In the consolidated case of United States v. Pho, the government appealed two district court rulings that imposed criminal sentences outside of the range provided in the Federal Sentencing Guidelines Manual (Guidelines). At separate trials, both defendants pied guilty to the crime of possession with intent to distribute five grams or more of cocaine base (commonly known as crack). Rejecting the Guidelines' disparate treatment of crack and powder cocaine, the district court imposed sentences that were below the Guidelines' range, but above the statutory mandatory minimum. The Court of Appeals for the First Circuit vacated both sentences and remanded the case for reconsideration, holding that a federal judge does not have the authority to go outside the Guidelines' range based solely on a "categorical, policy-based rejection" of the disparate treatment of crack cocaine in relation to powder cocaine. The central issue in Pho was the status of the Federal Sentencing Guidelines after the Supreme Court decided the landmark case of United States v. Booker, in which the Court held that the Guidelines are merely advisory. Despite the Guidelines' lack of a mandatory provision, the First Circuit concluded that courts must still abide by policy choices reflected therein, although there may be individualized circumstances that warrant imposing a sentence outside of the Guidelines' range. In so doing, the court curbed the newfound judicial discretion that Booker provided. Given the court's decision in Pho, the question arises whether the Guidelines once again impose a mandatory sentencing range, even in limited circumstances, and even though the Supreme Court excised the statutory provision that had made the Guidelines mandatory. In resolving this issue, to what extent should the courts look to the intent of Congress? More importantly, how should courts approach sentencing in the wake of United States v. Pho? Although the once mandatory Guidelines are now merely advisory in all cases, this Note concludes that judges must nevertheless restrict their sentencing discretion within the limited confines of the federal statutes when reaching their ultimate sentencing decisions.

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