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January 11, 2007

Ninth Circuit resolves intriguing issue on Booker's reach

Though the decision likely won't impact many defendants, the Ninth Circuit today in US v. Hicks, No. 06-30193 (9th Cir. Jan 11, 2007) (available here), resolved an interesting little issue concerning Booker's reach:

In this appeal, we consider whether United States v. Booker's requirement that the district courts treat the United States Sentencing Guidelines as advisory applies to the resentencing of defendants pursuant to 18 U.S.C. § 3582(c).  We hold that it does.  Because the district court considered the Guidelines mandatory when resentencing appellant Aaron Hicks, we vacate his sentence and remand to the district court for further proceedings.

January 11, 2007 at 01:07 PM | Permalink


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If I'm reading this correctly, it means that any time a defendant is fortunate enough to get 3582 relief as to any part of his sentence, he will be resentenced de novo under the advisory Guidelines regime, as to his entire sentence.

Is that right?

Posted by: Matthew | Jan 11, 2007 2:07:17 PM

This case highlights the need for the USSC to at least acknowledge the existence of Booker and the advisory nature of the Guidelines in a future policy statement. It's remarkable that so long after Booker the USSC has yet to even mention Booker in the Guidelines (let alone the principle of increased judicial discretion), despite numerous other amendments to the Guidelines.

(And, as I alluded to in this comment, http://sentencing.typepad.com/sentencing_law_and_policy/2007/01/whats_the_ussc_.html, the Amicus Brief for the Federal Public and Community Defenders explains how the USSC’s inattention to Booker may be consequential to the outcome in Rita/Claiborne. See Amicus Brief at 3.).

Posted by: DEJ | Jan 11, 2007 4:43:20 PM

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