Today Judge William G. Young issued a 125 page opinion in US v. Kandirakis that is going to be an instant classic in sentencing law, a subject much roiled by the Supreme Court’s weird and fractured decision in United States v. Booker, 543 U.S. 220 (2005).
Basically, Judge Young holds that the entire system of federal sentencing is an illegal, unprincipled mess. Which it is. But can you say that? Apparently you can. Here’s just a tiny taste from the text at footnote 41 of the opinion,
That our laws routinely require a defendant’s sentence to be based upon what a judge believes an offender “really” did, as opposed to the actual crime of which he was convicted by the jury, is nothing less than offensive — let alone unconstitutional.
Then the footnote:
A recent, appalling example is found in an unpublished, per curiam opinion of the Eighth Circuit. United States v. Rashaw, No. 05-1839, 2006 WL 688041 (8th Cir. Mar. 20, 2006). Rashaw had been convicted “on two counts of being a felon in possession of a firearm and of one count of possessing an unregistered firearm.” Id. at *1. The district court in calculating the Guidelines, however, set the Guidelines offense level based on “evidence” that Rashaw had, in another incident and with another gun, committed a double murder. Rashaw had never been charged with these crimes, much less convicted. Id. The resulting Guidelines range being higher than the statutory maximum, the court sentenced Rashaw to three consecutive ten-year terms. Id. The Eighth Circuit affirmed this sentence as reasonable. Id. The disposition of Rashaw is scandalous and shameful. Justice Scalia, for the majority of the Supreme Court, had written in Blakely of an eerily similar hypothetical when making a reductio ad absurdum argument refuting “[t]hose who would reject Apprendi”. Blakely, 542 U.S. at 306. That such an appalling result can be “reasonable” under Remedial Booker speaks volumes about the perversity of that decision in specific and of “real conduct” sentencing in general.
If you have any interest in sentencing policy, you need to read this one.