Opening Word document…

‘Should’ recommends a course of action.

David Trager 2k, Federal District Judge, 9/29/2000, Westlaw, United States v. Maria, 186 F.3d 65

8 Webster's Dictionary defines the phrase “should be” as something “that ought to be.” Webster's Third New Int'l Dictionary 2104 (1st ed.1993). See also Black's Law Dictionary 1379 (6th ed. 1990) (“[The word ‘should’] ordinarily impl[ies] duty or obligation; although usually no more than an obligation of propriety or expediency.”) (emphasis added). In contrast, the word “shall” is “used to express a command or exhortation,” and is “used in laws, regulations, or directives to express what is mandatory.” Webster's Dictionary, at 2085. See also Black's Law Dictionary, at 1375 (“As used in statutes, contracts, or the like, this word is generally imperative or mandatory.”). Thus, the common meaning of “should” suggests or recommends a course of action, while the ordinary understanding of “shall” describes a course of action that is mandatory. In the absence of a clear manifestation of intent on the part of the Sentencing Commission to attribute to “should” a meaning contrary to the common one, the term should be given its usual meaning. See Kirvan, 86 F.3d at 311.

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