Duquesne Law Review


The Supreme Court in United States v. Booker held that mandatory application of the United States Sentencing Guidelines is inherently unconstitutional, and, to preserve the federal sentencing structure, it excised several provisions of the United States Code that required district courts to adhere to the Guidelines in sentencing criminal defendants. Yet, the Court did not address one provision of the Code, 18 U.S.C § 3742(g)(2), that still requires district courts to adhere to the Guidelines in resentencing criminal defendants. This article explores this provision and concludes that it renders all resentencing in the federal system illegal, in violation of either the statute or the Constitution. District courts are called upon to recognize the unconstitutionality of 18 U.S.C. § 3742(g)(2) sua sponte and to excise it from the United States Code.

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