Continuing Impact of United States v. Booker on Federal Sentencing, US Sentencing Commission, 2012

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Continuing Impact of United States v. Booker on Federal Sentencing, US Sentencing Commission, 2012

• Feb. 19, 2016 • Locations: United States of America • Topics: Sentencing

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Report on the

Continuing Impact of United States v. Booker
on Federal Sentencing

Patti B. Saris
Chair
William B. Carr, Jr.
Vice Chair
Ketanji B. Jackson
Vice Chair
Ricardo H. Hinojosa
Commissioner
Beryl A. Howell
Commissioner
Dabney L. Friedrich
Commissioner
Isaac Fulwood, Jr.
Commissioner, Ex-officio
Jonathan J. Wroblewski
Commissioner, Ex-officio

BOOKER REPORT 2012

Table of Contents

PART A
Overview ................................................................................................................................................ 1
What the Commission Studied .................................................................................................................................................... 1
What the Commission Found ...................................................................................................................................................... 3
Organization ................................................................................................................................................................................... 4
Summary of Key Findings ............................................................................................................................................................ 4
Summary of Recommendations .................................................................................................................................................. 9

History of the Federal Sentencing Guidelines .................................................................................... 10
Introduction .................................................................................................................................................................................. 10
Creation of the Commission and Development of the Guidelines ..................................................................................... 12
Evolution of the Guidelines ....................................................................................................................................................... 22
Pre-Booker Supreme Court Case Law and Statutory Changes............................................................................................... 23
The Booker Decision .................................................................................................................................................................... 25

The Sentencing Process After Booker ................................................................................................ 28
The Three-Step Process .............................................................................................................................................................. 28
Consideration of Offender Characteristics .............................................................................................................................. 32
Policy Disagreements with the Guidelines............................................................................................................................... .36
Post-Booker Appellate Review .................................................................................................................................................... 43

Analysis of Federal Sentencing Data .................................................................................................. 51
Methodology ................................................................................................................................................................................. 51
Analysis and Findings .................................................................................................................................................................. 58
Federal Offenders Have Continued to Receive Substantial Prison Sentences ............................................................. 59
The Guidelines Have Remained the Essential Starting Point for Federal Sentences .................................................. 60
The Influence of the Guidelines Has Varied by Offense Type, Remaining Stable in Drug Trafficking, Firearms,
and Immigration Offenses, and Diminishing in Fraud and Child Pornography Offenses ......................................... 62

BOOKER REPORT 2012
The Rates of Within Range Sentences Have Decreased, as the Rates of Both Government Sponsored and NonGovernment Sponsored Below Range Sentences Have Increased ................................................................................. 69
The Influence of the Guidelines Has Varied by Circuit ................................................................................................... 75
The Rates of Non-Government Sponsored Below Range Sentences, and Variation in Those Rates, Have
Increased Since Booker ............................................................................................................................................................ 89
Average Reductions Below the Guideline Minimum for Non-Government Sponsored Below Range Sentences
Have Varied by Offense Type .............................................................................................................................................. 91
Government Sponsored Below Range Sentences and Differences in Prosecutorial Practices Have Contributed to
Increasing Variation in Sentencing ....................................................................................................................................... 93
The Rates of Non-Government Sponsored Below Range Sentences Vary Among Judges Within the Same
District ...................................................................................................................................................................................... 98
Appellate Review Has Not Promoted Sentencing Uniformity to the Extent Anticipated in Booker .......................105
Demographic Factors (Such as Race, Gender, Citizenship) Are Associated with Sentencing Outcomes at Higher
Rates than in Previous Periods ...........................................................................................................................................108

Recommendations..............................................................................................................................11
Develop More Robust Appellate Review ..............................................................................................................................111
Require a Presumption of Reasonableness for Within Range Sentences on Appeal .................................................112
Require Greater Justification for Sentences Substantially Outside the Guideline Range ..........................................112
Require Heightened Review of Sentences Based on Policy Disagreements with the Guidelines .............................112
Reconcile the Statutes that Restrict the Commission’s Consideration of Offender Characteristics with Statutory
Interpretations that Require Courts to Consider Those Same Characteristics More Expansively ...............................113
Codify the Three-Step Process ................................................................................................................................................114
Resolve the Uncertainty About the Weight to be Given the Guidelines at Sentencing .................................................114

BOOKER REPORT 2012

ONLINE CONTENT
(www.ussc.gov)

PART B: Appellate Review ......................................................................................................................
This Part contains additional Supreme Court and Circuit Court case law, discussion of viewpoints on appellate
procedure as expressed in public hearings, case law, and the 2010 survey of district judges, and an analysis of data
on sentencing appeals.

PART C: Methodology and Statistical Analysis of Federal Sentencing Data .........................................
Following a description of the Commission’s methodology, each sub-section in Part C includes an overview of
fiscal year 2011 data, and trend data covering four periods – PROTECT Act, Koon, Booker, and Gall, − as well as
Appendices with additional tables.
 Federal Offenses in the Aggregate
 Drug Trafficking
 Powder Cocaine Trafficking
 Crack Cocaine Trafficking
 Heroin Trafficking
 Marijuana Trafficking
 Methamphetamine Trafficking
 Immigration Offenses
 Alien Smuggling Offenses
 Illegal Entry Offenses
 Firearms Offenses
 Fraud Offenses
 Child Pornography Offenses
 Production Offenses
 Non-Production Offenses (Trafficking, Receipt, and Possession)
 Career Offenders

PART D: Spread of Non-Government Sponsored Below Range Sentences by Circuit and District......
After a brief introduction and explanation of the Commission’s methodology, this Part analyzes non-government
sponsored below range rates by judge within each of the 94 judicial districts, illustrating the spread in the rates
among judges within the same district, and the spread in the extent of the reductions below the guideline minimum.
Plots depicting the spread in the rates and the extent of the reductions for each of the 94 districts follow.

PART E: Demographic Differences in Sentencing .................................................................................
In this Part, the Commission updates its multivariate regression analysis on demographic differences in sentencing,
last published in March 2010, and also presents additional multivariate analyses. Appendices to this part contain
additional data and variables used in the analyses.

PART F: Summary of Stakeholder Views on Sentencing Reform...........................................................
In this Part, the Commission describes other proposals for sentencing reform and summarizes public hearing
testimony related to post-Booker sentencing as well as a survey of district judges conducted in 2010.

iii

BOOKER REPORT 2012: PART A

Overview

WHAT THE COMMISSION STUDIED
The United States Sentencing Commission
(“the Commission”) submits this report to Congress1
on the impact of United States v. Booker2 on federal
sentencing in order to assist Congress in its efforts to
ensure certain and fair sentencing that avoids
unwarranted sentencing disparities while maintaining
sufficient flexibility,3 as envisioned in the Sentencing
Reform Act of 1984 (“SRA”). In preparing this report,
the Commission reviewed case law, analyzed
sentencing data,4 and studied scholarly literature.
1

The Commission submits this report pursuant to its
general authority under 28 U.S.C. §§ 994-995, and its
specific authority under 28 U.S.C. § 995(a)(2), which
provides that the Commission shall have authority to “make
recommendations to Congress concerning modification or
enactment of statutes relating to sentencing, penal, and
correctional matters that the Commission finds to be
necessary and advisable to carry out an effective, humane
and rational sentencing policy.”

543 U.S. 220 (2005).

See 28 U.S.C. § 991(b)(1)(B) (“The purposes of the
United States Sentencing Commission are to . . . provide
certainty and fairness in meeting the purposes of sentencing,
avoiding unwarranted sentencing disparities among
defendants with similar records who have been found guilty
of similar criminal conduct while maintaining sufficient
flexibility to permit individualized sentences when
warranted by mitigating or aggravating factors not taken
into account in the establishment of general sentencing
practices[.]”).
4

The Commission maintains a comprehensive,
computerized data collection system and acts as the
clearinghouse for federal sentencing information pursuant to
28 U.S.C. §§ 995(a)(14), (15). The Commission relies on
this database for its ongoing monitoring and evaluation of

The Commission also sought the views of stakeholders
in the federal criminal justice system in a variety of
ways, including conducting seven regional public
hearings,5 an additional hearing on post-Booker
the guidelines, many of its reports and research projects, and
for responding to hundreds of data requests received from
Congress and other criminal justice entities each year.
Pursuant to 28 U.S.C. § 994(w), within 30 days of entry of
judgment in every felony and class A misdemeanor case, the
Commission receives: (1) the judgment and commitment
order; (2) the statement of reasons; (3) the plea agreement, if
any; (4) the indictment or other charging information; and
(5) the presentence report (unless waived by the court). For
each case, the Commission routinely collects hundreds of
pieces of information, including defendant demographics,
statute(s) of conviction, application of (or relief from) any
statutory mandatory minimum penalty, sentencing guideline
applications, sentences imposed, and the reasons for any
sentence that departs or varies from the guidelines range. A
detailed description of the methodologies the Commission
used to analyze the data for this report is in Part C, available
online.
5

The Commission held seven regional public hearings
coinciding with the 25th anniversary of the enactment of the
Sentencing Reform Act of 1984 to solicit the views of
judges, prosecutors, defense attorneys, probation officers,
academics, and others on a variety of federal sentencing and
criminal justice topics. These hearings were held in Atlanta,
GA (Feb. 10-11, 2009), Stanford, CA (May 27-28, 2009),
New York, NY (July 9-10, 2009), Chicago, IL (Sept. 9-10,
2009), Denver, CO (Oct. 20-21, 2009), Austin, TX (Nov.
19-20, 2009), and Phoenix, AZ (Jan. 20-21, 2010). Witness
statements and transcripts for the public hearings are
available online at
http://www.ussc.gov/Legislative_and_Public_Affairs/.
Summaries of the testimony relating specifically to postBooker sentencing issues can be found in Part F of this
report, available online.

BOOKER REPORT 2012: PART A
sentencing held in February 2012,6 a survey of federal
district judges,7 and considering comments from its
advisory groups8 as well as representatives from all
three branches of government.
The Commission also undertook statistical
analyses of federal sentencing data for five offense
types (drug trafficking, firearms, immigration, fraud,
and child pornography) and one commonly applied
guideline (career offender). In fiscal year 2011, four
of these offenses (immigration, drug trafficking,
firearms, and fraud) constituted over three quarters of
federal offenses. The offense types studied in this
report comprised nearly 80 percent of federal criminal
cases in fiscal year 2011.
The Commission commonly
analyzes
sentences by comparing the sentence imposed in a
case with the applicable guideline range provided in
the Guidelines Manual for that case. Through this
analysis, the Commission routinely groups sentences
into one of four categories: (1) sentences that fall
within the guideline range; (2) sentences that are
above the top of the guideline range; (3) sentences that
are below the bottom of the guideline range
attributable at least in part to a request from the
government; and (4) sentences that are below the
bottom of the guideline range but are not attributable
to a request from the government.9 In this report,
6

The Commission held a hearing on federal sentencing
options after Booker in Washington, DC on February 16,
2012. Witness statements and transcripts for this public
hearing are available on the Commission’s webpage at
www.ussc.gov. Summaries of the testimony can be found
in Part F of this report, available online.
7

In early 2010, the Commission conducted a survey of
federal district judges to solicit their views on a variety of
sentencing topics. See U.S. SENT’G COMM’N, RESULTS OF
SURVEY OF UNITED STATES DISTRICT JUDGES: JANUARY
2010 THROUGH MARCH 2010 (June 2010) [hereinafter 2010
JUDGES’ SURVEY], available on the Commission’s webpage
at www.ussc.gov. A summary of the survey responses
related to post-Booker sentencing issues can be found in
Part F of this report, available online.
8

The Commission has three standing advisory groups: the
Practitioners Advisory Group, the Probation Officers
Advisory Group, and the Victims Advisory Group.
Information on each of these advisory groups can be found
on the Commission’s webpage at www.ussc.gov.

See Table N, “National Comparison of Sentence Imposed
and Position Relative to the Guideline Range,” U.S. SENT’G

sentencing trends are discussed using these four broad
categories:
“within
range;”
“above
range;”
“government sponsored below range;” and “nongovernment sponsored below range.”
In some analyses in this report, the
Commission further divides government sponsored
below range sentences into three subgroups. First,
“substantial assistance departures” are those sentences
where the government requested a sentence below the
guideline range on account of the defendant’s
substantial assistance to the government in connection
with the investigation or prosecution of another
person. Second, “Early Disposition Program (or EDP)
departures” are sentences where the government
sought a sentence below the guideline range because
the defendant participated in the government’s Early
Disposition Program, through which cases are resolved
in an expedited manner. Both substantial assistance
and EDP departures are specifically authorized by
statute and are incorporated into the Guidelines
Manual through specific policy statements. “Other
government sponsored below range” sentences are all
other below range sentences imposed at the request of
the government for a reason other than substantial
assistance or EDP. “Other government sponsored
below range” sentences are not specifically authorized
by any statute, and are not incorporated into the
Guidelines Manual through any guideline or policy
statement.
The Commission also analyzed sentencing
data from individual judges in order to determine
intra-district sentencing patterns across time, and
examined appellate court decisions collected annually
since 1994. Finally, the Commission updated and
expanded its prior multivariate analysis of
demographic differences in federal sentencing
outcomes, most recently published in March 2010.10
The Commission’s sentencing data analyses
spanned a broad time frame, from October 1995
through September 2011. In most instances, four
periods were examined: the Koon period (June 13,
1996 through April 30, 2003), the PROTECT Act
COMM’N, SOURCEBOOK OF FEDERAL SENTENCING
STATISTICS (2011) [hereinafter 2011 SOURCEBOOK].
10

U.S. SENT’G COMM’N, DEMOGRAPHIC DIFFERENCES IN
FEDERAL SENTENCING PRACTICES: AN UPDATE OF THE
BOOKER REPORT’S MULTIVARIATE REGRESSION ANALYSIS
(March 2010) [hereinafter MULTIVARIATE REPORT].

BOOKER REPORT 2012: PART A
period (May 1, 2003 through June 24, 2004), the
Booker period (January 12, 2005 through December
10, 2007), and the Gall period (December 11, 2007
through September 30, 2011). The Commission
selected these periods based on Supreme Court
decisions and legislation that influenced federal
sentencing in fundamental ways. Specifically, in
United States v. Koon,11 the Supreme Court defined
the level of deference due to district courts’ decisions
to sentence outside the guideline range and determined
that such decisions should be reviewed for abuse of
discretion. In passing the PROTECT Act12 nearly
seven years later, Congress restricted district courts’
discretion to impose sentences outside the guideline
range, and required that courts of appeals review such
decisions de novo, or without any deference to the
district court’s decision. In Booker, the Supreme
Court struck down two statutory provisions in the SRA
that made the guidelines mandatory, and also defined
the standard of review for sentences on appeal. In
Gall v. United States,13 the Court further defined the
appellate standard of review.

WHAT THE COMMISSION FOUND
The sentencing guidelines have remained the
essential starting point in all federal sentences and
have continued to exert significant influence on federal
sentencing trends over time.
The most stable
relationship between the guidelines and sentences
imposed occurred in some of the most frequently
prosecuted offenses, including drug trafficking,
immigration, and firearms offenses. In other types of
offenses, such as fraud and child pornography, the
influence of the guidelines appeared to have
diminished over time in several measurable ways,
including decreasing rates of sentences imposed within
the sentencing guideline ranges, and increasing rates
of non-government sponsored below range sentences
(those below range sentences imposed at the judges’
discretion and not in response to a government
motion). Increasing rates of below range sentences
sponsored by the government for reasons other than
substantial assistance, as well as differences in
prosecutorial practices across districts, also have
11

518 U.S. 81 (1996).

Pub. L. No. 108-21 (2003).

552 U.S. 38 (2007).

contributed to decreasing rates of within range
sentences and increasing variation in sentencing for
some offenses.
Regional disparities have increased, as
evidenced by the variation in rates of within range
sentences among the circuits and districts. Further, the
Commission’s analysis of individual judge data
showed that the identity of the judge has played an
increasingly important role in sentencing outcomes in
many districts.
The Commission also found that demographic
characteristics are now more strongly correlated with
sentencing outcomes than during previous periods,
although the Commission does not suggest that this
correlation indicates race or gender discrimination on
the part of judges. This troubling trend also has been
replicated in multivariate analyses performed by other
researchers, albeit to different magnitudes.
Finally, the courts of appeals have not
promoted uniformity in sentencing to the extent the
Supreme Court anticipated in Booker. The appellate
courts lack adequate standards and uniform procedures
in spite of a number of Supreme Court rulings
addressing them, and the ultimate outcome of the
substantive review of a sentence may depend in part
on the circuit in which the appeal is brought.
Additionally, only a small percentage of sentences are
appealed, and usually only by the defendant.
The trends described in this report have
developed gradually since Booker. In the aggregate,
federal sentences have shown general stability, as seen
in the Commission’s analysis of sentence lengths and
their relation to the minimum of the guideline range
over time. Nonetheless, unwarranted disparities in
federal sentencing appear to be increasing. Judges are
following the dictates of the Supreme Court in Booker
and subsequent decisions in different ways, with some
judges weighing factors such as the characteristics of
the offense and the offender differently than other
judges in similar cases. Indeed, the role of the
guidelines has become less pronounced, in part
because of a series of Supreme Court cases
emphasizing the advisory nature of the guidelines and
the traditional importance of individual offender
characteristics in sentencing, and the requirement, as
stated by the Court, that judges independently consider
the characteristics of the offense and the offender
under 18 U.S.C. § 3553(a). The Commission’s
recommendations are aimed at strengthening the
guideline system so that the sentencing guidelines can
help move sentencing in the direction Congress

BOOKER REPORT 2012: PART A
intended in the SRA in a manner consistent with the
Constitution and Supreme Court decisions.

ORGANIZATION
This report is submitted in six parts. Part A,
available both in print and online, presents a
condensed background of major legal events in federal
sentencing, describes the results of the Commission’s
data analyses, and discusses the Commission’s
proposals for strengthening the federal sentencing
guidelines system.
The following additional sections containing
more detailed information and supporting data are
available only online, on the Commission’s website
(www.ussc.gov):
Part B of this report features exhibits listing
some of the leading Supreme Court and circuit court
opinions on key pre- and post-Booker sentencingrelated issues and summarizes viewpoints on appellate
procedure from circuit court opinions, the
Commission’s training seminar, public hearings, and
the 2010 survey of district judges. Part B also
provides additional data on sentencing appeals.
Part C explains both the methodology used in
many of the report’s data analyses and how to interpret
the charts and graphs used throughout this report. This
part analyzes in detail data from federal courts,
focusing on five offense types and one commonly
applied guideline: drug trafficking, immigration, fraud,
firearms, child pornography, and the career offender
guideline. Additional charts and graphs for each
offense type and guideline follow.
Part D analyzes non-government sponsored
below range sentence rates of individual judges, and
intra-district disparity in those rates. Plots depicting
the rates of non-government sponsored below range
sentences and the extent of the reduction for each
judge in each district are in Part D, as well as
explanatory notes on how to interpret the plots.
Part E updates the multivariate regression
analysis used for the Commission’s 2010 report on
Demographic Differences in Federal Sentencing
Practices to determine whether there continues to be a
correlation between sentencing outcomes and
demographic characteristics.
In conducting this
analysis the Commission used, as it did in the 2006

Booker Report,14 a research tool common in the social
and behavioral sciences.
Multivariate regression
analysis is used to examine data where multiple factors
may contribute to an observed outcome, such as the
sentencing of federal offenders. The principal benefit
of this tool is that it accounts, or controls, for the effect
of each factor in the analysis. Each factor can then be
separately assessed, and the extent to which each
factor influences the outcome can be measured. The
analysis describes the magnitude of any differences
observed, focusing on four separate time periods. This
section also presents additional multivariate analyses,
including analyses of three major offense types: drug
trafficking, firearms, and fraud.
Part F discusses other stakeholders’ views on
sentencing reform, including testimony from the 20092010 regional public hearings on the 25th anniversary
of the SRA and the February 2012 public hearing on
post-Booker sentencing. Summaries of the public
hearings and of the Commission’s 2010 survey of
district judges are also in Part F.
Appendices containing additional data and
more detailed descriptions of the methodologies used
in the analyses follow the relevant sections in the
online content.

SUMMARY OF KEY FINDINGS
In light of the extensive data analyses, the
review of case law, and other relevant information
presented in this report, the Commission makes the
following findings:

The number of federal offenders has
substantially increased, and most federal
offenders have continued to receive substantial
sentences of imprisonment.
The number of federal offenders has increased
substantially over the 16 years studied in this report,
and most have continued to receive substantial
sentences of imprisonment. In fiscal year 1996,
37,091 federal offenders were sentenced, compared to
76,216 in fiscal year 2011.15 The percentage of federal
14

U.S. SENT’G COMM’N, REPORT ON THE IMPACT OF
UNITED STATES V. BOOKER ON FEDERAL SENTENCING (2006)
[hereinafter 2006 BOOKER REPORT].
15

The dataset used for this report differs from that used in
the Commission’s 2011 SOURCEBOOK. An explanation of

BOOKER REPORT 2012: PART A
offenders sentenced to serve a term of imprisonment
without any alternative to incarceration as a part of the
sentence also has increased over this period from 76.9
percent in fiscal year 1996, to 87.8 percent in fiscal
year 2011. In fiscal year 1996, 10.9 percent of federal
offenders were sentenced to probation only, 7.4
percent were sentenced to a combination of probation
and some form of confinement (e.g., home detention
or other confinement), and 4.8 percent were sentenced
to a combination of incarceration and community
confinement. In fiscal year 2011, 5.8 percent of
federal offenders received a sentence of probation
only, and 6.4 percent received either a combination of
probation and some form of confinement, or a
combination of incarceration and community
confinement.
For offenses in the aggregate, the average
length of the sentence imposed during the Gall period
was 49 months, the same as during the Koon period,
but a few months shorter than during the PROTECT
Act period (53 months) and the Booker period (54
months). The decrease from the Booker period was
due in part to the increasing prevalence of immigration
offenses, which generally resulted in lower sentences
than other offenses. During the PROTECT Act
period, for example, immigration offenses were 18.9
percent of the federal caseload, whereas in the Gall
period, immigration offenses were 29.0 percent.
Average sentences for illegal entry offenders have
decreased over time due in part to guideline
amendments lowering penalties and in part to
increasing rates of EDP departures.
Average sentences for drug trafficking
offenders were shorter during the Gall period (75
months) than during the Booker period (83 months),
due largely to reduced penalties for crack cocaine
trafficking offenders. From the Koon period to the
Gall period, sentences for child pornography nonproduction offenders (including trafficking, receipt,
and possession) increased nearly three-fold, from 34
months to 93 months. Sentences for fraud offenders
nearly doubled, from 13 months in the Koon period, to
25 months in the Gall period. In child pornography
and fraud offenses, these increases were due to both
increased seriousness of offenses over time, and
statutory and guideline increases. Sentences for
the criteria used to define the dataset in this report is in the
Methodology section of Part A, infra at 52, and in the
Methodology section of Part C, available online.

firearms offenders were also highest during the Gall
period, at 59 months, compared to 56 months in the
Koon period.

The influence of the guidelines, as measured by
the relationship between the average guideline
minimum and the average sentence, has
generally remained stable in drug trafficking,
firearms, and immigration offenses, but has
diminished in fraud and child pornography
offenses.
Although trends in average sentences for all
offenses generally have followed average guideline
minimums over time, there have been noticeable
differences by offense type. In drug trafficking,
firearms, and immigration, three offense types which
comprised more than two-thirds of federal offenses in
fiscal year 2011, the influence of the guidelines has
remained stable over time. For these offenses, average
sentences have increased or decreased in response to
16

See Rita v. United States, 551 U.S. 338, 351 (2007);
Gall, 552 U.S. at 49−50.

BOOKER REPORT 2012: PART A
increases and decreases in average guideline
minimums, resulting in a consistent parallel
relationship over time. In drug trafficking offenses,
although average sentences have been lower than
average guideline minimums, much of the difference
between the average guideline minimum and the
average sentence has been due to the prevalence of
government sponsored below range sentences for
substantial assistance.
In contrast, in fraud and child pornography
offenses, the average guideline minimum and the
average sentence have diverged, and the divergence
has grown over time. For both offense types, as the
average guideline minimum has increased, the average
sentence has remained flat by comparison. In these
cases, the difference between the average guideline
minimum and the average sentence has been largely
due to increasing rates of non-government sponsored
below range sentences, leading to the conclusion that
the influence of the guidelines has diminished for
fraud and child pornography offenses.
Similarly, in career offender cases, of which
94.7 percent were drug trafficking, robbery or firearms
offenses in fiscal year 2011, the average sentence
diverged from the average guideline minimum during
the Gall period. The percentage difference between
the average guideline minimum and the average
sentence was greatest in fiscal year 2011, at 24.9
percent.
The increasing difference has been
attributable to increases in the rates of both
government sponsored and non-government sponsored
below range sentences.

Act but had been informally used before then in a
number of districts, and had generally been reported
by the Commission as “other downward departures,”
and not attributed to the government. In child
pornography non-production offenses (including
trafficking, receipt, and possession offenses) where the
average guideline minimum and the average sentence
have noticeably diverged, the rates of non-government
sponsored below range sentences now exceed those of
within range sentences.

The influence of the guidelines, as measured by
the relationship between the average guideline
minimum and the average sentence, and as
measured by within range rates, has varied by
circuit.
For all offense types studied, the degree of
influence of the guidelines has varied by circuit. For
offense types in the aggregate, the average sentence
has largely paralleled the guideline minimum in the
majority of circuits, but in several circuits, the average
sentence and average guideline minimum have
diverged, most notably during the Gall period. Even
in drug trafficking and firearms offenses, where the
influence of the guideline has remained most stable at
a national level, the degree of parallelism has varied
by circuit. The circuit-level variation has been more
pronounced for child pornography and fraud offenses.
Within range rates have varied by circuit, as
well as by offense. The decrease in within range rates
has been driven by different factors, depending on the
circuit and the type of offense. For example, the rates
of government sponsored below range sentences have
been highest in the Ninth Circuit because of EDP
departures in both immigration and marijuana
trafficking offenses. In fraud and child pornography
offenses, within range rates have decreased in every
circuit, but more in some circuits than in others. For
example, for fraud offenses in the Second Circuit,
rates of non-government sponsored below range
sentences have been higher than the rates of within
range sentences. This pattern has not occurred for
fraud offenses in any other circuit.

BOOKER REPORT 2012: PART A

The rates of non-government sponsored below
range sentences have increased in most districts
and the variation in such rates across districts
for most offenses was greatest in the Gall period,
indicating that sentencing outcomes increasingly
depend upon the district in which the defendant
is sentenced.
For most offense types, the rates of nongovernment sponsored below range sentences were
highest and more varied during the Gall period than
during any previous periods. For drug trafficking,
firearms, fraud, immigration (illegal entry) and child
pornography (non-production) offenses, both the rates
of non-government sponsored below range sentences
and the variation in rates across the districts increased
in the Booker period compared to the PROTECT Act
period, and again in the Gall period compared to the
Booker period. The difference in rates was greatest for
child pornography non-production offenses (including
trafficking, receipt, and possession) and was smallest
in drug trafficking and firearms offenses. Therefore,
for most offenses, the district in which the defendant
was sentenced played a greater role in the sentencing
outcome during the Gall period than during any
previous periods.

tripled, from 36 months in the Koon period to 115
months in the Gall period. In terms of months, the
reduction from the guideline minimum nearly tripled
from 15 months below the guideline minimum in the
Koon period to 44 months below the guideline
minimum in the Gall period. As a percentage of the
guideline minimum, however, the extent of the
reduction decreased over time, from 55.7 percent
below the guideline minimum in the Koon period, to
40.4 percent below the guideline minimum in the Gall
period. In contrast, the reductions in illegal entry
offenses have held steady at 12 months below the
guideline minimum in the PROTECT Act, Booker, and
Gall periods.

Prosecutorial practices have contributed to
disparities in federal sentencing.
Differences in charging and plea agreement
practices at the district level have contributed to
sentencing disparities. For example, in its 2011 report
to Congress on mandatory minimum penalties,17 the
Commission reported wide variations in prosecutorial
practices surrounding the filing of notices of enhanced
mandatory minimum penalties in drug trafficking
offenses, the charging of multiple violations of 18
U.S.C. § 924(c) which requires mandatory minimum
sentences to be served consecutive to underlying drug
trafficking offenses or crimes of violence, and the use
of binding plea agreements to specify the sentence.18
Differences in these practices may not be evident in
the documents provided to the Commission, but they
influence the resulting sentence and reduce both
uniformity and transparency in the sentencing process.
One inconsistency in prosecutorial charging decisions
occurred in child pornography offenses, where
interviews conducted with federal prosecutors and a
review of sentencing documents revealed that
prosecutors inconsistently charged possession of child
pornography, which does not carry a mandatory
minimum penalty, and receipt of child pornography,
which carries a 5-year mandatory minimum penalty.19

U.S. SENT’G COMM’N, REPORT ON MANDATORY
MINIMUM PENALTIES IN FEDERAL SENTENCING (Oct. 2011)
[hereinafter 2011 MANDATORY MINIMUM REPORT].
18

Id. at 109-10, 111-14.

Id. at 114.

BOOKER REPORT 2012: PART A
Moreover, differences in the way government
sponsored departures and variances have been applied,
specifically with respect to EDP and other government
sponsored below range sentences, have contributed to
unwarranted disparity.
Of the three types of
government sponsored below range sentences
(substantial assistance, EDP, and other government
sponsored), substantial assistance departures have
been the most common and typically have led to the
greatest reductions in sentence length (more than 40
months below the guideline minimum for offenses in
the aggregate during every period studied).
Substantial assistance departure rates have generally
decreased over time. However, the rate of EDP
departures has increased substantially over time, as
such programs have become more prevalent and have
applied to more offense types. A recent policy change
in the Justice Department in which all districts were
required to create an EDP program for illegal entry
offenses suggests that such departures will become
even more common in the future. Compared to
substantial assistance departures, EDP departures have
resulted in relatively modest reductions in sentence
length (10 months below the guideline minimum
during the Gall period) consistent with the fact that
USSG §5K3.1 (Early Disposition Programs (Policy
Statement)) limits EDP departures to no more than a 4level reduction. The rates of other government
sponsored below range sentences have increased but
have remained low compared to the rates of both
substantial assistance and non-government sponsored
below range sentences.

differed by 30 percent or more. Although the analysis
did not compare judges within a specific division or
courthouse within each district, the rates of nongovernment sponsored below range sentences were
sufficiently varied within each district to cause
concern that similar offenders committing similar
crimes were sentenced differently depending upon the
judge. Generally, the extent of the reduction below the
guideline minimum varied during all time periods
studied, but did not appear to be influenced by
Supreme Court decisions or statutory changes over
time.

Appellate review has not promoted uniformity in
sentencing to the extent the Supreme Court
anticipated in Booker.
In Booker, the Supreme Court acknowledged
that appellate review of sentences for reasonableness
would not “provide the uniformity that Congress
originally sought to secure,” but nonetheless
anticipated that appellate review “would tend to iron
out sentencing differences.”20 The Commission’s
review of case law and sentencing appeals data
suggests that the current system of appellate review is
not an adequate tool to promote uniformity in
sentencing. In response to Supreme Court cases
following Booker, circuit courts have adopted different
approaches to reviewing sentences, and panels of
judges in different circuits have reached different
conclusions regarding the substantive reasonableness
of similar sentences. In addition, the infrequency of
sentencing appeals, particularly by the government,
has limited the influence of the appellate process on
sentencing uniformity.

Demographic factors (such as race, gender, and
citizenship) have been associated with sentence
length at higher rates in the Gall period than in
previous periods.
The Commission’s updated multivariate
regression analysis showed, among other outcomes,
that Black male offenders have continued to receive
longer sentences than similarly situated White male
offenders, and furthermore that this difference in
sentence length was greatest during the Gall period.
In addition, female offenders have received shorter
20

543 U.S. at 263.

BOOKER REPORT 2012: PART A
sentences than similarly situated male offenders.
Alternative analyses performed by other researchers
have replicated the pattern identified in the
Commission’s analysis, although to a somewhat lesser
degree, that certain demographic differences were least
pronounced during the PROTECT Act period and
most pronounced during the Gall period. Because
judges make sentencing decisions based on many legal
considerations, such as violence in an offender’s past,
or an offender’s employment history, which are not
controlled for in the Commission’s multivariate
regression analysis, these results should be interpreted
with caution and should not be taken to suggest race or
gender bias on the part of judges.

SUMMARY OF RECOMMENDATIONS
The Commission continues to believe that a
strong and effective guidelines system best achieves
the purposes of the SRA. Consistent with its October
12, 2011 testimony before the Subcommittee on
Crime, Terrorism, and Homeland Security of the
House Committee on the Judiciary, the Commission
believes that Congress should consider the following
recommendations to strengthen the guidelines system,
provide more effective substantive appellate review,
and generally promote the goals of the SRA:

the remaining section 3553(a) factors taken as a
whole in determining the sentence to be imposed,
including whether a variance is warranted; and
 Resolve the uncertainty about the weight to be
given to the federal sentencing guidelines by
requiring courts to give substantial weight to the
guidelines at sentencing.
The Commission believes these proposals, if
adopted, would promote the purposes of the SRA,
while respecting the defendant’s Sixth Amendment
rights. As envisioned by the SRA, the Commission
will continue to refine the guidelines in response to
feedback and information it receives from the criminal
justice community and data it collects from sentencing
documents. The Commission also understands that
more substantial reforms may be necessary in the
future should these reforms fail to reduce existing
unwarranted disparities.

 Develop more robust substantive appellate review
by requiring a presumption of reasonableness on
appellate review of within range sentences, greater
justification for sentences further outside the
guideline range, and heightened review of
sentences based on policy disagreements with the
guidelines;
 Reconcile the statutes that restrict the
Commission’s consideration of certain offender
characteristics when promulgating guidelines that
meet the purposes of sentencing, with statutory
interpretations that require courts to consider more
expansively those same offender characteristics at
sentencing;
 Codify the three-step sentencing process, as
incorporated in the guidelines and consistent with
the process the Supreme Court established in Gall,
which requires courts to determine properly the
applicable guideline range (see § 3553(a)(4)),
consider guideline departures and policy
statements (see § 3553(a)(5)), and then consider

BOOKER REPORT 2012: PART A

History of the Federal Sentencing Guidelines

INTRODUCTION
In 1984, Congress enacted the Sentencing
Reform Act of 198421 (“SRA”) in response to
widespread sentencing disparity in federal sentencing.
The SRA ushered in a new era of federal sentencing
through the creation of the Commission and the
promulgation of federal sentencing guidelines. For
nearly twenty years, courts were required to impose
sentences within the applicable guideline range unless
the court found the existence of an aggravating or
mitigating circumstance of a kind or to a degree not
adequately taken into consideration by the
Commission
in
formulating
the
sentencing
guidelines.22
In 2005, the Supreme Court’s two-part
decision in United States v. Booker23 began yet another
era of federal sentencing by rendering the federal
sentencing guidelines “effectively advisory.”24 In
Booker, the Court held that enhancing a sentence
under the federal sentencing guidelines based on the
sentencing judge’s determination of a fact (other than
a prior conviction) that was not found by the jury or
admitted by the defendant violated the defendant’s
Sixth Amendment right to trial by jury.25 The Court
remedied the Sixth Amendment violation by excising
21

Title II, Comprehensive Crime Control Act of 1984, Pub.
L. No. 98-473 (1984).
22

18 U.S.C. § 3553(b)(1), excised by United States v.
Booker, 543 U.S. 220 (2005).

543 U.S. 220 (2005).

Id. at 245.

Id. at 244.

the provisions of the SRA that the Court held made the
sentencing guidelines “mandatory,” thereby rendering
the guidelines advisory in nature.26
Since Booker the Supreme Court has issued
eight decisions directly related to the operation of the
federal sentencing guidelines.27
Together these
decisions have not only significantly affected the
sentencing practices of the district courts but also have
reinstated a deferential standard of review in the
appellate courts. Nonetheless, the Commission and
the guidelines continue to play an important role in
federal sentencing. As the Supreme Court stated in
Booker:
[T]he
Sentencing
Commission
remains in place, writing Guidelines,
collecting information about actual
district court sentencing decisions,
undertaking research, and revising the
Guidelines accordingly.28
26

Id. at 245.

Rita v. United States, 551 U.S. 338 (2007); Gall v.
United States, 552 U.S. 38 (2007); Kimbrough v. United
States, 552 U.S. 85 (2007); Irizarry v. United States, 553
U.S. 708 (2008); Spears v. United States, 555 U.S. 261
(2009) (per curiam); Nelson v. United States, 555 U.S. 350
(2009); Dillon v. United States, 130 S. Ct. 2683 (2010);
Pepper v. United States, 131 S. Ct. 1229 (2011). In
addition, the Court recently agreed to resolve a conflict
among the circuit courts of appeals regarding whether the
Ex Post Facto clause applies to the sentencing guidelines.
Peugh v. United States, 133 S. Ct. 594 (2012).
28

543 U.S. at 264.

BOOKER REPORT 2012: PART A
In light of its continued statutory mandate and
the continued importance of the guidelines, the work
of the Commission remains significant and has
become increasingly complex. The size of the federal
docket has grown each year since the Booker decision,
and the Commission has increased its efforts to
provide meaningful guidance to the courts and
practitioners and to ensure that the guidelines continue
to reflect the statutory purposes of sentencing.
The Commission continues to promulgate
sentencing guidelines that courts must properly
consider and guideline ranges that courts must
properly determine in all federal criminal cases.29
Since Booker, the Commission has promulgated 96
amendments to the guidelines, including 44
amendments implementing new legislation. Before
promulgating amendments, the Commission carefully
considers data, public comment, and other relevant
information.30 The Commission continues to collect,
analyze, and report sentencing data systematically to
detect new criminal trends, to determine whether
federal crime policies are achieving their goals, and to
serve as a clearinghouse for federal sentencing
statistics.31 The Commission resolves conflicting
judicial interpretations of the guidelines by studying
appeals court decisions on sentencing issues and
promulgating guideline amendments to ensure uniform
interpretation.
The Commission’s data collection and
reporting duties required the Commission to review
nearly 400,000 charging and sentencing documents for
more than 86,000 cases in fiscal year 2011,32 enabling
quarterly dissemination of trend analyses, and specific
analyses requested by Congress, the courts, and the
Executive branch. The resulting, steadily expanding
database is an invaluable source of information for the
criminal justice community.33 Since Booker, the
29

See generally 28 U.S.C. § 994; 18 U.S.C. § 3553(a)(4).

See 28 U.S.C. § 994(o).

See 28 U.S.C. § 995(a)(12)−(16). See also, Mistretta v.
United States, 488 U.S. 361, 369 (1989).
32
33

See U.S. SENTENCING COMM’N, 2011 SOURCEBOOK, at 3.

See William W. Wilkins, Jr. & John R. Steer, The Role of
Sentencing Guidelines Amendments in Reducing
Unwarranted Sentencing Disparity, 50 WASH. & LEE L.
REV. 63, 65 (1993).

Commission has published research papers on
demographic differences in federal sentencing
practices, recidivism of crack cocaine offenders
released after the Commission’s 2007 crack cocaine
amendment, a comprehensive survey of federal district
court judges, and a report on mandatory minimum
penalties.34
Feedback from other parties in the criminal
justice system is also part of the evolutionary work of
the Commission. The Commission regularly invites
and considers written public comment on its priorities
and proposed amendments, among other issues. The
Commission also actively solicits public input in the
form of regular public hearings, the work of its
standing advisory groups, and formal surveys, among
other approaches.
Finally, the Commission provides specialized
training to judges, probation officers, staff attorneys,
law clerks, prosecutors, defense attorneys, and other
members of the federal criminal justice community on
federal sentencing issues, including application of the
guidelines.35 During fiscal year 2011 the Commission
conducted seminars and programs in most of the 94
judicial districts in the country, training roughly 7,000
individuals.
In addition to fulfilling its core functions, the
Commission has been called upon to testify at three
congressional hearings on post-Booker sentencing.36
34

See U.S. SENT’G COMM’N, MULTIVARIATE REPORT;
REPORT TO CONGRESS: FEDERAL COCAINE SENTENCING
POLICY (May 2007); 2010 JUDGES’ SURVEY; 2011
MANDATORY MINIMUM REPORT.
35

See 28 U.S.C. § 995(a)(17)−(18).

Implications of the Booker/Fanfan Decisions for the
Federal Sentencing Guidelines: Hearing Before the
Subcomm. on Crime, Terrorism, and Homeland Security.,
109th Cong. 14−23 (2005) (Statement of Ricardo H.
Hinojosa, Chair, U.S. Sent’g Comm’n); United States v.
Booker: One Year Later―Chaos or Status Quo?: Hearing
Before the Subcomm. on Crime, Terrorism, and Homeland
Security, 109th Cong. 4−23 (2006) (Statement of Ricardo H.
Hinojosa, Chair, U.S. Sent’g Comm’n); Uncertain Justice:
The Status of Federal Sentencing and the U.S. Sentencing
Commission Six Years after U.S. v. Booker: Hearing Before
the Subcomm. on Crime, Terrorism, and Homeland
Security, 112th Cong. 10−100 (2011) (Statement of Patti B.
Saris, Chair, U.S. Sent’g Comm’n). [hereinafter 2011 Chair
Statement to Subcomm. on Crime, Terrorism, & Homeland
Security].

BOOKER REPORT 2012: PART A
Against a backdrop of renewed interest in federal
sentencing, the Commission submits this report as a
continuation of its efforts to inform all three branches
of government and other interested parties on the
impact of Booker and its progeny on federal
sentencing.

CREATION OF THE COMMISSION AND
DEVELOPMENT OF THE GUIDELINES
The SRA responded to an emerging consensus
that the federal sentencing system resulted in such
“glaring disparities” that it was in need of major
reform.37 Prior to the SRA, judges possessed almost
unlimited and unguided authority to fashion an
appropriate sentence. Criminal statutes set broad
ranges of minimum and maximum punishments, but
no statute listed the purposes of sentencing. As a
result, each judge was left to decide the various goals
of sentencing, the relevant aggravating and mitigating
circumstances, and the way in which those factors
would be combined in determining a specific sentence.
Neither party had any meaningful right of appellate
review because sentences were limited only by
statutory minimums and maximums.38
Studies at the time revealed that judges at
different ends of the spectrum held widely divergent
views on the purposes of sentencing, with some judges
emphasizing rehabilitation and others emphasizing
“just deserts.”39 Not surprisingly, because each judge
was “left to apply his own notions of the purposes of
sentencing,” the federal sentencing system exhibited
“an unjustifiably wide range of sentences to offenders
convicted of similar crimes.”40 Average sentences
37

See S. REP. NO. 97-307, at 956 (1981) (“glaring
disparities . . . can be traced directly to the unfettered
discretion the law confers on those judges and parole
authorities [that implement] the sentence”); H.R. REP. NO.
98-1017, at 34 (1984) (“The absence of Congressional
guidance to the judiciary has all but guaranteed that . . .
similarly situated offenders . . . will receive different
sentences.”).
38

S. REP. NO. 98-225, at 38-39, 40.

Id. at 41 n.18 (1983) (citing INSLAW Inc., and
Yankelovich, Skelly, and White, Federal Sentencing:
Toward a More Explicit Policy of Criminal Sanctions, III-4
(1981)).
40

varied across the nation for many federal offenses,
sometimes by a number of years.41 A study of district
court judges in the Second Circuit given identical files
based on actual cases and asked how they would
sentence the defendants revealed “astounding”
variations in the sentences imposed.42
Sentencing prior to the SRA also lacked
transparency and certainty. No statute required judges
to explain the reasons for the sentence, and the time
defendants would actually serve in prison was not
announced in open court.43
Instead, after the
defendant began serving the sentence, the United
States Parole Commission decided when the defendant
would be released based largely on its judgment about
when an offender’s rehabilitation was complete.44 The
release of offenders based on inconsistent ideas among
parole hearing officers regarding the potential for
rehabilitation exacerbated the lack of uniformity in
sentencing.45 In addition, this system of indeterminate
sentencing by its nature did not allow public access to
the reasons underlying the court’s sentencing decision
or the United States Parole Commission’s decision
about when to release an offender.46 In 1984,
Congress responded to these concerns by enacting the
SRA, which sought to eliminate unwarranted disparity
in sentencing and address the inequalities created by
indeterminate sentencing.47

S. REP. NO. 98-225, at 41 n.21.

Id. at 41. The sentences imposed on the same bank
robber ranged from 5 to 18 years in prison. Sentences in a
case of filing a false tax return ranged from 3 months in
prison, plus a $5,000 fine, to 3 years in prison plus a $5,000
fine. Id. at 42-43. In the case of an offender convicted of
securities fraud, one judge imposed a sentence of 2 years in
prison, another imposed a sentence of 3 years of probation,
and yet another judge imposed only a $2,500 fine. Id.
43

Id. at 39.

Id. at 38.

U.S. SENT’G COMM’N, COMMISSION REPORT ON THE
OPERATION OF THE GUIDELINES SYSTEM, at 9 (1991) (citing
United States v. Grayson, 438 U.S. 41, 46 (1978)).
46

S. REP. NO. 98-225, at 39.

S. REP. NO. 97-307; H.R. REP. NO. 98-1017 (1984); 28
U.S.C. § 994(k).

S. REP. No. 97-307, at 955.

BOOKER REPORT 2012: PART A
Sentencing Reform in the SRA
In the SRA, Congress set forth four purposes
of sentencing, any of which might take precedence in
an individual case, but none of which would take
precedence in the broader scheme of sentencing:48
(A)
to reflect the seriousness of
the offense, to promote respect for the
law, and to provide just punishment
for the offense;
(B)
to afford adequate deterrence
to criminal conduct;
(C)
to protect the public from
further crimes of the defendant; and
(D)
to provide the defendant with
needed educational or vocational
training, medical care or other
correctional treatment in the most
effective manner[.]49
The provision regarding the need for the
sentence “to reflect the seriousness of the offense, to
promote respect for law, and to provide just
punishment for the offense” reflected the retributive
“just deserts” concept. “[I]t is another way of saying
that the sentence should reflect the gravity of the
defendant’s conduct.”50 The concept of deterrence
was seen as an especially important consideration. For
example, the fact that “[m]ajor white collar criminals
often [were] sentenced to small fines and little or no
imprisonment . . . create[d] the impression that certain
offenses . . . [could] be written off as a cost of doing
business.”51 The provision regarding protecting the
public expressed Congress’s concern about “those
offenders whose criminal histories show[ed] repeated
serious violations of the law.”52 Finally, while
imprisonment was “not an appropriate means of
promoting
correction
and
rehabilitation[,]”53

rehabilitation was “a particularly important
consideration in formulating conditions for persons
placed on probation.”54 The SRA also established that
sentences should be “sufficient but not greater than
necessary” to meet the purposes set forth in
§ 3553(a)(2), including the seriousness of the offense,
deterrence, protection of the public, and needed
correctional treatment.55
The SRA established a robust right of appeal56
and meaningful appellate review of federal sentences
for the first time.57 The right of appeal supported
compliance with the guidelines in a number of ways.
First, the courts of appeals were tasked with ensuring
that the guidelines were properly determined in
individual cases. Section 3742 did not allow appeals
by either party of sentences within a properly
determined guidelines range. Specifically, 18 U.S.C.
§ 3742(a) provided that a defendant may appeal if the
sentence:
(1) was imposed in violation of
law; (2) was imposed as a result
of an incorrect application of the
sentencing guidelines or; (3) is
greater than the sentence specified
in the applicable guideline range
. . . ; or (4) was imposed for an
offense for which there is no
sentencing guideline and is plainly
unreasonable.58
that they should acknowledge that imprisonment is not
suitable for the purpose of promoting rehabilitation.”).
54
55

18 U.S.C. § 3553(a) (“The court shall impose a sentence
sufficient but not greater than necessary, to comply with the
purposes set forth in paragraph (2) of this subsection.”).

56
48

S. REP. NO. 98-225, at 75-77.

18 U.S.C. § 3553(a)(2).

S. REP. NO. 98-225, at 75.

Id. at 76.

Id.

18 U.S.C. § 3582(a); see also Tapia v. United States, 131
S. Ct. 2382, 2388 (2011) (“[Section] 3582(a) tells courts

S. REP. NO. 98-225, at 76.

See 18 U.S.C. § 3742.

See Koon, 518 U.S. at 96 (“Before the Guidelines system,
a federal criminal sentence within statutory limits was, for
all practical purposes, not reviewable on appeal.”);
Dorszynski v. United States, 418 U.S. 424, 431 (1974)
(reiterating “the general proposition that once it is
determined that a sentence is within the limitations set forth
in the statute under which it is imposed, appellate review is
at an end.”).

18 U.S.C. § 3742(a).

BOOKER REPORT 2012: PART A
Section 3472(b) extended to the government the right
to appeal on the same bases, except that it could only
appeal those sentences that were “less than the
sentence specified in the applicable guideline range.”59
Appellate review of departures was deemed
“essential” to ensuring proper application of the
guidelines,60 and, therefore, district courts were
required to state on the record the reasons for the
sentence so that the courts of appeals would have full
information about how courts reached their sentencing
decisions.61
Further, legislative history of the SRA reveals
that Congress intended the right of appeal to go hand
in hand with the guidelines system:
The Committee believes that section
3742 creates for the first time a
comprehensive system of review of
sentences that permits the appellate
process to focus attention on those
sentences whose review is crucial to
the functioning of the sentencing
guidelines
system,
while
also
providing adequate means for
correction of erroneous and clearly
unreasonable sentences.62
Congress
also
anticipated
that
the
Commission’s work would inform appellate courts.
“[I]t is expected that the policy statements will be
consulted at all stages of the criminal justice system,
including the appellate courts, in evaluating the
59

18 U.S.C. § 3742(b).

S. REP. NO. 98-225, at 151.

Id. at 60. See also 18 U.S.C. § 3553(c). Judges could
depart from the guidelines in any case upon a finding that
“an aggravating or mitigating circumstance [was] present in
the case that was not adequately considered in the
formulation of the guidelines[.]” S. REP. NO. 98-225, at 51.
See also 18 U.S.C. § 3553(b)(1).
62

S. REP. NO. 98-225, at 155. From the outset, Congress
intended the courts of appeals to support general compliance
with the guidelines, which in turn would reduce
unwarranted disparity. The SRA established two principle
determinants in sentencing: “the prior records of offenders
and the criminal conduct for which they are to be
sentenced.” Id. at 161.

appropriateness of the sentence and corrections
program applied to a particular case.”63
The Commission and a set of guidelines that
judges were required to follow were central to the
sentencing reform envisioned by Congress. “The
[congressional] Committee resisted [the] attempt to
make the sentencing guidelines more voluntary than
mandatory” because studies and testimony before
Congress noted that voluntary guidelines in the states
had a “poor record” and “were completely ineffective
in reducing sentencing disparities.”64
Congress
studied guidelines systems adopted by the states and
considered Minnesota’s guideline system to be
successful for three main reasons: the guidelines were
required, not voluntary; the guidelines reflected policy
judgments about what any given sentence ought to be,
rather than merely reflecting past sentencing practices;
and appellate review of sentences outside of the
guideline range “assure[d] judicial compliance.”65 To
achieve Congress’s statutory purposes of sentencing,
the SRA created the Commission as an independent
agency within the judicial branch66 and directed it to
promulgate guidelines that were required to be used
for sentencing within the prescribed statutory
maximum.67
Congress also envisioned the guidelines
system to be flexible “in providing the sentencing
63

Id. at 167-68.

Id. at 79.

Id. at 62.

Established as “as an independent commission in the
Judicial Branch of the United States,” the Commission
comprises seven voting members (including the Chair)
appointed by the President “by and with the advice and
consent of the Senate.” The Act provides that “[a]t least
[three] of the [Commission’s] members shall be Federal
judges selected after considering a list of six judges
recommended to the President by the Judicial Conference of
the United States” and no more than four members of the
Commission can be members of the same political party.
The Attorney General, or the Attorney General’s designee,
and the Chairman of the United States Parole Commission
are designated as ex officio non-voting members. See 28
U.S.C. § 991(a), 18 U.S.C. § 3551 note (Pub. L. No. 98473; 98 Stat. 2032 [set out in an Effective and Applicability
Provisions note under this section]).
67

See 28 U.S.C. § 994.

BOOKER REPORT 2012: PART A
judge with a range of options from which to fashion an
appropriate sentence”68 and noted that the guidelines
would not “remove all of the judge’s sentencing
discretion.”69 While Congress envisioned “that most
cases [would] result in sentences within the guideline
range,” there would be “appropriate” instances when
sentences fell outside the applicable guideline range.70
Reflecting the balance struck between the goals of
certainty and uniformity in sentencing and the need to
retain sufficient flexibility to individualize sentences,
18 U.S.C. § 3553(b) codified the limited authority of
sentencing courts to impose a sentence outside the
sentencing guideline range:
[T]he court shall impose a sentence of
the kind, and within the range,
referred to in subsection (a)(4) unless
the court finds that there exists an
aggravating
or
mitigating
circumstance of a kind, or to a degree,
not
adequately
taken
into
consideration by the Sentencing
Commission in formulating the
guidelines that should result in a
sentence
different
from
that
described.71

flexibility to permit individualized sentences when
warranted by mitigating or aggravating factors of a
kind or to a degree not adequately taken into account
in the guidelines. 73 Finally, Congress also charged the
Commission with assessing whether sentencing, penal,
and correctional practices are meeting the purposes of
sentencing.74 It was anticipated that the guidelines
would “reflect, to the extent practicable, advancement
in knowledge of human behavior as it relate[s] to the
criminal justice process.”75 The guidelines were seen
as “an unprecedented opportunity in the Federal
system to look at sentencing patterns as a whole to
assure that the sentences imposed are consistent with
the purposes of sentencing.”76 It was expected that the
guidelines would result in proportional punishment by
“treat[ing] all classes of offenses committed by all
categories of offenders consistently.”77
Anticipating that the guidelines would evolve
over time in response to data and public comment,
Congress “necessarily contemplated that the
Commission would periodically review the work of
the courts, and would make whatever clarifying
revisions to the Guidelines conflicting judicial
interpretations might suggest.”78
The first
Commission also acknowledged that the courts’
sentencing decisions would significantly inform its
work on the guidelines over time:

The SRA’s Directives to the Commission

The Commission is a permanent body,
empowered by law to write and
rewrite guidelines, with progressive
changes, over many years.
By
monitoring when courts depart from
the guidelines and by analyzing their
stated reasons for doing so, the
Commission, over time, will be able
to create more accurate guidelines that

In meeting those purposes set forth in 18
U.S.C. § 3553(a)(2), Congress specifically charged the
Commission with establishing federal sentencing
guidelines that provided certainty, fairness, national
uniformity, and avoided unwarranted disparities
among defendants with similar criminal records who
were found guilty of similar conduct.72 At the same
time, the guidelines were to maintain sufficient
68

S. REP. NO. 98-225, at 50.

Id. at 51.

28 U.S.C. § 991(b)(1)(B).

28 U.S.C. § 991(b)(2).

28 U.S.C. § 991(b)(1)(C).

S. REP. NO. 98-225, at 51.

18 U.S.C. § 3553(b)(1), excised by United States v.
Booker, 543 U.S. 220 (2005).

Id.

Braxton v. United States, 500 U.S. 344, 348 (1991).

Id. at 52. Congress specifically noted that it believed a
sentencing judge “has an obligation to consider all the
relevant factors in a case and to impose a sentence outside
the guidelines in an appropriate case.” Id.
71

28 U.S.C. § 991(b)(1)(A).

BOOKER REPORT 2012: PART A
specify precisely where departures
should and should not be permitted.79

if the minimum term of the range is 30 years or more,
the maximum may be life imprisonment.”84

Directives: Categories of Offenses and Offenders

Directives: Sentence Length

The SRA directed the Commission to
consider, and take into account to the extent they are
relevant, seven factors in its formulation of offense
categories: (1) the grade of the offense; (2) the
aggravating and mitigating circumstances of the crime;
(3) the nature and degree of the harm caused by the
crime; (4) the community view of the gravity of the
offense; (5) the public concern generated by the crime;
(6) the deterrent effect that a particular sentence may
have on others; and (7) the current incidence of the
offense.80
The SRA directed the Commission to develop
sentencing ranges applicable for specific categories of
offenses involving particular categories of offenders.
Congress expected that “there [would] be numerous
guidelines ranges, each range describing a somewhat
different combination of offender characteristics and
offense circumstances,” including “several guideline
ranges for a single offense varying on the basis of
aggravating
and
mitigating
circumstances.”81
Congress intended that there would “be a complete set
of sentencing guidelines that covers in one way or
another all important variations that commonly may be
expected in criminal cases, and that reliably breaks
cases into their relevant components and assures
consistent and fair results.”82
More specifically, the SRA required that the
sentencing ranges be consistent with all pertinent
provisions of title 18 of the United States Code, and
that they not include sentences in excess of the
statutorily prescribed maximum sentence.83 It also
directed that, for sentences of imprisonment, “the
maximum of the range established for such a term
shall not exceed the minimum of that range by more
than the greater of 25 percent or 6 months, except that,

The SRA contained several directives related
to sentence length for certain types of offenses and
offenders. For example, legislative history reflected
concern that white collar offenders were often
“sentenced to small fines and little or no imprisonment
. . . creat[ing] the impression that certain offenses are
punishable by a small fine that can be written off as a
cost of doing business.”85
Accordingly, the
Commission was required to ensure that the guidelines
reflected the fact that, “in many cases, current
sentences do not accurately reflect the seriousness of
the offense.”86 The Commission, therefore, was not
“bound by such average sentences” but rather was
required to “independently develop a sentencing range
that is consistent with the purposes of sentencing
described in section 3553(a)(2) of title 18, United
States Code.”87
The SRA also directed that the sentencing
guidelines require a term of confinement at or near the
statutorily prescribed maximum sentence for certain
crimes of violence and for drug offenses, particularly
when committed by recidivists.88 The SRA further
directed the Commission to assure a substantial term
of imprisonment for an offense constituting a third
felony conviction, for a career felon, for an individual
convicted of a managerial role in a racketeering
enterprise, for a crime of violence by an offender on
release from a prior felony conviction, and for an
offense involving a substantial quantity of narcotics.89
Various aggravating and mitigating circumstances,

79
80
81
82

USSG Ch.1, Pt.A(4)(b) (Apr. 13, 1987).
28 U.S.C. § 994(c)(1)−(7).
S. REP. NO. 98-225, at 168.
Id.

28 U.S.C. § 994(b)(2). The Sentencing Reform Act
originally provided that the maximum of the range shall not
exceed the minimum by more than “25 per centum,” but this
language was amended in 1986 to its present language. See
Pub. L. No. 99-363, § 2 (1986).
85

S. REP. NO. 98-225, at 76.

28 U.S.C. § 994(m).

Id.

28 U.S.C. § 994(h).

28 U.S.C. § 994(i).

Mistretta v. United States, 488 U.S. 361, 375 (1989); see
also 28 U.S.C. § 994(b)(1).

BOOKER REPORT 2012: PART A
such as multiple offenses and substantial assistance to
the government, were to be reflected in the sentencing
guidelines.90
Directives: Offender Characteristics
The SRA addressed offender characteristics in
three provisions. Section 994 of Title 18 governed
how the Commission should treat certain offender
characteristics in the guidelines, listing eleven
additional factors for the Commission to consider in
formulating the guidelines and policy statements, to
the extent that they had any relevance “to the nature,
extent, place of service, or other incidents of an
appropriate sentence”: age; education; vocational
skills; mental and emotional condition; physical
condition; previous employment record; family ties
and responsibilities; community ties; role in the
offense; criminal history; and degree of dependence
upon criminal activity for a livelihood.91 The SRA
required that the Commission ensure that the
guidelines be “entirely neutral” as to the race, sex,
national origin, creed, and socioeconomic status of
offenders,92 and instructed that the sentencing
guidelines should reflect the general inappropriateness
of considering the education, vocational skills,
employment record, family ties and responsibilities,
and community ties of offenders.93
Section 3553(a)(1) of Title 18 directed courts
to consider “the history and characteristics of the
defendant,” among other factors, in determining the
90

28 U.S.C. § 994(l) and (n), respectively.

28 U.S.C. § 994(d)(1)−(11). The legislative history
provides additional guidance for the Commission’s
consideration of the statutory factors. For example, the
history indicates Congress’s intent that the “criminal history
. . . factor includes not only the number of prior criminal
acts – whether or not they resulted in convictions – the
defendant has engaged in, but their seriousness, their
recentness or remoteness, and their indication whether the
defendant is a ‘career criminal’ or a manager of a criminal
enterprise.” S. REP. NO. 98-225, at 174. The promulgated
guidelines include these and other criminal history measures
that necessarily may require judicial factfinding extending
well beyond the ascertainment of the fact of prior
convictions. See USSG Ch.4 (Nov. 2012).

See 28 U.S.C. § 994(d).

See 28 U.S.C. § 994(e).

particular sentence to be imposed on that defendant.94
After considering all of these factors, including the
guidelines and policy statements, the court was
required to sentence a defendant within the applicable
guideline range unless the court found that there
existed “an aggravating or mitigating circumstance of
a kind, or to a degree, not adequately taken into
consideration by the Sentencing Commission in
formulating the guidelines that should result in a
sentence different from that described.”95
Finally, section 3661 of Title 18 recodified 18
U.S.C. § 3577 without change:
No limitation shall be placed on the
information
concerning
the
background, character, and conduct of
a person convicted of an offense
which a court of the United States
may receive and consider for the
purpose of imposing an appropriate
sentence.96

Implementation of the SRA’s Directives
In considering sentencing guidelines to
implement the SRA, the Commission was required to
resolve a host of important policy questions.97 For
example, the Commission had to decide whether
appropriate punishment would be defined primarily on
the principles of just deserts or crime control.
Consistent with the SRA’s rejection of a single
doctrinal approach in favor of one that would attempt
to balance all the objectives of sentencing, the
Commission did not choose one theory over the

18 U.S.C. § 3553(a)(1).

18 U.S.C § 3553(b)(1).

18 U.S.C. § 3661. The Commission incorporated this
statute into the guidelines at USSG §1B1.4 (“In determining
the sentence to impose within the guideline range, or
whether a departure from the guidelines is warranted, the
court may consider, without limitation, any information
concerning the background, character and conduct of the
defendant, unless otherwise prohibited by law. See
18 U.S.C. § 3661.”).
97

See USSG Ch.1, Pt.A(1)(4) (Nov. 2012).

BOOKER REPORT 2012: PART A
other.98 Instead, the guidelines embody aspects of
both just deserts and crime-control philosophies of
sentencing.99
Implementation of Directives: Categories of Offenses
Categorizing offenses was a difficult task due
to the complexity of the federal criminal code. The
code contained “‘innumerable statutes dealing with
such basic offenses as theft and fraud’” that were
“‘scattered about hither and yon among various titles
of the United States Code’” resulting in “‘conflicting
court interpretations.’”100 The first Guidelines Manual
listed more than 700 penal statutes or subsections
thereof in Appendix A (Statutory Index),101 and the
2012 Guidelines Manual references more than 1,200
different statutes or subsections thereof.102 Because
the major goal of the SRA was to increase uniformity
in sentencing while not sacrificing proportionality, the
sentencing guidelines had to authorize appropriately
different sentences for criminal conduct of
significantly different severity.103
The Commission examined existing state
guidelines systems’ methods of categorizing offenses
and offenders.104
The Commission rejected the
approaches many states used, concluding that “[s]tate
guidelines systems which use relatively few, simple
categories and narrow imprisonment ranges . . . are ill
suited to the breadth and diversity of federal
98

U.S. SENT’G COMM’N, SUPPLEMENTARY REPORT ON
INITIAL SENTENCING GUIDELINES AND POLICY STATEMENTS
at 16 (1987) [hereinafter SUPPLEMENTARY REPORT ON
INITIAL SENTENCING GUIDELINES].
99

Id.

100

U.S. SENT’G COMM’N, PRELIMINARY REPORT TO THE
CONGRESS: STATUTORY PENALTIES PROJECT DESCRIPTION
AND COMPILATIONS OF FEDERAL CRIMINAL OFFENSES at vi
(1989) (quoting Reform of the Federal Criminal Laws:
Hearings Before the Subcomm. on Crim. Law and Proc. of
the Senate Comm. on the Judiciary).
101
102

See USSG App. A (Apr. 13, 1987).
See USSG App. A (Nov. 2012).

103

U.S. SENT’G COMM’N, SUPPLEMENTARY REPORT ON THE
INITIAL SENTENCING GUIDELINES at 13 (1991).
104

Id. at 14.

crimes.”105 For example, under many states’ systems,
“a single category of robbery . . . lumped together
armed and unarmed robberies, robberies with and
without injuries, [and] robberies of a few dollars and
robberies of millions,” and thus “would have been far
too simplistic to achieve just and effective [federal]
sentences, especially given the narrowness of the
permissible sentencing ranges.”106 Consequently, the
Commission determined that the sentencing guidelines
should be descriptive of generic conduct rather than
track statutory language.107
The Commission ultimately decided to create
a system requiring a court to consider, within
constraints, the defendant’s real offense conduct and
the defendant’s criminal history. The Commission
created a sentencing table with 43 offense levels and
six criminal history categories. The offense level
(located on the vertical axis of the Sentencing Table) is
determined based upon the offense conduct and the
particular harms associated with the defendant’s crime.
The offense level increases based upon the severity of
the offense committed as well as the number of
identified harms associated with the commission of the
offense. For example, in a drug crime, the base
offense level is determined by the type and quantity of
drug involved in the offense of conviction and related
criminal conduct (whether charged or uncharged).
The base offense level is enhanced, for example, if the
crime involved a firearm.108 A defendant’s role in the
offense or other conduct can result in an increase or
decrease of the offense level.109 Determination of the
sentence also requires a determination of the
defendant’s criminal history (located on the horizontal
axis of the Sentencing Table).110 Once the offense
level and criminal history are calculated, the
applicable sentencing range is determined by use of
the sentencing table.111
105
106

Id.
Id. at 13.

107

See USSG Ch.1, Pt.A(1)(A)(4)(a) (Nov. 2012).

108

USSG §2D1.1(b)(1) (Nov. 2012).

109

See USSG Ch.3 (Nov. 2012) for other adjustments that
apply to a wide variety of offenses.

110

See USSG Ch.4 (Nov. 2012).

111

See USSG Ch.5, Pt.A (Nov. 2012).

BOOKER REPORT 2012: PART A
Like Congress, the Commission recognized
that departures would play an important role in the
guideline system because of the “difficulty of
foreseeing and capturing a single set of guidelines that
encompasses the vast range of human conduct
potentially relevant to a sentencing decision.”112 In the
initial guidelines, the Commission provided the
following guidance on the use of departures:
The
Commission
intends
the
sentencing courts to treat each
guideline as carving out a “heartland,”
a set of typical cases embodying the
conduct that each guideline describes.
When a court finds an atypical case,
one to which a particular guideline
linguistically applies but where
conduct significantly differs from the
norm, the court may consider whether
a departure is warranted.113
The Commission also anticipated that some individual
offender characteristics such as age, education and
vocational skills, and family ties and responsibilities
could “constitute grounds for a departure in an unusual
case.”114
Implementation of Directives: Sentence Length
In incorporating data on then extant
sentencing practices in accordance with 28 U.S.C.
§ 994(m), the Commission examined data for nearly
100,000 federal convictions, which included a
description of the offense, a characterization of the
defendant’s background and criminal record, the
method of disposition of the case, and the sentence
imposed, including both sentences of imprisonment
and those of probation.115
The Commission
112
113

USSG Ch.1, Pt.A(4)(b) (Apr. 13, 1987).
Id.

114

Id.; USSG §§5H1.1, p.s. (Age), 5H1.2, p.s. (Education
and Vocational Skills (Policy Statement)), 5H1.6, p.s.
(Family Ties and Responsibilities, and Community Ties)
(Apr. 1987). See also 28 U.S.C. § 994(d) and (e).

considered more detailed information for more than
10,000 defendants, including their presentence
investigation reports and the time actually served by
those defendants sentenced to prison.116
The
Commission also examined the United States Parole
Commission’s guidelines and resulting statistics,
public commentary, and information from other
relevant sources to determine existing sentencing
practices and to detail the specific characteristics of
offenses and offenders that judges considered salient at
sentencing.117
In determining then extant sentence lengths,
the Commission identified offenders who were
sentenced to prison, then computed average sentence
lengths for those offenders. The Commission also
considered the estimated percentage of defendants
sentenced to probation for the offense.118
The
Commission used both sentence length for those
sentenced to prison, and the estimated percentage of
defendants sentenced to probation, to determine then
extant sentencing practices.
This information
“provided a concrete starting point and identified a list
of relevant distinctions that, although of considerable
length, [was] still short enough to create a manageable
set of guidelines.”119
Although the guideline ranges for many
offenses incorporated then extant sentencing practices,
the Commission was cognizant of the fact that past
sentencing practices were merely a starting point. The
first Guidelines Manual, for example, set sentence
ranges equal to or higher than the average time served
under then extant sentencing practices for many white
collar offenses.120
116

Id.

117

See id. at 16.

118

See id. at 23-24, 27-34. For example, then extant
sentencing practices resulted in a range of 2 to 8 months of
imprisonment for an unsophisticated embezzlement of less
than $1,500, if a prison term was imposed. Id. at 24.
However, a prison term was imposed in only about 24
percent of such cases, with probation imposed in the other
76 percent. Id. “Because of this, the average time served by
all first-time embezzlers convicted at trial of stealing [was]
actually about 1 month (rather than 2-8 months).” Id.

119

115

U.S. SENT’G COMM’N, SUPPLEMENTARY REPORT ON
INITIAL SENTENCING GUIDELINES, at 16, 21.

Id. at 16.

120

For example, under then extant sentencing practices, a
defendant convicted of a sophisticated fraud involving a loss

BOOKER REPORT 2012: PART A
The Commission also examined public views
on offense seriousness and sentencing policy in
accordance with 28 U.S.C. § 994(c)(4) and (5), which
require the Commission to consider, and take account
only to the extent that they do have relevance, the
“community view of the gravity of the offense” and
the “public concern generated by the offense” in
formulating the guidelines. With respect to the
community view of the gravity of the offense,
Congress explained how changes in community norms
concerning particular criminal behavior might “justify
increasing or decreasing the recommended penalties
for the offense.”121
Moreover, Congress
acknowledged that there may be circumstances in
which the Commission might find it appropriate to
consider regional differences in community views
of between $60,001 and $400,000 would receive a sentence
of 15-21 months of imprisonment if sentenced to prison, and
74 percent of sophisticated fraud defendants with these loss
amounts were sentenced to prison. See U.S. SENT’G
COMM’N, SUPPLEMENTARY REPORT ON INITIAL
SENTENCING GUIDELINES, at 33. Use of the 1987
Guidelines Manual resulted in a guideline range of 12-18
months’ imprisonment for a first-time offender with a loss
of $50,001-$100,000 (offense level 13 with more than
minimal planning increase); a guidelines range of 15-21
months for a loss of $100,001 to $200,000 (offense level 14
with more than minimal planning increase); and a guideline
range of 18-24 months for a loss of $200,001 to $500,000
(offense level 15 with more than minimal planning
increase). USSG §2F1.1 (Apr. 1987). For defendants
convicted of embezzling less than $2,000, the 1987
Guidelines Manual provided for guideline ranges which
authorized sentencing judges to impose probation in lieu of
confinement. This range was lower than then extant
sentencing practices for those embezzlement offenders
sentenced to prison. USSG §2B1.1 (Apr. 1987).
121

S. REP. NO. 98-225, at 170. Congress provided two
examples of action by the Parole Commission to “suggest
the kinds of situations in which the Commission might wish
to reflect the community view of an offense in its
guidelines: the Parole Commission has in recent years
lowered the guidelines parole dates applicable to simple
possession of marihuana, and, following the Vietnam War,
lowered the guidelines parole dates for draft violations.” Id.
Congress suggested that “similarly, if there were a
substantial increase in the rate of commission of a very
serious crime, the public concern generated by that increase
might cause the Commission to conclude that the guidelines
sentences for that offense should be increased.” Id. at 17071.

when drafting guidelines that would apply
nationwide.122
Despite its acknowledgement of
community norms, Congress made clear its goal of
nationwide consistency.
Therefore, if regional
differences in community views were to be considered
at all, they were to be considered by the Commission,
not by individual judges.
In addition to reviewing contemporaneous
legal and social science research about public
assessments of crime and punishment,123 the
Commission held a public hearing on the issue of
offense seriousness in April 1986, at which a wide
variety of interested organizations and individuals
shared their views.124 In preparation for the hearing,
122

Id. at 170 n.408. (“It is expected that, while nationwide
consistency in Federal cases is generally desirable, in certain
situations the Commission may find it appropriate to draft
the guidelines to take account of considerations based on
pertinent regional differences.”).

123

See, e.g., SURVEY RESEARCH CENTER, PUBLIC AND
INMATE ASSESSMENT OF PRISON SENTENCES, Fed. 1980
(Oregon State Univ. Corvallis); David Smith & C. McCurdy
Lipsey, Public Opinion and Penal Policy, 14 CRIMINOLOGY
113-124 (May 1976); Craig Boydell & Carl Grindstaff,
Public Opinion Toward Legal Sanctions for Crimes of
Violence, 65 J. CRIM. LAW & CRIMINOLOGY 113-116
(1974); Charles Thomas, Robin Cage, & Samuel Foster,
Public Opinion on Criminal Law and Legal Sanctions, J.
CRIM. LAW & CRIMINOLOGY, Vol. 67, No. 1, pp. 110-116
(1976); Don Gibbons, Joseph Jones, & Peter Garabedian,
Gauging Public Opinion about the Crime Problem, 18
CRIME AND DELINQUENCY 134-146 (April 1972); Phoebe
Ellsworth & Lee Ross, Public Opinion and Capital
Punishment, 29 CRIME AND DELINQUENCY, 116-69 (Jan.
1983); John Doble, Crime and Punishment: The Public’s
View (Public Agenda Found., June 1987); Tony Poveda,
The Fear of Crime in a Small Town, 18 CRIME &
DELINQUENCY 147-53 (April 1972); National Criminal
Justice Association, Opinion Study Shows Public Concern
With Sentencing, Prison Issues, JUSTICE RESEARCH (August
1987); Joseph E. Jacoby & Christopher S. Dunn, NATIONAL
SURVEY ON PUNISHMENT FOR CRIMINAL OFFENSES:
EXECUTIVE SUMMARY (Bowling Green State Univ. Oct. 27,
1987).
124

Representatives from the Association of the Bar of the
City of New York, the Federal Probation Officers
Association, the Federal Public Defender Association, the
National Rifle Association, the American Civil Liberties
Union – National Prison Project, the National Interreligious
Service Board for Conscientious Objectors, the Washington
Legal Foundation, the Institute for Government and Politics,

BOOKER REPORT 2012: PART A
the Commission requested written feedback from more
than 325 circuit and district court judges, United States
Attorneys, federal public defenders, defense attorneys,
probation officers, criminal justice organizations, and
editorial page editors of 40 of the largest newspapers
in the country, sending each individual and
organization both general offense seriousness
questions as well as a more detailed questionnaire on
individual offense scenarios.125 The Commission
followed up on the offense seriousness questionnaire
with a survey of more than 1,700 citizens throughout
the United States on their perceptions of federal
sentences.126
The survey, conducted in 1993 and
1994, “identified links between the public’s just
punishment perceptions and elements of the guideline
calculations[.]”127
Also with respect to sentence length, the
Commission implemented the directive in 28 U.S.C.
§ 994(h) by promulgating §4B1.1 (Career Offender).
The career offender guideline prescribed an increased
sentence for an adult defendant convicted of a “crime
of violence” or a “controlled substance offense” if the
defendant had previously been convicted of at least
two other such felony offenses.
The guideline
provided that such defendants would have a Criminal
History Category of VI and an offense level that
depended upon the statutory maximum for the offense
of conviction. The offense levels ranged from 12 to 37
so that the guideline range for a career offender would
be at or near the applicable statutory maximum.
The background commentary to §4B1.1
explained the Commission’s view of the relationship
between the provisions of the SRA, including 28

U.S.C. § 994(h), and §4B1.1 as promulgated by the
Commission. The “definition of a career offender
track[s] in large part the criteria set forth in 28 U.S.C.
§ 994(h),” but the Commission “has modified this
definition in several respects to focus more precisely
on the class of recidivist offenders for whom a lengthy
term of imprisonment is appropriate and avoid
‘unwarranted sentencing disparities among defendants
with similar records who have been found guilty of
similar criminal conduct.’”128 In creating §4B1.1, the
Commission acted “in accord with its general
guideline promulgation authority under 28 U.S.C.
§ 994(a)-(f), and its amendment authority under 28
U.S.C. § 994(o) and (p)” and its view that “Congress’s
choice of a directive to the Commission rather than a
mandatory minimum sentencing statute” indicated
Congress’s intent that the Commission ensure that the
provision was appropriately tailored.129
Implementation of Directives: Offender
Characteristics
The Commission recognized that, similar to
the difficulty noted in establishing guidelines to cover
every possible offender and offense characteristic,
“[c]ircumstances that may warrant a departure from
the guidelines cannot . . . by their very nature, be
comprehensively listed and analyzed in advance.”130
Therefore, when the Commission promulgated the
initial set of guidelines, with some specific
exceptions,131 it did not restrict the kinds of factors
that, whether or not mentioned in the guidelines, could
constitute grounds for departure in an unusual case.132

Crime Magazine, and the National Association of Criminal
Defense Lawyers testified at the April 1986 hearing. See
U.S. SENT’G COMM’N, PUBLIC HEARING ON OFFENSE
SERIOUSNESS, Washington, D.C. (transcript) (April 1986).

128

129

Id. (citing S. REP. NO. 98-255, at 175).

125

130

USSG §5K2, p.s. (General Provisions) (Apr. 1987).

See Memorandum from Paul K. Martin to
Commissioners & Staff Director, “Offense Seriousness
Questionnaire,” (March 24, 1986); U.S. SENT’G COMM’N,
PUBLIC HEARING ON OFFENSE SERIOUSNESS, transcript at 5.

USSG §4B1.1, comment. (backg’d) (Nov. 2012)
(quoting 28 U.S.C. § 991(b)(1)(B)).

131

U.S. SENT’G COMM’N, RESEARCH BULLETIN, JUST
PUNISHMENT: PUBLIC PERCEPTIONS AND THE FEDERAL
SENTENCING GUIDELINES , at 1, available at
http://www.ussc.gov/Research/Research_Projects/Miscellan
eous/199703_Just_Punishment.PDF.

See, e.g., USSG §5H1.10, p.s. (Race, Sex, National
Origin, Creed, Religion, and Socio-Economic Status) (Apr.
1987). The Commission subsequently promulgated
amendments prohibiting the court from considering
additional factors as grounds for departure in §5H1.12, p.s.
(Lack of Guidance as a Youth and Similar Circumstances)
(Nov. 1992) and §5K2.19, p.s. (Post-Sentencing
Rehabilitative Efforts) (Nov. 2000).

127

132

126

Id.

USSG Ch.1, Pt.A(4)(b) (Apr. 1987).

BOOKER REPORT 2012: PART A
Pursuant to 28 U.S.C. § 994(d)133 and (e),134
the Commission did, however, adopt several policy
statements in Chapter Five, Parts H and K limiting the
relevance of certain offender characteristics to the
determination of whether a sentence should be outside
the applicable guideline range. The Commission
deemed education, vocational skills, employment
record, family ties and responsibilities, and community
ties “ordinarily not relevant in determining whether a
departure is warranted,” although several of these
factors were considered relevant in determining the
conditions of probation or supervised release.135
Those factors also could be considered in an
exceptional case, and courts had full discretion to
consider them in determining the sentence within the
applicable guideline range. In contrast, in response to
section 994(d),136 the Commission deemed race,
gender, national origin, creed, and socioeconomic
status “not relevant in the determination of a
sentence.”137

133

28 U.S.C. § 994(d) directs the Commission to take into
account, “only to the extent that they do have relevance,”
the defendant’s: (1) age; (2) education; (3) vocational skills;
(4) mental and emotional condition to the extent that such
condition mitigates the defendant’s culpability or to the
extent that such condition is otherwise plainly relevant; (5)
physical condition, including drug dependence; (6)
previous employment record; (7) family ties and
responsibilities; (8) community ties; (9) role in the offense;
(10) criminal history; and (11) degree of dependence upon
criminal activity for a livelihood. Section 994(d) further
directs the Commission to “assure that the guidelines and
policy statements are entirely neutral as to the race, sex,
national origin, creed, and socioeconomic status of
offenders.”

134

28 U.S.C. § 994(e) directs the Commission to “assure
that the guidelines and policy statements, in recommending
a term of imprisonment or length of a term of imprisonment,
reflect the general inappropriateness of considering the
education, vocational skills, employment record, family ties
and responsibilities, and community ties of the defendant.”

135

See, e.g., USSG §§5H1.1, p.s. (Nov. 2009), 5H1.2, p.s.
(Nov. 2009), 5H1.3, p.s. (Nov. 2009), 5H1.6, p.s. (Nov.
2009).

136

28 U.S.C. § 944(d).

137

USSG §5H1.10, p.s. (Nov. 2012).

EVOLUTION OF THE GUIDELINES
The Commission expected that its work on the
sentencing guidelines would be evolutionary138 and
that it would gather and analyze data from actual
practice, receive feedback through testimony,
sentencing and appellate decisions, and various forms
of public comment, and revise the guidelines over
time. Since the promulgation of the original set of
sentencing guidelines through the present, the
Commission has amended the sentencing guidelines
over 750 times in response to court decisions,
legislation, public comment, and the Commission’s
own evaluations of the need to change the
guidelines.139
Departures were considered an important
mechanism by which the Commission could receive
and consider feedback from courts regarding the
operation of the guidelines.
The Commission,
therefore, foresaw that a high or increasing rate of
departures for a particular offense, for example, might
indicate that the guideline for that offense does not
take into account adequately a particular recurring
circumstance and should be amended accordingly, or
that the severity or proportionality of the guidelines for
particular offenses or offenders should be adjusted.
The Commission envisioned that such feedback from
the courts would enhance its ability to fulfill its
ongoing statutory responsibility under the SRA to
periodically review and revise the guidelines.140
138

USSG Ch.1, Pt.A, intro. comment. (“The Commission
emphasizes, however that it views the guideline-writing
process as evolutionary. It expects, and the governing
statute anticipates, that continuing research, experience, and
analysis will result in modifications and revisions to the
guidelines through submission of amendments to
Congress.”). See also Stephen Breyer, The Federal
Sentencing Guidelines and the Key Compromises upon
Which They Rest [hereinafter Breyer, Key Compromises], 17
HOFSTRA L. REV. 1, 8 (1988).
139

Generally, amendments to the sentencing guidelines are
submitted to Congress by May 1 of each year and take effect
not later than November 1 of that year, unless Congress
otherwise provides. See 28 U.S.C. § 994(p).

140

See 18 U.S.C. § 994(o) (“The Commission periodically
shall review and revise, in consideration of comments and
data coming to its attention, the guidelines promulgated
pursuant to the provisions of this section.”).

BOOKER REPORT 2012: PART A
Recent changes in crack cocaine penalties141
exemplify both the evolutionary nature of the
guidelines and the role of feedback in the form of
departures and public comment. Cocaine sentencing
policy came under extensive criticism from public
officials, private citizens, criminal justice practitioners,
researchers, and interest groups challenging the
efficacy of the 100:1 difference in penalty levels
between powder and crack cocaine and its
disproportionate impact on the African American
community. In response to these concerns, the
Commission proposed changes to the sentencing
guidelines for cocaine offenses and subsequently
submitted three reports to Congress containing its
recommendations for reform.142
In 2007, the
Commission reduced penalties for crack cocaine
offenders, then did so again after Congress enacted the
Fair Sentencing Act of 2010,143 which reduced crack
cocaine penalties by increasing the quantity thresholds
triggering mandatory minimum penalties for crack
cocaine offenses and by eliminating the mandatory
minimum penalty for simple possession of crack
cocaine.

PRE-BOOKER SUPREME COURT CASE LAW
AND STATUTORY CHANGES
For nearly 20 years after the guidelines came
into effect, federal judges were required to impose
sentences within the applicable guideline range144
141

USSG App. C, amend. 706 (effective Nov. 1, 2007).

See, e.g., U.S. SENT’G COMM’N, REPORT TO CONGRESS:
COCAINE AND FEDERAL SENTENCING POLICY (May 2007), at
2, available at
http://www.ussc.gov/Legislative_and_Public_Affairs/.

144

145

18 U.S.C. § 3553(b)(1), excised by Booker, 543 U.S. at
250.

142

143

unless the judge departed pursuant to a guideline
departure provision, or the judge found the existence
of an aggravating or mitigating circumstance present
to a degree not adequately taken into consideration in
the guidelines, or there existed a circumstance not
adequately taken into consideration by the
Commission
in
formulating
the
sentencing
guidelines.145 A series of Supreme Court cases
rejected challenges to the guidelines’ operation.146
However, two important events would set the stage for
later developments.
First, in 1996, the Supreme Court issued an
important decision regarding the appellate review of
sentences, Koon v. United States.147 Koon established
an abuse of discretion standard for appellate courts
reviewing trial courts’ application of the guidelines to
the facts and rejected a de novo standard of review for
district court judges’ departure decisions, holding that
departure decisions by district courts are owed
deference.
In doing so, the Court cited the
“institutional advantage” district courts have over their
colleagues on the courts of appeals,148 and observed
that departure decisions are fact-specific inquiries
requiring the sentencing judge to determine whether a
case is “within the heartland given all the facts of the
case.”149 The Court suggested that Congress “did not
intend, by establishing limited appellate review, to vest
in appellate courts wide-ranging authority over district
court sentencing decisions.”150

Pub. L. No. 111-220 (Aug. 3, 2010).

See Mistretta v. United States, 488 U.S. 361, 379, 391
(1989) (upholding the constitutionality of the Commission
and of the guidelines, noting that “[d]eveloping
proportionate penalties for hundreds of different crimes by a
virtually limitless array of offenders is precisely the sort of
intricate, labor-intensive task for which delegation to an
expert body is especially appropriate,” and that “[j]ust as
the rules of procedure bind judges and courts in the proper
management of the cases before them, so the Guidelines
bind judges and courts in the exercise of their uncontested
responsibility to pass sentence in criminal cases.”).

146

See, e.g., United States v. Watts, 519 U.S. 148 (1997)
(allowing use of acquitted conduct to enhance the
defendant’s sentence); United States v. Dunnigan, 507 U.S.
87 (1993) (rejecting the defendant’s claim that the
enhancement provision for obstruction of justice violated
the defendant’s right to testify in his or her own defense).

147

518 U.S. 81 (1996). For a more detailed examination of
the Koon decision, see U.S. SENT’G COMM’N, REPORT TO
CONGRESS: DOWNWARD DEPARTURES FROM THE FEDERAL
SENTENCING GUIDELINES (in Response to Section 401(M)
of Pub. Law 108-21), at 5-7 (2003) [hereinafter
DEPARTURES REPORT].
148

518 U.S. at 98-99.

149

Id. at 100.

150

Id. at 97.

BOOKER REPORT 2012: PART A
The Court pointed to 18 U.S.C. § 3742(e)(4),
which provided that “[t]he court of appeals shall give
due regard to the opportunity of the district court to
judge the credibility of the witnesses, and shall accept
the findings of fact of the district court unless they are
clearly erroneous.”151 The Court further noted that the
statute was amended in 1988 to require courts of
appeals to “give due deference to the district court’s
application of the guidelines to the facts.”152
Therefore, the appellate court’s role was to ensure that
the district court had not abused its discretion in
concluding that specific facts sufficed to remove the
case from the heartland of similar cases.153
Second, in 2003, Congress enacted the
Prosecutorial Remedies and Other Tools to end the
Exploitation of Children Today Act (“the PROTECT
Act”),154 which restricted the use of departures by
sentencing courts and changed the appellate standard
of review for cases in which departures were imposed.
The legislative history of the PROTECT Act reflects
congressional concern that the increasing rate of
downward departures from the sentencing guidelines
at the time was undermining the goals of the SRA,
particularly the goals of providing certainty and
uniformity in sentencing and of avoiding unwarranted
disparity.155
The PROTECT Act restricted the availability
of departures, most notably for defendants convicted
of sexual abuse crimes involving children. In addition,
the PROTECT Act sought to reduce the overall rate of
departures by increasing the specificity with which
sentencing courts had to justify sentences outside the
guideline range.
Congress amended 18 U.S.C.
§ 3553(c) (Statement of reasons for imposing a
sentence) by requiring a court imposing a sentence
outside the prescribed guideline range to state “the

specific reason” for departing “with specificity in the
written order of judgment and commitment[.]”156
The PROTECT Act included several
directives to the Commission, among them a directive
to promulgate guideline amendments “to ensure that
the incidence of downward departures are [sic]
substantially reduced.”157 The Commission responded
to these directives and statutory changes with two
amendments implementing the PROTECT Act’s direct
amendments to the guidelines158 and an eight-part
emergency amendment that modified nine guideline
provisions.159 The amendment also created the early
disposition departure (or “fast track”) called for in the
PROTECT Act at §5K3.1 (Early Disposition
Programs) (Policy Statement) and a new guideline at
§1A3.1 (Authority) setting forth the statutory authority
for the Commission and the guidelines.
The
amendments’ overall effect was to limit the
availability of departures by prohibiting certain factors
as grounds for departure, restricting the availability of
certain departures, narrowing when certain permitted
departures were appropriate, and limiting the extent of

156

18 U.S.C. § 3553(c).

157

Pub. L. No. 108-21, section 401(m). The Commission
had “been aware of and concerned about the increasing
incidence of downward departures” before the enactment of
the PROTECT Act and had already taken certain steps to
address specific areas of concern. DEPARTURES REPORT at
71. Between 1999 and 2001, the Commission addressed
divisions among the courts of appeals regarding certain
types of departures and acted to reduce departures in illegal
entry cases. Id. at 71-72; see also USSG App. C, amend.
602, 603, and 632 (effective Nov. 2001).
158

151

Id.

152

Id. (quoting 18 U.S.C. § 3742(e)). By contrast, the
Court held in Braxton v. United States that the Commission
had unique authority to resolve conflicts between the circuit
courts over how to interpret guideline provisions. 500 U.S.
344 (1991).

153

Koon, 518 U.S. at 100.

154

Pub. L. No. 108-21 (2003).

155

See 149 CONG. REC. H3061 (Apr. 10, 2003).

USSG App. C, amend. 649 (effective Apr. 30, 2003) and
650 (effective May 30, 2003).

159

USSG §§5K2.0, p.s. (Grounds for Departure), 5H1.4,
p.s. (Physical Condition, Including Drug or Alcohol
Dependence or Abuse; Gambling Addiction), 5H1.6, p.s.
(Family Ties and Responsibilities), 5H1.7, p.s. (Role in the
Offense), 5H1.8, p.s. (Criminal History), 5K2.10, p.s.
(Victim’s Conduct), 5K2.12, p.s. (Coercion and Duress),
5K2.13, p.s. (Diminished Capacity), 5K2.20, p.s. (Aberrant
Behavior), 4A1.3, p.s. (Departures Based on Inadequacy of
Criminal History Category), and 6B1.2, p.s. (Standards for
Acceptance of Plea Agreements). See USSG App. C,
amend. 651 (effective Oct. 27, 2003).

BOOKER REPORT 2012: PART A
departures.160 In addition, the Commission addressed
the new statutory requirement that sentencing courts
provide specific written justification for departures.161
The PROTECT Act fundamentally changed
the appellate review standard established in Koon by
amending 18 U.S.C. § 3742(e) to provide that all
departures from the guideline range would be subject
to de novo review.162 In addition, the PROTECT Act
established factors that courts of appeals had to
consider when reviewing a sentence, including
whether the sentence:

guidelines “effectively advisory.” In United States v.
Booker, the Supreme Court addressed two questions:
(1) Whether the Sixth Amendment is violated by
the imposition of an enhanced sentence under
the United States Sentencing Guidelines based
on the sentencing judge’s determination of a
fact (other than a prior conviction) that was
not found by the jury or admitted by the
defendant.
(2) If the answer to the first question is “yes,” . . .
whether, in a case in which the Guidelines
would require the court to find a sentence
enhancing fact, the Sentencing Guidelines as a
whole would be inapplicable, as a matter of
severability analysis, such that the sentencing
court must exercise its discretion to sentence
the defendant within the maximum and
minimum set by statute for the offense of
conviction.164

(1) was imposed in violation of law;
(2) resulted from the incorrect
application of the guidelines;
(3) is outside the guideline range, and
the sentencing court did not provide
an adequate statement of reasons;
(4) departs from the guideline range
based on a factor that does not
advance
the
objectives
in
§ 3553(a)(2), is not authorized under
§ 3553(b), or is not justified by the
facts of the case;
(5) departs to an unreasonable degree,
taking into account § 3553(b); or
(6) was imposed for an offense for
which there are no guidelines and is
plainly unreasonable.163

THE BOOKER DECISION
In January 2005, the Supreme Court issued its
landmark decision rendering the federal sentencing
160

DEPARTURES REPORT at 71-72; see also USSG App. C,
amend. 651 (effective Oct. 27, 2003).

161

The Court answered the first question in the
affirmative, holding that “[a]ny fact (other than a prior
conviction) which is necessary to support a sentence
exceeding the maximum authorized by the facts
established by a plea of guilty or a jury verdict must be
admitted by the defendant or proved to a jury beyond a
reasonable doubt.”165 A different majority of the Court
answered the question of the appropriate remedy for
the constitutional violation. The Court concluded that
the Sixth Amendment requirement that a jury find
certain sentencing facts was incompatible with certain
components of the SRA, and excised the provisions
that made the sentencing guidelines mandatory.166
In determining that these provisions could be
excised, the Court rejected two remedies suggested by
the government and the dissenting justices. First, the
Court rejected the Government’s proposed remedy that
would “render the Guidelines advisory in ‘any case in
which the Constitution prohibits’ judicial factfinding”
and “leave them as binding in all other cases.”167 The
164

543 U.S at 229 n.1.

165

Id. at 244.

Pub. L. No. 108-21, section 401, codified in 18 U.S.C.
§ 3742(e).

166

Id. at 245.

163

167

Id. at 266.

DEPARTURES REPORT at 71-72; see also USSG App. C,
amend. 651 (effective Oct. 27, 2003).

162

18 U.S.C. § 3472(e).

BOOKER REPORT 2012: PART A
Court held that leaving the guidelines binding in some
cases but not in others “would impose mandatory
Guidelines-type limits upon a judge’s ability to reduce
sentences, but it would not impose those limits upon a
judge’s ability to increase sentences.”168 The Court
held that this one-way limit and the complexity of a
sometimes-mandatory system would not advance the
congressional objective of uniformity in sentencing.169
Second, the Court rejected the dissent’s
proposal to graft a jury factfinding requirement onto
the provisions of the SRA, holding that such a
requirement “would so transform the scheme that
Congress created that Congress likely would not have
intended the Act as so modified to stand.”170 The
Court reasoned that Congress would prefer an advisory
guidelines system that maintained “a strong
connection between the sentence imposed and the
offender’s real conduct” to a system that would
“engraft onto the existing system today’s Sixth
Amendment ‘jury trial’ requirement.”171 According to
the Court, Congress’ important objectives included
honesty, uniformity, and proportionality
in
172
sentencing.
In fashioning a remedy to the Sixth
Amendment violation, the Court excised only two of
the SRA’s provisions.173 First, the Court excised 18
U.S.C. § 3553(b)(1), which required courts to impose
a sentence within the applicable guideline range in the
absence of circumstances justifying a departure. The
Court determined that “the existence of [this section]
is a necessary condition of the constitutional
violation.”174 Second, the Court excised 18 U.S.C.
§ 3742(e), which the PROTECT Act had amended to
provide a de novo standard of review for departures
168

Id.

169

Id. at 266-67.

170

Id. at 249.

171

Id. at 248.

172

Id. at 264.

173

Id. at 258-61. The remaining portions of the Act require
a sentencing court to consider guideline ranges but permit a
court to tailor the sentence in light of other statutory
concerns. See 18 U.S.C. § 3553(a).

174

543 U.S. at 259.

from the guidelines. The Court observed that excising
the standard of review did “not pose a critical problem
for the handling of appeals” because “a statute that
does not explicitly set forth a standard of review may
nonetheless do so implicitly.”175 Taking into account
the “related statutory language” and the “sound
administration of justice,” as well as “the past two
decades of appellate practice in cases involving
departures,” the Court returned to the pre-PROTECT
Act version of section 3742, which provided for
review of sentences for reasonableness in light of the
§ 3553(a) factors.176
The Court rejected criticism questioning the
practicality of the reasonableness standard of review,
noting that Commission data showed that
reasonableness review of departures and sentences
imposed for non-guidelines offenses accounted for
16.7 percent of appeals in 2002.177 The Court also
rejected the argument that the application of the
reasonableness standard of review would “‘produce a
discordant symphony’ leading to ‘excessive sentencing
disparities,’ and ‘wreak havoc’ on the judicial
system.”178 Nonetheless, the Court acknowledged that
reasonableness review might not “provide the
uniformity that Congress originally sought to secure,”
but noted that reasonableness review “would tend to
iron out sentencing differences.”179
With respect to the continued role of the
Commission, the Court noted that:
The Sentencing Commission will
continue to collect and study appellate
court decisionmaking. It will continue
to modify its Guidelines in light of
what it learns, thereby encouraging
what it finds to be better sentencing
practices. It will thereby promote
175

Id. at 260 (emphasis in original).

176

Id. at 260-61. In Koon, the Supreme Court held that
departure decisions by district courts were due deference
and that appellate courts should use an abuse of discretion
standard in reviewing trial courts’ application of the
guidelines to the facts. 518 U.S. at 91.

177

543 U.S. at 263.

178

Id. (quoting id. at 312-13 (Scalia, J., dissenting)).

179

Id. at 263.

BOOKER REPORT 2012: PART A
uniformity
process.180

the

sentencing

Furthermore, “[t]he system remaining after excision,
while lacking the mandatory features that Congress
enacted, retains other features that help to further these
objectives.”181 Even so, the Court recognized that
Booker would not be the final word on the new
sentencing regime:
Ours, of course, is not the last word:
The ball now lies in Congress’ court.
The National Legislature is equipped
to devise and install, long term, the
sentencing system, compatible with
the Constitution, that Congress judges
best for the federal system of
justice.182

180

Id.

181

Id.

182

Id. at 265.

BOOKER REPORT 2012: PART A

The Sentencing Process After Booker

THE THREE-STEP PROCESS
In Gall v. United States,183 the Supreme Court
described the proper procedure for post-Booker
sentencing. First, a sentencing court must properly
determine the guideline range pursuant to 18 U.S.C
§ 3553(a)(4). Second, the court must consider whether
any of the guidelines’ departure policy statements
apply pursuant to 18 U.S.C. § 3553(a)(5). Third, the
court must consider the factors set forth in 18 U.S.C.
§ 3553(a) taken as a whole before determining the
sentence to be imposed, including whether a variance
is warranted. Although the guidelines now incorporate
the three-step process,184 courts take different
approaches to applying it, particularly with respect to
consideration of departure provisions and offender
characteristics.

The First Step: Proper Determination of the
Guideline Range
Courts must begin the sentencing process by
properly determining the applicable guideline range.185
Determination of the guideline range continues to
include factfinding by the court to resolve disputed
issues.186 Moreover, the burden of proof for judicial
factfinding continues to be proof by a preponderance
of evidence, and not proof beyond a reasonable doubt,
183
184
185
186

552 U.S. 38, 49-50 (2007).
See USSG §1B1.1(a)−(c) (Application Instructions).
See Rita, 551 U.S. at 351; USSG §1B1.1(a).

See, e.g., United States v. Gonsalves, 435 F.3d 64 (1st
Cir. 2006); United States v. Sheikh, 433 F.3d 905 (2d Cir.
2006).

as some defendants had argued shortly after Booker.187
District courts may still consider reliable hearsay188
and acquitted conduct189 in resolving factual disputes
to determine the guideline range.
Although this first step remains largely
unchanged after Booker, one issue on which courts
have disagreed is whether the Ex Post Facto clause
bars application of a guideline range that was
increased after the defendant committed the crime.
The Seventh Circuit190 concluded that the Ex Post
Facto clause does not bar application of the Guidelines
Manual in effect at the time of sentencing even if the
guideline range is higher than the range provided by
the Manual in effect on the date of the offense. The
Seventh Circuit reasoned “that the ex post facto clause
should apply only to laws and regulations that bind
rather than advise.”191 Five other circuits have held
that the Ex Post Facto Clause bars such increases in
187

See, e.g., United States v. Mares, 402 F.3d 511 (5th Cir.
2005); United States v. Garcia-Gonon, 433 F.3d 587 (8th
Cir. 2006).
188

See, e.g., United States v. Baker, 432 F.3d 1189 (11th
Cir. 2005) (holding Booker did not change the rule that a
sentencing court may base sentencing determinations on
reliable hearsay). See also United States v. Brown, 430
F.3d 942 (8th Cir. 2005) (“We see nothing in Booker that
would require the court to determine the sentence in any
manner other than the way the sentence would have been
determined pre-Booker”).
189

See, e.g., United States v. Lynch, 437 F.3d 902 (9th Cir.
2006) (en banc).

190

United States v. Demaree, 459 F.3d 791 (7th Cir. 2006).

191

Id. at 795.

BOOKER REPORT 2012: PART A
sentences.192 The Supreme Court has agreed to review
this division among the circuits.193

The Second Step: Consideration of Departure
Provisions
Once the court has correctly determined the
guideline range, the court must consider whether to
apply any of the guidelines’ departure policy
statements raised by the parties,194 including such
commonly applied departures as the substantial
assistance departure at §5K1.1, the fast track departure
at §5K3.1, the departure at §4A1.3 for overstatement
of criminal history, and the cultural assimilation
departure for illegal entry offenders.195 In observing
that much of the sentencing process has remained
192

See United States v. Turner, 548 F.3d 1094 (D.C. Cir.
2008); United States v. Ortiz, 621 F.3d 82 (2d Cir. 2010);
United States v. Lewis, 606 F.3d 193 (4th Cir. 2010);
United States v. Lanham, 617 F.3d 873 (6th Cir. 2010); and
United States v. Wetherald, 636 F.3d 1315 (11th Cir. 2010).
In addition, the Third, Fifth, and Ninth Circuits have
remanded for resentencing cases in which the district court
applied a later version of the guidelines that imposed a
harsher punishment than the version in effect when the
offense was committed. See United States v. Wood, 486
F.3d 781 (3d Cir. 2007); United States v. Reasor, 418 F.3d
466 (5th Cir. 2005); United States v. Forrester, 616 F.3d 929
(9th Cir. 2010). Two other circuits, the Eighth and the
Tenth, have, in dicta, agreed with the majority view and
rejected Demaree. See United States v. Carter, 490 F.3d
641 (8th Cir. 2007); United States v. Thompson, 518 F.3d
832 (10th Cir. 2008). Finally, the First Circuit, while
avoiding the constitutional issue, has followed “a
commonsense protocol” under which courts “ordinarily
employ the guidelines in effect at sentencing only where
they are as lenient as those in effect at the time of the
offense; when the guidelines have been made more severe in
the interim, the version in effect at the time of the crime is
normally used.” United States v. Ricardo-Rodriguez, 630
F.3d 39 (1st Cir. 2011).
193

Peugh v. United States, 133 S. Ct. 594 (Nov. 9, 2012).

194

See, e.g., United States v. Gunter, 462 F.3d 237, 247 (3d
Cir. 2006) (abrogated on other grounds by Tapia v. United
States, 131 S. Ct. 2382 (2011) (courts must “formally rule
on the motions of both parties and state on the record
whether they are granting a departure and how that
departure affects the Guidelines calculation[.]”).

195

USSG §1B1.1(b).

unchanged after Booker, the Eighth Circuit has stated
that “after determining the appropriate sentencing
range, the district court must decide if a traditional
departure is appropriate under Part K or §4A1.3.”196
The Third Circuit similarly requires “that the entirety
of the Guidelines calculation be done correctly,
including rulings on Guidelines departures.”197 Citing
section 3553(a) and Booker, the Third Circuit
explained that this requirement is “[n]ot for
jurisdictional reasons, but rather because the
Guidelines still play an integral role in criminal
sentencing.”198 A number of circuits recognize that
departures are part of the guideline analysis, and that if
a district court does not conduct a departures analysis,
the guideline sentence cannot be properly considered
as part of the § 3553(a) analysis either at sentencing or
on appeal.199
Although courts are required to consider
departure policy statements, the use of departures, as
opposed to variances, has continued to decrease, as
parties increasingly have relied on the section 3553(a)
196

United States v. Hawk Wing, 433 F.3d 622, 631 (8th
Cir. 2006).

197

United States v. Jackson, 467 F.3d 834, 838 (3d Cir.
2006).

198

Id.

199

Id. at 838-39 (“district courts must still calculate what
the proper Guidelines sentencing range is, otherwise the
Guidelines cannot be considered properly”); United States
v. Wallace, 461 F.3d 15, 32 (1st Cir. 2006) (“Only after the
district court has conducted the advisory guidelines analysis,
including a determination of the appropriateness of
downward or upward departures under the guidelines,
should the court then decide whether the guidelines sentence
comports with the sentencing factors set for in 18 U.S.C.
§ 3553(a)”) (emphasis in original); United States v.
McBride, 434 F.3d 470, 476 (6th Cir. 2006) (“To effectuate
the Supreme Court’s mandate, district courts are still
required to consider the appropriate Guideline sentencing
range. Within this Guideline calculation is the
determination of whether a Chapter 5 departure is
appropriate.”) (emphasis in original); United States v.
Selioutsky, 409 F.3d 114, 118 (2d Cir. 2005) (“the
sentencing judge must consider the factors set forth in 18
U.S.C. § 3553(a), including the applicable Guidelines range
and available departure authority”); United States v.
Crawford, 407 F.3d 1174, 1179 (11th Cir. 2005)
(characterizing erroneous application of a downward
departure as “sentencing error”).

BOOKER REPORT 2012: PART A
factors rather than on guideline departure
provisions.200 The Seventh Circuit has held that
departures are “obsolete,” and that sentences based on
departure provisions should be examined in the same
way as variances based on factors outside the
guidelines, that is, under the general rubric of section
3553(a).201
The trend toward examining sentences based
on departure provisions under the general rubric of
section 3553(a) is reflected in circuits other than the
Seventh. While not holding that departures are
obsolete, the Sixth Circuit has held that a district
court’s consideration of departures is less important
after Booker:

court — with greater latitude — under
section 3553(a).202
The importance of considering departures in
the second step of sentencing is also questionable in
the Ninth Circuit. In United States v. Mohamed, the
Ninth Circuit stated:
We think the better view is to treat the
scheme of downward and upward
“departures” as essentially replaced by
the requirement that judges impose a
“reasonable” sentence . . . The use and
review of post-Booker departures
would result in wasted time and
resources in the courts of appeal, with
little or no effect on sentencing
decisions. After all, if a district court
were to employ a post-Booker
“departure”
improperly,
the
sentencing judge still would be free on
remand to impose exactly the same
sentence by exercising his discretion
under the now-advisory guidelines.
Such a sentence would then be
reviewed for reasonableness, in which
case
it
is
the
review
for
reasonableness, and not the validity of
the
so-called
departure,
that
determines whether the sentence
stands.203

[B]ecause the Guidelines are no
longer mandatory and the district
court need only consider them along
with its analysis of the section 3553(a)
factors, the decision to deny a
Guidelines-based downward departure
is a smaller factor in the sentencing
calculus. Furthermore, many of the
very factors that used to be grounds
for a departure under the Guidelines
are now considered by the district

200

In fiscal year 2007, courts imposed 8,433 nongovernment sponsored below range sentences. Those
relying at least in part on departure grounds numbered only
2,770 (32.8% of all non-government sponsored below range
sentences), while 4,957 (58.8% of all non-government
sponsored below range sentences) were explicitly based on
Booker or § 3553(a) and not on any guideline departure
ground. In fiscal year 2008, courts imposed 9,972 nongovernment sponsored below range sentences, and those
resting at least in part on departure grounds numbered 2,459
(24.7%), while those based solely on Booker and § 3553(a)
numbered 6,678 (67.0%). In the years that followed, those
percentages were: fiscal year 2009, 19.0% departures (2,403
out of 12,655 cases) compared to 73.9% Booker/ § 3553(a)
variances (9,358 out of 12,655 cases); fiscal year 2010,
17.5% departures (2,552 out of 14,565 cases) compared to
76.3% Booker/ § 3553(a) variances (11,116 out of 14,565
cases); and fiscal year 2011, 19.6% departures (2,893 out of
14,762 cases) compared to 77.0% Booker/ § 3553(a)
variances (11,371 out of 14,762 cases).

In United States v. Gutierrez-Hernandez, a
panel of the Fifth Circuit parted company with the
Ninth Circuit on this issue, vacating the sentence and
remanding the case to the district court because the
court “erred in the application of the departure
provisions.”204 Yet in a subsequent case upholding a
sentence that was more than two times the upper end
of the guideline range, the Fifth Circuit seemingly
disavowed that holding: “[t]o the extent that . . .
Gutierrez-Hernandez could arguably be construed to
require a district court to apply the Guidelines’

201

203

459 F.3d 979, 986-87 (9th Cir. 2006).

204

581 F.3d 251, 255-256 (5th Cir. 2009).

See, e.g., United States v. Moreno-Padilla, 602 F.3d 802
(7th Cir. 2010). The Seventh Circuit is the only circuit to
have held that departures are “obsolete.”

202

United States v. McBride, 434 F.3d 470, 476 (6th Cir.
2006).

BOOKER REPORT 2012: PART A
departure methodology before imposing a nonGuidelines sentence, this passage in GutierrezHernandez is dicta.”205 The Fifth Circuit upheld the
non-guideline sentence even though the district court
did not utilize departure methodology in reaching its
decision.206

correctional treatment in the most
effective manner;
(3) the kinds of sentences available;
(4) the kinds of sentence and the
sentencing range established for―
(A) the applicable category of
offense committed by the applicable
category of defendant as set forth in
the guidelines issued by the
Sentencing Commission pursuant to
section 994(a)(1) of title 28, United
States Code, and that are in effect on
the date the defendant is sentenced;
or
(B) in the case of a violation of
probation or supervised release, the
applicable guidelines or policy
statements issued by the Sentencing
Commission pursuant to section
994(a)(3) of title 28, United States
Code;
(5) any pertinent policy statement
issued by the Sentencing Commission
pursuant to 28 U.S.C. § 994(a)(2) that
is in effect on the date the defendant is
sentenced;
(6) the need to avoid unwarranted
sentence disparities among defendants
with similar records who have been
found guilty of similar conduct; and
(7) the need to provide restitution to
any victims of the offense.208

The Third Step: Consideration of § 3553(a)
Factors
In the third step of the sentencing process, the
court must consider the factors set forth in 18 U.S.C.
§ 3553(a) taken as a whole before imposing the
sentence,207 and “impose a sentence sufficient but not
greater than necessary” to meet the purposes of
sentencing set forth in 18 U.S.C. § 3553(a)(2). The
factors the court must consider are ―
(1) the nature and circumstances of
the offense and the history and
characteristics of the defendant;
(2) the need for the sentence
imposed—
(A) to reflect the seriousness of the
offense, to promote respect for the
law, and to provide just punishment
for the offense;
(B) to afford adequate deterrence to
criminal conduct;
(C) to protect the public from
further crimes of the defendant; and
(D) to provide the defendant with
needed educational or vocational
training, medical care, or other
205

United States v. Gutierrez, 635 F.3d 148, 153 (5th Cir.
2011).

206

The Fifth Circuit emphasized cases decided before
Gutierrez-Hernandez, in which the court of appeals
“determine[d] only whether the non-Guidelines sentence at
issue was reasonable, not whether the district court was
required to perform a calculation of departure []. Indeed,
our opinion in Smith expressly states that ‘we do not
examine whether an upward departure or an enhancement
was available under the Guidelines.’” 635 F.3d at 152.
207

See USSG §1B1.1(c); see also United States v. Hughes,
401 F.3d 540, 546 (4th Cir. 2005); United States v. Stone,
432 F.3d 651, 655 (6th Cir. 2005); United States v. Talley,
431 F.3d 784, 786 (11th Cir. 2005).

The sentencing court need not give prior
notice of its intent to vary,209 nor categorically recite
each of the 18 U.S.C. § 3553(a) factors on the record
when it imposes a sentence.210 Nevertheless, the
208

18 U.S.C. § 3553(a)(1)−(7).

209

In Irizarry v. United States, the Supreme Court held that
the requirement in Federal Rule of Criminal Procedure
32(h) that the sentencing court provide advance notice to the
parties when departing from the applicable guideline range
applies only to guideline departures and not to post-Booker
variances: “[t]he due process concerns that motivated the
Court to require notice in a world of mandatory Guidelines
no longer provide a basis for [such a requirement].” 553
U.S. 708, 714 (2008).
210

See, e.g., McBride, 434 F.3d 470 (6th Cir. 2006); United
States v. Dieken, 432 F.3d 906 (8th Cir. 2006); United

BOOKER REPORT 2012: PART A
record must include sufficient evidence to demonstrate
the court’s consideration of these factors.
Consequently, the court’s consideration of the 18
U.S.C. § 3553(a) factors has become an essential part
of the sentencing process.211 However, with respect to
consideration of sections 3553(a)(4) and (5), no circuit
has specified what weight to give the Commission’s
guidelines and policy statements,212 and the circuits
have not given district courts uniform direction on this
issue.

CONSIDERATION OF OFFENDER
CHARACTERISTICS
The Supreme Court’s renewed emphasis213 on
the importance of the history and characteristics of the
States v. Scott, 426 F.3d 1324, 1329 (11th Cir. 2005)
(“nothing in Booker or elsewhere requires the district court
to state on the record that it has explicitly considered each of
the § 3553(a) factors or to discuss each of the § 3553(a)
factors”); but see United States v. Cunningham, 429 F.3d
673, 679 (7th Cir. 2005) ( “A rote statement that the judge
considered all relevant factors will not always suffice; the
temptation to a busy judge to impose the guidelines
sentence and be done with it, without wading into the vague
and prolix statutory factors, cannot be ignored.”).
211

See, e.g., United States v. Till, 434 F.3d 880, 887 (6th
Cir. 2006).

212

See, e.g., United States v. Hunt, 459 F.3d 1180, 1184-85
(11th Cir. 2006) (rejecting “any across-the-board
prescription regarding the appropriate deference to give the
Guidelines” and opting to allow sentencing courts to
“determine, on a case-by-case basis, the weight to give the
guidelines, so long as that determination is made with
reference to the remaining section 3553(a) factors the court
must also consider in calculating the defendant’s
sentence.”). A district court must “give respectful
consideration to the judgment embodied in the guidelines
range that he computes.” United States v. Higdon, 531 F.3d
561, 562 (7th Cir. 2008); see also United States v. Stewart,
590 F.3d 93, 167-68 (2d Cir. 2009) (“if the district court has
ignored or slighted a factor that Congress has deemed
pertinent in § 3553(a), it has abused its discretion.”)
(citations omitted).

213

See, e.g., Gall, 552 U.S. at 49 (a sentencing court must
“consider all of the § 3553(a) factors” and “must make an
individualized assessment based on the facts presented.”);
Kimbrough, 552 U.S. at 101 (“In sum, while the statute still
requires a court to give respectful consideration to the
Guidelines, [] Booker permits the court to tailor the sentence

defendant is not easily reconciled with section 994 of
title 28. For example, in United States v. Pepper, the
Court noted that sentencing courts should “conduct an
inquiry broad in scope, largely unlimited either as to
the kind of information [they] may consider, or the
source from which it may come.” 214 On the other
hand, Congress directed the Commission to
promulgate guidelines consistent with the SRA’s
proscriptions
and
limitations
on
offender
215
characteristics in section 994(d) and (e).
The Supreme Court has not made clear
whether the proscriptions and limitations imposed by
Congress to which the Commission must adhere in
considering the section 3553(a) factors also limit the
courts’ consideration of offender characteristics under
section 3553(a). While the Constitution constrains
sentencing judges from considering the “forbidden
factors” of race, sex, national origin, and creed,216
courts now freely consider, for example, a defendant’s
educational background and employment record,
factors that Congress, in section 994(e), deemed
in light of other statutory concerns as well[.]”) (internal
citations omitted).
214

131 S. Ct. 1229 (2011) (citing United States v. Tucker,
404 U.S. 443, 446 (1972)). See also Rita, 551 U.S. at 351
(“[A sentencing judge] may hear arguments by prosecution
or defense that the Guidelines sentence should not apply,
perhaps because (as the Guidelines themselves foresee) the
case at hand falls outside the ‘heartland’ to which the
Commission intends individual Guidelines to apply, USSG
§5K2.0, perhaps because the Guidelines sentence itself fails
properly to reflect § 3553(a) considerations, or perhaps
because the case warrants a different sentence regardless,
see Rule 32(f).”).

215

See discussion at 17, 21-22 supra.

216

See Pepper, 131 S. Ct. at 1240 n.8 (“Of course,
sentencing courts’ discretion under § 3661 is subject to
constitutional constraints.”); Clark v. Martinez, 543 U.S.
371, 380-81 (2005) (a court should construe a statute to
avoid a constitutional infirmity if possible); United States v.
Kaba, 480 F.3d 152, 156 (2d Cir. 2007) (“A defendant’s
race or nationality may play no adverse role in the
administration of justice, including sentencing.”) (internal
citations omitted); see also United States v. Stewart, 590
F.3d 93, 167 (2d Cir. 2009) (Walker, J., concurring in part
and dissenting in part) (“We do not categorically proscribe
any factor concerning the [defendant’s] background,
character, and conduct, with the exception of invidious
factors.”) (internal quotations omitted).

BOOKER REPORT 2012: PART A
“generally inappropriate” for the Commission to
consider in recommending a term of imprisonment or
length of a term of imprisonment.217 Moreover, those
factors may be associated with socio-economic status,
a forbidden factor under section 994(e).218 As a result
of the lack of certainty in this area, courts sometimes
reach different conclusions about whether and to what
extent such characteristics should affect the
defendant’s sentence.219
217

See, e.g., United States v. Tomko, 562 F.3d 558, 572 (3d
Cir. 2009) (affirming a downward variance in part based
upon defendant’s prior record as the operator of a large and
successful plumbing company that employed more than 300
people); United States v. Whitehead, 532 F.3d 991, 993 (9th
Cir. 2008) (affirming a downward variance in part based
upon defendant’s post-offense record of creating a
successful house-painting business); United States v. AyalaGarcia, 2008 WL 2566858, *4 (E.D. Wisc. 2008) (imposing
a sentence below the applicable guideline range in part
based on the “defendant’s recent educational and vocational
endeavors”) (unpublished); United States v. Crocker, 2007
WL 2757130, *1 (D. Kan. 2007) (imposing a sentence
below the guidelines in part based on the defendant’s
“efforts to better herself through a college education”)
(unpublished).

218

See, e.g., United States v. Peltier, 505 F.3d 389, 393 (5th
Cir. 2007) (“We cannot easily disentangle the weight given
to the proper factor of need for treatment from the weight
given to the improper factor of socioeconomic status, with
which the former proper factor was entwined.”); United
States v. Engle, 592 F.3d 495, 505 (4th Cir. 2010) (noting
that the district court made it clear that, but for the
defendant’s earning capacity, it would have imposed a
within guidelines sentence of imprisonment, the Fourth
Circuit found that, “[r]educed to its essence, the district
court’s approach means that rich tax-evaders will avoid
prison, but poor tax-evaders will almost certainly go to jail,”
that an approach based on socioeconomic status was
impermissible pre-Booker, and that Booker and Gall did not
“permit[] district courts to rest a sentencing decision
exclusively on such constitutionally suspect grounds.”).

219

According to some criminal defense attorneys, there is
no tension between the statutory proscriptions in section 994
and the section 3553(a) factors because section 994(e) can
be interpreted as making certain offender characteristics
inappropriate for consideration only for determining
whether to impose a sentence of imprisonment, as opposed
to probation, or to lengthen a sentence of imprisonment. In
their view, despite section 994(e), judges retain discretion
under section 3553(a) to consider those same offender
characteristics in deciding whether to shorten a sentence of
imprisonment, or whether to impose a sentence of probation

A defendant’s status as a young adult
(although not a juvenile) at the time of the offense is
an example of an offender characteristic that courts
have viewed differently. Some courts believe relative
youth is a mitigating factor, while others do not. The
district judge who sentenced the defendant in Gall
noted that “[r]ecent studies on the development of the
human brain conclude that human brain development
may not become complete until the age of twentyfive” and “compared [the defendant’s] sale of ecstasy
when he was a 21-year-old adult to the ‘impetuous and
ill-considered’ actions of persons under the age of
18.”220 The Supreme Court agreed that “it was not
unreasonable for the District Judge to view Gall’s
immaturity at the time of the offense as a mitigating
factor,” and that such consideration “finds support in
[the Court’s] cases.”221 Similarly, a district judge
relied in part on age when sentencing a young adult
defendant convicted of possessing child pornography
because the defendant began viewing such images
when he was himself a young teenager.222 The judge
concluded that although the “unformed nature of the
adolescent brain” did not “remove[] all culpability,” it
did constitute a “critical distinction” from the typical
defendant convicted of possessing child pornography,
and it “weigh[ed] heavily in favor of a” downward
variance from the guideline range.223
Other courts, however, have taken the view
that a defendant’s status as a young adult cannot
support a substantial downward variance.
For
example, the Eighth Circuit reversed a substantial
downward variance in the case of a career offender
or other alternative to incarceration. See, e.g., U.S. Sent’g
Comm’n Public Hearing on Federal Sentencing Options
After Booker, Washington, DC (Feb. 16, 2012) (Statement
of Lisa Wayne, President, National Association of Criminal
Defense Lawyers, written statement at 7); U.S. Sent’g
Comm’n Public Hearing on Federal Sentencing Options
After Booker, Washington, DC (Feb. 16, 2012) (Statement
of Henry Bemporad, Federal Public Defender, Western
District of Texas, written statement at 10).
220

Gall, 552 U.S. at 57-58.

221

Id. at 58.

222

United States v. Stern, 590 F. Supp. 2d 945, 952-54
(N.D. Ohio 2008).

223

Id.

BOOKER REPORT 2012: PART A
who was 22 years old at the time of the offense, in part
because the district court explicitly stated that had the
defendant been 35 or 40 years of age, the court would
have imposed a sentence at or near the guideline range
“because the court would have serious questions about
whether a defendant at that age could be
rehabilitated.”224
The Eighth Circuit held that,
especially given the size of the downward variance, it
was unreasonable because “[r]elative youth is a factor
that may apply to many career offenders, and it is
unlikely that district courts uniformly will adopt the
view of the district court in this case.”225 In such a
circumstance, the Eighth Circuit said, “the potential
for excessive sentence disparities would be
substantial.”226 In a subsequent case, one judge of the
Eighth Circuit explained his disagreement with a
district judge’s reliance on a defendant’s relative youth
as a mitigating factor as follows:
[The defendant’s] age does not
distinguish him in any meaningful
way from other defendants. In fact,
34.1% of all males arrested in the
United States in 2007 were between
the ages of 20 and 29. In 2007, even
more narrowly, males between the
ages of 25 and 29 made up the largest
demographic group - an estimated
17.24% - of all state and federal
prisoners in the United States. … [The
defendant’s] age has no significant or
“appreciable probative value” in this
sentencing and is irrelevant[.]227
In the same case, another Eighth Circuit judge
explained that “[r]easonable minds can differ” on the
question of whether a defendant’s relative youth is a
mitigating factor, and that therefore “[t]he offender’s
punishment in these career offender cases – ranging
from the statutory minimum term to a sentence at or

near the statutory maximum – will depend
substantially on the luck of the judicial draw.”228
Similarly, in the context of considering the
history and characteristics of the defendant as required
by 18 U.S.C. § 3553(a), courts have considered how to
account for a defendant’s positive employment history.
As Justice Alito observed in his dissent in Gall, before
the SRA:
[I]f a defendant had a job, a
supportive family, and friends, those
factors were sometimes viewed as
justifying a harsher sentence on the
ground that the defendant had
squandered the opportunity to lead a
law-abiding life. Alternatively, those
same factors were sometimes viewed
as justifications for a more lenient
sentence on the ground that a
defendant with a job and a network of
support would be less likely to return
to crime.229
Since Booker, judges have expressed disparate
views on this issue, making sentencing outcomes less
certain. For example, the Third Circuit reviewed en
banc a substantial downward variance in a tax fraud
case in which one of the factors supporting the
variance was the defendant’s prior record as the
operator of a large and successful plumbing company
that employed more than 300 people.230 The Third
Circuit split over the substantive reasonableness of the
sentence.
Affirming the variance, the majority
concluded that the district court appropriately relied in
part on the defendant’s prior employment when
imposing the sentence.231
The dissent, while
acknowledging that a prior record of employment may
in some cases be a mitigating factor, emphasized that
this consideration “fails to distinguish [the defendant]
from other tax evaders … and therefore falls far short
of widening the range of” substantively reasonable

224

United States v. Maloney, 466 F.3d 663, 669 (8th Cir.
2006).

225
226

Id.
Id.

228

Id. at 468 (citations omitted) (Colloton, J., concurring).

229

552 U.S. at 70 (Alito, J., dissenting).

230

Tomko, 562 F.3d at 572.

231

Id.

227

United States v. Feemster, 572 F.3d 455, 465-66 (8th
Cir. 2009) (citations omitted) (Riley, J., concurring).

BOOKER REPORT 2012: PART A
sentences.232 The dissent expressed the view that “[a]n
admirable record of employment is a characteristic
common to many white-collar criminals, and the
prospect of business failure seems of little relevance as
a mitigating circumstance when the business itself was
the vehicle through which the defendant perpetrated
the crime.”233 Several judges in the Ninth Circuit have
made substantially the same observation: “We can
hardly be surprised if a white collar criminal has a
good employment history – otherwise, he or she would
likely not be in a position to commit the crime.”234
In public hearings before the Commission,
several district court judges expressed concern over
this
uncertainty,
suggesting
that
offender
characteristics that do not support a guideline
departure are what most often lead them to vary from
the guidelines.235 Several district court judges and the
federal public defender community asserted that the
authority of district court judges to take account of
offender characteristics results in a more fair and just
sentencing outcome, allowing judges to mitigate
otherwise harsh guidelines or unwarranted sentencing
disparities.236
232

Id. at 583-84 (Fisher, J., dissenting).

233

Id. at 584.

234

See, e.g., United States v. Whitehead, 559 F.3d 918, 921
(9th Cir. 2009) (Gould, J., dissenting from denial of
rehearing en banc).

235

U.S. Sent’g Comm’n Public Regional Hearing on the
25th Anniversary of the Passage of the Sentencing Reform
Act of 1984, Austin, TX (Nov. 19-20, 2009) (Testimony of
the Honorable Robin J. Cauthron, District Judge, Western
District of Oklahoma, transcript at 11); see also U.S. Sent’g
Comm’n Public Regional Hearing on the 25th Anniversary
of the Passage of the Sentencing Reform Act of 1984,
Denver, CO (Oct. 20-21, 2009) (Testimony of the
Honorable Joan Ericksen, District Judge, District of
Minnesota, transcript at 269-270, 274); see also 2010
JUDGES’ SURVEY at 19 (Question 4, Table 14) (76 percent of
respondents indicated that they do not rely on a departure
provision within the Guidelines Manual because the
Guidelines Manual does not contain a departure provision
that adequately reflects the reason for a sentence outside the
guideline range; and 65 percent indicated that they do not
rely on a departure provision because the departure policy
statements in the manual are too restrictive).
236

See U.S. Sent’g Comm’n Public Regional Hearing on
the 25th Anniversary of the Passage of the Sentencing

The Department of Justice has expressed
concern that judges’ increased discretion after Booker,
including the discretion to consider offender
characteristics, has led to increasing unwarranted
sentencing disparities.237 In addition, some probation
officers have suggested that the guidelines be amended
to better reflect the relevance of the defendant’s
history and characteristics as described in section
3553(a), either because those factors that the
guidelines discourage courts from considering might

Reform Act of 1984, New York, NY (July 9-10, 2009)
(Testimony of the Honorable Donetta W. Ambrose, Chief
District Judge, Western District of Pennsylvania, transcript
at 51-52); U.S. Sent’g Comm’n Public Hearing on Federal
Sentencing Options After Booker, Washington, DC (Feb.
16, 2012) (Statement of the Honorable Paul Barbadoro,
District Judge, District of New Hampshire, written
statement at 6) (“Downward departures and variances may
not reveal a problem with the advisory guidelines system
but may in fact reduce undue rigidity in individual cases.”);
U.S. Sent’g Comm’n Public Hearing on Federal Sentencing
Options After Booker, Washington, DC (Feb. 16, 2012)
(Statement of Raymond Moore, Federal Public Defender,
Districts of Colorado and Wyoming, written statement at
20-21) [hereinafter Moore 2012 Public Hearing Statement]
(“Some have suggested that consideration of mitigating
offender characteristics creates ‘racial and ethnic disparity.’
One cannot accept disparate impacts of aggravating factors
because they are considered relevant (especially when they
are often given excessive weight), but decry the supposed
disparate impacts of offender characteristics that are clearly
relevant, and that judges have used to mitigate excessively
harsh punishment in deserving cases.”).
237

U.S. Sent’g Comm’n Public Hearing on Federal
Sentencing Options After Booker, Washington, DC (Feb.
16, 2012) (Statement of David Axelrod, Associate Deputy
Attorney General, United States Department of Justice,
written statement at 12) (“We believe these two lines of
thought and doctrine – one that insists that the length of
federal imprisonment terms be based primarily on the
offense and criminal history, and one that suggests that
offender characteristics and rehabilitation should join those
factors as co-equal determinants – ought to be examined
more closely and reconciled to the extent possible in order
to create a more coherent, national system. We believe the
post-Booker sentencing regime, which gives sentencing
courts an unbounded menu of sentencing principles from
which to devise the ultimate sentence, will continue to lead,
if not reformed, to unwarranted disparities in sentencing
outcomes.”).

BOOKER REPORT 2012: PART A
be relevant to assessing the risk of recidivism,238 or
simply because section 3553(a) suggests such factors
are relevant while the Guidelines Manual categorizes
them as not ordinarily relevant.239
In 2010, the Commission amended certain
offender characteristics in Chapter Five, Part H to
remove age, mental and emotional condition, physical
condition, and military service from the list of
characteristics the Commission considered not
ordinarily relevant.240 Those offender characteristics

now “may be relevant in determining whether a
departure is warranted” “if the characteristic
individually or in combination with other offender
characteristics, is present to an unusual degree and
distinguish[] the case from the typical cases covered
by the guidelines.”241 However, departures based on
these offender characteristic provisions are still very
rare.242

238

The distinction between the consideration of
guideline policy during the second step, and the
consideration of the section 3553(a) factors during the
third step has led courts to consider to what extent
courts may disregard guideline policy in favor of their
own policy judgments. In Kimbrough v. United States,
the Supreme Court held that a sentencing judge may
consider the disparity that existed before the Fair
Sentencing Act of 2010 between the Guidelines’
treatment of crack and powder cocaine offenders, and
therefore may reject the guidelines’ policy of
sentencing crack cocaine offenders more harshly.243
According to the Court, in creating the drug trafficking
guidelines the Commission varied from what the Court
perceived as its usual practice of employing an
“empirical approach based on data about past
sentencing practices,” instead adopting the “weightdriven scheme” used in the Anti-Drug Abuse Act of
1986244 (“1986 Act”) and maintaining the 100-to-1
quantity ratio throughout the drug table.245
The Court rejected the government’s position
that the 1986 Act implicitly required both the

See, e.g., U.S. Sent’g Comm’n Public Regional Hearing
on the 25th Anniversary of the Passage of the Sentencing
Reform Act of 1984, Stanford, CA (May 27-28, 2009)
(Testimony of Christopher Hansen, Chief Probation Officer,
District of Nevada, transcript at 166).

239

U.S. Sent’g Comm’n Public Regional Hearing on the
25th Anniversary of the Passage of the Sentencing Reform
Act of 1984, New York, NY (July 9-10, 2009) (Testimony
of William Henry, Chief U.S. Probation Officer for the
District of Maryland, transcript at 173); U.S. Sent’g
Comm’n Public Regional Hearing on the 25th Anniversary
of the Passage of the Sentencing Reform Act of 1984,
Phoenix, AZ (Jan. 20-21, 2010) (Testimony of Mario
Moreno, Chief U.S. Probation Officer for the District of
Arizona, transcript at 112-113). See also U.S. Sent’g
Comm’n Public Regional Hearing on the 25th Anniversary
of the Passage of the Sentencing Reform Act of 1984,
Denver, CO (Oct. 20-21, 2009) (Statement of Honorable
Robert W. Pratt, Chief U.S. District Judge for the Southern
District of Iowa, written statement at 3-4).
240

Pursuant to the SRA’s directives to the Commission in
section 994, the guidelines had until recently listed age,
education and vocational skills, mental and emotional
condition, physical condition, employment record, and
several other offender characteristics as “not ordinarily
relevant” in determining whether a departure is warranted.
See USSG §§5H1.1, p.s. (Age), 5H1.2, p.s. (Education and
Vocational Skills), 5H1.3, p.s. (Mental and Emotional
Conditions), 5H1.4, p.s. (Physical Condition, Including
Drug and Alcohol Dependence or Abuse; Gambling
Addiction), 5H1.5, p.s. (Employment Record), and 5H1.11,
p.s. (Military, Civic, Charitable, or Public Service;
Employment-Related Contributions; Record of Prior Good
Works). Recently, the Commission amended these
provisions to state that age, mental and emotional
conditions, physical condition, and military service “may be
relevant in determining whether a departure is warranted,”
generally “if the characteristic, individually or in
combination with other such characteristics, is present to an
unusual degree and distinguishes the case from the typical
cases covered by the guidelines.” See USSG App. C,
amend. 739 (effective Nov. 1, 2010).

POLICY DISAGREEMENTS WITH THE GUIDELINES

241

See, e.g., USSG §5H1.1, p.s. (Age).

242

A comparison of Table 25 in the 2010 Sourcebook with
the same table in the 2011 Sourcebook shows a slight
increase: 2010 – age (cited 97 times), mental and emotional
condition (cited 97 times) and physical condition (cited 111
times); 2011 – age (cited 138 times), mental and emotional
condition (cited 153 times), and physical condition (cited
163 times). Given the limited data it would be difficult to
draw conclusions on the amendment’s effectiveness at
promoting uniform consideration of these characteristics.

243

552 U.S. at 91.

244

Pub. L. No. 99-570.

245

Kimbrough, 552 U.S. at 96-97.

BOOKER REPORT 2012: PART A
Commission and sentencing courts to apply the 100to-1 ratio: “The statute says nothing about the
appropriate sentences within [the maximum and
minimum sentences applicable to crack and powder
cocaine], and we decline to read any implicit directive
into that congressional silence.”246 The Court found
that “drawing meaning from silence [was] particularly
inappropriate” in this case, because Congress had
shown that “it knows how to direct sentencing
practices in express terms,” by, for example, requiring
in 28 U.S.C. § 994(h) that the Commission set the
guideline sentences for serious recidivist offenders “at
or near” the statutory maximum.247
In addition, the Court was unpersuaded by the
government’s argument that allowing district courts to
vary based on the crack/powder disparity would lead
to the very unwarranted disparities district courts are
instructed to avoid under 18 U.S.C. § 3553(a)(6):
“Under [§ 3553(a)(6)], district courts must take
account of sentencing practices in other courts and the
‘cliffs’ resulting from the statutory mandatory
minimum sentences” and “[t]o reach an appropriate
sentence, these disparities must be weighed against the
other § 3553(a) factors and any unwarranted disparity
created by the crack/powder ratio itself.”248
Finally, while underscoring the “important
institutional role” the Commission fills by “bas[ing] its
determinations on empirical data and national
experience, guided by a professional staff with
appropriate expertise,” the Court found that the crack
cocaine guidelines “do not exemplify” what the Court
considered to be the Commission’s “characteristic
institutional role.”249
The Court noted that the
Commission itself had reported that the crack cocaine
guidelines
produce
“disproportionately
harsh
sanctions.”250 The Court then concluded that “[g]iven
all this, it would not be an abuse of discretion for a
district court to conclude when sentencing a particular
defendant that the crack/powder disparity yields a

246

Id. at 103.

247

Id.

248

Id. at 108.

249

Id. at 109.

250

Id. at 109-110.

sentence ‘greater than necessary’ to achieve
§ 3553(a)’s purposes, even in a mine-run case.”251
In 2009, the Supreme Court reinforced this
holding in Spears v. United States, ruling that “district
courts are entitled to reject and vary categorically from
the crack cocaine Guidelines based on a policy
disagreement with those Guidelines.”252 The Court
made clear that the holding in Kimbrough allowing
categorical disagreements with the guidelines
“necessarily implies adoption of some other
[crack/powder] ratio to govern the mine-run case.”253
Accordingly, district courts “must also possess the
power to apply a different ratio which, in [the court’s]
judgment, corrects the disparity.”254
Kimbrough
engendered
significant
disagreement in the circuit courts about whether a
district court may categorically reject several other
sentencing guidelines, including the child pornography
guideline at USSG §2G2.2, the fast track departure
policy statement at USSG §5K3.1, and the career
offender guideline at USSG §4B1.1. The circuit
courts holding that courts could reasonably reject
guideline policy based this holding on two aspects of
the Kimbrough opinion: first, Kimbrough’s conclusion
that the crack cocaine guidelines were not based on an
“empirical approach;”255 and second, its indication that
251

Id. at 110.

252

555 U.S. 261, 265-66 (2009).

253

Id. at 265.

254

Id.

255

See, e.g., United States v. Rodriguez, 527 F.3d 221, 227
(1st Cir. 2008) (“Like the crack/powder ratio, the fast-track
departure scheme does not ‘exemplify the [Sentencing]
Commission’s exercise of its characteristic institutional
role.’ . . . In other words, the Commission has ‘not take[n]
account of empirical data and national experience’ in
formulating them.”); United States v. Dorvee, 616 F.3d 174,
184 (2d Cir. 2010) (“[T]he Commission did not use this
empirical approach in formulating the Guidelines for child
pornography. Instead, at the direction of Congress, the
Sentencing Commission has amended the Guidelines under
§2G2.2 several times since their introduction in 1987, each
time recommending harsher penalties.”). For a discussion
of the limited role of empirical evidence in promulgating
guidelines, see “Directives: Sentence Length,” above at 16,
and “Implementation of Directives: Sentence Length,”
above at 19-21.

BOOKER REPORT 2012: PART A
a district court’s categorical variance may be rooted in
a finding that the crack/powder disparity yields a
sentence “greater than necessary” to achieve
§ 3553(a)’s purposes, rather than based on any one
§ 3553(a) factor in isolation.256 By contrast, the circuit
courts holding that a categorical rejection was not a
reasonable exercise of a district court’s discretion
based their conclusion on other aspects of the
Kimbrough opinion: the Court’s determination that
Congress neither expressly nor implicitly required that
the Commission incorporate the 100-to-1 ratio into the
guidelines, and its corresponding reference to
congressional policy embodied in section 994(h), as
distinct from guideline or Commission policy.257
In a similar vein, several circuits have
considered whether the child pornography guidelines
deserve less weight at sentencing because Congress
directly amended them. In United States v. Dorvee,
the Second Circuit concluded that USSG §2G2.2 is
“fundamentally different” from most other guidelines
because it was not based on “an empirical approach
based on data about past practices” but promulgated
“at the direction of Congress[.]”258 The circuit court

went further by encouraging district courts “to take
seriously the broad discretion they possess in
fashioning sentences under §2G2.2 . . . bearing in
mind that they are dealing with an eccentric Guideline
of highly unusual provenance which, unless carefully
applied, can easily generate unreasonable results.”259
The Third and Ninth Circuits agreed, concluding that a
district court may give less weight to §2G2.2 because,
as the Third Circuit stated, it “was not developed
pursuant to the Commission’s institutional role and
based on empirical data and national experience, but
instead was developed largely pursuant to
congressional directives.”260
The First Circuit, while acknowledging the
district court’s authority to vary because of a policy
disagreement with the child pornography guidelines,
recognized that this discretion also includes the
authority to agree with the congressional policies
inherent in a certain guideline:
Even though a guideline is affected by
congressional
adjustment,
a
sentencing court may rely on it. We
see no reason why it would be
somehow invalid for a district court,
in its broad sentencing discretion, to
conclude that its reason for rejecting a

256

See, e.g., United States v. Michael, 576 F.3d 323, 327
(6th Cir. 2009) (“A district court may lawfully conclude []
that the policies underlying the career-offender provisions –
including their implicit incorporation of the 100:1 ratio –
yield a sentence ‘greater than necessary’ to serve the
objectives of sentencing.”) (internal quotations omitted).

257

See, e.g., United States v. Gomez-Herrera, 523 F.3d 554,
559, 562 (5th Cir. 2008) (“[] Kimbrough, which concerned a
district court’s ability to sentence in disagreement with
Guideline policy, does not control this case, which concerns
a district court’s ability to sentence in disagreement with
Congressional policy . . . . [B]ecause any disparity that
results from fast-track programs is intended by Congress, it
is not ‘unwarranted’ within the meaning of § 3553(a)(6).”);
United States v. Vazquez, 558 F.3d 1224, 1228 (11th Cir.
2009), cert. granted, judgment vacated, 130 S. Ct. 1135
(Jan. 19, 2010) (“[] Kimbrough does not gut our analysis in
Williams [that variances based on a disagreement with the
career offender guideline are improper]. To the contrary,
the Supreme Court expressly made a distinction between the
Guidelines’ disparate treatment of crack and powder cocaine
offenses -- where Congress did not direct the Sentencing
Commission to create this disparity -- and the Guideline’s
punishment of career offenders -- which was explicitly
directed by Congress.”).
258

616 F.3d 174, 184 (2d Cir. 2010).

259

Id. at 188.

260

United States v. Grober, 624 F.3d 592, 608 (3d Cir.
2010); United States v. Henderson, 649 F.3d 955, 960 (9th
Cir. 2011) (“[T]he history of the child pornography
Guidelines reveals that, like the crack-cocaine Guidelines at
issue in Kimbrough, the child pornography Guidelines were
not developed in a manner ‘exemplify[ing] the [Sentencing]
Commission’s exercise of its characteristic institutional
role,’ . . . so district judges must enjoy the same liberty to
depart from them based on reasonable policy disagreement
as they do from the crack-cocaine Guidelines discussed in
Kimbrough.”); see also United States v. Huffstatler, 571
F.3d 620, 623 (7th Cir. 2009) (a district court “perhaps” has
the freedom to sentence below the child pornography
guidelines, but it is “certainly not required to do so;
“perhaps for good reason, the government did not take issue
with Huffstatler’s premise that the child-exploitation
guidelines lack an empirical basis. As the Sentencing
Commission itself stated, ‘[m]uch like policymaking in the
area of drug trafficking, Congress has used a mix of
mandatory minimum penalty increases and directives to the
Commission to change sentencing policy for sex
offenses.’”).

BOOKER REPORT 2012: PART A
Kimbrough variance is that it values
congressional input. If these results
seem inconsistent, it is only because a
sentencing court’s discretion is so
broad. After Kimbrough, the law
allows one judge to find that
congressional input makes a sentence
less empirical, and so less appropriate,
while another judge may reasonably
find such input makes the sentence
more reflective of democratic
judgments of culpability, and so more
reasonable.261
The Sixth Circuit called the criticism of guidelines
based on congressional directives “misguided” and
explained that in our system of government, defining
crimes and fixing penalties are legislative functions.
While Congress has delegated limited authority to the
Commission, “it is normally a constitutional virtue,
rather than vice, that Congress exercises its power
directly, rather than hand it off to an unelected
commission.”262 The circuit court emphasized that it

261

United States v. Stone, 575 F.3d 83, 93 (1st Cir. 2009)
(“[A] district court is free to agree with the guidelines (or, at
least, some particular guideline). Part of this freedom must
be a freedom to agree with the guidelines because the
sentencing court believes that the guidelines express some
societal wisdom beyond what an entirely unrestricted
sentencing judge might possess. Thus, part of the sentencing
court’s broad discretion must be the discretion to conclude
that guidelines are convincing for various reasons, including
that they reflect popular will.”) (internal citations omitted).

262

United States v. Bistline, 665 F.3d 758, 762 (6th Cir.
2012) (“Congress can marginalize the Commission all it
wants: Congress created it.”); see also United States v.
Pugh, 515 F.3d 1179, 1201 n.15 (11th Cir. 2008) (“The
[child pornography] Guidelines involved in Pugh’s case . . .
do not exhibit the deficiencies the Supreme Court identified
in Kimbrough.”); but see United States v. Irey, 612 F.3d
1160, 1212 n.32 (11th Cir. 2010) (“In Pugh, we rejected the
notion that Kimbrough-style policy disagreement could
justify the district court's decision to impose a probationonly sentence in a child pornography case where the
minimum guidelines sentence was 97 months. . . . We do
not rule out the possibility that a sentencing court could ever
make a reasoned case for disagreeing with the policy
judgments behind the child pornography guidelines. We
hold simply that in this case (involving production of child
pornography), as in Pugh (involving possession of child

was not constraining district court discretion to
disagree with the child pornography guidelines on
policy grounds, but rather holding that “the fact of
Congress’ role in amending a guideline is not itself a
valid reason to disagree with the guideline.”263
Moreover, the Sixth Circuit found that the argument
that the Commission had departed from its usual role
in amending §2G2.2 “simply misse[d] the point”: “It is
true that the Commission did not act in its usual
institutional role with respect to the relevant
amendments to §2G2.2. But that is because Congress
was the relevant actor with respect to those
amendments; and that puts §2G2.2 on stronger ground
than the crack-cocaine guidelines were on in
Kimbrough.”264
The import of congressional directives to the
Commission took on a different significance in the
context of the EDP and career offender guidelines.
With respect to EDP departures, the existence of fast
track programs in some, but not all districts, generated
significant circuit conflict about whether a district
court may vary on the basis of this disparity. The
Fifth, Ninth, and Eleventh Circuits disapproved of
variances on this basis, explaining that “Kimbrough,
which concerned a district court’s ability to sentence
in disagreement with Guideline policy, does not
control this case, which concerns a district court’s
ability to sentence in disagreement with Congressional
policy.”265 Furthermore, “because any disparity that
pornography), the district court did not come close to doing
so.”).
263

Bistline, 665 F.3d at 762; see also United States v. Plate,
361 F. App’x 318, 332 (3d Cir. 2010) (holding that a
sentence is not substantively unreasonable solely on the
basis that §2G2.2 was based on statutory directives;
“Kimbrough did not hold it impermissible for a guideline to
be formulated based on statutory directives, but that when it
is so formulated, a court may choose to give it less
weight.”).

264

Bistline, 665 F.3d. at 763.

265

United States v. Gomez-Herrera, 523 F.3d 554, 563 (5th
Cir. 2008) (“Kimbrough addressed only a district court’s
discretion to vary from the Guidelines based on a
disagreement with Guideline, not Congressional, policy.”);
see also United States v. Vega-Castillo, 540 F.3d 1235,
1239 (11th Cir. 2008) (same); United States v. GonzalezZoleto, 556 F.3d 736, 741 (9th Cir. 2009) (“[T]he judge’s
downward departure reflected not a disagreement with the
Guidelines, but with congressional policy authorizing

BOOKER REPORT 2012: PART A
results from fast-track programs is intended by
Congress, it is not ‘unwarranted’ within the meaning
of § 3553(a)(6).”266 Other circuits adopted the
opposite view, concluding that the Commission did
not “take[] account of empirical data and national
experience in formulating” the fast track departure
scheme,267 and therefore, “guidelines and policy
statements embodying these judgments deserve less
deference than the sentencing guidelines normally
attract.”268 The Department of Justice has recently
changed its policy to require EDP programs in all
districts for illegal entry offenses. 269 However, criteria
for qualifying for the departure and the amount of the
reduction from the guideline minimum (within the 4level-reduction limit in USSG §5K3.1), remain within
the discretion of the United States Attorney for each
district.
Therefore, regional differences in the
programs may continue.
The division among the circuits with respect to
the career offender guideline continues unresolved. In
the immediate aftermath of Kimbrough, the Seventh
and Eleventh Circuits held that district courts lack the
discretion to vary on the basis of a policy disagreement
with the career offender guideline because, in the
words of the Seventh Circuit in United States v.
Welton, “[u]nlike the crack/powder disparity, the
career offender Guideline range is the product of a

Congressional mandate” and “the statutory origin of
the disparity embedded in §4B1.1 removes that
disparity from the sentencing discretion provided by
Kimbrough.”270 The Eleventh Circuit in United States
v. Vazquez pointed to the Supreme Court’s specific
citation to section 994(h) in Kimbrough: “[]
Kimbrough does not gut our analysis in Williams [that
variances based on a disagreement with the career
offender guideline are improper]. To the contrary, the
Supreme Court expressly made a distinction between
the Guidelines’ disparate treatment of crack and
powder cocaine offenses -- where Congress did not
direct the Sentencing Commission to create this
disparity -- and the Guideline’s punishment of career
offenders -- which was explicitly directed by
Congress.”271
The reasoning of these courts “seems to be
falling out of favor.” 272 The government confessed
error in both Welton and Vazquez – the government
asked the Seventh Circuit to overrule Welton, which it
did in United States v. Corner,273 and in Vazquez, the
Solicitor General argued that:
the reference to Section 994(h) was
not intended to suggest that Congress
had also bound sentencing courts to
follow the career offender Guidelines.
Such a conclusion would have to rest
on a faulty premise: that congressional
directives
to
the
Sentencing
Commission are equally binding on
the courts.274

downward departures for fast-track defendants. While
Kimbrough permits a district court to consider its policy
disagreements with the Guidelines, it does not authorize a
district judge to take into account his disagreements with
congressional policy.”).
266

Gomez-Herrera, 523 F.3d at 562.

267

United States v. Rodriguez, 527 F.3d 221, 227 (1st Cir.
2008) (internal quotations omitted); see also United States
v. Arrelucea-Zamudio, 581 F.3d 142, 155 (3d Cir. 2009)
(indicating that the Commission did not use an empirical
approach but “[r]ather, it quickly adopted the congressional
language.”).

268
269

Rodriguez, 527 F.3d at 227.

On January 31, 2012, the Deputy Attorney General
issued a memorandum in requiring all districts to create fast
track programs for felony illegal reentry offenses. See
Memorandum of James M. Cole, Deputy Attorney General,
Department Policy on Early Disposition or “Fast-Track”
Programs (Jan. 31, 2012) available at
http://www.justice.gov/dag/fast-track-program.pdf.

In addition, in a case before the Third Circuit,
the government “concede[d] that a sentencing court
may vary downward from the Guidelines range
270

583 F.3d 494, 496-97 (7th Cir. 2009), overruled by
United States v. Corner, 598 F.3d 411 (7th Cir. 2010).

271

United States v. Vazquez, 558 F.3d 1224, 1228 (11th
Cir. 2009), vacated, 130 S. Ct. 1135 (2010).

272

United States v. Merced, 603 F.2d 203, 218 (3d Cir.
2010).

273

United States v. Corner, 598 F.3d 411, 414 (7th Cir.
2010).

274

United States v. Vazquez, 796 F. Supp. 2d 1370, 1374
(M.D. Fl. 2011) (emphasis in original).

BOOKER REPORT 2012: PART A
generated by the career offender provision based
solely on a policy disagreement with the scope of that
provision.”275
This concession brought the
government’s position in line with the decisions of the
First, Sixth, Eighth, Ninth, and, following Corner,
Seventh Circuits.276
These circuits have held, in the words of the
Sixth Circuit, that a district court “may lawfully
conclude[] that the policies underlying the careeroffender provisions . . . yield a sentence ‘greater than
necessary’ to serve the objectives of sentencing.”277

The Seventh Circuit explained its changed position
from Welton to Corner as follows:
Further reflection has led us to
conclude that the Justices’ reference to
§ 944(h) in Kimbrough does not
equate §4B1.1 with either § 994(h) or
the statutory maximum sentence that
the career-offender guideline must be
“at or near.” The Court made two
related points in Kimbrough: first, the
crack/powder ratio in the Guidelines
was the choice of the Commission
rather than Congress; second, district
judges are entitled to disagree with the
Commission’s policy choices, as long
as judges follow all statutes. The
reference to § 994(h) in Kimbrough
concerned the first of these points
rather than the second; and it is the
second, reiterated in Spears, that
controls the career-offender issue.278

275

Merced, 603 F.2d at 218. Based on the government’s
concession, the Third Circuit assumed that it was
permissible to vary from §4B1.1 based on a policy
disagreement, but held that the district court had provided
inadequate explanation of the reasons for its variance in this
case. Id. at 219.

276

See United States v. Boardman, 528 F.3d 86 (1st Cir.
2008); United States v. Sanchez, 517 F.3d 651 (2d Cir.
2008); United States v. Michael, 576 F.3d 323 (6th Cir.
2009); United States v. Gray, 577 F.3d 947 (8th Cir. 2009);
United States v. Corner, 598 F.3d 411 (7th Cir. 2010).

277

United States v. Michael, 576 F.3d 323, 327 (6th Cir.
2009); see also United States v. Sanchez, 517 F.3d 651, 663
(2d Cir. 2008) (“Section 994(h), [] by its terms, is a
direction to the Sentencing Commission, not to the courts,
and it finds no express analog in Title 18 or Title 21. While
21 U.S.C. § 841(b) expressly establishes the minimum and
maximum prison terms that the court is allowed to impose
for violations of § 841(a), there is no statutory provision
instructing the court to sentence a career offender at or near
the statutory maximum.”); United States v. Boardman, 528
F.3d 86, 87 (1st Cir. 2008) (“we do not see why
disagreement with the Commission’s policy judgment []
would be any less permissible a reason to deviate than
disagreement with the guideline policy judgment at issue in
Kimbrough.”); United States v. Gray, 577 F.3d 947, 950
(8th Cir. 2009) (“On the more general question of a district
court’s authority to vary from the guidelines, the Supreme
Court in Kimbrough quoted the government’s concession
that a district court may vary based on policy
considerations, including disagreements with the guidelines,
[] and the district court [in the instant case] gave no
indication that it failed to understand its authority to vary
from the career-offender guideline on that basis.”); United
States v. Mitchell, 624 F.3d 1023, 1030 (9th Cir. 2010) (“As
the Supreme Court through Booker, Kimbrough, and Spears
has instructed, and as other circuits that have confronted the
crack/powder variance in the sentence of a career offender
have accepted and clarified in their circuit law, sentencing
judges can reject any Sentencing Guideline, provided that
the sentence imposed is reasonable.”) (emphasis in original).

The Seventh Circuit concluded: “Because §4B1.1 is
just a Guideline, judges are as free to disagree with it
as they are with §2D1.1(c) (which sets the
crack/powder ratio). No judge is required to sentence
at variance with a Guideline, but every judge is at
liberty to do so.”279
Although
not
specifically
addressing
congressional directives to the Commission, Pepper v.
United States also addressed the authority of district
courts to disregard those guideline policy statements
with which they disagree, and may affect future circuit
court decisions about sentencing courts’ authority to
reject other guideline policies.280 In addition, as a
matter of statutory interpretation, the Court declined
the invitation to give greater weight to the guidelines
and policy statements than to any other § 3553(a)
factor.281
278

Corner, 598 F.3d at 415 (“Sentencing judges must
implement all statutes, whether or not the judges agree with
them – but all § 994(h) requires is that the Sentencing
Commission set the presumptive sentencing range for
certain serial criminals at or near the statutory maximum.”).

279
280
281

Id. at 416 (emphasis in original).
131 S. Ct. 1229 (2011).
Id. at 1249.

BOOKER REPORT 2012: PART A
Specifically, the question in Pepper was
whether a district court may, on resentencing a
defendant after a successful appeal, look to evidence
of the defendant’s post-sentencing rehabilitation to
support a downward variance from the guideline
range.282 The Court found it “clear” that such
evidence “may, in appropriate cases, support a
downward variance from the advisory Guidelines
range.”283 The Court noted that 18 U.S.C. § 3661
made no distinction between an initial sentencing and
any subsequent resentencing on remand; instead, the
Court said a categorical ban on the consideration of
post-sentencing rehabilitation evidence would
contravene this provision.
Moreover, the Court
observed that post-sentencing rehabilitation evidence
“may also critically inform a sentencing judge’s
overarching duty under section 3553(a) to ‘impose a
sentence sufficient, but not greater than necessary’ to
comply with the sentencing purposes set forth in
section 3553(a)(2).”284 In short, the Court concluded
that a prohibition on the consideration of such postsentencing rehabilitation evidence “conflicts with
longstanding principles of federal sentencing law and
contravenes Congress’ directives in §§ 3661 and
3553(a).”285 Accordingly, the Court held “as with the
provisions in Booker, the proper remedy here is to
invalidate § 3742(g)(2),” a provision of the SRA that
limited resentencing to grounds expressly relied upon
in the prior sentencing.286
The Court also expressly disagreed with the
Commission’s reasoning as stated in the commentary
to §5K2.19,287 which provided that “[p]ost-sentencing
rehabilitative efforts, even if exceptional, undertaken
by a defendant after imposition of a term of
imprisonment for the instant offense are not an
appropriate basis for a downward departure when

282
283
284
285
286
287

Id. at 1235.
Id. at 1241.
Id. at 1242.
Id. at 1243.
Id. at 1245.

Id. at 1248. The Commission deleted §5K2.19 effective
November 1, 2012. USSG App. C, amend. 768 (Nov. 1,
2012).

resentencing the defendant for that offense.”288 In
rejecting the policy statement, the court noted that the
policy found no support in section 3661’s broad
requirement that “no limitation” be placed “on the
information concerning the background, character, and
conduct” of the offender before the court.
The Court “recognized that the Commission
post-Booker continues to ‘fil[l] an important
institutional role’ because ‘[i]t has the capacity courts
lack to base its determinations on empirical data and
national experience, guided by a professional staff
with appropriate expertise’” and the guidelines
themselves are due “respectful consideration” at
sentencing.289 Nevertheless, the Court emphasized
that “a district court may in appropriate cases impose a
non-Guidelines sentence based on a disagreement with
the Commission’s views” and stated, “[t]hat is
particularly true where, as here, the Commission’s
views rest on wholly unconvincing policy rationales
not reflected in the sentencing statutes Congress
enacted.”290 Finally, the Court declined the invitation
to elevate the guidelines’ policy statements (18 U.S.C.
§ 3553(a)(5)) and the need to avoid unwarranted
sentence disparities (18 U.S.C. § 3553(a)(6)) above all
other section 3553(a) factors.291
To the extent that courts may disagree with
guideline and congressional policy in favor of their
own policy views, individual judges, sentencing
practitioners, and academics are divided about whether
district court judges should be allowed to take policy
disagreements into account at sentencing. Some
believe sentences based on policy disagreements
should be reviewed with greater scrutiny on appeal,
while others believe such heightened scrutiny would
present constitutional problems by tending to make the
guidelines more mandatory. 292
288

USSG §5K2.19, p.s. (Nov. 2011).

289

Pepper, 131 S. Ct. at 1247.

290

Id. (citing Kimbrough, 552 U.S. at 109-110).

291

Id. at 1249.

292

Compare, e.g., U.S. Sent’g Comm’n Public Hearing on
Federal Sentencing Options After Booker, Washington, DC
(Feb. 16, 2012) (Testimony of the Honorable Gerard Lynch,
Circuit Judge, United States Court of Appeals for the
Second Circuit, transcript at 104-05) (“[T]he result that
judges are free, individually, to disagree with the policy of
the Guidelines is what strikes at the heart of the Guidelines

BOOKER REPORT 2012: PART A
In sum, disagreements in circuits and among
practitioners regarding when courts may disregard
Commission policy – and even congressional policy –
and the permissible grounds for doing so have not
been resolved. Further, the courts are divided on two
important questions: how much weight should be
given to guidelines resulting from congressional
directives to the Commission; and the appropriate
interaction between the proscriptions and limitations
on consideration of offender characteristics in section
994 of Title 28 and the courts’ consideration of
offender characteristics in section 3553(a).

POST-BOOKER APPELLATE REVIEW
Presumption of Reasonableness
In Rita v. United States,293 the Supreme Court
responded to a division among the circuits that had
arisen since Booker: the Fourth, Fifth, Sixth, Seventh,
Eighth, Tenth, and District of Columbia Circuits
adopted the rule that a sentence within the applicable
guideline range is “presumed reasonable” on appeal,294
system. . . . I think [policy disagreements are] the biggest
problem with the current system, and I would like to see
stronger appellate review in those cases. . . . I think it is a
good idea that policy disagreements, however defined,
should be subject to de novo review in the courts of appeals,
and ultimately in the Supreme Court, so that we do not have
a system where some judges think that child pornography is
not to be sentenced as severely, and others take a completely
different approach.”) and U.S. Sent’g Comm’n Public
Hearing on Federal Sentencing Options After Booker,
Washington, DC (Feb. 16, 2012) (Statement of Matthew
Miner, Attorney, written statement at 8) (“I also support the
Commission’s proposal for heightened appellate scrutiny for
sentencing decisions that are based upon policy
disagreements with the Guidelines.”), with U.S. Sent’g
Comm’n Public Hearing on Federal Sentencing Options
After Booker, Washington, DC (Feb. 16, 2012) (Testimony
of Henry Bemporad, Federal Public Defender, Western
District of Texas, transcript at 118) (“if judges are not free
to disagree with the Guidelines on the basis of policy. . . if
judges on the courts of appeals are substituting their
judgments on this factor, it is going to lead to
unconstitutional sentences.”).
293
294

551 U.S. 338 (2007).

United States v. Green, 436 F.3d 449, 457 (4th Cir.
2006); United States v. Alonzo, 435 F.3d 551, 554 (5th Cir.
2006); United States v. Williams, 436 F.3d 706, 708 (6th

but the First, Second, Third, Ninth, and Eleventh
Circuits held to the contrary.295 In adopting a
presumption of reasonableness, the Seventh and Tenth
circuits had emphasized the need for nationwide
uniformity.296
The First and Third Circuits had
declined to adopt a presumption of reasonableness due
to the concern that a presumption would tend in the
direction of making the guidelines mandatory.297 The
Ninth Circuit had rejected a presumption of
reasonableness because it found that a non-binding
presumption would have little practical effect.298
Ultimately, the Court affirmed Rita’s within range
sentence, and held that courts of appeals may, but need
not, apply a presumption of reasonableness when
reviewing within range sentences.299
In allowing the courts of appeals to adopt a
presumption of reasonableness, the Court emphasized
the close relationship between the guidelines and the
section 3553(a) factors.300 First, the Court discussed
Cir. 2006); United States v. Mykytiuk, 415 F.3d 606, 608
(7th Cir. 2005); United States v. Lincoln, 413 F.3d 716, 717
(8th Cir. 2005); United States v. Kristl, 437 F.3d 1050,
1053-54 (10th Cir. 2006); United States v. Dorcely, 454
F.3d 366, 376 (D.C. Cir. 2006).
295

United States v. Jimenez-Beltre, 440 F.3d 514, 518 (1st
Cir. 2006) (en banc); United States v. Fernandez, 443 F.3d
19, 27 (2d Cir. 2006); United States v. Cooper, 437 F.3d
324, 331-32 (3d Cir. 2006), abrogated on other grounds as
recognized in United States v. Wells, 279 F. App’x 100 (3d
Cir. 2008); United States v. Carty, 520 F.3d 984, 993-94
(9th Cir. 2008) (en banc); United States v. Hunt, 459 F.3d
1180, 1185 (11th Cir. 2006).

296

Mykytiuk, 415 F.3d at 607-608; Kristl, 437 F.3d at 1054.
For the various circuits’ reasoning on this issue, see Part B
of this report, available online.

297

Jimenez-Beltre, 440 F.3d at 518; Cooper, 437 F.3d at
331.

298

Carty, 520 F.3d at 993-94.

299

Rita, 551 U.S. at 347-48. In Nelson v. United States, the
Supreme Court reiterated that the presumption of
reasonableness is an appellate presumption only: “[T]he
sentencing court must first calculate the Guidelines range,
and then consider what sentence is appropriate for the
individual defendant in light of the statutory sentencing
factors, explaining any variance from the former with
reference to the latter.” 555 U.S. 350, 351 (2009).

300

Rita, 551 U.S. at 348.

BOOKER REPORT 2012: PART A
the statutory provisions governing the promulgation of
the guidelines and how those provisions mirror the
factors that § 3553(a) requires sentencing courts to
consider, noting that “the sentencing statutes envision
both the sentencing judge and the Commission as
carrying out the same basic § 3553(a) objectives, the
one, at retail, the other at wholesale.”301
According to the Court:
[T]he presumption reflects the nature
of the Guidelines-writing task that
Congress set for the Commission and
the manner in which the Commission
carried out that task. In instructing
both the sentencing judge and the
Commission what to do, Congress
referred to the basic sentencing
objectives that the statute sets forth in
18 U.S.C. § 3553(a) . . . . The
provision also tells the sentencing
judge to “impose a sentence sufficient,
but not greater than necessary, to
comply with” the basic aims of
sentencing as set out above.
Congressional statutes then tell the
Commission to write Guidelines that
will carry out these same section
3553(a) objectives.302
Second, the Court discussed the process the
Commission used to initially promulgate and
subsequently amend the guidelines, concluding that
the guidelines “seek to embody the § 3553(a)
considerations, both in principle and in practice,” and
that they “reflect a rough approximation of sentences
that might achieve § 3553(a)’s objectives.”303
Accordingly, the Court held that a rebuttable
presumption of reasonableness at the appellate level
“simply recognizes the real-world circumstance that
when the judge’s discretionary decision accords with
the Commission’s view of the appropriate application
of § 3553(a) in the mine run of cases, it is probable

that the sentence is reasonable.”304 Nonetheless, even
after Rita, in some circuits a sentence within a
properly determined guideline range is presumed
reasonable on appeal, while in others it is not.

Reasonableness Review
In Gall v. United States,305 the Supreme Court
made clear that reasonableness review is a two-step
process in which the courts of appeals first consider
procedural reasonableness by determining whether the
sentencing court correctly determined the guideline
range, properly considered the § 3553(a) factors, and
sufficiently explained the sentence imposed; and then
consider the substantive reasonableness of the
sentence.306 The first step is “to ensure that the district
court committed no significant procedural error, such
as failing to calculate (or improperly calculating) the
Guidelines range, treating the Guidelines as
mandatory, failing to consider the § 3553(a) factors,
selecting a sentence based on clearly erroneous facts,
or failing to adequately explain the chosen
sentence.”307 “Assuming that the district court’s
sentencing decision is procedurally sound, the
appellate court,” as a second step, should then consider
the substantive reasonableness of the sentence
imposed under an abuse-of-discretion standard,”308
taking into account “the totality of the
circumstances.”309 Moreover, the Court emphasized,
“[t]he fact that the appellate court might reasonably
have concluded that a different sentence was
appropriate is insufficient to justify reversal of the
district court.”310
The Supreme Court considered whether the
standard of review differs for sentences within the
304

Id. at 350-51.

305

552 U.S. 38 (2007).

306

Id. at 51. But see Rita, 551 U.S. at 370 (“I would hold
that reasonableness review cannot contain a substantive
component at all.” (Scalia, J., dissenting.)).

307

Gall, 552 U.S. at 51.

301

Id.

308

Id.

302

Id. (emphasis in original).

309

Id.

303

Id. at 350.

310

Id.

BOOKER REPORT 2012: PART A
guideline range and those outside the guideline range.
The Court held that an abuse of discretion standard
applies equally to all sentences “whether inside, just
outside, or significantly outside the Guidelines
range.”311
Where the sentence varies from the
guideline range, the appellate court “may consider the
extent of the deviation but must give due deference to
the district court’s decision that the § 3553(a) factors,
on a whole, justify the extent of the variance.”312
The Court also addressed whether the standard
of review is heightened depending on how far outside
the guideline range the sentence falls. The Court
stated that it is “clear that a district judge must give
serious consideration to the extent of any departure
from the Guidelines and must explain his conclusion
that an unusually lenient or an unusually harsh
sentence is appropriate in a particular case with
sufficient justifications.”313
However, the Court
rejected any “appellate rule that requires
‘extraordinary’ circumstances to justify a sentence
outside the Guidelines range” or “the use of a rigid
mathematical formula that uses the percentage of a
departure as the standard for determining the strength
of the justifications required for a specific
sentence.”314 Such rules or formulas, the Court noted,
“come too close to creating an impermissible
presumption of unreasonableness for sentences outside
the Guidelines range.”315 Moreover, such rules and
formulas would be “inconsistent with the rule that the
abuse-of-discretion standard of review applies to
appellate review of all sentencing decisions —
whether inside or outside the Guidelines range.”316
Nonetheless, if a court chooses a sentence
outside the guideline range, the court “must consider
the extent of the deviation and ensure that the
justification is sufficiently compelling to support the
degree of the variance”317 and must provide an
311

Id. at 41.

312

Id. at 51.

313

Id. at 46.

314

Id.

315

Id. at 47.

316

Id. at 49.

317

Id. at 50.

explanation sufficient “to allow for meaningful
appellate review and to promote the perception of fair
sentencing.”318 Furthermore when a judge varies in a
“mine-run case” based “solely on the judge’s view that
the Guidelines range ‘fails properly to reflect
§ 3553(a) considerations,’” closer review may be in
order.319

Reasonableness Review after Rita and Gall
The courts of appeals have uniformly
recognized that the appellate court’s role is to
determine whether the sentence is procedurally sound
and falls within the broader range of reasonable
sentences, not whether the sentence was the correct
sentence.320
However, review of the circuits’
sentencing cases reveals variations among the circuits’
stated approaches to this two-step review, as well as
differences between the circuits’ stated approaches and
their actual practices.
These differences range from the types of
reasonableness a court will consider on appeal, to the
factors sentencing courts are permitted to consider, to
the manner in which an appellate court will determine
whether a sentence is substantively unreasonable.
Some circuits focus more on procedural
reasonableness than substantive reasonableness. For
example, the Ninth Circuit has held that “appellate
courts have a sua sponte duty to undertake a review
for procedural error even where . . . no such error is
expressly asserted by the [parties].”321 At least one
318

Id.

319

Id. at 109-110 (citations omitted).

320

See, e.g., United States v. Treadwell, 593 F.3d 990, 1015
(9th Cir. 2010) (discussing the “broad range of sentences
that would be reasonable in the particular circumstances”);
United States v. Tomko, 562 F.3d 558, 568 (3d Cir. 2009)
(en banc) (“if the district court’s sentence is procedurally
sound, we will affirm it unless no reasonable sentencing
court would have imposed the same sentence on that
particular defendant for the reasons the district court
provided).” Additional caselaw on this topic can be found
in Part B of this report, available online.

321

United States v. Evans-Martinez, 611 F.3d 635, 638 (9th
Cir. 2010) (citing United States v. Ressam, 593 F.3d 1095,
1115 (9th Cir. 2010), opinion superseded by 679 F.3d 1069
(9th Cir. 2012) (en banc)).

BOOKER REPORT 2012: PART A
circuit does not read Gall to require such review
absent an argument by the parties.322 Similarly, at
least one circuit considers Gall’s instructions to
preclude a review for substantive reasonableness when
procedural errors are found,323 while another circuit
elects to rule on substantive reasonableness even
where procedural errors are established.324 Moreover,
there are cases in several circuits that blur the line
between procedural and substantive reasonableness; in
at least two circuits, grave procedural errors may
render a sentence substantively unreasonable.325

Procedural Reasonableness Review
The courts of appeals have not taken a
uniform approach to the depth of explanation
322

United States v. Friedman, 554 F.3d 1301 (10th Cir.
2009) (examining only the substantive reasonableness of the
sentence where the appellant did not challenge the
procedural reasonableness of the sentence).

necessary for a sentence to be deemed procedurally
sound. Many circuits clearly state that a sentencing
court need not explain why it is not imposing a certain
sentence proposed by either the government or the
defendant.326 However, some appellate courts have
faulted sentencing courts for failing to make such
explanations. For example, in United States v. Hall,
the District of Columbia Circuit reversed a within
range sentence where, among other things, “the district
court did not explain why, in view of the factors in 18
U.S.C. § 3553(a), a sentence of 188 months was
necessary, much less why the lower sentence that Hall
requested would be insufficient.”327
In contrast, in some circuits an adequate
explanation may render procedural error harmless. If
the court uses the wrong starting point, for example by
miscalculating the guidelines, the sentence will
withstand appeal in most cases as long as the court
recognizes the potential calculation error and
announces that it would impose the same sentence
under section 3553(a) regardless of the erroneous
computation.328 Even the Ninth Circuit, which appears

323

United States v. Cantrell, 433 F.3d 1269, 1280 (9th Cir.
2006) (“the new reasonableness standard of review
established in Booker comes into play only if there was no
material error in the district court’s calculation of the
appropriate Guidelines range”); c.f. United States v.
Vickers, 528 F.3d 1116, 1120 (8th Cir. 2008) (“Absent
reversible procedural error, we then review the
reasonableness of the court’s sentence for abuse of
discretion.”).

324

United States v. Dorvee, 616 F.3d 174, 182-83 (2d Cir.
2010) (“nothing in our existing sentencing law prevents us
from reaching both the procedural and substantive
reasonableness of the sentence in the course of an appeal
where we find both types of error. . . It is especially
appropriate to reach the matter of substantive
unreasonableness now because we have found and identify
here certain serious flaws . . . which are squarely presented
on this appeal and which must be dealt with by the district
court at resentencing.”) (internal quotations omitted).

325

United States v. Lychock, 578 F.3d 214, 218 (3d Cir.
2009) (district court’s analysis was so “procedurally flawed”
as to result in a substantively unreasonable sentence);
United States v. Olhovsky, 562 F.3d 530, 553 (3d Cir. 2009)
(same); United States v. Goff, 501 F.3d 250, 256-57 (3d Cir.
2007) (same); United States v. Friedman 554 F.3d 1301,
1312 (10th Cir. 2009) (“the very limited nature of the record
and the paucity of reasoning on the part of the district court
most certainly bear on our review of the substantive
reasonableness”).

326

See, e.g., United States v. Wallace, 597 F.3d 794, 804
(6th Cir. 2010) (“It is well-settled that a district judge need
not give the reasons for rejecting any and all arguments by
the parties for alternative sentences, nor must she give the
specific reason for a within guidelines sentence.”) (internal
quotation marks omitted); United States v. Vargas, 560 F.3d
45, 52 (1st Cir. 2009) (a sentencing court is not required “to
provide a lengthy and detailed statement of its reasons for
refusing to deviate” from the guideline range).

327

610 F.3d 727, 745 (D.C. Cir. 2010). See also United
States v. Akhigbe, 642 F.3d 1078, 1086 (D.C. Cir. 2011)
(“Reviewing the sentencing proceedings as a whole . . . we
conclude that the court plainly erred in failing to provide an
adequate explanation for the unsought above-Guidelines
sentence imposed”).
328

See, e.g., United States v. Barner, 572 F. 3d 1239, 1248
(11th Cir. 2009) (“Where a district judge clearly states that
he would impose the same sentence, even if he erred in
calculating the guidelines, then any error in the calculation
is harmless.”); United States v. Abbas, 560 F.3d 660 (7th
Cir. 2009) (same); United States v. O’Georgia, 569 F.3d
281, 296 (6th Cir. 2009) (“Where a Guidelines departure
provision has been erroneously applied, the resulting
sentence may still be procedurally reasonable if the district
court has adequately explained it by reference to the 18
U.S.C. § 3553(a) factors. In such a case, the sentence would
be unreasonable as a departure but reasonable as a variance
from the advisory Guidelines range.”); United States v.

BOOKER REPORT 2012: PART A
to have adopted a general rule of reversing sentences
imposed after an improper calculation of the guideline
range,329 has failed to adopt an explicit per se reversal
rule.330
Likewise, courts of appeals take different
approaches to the appropriate section 3553(a) factors
to be considered at sentencing. For example, in one
case the First Circuit rejected as unreasonable an
upward variance from a range of zero to six months to
a sentence of 48 months because the defendant had
been deported twice before and was subject to an
unexecuted bench warrant for a prior arrest.331 In
contrast, the Fifth Circuit has held that an upward
departure from a range of 24 to 30 months to a
sentence of 72 months was reasonable based upon the
sentencing court’s reliance on the defendant’s criminal
history and post-deportation re-entry arrests as

Henson, 550 F.3d 739, 742 (8th Cir. 2008) (guideline
calculation error is harmless if court recognizes specific
potential for error and expressly states same sentence would
be imposed in absence of error). But c.f. United States v.
Bah, 439 F.3d 423, 432 (8th Cir. 2006) (“[T]he district court
cannot preemptively announce an alternative sentence under
the § 3553(a) factors without first having determined the
correct advisory guidelines range”).
329

United States v. Pham, 545 F.3d 712, 716 (9th Cir.
2008) (“If upon review we conclude that the district court
committed a ‘significant procedural error,’ such as a
‘material error in the Guidelines calculation that serves as
the starting point for the district court's sentencing decision,
we will remand for resentencing pursuant to 18 U.S.C.
§ 3742(f).’ If no such material error in applying the
Guidelines is found, however, we may go on to evaluate the
sentence for its substantive reasonableness under an abuse
of discretion standard.”) (citations omitted).

evidence that the defendant had “no respect” for the
laws of the United States.332

Substantive Reasonableness Review
Although a direct assessment of how
uniformly courts conduct substantive reasonableness
review is difficult, a review of cases suggests appellate
courts have reached different outcomes for seemingly
similarly situated defendants. A review of child
pornography and fraud cases illustrates that courts of
appeals may reach different outcomes in similar cases,
based in part on which sentencing factors the circuit
court chooses to emphasize in that particular case.
In the area of child pornography the Ninth
Circuit in United States v. Autery333 found a sentence
of probation provided just punishment and adequate
deterrence based on the defendant’s personal
characteristics, while the Eleventh Circuit in United
States v. Pugh334 found that a sentence of probation did
not provide adequate general deterrence or protect the
public. In both cases, the defendants had no criminal
history and no known history of sexual misconduct. In
Autery the district court emphasized that the defendant
“did not ‘fit the profile of a pedophile,’”335 and had the
support of his family as well as “redeeming personal
characteristics,” including “no history of substance
abuse, no ‘interpersonal instability,’ no ‘sociopathic or
criminalistic attitudes.”336
In upholding the
probationary sentence as substantively reasonable, the
Ninth Circuit emphasized the district court’s
assessment that the defendant was not a pedophile and
that his “redeeming personal characteristics” were
sufficient to support the district court’s conclusion that
the defendant’s case was not a mine-run child
pornography possession case, and did not lead to
unwarranted sentencing disparities.337 In contrast, in
reversing
Pugh’s
probationary
sentence
as

330

United States v. Cantrell, 433 F.3d 1269, 1279 n.3 (“We
leave open the question whether, and under what
circumstances, district courts may find it unnecessary to
calculate the applicable Guidelines range.”).

332

United States v. Lopez-Velasquez, 526 F.3d 804, 807
(5th Cir. 2008);

333

555 F.3d 864 (9th Cir. 2009).

334

515 F.3d 1179 (11th Cir. 2008).

335

555 F.3d at 867.

336

Id. at 868.

337

Id. at 876.

331

United States v. Zapete-Garcia, 447 F.3d 57, 60 (1st Cir.
2006). See also United States v. Poynter, 495 F.3d 349, 354
(6th Cir. 2007) (holding that an above-guideline sentence
for a repeat child sex offender is substantively unreasonable
where the sentencing court relied on recidivism, which is “a
problem common to all repeat sex offenders” and the
guideline “was meant to account for the problem of
recidivism”).

BOOKER REPORT 2012: PART A
substantively unreasonable, the Eleventh Circuit
emphasized sentencing factors other than the
defendant’s personal characteristics, including general
deterrence, the seriousness of the offense, the need to
protect the public, and the need to avoid sentencing
disparity.338
Even within range sentences in child
pornography cases may be subject to different
outcomes on substantive reasonableness review. In
United States v. Dorvee, the Second Circuit held that a
within range sentence was substantively unreasonable,
and that “unless applied with great care, [application
of the child pornography guideline] can lead to
unreasonable sentences that are inconsistent with what
section 3553(a) requires.”339 In contrast, the Seventh
Circuit acknowledged the Dorvee court’s view of the
child pornography guidelines generally, but declined
to adopt it.340 In particular, the Seventh Circuit
concluded that “[w]hether one agrees or disagrees with
the concerns expressed by the Second Circuit, it is
ultimately for Congress and the Commission to
consider these concerns.”341
In fraud cases, different approaches to
substantive review have led to discord among judges
on the Ninth Circuit over the appropriateness of non338

515 F.3d at 1194-1203.

339

616 F.3d at 183-84.

340

United States v. Mantanes, 632 F.3d 372, 376-77 (7th
Cir. 2011).

341

Id. at 377. In a subsequent case, the Second Circuit
declined to find a sentence imposed under the illegal reentry
guideline unreasonable, and in so doing commented on its
holding in Dorvee: “the absence of empirical support is not
the relevant flaw we identified in Dorvee. We criticized the
child pornography Guideline in Dorvee because Congress
ignored the Commission and directly amended the
Guideline, which had the effect of ‘eviscerat[ing] the
fundamental statutory requirement in section 3553(a) that
district courts consider the nature and circumstances of the
offense and the history and characteristics of the defendant.’
There is no such flaw in the reentry Guideline. Congress did
not bypass the usual procedure for amending the Guidelines
with respect to illegal reentry cases. To the contrary, the 16level enhancement in §2L1.2 was based on the
Commission’s own determin[ation] that these increased
offense levels are appropriate to reflect the serious nature of
these offenses.” United States v. Perez-Frias, 636 F.3d 39,
43 (2d Cir. 2011) (citations omitted).

imprisonment sentences for white collar criminals. In
United States v. Whitehead, the defendant was
convicted of selling unauthorized “access cards”
which allowed purchasers to pirate copyrighted
material from DirecTV, resulting in more than a
million dollar loss to the company.342 In dissenting
from an opinion upholding a sentence of probation,
which was a reduction from a guideline range of 41 to
51 months, Judge Bybee argued that the district court’s
decision was “not an exercise of discretion so much as
an abdication of responsibility,”343 and expressed deep
concern over the impact of the majority’s decision on
sentencing practice in the Ninth Circuit:
Whitehead’s non-sentence surely
becomes an important starting point
for defendants in this circuit willing to
claim close family ties and postconviction remorse to avoid prison.
As a circuit, we have an obligation to
ensure roughly equal sentences both
among our judicial districts and within
each judicial district.
Deferring
equally to district court sentences is
not the same as securing equal
sentences in district court.344
In United States v. Prosperi,345 the First
Circuit affirmed a sentence of probation, a downward
variance from a range of 87 to 108 months, in a case in
which “[t]he government charged that over the course
of nine years [the defendants’ company] knowingly
provided concrete that failed to meet project
specifications and concealed that failure by creating
false documentation purporting to show that the
concrete provided complied with the relevant
342

532 F.3d 991, 992 (9th Cir. 2008).

343

Id. at 994 (Bybee, J., dissenting).

344

Id. at 999-1000 (Bybee, J., dissenting). See also United
States v. Edwards, 622 F.3d 1215, 1216 (9th Cir. 2010)
(Gould, J., dissenting) (“[O]ur court’s practice of
uncritically affirming unreasonably lenient sentences for
white-collar criminals renders the Sentencing Guidelines a
nullity, makes us an outlier among the circuit courts, and
impairs our ability to effectively review sentences for
substantive reasonableness.”).

345

686 F.3d 32 (1st Cir. 2012).

BOOKER REPORT 2012: PART A
specifications.”346 The concrete was used in Boston’s
Central Artery/Tunnel project (the “Big Dig”) over a
16-year period. The project “was one of the largest
public works projects in United States history at the
time of its completion.”347 While recognizing that any
loss calculation in the case would be imprecise given
legitimate questions about whether the government
sustained any loss at all,348 the court adopted the
government’s $5.2 million loss figure, but determined
that the loss amount should not drive the sentence:
[l]oss is certainly important, but the
crimes at issue do not fit the usual
white collar crime profile. There was
no intent on defendants’ part to enrich
themselves personally. Nor is there
any evidence that defendants intended
to do harm to the [Big Dig] project or
to the taxpaying public in any specific
sense.349
In upholding the sentence, the First Circuit noted,
among other things, that the district court had fulfilled
its duty to consider the purposes of sentencing,
including deterrence. The court of appeals found
“plausible” the district court’s explanation of the
sentence, including the lack of evidence that the
substandard concrete created a safety issue, the court’s
belief that the defendants were not seeking to enrich
themselves, and the individual circumstances of the
defendants.350
Other circuits have rejected sentences in fraud
cases as substantively unreasonable because the court
found the sentences too lenient.351 For example, in
United States v. Engle, the Fourth Circuit vacated a
sentence of probation, a downward variance from a
guideline range of 24 to 30 months. Engle had evaded
taxes for 16 years and had a total tax liability
346
347
348

Id. at 34.
Id.
Id. at 43.

349

Id. at 38.

350

Id. at 50.

351

See, e.g., United States v. Givens, 443 F.3d 642, 645
(8th Cir. 2006).

exceeding $2 million.352 While the Fourth Circuit
recognized that after Booker a district court could
disagree with the guidelines or its policy statements, it
explained that the district court had not even
acknowledged the policy statements and had given a
significantly lower sentence in a case that some could
believe warranted an above range sentence on the
basis of the defendant’s lengthy tax evasion and his
failure to pay anything toward his debt after receiving
a lenient sentence.353 More specifically, the Fourth
Circuit held that the district court’s near-total focus on
the defendant’s ability to repay his debt was
substantively unreasonable,354 noting that Booker and
Gall did not “permit[] district courts to rest a
sentencing
decision
exclusively
on
such
constitutionally suspect grounds.”355
In United States v. Martin, a case involving
securities and mail fraud in which the defendant’s
guideline range was 108 to 135 months, the Eleventh
Circuit found that a sentence of probation was
“shockingly short and wholly fail[ed] to serve the
purposes of sentencing as set forth by Congress in
§ 3553(a).”356 Similarly, in United States v. Cutler, a
case involving “various charges relating to extensive
bank frauds and tax frauds,” the Second Circuit
rejected two downward departures, one from a range
of 78 to 97 months down to a sentence of one year and
one day of imprisonment for one defendant, and the
other from a range of 108 to 135 months down to
probation for another defendant, based on their
extraordinary family circumstances, need to pay
restitution, health, age, and “public humiliation”
associated with the charges.357
352

592 F.3d 495 (4th Cir. 2010).

353

Id. at 502-03.

354

Id. at 504.

355

Id. at 505.

356

455 F.3d 1227, 1239 (11th Cir. 2006).

357

520 F.3d 136, 158-175 (2d Cir. 2008), questioned in
United States v. Cavera, 550 F.3d 180 (2d Cir. 2008) (while
not questioning the ultimate result in Cutler, the court noted
that it will “set aside a district court’s substantive
determination only in exceptional cases where the trial
court’s decision ‘cannot be located within the range of
permissible decisions.’”) (emphasis in original).

BOOKER REPORT 2012: PART A
In addition to the different outcomes resulting
from substantive reasonableness review, questions
have arisen regarding how to calculate the size of a
departure or a variance for purposes of appellate
review. In United States v. Castillo,358 the Seventh
Circuit upheld an above-range sentence of 60 months
from a guideline range of 37 to 46 months in a false
identification case under 18 U.S.C. § 1028. In so
doing the court clarified “an ambiguity concerning the
scope of appellate review of an above-guidelines
sentence.” After noting that circuit precedent requires
that “the farther the judge’s sentence departs from the
guidelines . . . the more compelling the justification
based on factors in section 3553(a) that the judge must
offer to enable the court of appeals to assess the
reasonableness of the sentence imposed,” the court
went on to identify an ambiguity in the word
“farther”.359
“It can be conceived of in either relative or
absolute terms,” according to the court, and a variance
that is 30 percent longer than the top of the guideline
range seems large, but “in absolute terms . . . it is a
smallish 14 months.”360 The court determined that
“the relative is generally more important than the
absolute, as is implicit in a number of our previous
decisions,” and gave greater weight to the percentage
deviation, than to the number of months it
represented.361 In Castillo’s case, the court found the
30 percent upward variance reasonable, because the
guidelines encourage an upward departure if the
offense involved substantially more than 100 false
documents, and Castillo’s offense involved 2,800
documents, “28 times the number of fraudulent
documents that triggers the highest guideline
sentence.”362
Other factors may limit the ability of the
appellate process to “iron out sentencing differences,”
as the Court anticipated in Booker.363 First, fewer than
ten percent of all offenders appeal some aspect of their
358

695 F.3d 672 (7th Cir. 2012).

359

Id. at 673 (citations omitted).

360

Id.

361

Id.

362

Id. at 675.

363

543 U.S. at 263.

sentence, and the proportion of cases that are appealed
has diminished over time.364 This may be due in part
to the prevalence of appeal waivers in plea
agreements.365
Second, of the appeals in the
Commission’s database,366 defendants initiate the vast
majority. In most of these cases the court of appeals
affirms the sentence. The number of appellate orders
and opinions arising from appeals initiated by the
government pales in comparison to the number of
appeals initiated by defendants, but the government
prevails in a higher percentage of its appeals. The
Commission’s analysis of court orders and opinions
issued in fiscal year 2011 showed that courts of
appeals ruled on nearly 6,000 constitutional issues,
reasonableness issues, and issues related to the section
3553(a) factors (as distinct from guideline
determination issues) raised by the defendant, and
approximately 30 such issues raised by the
government.367

364

See Figure, “Number of Defendants Sentenced and
Appeals Decided Fiscal Years 1993-2011,” Part B, available
online.

365

Many factors likely contribute to the overall rate of
appeal, including the prevalence of waivers of the right to
appeal in plea agreements. See Nancy J. King and Michael
E. O’Neill, Appeal Waivers and the Future of Sentencing
Policy, 53 DUKE L. J. 209, 219-225 (2005) (“Based on
interviews and an analysis of data coded from 971 randomly
selected cases sentenced under the United States Sentencing
Guidelines, the study’s findings include (1) in nearly twothirds of the cases settled by plea agreement, the defendants
waived their rights to review”).

366

The appeals database includes orders and opinions, both
published and unpublished, in direct appeals of federal
criminal cases in which the defendant has been convicted
and sentenced.

367

A more in-depth discussion of appeals data is in Part B,
available online.

BOOKER REPORT 2012: PART A

Analysis of Federal Sentencing Data

METHODOLOGY
The Commission analyzed sentencing data for
offenses in the aggregate and individually for five
offense types and one commonly applied guideline:
drug trafficking offenses368 under §§2D1.1 or 2D1.2
(all drugs combined, powder cocaine, crack cocaine,
heroin, marijuana, and methamphetamine); firearms
offenses369 under §2K2.1; immigration offenses370
368

Drug trafficking offenses include distribution,
possession with intent to distribute, or manufacture of
controlled substances, or conspiracy or attempt to do the
same, importation and exportations of controlled substances,
or conspiracy or attempt to do the same. These offenses are
sentenced under USSG §2D1.1 (Unlawful Manufacturing,
Importing, Exporting, or Trafficking (Including Possession
with Intent to Commit These Offenses); Attempt or
Conspiracy). Drug trafficking offenses also include
distribution of controlled substances to persons under 21
years of age, distribution, possession with intent to
distribute, or manufacture controlled substances in or near
protected locations, and employment or use of persons
under the age of 18 in drug operations, and distribution of
controlled substances to pregnant individuals. These
offenses are sentenced under USSG §2D1.2 (Drug Offenses
Occurring Near Protected Locations or Involving Underage
or Pregnant Individuals; Attempt or Conspiracy).

369

Firearms offenses include unlawful
possession/transportation of firearms or ammunition;
unlawful acquisition of a firearm from a licensed dealer,
receiving or possessing a stolen firearm or ammunition,
making false statements regarding firearms recordkeeping,
and possessing or receiving an unregistered firearm. These
offenses are sentenced under USSG §2K2.1 (Unlawful
Receipt, Possession or Transportation of Firearms or
Ammunition; Prohibited Transactions Involving Firearms or
Ammunition).

under §§2L1.1 or 2L1.2 (alien smuggling and illegal
entry); fraud offenses371 under §2F1.1 or §2B1.1; child
pornography offenses372 under §§2G2.1, 2G2.2, and

370

Immigration offenses include smuggling, transporting or
harboring an unlawful alien, and unlawfully entering or
remaining in the United States. These offenses are
sentenced under USSG §2L1.1 (Smuggling, Transporting,
or Harboring an Unlawful Alien) and USSG §2L1.2
(Unlawfully Entering or Remaining in the United States).
The Commission has previously reported that beginning in
fiscal year 2009 immigration cases became the most
common serious federal crime. See U.S. SENT’G COMM’N,
OVERVIEW OF FEDERAL CRIMINAL CASES FISCAL YEAR
2009, at 1-2 (December 2010) (noting immigration cases
comprised 32.2 percent of the federal caseload while drugs
comprised 30.3 percent). However, that analysis was based
on the defendant’s statute of conviction, not on the guideline
applied at sentencing.
371

Fraud offenses include theft, embezzlement, fraud,
forgery, some counterfeiting offenses, some insider trading
offenses, simple property damage and destruction, and a
wide variety of federal statutes and assimilative crimes
sentenced under USSG §2B1.1 (Larceny, Embezzlement,
and Other Forms of Theft; Offenses Involving Stolen
Property; Property Damage or Destruction; Fraud and
Deceit; Forgery; Offenses Involving Altered or Counterfeit
Instruments Other than Counterfeit Bearer Obligations of
the United States) with a primary offense type of fraud
sentenced under a Guidelines Manual effective November
1, 2001 or later, or the former USSG §2F1.1 (Fraud and
Deceit; Forgery; Offenses Involving Altered or Counterfeit
Instruments Other than Counterfeit Bearer Obligations of
the United States) (deleted by consolidation with §2B1.1
effective November 1, 2001 (see USSG App. C, amend.
617)).

BOOKER REPORT 2012: PART A
2G2.4 (production and non-production); and the career
offender guideline, §4B1.1.
These analyses are
discussed in detail in Part C of this report, available
online.
The data in this report necessarily differs in
certain respects from the data published annually in
the Commission’s Sourcebook of Federal Sentencing
Statistics. In the Sourcebook, offenses are generally
classified by the offense of conviction, whereas in this
analysis, offenses are classified by the guideline
applied at sentencing. These two methods of defining
cases are both useful for research analysis; the choice
of which method to use depends on the type of
analysis to be undertaken. For this report, the
Commission classified offenses by the guideline
applied at sentencing because it enables several
analyses. The guidelines take into account real offense
conduct, such as the presence of a weapon, or the
amount stolen in a robbery, that are not accounted for
by mere reference to the statute of conviction.373 If,
for example, an offender convicted of a drug
trafficking offense engaged in conduct in which a
victim was killed, that offender might be sentenced
pursuant to the guideline applicable to homicide rather
than drug trafficking.374 Such an offender’s sentence
would not reflect the operation of the drug trafficking
guideline, and therefore, including that sentence in the
analysis of drug trafficking sentences would not
contribute to an accurate analysis of the drug
trafficking guideline.
In summary, because the
372

Child pornography offenses include the production, sale,
distribution, transportation, shipment, receipt, or possession
of materials involving the sexual exploitation of minors
sentenced under USSG §2G2.1 (Sexually Exploiting a
Minor by Production of Sexually Explicit Visual or Printed
Material; Custodian Permitting Minor to Engage in Sexually
Explicit Conduct; Advertisement for Minors to Engage in
Production), USSG §2G2.2 (Trafficking in Material
Involving the Sexual Exploitation of a Minor; Receiving,
Transporting, Shipping, Soliciting, or Advertising Material
Involving the Sexual Exploitation of a Minor; Possessing
Material Involving the Sexual Exploitation of a Minor with
Intent to Traffic; Possessing Material Involving the Sexual
Exploitation of a Minor), or USSG §2G2.4 (Possession of
Materials Depicting a Minor Engaged in Sexually Explicit
Conduct) (deleted by consolidation with §2G2.2 effective
November 1, 2004 (see USSG App. C, amend. 664)).

373

See USSG Ch.1, Pt.A, intro. comment. (Nov. 2012).

374

USSG §2D1.1(d) (cross references) (Nov. 2012).

offender’s conduct ultimately determines the
applicable sentencing range, classifying offenders by
guideline rather than by statute of conviction facilitates
a more precise analysis in which offenders engaged in
similar criminal conduct are grouped together.
Complete guideline information is required for
most of the analyses in this report, and therefore cases
with missing data were excluded from the analyses.
As a result, statistics in this report differ from those
reported in the Sourcebook. For example, in fiscal
year 2011, the Commission received sentencing
information on 86,201 cases.375
However, the
Commission received sufficient documentation for the
analyses in this report in 76,216 individual cases for
fiscal year 2011, the last full fiscal year available. The
Commission excluded 9,985 cases because those cases
lacked the complete documentation needed for the
analyses performed in this report. In 8,164 of those
cases, the majority of which were illegal entry offenses
from border districts, the court waived the presentence
investigation report. As a result, those cases lacked
certain guideline application and demographic
information. The Commission excluded other cases in
which the statement of reasons form and the
presentence investigation report contained conflicting
information concerning guideline application, and
therefore, the Commission could not ascertain how the
Chapter Two guideline was applied.
In the additional parts of this report available
online, each guideline-specific section begins with a
brief discussion about the guideline and the statutes
referenced to it, followed by detailed fiscal year 2011
data regarding the caseload and its distribution across
the circuits and districts. The single year data is
followed by analyses of trends over time with respect
to demographic characteristics and criminal history of
the offenders, the types of sentence imposed, the
sentence relative to the range (e.g., sentence length for
within range, government sponsored below range, and
non-government sponsored below range sentences),
the rates of within and below range sentences, and the
375

Title 28, United States Code, section 994(w) requires
that the chief judge of every district ensure that within 30
days of entry of judgment in every felony and Class A
misdemeanor case, the sentencing court submit to the
Commission: (1) the judgment and commitment order; (2)
the statement of reasons for the sentence imposed; (3) the
plea agreement, if any; (4) the indictment or other charging
information; and (5) the presentence report (unless waived
by the court).

BOOKER REPORT 2012: PART A
variation among the districts in the rates of below
range sentences.
In most instances, four periods are examined:
the Koon period376 (June 13, 1996 through April 30,
2003), the PROTECT Act period377 (May 1, 2003
through June 24, 2004), the Booker period378 (January
12, 2005 through December 10, 2007), and the Gall
period379 (December 11, 2007 through September 30,
2011). The Commission selected these periods based
on Supreme Court decisions and legislation that
influenced federal sentencing in fundamental ways.
Specifically, in United States v. Koon,380 the Supreme
Court defined the level of deference due district
courts’ decisions to sentence outside the guideline
range and determined that such decisions should be
reviewed for abuse of discretion. In passing the
PROTECT Act381 nearly seven years later, Congress
restricted district courts’ discretion to impose
sentences outside the guideline range, and required
that courts of appeals review such decisions without
deference to the decision of the district court. In
376

The Koon period includes 333,564 offenders sentenced
from June 13, 1996 through and including April 30, 2003
for which the Commission has received complete
information.
377

The PROTECT Act period includes 67,554 offenders
sentenced from May 1, 2003 through and including June 24,
2004 for which the Commission has received complete
information. Offenders sentenced after Blakely but before
Booker are not included in this period. In Blakely v.
Washington, decided on June 24, 2004, the Supreme Court
invalidated a sentence imposed under Washington’s
sentencing guidelines system. See Blakely v. Washington,
542 U.S. 296 (2004). Following the Blakely decision,
district and circuit courts voiced varying opinions on the
implications of the decision for federal sentencing and no
longer uniformly applied the sentencing guidelines.
378

The Booker period includes 187,632 offenders sentenced
from January 12, 2005 through and including December 10,
2007 for which the Commission has received complete
information.

United States v. Booker,382 the Supreme Court struck
the statutory provisions that made the guidelines
mandatory, and in United States v. Gall,383 the court
reiterated that the guidelines were no longer
mandatory and further defined the appellate standard
of review.
A direct comparison across all four periods
cannot always be made. Shortly before the enactment
of the PROTECT Act in April 2003 the Commission
changed the way it reports data on departures. Before
the PROTECT Act, the Commission reported only two
categories of below range sentences: “substantial
assistance” and “other downward departures.”384 In its
2003 report on departures under the sentencing
guidelines, the Commission found that approximately
40 percent of the “other downward departures”
attributed to courts in fiscal year 2001 actually cited
some benefit to the government as the reason for the
departure in the sentencing documents.385 Such
benefits included “waiver of indictment” and “early
plea,” among others.386 The practice known as “fast
track” had been used informally in some districts
along the southwest border prior to the PROTECT Act
but had been reported as an “other downward
departure.” Prior to the PROTECT Act, the existence
of only two departure categories resulted in an
overstatement of the proportion of downward
departures attributable solely to the courts and an
understatement of the proportion of downward
departures attributable to government sponsorship.
The Commission subsequently refined its
collection of below range sentence data to properly
attribute the below range sentence either to the court or
to the government. In addition, in the PROTECT Act,
Congress authorized Early Disposition Programs
(EDP) which authorize below range sentences for
offenders in high-volume districts who agree to plead
guilty and meet other criteria as determined by the
United States Attorney. Such sentences now are
reported as government sponsored below range
382

543 U.S. 220 (2005).

The Gall period includes 274,623 offenders sentenced
from December 11, 2007 through and including September
30, 2011 for which the Commission has received complete
information.

383

552 U.S. 38 (2007).

384

See, e.g., U.S. SENT’G COMM’N, 2001 SOURCEBOOK, at

380

518 U.S. 81 (1996).

385

U.S. SENT’G COMM’N, DEPARTURES REPORT at 59.

381

Pub. L. No. 108-21 (Apr. 30, 2003).

386

Id. at 59 n.130.

379

51.

BOOKER REPORT 2012: PART A

sentences pursuant to USSG §5K3.1 (Early
Disposition
Programs
(Policy
Statement)).
Consequently, the Koon period data is not as refined as
the data from subsequent periods and as a result, in
some instances, cannot be compared to data from the
other periods.
Box plots
Offense specific data is presented, for the most
part, in ways familiar to most readers. For example,
information regarding the demographic characteristics
of offenders, the sentence length, and sentence relative
to the range is presented in table format. Information
such as the rates of below range sentences is presented
in bar graphs. However, information on the rates of
government sponsored and non-government sponsored
below range sentences, and the variation across
districts in these rates, is presented in alternative ways,
including using a box plot like the example plot above.
A full explanation of how to read the box plot
is provided in Part C of this report, available online.
Each box plot depicts the spread in rates among the
districts that engaged in the sentencing practice. The
rate for each district is the percentage of all sentences
imposed in a given district that are below range
sentences (either government sponsored or nongovernment sponsored below range sentences). The

spread is the variation in those rates among the
districts that engaged in the sentencing practice. All
districts in which the practice occurred (for example,
all districts in which a non-government sponsored
below range sentence was imposed for a fraud offense)
are plotted along the vertical axis. If a district did not
have any cases exhibiting the particular sentencing
practice, then that district is not depicted on the box
plot.
The main value of the box plot is its depiction
of the size and position of the box over time. These
plots answer the question: excluding those districts
that did not impose any such sentence (i.e., nongovernment sponsored below range sentences) and
focusing only on those districts that did, what is the
spread in rates over time? The top and bottom of the
whiskers (vertical lines) show the highest (top) and
lowest (bottom) rates of non-government sponsored
below range rates. The boxes depict the rates and
variation within the middle 50 percent of districts that
imposed such sentences. Changes in the height of the
box’s position along the vertical axis over the four
periods depict at a glance whether the rates are
increasing or decreasing among the middle 50 percent
of districts that engaged in the practice, and the size of
the box depicts the spread in rates among those
districts that engaged in the practice. A higher box
signifies that the sentencing practice occurred more

BOOKER REPORT 2012: PART A

often among the middle 50 percent of districts that
engaged in the practice, a lower box signifies that the
sentencing practice occurred less often. A smaller box
means there is less spread (greater uniformity) among
the middle 50 percent of districts that engaged in the
practice, and a larger box means there is a greater
spread (less uniformity). The districts depicted on the
box plot, as well as which districts make up the
particular portions of the box plot, may change across
time periods.
The “whiskers,” the vertical lines above and
below the box, represent those districts that engaged in
the sentencing practice more or less often than those
districts depicted within the box. The district that had
the highest rate marks the endpoint of the top whisker,
and the district that had the lowest rate (but still
engaged in the practice at least once) marks the
endpoint of the bottom whisker. The “Max” and
“Min” values listed in the table below the figure report
the numerical rates for those districts at the top and
bottom endpoints of the whisker. The districts in the
whiskers are not necessarily evenly distributed along
the axis and may cluster at any point along the axis.
An appendix to this report, available online, lists all 94
districts for each offense type and for each type of
sentence, in order of their rates, highest to lowest.

Bubble plots
In addition to offense-specific data analyses,
the Commission analyzed intra-district sentencing
data. This analysis is presented in Part D of this report
in the form of bubble plots for each of the 12 circuits
and 94 districts. The methodology behind the plots is
explained fully in Part D, available online. The bubble
plots depict the rates of non-government sponsored
below range sentences for each judge within a district.
The bubble plot contains one circle (or “bubble”) for
each judge who sentenced a felony or Class A
misdemeanor offender during the relevant period. The
position of the bubbles along the vertical axis indicates
the judge’s rate of imposing non-government
sponsored below range sentences. The spread in the
distribution of all the bubbles on the plot illustrates the
spread in rates of non-government sponsored below
range sentences.
The bubble for each judge is sized according
to the judge’s overall caseload relative to the overall
caseload of other judges within the district. The
smallest overall caseloads may be represented by a
dot, while the largest overall caseloads will have the
largest bubbles. Often judges with the highest and
lowest rates of non-government sponsored below
range sentences had small overall caseloads relative to
the other sentencing judges in the district.

BOOKER REPORT 2012: PART A

Scatter plots

Sentencing Appeals

Following each bubble plot is a “scatter plot”
depicting, for each judge in the district, the average
extent of the reduction below the guideline minimum
for that judge’s non-government sponsored below
range sentences. Each triangle represents a judge who
sentenced at least one offender in that district for a
Class A misdemeanor or felony offense. The triangles
in the scatter plot are of uniform size; unlike the
bubble plots, they are not sized according to the
judge’s caseload. These scatter plots answer the
question: when a judge imposes a non-government
sponsored below range sentence, how far below the
guideline minimum is the sentence on average? The
answer is expressed in terms of the percentage
reduction below the guideline minimum: the triangle
is placed along the vertical axis according to the
average extent of reduction for that judge. It should be
noted that some of the non-government sponsored
below range sentences in the bubble plot were
excluded from the corresponding scatter plot either
because of missing sentence information, or because
the offender’s guideline minimum was either life or
zero.387

This report also presents data on sentencing
appeals, which the Commission has systematically
collected from all 12 circuit courts since 1992. Each
fiscal year, the Commission collects from all 12 circuit
courts of appeals final dispositive decisions of direct
criminal appeals in which the defendant has been
convicted and sentenced.388 Where possible, the
appellate case is linked to the original sentencing
datafile on that offender in the Commission’s
monitoring database so that the Commission can
identify data about the defendant that may not be part
of the appellate decision.
Historically, the Commission used the data
collected from appellate opinions to track the
frequency with which guideline interpretation issues
were appealed.
After Booker, the Commission
expanded its data collection to capture additional
information on non-guidelines issues in sentencing
appeals, such as arguments about whether the court
properly considered offender characteristics under
18 U.S.C. § 3553(a), or whether the sentence was
substantively and procedurally reasonable.

387

Alternatively, a court may report that the defendant
received a below range sentence but not provide the actual
sentence imposed. In such a case, the extent of the
departure below the range cannot be calculated.

388

The Commission’s methodology for collecting and
coding appeals cases is described in detail in Part C of this
report, available online.

BOOKER REPORT 2012: PART A
Multivariate Regression Analysis
The final data analysis presented is a
multivariate regression analysis addressing whether
differences in sentencing outcomes are correlated with
offenders’ demographic characteristics.
The
Commission most recently published this analysis in
its 2010 report titled Demographic Differences in
Federal Sentencing Practices: An Update of the
Booker Report’s Multivariate Regression Analysis.389
The Commission later updated its analysis with data
through fiscal year 2010 for the testimony of
Commission Chair Patti Saris before the
Subcommittee on Crime, Terrorism, and Homeland
Security of the Committee on the Judiciary, House of
Representatives, in October 2011.390 For this report,
the Commission has included data through fiscal year
2011.
Multivariate regression analysis usually begins
with a decision to examine an observed phenomenon
or outcome.
For this analysis, the observed
phenomenon was the difference in sentence length
between offenders, specifically the fact that, among
other differences, Black male offenders receive longer
sentences than White male offenders.
In this
multivariate analysis, the Commission identified a
number of factors that affect sentence length, such as
the type of offense, the applicable guideline minimum,
and whether the defendant remained subject to a
mandatory minimum penalty at sentencing. Once the
relevant factors were identified, the multivariate
analysis controlled for those factors, meaning that
offenders who were alike in relevant ways were
compared to each other. This type of analysis seeks to
answer the question: if two offenders are similar in
certain ways, what other factors might be associated
with those two offenders receiving different
sentences?
Multivariate regression analysis often does not
control for all relevant factors because sufficient data
is not always readily available.
Judges make
sentencing decisions based on many legally relevant
considerations that are not accounted for in the
Commission’s analysis. Judges may consider other
389

U.S. SENT’G COMM’N, MULTIVARIATE REPORT, supra
note 10.
390

2011 Chair Statement to Subcomm. on Crime,
Terrorism, & Homeland Security, supra note 36.

potentially relevant factors available to them at
sentencing. For example, the presentence report may
describe whether the offender’s history included
violent criminal conduct or a long employment
history; however, the Commission does not routinely
extract that information from the sentencing
documents it receives. Such factors, therefore, are not
included in the Commission’s datafile, and therefore
are not controlled for in this analysis. In addition,
some commentators have stated that disparities in
prosecutorial
decisionmaking
contribute
to
demographic differences in sentencing.391
The
presumptive sentence as used in this analysis controls
in a limited way for some prosecutorial decisions (for
example the charging of mandatory minimum statutes
or the government’s motion for a below range
sentence). However, data to determine whether other
aspects of prosecutorial decision making (for example,
the decision not to prosecute an offense federally at
all) contribute to demographic differences is not
readily available and therefore the complete impact of
prosecutorial decision making could not be controlled
for in the multivariate analysis. For these reasons, the
Commission’s analysis should be interpreted with
caution and is not intended to suggest any racial or
gender bias on the part of judges in making sentencing
decisions.
The Commission performed additional
multivariate regression analyses to determine whether
demographic differences in sentence length were
present in any of three specific offense types for which
391

For further discussion of demographic differences in
prosecutorial decision making, see VERA Institute of
Justice, Do Race and Ethnicity Matter in Prosecution?: A
Review of Empirical Studies (June 2012), available at
http://www.vera.org/download?file=3532/race-andethnicity-in-prosecution-first-edition.pdf (reviewing 34
studies analyzing the role of race and ethnicity in
prosecutorial decision making). At least one researcher has
attempted to measure through a multivariate analysis the
contribution, if any, of prosecutorial decision-making to
sentencing outcomes. See Sonja B. Starr, Estimating
Gender Disparities in Federal Criminal Cases (U. Mich. L.
& Econ. Research Paper Series, Paper No. 12-018, 2012),
available at http://ssrn.com/abstract=2144002; M. Marit
Rehavi & Sonja Starr, Racial Disparity in Federal Criminal
Charging and Its Sentencing Consequences (U. Mich. L. &
Econ. Working Paper Series, Paper No. 12-002, 2012),
available at http://ssrn.com/abstract=1985377.

BOOKER REPORT 2012: PART A
there was a sufficiently diverse population to conduct
the analysis: drug trafficking, firearms, and fraud.
Other analyses in the report examined whether there
were differences in sentence length depending on the
position of the sentence relative to the range (i.e.,
within range, government sponsored below range, or
non-government sponsored below range), and whether
there were demographic differences in the likelihood
of receiving a non-government sponsored below range
sentences. The final multivariate analysis determined
whether sentence length changed for certain
demographic groups over the four periods, and if so,
whether sentences for these groups were longer or
shorter compared to past periods.

ANALYSIS AND FINDINGS
A review of the table below indicates that
beginning in the PROTECT Act period and continuing
through the Gall period, the proportion of sentences
within the guideline range generally has decreased,
while the rates of both government sponsored and nongovernment sponsored below range sentences
generally have increased. The extent of the reductions
below the guideline minimum, however, has remained
relatively stable. The table also shows that average
sentences have decreased somewhat in the Gall period
compared to the Booker period, which reflects a
similar reduction in the average guideline minimum.
These data points and others are discussed at length in
the analysis that follows.

BOOKER REPORT 2012: PART A

The number of federal offenders has
substantially increased, and most federal
offenders have continued to receive substantial
sentences of imprisonment.
The number of federal offenders and the
percentage sentenced to imprisonment without any
alternative to incarceration, such as home detention or
community confinement, has increased over the
periods studied in this report. In fiscal year 1996,
there were 37,091 federal offenders, compared to
76,216 in fiscal year 2011. In fiscal year 2011, 87.8
percent of federal offenders were sentenced to serve a
term of imprisonment without any alternative to
incarceration, an increase from 76.9 percent in fiscal
year 1996.392 As a result of these trends, the number
of inmates housed by the federal Bureau of Prisons has
more than doubled, from just below 100,000 in 1996,
to more than 200,000 in 2011.393
For offenses in the aggregate, the average
sentence was 49 months in the Koon period, 53
months in the PROTECT Act period, 54 months in the
Booker period, and 49 months in the Gall period.
Average sentences have increased or decreased over
time depending on the offense type.
Immigration and drug trafficking offenses
have comprised the majority of all federal offenses
over the four periods. Immigration offenses have
grown substantially as a percentage of the federal case
load. Average sentences for illegal entry offenses
were 32 months in the Koon period, 29 months in the
PROTECT Act period, 26 months in the Booker
period, and 20 months in the Gall period. Average
sentences have decreased in part because of
amendments to the guidelines, and in part because of
increasing rates of departures for offenders sentenced
through an Early Disposition Program (EDP). EDP
departure rates were 7.1 percent in the PROTECT Act
392

The increase in incarceration rates over time was
attributable in part to increasing numbers of immigration
offenders, most of whom were not eligible to receive
alternatives to incarceration because of their undocumented
status.

393

U.S. SENT’G COMM’N, 2011 MANDATORY MINIMUM
REPORT at 76, supra note 17; U.S. Sent’g Comm’n Public
Hearing on Federal Sentencing Options after Booker,
Washington, DC (Feb. 16, 2012) (Testimony of Charles E.
Samuels, Director, Federal Bureau of Prisons, transcript at
30-32, written statement at 2).

period, 26.2 percent in the Booker period, and 26.8
percent in the Gall period.
In drug trafficking offenses average sentences
peaked during the Booker period (83 months) and
decreased to 75 months during the Gall period, three
months longer than average sentences during the Koon
period (72 months). Average sentences for firearm
offenses have been the most consistent of any offense
type, increasing by one month during each period,
from 56 months in the Koon period, to 57 months in
the PROTECT Act period, to 58 months in the Booker
period, and to 59 months in the Gall period.
For two offense types, average sentences have
increased markedly over time. In child pornography
non-production offenses (including receipt, trafficking,
and possession offenses) average sentences have
increased significantly over the periods due to
statutory changes, congressional directives to the
Commission to increase guideline penalties, and
Commission-initiated
amendments.
Average
sentences for child pornography non-production
offenses were 34 months in the Koon period, 47
months in the PROTECT Act period, 82 months in the
Booker period, and 93 months in the Gall period.
Average sentences for fraud offenders have also
increased, partly due to increases in offense
seriousness (e.g., loss amounts) over time and partly
due to guideline amendments increasing penalties.
Average sentences for fraud offenses were 13 months
in the Koon period, 16 months in the PROTECT Act
period, 19 months in the Booker period, and 25 months
in the Gall period.
For career offenders, average sentences have
decreased, even though the average guideline
minimum has increased slightly. Average sentences
for career offenders were 180 months in the Koon
period, 187 months in the PROTECT Act period, 184
months in the Booker period, and 172 months in the
Gall period. The decrease in sentence length for
career offenders was attributable in part to the
increasing rates of both government and nongovernment sponsored below range sentences in career
offender cases. During the Koon period, 53.4 percent
of career offenders were sentenced within the
guideline range, and in the Gall period only 36.1
percent of career offenders were sentenced within the
guideline range.

BOOKER REPORT 2012: PART A

The guidelines have remained the essential
starting point for all federal sentences and have
continued to influence sentences significantly.
The Supreme Court has held that courts must
begin the sentencing process by properly determining
the applicable guideline range.394 Accordingly, the
guidelines have continued to significantly influence
sentences for most offenses. During the
Gall period 80.7 percent of sentences
were either within range or below range
pursuant to a government motion.395 As
seen in the line chart to the right,
average sentences have continued to
parallel average guideline minimums
for offenses in the aggregate. That is,
when the average minimum of the
applicable guideline range has increased
(due
to
guideline
amendments,
increases in offense seriousness, or
increases in the criminal history of the
offenders) the average sentence also has
tended to increase, as evidenced by the
close tracking between the blue and red
lines. Where the two lines were closer
together, the average sentence was closer to the
average guideline minimum; where the two lines were
farther apart, the reverse was true.
The fact that there was distance between the
two lines does not necessarily indicate that the
guidelines lacked influence over sentences. Some
sentences were lower than the guideline minimum due
to substantial assistance or EDP below range
sentences, which are guidelines-based and pursuant to
specific statutory authority. Substantial assistance
departures have occurred frequently in drug trafficking
offenses (24.4% of drug trafficking offenses in the
Gall period) and typically have led to the greatest
reductions among government sponsored below range
sentences (54 months, or 48.4% below the guideline
minimum in the Gall period), therefore the average
sentence has been noticeably lower than the average
guideline minimum for those offenses.
EDP
departures have accounted for many below range
sentences in immigration offenses (26.8% of illegal
entry offenses in the Gall period), therefore average
394

sentences were lower than average guideline
minimums. However, EDP departures generally have
resulted in much smaller sentence reductions than
substantial assistance departures (10 months, or 30.0%
below the guideline minimum for illegal entry offenses
in the Gall period) and for this reason the distance
between the two lines has been smaller in immigration
offenses than in drug trafficking offenses.

The degree to which the lines for the average
guideline minimum and the average sentence have
been parallel has reflected the degree of influence of
the guidelines. Where the lines have diverged, as in
the cases of fraud and child pornography (discussed
below), the lack of parallelism suggests that the
influence of the guidelines has diminished. Where the
lines have been consistently parallel, as in drug
trafficking, immigration, and firearms offenses
(discussed below), the influence of the guidelines has
remained relatively stable, even though the difference
between the average sentence and the average
guideline minimum may have been sizeable.
The graph on the next page depicts an
alternative way to view the parallelism between the
guideline minimum and the sentence imposed. The
single line illustrates the percentage difference
between the average guideline minimum and the
average sentence. A line below zero indicates that the
average sentence was lower than the average guideline
minimum.

See Rita 551 U.S. at 351.

395

See supra, p. 58, Table “Selected Sentencing
Characteristics – All Offenses.”

BOOKER REPORT 2012: PART A

As the figure shows, the
percentage difference has varied from a
low of 10.2 percent below the guideline
minimum in fiscal year 2004 to a high of
17.9 percent below the guideline
minimum in fiscal year 2011. There has
been a general widening of the
difference since fiscal year 2005, from
13.1 percent in fiscal year 2005 to 17.9
percent in fiscal year 2011. However,
the line is relatively flat, indicating
relative stability over time in the
relationship between the average
guideline minimum and the average
sentence for offenses in the aggregate.

BOOKER REPORT 2012: PART A

The influence of the guidelines, as measured by
the relationship between the average guideline
minimum and the average sentence, has
generally remained stable in drug trafficking,
firearms, and immigration offenses.
For
drug
trafficking,
firearms,
and
immigration offenses (alien smuggling and illegal
entry) the average guideline minimum and the average
sentence have maintained a fairly consistent parallel
relationship during all four periods, although there has
been a slight divergence between the PROTECT Act
and Gall periods.396

The influence of the guidelines has remained
stable for drug trafficking offenses generally.397 The
average guideline minimum for drug trafficking
offenses increased from 89 months in the Koon period
to 96 months in the PROTECT Act period and 101
months in the Booker period, but then decreased to 95
months in the Gall period. The same trend occurred
with average sentence length, which increased from 72
months in the Koon period to 81 months in the
PROTECT Act period and 83 months in the Booker
period, but decreased to 75 months in the Gall period.

396

See “Percent Difference Between Average Guideline
Minimum and Sentence Imposed, Fiscal Years 1996-2011”
for each offense type, nationally and by circuit, in Part C
online. For a more detailed discussion of the relevant
legislative and guidelines changes for these offenses, see
Part C, available online.

397

The drug trafficking guidelines incorporate statutory
mandatory minimum penalties where applicable. For a
more detailed discussion of this topic, see Part C, available
online.

BOOKER REPORT 2012: PART A

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BOOKER REPORT 2012: PART A

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BOOKER REPORT 2012: PART A

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BOOKER REPORT 2012: PART A
As seen in the line charts on the preceding
page, the average sentence was notably further below
the average guideline minimum in drug trafficking
offenses than in firearms and immigration offenses.
This was due, in part, to higher rates of government
sponsored below range sentences based on substantial
assistance for drug trafficking offenses than for other
offenses.
In drug trafficking offenses, rates of
substantial assistance below range sentences were 29.3
percent during the Koon period, 27.0 percent during
the PROTECT Act period, 26.1 percent during the
Booker period, and 24.4 percent during the Gall
period.
In contrast, in firearms offenses,
substantial assistance below range rates
were 11.7 percent during the Koon
period, 11.4 percent during the
PROTECT Act period, 9.4 percent
during the Booker period, and 8.8
percent during the Gall period. In alien
smuggling offenses, rates of substantial
assistance below range sentences were
less than ten percent during all periods.
In illegal entry offenses, rates of
substantial assistance below range
sentences have never exceeded two
percent.
In addition to the rate of below
range sentences, the extent of the
reduction below the guideline minimum
for drug trafficking offenses has
contributed to the distance between the
red and blue lines.
Substantial
assistance below range sentences have
been nearly 50 percent below the
average guideline minimum (49.3% in
the Koon period, 46.8% in the
PROTECT Act period, 46.5% in the
Booker period, and 48.4% in the Gall
period), which has amounted to
reductions of between 52 and 54
months, substantially larger than
reductions for other types of below
range sentences.
The Commission also examined
individual drug types, and analyses for
each are in Part C, available online. In crack cocaine
trafficking offenses, sentences have diverged from the
average guideline minimum during the past few years.
However, reduced penalties for crack cocaine
offenders, resulting from the Fair Sentencing Act of

2010 and the guideline amendments in response to
it,398 may have slowed the divergence. In fiscal year
2010, the average sentence for crack cocaine
trafficking offenders was 23.8 percent below the
average guideline minimum. This was the largest
percent difference between the average guideline
minimum and the average sentence dating back to
fiscal year 1996. In contrast, the average sentence
during 2011 was 22.3 percent below the average
guideline minimum. The change is small, and it may
be too soon to determine whether reduced penalties for
crack cocaine trafficking offenses might bring average
sentences closer to the guideline minimum.

398

See USSG App. C, amend. 748 (effective Nov. 1, 2010)
and 750 (effective Nov. 1, 2011).

BOOKER REPORT 2012: PART A

The influence of the guidelines, as measured by
the relationship between the average guideline
minimum and the average sentence, has
diminished in fraud and child pornography
offenses.
In contrast to drug trafficking, firearms, and
immigration offenses, for fraud and child pornography
non-production offenses (which include receipt,
trafficking, and possession offenses) the average
guideline minimum and the average sentence have not
consistently paralleled one another over time, and the
divergence between the two has increased since fiscal
year 2004 in the case of fraud offenses, and since
fiscal year 2005 in the case of child pornography nonproduction offenses. Average guideline minimums for
these two offense types have increased over time as a
result of statutory changes, including congressional
directives to the Commission, guideline amendments,
and the seriousness of the offenses.

With respect to fraud offenses, the average
guideline minimum has more than doubled from 14
months during the Koon period to 30 months during
the Gall period. The average sentence also has nearly
doubled from 13 months during the Koon period to 25
months during the Gall period, but during the past few
years the average guideline minimum has increased at
a faster rate than the average sentence. For example,
between fiscal years 2009 and 2010, the average
sentence remained flat, while the average guideline
minimum increased.

BOOKER REPORT 2012: PART A
With respect to child pornography nonproduction offenses, the recent divergence between the
average guideline minimum and the average sentence
has been even more pronounced.
The average
guideline minimum for child pornography nonproduction offenses has increased steadily over time in
large part due to statutory changes implemented
between 1997 and the enactment of the PROTECT Act
of 2003, and the guideline amendments in response to
it. The average guideline minimum has more than
tripled from 36 months in the Koon period to 115
months in the Gall period. For many years the average
sentence continued to track closely these sharp
increases in the average guideline minimum. As the
average guideline minimum has continued to increase
through the Booker and Gall periods, however, the
average sentence increasingly has diverged from the
guideline minimum. Whereas the average sentence
was 34 months during the Koon period (two months
less than

the average guideline minimum), the average sentence
was 93 months during the Gall period (22 months less
than the average guideline minimum). A graphical
depiction of the average guideline minimum compared
to the average sentence reveals that, as the average
guideline minimum for child pornography nonproduction offenses has increased during the Booker
and Gall periods, the average sentence has remained
relatively flat by comparison.
In sum, during all four periods, the influence of
the guidelines has remained relatively stable in drug
trafficking, firearms, and immigration offenses, while
in fraud and child pornography non-production
offenses, the average sentence increasingly has
diverged from the average guideline minimum during
the Booker and Gall periods.

BOOKER REPORT 2012: PART A

For most offense types, the rate of within range
sentences has decreased while the rate of below
range sentences (both government sponsored
and non-government sponsored) has increased
over time.
For most offenses studied, rates of within
range sentences have decreased while rates of below
range
sentences,
particularly
non-government
sponsored below range sentences, have increased.399
While average sentences have tended to parallel the
average guideline minimum, courts have imposed
more non-government sponsored below range
sentences, resulting in a widening gap between the
average guideline minimum and the average sentence.
A review of quarterly data for offenses in the
aggregate illustrates this trend. The notable decrease
in non-government sponsored below range sentences
between fiscal years 2002 and 2003 was due primarily
to the change in the way the Commission reported data
on departures shortly before enactment of the
PROTECT Act.400 EDP departures in immigration
offenses have increased, and immigration offenses
have increased as a proportion of the federal case load.
For example, in fiscal year 2003 there were 10,722
immigration offenses. That number increased to
11,113 in fiscal year 2004, and more than doubled to
23,810 in fiscal year 2011.

399

See Figures, “Quarterly Data for Within-Range and Outof-Range Sentences” in Part C, available online.

Even in drug trafficking, firearms, and
immigration offenses, where the line graphs of the
average guideline minimum and average sentence
have shown a relatively stable relationship,401 the rates
of non-government sponsored below range sentences
increased during the Gall period, while rates of within
range sentences decreased. The line graphs on the
following pages depict quarterly data on within range
and out of range sentences for drug trafficking (in the
aggregate and by each major drug type), firearms, and
immigration offenses.
In drug trafficking offenses, rates of within
range sentences decreased throughout the Booker and
Gall periods from a high during the PROTECT Act
period. Rates of within range sentences in drug
trafficking offenses were 55.8 percent during the Koon
period, 63.3 percent during the PROTECT Act period,
53.7 percent during the Booker period, and 47.8
percent during the Gall period. Rates of both
government sponsored and non-government sponsored
below range sentences have generally increased during
those periods. Rates of substantial assistance below
range sentences decreased from 29.3 percent during
the Koon period, to 27.0 percent during the PROTECT
Act period, 26.1 percent during the Booker period, and
24.4 percent during the Gall period. Rates of EDP
below range sentences, on the other hand, have
increased over the three periods during which they
were available, from 1.0 percent in the PROTECT Act
period, to 4.9 percent in the Booker
period, to 5.3 percent in the Gall period.
Even though EDP departures have been
available in only a small number of
districts until recently (Southern
California, Arizona, and New Mexico
had the highest rates) EDP departures
have contributed to an overall increase in
the rate of government sponsored below
range sentences. The rates of other
government sponsored below range
sentences were 3.7 percent in the
PROTECT Act period, 3.0 percent in the
Booker period, and 4.1 percent in the
Gall period.
Non-government
sponsored
below range rates for drug trafficking offenses
increased during the Booker and Gall periods. Those
rates were 14.2 percent during the Koon period, 4.7

400

See supra at 53-54 (discussing changes in Commission
collection methodology).

401

See e.g., supra at 62, “Average Guideline Minimum and
Sentence Imposed – Drug Trafficking Offenses.”

BOOKER REPORT 2012: PART A

Examination of the same
figures by drug type illustrates
differences in rates of within range,
government sponsored below range,
and non-government sponsored below
range sentences, depending on the type
of drug involved in the offense. Of all
drug types, the pattern for powder
cocaine trafficking offenses was most
similar to the pattern for all drugs
combined. Marijuana was the only
drug type in which the within range rate
remained relatively stable during the
Booker and Gall periods.
percent during the PROTECT Act
period, 11.7 percent during the Booker
period, and 17.6 percent during the Gall
period.
Rates of non-government
sponsored below range sentences were
lowest during the PROTECT Act
period, whereas government sponsored
below range sentences increased during
that period, reflecting, in part, the
change in the manner in which the
Commission collected and attributed
below range sentences.402
Even though rates of both
government sponsored and nongovernment sponsored below range
sentences have increased for drug
trafficking offenses, the extent of the
reduction below the guideline minimum has not
changed markedly over time. The average extent of
reduction for government sponsored below range
sentences varied from an average reduction of 51
months (49.2% below the average guideline minimum)
during the Koon period, to an average reduction of 46
months (45.2% below the average guideline minimum)
during the Gall period.
Reductions in nongovernment sponsored below range sentences ranged
from an average reduction of 22 months (40.4% below
the average guideline minimum) during the Koon
period, to an average reduction of 28 months (34.3%
below the average guideline minimum) during the Gall
period.
402

See supra at 53-54 (discussing changes in Commission
collection methodology).

BOOKER REPORT 2012: PART A
In crack cocaine trafficking
offenses, as with all drugs, rates of
within range sentences have decreased
markedly after the PROTECT Act
period. Between 2008 and 2010 there
was an additional decrease in within
range rates, and a corresponding
increase in rates of non-government
sponsored below range sentences.
Within range rates increased and nongovernment sponsored below range
rates decreased between fiscal years
2010 and 2011, perhaps in response to
statutory changes and guideline
amendments reducing penalties for
crack cocaine trafficking offenders.
In heroin trafficking offenses,
within range rates have decreased
markedly since Booker and have
generally declined through fiscal year
2011. In heroin trafficking offenses,
rates of both government sponsored and
non-government sponsored sentences
have increased. During fiscal year 2010
the rate of non-government sponsored
below range sentences exceeded the rate
of government sponsored below range
sentences.
Of the five major drug types,
marijuana trafficking offenses had the
lowest average guideline minimums.
For each of the four periods, the average
guideline minimum for marijuana
trafficking offenses never exceeded 50
months, compared to average guideline
minimums of not less than 93 months
for powder cocaine trafficking, not less
than 138 months for crack cocaine
trafficking, not less than 74 months for
heroin trafficking, and not less than 112
months
for
methamphetamine
trafficking.
Marijuana trafficking
offenses also had the lowest rates of
non-government sponsored below range
sentences of all the drug types, and the
smallest decline in rates of within range
sentences. The rate of government
sponsored below range sentences
increased markedly between fiscal years

BOOKER REPORT 2012: PART A
2002 and 2003, while the rate of non-government
sponsored below range sentences decreased. This
marked change occurred at least in part because of the
change in the way the Commission reported its
departure data in the first quarter of fiscal year 2003 to
better account for downward departures attributable to
the government, including Early Disposition Program
departures (commonly referred to as “fast-track”
departures).403 Three districts appeared to have EDP
programs in marijuana trafficking offenses: Southern
California, Arizona and New Mexico had the highest
rates during the PROTECT Act, Booker, and Gall
periods. In Southern California, for example, 69.6
percent of marijuana trafficking offenders received
EDP departures during the Gall period.

In firearms offenses, the rate of within range
sentences has remained high relative to other offenses,
but it has decreased over time. Within range rates
were 75.1 percent during the Koon period, 79.7
percent during the PROTECT Act period, 70.6 percent
during the Booker period, and 62.9 percent during the
Gall period. In contrast, non-government sponsored
below range rates were 11.9 percent during the Koon
period, 6.5 percent during the PROTECT Act period,
14.6 percent during the Booker period, and 21.1
percent during the Gall period.
As with drug trafficking offenses, firearms
offenses have shown consistency in the extent of the
reduction below the guideline minimum. During the
Koon period, the average extent of the reduction in
government sponsored below range sentences was 26
months (51.0% below the average
guideline minimum), and in the Gall
period the average extent of reduction
was 28 months (45.2% below the
average guideline minimum). Firearms
offenses have also shown consistency in
the extent of the reduction below the
guideline minimum for non-government
sponsored below range sentences. The
average non-government sponsored
below range reduction was 18 months
(42.2% below the average guideline
minimum) during the Koon period and
17 months (39.4% below the average
guideline minimum) during the Gall
period.

Methamphetamine was the only
drug type for which rates of
government sponsored below range
sentences have exceeded rates of within
range sentences. This first occurred in
fiscal year 2009.
The rate of
government sponsored below range
rates has been relatively stable, whereas
the rate of non-government sponsored
below range sentences has increased
more markedly, causing most of the
reduction in within range rates.

403

See supra, discussion at 53-54.

BOOKER REPORT 2012: PART A
In illegal entry offenses, the rate
of within range sentences has decreased
most notably during the PROTECT Act
period, and to a lesser degree during the
Gall period. However, the rates of
government sponsored below range
sentences have substantially increased
because of EDP departures, accounting
for the large change during the
PROTECT Act period. The marked
increase in the rate of government
sponsored below range sentences in
illegal entry offenses between fiscal
years 2002 and 2003, and the
corresponding
decrease
in
nongovernment sponsored below range
sentences, were attributable to the
increased use of EDP programs, as well as to the
change in the way the Commission reported its
departure data beginning in the first quarter of fiscal
year 2003 to account for this. 404
As with drug trafficking and firearms offenses,
illegal entry offenses have shown consistency in the
extent of the reduction below the guideline minimum.
During the Koon period, the average extent of the
reduction in government sponsored below range
sentences was 13 months (28.7% below the average
guideline minimum), and in the Gall period the
average extent of the reduction was 10 months (30.4%
below the average guideline minimum). Illegal entry
offenses also show consistency in the extent of the
reduction below the guideline minimum for non-

404

See supra at 53-54 (discussing changes in Commission
collection methodology).

government sponsored below range sentences. The
average non-government sponsored below range
reduction was 16 months (33.2% below the average
guideline minimum) during the Koon period and 12
months (35.7% below the average guideline minimum)
during the Gall period.
Sentencing in child pornography nonproduction offenses has been markedly different from
any other offense type. In recent years, the rates of
non-government sponsored below range sentences
have exceeded within range rates. During the Gall
period, 41.1 percent of sentences were within the
range, and 44.0 percent of sentences were nongovernment sponsored below range sentences.
As Congress has enacted higher penalties for
child
pornography
non-production
offenses, the average extent of the
reduction
for
both
government
sponsored
and
non-government
sponsored below range sentences has
increased substantially in terms of
months (but not as a percentage
reduction
below
the
guideline
minimum). The average extent of the
reduction for government sponsored
below range sentences was 16 months
(57.2% below the average guideline
minimum) during the Koon period, but
increased to 47 months (42.2% below
the average guideline minimum) during
the Gall period. For non-government
sponsored below range sentences in
child pornography non-production offenses, the
average reduction was 15 months (55.7% below the

BOOKER REPORT 2012: PART A
average guideline minimum) during the Koon period,
but was 44 months (40.4% below the average
guideline minimum) during the Gall period.
The within range rate for career offenders has
decreased substantially since Booker. More than onethird (36.7%) of career offenders received government
sponsored below range sentences during the Gall
period, and more than one-quarter (26.4%) received

non-government sponsored below range sentences.
The extent of the reduction for career offenders was
also substantial. Government sponsored below range
sentences led to average reductions of 96 months
(43.1% below the guideline minimum), and nongovernment sponsored below range sentences led to
average reductions of 69 months (32.4% below the
guideline minimum) in the Gall period.

BOOKER REPORT 2012: PART A

The influence of the guidelines, as measured by
the relationship between the average guideline
minimum and the average sentence, has varied
by circuit.

For offense types in the
aggregate, the average sentence largely
has paralleled the average guideline
minimum in the majority of circuits, but
the degree of divergence between the
two has varied from circuit to circuit.405
The line graphs illustrate the different
trends. For example, in the Fourth
Circuit,
average
sentences
have
generally paralleled average guideline
minimums.

405

The sentencing scale for all circuit level analyses is
consistent within each offense type, although it varies from
offense type to offense type. For instance, the top of the
scale for the chart that depicts all offenses is 120 months in
order to accommodate the circuit with the highest average
guideline minimum or average sentence. The top of the
scale for fraud, however, is 50 months because average
sentences are lower in fraud offenses. Using the same scale
for the same offense type facilitates comparisons between
the circuits.

BOOKER REPORT 2012: PART A

However, in the Third Circuit a
greater divergence between average
guideline minimums and average
sentences appeared between fiscal years
2008 and 2009, when a sharp increase in
the average guideline minimum was met
with only a modest increase in average
sentence length.406

406

Charts depicting the percentage difference between the
average guideline minimum and the average sentence
imposed for each circuit by offense type are provided in Part
C, available online.

BOOKER REPORT 2012: PART A

Greater differences appeared
among the circuits when sentencing data
was analyzed by offense type. For
example, in fraud offenses, the percent
difference
between
the
average
guideline minimum and the average
sentence has varied. In the Fourth
Circuit, average guideline minimums
and average sentences for fraud offenses
have continued to increase and decrease
in tandem, with the exception of a small
divergence beginning in fiscal year
2009.

BOOKER REPORT 2012: PART A

In contrast, in the Second
Circuit, changes in averages sentences
have not paralleled changes in average
guideline minimums over time.
Average guideline minimums have
increased at a much greater rate than
average sentences since fiscal year
2005. Moreover, in fiscal year 2011,
the average guideline minimum
decreased slightly, while the average
sentence increased slightly.

BOOKER REPORT 2012: PART A

In child pornography nonproduction offenses in the Tenth
Circuit, the relationship between the
average guideline minimum and the
average sentence may be diminishing
as average sentences have remained
below the average guideline minimum
since fiscal year 2006. Nonetheless, in
the Tenth Circuit, average sentences
have continued to track average
guideline minimums.

BOOKER REPORT 2012: PART A

In all of the other circuits,
average sentences have not increased to
the same extent as average guideline
minimums during the Booker period and
continuing through the Gall period. In
the Second Circuit, average sentences
have demonstrated little relationship
with average guideline minimums since
fiscal year 2006.

BOOKER REPORT 2012: PART A

Even in firearms offenses,
where the relationship between the
average guideline minimum and
average sentence has been relatively
stable nationally, the degree of
parallelism has varied by circuit. For
example in the Fifth Circuit, average
sentences have continued to track
changes
in
average
guideline
minimums.

BOOKER REPORT 2012: PART A

In contrast, in the Third
Circuit average sentences have
diverged from average guideline
minimums since fiscal year 2009.

BOOKER REPORT 2012: PART A

In illegal entry offenses, the
average guideline minimum and
average sentence have been parallel in
most circuits over time. Even so,
differences can be seen in the Fifth
and Ninth Circuits, which have large
immigration caseloads. In the Fifth
Circuit, average sentences have nearly
equaled average guideline minimums
during each fiscal year.

BOOKER REPORT 2012: PART A

In contrast, in the Ninth Circuit,
average sentences have been much
lower
than
average
guideline
minimums. This was likely attributable
to the fact that more districts with high
immigration caseloads had EDP
programs in the Ninth Circuit than in
the Fifth Circuit.

BOOKER REPORT 2012: PART A

In offenses sentenced under
the career offender guideline, the
relationship between the average
guideline minimum and average
sentence has fluctuated over time. In
the Fourth Circuit, the relationship
has been relatively stable.

BOOKER REPORT 2012: PART A

In the First Circuit, however,
average sentences have not tracked
average guideline minimums since
fiscal year 2004.

BOOKER REPORT 2012: PART A

The influence of the guidelines, as measured by
within range rates, has varied by circuit.

Although for most offense
types the rates of within range
sentences have decreased, the degree of
decrease and the prevalence of nongovernment and government sponsored
below range sentences have varied by
circuit. For example, in the First
Circuit, within range rates for drug
trafficking offenses have consistently
exceeded rates of both government and
non-government sponsored below range
sentences.

In contrast, in the Second
Circuit, in fiscal year 2009 the within
range rate for drug trafficking offenses
was lower than both the government
sponsored below range rate and nongovernment sponsored below range rate,
primarily due to an increase in nongovernment sponsored below range
sentences.

Likewise, in fraud and child
pornography offenses, within range rates
have also decreased in a non-uniform
fashion across circuits.
For fraud
offenses in the First Circuit, the majority
of sentences have been within range,
whereas in the Second Circuit in fiscal
year 2011, within range rates were less
than 40 percent, and for the first time
non-government sponsored below range
rates exceeded within range rates.

BOOKER REPORT 2012: PART A

The Second Circuit was the only
circuit in which non-government
sponsored below range rates have
exceeded within range rates in fraud
offenses.

In child pornography nonproduction offenses (including receipt,
trafficking and possession offenses) the
Fifth Circuit was the only circuit in
which the within range rate has
exceeded the non-government sponsored
below range rate throughout the entire
Gall period. As reflected in the line
graph, however, if the current trend
continues, within range rates will be
lower than non-government sponsored
below range rates in the near future.

In all other circuits, nongovernment sponsored below range rates
exceeded within range rates by the end
of the Gall period. In the Ninth Circuit,
non-government sponsored below range
rates exceeded within range rates in
fiscal year 2009.
In sum, differences among the
circuits in the stability of the
relationship between average sentences
and average guideline minimums, and
differences in within range sentencing
rates, have demonstrated growing
sentencing disparities.

BOOKER REPORT 2012: PART A

following box plots depict the spread among districts
in rates of non-government sponsored below range
sentences for drug trafficking and firearms offenses.
The rising position of the box along the vertical axis in
the plots reflects that non-government below range
rates have increased over time for drug trafficking and
firearms offenses. Further, the increasing size of the
box shows that the spread in the rates has also
increased over time, and was largest during the Gall
period.
In drug trafficking offenses, courts imposed
non-government sponsored below range sentences in
81 districts during the PROTECT Act period, and in
all 94 districts during both the Booker and Gall
periods. The spread was smallest, and the rates of
non-government sponsored below range sentences
were lowest, during the PROTECT Act period.
During the PROTECT Act period, for example, among
the districts with the lowest rates within the box was
Middle Pennsylvania, which had a non-government
sponsored below range rate of 1.8 percent. Among the
districts with the highest rates within the box was
Minnesota, with a rate of 5.3 percent. Both districts
sentenced just over 220 drug trafficking offenders
during this period, and the difference in the rates was
3.5 percentage points. The spread was greatest, and
the rates of non-government sponsored below range
rates were highest, during the Gall period. Southern
Mississippi, for example, sentenced 320 drug

For most offense types, the spread in the rates
of non-government sponsored below range sentences
among districts was greatest during the Gall period,
indicating growing disparity in district practices. The
box plot of non-government sponsored below range
rates for all offenses exhibits this pattern. The Koon
period is not directly comparable to the other periods
because during that period the Commission attributed
some below range sentences to the court as “other
downward departures,” whereas the sentencing
documents indicated some benefit to the government.
The Commission would now attribute such a sentence
to the government according to the coding and
reporting practices implemented just before enactment
of the PROTECT Act.407
This trend of increasing spread in rates of nongovernment sponsored below range sentences was also
apparent with respect to specific offense types. The
407

See supra at 53-54 (discussing changes in Commission
collection methodology).

BOOKER REPORT 2012: PART A
trafficking offenders during the Gall period and had a
rate of 11.6 percent non-government sponsored below
range sentences, whereas Western Michigan sentenced
519 drug offenders during that same period and had a
rate of 22.2 percent non-government sponsored below
range sentences, a 10.6 percentage point difference.
Large increases in the rates of nongovernment sponsored below range sentences within
individual districts have contributed to the increasing
spread in non-government sponsored below range
rates in drug trafficking offenses. For example, in
Southern Ohio, rates of non-government sponsored
below range sentences were 6.1 percent during the
PROTECT Act period, 14.1 percent during the Booker
period, and 23.0 percent during the Gall period. In
Middle Pennsylvania, the non-government sponsored
below range rates were 1.8 percent during the
PROTECT Act period, 10.4 percent during the Booker
period, and 20.3 percent during the Gall period. In
Eastern Tennessee, a district with relatively low rates
of non-government sponsored below range sentences
in drug trafficking offenses, rates increased from 2.2
percent during the PROTECT Act period, to 6.8
percent during the Booker period, and 12.4 percent
during the Gall period.
In firearms offenses courts imposed nongovernment sponsored below range sentences in 82
districts during the PROTECT Act period, and in 93
districts during the Booker and Gall periods. Both the
spread and the rates among the middle 50 percent of
districts were greatest during the Gall period. During
the PROTECT Act period, for example, among the
districts with the lowest rates within the box was
Western Virginia, which had a non-government
sponsored below range rate of 3.6 percent. Among the
districts with the highest rates within the box was
Wyoming, with a rate of 9.4 percent. Western
Virginia sentenced 84 firearms offenders during the
PROTECT Act period, Wyoming sentenced 64, and
the spread between the two districts was 5.8
percentage points. During the Gall period, Northern
Oklahoma, for example, sentenced 162 firearms
offenders and had a rate of 16.0 percent nongovernment sponsored below range sentences,
whereas Wyoming sentenced 156 firearms offenders
during that same period and had a rate of 26.9 percent
non-government sponsored below range sentences,
nearly 11 percentage points higher than the rate in
Northern Oklahoma.
Substantial increases in the rates of nongovernment sponsored below range sentences within

individual districts have contributed to an increased
spread in rates in firearms offenses. For example, in
Eastern Michigan, rates of non-government sponsored
below range sentences were 8.0 percent during the
PROTECT Act period, 18.2 percent during the Booker
period, and 26.9 percent during the Gall period. In
Western Virginia, the rates were 3.6 percent during the
PROTECT Act period, 12.3 percent during the Booker
period, and 24.5 percent during the Gall period. In
Eastern Pennsylvania, the rates were 4.0 percent
during the PROTECT Act period, 19.2 percent during
the Booker period, and 28.3 percent during the Gall
period. In contrast, in South Carolina, a district with
relatively low rates of non-government sponsored
below range sentences in firearms offenses, rates
increased from 1.3 percent during the PROTECT Act
period, to 10.9 percent during the Booker period, and
16.6 percent during the Gall period. South Carolina
sentenced 534 firearms offenders during the Booker
period and 699 firearms offenders in the Gall period.
The same trend was evident in fraud
offenses408 where the number of districts with nongovernment sponsored below range sentences
increased from 69 districts in the PROTECT Act
period, to 92 districts in the Booker period, to 93
districts in the Gall period. During the Gall period,
408

Box plots for fraud offenses are in Part C, available
online.

BOOKER REPORT 2012: PART A
the middle 50 percent of districts had higher nongovernment sponsored below range rates and more
variation than in previous periods. In Northern
Georgia, for example, rates of non-government
sponsored below range sentences more than tripled
from the PROTECT Act period to the Gall period. In
the PROTECT Act period, the rate was 8.3 percent, in
the Booker period it was 17.1 percent, and in the Gall
period, it was 27.5 percent. Likewise, rates of nongovernment sponsored below range sentences in fraud
offenses in the district of Utah increased
tremendously, from 4.0 percent during the PROTECT
Act period, to 18.5 percent in the Booker period, to
27.7 percent in the Gall period.
In illegal entry offenses,409 the spread in the
rates of non-government sponsored below range
sentences also was greatest in the Gall period.
Further, the increase in the number of districts
reporting non-government sponsored below range
sentences was more marked: 54 districts in the
PROTECT Act period, 79 districts in the Booker
period, and 92 districts during the Gall period. Similar
increases in the number of districts reporting nongovernment sponsored below range sentences occurred
in career offender cases: there were 52 districts in the
PROTECT Act period, 86 districts in the Booker
period, and 89 districts in the Gall period.
In child pornography non-production offenses
(including trafficking, receipt, and possession
offenses)410 a relatively small number of districts
(N=39) reported non-government sponsored below
range sentences during the PROTECT Act period,
when Congress enacted broad restrictions on below
range sentences in these types of cases. In contrast,
during the Gall period, 91 districts reported nongovernment sponsored below range sentences.411
409

Box plots for illegal entry offenses are in Part C,
available online.

410

Box plots for child pornography non-production
offenses are in Part C, available online.

411

During the PROTECT Act period, judges in 39 districts
imposed non-government sponsored below range sentences,
whereas judges in many more districts did so during the
other periods. (Koon period N=88; Booker period N=83;
Gall period N=91). This may reflect the fact that Congress
specifically prohibited departures in child sexual
exploitation cases in the PROTECT Act period. The
PROTECT Act amended 18 U.S.C. § 3553(b) to permit the
sentencing court to impose a sentence below the applicable

Of all of the offense types studied, child
pornography non-production offenses had the highest
rates of non-government sponsored below range
sentences among the middle 50 percent of districts.
Furthermore, of the offense types studied, child
pornography non-production offenses had the greatest
spread among the middle 50 percent of districts, at
24.3 percentage points in the Gall period.412 This
compared to spreads of 19.8 percentage points in
illegal entry offenses, 12.6 percentage points in fraud
offenses, and 12.4 percentage points in firearms
offenses and drug trafficking offenses.

For offenses in the aggregate, the average extent
of the reduction for non-government sponsored
below range sentences has been approximately
40 percent below the guideline minimum during
all periods (amounting to average reductions of
17 to 21 months); however, the extent of the
reduction has varied by offense type.
For offenses in the aggregate, the extent of
non-government sponsored below range reductions has
remained relatively constant over time, hovering near
a 40 percent reduction below the guideline minimum
during all four periods: 41.8 percent (17 months
below the guideline minimum) during the Koon
period; 40.0 percent (17 months below the guideline
minimum) during the PROTECT Act period; 39.1
percent (20 months below the guideline minimum)
during the Booker period; and 40.7 percent (21 months
below the guideline minimum) during the Gall period.
When analyzed by offense type, the extent of
the reduction has varied over time and by offense type.
sentencing guideline range only if the court finds that there
exists a mitigating circumstance of a kind or to a degree that
has been affirmatively and specifically identified as a
permissible ground of downward departure in the sentencing
guidelines or policy statements, taking account of any
amendments to such sentencing guidelines or policy
statements by Congress. 18 U.S.C. § 3553(b)(2) (Child
crimes and sex offenses) (2003). In addition, the
PROTECT Act directly amended several policy statements
to specifically prohibit their application to child sexual
exploitation cases. Furthermore, the PROTECT Act period
was the shortest of the four periods, and had the smallest
number of cases.
412

The spread is the difference between the bottom of the
box (Q1=31.3%) and the top of the box (Q3=55.6%).

BOOKER REPORT 2012: PART A
In child pornography non-production offenses, for
example, the average reduction in months increased
from 15 months (55.7% below the guideline
minimum) in the Koon period to 18 months (50.4%
below the guideline minimum) in the PROTECT Act
period, 28 months (38.8% below the guideline
minimum) during the Booker period, and 44 months
(40.4% below the guideline minimum) during the Gall
period. In contrast, reductions in illegal entry offenses
held steady at 12 months during the PROTECT Act,
Booker, and Gall periods. The 12-month reduction
has translated into a reduction of 28.1 to 35.7 percent
below the guideline minimum depending on the
period.

As a percentage below the guideline
minimum, fraud offenses have had the largest
reductions of all offense types, more than 50 percent
below the guideline minimum during three out of four
periods:
56.1 percent (nine months below the
guideline minimum) during the Koon period, 53.4
percent (10 months below the guideline minimum)
during the PROTECT Act period, 52.6 percent (11
months below the guideline minimum) during the
Booker period, and 49.3 percent (13 months below the
guideline minimum) during the Gall period. In
firearms offenses, the extent of the reduction has
varied little, between 38.0 percent (16 months below
the guideline minimum) in the Booker period and 42.2
percent (18 months below the guideline minimum in
the Koon period. In months, career offenders have
received the largest reductions below the guideline
minimum across the periods, varying between 63
months (32.0% below the guideline minimum) in the
PROTECT Act period and 72 months (37.3% below
the guideline minimum) in the Koon period.

BOOKER REPORT 2012: PART A

Government sponsored below range sentences
have contributed to increasing variation in
sentencing.
The decrease in within range sentence rates for
offenses in the aggregate was attributable to increases
in the rates of both non-government sponsored and
government sponsored below range sentences.
Specifically, rates of government sponsored below
range sentences for all offenses were 19.8 percent in
the Koon period, 23.4 percent in the PROTECT Act
period, 26.1 percent in the Booker period, and 26.8
percent in the Gall period. By comparison, rates of
non-government sponsored below range sentences
were 15.4 percent in the Koon period, 5.7 percent in
the PROTECT Act period, 12.6 percent in the Booker
period, and 17.4 percent in the Gall period.413 The
analysis categorized the rates of government
sponsored below range sentences as one of three types:
substantial assistance (pursuant to USSG §5K1.1);
EDP (pursuant to §5K3.1); or other.
Substantial assistance below range sentences
are specifically authorized in 18 U.S.C. § 3553(e).
This section provides limited authority to impose a
sentence below the statutory minimum in a case in
which the defendant provides substantial assistance to
the government in the investigation and prosecution of
another person who has committed an offense.
Further, section 994(n) of title 28, United States Code,
requires the Commission to “assure that the guidelines
reflect the general appropriateness” of imposing a
reduced sentence on a defendant who has provided
substantial assistance. The Commission implemented
this directive in USSG §5K1.1 (Substantial
Assistance).
EDP departures were authorized by Congress
in the PROTECT Act of 2003,414 but had been
operating before then in a number of districts and had

generally been reported by the Commission as “other
downward departures.” Therefore, EDP rates are
reported only for the PROTECT Act, Booker, and Gall
periods. The vast majority of EDP departures occur in
illegal entry offenses, because “fast-track programs
originated in southwestern border districts with an
exceptional volume of immigration cases.”415
However, the Department of Justice recently expanded
eligibility for EDP departures, stating that “[t]he
existence of these programs in some, but not all,
districts has generated a concern that defendants are
being treated differently depending on where in the
United States they are charged and sentenced,”416 and
noting that “USAOs in non-fast track districts
routinely face motions for variances based on fasttrack programs in other districts.”417 The revised
policy establishes “baseline eligibility requirements for
any defendant who qualifies for fast-track treatment,
regardless of where that defendant is prosecuted,”
meaning that all districts that prosecute illegal reentry
offenses under 8 U.S.C. § 1326 are now required to
implement early disposition programs for offenders
who meet the criteria.418 Nonetheless, the criteria for
qualifying for the EDP departure, and the amount of
the reduction (within the 4-level-reduction limit in
USSG §5K3.1) remain within the discretion of the
United States Attorney for each district; therefore,
regional differences in the programs may continue.
Unlike substantial assistance and EDP, other
government sponsored below range sentences are not
415

Memorandum of James M. Cole, Deputy Attorney
General, Department Policy on Early Disposition or “FastTrack” Programs (Jan. 31, 2012) available at
http://www.justice.gov/dag/fast-track-program.pdf.
[hereinafter Cole Memorandum] See also Memorandum of
David W. Ogden, Deputy Attorney General, Authorization
of Certain Early Disposition Programs, at 1 (May 29, 2009)
[hereinafter Ogden Memorandum].

416
413

The sharp decrease in non-government sponsored below
range rates between the Koon and PROTECT Act periods
reflects in part the change in the way the Commission
collected departure data. See supra at 53-54 (discussing
changes in Commission collection methodology).

414

See section 401(m)(2)(B) of the PROTECT Act, Pub. L.
No. 108-21 (directing the Commission to formulate a
guideline providing up to a 4-level reduction pursuant to an
early disposition program authorized by the Attorney
General of the United States).

Cole Memorandum at 2.

417

Id. See also Ogden Memorandum (authorizing certain
early disposition program and listing the classes of cases to
which they apply).
418

Cole Memorandum, supra note 415 (“Districts
prosecuting felony illegal reentry cases (8 U.S.C. § 1326)—
the largest category of cases authorized for fast-track
treatment—shall implement an early disposition program in
accordance with the following requirements and the exercise
of prosecutorial discretion by the United States Attorney”).

BOOKER REPORT 2012: PART A
specifically authorized by statute and have not been
incorporated into the Guidelines Manual through any
specific guideline or policy statement. In this respect,
other government sponsored below range sentences
are more similar to non-government sponsored below
range sentences. Department of Justice policy on
charging and sentencing notes that “[i]n the typical
case, the appropriate balance among [the statutory
purposes of sentencing] will continue to be reflected
by the applicable guidelines range,” and advises
prosecutors to “generally continue to advocate for a
sentence within that range,” because “[t]he advisory
guidelines remain important in furthering the goal of
national uniformity throughout the federal system.” 419
However, the policy goes on to note that “consistent
with the Principles of Federal Prosecution and given
the advisory nature of the guidelines, advocacy at
sentencing—like charging decisions and plea
agreements—must also follow from an individualized
assessment of the facts and circumstances of each
particular case.” 420 By its terms, the memorandum
permits government sponsored below range sentences
that are based on neither substantial assistance nor
EDP programs.
The rates of substantial assistance sentences
have decreased over time for offenses in the aggregate,
from 19.1 percent in the Koon period, to 16.6 percent
during the PROTECT Act period, to 15.2 percent
during the Booker period, to 12.9 percent during the
Gall period, and this trend was observed for most
offense types. The extent of the reduction below the
guideline minimum, however, has been generally
consistent, ranging from 49.9 percent below the
guideline minimum in the Booker period to 52.4
percent below the guideline minimum in the Koon
period. This has been fairly comparable to the extent
of the reductions below the guideline minimum in
non-government sponsored below range sentences,
which ranged from 39.1 percent below the guideline
minimum in the Booker period to 41.8 percent below
the guideline minimum in the Koon period.
In terms of months, however, the reductions
in substantial assistance sentences have been nearly
twice as long as reductions in non-government
419

Memorandum of Eric H. Holder, Jr., Attorney General,
Department Policy on Charging and Sentencing, at 2 (May
19, 2010).

420

Id. at 2-3.

sponsored below range sentences. The extent of the
reduction in substantial assistance sentences ranged
from 41 months during the Koon and PROTECT Act
periods to 44 months and 45 months during the Booker
and Gall periods, respectively. By comparison, the
extent of the reduction in non-government sponsored
below range sentences was 17 months in the Koon and
PROTECT Act periods, and 20 and 21 months in the
Booker and Gall periods, respectively. This difference
in the extent of the reduction as measured in months
reflects the fact that substantial assistance departures
have generally applied to offenders with higher
guideline minimums than offenders who received nongovernment sponsored below range sentences.
In contrast to substantial assistance rates, the
rates of EDP departures have increased over time. The
rates of EDP departures for illegal entry offenses,
which constituted nearly one-third of fiscal year 2011
offenses in this analysis421 (31.3% of all federal
offenses), increased from 7.1 percent in the PROTECT
Act period, to 26.2 percent in the Booker period, to
26.8 percent in the Gall period. Now that EDP
departures are available in all districts prosecuting
illegal entry offenses, these rates will likely increase.
Further, some districts make EDP available in drug
trafficking offenses.
For example, in Southern
California, 69.6 percent of 1,991 marijuana traffickers
received EDP departures during the Gall period.
Marijuana trafficking offenders in New Mexico and
Arizona received EDP departures at rates of 43.6
percent (out of 1,472 offenders) and 37.7 percent (out
of 3,707 offenders), respectively. It is unclear whether
the new Department of Justice policy regarding EDP
departure policies in illegal entry offenses will affect
the rates of EDP departures for other offense types.
421

Immigration offenses include smuggling, transporting or
harboring an unlawful alien, and unlawfully entering or
remaining in the United States. These offenses are
sentenced under USSG §2L1.1 (Smuggling, Transporting,
or Harboring an Unlawful Alien) and USSG §2L1.2
(Unlawfully Entering or Remaining in the United States).
The Commission has previously reported that beginning in
fiscal year 2009 immigration cases became the most
common serious federal crime. See U.S. SENT’G COMM’N,
OVERVIEW OF FEDERAL CRIMINAL CASES FISCAL YEAR
2009, at 1-2 (December 2010) (noting immigration cases
comprised 32.2 % of the federal caseload while drugs
comprised 30.3%). That analysis was based on the
defendant’s statute of conviction, not on the guideline
applied at sentencing.

BOOKER REPORT 2012: PART A
The extent of the reduction in terms of months
and percentage below the guideline minimum in EDP
sentences was relatively small compared to substantial
assistance and non-government sponsored reductions.
Average reductions for EDP departures in illegal entry
offenses were ten months (25.3% below the guideline
minimum) in the PROTECT Act period, nine months
(26.1% below the guideline minimum) in the Booker
period, and ten months (30.0% below the guideline
minimum) in the Gall period.422
The rates of other government sponsored
below range sentences were substantially lower than
the rates of substantial assistance and EDP
departures.423 Other government sponsored below
range sentences for all offenses were first collected
and reported by the Commission during the PROTECT
Act period, when the rate was 5.1 percent. The rate
decreased to 3.3 percent during the Booker period,
then increased to 4.2 percent in the Gall period. These
rates have varied depending on the type of offense.
Although rates of other government sponsored
below range sentences have remained relatively low,
they have occurred in more districts over time and may
contribute to increased variation in sentencing in the
future. During the PROTECT Act period, for offenses
in the aggregate, such sentences were imposed in 73
districts, compared to 93 districts in the Booker period,
and all 94 districts in the Gall period. This increase
has occurred for a number of offense types. For
example, in drug trafficking offenses, other
government sponsored below range sentences were
imposed in 51 districts in the PROTECT Act period,
compared to 81 districts in the Booker period, and 87
districts in the Gall period. Similarly, in firearms
offenses, other government sponsored below range
sentences occurred in 28 districts in the PROTECT
Act period, compared to 72 districts in the Booker
period, and 81 districts in the Gall period. In fraud

offenses, the number of districts with other
government sponsored below range sentences
increased from 31 districts in the PROTECT Act
period, to 70 districts in the Booker period, to 82
districts in the Gall period. The same trend existed for
child pornography non-production offenses and for
fraud offenses. The number of districts with other
government sponsored below range sentences in child
pornography non-production offenses increased from
six in the PROTECT Act period, to 45 in the Booker
period, to 70 districts in the Gall period. The number
of districts with other government sponsored below
range sentences in fraud offenses increased from 31 in
the PROTECT Act period, to 70 in the Booker period,
to 82 districts in the Gall period.
The rate of other government sponsored below
range sentences has varied depending on the offense
type. Gall period rates were very similar for several
offenses types: 4.1 percent for drug trafficking
offenses, 4.3 percent for firearms offenses, and 3.9
percent for fraud offenses. For other offenses, rates of
other government sponsored below range sentences
were higher.
The highest rates were in child
pornography offenses: 11.7 percent for production
offenses and 10.4 percent for non-production offenses.
In career offender cases, the other government
sponsored below range rate was 9.3 percent. As seen
in the table on the next page, when other government
sponsored below range sentences were imposed, the
extent of the reduction was similar to the extent of the
reduction for non-government sponsored below range
sentences.

422

See Table, “Selected Sentencing Characteristics – Illegal
Entry Offenses,” in Part C, available online.

423

Box plots depicting the spread in average rates of
substantial assistance and EDP departures, and other
government sponsored below range sentences are in Part C,
available online. The spread in the rates of substantial
assistance sentences for all offenses in the aggregate has
remained relatively stable across the periods, with the
smallest spread in the Koon period. The spread in the rates
of EDP departures has increased over time, likely reflecting
the fact that this departure is a congressionally authorized
departure intended for use in limited circumstances.

BOOKER REPORT 2012: PART A
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BOOKER REPORT 2012: PART A

Differences in prosecutorial practices, such as
charging and plea agreement practices, have
contributed to unwarranted disparity in
sentencing.
A defendant’s sentence is a product not only
of decisions made by the court at sentencing, but also
of decisions made earlier in the process. Prosecutorial
decision making, including, for example, the choice of
which crime to charge and the negotiation of various
aspects of plea agreements, impacts the applicable
statutory and guideline penalties, and therefore the
ultimate sentence. Some of these decisions are
reflected in Commission data, but the Commission
does not have information on others and therefore
cannot analyze their impact. One area of prosecutorial
decision making that the Commission has studied is
the decision to charge crimes that carry mandatory
minimum penalties.
In its 2011 report to Congress on mandatory
minimum penalties, the Commission studied drug
offenses and mandatory minimum penalties.424 In
drug trafficking offenses, the applicable statutory
mandatory minimum penalty increases when a drug
offender is convicted of a second or subsequent felony
drug offense and the prosecutor files a notice of
enhancement prior to plea or trial. Using sample
groups from fiscal years 2006, 2008, and 2009, the
Commission found significant variation in the manner
in which prosecutors applied the enhancement
provision. For example, in six districts, more than 75
percent of eligible defendants received the increased
statutory mandatory minimum penalty as an
enhancement. In contrast, in eight districts, none of
the eligible drug offenders received the enhanced
penalty. Interviews of prosecutors confirmed this
regional disparity with respect to filing the notice of
enhanced penalties in drug trafficking offenses. In
interviews conducted in 13 districts, prosecutors
reported wide variations in the practices surrounding
the filing of notices seeking enhanced statutory
mandatory minimum penalties in drug trafficking
offenses.425
The Commission’s interviews also
424

2011 MANDATORY MINIMUM REPORT, supra note 17, at
252-261.
425

Id. at 111-113. In nine districts, prosecutors related that
they did not file the notice automatically in every applicable
case. In each of those districts, the prosecutors advised that
they delayed filing the notice while engaging in plea

revealed divergent practices relating to the filing of
multiple charges under 18 U.S.C. § 924(c), involving
the use of a firearm during a crime of violence or drug
trafficking felony,426 as well as inconsistencies in
charging and plea agreement practices relating to child
pornography and whether to charge receipt of child
pornography, which carries a five-year statutory
mandatory minimum, or possession, which does not.427
negotiations. In two districts, prosecutors advised that they
filed the notice triggering the enhanced penalties in every
applicable case and did not withdraw the notice under any
circumstances. In another district, prosecutors suggested
that office policy required section 851 notices to be filed in
every applicable case, absent supervisory approval to
withhold the filing of the notice. These prosecutors noted,
however, that the timing of the filing was left to discretion
of the individual prosecutor handling the case. These
prosecutors also related that they might withdraw the
section 851 notice if the offender agreed to provide
substantial assistance. Finally, in one district, the
prosecutors advised that they rarely filed the notices. The
prosecutors in this district described the enhanced penalties
as a “hammer for the worst offenders,” but otherwise too
harsh for low-level drug offenders.
426

Id. at 113-114. This offense carries a consecutive
penalty of at least five years; second and subsequent
violations are subject to a 25-year consecutive penalty. In
most districts, the prosecutors generally charged multiple
section 924(c) violations in violent offenses. By contrast, in
two districts prosecutors advised that they rarely charge
multiple violations. Further, the charge bargaining practices
for multiple section 924(c) counts were inconsistent.
Prosecutors in some districts would dismiss all but one
section 924(c) count in exchange for a guilty plea. Others
require a plea to at least two section 924(c) counts. In
another, prosecutors require offenders that they consider
especially violent to plead to at least three counts. Not only
did the practices differ among districts, but the respondents
interviewed also noted that the practice sometimes varied
within districts, either by division or by individual
prosecutor.

427

Id. at 114. A common inconsistency in prosecutorial
charging decisions in child pornography offenses related to
whether to charge possession, which carries no mandatory
minimum penalty, or receipt, which carries a five-year
mandatory minimum penalty. Interviews revealed that in a
few districts, offenders who offered to plead guilty to a child
pornography possession charge early in the case would have
their receipt charges either dismissed or never filed. In at
least one other district, if an offender successfully passed a
polygraph examination establishing that no additional steps
had been taken beyond viewing child pornography (i.e., the

BOOKER REPORT 2012: PART A

Variation in the rates of non-government
sponsored below range sentences among judges
within the same district has increased in most
districts since Booker, indicating that sentencing
outcomes increasingly depend upon the judge to
whom the case is assigned.
The Commission examined the sentencing
practices of individual judges within each district to
determine the extent of variation among judges within
the same district.
This analysis was aimed at
exploring differences in the rates of non-government
sponsored below range sentences within each district.
The Commission analyzed these rates by district
because judges within the same district generally are
more likely than judges across districts to preside over
similar cases to the extent the district’s cases are
randomly distributed among the judges. Furthermore,
United States Attorneys’ prosecutorial practices within
one district are more likely to be similar than across
various districts.
The Commission recognizes,
however, that caseload composition may differ
substantially across divisions within the same
district.428 For this reason and others, including all the
districts’ judges in one analysis may not account for all
relevant differences within a district and may limit the
Commission’s analysis. Nonetheless, for the purpose
of analyzing differences among sentencing judges’
practices, examining each district separately reduces,
though does not eliminate, differences that may be
attributable to caseload composition and prosecutorial
practices, and reveals substantial differences in
sentencing practices.

offender had not touched a child), that offender would be
permitted to plead to possession of child pornography. In
yet another, prosecutors typically agreed to enter into a
binding plea agreement allowing the offender to plead guilty
to a possession charge and requiring a specific sentence if
the forensic examination of the offender’s computer would
be considerably delayed if the case were to go to trial.
428

For example, Western North Carolina has one division
(Charlotte) with a larger urban population, another district
(Asheville) with substantial federal property, and yet
another district (Bryson City), with a substantial American
Indian population. Different types of cases arise in each of
these divisions, and one judge may be assigned more cases
from a certain division than other judges due to caseload
management issues.

The Commission reviewed data from all 94
districts, which are available online in Part D of this
report, to determine whether any patterns emerged.429
In this review, the Commission examined the entire
spread of judges’ non-government sponsored below
range rates. All judges (magistrate or district) who
sentenced at least one offender convicted of a felony
or a Class A misdemeanor offense were included in
the plots. However, in determining whether the spread
in the rates had expanded or contracted over time, it
was important to distinguish whether the judge
represented by the bubble sentenced a few or many
offenders. A judge with the highest or lowest rate of
non-government sponsored below range sentences
may have sentenced one offender because he or she
was a visiting or senior-status judge. Therefore, when
the judge’s bubble was a small pinpoint, indicating
that the judge sentenced one or a very small number of
offenders relative to the other judges in the district, the
Commission did not consider that judge in its
assessment of whether the spread of rates generally
increased or decreased during that period in order to
avoid overstating the spread during any period.
In the majority of districts (n=64) the spread in
the rates of non-government sponsored below range
sentences was smallest during the PROTECT Act
period and greatest during the Gall period. In other
words, in two-thirds of districts, judges’ rates of nongovernment sponsored below range sentences were
most uniform during the PROTECT Act period, and
were the most varied during the Gall period. The
spread of the rates in a much smaller number of
districts (n=16) either did not change, or did not
contract during the PROTECT Act period as compared
to the Koon period.430 In 14 districts any difference in
the spread between the Koon and PROTECT Act
periods was too subtle to discern.431 In those 14
429

Bubble plots for each of the 12 circuits and each of the
94 districts are in Part D, available online.

430

The 16 districts in which the spread either did not
change or expanded between the Koon and PROTECT Act
periods were, New Hampshire, Connecticut, Delaware,
Maryland, Eastern Virginia, Northern Mississippi, Eastern
Kentucky, Southern Ohio, Eastern Wisconsin, Southern
Iowa, Eastern Missouri, Nebraska, Guam, Northern Mariana
Islands, Utah, and Northern Georgia.

431

The 14 districts in which changes between the Koon and
PROTECT Act periods were too subtle to discern were
Puerto Rico, Rhode Island, Eastern New York, Western

BOOKER REPORT 2012: PART A
districts, there may have been some contraction in the
rates among most judges, but one or more outlier
judges with comparably sized caseloads made it
difficult to classify the change as either an expansion
or a contraction in the spread.

South Carolina and Northern
Texas provide clear examples of the
pattern in the majority of districts: the
plots show contraction in the spread
from the Koon period to the PROTECT
Act period, when judges’ discretion was
circumscribed, then an expansion in the
spread from the PROTECT Act period
to the Booker period, when judges had
greater discretion.
The expansion
continued from the Booker period to the
Gall period.

New York, New Jersey, Eastern Pennsylvania, Western
Pennsylvania, Virgin Islands, Middle North Carolina,
Western North Carolina, Western Virginia, Northern Ohio,
North Dakota, and Nevada.

BOOKER REPORT 2012: PART A

As seen in these scatter plots, the
average extent of the reduction below the
guideline minimum varied broadly
during each period, and did not appear to
have been affected by legislation or
Supreme Court decisions.

100

BOOKER REPORT 2012: PART A

In most districts, judges with
similarly sized caseloads imposed nongovernment sponsored below range
sentences at very different rates. The
following plot of Southern Florida shows
that the non-government sponsored below
range rates among judges with similarsize caseloads varied from under ten
percent to just below 40 percent in the
Gall period. The judges with the highest
and lowest rates of non-government
sponsored below range sentences had
small caseloads relative to the other
sentencing judges in the district.

As the scatter plot reflects, the
extent of the reduction in Southern
Florida, as in most districts, varied
during all four periods and did not
appear to be affected by Supreme Court
decisions or legislation.
A reduction of 100 percent
likely reflects a sentence of probation
reduced from a guideline minimum
recommending incarceration.

101

BOOKER REPORT 2012: PART A

In the district of Rhode Island,
two of the judges with high rates of nongovernment sponsored below range
sentences had the two largest caseloads
in the district during the Gall period.

In contrast, in Southern Illinois
judges
imposed
non-government
sponsored below range sentences at
generally lower rates. Five out of six
Southern Illinois judges had rates of
approximately 25 percent and under.

102

BOOKER REPORT 2012: PART A

Western New York is an
example of a district in which the
spread in the rates was similar during
all four periods. The bubble plot
shows a slight increase in the height of
the bubbles during the Gall period,
indicating an increase in the rate of
non-government sponsored below
range sentences and a small increase in
the spread. The size of the bubbles
also shows that during the Gall period,
the two judges with the highest rates of
non-government sponsored below
range sentences had sizeable caseloads.

On average, judges in Western
New York granted reductions of more
than 40 percent below the guideline
minimum during the PROTECT Act,
Booker, and Gall periods. However,
there was a relatively large amount of
variation among judges.

103

BOOKER REPORT 2012: PART A

In some districts, the spread in
the rates of non-government sponsored
below range sentences was smallest
during the Gall period. In the District of
Nebraska, for example, the spread
contracted considerably during the Gall
period compared to the Booker period
because a number of judges with
relatively large caseloads increased their
non-government sponsored below range
rates.

In other districts (for example
several districts along the Southwest
border) the spread in the rates of nongovernment sponsored below range
sentences contracted during the Gall
period, likely reflecting the impact of
government sponsored EDP departures.
The District of Arizona plot illustrates
this pattern. As in other districts, the
extent of the reduction from the
guideline minimum in the District of
Arizona has remained relatively constant
over time.
In sum, whether the spread in the
rates of non-government sponsored
below range sentences has expanded,
contracted, or remained consistent over
time has varied by district; however, in
two-thirds of districts the spread in the
rates of non-government sponsored
below range sentences was smallest
during the PROTECT Act period and
greatest during the Gall period. This
increased intra-district variation in nongovernment sponsored below range rates
indicates that sentencing outcomes
increasingly depend upon the judge to
whom the case is assigned, within and
across districts, and signals diminishing
certainty and uniformity in federal
sentencing.

104

BOOKER REPORT 2012: PART A

Appellate review has not promoted uniformity in
sentencing to the extent the Supreme Court
anticipated in Booker.
In Booker, the Supreme Court excised the
portion of the sentencing statutes setting forth a de
novo standard of review of sentences on appeal. The
Court effectively restored the pre-PROTECT Act
standard of review, which provided for review of
sentences for reasonableness.
The Court
acknowledged that appellate review of sentences for
reasonableness would not “provide the uniformity that
Congress originally sought to secure,” but nonetheless
anticipated that appellate review “would tend to iron
out sentencing differences.”432 Appellate review,
however, has not promoted uniformity in sentencing to
the extent anticipated in Booker, and the Commission
has identified several reasons for this result.
First, and most significantly, offenders with
similar offense conduct and similar criminal history
increasingly have received different sentences, and
reasonableness review on appeal has not ironed out
these substantive differences. A review of case law
reveals that, in the wake of Booker, sentencing judges
apply the section 3553(a) factors differently. Some
judges give substantial weight to the characteristics of
the offender, including those that, consistent with
section 994 of Title 28, the Commission has deemed
ordinarily not relevant at sentencing.433 Some judges
view certain characteristics as grounds for decreasing
the sentence, while others do not.434 Other judges
consider such factors, but accord greater weight to the
Commission’s guidelines and policy statements.435
432

Booker, 543 U.S. at 263.

433

See, e.g., United States v. Tomko, 562 F.3d 558 (3d Cir.
2009) (reviewing the district court’s decision to take into
account the defendant’s employment history in reducing his
sentence for tax fraud).

434

See, e.g., United States v. Feemster, 572 F.3d 455, 46566 (8th Cir. 2009) (Riley, J., concurring), 467-96 (Colloton,
J., concurring).

435

Compare United States v. Jackson, 300 F. App’x 428
(7th Cir. 2008) (affirming district court decision to sentence
defendant within advisory guideline range after rejecting his
request to vary from career offender guideline, where the
district court concluded that the defendant was “young and
impulsive and very dangerous” and “very much deserve[d]”
the characterization of career offender), with United States

Still other judges categorically reject certain guidelines
and policy statements.436
The fact that judges hold different views with
respect to the importance of various sentencing factors
raises a host of reasonableness issues at the appellate
stage; indeed according to Commission data,
reasonableness issues constituted a significant
proportion of all sentencing issues raised on appeal in
fiscal year 2011.437 Consistent with recent Supreme
Court case law, appellate courts have afforded district
court decisions great deference and have rarely
reversed sentences on substantive reasonableness
v. Maloney, 446 F.3d 663 (8th Cir. 2006) (reversing district
court decision to sentence the defendant, which the court
had concluded was a career offender and an armed career
criminal, below the guideline range based on the
defendant’s youthful age of 22 years and the court’s view
that “a longer sentence would undermine his chances at
rehabilitation”). See also Feemster, 572 F.3d at 468
(Colloton, J., concurring) (“The [sentencing] judge in this
case thought Feemster’s ‘troubled youth’ was largely
mitigating, and elected to impose the statutory minimum
sentence. Other reasonable federal judges will believe that
the Sentencing Commission was correct to declare a policy
that age, including youth, is ordinarily not relevant to
sentencing, USSG §5H1.1, and that a relatively youthful
drug trafficking offender with a serious criminal history
should be sentenced at or near the statutory maximum in
accordance with the career offender guideline. The
offender’s punishment in these career offender cases . . .
will depend substantially on the luck of the judicial draw.”)
(internal citations omitted).
436

See, e.g., United States v. Grober, 624 F.3d 592 (3d Cir.
2010) (affirming district court’s categorical disagreement
with USSG §2G2.2); United States v. Corner, 598 F.3d 411
(7th Cir. 2010) (concluding that a district court may vary
based on disagreement with the career offender guideline:
“Because §4B1.1 is just a Guideline, judges are as free to
disagree with it as they are with §2D1.1(c) (which sets the
crack/powder ratio). No judge is required to sentence at
variance with a Guideline, but every judge is at liberty to do
so.”).

437

Out of 13,085 discrete sentencing issues raised by
defendants, 4,547 were related to reasonableness, and 1,405
were related to the section 3553(a) factors. Out of a total of
92 discrete sentencing issues raised by the government and
decided by the circuit courts in fiscal year 2011, 18 related
to reasonableness issues, and 11 related to the section
3553(a) factors. See Part B, available online, for a full
explanation of how the Commission collects appeals data.

105

BOOKER REPORT 2012: PART A
grounds. Furthermore, a case review of certain
offense types suggests that the substantive outcome of
the appeals that address reasonableness has differed
depending on the circuit. In child pornography and
fraud appeals, panels of judges in different circuits
have reached different outcomes regarding the
reasonableness of similar sentences.438
Differences in appellate review procedures
among the circuits further limit the appellate courts’
ability to iron out sentencing differences. Some
circuits have applied a presumption of reasonableness
to review of within range sentences, and others have
not.439 Some circuits have required district courts to
address guideline departure arguments, while other

circuits have not. One circuit has declared departures
“obsolete,” while the other circuits have continued to
view proper federal sentencing practice as a three-step
process.
Finally, the role appellate review can play in
promoting nationwide uniformity in sentencing is
limited because only a small percentage of sentences
are appealed. As seen in the figure on the next page,
while the number of offenders sentenced has
increased, the number of sentencing appeals decided
each year has remained relatively flat, and has been
less than 10 percent since Booker.440 Even more
significantly, the number of government-initiated
appeals has declined since Booker.441

438

440

In child pornography non-production offenses, compare
United States v. Autery, 555 F.3d 864 (9th Cir. 2009)
(affirming as substantively reasonable below range sentence
of five years of probation for possession of child
pornography, where the guidelines range was 41-51 months
of imprisonment), with United States v. Pugh, 515 F.3d
1179 (11th Cir. 2008) (reversing as substantively
unreasonable below range sentence of five years of
probation for possession of child pornography, where the
guidelines range was 97-120 months of imprisonment). For
fraud offenses, compare United States v. Edwards, 595 F.3d
1004 (9th Cir. 2010) (affirming as substantively reasonable
below range sentence of five years of probation, where the
guidelines range was 27-33 months of imprisonment for the
defendant’s crimes of bankruptcy fraud and making a false
statement to a bank), with United States v. Givens, 443 F.3d
642 (8th Cir. 2006) (reversing below range sentence of
supervised release including 12 months of house arrest for
bank fraud defendant facing 24-30 months of
imprisonment).

439

Compare United States v. Dorcely, 454 F.3d 366 (D.C.
Cir. 2006) (applying presumption of reasonableness);
United States v. Green, 436 F.3d 449 (4th Cir. 2006)
(same); United States v. Alonzo, 435 F.3d 551 (5th Cir.
2006) (same); United States v. Williams, 436 F.3d 706 (6th
Cir. 2006) (same); United States v. Mykytiuk, 415 F.3d 606
(7th Cir. 2005) (same); United States v. Lincoln, 413 F.3d
716 (8th Cir. 2005) (same); United States v. Kristl, 437 F.3d
1050 (10th Cir. 2006), with United States v. Jimenez-Beltre,
440 F.3d 514 (1st Cir. 2006) (declining to apply
presumption of reasonableness); United States v. Fernandez,
443 F.3d 19 (2d Cir. 2006); United States v. Cooper, 437
F.3d 324 (3d Cir. 2006), abrogated on other grounds as
recognized in United States v. Wells, 279 F. App’x 100 (3d
Cir. 2008); United States v. Carty, 520 F.3d 984 (9th Cir.
2008); United States v. Hunt, 459 F.3d 1180 (11th Cir.
2006).

See also Nancy J. King & Michael E. O’Neill, Appeal
Waivers and the Future of Sentencing Policy, supra note
365 (“Based on interviews and an analysis of data coded
from 971 randomly selected cases sentenced under the
United States Sentencing Guidelines, the study’s findings
include (1) in nearly two-thirds of the cases settled by plea
agreement, the defendants waived their rights to review[]”).]

441

At the Commission’s regional public hearings, several
prosecutors testified that the government has curtailed its
appeal of low sentences because of the deferential standard
of review. U.S. Sent’g Comm’n Public Regional Hearing
on the 25th Anniversary of the Passage of the Sentencing
Reform Act of 1984, Denver, CO (Oct. 20-21, 2009)
(Testimony of the Honorable B. Todd Jones, United States
Attorney, District of Minnesota, transcript at 155-56); U.S.
Sent’g Comm’n Public Regional Hearing on the 25th
Anniversary of the Passage of the Sentencing Reform Act of
1984, Denver, CO (Oct. 20-21, 2009) (Testimony of the
Honorable David M. Gaouette, United States Attorney,
District of Colorado, transcript at 166); U.S. Sent’g Comm’n
Public Regional Hearing on the 25th Anniversary of the
Passage of the Sentencing Reform Act of 1984, Chicago, IL
(Sept. 9-10, 2009) (Testimony of the Honorable Patrick J.
Fitzgerald, United States Attorney, Northern District of
Illinois, transcript at 247); U.S. Sent’g Comm’n Public
Regional Hearing on the 25th Anniversary of the Passage of
the Sentencing Reform Act of 1984, New York, NY (July. 910, 2009) (Testimony of the Honorable Dana Boente,
United States Attorney, District of Eastern District of
Virginia, transcript at 315-16); U.S. Sent’g Comm’n Public
Regional Hearing on the 25th Anniversary of the Passage of
the Sentencing Reform Act of 1984, New York, NY (July 910, 2009) (Testimony of the Honorable Benton J. Campbell,
United States Attorney, Eastern District of New York,
transcript at 317-18). Prosecutors voiced concerns about the
ability of the reasonableness standard of review to prevent
disparities in sentencing. See, e.g., U.S. Sent’g Comm’n
Public Regional Hearing on the 25th Anniversary of the

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BOOKER REPORT 2012: PART A

In each year, defendant-initiated
appeals far outnumber both governmentinitiated appeals and cases in which
cross appeals were filed. The bars
depicting government-initiated appeals
and cross appeals are barely visible on
the first bar chart, which has been scaled
to accurately depict defendant-initiated
appeals. The second bar chart shows
government-initiated and cross appeals
only on a different scale to make the
government-initiated and cross appeals
visible.
In sum, at least four factors
significantly limit the role of appellate
review post-Booker in promoting
national uniformity in sentencing: the
different views held by judges with
respect to the importance of various
factors,
including
offender
characteristics and the guidelines, under
section 3553(a); the deferential standard
of review; the lack of uniform
procedures among the circuits; and the
relatively low number of sentencing
appeals.

Passage of the Sentencing Reform Act of 1984, Austin, TX
(Nov. 19-20, 2009) (Statement of the Honorable Joyce W.
Vance, United States Attorney, Northern District of
Alabama, written statement at 2-3).

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BOOKER REPORT 2012: PART A

Demographic factors (such as race,
gender, and citizenship) were
associated with sentence length at
higher rates in the Gall period than
in previous periods.
The Commission’s multivariate
regression analyses, updated with data
through fiscal year 2011 for this report,
showed that sentence length has been
associated with some demographic
factors.442 For example, sentence length
for Black male offenders exceeded
sentence length for White male offenders
by 19.5 percent in the Gall period. In
contrast, the difference was 15.2 percent
in the Booker period, and 5.5 percent
during the PROTECT Act period. For
Hispanic male offenders and Other
Race443 male offenders sentenced during
the Gall period, there was no statistically
significant difference in sentence length
compared to White male offenders.
Female offenders of all races
received shorter sentences than White
male offenders during all four periods
studied. Sentences for White female
offenders were 31.1 percent shorter than
for White male offenders during the Gall
period. Sentences for Black female
offenders were 33.1 percent shorter than
sentences for White male offenders
during the Gall period. For Hispanic
females the difference was 18.2 percent, and for Other
Race females, the difference was 34.6 percent.
Additional analysis also showed demographic
differences in the likelihood of receiving a nongovernment sponsored below range sentence. During
the PROTECT Act, Booker, and Gall periods, Black
male offenders were at least 20 percent less likely to
442

See supra at 57 for a discussion of the limitations of
multivariate regression analysis and examples of factors for
which no data is readily available in the Commission’s
datasets.

443

“Other Race” includes American Indians and Alaskan
Natives, Asians and Pacific Islanders, Multi-racial, Non-US
American Indians (e.g., Canadian Indians), and other nonspecified races.

receive a non-government sponsored below range
sentence than White male offenders. However, when
Black male offenders did receive a non-government
sponsored below range sentence during the Gall
period, there was no statistically significant difference
in sentence length.444 Hispanic male offenders were
also less likely to receive a non-government sponsored
below range sentence in all periods, and were 31.6
percent less likely to do so in the Gall period.445
444

During the Booker period, the sentences of Black male
offenders receiving non-government sponsored below range
sentences were 12.3% longer than those of White male
offenders receiving non-government sponsored below range
sentences. There was no statistically significant difference
during any other period. The graph depicting this analysis
is in Part E, available online.

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BOOKER REPORT 2012: PART A

Demographic differences also
were observed in sentence length for
specific offense types (only fraud,
firearms, and drug trafficking offenses
had sufficient case numbers in each of
the various demographic groups studied
to conduct the analysis), but the
differences did not follow a uniform
pattern. In fraud offenses, for example,
there was no statistically significant
difference in sentence length for Black
male and White male offenders during
the Gall period. Differences in sentence
lengths between White, Black, and
Hispanic female fraud offenders and
White male fraud offenders were
significant in some, but not all of the
periods studied.

In contrast, in firearms
offenses, sentences for Black male
offenders were 10.2 percent longer
than sentences for White male
offenders.

445

During the Gall period, the sentences of Hispanic male
offenders receiving non-government sponsored below range
sentences were 9.3% longer than those of White male
offenders receiving non-government sponsored below range
sentences. There was no statistically significant difference
during any other period.

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BOOKER REPORT 2012: PART A
Statistically significant differences
in sentence length for Black male and
White male drug trafficking offenders
were present during the Koon and Booker
periods, but the greatest difference
occurred during the Gall period. White
female, Black female, and Hispanic
female drug trafficking offenders received
shorter sentences than White male drug
trafficking offenders during all four
periods.
The Commission’s analysis of
changes in sentence length for each race
and gender pairing across periods revealed
some demographic differences.
For
example, White male and female
offenders, Black male and female
offenders, Hispanic male offenders, and
Other Race male offenders all received shorter
sentences during the Gall period than during the
Booker period, whereas the sentences for Hispanic
female offenders and Other Race female offenders did
not decrease. The decreases in sentence length during
the Gall period also were not evenly distributed among
race/gender pairs. The sentences for White female
offenders were 14.9 percent shorter during the Gall
period compared to the Booker period, whereas the
sentences for White male offenders were 5.5 percent
shorter. The sentences for Black female offenders
were 11.8 percent shorter during the Gall period
compared to the Booker period, while the sentences of
Black male offenders were 3.6 percent shorter during
the Gall period.

In conclusion, although sentence length for
both Black male and female offenders and White male
and female offenders have decreased over time, White
offenders’ sentence length has decreased more than
Black offenders’ sentence length. Additionally, while
Black male offenders received sentences that were not
statistically different from those of White male
offenders when both groups received non-government
sponsored below range sentences, Black male
offenders have been at least 20 percent less likely to
receive a non-government sponsored below range
sentence in the first instance. Hispanic male offenders
also have been less likely than White male offenders to
receive a non-government sponsored below range
sentence.

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BOOKER REPORT 2012: PART A

Recommendations

The Commission continues to believe that a
strong and effective guidelines system best serves the
purposes of the SRA. The importance of achieving the
goals of the SRA is heightened as the number of
federal offenders steadily increases over time. In
fiscal year 1996, there were 37,091 federal offenders,
compared to 76,216 in fiscal year 2011. The number
of inmates housed by the federal BOP has more than
doubled, from just below 100,000 in 1996, to more
than 200,000 in 2011.446 Of note, post-Booker, most
federal offenders have continued to receive substantial
sentences of imprisonment without any alternative to
incarceration. In fiscal year 2011, 87.8 percent of
federal offenders were sentenced to serve a term of
imprisonment only, compared to 76.9 percent in fiscal
year 1996.
The continued importance and influence of the
guidelines on sentencing decisions is evident from
both Supreme Court decisions and sentencing data, as
the overwhelming majority of offenders – 80.7 percent
in the Gall period – still received a sentence either
within the guideline range or below the guideline
range for a reason sponsored by the government (most
often, but not always, congressionally authorized
reductions for substantial assistance to the government
or an expedited guilty plea pursuant to an EDP
approved by the Attorney General).
However, consistent with Supreme Court
precedent, sentencing decisions increasingly depend
upon consideration of the section 3553(a) factors other
than the guidelines (section 3553(a)(4)) and policy
statements (section 3553(a)(5)). The Commission’s
review of sentencing decisions suggests that judges
view similar circumstances and weigh the section
3553(a) factors differently, in particular individual
offender characteristics, much as they did during the
446

See supra note 393.

years leading up to the SRA. In the wake of these
changes, the Commission has observed both increasing
inconsistencies in sentencing practices – nationally,
locally, and by offense type – and widening
demographic differences in sentencing.
The
Commission is concerned about these developments.
In reaching its recommendations in this report, the
Commission reviewed various alternative proposals
for sentencing reform and the criticisms levied against
those proposals, including the calls by some for
maintaining the status quo.447 The Commission
believes the trends demonstrated in this report are
troubling and should be addressed. At this time, the
Commission makes the following recommendations to
strengthen and improve the sentencing guidelines
system.

DEVELOP MORE ROBUST SUBSTANTIVE
APPELLATE REVIEW
The Commission proposes that Congress enact
a more robust appellate review standard. Appellate
review was a key component of sentencing reform in
the SRA. Congress envisioned that appellate review
of sentences would provide the Commission valuable
information on federal sentencing and ensure certain,
fair, and more uniform sentences. Since Booker,
where the Court anticipated that appellate review
would tend to “iron out” sentencing differences, the
role of appellate review remains unclear, the standards
inconsistent, and its effectiveness in achieving
uniformity in sentencing is increasingly questionable.

447

Many commentators have made alternative proposals for
sentencing reform. Some of these proposals and the
criticisms against them are discussed in detail in Part F,
available online.

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BOOKER REPORT 2012: PART A
The Commission recommends that Congress revitalize
appellate review in three ways.

Require a Presumption of Reasonableness for
Within Range Sentences on Appeal
Appellate courts should be required to
presume within range sentences to be substantively
reasonable.
The Supreme Court permits a
presumption of reasonableness for within range
sentences only on appeal. The SRA requires that
similarly situated defendants be treated similarly, and
this is hindered by the current appellate review
dichotomy between those circuits that have adopted
the presumption of reasonableness and those that have
not. It is already the practice in the majority of
circuits, including the Fourth, Fifth, Sixth, Seventh,
Eighth, Tenth, and District of Columbia Circuits.
Requiring the presumption of reasonableness in all
circuits would promote national sentencing uniformity
by facilitating review of sentences as the SRA
contemplated. An appellate review standard that
presumes within range sentences to be reasonable
reflects the fact that the Commission’s process for
promulgating guidelines results in “a set of Guidelines
that seek to embody the § 3553(a) considerations, both
in principle and in practice.”448

Require Greater Justification for Sentences
Substantially Outside the Guideline Range
Congress should require sentencing courts to
provide greater justification for sentences imposed the
further the sentence is from the otherwise applicable
guideline range.449 The greater a sentencing judge’s
variance from a guideline, the more compelling should
448

Rita, 551 U.S. at 350. See also Booker, 543 U.S. at 263264 (noting that “[t]he Sentencing Commission will
continue to collect and study appellate court
decisionmaking. It will continue to modify its Guidelines in
light of what it learns, thereby encouraging what it finds to
be better sentencing practices. It will thereby promote
uniformity in the sentencing process. . . . the
Sentencing Commission remains in place, writing
Guidelines, collecting information about actual district court
sentencing decisions, undertaking research, and revising the
Guidelines accordingly.”).

449

See Gall, 552 U.S. at 50.

be the judge’s justification for the variance.450 This
reform aligns with Supreme Court doctrine as stated in
Gall v. United States: it is “uncontroversial that a
major departure should be supported by a more
significant justification than a minor one.”451 Such
explanation would ensure that the vision of a
transparent system remains intact and would help
ensure that appellate review remains robust.452 As the
Court noted in Rita, “The sentencing judge should set
forth enough to satisfy the appellate court that he has
considered the parties’ arguments and has a reasoned
basis for exercising his own legal decisionmaking
authority.”453 Any legislative proposal to strengthen
the guidelines system should require heightened
justification for a sentence substantially outside the
guidelines.

Require Heightened Review of Sentences Based
on Policy Disagreements with the Guidelines
Congress should create a heightened standard
of review for sentences imposed based on a “policy
disagreement” with the guidelines. The Supreme
Court permitted policy-based variances in Kimbrough
and Spears. However, the Commission believes that
the current lack of rigorous appellate review of policy
disagreements undermines the role of the guidelines
system and risks increasing unwarranted sentencing
disparity as judges substitute their own policy
judgments for the collective policy judgments of
Congress and the Commission. Even in the course of
declaring that individual judges may categorically
disagree with the Commission’s policy decisions, the
Court recognized that “closer review may be in order
when the sentencing judge varies from the guidelines
based solely on the judge’s view that the guideline
range ‘fails properly to reflect § 3553(a)
considerations’ even in a mine-run case.”454 Judges
have varied backgrounds and policy preferences, and
450

See, e.g., United States v. Castillo, 695 F.3d 672 (7th
Cir. 2012).

451

Gall, 552 U.S. at 50.

452

See Rita, 551 U.S. at 357-358.

453

Id. at 356.

454

Kimbrough, 552 U.S. at 109 (quoting Rita, 551 U.S. at
352).

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BOOKER REPORT 2012: PART A
reducing unwarranted disparity requires that policybased variances be subject to heightened scrutiny.

RECONCILE THE STATUTES THAT RESTRICT THE
COMMISSION’S CONSIDERATION OF CERTAIN
OFFENDER CHARACTERISTICS WITH STATUTORY
INTERPRETATIONS THAT REQUIRE COURTS TO
CONSIDER MORE EXPANSIVELY THOSE SAME
OFFENDER CHARACTERISTICS.
Section 994 of Title 28 requires the
Commission to restrict the manner in which certain
offender characteristics can be considered in the
guidelines. In contrast, section 3553(a) of Title 18 has
been interpreted as instructing courts to give broad
consideration to some of the same offender
characteristics restricted by Title 28. The Commission
recommends that Congress clarify the relationship
between 28 U.S.C. § 994 and 18 U.S.C. § 3553(a). In
Rita, the Supreme Court recognized that “the
sentencing statutes envision both the sentencing judge
and the Commission as carrying out the same basic
§ 3553(a) objectives, the one, at retail, the other at
wholesale.”455
In the SRA, Congress specifically directed the
Commission to limit the role certain offender
characteristics would play at sentencing. Section
994(e) of Title 28 directs the Commission to “assure
that the guidelines and policy statements, in
recommending a term of imprisonment or length of a
term of imprisonment, reflect the general
inappropriateness of considering the education,
vocational skills, employment record, family ties and
responsibilities, and community ties of the
defendant.”456
Even where certain offender
characteristics may be relevant, Congress directed the
Commission to take them into account “only to the

455

Rita, 551 U.S. at 348. Moreover, a statute must be given
“‘the most harmonious, comprehensive meaning possible’
in light of the legislative policy and purpose,” Weinberger v.
Hynson, Westcott & Dunning, Inc., 412 U.S. 609, 631-32
(1973) (quoting Clark v. Uebensee Finanz-Korp, 332 U.S.
480, 488 (1947)), and it is normally presumed “that a
legislature says in a statute what it means and means in a
statute what it says there.” Connecticut Nat’l Bank v.
Germain, 503 U.S. 249, 253-54 (1992).

456

28 U.S.C. § 994(e).

extent that they do have relevance.”457 Accordingly the
Commission adopted several policy statements
limiting the relevance of certain offender
characteristics to the determination of whether a
sentence should be outside the applicable guideline
range in Chapter Five, Parts H and K of the Guidelines
Manual. The Commission determined that the factors
listed in 28 U.S.C. § 994(e) “are not ordinarily
relevant” to the determination of whether a sentence
should be outside the applicable guideline range, but
did not foreclose them from consideration in an
exceptional case or from consideration for determining
where to sentence the offender within the guideline
range.
The Commission recognized that the
guidelines could not capture every possible
circumstance about the offense or the offender, and
instead intended the guidelines to describe “a set of
typical cases embodying the conduct that each
guideline describes.” Offender characteristics could
always be considered to determine where within the
range to sentence an offender. Moreover, in the SRA,
Congress explicitly permitted sentences outside the
guideline range in cases in which “there exists an
aggravating or mitigating circumstance of a kind, or to
a degree, not adequately taken into consideration by
the Sentencing Commission in formulating the
guidelines.”458 Courts could always choose to depart
“where conduct significantly differs from the norm.”459
However, current law as interpreted by the Supreme
Court directs courts to consider broadly offender
characteristics (except those that would violate
constitutional principles) and judges increasingly
sentence offenders outside the range based on
characteristics such as education, employment history,
and family and community ties that not only fail to
distinguish the case from the norm, but, to the
contrary, are often present in the typical case.
Further, the fact that judges weigh section
3553(a)(1) factors differently results in substantial
sentencing disparities.
Both the historical
underpinnings of the SRA and current case law
demonstrate that judges weigh factors differently and
have widely divergent views about the relevance of
457

28 U.S.C. § 994(d).

458

See 18 U.S.C. § 3553(b); USSG §5K2.0.

459

USSG Ch.1, Pt.A(4)(b) (Apr. 13, 1987).

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BOOKER REPORT 2012: PART A
offender characteristics at sentencing. To the extent
the interaction between the SRA’s directives to the
Commission and its instructions to judges is unclear,
as is currently the case, unwarranted disparity becomes
inevitable.

CODIFY THE THREE-STEP PROCESS
The Commission recommends that Congress
codify the three-step sentencing process in which
sentencing courts begin by calculating the guideline
range, proceed to evaluate departures within the
guidelines, and only then consider the sentencing
factors listed at section 3553(a). Codification of the
three-step process would have the dual benefit of
working in concert with the substantial weight
amendment recommended below and of promoting
uniformity. Currently the Seventh Circuit does not
support the three-step process and instead has declared
departures “obsolete.” In other circuits, case law does
not state clearly whether the second step is necessary,
or states that consideration of departures is
unnecessary as long as the sentence is reasonable.
Codification of the three-step process would promote
uniformity in sentencing and may reduce unwarranted
disparity.
The importance of the second step, which
requires consideration of departure policy statements,
is often overlooked by parties and courts. This
development both deprives the courts from benefitting
from the Commission’s expertise provided in the
departure provisions and diminishes the quality of
feedback from the courts to the Commission regarding
offense
severity,
consideration
of
offender
characteristics, and other aspects of the guidelines.
The Commission finds that as courts increasingly rely
on the broad section 3553(a) factors without providing
the same level of specificity as required by departure
provisions, its ability to discern and respond to specific
areas of concern to the courts is hindered and
transparency is lessened. The Commission believes
that this trend is unlikely to be reversed unless the
three-step process is formally codified.

RESOLVE THE UNCERTAINTY ABOUT THE
WEIGHT TO BE GIVEN TO THE SENTENCING
GUIDELINES
Finally, the Commission believes that
Congress should require that courts give the guidelines
substantial weight. In Booker, the Supreme Court said
that courts must “consider” the properly determined
guideline range, but did not express exactly how much
weight the guidelines should be given. In Pepper v.
United States, the Supreme Court noted that the
guidelines are due “respectful consideration,” but,
citing Gall, declined to distinguish the guidelines and
policy statements as deserving any greater weight than
any of the other section 3553(a) factors.460 As a result,
the Commission is concerned that judges may give
insufficient weight to the guidelines relative to the
other section 3553(a) factors, which would contribute
to increasing sentencing disparity. The Commission
suggested in its October 2011 testimony that Congress
statutorily require district courts to give “substantial
weight” to the guidelines. Other possibilities include
“due regard” or the “respectful consideration” standard
adopted by the Court in Pepper.461
Regardless of the precise wording chosen, the
Commission believes Congress should impose one
uniform standard that conveys the importance of the
guidelines at sentencing. The guidelines “seek to
embody the § 3553(a) considerations, both in principle
and in practice” and they “reflect a rough
approximation of sentences that might achieve
§ 3553(a)’s objectives.”462 During the process of
developing the initial set of guidelines and refining
them throughout the ensuing years, the Commission
has considered the factors listed in section 3553(a) that
were cited with approval in Booker. By setting a
uniform standard for sentencing judges and resolving
existing uncertainty as to the weight sentencing judges

460

131 S. Ct. 1229, 1241 (2011) (“Finally, we note that
§§ 3553(a)(5) and (a)(6) describe only two of the seven
sentencing factors that courts must consider in imposing
sentence. At root, amicus effectively invites us
to elevate two § 3553(a) factors above all others. We reject
that invitation.”).

461

Id. at 1249.

462

Rita, 551 U.S. at 350.

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BOOKER REPORT 2012: PART A
should afford the guidelines, Congress would continue
to move sentencing policy in its preferred direction.




As envisioned by the SRA, the Commission
will continue to refine the guidelines in response to
feedback and information it receives, and remains
uniquely positioned to provide Congress and the
criminal justice community with advice and
information that will help further the goals of
sentencing. The guidelines will continue to be
evolutionary in nature, 463 as the Commission gathers
and analyzes data from actual practice, receives
feedback through testimony, sentencing and appellate
decisions, and various forms of public comment, and
revises the guidelines over time in response to this
feedback. Below range sentences continue to be an
important mechanism by which the Commission
receives feedback from courts regarding the operation
of the guidelines, and the Commission continues to
examine below range sentence rates to determine
whether the severity or proportionality of the
guidelines for particular offenses or offenders should
be adjusted. Such feedback from the courts enhances
the Commission’s ability to fulfill its ongoing statutory
responsibility under the SRA to periodically review
and revise the guidelines.464
The Commission continues to believe that a
strong and effective guidelines system best serves the
purposes of the SRA. The Commission believes that
the recommendations described in this report, if
adopted by Congress, would promote those goals,
although it recognizes that more substantial reforms
may be necessary in the future if unwarranted
disparities persist despite such measures.
The
Commission stands ready to work with Congress, the

federal judiciary, the executive branch, and others in
the federal criminal justice community to ensure
certain and fair sentencing that avoids unwarranted
sentencing disparities while maintaining sufficient
flexibility to permit individualized sentences when
warranted.465


463

USSG Ch.1, Pt.A, intro. comment. (“The Commission
emphasizes, however, that it views the guideline-writing
process as evolutionary. It expects, and the governing
statute anticipates, that continuing research, experience, and
analysis will result in modifications and revisions to the
guidelines through submission of amendments to
Congress.”). See also Stephen Breyer, Key Compromises,
supra note 138, at 8.

464

465

See 28 U.S.C. § 991(b)(1)(B).

115