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Sentencing — career offender guideline — constitutionality

By: WISCONSIN LAW JOURNAL STAFF//June 13, 2012//

Sentencing — career offender guideline — constitutionality

By: WISCONSIN LAW JOURNAL STAFF//June 13, 2012//

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United States Court of Appeals For the Seventh Circuit

Criminal

Sentencing — career offender guideline — constitutionality

The Sentencing Guidelines are not susceptible to vagueness challenges; and the Sentencing Commission did not exceed its authority by promulgating the “crime of violence” definition.

“Our conclusion in Brierton (and later in Idowu) is bolstered by the Supreme Court’s watershed holding in United States v. Booker, 543 U.S. 220 (2005), that the Guidelines are only advisory. We have recognized that Booker demoted the Guidelines from ‘rules to advice.’ United States v. Roche, 415 F.3d 614, 619 (7th Cir. 2005); see also United States v. Bullion, 466 F.3d 574, 575 (7th Cir. 2006) (‘The standard of reasonableness, introduced by the Booker decision, confers broad sentencing discretion. The judge must consider the guidelines but is in no sense bound by them.’). The Supreme Court has made clear that ‘[a]ny expectation subject to due process protection . . . that a criminal defendant would receive a sentence within the presumptively applicable guideline range did not survive’ the Booker decision. Irizarry v. United States, 553 U.S. 708, 713-14 (2008). The Court has further stated that ‘[n]ow faced with advisory Guidelines, neither the Government nor the defendant may place the same degree of reliance on the type of “expectancy” that gave rise to a special need for notice in Burns [v. United States, 501 U.S. 129 (1991)].’ Id. The vagueness doctrine is concerned with providing fair notice and preventing arbitrary enforcement. Since the Guidelines are merely advisory, defendants cannot rely on them to communicate the sentence that the district court will impose. Defendants’ inability to look to the Guidelines for notice underscores why, in addition to our reasoning in Brierton and Idowu, they cannot bring vagueness challenges against the Guidelines.”

Affirmed.

11-2433 U.S. v. Tichenor

Appeal from the United States District Court for the Southern District of Indiana, Barker, J., Flaum, J.

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