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The recent U.S. Supreme Court decision invalidating key sections of the Federal Sentencing Guidelines— United States v. Booker, No. 04-104, and United States v. Fanfan, No. 04-105—does not leave trial judges with the “unfettered discretion” to sentence as they please, the 2d U.S. Circuit Court of Appeals has ruled. United States v. Crosby, No. 03-1675. The 2d Circuit conceded the importance of the high court’s ruling that sections of the guidelines requiring a judge to enhance a defendant’s sentence based on judicial fact-finding violate the Sixth Amendment right to a jury trial. But the circuit court said that judges will be expected to apply their newly restored discretion in sentencing with a strong measure of “consideration” for the structure of the guidelines. Booker/ Fanfan, wrote Judge Jon O. Newman on behalf of the 2d Circuit, along with the sentencing factors listed in Section 3553(a) of the guidelines, “do more than render the Guidelines a body of casual advice, to be consulted or overlooked at the whim of the sentencing judge.” A “critically important aspect of Booker/Fanfan is the preservation of the entirety of the SRA (Sentencing Reform Act) with the exception of only the two severed provisions,” he said. Before Booker/Fanfan, Newman said, the requirement in Section 3553(a) that a judge “consider” all of the factors enumerated in that section had uncertain import because subsection 3553(b)(1) required judges to select a sentence within the applicable guidelines range unless the statutory standard for departure was met. Now, he said, “the duty imposed by section 3553(a) to ‘consider’ numerous factors acquires renewed significance.” The court would not set a rigid standard telling district judges how to “consider” the factors in the statute when sentencing a defendant. Booker/ Fanfan, Newman said, will ensure that a sentencing judge considers all of the factors in � 3553(a) and then decide whether to “impose the sentence that would have been imposed under the Guidelines,” or to “impose a non-guidelines sentence.” Newman wrote that the high court “expects sentencing judges faithfully to discharge their statutory obligation to ‘consider’ the Guidelines and all of the other factors listed in section 3553(a).” Newman pointed to four types of procedural errors that would render a sentence unreasonable: A judge might violate the Sixth Amendment by making factual findings and enhancing a sentence. A judge could rely on the guidelines range that was based solely on facts found by a jury or admitted by a defendant. A judge could err by failing to “consider” the applicable guidelines range as well as the other factors listed in Section 3553(a). A judge could also violate Section 3553(a) by limiting consideration of the applicable guidelines range to the facts found by the jury or admitted by the defendant, instead of considering the applicable guidelines range, as required by subsection 3553(a)(4), based on the facts found by the court. Crosby involved defendant Jerome Crosby who was tried before Judge Frederick J. Scullin Jr. of New York’s northern district. Crosby pleaded guilty, without a plea agreement, in 2002. Scullin made three sentencing enhancements based on judicial fact-finding. The result was a higher sentencing range-15 years and 8 months to 19 years and 7 months-but the judge was limited by the statutory maximum and gave Crosby a 10-year sentence. The government contends that while the judge committed the Sixth Amendment error outlined in Booker, the error was harmless because the sentence was reasonable. The 2d Circuit remanded “without requiring alteration of Crosby’s sentence,” so that Scullin may consider, based on the circumstances at the time of the original sentence, whether to resentence, in light of Booker/Fanfan and Crosby.

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