It appears that the First Circuit is about to take a serious look at the meaning of "advisory" as applied to the sentencing guidelines post-Booker. This has arisen in the context of the appeals from the Rhode Island federal cases in which District Judge Ernest Torres rejected the 100:1 crack to powder cocaine disparity. Professor Berman at Sentencing Law and Policy has a link to the audio of the oral argument here.
The question involves what the person (whom I believe from the audio to be Judge Selya) tells defense counsel about the importance of deciding at what point are the guidelines advisory. Booker required courts to consult the guidelines. Does consult mean that I will look at the guidelines and if I don't like a particular guideline I will ignore it, or does consult mean that the Judge has to calculate the correct guideline and then, as government counsel stated, "... and then take that great discretionary leap" to sentence outside the guidelines. As Judge Selya pointed out, the answer to that question is not only important to the immediate cases, but to all criminal cases.
Moreover, the Court of Appeals suggests at one point to defense counsel 18 U.S.C. Sec. 3553(a) critical initial instruction to judges, what has been called the "parsimony provision," which states: "The court shall impose a sentence sufficient, but not greater than necessary, to comply with the purposes [of punishment] set forth in paragraph (2) of this subsection."
The results of these appeals should be interesting, and I invite you all to listen to the audio of the oral argument.
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