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November 9, 2005

Another interesting alternative sentence opinion

Tuesday was a big day for interesting circuit rulings on how to deal with alternative sentences announced during the Blakely-Booker interregnum.  In addition to the DC Circuit's notable ruling in Ayers (discussed here), yesterday also brought US vs. Adair, No. 04-30859 (5th Cir. Nov. 8, 2005) (available here).  In Adair, the district judge imposed a sentence of 240 months under the guidelines, but also announced an alternative sentence of 51 months if Blakely rendered the guidelines unconstitutional.  In a thorough and thoughtful opinion, the Fifth Circuit in Adair explains why it should remand for resentencing, rather than just impose the alternative sentence.

All this recent alternative sentencing action has me wondering again whether the US Sentencing Commission or anyone else has comprehensive data on the number and nature of alternative sentences announced during the Blakely-Booker interregnum.  Such data ought to be rich with lessons not only about judicial perceptions of the federal sentencing guidelines, but also about how lower court judges respond to and cope with significant legal uncertainty.

November 9, 2005 at 01:23 PM | Permalink


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In its own way, the Fifth Circuit makes clear here what is most important in these "alternative sentence" cases -- the question whether the judge, in announcing that "alternative sentence," was premising it on a correct prediction of what the post-Booker legal framework would be. Of course, almost none of them were. As a result, almost no "alternative sentence" can properly stand (except as a cap) without a remand for reconsideration.

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