Hastings Law Journal


Rebecca Poate


This Note explores the aftermath of the creation of the Federal Sentencing Guidelines and the choice to include relevant conduct as a sentencing criteria. It argues that peculiar, unintended consequences have largely been the result of this attempted reform. The inclusion of relevant conduct, despite its debatable connection to congressional intent, combined with a statute left over from pre- Guideline sentencing that mandates rampant judicial discretion at sentencing, has allowed the disparity-producing sentencing of old to creep back into the post-Guideline world. This time, however, the wide-ranging discretion to consider virtually any conduct at sentencing is comfortably hidden behind the curtain of agency discretion, making appellate review deferential at best and nonexistent at worst. To illustrate the current state of sentencing affairs, this Note focuses on a specific provision in the Federal Sentencing Guidelines, section 2G2.2(b)(4). Although this provision is a sentencing enhancement and therefore separate from the relevant conduct inquiry undertaken in section 1B1.3, it is a clear indication of how far beyond relevant conduct courts can now go and a warning of the possible future effects on federal criminal sentencing.

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