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By declaring that the Federal Sentencing Guidelines are no longer fully binding "law" and thereby shifting some discretionary authority back to individual judges, United States v. Booker creates the opportunity to finally vindicate the holding in United States v. Mistretta. Congress can establish a new sentencing agency that is truly located in the judicial branch and that provides independent and expert sentencing guidance to judges. In urging that a new sentencing agency be structurally and functionally located "in the judicial branch," we mean that the judicial nature of the agency should be reflected in its composition, method of appointment, and work product. The last of these would be focused not on lawmaking, but on giving guidance-guidance to judges regarding the exercise of sentencing discretion, and guidance to Congress as to which factors relevant to punishment are best treated as elements of the crime and which are best treated as discretionary sentencing factors. Perhaps most importantly, we urge that the new agency's sentencing guidelines be subject to judicial review equivalent to that provided by the Administrative Procedure Act (APA) in order to ensure legitimacy and credibility with Congress, judges, and the public.
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