Sentencing May Change With 2 Kennedy Clerks On High Court
By Alan Ellis and Mark Allenbaugh (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. In particular, we reviewed his Tenth Circuit opinion in United States v. Sabillon-Umana, 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 Kavanaugh of the U.S. Court of Appeals for the District of Columbia Circuit — who recently was nominated by President Donald Trump to take the retiring justice's seat on the court — also shares Justice Gorsuch's concern. Accordingly, for the reasons discussed below, should Judge Kavanaugh be confirmed, we believe the "Kennedy clerks" will likely lead the court to finally rein in relevant conduct by holding unconstitutional the use of uncharged and acquitted conduct to enhance federal sentences....
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