SCOTUS TO TAKE UP SENTENCING GUIDELINES AGAIN!!!

Doug Berman has a bunch of columns (here here, here, here and here) devoted to the US Supreme Court's (SCOTUS)decision to take up the issues of reasonableness within the US Sentencing Guidelines (USSG).

After the court's landmark decision in Blakely v. Washington, which held mandatory sentencing by guideline to be a constitutional violation based on a case known as Apprendi(Wikipedia's brief on the case.) For 20 years the court had upheld the mandatory nature of the US Federal Guidelines. As Blakely only applied to state guidelines, the court took up the matter of the application to Federal Sentencing in US v. Booker and US v. FanFan.

In the latter decision, the Court decided that Mandatory guideline sentencing was a violation of the 6th amendment and so remedied the situation by declaring the US Federal Sentencing Guidelines non-mandatory. Instead it instructed courts that the USSG were to be considered as one of a number of factors under 18 USC 3553A. It also instructed that sentencing courts were to decide if the sentence that they were giving to an individual were appropriate to support the purposes of sentencing someone, and appellate courts were to decide if such sentences were reasonable.

Since then the circuits have been split as to if a sentence given under the guidelines was per se or presumptively reasonable or does the judge have to give a good reason for sentencing someone to a guideline sentence.

The cert decision, requires that the attorneys arguing the case address 5 questions that the court has posed. They are:

In Claiborne, the Court asks:
Was the district court's choice of below-Guidelines sentence reasonable?
In making that determination, is it consistent with United States v. Booker, 543 U.S. 220 (2005), to require that a sentence which constitutes a substantial variance from the Guidelines be justified by extraordinary circumstances?

In Rita, the Court asks:
Was the district court's choice of within-Guidelines sentence reasonable?
In making that determination, is it consistent with United States v. Booker, 543 U.S. 220 (2005), to accord a presumption of reasonableness to within-Guidelines sentences?
If so, can that presumption justify a sentence imposed without an explicit analysis by the district court of the 18 U.S.C. §3553(a) factors and any other factors that might justify a lesser sentence?

(HATTIP: Sentencing Law and Policy Blog