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The Champion

September/October 2006 , Page 26 

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Getting to Reasonableness --Crafting an Effective Downward Departure Post-Booker

By Marc S. Raspanti,Jodeen M. Hobbs

Many hoped that the Supreme Court’s decision in United States v. Booker would be the death knell for the now decades old federal sentencing guideline rubric.1 In Booker, the Supreme Court held that the federal sentencing guidelines are not mandatory, but rather one piece of information that the court must consider at sentencing.2 Instead of focusing on the guidelines, to the exclusion of other relevant factors, the Booker decision now permits a federal court to impose an individualized sentence as long as the sentence is “reasonable.”3  

Fortunately or unfortunately, depending on your perspective, the sentencing guidelines are still very much intact and part of the overall process a court utilizes to reach a sentence, despite Booker. The United States Sentencing Commission recently released data confirming that federal judges continue to impose sentences within the guideline range more than 60 percent of the time.4 The data also show that the courts rely on “Booker discretion” to depart

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