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June 11, 2012

Judge Posner in fine form discussing federal guidelines' Aggravating Role enhancements

Though the decision by a Seventh Circuit panel today in US v. Figueroa, No. 11-2594 (7th Cir. June 11, 2012) (available here) does not break any new ground, Judge Richard Posner's opinion for the court makes it a must-read.   Figueroa is concerned with how to interpret and apply the federal sentencing guidelines' Aggravating Role enhancements, and here is a taste of some of Judge Posner's prose to whet the appetite:

Economy of words is not a defining characteristic of lawyers, including the lawyers who drafted the sentencing guidelines and application notes and the lawyers and judges who have drawn on the seven factors in Application Note 4 to help determine who is a “supervisor.”...

In a tiny enterprise, neither extensive nor “otherwise extensive,” the four roles — organizer, leader, manager, supervisor — are unlikely to be differentiated.  There is likely to be one boss, and it doesn’t matter what one calls him.  But in a substantial enterprise, organized as substantial enterprises legal or criminal usually are — that is, hierarchically — there will be organizer-leaders (the guidelines do not distinguish between those two designations) and manager-supervisors (again not distinguished, and in fact not distinguishable on any ground that we can relate to sentencing policy) intermediate between the organizer-leaders and the rank and file.  Application Note 4 relates only to the organizer-leaders; we cannot see what guidance it provides to determining whether a participant who is neither a boss nor a grunt is a manager or (the same thing, just a different word) a supervisor.  When the question is not whether the defendant is a leader or organizer, but instead a manager or supervisor in a hierarchical organization (hence a “middle manager”), there is no need to sweat over the terms “manager” or “supervisor”....

If a judge, a probation officer, a lawyer, even a defendant, doesn’t know what a “manager” or “supervisor” is, Application Note 4 isn’t going to help him — especially since it’s about organizers and leaders and not middle managers and low-level supervisors, as the cases, hungry for text to hang a decision on, are reluctant to acknowledge.  So we won’t try the reader’s patience with a trip to the dictionary, where we would find other unhelpful synonyms for “supervisor,” such as one who “oversees,” or unhelpful periphrases such as “to coordinate, direct, and inspect continuously and at first hand [in order] to accomplish” some objective.

June 11, 2012 at 02:15 PM | Permalink


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thanks for article "udge Posner in fine form discussing federal guidelines' Aggravating Role enhancements" i like this article

Posted by: berita menarik | Sep 15, 2012 2:12:20 AM

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