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When can guideline errors be harmless (and when is procedural error is not "significant") after Gall?

By Douglas A. Berman

An otherwise ordinary Sixth Circuit opinion today in US v. Shor, No. 07-2334 (6th Cir. Dec. 16, 2008) (available here), has this extraordinary little footnote: Both parties cite pre-Bookercases for the proposition that our review of the district court?s interpretation of the Guidelines is de novo.  This is incorrect: the Guidelines are advisory and thus a district court?s interpretation of the Guidelines is only one factor in our holistic review for procedural reasonableness.  The Supreme Court was quite explicit on this point in Gall. Here, however, this difference is immaterial, for the Supreme Court was also quite explicit in Gall that miscalculating the Guidelines range is a ?significant procedural error? that requires reversal.  See Gall, 128 S...continue to full post

Full post as published by Sentencing Law and Policy on December 16, 2008 (boomark / email).