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Abstract

The U.S. Sentencing Commission created the U.S. Federal Sentencing Guidelines (hereinafter referred to as the Guidelines) pursuant to their statutory mandate to provide guidance to federal courts to rationalize federal criminal sentencing practices and “further the basic purposes of criminal punishment: deterrence, incapacitation, just punishment, and rehabilitation.”  Congress created the Sentencing Commission and authorized it to establish the Guidelines to reduce perceived disparities in the sentencing behaviors of federal judges by limiting and systematizing the factors that went into arriving at a sentence for an individual defendant.  The goal was to have defendants receive comparable sentences when convicted of comparable crimes if the defendants had similar criminal histories and their crimes shared similar aggravating or mitigating factors.  The Guidelines operate by categorizing crimes, based on their characteristics, into base offense levels.  After identifying the base offense level under the Guidelines, a trial judge determines a defendant’s sentence taking into consideration the defendant’s criminal history and individual factors that may justify either an upward or downward departure from the basic level.

This Article will focus on a simple empirical task of examining recent cases in which U.S. Circuit Courts of Appeals have explicitly reviewed U.S. district courts’ sentencing decisions involving the applicability of the terrorism enhancement.  The goal is to determine exactly what appellate courts are really doing when they review trial judges’ decisions in terrorism enhancement cases. The purpose of this task is to find out whether the pattern of actual review across circuits seems to indicate that Circuit Courts of Appeals are aggressively pursuing the nation’s fight against terrorism or if they are treating the cases as another routine category of sentencing cases.

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