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February 24, 2006

Pho shame and a test for DOJ (or DOP)?

As my commentary here highlights, I cannot quite believe the crack(ed) opinion by the Fourth Circuit today in Eura.  One reason for my aggravation is because, on the facts, Eura seems to go beyond the seemingly similar, but much more nuanced, ruling by the First Circuit in Pho.

I have linked below my commentary on Pho.  Though I still believe Pho was wrongly decided, I explained here that the decision was not too mischievous because it still recognized district judges' critical (and constitutionally necessary) post-Booker authority to refuse to follow the crack guidelines as long as that decision is "individualized."  In Eura, the district court apparently stressed that he was making an "individual" judgment in "this instance."  That likely would and should be enough even for the Pho court, but it was not enough for the Fourth Circuit panel in Eura.

Though perhaps I am over-reacting (and I encourage commentors to calm me down if I am), I view Eura as an interesting test of whether DOJ is really a Department of Justice or a Department of Prosecutors.  As explained here, Eura as written seems to subvert Congress' explicit text in 3553(a) and also the constitutional holding in Booker.  Though I am sure prosecutors are happy with the outcome, anyone truly concerned about justice might at least want the Fourth Circuit to tweak some of the problematic aspects of the ruling in Eura.

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February 24, 2006 at 04:54 PM | Permalink


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This is an attempt to lock the district courts to the guidelines under the guise of disparity of sentences. If a non guideline sentence becomes ip so facto a one that violates 3553
a(6), the guidelines then become de facto mandatory.
The moral of the story is that a district court must not take issue with the guidelines but come up with their own 3553 factors which
warrant a departure and leave the advisory guidelines to the sentencing commission.

Posted by: Ronald Richards | Feb 24, 2006 6:49:40 PM


Posted by: SEATON | Feb 25, 2006 1:21:38 PM

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