The full trial technique will be available to read soon in the forthcoming 44:1 issue of the American Journal of Trial Advocacy.
The United States Supreme Court has acknowledged that district court judges have broad powers under 18 U.S.C. § 3553(a). However, the courts of appeals’ varying interpretations of these broad powers has led to a circuit split regarding whether the collateral consequences of a defendant’s prosecution and conviction can serve as a basis for a downward departure in sentencing.
The Sixth, Seventh, Tenth, and Eleventh Circuits compose the majority view that district judges are prohibited from considering collateral consequences of a defendant’s prosecution and conviction as a basis for a downward departure. The Second, Fourth and Eighth Circuits in the minority allow such considerations by sentencing judges.
This Article not only answers the question of why the minority view should be adopted, but also uses several different legal arguments to explain why federal courts should adopt the minority view. More specifically, this Article argues for uniform adoption of the minority view by examining the history of the United States Sentencing Guidelines, the text of the Guidelines, and federal statutory law.
Part I of this Article discusses the history of the Sentencing Reform Act of 1984, as well as the history of the United States Sentencing Commission and its role in developing the Sentencing Guidelines. This Section also explores the Guidelines, as well as their relationship to sentencing both prior to and after United States v. Booker. It also examines the standard of review for appealing a sentence imposed by the district court.
Part II explains the significance of this federal circuit split and discusses opinions from the federal courts composing the majority and minority view. Part III analyzes the aforementioned cases, federal statutory law, and the Sentencing Guidelines to show how these components support district court judges being allowed to consider the collateral consequences of a defendant’s prosecution and conviction when determining whether to impose a downward departure. Additionally, this Section suggests how judges can avoid this sentencing issue under the current sentencing scheme. The conclusion provides a quick summary of the Article.
American Journal of Trial Advocacy 