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February 3, 2010

Notable student note on preserving sentencing objections after Booker

Anyone who struggles to make sense of sound sentencing procedures after Booker will want to check out this new student note in the Vanderbilt Law Review, which is titled "'Objection: Your Honor Is Being Unreasonable!' — Law and Policy Opposing the Federal Sentencing Order Objection Requirement."  Here is a section of the Note's introduction:

This Note argues that the requirement to object to a judge’s sentencing order should be abolished for two fundamental reasons.  First, the policy arguments against the requirement are stronger: requiring objections (1) promotes frivolous redundancy, (2) creates a procedural pitfall which could result in unfairly higher sentences, (3) works against judicial economy by leading to collateral claims of ineffective assistance of counsel, and (4) is ultimately unnecessary because prevailing parties already have incentive to perfect the record themselves.  Second, and more importantly, the sentencing order objection requirement contradicts Federal Criminal Rules of Procedure 51(a) and (b), the provisions governing the preservation of claimed error.

February 3, 2010 at 06:41 PM | Permalink


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Anyone who wants to write seriously about what sorts of objections should be required or not during sentencing should conduct most of their research by either conducting (or at least attending) as many sentencings as possible. The note's interesting, but I can't help but wonder how it would be if it was grounded in actual experience rather than just in reading about actual experience. That's a flaw of many student notes of course, but in the area of objection and forfeiture, you just can't substitute for practical experience.

Posted by: DM | Feb 3, 2010 9:23:24 PM


If one is going to object regarding the objection made to objections it would behoove you to explain the reason for your objection. As you so carefully note, practical experience is an objection that can be raised to any student note, almost by definition. So why is the practical experience an objection of note when one is objecting to objections.

Posted by: Daniel | Feb 3, 2010 10:31:11 PM

United States v. Lynn

Posted by: Stu | Feb 4, 2010 7:38:36 AM

"... promotes frivolous redundancy"

As opposed to non-frivolous redundancy.

Posted by: Bill Otis | Feb 4, 2010 11:13:20 AM

Yes, Bill, as opposed to "non-frivolous redundancy." As explained in the note, see e.g. Part III.A., there used to be a requirement for redundant objections, but such redundant objections were not frivolous because they assisted in effective review of cases. Due to changes in technology, the redundant objection (which was previously necessary) is now frivolous.

Posted by: anon | Feb 4, 2010 12:40:49 PM

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