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Second Circuit Review: Sentencing in the Post-'Booker' World
February 23, 2005 Full PDF
The February 23 New York Law Journal "Second Circuit Review" features an article written by Martin Flumenbaum and Brad Karp, "Sentencing in the Post-'Booker' World." The article reviews a U.S. Court of Appeals for the Second Circuit decision, United States v. Crosby, whereby the Second Circuit became the first federal appeals court to address the impact on federal sentencing of the Supreme Court's consolidated opinion in United States v. Booker and United States v. Fanfan ("Booker"). In Crosby, the court provided an explanation on how district judges should implement Booker. It its opinion, the court emphasized that Bookerdid not discard the U.S. Sentencing Guidelines. Rather, district judges have a continuing duty to "consider" the Guidelines as well as other factors. A sentencing judge is also entitled to find all of the facts relevant to determining a Guidelines range and sentence -- as well as those relevant to a non-Guidelines sentence. While Marty and Brad conclude that the Second Circuit's opinion in Crosby provides much needed guidance to district judges, they advise that several issues remain unresolved, including the applicability of Booker to an appeal arising on collateral review and whether the Ex Post Facto Clause prevents a district judge from imposing a more severe sentence on remand than originally imposed. The editor notes that associate Andrew Levy assisted in the preparation of this article.