Are the FSG still mandatory in child crime and sex offense cases?
The Feeney Amendment to the PROTECT Act was most well-known for its various general restrictions on departure authority. However, this 2003 statue also created a special separate provision of 18 USC 3553(b) — specifically 18 USC 3553(b)(2) (see highlighted changes here) — to provide an even more rigid departure standard for child crimes and sex offenses.
A crackerjack reader (who is a federal judicial law clerk) wrote to me to note that the Booker remedial majority never mentions 18 USC 3553(b)(2) — which distinctly mandates that judges follow the guidelines for child crimes and sex offenses — in its discussion of excising 18 USC 3553(b)(1) to make the guidelines advisory. Based on this fact, and other language in Justice Breyer’s opinion, this reader suggests the federal guidelines are still mandatory (and must be subject to Blakely-ization for any upward enhancements) for all child crimes and sex offenses covered by 18 USC 3553(b)(2). The reader’s full thoughtful argument on this matter is set out in a document which can be downloaded below.
Technically, because neither Booker or Fanfan involved a child crime or sex offense, I am not sure Booker in any way resolves the status of 18 USC 3553(b)(2). In turn, then, I am not sure what judges should do when sentencing a child crime or sex offense (perhaps run their own severability analysis guided by Booker). I am sure that this law clerk has spotlighted a problematic aspect (oversight?) in the Booker remedy opinion. Readers litigating or adjudicating child crimes and sex offenses should be sure to consider (and comment upon) the analysis here: