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November 15, 2005

More on Judge Posner's Booker work in Cunningham

I noted in this post some flaws in Judge Posner's important work for the Seventh Circuit in Cunningham (first discussed here), where a post-Booker guideline sentence was vacated for "inadequate explanation."   My FSR colleague Professor Steve Chanenson has spotlighted another concern with the opinion in Cunningham: the mysterious decision not to cite 18 U.S.C. 3553(c)

Section 3553(c) provides, inter alia, that the court, "at the time of sentencing, shall state in open court the reasons for its imposition of the particular sentence."  Steve in an e-mail made this astute observation about Cunningham: "It seems as though 3553(c) could have done much of the heavy lifting for the Cunningham court while actually grounding the opinion in the SRA and reducing the opaque prose."  (Steve's valuable insights flow from his examination of appellate review in his recent Stanford Law Review article, Guidance from Above and Beyond.) 

November 15, 2005 at 01:20 AM | Permalink


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The D.C. Circuit heard argument yesterday in U.S. v. Gillespie, and the three judges on the panel (Sentelle, Randolph, and Rogers) focused on the extent to which 3553(c) survives Booker and, if it does, what role it should play in the post-Booker world. The judges seemed inclined to accept the government's argument that 3553(c) and a mandatory guidelines regime went hand-in-hand and that the provision cannot be read as requiring the district court to proceed down the list of factors in 3553(a) and to elaborate on which of those factors form the basis for the sentencing decision.

As Professor Berman has mentioned often, the D.C. Circuit hasn't done much heavy lifting in the post-Booker landscape, but perhaps the panel's opinion in Gillespie--which also deals with alternate sentences--will make up for lost time.

Posted by: LT | Nov 15, 2005 3:28:27 PM

Thanks for the interesting and informative report, LT.

Posted by: Doug B. | Nov 15, 2005 4:16:01 PM

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