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May 2, 2005

Same as it ever was...

With a hat tip to David Byrne, today's decision by 11th Circuit in US v. Crawford, No. 03-15136 (11th Cir. May 2, 2005) (available here), has me humming a Booker tweaked version of one of my favorite Talking Heads songs:

And you may ask yourself, How does Booker work?
And you may ask yourself, Where is that large Booker change?
And you may tell yourself, This is not a beautiful new sentencing system!
And you may tell yourself, This is not a beautiful new sentencing world!

Letting the Booker days go by / Let the caselaw hold me down
Letting the Booker days go by / Caselaw flowing underground...

Same as it ever was...Same as it ever was...Same as it ever was... Same as it ever was...Same as it ever was...Same as it ever was... Same as it ever was...Same as it ever was...

Peter Henning at the White Collar Crim Prof Blog here provides the details of Crawford.  The most consequential aspect of Crawford is the 11th Circuit's conclusion, in line with the 8th Circuit Mathijssen ruling earlier today, that "as was the case before Booker, the district court must calculate the Guidelines range accurately" and "Booker does not alter our [pre-Booker standards for] review of the application of the Guidelines."  And, gosh, does post-Booker review look like pre-Booker review in Crawford: the 11th Circuit remands for resentencing by holding that the district court erred in failing to apply an upward enhancement and in deciding to depart downward based on a combination of factors.

Folks inspired by this post to Booker-ize their I-Pods should also be sure to harken back to a prior post entitled Songs in the key of 3553.

May 2, 2005 at 04:29 PM | Permalink

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Comments

What I took away from the opinion as the problem was that the district court departed *within* the guidelines, rather than finding the sentencing guideline range as normal, and then imposing a lower sentence based on the factors under 3553.

The 11th Cir. still might have found that to be an unreasonable sentence, but it would have avoided the guidelines issue, and placed the district court on firmer footing.

So I wouldn't agree that it's same as it ever was. It's just that the district court took the wrong opening. Perhaps we should be humming some Robert Palmer?

We know you
Were expecting to have a free hand
When we refused,
We knew you wouldn't understand.

We told you twice,
You still have to use the guidelines,
Have to use the guidelines,
Ooooh, We didn't mean to turn you on...

Posted by: Guest | May 3, 2005 10:19:49 AM

I'm disappointed, Prof. Berman, that you didn't complete the last two phrases of the chorus:


Into the districts again/after SCOTUS is gone
Once in a lifetime/Booker not breakin' any ground.

Posted by: District Clerk Battling Booker | May 3, 2005 11:40:50 AM

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