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August 30, 2006

Judge Adelman in fine Booker form

I always get a blast of post-Booker encouragement from the sentencing work of Sentencing Hall of Famer Judge Lynn Adelman.  His latest great opinion US v. Cull, No. 05-CR-329 (E.D. Wis. Aug. 30, 2006) (available for download below), addresses thoughtfully the notion that a non-guideline sentence must be supported by factors unusual or unique to the defendant.  Here are some highlights (with cites omitted):

While I based this non-guideline sentence on the specific circumstances of the offense and the individual characteristics of the defendant, I note that there was nothing extraordinary about this case or this defendant.  He was not entitled to a departure under pre-Booker standards.  Further, some of the factors I relied upon (e.g., prior substance abuse, minimal record, non-violent offense) could possibly apply to other defendants, as well. Nevertheless, under Booker and § 3553(a), I was empowered to impose such a sentence.

There have been suggestions in some recent appellate decisions that a district court may not vary from the guidelines unless it finds some factor unusual or unique to the defendant warranting the variance.  It is difficult to see the basis for such a rule — which sounds very much like the old departure standard — in Booker or § 3553(a).   Moreover, such a rule improperly elevates the guidelines above the other factors set forth in § 3553(a).  In essence, it makes the guidelines the objective measure of the sentence, and disallows any other sentence unless the court is able to explain why the guideline sentence is wrong. The district courts' limited departure authority did not save the guidelines in Booker, and if appellate restriction of sentencing discretion continues such that the new system begins to resemble the old, another disruption may be in the offing.

Download adelman_cull_sen_memo.pdf

Prior posts with some of Judge Adelman's extraordinary post-Booker work:

August 30, 2006 at 06:06 PM | Permalink


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