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February 7, 2007

More fine and fun Booker work from Judge Posner

For the second time this week, Judge Posner expounds on post-Booker sentencing and provides a lot of ideas to chew on.  Today's work comes in US v. Spano, No. 06-1562 (7th Cir. Feb. 7, 2007) (available here), and here is one of a number of notable flourishes:

Departures were an essential safety hatch in the pre-Booker world because the guidelines were mandatory then, so that every sentence (except statutory maximum and minimum sentences) had to be fitted into the guidelines scheme.  With the guidelines advisory, the departure safety hatch, constrained as it was by the requirement that departures be consistent with the structure of the guidelines, e.g., United States v. Castro-Juarez, 425 F.3d 430, 434 (7th Cir. 2005), is a superfluous way station en route to application of the more capacious statutory sentencing factors.  In short, "after Booker, which rendered the Guidelines advisory, departures have become obsolete." United States v. Blue, 453 F.3d 948, 952 (7th Cir. 2006).

UPDATE:  Judge Posner in Spano make an interesting point when discussing why departure analysis is inappropriate after Booker: he says traditional departure criteria "deflect the sentencing judge from consideration of the statutory sentencing factors."  I am not sure this is necessarily true in all cases, but it does describe some circuit court behavior after Booker when variances are sometimes criticized and reversed based on the guidelines' discussion of departure issues.

February 7, 2007 at 04:01 PM | Permalink


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