The Rebirth of Advocacy

Absent the judicially excised provisions, sentencing in the federal courts is governed by 18 U.S.C. ' 3553(a), which lists the factors that must be considered in imposing a sentence and instructs that a sentence must be “sufficient, but not greater than necessary” to:

• reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense;
• afford adequate deterrence to criminal conduct;
• protect the public from further crimes of the defendant; and
• provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner. ' 3553(a)(2).

A sentencing court must also consider: “the nature and circumstances of the offense and the history and characteristics of the defendant,” 18 U.S.C. ' 3553(a)(1); “the kinds of sentences available,” 18 U.S.C. ' 3553(a)(3); the applicable sentencing guidelines range, 18 U.S.C. ' 3553(a)(4); pertinent policy statements issued by the Sentencing Commission, 18 U.S.C. ' 3553(a)(5); “the need to avoid unwarranted sentencing disparities among defendants with similar records who have been found guilty of similar conduct,” 18 U.S.C. ' 3553(a)(6); and “the need to provide restitution to any victims of the offense.” 18 U.S.C. ' 3553(a)(7).

Post-Booker, the Guidelines are only one of the seven factors listed in 3553(a) that a sentencing judge “shall consider.” Sentencing judges have regained the discretion that was taken away by the Guidelines and may sentence a defendant anywhere within the statutorily authorized range.