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U.S. v. Tapia-Romero, No. 05-50121 (5-1-08). The 9th (T. Nelson joined by Beezer and Gould) hold that the "cost of imprisonment" is not a 3553 factor to be considered in sentencing. Defendant argued that cost was a factor to be considered; the court hedged, stating that it was not for an Article III to decide to save the system money. On appeal, the 9th agreed, stating that 3553 does not allow or require such consideration. Defendant had argued that the "need for rehabilitation" and "the kinds of sentences available" would permit such consideration. The 9th was unwilling, which is strange since the effect on bed space is a factor to be considered by the Sentencing Commissionn, and in terms of policy in setting Guidelines, costs of imprisonment certainly weigh in the alternates to punishment. Why then does the PSR (at least in some districts) list the costs of various forms of imprisonment. This is a disappointing decision, showing a reflexive reaction rather than more sensitive analysis of the 3553 factors, including the "catch-all."

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