Law.com Subscribers SAVE 30%
Call 855-808-4530 or email [email protected] to receive your discount on a new subscription.
Are the Sentencing Guidelines More Than 'Advisory'?
The Second Circuit's decision in United States v. Cutler, Nos. 05-2516(L), 05-3303-cr(L), 05-6178-cr(XAP) (2d Cir. March 17, 2008), cast a cloud over the question of how far a sentencing judge can depart from the so-called 'advisory' Sentencing Guidelines. In late December 2007, the Supreme Court appeared to have settled that issue. In Gall v. United States, 128 S. Ct. 586 (2007), the Court clarified that appellate courts must give broad leeway to sentencing judges even where their sentences depart from the Guidelines. Most Circuits, following Gall, have applied that principle. Until Cutler. There, confronted with a lenient sentence imposed on two white collar defendants convicted after a three-month trial, the Second Circuit cited Gall, but applied an exacting review that discounted virtually every rationale offered by the experienced trial judge. It remains to be seen how the Second Circuit's law will develop in this area.
Much-Needed Direction
Since the Court held in United States v. Booker, 543 U.S. 220 (2005), that the Guidelines cannot be mandatory, judges and litigants puzzled over the status of the Guidelines. In Gall, the Supreme Court gave much-needed direction. The Court affirmed a sentence of probation for a reformed 'ecstasy' drug dealer, who would have gotten 30 to 37 months in prison under the Guidelines. The Eighth Circuit had carefully parsed the sentencing judge's rationale and concluded that where a district court departs from the Guidelines to an extraordinary extent, it must identify extraordinary circumstances. The Supreme Court disagreed. While a sentence post-Booker must be reasonable, appellate courts must give deference to district judges and refrain from analysis that 'come[s] too close to creating an impermissible presumption of unreasonableness for sentences outside the Guidelines range.' Gall 128 S. Ct. at 595. The Gall Court emphasized that district courts are due deference because they see and hear the evidence, make credibility findings, gain insights not apparent from the cold record, and as an institution, they see and apply many more Guidelines sentences than the appellate courts.
This premium content is locked for Entertainment Law & Finance subscribers only
ENJOY UNLIMITED ACCESS TO THE SINGLE SOURCE OF OBJECTIVE LEGAL ANALYSIS, PRACTICAL INSIGHTS, AND NEWS IN ENTERTAINMENT LAW.
- Stay current on the latest information, rulings, regulations, and trends
- Includes practical, must-have information on copyrights, royalties, AI, and more
- Tap into expert guidance from top entertainment lawyers and experts
Already a have an account? Sign In Now Log In Now
For enterprise-wide or corporate acess, please contact Customer Service at [email protected] or 877-256-2473
Major Differences In UK, U.S. Copyright Laws
This article highlights how copyright law in the United Kingdom differs from U.S. copyright law, and points out differences that may be crucial to entertainment and media businesses familiar with U.S law that are interested in operating in the United Kingdom or under UK law. The article also briefly addresses contrasts in UK and U.S. trademark law.
Strategy vs. Tactics: Two Sides of a Difficult Coin
With each successive large-scale cyber attack, it is slowly becoming clear that ransomware attacks are targeting the critical infrastructure of the most powerful country on the planet. Understanding the strategy, and tactics of our opponents, as well as the strategy and the tactics we implement as a response are vital to victory.
The Article 8 Opt In
The Article 8 opt-in election adds an additional layer of complexity to the already labyrinthine rules governing perfection of security interests under the UCC. A lender that is unaware of the nuances created by the opt in (may find its security interest vulnerable to being primed by another party that has taken steps to perfect in a superior manner under the circumstances.
Removing Restrictive Covenants In New York
In Rockwell v. Despart, the New York Supreme Court, Third Department, recently revisited a recurring question: When may a landowner seek judicial removal of a covenant restricting use of her land?