Rebellion: The Courts of Appeals’ Latest Anti-Booker Backlash
This Essay addresses the latest phase of an ongoing rebellion that the federal courts of appeals are staging against the Supreme Court’s sentencing jurisprudence. Although a decade has passed since the Supreme Court declared the US Sentencing Guidelines advisory, the courts of appeals continue to promote sentences within the Guidelines. The Supreme Court has repeatedly reversed circuit courts for overpolicing outside-Guidelines sentences. The courts of appeals are now rebelling by creating appellate rules—carveouts—that enable the courts to underpolice within-Guidelines sentences. This Essay focuses on two problematic carveouts—the “stock carveout” and the “§ 3553(a)(6) carveout”—that circuit courts employ to reject meritorious appeals of within-Guidelines sentences in violation of the sentencing statute, Supreme Court precedent, and the Sixth Amendment.