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March 3, 2005

Judge Gertner speaks on Booker!

This morning I noted here that there had been surprisingly few major district court Booker rulings of late.  Thus, it is perhaps fitting that today, in addition to the potent work of Judge Adelman in Smith on on crack/powder issues (basics here), we now get Massachusetts US District Judge Nancy Gertner's insights on the post-Booker sentencing world.  In US v. Jaber, No. 02-CR-10201-NG (D. Mass. Mar. 3, 2005), which can be downloaded below, Judge Gertner details at length — 39 pages, in fact — her view of "the applicable legal framework [for sentencing] in light of United States v. Booker."

Based on a very quick overview, Jaber appears to be another tour-de-force from a judge who has already earned her place in my Hall of Fame.  Here are a few introductory highlights from today's second must-read district court opinion:

[A]n "advisory" regime makes it all the more important that I adhere to my practice of writing opinions, outlining the reasons for the sentences I have imposed.  As I describe in greater detail below, "advisory" does not mean a regime without rules, or a return to the standardless sentencing which preceded the SRA.  Nor does it mean slavish application of the Guidelines under the guise of fair "consideration," an approach which is now unconstitutional.  "Advisory" means something in-between.

Download gertner_jabarmomohsentenmemo.pdf

March 3, 2005 at 05:57 PM | Permalink


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Jaber gives us another example of a situation where - as this Blog noted on Feb. 5 - "following the guidelines may itself produce disparities." In her opinion, Judge Gertner observes the irony in that "some adjustment [from the Guideline range] is essential to reduce unwarranted disparity in the case at bar." Jaber at 34-35. When compared to the sentence of Abu-Lawi (another member of the conspiracy who played a larger role than Jaber), Judge Gertner judiciously lists 3 reasons why the following Guidelines would cause sentencing disparity in this case: "the happenstance of the way the government indicted, the jurisdictions of indictment, and who ran to cooperate first." Note also that Jaber is a first time offender.

It appears that not sentencing Jaber within the Guidelines furthers the goal of uniform sentencing, relative to Abu-Lawi. Relative to the sentence of other offenders not involved in this case, however, Jaber’s sentence may not further the goal of uniform sentencing. Noticing this distinction, the question becomes: should uniformity be determined by looking at the sentences of co-defendants/others involved in the case at bar, or looking at all sentences for that crime generally? The former appears to allow for a more exact evaluation of uniformity, and more accurately achieves the goal of §3553(a)(6).

Therefore, in determining the appropriate sentence for an offender post-Booker, judges should (when possible) look to sentences given to other offenders for conduct that occurred in the same case. This should occur regardless of whether or not the other offenders were sentenced by the same judge or in the same District.

Posted by: DEJ | Mar 4, 2005 10:08:33 AM

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