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United States v. Valencia-Aguirre

n17 Immediately after issuance of Pho, Professor Douglas Berman published commentary at "Sentencing Law and Policy," http://sentencing.typepad.com, an excellent and provocative forum widely consulted for current and trenchant analysis of sentencing issues. Professor Berman states as part of his January 6th commentary that:

The Pho opinion elevates the perceived intent of Congress over the plain text of 18 U.S.C. § 3553(a), which the Booker Court identified as the guide for district court sentencing decisions and for circuit court review of whether a sentence is reasonable. (Where is a textualist like Justice Scalia when we need him?) http://sentencing.typepad.com/sentencing_law_and_policy/2006/
01/whats_wrong_wit.html
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Pho requires a district judge to conform to the Sentencing Guidelines' notorious 100:1 equivalency ratio between crack and powder cocaine; Professor Berman points to the aspirational language of 18 U.S.C. § 3553(a) as empowering a district judge to alter an unreasonable guidelines provision (the 100:1 ratio particularly). Although Professor Berman's desire to ameliorate the consequences of the 100:1 ratio is entirely wholesome, Congress's more particular and immanent statutory creation of a Sentencing Commission with the authority (indeed, the duty) to promulgate regulations conforms to a pattern familiar in modern government: primary interpretation of a statute entrusted to an agency empowered to promulgate interpretive regulations. The Sentencing Commission is admittedly singular in many respects, but the interposition of a mediating authority between the district judge and the "vague" and "hopelessly open-ended" (see Judge Posner in Dean) provisions of Section 3553(a) provides a mechanism necessary to avoid a cacophonous report from the field of sentencing judges.

United States v. Valencia-Aguirre, 409 F. Supp. 2d 1358, 1379 (D. Fla. 2006)

    

   

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