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18 U.S.C. Section 3553(a)(2) and Procedural Error

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Over at Sentencing Law and Policy a commenter has argued that 18 U.S.C. Section 3553(a)(2) still requires judges to provide specific reasoning for their variations from guidelines sentences. As a constitutional matter, this may be correct; I am not an expert in the nitty gritty of what is dicta and what is not in Gall and whether Gall’s call for an explanation is enough to overturn the wording in 18 U.S.C. Section 3553(a)(2) that calls for a specific reason. In my post below regarding US. v Levinson, I argued that the court’s conflation of the concepts reasoning with explanation was wrong. It is possible, however, that the court’s conflation actually has its origin in the confusion of SCOTUS when it wrote Gall. This is a nuanced argument and I need to consider it fully.

In any event, even if 18 U.S.C. Section 3553(a)(2) is still good law it doesn’t undermine the heart of my comments regarding US. v. Levinson, which is an argument based upon proportionality. Nor does it address the foundational issue of how specific a reason has to be to qualify as a “specific reason,” which still remains a subject of debate.

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Written by Daniel

October 2, 2008 at 11:16 am

Posted in Uncategorized

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