Thursday, February 10, 2011
Steven F. Hubachek (Federal Defenders of San Diego, Inc.) has posted The Undiscovered Apprendi Revolution: The Sixth Amendment Consequences of an Ascendant Parsimony Provision (American Journal of Trial Advocacy, Vol. 33, No. 521, 2010) on SSRN. Here is the abstract:
The parsimony provision contained in 18 U.S.C. section 3553(a) directs district courts to impose a sentence sufficient, but not greater than necessary, to effectuate the statutory goals contained in section 3553(a)(2). The parsimony limitation and the substantive reasonableness review analyzed by Justice Scalia in Rita make clear that district courts do not have the unfettered discretion to sentence within the statutory range that they enjoyed prior to the passage of the Sentencing Reform Act. If a non-elemental fact is significant enough to effect an increase in the sentence that would be parsimonious as to the offense simpliciter, the Sixth Amendment applies to it.