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SCOTUS opinion in Pepper shows how/when/why courts can reject the FSG

By Douglas A. Berman

I am working my way through the opinion of the Court in Pepper, and I am consistent impressed with how Justice Sotomayor's opinion is weaving its way through a range of post-Booker issues and various other aspects of modern federal sentencing law and practice.  Of particular note is a section highlighting the appropriateness of rejecting a policy statement within in the federal sentencing guidelines after Booker.  This section is set up with this important point that I suspect will become a central part of many future defense sentencing memos: [O]ur post-Booker decisions make clear that a district court may in appropriate cases impose a non-Guidelines sentence based on a disagreement with the Commission?s views.  That is particularly true where, as here, the Commission?s views rest on wholly unconvincing policy rationales not reflected in the sentencing statutes Congress enacted...continue to full post

Full post as published by Sentencing Law and Policy on March 02, 2011 (boomark / email).