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March 21, 2017

Senate confirms two (holdover) nominees to US Sentencing Commission!!

Federal sentencing fans should be excited to hear that the full US Senate has now confirmed Judges Charles Breyer and Danny Reeves to be members of the United States Sentencing Commission.   (And, proving that somethings can still get done in a bipartisan manner inside the Beltway, this Senate reporting webpage indicates that the confirmation vote was unanimous.)  As previously noted, the original nominations of Judges Breyer and Reeves back in 2016 got stalled last Congress, but then outgoing Prez Obama thereafter renominated them for the US Sentencing Commission in January after the new Congress got to work.  I had been pessimistic about the prospects of these holdover nominees getting a hearing and a vote, but my pessimism was obviously misguided.  

Of particular importance, with Judges Breyer and Reeves now having been confirmed as full voting members of the US Sentencing Commission, they join Acting Chair Judge Bill Pryor and Commissioner Rachel Barkow to form a quorum on the USSC.  The Commission needs seven voting members to be fully staffed, but four members are sufficient to get stuff done if they all vote together on amendments and other action items.  Though it is not ideal for the USSC to have only four Commissioners rather than the full seven, it is literally "good enough for government work" and thus presents the possibility that the USSC can and will be more than just an effective research agency this year. 

As previously flagged here and now highlighted here at the USSC website, the Commission promulgated some notable proposed amendments in late 2016 when it still had a nearly full compliment of Commissioners.  Those proposed amendments have generated a whole lots of public comment, and I think they could prove to be quite consequential if formally passed in the coming months.  (A USSC hearing on the amendments is now scheduled for April 18.)  So, if the two new Commissioners agree to move forward with some form of the amendments promulgated late last year (which seems likely, especially because Judge Breyer was on the USSC during their development), it is now quite possible that the first big tangible federal sentencing development of the "Trump era" could involve significant federal sentencing guideline amendments.

March 21, 2017 at 05:16 PM | Permalink



Do you have any thoughts on this case from Religion Clause?


The court upheld an enhanced sentence in part because the criminal's behavior inflicted a "spiritual injury" on the victims. I've never heard of a court finding that a "spiritual injury" is a legally cognizable harm.

Posted by: Daniel | Mar 21, 2017 5:44:42 PM

I gather that's Justice Breyer's brother. Will that matter? Will he recuse in some major case?

Posted by: Joe | Mar 21, 2017 6:06:38 PM

Judge Charles Breyer is indeed Justice Breyer's younger brother. Judge Breyer has been on the Commission for some years already. To my knowledge, Justice Breyer has never recused himself because his brother is a Commissioner. (I do know that Justice Breyer has recused himself before when Judge Breyer was the district court judge in a particular case.)

Posted by: Anon | Mar 21, 2017 6:25:37 PM

Justice Breyer was once a Commissioner and I don't believe he recused himself from anything involving the Commission.

Posted by: Anon2 | Mar 21, 2017 6:53:51 PM

Joe and anons: Justice Breyer was an original Commissioner and consulted an ethics expert/prof before the Booker case and decided, obviously, that he did not need to recuse. And because his brother is now just one of multiple votes on USSC, I suspect Justice Breyer does not see a significant conflict in cases that involve guideline issues (which are actually pretty rare).

Daniel: the 7th Circuit case referenced (Minhas) did not exactly find "spiritual injury" is a legally cognizable harm. Rather, it upheld a trial court decision to apply a guideline enhancement focused on the harm of a fraud which involved scamming folks out of travel monies devoted to making a religious pilgrimage. I see a reasonable basis for a court to conclude that a travel fraud can be considered worse/aggravated by a sentencing judge if it prevents the faithful from going to Jerusalem rather than just preventing fun-lovers from going to the Jersey Shore.

Posted by: Doug B. | Mar 22, 2017 10:24:07 AM


Posted by: Joe | Mar 22, 2017 12:37:53 PM

Hello, very interesting blog. I stumbled across it while I was doing some research for Legal Writing class - Argumentative Thesis on why a different set of Guidelines are needed for "certain" Women Sex-offenders. So, last night I dissected the Federal Sentencing Guidelines, page by page and I'm sorry women do not have a.)the GENETELIA 2.)the uncontrollable sexual psychopathic tendencies to commit some of these acts. period.
So, before the Senate rules on a new proposed Bill 695 on April 18th I need to try and get something passed for separate sentences, unless the crime fit.
I am going to be 50 yrs old but took a plea (which now I know I should have fought my case) for having sex with a neighbor kid when he came on to me at a time when my husband and I were separated. The boy was 14 and I was 24- that was 25 yrs ago and it's been debilitating and I get s angry I am put into the same "pool" as those who really are unforgiving, mentally disturbed and a true predator when it comes to "Children."
I am will become a certified Paralegal this year as I hope to make a difference and need this to be behind me already.
Anyway, this is a great website, liked your article, keep up the good work and wish me luck.
Lisa in Los Angeles

Posted by: LISA V. | Mar 24, 2017 10:31:24 PM

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