On January 12, 2005, the United States Supreme Court issued its opinion in United States v. Booker. The decision excised two portions of the Sentencing Reform Act that had made the Federal Sentencing Guidelines mandatory in nature, directed sentencing courts to "consult" the Guidelines and "take them into account" when sentencing, and provided a "reasonableness" standard for appellate review.

The Sentencing Commission is monitoring case law to learn how courts are adapting to this decision and is collecting and analyzing sentencing documentation received for cases sentenced post-Booker to begin the process of assessing the effect of the decision on federal sentencing. In addition, the Commission is seeking testimony on the present and future impact of Booker on federal sentencing.

Panelists are asked to testify regarding the following:

1) What changes, if any, to the federal statutes, Federal Sentencing Guidelines, or the Federal Rules of Criminal Procedure are needed to clarify sentencing procedures and standards in the wake of the Booker decision?

2) To what extent are courts required to "consider" or "take into account" the Federal Sentencing Guidelines in imposing a sentence? Should this be clarified through legislation and, if so, how?

3) What type of analysis should courts use for imposing sentences outside of the guideline sentencing range?

4) How will review by appellate courts for "unreasonableness" work in practice? Should a sentence within the guideline sentencing range be considered "presumptively reasonable"? How should sentences outside of the guideline range be reviewed, and should appellate review vary depending on whether the sentence outside of the guideline sentencing range was based on a departure basis specifically identified in the Guidelines Manual or pursuant to Booker?

5) Do the appellate review provisions of 18 U.S.C. § 3742 need to be amended in light of Booker and, if so, how? Might Congress, consistent with Booker, establish standards for appellate review of sentences different from the "reasonableness" standard discussed by the remedial majority? Might de novo review of sentences outside the recommended guideline range be re-established?

6) Will Booker adversely affect the ability of prosecutors to reach plea agreements or obtain other forms of defendant cooperation? How is USSG §5K1.1 (Substantial Assistance) affected? How are "fast track" programs and USSG §5K3.1 (Early Disposition Programs) affected? Is there any impact on USSG §3E1.1 (Acceptance of Responsibility), particularly with respect to the third offense level reduction?

7) Under the principles of Booker, may Congress prohibit judges from considering certain factors at sentencing? What factors, if any, would be appropriate to prohibit from consideration? After Booker, may courts consider factors that are currently prohibited from consideration under the Federal Sentencing Guidelines?

8) Under what conditions, if any, have advisory sentencing guidelines proven effective in the States? What commendations or criticisms have been voiced about the operation of advisory guideline systems?

9) How do States with advisory guidelines ensure that their guidelines are adequately considered? Do the States provide for appellate review and, if so, what is the standard of review and how does such review work in practice? Are sentences within the guideline sentencing range considered presumptively reasonable? Does compliance with State advisory guidelines vary depending on the width of the guideline sentencing ranges? How, if at all, does the accountability of judges to the legislature, the public, or their peers affect compliance with State advisory guidelines?

10) What recommendations, if any, do you have for changes to the federal sentencing system in either the short term or long term in light of Booker?