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November 1, 2004

The new phone books — I mean guidelines — are here!

You have to be a fan of the Steve Martin classic "The Jerk" to fully appreciate the reference to one of my favorite movie quotes/sequences in the title of this post. However, you probably only need to have passing familiarity with the girth of the federal sentencing guidelines to understand a phone book analogy.

In any event, jokes aside, November 1, 2004 is the day the latest, greatest version of Federal Sentencing Guidelines Manual and Appendices become effective. Hot off the virtual presses, you can access various forms of the 2004 Federal Sentencing Guidelines Manual here. In addition, you can read all 154 pages of the "Reader-friendly" version of the 2004 Guideline Amendments here. I heartily encourage readers to use the comments to highlight any of the dozen 2004 amendments they believe are particularly important or noteworthy.

Of course, with the Booker and Fanfan iceberg approaching quickly, these pre-Blakely amendments may be just a slight rearranging of the deck chairs on the guidelines Titanic. But they still merit attention, if only out of respect for all the work that the US Sentencing Commission obviously put into these amendments.

November 1, 2004 at 11:52 AM | Permalink


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Ah yes, Guidelines day. In our chambers, that means actual, print copies. And like the phonebook, the smell of fresh printer's ink (and a fresh new world of possibilities) wafts through the air. But unlike The Jerk, I don't find my name (thankfully) in it--but will the Guidelines be my "special purpose"?

I digress. Among the amendements I find interesting are parts of amendments 664, which seem to resolve circuit splits regarding the "sadomasochistic" enhancement and prohibitions on computer use on supervised release. Regarding the S&M enhancement, the Commission posits that those people who are in possession of material protraying S&M content are strictly liable for that content, regardless of whether they requested or intended to possess material displaying that. To the extent that such possession is more deplorable than just "simple" possession of kiddie porn, I find it hard to punish individuals more if they unknowingly, unwillingly possessed "grosser" images. It seems like we're punishing the unlucky vs. the culpable. Adding enhancements for unknowing possession of S&M kiddie pics will not serve deterence purposes--either general or specific. But, in our quest to "crack down" on child sex offenders, in the PROTECT Act's desire to ratchet, ratchet, ratchet up penalties, I'm sure the commission could not take the "soft on crime" position of those liberal bastion circuits, the 5th and the 10th... (see p.60).

Also interesting is the new enhancement for possession of a destructive device if it is a man-portable air defense system, portable rocket, or missile. I understand that a mere two-level enhancement under 2k2.1 would not sufficiently reflect the seriousness of possessing a shoulder-fired anti-aircraft grenade, but seriously, is there a NEED for this enhancement? If there's more than one case to which this enhancement applies per year, and it's not terrorism related, I'm nervous. If it's as rare as I think it is, why not just allow upward departures to take care of it?

I haven't had the time to look through the amendments yet to see any potential problems the amendments may have caused, but I am sorely unimpressed by the retro-'70s burnt orange cover. Yuk.

But I have the Guidelines Manual for 2004. That's all I need. And the Appendix C supplements. The Manual, Appendix C and the Code, and that's all I need. And the decisions in Booker and Fanfan (which the Commission can just ignore for now). The Guidelines Manual, the Appendix, the Supreme Court decisions, and the SL&P blog. And that's all I need.

Posted by: District Clerk Battling Blakely | Nov 1, 2004 5:56:41 PM

Great additional "The Jerk" reference at theend DCBB.

You may be intrigued to hear that the burnt orange of the new Guidelines is to honor the University of Texas, the home state/school of Chair Judge Ricardo Hinojosa. And apparently the Chair himself had a say in that important decision. Hook 'em horns!

Posted by: Doug B. | Nov 1, 2004 7:54:58 PM

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