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Cases test new flexibility of sentencing guidelines

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Congress enacted the federal guidelines in 1987 to give judges a sentencing range for particular crimes. Initially, judges could go outside those guidelines for extenuating circumstances, but Congress has continued to cut back on judges' discretion - so much so that the high court finally found, in United States vs. Booker, that the mandatory guidelines violated a defendant's Sixth Amendment right to a fair trial.

Change in practice vs. change in law

The ruling now makes the guidelines advisory. But district judges around the country are questioning what that means as they proceed with new sentencings.

"In light of the Supreme Court's holding, this court must now consider just how 'advisory' the Guidelines are," wrote US District Judge Paul Cassell in a recent opinion involving an armed bank robber. He sentenced the Utah man to 188 months - the exact time called for under the guidelines.

"In all future sentencings, the court will give heavy weight to the Guidelines in determining an appropriate sentence," he wrote. "In the exercise of its discretion, the court will only depart from those Guidelines in unusual cases for clearly identified and persuasive reasons."

In fact, Judge Cassell's sentence is typical of how other judges are responding to the Booker decision. Earlier this month, Judge Ricardo Hinojosa, chairman of the US Sentencing Commission, testified before the House Subcommittee on Crime, Terrorism, and Homeland Security about the impact.

He reported that as of Feb. 4, the Sentencing Commission had received and analyzed sentencing documents in 733

cases since Booker and found that judges had followed the guidelines 90.9 percent of the time. Only 7.8 percent of the cases were sentenced below the guidelines and 1.3 were sentenced above.

"At this point we only have a brief snapshot, but it seems that while judges have been given the discretion to deviate from the sentencing guidelines, they are not doing so in the vast majority of cases," says Kirby Behre, a former federal prosecutor and coauthor of the book "Federal Sentencing for Business Crimes."

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