.

Posted by: Thomas J. Yerbich | Feb 2, 2005 6:40:52 PM

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