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After the U.S. Supreme Court’s landmark Booker decision in January 2005 made the Federal Sentencing Guidelines “advisory,” federal trial judges did not leap at the chance to cut prison terms-but they are edging in that direction. Nationally, the latest sentencing statistics show 38% of all post- Booker sentences departed down from the recommended sentence ranges. That is only slightly higher than the 36% rate of five years ago. But an increasing share of the downward departures is attributable to prosecutors recommending shorter sentences-a rise from 17% in 2001 to 24% in 2005. Statistics from around the country among just trial judges show that judges within the 2d Circuit have the largest percentage of sentence reductions below the guidelines range (23%), while judges within the 5th Circuit dole out the least downward departures from the guidelines (9%), according to a recent report by the U.S. Sentencing Commission. “My sense is that people had a general feeling that the guidelines were refined to the point that they were working well and [judges] were perfectly willing to use the guidelines,” said 9th Circuit Chief Judge Mary Schroeder. “Our experience has been on sending cases back, on remand, is that we’re not seeing many changes.” The 9th Circuit trial judges were among the least likely to depart downward from guideline ranges. The trial judges shortened sentences in 12% of the cases, with only the 5th, 10th and 11th circuits producing lower numbers. The decision in U.S. v. Booker, 543 U.S. 220 (2005), declared the mandatory terms in the Federal Sentencing Guidelines unconstitutional because judges, not jurors, decided some facts that affected sentences. Rather than strike down the entire process, the high court declared the guidelines advisory. Another factor affecting judicial sentencing statistics is the USA Protect Act, which took effect in October 2004. It curtailed judicial discretion in some sentencing areas. That increased the percentage of sentences within the guideline range for fiscal year 2004. Among individual districts, judges in Massachusetts reduced sentences below guideline range in one-third of 434 cases in the past year. In the Eastern District of New York, reduced sentences came in 32% of the 1,130 cases. Similar percentages in the Southern District of Iowa at 29% and in Minnesota at 28% were reported, while in the Northern District of California, with a reputation as a liberal bench, the rate of below-guidelines sentences was 18%. Some of the courts least likely to reduce sentences below guideline ranges came in Alabama’s middle district and Mississippi’s northern district, with 4% each, and in Maine at 5%. The report also indicates that the type of crime makes a difference. Judges tend to go below guidelines on drug trafficking and illegal re-entry convictions-sentencing within guideline range in 54% and 57% of the cases, respectively-while sticking to the guidelines in firearms and fraud convictions 70% of the time.

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