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February 23, 2011

Argument transcript in SCOTUS sentence modification case Freeman...

is now available at this link.  I hope to find time to read and comments on this transcript before too long.

UPDATE:  A too-quick review of the transcripts reveals that all the Justices (save, of course, the always silent Justice Thomas) seem very engaged (and perhaps metaphysically challenged) by the question of just whether and when a federal sentence is "based on" the sentencing guidelines.  Especially interesting is how the Justices work around to wondering collectively whether, now that Booker has made the guidelines merely advisory, any federal sentence imposed after Booker can or should be deemed "based on" the guidelines.

Even though the oral argument never discusses the rule of lenity, and even though the philosophical foundation for the rule of lenity might not be considered directly applicable in this specific setting, the Justices' interesting debate concerning the meaning and reach of the statutory term "based on" in 3582(c)(2) might well be sensibly resolved by the Court concluding, in essence, that an "interpretive tie" should goes to the criminal defendant in this little case. 

February 23, 2011 at 01:31 PM | Permalink


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