The Champion

May 2006 , Page 10 

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Reexamining 'Loss' And 'Gain' In The Wake Of Dura Pharmaceuticals v. Broudo--New Ammunition For Securities Fraud Defendants

By David H. Angeli, Per A. Ramfjord

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Over the past several years, the national discussion surrounding federal sentencing has naturally centered around the U.S. Supreme Court’s line of cases beginning with Apprendi v. New Jersey1 and ending with United States v. Booker.2 The full impact of those cases remains largely to be seen, as courts and practitioners grapple with a number of critical open questions, including the appropriate interplay between the guidelines and the other sentencing factors set forth in 18 U.S.C. § 3553,3 the proper standard of proof for guidelines enhancements,4 and the contours of “reasonableness” in sentencing.5  

Although the importance of Booker is obvious, statistics from the U.S. Sentencing Commission demonstrate that the guidelines remain, at least for now, the primary driver in federal sentencing decisions. In the first nine months after Booker was decided, 61.9% of all federal sentences fell within the applicable guidelines range, compared with 64% of sentences in 2001, 65% in 2002, and 69.4%

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