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Traps for the Unwary: Cross References and Guideline Sentencing
By Mark P. Rankin; Rachel R. May
Grid & Bear It columns.
To laypersons and attorneys alike, it sounds like an illogical and grossly unfair idea: defendants pleading guilty to one crime and then being sentenced severely for a completely different act. Unfortunately, this travesty is reality in federal court, as implemented by a series of “cross references” within the United States Sentencing Guidelines. Aimed at capturing real offense conduct and preventing charge bargaining, cross references have long been identified as a trap for the unwary. In Blakely v. Washington1, Justice Scalia expressed dismay at sentencing guidelines’ tendency to punish defendants based upon uncharged, even acquitted, conduct. He noted that under such a system “a judge could sentence a man for committing murder, even if the jury convicted him only of possessing the firearm used to commit it – or of making an illegal lane change while fleeing the death scene.2" Justice Scalia called such a sentence an “absurd result.”3 Soon thereafter, in United States v. Booker4, the
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