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May 10, 2007

Will Claiborne or Rita address the status of "traditional" departures?

As I noted here last year, there is a consequential circuit split over the status of "traditional" departures after Booker.  The Seventh Circuit pioneered the notion that "traditional" departures are obsolete after Booker, and the Ninth Circuit has echoed this sentiment.  But most other circuits (and the Sentencing Commission) have expressly called for district courts to conduct a "traditional" departure analysis before considering 3553(a) factors.

Today the Seventh Circuit in US v. Simmons, No. 06-3894 (7th Cir. May 10, 2007) (available here), reiterates its view that a district court errs by granting a traditional departure (although this error is deemed harmless in Simmons).   Technically, neither or Claiborne or Rita raises a departure issue, but the Justice may want to clear up the post-Booker status of departures if they are genuinely concerned about national sentencing consistency.   

Simmons also highlights that district courts in the Seventh Circuit still have not quite gotten the message that "traditional" departures are obsolete.  Indeed, Sentencing Commission statistics indicate that district courts in the Seventh Circuit granted more traditional departures in the last 3 months of 2006 than did district courts in the neighboring Sixth and Eighth Circuits.

May 10, 2007 at 04:00 PM | Permalink


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Hopefully the Supreme Court will release some interesting reading material on Monday.

Posted by: | May 10, 2007 4:45:59 PM

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