Articles
Supreme Court Clarifies the Role of the Sentencing Guidelines in Two Recent Decisions
By Kenneth C. Pickering and John T. Graff
The U.S. Supreme Court shed further light on the advisory nature of the U.S. Sentencing Guidelines in two recent decisions. In Gall v. United States, the Court defined the standard of appellate review where the sentence imposed is outside the Guidelines range. In Kimbrough v. United States, the Court addressed the reasonableness of a sentence when it is based upon a disagreement with the Guidelines themselves. In both cases, the Court applied an abuse of discretion standard to review the reasonableness of the sentence without regard to the underlying Guidelines range.
We are pleased to introduce a new feature to the Criminal Litigation Committee's website. On a regular basis, we will be posting opinion pieces from the younger members of our group on issues of importance to our practice. We hope to obtain articles from law students and attorneys in their early years of practice and present them in a point-counterpoint format. These short articles will provide a unique perspective on these important topics. In our inaugural edition, Jordan M. Hyatt of the Villanova University School of Law and Emily S. Crandall of the George Washington University Law School present differing views concerning the issue of increased victim participation in the criminal justice system. If you know young lawyers or law students who may be interested in this opportunity, we would appreciate your passing this information along to them.
For more information concerning this feature, or to suggest potential topics or to submit position pieces, please contact Grayson Yeargin.
The Honest Services Statute: Scalpel or Axe?
By D. Grayson Yeargin
This article explores how the present expansive interpretation
of the honest services prong of the mail and wire fraud statute, as applied to
public officials, is in tension with the Supreme Court’s instructions in Sun-Diamond to
narrowly construe prohibitions governing the conduct of federal officials. The
article suggests that a potential solution to this problem is to preserve the
comprehensive federal framework governing federal officials by limiting prosecutions
under the honest services statute to state and local officials.
By David E. Roth, Esq. and Brian L. Flack, Esq.
As drafted, significant tension exists between Federal Rule of Criminal Procedure
(FRCP) 16(a)(1)(E) and FRCP 16(a)(2). Depending upon how you read the first
clause of FRCP 16(a)(2)—“Except as Rule 16(a)(1) provides otherwise,”—FRCP
16(a)(2) is either swallowed by FRCP 16(a)(1), or FRCP 16(a)(2) fundamentally
undercuts FRCP 16(a)(1).
