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September 12, 2004

Head-counting in an alternative universe

Judge Wilkins majority's opinion for the Fourth Circuit in Hammoud (available here and commentary here) includes a brief explanation for the Circuit's recommendation that district judges "announce, at the time of sentencing, a sentence pursuant to 18 U.S.C.A. § 3553(a), treating the guidelines as advisory only." This explanation helps me understand a bit better why a majority of the Fourth Circuit believes that "announcing — not imposing — a non-guidelines sentence at the time of sentencing will serve judicial economy," even though the court recognizes that the "announcement of a non-guidelines sentence may require the district court to consider issues not generally pertinent in guidelines sentencing, thereby requiring the investment of additional time at the sentencing hearing."

But, like other aspects of the Hammoud decision, the alternative sentencing explanation leaves me with more questions than answers. First, in light of the Fourth Circuit's recommendation, shouldn't the disposition of the Hammoud case been a remand for the announcement of an alternative sentence? Wouldn't it be useful, to paraphrase the Fourth Circuit, for "the district court and the parties [to make] at least substantial progress toward the determination of a non-guidelines sentence [in Hammoud's case], at a time when the facts and circumstances [are still] clearly in mind"?

Second, Judge Widener's dissent to the "alternative sentence" portion of the Hammoud ruling asserts that "even if the recommended advisory sentencing is discretionary, about which I have some doubt, in my opinion, it is inadvisable." This statement and the majority's discussion raises, but does not answer, the question of whether district courts may lawfully refuse to follow the alternative sentencing recommendation. May Judge Goodwin continue to refuse to impose alternative sentences (as thoughtfully explained here), or must he now get in line? The Hammoud majority's oblique footnote addressing Judge Goodwin's serious concerns about alternative sentencing does not answer this question. And since Ron reported here that most district judges in the Fourth Circuit have not been announcing alternative sentences, this is a question that may be on the minds of many district judges in the Fourth Circuit.

Finally, I have a distinct empirical/practical question: Is anyone keeping track of how many and what sorts of alternative sentences have been announced in the Fourth Circuit and elsewhere after Blakely? I hope and expect the US Sentencing Commission is collecting this data, and the recent memo from the Judicial Conference Criminal Law Committee discussed here suggests that the federal Bureau of Prisons might also be tracking these issues. Recall also that DOJ through the Comey memo (available here) urged its prosecutors to seek alternative sentences and indicated it would be collecting lots of data during this chaotic period.

Whomever may be keeping track of alternative sentencing data, I sincerely hope that this data can be systematically tallied and made available to the public as soon as possible. I think I can fairly speak for the academic and research community when I say that many academics and researchers will have an interest in examining and analyzing alternative sentencing data.

September 12, 2004 at 04:32 PM | Permalink


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Thank you Professor Berman for the extremely helpful information you have been providing me over the months. I was sentenced on July 12 and received 2 sentences. the second outside the guidelines was more than the first because under the guidelines the judge did not allow the 2 points for obstruction that the US Attorney wanted. However he did agree with every other enhanhancement...You can look me up under the District Court of New Jersey. I know your busy but the trial and the sentencing was a real travesty.. Maybe you could help. Dan

Posted by: Daniel Antolini III | Sep 12, 2004 6:47:35 PM

Dear Professor Berman, I can tell you that I keep up with your blog every day and print your weekly for my inmate son who uses it constainly. This blog is the best on the web for info on min. sentencing. I have to print the weekly and send to my son but your blog does not print the full line of your article it narrows the article to the middle of the page which requires many more pages to print. Would you please check to see if you can make a printer friendly page. This memo is too long but you can be informed that we on the internet, trying to find answers to our problems are very appreciative of your efforts and please keep up the good work. Regards FRED

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