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January 21, 2005
Are the FSG still mandatory in child crime and sex offense cases?
The Feeney Amendment to the PROTECT Act was most well-known for its various general restrictions on departure authority. However, this 2003 statue also created a special separate provision of 18 USC 3553(b) — specifically 18 USC 3553(b)(2) (see highlighted changes here) — to provide an even more rigid departure standard for child crimes and sex offenses.
A crackerjack reader (who is a federal judicial law clerk) wrote to me to note that the Booker remedial majority never mentions 18 USC 3553(b)(2) — which distinctly mandates that judges follow the guidelines for child crimes and sex offenses — in its discussion of excising 18 USC 3553(b)(1) to make the guidelines advisory. Based on this fact, and other language in Justice Breyer's opinion, this reader suggests the federal guidelines are still mandatory (and must be subject to Blakely-ization for any upward enhancements) for all child crimes and sex offenses covered by 18 USC 3553(b)(2). The reader's full thoughtful argument on this matter is set out in a document which can be downloaded below.
Technically, because neither Booker or Fanfan involved a child crime or sex offense, I am not sure Booker in any way resolves the status of 18 USC 3553(b)(2). In turn, then, I am not sure what judges should do when sentencing a child crime or sex offense (perhaps run their own severability analysis guided by Booker). I am sure that this law clerk has spotlighted a problematic aspect (oversight?) in the Booker remedy opinion. Readers litigating or adjudicating child crimes and sex offenses should be sure to consider (and comment upon) the analysis here:
Download still_mandatory_for_childsex_crimes.doc
January 21, 2005 at 02:35 AM | Permalink
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Comments
The idea that 3553(b)(2) is still viable does not hold up. Booker's failure to refer to it is appears to be nothing other than a careless oversight. The Breyer opinion does not include it in the list of statutory sections that follows his statement that "most of the statute is perfectly valid." It is simply not mentioned at all. It makes one wonder whether the law clerk who drafted the opinion was using the 2003 (pre-Feeney) edition of the code. At the same time, the Breyer opinion describes its remedy, more generally, in at least three different places as inconsistent with continued viability of 3553(b)(2). First, he says "the remainder of the Act" functions without "the 'mandatory' provision," requiring judges to "take account of the Guidelines" without being bound by them. Second, the district courts, "while not bound to apply the Guidelines," must consult them instead. Finally, while Congress "intended to create a form of mandatory Guidelines . . ., given today's Constitutional ruling, that is not a choice that remains open," thus slamming the door on the argument. Continued viability of 3553(b)(2) cannot be squared with these statements. However, should any district judge find otherwise, both the Stevens and Breyer majority opinions make clear that failure also to apply the jury and beyond a reasonable doubt requirements would violate Blakely.
Posted by: Mark Weintraub | Jan 21, 2005 12:31:08 PM
