Thursday, January 13, 2005

Ding Dong the "Witch" is Dead. . . The Supreme Court

today threw out the United States Sentencing Guidelines, USSG, making them "advisory." This is a HUGE development for Federal criminal law lawyers. The consolidated cases, United States v. Booker and United States v. Fanfan, are the final death blow to a system of mandatory guidelines that severely restricted federal judges discretion, all in the name of uniformity of sentencing. The Supreme Court today reaffirmed that anyone who is facing criminal charges must have the facts which determine his guilt, or innocence or punishment, must be decided by a jury fo his or her peers. Further the Court stated that those facts must be decided beyond a reasonable doubt and not just by a judge after a jury trial by some lesser standard of proof.
Mr. Booker's and Mr. Fanfan's cases are instructive. In Booker's case he pleaded guilty to possession of 92.5 grams of crack with intent to sell. Under those facts, his sentencing range was set at 210-262 months. Instead, after a judge led hearing, the judge found certain facts to be true by preponderance of the evidence (the standard for civil lawuits), and then imposed a 360 month (30 year) sentence. In Mr. Fanfan's case, under the terms of his conviction, he was supposed to be sentenced to no more than 78 months imprisonment. Instead, after a judge led hearing, the judge found certain facts and enhanced his sentence to 188-235 months.
The Supreme Court rejected both these enhancements, and stated that all facts that lead to conviction or enhancement of a sentence must be pleaded to a jury, and proved before a jury, and that a jury must find them beyond a reasonable doubt.

The Supreme Court also invalidated a provision that allowed appellate judges to review all of the factors that the trial judge took into account in deciding to depart. The Supreme Court stated that from, now on, a judge's decision to depart from the sentencing table (which is advisory now anyway), that the decision to depart wil be reviewed only to see if it is 'unreasonable'.

What does this mean to you? If you were sentenced on a federal crime after June 26, 2000, you have the right to a resentencing and maybe a right to a departure. The clock is ticking however, Fanfan and Booker were made applicable to caes currently in trial courts and on appeal, but you need to get the appeal filed sooner rather than later.

Chip Venie
Criminal Defense Attorney
(619) 235-8300


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