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March 9, 2009

Litigation advice for white-collar sentencing after Kimbrough

A helpful reader passed along (and got me permission to post) an effective little article about federal sentencing that was recently published in the ABA's Criminal Litigation.  The piece discusses the impact of Kimbrough, with an extra focus on white-collar sentencing issues.  Here's an abstract for the article, which can be downloaded below:

The line of sentencing cases from Booker to Kimbrough might seem to trace the slow death of the U.S. Sentencing Commission. This Article argues, however, that the opposite is true. Rather than slowly killing the Commission, these cases have actually restored it to a new level of primacy, one more free from Congressional influence than ever before.

This turn of events has great practical importance. It means that today, the best way to achieve a below-guidelines sentence, may be to argue that the guideline at issue is not the product of the Commission's informed, expert judgment, but rather of Congress's meddling.  This line-of-attack has already been used to obtain lower sentences for a broad range of offenses, from weapons possession to child pornography.  And, as this Article outlines, it is primed for use against white-collar sentencing guidelines, which, at Congress's direction, have produced particularly harsh sentences over the past decade.

Download ABA_Crim_Lit_Article on white collar after Kimbrough

March 9, 2009 at 08:36 PM | Permalink

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Comments

The notion that a sentence produced by a Guideline should receive less deference because it is congressionally mandated, as opposed to the product of careful Sentencing Commission empirical study, is ass backwards. CONGRESS is the ultimate authority on sentencing.

Posted by: Da Man | Mar 11, 2009 8:36:12 PM

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