Sentencing May Change With 2 Kennedy Clerks On High Court

Law360 (July 26, 2018, 1:15 PM EDT) -- Shortly before his confirmation just over a year ago, we wrote about what a now-Justice Neil Gorsuch could mean for federal sentencing.[1] In particular, we reviewed his Tenth Circuit opinion in United States v. Sabillon-Umana,[2] wherein then-Judge Gorsuch, a former clerk for now-retiring Justice Anthony Kennedy, questioned the constitutionality of judicial fact-finding at federal sentencing, as opposed to fact-finding by a jury. Known as “relevant conduct,” judge-found facts — which often include uncharged and even acquitted conduct — drive federal sentencings, often increasing terms of imprisonment by years and even decades. As it turns out, another former Kennedy clerk, Judge Brett...

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