[Congressional Record Volume 152, Number 125 (Friday, September 29, 2006)]
[Extensions of Remarks]
[Pages E1925-E1926]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




       THE SENTENCING FAIRNESS AND EQUITY RESTORATION ACT OF 2006

                                 ______
                                 

                    HON. F. JAMES SENSENBRENNER, JR.

                              of wisconsin

                    in the house of representatives

                       Friday, September 29, 2006

  Mr. SENSENBRENNER. Mr. Speaker, today I introduce the ``Sentencing 
Fairness and Equity Restoration Act of 2006,'' to restore uniformity to 
Federal sentencing and reaffirm Congress' commitment to protecting our 
Nation's children.
  This legislation addresses the Supreme Court's decision in United 
States v. Booker, 543 U.S. 220 (2005), which invalidated the mandatory 
sentencing requirement of the Sentencing Guidelines (18 U.S.C. section 
3553(b)(1)), and struck down the de novo standard for appellate review 
of any downward departures in 18 U.S.C. Section 3742(e), which was 
enacted as part of the PROTECT Act in 2003.
  On March 13, 2006, the U.S. Sentencing Commission issued its report 
on Booker's impact on Federal sentencing. The Sentencing Commission's 
report shows that unrestrained judicial discretion has undermined the 
very purposes of the Sentencing Reform Act, and jeopardizes the basic 
precept of our Federal court system that all defendants should be 
treated equally under the law.
  The Federal Sentencing Guidelines are now advisory in all cases, even 
in those where they can be applied without any judicial fact-finding. 
Federal judges are now able to impose sentences outside the prescribed 
ranges, thereby undermining the very purpose of the Sentencing Reform 
Act to ``provide certainty and fairness in meeting the purposes of 
sentencing, avoiding unwarranted sentencing disparities among 
defendants with similar records who have been found guilty of similar 
criminal conduct.''
  The PROTECT Act ensured that appropriate sentences would be 
administered to sex offenders, pedophiles, child pornographers, and 
those who prey on our children. Thus, I am troubled that the 
Commission's Report shows that these fundamental sentencing reforms 
have been effectively eliminated. That is neither good nor acceptable 
for justice and public safety.
  Most alarming is the dramatic increase in departure rates for sex 
offenses including sexual abuse of a minor, sexual exploitation of a 
minor, and possession or trafficking in child pornography. Downward 
departures increased for these offenses to levels that had not existed 
since enactment of the PROTECT Act in 2003.
  The Sentencing Commission's report shows that in the last year there 
has been a six-fold increase in below guideline range sentences for 
defendants convicted of sexual abuse of a minor, a five-fold increase 
in below guideline range sentences for defendants convicted of sexual 
exploitation of a child, a 50 percent increase in below guideline range 
sentences for defendants convicted of sexual contact of a minor, 
trafficking in child pornography, and possession of child pornography.

  The report also shows an increase in overall departure rates for 
nearly all Federal offenses across all Federal jurisdictions, including 
drug trafficking offenses, firearms offenses, theft and fraud offenses, 
and immigration offenses. These four offense types comprise 75 percent 
of all Federal cases annually. According to current sentencing data, 
the rate of downward departures has not improved.
  Shortly after the release of the Booker report, I expressed my 
concern for the increase in departures rates, particularly for sexual 
offenses, and promised a legislative response. The Sentencing Fairness 
and Equity Restoration Act directs the courts to impose a sentence at 
the minimum of the guideline range up to the statutory maximum and 
reinstates de novo review for all downward departures. The act also 
requires the Attorney General to create and implement a new policy for 
the filing of motions for departure for substantial assistance and 
report this policy to Congress within 180 days of enactment of the 
bill.
  Mr. Speaker, I am introducing this legislation to restore equity in 
Federal sentencing and to ensure that tough sentences are handed out to 
all defendants, including sex offenders.

       The Sentencing Fairness and Equity Restoration Act of 2006


                      SECTION-BY-SECTION ANALYSIS

       Section 1. Short Title. This section provides that the Act 
     may be cited as the ``Sentencing Fairness and Equity 
     Restoration Act of 2006.''
       Section 2. Reaffirmation of Intent of Congress in the 
     Sentencing Reform Act of 1984.
       Subsection (a). This subsection amends section 3553(b)(1) 
     of title 18 to address the Supreme Court's holding in United 
     States v. Booker, 543 U.S. 220 (2005). The Booker court ruled 
     that the Sixth Amendment applies to the federal Sentencing 
     Guidelines and noted that the Sixth Amendment implications 
     hinged on the mandatory nature of the Guidelines, which are 
     dependent on judicial fact-finding. Id. at 232. In a separate 
     opinion, the Court excised the provision in section 3553(b) 
     that instructed the court to ``impose a sentence of the kind, 
     and within the range'' provided by the Guidelines.
       This subsection amends the first sentence of section 
     3553(b)(1) to instruct that the sentencing court may not 
     impose a sentence below the minimum of the guideline range 
     unless the court finds the existence of a mitigating 
     circumstance that is not adequately addressed by the 
     Sentencing Guidelines. The amendment also instructs that the 
     court may impose a sentence above the minimum of the 
     guideline range up to the statutory maximum sentence.
       Subsection (a) replaces the mandatory provision excised by 
     the Court with a requirement that the court adhere to only 
     the minimum of the guideline range established by the 
     Sentencing Commission. This requirement, however, is not 
     mandatory because the court may still depart from the minimum 
     of the range in certain instances.
       Subsection (a) also reaffirms Congress' intent in the 
     Sentencing Reform Act of 1984 that the maximum sentence a 
     judge may impose is the statutory maximum rather than the 
     Guideline maximum. The Booker Court reasoned that because 
     section 3553(b)(1) required courts to adhere to the 
     sentencing guidelines, the ``maximum'' sentence authorized by 
     law was, in fact, the Guideline maximum and not the statutory 
     maximum. Amended section 3553(b)(1) removes the mandatory 
     requirement from the sentencing statute. Thus, the court is 
     not bound by the Guideline maximum and may impose a sentence 
     up to the maximum authorized by statute.
       Subsection (a) makes identical revisions to section 
     3553(b)(2).
       Subsection (b). This subsection amends section 3553(c) to 
     conform with subsection (a). Section 3553( c) continues to 
     require the court to state for the record its reasons for 
     imposing a particular sentence. The amendment does not change 
     the ability of the court to receive information in camera 
     pursuant to the Federal Rules of Criminal Procedure and 
     requires the court to indicate for the record when such in 
     camera information is received and relied upon for sentencing 
     purposes. Finally, this subsection maintains current language 
     regarding restitution and dissemination of sentencing 
     transcripts.
       Subsection (c). This subsection amends section 3742(e) of 
     title 18 to re-establish the de novo appellate review 
     standard for downward departures. In Booker, the Court also 
     excised the de novo appellate review standard, which was 
     enacted as part of the PROTECT Act, based upon its rationale 
     that this section ``contains critical cross-references to the 
     (now excised) Sec. 3553(b)(1) and consequently must be 
     severed and excised for similar reasons.'' Id. at 247. The 
     Court, however, provides no nexus between the de novo 
     appellate standard of review and the Sixth Amendment right to 
     a jury for sentencing. Moreover, having excised the mandatory 
     sentencing provision in Sec. 3553(b)(I), the cross-reference 
     to that section in Sec. 3742(e) carries no Sixth Amendment 
     implications. Section 3742(e) merely outlines the criteria 
     appellate courts use to review sentences.
       Subsection (c) reasserts Congress' intent to reign in the 
     increasing rate of reduced sentences, particularly for sexual 
     offenses, expressed in the PROTECT Act. Pursuant to this 
     amendment, the appellate courts will continue to review 
     sentences below the minimum of the range de novo while 
     maintaining Booker's reasonableness standard for all other 
     sentencing appeals.
       Section 3. Uniform National Standards for Downward 
     Departures for Substantial Assistance. A significant result 
     of the Booker decision is the spike in downward departures 
     for substantial assistance imposed by the courts in the 
     absence of a government motion. Substantial assistance 
     motions are filed in instances where the defendant has 
     provided the government with information relating to another 
     investigation or prosecution. In reviewing this increase in 
     sua sponte departures, the committee has learned that the 
     government's standards for these motions vary from district 
     to district, creating the potential for disparate treatment 
     of similarly situated defendants.
       This section, therefore, directs the Attorney General to 
     implement a uniform policy for departure motions for 
     substantial assistance, including the definition of 
     substantial assistance in the investigation, the process for 
     determining whether departure is warranted, and the criteria 
     for determining the extent of departure. The amendment 
     instructs the Attorney General to report the policy to 
     Congress within 180 days of enactment of this Act.
       Section 4. Assuring Judicial Administrative 
     Responsibilities are Performed by the

[[Page E1926]]

     Judicial Branch. This section amends section 994(w) of title 
     28, which governs the reporting requirements of the federal 
     district courts to the U.S. Sentencing Commission. This 
     amendment simply clarifies that the reporting required by 
     this section is to be completed by the judicial branch and 
     may not be delegated to the executive branch.

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