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The Champion

September/October 2009 , Page 61 

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By Mark P. Rankin

Read more White-Collar Crime columns.

Rule 35(b) Meets Section 3553(a) — What Can a Federal Court Consider?

Since the Supreme Court’s first shots across the bow of the U.S. Sentencing Guidelines in Blakely,1 and continuing with its most recent decision in Spears,2 the Court has significantly restored sentencing discretion to the federal trial courts. No matter whether one agrees with this seismic shift, there is now little controversy over whether a district court may effectively reject the Sentencing Guidelines and sentence a defendant based upon the factors set forth at 18 U.S.C. § 3553(a) (the “§ 3553(a) factors”). In fact, at a minimum, a sentencing court must consider those factors in fashioning a sentence that is “sufficient, but not greater than necessary” to achieve the goals of sentencing set forth by Congress.

While this federal sentencing process is by now well-settled, questions about the proper sentencing framework remain unresolved where a sentencing is precipitated by the government’s Rule 35(b) motion, filed

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