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A recent U.S. Supreme Court decision invalidating key sections of the federal sentencing guidelines does not leave trial judges with the “unfettered discretion” to sentence as they please, the 2nd U.S. Circuit Court of Appeals said Wednesday. While conceding the dramatic impact of the Supreme Court’s decisions in U.S. v. Booker and U.S. v. Fanfan, the appeals court said judges will be expected to apply their newly restored discretion in sentencing with a strong measure of “consideration” for the structure of the guidelines. The circuit released an opinion designed to give guidance in light of the “momentous” decision in Booker, where the Supreme Court ruled sections of the guidelines which require a judge to enhance a defendant’s sentence based on judicial fact-finding violate the Sixth Amendment right to a jury trial. The Court followed Booker with Fanfan, its so-called “remedy” opinion, where it said two unconstitutional sections of the guidelines, one that made the enhancements mandatory and a second that set forth standards for review of sentences on appeal, could be excised from the whole. The net effect of the decisions was to render the guidelines effectively “advisory” for sentencing judges, whose decisions would be reviewed by courts of appeals for “reasonableness.” In response, 2nd Circuit Judges Jon O. Newman, Amalya Kearse and Jose A. Cabranes issued yesterday’s opinion in U.S. v. Crosby, 03-1675. The decisions, wrote Newman, along with the sentencing factors listed in �3553(a), “do more than render the guidelines a body of casual advice, to be consulted or overlooked at the whim of the sentencing judge,” and it was a “mistake” to think that “judges may return to the sentencing regime that existed before 1987 and exercise unfettered discretion to select any sentence within the applicable statutory maximum and minimum.” 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 �3553(a) that a judge “‘consider’ all 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 judge said the court would not set a rigid standard telling district judges how to “consider” the factors in the statute when sentencing a defendant. “We think it more consonant with the day-to-day role of district judges in imposing sentences and the episodic role of appellate judges in reviewing sentences, especially under the now applicable standard of ‘reasonableness’ to permit the concept of ‘consideration’ … to evolve as district judges faithfully perform their statutory duties,” he said. Newman said that consideration of the guidelines “will normally require determination of the applicable Guidelines range, or at least identification of the arguably applicable ranges, and consideration of applicable policy statements.” Another impact of Booker/Fanfan, he said, was that sentencing judge should consider all the factors in �3553(a) and then decide whether to “impose the sentence that would have been imposed under the Guidelines, i.e., a sentence within the applicable Guidelines range or within permissible departure authority,” or to “impose a non-guidelines sentence.” Finally, he said, a sentencing judge is entitled to find all the facts appropriate for determining either a guidelines sentence or a non-guidelines sentence. Newman wrote that ” … the Supreme 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).” He went on: “We have every confidence that the judges of this Circuit will do so, and that the resulting sentences will continue to substantially reduce unwarranted disparities while now achieving somewhat more individualized justice.” Review Standards Turning to the way in which the circuit will review sentences on appeal for unreasonableness, Newman pointed to four types of procedural errors: � A judge might violate the Sixth Amendment by making factual findings and enhancing a sentence. � “Less obviously,” a judge could rely on the guidelines range that was based solely on facts found by a jury or admitted by a defendant,” because the judge would be acting under the “now-excised requirement of subsection 3553(b)(1).” � A judge could err by failing to “consider” the applicable guidelines range (or arguably applicable ranges) as well as the other factors listed in �3553(a), and instead simply select what he or she deemed an appropriate sentence. � Finally, a judge could also violate �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. “All of these potential errors, if available for review on appeal, would render a sentence unreasonable, regardless of length, because of the unlawfulness of the method of selection,” he said. The circuit would not “fashion a per se rule as to the reasonableness of every sentence within an applicable guideline or the unreasonableness of every sentence outside an applicable guideline,” he said. The judge said the court will continue to apply “ordinary prudential doctrines” such as the “plain error test” and the “harmless error analysis,” in determining whether resentencing is warranted in sentences imposed after Booker/Fanfan were announced. As to sentences imposed before Booker/Fanfan, the court said it was difficult to predict how a district court judge, as well as prosecutors and defense lawyers, would have acted had they had a glimpse of the new landscape. “In short, a sentence imposed under a mistaken perception of the requirements of law will satisfy plain error analysis if the sentence imposed under a correct understanding would have been materially different,” he said. A remand is needed to determine whether a different sentence would have been imposed, Newman said. “If a district court determines that a nontrivially different sentence would have been imposed, that determination completes the demonstration that the plain error test is met,” he said. ‘CROSBY’ The Crosby case involved defendant Jerome Crosby who was tried before Northern District Judge Frederick J. Scullin Jr. Crosby pleaded guilty, without a plea agreement, in 2002. Scullin made three sentencing enhancements based on judicial fact-finding: that Crosby pointed a loaded shotgun at a police officer, created a substantial risk of injury to a law enforcement officer and obstructed justice. 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 circuit said it was remanding “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, after considering Booker/Fanfan and its Crosby opinion. John A. Cirando of Syracuse was lead counsel for Crosby, who also submitted a brief pro se. Deputy Appellate Chief Elizabeth S. Riker of the Northern District U.S. Attorney’s office represented the government.

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