Wading Through the Booker and FanFan Decisions
Some thoughts on a first read of the opinions:
Justice Stevens opinion contains the legal conclusion affirming the Court's prior ruling in Blakely and explains why judges may not increase sentences beyond what the guidelines call for based on facts not submitted to the jury. (Shorthand reason: it violates the 6th Amendment right to have a jury decide guilt beyond a reasonable doubt since judges use a lesser standard of preponderance of the evidence).
Justice Breyer's opinion discusses whether the Guidelines can be saved or must be scrapped - the remedy, if you will. First, the decisions invalidate only two provisions of the Sentencing Statute: They are 18 USC Sec. 3553 (b)(1) and 3742(e). The first makes the guidelines mandatory and the second relates to the standard of review for appeal of departure rulings. [From now on, the standard of review for reviewing departures will be the standard of 'reasonableness' instead of 'de novo'.]
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