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March 23, 2005

Post-Booker above-range sentences

One of the many interesting stories in the early post-Booker statistics coming from US Sentencing Commission — which can be accessed from the USSC and which I hope will be updated soon [UPDATE: the new data is now available at this link] — concerns the number of above-guideline sentences being imposed post-Booker.  Historically, as reflected in this USSC chart of departure rates from 1998 to 2002, less than 1% of all sentences involved upward departures.  But the early post-Booker statistics show a marked increase in above-guideline sentences (although they still comprise only just over 2% of the total cases).

As I spotlighted in posts here and here, there is a serious question whether due process/ex post facto principles permit a post-Booker sentence increase above the applicable guidelines range based on pre-Booker conduct.  (Notably, Judge Goodwin in his fantastic opinion in Gray, which provides the most thoughtful post-Booker account of due process/ex post facto issues, expressly declined "to reach the question of whether there would be ex post facto implications had this court sentenced the defendants to a term of imprisonment above their individual advisory Guideline ranges.")  I wonder if due process/ex post facto issues are being raised in all the cases in which above-guideline sentences are being imposed post-Booker and also whether these sentences will be appealed.

Providing anecdotal insights on this phenomenon, I noticed this morning two newspaper accounts of federal sentencings in which the defendant apparently received significant above-guideline sentences.  This article from Louisiana reports on a sentence of 114 months in an assault case in which the guideline range was reportedly 46-57 months, and this article from New Jersey reports on a sentence of 90 months in an immigration case in which the guideline range was reportedly 51-71 months.  The articles are not entirely clear as to whether these sentences involved upward departures or upward variances (or maybe even a recalculated guideline range), but they both spotlight another interesting aspect of the new post-Booker federal sentencing world.

March 23, 2005 at 11:10 AM | Permalink


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