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December 2, 2005

Critical dicta(?) for post-Booker appellate review

A sharp reader spotted that the 11th Circuit's decision today in Talley (discussed here) has some very important dicta(?) on a key post-Booker issue that I believe is being litigated in a number of circuits.  Talley says that "either a defendant or the government can appeal a sentence within the Guidelines range and argue that it is unreasonable."  However, I believe DOJ has been arguing in a number of circuits that, under the strict terms of 18 USC 3742, appellate courts lack jurisdiction to review a within-guideline sentence.

I surmise from the 11th Circuit's opinion that this important jurisdiction issue was not fully briefed in Talley.  But it now appears to have been implicitly decided.  I thus return again to the point made in this post: reasonableness review, by producing and perpetuating doctrinal confusion, may end up increasing rather than decreasing sentencing disparities in the wake of Booker.

December 2, 2005 at 04:25 PM | Permalink


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The Booker remedial majority might agree with your assessment that "reasonableness" may increase sentencing disparity. See Booker, 125 S.Ct. 738, 766-67 ("We cannot and do not claim that use of a 'reasonableness' standard will provide the uniformity that Congress originally sought to secure."). But, of course, this is the system that "more closely" fits with "Congress' original objective." Perhaps, given the "strict terms of 18 USC 3742," Congress also would have intended for defendndants to not be able to appeal a within the Guideline sentence. After all, couldn't the remedial Booker Court just as easily excised this statue as well?

But if this is the case, then how advisory are the Guidelines really?

Posted by: DEJ | Dec 2, 2005 6:01:31 PM

To the extent Prof. Berman's comment above (presumably unintentionally) suggests that courts of appeal do not have jurisdiction to review within-guidelines sentences, readers should note that in Booker, the remedial majority said that "despite the absence of § 3553(b)(1), the Act continues to provide for appeals from sentencing decisions (irrespective of whether the trial judge sentences within or outside the Guidelines range in the exercise of his discretionary power under § 3553(a))." Booker, 125 S. Ct. at 765. The Court then cited "§ 3742(a) (appeal by defendant); 3742(b) (appeal by Government)." Section 3742(a) and (b) each provide for appeals of sentences "imposed in violation of law" and sentences "imposed as a result of an incorrect application of the sentencing guidelines." A sentence imposed without regard for 3553(a) factors present in the case other than the guidelines certainly is "in violation of law" and arguably is "an incorrect application of the [advisory] guidelines."

Posted by: abe | Dec 4, 2005 9:48:18 AM

To clear up any unintentional suggestions, I personally believe that, after Booker, there is appellate jurisdiction to review properly calculated within-guideline sentences. But, as I tried to make clear in my post, I also believe that DOJ views this important issues as live,and it is litigating this issue in a number of circuits.

Posted by: Doug B. | Dec 5, 2005 12:49:08 PM

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