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Two years after the U.S. Supreme Court’s decision in United States v. Booker, which made the U.S. Sentencing Guidelines advisory rather than mandatory, one question confounds lawyers, judges and legal scholars: how much weight should a district court give the now-advisory guidelines? In two cases up this term, Claiborne v. United States, and United States v. Rita, the Supreme Court is poised to answer this question.

Since the Booker decision, circuit courts have taken different approaches in applying it. Data compiled by the U.S. Sentencing Commission indicate that even though the circuits have adopted different standards of review, there has been little overall effect on the outcome of cases at the district court level. Thus, there has not been a revolution in sentencing practices. The question posed by Claiborne and Rita is whether the Court will upset this balance.

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