Despite the relatively straightforward nature of the decision in Sharpley, the case has made some noise in the blogosphere by weighing in (albeit only in a footnote) on one of the many post-Booker debates that has been highlighted by Professor Berman. As Professor Berman has previously discussed on his blog http://sentencing.typepad.com/sentencing_law_and_policy/2005/01/are_the_fsg_sti.html there remains some uncertainty as to the continuing force of 18 U.S.C. section 3553(b)(2), a creation of the Protect Act which had provided for an even more rigid standard -- i.e., one which could never be met -- for granting downward departures for certain child crimes and sex offenses, and specifically required judges to follow the Guidelines in such cases. Unsurprisingly, the provision did nothing to restrict the availability of upward departures in such cases. In Booker, the Supreme Court never even mentioned section 3553(b)(2), let alone exised it, raising the possibility that it continues to remain in force. In Sharpley, the Second Circuit noted that there were "no unique features of the Guidelines sentences for child crimes and sexual offenses that would prevent them from violating the Sixth Amendment in the same manner as Guidelines setences for other crimes." As a result, the Panel opined that the Supreme Court's failure to exise section 3553(b)(2) "was simply an oversight."
This provoked a rather heated comment from criminal defense lawyer and frequent blog contributor, Peter Goldberger, who argues that "the Supreme Court did not "fail" to excise 3553(b)(2), or overlook it. The Supreme Court is a *court*, not a legislature or a law professor. Bound, like all federal courts, by Article III of the Constitution, it decides only "cases and [actual] controversies," not abstract disputes about issues. Section 3553(b)(2) was in no way implicated by Mr. Booker's or Mr. Fanfan's case. Hence, the Supreme Court did not address it."
While Mr. Goldberger does a good job providing a principled defense of the Supreme Court's non-mention of section 3553(b)(2), his argument gives the Court too much credit. It is next to impossible to believe that the Court knew it was leaving in place such an obvious logical discrepancy but chose to remain entirely silent on the issue. While Goldberger is correct in noting that the precise issue was not before the Court (since neither Booker nor Fanfan involved child crimes or sex offenses), the majority could have simply noted that section 3553(b)(2) was not implicated by the case and that it therefore did not need to be addressed. More likely, however, it was, as the Sharpley Panel opined, simply an oversight.
