Final Report on the Impact of United States v. Booker On Federal Sentencing, US Sentencing Commission, 2006

Final Report on the Impact of United States v. Booker On Federal Sentencing, US Sentencing Commission, 2006

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

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Final Report on the Impact of
United States v. Booker
On Federal Sentencing

UNITED STATES SENTENCING COMMISSION
March 2006

FINAL REPORT ON THE IMPACT OF
UNITED STATES v. BOOKER
ON FEDERAL SENTENCING

Ricardo H. Hinojosa
Chair
Ruben Castillo
Vice Chair
William K. Sessions III
Vice Chair
John R. Steer
Vice Chair
Michael E. Horowitz
Commissioner
Beryl A. Howell
Commissioner
Michael J. Elston
(ex officio)
Edward F. Reilly, Jr.
(ex officio)

TABLE OF CONTENTS
Executive Summary......................................................................................................... iv
A.
B.
C.
D.

INTRODUCTION ....................................................................................................... iv
POST-BOOKER APPELLATE JURISPRUDENCE .............................................................v
IMPLEMENTATION OF THE ADVISORY GUIDELINE SYSTEM .......................................v
FINDINGS FROM DATA ANALYSIS ........................................................................... vi
1.
National Sentencing Trends.......................................................................... vi
2.
Regional and Demographic Differences in Sentencing Practices............... viii
3.
Specific Sentencing Issues............................................................................ ix
a.
Cooperation Reductions without a Government Motion .................. ix
b.
Sex Offenses ..................................................................................... ix
c.
Crack Cocaine Offenses......................................................................x
d.
First Offenders ....................................................................................x
e.
Career Offenders.................................................................................x
f.
Early Disposition Programs .............................................................. xi
CONCLUSION........................................................................................................... xi

Chapter 1
INTRODUCTION ............................................................................................................1
A. OVERVIEW OF REPORT ..............................................................................................1
B. HISTORICAL DEVELOPMENT OF THE FEDERAL SENTENCING GUIDELINE SYSTEM....2
1.
The Statutory Requirements of the Sentencing Reform Act ..........................2
2.
Promulgation of the Sentencing Guidelines ...................................................5
C. LEGAL CHALLENGES TO THE OPERATION OF THE GUIDELINES .................................7
D. THE SUPREME COURT’S DEVELOPING SIXTH AMENDMENT JURISPRUDENCE............9
E. THE BLAKELY DECISION AND ITS RESULTING IMPACT ON THE FEDERAL
SENTENCING GUIDELINE SYSTEM ...........................................................................12
F. UNITED STATES V. BOOKER ....................................................................................14

Chapter 2
POST-BOOKER APPELLATE JURISPRUDENCE.....................................................20
A. INTRODUCTION .......................................................................................................20
B. APPLICATION AND INTERPRETATION OF THE GUIDELINES.......................................20
C. APPLICATION OF THE 18 U.S.C. § 3553(a) FACTORS ..............................................23
D. REASONABLENESS REVIEW.....................................................................................24
E. JURISDICTION ..........................................................................................................31
F. OTHER APPELLATE SENTENCING ISSUES ................................................................32
1.
Crack and Powder Cocaine...........................................................................32
2.
Early Disposition Programs ..........................................................................33
G. STATUTORY PENALTY SCHEMES .............................................................................33
1.
Armed Career Criminal Act..........................................................................33

2.
Mandatory Minimum Sentences ...................................................................34
APPELLATE COURT JURISPRUDENCE CONTINUES TO EVOLVE.................................35

Chapter 3
IMPLEMENTATION OF THE ADVISORY GUIDELINE SYSTEM.........................37
A. EMPHASIS ON DOCUMENT SUBMISSION REQUIREMENTS ........................................37
B. REAL-TIME DATA COLLECTION AND REPORTING ...................................................38
C. TESTIMONY BEFORE CONGRESS .............................................................................40
D. PUBLIC HEARING ON THE PRESENT AND FUTURE IMPACT OF BOOKER
ON FEDERAL SENTENCING ......................................................................................41
E. GUIDELINES EDUCATION AND TRAINING ................................................................42

Chapter 4
ANALYSIS OF COMMISSION SENTENCING DATA: TRENDS IN
FEDERAL SENTENCING PRACTICES......................................................................44
A. INTRODUCTION .......................................................................................................44
B. MAJOR FINDINGS ....................................................................................................46
C. ASSESSING TRENDS IN FEDERAL SENTENCING PRACTICES .....................................47
1.
Introduction...................................................................................................47
2.
Changes in Rates of Within-Range and Out-of-Range Sentences................49
a.
The Impact of Events Prior to the PROTECT Act ...........................49
b.
The PROTECT Act...........................................................................52
c.
The Immediate Effect of Booker on Rates of Within-and
Out-of-Range Sentences ...................................................................57
3.
Changes in the Extent that Below-Range Sentences
Fall below the Range ....................................................................................63
4.
Changes in Sentence Length and the Use of Alternatives
to Imprisonment ............................................................................................69
a.
Changes in Average Recommended and Imposed
Sentence Lengths ..............................................................................69
b.
Changes in Sentence Type ................................................................73
c.
Changes in Sentence Length.............................................................75
D. FACTORS RELIED UPON AND REASONS CITED FOR IMPOSITION OF
BELOW-RANGE SENTENCES ....................................................................................77
1.
Factors relied upon for imposition for below-range sentences.....................77
2.
Reasons cited for imposition for below-range sentences..............................78

Chapter 5
ANALYSIS OF COMMISSION SENTENCING DATA: REGIONAL AND
DEMOGRAPHIC DIFFERENCES IN FEDERAL SENTENCING PRACTICES.......84
A. INTRODUCTION AND MAJOR FINDINGS ...................................................................84
B. DIFFERENCES IN CIRCUIT AND DISTRICT SENTENCING PRACTICES .........................85
1.
Differences in Circuit Sentencing Practices .................................................86
2.
Differences in District Sentencing Practices.................................................89

DEMOGRAPHIC DIFFERENCES IN FEDERAL SENTENCING PRACTICES ....................105
1.
Use of Multivariate Analysis ......................................................................105
2.
Results.........................................................................................................106

Chapter 6
ANALYSIS OF COMMISSION DATA: IMPACT OF BOOKER ON SPECIFIC
OFFENSE-AND OFFENDER-ISSUES.......................................................................110
A. INTRODUCTION .....................................................................................................110
B. FINDINGS ..............................................................................................................110
1.
Cooperation Reductions without a Government Motion ............................110
2.
Sex Offenses ...............................................................................................110
3.
Crack Cocaine Offenses..............................................................................111
4.
First Offenders ............................................................................................112
5.
Career Offenders.........................................................................................112
6.
Early Disposition Programs ........................................................................112
C. COOPERATION REDUCTIONS WITHOUT A GOVERNMENT MOTION .......................112
D. SEX OFFENSES ......................................................................................................115
1.
Criminal Sexual Abuse Offenses ................................................................116
2.
Sexual Exploitation Offenses......................................................................122
E. CRACK COCAINE OFFENSES ..................................................................................126
F. FIRST OFFENDERS AND CAREER OFFENDERS ........................................................131
1.
First Offenders ............................................................................................132
2.
Career Offenders.........................................................................................136
G. EARLY DISPOSITION PROGRAMS AND OTHER “FAST TRACK”
SENTENCING PRACTICES .......................................................................................140
Chapter 7
CONCLUSION.............................................................................................................143
APPENDIX
A.
B.
C.
D.
E.

Statement of Reasons form (A0245B (rev. 06/05)) ............................. A-1
Methodology for Data Collection and Analysis ...................................B-1
Summary of the Public Hearing Testimony..........................................C-1
Commission, Special Post-Booker Coding Project
One Year Report .................................................................................. D-1
Figures and Tables ................................................................................E-1

iii

Executive Summary
A.

INTRODUCTION

This report assesses the impact of United States v. Booker1 on federal sentencing. The
report is prepared pursuant to the general statutory authority of the United States Sentencing
Commission (the “Commission”) under 28 U.S.C. §§ 994-995, and the specific responsibilities
enumerated in 28 U.S.C. § 995(a)(14) and (15), which require the Commission to publish data
concerning the sentencing process and to collect and systematically disseminate information
concerning the actual sentences imposed and the relationship of such sentences to the factors set
forth in 18 U.S.C. § 3553(a).
On June 24, 2004, the Supreme Court decided Blakely v. Washington,2 invalidating a
sentence imposed under the State of Washington’s sentencing guideline system. The Supreme
Court held that the Washington guidelines violated the right to trial by jury under the Sixth
Amendment of the United States Constitution. Although the Court stated that it expressed no
opinion on the federal sentencing guidelines,3 the decision had an immediate impact on the
federal criminal justice system. Following Blakely, district and circuit courts voiced varying
opinions on the implication of the decision for federal sentencing and no longer uniformly
applied the sentencing guidelines.
On January 12, 2005, the Supreme Court decided Booker, applying Blakely to the federal
guideline system and determining that the mandatory application of the federal sentencing
guidelines violated the right to trial by jury under the Sixth Amendment. The Court remedied
the Sixth Amendment violation by excising the provisions in the Sentencing Reform Act that
made the federal sentencing guidelines mandatory, thereby converting the mandatory system that
had existed for almost 20 years into an advisory one.
The uniformity that had been a hallmark of mandatory federal guideline sentencing no
longer was readily apparent as courts began to address new issues raised by Booker. For
example, some district courts began to consider only facts proved beyond a reasonable doubt at
sentencing, reasoning that Booker required this elevated standard. Others continued to apply the
preponderance standard generally accepted before Booker. Some district courts continued to use
settled procedures for imposing sentences; others created new procedures to implement the
decision. Some district courts fashioned sentences without any consideration of the applicable
guideline range. In fashioning a sentence outside the applicable guideline range, some district
courts decided to forego an analysis of whether a departure under the guidelines would be
warranted and instead relied only on Booker to impose the sentence. The majority of district
courts, however, considered the applicable guideline range first, considered guideline departure
reasons under the guidelines, and then decided whether consideration of the factors listed in 18
U.S.C. § 3553(a) warranted imposition of an out-of-range sentence. While some of these
questions have been answered by the courts of appeal, others remain unresolved.

543 U.S. 220 (2005).
542 U.S. 296 (2004).
3
Id. at 304, n.9.
2

POST-BOOKER APPELLATE JURISPRUDENCE

As Chapter 2 illustrates, the appellate case law remains at an early stage of development.
Requirements for the adequacy and specificity of the reasons for sentences provided by
sentencing judges are just now beginning to take shape. Appellate jurisprudence setting forth the
reasons that will, or will not, be considered reasonable for imposing a sentence outside the
guideline range has just begun to emerge. However, the system has begun to settle as the
appellate courts decide issues arising after Booker. For example, the circuit courts now have
uniformly agreed that all post-Booker sentencing must begin with calculation of the applicable
guideline range. As each respective circuit arrived at this conclusion, the district courts in that
circuit began to use more uniform procedures to impose sentences. Six circuits ― the Fourth,
Fifth, Sixth, Seventh, Eighth, and Tenth ― now have held that a sentence within the properly
calculated guideline range is presumptively reasonable. Only one circuit has concluded that a
sentence within the properly calculated guideline range is unreasonable. As appellate
jurisprudence evolves, uncertainties are resolved, the system becomes more predictable, and a
more complete picture of the impact of Booker on federal sentences can be developed.
C.

IMPLEMENTATION OF THE ADVISORY GUIDELINE SYSTEM

A lack of uniformity that existed pre-Booker in the reporting of sentencing information to
the Commission, especially the reporting of reasons for the sentence imposed, was exacerbated
post-Booker. Statutory amendments made by The Prosecutorial Remedies and Other Tools to
end the Exploitation of Children Today (PROTECT) Act of 20044 required courts to submit
sentencing documentation to the Commission, including the statement of reasons for imposing a
particular sentence. Courts were not required, however, to use a standard form for reporting
those reasons, although the Judicial Conference of the United States had developed a form for
such use. The form, including all of its early iterations that existed prior to Booker, was not
adequate to fully capture sentencing decisions made post-Booker.
As will be discussed in further detail in Chapter 3, the Judicial Conference, working
closely with the Commission, revised the Statement of Reasons form5 to encapsulate postBooker changes in the sentencing guideline system. The revised form, approved in June, 2005,
allows for a more complete picture of post-Booker sentencing practices. However, the revised
form was not adopted until 6 months after the decision. Consequently, for the 6-month period
preceding adoption of the revised form, courts used old forms, modified the forms, or created
their own. Much of the improvement brought by the revised form, therefore, was not
immediately realized. Moreover, use of the revised form has not been adopted by all courts. As
of the date of this report, approximately two-thirds of the 94 federal districts have implemented
use of the revised form to varying degrees.6
4

Pub. L. No. 108–21, 117 Stat. 650, hereinafter the “PROTECT Act.” See also 28 U.S.C. § 994(w) and 18 U.S.C.
§ 3553(c).
5
See Statement of Reasons AO245B (Rev. 06/05), reproduced in Appendix A.
6
The advisory committee for the Federal Rules of Criminal Procedure has taken steps to impose uniformity with
respect to use of the statement of reasons form. See Proposed Rules Change to Fed. R. Crim. P. 32
(Judgment)(proposing to amend Rule 32(k) to require courts to use the judgment form, which includes the statement
of reasons form, prescribed by the Judicial Conference of the United States). Congress also has taken steps to
address this documentation issue through the Patriot Act conference report. See sec. 735 of H.Rep. 109–174, Pt. I

Such changes in practice and procedure have had an impact upon the Commission’s data
collection and analysis. One of the assumptions upon which the Commission’s historical
analysis of data is based is the relatively uniform application of the guidelines. This assumption
is not necessarily valid after Booker. The differences in practice and procedure that resulted
from Booker are not entirely quantifiable, and this impacts the quality of the data collected.
Booker also necessitated changes in the methodology used by the Commission in the
collection and analysis of the data. The Commission had to refine the categorization of
sentences in relation to the final guideline range.7 The new methodology implemented in
response to Booker uses 11 categories designed to collect and report the nuances of sentencing
under the advisory guideline system. Despite the Commission’s best attempt to devise rigorous
and specific categories, the categorization itself has limitations, and incomplete or unclear
documentation often makes it difficult to characterize individual cases as falling into these
categories. Moreover, because the reliability of any analyses conducted by the Commission
directly correlates to the quality of the information collected, the results reported herein may not
provide a complete picture of the system’s adaptation to advisory guidelines.
D.

FINDINGS FROM DATA ANALYSIS

For the reasons described in Part C of this executive summary, some degree of caution
should be exercised in drawing conclusions from the post-Booker data collected and analyzed
thus far. Nevertheless, a number of conclusions reasonably can be drawn and are described in
Chapters 4 through 6.
1.

National Sentencing Trends

Chapter 4 of this report details the results of the Commission’s data analyses of the
impact of Booker generally on federal sentencing. For ease of discussion, the terms “withinrange,” “above-range,” and “below-range” are used throughout this report to describe sentences
in relation to the applicable guideline range. Many of the analyses in Chapter 4 compare
historical guideline trends and trends in the post-Booker system. In sum, these analyses yielded
the following findings:8
•

The majority of federal cases continue to be sentenced in conformance with the
sentencing guidelines. National data show that when within-range sentences and
government-sponsored, below-range sentences are combined, the rate of
sentencing in conformance with the sentencing guidelines is 85.9 percent. This
conformance rate remained stable throughout the year that followed Booker. The

2005 (requiring submission by courts of a “written statement of reasons form issued by the Judicial Conference and
approved by the United States Sentencing Commission.”).
7
For a comprehensive discussion of the new methodology, see Appendix B.
8
Unless otherwise noted, findings discussed throughout this report are based on data contained in Commission,
Special Post-Booker Coding Project One Year Report, contained in Appendix D.

conformance rate in the pre-PROTECT Act period was 90.6 percent.
conformance rate in the post-PROTECT Act period was 93.7 percent.9

The

•

The severity of sentences imposed has not changed substantially across time. The
average sentence length after Booker has increased.

•

With respect to within-range sentences, patterns for selecting the point at which to
sentence within the range are unchanged after Booker. Approximately 60 percent
of within-range sentences are still imposed at the minimum, or bottom, of the
applicable guideline range.

•

The rate of imposition of sentences of imprisonment has not decreased.
Offenders are still being incarcerated in the vast majority of cases.

•

The rate of imposition of above-range sentences doubled to a rate of 1.6 percent
after Booker.

•

The rate of government-sponsored, below-range sentences has increased slightly
after Booker to a rate of 23.7 percent, with substantial assistance departures
accounting for 14.4 percent, Early Disposition Program departures accounting for
6.7 percent, and other government-sponsored downward departures accounting
for 2.6 percent.

•

The rate of imposition of non-government-sponsored, below-range sentences has
increased after Booker to a rate of 12.5 percent.

•

In approximately two-thirds of cases involving non-government-sponsored,
below-range sentences, the extent of the reductions granted are less than 40
percent below the minimum of the range. Courts have granted small sentence
reductions, of 9 percent or less, at a higher rate after Booker than before. Courts
have granted 100 percent sentence reductions, to probation, at a lower rate after
Booker than before.

•

The imposition of non-government-sponsored, below-range sentences often is
accompanied by a citation to Booker or factors under 18 U.S.C. § 3553(a).

•

The use of guideline departure reasons remains prevalent in many cases involving
the imposition of non-government-sponsored, below-range sentences, including
those citing Booker or factors under 18 U.S.C. § 3553(a).

•

Multivariate analysis10 indicates that four factors associated with the decision to
impose a below-range sentence are different after Booker but not before: the

For purposes of this report, the pre-PROTECT Act period is the 7-month period from October, 2002 through April,
2003. The post-PROTECT Act period is a 13-month period from mid-2003 through mid-2004. The post-Booker
period is a 1-year period generally in 2005.

vii

application of a mandatory minimum sentence, criminal history points, career
offender status, and citizenship. However, most factors associated with this
decision are the same after Booker.
2.

Regional and Demographic Differences in Sentencing Practices

Chapter 5 of this report details the results of the Commission’s data analyses of Booker’s
impact on regional and demographic differences in federal sentencing practices. In sum, these
analyses yielded the following findings:
•

The regional differences in sentencing practices that existed before Booker
continue to exist. There are varying rates of sentencing in conformance with the
guidelines reported by the twelve circuits. Consistent with the national trend,
rates of imposition of within-range sentences decreased for each of the twelve
circuits following Booker.

•

Fifty-two of the 94 districts, or 55 percent, have rates of imposition of withinrange sentences at or above the national average of 62.2 percent. Forty-two
districts have rates of imposition of within-range sentences below the national
average. In 34 of these 42 districts, the rates of imposition of governmentsponsored, below-range sentences exceed the rates of imposition of other belowrange sentences.

•

Multivariate analysis conducted on post-Booker data reveals that male offenders
continue to be associated with higher sentences than female offenders. Such an
association is found every year from 1999 through the post-Booker period.
Associations between demographic factors and sentence length should be viewed
with caution because there are unmeasured factors, such as violent criminal
history or bail decisions, statistically associated with demographic factors that the
analysis may not take into account.

•

Multivariate analysis conducted on post-Booker data reveals that black offenders
are associated with sentences that are 4.9 percent higher than white offenders.
Such an association was not found in the post-PROTECT Act period but did
appear in 4 of the 7 time periods analyzed from 1999 through the post-Booker
period.

•

Multivariate analysis conducted on post-Booker data reveals that offenders of
“other” races (mostly Native American offenders) are associated with sentences
that are 10.8 percent higher than white offenders. This association also was found
in 2 of the 7 time periods from 1999 through the post-Booker period.

viii

•

Multivariate analysis conducted on post-Booker data reveals that there is no
statistical difference between the sentence length of Hispanic offenders and the
sentence length of white offenders.

Specific Sentencing Issues

Chapter 6 of this report details the results of the Commission’s data analyses of Booker’s
impact on specific sentencing issues. In sum, these analyses yielded the following findings:
a.

Cooperation Reductions without a Government Motion
•

Non-government-sponsored, below-range sentences based on the
defendant’s cooperation with authorities, i.e., below-range sentences
granted for substantial assistance without a government motion for such,
occur post-Booker. Post-Booker, there were 258 cases in which
cooperation with authorities was given as a reason for the imposition of a
non-government-sponsored, below-range sentence. In 28 of these cases,
substantial assistance or cooperation with authorities was the only reason
cited. In 230 of these cases, it was one of a combination of reasons for the
below-range sentence.

Sex Offenses
•

The average length of sentences for cases sentenced under each of the
criminal sexual abuse guidelines has remained fairly constant.

•

The rate of imposition of below-range sentences declined for criminal
sexual abuse cases post-PROTECT, but increased slightly post-Booker.
The rate of imposition of below-range sentences in criminal sexual abuse
cases is below the rate for all cases post-Booker.

•

The rate of imposition of below-range sentences for abusive sexual contact
cases decreased following the PROTECT Act but increased post-Booker.

•

The rate of imposition of below-range sentences for cases involving the
sexual abuse of a minor decreased post-PROTECT Act but increased postBooker. The increased rate post-Booker was less than what the rate had
been pre-PROTECT Act.

•

The rate of imposition of above-range sentences increased post-Booker for
criminal sexual abuse offenses and abusive sexual contact offenses but
declined for offenses involving the sexual abuse of a minor.

•

The majority of below-range sentences in cases involving criminal sexual
abuse are imposed for offenders with little or no criminal history.

•

Consistent with the trend seen in the national post-Booker data for cases
overall, the average length of sentences has increased for cases sentenced
under the sexual exploitation, i.e., child pornography, guidelines.

•

The rate of imposition of below-range sentences for sexual exploitation
offenses declined post-PROTECT Act but increased post-Booker.

•

The rate of imposition of above-range sentences for cases involving
production of child pornography decreased post-PROTECT Act but
increased post-Booker. Above-range sentences have steadily increased for
cases involving possession of child pornography.

Crack Cocaine Offenses
•

Courts do not often appear to be using Booker or the factors under 18
U.S.C. § 3353(a) to impose below-range sentences in crack cocaine cases.
Courts do not often explicitly cite crack cocaine/cocaine powder
sentencing disparity as a reason to impose below-range sentences in crack
cocaine cases.

First Offenders
•

The rate of imposition of below-range sentences for first offenders
increased after Booker.

•

The rate of imposition of above-range sentences for first offenders
increased after Booker.

•

The proportion of first offenders receiving prison sentences has remained
essentially the same, as has the average length of sentences imposed.

Career Offenders
•

The rate of imposition of below-range sentences for career offenders
increased after Booker. The majority of the cases in which below-range
sentences are being imposed for career offenders are drug trafficking
cases.

•

The average length of sentences imposed for career offenders has
decreased after Booker. This continues the pattern that existed before
Booker.

Early Disposition Programs
•

Sentencing courts in districts without early disposition programs (EDP)11
report relatively low rates of imposition of below-range sentences. In its
2003 Departure Report, the Commission expressed concern that these
districts increasingly might grant below-range sentences to reach
outcomes for similarly-situated defendants similar to the outcomes that
would be reached in EDP districts. The data do not reflect that these
concerns generally have been realized. In districts without EDP, the data
do not reflect widespread use of Booker to grant below-range sentences to
reflect sentences available in EDP districts.

CONCLUSION

The Commission intends to continue its outreach and training efforts and to regularly
release updated, real-time data on rates of imposition of within-range and out-of-range sentences,
types of sentences imposed, average sentence lengths, the reasons judges report for sentencing
outside the guidelines system, and the results of sentencing appeals. Uniform and complete
statements of reasons and timely reporting to the Commission by the district courts can provide
valuable feedback to Congress, the Commission, the courts, and all others in the federal criminal
justice community regarding the long-term impact of Booker on the federal sentencing system.
This report is an important part of the Commission’s efforts to inform careful consideration of
the evolving post-Booker federal sentencing system.

For a detailed discussion of Early Disposition Programs, see Chapter 6, Part G of this report.

Chapter 1

INTRODUCTION
A.

OVERVIEW OF REPORT

In 1984, Congress enacted the Sentencing Reform Act of 1984 (the “SRA”) in
response to widespread sentencing disparity that existed in the federal sentencing
system.12 Promulgation of the SRA ushered in a new era of sentencing in federal courts
through the creation of the United States Sentencing Commission (the “Commission”)
and the promulgation of mandatory sentencing guidelines. For nearly twenty years, the
mandatory sentencing guideline system required federal judges to impose sentences
within the applicable guideline range, unless the court found the existence of an
aggravating or mitigating circumstance not adequately taken into consideration by the
Commission in formulating the sentencing guidelines.13 This system changed on January
12, 2005, when the Supreme Court issued its opinion in United States v. Booker.14 The
Booker Court determined that mandatory application of the sentencing guidelines
violated the right to trial by jury under the Sixth Amendment of the United States
Constitution. The Court remedied the Sixth Amendment violation by excising the
provisions in the SRA that made the sentencing guidelines mandatory, thereby turning
the mandatory sentencing guideline system into an advisory guideline system.
This report assesses the impact of Booker on federal sentencing. It does so by
discussing developing appellate court jurisprudence interpreting Booker and the resulting
advisory guideline system and by reporting and analyzing data reflecting the sentences
imposed subsequent to the Booker decision. This report is prepared pursuant to the
Commission’s general statutory authority under 28 U.S.C. §§ 994-995 and the specific
responsibilities enumerated in 28 U.S.C. § 995(a)(14) and (15), which require the
Commission to publish data concerning the sentencing process, and to collect and
systematically disseminate information concerning the actual sentences imposed and the
relationship of such sentences to the factors set forth in 18 U.S.C. § 3553(a).
This chapter briefly summarizes the history of the promulgation of the sentencing
guidelines and relevant Supreme Court precedent deciding challenges to their operation.
The chapter then examines the Sixth Amendment line of Supreme Court decisions
starting with Apprendi v. New Jersey,15 and culminating with Booker. Chapter 2 provides
an overview of the circuit court decisions interpreting and applying Booker, highlighting
select decisions of import to the consideration of Booker’s overall impact on federal
sentencing. Chapter 3 describes the Commission response to the advisory guidelines
system created by Booker. Chapters 4 through 6 analyze Commission data to provide a
comparative overview of sentencing practices before and after Booker. The analysis in

Title II, Comprehensive Crime Control Act of 1984, Pub. L. No. 98–473, 98 Stat. 1837 (1984).
18 U.S.C. § 3553(b)(1), excised by United States v. Booker, 543 U.S. 220 (2005)
14
543 U.S. 220 (2005).
15
530 U.S. 466 (2000).
13

Chapter 6 also addresses Booker’s effect on specific guideline issues and offender
groups.
B.

HISTORICAL DEVELOPMENT
SYSTEM
1.

OF THE

FEDERAL SENTENCING GUIDELINE

The Statutory Requirements of the Sentencing Reform Act

The SRA responded to an emerging consensus that the federal sentencing system
needed major reform.16 Prior to the SRA, a federal judge possessed almost unlimited
authority to fashion an appropriate sentence within a broad, statutorily prescribed range
and “decided the various goals of sentencing, the relevant aggravating and mitigating
circumstances, and the way in which these factors would be combined in determining a
specific sentence.”17 Sentences were limited only by statutorily prescribed minimum and
maximum sentences. 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.”18 Neither party had a
meaningful right of appellate review.19 The parole system permitted the release of
prisoners based upon inconsistent ideas regarding the potential for rehabilitation,
exacerbated the lack of uniformity.20
The SRA was the culmination of lengthy bipartisan efforts. It sought to eliminate
unwarranted disparity in sentencing and to address the inequalities created by sentencing
indeterminacy.21 Congress decided that sentencing should be tailored―
(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

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.”). A more comprehensive
discussion of the events underlying the promulgation of the Act and its legislative history can be found in
the amicus brief filed by Senators Hatch, Kennedy and Feinstein in United States v. Booker, Nos. 04-104 &
04-105.
17
See Commission, THE FEDERAL SENTENCING GUIDELINES: A REPORT ON THE OPERATION OF THE
GUIDELINES SYSTEM AND SHORT-TERM IMPACTS ON DISPARITY IN SENTENCING, USE OF INCARCERATION,
AND PROSECUTORIAL DISCRETION AND PLEA BARGAINING, Vol. I (December 1991) [hereinafter
Commission 1991 DISPARITY REPORT] at 9.
18
S. REP. NO. 97–307, at 5.
19
S. REP. NO. 97–307, at 956, n.3.
20
Commission 1991 DISPARITY REPORT, at 9 (citing United States v. Grayson, 438 U.S. 41, 46 (1978)).
21
See S. REP. NO. 97–307 (1981); H.R. REP. NO. 98–1017 (1984); 28 U.S.C. § 994(k).

(D) to provide the defendant with needed educational or
vocational training, medical care or other correctional treatment in
the most effective manner.22
To this end, the SRA created the Commission as an independent agency within the
judicial branch of the federal government23 and directed it to promulgate guidelines to be
used for sentencing within the statutorily prescribed maximum sentence.24
Although the SRA directed the Commission to promulgate standardized
guidelines for the courts to follow, it preserved judges’ discretion to depart from the
prescribed guideline range in a particular case if a judge found an important aggravating
or mitigating factor present in the case that the Commission did not consider adequately
when formulating the sentencing guidelines.25 The SRA required courts to state their
reasons for the sentences imposed and to articulate the specific reason for imposing
sentences different from those described in a particular guideline.26 The SRA authorized
limited appellate review of the sentence, permitting a defendant to appeal a sentence
above the defined range and the government to appeal a sentence falling below that
range. It also allowed either party to appeal an incorrect application of the sentencing
guidelines.27 Finally, to limit further sentencing disparity, the SRA abolished federal
parole and permitted a sentence to be reduced by not more than fifteen percent as a result
of an inmate’s good behavior while in custody.28
The SRA directed the Commission to create the sentencing guidelines with three
goals in mind. First, the Commission was to assure the meeting of the purposes of
sentencing, as set forth in 18 U.S.C. § 3553(a)(2).29 Second, the Commission was to
provide certainty and fairness in meeting the purposes of sentencing, avoiding
unwarranted sentencing disparities among defendants with similar records who have been
22

See 18 U.S.C. § 3553(a)(2).
Established as “as an independent commission in the Judicial Branch of the United States,” see 28 U.S.C.
§ 991(a), the Commission was placed in the Judicial Branch because Congress concluded that “sentencing
should remain primarily a judicial function,” and because sitting judges would serve on the Commission.
The Commission is comprised of seven voting members (including the Chair) appointed by the President
“by and with the advice and consent of the Senate.” The SRA provided “[a]t least three of the
[Commission] 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 could be members of the same political party. See 28 U.S.C. § 991. Although originally at
least three commissioners were to be federal judges, the Prosecutorial Remedies and Other Tools to end the
Exploitation of Children Today (PROTECT) Act of 2003, Pub L. No. 108-21, 117 Stat. 650 (2003)
(hereinafter “the PROTECT Act”), amended 28 U.S.C. § 991(a) to limit to “no more than three” the
number of judges who may be members of the Commission. The Attorney General, or his designee, and
the Chairman of the Parole Commission are designated as ex officio non-voting members.
24
See 28 U.S.C. §§ 991, 994, and 995(a)(1). The SRA called for the abolition of the U.S. Parole
Commission within five years after the effective date of the Guidelines, but the existence of the Parole
Commission has been extended, and its duties revised, over time.
25
See 18 U.S.C. § 3553(a), (b).
26
See 18 U.S.C. § 3553(c).
27
See 18 U.S.C. § 3742(a), (b).
28
See 18 U.S.C. § 3624(a), (b). The Bureau of Prisons uses “good time” reductions for disciplinary
purposes, not as a parole mechanism.
29
See 28 U.S.C. § 991(b)(1)(A).
23

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.30 Finally, the
Commission was to reflect, to the extent practicable, advancement in knowledge of
human behavior as it relate[s] to the criminal justice process.31
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.”32 Congress intended that there “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.”33
The SRA further directed the Commission to consider 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.34 The SRA listed eleven additional
factors for the Commission to consider in establishing categories of defendants,
including, but not limited to, age, education, mental and emotional condition, physical
condition, role in the offense, and criminal history.35 The SRA prohibited the
Commission from considering the race, sex, national origin, creed, and socioeconomic
status of offenders,36 and instructed that the sentencing guidelines should reflect the
general inappropriateness of considering certain other factors that might serve as proxies
for forbidden factors, such as current unemployment.37
To meet these goals, the SRA directed the Commission to develop sentencing
ranges applicable for specific categories of offenses involving particular categories of
defendants. More specifically, the SRA required that the sentencing ranges be consistent
with all pertinent provisions of title 18, United States Code, and that they not include
sentences in excess of the statutorily prescribed maximum sentence.38 It also directed
30

See 28 U.S.C. § 991(b)(1)(B).
See 28 U.S.C. § 991(b)(1)(C).
32
S. REP. NO. 98–225, at 168.
33
Id.
34
See 28 U.S.C. § 994(c)(1)-(7).
35
See 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’ 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 Guidelines Manual, Ch. 4 (2005).
36
See 28 U.S.C. § 994(d).
37
See 28 U.S.C. § 994(e).
38
Mistretta v. United States, 488 U.S. 361, 375 (1989); see also 28 U.S.C. § 994(b)(1).
31

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, if the minimum term of the range is 30 years or more, the
maximum may be life imprisonment.’”39
In addition to these constraints, the SRA provided additional considerations for
the Commission to adhere to in the fulfillment of its duties. The SRA directed that
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.40 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.41 The SRA
also enumerated various aggravating and mitigating circumstances to be reflected in the
sentencing guidelines, such as multiple offenses and substantial assistance to the
Government.42
2.

Promulgation of the Sentencing Guidelines

In promulgating sentencing guidelines to implement the SRA, the Commission
was required to resolve a host of important policy questions typically involving rather
evenly balanced sets of competing considerations.43 Among those questions, 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 other.44
Instead, the Guidelines embody aspects of both just deserts and crime-control
philosophies of sentencing and give effect to both considerations.45
The Commission’s task was compounded by the complexity of the federal
criminal code, which 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.”46 The first
Guidelines Manual listed more than 700 penal statutes or subsections thereof in Appendix
39

Mistretta, 488 U.S. at 375 (quoting 28 U.S.C. § 994(b)(2)).
See 28 U.S.C. § 994(h).
41
See 28 U.S.C. § 994(i).
42
See 28 U.S.C. § 994(l) and (n), respectively.
43
See Guidelines Manual, §1A1.1, cmt. Intro. and Gen. App. Principles, (A)(4) (2005).
44
See Commission, SUPPLEMENTARY REPORT ON INITIAL SENTENCING GUIDELINES AND POLICY
STATEMENTS (1987) [hereinafter “Commission, SUPPLEMENTARY REPORT ON INITIAL SENTENCING
GUIDELINES”] at 16.
45
Id.
46
Commission, PRELIMINARY REPORT TO THE CONGRESS: STATUTORY PENALTIES PROJECT DESCRIPTION
AND COMPILATIONS OF FEDERAL CRIMINAL OFFENSES (1989), at vi (quoting Reform of the Federal
Criminal Laws: Hearings Before the Subcommittee on Criminal Law and Procedures of the Senate
Committee on the Judiciary).
40

A,47 and the 2005 Guidelines Manual references more than 1200 different statutes or
subsections thereof.48 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.49 Consequently, the Commission determined that the sentencing guidelines
should be descriptive of generic conduct rather than track statutory language.50
The Commission employed an empirical approach as a starting point for its work,
examining detailed data from more than 10,000 presentence investigations and less
detailed data on nearly 100,000 federal convictions. 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.51 The Commission concluded that “[t]his approach 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.”52
The Commission also examined existing state guidelines systems.53 The
Commission rejected the approach used by many states, 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 crimes.”54 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.”55
The Commission decided to create a system requiring a court to consider, within
constraints, a 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 elements of the offense committed by the defendant 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 by 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 quantity and type 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 involves a firearm.56 Finally, a
47

See Guidelines Manual, App. A (1987).
See Guidelines Manual, App. A (2005).
49
Commission, SUPPLEMENTARY REPORT TO THE CONGRESS: STATUTORY PENALTY REVIEW PROJECT
(1991), at 13.
50
See Guidelines Manual, §1A1.1, cmt. Intro. and Gen. App. Principles, (A)(4)(a) (2005).
51
See Commission, SUPPLEMENTARY REPORT ON INITIAL SENTENCING GUIDELINES, at 16.
52
Id.
53
Commission, SUPPLEMENTARY REPORT ON INITIAL SENTENCING GUIDELINES, at 14.
54
Id.
55
Commission, SUPPLEMENTARY REPORT ON INITIAL SENTENCING GUIDELINES, at 13.
56
See Guidelines Manual, §2D1.1 (2005).
48

defendant’s role in the offense or other conduct can result in an increase or decrease of
the offense level.57 Calculation of the sentence also requires a determination of the
defendant’s criminal history (located on the horizontal axis of the Sentencing Table).58
Once the offense level and criminal history are calculated, the applicable sentencing
range is determined by use of the sentencing table.59
The Commission expected that its work on the sentencing guidelines would be
evolutionary60 and that it would issue guidelines, gather data from actual practice,
analyze the data, and revise the guidelines over time.61 The monitoring function alone
requires the Commission to review the charging and sentencing documents for
approximately 70,000 cases per year,62 and the Commission codes hundreds of pieces of
information with respect to each of these cases. The resulting, steadily expanding
database is an invaluable source of information for the criminal justice community.63
Congress also “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.”64 Since the promulgation of the
original set of sentencing guidelines through the present, the sentencing guidelines
frequently have been amended to respond to court decisions, congressional directives,
and the Commission’s own evaluations of the need for guideline refinement.65
C.

LEGAL CHALLENGES TO THE OPERATION OF THE GUIDELINES

Legal challenges to the operation of the sentencing guidelines began immediately
after their promulgation. The constitutionality of the sentencing guidelines was first
addressed by the United States Supreme Court in Mistretta v. United States.66 In
Mistretta, the defendant raised nondelegation and separation of powers challenges to both
the federal sentencing guidelines and the Sentencing Commission. In upholding the
constitutionality of both, the Supreme Court held that “Congress neither delegated
57

See Guidelines Manual, Chapter 3 (2005) for other adjustments that apply to a wide variety of offenses.
See Guidelines Manual, Chapter 4 (2005).
59
See Guidelines Manual, Chapter 5 Pt. A (2005). For a more comprehensive discussion of how the
sentencing guidelines determine the presumptive sentence, see Commission, FIFTEEN YEARS OF GUIDELINE
SENTENCING: AN ASSESSMENT OF HOW WELL THE FEDERAL CRIMINAL JUSTICE SYSTEM IS ACHIEVING THE
GOALS OF SENTENCING REFORM (Nov. 2004) (hereinafter “FIFTEEN YEAR REVIEW”) at 16-18 and Chpater
4 c.4. of this report.
60
See 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).
61
Id.
62
See Commission, 2003 ANNUAL REPORT, at 34; Mistretta, 488 U.S. at 369.
63
See William W. Wilkins, Jr. and John R. Steer, The Role of Sentencing Guidelines Amendments in
Reducing Unwarranted Sentencing Disparity, 50 WASH. & LEE L. REV. 63, 65 (1993). The Commission
also uses the database to evaluate whether the sentencing guidelines have achieved the goals of the SRA.
To that end, the Commission issued a report examining how the sentencing guidelines have met the goals
of the SRA. See Commission, FIFTEEN YEAR REVIEW.
64
Braxton v. United States, 500 U.S. 344, 348 (1991).
65
Amendments to the sentencing guidelines automatically take effect unless Congress, within a 180-day
waiting period, affirmatively acts to reject them. See 28 U.S.C. § 994(p).
66
488 U.S. 361 (1989). The case was decided by an 8-to-1 vote, and Justice Blackmun authored the
opinion. Justice Scalia was the lone dissenter.
58

excessive legislative power [to the Commission] nor upset the constitutionally mandated
balance of powers among the coordinate branches” by placing the Commission within the
Judicial Branch.67 Likening the role of the Commission to that of the courts in
promulgating rules of procedure,68 the Supreme Court stated that “[the Guidelines] do not
bind or regulate the primary conduct of the public or vest in the Judicial Branch the
legislative responsibility for establishing minimum or maximum penalties for every
crime. They do no more than fetter the discretion of sentencing judges to do what they
have done for generations–impose sentences within the broad limits set by Congress.”69
The Court further went on to state that the “judicial contribution to the enterprise of
creating rules to limit the discretion of sentencing judges does not enlist the resources or
reputations of the Judicial Branch in either the legislative business of determining what
conduct should be criminalized or the executive business of enforcing the law.”70
Once the Supreme Court settled the question of the constitutionality of the
sentencing guidelines, courts were then required to impose federal sentences in
accordance with the sentencing guidelines. This did not, however, put an end to all
litigation concerning challenges to the operation of the sentencing guidelines. The Court
was then called upon to decide issues relating to the relevant conduct rules and sentence
enhancements for conduct that could have been charged but was not.
In United States v. Dunnigan,71 the Court unanimously held that the Constitution
permits a court to enhance the defendant’s sentence pursuant to the obstruction of justice
enhancement, USSG §3C1.1, if the court finds that the defendant committed perjury at
trial.”72 In so holding, the Court noted that “the enhancement provision is part of a
sentencing scheme designed to determine the appropriate type and extent of punishment
after the issue of guilt has been resolved.”73 In Witte v. United States,74 the Court held
that consideration of relevant conduct at sentencing did not bar a subsequent prosecution
for the related criminal conduct. The Supreme Court also held that a jury’s verdict of
acquittal does not prevent the sentencing judge from considering the conduct underlying
the acquitted charge, so long as the conduct has been proved by a preponderance of
evidence.75 In United States v. Nichols,76 the Court upheld the consideration of an
uncounseled misdemeanor conviction to enhance punishment for a subsequent
conviction. The Court noted that recidivism is an important factor in determining what
67

Id. at 384-85.
Id. at 391.
69
Id. at 396.
70
Id. at 407.
71
507 U.S. 87 (1993). Justice Kennedy delivered the opinion of the Court.
72
Id. at 89.
73
Id. at 94.
74
515 U.S. 389, 406 (1995). Justice O'Connor delivered the opinion of the Court, in Parts I, II, and IV, of
which Chief Justice Rehnquist, and Justices Kennedy, Souter, Ginsburg, and Breyer joined, and in Part III
of which Justices Stevens, Souter, Ginsburg, and Breyer joined. Justice Scalia filed an opinion concurring
in the judgment, in which Justice Thomas joined.
75
United States v. Watts, 519 U.S. 148 (1997) (per curiam).
76
511 U.S. 738 (1994). Chief Justice Rehnquist delivered the opinion of the Court, in which Justices
O'Connor, Scalia, Kennedy, and Thomas, joined. Justice Souter filed an opinion concurring in the
judgment.
68

sentence to impose on a defendant and thus upheld the constitutionality of such
consideration.77
In Edwards v. United States,78 the Court held that the sentencing guidelines
authorized the judge to determine for sentencing purposes whether crack cocaine, as well
as powder cocaine, was involved in the defendants’ offense related activities and the
applicable quantities of each drug form. In upholding the sentence, the Court stated that
“regardless of the jury’s actual, or assumed, beliefs about the conspiracy, the Guidelines
nonetheless require the judge to determine the ‘controlled substances’ at issue and how
much of those controlled substances consisted of cocaine, crack, or both.”79 The Court
summarily disposed of the defendant's statutory and constitutional claims, stating that
perhaps those claims “would make a difference if it were possible to argue, say, that the
sentences imposed exceeded the maximum that the statutes permit for a cocaine only
conspiracy.”80
D.

THE SUPREME COURT’S DEVELOPING SIXTH AMENDMENT JURISPRUDENCE

The aforementioned cases appeared to solidify the sentencing guidelines’ role in
the federal sentencing system. Moreover, judicial factfinding in order to calculate
sentences, a critical component of the sentencing guidelines, seemed firmly grounded by
this precedent as constitutionally sound. The Supreme Court then decided Apprendi.81
Apprendi was one of a series of cases challenging under the Sixth Amendment of the
Constitution judicial factfinding when imposing sentences. This section of the report
focuses on Apprendi and its progeny, which ultimately culminated in Booker.
Apprendi involved a challenge to a sentence imposed in state court. The
defendant was convicted of a firearms violation, which carried a prison term of 5 to 10
years. After he pleaded guilty to the crime, the State of New Jersey filed a motion to
enhance the sentence under the State’s hate crime statute, alleging that the defendant
committed the crime of conviction to intimidate a person or group because of racial
animus. After finding by a preponderance of the evidence that the crime was racially
motivated, the trial court imposed a 12-year sentence. The Supreme Court reversed,
holding that the Sixth Amendment requires that “[o]ther than the fact of a prior
conviction,82 any fact that increases the penalty for a crime beyond the prescribed

Id. at 747-48.
523 U.S. 511 (1998). Justice Breyer delivered the opinion for a unanimous Court.
79
Id. at 514.
80
Id. at 515.
81
530 U.S. 466 (2000). Justice Stevens wrote the opinion, joined by Justices Souter, Scalia, Thomas and
Ginsburg.
82
The exception for prior convictions is derived from the Court’s holding in Almendarez-Torres v. United
States, 523 U.S. 224 (1998). Justice Breyer delivered the opinion of the Court, in which Chief Justice
Rehnquist, and Justices O'Connor, Kennedy, and Thomas joined. The Court held that Congress' decision to
treat recidivism as a sentencing factor upon an alien's subsequent conviction of an illegal reentry offense,
rather than as an element of that offense, did not exceed due process or other constitutional limits on
Congress' power to define elements of crime.
78

statutory maximum must be submitted to a jury, and proved beyond a reasonable
doubt.”83
Harris v. United States84 raised the issue of whether the Apprendi rule applied to
facts that trigger a statutory mandatory minimum penalty, thereby calling into question
McMillan v. Pennsylvania.85 The case involved the interpretation of 18 U.S.C. §
924(c),86 which allowed the court to increase a statutory minimum penalty from 5 to 7
years upon a finding that a firearm was brandished during and in relation to a crime of
violence or drug trafficking crime.87 The defendant’s indictment did not charge that he
had brandished the weapon. After the defendant was convicted, his presentence report
recommended that he receive the 7-year minimum sentence. The defendant objected,
arguing that brandishing was an element of a separate statutory offense for which he was
not indicted or convicted. The lower court overruled his objection, and sentenced him to
a seven year term of imprisonment. The court of appeal also rejected the defendant’s
constitutional argument, finding that McMillan foreclosed his argument that if
brandishing is a sentencing factor, then 18 U.S.C. § 924(c) is unconstitutional under
Apprendi.
The Supreme Court agreed, explaining that Apprendi and McMillan were not
inconsistent with one another because “there is a fundamental distinction between the
factual findings that were at issue in those two cases. Apprendi held that any fact
extending the defendant's sentence beyond the maximum authorized by the jury's verdict
would have been considered an element of an aggravated crime ― and thus the domain
of the jury ― by those who framed the Bill of Rights.”88 McMillan recognized that once
the jury's verdict has authorized the judge to impose the minimum sentence, a statute may
reserve to the judge the finding of a fact increasing the mandatory minimum (but not
extending the sentence beyond the statutorily prescribed maximum sentence), without
violating the Constitution. 89

Id. at 490.
536 U.S. 545 (2002). Justice Kennedy announced the judgment of the Court and delivered the opinion of
the Court with respect to Parts I, II, and IV, in which Chief Justice Rehnquist and Justices O'Connor,
Scalia, and Breyer joined, and an opinion with respect to Part III, in which Chief Justice Rehnquist and
Justices O'Connor and Scalia joined. Justice O'Connor filed a concurring opinion. Justice Breyer filed an
opinion concurring in part and concurring in the judgment).
85
477 U.S. 79 (1986). In McMillan, the Court sustained a statute that increased the minimum penalty for a
crime, though not beyond the statutorily prescribed maximum sentence, when the sentencing judge found,
by a preponderance of the evidence, that the defendant had possessed a firearm.
86
18 U.S.C. § 924(c) provides a separate criminal offense for carrying a weapon during and in relation to a
crime of violence or drug trafficking crime. The statute imposes a mandatory minimum penalty of 5 years,
which must be served consecutively to any sentence imposed for the underlying offense. The minimum
penalty increases to 7 and 10 years, if the firearm was brandished or discharged, respectively.
87
See 18 U.S.C. § 924(c).
88
Id. at 557 (emphasis added).
89
Id.
84

The Court distinguished 18 U.S.C. § 924(c) from the federal carjacking statute in
Jones v. United States.90 In Jones, the Court had “accorded great significance to the
‘steeply higher penalties’ authorized by the carjacking statute's three subsections, which
enhanced the defendant's maximum sentence from 15 years, to 25 years, to life ―
enhancements the Court doubted Congress would have made contingent upon judicial
factfinding.” By contrast, 18 U.S.C. § 924(c) has “an effect on the defendant's sentence
that is more consistent with traditional understandings about how sentencing factors
operate; the required findings constrain, rather than extend, the sentencing judge's
discretion.”91
Citing Apprendi,92 the Court noted that the “Fifth and Sixth Amendments ensure
that the defendant ‘will never get more punishment than he bargained for when he did the
crime,’ but they do not promise that he will receive ‘anything less’ than that.”93 The
Court then concluded that 18 U.S.C. § 924(c) was constitutional and did not evade the
requirements of the Fifth and Sixth Amendment. “Congress ‘simply took one factor that
has always been considered by sentencing courts to bear on punishment .... and dictated
the precise weight to be given that factor.’”94 “That factor need not be alleged in the
indictment, submitted to the jury, or proved beyond a reasonable doubt.”95
In Ring v. Arizona,96 the Court considered whether the State of Arizona’s death
penalty statute violated the defendant’s Sixth Amendment right to a jury trial in capital
prosecutions. The statute allowed the trial judge, sitting alone, to determine the presence
or absence of the aggravating factors required by Arizona law to impose the death
penalty, following a jury adjudication of a defendant's guilt of first-degree murder.
Reasoning that “[t]he Arizona first-degree murder statute ‘authorizes a maximum penalty
of death only in a formal sense,’ for it explicitly cross-references the statutory provision
requiring a judicial finding of an aggravating circumstance before imposition of the death
penalty,” the Court concluded that the Arizona statute violated the Sixth Amendment.
Because the “enumerated aggravating factors operated as ‘the functional equivalent of an
element of a greater offense,’ the Sixth Amendment requires that they be found by a
jury.”97
90

526 U.S. 227 (1999). Justice Souter delivered the opinion of the Court, in which Justices Stevens, Scalia,
Thomas, and Ginsburg joined. Justices Stevens and Scalia filed concurring opinions. Jones held that the
federal carjacking statute, 18 U.S.C. § 2119, establishes three separate offenses, each of which must be
charged in the indictment, proven beyond a reasonable doubt, and submitted to the jury for its verdict. See
also United States v. Castillo, 530 U.S. 120 (2000). Justice Breyer delivered the opinion of the Court, in
which Chief Justice Rehnquist and Justices Stevens, O'Connor, Kennedy, Souter, Thomas, and Ginsburg
joined, and in which Justice Scalia joined except as to point Fourth of Part II.
91
Id. at 554.
92
530 U.S. at 498.
93
Id. at 554.
94
Id at 568 (citing McMillan, 477 U.S. at 89-90).
95
Id.
96
536 U.S. 584 (2002).
97
Id. at 609 (citing Apprendi, 530 U.S. at 494, n. 19). See Shriro v. Summerlin, 542 U.S. 348 (2004), in
which the Supreme Court held that the decision in Ring was properly classified as procedural rather than
substantive and did not apply retroactively to death penalty cases already final on direct review and that
Ring did not announce a watershed rule of criminal procedure.

THE BLAKELY DECISION AND ITS RESULTING IMPACT
SENTENCING GUIDELINE SYSTEM

ON THE

FEDERAL

On June 24, 2004, the Supreme Court decided Blakely v. Washington,98
invalidating a sentence imposed under Washington’s sentencing guidelines system. The
state trial court sentenced the defendant to a term of imprisonment more than 3 years
above the 53-month statutory standard range for his offense, based on the court’s finding
that the defendant had acted with deliberate cruelty. Deliberate cruelty was a statutorily
enumerated ground for departing from the standard sentencing range. Washington law
required an exceptional sentence to be based on factors other than those used in
computing the standard range. Because the defendant had not made admissions
supporting the sentencing court’s finding of deliberate cruelty, the Court held that the
judicial application of an enhanced range under the Washington state guidelines violated
the defendant’s right to a jury trial under the Sixth Amendment. The Court made this
finding notwithstanding the fact that the sentence imposed did not exceed that statutory
maximum penalty of 10 years.99 In so holding, the Court redefined the term “statutory
maximum” as used in Apprendi to mean the maximum sentence that a judge may impose
solely on the basis of the facts reflected in the jury verdict or admitted to by the
defendant, not the maximum the judge may impose after making additional findings.
Although the Court stated that it expressed no opinion on the federal sentencing
guidelines, which were not before it,100 the decision had an immediate impact upon the
federal criminal justice system.
After Apprendi but before Blakely, the federal circuit courts of appeal
unanimously had concluded that the maximum sentence a defendant could receive “if
punished according to the facts reflected in the jury verdict alone,”101 was the maximum
penalty provided in the statute setting forth the offense of conviction (or whatever penalty
statute was referenced by the statute setting forth the offense of conviction), not the top of
the guideline sentencing range mandated by those facts.102 The Court’s redefinition of
the term “statutory maximum” caused many courts to question the reasoning underlying
these decisions. 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.

542 U.S. 296 (2004).
Id. at 303-04.
100
Id. at 304, n.9.
101
Apprendi, 530 U.S. at 483.
102
See United States v. Reyes-Echevarria, 345 F.3d 1, 6-7 (1st Cir. 2003); United States v. Garcia, 240 F.3d
180, 182-84 (2d Cir. 2001); United States v. Williams, 235 F.3d 858, 862-63 (3d Cir. 2000); United States
v. Kinter, 235 F.3d 192, 198-202 (4th Cir. 2000); United States v. Doggett, 230 F.3d 160, 166 (5th Cir.
2000); United States v. Lawrence, 308 F.3d 623, 634-35 (6th Cir. 2002); United States v. Knox, 301 F.3d
616, 620 (7th Cir. 2002); United States v. Walker, 324 F.3d 1032, 1041 (8th Cir.); United States v. Ochoa,
311 F.3d 1133, 1135-36 (9th Cir. 2002); United States v. Jackson, 240 F.3d 1245, 1249 (10th Cir. 2001);
United States v. Harris, 244 F.3d 828, 829-30 (11th Cir. 2001); United States v. Fields, 251 F.3d 1041,
1043-44 (D.C. Cir. 2001).
99

Two circuits immediately declared that the operation of the federal sentencing
guidelines violated the Sixth Amendment. In United States v. Booker,103 the Seventh
Circuit held that the Sixth Amendment, as interpreted in Blakely, was violated by the
sentencing court’s factual determinations on drug quantity and obstruction of justice.104
Because the parties had neither briefed nor argued the question of severability,105 the
Seventh Circuit declined to rule on that issue.106 Instead the court remanded the case for
resentencing.107 In United States v. Ameline,108 the Ninth Circuit concluded that
Blakely’s definition of statutory maximum applies to the determination of the base
offense levels and any applicable upward enhancements imposed under the sentencing
guidelines.109 The court declined to invalidate the sentencing guidelines entirely, holding
that where the procedural aspects of applying the sentencing guidelines violated the Sixth
Amendment, those portions could be severed and a sentence using the remaining
guideline provisions could be imposed.110
Five circuits held that Blakely did not affect the constitutionality of the federal
sentencing guidelines. In United States v. Pineiro,111 the Fifth Circuit became the first
circuit to hold that Blakely did not extend to the sentencing guidelines. After examining
circuit precedent and Supreme Court case law that had “consistently embraced and relied
upon the distinction between guideline ranges and maximum sentences in rejecting
various challenges to the Guidelines,”112 the court concluded that this precedent
supported the view that the sentencing guidelines were a tool for channeling judicial
discretion and that Blakely did not compel a departure from the long-embraced distinction
between guideline ranges and the maximum penalties established in the United States
Code for various offenses.113 Four circuits similarly declared that Blakely did not
invalidate the sentencing guidelines.114
103

375 F.3d 508 (7th Cir. 2004).
Id. at 513.
105
The issue of severability addresses the remedy the court should apply if finding that the operation of the
sentencing guidelines violated the Sixth Amendment. Possible remedies included invalidation of the
sentencing guidelines in their entirety, resulting in a return to indeterminate sentencing; invalidation of only
those portions of the sentencing guidelines violating the Sixth Amendment in a particular case, and
imposition of the requirement that all base offense levels and enhancements under the sentencing
guidelines be determined by a jury.
106
Id. at 514-15.
107
Id. at 515.
108
376 F.3d 967 (9th Cir. 2004).
109
Id. at 978.
110
Id. at 981.
111
377 F.3d 464 (5th Cir. 2004).
112
Id. at 471.
113
Id. at 470-73.
114
United States v. Mincey, 380 F.3d 102 (2d Cir. 2004) (holding that absent a Supreme Court ruling to the
contrary, the Sixth Amendment does not require that every enhancement factor under the sentencing
guidelines be pleaded and proved to a jury beyond a reasonable doubt); United States v. Hammoud, 381
F.3d 316 (4th Cir. 2004) (en banc) (holding that Blakely did not invalidate the sentencing guidelines and
directing the district courts within the circuit to continue sentencing defendants in accordance with the
sentencing guidelines); United States v. Koch, 383 F.3d 436 (6th Cir. 2004) (en banc) (ruling that Blakely
does not invalidate the sentencing guidelines and the sentencing guidelines do not violate the Sixth
Amendment); United States v. Reese, 382 F.3d 1308 (11th Cir. 2004) (declining to conclude that Blakely
compels an alteration of the established view of the sentencing guidelines as a tool for channeling the
104

UNITED STATES V. BOOKER

On August 2, 2004, the Supreme Court accepted for expedited review two federal
sentencing guidelines cases, Booker and United States v. Fanfan,115 to clarify the
implications of the Blakely decision for the federal sentencing guidelines.
The petitions for certiorari presented two questions for the Court’s resolution:
(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.116

In an opinion authored by Justice Stevens, the Court117 held that both lower courts
correctly concluded that the Sixth Amendment, as construed in Blakely, does apply to the
sentencing guidelines.118 In so holding, the Court reaffirmed the holding in Apprendi,
rephrasing it as “[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.” 119
In answering the first question, the Court undertook to explain the genesis of its
recent Sixth Amendment doctrine as enunciated in Jones, Apprendi, Ring, and Blakely.
According to the Court, the basic precepts of the right to trial by jury and the right to
have the crime proved beyond a reasonable doubt were undercut by a new trend in the
legislative regulation of sentencing, which placed an increasing emphasis on facts that
enhanced sentencing ranges. It thus became the judge, and not the jury, who determined
the upper limits of sentencing based upon facts not required to be raised before trial or
proved beyond a reasonable doubt. The legislative trend thereby operated to increase the
judge’s power and decrease that of the jury.120 This new circumstance “forced the Court
to address the question of how the right to jury trial could be preserved, in a meaningful
sentencing court's discretion within a crime's minimum and maximum sentence provided in the United
States Code, with that maximum being the only constitutionally relevant maximum sentence).
115
524 U.S. 956 (2004).
116
United States v. Booker, 543 U.S. at 229, n.1.
117
The Blakely majority (Justices Stevens, Scalia, Souter, Thomas and Ginsburg) formed the majority in
this portion of the court’s opinion.
118
543 U.S. at 243.
119
Id. at 244.
120
Id. at 236.

way, guaranteeing that the jury would still stand between the individual and the power of
the government in the new sentencing regime.”121 The Court answered the question as it
did in the Apprendi line of cases to “preserve Sixth Amendment substance.”122
The question of the appropriate remedy for the constitutional violation was
answered by a different majority of the Court in an opinion authored by Justice Breyer.123
After considering the legislative intent underlying the SRA, the Court concluded that the
Sixth Amendment requirement that a jury find certain sentencing facts was incompatible
with components of the SRA. The Court concluded that the severability question must be
answered by excising from the SRA those provisions that made the sentencing guidelines
mandatory. The Court stated:
We must decide whether or to what extent, "as a matter of
severability analysis," the Guidelines "as a whole" are
"inapplicable ... 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." Pet. for
Cert. in No. 04-104, p. I.
We answer the question of remedy by finding the provision
of the federal sentencing statute that makes the Guidelines
mandatory, 18 U.S.C.A. § 3553(b)(1) (Supp.2004), incompatible
with today's constitutional holding. We conclude that this
provision must be severed and excised, as must one other statutory
section, § 3742(e) (main ed. and Supp.2004), which depends upon
the Guidelines' mandatory nature. So modified, the Federal
Sentencing Act, see Sentencing Reform Act of 1984, as amended,
18 U.S.C. § 3551 et seq., 28 U.S.C. § 991 et seq., makes the
Guidelines effectively advisory. It requires a sentencing court to
consider Guidelines ranges, see 18 U.S.C.A. § 3553(a)(4)
(Supp.2004), but it permits the court to tailor the sentence in light
of other statutory concerns as well, see § 3553(a) (Supp. 2004).124
In determining that these mandatory provisions could be excised, the Court first
decided that the two remedies suggested by the dissent and the respondents were
insufficient to preserve the intent of Congress in enacting the SRA. Notably, in rejecting
the Government’s proposed remedy that would “render the Guidelines advisory in ‘any
case in which the Constitution prohibits’ judicial factfinding,” the Court determined that
the proposal would impose a one-way mandatory system that would limit only judges’
121

Id. at 237.
Id. The Court’s opinion is devoid of any discussion of Harris, raising many questions about whether
that decision is still good law. The holding in Harris, which allows judicial factfinding for the imposition
of minimum sentences, is critical to the efficacy of what some commentators call a “topless guidelines”
proposal for reforming the federal guideline system. See infra, Appendix C.
123
Along with Justice Breyer, Chief Justice Rehnquist and Justices O’Connor, Kennedy, and Ginsburg
formed the majority that fashioned the remedy.
124
Id. at 245.
122

ability to reduce sentences, but put no limits on a judge’s ability to increase sentences.
This one-way limit, the Court concluded, would not promote the congressional objective
of uniformity in sentencing.125
The Court also rejected the dissent’s proposal to graft a jury factfinding
requirement onto the provisions of the SRA by reading “the court” as meaning “the judge
working together with the jury,” because such a reading would be contrary to the intent of
Congress. The Court based this conclusion on the determination that a jury factfinding
sentencing system would be incompatible with the use of real offense conduct in
sentencing, an element the Court considered critical to congressional intent to achieve
sentencing reform. The Court also noted that application of jury factfinding to the
guideline system would result in very complicated trial procedures and increased power
to prosecutors through plea bargaining as more sentencing enhancements would have to
be charged.126
In devising the remedy, the Court targeted only two provisions of the SRA. The
Court excised 18 U.S.C. § 3553(b)(1), which required the court to impose a sentence as
determined by the sentencing guidelines unless “the court finds there exists an
aggravating or mitigating circumstance of the kind, or to a degree, not adequately taken
into consideration by the Sentencing Commission in formulating the guidelines.” The
Court determined that “the existence of [this section] is a necessary condition of the
constitutional violation.”127 The Court also excised 18 U.S.C. § 3742(e), which provided
for a de novo standard of review for departures from the guidelines, and replaced it with
“reasonableness.” It left intact all other provisions of the SRA, explicitly mentioning 18
U.S.C. § 3553(a), relating to considerations when imposing a sentence, and 18 U.S.C.
§ 3742(a) and (b), relating to the right of appeal of sentencing decision. The Court
identified as problematic only those provisions making the sentencing guidelines
mandatory.128
By severing these provisions, the Court rendered the sentencing guidelines
effectively advisory, thereby permitting the courts to continue factfinding under a
preponderance of the evidence standard. Although the Court recognized that Congress
expected the guideline system to be mandatory, it reasoned that Congress would prefer a
system in which the guidelines were considered in every case.129 Congress’ important
objectives when creating the Commission to promulgate sentencing guidelines included
honesty, uniformity, and proportionality in sentencing.130 The Court theorized that “[t]he
system remaining after excision, while lacking the mandatory features that Congress
enacted, retains other features that help to further these objectives.”131 For example,
125

Id. at 266.
Id. at 249-58.
127
Id. at 259.
128
Id. at 258-61. The remaining portions of the Act require a sentencing court to consider guidelines
ranges but permit a court to tailor the sentence in light of other statutory concerns. See 18 U.S.C.
§ 3553(a).
129
Booker, 543 U.S. at 248.
130
Id. at 264.
131
Id.
126

“[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.”132
Booker’s instruction that the courts consider the guidelines, but “tailor the
sentence in light of other statutory concerns,”133 immediately raised the question of the
extent to which courts must take the sentencing guidelines into account in imposing
sentence. Section 3553(a) of title 18, United States Code, lists seven factors, including
the guidelines and policy statements, particularly those governing departures from the
guidelines, that must be taken into consideration in imposing a sentence. Following
Booker, two schools of thought emerged regarding the extent to which courts must take
the sentencing guidelines into account. The first school of thought accords substantial
weight to the sentencing guidelines. This viewpoint was first espoused in United States
v. Wilson,134 which concluded that the sentencing guidelines already take the other factors
enumerated in 18 U.S.C. § 3553(a) into account. The opposing viewpoint was offered in
United States v. Ranum,135 in which the court concluded that the sentencing guidelines
are only one of the factors included in 18 U.S.C. § 3553(a), all of which must be given
equal consideration when arriving at an appropriate sentence.
The weight to be accorded the sentencing guidelines is only one of many legal
issues that have arisen since the Supreme Court decided Booker. District courts applied
different approaches to sentencing.136 Some district courts fashioned sentences without
any consideration of the applicable guideline range. More specifically, in fashioning a
sentence outside the applicable guideline range, some courts decided to forego an
analysis of whether a departure under the guidelines would be warranted and instead
relied only on Booker to impose the sentence. The majority of courts, however,
considered the applicable guideline range first and then proceeded to decide whether
consideration of the factors listed in 18 U.S.C. § 3553(a) warranted imposition of a nonguideline sentence. This continued until all circuit courts uniformly agreed that post-

132

Id. at 263.
Id. at 245.
134
350 F. Supp. 2d 910 (D. Utah 2005); see also United States v. Wanning, 354 F. Supp. 2d 1056 (D. Neb.
2005).
135
353 F. Supp. 2d 984 (E.D. Wis. 2005).
136
Compare United States v. Wilson, 350 F. Supp. 2d 910, 912 (D. Utah 2005) (concluding that a
sentencing court should give considerable weight to the guidelines in determining what sentence to impose
and stating that the court will depart from the guidelines range in unusual cases for clearly identified and
persuasive reasons), and United States v. Wanning, 354 F. Supp. 2d 1056, 1062-63 (D. Neb. 2005)
(positing that a sentencing court should give substantial weight to the guidelines range and that the
guidelines should be considered presumptively reasonable because the Sentencing Commission crafted the
guidelines at the direction of Congress and to implement congressional intent), with United States v.
Ranum, 353 F. Supp. 2d 984, 985-87 (E.D. Wis. 2005) (explaining that under Booker, the court will treat
the guidelines sentence as just one of a number of sentencing factors), and United States v. Myers, 353 F.
Supp. 2d 1026, 1028 (S. D. Iowa 2005) (announcing that the court will treat the guidelines sentence as one
of the sentencing factors because treating the guidelines range as presumptively reasonable makes the
guidelines mandatory).
133

Booker sentencing must begin with calculation of the applicable guideline range.137
District courts also differed over the proper evidentiary standard to be applied for
factfinding at sentencing.138 For example, some district courts began to consider only
facts proved beyond a reasonable doubt at sentencing, reasoning that Booker required this
elevated standard. Others continued to apply the preponderance standard generally
accepted before Booker. Some courts no longer considered acquitted conduct and others
continued to apply the standards for acquitted conduct that existed before Booker.139
Debate also arose regarding whether a district court’s disagreement with policy
decisions made by Congress could form the basis for imposition of a below-range
sentence. Conflicting opinions quickly developed in the areas of crack cocaine140 and
fast track immigration cases,141 which will be explored in further detail in later chapters.
137

See infra n. 147.
See United States v. Kwame Okai, No. 05-19, 2005 WL 2042301 (D. Neb. Aug. 22, 2005) (requiring
proof beyond a reasonable doubt); United States v. Malouf, 377 F. Supp. 2d 315 (D. Mass. 2005) (same);
United States v. Gray, 362 F. Supp. 2d 714 (S.D.W.Va 2005) (same).
139
See United States v. Pimental, 367 F. Supp. 2d 143 (D. Mass. 2005) (If acquitted conduct could be
considered at sentencing, burden of proof would be proof beyond a reasonable doubt); United States v.
Coleman, 370 F. Supp. 2d 661 (S.D. Ohio 2005) (same); United States v. Baldwin, 389 F. Supp. 2d (D.D.C.
2005) (same). Cf. United States v. Agostini, 365 F. Supp. 2d 530 (S.D.N.Y. 2005) (“The Supreme Court's
decision in Booker did not alter the court's ability to enhance a defendant's sentence on the basis of
acquitted conduct.”).
140
United States v. Smith, 359 F. Supp. 2d 771 (E.D. Wis. 2005) (deviating from the Guidelines to account
for the harsh sentence produced under the Guidelines for crack cocaine; instead of a 100:1 crack:powder
ratio, using the 20:1 crack:powder ratio recommended by the Commission in a report to Congress); Simon
v. United States, 361 F. Supp. 2d 35 (E.D.N.Y 2005) (deviating from the sentencing range of 324 to 405
months and imposing a sentence of 262 months because the guidelines range substantially overstates the
seriousness of the offense which involved crack cocaine; following the guidelines in sentencing the
defendant would create unjust sentencing disparities and more deterrence than necessary to protect the
public; the 20:1 crack:powder ratio of crack to powder cocaine recommended by the Commission in a
report to Congress would avoid disparity with the sentence imposed on the co-defendant who engaged in
the same criminal conduct); United States v. Fisher, No. S3-03-CR-1501-SAS, 2005 WL 2542916
(S.D.N.Y. Oct. 11, 2005) (after an extensive analysis of the crack/powder cocaine sentencing guidelines,
using a 10:1 ratio instead of a 100:1 crack:powder ratio to punish the defendant because that ratio is
sufficient to punish crack cocaine dealers more harshly than those who deal in powder cocaine and because
a sentence based largely on the crack cocaine/powder cocaine disparity is greater than necessary to satisfy
the purposes of sentencing). Cf. United States v. Tabor, 365 F. Supp. 2d 1052 (D. Neb. 2005) (although
critical of the crack cocaine/powder cocaine sentencing disparity, the court rejects the idea that a judge
should exercise his discretion under Booker to deviate from the guidelines in a case involving crack
cocaine; deviating from the guidelines would contradict clear legislative intent to punish crack dealers more
harshly); United States v. John Doe, No. 02-0406, 2006 WL 177396 (D.D.C. Jan. 26, 2006) (it is not up to
federal judges to reject as bad policy a legislative determination made by Congress;, in circumstances
where no other 18 U.S.C. § 3553 factors support mitigation in sentencing, judges cannot conclude that a
guidelines sentence for crack (which reflects the 100:1 crack:powder ratio) creates an “unwarranted
sentence disparit[y]” solely because an offender who possessed the same amount of powder cocaine would
get a much lower sentence”).
141
United States v. Galvez-Barrios, 355 F. Supp. 2d 958 (E.D. Wis. 2005) (holding because fast-track
programs in border districts for illegal reentry offenses are creating serious sentencing disparities, it may be
appropriate in some cases for a sentencing court to exercise its discretion under Booker to minimize the
sentencing disparity that fast-track programs create); United States v. Ramirez-Ramirez, 365 F. Supp. 2d
728 (E.D. Va. 2005) (sentencing below the guidelines in an illegal reentry case where the defendant’s
sentence was enhanced based on a crime of violence, after considering the 18 U.S.C. § 3553(a) factors, in
138

Although some district courts concluded that disagreement with policy decisions could
justify below-range sentences, no appellate court has sustained that conclusion.142
Some of the issues that arose after Booker have been resolved at the circuit court
level, while still others remain to be answered as cases wind their way through the
appellate process. Chapter 2 of this report discusses the developing appellate
jurisprudence in further detail and will identify the areas of concern that remain
unresolved.

large part, based on the absence of a fast-track program in the district). Cf. United States v. Perez-Chavez,
No. 05-CR-00003PGC, 2005 U.S. Dist. Lexis 9252 (D. Utah May 16, 2005) (explaining why it is
inappropriate to deviate from the guidelines range based on the absence of a fast-track program; the issue is
foreclosed by a pre-Booker decision in which the Tenth Circuit determined that the absence of a fast-track
program is not a basis for a downward departure; Congress approved the disparity created by fast-track
programs when it enacted the PROTECT Act; judicially created fast-track programs encroached on the
Executive Branch’s responsibility to enforce the nation’s criminal laws).
142
See generally Chapter 2.

Chapter 2

POST-BOOKER APPELLATE JURISPRUDENCE
A.

INTRODUCTION

The Supreme Court instructed in Booker that “[t]he district courts, while not
bound to apply the Guidelines, must consult those guidelines and take them into account
when sentencing.”143 This chapter will discuss cases interpreting that directive.
Moreover, upon excising the de novo standard of review in 18 U.S.C. § 3742(e), the
Court directed courts of appeal to “review sentencing decisions for unreasonableness.”144
Chapters 4 through 6 will examine the impact of Booker as evidenced by
sentencing information received from the district courts. In many instances, however,
sentencing decisions do not end at the district court level. Both the government and the
defendant have a limited right of appellate review.145 Consequently, no discussion about
the impact of Booker on the federal sentencing system would be complete without
examining the post-Booker appellate court decisions interpreting and applying Booker.
This chapter is intended to explore the developing appellate court jurisprudence
discussing reasonableness. It also highlights select decisions relevant to the consideration
of Booker’s overall impact on the federal sentencing system.
B.

APPLICATION AND INTERPRETATION OF THE GUIDELINES

Sentencing after Booker, like sentencing under the mandatory guideline regime,
begins with consideration of the sentencing guidelines. For example, the Fourth Circuit
has stated: “In any given case after Booker, a district court will calculate, consult, and
take into account the exact same guideline range that it would have applied under the
pre-Booker mandatory guidelines regime.”146 Thus, the “guideline range remains the
starting point for the sentencing decision. And, if the district court decides to impose a
sentence outside that range, it should explain its reasons for doing so.”147 Indeed, courts
143

Booker, 543 U.S. at 264.
Id.
145
See 18 U.S.C. § 3742(a) & (b) (2005).
146
United States v. White, 405 F.3d 208, 219 (4th Cir. 2005), citing (Booker, 543 U.S. at 264); United States
v. Hughes II, 401 F.3d 540, 546 (4th Cir. 2005).
147
White, 405 F.3d at 219 (internal citations omitted). See also United States v. Vaughn, 430 F.3d 518 (2d
Cir. 2005) (“District courts remain statutorily obliged to calculate guidelines ranges in the same manner as
before Booker and to find facts relevant to sentencing by a preponderance of the evidence”); United States
v. Mares, 402 F.3d 511 (5th Cir. 2005) (stating that ordinarily, the sentencing judge must determine the
applicable guidelines range in the same manner as before Booker; this process includes finding all facts
relevant to sentencing using a preponderance of the evidence standard); United States v. Stone, 432 F.3d
651 (6th Cir. 2005) (“District courts . . . must, therefore, calculate the guideline range as they would have
done prior to Booker); United States v. Rodriguez-Alvarez, 425 F.3d 1041 (7th Cir. 2005) (“Sentencing
courts must continue to calculate the applicable guidelines range even though the guidelines are now
advisory.”); United States v. Pizano, 403 F.3d 991 (8th Cir. 2005) (stating that although the Guidelines are
144

have opined that “while [] the appropriate circumstances for imposing a sentence outside
the guideline range will depend on the facts of individual cases, we have no reason to
doubt that most sentences will continue to fall within the applicable guideline range.”148
In Booker, the Supreme Court adopted a remedy to the Sixth Amendment
violation that “maintains a strong connection between the sentence imposed and the
offender's real conduct―a connection important to the increased uniformity of
sentencing that Congress intended its Guidelines system to achieve.”149 Thus, Booker
reaffirmed the role of relevant conduct150 in the advisory guideline scheme.
Consequently, relevant conduct considerations continue to play an integral part of postBooker sentencing.151
Calculation of the guideline range continues to include factfinding by the court to
resolve disputed issues. Although defendants have argued that the sentencing judge is
now prohibited from resolving disputed facts during sentencing, those courts considering
the issue have rejected this argument. These courts reason that Booker does not prohibit

no longer mandatory, a sentencing court must still begin its analysis by considering them); United States v.
Cantrell, 433 F.3d 1269 (9th Cir. 2006) (holding that although district courts are not bound to sentence
within the applicable Guidelines ranges, district courts still must consult the Guidelines and take them into
account when sentencing); United States v. Medrano, No. 05-2057, 2006 WL 165017 (10th Cir. Jan. 24,
2006) (unpub.) (holding that although the guideline range is now advisory, the process of determining the
correct guideline range is the same); United States v. Talley, 431 F.3d 784 (11th Cir. 2005) (noting that
sentencing involves two steps—first calculate the guideline range then consider the 18 U.S.C. § 3553(a)
factors to determine a reasonable sentence).
148
United States v. White, 405 F.3d at 218. See also United States v. Mykytiuk, 415 F.3d 606, 607 (7th Cir.
2005) (“When the Supreme Court directed the federal courts to continue using the Guidelines as a source of
advice for proper sentences, it expected that many (perhaps most) sentences would continue to reflect the
results obtained through an application of the Guidelines”). This echoes sentiments expressed by many
witnesses at the Commission’s public hearing in February, 2005. See generally Appendix C.
149
Booker, 543 U.S. at 246.
150
See Guidelines Manual, §1B1.3 (2005), which provides that the defendant’s offense level shall be
determined on the basis of the following: (1)(A) all acts and omissions committed, aided, abetted,
counseled, commanded, induced, procured, or willfully caused by the defendant; and (B) in the case of a
jointly undertaken criminal activity (a criminal plan, scheme, endeavor, or enterprise undertaken by the
defendant in concert with others, whether or not charged as a conspiracy), all reasonably foreseeable acts
and omissions of others in furtherance of the jointly undertaken criminal activity, that occurred during the
commission of the offense of conviction, in preparation for that offense, or in the course of attempting to
avoid detection or responsibility for that offense; (2) solely with respect to offenses of a character for which
USSG §3D1.2(d) would require grouping of multiple counts, all acts and omissions described in
subdivisions (1)(A) and (1)(B) above that were part of the same course of conduct or common scheme or
plan as the offense of conviction; (3) all harm that resulted from the acts and omissions specified in
subsections (a)(1) and (a)(2) above, and all harm that was the object of such acts and omissions; and (4)
any other information specified in the applicable guideline.
151
See United States v. Killgo, 397 F.3d 628, 631, n.5 (8th Cir. 2005) (“Relevant conduct also relates to the
‘history and characteristics of the defendant,’ § 3553(a)(1), as well as the need to ‘protect the public from
further crimes of the defendant,’ § 3553(a)(2)(C). Using relevant conduct in sentencing a defendant also
aids in the ‘need to avoid unwarranted sentence disparities.’ 18 U.S.C. § 3553(a)(6)”); United States v.
Speelman, 431 F.3d 1226 (9th Cir. 2005) (stating that the district court may apply a cross reference based on
relevant conduct alleged on charges dismissed pursuant to a plea agreement).

any and all judicial factfinding.152 Instead, the circuits have held that Booker proscribes
only judicial factfinding that increases a sentence beyond the maximum authorized by the
jury verdict or supported by the defendant’s admissions. Likewise, arguments that the
burden of proof for judicial factfinding is now beyond a reasonable doubt have proved
unavailing. Most circuits have held that the district court may resolve factual disputes
using a preponderance of the evidence burden of proof.153 This same burden of proof
generally was applied to factual determinations in the pre-Booker mandatory guidelines
era.154
Furthermore, since Booker, the appellate courts have held that sentencing courts
may still consider reliable hearsay in fashioning a sentence in the advisory guidelines
Circuit courts also have held that the district judge can still consider
scheme.155
acquitted conduct in determining the guideline range, as long as the consideration of
acquitted conduct does not increase the sentence above the statutory maximum

152

United States v. Gonsalves, 435 F.3d 64, (1st Cir. 2006); United States v. Sheikh, 433 F.3d 905 (2d Cir.
2006); United States v. McKinney, 406 F.3d 744 (5th Cir. 2005); United States v. Coffee, 434 F.3d 887 (6th
Cir. 2006); United States v. Manning, No. 05-1406, 2005 WL 3557446 (8th Cir. Dec. 30, 2005) (unpub.);
United States v. Haack, 403 F.3d 997 (8th Cir. 2005); United States v. Fifield, 432 F.3d 1056 (9th Cir.
2005); United States v. Stephenson, 159 F.App’x 50 (10th Cir. 2005); United States v. Smith, No. 05-3252,
2005 WL 3485985 (10th Cir. Dec. 21, 2005) (unpub.).
153
United States v. Garcia, 413 F.3d 201 (2d Cir. 2005); United States v. Vaughn, 430 F.3d 518 (2d Cir.
2005); United States v. Ledesma, No. 05-1563, 2005 WL 3477715 (3d Cir. Dec. 20, 2005) (unpub.);
United States v. Mares, 402 F.3d 511 (5th Cir. 2005); United States v. Garcia-Gonon, 433 F.3d 587 (8th Cir.
2006); United States v. Tynes, No. 05-13035, 2005 WL 3536189 (11th Cir. Dec. 28, 2005) (unpub).
154
Prior to Booker, the courts of appeal have held that a preponderance of the evidence was sufficient for
most factfinding under the sentencing guidelines. See, e.g., United States v. Morgan, 384 F.3d 1, 5 (1st Cir.
2004); United States v. Leung, 360 F.3d 62, 67 (2d Cir. 2004); United States v. Mack, 229 F.3d 226, 233
(3d Cir. 2000); United States v. Hill, 322 F.3d 301, 307 (4th Cir. 2003); United States v. Bieganowski, 313
F.3d 264, 294 (5th Cir. 2002); United States v. Helton, 349 F.3d 295, 299 (6th Cir. 2003); United States v.
Peterson, 256 F.3d 612, 615 (7th Cir. 2001); United States v. Flores, 362 F.3d 1030, 1037 (8th Cir. 2004);
United States v. Gonzales, 307 F.3d 906, 909 (9th Cir. 2002); United States v. Keifer, 198 F.3d 798, 800
(10th Cir. 1999); United States v. Polar, 369 F.3d 1248, 1255 (11th Cir. 2004). But see United States v.
Kikumura, 918 F.2d 1084, 1101 (3d Cir. 1990) (holding that where “the magnitude of a contemplated
departure is sufficiently great that the sentencing hearing can fairly be characterized as ‘a tail which wags
the dog of the substantive offense,’” “the factfinding underlying that departure must be established at least
by clear and convincing evidence”); United States v. Jordan, 256 F.3d 922 (9th Cir. 2001) (holding when a
sentencing factor has extremely disproportionate effect on the sentence relative to offense of conviction,
due process requires that government prove the facts underlying the enhancement by clear and convincing
evidence).
155
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.
Katzopoulos, 437 F.3d 569 (6th Cir. 2006) (the defendant’s Sixth Amendment rights were not violated by
the admission of hearsay at sentencing); United States v. Luciano, 414 F.3d 174 (1st Cir. 2005) (Sixth
Amendment confrontation rights were not violated by the admission of hearsay at sentencing); United
States v. Martinez, 413 F.3d 239 (2d Cir. 2005) (post-Booker, the Sixth Amendment rights of confrontation
do not bar judicial consideration of hearsay at sentencing proceedings); 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").

sentence.156 These courts rely in part upon the Supreme Court’s decision in Watts157 and
18 U.S.C. § 3661 to support this conclusion.
C.

APPLICATION OF THE 18 U.S.C. § 3553(a) FACTORS

Once the court has correctly calculated the applicable guideline range, the court
must then consider the policy statements issued by the Commission in determining
guideline departure factors that may be applicable under the guidelines. After
considering guideline departure factors under the Commission’s policy statements, the
courts must then consider the factors set forth in 18 U.S.C. § 3553(a) before imposing the
sentence.158 Section 3553(a) states that a “court shall impose a sentence sufficient but not
greater than necessary to comply with the purposes set forth” herein. Those factors
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 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.159

156

United States v. Vaughn, 430 F.3d 518 (2d Cir. 2005); United States v. Ashworth, 139 F. App’x 525 (4th
Cir. 2005); United States v. Price, 418 F.3d 771 (7th Cir. 2005); United States v. Lynch, 437 F.3d 902 (9th
Cir. 2006) (en banc); United States v. Magallanez, 408 F.3d 672 (10th Cir. 2005); United States v. Duncan,
400 F.3d 1297 (11th Cir.), cert. denied, 126 S. Ct. 432 (2005).
157
See supra, n. 71.
158
See Hughes II, 401 F.3d at 546; Stone, 432 F.3d at 655; Talley, 431 F.3d at 786.
159
18 U.S.C. § 3553(a)(1)-(7).

The sentencing court need not categorically recite each of the 18 U.S.C. § 3553(a)
factors on the record when it imposes a sentence.160 Nevertheless, the record on appeal
must include sufficient evidence to demonstrate affirmatively the court's consideration of
these factors. The circuit courts are more likely to find “procedural unreasonableness in
the court's sentencing determination,” if a district court hides its reasoning or requires the
appellate court “to ponder and speculate” what the reasons for the sentence might have
been.161 Consequently, the sentencing court’s consideration of the 18 U.S.C. § 3553(a)
factors has become an essential part of the imposition of sentence.162
D.

REASONABLENESS REVIEW

Review of a sentence in the advisory system created by Booker begins with an
examination of the guideline calculation. Indeed, the appellate courts have concluded
that a sentence based on an error of law, including improper guideline calculation, is
unreasonable. As a result, the appellate courts first determine whether the sentencing
judge correctly calculated the guideline range. If the sentencing judge erred in
calculating the guideline range, the appellate courts do not reach the question of whether
the sentence is reasonable in light of all statutory factors. 163

160

United States v. McBride, 434 F.3d 470 (6th Cir. 2006); United States v. Dieken, 432 F.3d 906 (8th Cir.
2006); United States v. Scott, 426 F.3d 1324 (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”).
161
McBride, 434 F.3d at 476, n.3. See also United States v. Lenover, 157 F. App’x 917 (7th Cir. 2005)
(stating that the court cannot review the appellant’s sentence for reasonableness because the “absence of an
explanation leaves us in the dark as to the district judge’s reasons for rejecting the proffered § 3553 factors
and requires that the case be remanded to the district court”); United States v. Oduardo, No. 05-10921,
2006 WL 231645 (11th Cir. Feb. 11, 2006) (unpub.) (holding that to fashion a reasonable sentence, a
sentencing judge must be guided by the 18 U.S.C. § 3553(a) factors; the judge need not establish the
reasonableness of a sentence by explicitly considering every factor, but he must indicate in some way that
he adequately and properly considered appropriate factors in imposing a within- range sentence).
162
United States v. Till, 434 F.3d 880 (6th Cir. 2006).
163
See, e.g., United States v. Cantrell, 433 F.3d 1269 (9th Cir. 2006) (explaining that a reasonableness
review includes two steps: (1) first determining whether the sentencing court correctly calculated the
Guideline range, and (2) and then determining reasonableness; but, the court will review for reasonableness
only if the district court correctly calculated the Guidelines range—otherwise, the court will remand for
resentencing from the recommended sentencing range under the Guidelines.”); United States v. Williams,
435 F.3d 1350 (11th Cir. 2006) (holding that the first step in imposing a reasonable sentence is to correctly
calculate the Guidelines range); United States v. Price, 409 F.3d 436 (D.C. Cir. 2005) (stating that a
sentence is unreasonable, regardless of length, if it resulted from legal errors, which include improper
guideline calculations); United States v. Kristl, 437 F.3d 1050 (10th Cir. 2006).

The circuit courts have not changed the way they review challenges to the district
court’s application and interpretation of the sentencing guidelines. The courts still review
a district court’s factual findings for clear error and the district court’s conclusions of law
de novo.164 The courts applied the same type of review to factual findings and
conclusions of law before Booker.165
As stated previously, the Booker remedial opinion excised the de novo standard of
appellate review under 18 U.S.C. § 3742 and replaced it with a reasonableness review.
The reasonableness standard is necessarily deferential to the district court because
“‘reasonableness’ is inherently a concept of flexible meaning, generally lacking precise
boundaries.”166 One court has made clear that “[a]lthough this standard clearly requires
us to afford a degree of deference to the sentencing decisions of the district court,
‘reasonableness’ is not a code-word for ‘rubber stamp.’”167 To enable the court of
164

United States v. Robinson, 433 F.3d 31 (1st Cir. 2005) (observing that despite Booker’s reasonableness
standard, the court continues to review the district court’s interpretations of the legal meaning of the
sentencing guidelines de novo and its factual findings for clear error); United States v. Powell, 404 F.3d
678 (2d Cir. 2005) (stating that the question of what constitutes a separate conviction is a question of law
reviewed de novo); United States v. Savage, No. 04-5127, 2006 WL 10893 (4th Cir. Jan. 3, 2006) (unpub.)
(stating the court reviews the district court’s application of the sentencing guidelines de novo); United
States v. Amaya-Portillo, 423 F.3d 427 (4th Cir. 2005) (holding that the court of appeals reviews “the
district court’s imposition of the sentence enhancement de novo because it entails the interpretation of a
statute”); United States v. Villegas, 404 F.3d 355 (5th Cir. 2005) (holding that the de novo standard of
review still applies to determining whether the district court correctly interpreted and applied the
sentencing guidelines); United States v. Hazelwood, 398 F.3d 792 (6th Cir. 2005) (the court reviews the
district court’s factual findings for clear error and the district court’s conclusions of law de novo); United
States v. Arnaout, 431 F.3d 994 (7th Cir. 2005) (“[W]e continue to review the district court’s factual
findings at sentencing for clear error and the application of those facts to the Sentencing Guidelines de
novo”); United States v. Mashek, 406 F.3d 1012 (8th Cir. 2005) (stating that “the most appropriate standard
for reviewing a district court's interpretation and application of the guidelines is the de novo standard”);
United States v. Mathijssen, 406 F.3d 496 (8th Cir. 2005) (stating that the court continues to review the
interpretation and application of the guidelines provisions de novo); United States v. Speelman, 431 F.3d
1226 (9th Cir. 2005) (the court reviews the application of the guidelines de novo); United States v.
Kimbrew, 406 F.3d 1149, 1151 (9th Cir. 2005) (holding that after Booker, the court of appeals continues to
review the district court’s interpretation of the sentencing guidelines de novo, the court’s application of the
guidelines to the facts of a case for an abuse of discretion, and the court’s factual findings for clear error);
United States v. Souser, 405 F.3d 1162 (10th Cir. 2005) (the court reviews district court’s interpretation of
the guidelines de novo); United States v. Scott, No. 05-13132, 2005 WL 3501863 (11th Cir. Dec. 23, 2005)
(unpub.) (explaining that because Booker did not alter the court’s review of the application of the
sentencing guidelines, the court of appeals reviews the district court’s application of the sentencing
guidelines de novo); United States v. Crawford, 407 F.3d 1174 (11th Cir. 2005) (noting whether a factor is a
permissible ground for a downward departure is a question of law subject to de novo review).
165
See, e.g., United States v. Alegria, 192 F.3d 179, 191 (1st Cir. 1999); United States v. Vasquez, 389 F.3d
65, 74 (2d Cir. 2004); United States v. Cothran, 286 F.3d 173, 177 (3d Cir. 2002); United States v.
Montgomery, 262 F.3d 233, 248 (4th Cir. 2001); United States v. Miles, 360 F.3d 472, 481 (5th Cir. 2004);
United States v. Sandlin, 291 F.3d 875, 880 (6th Cir. 2002); United States v. Mabrook, 301 F.3d 503, 510
(7th Cir. 2002); United States v. Dabney, 367 F.3d 1040, 1043 (8th Cir. 2004); United States v. Castillo, 181
F.3d 1129, 1135 (9th Cir. 1999); United States v. Bolden, 23 Fed.App’x. 900, 904 (10th Cir. 2001); United
States v. Cook, 181 F.3d 1232 (11th Cir. 1999).
166
United States v. Dominguez-Hernandez, No. 05-1870-CR, 2005 WL 3528883 (2d Cir. Dec. 21, 2005)
(unpub.); see also United States v. Pizano, 403 F.3d 991 (8th Cir. 2005) (noting that in reviewing
reasonableness, the court asks whether the district court abused its discretion).
167
United States v. Moreland, 437 F.3d 424 (4th Cir. 2006).

appeals to review a sentence for reasonableness, the district court must articulate
carefully its reasons for the sentence imposed. “These reasons should be fact specific and
include, for example, aggravating or mitigating circumstances relating to personal
characteristics of the defendant, his offense conduct, his criminal history, relevant
conduct or other facts specific to the case at hand which led the court to conclude that the
sentence imposed was fair and reasonable.”168 “The determination of reasonableness
depends not only on an evaluation of the actual sentence imposed but also the method
employed in determining it.”169 The court of appeals must consider not only the length of
the sentence, but also the factors evaluated and the procedures employed by the district
court in imposing the sentence. A sentence is unreasonable if the district judge fails to
consider the sentencing guidelines or neglects to consider the 18 U.S.C. § 3553(a)
factors, and instead simply selects what he believes is an appropriate sentence.170
Moreover, “the farther the judge’s sentence departs from the guidelines sentence (in
either direction . . .), the more compelling the justification based on factors in section
3553(a) that the judge must offer.”171
Although Booker instructed appellate courts to review a sentence to determine if it
is unreasonable, the circuits have uniformly referred to such reviews as reasonableness
reviews. Six circuits ― the Fourth, Fifth, Sixth, Seventh, Eighth, and Tenth ― have held
that a sentence within the applicable guideline range is presumptively reasonable.172
These circuits reasoned that a per se or conclusively reasonable test would be
“inconsistent with the Supreme Court's decision in Booker, as such a standard ‘would
effectively re-institute mandatory adherence to the Guidelines.’”173 Exhibit 1 shows the
leading appellate decisions for each circuit discussing reasonableness or the weight of the
sentencing guidelines.

168

United States v. Hardin, 437 F.3d 463 (5th Cir. 2006).
United States v. Hughes, 401 F.3d 540 (4th Cir. 2005).
170
United States v. Webb, 403 F.3d 373 (6th Cir. 2005).
171
United States v. Dean, 414 F.3d 725 (7th Cir. 2005); see also United States v. Moreland, 437 F.3d 424
th
(4 Cir. 2006) (stating that the farther the court diverges from the advisory guideline range, the more
compelling the reasons for the divergence must be); United States v. McMannus, 436 F.3d 871 (8th Cir.
2006) (“[T]he farther the district court varies from the presumptively reasonable guidelines range, the more
compelling the justification based on the § 3553(a) factors must be.”).
172
United States v. Green, 436 F.3d 449 (4th Cir. 2006); United States v. Alonzo, 435 F.3d 551 (5th Cir.
2006); United States v. Williams, 436 F.3d 706 (6th Cir. 2006); United States v. Mykytiuk, 415 F.3d at 607;
United States v. Tobacco, 428 F.3d 1148 (8th Cir. 2005); United States v. Kristl, 437 F.3d 1050 (10th Cir.
2006).
173
United States v. Webb, 403 F.3d 373, 385 n.9 (6th Cir. 2005) citing United States v. Crosby, 397 F.3d
103, 115 (2d Cir. 2005). See also United States v. Alonzo, 435 F.3d 551 (5th Cir. 2006); United States v.
Cunningham, 429 F.3d 673 (7th Cir. 2005); Mykytiuk, 415 F.3d at 607;Talley, 431 F.3d at 786..
169

Exhibit 1
Leading Appellate Case in Each Circuit
Discussing Reasonableness or Weight of the Sentencing Guidelines
Circuit

Leading Case

Determination

First

United States v. Jiminez-Beltre,
No. 05-1268, 2006 WL 562154
(1st Cir. Mar. 9, 2006) (en banc).

“[T]he guidelines cannot be called just ‘another factor’ in
the statutory list because they are the only integration of
multiple factors.”

Second

United States v. Crosby, 397 F.3d
103 (2d Cir. 2005).

“[W]e decline to fashion any per se rules as to the
reasonableness of every sentence within an applicable
guideline or the unreasonableness of every sentence outside
an applicable guideline.”

Third

United States v. Cooper, 437 F.3d
324 (3d Cir. 2006).

“[A]ppellants have the burden of demonstrating
unreasonableness. A sentence that falls within the
guidelines range is more likely to be reasonable than one
outside the guidelines range.”

Fourth

United States v. Green, 436 F.3d
449 (4th Cir. 2006).

Guideline sentence is presumptively reasonable.

Fifth

United States v. Alonzo, 435 F.3d
551 (5th Cir. 2006).

Guideline sentence is presumptively reasonable.

Sixth

United States v. Williams,
436 F.3d 706 (6th Cir. 2006).

Guideline sentence is presumptively reasonable.

Seventh

United States v. Mykytiuk, 415
F.3d 606 (7th Cir. 2005).

Guideline sentence is presumptively reasonable.

Eighth

United States v. Lincoln, 413 F.3d
716 (8th Cir. 2005).

Guideline sentence is presumptively reasonable.

Ninth

United States v. Cantrell 433 F.3d
1269 (9th Cir. 2006).

“[W]e are stressing that district courts still ‘must consult
[the] [g]uidelines and take them into account when
sentencing,’ even thought they now have the discretion to
impose non-[g]uidelines sentences.”

Tenth

United States v. Kristl, 437 F.3d
1050 (10th Cir. 2005).

Guideline sentence is presumptively reasonable.

Eleventh

United States v. Talley, 431 F.3d
784 (11th Cir. 2005).

“When the district court imposes a sentence within the
advisory Guidelines range, we ordinarily will expect that
choice to be a reasonable one.” See also United States v.
Lisbon, No. 05-12637, 2006 WL 306343 (11th Cir. Feb. 10,
2006) (unpub.) (“A sentence within the guideline range is
not presumptively reasonable.”).

---

None as of the date of the report.

The Seventh Circuit, for example, explained the reasoning underlying its adoption
of a presumption of reasonableness for sentences within the guideline range. “The
Sentencing Guidelines represent at this point eighteen years' worth of careful
consideration of the proper sentence for federal offenses.”174 “[W]hile a per se or
conclusively presumed reasonableness test would undo the Supreme Court's merits
analysis in Booker, a clean slate that ignores the proper Guidelines range would be
inconsistent with the remedial opinion.”175 Because “[t]he Guidelines remain an essential
tool in creating a fair and uniform sentencing regime across the country… [t]he best way
to express the new balance, in our view, is to acknowledge that any sentence that is
properly calculated under the Guidelines is entitled to a rebuttable presumption of
reasonableness.”176 “The defendant can rebut this presumption only by demonstrating
that his or her sentence is unreasonable when measured against the factors set forth in §
3553(a).”177 Two other circuits ― the Eighth and the Eleventh ― have stated that the
guidelines were fashioned taking the other § 3553(a) factors into account.178
A recent opinion from the Sixth Circuit explained, however, that the presumption
of reasonableness “does not mean that a sentence outside of the Guidelines – either
higher or lower – is presumptively un reasonable.”179 Nor does it mean that a guidelines
sentence is reasonable in the absence of evidence that “the district court followed its
statutory mandate to ‘impose a sentence sufficient, but not greater than necessary’ to
comply with the purposes of sentencing in section 3553(a)(2).”180 In comparison, the
Second Circuit has stated that a sentence is not reasonable merely because it falls within
the applicable guideline range and that it is not unreasonable just because it falls outside
the applicable guideline range.181 While the circuit courts continue to consider the
reasonableness standard, the Commission has identified only one reported cases in which
a guideline sentence was held to be unreasonable.182
The following are illustrative examples of sentences above and below the
guideline range that the circuit courts have found to be reasonable. In United States v.
Adams,183 the Eighth Circuit upheld a sentence of 327 months, based upon an upward
departure from a guideline range of 188 to 235 months. Although recognizing that the
sentence was lengthy, the district court indicated that the lengthy sentence was necessary
174

Mykytiuk, 415 F.3d at 607.
Id.
176
Id. at 608.
177
Id.
178
See United States v. Claiborne, No. 05-2198, 2006 WL 452899 (8th Cir. Feb. 27, 2006) (“The Guidelines
were fashioned taking the other § 3553(a) factors into account and are the product of years of careful
study.”); United States v. Shelton, 400 F.3d 1325 (11th Cir. 2005) (“Indeed, the factors the Sentencing
Commission were required to use in developing the Guidelines are a virtual mirror image of the factors
sentencing courts are required to consider under Booker and § 3553(a).”).
179
United States v. Foreman, 436 F.3d 638 (6th Cir. 2006).
180
Id.
181
Crosby, 397 F.3d at 115.
182
United States v. Lazenby, No. 05-2216 (8th Cir. Mar. 10, 2006), available at
http://www.ca8.uscourts.gov.
183
401 F.3d 886 (8th Cir.), cert. denied, 126 S. Ct. 492 (2005). .
175

to ensure the community would be safe from the defendant’s behavior. In United States
v. Menyweather,184 the Ninth Circuit upheld as reasonable a probationary sentence with
the condition that the defendant pay restitution and spend 40 days in jail. This sentence
represented an 8-level reduction below the applicable guideline range. When imposing
the sentence, the district court relied on the defendant’s evidence that she suffered from
post-traumatic stress disorder and that she was the sole support for her minor child.185
The following are illustrative examples of sentences above and below the
guideline range that the circuit courts have found to be unreasonable. In United States v.
McMannus,186 the Eighth Circuit vacated a sentence that was 54 percent less than the
sentencing guideline range. The district court deviated from the sentencing guidelines
because of the defendant’s criminal history. The Eighth Circuit concluded that this basis
did not justify a variance of that magnitude. The Seventh Circuit found a sentence of
more than double the high end of the guideline range to be unreasonable in United States
v. Castro-Juarez.187 The district judge acknowledged the need to consider the 18 U.S.C.
§ 3553(a) factors but failed to single out any factor except the defendant’s criminal
history to support the non-guideline sentence. In United States v. Clark,188 the Fourth
Circuit explained that while considering state sentencing practices is not per se
unreasonable, deviating from the sentencing guidelines simply because a defendant
would have received a different sentence in state court, without considering the need to
avoid unwarranted sentence disparities among federal defendants with similar records
who have been found guilty of similar conduct, is unreasonable. The Eighth Circuit has
reversed several downward departures resulting from substantial assistance motions filed
by the government, concluding that the extent of the departures was unreasonable.189
Exhibit 2 shows selected appellate decisions addressing reasonableness.

184

431 F.3d 692 (9th Cir. 2005).
Judge Kleinfeld authored a vigorous dissent arguing that reasonableness still requires review and that
the appellate court may not properly defer to an unreasonable sentencing decision. He opined that the
grounds justifying the below-range sentence were insufficient even in the post-Booker advisory era. Id. at
702.
186
436 F.3d 871(8th Cir. 2006).
187
425 F.3d 430 (7th Cir. 2005).
188
434 F.3d 684 (4th Cir. 2006).
189
See, e.g., United States v. Coyle, 429 F.3d 1192 (8th Cir. 2005) (concluding that a 73% reduction was
unreasonably large given the extent of the defendant’s cooperation); United States v. Saenz, 428 F.3d 1159
(8th Cir. 2005) (holding that a 50% reduction in sentence is an extraordinary reduction and the district court
was wrong to conclude that a defendant who cooperates truthfully and timely always warrants a 50%
reduction); United States v. Dalton, 404 F.3d 1029 (8th Cir. 2005) (stating that a 75% downward departure
was unreasonable when the district judge placed a higher value on the defendant’s assistance than the
government did and viewed the defendant as a drug offender with a good chance at being rehabilitated). .
185

Exhibit 2
Reasonableness Review Doctrines for Selected Appellate Decisions
AFFIRMANCES
Within-Guideline Range as Reasonable

REVERSALS/REMANDS
Within-Guideline Range as Unreasonable

Numerous

United States v. Lazenby, No. 05-2214 (8th Cir. Mar. 10, 2006).

Below-Guideline Range as Reasonable

Below-Guideline Range as Unreasonable

United States v. Berni, No. 05-1678, 2006 WL 463173 (8th Cir. Feb. 28, 2006).
United States v. Burns, No 04-2901, 2006 WL 345850 (8th Cir. Feb. 16, 2006).
United States v. Pizano, 403 F.3d 991 (8th Cir. 2005).
United States v. Menyweather, 431 F.3d 692 (9th Cir. 2005).
United States v. Williams, 435 F.3d 1350 (11th Cir. 2006).
United States v. Montgomery, No. 05-13935, 2006 WL 284205
(11th Cir. Feb. 7, 2006)(unpub.).

United States v. Pho, 433 F.3d 53 (1st Cir. 2006).
United States v. Eura, No. 05-4437, 2006 WL 440099 (4th Cir. Feb. 24, 2006).
United States v. Moreland, 437 F.3d 424 (4th Cir. 2006).
United States v. Clark, 434 F.3d 684 (4th Cir. 2006).
United States v. Duhon, No. 05-30387, 2006 WL 367017 (5th Cir. Feb 17, 2006).
United States v. Castillo, 430 F.3d 230 (5th Cir. 2005).
United States v. Claiborne, No. 05-2198, 2006 WL 452899
(8th Cir. Feb. 27, 2006).
United States v. Gatewood, No. 05-1865, 2006 WL 452902
(8th Cir. Feb. 27, 2006).
United States v. Shafer, No. 05-2049, 2006 WL 453200 (8th Cir. Feb. 27, 2006).
United States v. McMannus, 436 F.3d 871 (8th Cir. 2006).
United States v. Coyle, 429 F.3d 1192 (8th Cir. 2005).
United States v. Saenz, 428 F.3d 1159 (8th Cir. 2006).
United States v. Rogers, 400 F.3d 640 (8th Cir. 2005).
United States v. Dalton, 404 F.3d 1029 (8th Cir. 2005).
United States v. Devegter, No. 04-14075, 2006 WL 345849
(11th Cir. Feb. 16, 2006).

Above-Guideline Range as Reasonable
United States v. Fairclough, No. 05-2799, 2006 WL 465367 (2d Cir. Feb. 17, 2006).
United States v. Reinhart, No 05-30245, 2006 WL 541037 (5th Cir. Mar. 7, 2006).
United States v. Zuniga-Peralta, No. 04-50575, 2006 WL 522459
(5th Cir. Mar. 6, 2006).
United States v. Smith, No 05-30313, 2006 WL 367011 (5th Cir. Feb. 17, 2006).
United States v. Smith, 417 F.3d 483 (5th Cir. 2005).
United States v. Saldana, 427 F.3d 298 (5th Cir. 2005).
United States v. Jordan, 435 F.3d 693 (7th Cir. 2006).
United States v. Johnson, 427 F.3d 425 (7th Cir. 2005).
United States v. Long, 425 F.3d 482 (7th Cir. 2005).
United States v. Larrabee, 436 F3.d 890 (8th Cir. 2006).
United States v. Rogers, 423 F.3d 823 (8th Cir. 2005).
United States v. Winters, 416 F.3d 856 (8th Cir. 2005).
United States v. Shannon, 414 F.3d 921 (8th Cir. 2005).
United States v. Adams, 401 F.3d 886 (8th Cir. 2005).

Above-Guideline Range as Unreasonable
United States v. Castro-Juarez, 425 F.3d 430 (7th Cir. 2005).
United States v. Wolfe, 435 F.3d 1289 (10th Cir. 2006).

Reversed/Remanded For Further Explanation
United States v. Cunningham, 429 F.3d 673 (7th Cir. 2005).
United States v. Castro-Juarez, 425 F.3d 430 (7th Cir. 2005).
United States v. Myers, No. 05-1543, 2006 WL 488411 (8th Cir. Mar. 2, 2006).
United States v. Feemster, 435 F.3d 881 (8th Cir. 2006).

JURISDICTION

Separate and apart from the reasonableness analysis, circuit courts also are
examining issues of jurisdiction. Congress provided for limited appellate review of
sentences in the SRA.190 Before Booker, neither the defendant nor the government had
the right to appeal a sentence within a properly calculated guideline range. The appellate
courts simply lacked jurisdiction to review such a sentence. Booker did not excise the
relevant portions of 18 U.S.C. § 3742 that established limited review. Hence, many have
drawn the legal conclusion that Booker rendered no change to the review standard for
within-range sentences.
To date, that conclusion has found no support in any reported cases.191 Following
Booker, the government has raised jurisdictional challenges to the review of within-range
sentences. These challenges have not been successful. Three circuits categorically have
rejected the argument.192 These circuits reason that a within-range sentence might be
unreasonable in a particular case. The sentence would therefore be “in violation of the
law” and subject to review under 18 U.S.C. § 3742(a)(1).
Prior to Booker, the circuit courts agreed that they lacked jurisdiction to review
the denial of a motion to depart downward if the district court correctly understood its
authority to depart downward and declined to exercise that discretion.193 The circuit
courts agree post-Booker that a district judge’s denial of a motion for downward
departure is still unreviewable.194 With the Supreme Court’s excision of the de novo
standard of review for departures, the appellate courts have reverted to the standard of

190

See 18 U.S.C. § 3742(a), (b).
It has, however, been the subject of some concurring/dissenting opinions. See United States v. Cooper,
437 F.3d 324.(3d Cir. 2006) (Judge Aldisert, concurring in part, dissenting in part).
192
United States v. Jimenez-Beltre, No. 05-1268, 2006 WL 562154 (1st Cir. Mar. 9, 2006);United States v.
Martinez, 434 F.3d 1318 (11th Cir. 2006) (rejecting the government’s argument that the court cannot review
a guidelines sentence because an unreasonable sentence would violate the law and therefore is subject to
review under 18 U.S.C. § 3742(a)(1)); United States v. Mickelson, 433 F.3d 1050 (8th Cir. 2006) (rejecting
the government’s argument that the court cannot review a sentence that falls within the guidelines range
because “an unreasonable sentence would be ‘in violation of law’ and subject to review under 18 U.S.C. §
3742(a)(1) regardless of whether it was within the guideline range”).
193
See, e.g., United States v. Castelli, 392 F.3d 35, 54-55 (1st Cir. 2004); United States v. Scott, 387 F.3d
139, 142 (2d Cir. 2004); United States v. Minutoli, 374 F.3d 236, 239 (3d Cir. 2004); United States v.
Shaw, 313 F.3d 219, 222 (4th Cir. 2002); United States v. Buck, 324 F.3d 786, 797 (5th Cir. 2003); United
States v. Clark, 385 F.3d 609, 622 (6th Cir. 2004); United States v. Fudge, 325 F.3d 910, 917-18 (7th Cir.
2003); United States v. Lopez-Arce, 267 F.3d 775, 784-85 (8th Cir. 2001); United States v. Smith, 330 F.3d
1209, 1212 (9th Cir. 2003); United States v. Alcorn, 329 F.3d 759, 768 (10th Cir. 2003); United States v.
Liss, 265 F.3d 1220, 1231 (11th Cir. 2001).
194
United States v. Melendez-Torres, 420 F.3d 45 (1st Cir. 2005); United States v. Morrell, 138 F. App’x
373 (2d Cir. 2005); United States v. Forbes, No. 04-4211, 2006 WL 197581 (3d Cir. Jan. 27, 2006)
(unpub.); United States v. Hatcher, 132 F. App’x 468 (4th Cir. 2005) ;United States v. Puckett, 422 F.3d
340 (6th Cir. 2005); United States v. Baretz, 411 F.3d 867 (7th Cir. 2005); United States v. Frokjer, 415 F.3d
865 (8th Cir. 2005); United States v. Hagberg, 138 F. App’x 949 (9th Cir. 2005); (United States v. SierraCastillo, 405 F.3d 932, 936 (10th Cir. 2005); United States v. Winingear, 422 F.3d 1241 (11th Cir. 2005).
191

review for departures enunciated in Koon v. United States.195 Accordingly, when the
district court departs from the guidelines range, the appellate courts consider whether the
departure constituted an abuse of the court’s discretion.196
F.

OTHER APPELLATE SENTENCING ISSUES
1.

Crack and Powder Cocaine

To date, no circuit court has concluded that a policy disagreement with the crack
cocaine and powder cocaine sentencing ratio is a proper basis for imposing a nonguideline sentence.197 In several cases, the circuit courts have affirmed sentences within
the applicable guideline range, dismissing arguments that the sentences are unreasonable
because of the disparity caused by the ratio.198
The First Circuit considered the reasonableness of a below range sentence
imposed in a case involving crack cocaine in which the district court judge expressed his
disagreement with the 100:1 crack:powder sentencing ratio.199 The district court then
fashioned the sentence using a 20:1 crack:powder ratio. The First Circuit reversed the
sentence, holding that “the district court erred as a matter of law when it constructed a
new sentencing range based on the categorical substitution of a 20:1 crack-to-powder
ratio for the 100:1 crack:powder ratio embedded in the sentencing guidelines.”200 The
court further noted that “this holding recognizes that sentencing decisions must be done
case by case and must be grounded in case-specific considerations…”201 Accordingly, in
the post-Booker advisory guidelines scheme, a district court’s general disagreement with
195

518 U.S. 81, 98 (1996).
See United States v. Fuller, 426 F.3d 556 (2d Cir. 2005); United States v. Saldana, 427 F.3d 298 (5th Cir.
2005); United States v. Williams, 432 F.3d 621 (6th Cir. 2005); United States v. Macedo, 406 F.3d 778 (7th
Cir. 2005); United States v. Mashek, 406 F.3d 1012 (8th Cir. 2005); United States v. Menyweather, 431 F.3d
692 (9th Cir. 2005); United States v. Serrata, 425 F.3d 886 (10th Cir. 2005); United States v. Magluta, 418
F.3d 1166 (11th Cir. 2005). But see United States v. Johnson, 427 F.3d 423, 426 (7th Cir. 2005) (“It is now
clear that after Booker what is at stake is the reasonableness of the sentence, not the correctness of the
‘departures’ as measured against pre-Booker decisions that cabined the discretion of sentencing courts to
depart from guidelines that were then mandatory”).
197
See Chapter 6 E for a discussion of the crack powder/powder cocaine sentencing ratio.
198
United States v. Morrison, 152 F. App’x 385 (5th Cir. 2005) (rejecting the appellant’s argument that he
should have received a lesser sentence due to the disparity in the punishment imposed for offenses
involving powder cocaine because sentencing judges must still consult the Guidelines and the guidelines
distinction between crack and powder cocaine remains intact); United States v. Gipson, 425 F.3d 335 (7th
Cir. 2005) (noting that where the district court imposes a sentence within the Guideline range, it is not
unreasonable to refuse to consider the differential in sentences for crack cocaine versus powder cocaine);
United States v. Cawthorn, 429 F.3d 793 (8th Cir. 2005) (observing that sentencing within the Guidelines
based on the crack-powder disparity is not inherently unreasonable). But see United States v. Stephen, No.
05-2100, 2005 WL 3479301 (7th Cir. Dec. 20, 2005) (unpub.)(noting that although the court previously
held that it was not unreasonable for the district court to depart downward on the discrepancy between
Guideline ranges for crack and powder cocaine, “[n]othing prevents the district court from considering the
discrepancy in selecting a reasonable sentence”).
199
United States v. Pho, 433 F.3d 53 (1st Cir. 2006).
200
Id. at 64-65.
201
Id. at 65.
196

broad-based policies enunciated by Congress or the Commission, as its agent, cannot
serve as the basis for sentencing outside the applicable guidelines range.202
The Fourth Circuit categorically has rejected imposition of below-range sentences
based solely on a rejection of congressional policy in a crack cocaine case. In United
States v. Eura,203 the court stated that “[i]n arriving at a reasonable sentence, the court
simply must not rely on a factor that would result in a sentencing disparity that totally is
at odds with the will of Congress.”204
2.

Early Disposition Programs

The Commission has not identified any reported cases in which circuit courts
have upheld sentences below the guidelines range in non-Early Disposition Programs
(EDP)205 districts, because the district court cited the resulting disparity between districts
that qualify for EDP departures and those that do not qualify. Two circuits have rejected
the defendant’s argument that the sentence was unreasonable because the district judge
failed to consider the unwarranted disparities in sentencing created by the existence of
EDP in other jurisdictions. These circuits explained that the policymaking branches of
government can determine that certain disparities are warranted and thus courts need not
avoid the disparity created by these programs.206
G.

STATUTORY PENALTY SCHEMES
1.

Armed Career Criminal Act

In Booker, the Supreme Court repeated its holding in Apprendi that facts “other
than a prior conviction” are subject to the jury requirements of the Sixth Amendment. As
a result, the circuits that have addressed Booker’s effect on the Armed Career Criminal
Act207 have agreed that the fact of a prior conviction is not a fact that a jury must find
202

Id.
Nos. 05-4437, 05-4533, 2006 WL 440099 (4th Cir. Feb. 24, 2006)
204
Id. at *6. See also United States v. Moreland, 437 F.3d 424 (4th Cir. 2006)(observing that to the extent
that the sentence imposed by the district court rests on a rejection of congressional policy with respect to
repeat drug offenders, it is subject to reversal on that basis alone).
205
See Chapter 6 G for a discussion of early disposition programs.
206
United States v. Sebastin, 436 F.3d 913 (8th Cir. 2006); United States v. Hernandez-Cervantes, No. 055414, 2005 WL 3529114 (6th Cir. Dec. 23, 2005) (unpub.) (rejecting the appellant’s argument that his
sentence was unreasonable because the district judge failed to consider the unwarranted disparities in
sentencing created by the existence of fast-track programs in other jurisdictions, in part, because Congress
explicitly authorized such disparities the PROTECT Act). See also United States v. Martinez-Flores, 428
F.3d 22, 30 n. 3 (1st Cir. 2005) (“It is arguable that even post-Booker, it would never be reasonable to
depart downward based on disparities between fast-track and non-fast-track jurisdictions given Congress'
clear (if implied) statement in the PROTECT Act provision that such disparities are acceptable”).
207
18 U.S.C. § 924(e)(1), which states: “In the case of a person who violates section 922(g) of this title and
has three previous convictions by any court referred to in section 922(g)(1) of this title for a violent felony
or a serious drug offense, or both, committed on occasions different from one another, such person shall be
fined under this title and imprisoned not less than fifteen years, and, notwithstanding any other provision of
law, the court shall not suspend the sentence of, or grant a probationary sentence to, such person with
respect to the conviction under section 922(g).”
203

beyond a reasonable doubt.208 The circuits do differ about the extent of this exception.
The majority of circuits extend the exception to facts they characterize as inherent in the
fact of a conviction.209
2.

Mandatory Minimum Sentences

The circuit courts have reasoned that Booker does not apply to mandatory
minimum sentences, which are driven by statutes, not by the sentencing guidelines.
Thus, district courts still must comply with the requirements of mandatory minimum
statutes.210 The recognized exceptions to this rule remain; the court may depart below
the mandatory minimum sentence upon the filing of a government motion based upon

208

See, e.g., United States v. Lewis, 406 F.3d 11 (1st Cir. 2005); United States v. Ivery, 427 F.3d 69 (1st Cir.
2005); United States v. Ordaz, 398 F.3d 236 (3d Cir. 2005); United States v. Thompson, 421 F.3d 278 (4th
Cir. 2005); United States v. Martin, 431 F.3d 846 (5th Cir. 2005); United States v. Barnett, 398 F.3d 516
(6th Cir. 2005); United States v. Powers, 129 F. App’x 942 (6th Cir. 2005) ; United States v. Lewis, 405
F.3d 511 (7th Cir. 2005); United States v. Brown, 417 F.3d 1077 (9th Cir. 2005); United States v. Moore, 401
F.3d 1220 (10th Cir. 2005); United States v. Burge, 407 F.3d 1183 (11th Cir. 2005).
209
See, e.g., United States v. Thompson, 421 F.3d 278 (4th Cir. 2005) (holding that the date on which a prior
crime was committed is a fact inherent in the fact of a prior conviction and does not have to be admitted by
the defendant or found by a jury and observing that the fact of a prior conviction cannot be severed from its
essential components, e.g., whether prior convictions occurred on different occasions; “some facts are so
inherent in a conviction that they need not be found by a jury”); United States v. Powers, 129 F. App’x 942
(6th Cir. 2005) (“the determination by a district court that prior convictions exist and were committed on
‘different occasions,’ are so intimately related that the ‘different occasions’ requirement of § 924(e)
sufficiently comes within the exception in Apprendi.”); United States v. Carrillo-Beltran, 424 F.3d 845 (8th
Cir. 2005) (stating that in addition to determining the “fact of a prior conviction,” the court can also
determine those facts so intimately related to the prior conviction to fall within the Apprendi exception;
thus, a court can determine whether the defendant has a prior conviction under an alias); United States v.
Corchado, 427 F.3d 815, 820 (10th Cir.2005) (holding that the prior-conviction exception extends to
subsidiary findings such as whether a defendant was under court supervision at the time of the subsequent
crime and when the defendant was released from prison; “such facts are merely aspects of the defendant’s
recidivist potential, are easily verified, and their application for purposes of enhancing a sentence requires
nothing more than official records, a calendar, and the most self-evident mathematical computation”);
United States v. Greer, 435 F.3d 1327 (11th Cir. 2006) (“There is no reason the Constitution would permit a
judge to decide whether the person the conviction documents describe was the defendant but forbid the
judge from deciding what type of crime those same documents describe. . . . If a judge may determine the
facts about whether the defendant has been convicted, a judge may determine the facts about the type of
crime for which he was convicted.”). But see United States v. Kortgaard, 425 F.3d 602 (9th Cir. 2005)
(finding that the guideline range did not adequately represent the seriousness of defendant’s criminal
history and that likelihood of recidivism is not within the Apprendi exception; “[t]he mere fact that the
sentencing judge considered prior convictions in departing upward does not bring this case within the
exception for ‘the fact of a prior conviction’”).
210
United States v. Sanchez-Berrios, 424 F.3d 65 (1st Cir. 2005); United States v. Sharpley, 399 F.3d 123
(2d Cir. 2005); United States v. Robinson, 404 F.3d 850 (4th Cir. 2005); United States v. Smith, 419 F.3d
521 (6th Cir. 2005); United States v. Ngamwuttibal, Nos. 04-5818, 04-6019 , 2006 WL 45256 (6th Cir. Jan.
9, 2006) (unpub.); United States v. Lee, 399 F.3d 864 (7th Cir. 2005); United States,v. Cannon, 429 F.3d
1158 (7th Cir. 2005); United States v. Blaylock, 421 F.3d 758 (8th Cir. 2005); United States v. Cardenas,
405 F.3d 1046 (9th Cir. 2005); United States v. Payton, 405 F.3d 1168, 1173 (10th Cir.2005); United States
v. Cherry, 433 F.3d 698 (10th Cir. 2005); United States v. Shelton, 400 F.3d 1325 (11th Cir. 2005).

substantial assistance under 18 U.S.C. § 3553(a), or if the defendant qualifies for the
“safety valve” under 18 U.S.C. § 3553(f).211
H.

APPELLATE COURT JURISPRUDENCE CONTINUES TO EVOLVE

As has been discussed throughout this report, the federal criminal justice system
continues to adapt to Booker. Nevertheless, the evolution of appellate jurisprudence
occurs gradually rather than overnight. Thus, issues known to be of interest to the
Commission and the rest of the criminal justice community have not been answered in all
circuits. For example, as noted earlier, six circuits have adopted a presumption of
reasonableness for a guidelines sentence. One circuit ― D.C.– has not addressed the
issue in any published or unpublished opinions. The Third Circuit has expressly noted
that it is unnecessary to adopt a presumption of reasonableness because the appellant
already has the burden of demonstrating that the sentence is unreasonable.212 The
Eleventh Circuit has noted in an unpublished case that it rejects the presumption of
reasonableness.213 The Second Circuit seems to have rejected the presumption of
reasonableness, and the Ninth Circuit recently appeared to adopt the standard, but then
issued a corrected opinion which deleted reference to the presumption of
reasonableness.214
Regardless of any standard adopted, only one circuit court has held a properly
calculated guideline sentence to be unreasonable.215 No circuit court has upheld a belowrange sentence granted on the basis of either a prohibited factor or the defendant’s
cooperation without a government motion having been filed. Further, courts generally
appear to reversing below- ranges sentences more often than above-range sentences.216
Finally, many circuits have rejected disagreement with congressional policies as a
legitimate basis to impose a below-range sentence. The First and Fourth Circuits have
discussed this in the context of crack cocaine. The Sixth and Eighth Circuits have
211

See United States v. Robinson, 404 F.3d 850 (4th Cir. 2005) (“Except upon motion of the Government on
the basis of substantial assistance, a district court still may not depart below a statutory minimum.”). See
also 18 U.S.C. § 3553(f) (2005). It is also the subject of supplemental briefing. See United States v.
Plouffe, 437 F.3d 917(9th Cir. 2006) (parties ordered to file supplemental briefs about whether the court
has jurisdiction to review a within-range sentence).
212
See United States v. Cooper, 437 F.3d 324 (3d Cir. 2006).
213
See United States v Lisbon, No. 04-00441, 2006 WL 306343 (11th Cir. Feb. 10, 2006) (unpub.).
214
See United States v. Crosby, 397 F.3d 103 (2d Cir. 2005); United States v. Guerrero-Velasquez, 434
F.3d 1193 (9th Cir. 2006) (the corrected version of the opinion). The first version of the opinion, United
States v. Guerrero-Velasquez, No. 05-30066, n. 1 (9th Cir. Jan. 19. 2006), is available at
http://www.ca9.uscourts.gov.
215
United States v. Lazenby, No. 05-2216 (8th Cir. Mar. 10, 2006), available at
http://www.ca8.uscourts.gov.
216
United States v. Eura, Nos. 05-4437, 05-4533, 2006 WL 440099 (4th Cir. Feb. 24, 2006) (reversing
below-range sentence);United States v. Duhon, No. 05-30387, 2006 WL 367017 (5th Cir. Feb. 17, 2006)
(same); United States v. Claiborne, No. 05-2198, 2006 WL 452899 (8th Cir. Feb. 27, 2006) (same); United
States v. Gatewood, No. 05-1865, 2006 WL 452902 (8th Cir. Feb. 27, 2006) (same); United States v. Shafer,
No. 05-2049, 2006 WL 453200 (8th Cir. Feb. 27, 2006) (same). Cf. United States v. Fairclough, No. 052799, 2006 WL 465367 (2d Cir. Feb. 17, 2006) (affirming above-range sentence); United States v. Rogers,
423 F.3d 823 (8th Cir. 2005) (same);

considered the issue as it relates to Congress’ fast track policies. Finally, the Fifth Circuit
has reversed a sentence in a pornography case 217 on this basis.

217

United States v. Duhon, No. 05-30387, 2006 WL 367017 (5th Cir. Feb. 17, 2006) (“We agree with the
First and Eighth Circuits that a sentencing disparity intended by Congress is not unwarranted”).

Chapter 3

IMPLEMENTATION OF THE ADVISORY GUIDELINE SYSTEM
The Commission and other actors in the criminal justice system took immediate
steps to implement the advisory guideline system. This chapter summarizes the results
of the Commission’s efforts to implement the system in the year following Booker.
A.

EMPHASIS ON DOCUMENT SUBMISSION REQUIREMENTS

The Commission maintains a comprehensive, computerized data collection
system that forms the basis for its clearinghouse of federal sentencing information.218
The Commission relies upon this database for its ongoing monitoring and evaluation of
the guidelines, for many of its research projects, and for responding to the hundreds of
data requests received from Congress and other criminal justice entities each year. For
each case sentenced under the guidelines, the Commission routinely collects hundreds of
pieces of information, including defendant demographics, statutes of conviction,
sentencing guideline applications, and sentences imposed.219
The Prosecutorial Remedies and Other Tools to end the Exploitation of Children
Today (PROTECT) Act of 2004220 established new statutory documentation requirements
aimed in part at improving the Commission’s ability to collect and report complete and
accurate sentencing data. Section 401(h) of the PROTECT Act, entitled “Improved Data
Collection,” amended 28 U.S.C. § 994(w) to state―
The Chief Judge of each district court shall ensure that, within 30 days
following entry of judgment in every criminal case, the sentencing court
submits to the Commission a written report of the sentence, the offense for
which it is imposed, the age, race, sex of the offender, and information
regarding factors made relevant by the guidelines. The report shall also
include―
(A) the judgment and commitment order;
(B) the statement of reasons for the sentence imposed
(which shall include the reason for any departure from the
otherwise applicable guideline range);
(C) any plea agreement;

218

See 28 U.S.C. § 995(a)(14),(15).
See Commission, REPORT TO CONGRESS: DOWNWARD DEPARTURES FROM THE SENTENCING
GUIDELINES (October 2003) [hereinafter “2003 DEPARTURES REPORT”] at 25.
220
Pub. L. No. 108–21, 117 Stat. 650, hereinafter the “PROTECT Act”; see also 28 U.S.C. § 994(w) and
18 U.S.C. § 3553(c).
219

(D) the indictment or other charging document;
(E) the presentence report; and
(F) any other information as the Commission finds
appropriate.221
The PROTECT Act also amended 18 U.S.C. § 3553(c) to require the sentencing court, if
imposing a sentence outside the prescribed guidelines range, to state “the specific reason”
for departing from the guidelines “with specificity in the written order of judgment and
commitment.”
Immediately following Booker, a portion of the federal criminal justice
community expressed uncertainty abut Booker’s impact on the PROTECT Act’s statutory
documentation submission requirements, prompting the need for immediate action. On
January 21, 2005, United States District Judge Sim Lake, Chair of the Criminal Law
Committee of the Judicial Conference, and United States District Judge Ricardo H.
Hinojosa, the Chair of the Commission, issued a joint memorandum to all United States
District Judges and other court personnel reminding them of the duty to continue
fulfilling the document submission requirements imposed by the PROTECT Act. The
memorandum emphasized that the Booker decision had rendered no changes to the
relevant statutes mandating submission of documents to the Commission.222
The Chair of the Commission also participated in a broadcast presented by the
Federal Judicial Center entitled “Federal Sentencing after Booker,” in which the
Commission reiterated that the courts should continue to submit five specific sentencing
documents to the Commission within 30 days of entry of judgment: Submission of the
sentencing documents is of the utmost importance to enable the Commission to generate
the sentencing data needed to evaluate the impact of Booker.
B.

REAL-TIME DATA COLLECTION AND REPORTING

The Commission reorganized its data receipt, analysis, editing, and reporting
tasks to provide real-time post-Booker information to the federal criminal justice
community, Congress, and other interested persons. For the past fourteen months, the
Commission has analyzed post Booker sentencing data to monitor the proportion of
within-range and out-of-range sentences. These data have been updated and published
nearly every month since the Booker decision.223 The Commission also has performed
in-depth analyses of trends evidenced by the data. The results of these analyses are
221

Section 994(w) previously did not contain a 30-day deadline for submission of the documents and did
not impose a duty on the Chief Judge of each district to ensure compliance with this section. Additionally,
the only document specifically required by statute to be submitted to the Commission prior to the
PROTECT Act was a “written report of the sentence.” Other documents were submitted to the
Commission pursuant to a longstanding Memorandum of Understanding between the Administrative Office
of the United States Courts and the Commission. See 2003 DEPARTURES REPORT at 24, n.65.
222
For the text of the memorandum, see http://www.ussc.gov/Blakely/DIR5-014.PDF.
223
The Commission’s Post-Booker sentencing updates are available at http://www.ussc.gov.

discussed in the following chapters of this report. Recognizing that comparisons of
historical guideline trends and trends in the post-Booker system might provide further
insight into the efficacy of the advisory guideline system, the Commission also recently
released data tables including information on all guideline calculations performed on
cases received during Fiscal Years 2003 and 2004.
Booker presented new challenges to the Commission’s data collection efforts.
The existing Statement of Reasons form had been tailored to capture information in a
mandatory guideline regime. It did not provide a suitable format for reporting
information about sentences outside the guideline range, which were not based upon
reasons for departure limited to, and affirmatively and specifically identified, in the
policy statements and commentary of the Guidelines Manual. For approximately 6
months after the decision, courts used the old form, modified it, or created their own.
This lack of uniformity in reporting sentencing data impacted the Commission’s
collection efforts.
As part of its continuing efforts to improve data collection, the Commission
assisted the Judicial Conference with revisions to the Statement of Reasons Form
(AO245B (Rev. 6/05)). These revisions were designed to capture more accurately the
courts’ reasons for imposing sentences outside the advisory guideline range. The revised
form distinguishes between sentences within the advisory guideline range, departures
provided for by the guidelines, and sentences outside the advisory guideline system. The
changes to the form will enable the Commission to report with greater specificity the
impact of Booker on federal sentences.
The Commission encourages all districts to use the standardized form.224
Uniformity in the method of reporting sentencing information will augment the
completeness and accuracy of the Commission’s sentencing data, which are directly
dependent on the documentation the Commission receives from the sentencing courts.
The judicial districts generally are highly compliant with document submission
requirements. The Commission has, as of the date of this report, received documentation
for Fiscal Year 2005 at an overall rate of 98.4 percent.
The Commission also implemented an electronic submission program designed to
enable the federal district courts to submit required documentation to the Commission, in
“pdf” format. After conducting a successful pilot program involving 5 districts, the
Commission implemented the program nationwide. To date, 64 districts are submitting
their sentencing documentation electronically. The Commission’s goal is to achieve 100
percent participation by Fiscal Year 2007. Participation in the program is cost-effective
224

The advisory committee for the Federal Rules of Criminal Procedure has taken steps to impose
uniformity with respect to use of the statement of reasons form. See Proposed Rules Change to Fed. R.
Crim. P. 32 (Judgment)(proposing to amend Rule 32(k) to require courts to use the judgment form, which
includes the statement of reasons form, prescribed by the Judicial Conference of the United States).
Congress also has taken steps to address this documentation issue through the Patriot Act conference
report. See Sec. 735, H. REP. 109-174, Pt. I (requiring submission by courts of a “written statement of
reasons form issued by the Judicial Conference and approved by the United States Sentencing
Commission.”).

for the courts, eliminating postage and copying costs. The ease of submission of the
documents is a time-saving device, as well. Finally, the Commission anticipates that the
on-line submission of documents eventually will result in a completely paperless file
storage system.
C.

TESTIMONY BEFORE CONGRESS

On February 10, 2005, the Commission presented testimony at an oversight
hearing on the Implications of the Booker for the sentencing guidelines before the
Subcommittee on Crime, Terrorism, and Homeland Security of the House Judiciary
Committee. The Chair of the Commission testified on its behalf, stating that the Booker
decision rendered no changes to the Commission’s statutory obligations under the
SRA.225 Moreover, although excising the statutory provisions that made the guidelines
mandatory, the decision instructed that “district courts, while not bound to apply the
Guidelines, must consult those guidelines and take them into account when sentencing,”
subject to review by the courts of appeal for unreasonableness.226 Thus, “the guidelines
remain an important and essential factor in the imposition of Federal sentences.”227
The Commission, through its Chair, explained that “the Booker decision makes
clear that the sentencing courts must consider the guidelines and that such consideration
necessarily requires the sentencing court to calculate the guideline sentencing range and
consider the departure policy statements of the Federal sentencing guidelines.”228
Although the decision does not expressly address the question of how much weight the
guidelines should be accorded by the sentencing court, “[t]he Commission believes that
the courts should give substantial weight to the guidelines in determining the appropriate
sentence because as mandated by the [SRA], the Commission has considered the factors
listed in section 3553(a) during the process of promulgating and refining the
guidelines.”229 Moreover, “Congressional action through the history of the Federal
sentencing guidelines indicates Congress’ belief that [the guidelines] generally achieve
the statutory purposes of sentencing as they are submitted for Congressional review
before they become effective, and Congressional approval can only be interpreted as a
sign that Congress believes that the guidelines have done so.”230
The Commission informed Congress of its continuing commitment to assist in
assessing and responding to the decision.231 The Commission then outlined the actions it
had undertaken to ensure that the guidelines continue to be an effective sentencing
tool.232 Among other things, the Commission conducted a 2-day hearing on November
225

Implications of the Booker/Fanfan Decisions for the Federal Sentencing Guidelines: Hearing before the
Subcomm. on Crime, Terrorism, and Homeland Security of the House Judiciary Comm. 109th Cong. 14-15
(2005) (Statement of Judge Ricardo H. Hinojosa, Chairman, United States Sentencing Commission).
226
Id. citing Booker, 543 U.S. at 264 (opinion of Justice Breyer)
227
Id. at 15.
228
Id.
229
Id.
230
Id.
231
Id. at 17.
232
Id. at 15.

16 and 17, 2004, at which it heard testimony from the Department of Justice, defense
attorneys, and academics. The Commission and its staff also attended various
conferences and meetings following the Blakely decision and continued to attend similar
events following the Booker decision. Participation in these events informed the
Commission of a number of proposals that were being debated in the federal criminal
justice community as possible responses to Booker.
Those proposals include, among others, a ‘wait and see’
approach, statutory implementation in some form of the Booker
sentencing scheme, providing a jury trial mechanism for
sentencing guidelines enhancements, ‘simplification’ of the
guidelines either by reducing the number of guidelines adjustments
and/or by expanding the sentencing guidelines ranges, equating the
maximum of the guidelines sentencing ranges with the statutory
maximum for the offense of conviction, and broader reliance on
statutory mandatory minimum penalties.233
The Commission expressed the hope that if Congress decided at some point to
pursue legislation, it would “preserve the core principles of the SRA and, to the extent
possible, avoid a wholesale rewriting of a system that has operated well for nearly two
decades. [The Commission] believe[s] that the [SRA] was a landmark piece of
legislation and that the resulting guidelines have made significant strides in furthering the
goals of the SRA.”234
The Chair concluded the Commission’s remarks by assuring Congress that “the
Commission and its staff are dedicated to the mission of carrying out the goals of
sentencing reform and, as the Booker decision itself says, ‘to provide certainty and
fairness in meeting the purposes of sentencing [while] avoiding unwarranted sentencing
disparities…[and] maintaining sufficient flexibility to permit individualized sentences
when warranted.’”235
D.

PUBLIC HEARING ON THE PRESENT
FEDERAL SENTENCING

AND

FUTURE IMPACT

BOOKER

On February 15 and 16, 2005, the Commission conducted a public hearing in
Washington, D.C., to solicit testimony from judges, prosecutors, the defense bar,
advocacy groups, academics, and representatives of state sentencing commissions on the
present and future impact of Booker on federal sentencing. The participants were asked
to testify regarding specific topics, including legislative responses to the Booker decision,
the weight to be given to the sentencing guidelines after Booker, and state advisory

233

Id. at 19.
Id.
235
Id. citing Booker, 543 U.S. at 264 (opinion of Justice Breyer)(internal citation omitted).
234

guideline systems.236 Those topics and the participants’ responses are summarized in
Appendix C.
E.

GUIDELINES EDUCATION AND TRAINING

Immediately after the Booker decision, the Commission developed a post-Booker
guidelines training program. The program is designed to provide information about the
Booker decision and legal developments resulting from the decision. The program
describes federal sentencing under Booker as a 3-step process.237 First, because the
Booker decision requires that courts consult the sentencing guidelines, a sentencing court
must calculate the applicable guideline range in the customary fashion. Second, the court
should determine whether a departure from the guideline range is consistent with the
guidelines’ policy statements and commentary. Third, the court should evaluate whether
a variance, i.e., a sentence outside the advisory guideline range is warranted under the
authority of 18 U.S.C. § 3553(a). Appellate courts should apply a reasonableness
standard of review.
The standard training program explains how the sentencing guidelines reflect
Congress’ objectives in the SRA and that the guidelines accordingly should be given
substantial weight in fashioning sentences in post-Booker.
The program also
encompasses a discussion of the most recent sentencing data released by the
Commission. Finally, the program emphasizes the importance of sentencing data in postBooker. Submission of documentation by the district courts meets the statutory
requirements of 28 U.S.C. § 994(w). Data collected from these documents also
contribute to transparency in sentencing and allow Congress and others to evaluate
whether the post-Booker guidelines system is meeting the intent of the SRA. In
discussing the data, the program highlights the revised Statement of Reasons form
(AO245B) approved by the Judicial Conference and encourages the courts to use the new
form.
To date, the Commission has presented this program to judges, judicial law
clerks, probation officers, prosecutors, and defense attorneys in 61 of the 94 districts.
These districts account for 75.5 percent of the post-Booker cases analyzed in this report.
The Commission also has presented this post-Booker training program to circuit staff
attorney offices in ten circuits and at the training program for new judges. In addition to
staff presentations of this training program, individual commissioners have attended
circuit court judicial conferences in most of the circuits. At these conferences, the
commissioners have reported recent sentencing data and discussed the 3-step approach to
sentencing. The commissioners also have emphasized the importance of submitting
complete documentation to the Commission.

236

United States Sentencing Commission February 15 and 16, 2005 Public Hearing (hereinafter “USSC
February 2005 Public Hearing”), http://www.ussc.gov/hearings/02_15_05/topics_02_05.htm.
237
The Judicial Conference has adopted this approach in proposed rules changes to the Federal Rules of
Criminal Procedure. For the text of the proposed changes, see www.uscourts.gov/rules.

The Commission’s “HelpLine” has provided guideline application assistance to
more than 100 callers each month.
The Commission, along with the Federal Bar Association, hosted the Fourteenth
Annual National Seminar on the Federal Sentencing Guidelines in San Francisco on May
25-27, 2005. The program featured more than 80 speakers and welcomed over 500
participants. The presentations included in-depth discussions of the impact of the Booker
decision on the federal sentencing. The Commission also included guideline application
lectures on drugs, immigration, and firearms offenses, among other topics.
The Commission co-sponsored and participated in the National Sentencing Policy
Institute, presenting data on national sentencing trends. Commission staff provided
assistance to the Federal Judicial Center and the Criminal Law Committee of the Judicial
Conference at the program, held in Washington, D.C. on July 11-12, 2005. In
conjunction with the D.C. Sentencing Commission, the Commission hosted the National
Association of Sentencing Commission’s Annual Conference. The program focused on
the impact of the Blakely and Booker decisions on guidelines sentencing scheme and
included more than 30 speakers and 150 participants.
The Commission, along with the Federal Bar Association, has scheduled the
Fifteenth Annual National Seminar on the Federal Sentencing Guidelines for May 31
through June 2, 2006, in Miami, Florida. The program will feature more than 70
speakers, including district and circuit court judges, all former chairs of the Commission,
prosecutors, defense attorneys, probation officers, and academics. The presentations will
include discussions assessing the impact of Booker on federal sentencing and developing
appellate jurisprudence. As a result of the data discussed in this report, the Commission
expects to refine and update its training programs.
The Commission also continues to perform its core mission to promulgate and
revise the sentencing guidelines, as the Supreme Court noted in Booker.238
238

The Commission has the continuing obligation to promulgate and revise the sentencing guidelines.
Accordingly, on May 1, 2005, the Commission promulgated amendments pertaining to antitrust and
aggravated identity theft offenses, effective November 1, 2005 in response to congressional directives. On
October 24, 2005, the Commission promulgated emergency amendments in response to congressional
directives. The first was an amendment to the intellectual property guideline, USSG §2B5.3, which
implemented the directive in section 105 of the Family Entertainment and Copyright Act of 2005. Pub. L.
No. 109–9, 119 Stat. 218 (2005). The second emergency amendment implemented section 6703 of the
Intelligence Reform and Prevention Act of 2004, Pub. L. No. 108–458, 118 Stat. 3638 (2004), relating to
obstruction of justice and false statements made in connection with international or domestic terrorism and
sentenced under USSG §2J1.2. At the Commission’s January 2006 meeting, the Commission voted to
publish for comment proposed amendments implementing Commission policy priorities for this
amendment cycle. See 71 Fed.R 4782-01 (January 27, 2006). The proposed amendments address inter alia
issues related to the sentencing of immigration, firearms, and steroid offenses. In addition to seeking public
comment on all of the proposed amendments, the Commission scheduled a public hearing on the proposed
amendments on March 15, 2006, in Washington, D.C., and two regional public hearings principally
focused on the proposed immigration amendments in San Antonio, Texas, on February 21, 2006, and San
Diego, California, on March 5, 2006.

Chapter 4

ANALYSIS OF COMMISSION SENTENCING DATA: TRENDS IN
FEDERAL SENTENCING PRACTICES
A.

INTRODUCTION

One measurement of Booker’s impact on federal sentencing is the rate of
imposition of sentences in conformance with the guidelines. Additionally and more
specifically, Booker’s impact can be measured to a large degree by analyzing the
available data to answer the following questions:
•

Has Booker affected the rate of imposition of sentences within and outside the
applicable guideline range and if so, how has it affected sentence type and length,
including the extent of any departure or variance from the guideline range?

•

Has Booker affected federal sentencing compared to sentencing practices
occurring prior to the decision?

•

In what circumstances do judges find sentences outside the guideline range more
appropriate than a guideline sentence? In other words, for what reasons do judges
impose non-guideline sentences, and have those reasons changed after Booker?

As described in Chapter 3, the Commission post-Booker regularly has analyzed
and published sentencing data to monitor the proportion of cases sentenced within and
outside the applicable guideline range.239 Cognizant of the need to measure and analyze
more fully the implication of Booker beyond that rate of imposition of within-range
sentences, the Commission has performed more in-depth analysis of trends evidenced by
the data. Comparisons of historical guideline trends with post-Booker data help put
Booker’s overall effect on federal sentencing practices in context.
Analysis of the data also provides insight into how judges are exercising
discretion in the imposition of sentences after Booker. This in turn might provide useful
information to gauge the efficacy of the advisory guideline system itself. For example,
analysis of the reasons given by the courts for non-government-sponsored, below-range
sentences could illustrate judicial sentiment for particular changes in the guideline
system.
The analyses presented in this chapter are subject to two important caveats that
affect the reliability of these early results. First, in the early months following the
opinion, courts did not apply uniform practices and procedures for imposing sentences
post-Booker.240 Even now, the courts do not report sentences in a uniform fashion. The
239

See post-Booker sentencing updates, http://www.ussc.gov.
Some, but not all, of the lack of uniformity in practice has been resolved by circuit court case law. See
generally Chapter 2.

240

differences in practice and procedure that resulted after Booker undoubtedly have had an
impact on the data collected, warranting cautious interpretation of the findings.
Second, in addition to changes in post-Booker practices and procedures, changes
necessitated by Booker in the Commission’s methodologies for data collection and
analysis, and the emerging appellate jurisprudence make it difficult to quantify fully
Booker’s impact on federal sentencing. With this in mind, results of the Commission’s
analysis are presented in this chapter as follows:
Part B gives a brief overview of major findings discussed throughout this chapter
regarding the impact of Booker generally on federal sentencing practices.
Part C assesses Booker’s impact on federal sentencing practices by examining
several national guideline sentencing trends. The Commission used the following three
salient time periods as points of comparison to discern these trends: the pre-PROTECT
Act period,241 which is the 7-month period from October, 2002 through April, 2003, the
post-PROTECT Act period,242 which is a 13-month period from mid-2003 through mid2004, and the post-Booker period,243 which is a 1-year period generally in 2005. In
addition to aggregate, national data, data are presented either in this chapter or in
Appendix E, for sentences under the 5 most commonly used guidelines.244 Multivariate
analyses also are included to assess whether any changes in national sentencing trends are
significant after controlling for a number of relevant factors.
As an initial gauge of Booker’s impact, Part C assesses trends with respect to the
imposition of within-range above-range, and below-range sentences. For ease of
241

The pre-PROTECT Act time period used for purposes of this analysis is the period from October 1,
2002 (the beginning of Fiscal Year 2003) through April 30, 2003 (the date of the enactment of the
PROTECT Act). Accordingly, the pre-PROTECT Act datafile is a subset of the Commission’s Fiscal Year
2003 datafile consisting of data on 40,917 offenders sentenced between October 1, 2003 and April 30,
2003.
242
The post-PROTECT Act time period used for purposes of this analysis is the period from May 1, 2003
(the date after the enactment of the PROTECT Act) through June 24, 2004 (the day of issuance of the
Blakely decision by the Supreme Court). Accordingly, the post-PROTECT Act datafile consists of an
aggregation of the Commission’s Fiscal Year 2003 and Fiscal Year 2004 datafiles consisting of the 81,206
offenders sentenced from May 1, 2003 through June 24, 2004. As explained in Chapter 1, information on
sentences imposed after issuance of the Blakely decision but before issuance of the Booker decision is not
included in this analysis.
243
The post-Booker time period used for purposes of this analysis is the period from January 12, 2005 (the
date of issuance of the Booker decision by the Supreme Court) and January 11, 2006 (the date through
which the Commission’s data has been analyzed for this report). Accordingly, the post-Booker datafile
consists of data on all 67,564 offenders sentenced between January 12, 2005 and January 11, 2006 for
which the Commission has received information. Other Commission datafiles, collected by fiscal year, are
included in the analysis as appropriate, and their use is indicated in figures and tables throughout this
chapter.
244
These five guidelines, the theft and fraud guideline (USSG §2B1.1), the drug guideline (USSG §2D1.1),
the firearms guideline (USSG §2K2.1), the alien smuggling guideline (USSG §2L1.1), and the immigration
illegal reentry guideline (USSG §2L1.2) were selected for analysis because, combined, they consistently
account for the overwhelming majority of the total federal caseload (69.4% pre-PROTECT Act, 71.4%
post-PROTECT Act, and 73.8% post-Booker).

discussion, the terms “within-range”, “above-range”, and “below-range” are used to
describe sentences in relation to the applicable guideline range.245 Part C also assesses
trends occurring in the length and type of sentences actually imposed, as well as changes
occurring in the severity of the sentence to which defendants potentially are subject.
Finally, Part D examines the reasons given and factors relied upon by the courts for
imposition of below-range sentences.
B.

MAJOR FINDINGS

The Commission’s data analyses of Booker’s impact on federal sentencing trends
yielded the following findings:
•

The majority of federal cases continue to be sentenced in conformance
with the sentencing guidelines. National data show that when withinrange sentences and government-sponsored, below-range sentences are
combined, the rate of sentencing in conformance with the sentencing
guidelines is 85.9 percent. The conformance rate remained stable
throughout the year that followed Booker. The conformance rate in the
pre-PROTECT Act period was 90.6 percent. The conformance rate in the
post-PROTECT Act period was 93.7 percent.

•

The severity of sentences imposed has not changed substantially across
time. The average sentence length after Booker has increased.

•

With respect to within-range sentences, patterns for selecting the point at
which to sentence within the range are unchanged after Booker.
Approximately 60 percent of within-range sentences are still imposed at
the minimum, or bottom, of the applicable guideline range.

•

The rate of imposition of sentences of imprisonment has not decreased.
Offenders are still being incarcerated in the vast majority of cases.

•

The rate of imposition of above-range sentences doubled to a rate of 1.6
percent after Booker.

•

The rate of government-sponsored, below-range sentences has increased
slightly after Booker to a rate of 23.7 percent, with substantial assistance
departures accounting for 14.4 percent, Early Disposition Program
departures accounting for 6.7 percent, and other government-sponsored
downward departures accounting for 2.6 percent .

245

For purposes of this report, a “below-range” sentence is one indicated by the court on the Statement of
Reasons form as a downward departure of any type for the pre-PROTECT Act and post-PROTECT Act
data. For the post-Booker data, a “below-range” sentence is one indicated by the court on the Judgment
and Commitment Order that falls below the final sentencing guideline range indicated by the court on the
Statement of Reasons form.

•

The rate of imposition of non-government-sponsored, below-range
sentences has increased after Booker to a rate of 12.5 percent.

•

In approximately two-thirds of cases involving non-governmentsponsored, below-range sentences, the extent of the reductions granted are
less than 40 percent below the minimum of the range. Courts have
granted small sentence reductions, of 9 percent or less, at a higher rate
after Booker than before. Courts have granted 100 percent sentence
reductions, to probation, at a lower rate after Booker than before.

•

The imposition of non-government-sponsored, below-range sentences
often is accompanied by a citation to Booker or factors under 18 U.S.C. §
3553(a).

•

The use of guideline departure reasons remains prevalent in many cases
involving the imposition of non-government-sponsored, below-range
sentences, including those citing Booker or factors under 18 U.S.C. §
3553(a).

•

Multivariate analysis246 indicates that four factors associated with the
decision to impose a below-range sentence appear after Booker but not
before: the application of a mandatory minimum sentence, criminal history
points, career offender status, and citizenship. However, most factors
associated with this decision are the same after Booker.

ASSESSING TRENDS IN FEDERAL SENTENCING PRACTICES
1.

Introduction

The effects of Booker may be examined in the context of long-term trends in
sentencing practices and the impact of other changes to the law of sentencing.247 The
246

Multivariate analysis is one statistical method to measure the effects of policy changes at the aggregate
level and to evaluate the potential influence of other factors. The purpose of conducting multivariate
analysis is to determine whether any sentencing changes were statistically significant after controlling for
relevant factors for which data are available. For a detailed discussion of the multivariate analyses
undertaken for this report, see Appendix B.
247
As a general matter, understanding trends in federal sentencing practices also requires understanding the
many influences on these practices and how they have developed over the long term. Since implementation
of the federal sentencing guidelines nearly 20 years ago, the law of federal sentencing has been revised and
amended numerous times through statutory enactment, Supreme Court ruling, or amendment of the
guidelines themselves. Although these legal changes influence sentencing practices, they are not the sole
influences affecting sentencing. Experts on guideline systems have noted that practices such as sentencing
in conformance with the guidelines depend on a multitude of institutional and cultural factors, as well as
structural features of each system. Just as the law influences a guideline system, informal incentives for
compliance and the norms and culture that develop in each court likewise have an influence. See Kim H.
Hunt & Michael Connelly, Advisory Guidelines in the post-Blakely Era, 17 FED. SENT'G REP. 233 (2005);
Kevin R. Reitz, The Enforceability of Sentencing Guidelines, 58 STAN. L. REV. 155 (2005), 156. Some
commentators have suggested that these informal and cultural factors will be important in the federal

most detailed account of these long-term trends is reported in the Commission’s 2004
study of the first 15 years of federal sentencing under the Sentencing Reform Act of
1984.248 That report contains data on long-term trends in incarceration rates and average
sentence lengths from Fiscal Years 1987 through 2002 for a wide variety of offenses.
The Commission’s 2003 report on downward departures from the guidelines contains
additional analyses of trends in guideline sentencing from 1991 through 2001.249 These
data do not take into account, however, three later-occurring, major events in federal
sentencing: the April 2003 enactment of the PROTECT Act,250 the June 2004 Supreme
Court decision in Blakely, and the January 2005 decision in Booker. Accordingly, this
section begins by examining long-term trends generally but with a particular focus on the
effects produced by the PROTECT Act and Booker.251
Because the shift to an advisory guideline system has raised particular interest in
how much weight judges would afford the guidelines and how frequently they would
continue to sentence within the guideline range, this section begins with an examination
of trends in within-range and out-of-range sentences. It then discusses trends in the use
of probation and alternatives to prison and in the length of prison sentences imposed.
Changes in the factors that determine whether a within-range or out-of-range sentence
was imposed are discussed, along with factors that affect changes in sentence severity.
Customarily, the Commission reports data by fiscal year, which runs from
October 1 through September 30. The Commission concluded, however, that use of
fiscal year data in this report generally would not lend itself to meaningful analysis. As
discussed earlier, the Commission used data for the analysis in this report from 3 time
periods: pre-PROTECT Act, post-PROTECT Act, and post-Booker. Most analyses in
this chapter compare data from these 3 time periods. When appropriate, some analyses
may use the Commission’s fiscal year data, as reported in the Commission’s Annual
Reports and Sourcebooks, and these data will be identified when used.
When conducting statistical analysis of small numbers of cases, extreme values in
either direction will tend to have an undue impact on averages, thereby skewing the
results of the analysis. By contrast, because the median represents the mid-point, use of
this statistic provides a more moderate measure of the central tendency of the data. It
represents the value of the “middle” case in a category: half of the cases have values
below the median and the other half of the cases have values above the median. This is a
more conservative approach to the statistical analysis of a small universe of cases,
customarily accepted by researchers. In fact, the Commission generally reports data in
the Sourcebook in this format. Use of the average is an accepted measure of the central
system after Booker. See Douglas Berman, Same Old Sentencing, 27 LEGAL TIMES, Dec. 26, 2005 (stating
that “in the wake of Booker, federal sentencing practices and outcomes have not really changed much (at
least not yet)” and suggesting that culture influences sentencing practices more than doctrine).
248
Commission FIFTEEN YEAR REVIEW, available at www.ussc.gov.
249
Commission, 2003 DEPARTURES REPORT, available at www.ussc.gov.
250
Pub. L. No. 108–21, 117 Stat. 650.
251
The analysis in this chapter does not include assessment of the effects of Blakely on federal sentencing
practices because of the difficulty of interpreting information received from the courts on cases sentenced
after Blakely but before Booker.

tendencies of data for larger numbers. Consequently, the average (or mean) has also been
included in this report when the analysis involves a larger number of cases.
2.

Changes in Rates of Within-Range and Out-of-Range Sentences
a.

The Impact of Events Prior to the PROTECT Act

From Fiscal Year 1991 through Fiscal Year 2003, the Commission reported four
major types of sentences in its Annual Reports and Sourcebooks throughout the
guidelines era:252 (1) within-range sentences, (2) upward departures from the withinrange sentence, (3) departures from the within-range sentence under USSG §5K1.1 for
providing substantial assistance in the prosecution of other persons, and (4) other
downward departures from the within-range sentence. These latter could be based on
mitigating circumstances identified by the judge or agreed to by the parties in a plea
agreement. Figure 1 shows quarterly rates, from Fiscal Year 1991 through Fiscal Year
2003, of these four major types of sentences. Vertical lines on Figure 1 show the
occurrence of historic events that were expected to have, or appear to have had, an effect
on rates of imposition of within-range sentences. In interpreting the data in Figure 1, it
should be noted that the Commission’s methods for distinguishing government-sponsored
from other downward departures were refined beginning in Fiscal Year 2003. The rates
for fiscal years before 2003 were calculated by combining several reported reasons for
departure that indicated government sponsorship.253 Subsequently, plea agreements and
the new Statement of Reasons form were scrutinized to more accurately identify
government-sponsored departures.
Examination of the historical data illustrated in Figure 1 reveals a series of
gradual, long-term trends. Notably, the data illustrated in Figure 1 do not indicate
substantial changes in sentencing rates at previous points when the law governing
departures was changed. For example, amendment 508, which authorized departures
based on “combination of . . . characteristics or circumstances”254 took effect November
1994. The rates of downward departures, as illustrated by the green line on Figure 1, did
not sharply increase after that date. Indeed, the data show little, if any, effect of the
amendment on departure rates.255
The data reflect a similar response to the Supreme Court’s decision in June 1996
in Koon v. United States.256 The decision established an abuse-of-discretion standard for
review of guideline departures. Although downward departures increased slightly after
Koon, the increase was gradual rather than abrupt. Moreover, the increase appears to be
252

These data are contained in U.S. Sentencing Commission annual datafiles and are available from the
University of Michigan’s website at www.icpsr.umich.edu/nacjd/archive.html.
253
See 2003 DEPARTURES REPORT, footnote 130.
254
Guidelines Manual, App. C, amend. 508.
255
Restrictive appellate decisions also may have had an impact on departure rates at this time. See e.g.,
United States v. Dyce, 91 F.3d 1462 (D.C. Cir. 1996) (reversing departure based on the “totality of
circumstances” when none of the factors cited by the district court alone could serve as a basis for
departure).
256
518 U.S. 81 (1996).

continuing a long-term trend that pre-dated Koon and was likely based on a variety of
factors.257
The increase in downward departures from 1991 until the mid-1990s was most
pronounced with respect to substantial assistance departures under USSG §5K1.1258 and
then became more evident in other grounds for departure as USSG §5K1.1 rates
stabilized and then began a gradual decline. Except for some shifting between 2000 and
2002, rates of imposition of USSG §5K1.1 departures always were higher than other
departures. For most of the 1990s, they were markedly higher. The long-term trend
toward higher rates of imposition of other downward departures began to reverse itself in
2002.

257

Mark T. Bailey, Feeney’s Folly: Why Appellate Courts Should Review Departures from the Federal
Sentencing Guidelines with Deference, 90 IOWA L. REV. 269 (2004)(noting that the government rarely
appealed downward departures after Koon but was highly successful when it did, and arguing that Koon
had little effect on departure rates).
258
Guidelines Manual USSG §5K1.1 provides that “Upon motion of the government stating that the
defendant has provided substantial assistance in the investigation or prosecution of another person who has
committed an offense, the court may depart from the guidelines.”

Figure 1
Quarterly Data for Within-Range and Out-of-Range Sentences
FY1991-FY2003
90

Percent of Cases
Within-Range

80
70
60

11/94
Amendment 508

6/96
Koon

4/03
PROTECT Act

40
30

§5K1.1 Departures
20

Other Downward Departures

Upward Departures
0

FY91

FY92

FY93

FY94

FY95

FY96

FY97

FY98

FY99

FY00

FY01

FY02

FY03

See Appendix B for information regarding the determination of sentencing categories. The “other downward departures” category includes both government sponsored
and non-government sponsored downward departures.
SOURCE: U.S. Sentencing Commission, 1991-2003 Datafiles, USSCFY1991-USSCFY2003.

The PROTECT Act

In 2003 Congress expressed growing concern259 that the rate of downward
departures was too great to control crime and eliminate unwarranted sentencing disparity,
particularly in sex offenses against children.260 The PROTECT Act made significant
changes to the federal law of sentencing.261 In particular, the PROTECT Act re-instituted
a de novo standard of appellate review for departures, thereby undoing the abuse of
discretion standard of review established by Koon, and limited the district court’s
discretion to identify new grounds for departure on remand. It also directed the
Commission to amend the guidelines “to ensure that the incidence of downward
departures are substantially reduced” and prohibited the Commission from creating new
grounds for downward departures for 2 years.262
Although Congress sought to reduce the incidence of downward departures with
the PROTECT Act, it also sanctioned the use of government-sponsored downward
departures for “fast track” reasons. In the years prior to the PROTECT Act, prosecutors
had developed so-called “fast track” programs in districts with heavy immigration and
drug trafficking caseloads. Under these programs, offenders who enter into plea
agreements in a timely fashion and waive certain procedural rights—for example, pretrial discovery or deportation hearings—obtain more favorable sentences. The programs
had been created on a more-or-less ad hoc basis, with varying degrees of formality. With
the PROTECT Act, Congress sought to standardize these programs by authorizing the
Department of Justice to certify “Early Disposition Programs” (“EDP”) in certain
districts. The PROTECT Act directed the Commission to authorize a departure of up to
four offense levels for offenders whom the government certified met the criteria for such
programs. The newly-authorized government-sponsored departure was added to the
Guidelines Manual at USSG §5K3.1 effective October 27, 2003.263

259

Those concerns had been the subject of an earlier Congressional hearing. See Oversight of the U.S.
Sentencing Commission: Are the Guidelines Being Followed?: Hearing Before the Subcommittee on
Criminal Justice Oversight of the Senate Judiciary Committee, 106th Cong., 2nd Sess. (2000).
260
Representative Tom Feeney, Reaffirming the 1984 Sentencing Reforms, 27 HAMLINE L. REV. 383
(2004)(arguing that since Koon some judges had “systematically crafted ways to circumvent the Sentencing
Guidelines and substitute their judgment for that of Congress and the Federal Sentencing Commission.” p.
383); 149 CONG. REC. H2424 (daily ed. March 27, 2003) (statement of Representative Feeney) (arguing
that adoption of the “Feeney Amendment” would provide a deterrent effect).
261
For history and description of the PROTECT Act and the responses of the Department of Justice, the
Sentencing Commission, and certain members of Congress and the Judiciary see David P. Mason, Barking
Up the Wrong Tree: The Misplaced Furor over the Feeney Amendment as a Threat to Judicial
Independence, 46 WILLIAM AND MARY L REV. 731 (2004); Noeelle Tsigounis Valentine, An Exploration of
the Feeney Amendment: The Legislation that Prompted the Supreme Court to Undo Twenty Years of
Sentencing Reform, 55 SYRACUSE L. REV. 619 (2005).
262
PROTECT Act, Pub. L. No. 108-21 § 401(m)(2)(a), 2003 U.S.C.C.A.N. (117 Stat.) 650, 675.
263
Guidelines Manual, App. C, amend. 651. The legislation and amendment are described in Michael M.
O’Hear, Localization and Transparency in Sentencing: Reflections on the New Early Disposition
Departure, 27 HAMLINE L. REV. 357 (2004).

These developments, among others,264 alerted both the courts and the Commission
to the need more carefully to distinguish between downward departures that were
initiated, encouraged, or at least tacitly approved by the prosecution from those that were
initiated by the court. In response, the Judicial Conference of the United States, through
the Administrative Office of the United States Courts, worked closely with the
Commission to modify the form that judges use to report the reasons for imposing a
sentence. The modified Statement of Reasons form (form AO245B (Rev. 12/03)) more
clearly differentiated among different types of downward departure.
Further, the Commission, in its 2003 Departures Report, began to further
distinguish government-sponsored downward departures from other downward
departures. In addition to departures under USSG §5K1.1 for substantial assistance and
departures under USSG §5K3.1 for the use of early disposition programs, the
Commission included in this new category other government-initiated downward
departures that were made for reasons such as “pursuant to a plea agreement,
“deportation,” and “savings to government.”265
Figure 2 uses this new distinction between government-sponsored and other
downward departures to illustrate quarterly rates of imposition of within-range and outof-range sentences from October 2001 through December 2005. Figure 2 includes data
from the date the PROTECT Act was signed into law until the decision in Booker, and
approximately one year of data following that decision, with the exception of the 6
months between the Blakely decision (June 24, 2004) and Booker on January 12, 2005.
The Commission excluded post-Blakely information it received from the courts because,
as more fully described in Chapter 1, the Commission could not rely upon the assumption
that the guidelines had been uniformly applied due to a split of opinions about Blakely’s
applicability to the federal sentencing guidelines, resulting in inconsistent approaches to
sentencing. Figure 3 illustrates the rates of sentences in conformance with the guidelines,
using the same data depicted in Figure 2.
The differentiation initiated in the documentation in 2003 between governmentsponsored and other downward departures reveals that a very large portion of belowrange sentences were, and still are, initiated or approved by the government. For all of
the years shown in Figure 2, the rate of imposition of government-sponsored departures
was consistently higher than the other categories. Further, the rate of governmentsponsored downward departures in the first two years depicted remains relatively
constant, displaying only a slight decrease prior to the PROTECT Act. In contrast, the
rate of imposition of other downward departures remained relatively steady from the
beginning of Fiscal Year 2002, declining sharply in the period preceding the decision in
Booker.
264

See U.S. General Accounting Office, Federal Drug Offenses: Departures from Sentencing Guidelines
and Mandatory Minimum Sentences Fiscal Years 1999-2001 (Oct. 2003).
265
The Commission’s methods for distinguishing government-sponsored from other downward departures
were refined beginning in Fiscal Year 2003. In Figures 2 and 3, the rates for fiscal years before 2003 were
calculated by combining several reported reasons for departure that indicated government sponsorship. (See
2003 DEPARTURES REPORT). In later years, plea agreements and the new Statement of Reasons form were
scrutinized to more accurately identify government-sponsored departures.

The downward trend in other downward departures beginning prior to the
PROTECT Act and continuing in the quarters following it, settled in at between 4.9 and
5.5 percent in Fiscal Year 2004. The rate of imposition of government-sponsored
downward departures showed little change and was about four times greater than nongovernment-sponsored departures during this period. That rate ranged from 21.2 to 22.4
percent of all cases.
Quantifying the PROTECT Act’s effect on non-government-sponsored downward
departures is difficult for several reasons. The date of the PROTECT Act is shown on
Figure 1 with the line at the quarter containing April 2003. While downward departure
rates decreased after that date, to some extent they may have been continuing the trend
that began some time before. In addition, the changes created by the PROTECT Act did
not take place all at once. Some of the restrictions on downward departures took effect
upon signing of the PROTECT Act, while Commission-developed guideline amendments
were not effective until the end of October 2003. Many changes could not immediately
apply to all cases sentenced after the PROTECT Act or effective date of the guideline
amendments due to ex post facto considerations.266 Whatever their precise contributions,
the combination of the various aspects of the PROTECT Act and the factors accounting
for the pre-existing trend contributed to a reduction of non-government-sponsored
downward departures to their lowest rates since the early 1990s.

266

The ex post facto clause in Article I, § 9 of the United States Constitution has been held to require that
cases be sentenced under the guidelines in effect at the time the offense was committed, not sentenced, if
changes occurring after the offense increase the severity of the applicable sentence. See Guidelines Manual
§1B1.11 (2005).

Figure 2
Quarterly Data for Within-Range and Out-of-Range Sentences
FY2001 – Post-Booker
100

Percent of Cases

Within-Range
60
4/03
PROTECT Act

Blakely

Government Sponsored
Below-Range
20

Below-Range
Above-Range
0
FY2001

FY2002

FY2003

FY2004

See Appendix B for information regarding the determination of sentencing categories.
Cases sentenced on or before December 31, 2005 (last full quarter of post-Booker data) were included in this figure.
SOURCE: U.S. Sentencing Commission, 2001-2003 Datafiles, USSCFY2001-USSCFY2003 and 2006 Booker Report Datafiles.

PostBooker

Figure 3
Quarterly Data for Within-Range/Government and Out-of-Range Sentences
FY2001 – Post-Booker
100

Percent of Cases
Within-Range/Government Sponsored

60
4/03
PROTECT Act

Blakely

Below-Range
Above-Range
0
FY2001

FY2002

FY2003

FY2004

PostBooker

The Immediate Effect of Booker on Rates of Within- and Outof-Range Sentences

As has been discussed in Chapter 3 of this report, the nature of below-range
sentences changed in Booker’s wake. To respond to the change, the Commission
significantly revised its procedures for collecting and reporting sentences relative to the
applicable guideline range. Because of the broader sentencing authority created by
Booker, guideline downward departures no longer are the single mechanism by which
courts can fashion below-range sentences when appropriate. In response, the Judicial
Conference, through the Administrative Office of the United States Courts, after
consulting with the Commission and others, modified the Statement of Reasons form
(form AO245B 06/05) more clearly to differentiate between downward departures made
under guideline departure authority and other below-range sentences (i.e., “variances”).
Before the changes to the Statement of Reasons form took effect, the Commission
revised its data coding protocols to reflect the new sentencing patterns and documentation
that emerged in the Booker era with respect to the imposition of below-range sentences
using Booker rather than or in addition to guideline departures.267 The latest revision to
the Statement of Reasons form, and the ensuing data collection and reporting changes,
initiated a widespread Commission outreach and training program designed to introduce
the new Statement of Reasons form and to provide in-depth explanations of how the
Commission extracts its data from the Statement of Reasons and other court documents.
This training initiative is aimed, in part, at producing the most accurate and complete data
possible in the post-Booker era. As of the date of this report, the Commission has
conducted training sessions in 61 of the 94 federal judicial districts. Sentencings in these
61 districts account for 75.5 percent of the post-Booker cases analyzed for this report.
As is illustrated in Figure 2, the majority of federal cases continue to be sentenced
in conformance with the sentencing guidelines. National data show that when withinrange sentences and government-sponsored, below-range sentences are combined, the
rate of sentencing in conformance with the sentencing guidelines is 85.9 percent. This
conformance rate remained stable throughout the year that followed Booker. This
compares to a conformance rate of 90.6 percent pre-PROTECT Act and a conformance
rate of 93.7 percent post-PROTECT Act. Changes in the rates of imposition of withinrange and non-government-sponsored, below-range sentences occur more suddenly
immediately following Booker than following any previous change in sentencing law
during the guidelines era. The post-Booker data demonstrate a decrease in the rate of
imposition of within-range sentences of 8.9 percentage points from the end of the postPROTECT Act period and a concomitant 6.7 percentage point increase in the rate of
imposition of non-government-sponsored, below-range sentences. 268
267

Methodologies associated with the revised collection and reporting of data post-Booker are more
thoroughly detailed in Appendix B. Below-range categories are described in the discussion of nongovernment-sponsored, below-range sentences later in this chapter.
268
Rates of imposition of within-range and out-of-range sentences for offenses covered by the 5 most
frequently applied guidelines show trends similar to the overall trends presented herein (See Appendix E1), with the exception of trends indicated for immigration offenses sentenced under USSG §§2L1.1 and

The rate of imposition of above-range sentences approximately doubled to a rate
of 1.6 percent. Multivariate analysis undertaken for this report confirmed that the
likelihood of receiving an above-range sentence is higher post-Booker than pre-Booker.
Specifically, offenders are 20.7 percent more likely post-Booker than pre-Booker to
receive an above-range sentence.
The rate of government-sponsored, below-range sentences has increased slightly
after Booker to a rate of 23.7 percent, with substantial assistance departures accounting
for 14.4 percent, Early Disposition Program departures accounting for 6.7 percent, and
other government-sponsored downward departures accounting for 2.6 percent.
Government-sponsored, below-range sentences continue to account for the highest
percentage of below-range sentences post-Booker. Most of the increase in the rate of
imposition of government-sponsored, below-range sentences is attributable to nonsubstantial assistance reasons. Specifically, results of multivariate analysis undertaken
for this report demonstrate that the likelihood of receiving a substantial assistance
departure is lower post-Booker than pre-Booker. Offenders post-Booker have a greater
likelihood of receiving other below-range sentences, whether initiated by the government
(excluding substantial assistance) or by the court.
The likelihood of obtaining a government-initiated, downward departure
(excluding substantial assistance) is 61.4 percent greater post-Booker than pre-Booker.
Offenders in the post-Booker period are 6.2 percent less likely than those in the PostPROTECT period to receive a substantial assistance departure.
Figure 4 charts the monthly rates of imposition of within-range and out-of- range
sentences for the year following Booker. As illustrated, immediately after the Booker
decision, the rate of imposition of non-government-sponsored, below-range sentences
increased to 14.6 percent. The rate dropped back in the following months, varying
between 9.6 and 13.8 percent. Part of these changes may be due to other changes
occurring over the same time period, such as changes in the types of cases being
sentenced. Nevertheless, Booker likely had some independent impact.
Figure 5 illustrates the rates of sentences in conformance with the guidelines,
using the same data depicted in Figure 4. Using the data illustrated in Figures 4 and 5,
Table 1 provides the percentages of within- range and out-of-range sentence.
Despite the initial increase in the imposition of non-government-sponsored,
below-range sentences, a relatively stable month-to-month trend was immediately
established and has continued. Some commentators have expressed surprise that judges

2L1.2. For those guidelines, there was an overall decrease in the imposition of non-government-sponsored,
below-range sentences accompanied by an increase in the imposition of government-sponsored, belowrange sentences that employed early disposition programs under USSG §5K3.1.

have continued to sentence within-range over 60 percent of the time.269 Those who
predict considerable long-term stability in the system may also be intrigued by what
appears, upon visual inspection of Figure 4, to be a possible beginning of an upward
trend in the rate of imposition of within-range sentences and a concomitant decrease in
the rate of imposition of non-government sponsored, below-ranges sentences. Drawing
conclusions from these data should be done cautiously. At this time, the number of
months is still too small to establish the certainty of any emerging trend, and the large
number of continuances granted in the Blakely interim period make the cases sentenced
in the first few months following Booker a sample potentially biased in unknown ways.270
The Commission will continue to monitor this trend, especially as the appellate courts
give substance to “reasonableness” review.

269

Douglas Berman, Same Old Sentencing, 27 LEGAL TIMES, December 26, 2005 (stating that “in the wake
of Booker, federal sentencing practices and outcomes have not really changed much (at least not yet)” and
suggesting that culture influences sentencing practices more than doctrine).
270
Commission, 2004 Survey Results/Preliminary Findings on Blakely Effect, http://www.ussc.gov.

Figure 4
Monthly Data for Within-Range and Out-of-Range Sentences Post-Booker
January 12, 2005-January 11, 2006
100

Percent of Cases

Within-Range
60

Government Sponsored
Below-Range
20

Below-Range
Above-Range

0
5
-0
n
Ja

b
Fe

ar
M

r
Ap

ay
M

n
Ju

l
Ju

g
Au

pt
Se

t
Oc

v
No

c
De

6
-0
n
Ja

See Appendix B for information regarding the determination of sentencing categories.
Cases sentenced on or before January 11, 2006 were included in this figure. As of the data extraction date for the post-Booker datafile, the Commission had received,
coded and edited 1,300 cases sentenced between January 1, 2006 and January, 11, 2006.
SOURCE: U.S. Sentencing Commission, 2006 Booker Report Datafiles.

Figure 5
Monthly Data for Within-Range/Government Sponsored
and Out-of-Range Sentences Post-Booker
January 12, 2005-January 11, 2006
100

Percent of Cases
Within-Range/Government Sponsored

Below-Range
Above-Range

0
5
-0
n
Ja

b
Fe

ar
M

r
Ap

ay
M

n
Ju

l
Ju

g
Au

pt
Se

t
Oc

v
No

c
De

6
-0
n
Ja

Table 1
National Comparison of Sentence Imposed and Position Relative to the Guideline Range
Post-Booker
n
%
TOTAL
65,368
100.0
Within-Guideline Range
40,645
62.2
Departure Above Guideline Range
Upward Departure from the Guideline Range271
Upward Departure with Booker/18 U.S.C. § 3553272
Otherwise Above the Guideline Range
Above the Range with Booker/18 U.S.C. § 3553273
All Remaining Cases Above the Guideline Range274

175
127
48
859
426
433

0.3
0.2
0.1
1.3
0.6
0.7

Government Sponsored Below-Range
§5K1.1 Substantial Assistance Departure
§5K3.1 Early Disposition Program Departure
Government-Sponsored Departure275

15,500
9,402
4,366
1,732

23.7
14.4
6.7
2.6

Departures Below Guideline Range
Downward Departure from the Guideline Range
Downward Departure with Booker/18 U.S.C. § 3553
Otherwise Below the Guideline Range
Below the Range with Booker/18 U.S.C. § 3553
All Remaining Cases Below the Guideline Range

2,101
1,456
645
6,088
3,850
2,238

3.2
2.2
1.0
9.3
5.9
3.4

SOURCE: U.S. Sentencing Commission Special Post-Booker Coding Project
271

All cases with imposed sentences outside of the guideline range and citing reasons for departure limited
to, and affirmatively and specifically identified in the provisions, policy statements, or commentary of the
federal Guidelines Manual. The same classification applies to “Downward Departure from the Guideline
Range” category.
272
All cases with imposed sentences outside of the guideline range citing reasons for departure limited to,
and affirmatively and specifically identified in the provisions, policy statements, or commentary of the
federal Guidelines Manual, and additionally mentioning either U.S. v. Booker, 18 U.S.C. § 3553, or related
factors as a reason for a sentence outside of the guideline range. The same classification applies to the
“Downward Departure with Booker/18 U.S.C. § 3553” category.
273
All cases with imposed sentences outside of the guideline range mentioning only U.S. v. Booker, 18
U.S.C. § 3553, or related factors as a reason for a sentence outside of the guideline range. The same
classification applies to the “Below the Range with Booker /18 U.S.C. § 3553” category.
274
Cases with imposed sentences outside of the guideline range that do not fall into the three previous
categories. Based on the information submitted on the Statement of Reasons, these cases cannot be
classified as a guideline departure, or as a sentence outside the guideline range pursuant to Booker/18
U.S.C. § 3553. This category includes cases which cite departure reasons that are not affirmatively and
specifically identified in the provisions, policy statements, or commentary of the federal Guidelines Manual
and cases which do not provide any reason for the sentence outside of the guideline range. The same
classification applies to the “All Remaining Cases Below the Guideline Range” category.
275
Cases with a reason for departure indicating that the prosecution initiates, proposes, or stipulates to a
sentence outside of the guideline range, either pursuant to a plea agreement or as part of a non-plea
negotiation with the defendant.

Changes in the Extent that Below-Range Sentences
Fall below the Range

One of the questions that the Commission sought to answer in this report is
whether the magnitude of the reductions granted for below-range sentences after Booker
has changed. Even though the data evidences an increase in the rates of imposition of
below-range sentences, the overall impact of this increased rate may be affected
somewhat by the extent to which sentences are below range. The data indicate that while
the rates of imposition of below-range sentences have increased, the extent of the
reductions being granted do not differ from the recommended guideline sentence by a
greater degree today than they did in earlier periods. Figure 6 compares the magnitude
of reductions below the applicable guideline range in the three relevant time periods: prePROTECT Act, post-PROTECT Act and post-Booker. In order to display the extent of
the difference among non-government-sponsored, below-range sentences during three
time periods, the Commission classified the reductions into one of ten percentile
categories, listed on the horizontal axis of the grid (e.g, 0-9 percent, 10-19 percent, etc.)
A below-range sentence is placed in the category that corresponds to its percentage below
the guideline minimum. The vertical axis displays the percent of cases falling in each of
the ten percentile categories. For example, Figure 6 demonstrates that the proportion of
cases sentenced between zero and 9 percent below the applicable guideline minimum was
5.7 percent pre-PROTECT Act, 6.9 percent post-PROTECT Act, and 8.6 percent postBooker. Sentences in this first category were less than 10 percent below the
recommended guideline range.
The 100 percent category represents instances in which the court imposed a
sentence of probation rather than a term of imprisonment. Among the cases sentenced
below-range post-Booker, courts sentenced a smaller portion to probation in lieu of
imprisonment than they did prior to the Booker decision. Figure 6 shows a decline in the
percentage of below-range probationary sentences from 14.5 percent pre-PROTECT Act,
to 13.3 percent post-PROTECT Act, to 10.3 percent post-Booker.
In general, sentence reductions in the post-Booker era tend to be distributed more
heavily among the smaller reductions than among the large ones. As Figure 6 indicates,
the vast majority of below-range sentences in all three time periods show sentence
reductions between 10 to 29 percent below the guideline minimum. Notably, large
reductions below the minimum of the within-range sentence (i.e., reductions of the
within-range sentence by greater than 59 percent) have decreased in the post-Booker time
period. Overall, the courts are imposing below-range sentences more often but are not
differing from the guideline sentence by a greater extent today compared to the two
previous time periods.

Figure 6
Extent of Non-Government Sponsored Below-Range Sentences
Pre-PROTECT Act, Post-PROTECT Act and Post-Booker
25

Percent of Cases in Each Category
Pre-PROTECT Act

22.8

Post-PROTECT Act

Post-Booker

20.5
20.0

19.2
17.5
16.5
14.5

14.2
13.3
11.9 12.0
10.3

10
8.6

8.4

8.3

6.9

7.8 7.8

8.1

7.0

6.4

5.7

5.2 4.8

4.7
3.6

3.0

2.6 2.3

1.6

1.5 1.6 1.2

0
0-9%

10-19%

20-29%

30-39%

40-49%

50-59%

60-69%

70-79%

80-89%

90-99%

100%

Percent Below the Guideline Range
Only cases sentenced in Zone D of the Sentencing Table (requiring that, absent a below-range sentence, the minimum sentence term be satisfied with a sentence
of imprisonment) were included for each of the three time periods (Pre-PROTECT Act (10/01/02 – 04/30/03); Post-PROTECT Act (05/01/03 – 06/24/04); PostBooker (01/12/05 – 01/11/06)).
SOURCE: U.S. Sentencing Commission, 2006 Booker Report Datafiles.

As a complement to the analysis illustrated in Figure 6, the Commission
examined below–range sentences to determine the median percentage decrease and
median months of decrease from the guideline minimum across the 3 time periods for all
cases and for the five most commonly cited guidelines.276 Table 2 shows the results of
this analysis. The universe of cases for some categories was relatively small, as can be
seen in the columns labeled “n” on the table. The analysis revealed that there is little
variation between most of the guidelines across the 3 time periods. The median
percentages of decreases remain relatively constant during each time period (see Table 2,
columns labeled Med %), as do the absolute months of sentence reductions, shown as
median months below the guideline minimum (see Table 2, columns labeled Med Mths).
For example, the extent of the reduction for theft and fraud offenses under USSG
§2B1.1 has remained relatively constant. The median percentage decreases from the
guideline minimum remain at approximately 100 percent. This indicates that half of the
offenders receiving below-range sentences under this guideline are sentenced to
probation. The median reduction below the guideline minimum consistently is about 9
months, which indicates that most of these theft and fraud cases involve relatively low
guideline minimums.
The pattern for immigration offenses is slightly different. Alien smuggling
offenses sentenced under USSG §2L1.1 and illegal reentry offenses sentenced under
USSG §2L1.2 show a decrease in median percentage reduction from the minimum of the
within-range sentence following the PROTECT Act. The median percentage reduction
then increased post-Booker, essentially to pre-PROTECT Act rates. After a postPROTECT Act decline, USSG §2L1.1 reductions have increased to a median percentage
below the guideline minimum of 50 percent for downward departures and 43.7 percent
for other non-government-sponsored, below-range sentences. Similarly, USSG §2L1.2
sentence reductions declined following the PROTECT Act and returned to median
percentages below the guideline minimum of 25 percent for downward departures and
28.6 percent for other non-government-sponsored, below-range sentences. The absolute
months of sentence reductions, shown as median months below the guideline minimum,
have not changed substantially, about 6 months and 11 months, for USSG §2L1.1 and
USSG §2L1.2, respectively.
The pattern for drug trafficking offenses under USSG §2D1.1, also is slightly
different. As Table 2 indicates, for these offenses, the median percentage reduction from
the minimum of the within-range sentence continued to decrease post-Booker.

276

These five guidelines, the theft and fraud guideline (USSG §2B1.1), the drug guideline (USSG §2D1.1),
the firearms guideline (USSG §2K2.1), the alien smuggling guideline (USSG §2L1.1), and the immigration
illegal reentry guideline (USSG §2L1.2) were selected for analysis because, combined, they consistently
account for the overwhelming majority of the total federal caseload (69.4% pre-PROTECT Act, 71.4%
post-PROTECT Act, and 73.8% post-Booker).

Table 2
Degree of Decrease Below Guideline Minimum
for All Cases and Selected Sentencing Guidelines

Post-Booker
(1/12/05-1/11/06)
Pre-PROTECT Act
(10/1/02-4/30/03)

Post-PROTECT Act
(5/1/03-6/24/04)

278

Booker

Med
Mths

Med
%

Med
Mths

Med
%

Med
Mths

Med
%

Med
Mths

Med
%

All
Guidelines

2,945

40.0

3,714

35.1

1,977

34.8

5,611

33.6

Theft and Fraud
§2B1.1277

217

100.0

398

100.0

222

99.7

673

90.0

Drug Trafficking
§2D1.1278

967

34.1

1,179

30.0

664

27.7

2,068

26.4

Firearms
§2K2.1

307

40.0

438

39.0

255

35.3

692

33.2

Alien Smuggling
§2L1.1

153

44.4

152

33.2

50.0

180

43.7

Illegal Reentry
§2L1.2

565

28.3

657

21.7

315

25.0

627

28.6

SOURCE: U.S. Sentencing Commission 2006 Booker Report Datafiles.

277

Downward
Departure

Includes amendment years 2001 and later.
Includes offenders under both USSG §§2D1.1 and 2D1.2.

Regardless of whether courts use guideline downward departures or cite Booker
to impose below-range sentences, the extent of the reductions is essentially the same.
This is illustrated in Figure 7. Using post-Booker data, Figure 7 compares the extent of
guideline downward departures to the extent of below-range sentences imposed under
Booker. This comparison indicates that there is little difference in the magnitude to
which below-range sentences fall below the guideline minimum, whether achieved
through guideline departure reasons or through the use of Booker.279 For example, 6.1
percent of downward departures and 9.4 percent of Booker below-range sentences fell
between zero and nine percent below the applicable guideline minimum. Further, about
half of the reductions in either category (48.3 percent of both downward departures and
Booker below-range sentences) had a median percentage decrease below the guideline
minimum of 29 percent or less.280

279
280

Descriptions of the various below-range categories are set forth in Appendix B.
In general, a 25% sentence decrease equates to a 2-level offense level decrease on the Sentencing Table.

Figure 7
Extent of Downward Departures Compared to
Booker Below-Range Sentences
25

Percent of Cases in Each Category
Downward Departures

22.6

19.8

19.6

Booker

19.1

14.8

12.5
11.9
9.7

9.4
8.7
7.6

8.3
7.6

6.1
5.2

4.7
3.7
2.8
1.5 1.6

1.7
1.1

0
0-9%

10-19%

20-29%

30-39%

40-49%

50-59%

60-69%

70-79%

80-89%

90-99%

100%

Percent Below the Guideline Range
See Appendix B for information regarding the determination of sentencing categories.
Only cases sentenced in Zone D of the Sentencing Table (requiring that, absent a below-range sentence, the minimum sentence term be satisfied with a sentence of
imprisonment) were included.
SOURCE: U.S. Sentencing Commission, 2006 Booker Report Datafiles.

Changes in Sentence Length and the Use of Alternatives to
Imprisonment

Despite the increase in the rate of imposition below-range sentences in the postBooker era, the average length of sentences imposed actually has increased in the
caseload taken as a whole. More specifically, average sentences have increased for all
major offense types except for certain immigration offenses.281 Moreover, several other
indicators of sentencing practices suggest continuity in the use of imprisonment instead
of probation or alternatives to imprisonment. This section explores this overall continuity
and how it is possible that sentence lengths have increased when the rate of imposition of
below-range sentences also has increased.
a.

Changes in Average Recommended and Imposed
Sentence Lengths

Beginning in Fiscal Year 2000 and continuing through 2002, the length of
sentences imposed averaged between 44 and 47 months and remained fairly constant. By
Fiscal Year 2003, however, a trend toward increasing severity in the length of sentences
imposed began to emerge and accelerated in the months preceding the gap representing
the Blakely period. Figure 8 shows the average length of sentence imposed for each
quarter beginning in Fiscal Year 2000 and continuing through the first year of the postBooker era. Figure 8 also illustrates the average applicable guideline minimum for the
same time period. The increased length in the average sentence is also apparent in Table
3, which shows the average sentence length for offenses covered by all guidelines
combined and for offenses covered by the 5 most frequently applied guidelines. This
trend toward lengthier prison sentences has continued after Booker. As shown in both
Figure 8 and Table 3, sentence lengths post-Booker increased for the caseload overall.282

281

For illegal reentry offenses sentenced under USSG §2L1.2, the average length of the sentence
recommended under the guidelines and the average length of the sentence imposed both have declined over
time beginning, as indicated in Figure E-6, roughly in 2002 and continuing post-Booker. Factors that may
account for the continuing decline in sentence length in illegal reentry cases include changes in the
guideline and use of EDP departures. For an analysis of these cases, see Commission, INTERIM STAFF
REPORT ON IMMIGRATION REFORM AND THE FEDERAL SENTENCING GUIDELINES (Jan. 20, 2006),
http://www.ussc.gov/publicat/imigration_06.pdf.
282
See also Appendix E-2 through E-6 which contains figures, showing similar trends with respect to
sentence length for offenses covered by the five most frequently applied guidelines.

Figure 8
Average Sentence Imposed and Average Guideline Minimum
Quarterly Data for All Cases
FY2000 – Post-Booker
80

Average (Mean)

Average Sentence
Average Guideline Minimum
60
Blakely

0
FY2000

FY2001

FY2002

FY2003

FY2004

Booker

Cases with guideline minimums of life or probation (i.e., sentence lengths of zero months) were included in the sentence average computations as 470 months and zero
months respectively. Guideline minimums account for applicable statutory mandatory penalties. Only cases with a single guideline computation were included.
Cases sentenced on or before December 31, 2005 (last full quarter of post-Booker data).
SOURCE: U.S. Sentencing Commission 2000-2003 Datafiles, USSCFY2000-USSCFY2003. 2006 Booker Report Datafiles.

Table 3283
Sentence Type and Length
for All Cases and Selected Sentencing Guidelines

Pre-PROTECT Act
(10/1/02-4/30/03)
All Guidelines
Theft and Fraud (§2B1.1)284
Drug Trafficking (§2D1.1)285
Firearms (§2K2.1)
Alien Smuggling (§2L1.1)
Illegal Reentry (§2L1.2)

n
40,678
4,002
14,619
3,175
1,349
5,147

Percent
Prison
85.2
53.4
95.7
91.6
88.9
99.6

Average
Sentence
56
16
80
60
16
29

Median
Sentence
33
12
60
40
12
24

Post-PROTECT Act
(5/1/03-6/24/04)
All Guidelines
Theft and Fraud (§2B1.1 )
Drug Trafficking (§2D1.1)
Firearms (§2K2.1)
Alien Smuggling (§2L1.1)
Illegal Reentry (§2L1.2)

n
80,782
8,622
27,880
7,460
2,603
11,210

Percent
Prison
85.9
56.2
96.6
92.2
91.5
99.8

Average
Sentence
57
20
83
61
17
29

Median
Sentence
33
12
60
41
15
24

Post-Booker
(1/12/05-1/11/06)
All Guidelines
Theft and Fraud (§2B1.1)
Drug Trafficking (§2D1.1)
Firearms (§2K2.1)
Alien Smuggling (§2L1.1)
Illegal Reentry (§2L1.2)

n
67,417
6,723
23,203
6,474
3,078
10,291

Percent
Prison
88.6
61.6
96.7
92.8
90.9
99.5

Average
Sentence
58
23
85
60
17
27

Median
Sentence
36
15
60
41
14
24

The Commission’s post-Booker data evidence an increase in average sentence
length, despite an increase in the rate of imposition of below-range sentences. The cause
of this apparent inconsistency is a matter of interest to participants in the criminal justice
community. There are a number of reasons why average sentence lengths can increase
when the rate of imposition of sentences below the guideline range also increases.

283

Excludes cases missing information on primary sentencing guideline, sentence imposed and sentence
length. Cases with zero months of prison ordered or missing or indeterminable information were excluded.
The information in this table does not include any time of confinement as defined in USSG §5C1.1.
284
Includes amendment years 2001 and later.
285
Includes offenders sentenced under both USSG §§2D1.1 and USSG 2D1.2.
SOURCE: U.S. Sentencing Commission 2006 Booker Report Datafiles.

Average sentence lengths depend on both the rate of imposition of sentences outside the
range and the extent to which they fall outside the range.
Perhaps as important, average sentence lengths depend on the recommended
guideline ranges for the offenses being sentenced at a given time. Social science research
refers to the most likely sentence within the guideline range as the “presumptive
sentence”, i.e., the sentence recommended by the guidelines and most likely to be
imposed by the court if the sentence is within the guidelines. In the federal system, the
presumptive sentence is assumed to be the minimum of the guideline range.286
The presumption that the minimum of the range is the most likely sentence to be
imposed if the sentence is within-range is borne out by sentencing practices over time. In
all three time periods analyzed for this report, approximately 60 percent of within-range
sentences were located at the bottom of the range. Approximately 10 percent of cases
were sentenced at the top of the range in each respective time period. Table 4 catalogues
the position of sentences within the guideline range for all cases sentenced during the
relevant time periods. Interestingly, there is no marked difference between the patterns
of selecting the position of sentence in each of the three time periods.
Table 4
Position of Sentence Within the Guideline Range for All Cases

Position Within
Guideline Range

Pre-PROTECT Act
(10/1/02-4/30/03)

Post-PROTECT Act
(5/1/03-6/24/04)

Post-Booker
(1/12/05-1/11/06)

Guideline
Minimum

59.3%

60.4%

58.2%

Lower Half
of Range

14.5%

14.2%

15.6%

Mid Point
of Range

8.9%

9.0%

8.4%

Upper Half
of Range

6.7%

6.5%

7.5%

Guideline
Maximum

10.6%

10.0%

10.3%

SOURCE: U.S. Sentencing 2006 Booker Report Datafiles.

286

A discussion of the “presumptive sentence model” may be found in Paul J. Hofer and Kevin R.
Blackwell, What are We Learning from Multiple Regression Studies of Federal Sentencing Decisions,
(Paper presented at the American Society of Criminology Meeting, November 9, 2001, Atlanta, GA).
Available from the authors; Rodney L. Engen and Randy R. Gainey, Modeling the Effects of Legally
Relevant and Extralegal Factors Under Sentencing Guidelines: The Rules Have Changed, CRIMINOLOGY
38(4): 1207 (2000).

The applicable guideline minimum presented in Figure 8 therefore is also the
presumptive sentence. There is a consistent relationship over time between the severity of
the sentence recommended by the guidelines for an offense, i.e., the presumptive
sentence, and the sentence imposed for that offense. The proximity of the two lines in
Figure 8 demonstrates this relationship. This relationship partly explains why average
sentence lengths have increased when the rate of imposition of below-range sentences
also has increased.
Presumptive sentences have been increasing since the middle of Fiscal Year 2003
and have continued to do so following the decision in Booker. Presumptive sentences
increase for a variety of reasons. Part of the increase is due to guideline and statutory
amendments that stiffened penalties and increased the guideline range, such as those in
the Commission’s 2001 “Economic Crime Package,” the 2002 Sarbanes-Oxley Act, 287 or
the PROTECT Act. In addition, more serious offenses may have been brought for
prosecution. As shown in Figure 8, the average sentences recommended by the
guidelines have varied between 59 and 61 months since Booker. Partly because of this
relationship between the length of the sentence recommended by the guidelines and the
length of sentence imposed, the average sentence imposed since Booker consequently
varies between 51 and 52 months in the caseload as a whole.
The effect of the higher post-Booker rate of imposition of below-range sentences
can be seen in the somewhat wider gap between the recommended and imposed
sentences in the post-Booker era. This widening was not enough, however, to undo the
effects of the increases in the presumptive sentence.
b.

Changes in Sentence Type

Several other indicators of federal sentencing practices suggest continuity over
time in the type of sentence imposed, for example, in the use of imprisonment instead of
probation or other alternatives to imprisonment. Overall, rates in the imposition of
particular types of sentences have remained relatively constant, and rates of
imprisonment actually have increased somewhat, across the three time periods, indicating
that Booker itself has not had an effect on rates of imposition of particular types of
sentence.
Table 3 demonstrates the Commission’s analysis of the pattern of increase for all
cases in the proportion of offenders sentenced to prison.288 Analysis revealed that 85.2
percent of offenders were sentenced to prison in the pre-PROTECT Act period, as
compared to 85.9 percent post-PROTECT Act and 88.6 percent post-Booker. The
Commission also analyzed the data to show the imprisonment rates for the 5 most
commonly applied guidelines. (see Table 3) For example, rates of imprisonment for theft
and fraud offenders sentenced under USSG §2B1.1 increased more than eight percentage
287

Pub. L. No. 107-204, 116 Stat. 745 (2002).
The columns labeled “n” reflect the number of cases included in each category, “percent prison”
indicated the number of offenders in each category sentenced to a term of imprisonment, and the average
and median sentences imposed are also listed on Table 3.

288

points during the 3-year time frame (53.4% pre-PROTECT Act, to 56.2% postPROTECT Act, to 61.6% post-Booker).
There likely are two factors contributing to the increased rate of imprisonment for
theft and fraud offenders. First, statutory and guideline penalties increased for many
fraud offenses as a result of the Commission’s Economic Crime Package of 2001, the
2002 Sarbanes-Oxley Act and other recent legislation. The proportion of cases sentenced
under USSG §2B1.1 that are subject to the higher base offense level of level seven under
that guideline increased from 0.7 percent post-PROTECT Act to 13.7 percent postBooker.289 Second, the government may be prosecuting more serious economic crimes.
The amount of economic loss involved in theft and fraud cases has increased. The
median loss amounts for cases with loss amounts sufficient to trigger a sentence increase
from the loss table in USSG §2B1.1 increased during the three time periods from $33,929
pre-PROTECT Act, to $41,595 post-PROTECT Act, to $54,566 post-Booker.290 These
median loss amounts depict a steady increase in offense severity. Additionally, the
victim table at USSG §2B1.1(b)(2) is being applied at a steadily increased rate. The
victim-related increases applied to 10.6 percent of USSG §2B1.1 cases pre-PROTECT
Act, 13.9 percent of cases post-PROTECT Act, and 16.7 percent of cases post-Booker.
In addition to the analysis discussed above, analysis was conducted to determine
whether alternatives to imprisonment were being used post-Booker, in cases where
imprisonment was mandated by the guidelines. The data indicate that, notwithstanding
the increased sentencing discretion afforded by Booker, alternatives to imprisonment are
not being imposed at an increased rate, particularly in regard to the most serious category
of offenders. For all cases for which the final offense level was in Zone D of the
Sentencing Table (requiring that, absent a below-range sentence, the minimum sentence
term be satisfied with a sentence of imprisonment),291 the percentages of Zone D
offenders sentenced to a term of imprisonment were 94.1 percent pre-PROTECT Act,
95.2 percent post-PROTECT Act, and 94.5 percent post-Booker, respectively.292
Multivariate analysis was undertaken to assess independently whether Booker had
any impact on the court’s decision to impose imprisonment. Since courts have increased
discretion, including the ability to sentence offenders to non-incarceration sentences, one
might hypothesize that the courts would impose more alternative sentences and less
289

Because the base offense level of 7 was effective November 1, 2003, it is not applicable to the Fiscal
Year 2003 pre-PROTECT Act offenders.
290
See Guidelines Manual §2B1.1(b)(1) (2005). There also was a change in the definition of “loss” in
USSG § 2B1.1 in 2001, but the effect on loss amounts is not clear.
291
See Guidelines Manual §5C1.1(f) (2005). In contrast, sentence terms in Zone B and C can be satisfied
in part with alternative confinement, and sentence terms in Zone A do not require confinement or
imprisonment. Within any given criminal history category, the sentence terms of guideline ranges in Zone
D have the greatest length in the sentencing table.
292
These percentages are less than 100 percent due to departures that result in sentences in other zones of
the Sentencing Table, all of which permit forms of punishment alternative to imprisonment. The
Commission’s data indicate that offenders in Zones B and C are being sentenced to probationary sentences,
rather than confinement, in 10.4 percent and 9.2 percent of these cases, respectively. This compares to PrePROTECT Act rates of 8.2 percent and 8.4 percent, respectively, and post-PROTECT Act rates of 9.0
percent and 6.9 percent, respectively.

prison only sentences. The multivariate analysis indicated that there is no statistically
significant difference in the decision to imprison or not before and after Booker. This
relationship holds for drug and non-drug cases.
c.

Changes in Sentence Length

The Commission also examined the pattern of increase in the average length of
prison sentences for all cases. Table 3 sets forth the results of that analysis. Prior to the
PROTECT Act, the average sentence was 56 months. The average sentence in the postPROTECT Act period was 57 months, and increased to 58 months post-Booker. Table 3
also includes average sentence lengths across the three time periods for the 5 most
commonly applied guidelines. For most of the 5 types, the average sentence increased.
For example, the average sentence for theft and fraud offenders sentenced under USSG
§2B1.1 increased a total of 7 months (16 months pre-PROTECT Act, to 20 months postPROTECT Act, to 23 months post-Booker). Average sentences in illegal reentry cases
declined post-Booker by a few months.
Multivariate analysis also was conducted to assess whether there are any
differences in the factors associated with an increased or decreased sentence before and
after Booker.293 Table 5 shows the percentage difference pre-Booker and post-Booker in
the association between sentence length and factors such as offense type, criminal
history, role in the offense, and other characteristics of the case. As Table 5 indicates,
factors associated with sentence length are essentially the same before and after Booker.
For example, violent offenders were associated with sentences 9.5 percent lower than
drug trafficking offenders in the post-PROTECT Act period and 10.8 percent lower
sentences post-Booker. Only one guideline relevant factor was significant post-Booker
and not significant before. After controlling for all other factors, post-Booker offenders
convicted of white collar offenses had sentences 9.7 percent lower than those convicted
of drug trafficking offenses. This relationship was not statistically significant in the postPROTECT Act period. Whether an offender went to trial was statistically significant in
the post-PROTECT Act population but was not so for the post-Booker population. PostPROTECT Act, an offender who went to trial was sentenced 10.6 percent lower than an
offender who pled after controlling for all other factors.294 Going to trial had no
significant effect on sentences of offenders in the post-Booker population. A discussion
of the association of demographic factors and sentence length is discussed in Chapter 5.

293

Table B-1 in Appendix B provides the results of this analysis.
This seems to contradict the “trial penalty” hypothesis that has usually been put forth (Nancy King, et al.
2005). When Process Affects Punishment Differences in Sentences After Guilty Plea, Bench Trial, and Jury
Trial in Five Guideline States, 105 COLUM. LAW REV: 959.
294

Table 5
Guideline Relevant Factors Post-Booker and Post-PROTECT Act
Post-PROTECT Act
(5/1/03-6/24/04)
Percent Difference

Post-Booker
(1/12/05-1/11/06)
Percent Difference

Offense Type (reference category is drug trafficking offenses)
Violent Offense
Sex Offense
Other Drug Offense
Immigration Offense
White Collar Offense
Other Offenses
Criminal History
Criminal History Points
Career Offender296
Armed Career Criminal

-9.5
-20.5
367.7
43.0
ns295
-12.4

-10.8
-16.7
132.3
39.8
-9.7
-16.9

-1.5
30.4
ns

-0.6
30.7
ns

Role in the offense (reference category is no role adjustment applied)
-15.1
Mitigating Role
ns
Aggravating Role
Case Characteristics
Trial
18 U.S.C. § 924(c) conviction
Weapon SOC
Mandatory Minimum applied
Safety Valve

-10.6
ns
ns
6.0
-17.8

295

-18.7
ns

ns
ns
ns
12.4
ns

Not statistically significant.
For career offender, armed career criminal, and all case characteristic variables, the reference categories
are comprised of offenders who did not receive the specified adjustment or statutory designation. The
reference category for the trial variable is guilty plea.
296

FACTORS RELIED UPON
RANGE SENTENCES
1.

AND

REASONS CITED

FOR

IMPOSITION

BELOW-

Factors relied upon for imposition for below-range sentences

As indicated earlier in this chapter, findings thus far indicate that the most
substantial effect of Booker on federal guideline sentences is the increased rate of
imposition of non-government sponsored, below-range sentences, including a shift in
fashioning these sentences from the use of guideline downward departures to general
citations of Booker or 18 U.S.C. § 3553(a) factors. The proportion of non-governmentsponsored, below-range sentences has increased from 8.6 percent pre-PROTECT Act, to
12.5 percent post-Booker. As classified by the Commission, post-Booker nongovernment-sponsored, below-range sentences are comprised of 3.2 percent departure
sentences and 9.3 percent Booker or otherwise below-range sentences.
Multivariate analysis was conducted to determine whether any factors associated
with the court’s decision to impose a below-range sentence changed after Booker. Most
of the variables analyzed were significant in both time periods, and their magnitudes
remain relatively constant. For example, post-Booker, an offender with an aggravating
role adjustment had a 32.6 percent less likelihood of receiving a court-initiated,
downward departure as compared to those with no role adjustment. In the postPROTECT Act period, this likelihood was 41.8 percent.
Four factors associated with non-government-sponsored, below-range sentences
were shown to be statistically significant in the post-Booker period but not statistically
significant before Booker:297 the application of a mandatory minimum sentence, criminal
history points, career offender status, and citizenship. After Booker: (1) offenders who
had a mandatory minimum sentence applied were 26.7 percent less likely than those
without a mandatory minimum sentence to obtain a non-government-sponsored, belowrange sentence; (2) each criminal history point attributable to the offender decreased the
likelihood of a non-government-sponsored, below-range sentence by 2.9 percent; (3)
career offender status decreased the likelihood of receiving a non-government-sponsored,
below-range sentence by 44.6 percent compared to those without career offender status;
and (4) non-U.S. citizenship decreased the likelihood of receiving a non-governmentsponsored, below-range sentence by 11.8 percent compared to U.S. citizenship.
Two factors were statistically significant post-PROTECT Act but not significant
post-Booker. The application of safety valve decreased the likelihood post-PROTECT
Act of receiving a downward departure by 29.2 percent, and offenders over the age of 25
had 11.1 percent greater likelihood of a below-range sentence compared with those 25
years of age and younger.

297

See Table B-2 for complete results.

Reasons cited for imposition for below-range sentences

In order to assess the specific circumstances that prompted courts to sentence
below the range after Booker, the Commission examined the types and frequency of
reasons given by the courts for the imposition of non-government-sponsored, belowrange sentences. Four post-Booker below-range categories presented separately for this
analysis are as follows:
•

Downward Departure/Guideline Reason:298 All cases with imposed
sentence below the range and citing reasons for departure limited to, and
affirmatively and specifically identified in the policy statements, or
commentary of the federal Guidelines Manual.

•

Downward Departure/Booker Reason: All cases with imposed sentence
below the range and citing reasons for departure limited to, and
affirmatively and specifically identified in the policy statements, or
commentary of the federal Guidelines Manual, and additionally
mentioning either U.S. v. Booker, 18 U.S.C. § 3553, or related factors as a
reason for a sentence below-range.

•

Below-range Booker: All cases with imposed sentences below the range
mentioning only U.S. v. Booker, 18 U.S.C. § 3553, or related factors as a
reason for a below-range sentence.

•

Otherwise below-range: Cases with imposed sentences below the range
that do not fall into the three previous categories. Based on the
information submitted on the Statement of Reasons, these cases cannot be
classified as a guideline departure, or as a below-range sentence pursuant
to Booker/18 U.S.C. § 3553. This category includes cases which cited
departure reasons that are not affirmatively and specifically identified in
the policy statements, or commentary of the federal Guidelines Manual
and cases which do not provide any reasons for the below-range sentence.

Overall, reasons used under the guidelines for the imposition of downward
departures often are used in all but one of the Booker below-range categories. In fact,
criminal history, a guideline departure reason, consistently appears as one of the 4 most
commonly cited reasons for the imposition of a below-range sentence under Booker in all
4 below-range categories.
Table 6 shows that the most commonly cited reasons post-Booker for the
imposition of guideline downward departures citing guideline reasons are criminal
history, general mitigating circumstances, family ties, and aberrant behavior. These

298

Above-range sentences follow the same decision protocol and are reported in identically defined
categories but with an “upward” modifier.

reasons historically have been the most commonly cited reasons for downward
departures.299
The most commonly cited reasons post-Booker for the imposition of guideline
downward departures that also cite Booker are 18 U.S.C. § 3553(a), the presence of a
variance, criminal history, family ties, and nature of the offense pursuant to 18 U.S.C. §
3553(a). See Table 7.
The most commonly cited reasons post-Booker for the imposition of a belowrange sentence using Booker are 18 U.S.C. § 3553(a) generally, the presence of a
variance, specific language from 18 U.S.C. § 3553(a), criminal history, and the nature
and circumstances of the offense/history of the defendant pursuant to 18 U.S.C. §
3553(a)(1). As expected, cases in this category least employ guideline downward
departure reasons. See Table 8.
As Table 9 indicates, insufficient information in the documentation by far
accounted for the largest proportion of sentences categorized by the Commission as
otherwise below-range. This category also included a combination of guideline departure
grounds and other grounds as reasons for the imposition of the below-range sentence
(e.g., criminal history and general mitigating circumstances). The lack of meaningful
documentation in many cases makes assessment of the reasons for the imposition of a
non-government-sponsored below-range sentence exceptionally difficult if not
impossible. Universal use of the newly revised Statement of Reasons form should help in
the collection of more detailed and meaningful information.300
A number of conclusions can be drawn from examining the reasons for the
imposition of non-government-sponsored, below-range sentences. First, even in cases
citing to or otherwise using Booker, the consideration of departure reasons remains
prevalent. Although there is extensive reliance on reasons that are not guideline
departure reasons, these often are used in combination with guideline departure reasons.
Second, the defendant’s criminal history and to a lesser extent the defendant’s
family ties and circumstances frequently provide the basis for the imposition of nongovernment-sponsored, below-range sentences.
Third, while some courts cite only in general terms to Booker and/or the
provisions of 18 U.S.C. § 3553(a) in the imposition of non-departure, below-range
sentences, a number of cases make more specific reference to the particular purposes of
sentencing that would, in the court’s view, better be achieved by fashioning a belowrange sentence.

299
300

See 2003 DEPARTURES REPORT, available at www.ussc.gov.
See Statement of Reasons form, (AO245B (rev. 06/05)) in Appendix A.

Table 6
Reasons Given By Sentencing Courts
for Departures Below the Guideline Range
Downward Departures with Guideline Reasons301

Number

Percent

Criminal history issues
(5K2.0) General aggravating or mitigating circumstances
(5H1.6) Family ties and responsibilities
(5K2.20) Aberrant behavior
(5H1.4) Physical condition
(5K2.13) Diminished capacity
(5H1.3) Mental and emotional conditions
(5H1.1) Age
(5K2.23) Discharge terms of imprisonment
(5K2.12) Coercion and duress
(5H1.11) Military record/charitable works/good deeds
(5K2.11) Lesser harm
5G1.3
(5K2.10) Victim conduct
(5H1.5) Previous employment record
(5H1.4) Drug dependence and alcohol abuse
(5K2.16) Voluntary disclosure
(5H1.6) Community ties
(5K2.22) Age or health of sex offenders
Loss issues
(5K2.2) Physical injury
(5K2.9) Criminal Purpose
(5K2.3) Extreme psychological injury
Other302
Total

662
299
181
159
140
86
69
65
43
32
26
24
23
17
14
13
12
9
9
8
4
3
2
16
1,916

34.6
15.6
9.4
8.3
7.3
4.5
3.6
3.4
2.2
1.7
1.4
1.3
1.2
0.9
0.7
0.7
0.6
0.5
0.5
0.4
0.2
0.2
0.1
0.8
100.0

301

Of the 67,564 cases, 1,456 departed below the guideline range for a guideline reason. Departure reasons
were available in 1,456 of these cases which cited 1,916 reasons for downward departure. Courts often
provide multiple reasons for departure; consequently, the total number of downward departure reasons may
exceed the number of cases with a downward departure.
302
The “Other” category includes all reasons provided fewer than two times among relevant cases.
SOURCE: U.S. Sentencing Commission 2006 Booker Report Datafiles.

Table 7
Reasons Given By Sentencing Courts
for Departures Below the Guideline Range
Downward Departures with Booker Reasons303
18 USC 3553(a)
Judge specifies presence of variance
Criminal History Issues
(5H1.6) Family ties and responsibilities
Nature & circumstances of offense/hist. of def. pursuant to 18 USC 3553 (a)(1)
(5K2.0) General Aggravating or Mitigating Circumstance
(5H1.4) Physical condition
Rehabilitation
Language from 18 USC 3553(a) statute
(5H1.1) Age
(5H1.3) Mental and Emotional Conditions
Reflect seriousness of offense/promote respect for law/just punishment
US v Booker/ US v Fanfan
Reduce disparity
(5K2.20) Aberrant Behavior
Afford adequate deterrence to criminal conduct
Reasonableness
(5H1.5) Previous Employment Record
Protect public from further crimes
(5K2.13) Diminished capacity
Provide defendant with educational/vocational training/medical care/etc.
Avoid unwarranted sentencing disparity among defendants
(5H1.11) Military Record/Charitable Works/Good Deeds
(5H1.4) Drug dependence and alcohol abuse
Advisory nature of the guidelines
Deterrence
(5H1.2) Educational and vocational skills
Adequate punishment to meet purposes of sentencing
(5H1.6) Community ties
(5K2.12) Coercion and duress
Provide restitution to any victims
(5K2.11) Lesser harm
(5K2.16) Voluntary disclosure
(5K2.23) Discharge terms of imprisonment
Incapacitation
5G1.3
Insufficient documentation provided on SOR to determine reason
(5K2.10) Victim Conduct
Loss issues
Other304
Total
303

Number
270
220
187
179
117
109
91
91
74
70
69
57
53
49
46
45
41
40
34
33
33
28
23
20
20
20
18
15
9
7
7
5
5
4
4
3
3
2
2
6
2,109

Percent
12.8
10.4
8.9
8.5
5.6
5.2
4.3
4.3
3.5
3.3
3.3
2.7
2.5
2.3
2.2
2.1
1.9
1.9
1.6
1.6
1.6
1.3
1.1
1.0
1.0
1.0
0.9
0.7
0.4
0.3
0.3
0.2
0.2
0.2
0.2
0.1
0.1
0.1
0.1
0.3
100.0

Of the 67,564 cases, 645 departed below the guideline range citing a Booker reason. Departure reasons
were available in 645 of these cases which cited 2,109 reasons for downward departure. Courts often
provide multiple reasons for departure; consequently, the total number of downward departure reasons may
exceed the number of cases with a downward departure.
304
The “Other” category includes all reasons provided fewer than two times among relevant cases.
SOURCE: U.S. Sentencing Commission 2006 Booker Report Datafiles.

Table 8
Reasons Given By Sentencing Courts for
Sentences Below the Guideline Range Citing Booker
Below Range Booker305
18 USC 3553(a)
Judge specifies presence of variance
Language from 18 USC 3553(a) statute text
Criminal History issues
Nature and circumstances of offense/hist. of def. pursuant to 18 USC 3553(a)(1)
Reasonableness
US v Booker/US v Fanfan
Insufficient documentation provided on SOR to determine reason
Advisory nature of the guidelines
Reflect seriousness of offense/promote respect for law/just punishment
General Guideline Adequacy Issues
Reduce disparity
(5H1.6) Family Ties and Responsibilities
Afford adequate deterrence to criminal conduct
Adequate punishment to meet purposes of sentencing
Deterrence
Rehabilitation
Avoid unwarranted sentencing disparities among def.
Protect the public from further crimes
(5H1.1) Age
Mule/Role in the offense
Provide def. with education/vocational training/medical care/etc.
(5H1.5) Previous Employment Record
(5K2.0) General Aggravating or Mitigating Circumstance
Not 5K1.1 Cooperation without Motion
(5H1.4) Physical Condition
Cooperation-Motion unknown
(5H1.3) Mental and Emotional Conditions
Incapacitation
Restitution
Time Served
Def. positive background/good character
(5H1.4) Drug dependence and alcohol abuse
Lack of culpability/accountability of def
Acceptance of responsibility
(5K2.20) Aberrant behavior
Provide restitution to any victims
Sufficient punishment
Remorse
5H1.11 Military Record/Charitable Works/Good Deeds
Not representative of heartland
(5H1.6) Community Ties
Crack/Powder Cocaine Disparity
Loss Issues
Other306
Total

305

Number

Percent

2,162
1,331
572
569
519
361
339
306
299
284
282
279
235
222
190
180
180
173
168
141
127
127
91
88
82
79
70
67
66
60
56
51
44
42
40
38
36
36
35
28
28
27
27
26
715
10,878

19.9
12.2
5.3
5.2
4.8
3.3
3.1
2.8
2.8
2.6
2.6
2.6
2.2
2.0
1.8
1.7
1.7
1.6
1.5
1.3
1.2
1.2
0.8
0.8
0.8
0.7
0.6
0.6
0.6
0.6
0.5
0.5
0.4
0.4
0.4
0.4
0.3
0.3
0.3
0.3
0.3
0.3
0.3
0.2
6.6
100.0

Of the 67,564 cases, 3,850 were below the guideline range citing a Booker reason. Reasons were
available in 3,850 of these cases which cited 10,878 reasons for below range sentences. Courts often
provide multiple reasons for below range sentences; consequently, the total number of below range reasons
may exceed the number of cases with sentences below the guideline range.
306
The “Other” category includes all reasons provided twenty-five times or fewer among relevant cases.
SOURCE: U.S. Sentencing Commission 2006 Booker Report Datafiles.

Table 9
Reasons Given By Sentencing Courts for
Sentences Below the Guideline Range Citing Booker
Otherwise Below Range307
Insufficient documentation provided on SOR to determine reason
Criminal history issues
(5K2.0) General aggravating or mitigating circumstances
(5H1.6) Family ties and responsibilities
General guideline adequacy issues
(5H1.1) Age
Rehabilitation
Mule/role in the offense
Time Served
(5H1.4) Physical Condition
Reduce Disparity
Restitution
(5H1.3) Mental/Emotional Conditions
Cooperation – Motion Unknown
(5K2.20) Aberrant Behavior
(5H1.5) Previous Employment
Not Representative of Heartland
Acceptance of Responsibility
(Not 5K1.1) Cooperation without Motion
Deterrence
Adequate Punishment to meet Purposes of Sentencing
Cultural Assimilation
Reasonableness
Remorse
(5H1.4) Drug Dependence and Alcohol Abuse
Def. Positive Background/Good Character
5H1.11 – Military Record/Charitable Works/ Good Deeds
Lack of Culpability/Accountability of Def
Loss issues
Totality of Circumstances/Combination of Factors
Advisory nature of guidelines
Impact on Employment of Defendant/Others
(5K2.13) Diminished Capacity
Susceptibility/Prey to other inmates
Delay in Prosecution/Evidentiary Concerns
Statmin/Statmax
Aberrant Behavior/Offense Behavior was Isolated Incident
Child Abuse Syndrome
Currently Rec Punishment Under State/Fed Juris
(5H1.6) Community Ties
Low Likelihood or Recidivism
Mitigating Factors Regarding Firearms
(5H1.2) Educational and Vocational Skills
Interest of Justice
Other308
Total
307

Number

Percent

970
496
251
165
97
90
84
78
73
71
63
62
61
59
57
53
52
47
43
41
39
39
39
30
28
28
24
22
22
22
20
20
18
17
16
16
15
15
15
14
14
14
12
11
535
3,958

24.5
12.5
6.3
4.2
2.5
2.3
2.1
2.0
1.8
1.8
1.6
1.6
1.5
1.5
1.4
1.3
1.3
1.2
1.1
1.0
1.0
1.0
1.0
0.8
0.7
0.7
0.6
0.6
0.6
0.6
0.5
0.5
0.5
0.4
0.4
0.4
0.4
0.4
0.4
0.4
0.4
0.4
0.3
0.3
13.5
100.0

Of the 67,564 cases, 2,238 were otherwise below the guideline range. Reasons were available in 2,210
of these cases which cited 3,958 reasons for below range sentences. Courts often provide multiple reasons
for below range sentences; consequently, the total number of below range reasons may exceed the number
of cases with sentences below the guideline range.
308
The “Other” category includes all reasons provided ten times or fewer among relevant cases.
SOURCE: U.S. Sentencing Commission 2006 Booker Report Datafiles.

Chapter 5

ANALYSIS OF COMMISSION SENTENCING DATA: REGIONAL
AND DEMOGRAPHIC DIFFERENCES IN FEDERAL SENTENCING
PRACTICES
A.

INTRODUCTION AND MAJOR FINDINGS

This chapter details the results of the Commission’s data analyses of the impact of
Booker with respect to regional and demographic differences in federal sentencing
practices. In sum, these analyses yielded the following findings:
•

The regional differences in sentencing practices that existed before Booker
continue to exist. There are varying rates of sentencing in conformance
with the guidelines reported by the twelve circuits. Consistent with the
national trend, rates of imposition of within-range sentences decreased for
each of the twelve circuits following Booker.

•

Fifty-two of the 94 districts, or 55 percent, have rates of imposition of
within-range sentences at or above the national average of 62.2 percent.
Forty-two districts have rates of imposition of within-range sentences
below the national average. In 34 of these 42 districts, the rates of
imposition of government-sponsored, below-range sentences exceed the
rates of imposition of other below-range sentences.

•

Multivariate analysis conducted on post-Booker data reveals that male
offenders continue to be associated with higher sentences than female
offenders. Such an association is found every year from 1999 through the
post-Booker period. Associations between demographic factors and
sentence length should be viewed with caution because there are
unmeasured factors, such as violent criminal history or bail decisions,
statistically associated with demographic factors that the analysis may not
take into account.

•

Multivariate analysis conducted on post-Booker data reveals that black
offenders are associated with sentences that are 4.9 percent higher than
white offenders. Such an association was not found in the post-PROTECT
Act period but did appear in 4 of the 7 time periods analyzed from 1999
through the post-Booker period.

•

Multivariate analysis conducted on post-Booker data reveals that offenders
of “other” races (mostly Native American offenders) are associated with
sentences that are 10.8 percent higher than white offenders. This
association also was found in 2 of the 7 time periods from 1999 through
the post-Booker period.

•

Multivariate analysis conducted on post-Booker data reveals that there is
no statistical difference between the sentence length of Hispanic offenders
and the sentence length of white offenders.

DIFFERENCES IN CIRCUIT AND DISTRICT SENTENCING PRACTICES

Variation in rates of imposition of within-range and below-range sentences among
different circuits and districts has been a long-standing feature of federal guidelines
sentencing. These variations have been the subject of analysis and research by the
Commission, other government agencies and commentators,309 and by academic
researchers.310 This research suggests that downward departures may be contributing to
regional differences in sentencing, but the reasons for variations in departure rates have
been difficult to understand.
Previous Commission reports have found regional variations and explored some
of their reasons. In 1998, the Commission reported significant variations among districts
in the policies and practices governing use of USSG §5K1.1 departures based on
offenders’ substantial assistance in the prosecution of other persons.311
The
Commission’s 2003 Departures Report showed general consistency across time in the
districts reporting the highest and lowest rates of imposition of out-of-range sentences but
substantial differences across districts. The composition of the caseload and the role of
government-sponsored departures were shown to be important determinants of interdistrict variations. The Commission’s Fifteen Year Review discussed a variety of factors
leading to disparity among districts.312 Differences among the culture and practices of
district courts were found to contribute to regional variation in departure rates more than
differences among the circuits. That is, differences among districts within the circuits
were more important than overall differences over time among the circuits.
Modified reporting practices implemented subsequent to the PROTECT Act
permit further exploration of variations in rates of imposition of government-sponsored
downward departures and non-government-sponsored, below-range sentences. This
section uses the revised post-Booker categories to describe and compare district and
circuit practices pre-PROTECT Act, post- PROTECT Act, and post-Booker.

309

William W. Mercer, Assessing Compliance with the U. S. Sentencing Guidelines: The Significance of
Improved Data Collection and Reporting, 16 FED. SENT'G REP. 43 (2003); General Accounting Office,
2003.
310
Douglas A. Berman, Balanced and Purposeful Departures: Fixing a Jurisprudence that Undermines the
Federal Sentencing Guidelines, 76 NOTRE DAME L. REV. 21 (2003); Patti B. Saris, Below the Radar
Screens: Have the Sentencing Guidelines Eliminated Disparity? One Judge’s Perspective, 30 SUFFOLK U.
L. REV. 1027 (1997); Lida Farabee Disparate Departures under the Federal Sentencing Guidelines: A Tale
of Two Districts, 30 CONN. L. REV. 569 (1998).
311
Linda Maxfield & John Kramer, Substantial Assistance: An Empirical Yardstick Gauging Equity in
Current Policy and Practice (January 1998).
312
FIFTEEN YEAR REVIEW at 93-110.

Differences in Circuit Sentencing Practices

Circuit and district rates of imposition of within-range and out-of-range sentences
have varied across both time and jurisdiction. The Commission examined circuit changes
over the 4 most recent fiscal years and compared them to the post-Booker period.313
Table 10 illustrates the result of the comparison. Rates of imposition of within-range
sentences decreased for each of the twelve circuits from the post-PROTECT Act period
to the post-Booker period. Those rates fell as little as 4.8 percentage points in the
Eleventh Circuit, (from 74.7 % to 69.9 %) to as much as 14.3 percentage points in the
First Circuit (from 79.6 % to 65.3 %).
With the exception of the DC Circuit, the rankings among circuits have remained
relatively stable across time. Rates of imposition of within-range sentences in the postBooker period vary from a low of 48.5 percent in the Ninth Circuit to a high of 72.0
percent in the Fifth Circuit. The ranges narrowed somewhat from about a 25-percentage
point spread in Fiscal Year 2001 to an 18-percentage point spread in Fiscal Year 2003.
Post-Booker, the ranges returned to rates more comparable to 2001 and 2002.

Table 10
Rates of Within-Range Sentences
for Each Federal Judicial Circuit

DC Circuit
First Circuit
Second Circuit
Third Circuit
Fourth Circuit
Fifth Circuit
Sixth Circuit
Seventh Circuit
Eighth Circuit
Ninth Circuit
Tenth Circuit
Eleventh Circuit

FY2001
74.6
73.3
57.5
60.2
73.7
69.1
65.1
71.0
66.8
50.1
65.0
72.1

FY2002
59.9
75.7
61.3
58.9
76.6
71.0
66.9
69.3
69.3
48.8
66.6
70.2

FY2003
64.6
77.3
63.2
62.3
77.0
73.7
69.1
72.5
72.2
59.6
73.1
74.5

FY2004
Pre-Blakely
59.2
79.6
63.8
62.6
79.0
80.2
69.7
75.4
77.0
61.8
73.9
74.7

Post-Booker
(1/12/051/11/06)
52.5
65.3
50.1
52.1
67.2
72.0
57.9
63.5
64.4
48.5
66.5
69.9

SOURCE: U.S. Sentencing Commission Sourcebook of Federal Sentencing Statistics, FY2001
through FY2003, U.S Sentencing Commission FY2004 Datafile USSCFY04, pre-Blakely only
(10/1/03-6/23/04); Special Post-Booker coding project (data extracted February 22, 2006).

313

See Appendix D, page D-10 (Guideline Application By Circuit).

Rates of imposition of within-range sentences depend on different combinations
of the various types of out-of-range sentences. Circuits with similarly low rates of
imposition of within-range sentences vary significantly in their rates of imposition of
government-sponsored downward departures and other non-government-sponsored,
below-range sentences. The Ninth Circuit reports the lowest rate of imposition of withinrange sentences but also has by far the highest rate of imposition of governmentsponsored, below-range sentences (27.5%) due to the large portion of fast track
departures in several districts in that circuit. In contrast, the Third Circuit has the highest
rates of imposition of USSG §5K1.1 departures (27.3%), low rates of imposition of other
types of government-sponsored departures (1.7%), and higher rates of imposition of nongovernment-sponsored, below-range sentences (17.6%). Figure 9 displays the rate of
imposition of within-range sentences and the rates of imposition of various types of outof-range sentences for each circuit.314

314

Figure 9 depicts the rates of above-range sentences at the top of the figure (red lines). Within-range
sentences for each circuit are in green, over the thick black line.

Percent

Figure 9
Position of Sentences Relative to the Guideline Range Post-Booker
for Each Circuit

70
60
50
40
30
20
10
0
-10
-20
-30
-40
-50
-60
DC

1st
Within-Range

2nd

3rd
Above-Range

4th

5th

6th

Other Below-Range

7th

8th

9th

Gov't Sponsored Below-Range

10th

11th

USSG §5K1.1

SOURCE: U.S. Sentencing Commission, Special Post-Booker Coding Project, BOOKER05 (data extraction on February 22, 2006). See Appendix D (Guideline
Application Trends, National and Circuit).

Differences in District Sentencing Practices

Two major findings in the Commission’s 2003 Departures Report were that (1)
most judicial districts have relatively low rates of imposition of non-governmentsponsored, below-range sentences; and (2) the districts with the highest and lowest rates
remain relatively stable over time.315 Figure 10 shows the concentration of rates of
imposition of non-government-sponsored, below-range sentences in the pre-PROTECT
Act, post-PROTECT Act, and post-Booker time periods. For example, 34 districts had
rates of imposition of below-range sentences between zero and 5 percent prior to the
PROTECT Act. That number peaked at 57 districts following the PROTECT Act and
has decreased to five districts post-Booker. Eighteen districts had rates of imposition of
non-government-sponsored, below-range sentences greater than ten percent prior to the
PROTECT Act. That number decreased to 12 districts following the PROTECT Act and
increased to 54 post-Booker.
Data from the post-Booker period show a shift toward higher rates of imposition
of non-government-sponsored, below-range sentences. As Figure 10 illustrates, the
majority of districts remain in the lower rate categories overall. (see Figure 10) For
example, 42.5 percent of the districts (40 of 94) had rates of imposition of nongovernment-sponsored, below-range sentences post-Booker at or below 10 percent
(compared to 76 pre-PROTECT Act and 82 post-PROTECT Act in those two categories).
A majority of the districts (76 of 94, or 80.9%) show rates of imposition of nongovernment-sponsored, below-range sentences of between 5 percent and 20 percent postBooker.
As discussed earlier in this report, rates of imposition of government-sponsored
departures are uniformly higher at each time period than are rates of imposition of nongovernment-sponsored, below-range sentences. The Commission compared the rates of
imposition of government-sponsored departures (under USSG §§ 5K1.1 and 5K3.1 and
other government-sponsored downward departures) among the 94 districts across the
same three time periods. Figure 11 illustrates those comparisons.

315

See 2003 DEPARTURES REPORT at 34.

Figure 10
Rates of Other Below-Range Sentences Among Districts
Pre-PROTECT Act, Post-PROTECT Act and Post-Booker
60

Number of Districts
57

Pre-PROTECT Act

Post-PROTECT Act

Post-Booker

50
42

40
35

30
25
21
20

9
6

3
1

5
2

0
0-5%

5-10%

10-15%

15-20%

20-25%

25-30%

30-35%

35-40%

Rate of Other Below-Range Sentences
Other Below-Range Sentences are defined as non-government sponsored downward departures for the pre-PROTECT Act (10/01/02 – 04/30/03) and post-PROTECT Act
(05/01/03 – 06/24/04) data. For the post-Booker data (01/12/05 – 01/11/06), Other Below-Range Sentences include non-government sponsored downward departures,
below-range citing Booker and otherwise below the range.
SOURCE: U.S. Sentencing Commission, 2006 Booker Report Datafiles.

Figure 11
Rates of Government Sponsored Downward Departures Among Districts
Pre-PROTECT Act, Post-PROTECT Act and Post-Booker
25

Number of Districts
Pre-PROTECT Act

Post-PROTECT Act

Post-Booker

22 22

19
17
15

13 13
12

9
8
7

7
5

5
3

1 1

0
0-5%

5-10%

10-15%

15-20%

20-25%

25-30%

30-35%

35-40%

40-45%

45-50%

50-55%

55-60%

60-65%

Rate of Government Sponsored Below-Range Sentences
The data in this figure are from the following three time periods: Pre-PROTECT Act (10/01/02 – 04/30/03), Post-PROTECT Act (05/01/03 – 06/24/04) and PostBooker (01/12/05 – 01/11/06). Government Sponsored Downward Departures include USSG §5K1.1 Departures, USSG §5K3.1 (EDP) Departures, and other
government sponsored downward departures. See Appendix B for further information regarding the determination of sentencing categories.
SOURCE: U.S. Sentencing Commission, 2006 Booker Report Datafiles.

Table 11 further demonstrates that the high rates of imposition of below-range
sentences primarily tend to be the result of government-sponsored downward departures
or motions. Government-sponsored, below-range sentences account for 23.7 percent of
all cases, and other below-range sentences account for 12.5 percent of all cases (3.2%
downward departures and 9.3% Booker authority). Table 11 lists the 94 judicial districts
in descending order of rates of imposition within-range sentences in the post-Booker
period. Noteworthy is the fact that 55 percent (52 districts), of the 94 districts have rates
of imposition of within-range sentences at or above the national average of 62.2 percent.
The role of government-sponsored, below-range sentences is apparent, especially upon
considering the remaining 42 districts that have rates of imposition of within-range
sentences below the national average. In 34 of these 42 districts, rates of imposition of
government-sponsored, below-range sentences are relatively high, ranging from 19.7
percent in the Northern District of California to 62.8 percent in the District of Arizona
(which has an approved EDP or “fast track” program).
Table 12 lists the 94 federal judicial districts in descending order of imposition of
non-government-sponsored, below-range sentences. Slightly more than half of the 94
districts (49 districts, or 52.1%) have overall rates of imposition of non-governmentsponsored, below-range sentences less than the national average of 12.5 percent, with
rates ranging from zero percent to 12.4 percent. Focusing on the remaining 45 districts
with rates of imposition of non-government-sponsored, below-range sentences above the
national average of 12.5 percent, there is approximately an even split between those with
higher rates of imposition of government-sponsored, below-range sentences as follows.
In 26 of these 45 districts (57.8%), the rates of imposition of government-sponsored,
below-range sentences are greater than the rates of imposition of non-governmentsponsored, below range sentences. The remaining 19 districts have greater rates of
imposition of non-government-sponsored, below-range sentences.
Focusing specifically on rates of guideline conformance, Table 13 lists the 94
federal judicial districts in descending order of combined rates of imposition of withinrange and government-sponsored, below-range sentences. Forty-seven of the 94 federal
judicial districts have combined rates of imposition of within-range and governmentsponsored, below-range sentences at or above the national average of 85.9 percent,
ranging from 97.9 percent in the Eastern District of Oklahoma to 85.9 percent in the
District of Kansas.

Table 11
Sentences Relative to the Guideline Range for Each Judicial District
Ordered by Decreasing Rates of Within-Range Sentences
Post-Booker

Within-Range
District
TOTAL
Oklahoma Eastern
Virgin Islands
Wisconsin Western
Illinois Southern
Oklahoma Northern
West Virginia Northern
Mississippi Southern
California Central
Texas Eastern
Texas Western
Florida Southern
Montana
Puerto Rico
West Virginia Southern
Louisiana Eastern
North Carolina Middle
Virginia Eastern
Northern Mariana Islands
Texas Northern
South Dakota
Utah
Nevada
Oklahoma Western

Gov’t Sponsored
Below-Range

Downward
Departures

Below-Range
Booker

Upward
Departures

Above-Range
Booker

TOTAL

65,368
96
116
185
288
204
312
333
876
739
5,154
1,951
393
499
301
335
442
1,367
24
915
422
914
415
220

40,645
84
101
159
241
168
253
270
707
593
4,078
1,512
300
380
229
254
334
1,030
18
684
311
664
300
159

62.2
87.5
87.1
85.9
83.7
82.4
81.1
81.1
80.7
80.2
79.1
77.5
76.3
76.2
76.1
75.8
75.6
75.3
75.0
74.8
73.7
72.6
72.3
72.3

15,500
10
5
8
15
23
30
32
54
84
616
198
47
43
35
46
56
94
5
108
27
101
49
19

23.7
10.4
4.3
4.3
5.2
11.3
9.6
9.6
6.2
11.4
12.0
10.1
12.0
8.6
11.6
13.7
12.7
6.9
20.8
11.8
6.4
11.1
11.8
8.6

2,101
1
1
3
9
0
6
7
29
16
87
45
10
9
9
7
8
25
0
13
14
43
9
6

3.2
1.0
0.9
1.6
3.1
0.0
1.9
2.1
3.3
2.2
1.7
2.3
2.5
1.8
3.0
2.1
1.8
1.8
0.0
1.4
3.3
4.7
2.2
2.7

6,088
1
9
13
18
8
20
16
83
34
299
176
19
48
21
18
40
182
0
63
45
99
48
25

9.3
1.0
7.8
7.0
6.3
3.9
6.4
4.8
9.5
4.6
5.8
9.0
4.8
9.6
7.0
5.4
9.0
13.3
0.0
6.9
10.7
10.8
11.6
11.4

175
0
0
0
2
1
0
0
0
1
6
5
4
2
2
3
0
5
0
2
9
0
0
0

0.3
0.0
0.0
0.0
0.7
0.5
0.0
0.0
0.0
0.1
0.1
0.3
1.0
0.4
0.7
0.9
0.0
0.4
0.0
0.2
2.1
0.0
0.0
0.0

859
0
0
2
3
4
3
8
3
11
68
15
13
17
5
7
4
31
1
45
16
7
9
11

1.3
0.0
0.0
1.1
1.0
2.0
1.0
2.4
0.3
1.5
1.3
0.8
3.3
3.4
1.7
2.1
0.9
2.3
4.2
4.9
3.8
0.8
2.2
5.0

Table 11
Sentences Relative to the Guideline Range for Each Judicial District
Ordered by Decreasing Rates of Within-Range Sentences
Post-Booker

Within-Range
District
Maine
Florida Northern
Louisiana Western
South Carolina
Kentucky Western
Arkansas Western
Georgia Middle
Georgia Southern
Indiana Northern
Pennsylvania Western
North Dakota
Iowa Northern
Alabama Southern
Rhode Island
Arkansas Eastern
Missouri Eastern
Georgia Northern
Michigan Western
Missouri Western
Kansas
Florida Middle
New Mexico
Texas Southern
Nebraska
Delaware
Tennessee Eastern

TOTAL

233
311
386
962
351
196
357
290
361
428
225
358
332
127
252
962
658
402
778
622
1,568
2,461
6,430
810
161
602

n
168
223
276
682
249
139
252
202
251
297
155
246
226
86
169
643
437
266
514
411
1,028
1,607
4,171
525
104
389

%
72.1
71.7
71.5
70.9
70.9
70.9
70.6
69.7
69.5
69.4
68.9
68.7
68.1
67.7
67.1
66.8
66.4
66.2
66.1
66.1
65.6
65.3
64.9
64.8
64.6
64.6

Gov’t Sponsored
Below-Range
n
51
58
35
166
74
40
75
38
86
54
52
50
74
7
33
182
107
64
147
123
365
711
1,582
170
14
149

%
21.9
18.6
9.1
17.3
21.1
20.4
21.0
13.1
23.8
12.6
23.1
14.0
22.3
5.5
13.1
18.9
16.3
15.9
18.9
19.8
23.3
28.9
24.6
21.0
8.7
24.8

Downward
Departures
n
5
4
9
25
8
4
0
14
9
23
5
6
7
3
9
40
35
12
8
14
49
50
218
44
13
5

%
2.1
1.3
2.3
2.6
2.3
2.0
0.0
4.8
2.5
5.4
2.2
1.7
2.1
2.4
3.6
4.2
5.3
3.0
1.0
2.3
3.1
2.0
3.4
5.4
8.1
0.8

Below-Range
Booker

Upward
Departures

n
8
16
46
80
20
12
21
14
13
48
11
37
20
26
36
86
68
51
94
63
104
83
399
64
30
50

n
0
3
1
4
0
0
1
4
0
0
1
3
0
1
3
1
4
2
0
2
2
1
16
0
0
0

%
3.4
5.1
11.9
8.3
5.7
6.1
5.9
4.8
3.6
11.2
4.9
10.3
6.0
20.5
14.3
8.9
10.3
12.7
12.1
10.1
6.6
3.4
6.2
7.9
18.6
8.3

%
0.0
1.0
0.3
0.4
0.0
0.0
0.3
1.4
0.0
0.0
0.4
0.8
0.0
0.8
1.2
0.1
0.6
0.5
0.0
0.3
0.1
0.0
0.2
0.0
0.0
0.0

Above-Range
Booker
n
1
7
19
5
0
1
8
18
2
6
1
16
5
4
2
10
7
7
15
9
20
9
44
7
0
9

%
0.4
2.3
4.9
0.5
0.0
0.5
2.2
6.2
0.6
1.4
0.4
4.5
1.5
3.1
0.8
1.0
1.1
1.7
1.9
1.4
1.3
0.4
0.7
0.9
0.0
1.5

Table 11
Sentences Relative to the Guideline Range for Each Judicial District
Ordered by Decreasing Rates of Within-Range Sentences
Post-Booker

Within-Range
District
Indiana Southern
Wyoming
Louisiana Middle
Virginia Western
California Northern
Mississippi Northern
Alabama Northern
North Carolina Western
Tennessee Middle
New York Southern
Alabama Middle
Washington Eastern
Alaska
Ohio Northern
Illinois Central
Tennessee Western
Illinois Northern
New York Western
North Carolina Eastern
New Hampshire
California Southern
California Eastern
Oregon
New York Northern
Massachusetts
Guam

TOTAL

301
204
178
621
614
192
423
567
292
1,226
214
355
197
978
357
563
1,045
562
652
181
2,130
893
511
360
444
121

n
194
130
111
385
378
118
260
347
178
742
129
209
115
568
207
324
600
315
363
100
1,167
482
276
191
235
64

%
64.5
63.7
62.4
62.0
61.6
61.5
61.5
61.2
61.0
60.5
60.3
58.9
58.4
58.1
58.0
57.5
57.4
56.0
55.7
55.2
54.8
54.0
54.0
53.1
52.9
52.9

Gov’t Sponsored
Below-Range
n
69
53
46
157
121
56
108
158
63
187
74
71
34
236
78
150
251
188
229
59
703
316
113
114
53
43

%
22.9
26.0
25.8
25.3
19.7
29.2
25.5
27.9
21.6
15.3
34.6
20.0
17.3
24.1
21.8
26.6
24.0
33.5
35.1
32.6
33.0
35.4
22.1
31.7
11.9
35.5

Downward
Departures
n
7
5
1
12
23
2
5
14
11
63
2
10
3
43
12
13
50
4
13
7
111
24
21
20
35
5

%
2.3
2.5
0.6
1.9
3.7
1.0
1.2
2.5
3.8
5.1
0.9
2.8
1.5
4.4
3.4
2.3
4.8
0.7
2.0
3.9
5.2
2.7
4.1
5.6
7.9
4.1

Below-Range
Booker
n
23
13
8
56
82
6
37
42
37
227
7
53
41
122
56
65
134
52
41
10
137
63
93
32
114
9

%
7.6
6.4
4.5
9.0
13.4
3.1
8.7
7.4
12.7
18.5
3.3
14.9
20.8
12.5
15.7
11.5
12.8
9.3
6.3
5.5
6.4
7.1
18.2
8.9
25.7
7.4

Upward
Departures
n
2
0
2
2
0
2
2
0
1
1
1
2
0
1
1
3
2
0
2
0
3
2
1
0
2
0

%
0.7
0.0
1.1
0.3
0.0
1.0
0.5
0.0
0.3
0.1
0.5
0.6
0.0
0.1
0.3
0.5
0.2
0.0
0.3
0.0
0.1
0.2
0.2
0.0
0.5
0.0

Above-Range
Booker
n
6
3
10
9
10
8
11
6
2
6
1
10
4
8
3
8
8
3
4
5
9
6
7
3
5
0

%
2.0
1.5
5.6
1.4
1.6
4.2
2.6
1.1
0.7
0.5
0.5
2.8
2.0
0.8
0.8
1.4
0.8
0.5
0.6
2.8
0.4
0.7
1.4
0.8
1.1
0.0

Table 11
Sentences Relative to the Guideline Range for Each Judicial District
Ordered by Decreasing Rates of Within-Range Sentences
Post-Booker

Within-Range
District
Colorado
Michigan Eastern
Wisconsin Eastern
District of Columbia
Minnesota
New Jersey
Kentucky Eastern
Maryland
Ohio Southern
Vermont
Iowa Southern
Hawaii
Pennsylvania Middle
Connecticut
Pennsylvania Eastern
Idaho
Washington Western
New York Eastern
Arizona

TOTAL

612
725
367
476
543
925
476
647
596
194
333
453
582
380
915
213
713
1,167
3,746

n
324
382
193
250
282
478
241
321
291
94
160
217
273
176
376
82
272
431
1,069

%
52.9
52.7
52.6
52.5
51.9
51.7
50.6
49.6
48.8
48.5
48.0
47.9
46.9
46.3
41.1
38.5
38.1
36.9
28.5

Gov’t Sponsored
Below-Range
n
180
215
65
154
103
293
187
192
192
69
70
142
223
101
317
97
264
343
2,351

%
29.4
29.7
17.7
32.4
19.0
31.7
39.3
29.7
32.2
35.6
21.0
31.3
38.3
26.6
34.6
45.5
37.0
29.4
62.8

Downward
Departures
n
33
30
13
13
30
41
4
34
21
14
9
17
20
52
31
9
26
107
105

%
5.4
4.1
3.5
2.7
5.5
4.4
0.8
5.3
3.5
7.2
2.7
3.8
3.4
13.7
3.4
4.2
3.6
9.2
2.8

Below-Range
Booker

Upward
Departures

n
66
89
87
49
125
103
30
89
83
17
88
69
54
46
177
23
143
263
142

n
2
1
2
1
0
1
0
2
0
0
0
0
3
3
3
0
0
2
32

%
10.8
12.3
23.7
10.3
23.0
11.1
6.3
13.8
13.9
8.8
26.4
15.2
9.3
12.1
19.3
10.8
20.1
22.5
3.8

SOURCE: U.S. Sentencing Commission, Special Post-Booker Coding Project, BOOKER05 (data extracted February 22, 2006;
table prepared February 23, 2006). Summary numbers may not add up to their component parts due to rounding.

%
0.3
0.1
0.5
0.2
0.0
0.1
0.0
0.3
0.0
0.0
0.0
0.0
0.5
0.8
0.3
0.0
0.0
0.2
0.9

Above-Range
Booker
n
7
8
7
9
3
9
14
9
9
0
6
8
9
2
11
2
8
21
47

%
1.1
1.1
1.9
1.9
0.6
1.0
2.9
1.4
1.5
0.0
1.8
1.8
1.5
0.5
1.2
0.9
1.1
1.8
1.3

Table 12
Sentences Relative to the Guideline Range for Each Judicial District
Ordered by Decreasing Rates of Overall Below-Range Sentences
Post-Booker

Within Range
District
TOTAL
Massachusetts
New York Eastern
Iowa Southern
Minnesota
Wisconsin Eastern
Delaware
Connecticut
Washington Western
New York Southern
Rhode Island
Pennsylvania Eastern
Alaska
Oregon
Illinois Central
Maryland
Hawaii
Arkansas Eastern
Washington Eastern
Illinois Northern
Ohio Southern
California Northern
Ohio Northern
Pennsylvania Western

Downward
Gov’t Sponsored Departures/Below
Below-Range
Range Booker

Upward
Departures

Above-Range
Booker

TOTAL

65,368
444
1,167
333
543
367
161
380
713
1,226
127
915
197
511
357
647
453
252
355
1,045
596
614
978
428

40,645
235
431
160
282
193
104
176
272
742
86
376
115
276
207
321
217
169
209
600
291
378
568
297

62.2
52.9
36.9
48.0
51.9
52.6
64.6
46.3
38.1
60.5
67.7
41.1
58.4
54.0
58.0
49.6
47.9
67.1
58.9
57.4
48.8
61.6
58.1
69.4

15,500
53
343
70
103
65
14
101
264
187
7
317
34
113
78
192
142
33
71
251
192
121
236
54

23.7
11.9
29.4
21.0
19.0
17.7
8.7
26.6
37.0
15.3
5.5
34.6
17.3
22.1
21.8
29.7
31.3
13.1
20.0
24.0
32.2
19.7
24.1
12.6

8,189
149
370
97
155
100
43
98
169
290
29
208
44
114
68
123
86
45
63
184
104
105
165
71

12.5
33.6
31.7
29.1
28.5
27.2
26.7
25.8
23.7
23.7
22.8
22.7
22.3
22.3
19.0
19.0
19.0
17.9
17.7
17.6
17.4
17.1
16.9
16.6

175
2
2
0
0
2
0
3
0
1
1
3
0
1
1
2
0
3
2
2
0
0
1
0

0.3
0.5
0.2
0.0
0.0
0.5
0.0
0.8
0.0
0.1
0.8
0.3
0.0
0.2
0.3
0.3
0.0
1.2
0.6
0.2
0.0
0.0
0.1
0.0

859
5
21
6
3
7
0
2
8
6
4
11
4
7
3
9
8
2
10
8
9
10
8
6

1.3
1.1
1.8
1.8
0.6
1.9
0.0
0.5
1.1
0.5
3.1
1.2
2.0
1.4
0.8
1.4
1.8
0.8
2.8
0.8
1.5
1.6
0.8
1.4

Table 12
Sentences Relative to the Guideline Range for Each Judicial District
Ordered by Decreasing Rates of Overall Below-Range Sentences
Post-Booker

Within Range
District
Tennessee Middle
Michigan Eastern
Colorado
Vermont
Michigan Western
Georgia Northern
New Jersey
Utah
Virginia Eastern
Idaho
New York Northern
Louisiana Western
Oklahoma Western
South Dakota
Tennessee Western
Nevada
Nebraska
Missouri Western
Missouri Eastern
District of Columbia
California Central
Pennsylvania Middle
Kansas
Iowa Northern
California Southern
Guam

TOTAL
292
725
612
194
402
658
925
914
1,367
213
360
386
220
422
563
415
810
778
962
476
876
582
622
358
2,130
121

n
178
382
324
94
266
437
478
664
1,030
82
191
276
159
311
324
300
525
514
643
250
707
273
411
246
1,167
64

%
61.0
52.7
52.9
48.5
66.2
66.4
51.7
72.6
75.3
38.5
53.1
71.5
72.3
73.7
57.5
72.3
64.8
66.1
66.8
52.5
80.7
46.9
66.1
68.7
54.8
52.9

Downward
Gov’t Sponsored Departures/Below
Below-Range
Range Booker
n
63
215
180
69
64
107
293
101
94
97
114
35
19
27
150
49
170
147
182
154
54
223
123
50
703
43

%
21.6
29.7
29.4
35.6
15.9
16.3
31.7
11.1
6.9
45.5
31.7
9.1
8.6
6.4
26.6
11.8
21.0
18.9
18.9
32.4
6.2
38.3
19.8
14.0
33.0
35.5

n
48
119
99
31
63
103
144
142
207
32
52
55
31
59
78
57
108
102
126
62
112
74
77
43
248
14

%
16.4
16.4
16.2
16.0
15.7
15.7
15.6
15.5
15.1
15.0
14.4
14.2
14.1
14.0
13.9
13.7
13.3
13.1
13.1
13.0
12.8
12.7
12.4
12.0
11.6
11.6

Upward
Departures
n
1
1
2
0
2
4
1
0
5
0
0
1
0
9
3
0
0
0
1
1
0
3
2
3
3
0

%
0.3
0.1
0.3
0.0
0.5
0.6
0.1
0.0
0.4
0.0
0.0
0.3
0.0
2.1
0.5
0.0
0.0
0.0
0.1
0.2
0.0
0.5
0.3
0.8
0.1
0.0

Above-Range
Booker
n
2
8
7
0
7
7
9
7
31
2
3
19
11
16
8
9
7
15
10
9
3
9
9
16
9
0

%
0.7
1.1
1.1
0.0
1.7
1.1
1.0
0.8
2.3
0.9
0.8
4.9
5.0
3.8
1.4
2.2
0.9
1.9
1.0
1.9
0.3
1.5
1.4
4.5
0.4
0.0

Table 12
Sentences Relative to the Guideline Range for Each Judicial District
Ordered by Decreasing Rates of Overall Below-Range Sentences
Post-Booker

Within Range
District
Puerto Rico
Florida Southern
Virginia Western
South Carolina
North Carolina Middle
West Virginia Southern
Indiana Southern
New York Western
Alabama Northern
North Carolina Western
Florida Middle
California Eastern
Georgia Southern
Texas Southern
New Hampshire
Illinois Southern
Tennessee Eastern
Wyoming
Wisconsin Western
Virgin Islands
West Virginia Northern
Texas Northern
North Carolina Eastern
Arkansas Western
Alabama Southern
Kentucky Western

TOTAL
499
1,951
621
962
442
301
301
562
423
567
1,568
893
290
6,430
181
288
602
204
185
116
312
915
652
196
332
351

n
380
1,512
385
682
334
229
194
315
260
347
1,028
482
202
4,171
100
241
389
130
159
101
253
684
363
139
226
249

%
76.2
77.5
62.0
70.9
75.6
76.1
64.5
56.0
61.5
61.2
65.6
54.0
69.7
64.9
55.2
83.7
64.6
63.7
85.9
87.1
81.1
74.8
55.7
70.9
68.1
70.9

Downward
Gov’t Sponsored Departures/Below
Below-Range
Range Booker
n
43
198
157
166
56
35
69
188
108
158
365
316
38
1,582
59
15
149
53
8
5
30
108
229
40
74
74

%
8.6
10.1
25.3
17.3
12.7
11.6
22.9
33.5
25.5
27.9
23.3
35.4
13.1
24.6
32.6
5.2
24.8
26.0
4.3
4.3
9.6
11.8
35.1
20.4
22.3
21.1

n
57
221
68
105
48
30
30
56
42
56
153
87
28
617
17
27
55
18
16
10
26
76
54
16
27
28

%
11.4
11.3
11.0
10.9
10.9
10.0
10.0
10.0
9.9
9.9
9.8
9.7
9.7
9.6
9.4
9.4
9.1
8.8
8.6
8.6
8.3
8.3
8.3
8.2
8.1
8.0

Upward
Departures
n
2
5
2
4
0
2
2
0
2
0
2
2
4
16
0
2
0
0
0
0
0
2
2
0
0
0

%
0.4
0.3
0.3
0.4
0.0
0.7
0.7
0.0
0.5
0.0
0.1
0.2
1.4
0.2
0.0
0.7
0.0
0.0
0.0
0.0
0.0
0.2
0.3
0.0
0.0
0.0

Above-Range
Booker
n
17
15
9
5
4
5
6
3
11
6
20
6
18
44
5
3
9
3
2
0
3
45
4
1
5
0

%
3.4
0.8
1.4
0.5
0.9
1.7
2.0
0.5
2.6
1.1
1.3
0.7
6.2
0.7
2.8
1.0
1.5
1.5
1.1
0.0
1.0
4.9
0.6
0.5
1.5
0.0

Table 12
Sentences Relative to the Guideline Range for Each Judicial District
Ordered by Decreasing Rates of Overall Below-Range Sentences
Post-Booker

Within Range
District
Texas Western
Louisiana Eastern
Montana
Kentucky Eastern
North Dakota
Mississippi Southern
Texas Eastern
Arizona
Florida Northern
Indiana Northern
Georgia Middle
Maine
New Mexico
Louisiana Middle
Alabama Middle
Mississippi Northern
Oklahoma Northern
Oklahoma Eastern
Northern Mariana Islands

TOTAL
5,154
335
393
476
225
333
739
3,746
311
361
357
233
2,461
178
214
192
204
96
24

n
4,078
254
300
241
155
270
593
1,069
223
251
252
168
1,607
111
129
118
168
84
18

%
79.1
75.8
76.3
50.6
68.9
81.1
80.2
28.5
71.7
69.5
70.6
72.1
65.3
62.4
60.3
61.5
82.4
87.5
75.0

Downward
Gov’t Sponsored Departures/Below
Below-Range
Range Booker
n
616
46
47
187
52
32
84
2,351
58
86
75
51
711
46
74
56
23
10
5

%
12.0
13.7
12.0
39.3
23.1
9.6
11.4
62.8
18.6
23.8
21.0
21.9
28.9
25.8
34.6
29.2
11.3
10.4
20.8

n
386
25
29
34
16
23
50
247
20
22
21
13
133
9
9
8
8
2
0

%
7.5
7.5
7.4
7.1
7.1
6.9
6.8
6.6
6.4
6.1
5.9
5.6
5.4
5.1
4.2
4.2
3.9
2.1
0.0

Upward
Departures
n
6
3
4
0
1
0
1
32
3
0
1
0
1
2
1
2
1
0
0

%
0.1
0.9
1.0
0.0
0.4
0.0
0.1
0.9
1.0
0.0
0.3
0.0
0.0
1.1
0.5
1.0
0.5
0.0
0.0

100

Above-Range
Booker
n
68
7
13
14
1
8
11
47
7
2
8
1
9
10
1
8
4
0
1

%
1.3
2.1
3.3
2.9
0.4
2.4
1.5
1.3
2.3
0.6
2.2
0.4
0.4
5.6
0.5
4.2
2.0
0.0
4.2

Table 13
Sentences Relative to the Guideline Range for Each Judicial District
Ordered by Decreasing Rates of Guideline Conformance
Post-Booker
Within-Range/
Government
Sponsored
District
TOTAL
Oklahoma Eastern
Northern Mariana Islands
Alabama Middle
New Mexico
Maine
Oklahoma Northern
Indiana Northern
Kentucky Western
North Dakota
Texas Eastern
Georgia Middle
Virgin Islands
Arkansas Western
Arizona
Texas Western
North Carolina Eastern
West Virginia Northern
Mississippi Southern
Mississippi Northern
Alabama Southern
Florida Northern
Wisconsin Western
Kentucky Eastern

Downward
Departures

Below-Range
Booker

Upward
Departures

Above-Range
Booker

TOTAL

65,368
96
24
214
2,461
233
204
361
351
225
739
357
116
196
3,746
5,154
652
312
333
192
332
311
185
476

56,145
94
23
203
2,318
219
191
337
323
207
677
327
106
179
3,420
4,694
592
283
302
174
300
281
167
428

85.9
97.9
95.8
94.9
94.2
94.0
93.6
93.4
92.0
92.0
91.6
91.6
91.4
91.3
91.3
91.1
90.8
90.7
90.7
90.6
90.4
90.4
90.3
89.9

2,101
1
0
2
50
5
0
9
8
5
16
0
1
4
105
87
13
6
7
2
7
4
3
4

3.2
1.0
0.0
0.9
2.0
2.1
0.0
2.5
2.3
2.2
2.2
0.0
0.9
2.0
2.8
1.7
2.0
1.9
2.1
1.0
2.1
1.3
1.6
0.8

6,088
1
0
7
83
8
8
13
20
11
34
21
9
12
142
299
41
20
16
6
20
16
13
30

9.3
1.0
0.0
3.3
3.4
3.4
3.9
3.6
5.7
4.9
4.6
5.9
7.8
6.1
3.8
5.8
6.3
6.4
4.8
3.1
6.0
5.1
7.0
6.3

175
0
0
1
1
0
1
0
0
1
1
1
0
0
32
6
2
0
0
2
0
3
0
0

0.3
0.0
0.0
0.5
0.0
0.0
0.5
0.0
0.0
0.4
0.1
0.3
0.0
0.0
0.9
0.1
0.3
0.0
0.0
1.0
0.0
1.0
0.0
0.0

859
0
1
1
9
1
4
2
0
1
11
8
0
1
47
68
4
3
8
8
5
7
2
14

1.3
0.0
4.2
0.5
0.4
0.4
2.0
0.6
0.0
0.4
1.5
2.2
0.0
0.5
1.3
1.3
0.6
1.0
2.4
4.2
1.5
2.3
1.1
2.9

101

Table 13
Sentences Relative to the Guideline Range for Each Judicial District
Ordered by Decreasing Rates of Guideline Conformance
Post-Booker
Within-Range/
Government
Sponsored
District
Wyoming
Louisiana Eastern
New York Western
Texas Southern
Tennessee Eastern
California Eastern
North Carolina Western
Illinois Southern
Florida Middle
Guam
Montana
North Carolina Middle
Louisiana Middle
South Carolina
New Hampshire
California Southern
West Virginia Southern
Florida Southern
Indiana Southern
Virginia Western
Alabama Northern
California Central
Texas Northern
Kansas
Nebraska
Missouri Eastern

TOTAL
204
335
562
6,430
602
893
567
288
1,568
121
393
442
178
962
181
2,130
301
1,951
301
621
423
876
915
622
810
962

n
183
300
503
5,753
538
798
505
256
1,393
107
347
390
157
848
159
1,870
264
1,710
263
542
368
761
792
534
695
825

%
89.7
89.6
89.5
89.5
89.4
89.4
89.1
88.9
88.8
88.4
88.3
88.2
88.2
88.1
87.8
87.8
87.7
87.6
87.4
87.3
87.0
86.9
86.6
85.9
85.8
85.8

Downward
Departures
n
5
7
4
218
5
24
14
9
49
5
10
8
1
25
7
111
9
45
7
12
5
29
13
14
44
40

102

%
2.5
2.1
0.7
3.4
0.8
2.7
2.5
3.1
3.1
4.1
2.5
1.8
0.6
2.6
3.9
5.2
3.0
2.3
2.3
1.9
1.2
3.3
1.4
2.3
5.4
4.2

Below-Range
Booker
n
13
18
52
399
50
63
42
18
104
9
19
40
8
80
10
137
21
176
23
56
37
83
63
63
64
86

%
6.4
5.4
9.3
6.2
8.3
7.1
7.4
6.3
6.6
7.4
4.8
9.0
4.5
8.3
5.5
6.4
7.0
9.0
7.6
9.0
8.7
9.5
6.9
10.1
7.9
8.9

Upward
Departures
n
0
3
0
16
0
2
0
2
2
0
4
0
2
4
0
3
2
5
2
2
2
0
2
2
0
1

%
0.0
0.9
0.0
0.2
0.0
0.2
0.0
0.7
0.1
0.0
1.0
0.0
1.1
0.4
0.0
0.1
0.7
0.3
0.7
0.3
0.5
0.0
0.2
0.3
0.0
0.1

Above-Range
Booker
n
3
7
3
44
9
6
6
3
20
0
13
4
10
5
5
9
5
15
6
9
11
3
45
9
7
10

%
1.5
2.1
0.5
0.7
1.5
0.7
1.1
1.0
1.3
0.0
3.3
0.9
5.6
0.5
2.8
0.4
1.7
0.8
2.0
1.4
2.6
0.3
4.9
1.4
0.9
1.0

Table 13
Sentences Relative to the Guideline Range for Each Judicial District
Ordered by Decreasing Rates of Guideline Conformance
Post-Booker
Within-Range/
Government
Sponsored
District
Pennsylvania Middle
Missouri Western
District of Columbia
Puerto Rico
New York Northern
Tennessee Western
Nevada
Idaho
Vermont
Utah
New Jersey
Georgia Southern
Iowa Northern
Georgia Northern
Tennessee Middle
Colorado
Michigan Eastern
Virginia Eastern
Ohio Northern
Michigan Western
Pennsylvania Western
Illinois Northern
California Northern
Ohio Southern
Oklahoma Western
Louisiana Western

TOTAL
582
778
476
499
360
563
415
213
194
914
925
290
358
658
292
612
725
1,367
978
402
428
1,045
614
596
220
386

n
496
661
404
423
305
474
349
179
163
765
771
240
296
544
241
504
597
1,124
804
330
351
851
499
483
178
311

%
85.2
85.0
84.9
84.8
84.7
84.2
84.1
84.0
84.0
83.7
83.4
82.8
82.7
82.7
82.5
82.4
82.3
82.2
82.2
82.1
82.0
81.4
81.3
81.0
80.9
80.6

Downward
Departures
n
20
8
13
9
20
13
9
9
14
43
41
14
6
35
11
33
30
25
43
12
23
50
23
21
6
9

103

%
3.4
1.0
2.7
1.8
5.6
2.3
2.2
4.2
7.2
4.7
4.4
4.8
1.7
5.3
3.8
5.4
4.1
1.8
4.4
3.0
5.4
4.8
3.7
3.5
2.7
2.3

Below-Range
Booker

Upward
Departures

n
54
94
49
48
32
65
48
23
17
99
103
14
37
68
37
66
89
182
122
51
48
134
82
83
25
46

n
3
0
1
2
0
3
0
0
0
0
1
4
3
4
1
2
1
5
1
2
0
2
0
0
0
1

%
9.3
12.1
10.3
9.6
8.9
11.5
11.6
10.8
8.8
10.8
11.1
4.8
10.3
10.3
12.7
10.8
12.3
13.3
12.5
12.7
11.2
12.8
13.4
13.9
11.4
11.9

%
0.5
0.0
0.2
0.4
0.0
0.5
0.0
0.0
0.0
0.0
0.1
1.4
0.8
0.6
0.3
0.3
0.1
0.4
0.1
0.5
0.0
0.2
0.0
0.0
0.0
0.3

Above-Range
Booker
n
9
15
9
17
3
8
9
2
0
7
9
18
16
7
2
7
8
31
8
7
6
8
10
9
11
19

%
1.5
1.9
1.9
3.4
0.8
1.4
2.2
0.9
0.0
0.8
1.0
6.2
4.5
1.1
0.7
1.1
1.1
2.3
0.8
1.7
1.4
0.8
1.6
1.5
5.0
4.9

Table 13
Sentences Relative to the Guideline Range for Each Judicial District
Ordered by Decreasing Rates of Guideline Conformance
Post-Booker
Within-Range/
Government
Sponsored
District
Arkansas Eastern
South Dakota
Illinois Central
Maryland
Hawaii
Washington Eastern
Oregon
New York Southern
Pennsylvania Eastern
Alaska
Washington Western
Delaware
Rhode Island
Connecticut
Minnesota
Wisconsin Eastern
Iowa Southern
New York Eastern
Massachusetts

TOTAL
252
422
357
647
453
355
511
1,226
915
197
713
161
127
380
543
367
333
1,167
444

n
202
338
285
513
359
280
389
929
693
149
536
118
93
277
385
258
230
774
288

%
80.2
80.1
79.8
79.3
79.2
78.9
76.1
75.8
75.7
75.6
75.2
73.3
73.2
72.9
70.9
70.3
69.1
66.3
64.9

Downward
Departures
n
9
14
12
34
17
10
21
63
31
3
26
13
3
52
30
13
9
107
35

%
3.6
3.3
3.4
5.3
3.8
2.8
4.1
5.1
3.4
1.5
3.6
8.1
2.4
13.7
5.5
3.5
2.7
9.2
7.9

Below-Range
Booker

Upward
Departures

n
36
45
56
89
69
53
93
227
177
41
143
30
26
46
125
87
88
263
114

n
3
9
1
2
0
2
1
1
3
0
0
0
1
3
0
2
0
2
2

%
14.3
10.7
15.7
13.8
15.2
14.9
18.2
18.5
19.3
20.8
20.1
18.6
20.5
12.1
23.0
23.7
26.4
22.5
25.7

%
1.2
2.1
0.3
0.3
0.0
0.6
0.2
0.1
0.3
0.0
0.0
0.0
0.8
0.8
0.0
0.5
0.0
0.2
0.5

SOURCE: U.S. Sentencing Commission, Special Post-Booker Coding Project, BOOKER05 (data extracted February 22, 2006;
Table prepared February 23, 2006). Summary numbers may not add up to their component parts due to rounding.

104

Above-Range
Booker
n
2
16
3
9
8
10
7
6
11
4
8
0
4
2
3
7
6
21
5

%
0.8
3.8
0.8
1.4
1.8
2.8
1.4
0.5
1.2
2.0
1.1
0.0
3.1
0.5
0.6
1.9
1.8
1.8
1.1

DEMOGRAPHIC DIFFERENCES IN FEDERAL SENTENCING PRACTICES
1.

Use of Multivariate Analysis

Much of Chapter 4 assessed Booker’s impact on federal sentencing by comparing
the aggregate rate of imposition of within-range sentences after Booker with such rates
before Booker. This general approach is natural and sound—one need not attempt to
classify each individual case to assess the impact of a policy change among a whole
population of cases. The caveat that accompanies this type of analysis, however, is that
one must be cautious in attributing any changes in the aggregate rates solely to Booker
rather than to other changes that may have occurred at the same time.
Social scientists have developed a variety of statistical methods to measure the
effects of policy changes at the aggregate level and to evaluate the potential influence of
other factors.316 The basic approach is to compare a rate or average before and after a
policy change after accounting for the effects of other changes that occurred at the same
time. Multivariate analysis is one such method. The purpose of conducting the
multivariate analysis is to determine whether any sentencing changes were statistically
significant after controlling for relevant factors, or variables, for which data are available.
The methodologies associated with the multivariate analyses undertaken for this report
are described in Appendix B.
Associations among some variables, especially demographic ones, and the
sentencing outcome should be viewed with caution. Multivariate analysis can not
measure all factors that may affect the sentence of an offender or the time an offender
may spend in prison. Unmeasured factors in the analyses conducted may include, for
example, violent criminal history317 or the bail decision.318 If these “unmeasured factors”
were able to be included in the models, significance of demographic factors may change.
To the extent that a demographic factor such as race or gender is associated with any
unmeasured factors, the demographic factor may serve as a proxy for the unmeasured

316

These methods are sometimes called quasi-experimental or “Campbell and Stanley” designs, after a
seminal monograph by Donald T. Campbell and Julian C. Stanley. See “Experimental and QuasiExperimental Designs for Research ”(1963).
317
The presence of violent criminal history may lead the court to sentence higher in the prescribed range.
The Commission’s datafile does not have information on the type of criminal history behavior. In 2002,
the Commission created a datafile which took a 25 percent random sample of cases sentenced in Fiscal
Year 2000. This datafile looked more closely at offender’s criminal conduct, including detailed information
on the type of criminal history the offender had. Using this data (the Intensive Study Sample 2000, or
ISS2000), it was found that 24.4 percent of white offenders had violent criminal history events, as did 43.7
percent of black offenders, 18.9 percent of Hispanic offenders, and 23.7 percent of “other” offenders.
318
Offenders who are not given the opportunity to post bail, or may not be able to afford bail, are detained
for the entire period before their sentencing. Thus, if an offender’s final sentencing range is 6-12 months,
and the offender serves 10 months in prison before the final adjudication of the sentence, the court could
sentence the offender to “time served,” and the sentence would be 10 months. An offender who was out on
bail during this process may get a 6-month sentence for the same behavior, which the court may have
wanted to give to the first offender if the bail circumstances were similar.

105

factors in the multivariate models.319 If it were possible to include these unmeasured
factors in the models, the statistical significance and impact of these demographic
variables would likely change.
2.

Results

Multivariate analysis was conducted to assess whether a number of demographic
factors were associated with lesser or greater sentence lengths after Booker. Figure 12
shows the results of that analysis.
The multivariate analysis determined that demographic factors are associated with
sentence length and their contribution to sentence lengths before and after Booker are
identical. For example, studies conducted by the Commission before Booker concluded
that the sentencing guidelines have not successfully eliminated an association between
gender and sentencing outcome. In other words, before Booker, male offenders
consistently were associated with higher sentences than female offenders. Sentences for
male offenders were 17.0% higher than for female offenders post-PROTECT Act and
16.2% higher post-Booker. Multivariate analysis conducted on post-Booker data
revealed, therefore, that male offenders continue to be associated with higher sentences
than female offenders.
Likewise, Figure 12 shows that age and citizenship show similar degrees of
association with sentence length before and after Booker. Offenders over 25 years of age
were associated with sentences 10.3% lower than offenders under 25 years of age postPROTECT Act, and with sentences 9.0% lower post-Booker. Non-U.S. citizens were
associated with sentences 33.9% higher than U.S. citizens post-PROTECT Act and with
sentences 35.7% higher post Booker.
Education also showed a statistically significant association with sentence length
both pre-Booker and post-Booker. Post-PROTECT Act, offenders who went to college
had sentences on average 8.4 percent less those who did not go to college. Post-Booker,
offenders who went to college had sentences on average 4.6 percent less than those who
did not go to college.
As Figure 12 illustrates, there is a statistical association between the race of the
offender and sentence length in the post-Booker population that was not present in the
post-PROTECT Act population. Post-Booker, black offenders are associated with
sentences that are 4.9 percent higher than white offenders, and “other” race offenders
(mostly Native American offenders) are associated with sentences that are 10.8 percent
higher than white offenders. Neither of these relationships was statistically significant in
the post-PROTECT Act period. No difference was found between white and Hispanic
offenders during either time period.

319

See Myrna S. Raeder, Gender Related Issues in a Post-Booker Federal Guidelines World, 37
MCGEORGE L. REV. No. 3 (Forthcoming 2006).

106

Figure 12
Differences in Sentence Length for Demographic Factors
Results of Multivariate Analysis
Post-PROTECT Act - Post-Booker
40

Percentage Difference in Sentence Length

Post-PROTECT Act

33.9

Post-Booker

35.7

16.2

10.8

10
4.9

-10

Black
vs.
White

“Other”
Race
vs.
White

Non-U.S.
Citizen
vs.
U.S. Citizen

Male
vs.
Female

-4.6
-8.4

Any College
vs.
No College

-20

-10.3

-9

Over 25 Years of Age
vs.
25 Years of Age and
Younger

-30
No data point signifies that there was no statistical difference between the two groups. The data in this figure are from the Post-PROTECT Act (05/01/03 – 06/24/04) and
Post-Booker (01/12/05 – 01/11/06) eras. Cases sentenced on or before January 11, 2006 were included in this figure. As of the data extraction date for the post-Booker
datafile, the Commission had received, coded and edited 1,300 cases sentenced between January 1, 2006 and January, 11, 2006.
SOURCE: U.S. Sentencing Commission, 2006 Booker Report Datafiles.

107

The Commission’s Fifteen Year Review determined that year-to-year fluctuations
in racial or ethnic variables are not uncommon. These fluctuations should not
automatically be thought of as signs of disparity or discrimination.320 Other social
scientists have opined that “[t]hese relatively small effects may not be meaningful even
though they are statistically significant...Any findings that are sensitive to minor changes
in model specifications such as these must be interpreted with caution.” 321 This may be
further demonstrated by examining the significant factors in the “drug” and “non-drug”
populations (see Table B-1 in Appendix B for these results). Post-Booker, there was no
statistical difference between black and white offenders’ sentences in drug cases, but
there was a difference post-PROTECT Act. Conversely, in non-drug cases, black and
white offenders’ sentences were statistically different post-Booker but not postPROTECT Act.
Figure 13 gives a year-by-year depiction of differences in sentencing lengths by
race and gender from Fiscal Year 1999 through January 2006. Figure 13 graphically
depicts the year-to- year fluctuations of the significance of race in the sentence decision,
while also showing the stability of the gender association.

320

“Offense-to-offense and year to year fluctuations in racial and ethnic effects are difficult to reconcile
with theories of enduring stereotypes, powerlessness, or overt discrimination...” See FIFTEEN YEAR
REVIEW.
321
McDonald, Douglas C. and Kenneth E. Carlson. 1993. Sentencing in the Federal Courts: Does Race
Matter? U.S. Department of Justice, Bureau of Justice Statistics, Washington, D.C., p. 106.

108

Figure 13
Differences in Sentence Length by Race and Gender
Results of Multivariate Analysis
FY1999 – Post-Booker
30.0

Percentage Difference in Sentence Length
27.6

25.0
18.6

20.0
15.0

16.8

15.6

14.2

17.0

16.2

13.2
10.2

10.0

10.7

10.8

8.2
4.9

5.0
0.0
FY1999

FY2000

FY2001

-5.0
-10.0

FY2002

-7.6

PrePROTECT
Act

PostPROTECT
Act

Booker

-13.2

-15.0
Hispanic vs. White

Black vs. White

O the r vs. White

Male vs. Fe male

-20.0
No data point signifies that there was no statistical difference between the two groups. Cases sentenced on or before January 11, 2006 were included in this figure. As of the
data extraction date for the post-Booker datafile, the Commission had received, coded and edited 1,300 cases sentenced between January 1, 2006 and January, 11, 2006.
SOURCE: U.S. Sentencing Commission, 1999-2003 Datafiles, USSCFY1999-USSCFY2003, and 2006 Booker Report Datafiles.

109

Chapter 6
ANALYSIS OF COMMISSION DATA: IMPACT OF BOOKER ON SPECIFIC
OFFENSE- AND OFFENDER- ISSUES
A.

INTRODUCTION

Quite apart from the analyses in Chapter 4 of overall national sentencing trends,
and the analyses in Chapter 5 of regional and demographic differences in sentencing
practices, there are analyses that may prove useful to gauge whether Booker has impacted
federal sentencing practices in several distinct areas. This chapter, therefore, focuses on
assessing the impact of Booker with respect to more specific sentencing areas, such as
particular types of offenses (i.e., sex offenses and crack cocaine offenses), and particular
categories of offenders (i.e., first offenders and career offenders).
The analysis in this section focuses on specific sentencing issues and offender
groups that are of perennial interest to the federal criminal justice community, or for
which the issue of a Booker effect naturally arises. Specifically, this part of the analysis
addresses changes in sentencing practices regarding the use of cooperation without a
government motion as a reason for the imposition of a non-government-sponsored,
below-range sentence, sex offenders, crack cocaine offenders, first offenders, career
offenders, and the rate of imposition of below-range sentences based on early disposition
programs or other “fast track” mechanisms.
B.

FINDINGS

Analyses of the impact of Booker with respect to specific sentencing issues
yielded the following findings:
1.

Cooperation Reductions without a Government Motion
•

Non-government-sponsored, below-range sentences based on the
defendant’s cooperation with authorities, i.e., below-range
sentences granted for substantial assistance without a government
motion for such, occur post-Booker. Post-Booker, there were 258
cases in which cooperation with authorities was given as a reason
for the imposition of a non-government-sponsored, below-range
sentence. In 28 of these cases, substantial assistance or cooperation
with authorities was the only reason cited. In 230 of these cases, it
was one of a combination of reasons for the below-range sentence.

Sex Offenses
•

The average length of sentences for cases sentenced under each of
the criminal sexual abuse guidelines has remained fairly constant.

110

•

The rate of imposition of below-range sentences declined for
criminal sexual abuse cases post-PROTECT Act but increased
slightly post-Booker. The rate of imposition of below-range
sentences in criminal sexual abuse cases is below the rate for all
cases post-Booker.

•

The rate of imposition of below-range sentences for abusive sexual
contact cases decreased following the PROTECT Act but increased
post-Booker.

•

The rate of imposition of below-range sentences for cases
involving the sexual abuse of a minor decreased post-PROTECT
Act but increased post-Booker. The increased rate post-Booker
was less than what the rate had been pre-PROTECT Act.

•

The rate of imposition of above-range sentences increased postBooker for criminal sexual abuse offenses and abusive sexual
contact offenses but declined for offenses involving the sexual
abuse of a minor.

•

The majority of below-range sentences in cases involving criminal
sexual abuse are imposed for offenders with little or no criminal
history.

•

Consistent with the trend seen in the national post-Booker data for
cases overall, the average length of sentences has increased for
cases sentenced under the sexual exploitation, i.e., child
pornography, guidelines.

•

The rate of imposition of below-range sentences for sexual
exploitation offenses declined post-PROTECT Act but increased
post-Booker.

•

The rate of imposition of above-range sentences for cases
involving production of child pornography decreased postPROTECT Act but increased post-Booker. Above-range sentences
have steadily increased for cases involving possession of child
pornography.

Crack Cocaine Offenses
•

Courts do not often appear to be using Booker or the factors under
18 U.S.C. § 3353(a) to impose below-range sentences in crack
cocaine cases.
Courts do not often explicitly cite crack
cocaine/powder cocaine sentencing disparity as a reason to impose
below-range sentences in crack cocaine cases.

111

First Offenders
•

The rate of imposition of below-range sentences for first offenders
increased after Booker.

•

The rate of imposition of above-range sentences for first offenders
increased after Booker.

•

The proportion of first offenders receiving prison sentences has
remained essentially the same, as has the average length of
sentences imposed.

Career Offenders
•

The rate of imposition of below-range sentences for career
offenders increased after Booker. The majority of the cases in
which below-range sentences are being imposed for career
offenders are drug trafficking cases.

•

The average length of sentences imposed for career offenders has
decreased after Booker. This continues the pattern that existed
before Booker.

Early Disposition Programs
•

Sentencing courts in districts without early disposition programs
(EDP) report relatively low rates of imposition of below-range
sentences. In its 2003 Departure Report, the Commission
expressed concern that these districts increasingly might grant
below-range sentences to reach outcomes for similarly-situated
defendants similar to the outcomes that would be reached in EDP
districts. The data do not reflect that these concerns generally have
been realized. In districts without EDP, the data do not reflect
widespread use of Booker to grant below-range sentences to reflect
sentences available in EDP districts.

COOPERATION REDUCTIONS WITHOUT A GOVERNMENT MOTION

The Department of Justice has expressed concern that courts would cite Booker to
impose non-government-sponsored, below-range sentences based on the defendant’s
cooperation despite the absence of a government motion for a substantial assistance

112

departure under USSG §5K1.1.322 Use of Booker in this fashion might reduce
defendants’ incentive for cooperating with the government. To address this concern, the
Commission examined cases in the relevant time periods discussed throughout this
chapter. The Commission specifically reviewed the reasons given for below-range
sentences to determine the extent to which such sentences are imposed based on the
defendant’s cooperation with authorities in the absence of a government motion for a
substantial assistance departure under USSG §5K1.
The findings in this section should be considered with one additional caveat in
mind. In many cases, the statement of reasons may indicate that the court sentenced
below the range for cooperation, but the form contains no indication whether the
government filed a motion for substantial assistance. The Commission classifies those
cases as “cooperation motion unknown.” Pursuant to the revised coding methodology
adopted after Booker, these cases fall into one of the non-government-sponsored, belowrange categories.
Consistent with the analysis performed throughout this report, the Commission
examined the 3 relevant time periods to identify non-government-sponsored, below-range
sentences citing either “cooperation without a motion,” “cooperation motion unknown,”
or “§5K1.1 substantial assistance without government motion” in the reasons cited by the
court. In the pre-PROTECT Act period, courts cited these reasons in 17 cases (0.5%) out
of 3,258 receiving a non-government-sponsored downward departure. In the postPROTECT Act period, courts cited these reasons in 29 cases (0.7%) out of 4,137
receiving a non-government-sponsored downward departure. Finally, in the post-Booker
period, courts cited these reasons in 258 cases (3.2%) out of 8,189 receiving a nongovernment-sponsored, below-range sentence. Therefore, the date indicate that the use of
these reasons has increased post-Booker.
The Commission examined each of these 258 post-Booker cases in an attempt to
ascertain whether the cases evidenced a discernable pattern, such as arising from
particular districts or in particular types of cases. This examination revealed that 61 of
the 94 federal judicial districts reported these reasons for the imposition of nongovernment-sponsored, below-range sentences post-Booker. Of these 61 districts, 14
reported only a single case citing one of these reasons. The greatest number reported by
a single district (the Southern District of Texas) was 32 cases. That district accounted for
12.4 percent of all below-range sentences citing these reasons. Four other districts
reported double-digit numbers of cases receiving a non-government-sponsored, belowrange sentence for these reasons. In all, these five districts (the Eastern District of New
York, the Eastern District of Pennsylvania, the District of Minnesota, the Southern
District of Florida and the Southern District of Texas) account for 82 of the cases (or
31.8% of the total) (See Appendix E-7).

322

See Implications of the Booker/Fanfan Decisions for the Federal Sentencing Guidelines: Hearing before
the Subcomm. on Crime, Terrorism, and Homeland Security of the House Judiciary Comm. 109th Cong.
(2005) (Written Statement of Christopher Wray, Assistant Attorney General, U.S. Department of Justice).

113

In-depth examination of these cases also revealed that there is no discernable
pattern among the offenses that receive a reduction for this reason. Eighteen different
offense types (out of a total of 32 possible offense type classifications) included at least
one case with a non-government-sponsored, below-range sentence citing these reasons.
Of these, 4 offense types (drug trafficking, fraud, immigration, and firearms offenses)
accounted for 85.7 percent of the cases; drug trafficking alone accounted for more than
half (56.6%). Not surprisingly, these are 4 of the most frequently prosecuted types of
cases. Interestingly, these 4 offense types also had the highest rates of imposition of
government-sponsored, substantial assistance departures (USSG §5K1.1) post-Booker,
accounting for 85.7 percent of all substantial assistance departures (See Appendix E-8)
Only 28 of the 258 cases (10.8%) cite one of these reasons as the only reason for
the non-government-sponsored, below-range sentence. Of the 230 cases citing additional
reasons for the below-range sentence, the other reasons cited by the court are similar to
the reasons cited generally for downward departures and below-range sentences citing
Booker (See Appendix E-9). Of the 258 cases citing one of these reasons as grounds for
the below-range sentence, 114 cases fall into the category of “cooperation-motion
unknown.” Conceivably, some of these cases might involve government-sponsored
reductions.
Absent better documentation, the Commission cannot make that
determination.
The Commission compared the extent of the reductions below the applicable
guideline range granted in this category of cases to the extent of reductions granted in
cases in which the government filed a substantial assistance motion. The analysis
revealed that the extent to which the sentence is below-range differs when the substantial
assistance reduction is pursuant to a government motion, compared with cases in which
there is no motion or the motion is unknown. In cases involving a government motion,
the median percent decrease below the applicable guideline range is 50.0 percent, or a
median of 28 months below the guideline sentence. By contrast, in cases in which the
filing of a government motion is not reflected in the documents provided to the
Commission, the median percent decrease is 35.1 percent or a median of 13 months
below the guideline minimum.
The Commission also examined the proportion of cases with these departure
reasons receiving imprisonment and the average length of the prison sentence. These
results are reported in Table 14. Comparisons across the 3 time periods must be viewed
cautiously because of the very small number of cases identified during the pre-PROTECT
Act and post-PROTECT Act periods. Based on the limited data available, the proportion
of offenders receiving imprisonment has declined post-Booker while the length of
imprisonment for those receiving prison sentences has increased.

114

Table 14
Cases with Sentence Reduction for Cooperation Without A Motion
Sentence Type and Length

Percent
Prison

Average
Sentence

Median
Sentence

Pre-PROTECT Act
(10/1/02-4/30/03)

94.1

Post-PROTECT Act
(5/1/03-6/24/04)

93.1

257

85.2

Post-Booker
(1/12/05-1/11/06)

SOURCE: U.S. Sentencing Commission 2006 Booker Report Datafiles.

SEX OFFENSES

As indicated earlier in this chapter, a major impetus for enactment of the
PROTECT Act was congressional concern that the rate of downward departures was too
great to control and deter crime, particularly sex offenses against children. Beyond the
desire to curb downward departures, there also was a strong congressional desire
generally to stiffen penalties for sex offenses against children. A number of legislative
changes and guideline amendments have increased punishment for these offenses in
recent years.
For purposes of this section of the report, and to facilitate the analysis of the data,
federal sex offenses are broken down into two categories: (1) criminal sexual abuse
offenses and (2) sexual exploitation offenses. Criminal sexual abuse offenses include
crimes such as rape, statutory rape, and inappropriate sexual contact offenses. The
following guidelines comprise the offenses of criminal sexual abuse: Criminal Sexual
Abuse—Rape (USSG §2A3.1), Criminal Sexual Abuse of a Minor—Statutory Rape
(USSG §2A3.2), and Abusive Sexual Contact (USSG §2A3.4). Sexual exploitation
offenses include crimes related to the production, trafficking, and possession of child
pornography. The following guidelines comprise the offenses of sexual exploitation:
Sexual Exploitation of a Minor—Production (USSG §2G2.1), Trafficking in Materials
Involving the Sexual Exploitation of a Minor (USSG §2G2.2), and Possession of
Materials Involving Sexual Exploitation of a Minor (USSG §2G2.4).
The analysis in this section evaluates the sentencing patterns for both criminal
sexual abuse offenses and sexual exploitation offenses in light of a primary goal of the
PROTECT Act: to curtail the imposition of below-range sentences in federal sex
offenses.

115

Two factors warrant caution in the use of this analysis to draw conclusions about
the effect of Booker on the sentencing of federal sex offenses.323 First, numerous
legislative changes (particularly statutorily prescribed mandatory minimum sentences)
and amendments to the sex offense guidelines (e.g., increased base offense levels) have
resulted in substantial sentence increases for these offenders.324 Second, sex offenses
account for a very small proportion of the federal caseload.325 The number of offenders
sentenced under each of these guidelines is quite small compared to the number of
offenders sentenced under the five most commonly applied guidelines. Such small
numbers of cases potentially distort both percentages and averages.
1.

Criminal Sexual Abuse Offenses

Historically, criminal sexual abuse offenses have comprised a small proportion of
the overall federal caseload. This trend continued in the post-Booker period with 309
cases sentenced under these guidelines comprising 0.5% of the overall caseload. In
addition, this small group of offenders differs in composition from the overall federal
caseload. Post-Booker, criminal sexual abuse offenses consist of a relatively large
proportion of offenders in the “other” race category (primarily Native Americans, 62.1%,
39.5%, and 80.0% for USSG §§2A3.1, 2A3.2, and 2A3.4, respectively).326 Native
Americans comprise only 4.5 percent of the overall federal sentencing population. A
large proportion of offenders sentenced for criminal sexual abuse offenses are in Criminal
History Category I (69.0 percent, 76.1 percent, and 63.4 percent for USSG §§2A3.1,
2A3.2, and 2A3.4, respectively) compared to 46.4 percent for all post-Booker
offenders.327
323

The use of caution in the interpretation of this data also is necessary because of the ambiguous status of
the departure provisions of 18 U.S.C. § 3553(b)(2). Those provisions, curtailing the use of downward
departures in sex offense cases, were added by the PROTECT Act. The Booker decision, however, excised
the departure provisions of 18 U.S.C. § 3553(a) but, perhaps inadvertently, left intact the provisions of 18
U.S.C. § 3553(b). Post-Booker practices regarding the imposition of below-range sentences in sex offense
cases may have been affected by this ambiguity, but the extent of such an effect, if any, cannot be measured
by the data.
324
The Commission undertook a comprehensive restructuring of the sexual exploitation guidelines
effective November 1, 2004. Base offense levels were increased for USSG §§2A3.1, 2A3.4, 2G2.1 and
2G2.2. Specific offense characteristic enhancement levels were increased for USSG §§2A3.2(b)(1) and
2A3.2(b)(2) and new specific offense characteristics were created for USSG §§2G2.1(b)(2), (3) and (4) and
2G2.2(b)(1). Finally, a new guideline was created at USSG §2G1.3 (Promoting a Commercial Sex Act or
Prohibited Sexual Conduct with a Minor) that increased sentences for offenders who travel across state
lines to engage in illegal sexual conduct with a minor. These amendments accompanied the PROTECT
Act’s enactment of a number of mandatory minimum penalties affecting offenses sentenced under USSG
§§2G1.3, 2G2.1, and 2G2.2, and the creation of a specific offense characteristic for the number of images.
325
Pre-PROTECT, post-PROTECT, and post-Booker the sex offense guidelines (USSG §§2A3.1, 2A3.2,
2A3.4, 2G2.1, 2G2.2, and 2G2.4) accounted for 1.4 percent, 1.5 percent, and 2.0 percent of the caseload,
respectively.
326
See Appendix E-10 through E-12 for complete demographic information.
327
The proportion of Native Americans among these offenders in the past has influenced sentences because
of jurisdictional differences in sentencing practices, specifically potential sentencing disparity based on
different federal, state, and tribal punishments for similar offenses. See the Sentencing Commission’s
Report of the Native American Advisory Group available on www.ussc.gov for a discussion of the
sentencing and disparity issues.

116

Sentencing patterns for criminal sexual abuse offenses were similar across the 3
time periods. As illustrated by Table 15, the average sentences for each of the 3
guidelines have remained fairly constant. Table 16 shows rates of imposition of nongovernment-sponsored, below-range sentences decreased for all three criminal sexual
abuse guidelines following the PROTECT Act.

117

Table 15328
Sentence Type and Length for Selected Sex Offense Guidelines

Pre-PROTECT Act
(10/1/02-4/30/03)
Criminal Sexual Abuse (§2A3.1)
Sexual Abuse of a Minor (§2A3.2)
Abusive Sexual Contact (§2A3.4)
Exploitation of Minor (§2G2.1)
Traff. in Child Pornography (§2G2.2)
Possession of Child Pornography (§2G2.4)

n
67
96
25
53
163
159

Percent
Prison
97.0
93.8
88.0
98.1
93.9
86.8

Average
Sentence
149
43
27
146
65
25

Median
Sentence
121
33
18
126
51
27

Post-PROTECT Act
(5/1/03-6/24/04)
Criminal Sexual Abuse (§2A3.1)
Sexual Abuse of a Minor (§2A3.2)
Abusive Sexual Contact (§2A3.4)
Exploitation of Minor (§2G2.1)
Traff. in Child Pornography (§2G2.2)
Possession of Child Pornography (§2G2.4)

n
195
166
38
117
368
322

Percent
Prison
100.0
98.8
92.1
100.0
96.7
94.7

Average
Sentence
144
49
32
162
63
32

Median
Sentence
120
37
24
135
51
27

Post-Booker
(1/12/05-1/11/06)
Criminal Sexual Abuse (§2A3.1)
Sexual Abuse of a Minor (§2A3.2)
Abusive Sexual Contact (§2A3.4)
Exploitation of Minor (§2G2.1)
Traff. in Child Pornography (§2G2.2)
Possession of Child Pornography (§2G2.4)

n
145
134
30
98
527
396

Percent
Prison
99.3
94.8
83.3
100.0
97.7
93.4

Average
Sentence
158
53
27
209
92
42

Median
Sentence
120
37
22
180
71
30

As illustrated by Table 16, rates of imposition of below-range sentences for
USSG §2A3.1 declined post-PROTECT Act but increased slightly post-Booker. The
proportion of above-range sentences has nearly doubled for these offenses during the
same time period (4.6% pre-PROTECT Act to 2.6% post-PROTECT Act to 9.0% postBooker).
328

Excludes cases missing information on primary sentencing guideline, sentence imposed and sentence
length. Cases with zero months of prison ordered or missing or indeterminable information were excluded.
The information in this table does not include any time of confinement as defined in USSG §5C1.1.
SOURCE: U.S. Sentencing Commission 2006 Booker Report Datafiles.

118

Table 16329
Sentences Relative to Guideline Range for Selected Sex Offense Guidelines

Pre-PROTECT Act
(10/1/02-4/30/03)
All Guidelines
Criminal Sexual Abuse (§2A3.1)
Sexual Abuse of a Minor (§2A3.2)
Abusive Sexual Contact (§2A3.4)
Exploitation of Minor (§2G2.1)
Traff. in Child Porn. (§2G2.2)
Poss. of Child Porn. (§2G2.4)

Post-PROTECT Act
(5/1/03-6/24/04)
All Guidelines
Criminal Sexual Abuse (§2A3.1)
Sexual Abuse of a Minor (§2A3.2)
Abusive Sexual Contact (§2A3.4)
Exploitation of Minor (§2G2.1)
Traff. in Child Porn. (§2G2.2)
Poss. of Child Porn. (§2G2.4)

Post-Booker
(1/12/05-1/11/06)
All Guidelines
Criminal Sexual Abuse (§2A3.1)
Sexual Abuse of a Minor (§2A3.2)
Abusive Sexual Contact (§2A3.4)
Exploitation of Minor (§2G2.1)
Traff. in Child Porn. (§2G2.2)
Poss. of Child Porn. (§2G2.4)

n
37,699
66
93
25
53
161
152

Percent
Within
/Gov’t330
90.6
81.8
77.4
84.0
81.1
82.6
73.7

n
75,723
194
164
38
112
362
316

Percent
Within
/Gov’t
93.7
89.2
93.3
86.8
92.0
83.7
84.5

n
65,368
144
130
30
97
520
387

Percent
Within
/Gov’t
85.9
81.9
83.1
70.0
74.2
78.2
69.5

Percent
Upward
Departure
0.8
4.6
6.5
4.0
15.1
3.7
1.3

Percent
Upward
Departure
0.8
2.6
5.5
7.9
6.2
4.1
3.2

Percent
Upward
Departure
1.6
9.0
4.6
16.7
14.4
2.7
4.1

Percent
Downward
Departure
8.6
13.6
16.1
12.0
3.8
13.7
25.0

Percent
Downward
Departure
5.5
8.2
1.2
5.3
1.8
12.2
12.3

Percent
Downward
Departure
3.2
2.1
3.1
3.3
1.0
5.4
5.4

Percent
Booker
Authority
9.3
6.9
9.2
10.0
10.3
13.7
20.9

After a substantial post-PROTECT Act decline, post-Booker rates of imposition
of non-government-sponsored, below-range sentences for cases sentenced under USSG
329

Missing information (departure status) reduces the total number of cases.
The "Within/Gov’t” category includes within range sentences and government-sponsored downward
departures (Substantial Assistance under USSG §5K1.1, EDP under USSG § 5K3.1 and other governmentsponsored downward departures). See Appendix B for further descriptions of these categories.

330

SOURCE: U.S. Sentencing Commission 2006 Booker Report Datafiles.

119

§2A3.2 (statutory rape) increased, but to rates below pre-PROTECT rates (16.1% prePROTECT Act to 1.2 % post-PROTECT Act to 12.3% post-Booker).
Rates of imposition of non-government-sponsored, below-range sentences for
cases sentenced under USSG §2A3.4, the abusive sexual contact guideline, decreased
following the PROTECT Act and increased post-Booker (12.0% pre-PROTECT Act to
5.3% post-PROTECT Act to 13.3% post-Booker). At the same time, above-range
sentences have quadrupled from about four percent pre-PROTECT Act to 16.7 percent
post-Booker.
Post-Booker, the majority of non-government-sponsored, below-range sentences
are for offenders in these offense categories who have little or no criminal history. Table
17 shows that the overwhelming majority of these offenders are in Criminal History
Category I, which also is the category of offenders with the largest number of belowrange sentences.

120

Table 17331
Sentence Relative to the Guideline Range for Each Criminal History Category for
Criminal Sexual Abuse Offenders
Post-Booker
Criminal Sexual Abuse
(USSG §2A3.1)
Within/Gov’t332
CHC
Total
n
%
144
118
81.9
Total
99
84
84.8
I
22
18
81.8
II
6
3
50.0
III
3
3 100.0
IV
9
6
66.7
V
5
4
80.0
VI

Above Range
n
%
13
9.0
8
8.1
1
4.5
1
16.7
0
0.0
2
22.2
1
20.0

Down. Dep.
n
%
3
2.1
2
2.0
1
4.5
0
0.0
0
0.0
0
0.0
0
0.0

n
10
5
2
2
0
1
0

Booker
%
6.9
5.0
9.1
33.3
0.0
11.1
0.0

Sexual Abuse of a Minor
(USSG §2A3.2)
Within/Gov’t
CHC
Total
n
%
130
108
83.1
Total
99
82
82.8
I
15
14
93.3
II
4
3
75.0
III
2
2 100.0
IV
6
3
50.0
V
4
4 100.0
VI

Above Range
n
%
6
4.6
3
3.0
0
0.0
0
0.0
0
0.0
3
50.0
0
0.0

Down. Dep.
n
%
4
3.1
2
2.0
1
6.7
1
25.0
0
0.0
0
0.0
0
0.0

n
12
12
0
0
0
0
0

Booker
%
9.2
12.1
0.0
0.0
0.0
0.0
0.0

Abusive Sexual Contact
(USSG §2A3.4)
Within/Gov’t
CHC Total
n
%
30
21
70.0
Total
19
15
78.9
I
6
3
50.0
II
4
2
50.0
III
0
0
0.0
IV
1
1 100.0
V
0
0
0.0
VI

Above Range
n
%
5
16.7
2
10.5
2
33.3
1
25.0
0
0.0
0
0.0
0
0.0

Down. Dep.
n
%
1
3.3
1
5.3
0
0.0
0
0.0
0
0.0
0
0.0
0
0.0

n
3
1
1
1
0
0
0

Booker
%
10.0
5.3
16.7
25.0
0.0
0.0
0.0

331

Missing information (departure status) reduces the total number of cases.
The “Within/Gov’t” category includes within range sentences and government-sponsored downward
departures (Substantial Assistance under USSG §5K1.1, EDP under USSG § 5K3.1 and other governmentsponsored downward departures). See Appendix B for further descriptions of these categories.
332

SOURCE: U.S. Sentencing Commission 2006 Booker Report Datafiles.

121

Sexual Exploitation Offenses

Sexual exploitation offenses, similar to criminal sexual abuse offenses, also
comprise a relatively small proportion of the federal caseload, accounting for 1.5 percent
(1,021 cases) of the post-Booker cases. The composition of offenders sentenced for
sexual exploitation is substantially different from the overall federal caseload. PostBooker, offenders sentenced under these guidelines overwhelmingly were white (92.9%,
94.5%, and 91.9% of USSG §§2G2.1, 2G2.2, and 2G2.4, respectively), compared to the
overall federal caseload, in which 28.8 percent of offenders were white.
The Commission examined average sentence lengths for each of the sexual
exploitation guidelines. Consistent with the trend seen in the national post-Booker data,
average sentences for these guidelines have increased. Table 15 shows the results of this
examination. The Commission determined that the rates of imposition of nongovernment-sponsored, below-range sentences among these offenses have also increased
substantially across the three time periods. See Table 16.
Rates of imposition of non-government-sponsored, below-range sentences for
production offenses (USSG §2G2.1) decreased slightly following the PROTECT Act
(from 3.8 % to 1.8%) and then increased post-Booker to 11.3 percent, a rate nearly three
times the pre-PROTECT Act. During the same time period, rates of imposition of aboverange sentences fell, but returned to rates close to pre-PROTECT Act rates (15.1% prePROTECT Act to 6.2% post-PROTECT Act to 14.4% post-Booker).
Rates of imposition of non-government-sponsored, below-range sentences for
trafficking in child pornography (USSG §2G2.2) show an overall increase across the
three time periods from 13.7 percent pre-PROTECT Act to 12.2 post-PROTECT Act to
19.1 percent post-Booker. Rates of imposition of above-range sentences have remained
relatively constant.
Rates of imposition of non-government-sponsored, below-range sentences for
possession of child pornography offenses (USSG §2G2.4) decreased following the
PROTECT Act and returned post-Booker to rates that exceed pre-PROTECT Act rates
(25.0% to 12.3% to 26.3%). Rates of imposition of above-range sentences increased
steadily during the same time period from 1.3 percent pre-PROTECT Act to 3.2 percent
post-PROTECT Act to 4.1 percent post-Booker offenders.
Table 18 shows that the criminal history for sexual exploitation offenders is
similar to that demonstrated for criminal sexual abuse offenders. Specifically, the
majority of offenders sentenced under each guideline are in Category I, and the majority
of non-government-sponsored, below-range sentences are for these offenders with little
or no criminal history. For example, approximately 83 percent of both trafficking (USSG
§2G2.2) and possession (USSG §2G2.4) offenders are in criminal history category I, and
those Category I offenders account for 92.9 percent and 94.1 percent of below-range
sentences, respectively.

122

Table 18333
Sentence Relative to the Guideline Range for Each Criminal History Category for
Sexual Exploitation Offenses
Post-Booker
Exploitation of a Minor
(USSG §2G2.1)
Within/Gov’t334
CHC
Total
n
%
97
72
74.2
Total
55
37
67.3
I
13
10
76.9
II
7
6
85.7
III
6
4
66.7
IV
8
7
87.5
V
8
8 100.0
VI

Above Range
n
%
14
14.4
10
18.2
1
7.7
0
0.0
2
33.3
1
12.5
0
0.0

Down. Dep.
n
%
1
1.0
0
0.0
1
7.7
0
0.0
0
0.0
0
0.0
0
0.0

n
10
8
1
1
0
0
0

Booker
%
10.3
14.5
7.7
14.3
0.0
0.0
0.0

Trafficking in Child Pornography
(USSG §2G2.2)
Within/Gov’t
CHC
Total
n
%
520
407
78.3
Total
432
329
76.2
I
36
32
88.9
II
28
24
85.7
III
11
10
90.9
IV
10
9
90.0
V
3
3 100.0
VI

Above Range
n
%
14
2.7
11
2.5
2
5.6
0
0.0
1
9.1
0
0.0
0
0.0

Down. Dep.
N
%
28
5.4
27
6.3
0
0.0
1
3.6
0
0.0
0
0.0
0
0.0

n
71
65
2
3
0
1
0

Booker
%
13.6
15.1
5.6
10.7
0.0
10.0
0.0

Possession of Child Pornography
(USSG §2G2.4)
Within/Gov’t
CHC
Total
n
%
387
269
69.5
Total
322
213
66.2
I
28
23
82.1
II
18
15
83.3
III
11
10
90.9
IV
4
4 100.0
V
4
4 100.0
VI

Above Range
n
%
16
4.1
13
4.0
2
7.1
0
0.0
1
9.1
0
0.0
0
0.0

Down Dep.
n
%
21
5.4
21
6.5
0
0.0
0
0.0
0
0.0
0
0.0
0
0.0

n
81
75
3
3
0
0
0

Booker
%
20.9
23.3
10.7
16.7
0.0
0.0
0.0

333

Missing information (departure status) reduces the total number of cases.
The “”Within/Gov’t” category includes within range sentences and government-sponsored downward
departures (Substantial Assistance under USSG §5K1.1, EDP under USSG §5K3.1 and other governmentsponsored downward departures). See Appendix B for further descriptions of these categories.
334

SOURCE: U.S. Sentencing Commission 2006 Booker Report Datafiles.

123

While the rates of imposition of non-government-sponsored, below-range
sentences have increased post-Booker for production, trafficking, and possession of child
pornography offenses, the average and median sentences for these offenses also have
increased from the post-PROTECT period. See Table 15. For example, the median
sentence for production of child pornography has increased from 135 months to 180
months (average sentence has increased from 162 to 209 months), median sentences for
trafficking have increased from 51 to 71 months (average increased from 63 to 92
months), and the median sentence for possession has increased from 27 to 30 months
(average sentence has increased from 32 to 42 months).
Table 19 shows the distribution across the guideline range for sex offenses
sentenced within-range. Less than half of within-range sentences are located at the
bottom of the guideline range for four of the sex offense guidelines. Only child
pornography trafficking cases (USSG §2G2.2) demonstrate a pattern similar to that
reported for all offenses (see Table 3), with approximately 60 percent of within-range
sentences at the bottom of the range. Possession offenses tend to cluster at the bottom of
the range, with 74.5 percent of sentences at the guideline minimum.

124

Table 19
Position of Sentence Within the Guideline Range
for Selected Sex Offense Guidelines and All Guidelines
Post-Booker

Total

Guideline
Minimum
n
%

Lower Half
of Range
n
%

Midpoint of
Range
n
%

Upper Half
of Range
n
%

Guideline
Maximum
n
%

31,530

18,354

58.2

4,920

15.6

2,649

8.4

2,360

7.5

3,247

10.3

Criminal Sexual Abuse
(§2A3.1)

43.8

18.0

4.5

7.9

25.8

Sexual Abuse of a Minor
(§2A3.2)

45.1

9.9

7.0

9.9

28.2

Abusive Sexual Contact
(§2A3.4)

36.8

15.8

10.5

21.1

Exploitation of Minor
(§2G2.1)

33.3

22.2

5.6

8.3

30.6

Trafficking in Child Pornography
(§2G2.2)

295

174

59.0

13.6

4.8

7.8

14.9

Possession of Child Pornography
(§2G2.4)

196

146

74.5

6.1

7.7

1.5

10.2

All Guidelines

SOURCE: U.S. Sentencing Commission 2006 Booker Report Datafiles.

125

CRACK COCAINE OFFENSES

In 1986, Congress responded to a national sense of urgency surrounding penalties
for crack cocaine and other controlled substances by enacting the Anti-Drug Abuse Act
of 1986335 (“the Act”), which created the basic framework of statutory mandatory
minimum penalties currently applicable to federal drug trafficking offenses generally.
Concluding that crack cocaine offenses were more serious than powder cocaine offenses,
Congress established significantly higher penalties for crack cocaine offenses. The Act
differentiated between powder cocaine offenses and crack cocaine offenses by requiring
100 times less crack cocaine than powder cocaine to trigger five- and ten-year mandatory
minimum penalties. The Commission responded to the Act by incorporating the statutory
100-to-1 drug quantity ratio into the guidelines. Because of the statutory and guideline
differentiation between crack cocaine offenses and powder cocaine offenses, the withinrange sentence based solely on drug quantity generally is three to over six times longer
for crack cocaine offenses than for powder cocaine offenses.
Federal sentencing policy for cocaine offenses, particularly the 100-to-1 drug
quantity ratio that distinguishes crack cocaine offenses from powder cocaine offenses,
long has come under intense criticism from the criminal justice community. The
Commission itself has recommended three times to Congress that the 100-to-1 drug
quantity ratio be revisited.336 In its 2002 cocaine report, the Commission found that: (1)
the current penalties exaggerate the relative harmfulness of crack cocaine, (2) current
penalties sweep too broadly and apply most often to lower level offenders, (3) current
quantity-based penalties overstate the seriousness of most crack cocaine offenses and fail
to provide adequate proportionality, and (4) the severity of current penalties mostly
impacts minorities.337
The criticism of federal sentencing policy for crack cocaine offenses has
continued post-Booker.338 Some commentators have hypothesized that courts would use
their expanded authority under Booker to fashion more non-government-sponsored,
below-range sentences in crack cocaine cases. This analysis assesses empirically the
validity of that hypothesis and also assesses whether the post-Booker data distinguish the
sentencing of crack cocaine offenses in any other respect.
Sentencing practices regarding crack cocaine offenses generally have followed
the same patterns described thus far and are consistent with those of the other major drug
types across the pre-PROTECT Act, post-PROTECT Act, and post-Booker time periods.
See Table 20. All five of the major drug types had overall decreases in within-range
sentences across the three time periods primarily attributable to an increase in rates of
335

See Pub. L. 99–570, 100 Stat. 3207 (1986).
The Commission submitted 3 reports to Congress on cocaine offenses: the 1995 SPECIAL REPORT TO
CONGRESS: COCAINE AND FEDERAL SENTENCING POLICY, the 1997 SPECIAL REPORT TO CONGRESS:
COCAINE AND FEDERAL SENTENCING POLICY and the 2002 REPORT TO CONGRESS: COCAINE AND FEDERAL
SENTENCING POLICY, which are available at http://www.ussc.gov.
337
Commission, 2002 REPORT TO CONGRESS: COCAINE AND FEDERAL SENTENCING POLICY, at pp.v-viii.
338
See. e.g., Ryan S. King and Marc Mauer, Sentencing with Discretion: Crack Cocaine Sentencing After
Booker, The Sentencing Project, January 2006.
336

126

imposition non-government-sponsored, below-range rates, specifically non-governmentsponsored, below-range cases citing Booker rather than downward departures. The largest
percentage of below-range sentences were for crack cocaine and methamphetamine
offenders, with rates of below-range sentences approximately twice as high post-Booker
compared to pre-PROTECT Act (increase from 6.2% to 14.7% for crack cocaine and
from 6.1% to 13.6% for methamphetamine). Rates of above-range sentences also have
increased for all 5 drug types, ranging from 0.5 percent for methamphetamine offenses to
0.9 percent for marijuana offenses. These increases in rates for above-range sentences
are lower than those reported for all offenses (1.6 %).

127

Table 20339
Sentences Relative to the Guideline Range
for Selected Drug Types340

Pre-PROTECT Act
(10/1/02-4/30/03)
Powder Cocaine
Crack Cocaine
Heroin
Marijuana
Methamphetamine

Post-PROTECT Act
(5/1/03-6/24/04)
Powder Cocaine
Crack Cocaine
Heroin
Marijuana
Methamphetamine

Post-Booker
(1/12/05-1/11/06)
Powder Cocaine
Crack Cocaine
Heroin
Marijuana
Methamphetamine

n
3,400
3,184
1,018
3,279
2,422

Percent
Within
/Gov’t341
93.2
93.8
86.6
92.3
93.7

Percent
Upward
Departure
0.1
0.1
0.3
0.3
0.2

Percent
Downward
Departure
6.7
6.2
13.1
7.4
6.1

n
6,228
5,706
1,941
7,016
5,241

Percent
Within
/Gov’t
95.4
95.5
90.2
95.7
95.3

Percent
Upward
Departure
0.4
0.2
0.4
0.2
0.2

Percent
Downward
Departure
4.2
4.3
9.3
4.1
4.5

n
5,263
5,112
1,593
5,317
4,636

Percent
Within
/Gov’t
88.6
84.8
78.7
89.8
86.0

Percent
Upward
Departure
0.6
0.6
0.8
0.9
0.5

Percent
Downward
Departure
2.6
3.4
5.4
2.9
2.6

339

Percent
Booker
Authority
8.2
11.3
15.1
6.5
11.0

Missing information (departure status) reduces the total number of cases.
Cases sentenced for drug trafficking under USSG §§2D1.1 and 2D1.2 are included in the table.
341
The “Within/Gov’t” category includes within range sentences and government-sponsored downward
departures (Substantial Assistance under USSG §5K1.1, EDP under USSG §5K3.1 and other governmentsponsored downward departures). See Appendix B for further descriptions of these categories.
340

SOURCE: U.S. Sentencing Commission 2006 Booker Report Datafiles.

128

Focusing specifically on the post-Booker era, the Commission examined the
percentage of crack cocaine cases sentenced in conformance with the guidelines. Table
20 shows that 84.8 percent of crack cocaine cases were sentenced in conformance with
the guidelines (including government-sponsored departures). This rate is comparable to
the overall national rate of 85.9 percent. Comparison of post-Booker data on crack
cocaine sentences with post-Booker data on all drugs shows that crack cocaine offenses
are sentenced in conformance with the guidelines at about the same rate as all other drug
types (ranging from 78.7 percent for heroin to 89.8 percent for marijuana).
The Commission’s earlier findings on national trends in sentence lengths were
replicated in the analysis of drug cases. Table 21 shows that the pattern of increased
below-range sentences is accompanied by an increase in average sentence for all drug
offenses, except crack cocaine (which did not change). The average sentence increased
for four of the five major drug types across the three time periods, ranging from eight
months for marijuana offenders to one month for crack cocaine offenders.

129

Table 21
Sentence Type and Length for Selected Drug Types342

Pre-PROTECT Act
(10/1/02-4/30/03)
Powder Cocaine
Crack Cocaine
Heroin
Marijuana
Methamphetamine

n
3,513
3,240
1,070
3,406
2,493

Percent
Prison
95.8
99.0
97.8
92.4
98.0

Average
Sentence
81
123
62
37
95

Median
Sentence
60
100
46
24
75

Post-PROTECT Act
(5/1/03-6/24/04)
Powder Cocaine
Crack Cocaine
Heroin
Marijuana
Methamphetamine

n
6,332
5,761
1,976
7,173
5,320

Percent
Prison
97.0
98.9
97.9
94.9
98.3

Average
Sentence
83
127
66
41
101

Median
Sentence
60
110
46
27
80

Post-Booker
(1/12/05-1/11/06)
Powder Cocaine
Crack Cocaine
Heroin
Marijuana
Methamphetamine

n
5,342
5,176
1,619
5,389
4,748

Percent
Prison
97.6
98.6
96.2
94.1
98.4

Average
Sentence
86
124
66
45
97

Median
Sentence
64
108
48
30
78

These data suggest that, for the most part post-Booker, the courts have made
limited use of Booker to fashion non-government-sponsored, below-range sentences in
crack cocaine cases. As the data illustrate, much of the post-Booker adjustment in federal
sentencing practices with respect to crack cocaine cases is similar to practices for the
other major drug types.
The Commission then examined each of the 610 post-Booker crack cocaine cases
in which the court imposed a non-government-sponsored, below-range sentence using
Booker. The purpose of the examination was to study the reasons cited by the court to
ascertain whether the crack cocaine/cocaine powder disparity was a driving factor for
342

Cases sentenced for drug trafficking under USSG §§2D1.1 and 2D1.2 are included in this table.

SOURCE: U.S. Sentencing Commission 2006 Booker Report Datafiles.

130

these sentences. Thirty-five of the cases cited a reason that clearly indicated the
sentencing court’s discontent with the 100:1 drug quantity ratio (e.g., reference was made
that specifically stated the crack/cocaine disparity). These 35 reasons account for 0.7
percent of the total number of crack cocaine cases in the post-Booker universe of cases.
Four judicial districts ―the Eastern District of New York, the Middle District of North
Carolina, the District of Columbia, and the District of Connecticut ― report 3 or more of
these sentences. The same 4 districts reported nearly half (16 of the 35) of the cases in
which reasons specifically stated disagreement with the ratio. An additional 73 reasons
given for these non-government-sponsored, below-range sentences suggested disparity
but did not clearly cite the drug quantity ratio issue.343 This analysis indicates that courts
infrequently are using Booker to impose non-government-sponsored, below-range
sentences on this basis.
F.

FIRST OFFENDERS AND CAREER OFFENDERS

As stated in the Introductory Commentary to Chapter Four of the Guidelines
Manual, consideration of a defendant’s criminal history is directly relevant to the
achievement of the purposes of sentencing set forth in the SRA.344 In promulgating
guidelines to account for an offender’s criminal history, the Commission long ago
recognized that “[a] defendant with a record of prior criminal behavior is more culpable
than a first offender and thus deserving of greater punishment” in order better to achieve
the purposes of sentencing.345 The Commission also recognized, however, that the
criminal history score computed under the guidelines’ criminal history rules sometimes
may not adequately reflect the seriousness of the defendant’s criminal history or
likelihood of recidivism and that departures from the computed criminal history category
may be appropriate in some cases.346
Gauging the seriousness of the defendant’s criminal history and the likelihood of
recidivism is difficult, but it is of continuing interest to the Commission, the courts, and
others in the federal criminal justice community.347 As indicated in chapter 4, issues
associated with accounting for the defendant’s criminal history provide the most frequent
bases for imposition of non-government-sponsored, below-range sentences.

343

The 35 reasons clearly referenced the crack-powder cocaine ratio. The remaining 73 reasons made
reference to general guideline adequacy issues, reduction of disparity (without elaboration), statutory
minimum or maximum, and drug quantity (without further elaboration). These reasons, in the context of
below-range sentences for crack cocaine offenses, may indicate a drug quantity ratio dispute, but do not
state it as plainly as the 35 others.
344
Guidelines Manual, Ch.4, intro.comment (2005).
345
Id.
346
Guidelines Manual, §4A1.3 provides departure mechanisms in such cases.
347
The Commission has released three of a series of reports on recidivism and the federal sentencing
guidelines. The first report, MEASURING RECIDIVISM: THE CRIMINAL HISTORY COMPUTATION OF THE
FEDERAL SENTENCING GUIDELINES, and the second report, RECIDIVISM AND THE “FIRST OFFENDER” were
issued in May 2004. The third report, A COMPARISON OF THE FEDERAL SENTENCING GUIDELINES
CRIMINAL HISTORY CATEGORY AND THE U.S. PAROLE COMMISSION SALIENT FACTOR SCORE, was issued in
January 2005. All three reports are available at www.ussc.gov.

131

This analysis focuses on whether Booker has had any effect on the imposition of
non-government-sponsored, below-range sentences for two criminal history categories:
“first offenders” and “career offenders.”
1.

First Offenders

The Commission published an analysis of issues associated with first offenders in
its May 2004 report on “Recidivism and the ‘First Offender.’” For purposes of the
analysis conducted for this report, first offenders are defined as those with no prior
contact with the criminal justice system whatsoever. This category includes only
offenders without any criminal record reported in the presentence report.348
Table 22 provides information on sentence position relative to the guideline range
for first offenders. The rate of the imposition of non-government-sponsored, belowrange sentences decreased from the pre-PROTECT Act period to the post-PROTECT Act
period from 9.8 percent to 6.1 percent. Post-Booker, the rate of the imposition of nongovernment-sponsored, below-range sentences increased to a total of 15.2 percent (3.6%
citing downward departures and 11.6% under Booker). Though accounting for a small
number of cases, the proportion of sentences above the guideline range steadily increased
across these 3 time periods from 0.7 percent pre-PROTECT Act to 0.8 percent postPROTECT Act to 1.2 percent post-Booker.
Table 22
First Offenders
Sentences Relative to the Guideline Range

Within
/Gov’t349
n
%

Upward
Departure
n
%

Downward
Departure
n
%

Booker
%

PrePROTECT Act
(10/1/02-4/30/03)

8,945

89.5

0.7

975

9.8

PostPROTECT Act
(5/1/03-6/24/04)

18,573

93.1

155

0.8

1,210

6.1

PostBooker
(1/12/05-1/11/06)

13,072

83.6

186

1.2

563

3.6

1,816

11.6

SOURCE: U.S. Sentencing Commission 2006 Booker Report Datafiles.

348

Defined as offenders with no sentencings that qualify for criminal history points, as well as no other
events, such as arrests, that are not included in the criminal history score.
349
The “Within/Gov’t” category includes within range sentences and government-sponsored downward
departures (Substantial Assistance under USSG §5K1.1, EDP under USSG §5K3.1 and other governmentsponsored downward departures). See Appendix B for further descriptions of these categories.

132

Despite the increased rates of imposition of non-government-sponsored, belowrange sentences for first offenders, sentence severity has increased across the three time
periods as shown in Table 23. The proportion of first offenders receiving a prison
sentence has steadily increased during these three time periods, from 76.2 percent prePROTECT Act to 76.7 percent post-PROTECT Act to 79.0 percent post-Booker. The
average prison sentence has remained stable (average prison sentence 37 months prePROTECT Act and 39 months post-PROTECT Act and post-Booker).
Table 23
First Offenders
Sentence Type and Length

Percent
Prison

Average
Sentence

Pre-PROTECT Act
(10/1/02-4/30/03)

10,430

76.2

Post-PROTECT Act
(5/1/03-6/24/04)

20,462

76.7

Post-Booker
(1/12/05-1/11/06)

15,967

79.0

SOURCE: U.S. Sentencing Commission 2006 Booker Report Datafiles.

This analysis examined the distribution of first offenders among the 94 judicial
districts, various offense types, and receipt of a mitigating role reduction pursuant to
USSG §3B1.2. In all but three districts (Northern District of Mississippi, the District of
the Mariana Islands, and the Middle District of Alabama), at least one first offender
received a non-government-sponsored, below-range sentence. The rate of imposition of
downward departures ranged from zero to 19.5 percent, and the rate of imposition of nongovernment-sponsored, below-range sentences under Booker ranged from zero to 30.6
percent. Non-government-sponsored, below-range sentences for first offenders generally
were distributed evenly across the districts.
The majority of districts accounted for less than 1.0 percent of the first offenders
receiving a non-government-sponsored, below-range sentence. Seventy-one districts
each accounted for less than 1.0 percent of downward departures, and 64 districts each
accounted for less than 1.0 percent of below-range sentences under Booker. Typically,
the rate of imposition of non-government-sponsored, below-range sentences citing
Booker exceeded the downward departure rate (85 of the 94 districts). In 5 districts, the
rates of the 2 forms of below-range sentences were the same and in four districts, the
downward departure rate was greater than the below-range rate citing Booker (see
Appendix E-13).
The Commission then examined the proportion of downward departures and
below-range sentences citing Booker among first offenders for each offense type. The
133

results of the analysis are presented in Appendix E-14. The Commission classifies
federal offenses into 32 offense types, and first offenders were represented in each of
these 32 categories. In 3 of these offense type categories (kidnapping, arson, and prison
offenses), offenders received neither a downward departure nor a below-range sentence
citing Booker.
Rates of imposition of non-government-sponsored, below-range sentences
generally are proportional to the number of cases in each offense type category. For
example, 38.0 percent (5,941 of the total 15,633) of first offenders were convicted of
drug trafficking. First offender drug traffickers account for 35.3 percent (199 of the 563
total) of the downward departures and 35.7 percent (648 of the total 1,815) of the nongovernment-sponsored, below-range sentences citing Booker. Immigration offenses
account for proportionally fewer non-government-sponsored, below-range sentences than
their proportion in the population of first offenders. While immigration offenses account
for 16.6 percent of first offenders overall, they account for 10.5 percent of the downward
departures and 7.8 percent of the non-government-sponsored, below-range sentences
citing Booker. Among the remaining offense types, those with the highest rates of either
type of below-range sentence involve small numbers of cases. The highest rate of
imposition of downward departures for first offenders is in murder offenses (15.0%) but
includes only 3 offenders. The highest rate of imposition of non-government-sponsored,
below-range sentences citing Booker is in Burglary/Breaking and Entering offenses
(44.4%), involving only 4 offenders (See Appendix E-14).
Table 24 shows rates of imposition of non-government-sponsored, below-range
sentences for first offenders based on mitigating role status pursuant to USSG §3B1.2.350
Reflecting previous findings, rates of imposition of non-government-sponsored, belowrange sentences citing Booker are higher than rates of downward departure. In addition,
Table 24 shows an apparent relationship between mitigating role reductions and nongovernment-sponsored, below-range sentences for first offenders. Combining both types
of below-range rates, 27.2 percent of first offenders receiving a reduction for minimal
role in the offense (a 4 level reduction) were sentenced below-range. The effect for
offenders receiving minimal role reductions is greater than for those receiving minor role
(2 level) reductions and those that did not receive a reduction under USSG §3B1.2.
Those rates were 12.0 percent and 15.6 percent, respectively.

350

Pursuant to USSG §3B1.2, offenders are eligible for offense level decreases based on their role in the
offense as follows: “(a) If the defendant was a minimal participant…decrease by 4 levels. (b) If the
defendant was a minor participant…decrease by 2 levels. In cases falling between (a) and (b), decrease by
3 levels.” See Guidelines Manual, USSG §3B1.2 (2005).

134

Table 24
First Offenders
Sentences Relative to Guideline Range
for Each Mitigating Role (USSG §3B1.2) Category
Post-Booker

Mitigating Role
TOTAL

TOTAL

WithinRange
n
%

15,072 8,885

Above
Range
n
%

Gov’t
Sponsored
n
%

Below-Range
Downward
Departure
n
%

Booker
n %

59.0

185

1.2

3,647

24.2

560

3.7

1,795 11.9

Minimal
Participant (-4)

626

270

43.1

0.2

185

29.6

8.3

118 18.9

Less than
Minimal participant (-3)

191

111

58.1

0.0

20.4

3.7

34 17.8

1,946 1,049

53.9

0.3

659

33.9

3.9

12,309 7,455

60.6

179

1.5

2,764

22.5

426

3.5

Minor
participant (-2)
No mitigating role
reduction (no adj.)

158

1,485 12.1

SOURCE: U.S. Sentencing Commission 2006 Booker Report Datafiles.

Table 25 presents demographic information for first offenders post-Booker. The
table compares all first offenders to those receiving a non-government-sponsored, belowrange sentence. A smaller proportion of non-citizens and Hispanic offenders received
below-range sentences compared to their representation in the first offender population as
a whole. This is consistent with the finding of a lower rate of imposition of nongovernment-sponsored, below-range sentences among immigration offenses (which
primarily involve Hispanic, non-citizen offenders).

135

8.1

Table 25
First Offenders
Selected Demographic Information
Post-Booker

All First Offenders
Number
Percent

First Offenders with
Downward
Depart/Booker
Number
Percent

Gender
Male
Female
Missing

12,243
3,672
90

76.9
23.1
-

1,737
640
2

73.1
26.9
-

Race
White
Black
Hispanic
Other
Missing

5,267
2,069
7,146
1,103
420

33.8
13.3
45.9
7.1
-

1,028
360
784
186
21

43.6
15.3
33.3
7.9
-

8,834

56.7

1,661

70.4

6,736

43.3

698

29.6

435

Citizenship
U.S.
Citizen
NonCitizen
Missing

SOURCE: U.S. Sentencing Commission 2006 Booker Report Datafiles.

Career Offenders

The Commission undertook an analysis of all defendants who met the guideline
definition of career offender351 and for whom the career offender guideline, USSG
§4B1.1, had an impact on the final sentence.352 The Commission’s analysis revealed that,
351

For purposes of the guidelines, “[a] defendant is a career offender if (1) the defendant was at least
eighteen years old at the time the defendant committed the instant offense of conviction; (2) the instant
offense of conviction is a felony that is either a crime of violence or a controlled substance offense; and (3)
the defendant has at least two prior felony convictions of either a crime of violence or a controlled
substance offense.” A career offender's criminal history category in every case shall be Category VI and a
career offender may also receive an offense level increase if the otherwise applicable offense level is lower
than the offense levels in the table in USSG §4B1.1. See Guidelines Manual, USSG §4B1.1 (2005).
352
For purposes of this analysis, USSG §4B1.1 was considered to have had an impact on the final sentence
if the defendant’s offense level increased due to application of the table in USSG §4B1.1 or if the defendant
had a criminal history category of less than category VI prior to application of the guideline. As a result,
approximately 99 percent of defendants sentenced under USSG §4B1.1 qualified as career offenders for
purposes of the analysis.

136

similar to patterns for first offenders, rates of imposition of within-range sentences for
career offenders were fairly consistent in pre-PROTECT Act (89.4% within-range) and
post-PROTECT Act (92.1% within-range) time periods but noticeably declined postBooker (77.9% within-range). Table 26 provides information for within-range and
below-range sentences for career offenders.
The analysis summarized in Table 26 also shows the rate of imposition of nongovernment-sponsored, below-range sentences during the relevant time period. The prePROTECT Act rate was 10.0 percent, decreasing post-PROTECT Act to 7.3 percent.
The rate then increased in the post-Booker period to 21.5 percent.
Table 26
Career Offenders
Sentences Relative to the Guideline Range

Within
/Gov’t353
n
%
Pre-PROTECT Act
(10/1/02-4/30/03)

Upward
Departure
n
%

Downward
Departure
n
%

Booker
%

930

89.4

0.6

104

10.0

Post-PROTECT Act
(5/1/03-6/24/04)

1,991

92.1

0.6

158

7.3

Post-Booker
(1/12/05-1/11/06)

1,589

77.9

0.7

136

6.7 301

14.8

SOURCE: U.S. Sentencing Commission 2006 Booker Report Datafiles.

Subsequent to Booker, 93 districts reported career offender sentencings (only the
District of the Virgin Islands did not sentence a career offender). Many of the districts
report a small number of career offenders (e.g., 28 of the 93 districts had fewer than 10
career offenders). In 14 of the 93 career offender districts, there are no reported nongovernment-sponsored, below-range sentences (either downward departures or other
below-range sentences) for the career offenders. While the national-level data indicate
that the rate of imposition of downward departures is less than the rate of imposition of
other below-range sentences (6.7% versus 14.8%), in 15 districts the reverse was true. In
these districts, rates of downward departure for career offenders exceeded the rates of
other below-range sentences. Additionally, five districts had identical rates of both types
of below-range sentences. The highest rate of downward departure among career
offenders was 44.4 percent; however, this involved only four cases. Likewise, the

353

The “Within/Gov’t” category includes within range sentences and government-sponsored downward
departures (Substantial Assistance under USSG §5K1.1, EDP under USSG §5K3.1 and other governmentsponsored downward departures). See Appendix B for further descriptions of these categories.

137

highest rate of other below-range sentences was 45.5 percent but involved only five
cases. (See Appendix E-15).
Post-Booker career offenders were identified in 18 of the 32 offense types
reported by the Commission (See Appendix E-16). Two-thirds (12) of these offense
types reported below-range sentences for career offenders. Three offense types account
for nearly all (91.9%) cases involving career offenders (drug trafficking 71.8%, robbery
10.9%, and firearms offenses 9.2%) and nearly all the below-range sentences (a total of
94.0% ) (See Appendix E-17). Among these three offense types, the proportion of the
total number of below-range cases corresponds to the proportion of cases accounted for
by these offenses. That is, drug trafficking accounts for 71.8 percent of the career
offender cases and 74.3 percent of all downward departures and 73.1 percent of other
below-range sentences among the career offender cases. The robbery cases account for a
greater proportion of non-government-sponsored, below-range sentences than downward
departures. Firearms offenses account for a greater proportion of downward departures
than other below-range sentences. Combining both types of below-range sentences,
robbery and firearms offenses each account for 10.3 percent of all below-range sentences,
similar to the proportion of cases accounted for by each.
Drug trafficking offenses accounted for about three-quarters of the career offender
cases and below-range sentences. Table 27 shows the position of sentence relative to the
guideline range for career offenders sentenced for drug trafficking. Rates of imposition
of below-range sentences are highest for government-sponsored downward departures,
followed by other below-range sentences, and then downward departures. As previously
demonstrated (with the exception of the “other” drug category comprised of a very small
number of cases), other below-range sentences occur at a greater rate than downward
departures. Rates of combined types of non-government-sponsored, below-range
sentences (downward departures and other below-range sentences), are similar across the
five major drug types, ranging from 18.9 percent for powder cocaine to 28.4 percent for
heroin. Government-sponsored, below-range sentences also are granted at a rate higher
than the combined non-government-sponsored, below-range rate.

138

Table 27
Career Offenders
Sentence Relative to the Guideline Range for Selected Drug Types
Post-Booker

Within-Range
Offense Type
TOTAL
Powder Cocaine
Crack Cocaine
Heroin
Marijuana
Methamphetamine
Other

Upward
Departure

TOTAL

1,585

642

40.5

302
781
106
170
183
43

103
337
40
71
69
22

34.1
43.2
37.7
41.8
37.7
51.2

0
2
0
4
1
0

Gov’t
Sponsored
n

Downward
Departure

Booker

0.4

583 36.8

108

6.8

245

15.5

0.0
0.3
0.0
2.4
0.6
0.0

142
261
36
66
66
12

10
56
8
10
18
6

3.3
7.2
7.6
5.9
9.8
14.0

47
125
22
19
29
3

15.6
16.0
20.8
11.2
15.9
7.0

47.0
33.4
34.0
38.8
36.1
27.9

SOURCE: U.S. Sentencing Commission 2006 Booker Report Datafiles.

Table 28 shows that the overwhelming majority of career offenders (over 99.0%)
receive a sentence of imprisonment. Deviating from the national patterns for average
sentences, the average sentences for career offenders were similar during the prePROTECT Act and post-PROTECT Act periods, but dropped slightly post-Booker.
Table 28
Career Offenders
Sentence Type and Length

Percent
Prison

Average
Sentence

Pre-PROTECT Act
(10/1/02-4/30/03)

1,068

99.7%

190

Post-PROTECT Act
(5/1/03-6/24/04)

2,188

99.8%

189

Post-Booker
(1/12/05-1/11/06)

2,082

99.9%

180

SOURCE: U.S. Sentencing Commission 2006 Booker Report Datafiles.

The Commission analyzed the extent of decrease below the guideline minimum of
non-government-sponsored, below-range sentences for career offenders for the postPROTECT Act and post-Booker periods. The results of this analysis are detailed in
Table 29. At both points in time, the median proportional reduction in sentence (as well

139

as the median reduction in months) is greater in cases receiving a government-sponsored
substantial assistance departure under USSG §5K1.1. The extent of the proportional
reduction for both substantial assistance departures and non-government-sponsored,
below-range reductions increases between the post-PROTECT Act period and the postBooker period.
Table 29
Career Offender
Degree of Decrease Below Guideline Minimum

Downward
___Departures___

USSG §5K1.1__

Booker

Med
Mths

Med
%

Med
Mths

Med
%

Med
Mths

Med
%

Post-PROTECT Act
(5/1/03-6/24/04)

600

39.8

147

28.2

Post-Booker
(1/12/05-1/11/06)

529

42.4

130

33.4

288

30.5

SOURCE: U.S. Sentencing Commission 2006 Booker Report Datafiles.

Examination of the reasons for non-government-sponsored, below-range
sentences indicates that the reason most often cited is criminal history, a guideline
downward departure reason. Criminal history is the most frequently cited reason in
downward departure cases and the second most often cited reason in below-range cases
citing Booker.
G.

EARLY DISPOSITION PROGRAMS
PRACTICES

AND OTHER

“FAST TRACK” SENTENCING

Prior to 2003, fast track procedures varied throughout the districts, but generally
entailed (1) the government’s use of expedited procedures (mostly involving the waiver
of certain procedural rights by the defendant) in order to facilitate the handling of large
volumes of particular types of immigration and drug cases; and (2) a concomitant
reduction in the defendant’s sentence through the provision of a below-range sentence.
In 2003, fast track procedures were formalized as early disposition programs
(EDPs) pursuant to a directive to the Commission in section 401(m)(2)(B) of the
PROTECT Act. That section required the Commission to promulgate “a policy statement
authorizing a downward departure of not more than four levels if the Government files a
motion for such departure pursuant to an early disposition program authorized by the
Attorney General and the United States Attorney.” Pursuant to that directive, the
Commission promulgated USSG §5K3.1, which provides, upon motion of the

140

government, for a departure of not more than four offense levels pursuant to an early
disposition program.
The PROTECT Act also required that the Attorney General approve all early
disposition programs. According to the most recent information provided to the
Commission by the Department of Justice,354 the Attorney General has approved early
disposition programs in 16 federal judicial districts, leaving 78 districts without such
programs. Presumptively, early disposition programs are used to the exclusion of less
formal, and less standardized, “fast track” procedures that previously had been used in
many districts.
In its 2003 Departures Report, the Commission expressed the concern that
“sentencing courts in districts without early disposition programs, particularly those in
districts that adjoin districts with such programs, may feel pressured to employ other
measures – downward departures in particular – to reach similar sentencing outcomes for
similarly situated defendants.”355 Since then, some courts have expressed the same
concern, i.e., that non-government-sponsored, below-range sentences would be used in
districts without these programs in an effort to avoid disparity among similarly-situated
defendants.356
Analysis conducted for this report357 indicates that this concern has not been
realized generally. One reason is that immigration cases account for only a fraction of
the cases sentenced in the 78 districts that do not have early disposition programs. In all,
these districts account for 3.6 percent (2,456 cases) of the overall post-Booker caseload.
Of these 78 districts, only four have sentenced greater than 100 immigration cases358
post-Booker. The District of Utah sentenced 204 immigration cases (or 21.4% of its postBooker caseload). The Northern District of Texas sentenced 172 immigration cases (or
354

U.S. Department of Justice. Report on the Department of Justice’s Fast Track Programs. Washington,
D.C (2005) See Appendix E-18 for the list of districts cited in the report with approved EDP programs.
355
Id. at p. 67.
356
United States v. Medrano-Duran, 386 F. Supp. 2d 943 (N.D. Ill. 2005) (unpub.) (discussing the disparity
in sentence that occurs in illegal reentry case between jurisdictions with fast track programs and those that
do not have such programs: departing by three offense levels based on the average of the departures given
in districts with early disposition programs); United States v. Santos, 406 F. Supp. 2d 320 (S.D.N.Y. 2005)
(imposing a non-Guidelines sentence in an illegal reentry case, because of sentencing disparity created by
fast track programs, because the Guidelines sentence double-counted the defendant’s nonviolent drug
offenses, and because of the delay in taking the defendant into federal custody); United States v. GalvezBarrios, 355 F. Supp. 2d 958 (E.D. Wis. 2005) (stating that because fast track programs in border districts
for illegal reentry offenses are creating serious sentencing disparities, it may be appropriate in some cases
for a sentencing court to exercise its discretion under Booker to minimize the sentencing disparity that fast
track programs create); United States v. Ramirez-Ramirez, 365 F. Supp. 2d 728 (E.D. Va. 2005) (deviating
from the Guidelines in an illegal reentry case where the defendant’s sentence was enhanced based on a
crime of violence; after considering the § 3553(a) factors, deviating, in large part, based on the absence of a
fast track program in the district). Cf. United States v. Perez-Chavez, No. 05-CR-00003PGC, 2005 U.S.
Dist. Lexis 9252 (D. Utah May 16, 2005) (explaining why it is inappropriate to deviate from the Guidelines
range based on the absence of a fast-track program).
357
The analysis in this section was not undertaken with respect to any district with an approved Early
Disposition Program. The analysis was not intended to evaluate the operation of those programs.
358
Cases with USSG §2L1.1 or USSG §2L1.2 as the primary sentencing guideline.

141

18.8% of its post-Booker caseload). The Middle District of Florida sentenced 162
immigration cases (or 10.3% of its post-Booker caseload). The Southern District of New
York sentenced 106 immigration cases (or 8.3% of its post-Booker caseload).
With respect to these 4 districts, all but one, the Southern District of New York,
had rates of imposition of non-government-sponsored, below-range sentences using
Booker in immigration cases that were less than the overall national average of 9.3
percent. In the Middle District of Florida, the rate of imposition of an otherwise belowrange sentence is 7.4 percent. In the District of Utah, the rate of imposition of an
otherwise below-range sentence is 6.9 percent. In the Northern District of Texas, the rate
of imposition of an otherwise below-range sentence is 1.7 percent.
Of the 297 immigration sentences otherwise below-range in the 78 districts
without early disposition programs, 707 reasons were cited.359 The most commonly cited
reasons for below-range sentences were 18 U.S.C. § 3553(a) language (cited 93 times)
and specification of a variance (cited 73 times). Insufficient documentation to provide a
reason occurred in 57 of the cases. Disparity due to the nonexistence of an early
disposition program was cited only 10 times. Cultural assimilation, a reason frequently
cited for fast track departures prior to implementation of USSG §5K3.1, was specifically
cited only 25 times, the twenty-first most commonly cited reason.

359

The number of cited reasons is greater than the number of cases because courts often cite more than one
reason in a case.

142

Chapter 7

CONCLUSION
The Commission intends to continue its outreach and training efforts and to
regularly release updated, real-time data on rates of imposition of within-range and outof-range sentences, types of sentences imposed, average sentence lengths, the reasons
judges report for sentencing outside the guidelines system, and the results of sentencing
appeals. Uniform and complete statements of reasons and timely reporting to the
Commission by the district courts can provide valuable feedback to Congress, the
Commission, the courts, and all others in the federal criminal justice community
regarding the long-term impact of Booker on the federal sentencing system. This report
is an important part of the Commission’s efforts to inform careful consideration of the
evolving post-Booker federal sentencing system.

143

APPENDIX A

AO 245B

(Rev. 06/05) Criminal Judgment
Attachment (Page 1) — Statement of Reasons

DEFENDANT:
CASE NUMBER:
DISTRICT:

STATEMENT OF REASONS
(Not for Public Disclosure)
I

COURT FINDINGS ON PRESENTENCE INVESTIGATION REPORT
A

The court adopts the presentence investigation report without change.

The court adopts the presentence investigation report with the following changes.
(Check all that apply and specify court determination, findings, or comments, referencing paragraph numbers in the presentence report, if applicable.)
(Use page 4 if necessary.)

Chapter Two of the U.S.S.G. Manual determinations by court (including changes to base offense level, or
specific offense characteristics):

Chapter Three of the U.S.S.G. Manual determinations by court (including changes to victim-related adjustments,
role in the offense, obstruction of justice, multiple counts, or acceptance of responsibility):

Chapter Four of the U.S.S.G. Manual determinations by court (including changes to criminal history category or
scores, career offender, or criminal livelihood determinations):

Additional Comments or Findings (including comments or factual findings concerning certain information in the
presentence report that the Federal Bureau of Prisons may rely on when it makes inmate classification, designation,
or programming decisions):

C
II

The record establishes no need for a presentence investigation report pursuant to Fed.R.Crim.P. 32.

COURT FINDING ON MANDATORY MINIMUM SENTENCE (Check all that apply.)
A

No count of conviction carries a mandatory minimum sentence.

Mandatory minimum sentence imposed.

One or more counts of conviction alleged in the indictment carry a mandatory minimum term of imprisonment, but the
sentence imposed is below a mandatory minimum term because the court has determined that the mandatory minimum
does not apply based on

G
G
G
III

findings of fact in this case
substantial assistance (18 U.S.C. § 3553(e))
the statutory safety valve (18 U.S.C. § 3553(f))

COURT DETERMINATION OF ADVISORY GUIDELINE RANGE (BEFORE DEPARTURES):
Total Offense Level:
Criminal History Category:
Imprisonment Range:
to
months
Supervised Release Range:
to
years
Fine Range: $
to $
G Fine waived or below the guideline range because of inability to pay.

A-1

AO 245B

(Rev. 06/05) Criminal Judgment
Attachment (Page 2) — Statement of Reasons

DEFENDANT:
CASE NUMBER:
DISTRICT:

STATEMENT OF REASONS
(Not for Public Disclosure)
IV

ADVISORY GUIDELINE SENTENCING DETERMINATION (Check only one.)
A

The sentence is within an advisory guideline range that is not greater than 24 months, and the court finds no reason to depart.
The sentence is within an advisory guideline range that is greater than 24 months, and the specific sentence is imposed for these reasons.
(Use page 4 if necessary.)

The court departs from the advisory guideline range for reasons authorized by the sentencing guidelines manual.
(Also complete Section V.)

D
V

The court imposed a sentence outside the advisory sentencing guideline system. (Also complete Section VI.)

DEPARTURES AUTHORIZED BY THE ADVISORY SENTENCING GUIDELINES (If applicable.)
A The sentence imposed departs (Check only one.):
G below the advisory guideline range
G above the advisory guideline range
B

Departure based on (Check all that apply.):
1

Plea Agreement (Check all that apply and check reason(s) below.):
G 5K1.1 plea agreement based on the defendant’s substantial assistance
G 5K3.1 plea agreement based on Early Disposition or “Fast-track” Program
G binding plea agreement for departure accepted by the court
G plea agreement for departure, which the court finds to be reasonable
G plea agreement that states that the government will not oppose a defense departure motion.
Motion Not Addressed in a Plea Agreement (Check all that apply and check reason(s) below.):
5K1.1 government motion based on the defendant’s substantial assistance
5K3.1 government motion based on Early Disposition or “Fast-track” program
government motion for departure
defense motion for departure to which the government did not object
defense motion for departure to which the government objected

G
G
G
G
G
3
C

Other
G Other than a plea agreement or motion by the parties for departure (Check reason(s) below.):
Reason(s) for Departure (Check all that apply other than 5K1.1 or 5K3.1.)

G
G
G
G
G
G
G
G

4A1.3
5H1.1
5H1.2
5H1.3
5H1.4
5H1.5
5H1.6
5H1.11

Criminal History Inadequacy
Age
Education and Vocational Skills
Mental and Emotional Condition
Physical Condition
Employment Record
Family Ties and Responsibilities
Military Record, Charitable Service,
Good Works

5K2.0

Aggravating or Mitigating Circumstances

G
G
G
G
G
G
G
G
G
G

5K2.1
5K2.2
5K2.3
5K2.4
5K2.5
5K2.6
5K2.7
5K2.8
5K2.9
5K2.10

Death
Physical Injury
Extreme Psychological Injury
Abduction or Unlawful Restraint
Property Damage or Loss
Weapon or Dangerous Weapon
Disruption of Government Function
Extreme Conduct
Criminal Purpose
Victim’s Conduct

Explain the facts justifying the departure. (Use page 4 if necessary.)

A-2

G
G
G
G
G
G
G
G
G
G
G

5K2.11
5K2.12
5K2.13
5K2.14
5K2.16
5K2.17
5K2.18
5K2.20
5K2.21
5K2.22
5K2.23

Lesser Harm
Coercion and Duress
Diminished Capacity
Public Welfare
Voluntary Disclosure of Offense
High-Capacity, Semiautomatic Weapon
Violent Street Gang
Aberrant Behavior
Dismissed and Uncharged Conduct
Age or Health of Sex Offenders
Discharged Terms of Imprisonment

AO 245B

(Rev. 06/05) Criminal Judgment
Attachment (Page 3) — Statement of Reasons

DEFENDANT:
CASE NUMBER:
DISTRICT:

STATEMENT OF REASONS
(Not for Public Disclosure)
VI

COURT DETERMINATION FOR SENTENCE OUTSIDE THE ADVISORY GUIDELINE SYSTEM
(Check all that apply.)
A

The sentence imposed is (Check only one.):

G below the advisory guideline range
G above the advisory guideline range
B

Sentence imposed pursuant to (Check all that apply.):
1

Plea Agreement (Check all that apply and check reason(s) below.):

G
G
G
2

Motion Not Addressed in a Plea Agreement (Check all that apply and check reason(s) below.):

G
G
G
3

Other than a plea agreement or motion by the parties for a sentence outside of the advisory guideline system (Check reason(s) below.):

Reason(s) for Sentence Outside the Advisory Guideline System (Check all that apply.)

G
G
G
G
G
G
D

government motion for a sentence outside of the advisory guideline system
defense motion for a sentence outside of the advisory guideline system to which the government did not object
defense motion for a sentence outside of the advisory guideline system to which the government objected

Other

G
C

binding plea agreement for a sentence outside the advisory guideline system accepted by the court
plea agreement for a sentence outside the advisory guideline system, which the court finds to be reasonable
plea agreement that states that the government will not oppose a defense motion to the court to sentence outside the advisory guideline
system

the nature and circumstances of the offense and the history and characteristics of the defendant pursuant to 18 U.S.C. § 3553(a)(1)
to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense (18 U.S.C. § 3553(a)(2)(A))
to afford adequate deterrence to criminal conduct (18 U.S.C. § 3553(a)(2)(B))
to protect the public from further crimes of the defendant (18 U.S.C. § 3553(a)(2)(C))
to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner
(18 U.S.C. § 3553(a)(2)(D))
to avoid unwarranted sentencing disparities among defendants (18 U.S.C. § 3553(a)(6))

Explain the facts justifying a sentence outside the advisory guideline system. (Use page 4 if necessary.)

A-3

AO 245B

(Rev. 06/05) Criminal Judgment
Attachment (Page 4) — Statement of Reasons

DEFENDANT:
CASE NUMBER:
DISTRICT:

STATEMENT OF REASONS
(Not for Public Disclosure)
VII COURT DETERMINATIONS OF RESTITUTION
A

Total Amount of Restitution:

Restitution not ordered (Check only one.):

Restitution Not Applicable.

For offenses for which restitution is otherwise mandatory under 18 U.S.C. § 3663A, restitution is not ordered because the number of
identifiable victims is so large as to make restitution impracticable under 18 U.S.C. § 3663A(c)(3)(A).

For offenses for which restitution is otherwise mandatory under 18 U.S.C. § 3663A, restitution is not ordered because determining complex
issues of fact and relating them to the cause or amount of the victims’ losses would complicate or prolong the sentencing process to a degree
that the need to provide restitution to any victim would be outweighed by the burden on the sentencing process under 18 U.S.C. § 3663A(c)(3)(B).

For other offenses for which restitution is authorized under 18 U.S.C. § 3663 and/or required by the sentencing guidelines, restitution is not
ordered because the complication and prolongation of the sentencing process resulting from the fashioning of a restitution order outweigh
the need to provide restitution to any victims under 18 U.S.C. § 3663(a)(1)(B)(ii).

Restitution is not ordered for other reasons. (Explain.)

Partial restitution is ordered for these reasons (18 U.S.C. § 3553(c)):

VII ADDITIONAL FACTS JUSTIFYING THE SENTENCE IN THIS CASE (If applicable.)

Sections I, II, III, IV, and VII of the Statement of Reasons form must be completed in all felony cases.

Defendant’s Soc. Sec. No.:

Date of Imposition of Judgment

Defendant’s Date of Birth:
Defendant’s Residence Address:

Signature of Judge

Defendant’s Mailing Address:

Name and Title of Judge
Date Signed

A-4

APPENDIX B

METHODOLOGY FOR DATA COLLECTION AND ANALYSIS
A.

DATA COLLECTION

The Commission maintains a comprehensive, computerized data collection
system that forms the basis for its clearinghouse of federal sentencing information.360
The Commission relies upon this database for its ongoing monitoring and evaluation of
the guidelines, for many of its research projects, and for responding to the hundreds of
data requests received from Congress and other criminal justice entities each year. For
each case sentenced under the guidelines, the Commission routinely collects more than
250 pieces of information, including defendant demographics, statutes of conviction,
sentencing guideline applications, and sentences imposed.361
The PROTECT Act established new statutory documentation requirements aimed
at improving the Commission’s ability to collect and report complete and accurate
sentencing data. Section 401(h) of the PROTECT Act, entitled “Improved Data
Collection,” amended 28 U.S.C. § 994(w) to state:
The Chief Judge of each district court shall ensure that, within 30 days
following entry of judgment in every criminal case, the sentencing court
submits to the Commission a written report of the sentence, the offense for
which it is imposed, the age, race, sex of the offender, and information
regarding factors made relevant by the guidelines. The report shall also
include (A) the judgment and commitment order;
(B) the statement of reasons for the sentence imposed
(which shall include the reason for any departure from
the otherwise applicable guideline range);
(C) any plea agreement;
(D) the indictment or other charging document;
(E) the presentence report; and
(F) any other information as the Commission finds
appropriate.362
360

See 28 U.S.C. § 995(a)(14)-(15) (2003).
See 2003 DEPARTURE REPORT at 25.
362
Section 994(w) previously did not contain a 30-day deadline for submission of the documents and did
not impose a duty on the Chief Judge of each district to ensure compliance with this section. Additionally,
361

B-1

The PROTECT Act also amended 18 U.S.C. § 3553(c) to require the sentencing court, if
imposing a sentence outside the prescribed guidelines range, to state “the specific reason”
for departing from the guidelines “with specificity in the written order of judgment and
commitment.”
On September 22, 2003, in response to the PROTECT Act, the Judicial
Conference of the United States adopted a more detailed Statement of Reasons form
intended to enhance the sentencing court’s ability to provide additional specificity in that
document. The statutory requirements enacted by Congress and the courts’ responses to
them were intended to enhance the Commission’s ability to collect and report complete
sentencing data.363 In addition, the greater specificity in the Statement of Reasons was
expected to provide the Commission with more useful feedback from the courts regarding
the operation of the guidelines.
Booker presented new challenges to the Commission’s data collection efforts.
Courts were now directed to consider all the 18 U.S.C. § 3553(a) factors in fashioning an
appropriate sentence. The existing Statement of Reasons form had been tailored to
capture information in a mandatory guideline regime. It did not provide a suitable format
for reporting information about sentences outside the guideline range, which were not
based upon reasons for departure limited to, and affirmatively and specifically identified
in the provisions, policy statement or commentary of the Guidelines Manual. Following
the Booker decision, as noted in Chapter 2, the Judicial Conference adopted a revised
Statement of Reasons form created in consultation with the Commission. The revised
form, approved in June, 2005, is designed to encapsulate the changes in the sentencing
guideline system wrought by Booker. The new form includes greater detail so that the
courts can better describe the type of and reason for an out of range sentence under the
advisory system and the government’s role, if any, in the imposition of the sentence.364
The Commission encourages all districts to use the standardized form.
Uniformity in the method of reporting sentencing information will augment the
completeness and accuracy of the Commission’s sentencing data, which are directly
dependent on the documentation the Commission receives from the sentencing courts.
the only document specifically required by statute to be submitted to the Commission prior to the
PROTECT Act was a “written report of the sentence.” Other documents were submitted to the
Commission pursuant to a longstanding Memorandum of Understanding between the Administrative Office
of the United States Courts and the Commission. See 2003 DEPARTURE REPORT at 24, n.65. The judicial
districts generally are highly compliant with document submission requirements. In Fiscal Year 2003, for
example, the Commission received the Statement of Reasons in 90 percent of cases. See Commission, 2003
SOURCEBOOK OF FEDERAL SENTENCING STATISTICS, at 3. Although the Commission has not yet completed
the process of accounting for missing documentation for the Fiscal Year 2005, the Commission has, as of
the date of this report, received the Statement of Reasons for Fiscal Year 2005 in 96 percent of the cases
submitted to the Commission.
363
2003 DEPARTURE REPORT at 29.
364
For the six-month period preceding adoption of the new form, courts used the old form, modified it, or
created their own. This lack of uniformity in reporting sentencing data impacted the Commission’s
collection efforts and led to the decision to revise the coding methodology. Those revisions are discussed
supra.

B-2

The PROTECT Act, Blakely and Booker decisions each had an impact on federal
sentencing practices. To control for these developments when analyzing the impact of
Booker on the federal sentencing system, the Commission selected cases for analysis that
were sentenced during specific time periods relative to each respective development. The
analysis in Chapter 3 compares data from Fiscal Year 2003 sentenced prior to the
implementation of the PROTECT Act, Fiscal Year 2004 prior to the Blakely decision,
and Fiscal Years 2005 and 2006 following the Booker decision.
The Fiscal Year 2003 pre-PROTECT Act data file consists of all cases received
and coded by the Commission that were sentenced between October 1, 2002 and April
30, 2003, the effective date of the PROTECT Act. This data, consisting of a total of
40,917 cases, enable analysis of sentences prior to the implementation of the PROTECT
Act, which primarily focused on downward departures from the sentencing guidelines
and provide a comparison point of sentencing practices before changes in departure
application.
The Commission historically has conducted extensive quality control checks to
ensure the accuracy of its data. The Fiscal Year 2003 data file is the first Commission
data file for which additional “departure checks” were employed, making it the best data
file to use for comparisons of out of range sentences. Every case in which the court has
indicated a non-substantial assistance departure has been reviewed to verify the accuracy
of departure status, departure reasons, the sentence imposed, the applicable guideline
range, and any statutory penalties that trumped the applicable guideline range.
The post-PROTECT Act time period used for purposes of this analysis is the
period from May 1, 2003 (the date after the enactment of the PROTECT Act) through
June 24, 2004 (the day of issuance of the Blakely decision by the Supreme Court).
Accordingly, the post-PROTECT Act datafile consists of an aggregation of the
Commission’s Fiscal Year 2003 and Fiscal Year 2004 datafiles consisting of the 81,206
offenders sentenced from May 1, 2003 through June 24, 2004. As explained in Chapter
1, information on sentences imposed after issuance of the Blakely decision but before
issuance of the Booker decision is not included in this analysis.
The Fiscal Year 2005 and 2006 post-Booker data file consists of all cases received
and coded by the Commission that were sentenced between January 12, 2005 and January
11, 2006. The Commission continues to collect the same information for the post-Booker
data with some necessary modifications. In the post-Booker sentencing era, sentencing
documentation includes terminology associated with the advisory nature of the
sentencing guidelines (e.g., “variance”). In an effort accurately to capture and report
these changes, the Commission refined its coding procedures regarding sentences outside
the guideline range. As explained in further detail below, post-Booker data collection and
reporting of out of range sentences includes a larger number of categories designed to
capture the nuances of sentencing that have developed under the advisory system.

B-3

DATA ANALYSIS
1.

Analysis of Below-range Sentences

The reporting of below-range sentences changed following the Booker decision.
This change necessitated a significant revision of the Commission’s collection and
reporting of sentences relative to the guideline range. Because of the broader sentencing
authority created by Booker, guideline downward departures are no longer the single
mechanism by which courts can craft below-the-range sentences when appropriate. The
Commission revised its long-established coding protocols to better and more accurately
reflect the new sentencing patterns and documentation that emerged in the post-Booker
era.
Following the PROTECT Act, but prior to the Booker decision non-government
sponsored below-the-range sentences were classified as “other downward departures.”365
This departure category consisted of any sentence the court indicated as a downward
departure on the Statement of Reasons form regardless of the position of the sentence
relative to the final guideline range. Documentation of below-the-range sentences
reported on the Statement of Reasons forms began to differ significantly following the
Booker decision. In lieu of reporting guideline downward departures with departure
reasons, some courts provided Statements of Reasons that:
•

Indicated a downward (or upward) departure citing Booker (or a variety of
terms originating in the decision) as one or more of the reasons.

•

Indicated variances with or without guideline or Booker reasons.

•

Provided reasons for below (or above) range sentences without any
categorization of the sentence in relation to the guideline range.

The Commission revised its departure coding scheme to accurately collect and
report these documentation changes. Prior to Booker, collection of this information
involved a single step: assessment of the departure status (within range, upward
departure, other downward departure, substantial assistance downward departure
pursuant to USSG §5K1.1, downward departure pursuant to early disposition program
pursuant to USSG §5K3.1, or other government sponsored downward departure) as
indicated on the Statement of Reasons. This classification solely was determined by the
information on the Statement of Reasons.366
365

Government sponsored downward departures were first coded by the Commission in the Fiscal Year
2003 datafile and include: §5K1.1 (substantial assistance), §5K3.1 (early disposition program), or
departures with reasons citing government involvement in the departure (e.g., savings to the government).
A list of reasons comprising government sponsored downward departures can be found in Table 25 in the
2003 SOURCEBOOK OF FEDERAL SENTENCING STATISTICS.
366
Downward departures strictly reflected the court’s designation of a non-government sponsored
downward departure on the SOR. In a small proportion of sentences, this classification rule resulted in
anomalous categorizations. For example, if an SOR indicated a downward departure but the sentence on

B-4

Following Booker, collecting this information is a two step process of: 1)
assessing the location of the sentence in relation to the final sentencing guideline range
(within, above, or below) and 2) determining the reason for any above- or below-therange sentence. Once an out of range sentence is identified, the appropriate category is
selected from the following list:
•

Downward Departure/Guideline Reason: 367 All cases with imposed
sentence below-the-range and citing reasons for departure limited to, and
affirmatively and specifically identified in the provisions, policy
statements, or commentary of the federal Guidelines Manual.

•

Downward Departure/Booker Reason: All cases with imposed sentence
below-the-range and citing reasons for departure limited to, and
affirmatively and specifically identified in the provisions, policy
statements, or commentary of the federal Guidelines Manual, and
additionally mentioning either U.S. v. Booker, 18 U.S.C. § 3553, or related
factors as a reason for a sentence below-the-range.

•

Below-the-range Booker: All cases with imposed sentences below-therange mentioning only U.S. v. Booker, 18 U.S.C. § 3553, or related factors
as a reason for a sentence below-the-range.

•

Otherwise below-the-range: Cases with imposed sentences below-therange that do not fall into the three previous categories. Based on the
information submitted on the Statement of Reasons, these cases cannot be
classified as a guideline departure, or as a sentence below-the-range
pursuant to Booker/18 U.S.C. § 3553. This category includes cases which
cited departure reasons that are not affirmatively and specifically
identified in the provisions, policy statements, or commentary of the
federal Guidelines Manual and cases which do not provide any reasons for
the sentence below-the-range.

This new classification scheme provides more detailed information about
sentences in relation to their applicable guideline ranges. However, the new
classification has limitations. The reasons for below-the-range sentence are more easily
identified using the classification scheme, but there is no way to discern from the data
whether, in cases of below-the-range cases citing Booker, whether or not the court would
have sentenced the same offender to the same sentence under the departure authority that
existed with the mandatory guideline system.

the Judgement and Commitment Order was within the guideline range, the sentence was classified as a
downward departure. Such incongruous findings typically were excluded from departure analyses.
367
Above range sentences follow the same decision protocol and are reported in identically defined
categories but with an “upward” modifier.

B-5

Because Booker effects primarily occur in the category of non-government
sponsored below-the-range sentences, some of the other categories have been combined
to simplify the presentation of the analysis. Within range sentences and government
sponsored downward departures (§5K1.1, §5K3.1, and other government sponsored
downward departures) are combined into a single category to better demonstrate the
changes in upward departures and non-government sponsored below-the-range sentences.
The four subcategories of non-government sponsored below-the-range sentences
in the post-Booker data also are combined to facilitate the presentation of some results.
Both downward departure categories (downward departures citing the guidelines,
downward departures citing Booker) are sometimes combined into a single downward
departure category. These two categories both specifically indicate use of a guideline
downward departure in formulating the appropriate sentence. Irrespective of the reasons
given for the departures, the language suggests that the court is acting under guideline
departure authority.
The other two below-range categories, below the range citing Booker and
otherwise below-range sentences sometimes are combined into a Booker category. These
cases are combined because the court either affirmatively indicates a variance from the
guidelines or fails to indicate under which specific sentencing authority the below-therange sentence is imposed.368
In order to facilitate presentation of still other findings, the four below-range
categories sometimes are combined and identified as departure plus Booker. Historically
upward departures have been rare in federal sentencings, accounting for approximately
one percent of sentences. Due to their small numbers, all above range sentences are
combined, regardless of which (if any) sentencing authority is invoked.
The coding protocols used post-Booker follow.

368

These categories are defined in the coding protocol that follows.

B-6

DEPARTURE AND VARIANCE CATEGORY DESCRIPTIONS
FOR THE COMMISSION AFTER JANUARY 12, 2005 DECISION ON
UNITED STATES v. BOOKER .

Introduction
This document was prepared to describe the various outside the range categories
used in the data releases produced by the Commission since the Booker decision on
January 12, 2005. The first section of the document discusses how the different types of
data are reported in the 12 different sentencing categories and the second section
discusses how some scenarios are coded on the Commission =s datafile (note that there is
not a perfect match between the coding and the reporting for some types of cases).

B-7

Within Range
(BOOKER CATEGORY 0)
$

Cases where the sentence is within BOTH the guideline range AND the statutory
range AS WELL AS meeting the zone requirements REGARDLESS of the
departure/variance status marked on the Statement of Reasons (“SOR”).
$
SOR says AWithin Range@, the SOR indicates the final guideline range is
51-63 months, the statutory range is 60-480 months, and the sentence is 60
months
$
SOR says ADeparture of 1 level for '5K3.1/EDP@ and the final guideline
range is 18-24 months and the statutory range is 0-240 months and the
sentence is 18 months (the rationale here is that the pre-departure range is
18-24 months and the post-departure range is 15-21 and the sentence falls
within both the pre- and post-departure ranges so the departure had no
discernable effect. Therefore, the Commission considers these cases as
within range).

18 U.S.C. § 924(c) cases within the statutory range (the rationale is that '2K2.4
says to use the statutory range).
$
Example is statutory minimum of 60 months and sentence of 60 months

8 U.S.C. §1325 cases with 24 months statutory maximum and no guideline
calculation where the sentence is equal to the statutory maximum (the rationale
for this is that if the guideline had been present in the case file the calculation
would be trumped by the 24 month statutory maximum so a sentence equal to the
statutory maximum would have been within the trumped range).

Cases with sentence missing or indeterminable but SOR says AWithin Range@
$
No judgment and commitment order (“J&C”) received or page with
sentence is missing but SOR says AWithin Range.@
$
J&C says ATime Served@ and there is no presentence report (“PSR”) to
determine the exact amount of time served or PSR is unclear about amount
of time served but SOR says AWithin Range.@

Time Served Instances
$
Cases where time served is greater than the guideline range - all of the
sentence must be time already served (the rationale for this is that often an
offender is in custody for example 8 months prior to being sentenced and
then if their guideline range is 0-6 months then the judge is not
intentionally sentencing the offender above the guideline range so we call
these within range).
$
Cases where sentence is reported as Atime served@ on the J&C and the
amount of time served cannot be determined (usually when the PSR is
waived or missing). and the guideline range is 0-6 months (the rationale
for this is that even if we cannot determine the amount of time served the
B-8

offender is not actually required to serve any time since the range is 0-6 so
we say it is in range).
* Note that sentences with partial months are rounded (if fraction of a month is .5 or
higher than the sentence is rounded up - ex. If judge gives a time served sentence and the
PSR reports that the offender has been in custody 169 days the Commission codes this as
5 months and 19 days and this will be rounded up to 6 months). If the rounded sentence
is within range then the Commission considers this sentence within range (ex. In the
above example the sentence is rounded to 6 months and if the range was 6-12 months
then the sentence of 169 days would be considered within range).
Upward Departure from the Guideline Range
(BOOKER CATEGORY 1)
$

Cases which are marked as departures only [i.e. cannot also have any variance
information marked on the SOR] AND have ONLY a guideline reason limited to,
and affirmatively and specifically identified in the provisions, policy statements,
or commentary of the federal Guidelines Manual or multiple approved guideline
reasons
$
ex. Departure indicated on SOR and only reason is '5K2.8
$
ex. Departure indicated on SOR and reasons are '5K2.8 and Criminal
History Adequacy
$
See list of guideline reasons limited to, and affirmatively and specifically
identified in the provisions, policy statements, or commentary of the
federal Guidelines Manual, infra at p. B-18.

Note that the SOR must use the word Adeparture@ or Aadjustment@ for any outside
of the range sentence to be considered a departure.
Upward Departure with Booker/18 U.S.C. ' 3553
(BOOKER CATEGORY 2)

Cases which are marked as upward departures AND have ONLY an guideline
reason limited to, and affirmatively and specifically identified in the provisions,
policy statements, or commentary of the federal Guidelines Manual (or multiple
approved guideline reasons) AS WELL AS 1 or more reasons specifically (and
only) citing Booker-related language

Scenario 1: SOR only checks/indicates departure
$
ex. 2 reasons for departure: '5K2.8 (Extreme conduct) and Booker
$
ex. 1 reason for departure: '5K2.8 (Extreme conduct) and in the AReasons
for Departure@ section, the SOR says that the court applied the principals
of 18 U.S.C. ' 3553(a) in determining the offender=s sentence (the
rationale is that this example has 1 guideline departure reason limited to,
and affirmatively and specifically identified in the provisions, policy
B-9

statements, or commentary of the federal Guidelines Manual and since 18
U.S.C. ' 3553(a) is discussed also, it is coded as the 2nd departure reason
and since it is considered a Booker cite the case is now in the Aboth@
category)
$

Scenario 2: SOR indicates BOTH a departure and a variance
$
ex. Departure with 1 guideline reason (ex. '5K2.8) and variance with 1
Booker-related reason (ex. 18 U.S.C. ' 3553)
Note that the SOR must use the word Adeparture@ or Aadjustment@ for any
outside of the range sentence to be considered a departure. The
Commission considers all other phrasing (ex. AOutside the range@, AAbove
the Range@, AOutside the guideline system@, AVariance@, ADeviation@,
AExcursion@, etc.) as variances. If multiple terms are used (ex. The SOR
indicates it is departing for '5K2.8 and also says additionally the court is
giving a sentence outside the guideline system to protect the public from
future crimes of the offender), then the case is recorded as both a departure
and a variance.
See list of guideline reasons limited to, and affirmatively and specifically
identified in the provisions, policy statements, or commentary of the federal
Guidelines Manual and for list of Booker-related reasons, infra at p. B-18.
Above the Range with Booker/18 U.S.C. ' 3553
(BOOKER CATEGORY 3)

Variances/Outside Guideline System is specified on the SOR and only Bookerrelated reason(s) specified
$
SOR checks variance/outside system
$
Variance with 1 Booker-related reason (ex. 18 U.S.C. ' 3553)
$
Variance with multiple Booker-related reasons (ex. Deterrence and
Reasonableness)
$
Only a variance specified and no other reason provided.

Departure is not specified and neither is a variance but at least one reason
provided on the SOR for being outside the range is Booker-related
$
SOR says the sentence is Aoutside the guideline range@ and the reason is
AAdvisory nature of the guidelines@. Note that if the SOR does not
indicate if the sentence is above or below the range the coder makes that
determination based on logical criteria (i.e., if the sentence actually above
the range then it is coded as above the range and vice-versa).
All remaining Cases Above the Guideline Range
(BOOKER CATEGORY 4)
B-10

All other scenarios involving sentences outside of the guideline range not
previously described in one of the other above the range categories fall into this
category.
$
Cases with no reason provided for being outside of the range
$
SOR says ANo departure@ but the sentence is above the guideline
range
$
SOR says ADeparture@ but fails to provide any reason for the
departure. Note that this also includes cases that say AAs stated on
record@ or ASee Transcript/Exhibit@ and then fail to provide these
additional documents to the Commission for determination of
departure reason.
$
SOR does not specify a variance, however, indicates the sentence
is above the range but fails to provide any reason for why the
sentence is outside of the range. Note that this also includes cases
that say AAs stated on record@ or ASee Transcript/Exhibit@ and then
fail to provide these additional documents to the Commission.
$
Only a departure is specified and SOR cites 1 or more reasons which are
not guideline reasons limited to, and affirmatively and specifically
identified in the provisions, policy statements, or commentary of the
federal Guidelines Manual
$
ex. Only reason cited is Booker-related (ex. Reasonableness)
$
departure with guideline reason limited to, and affirmatively and
specifically identified in the provisions, policy statements, or
commentary of the federal Guidelines Manual (ex. '5K2.8) and
miscellaneous reason (ex. Lack of Remorse)
$
Both a departure and variance are specified on the SOR and 1 or more
departure reasons are not guideline reasons limited to, and affirmatively
and specifically identified in the provisions, policy statements, or
commentary of the federal Guidelines Manual or 1 or more variance
reasons are non-Booker-related reasons
$
ex. Departure specified with miscellaneous reason (ex. Defendant
exhibited no remorse for his actions) and variance specified with
Booker-related reason (ex. 18 U.S.C. ' 3553)
$
ex. Departure specified with guideline reason limited to, and
affirmatively and specifically identified in the provisions, policy
statements, or commentary of the federal Guidelines Manual (ex.
'5K2.8) and variance specified with non-Booker related reason
which may be guideline reason limited to, and affirmatively and
specifically identified in the provisions, policy statements, or
commentary of the federal Guidelines Manual or miscellaneous
reason (ex. Criminal History Under-represents Seriousness)
$
Only a variance specified and 1 or more non-Booker-related reasons are
provided on the SOR
$
ex. Variance specified and reason provided is an guideline reason
limited to, and affirmatively and specifically identified in the
B-11

provisions, policy statements, or commentary of the federal
Guidelines Manual (ex. '5K2.8 (Extreme Conduct))
$
ex. Variance specified with Booker-related reason (ex. Language
from 18 U.S.C. ' 3553a cited) and 1 guideline reason limited to,
and affirmatively and specifically identified in the provisions,
policy statements, or commentary of the federal Guidelines
Manual (ex. '5K2.8 (Extreme Conduct))
$
ex. Variance specified and 1 miscellaneous reason cited (not a
guideline reason limited to, and affirmatively and specifically
identified in the provisions, policy statements, or commentary of
the federal Guidelines Manual or Booker-related reason) (ex. “The
court varies because the defendant exhibited no remorse for his
actions.”)
Upward departures or variances that are marked as being initiated by the
government on the SOR
$
ex. Upward Departure or variance indicated on SOR due to plea
agreement entered into pursuant to Rule 11(c)(1)(C) of the Federal
Rules of Criminal Procedure.

B-12

'5K1.1 Substantial Assistance Departures
(BOOKER CATEGORY 5)
$

All departures or variances if '5K1.1 is one of the reasons listed
$
ex. Departure/variance is marked on SOR and only reason is '5K1.1
$
ex. Departure/variance is marked and one reason is '5K1.1 and another
reason is a guideline reason limited to, and affirmatively and specifically
identified in the provisions, policy statements, or commentary of the
federal Guidelines Manual (ex. Family Ties)
$
ex. Departure/variance is marked and one reason is '5K1.1 and 2nd reason
is another government sponsored reason (ex. '5K3.1/EDP)
$
ex. Departure is marked on SOR and only reason is '5K1.1 and a variance
is also marked with a Booker-related reason (ex. Reasonableness)
$
Departure is marked on SOR and only reason is '5K1.1 and a variance is
also marked with a miscellaneous reason (ex. AAs stated on Record@ and
no other explanation or explanatory documentation (ex. transcript) is
provided)
'5K3.1/Early Disposition Program
(BOOKER CATEGORY 6)

All departures or variances involving '5K3.1 even if another reason is present or
if a variance was also documented
$
ex. Departure/variance is marked on SOR and only reason is '5K3.1
$
ex. Departure/variance is marked and one reason is '5K3.1 and another
reason is a guideline reason limited to, and affirmatively and specifically
identified in the provisions, policy statements, or commentary of the
federal Guidelines Manual (ex. Family Ties)
$
ex. Departure/variance is marked and one reason is '5K3.1 and 2nd reason
is another government sponsored reason (ex. Binding Plea Agreement)
$
ex. Departure is marked on SOR and only reason is '5K3.1 and a variance
is also marked with a Booker-related reason (ex. Reasonableness)
$
Departure is marked on SOR and only reason is '5K3.1 and a variance is
also marked with a miscellaneous reason (ex. AAs stated on Record@ and
no other explanation or explanatory documentation (ex. transcript) is
provided)
Government Sponsored Below the Range
(BOOKER CATEGORY 7)

All government sponsored below range sentences even if another non-government
sponsored reason is also present or if a variance was also documented
$
ex. Departure/variance is marked on SOR and only reason is government
sponsored (ex. Binding Plea Agreement)
$
ex. Departure/variance is marked and one reason is government sponsored
B-13

$
$
$

(ex. Early Plea) and another reason is a guideline reason limited to, and
affirmatively and specifically identified in the provisions, policy
statements, or commentary of the federal Guidelines Manual (ex. Family
Ties)
ex. Departure/variance is marked and one reason is government sponsored
(ex. Savings to the Government) and 2nd reason is another government
sponsored reason (ex. Binding Plea Agreement)
ex. Departure is marked on SOR and only reason is government sponsored
(ex. Waiver of Indictment) and a variance is also marked with a Bookerrelated reason (ex. Reasonableness)
ex. Departure is marked on SOR and only reason is government sponsored
(ex. Waiver of Appeal) and a variance is also marked with a miscellaneous
reason (ex. AAs stated on Record@ and no other explanation or explanatory
documentation (ex. transcript) is provided)
ex. Departure or variance is marked, any reason is given, AND the SOR
indicates that the reason is based on a plea agreement or was a government
motion either via the check-boxes in Part V/VI, B on the AO245B (12/0306/05) forms or in writing on other SOR forms

See Table 25 of the Commission=s yearly Sourcebook of Federal Sentencing
Statistics for a complete list of government sponsored reasons. Note that districts
that specify AFast-Track@ without specifying the official EDP/'5K3.1 designation
on the SOR are included in this government sponsored category, not in the
EDP/'5K3.1 category.
Downward Departure from the Guideline Range
(BOOKER CATEGORY 8)

Cases which are marked as departures only [i.e. cannot also have any variance
information marked on the SOR] AND have ONLY a guideline reason limited to,
and affirmatively and specifically identified in the provisions, policy statements,
or commentary of the federal Guidelines Manual or multiple guideline reasons
limited to, and affirmatively and specifically identified in the provisions, policy
statements, or commentary of the federal Guidelines Manual
$
ex. Departure is marked on SOR and only reason is '5K2.13
$
ex. Departure is marked on SOR and reasons are Family Ties and
Aberrant Behavior
$
See list of guideline reasons limited to, and affirmatively and specifically
identified in the provisions, policy statements, or commentary of the
federal Guidelines Manual, infra at B-18.

Note that the SOR must use the word Adeparture@ or Aadjustment@ for any outside
of the range sentence to be considered a departure.

B-14

$
Downward Departure with Booker/18 U.S.C. ' 3553
(BOOKER CATEGORY 9)
$

Cases which are marked as a downward departure AND have ONLY a guideline
reason limited to, and affirmatively and specifically identified in the provisions,
policy statements, or commentary of the federal Guidelines Manual (or multiple
guideline reasons) AS WELL AS 1 or more reasons specifically (and only) citing
Booker-related reasons

Scenario 1: SOR only checks/indicates departure
$
ex. 2 reasons for departure: Family Ties and Booker
$
ex. 1 reason for departure: Aberrant Behavior and in the AReasons for
Departure@ section, the SOR says that the court applied the principals of
18 U.S.C. ' 3553(a) in determining the offender=s sentence (the rationale
is that this example has 1 guideline departure reason limited to, and
affirmatively and specifically identified in the provisions, policy
statements, or commentary of the federal Guidelines Manual and since 18
U.S.C. ' 3553(a) is discussed also, it is coded as the 2nd departure reason
and since it is considered a Booker cite the case is now in the Aboth@
category)

Scenario 2: SOR indicates BOTH a departure and a variance
$
ex. Departure with 1 guideline reason limited to, and affirmatively and
specifically identified in the provisions, policy statements, or commentary
of the federal Guidelines Manual (ex. Criminal History Adequacy) and
variance with 1 Booker-related reason (ex. 18 U.S.C. ' 3553)

Note that the SOR must use the word Adeparture@ or Aadjustment@ for any outside
of the range sentence to be considered a departure. The Commission considers all
other phrasing (ex. AOutside the range@, ABelow the Range@, AOutside the
guideline system@, AVariance@, ADeviation@, AExcursion@, etc.) as variances. If
multiple terms are used (ex. The SOR indicates it is departing for '5K2.13 and
also says additionally the court is giving a sentence outside the guideline system
to achieve just punishment), then the case is recorded as both a departure and a
variance.

See list of guideline reasons limited to, and affirmatively and specifically
identified in the provisions, policy statements, or commentary of the federal
Guidelines Manual and for list of Booker-related reasons, infra at B-21.

B-15

Below the Range with Booker/18 U.S.C. ' 3553
(BOOKER CATEGORY 10)
$

Variances/Outside Guideline System is specified on the SOR and only Bookerrelated reason(s) specified
$
SOR checks variance/outside system
$
Variance with 1 Booker-related reason (ex. 18 U.S.C. ' 3553)
$
Variance with multiple Booker-related reasons (ex. Rehabilitation
and Reasonableness)
$
Variance specified and no other reason provided.

Departure is not specified and neither is a variance but the reason provided on the
SOR for being out side the range is Booker-related
$
SOR says the sentence is Aoutside the guideline range@ and the reason is
AAdvisory nature of the guidelines@. Note that if the SOR does not
indicate if the sentence is above or below the range the coder makes that
determination based on logical criteria (i.e. if the sentence actually below
the range then it is coded as below the range and vice-versa).
$
All remaining Cases Below the Guideline Range
(BOOKER CATEGORY 11)

All other scenarios involving sentences below the guideline range not previously
described in one of the other below the range categories fall into this category.
$
Cases with no reason provided for being outside of the range
$
SOR says ANo departure@ but the sentence is below the guideline
range.
$
SOR says ADeparture@ but fails to provide any reason for the
departure. Note that this also includes cases that say AAs stated on
record@ or ASee Transcript/Exhibit@ and then fail to provide these
additional documents to the Commission for determination of
departure reason.
$
SOR does not specify a variance, however, indicates the sentence
is below the range but fails to provide any reason for why the
sentence is outside of the range. Note that this also includes cases
that say AAs stated on record@ or ASee Transcript/Exhibit@ and then
fail to provide these additional documents to the Commission.
$
Only a departure is specified and SOR cites 1 or more reasons which are
not guideline reasons limited to, and affirmatively and specifically
identified in the provisions, policy statements, or commentary of the
federal Guidelines Manual
$
ex. Only reason cited is Booker-related (ex. Reasonableness)
$
departure with guideline reason limited to, and affirmatively and
specifically identified in the provisions, policy statements, or
commentary of the federal Guidelines Manual (ex. Diminished
B-16

Capacity) and miscellaneous reason (ex. Lost job is punishment
enough)
Both a departure and variance are specified on the SOR and 1 or more
departure reasons are not guideline reasons limited to, and affirmatively
and specifically identified in the provisions, policy statements, or
commentary of the federal Guidelines Manual or 1 or more variance
reasons are non-Booker-related reasons
$
ex. Departure specified with miscellaneous reason (ex. Childhood
abuse) and variance specified with Booker-related reason (ex. 18
U.S.C. ' 3553)
$
ex. Departure specified with guideline reason limited to, and
affirmatively and specifically identified in the provisions, policy
statements, or commentary of the federal Guidelines Manual (ex.
Family Ties) and variance specified with non-Booker related
reason which may be guideline reason limited to, and affirmatively
and specifically identified in the provisions, policy statements, or
commentary of the federal Guidelines Manual (ex. Criminal
History Under-represents Seriousness) or miscellaneous reason
(ex. Childhood Abuse)
Variance specified and 1 or more non-Booker-related reasons are provided
on the SOR
$
ex. Variance specified and reason provided is a guideline reason
limited to, and affirmatively and specifically identified in the
provisions, policy statements, or commentary of the federal
Guidelines Manual (ex. “Court varies because of Family Ties”)
$
ex. Variance specified with -related reason (ex. Language from 18
U.S.C. ' 3553(a) cited) and 1 guideline reason limited to, and
affirmatively and specifically identified in the provisions, policy
statements, or commentary of the federal Guidelines Manual (ex.
Aberrant Behavior)
$
ex. Variance specified and 1 miscellaneous reason cited (not an
approved guideline reason or Booker-related reason) (ex. “Court
varies due to defendant=s positive background/good character”.)
Missing/Indeterminable
(NOT REPORTED IN ANY BOOKER CATEGORY)

Sentence is outside the guideline or statutory range in PSR and SOR is not
received

Class A Misdemeanors for which there were no analogous guidelines applied in
the PSR or SOR

Sentence is missing (J&C not received al all or sentence information missing from
J&C) and SOR does not specifically say sentence is AWithin Range@ (i.e. SOR is
B-17

not received or SOR is blank/unclear/does not indicate if sentence is within range)
$

No guideline range is determinable due to missing documents (ex. Both PSR and
SOR are not received).

Sentence is ATime Served@ and the amount of time served cannot be determined
(the PSR is not received or does not clearly delineate the amount of time served)
AND the sentencing range is greater than 0-6 months AND the SOR does not
indicate if the sentence is within/outside the guideline range.

Cases with logical criteria issues between the sentence and reported
departure/variance status (ex. cases where the sentence is below the range but the
SOR reports it as being an upward departure or variance).
Guideline Departure Reasons
(limited to, and affirmatively and specifically identified in the provisions,
policy statements, or commentary of the federal Guidelines Manual)

(10) '5G1.3 - Convictions on related counts
(11) '5H1.1 - Age
(12) '5H1.2 - Educational and vocational skills
(13) '5H1.3 - Mental and emotional conditions
(14) '5H1.4 - Physical condition
(15) '5H1.4 - Drug dependence and alcohol abuse
(16) '5H1.5 - Previous employment record
(17) '5H1.6 - Family ties and responsibilities
(18) '5H1.6 - Community ties
(22) '5K2.0 - Several persons injured
(23) '5K2.1 - Death
(24) '5K2.2 - Physical injury
(25) '5K2.3 - Extreme psychological injury
(26) '5K2.4 - Abduction or unlawful restraint
(27) '5K2.5 - Property damage or loss
(28) '5K2.6 - Weapons and dangerous instrumentalities
(29) '5K2.7 - Disruption of governmental function
(30) '5K2.8 - Extreme conduct
(31) '5K2.9 - Criminal purpose
(32) '5K2.10 - Victim=s conduct
(33) '5K2.11 - Lesser harm
(34) '5K2.12 - Coercion and duress
(35) '5K2.13 - Diminished capacity
(36) '5K2.14 - Public welfare
(41) '4A1.3 - Criminal history adequacy (Explain)
(42) '5K2.17 - High-capacity semiautomatic firearm
B-18

(43) '5K2.18 - Violent street gang
(44) '5K2.20 - Aberrant behavior
(45) '5K2.21 - Dismissed and uncharged conduct
(46) '5K2.22 - Age or health sex offenders
(47) '5K2.23 - Discharge terms of imprisonment
(100) '2A1.1 - Death not caused intentionally
(101) ''2A2.1, 2A2.2 - Degree of injury falls between two categories
(103) '2A3.2 - Criminal sex act for commercial purpose
(105) '2A6.1 - factors not incorporated into guideline
(106) '2B1.3 - Monetary value does not reflect extent of harm
(108) '2B3.1 - Intended to murder the victim
(110) '2C1.1 - Systematic or persuasive corruption of governmental function
(111) '2D1.1 - Unusually high drug purity
(112) '2D1.1 - Unusually high drug amount
(114) '2D1.5 - Sanctioned use of violence in enterprise
(118) '2F1.1 - Loss substantially exceeds maximum from loss table
(119) '2F1.1 - Dollar loss overstates seriousness of offense
(120) '2F1.1 - Fraudulent statements could be covered by more specific statute
(121) '2G1.1 - Offense did not involve profit nor physical force or coercion
(124) '2H2.1 - Corrupting a public official/bodily injury/property damage
(125) '2L1.1 - Large number of aliens
(126) '2L1.1 - Dangerous or inhumane treatment
(127) ''2L2.2, 2L2.4 - Deported on one or more prior occasions
(128) ''2M3.1, 2M3.7, 2M3.9 - Revelation causes little or no harm
(131) ''2M5.1, 2M5.2 - Extreme threat to national security
(132) ''2M5.1, 2M5.2 - Extreme volume of commerce involved
(134) ''2M5.1, 2M5.2 - Extreme number of multiple occurrences
(137) ''2N2.1, 2Q1.2 - Negligence involved
(139) ''2Q1.2, 2Q1.3 - Harm resulting from emission, release, or discharge
(140) ''2Q1.2, 2Q1.3 - Harm resulting from quantity and nature of substance or pollutant
(141) ''2Q1.2, 2Q1.3 - Harm resulting from duration of event
(142) ''2Q1.2, 2Q1.3 - Harm resulting from risk
(143) ''2Q1.2, 2Q1.3 - Nature of risk
(144) ''2Q1.2, 2Q1.3 - Number of people at risk
(145) ''2Q1.2, 2Q1.3 - Nature of contamination
(146) ''2Q1.2, 2Q1.3 - Similar conduct by civil adjudication
(147) ''2Q1.2, 2Q1.3 - Failure to comply with administrative order
(148) '2T1.6 - Tax evasion and embezzlement
(151) '§2T3.1, 2T3.2 - Importation of drugs, obscene matter, firearms, pelts of
endangered species
(152) '2T3.1 - Duties may not adequately reflect harm
(200) '3A1.2 - Exceptionally high level victim
(201) '3C1.1 - Further obstruction of justice
(250) '3D1.4 - Offenses significantly more than 5 units
B-19

(300) '4A1.3 - Pattern of conduct
(302) '4A1.3 - Related cases
(304) General adequacy of criminal history; does not reflect seriousness of criminal
history
(305) '4A1.3 - Outside applicable time period, but similar misconduct
(306) '4A1.3 - Outside applicable time period, but substantial portion of income
(307) '4A1.3 - Significance or similarity of past conduct
(309) Criminal history category over-represents defendant=s involvement
(703) '5K2.0 - General aggravating or mitigating circumstances
(711) '5G1.3
(721) '5H1.11 - Military record/charitable service/good works
(801) '8C4.2 - Risk of death or bodily injury
(825) '5K2.16 - Voluntary disclosure
$

Additionally, the SAS code looks through the text fields associated with the
AOther@ codes for the following terms: "2B1", "2G2", "5C1", and "5H1".

B-20

Booker-related Reasons
(1) Nature and circumstance of offense and history and characteristics of defendant
pursuant to 18 U.S.C. ' 3553(a)(1)
(2) Reflect the seriousness of the offense, to promote respect for the law and just
punishment
(3) Afford adequate deterrence to criminal conduct
(4) Protect the public from further crimes of the defendant
(5) Provide the defendant with education or vocational training, medical care, or other
(6) Avoid unwarranted sentencing disparities among defendants
(7) Provide restitution to any victims of the offense
(654) Adequate punishment to meet the purposes of sentencing
(655) Deterrence
(657) Reduce disparity
(662) Put sentence in line with co-defendants (i.e. reduce disparity among co-defendants)
(676) Rehabilitation
(678) Incapacitation
(712) Advisory nature of the guidelines
(713) Judge specifies presence of variance/deviation
(714) DOES NOT EXIST IN ORACLE AT THIS TIME
(750) Reasonableness
(760) US v Booker/ US v Fanfan
(761) 18 U.S.C. ' 3553(a)
(762) Language from the 18 U.S.C. ' 3553(a) statute text
$
Additionally, the SAS code looks through the text fields associated with the
AOther@ codes for the following terms: "BOOKER", "REASONABLE",
"ADVISORY", "3553", and "DISCRETIONARY" and assigns these reasons as
Booker-related reasons.
$
If the SAS code finds "3553E" then it does not assign the text as a Booker-related
reason.

B-21

DETAILS OF THE MULTIVARIATE ANALYSES
1.

Data used for the analyses

The Commission analyzed three populations for the multivariate regression
analyses. The first population is comprised of 34,758 cases (14,446 drug cases sentenced
under §2D1.1 and 20,312 non-drug cases). These cases were sentenced between October
1, 2002 (the beginning of fiscal year 2003) and April 30, 2003 (the date of the enactment
of the Protect Act). This population will be referred to as “pre-PROTECT Act.”
The second, the post- PROTECT Act population, is comprised of 68,376 cases
(27,402 drug cases and 40,974 non-drug) sentenced between May 1, 2003 (the day after
the enactment of the Protect Act) and June 24, 2004 (the date of the Blakely decision).369
The final population is comprised of 67,654 cases (22,855 drug cases and 35,839
non-drug) sentenced between January 12, 2005 (the date of the Booker decision) and
January 11, 2006 (one year after the Booker decision). This population will be referred to
as “post-Booker.”
2.

Variables used for the analyses

The multiple regression analysis attempts to statistically control for certain factors
in order to measure the effect of others. Models involving the length of the sentence
imposed use the logarithm of the sentence imposed,370 including any alternative
confinement imposed.371 The decision to treat alternative confinement the same as
imprisonment is based on the fact that the guideline sentencing Table is a “confinement
Table” as opposed to an “imprisonment Table.” Offenders sentenced in Zones A, B, and
C may have their sentences satisfied under the guidelines with sentences of probation,
imprisonment, alternatives or a combination of imprisonment or alternatives. Thus,
models that simply use the prison sentence imposed may underestimate the length of the
confinement imposed and make some sentences appear out of range by not accounting
for relevant alternatives.

369

As discussed in earlier chapters, Blakely caused some confusion in the federal sentencing community
that resulted in inconsistent guideline application and sentencing. Because of these inconsistencies, data
collected during that period is incompatible with the rest of the fiscal year.
370
As suggested in literature. See Spohn, Cassia, Sentencing Decisions in Three U.S. District Courts:
Testing the Assumption of Uniformity in the Federal Sentencing Process. (Paper presented at the 2004
Annual Meeting of the American Society of Criminology in Nashville, TN) (2004).
371
Sentences of zero months were assigned a sentence of .01 months (the logarithm of zero is not
mathematically possible).

B-22

The “presumptive sentence” model372 includes several major assumptions and
decision points. One of the major decisions in this model is where to set the
“presumptive sentence.” When dealing with federal sentencing data, the assumption in
the “presumptive sentence” model is that courts use the bottom of the sentencing range as
the “starting point” when determining the final sentence. This assumption is based on
historical Commission data.373 All statutory and mandatory minimums are taken into
account when calculating the presumptive sentence.
The independent (or predictor) variables used in these models may be classified
into guideline relevant (or case characteristics) and demographic factors. The guideline
relevant characteristics included in the models were: the logarithm of the guideline
minimum (including any statutory minimums), the type of offense (violent, sexual, drug,
immigration, white collar, and “other”374), whether the offender received a safety valve
adjustment, the number of criminal history points, whether the offender was convicted of
an 18 U.S.C. § 924(c) offense, whether the offender received a specific offense
characteristic (SOC) enhancement for use of a weapon, departure status (upward,
downward - government initiated, downward - court initiated, §5K1.1 substantial
assistance departure, or none), whether the offender went to trial, whether the offender
had a mandatory minimum sentence, whether the Career Offender375 enhancement
applied, whether the Armed Career Criminal376 enhancement applied, and role in the
offense (mitigating role, aggravating role or none). Analyses involving only drug cases
included controls for the type of drug involved in the case (cocaine, crack, heroin,
marijuana, methamphetamine, and other).
Most guideline relevant factors are also incorporated in the calculation of the
guideline minimum, the exceptions are the departure status, and whether the offender
went to trial.377 Inclusion of these factors in the model with presumptive sentence allows
a measure of their weight in determining the sentence beyond the weight they are given
in the guidelines. For example, consider two offenders with a guideline minimum of 63
months, but one has a weapon involved in his offense and the other receives a mitigating
372

A discussion of the “presumptive sentence model” may be found in Paul J. Hofer and Kevin R.
Blackwell What Are We Learning from Multiple Regression Studies of Federal Sentencing Decisions
(Paper presented at the American Society of Criminology Meeting, Atlanta, GA) (2002). Available from
the authors; Rodney L. Engen and Randy R. Gainey. Modeling the Effects of Legally Relevant and
Extralegal Factors Under Sentencing Guidelines: The Rules Have Changed, CRIMINOLOGY 38(4): 1207
(2000).
373 4
In the “Post-Booker" population, 57.1 percent of the cases that were sentenced within the guideline
range were sentenced at the bottom of the range. For the “Post-Protect Act" cases, 58.3 percent were
sentenced at the bottom of the range.
374
The type of offenses were classified by the guideline that controlled the guideline calculation. Details as
to how each guideline was classified are included in Appendix C.
375
See Guideline Manual, §4B1.1.
376
See Guideline Manual, §4B1.4.
377
An argument may be made that the “acceptance of responsibility” adjustment may be a proxy for going
to trial. In the Post-Booker time period, 96.9 percent of those who pled received an acceptance of
responsibility adjustment, and conversely 94.3 percent of those who went to trial did not receive this
adjustment.

B-23

role adjustment. It would not be surprising if the offender with a weapon received a
higher sentence even though the presumptive sentences and guideline ranges for both
offenders are the same. Judges may weigh the presence of a weapon or a mitigating role
somewhat differently than the guidelines. By including these factors in the model, a
sense of the importance the court places in these factors in the final determination of the
sentence may be inferred.
Demographic variables include; race of the offender (White, Black, Hispanic, or
Other), whether the offender was over 25 years of age, whether the offender attended
college, gender of the offender, and whether the offender was a non-United States citizen.
The discrete decision analyses used several outcome (or dependent) variables
depending on the analysis. The “departure decision” analyses involved the use of the
different types of departure: upward, downward - government initiated, downward - court
initiated and substantial assistance departure. The post-Booker analysis also modeled the
decision of the court as to whether a “variance” was used or a “guidelines based
departure” was used. Analysis of the decision whether to imprison or not (the “in/out”
decision”) used a dichotomous variable with two categories: 1) whether the offender was
sentenced to a prison term or 2) sentenced to an alternative or straight probation. 378
3.

Methodologies and results

The sentence length analyses were performed using ordinal least squares (OLS)
analysis.
Statistical significance was determined at p < 0.01. The variables used in the analysis
were as follows:
Length of sentence imposed: The independent variable for these analyses used the
sentence imposed, including all alternative confinement included. This logarithm of this
variable was used, with all sentences of zero months given the value of 0.01 months as
the logarithm of zero is not mathematically possible. Life sentences were given the value
of 470 months, and all values greater than 470 were given a value of 470 months. The
variable used from the data files was SENSPLT0.
The independent variables were:
Guideline minimum: The minimum sentence in months, without the use of a departure,
the offender was subject to, taking into account all guideline, statutory and mandatory
minimums. The logarithm of this variable was used, with all minimums of zero months

378

The independent variables for these analyses were identical to the ones used in the sentence length
models except that the guideline minimum in months was used (not the logarithm), for the “in/out”
decision, the zone the offender’s sentencing range was under was added, and for the departure decision,
departure status was not included as an independent variable.

B-24

given the value of 0.1 months as the logarithm of zero is not mathematically possible.
Minimums of life in prison were recoded as 470 months. The variable GLMIN was used.
Violent offense: Offenders whose guideline sentence was controlled by the following
guidelines were considered violent offenders: Chapter Two Part K offenders (“Offenses
involving Public Safety”), §§2A1.1-2A1.5, 2A2.1-2A2.4, 2A4.1-2A4.2, 2A5.1-2A5.3,
2A6.1, 2A6.2, 2E1.3, 2E1.4, 2E2.1, 2B3.1, 2B3.2, and 2B3.3. The variable used from the
data file for this and all other variables involving offense type was GDLINEHI.
Sexual offense: Offenders whose guideline sentence was controlled by the following
guidelines: §§2A3.1-2A3.4, 2G1.1-2G1.3, and 2G2.1-2G2.5.
Drug trafficking offense: Offenders whose guideline sentence was controlled by the
following guidelines: §§2D1.1, 2D1.2, 2D1.3, 2D1.11, and 2D1.12.
Other drug offenses: Offenders whose guideline sentence was controlled by the following
guidelines: §§2D1.5-2D1.10, 2D2.1-2D2.3, 2D3.1, and 2D3.2.
White collar offenses: Offenders whose guideline sentence was controlled by the
following guidelines: §§2B1.1, 2B1.6, 2B4.1, 2B5.1, 2B5.3, 2F1.1, 2F1.2, 2R1.1,
Chapter Two Part S offenses (“Money Laundering and Monetary Transaction
Reporting”) and Chapter Two Part T offenses (“Offenses Involving Taxation”).
Immigration offenses: Offenders whose guideline sentence was controlled by offenses in
Chapter Two Part L (“Offenses Involving Immigration, Naturalization and Passports”).
Other type offenses: Offenders whose guideline sentence was controlled by offenses not
in the violent, sexual, drug trafficking, other drug offenses, white collar offenses, and
immigration offenses.
Criminal History Points: The number of criminal history points assigned to the offender.
The variable used from the data file was SORCHPT.
Conviction for 18 U.S.C. § 924(c): Conviction by the court under this statute carries a
consecutive mandatory minimum. The variable from the data file is IS924C.
Weapon enhancement: The application of an enhancement for use or possession of a
weapon during the offense. The variable from the date files is WEAPSOC.
Mandatory minimum application: If the statutory minimum for the offense was greater
than zero, a mandatory minimum applies in the case. The variable STATMIN was used
Career offender applied: Whether the offender was subject to the enhanced criminal
history level and offense level under §4B1.1. The variable CAROFFAP was used.
B-25

Armed career criminal application: Whether the offender was subject to the enhanced
criminal history level and offense level under §4B1.4. The variable ACCAP was used.
Departure status: Post-Booker the variable from the data file used was BookerCAT3 and
pre-Booker the variables were DEPART AND DEPART_D. Some recoding was done
for post-Booker variables. Upward departures were coded yes if the values were “upward
departure - guideline reason,” “upward departure - guideline and 18 U.S.C. § 3553 (3553)
reason,” “above range with Booker and 3553 reason,” and “other above range.”
Downward - court initiated were coded yes if the values were “downward departure guideline reason,” downward departure - guideline and 3553 reason,” “below range with
Booker and 3553 reason,” and “other below range.” “Variances” were values of “below
range with Booker and 3553 reason,” and “other below range.” Finally, government
initiated downward departures were yes for “early disposition/§5K3.1" and “government
sponsored - below range.” In the post-Protect Act population, there are 265 cases that
were sentenced below the guideline minimum and were not classified as downward
departures because the documentation stated that these cases were sentenced “within
range.” It was decided to re-code these cases as “downward departure - court initiated.”
In the post-Booker population, these cases were already considered as “downward
variances.” Also, in the same population, there were an additional 371 cases whose
documentation listed the case as “within range” and yet were sentenced above the
guideline maximum. These cases were re-coded to be “upward departures.”
Safety valve: The application of safety valve under §5C1.2 (Limitation of Applicability
of Statutory Minimum Sentences in Certain Cases). The variable SAFETY was used.
Trial: The variable NEWCNVTN was used.
Mitigating role: Court determination that the offender had a minor or minimal role in the
offense according to §3B1.2 in the guidelines manual. The variable MITROLHI was
used.
Aggravating role: Court determination that the offender had an aggravating role in the
offense according to §3B1.1 in the guidelines manual. The variable AGGROLHI was
used.
Race of offender: The variable NEWRACE was used.
Age of offender: This was recoded as a dichotomous variable, separated those who were
25 years of age and younger from those older than 25 years of age. The variable AGE
was used.
Educational attainment: This was recoded into those offenders who attended college for
any period of time and those who never attended college. The variable EDUCATN was
used.
B-26

Male: The variable MONSEX was used.
Citizenship: The variable NEWCIT was used.
There were also analysis on non-drug and drug cases separately. The non-drug
population was analyzed with the same variables as the overall model. The drug
population was analyzed with the same variables, with the exception that offense type
was not controlled for, but rather the type of drug involved in the offense was.
Type of drug: The major type of drug which controlled the guideline sentence was used.
This is important when multiple drugs were involved in the case. The categories used
were cocaine, crack, heroin, marijuana, methamphetamine, and “other” drugs. The
variable COMBDRG2 was used.
The model was a “restricted” model. The parameter estimate of the log of the guideline
minimum was set to have a value of 1.0. This was done so that the true measure of the
effects that go into the calculation of the guideline minimum could be measured. The
value of this variable without the restriction was always close to one (a typical value was
.99998).
The results of this analysis were then transformed into percent of the sentence affected by
the variable. Table C-1 shows the result of all the models for selected variables. Here is
an example of a printout using this model:

B-27

Regression model
Booker
The REG Procedure
Model: MODEL1
Dependent Variable: logsplit
NOTE: Restrictions have been applied to parameter estimates.

Analysis of Variance

F Value

3459.60

Source
Pr > F

Sum of
Squares

Mean
Square

Model
<.0001
Error
Corrected Total

200729

7434.39525

58492
58519

125695
326423

2.14892

Root MSE

1.46592

R-Square

Dependent Mean

2.91494

Adj R-Sq

0.6149
0.6148
Coeff Var

50.28988

Parameter Estimates
Parameter

Standard

Standardized
Variable
DF
> |t|
Estimate

Estimate

Error

t Value

Intercept

0.20217

0.02994

6.75

1.00000

Infty

-0.11441

0.02350

-4.87

-0.18311

0.04330

-4.23

0.84297

0.06711

12.56

0.33534

0.02607

12.86

-0.18464

0.03625

-5.09

-0.10210

0.02409

-4.24

-0.00568

0.00130

-4.36

<.0001
<.0001
<.0001
<.0001
<.0001
<.0001
<.0001
<.0001
<.0001

1
0
logmin
1
1.01322
violent
1
-0.01761
sexual
1
-0.01191
drug
1
0.03327
immigration
1
0.05888
othtype
1
-0.01482
whitecoll
1
-0.01631
sorchpt
1
-0.01334

B-28

is924c
1
-0.00009129
weapsoc
1
0.2989
0.00279
valve
1
<.0001
-0.01821
accap
1
0.0387
0.00571
caroffap
1
<.0001
0.02057
upward
1
<.0001
0.04660
downgovt
1
<.0001
-0.14485
downcourt
1
<.0001
-0.18964
subasst
1
<.0001
-0.25359
mandmin
1
<.0001
0.02414
newcnvtn
1
0.2190
-0.00327
mitigate
1
<.0001
-0.02541
aggravate
1
0.2254
0.00321
black
1
0.0054
0.00878
hisp
1
0.2625
-0.00455
other
1
0.0008
0.00914
agedummy
1
<.0001
-0.02020
educ
1
0.0036
-0.00821
male
1
<.0001
0.02156
newcit
1
<.0001
0.06101
RESTRICT
-1
<.0001*
.

-0.00114

0.03470

-0.03

0.02733

0.02631

1.04

-0.12634

0.02310

-5.47

0.13662

0.06610

2.07

0.26763

0.03588

7.46

0.86295

0.04798

17.99

-1.15026

0.02215

-51.94

-1.32362

0.01856

-71.32

-1.65665

0.01820

-91.00

0.12396

0.01982

6.25

-0.03380

0.02750

-1.23

-0.20673

0.02290

-9.03

0.03490

0.02879

1.21

0.04764

0.01714

2.78

-0.02193

0.01957

-1.12

0.10254

0.03052

3.36

-0.11866

0.01555

-7.63

-0.04746

0.01631

-2.91

0.14974

0.01892

7.92

0.30543

0.01923

15.88

-60238

636.09510

-94.70

0.9738

* Probability computed using beta
distribution.

B-29

Table B-1
SENTENCE LENGTH MODELS
GUIDELINE RELEVANT CHARACTERISTICS
Post-PROTECT Act and Post-Booker
Post-Booker

Variable

Post-PROTECT ACT

All controls

Drug cases

Non-drug cases

All controls

Drug cases

Non-drug cases

PERCENT DIFF

Offense Type (reference category = Drug Trafficking offenses)16
Violent

-10.8

-9.5

Sexual

-16.7

-20.5

-14.3

Other Drug

132.3

REFERENCE

367.7

REFERENCE

-64.9

REFERENCE

-81.2

Immigration

39.8

42.0

43.0

43.9

White Collar

-9.7

-16.9

REFERENCE

-12.4

REFERENCE

Drug Trafficking

Other Type

Criminal History
Criminal History Points

-0.6

1.3

-1.4

-1.5

0.6

-2.5

Career Offender application

30.7

51.4

30.4

45.6

34.5

40.5

Armed Career Criminal

Departure Status (reference category = No departure)
Upward

137.0

193.8

251.2

383.8

804.3

270.3

Down - Government

-68.3

-44.6

-74.4

-66.8

-51.2

-71.7

Substantial Assistance

-80.9

-67.2

-90.4

-79.9

-65.6

-90.1

Down - Court

-73.4

-48.2

-81.7

-73.0

-52.6

-80.0

Role in the offense (No role in the offense)
Mitigating role
Aggravating role

-18.7

-14.6

-27.3

-15.1

-12.8

-14.8

Case Characteristics
Trial (Plea)

-10.6

-11.5

18 U.S.C. § 924(c) conviction

Weapon SOC

13.2

12.4

6.0

-11.9

-17.8

-9.1

Mandatory Minimum applied
Safety valve

The reference group for the “Non-drug model” are the “other offenses.”
B-30

Table B-1 (cont.)
SENTENCE LENGTH MODELS
DRUG TYPE AND DEMOGRAPHIC CHARACTERISTICS
Post-PROTECT Act and Post-Booker

Post-Booker

Variable

Post-PROTECT ACT

All controls

Drug cases

Non-drug cases

All controls

Drug cases

Non-drug cases

PERCENT
DIFF

Drug Type (reference category = Marijuana)
Cocaine

-13.4

Crack

-12.7

Heroin

-16.9

Methamphetamine

9.5

Other drugs

12.4

-25.5

Race of offender (Reference category = White offender)
Black

4.9

9.2

10.3

Hispanic

9.3

13.3

-7.9

10.8

14.6

Other

Other Demographic Characteristics
Over 25 years of age

-11.2

-15.3

-10.9

-4.1

-14.6

College attendance

-4.6

-8.4

-6.6

-7.7

Male (Female)

16.2

29.9

11.0

17.0

28.6

12.2

Non-citizen (U.S. Citizen)

35.7

8.3

70.0

33.9

16.0

61.3

B-31

The decision to depart used many of the same variables as in the OLS analysis. A
“logistic regression” was used to analyze these data. The dependent variable was the
type of departure that was being studies (upward, downward - government initiated,
downward - court initiated, and substantial assistance). The post-Booker population was
also analyzed by separating out “variance” and guideline based downward departures
from the downward departure - court initiated category. The guideline minimum was
used for this analysis, and the value was not transformed via logarithms (and values of
zero were kept as such).
Finally, there are cases in which the statutory minimum and the guideline
minimum are above zero months and they are equal. Unless the offender has been
granted a departure for substantial assistance or given a “Safety valve” in a drug case, the
court is unable to give a downward departure in the case as they are restricted by the
statutory minimum. These cases were excluded from the analyses. The same logic is
used in excluding cases in the upward departure analyses of the statutory maximum and
the guideline maximum are equal.
An example of the output from one of these logistic regression analyses follows:
Table C-2 gives a synopsis of the information obtained from these analyses:

B-32

Down - Court
Overall - 2005
The LOGISTIC Procedure
Model Information
Data Set
WORK.DEPARTBooker
Response Variable
Number of Response Levels
Number of Observations
Model
Optimization Technique

downcourt
2
55952
binary logit
Fisher's

scoring

Response Profile
Ordered
Value
1
2

downcourt

Total
Frequency

1
0

7711
48241

Probability modeled is downcourt=1.
NOTE: 168 observations were deleted due to missing values for the
response or explanatory variables.

Model Convergence Status
Convergence criterion (GCONV=1E-8)
satisfied.

Model Fit Statistics

Criterion

Intercept
Only

Intercept
and
Covariates

AIC
SC
-2 Log L

44872.857
44881.789
44870.857

43891.721
44115.027
43841.721

Down - Court
Overall - 2005
The LOGISTIC Procedure
Testing Global Null Hypothesis: BETA=0
Test

Chi-Square

ChiSq

B-33

Pr >

Likelihood

Ratio

1029.1364

<.0001
Score

1099.2309

Wald

1040.6394

<.0001
<.0001
Analysis of Maximum Likelihood Estimates

Parameter

Estimate

Standard
Error

Wald
Chi-Square

Intercept

-1.6999

0.0761

498.8788

glmin

0.00296

0.000252

137.6426

violent

0.1473

0.0710

4.3039

sexual

0.2250

0.0968

5.4046

drugtraff

0.0517

0.0723

0.5115

immigration

-0.0497

0.0753

0.4361

drug

-0.9181

0.1965

21.8383

whitecoll

0.1337

0.0681

3.8560

sorchpt

-0.0283

0.00291

94.9416

is924c

-0.2359

0.0738

10.2089

weapsoc

-0.1413

0.0541

6.8298

valve

-0.0438

0.0487

0.8100

accap

0.1456

0.1407

1.0707

caroffap

0.3689

0.0674

29.9799

mandmin

-0.2369

0.0446

28.1849

newcnvtn

0.5682

0.0479

140.6541

mitigate

0.1387

0.0464

8.9536

aggravate

-0.2825

0.0594

22.5972

black

-0.1289

0.0336

14.7441

hisp

-0.2564

0.0397

41.7453

other

-0.0856

0.0586

2.1335

agedummy

0.0466

0.0327

2.0255

Pr > ChiSq

<.0001
<.0001
0.0380
0.0201
0.4745
0.5090
<.0001
0.0496
<.0001
0.0014
0.0090
0.3681
0.3008
<.0001
<.0001
<.0001
0.0028
<.0001
0.0001
<.0001
0.1441
0.1547

B-34

educ

0.1581

0.0313

25.5151

male

-0.1655

0.0362

20.8655

newcit

-0.1116

0.0401

7.7518

<.0001
<.0001
0.0054

Odds Ratio Estimates
Point
Estimate

Effect

95% Wald
Confidence

Limits
glmin

1.003

1.002

violent

1.159

1.008

sexual

1.252

1.036

drugtraff

1.053

0.914

immigration

0.951

0.821

drug

0.399

0.272

whitecoll

1.143

1.000

sorchpt

0.972

0.967

is924c

0.790

0.683

weapsoc

0.868

0.781

valve

0.957

0.870

accap

1.157

0.878

caroffap

1.446

1.267

mandmin

0.789

0.723

newcnvtn

1.765

1.607

mitigate

1.149

1.049

aggravate

0.754

0.671

black

0.879

0.823

hisp

0.774

0.716

other

0.918

0.818

agedummy

1.048

0.983

1.003
1.332
1.514
1.213
1.103
0.587
1.306
0.978
0.913
0.965
1.053
1.524
1.650
0.861
1.939
1.258
0.847
0.939
0.836
1.030
1.117

B-35

educ

1.171

1.102

male

0.847

0.789

newcit

0.894

0.827

1.245
0.910
0.968
Association of Predicted Probabilities and Observed
Responses
Percent Concordant

60.3

Somers' D

Percent Discordant

38.3

Gamma

1.4

Tau-a

0.220
0.223
Percent Tied
0.052
Pairs

371986351

0.610

B-36

Table B-2
DEPARTURE DECISION

Post-Booker
Variances and Departures Grouped

Variable

Separated - Court

Court

Government

§5K1.1

Upward

Variance

Departure

ODDS RATIO

Offense Type (reference category = Other offenses)
Violent

-1.431

-1.645

1.618

Sexual

-9.434

5.596

Drug Trafficking

-2.506

-10.752

-2.398

2.462

-2.024

-5.917

Immigration

3.106

-3.597

White Collar

-1.656

Other Drug

Role in the offense (No role in the offense)
Mitigating role
Aggravating role

1.149

1.619

1.452

-3.731

1.253

-1.326

-1.389

1.202

-1.244

-1.553

Case Characteristics
Guideline Minimum

1.003

1.005

1.007

-1.006

1.003

1.793

-1.143

-2.012

-1.267

-3.236

1.893

-1.595

1.765

-8.621

-83.333

2.860

1.797

1.378

18 U.S.C. § 924(c) conviction

-1.266

-1.658

2.355

-1.272

Weapon SOC

-1.152

-1.435

-1.160

2.021

Safety valve
Mandatory Minimum applied
Trial (Plea)

Criminal History
Criminal History Points

-1.029

1.021

-1.038

1.073

-1.037

Career Offender applied

1.446

-1.406

1.273

1.853

Armed Career Criminal

Race of offender (Reference category = White offender)
Black

-1.138

-1.595

-1.294

-1.110

Hispanic

-1.292

1.802

-1.890

-1.284

-1.250

1.430

Other

Other Demographic Characteristics
Over 25 years of age

-1.195

1.131

1.171

-1.206

1.255

1.217

Male (Female)

-1.181

-1.305

-1.437

Non-citizen (U.S. Citizen)

-1.118

1.761

-1.451

-1.166

College attendance

B-37

Table B-2 (cont.)
DEPARTURE DECISION
Post-PROTECT Act

Variable

Court

Government

5K1.1

Upward

ODDS RATIO

Offense Type (reference category = Other offenses)
Violent

-1.613

Sexual

-7.752

2.585

Drug Trafficking

1.612

1.176

-4.504

-3.379

-5.848

-2.778

5.072

Immigration

5.864

-3.096

-3.058

White Collar

-1.211

1.815

1.738

-1.418

1.002

1.005

1.007

-1.292

1.787

-2.024

-3.125

1.612

1.209

-14.084

-47.619

2.406

18 U.S.C. §924(c) conviction

-1.350

-1.631

2.725

Weapon SOC

-1.337

-1.426

1.545

Other Drug

Role in the offense (No role in the offense)
Mitigating role
Aggravating role

Case Characteristics
Guideline Minimum
Safety valve
Mandatory Minimum applied
Trial (Plea)

Criminal History
Criminal History Points

-1.043

1.037

Career Offender applied

-1.767

-1.245

Armed Career Criminal

3.957

Race of offender (Reference category = White offender)
Black

-1.300

-2.150

-1.353

Hispanic

-1.161

1.903

-1.730

-1.179

1.622

Other

Other Demographic Characteristics
Over 25 years of age

1.110

1.127

College attendance

1.188

-1.203

1.265

-1.357

1.250

-1.346

1.181

-1.637

1.424

Male (Female)
Non-citizen (U.S. Citizen)

B-38

Finally, the question of whether the decision to imprison has been affected by the
Booker decision. The same variables and techniques that were used in the departure
decision were used. The dependent variable for this case was the variable that represents
whether the offender went to prison or not (PRISDUM). Also, a variable was added that
controlled for the zone the offender’s sentencing range fell within. The guideline manual
gives instructions as to the types of sentences and alternatives that are available to the
court depending on the zone the offender falls within (see §5C1.1). For example,
offenders in Zone D are not to receive alternative sentences or probation without a
downward departure. This may affect the decision to imprison and thus was controlled
for.

B-39

APPENDIX C

Appendix C
SUMMARY OF THE PUBLIC HEARING TESTIMONY
The witnesses at the Commission’s 2005 public hearing from the Judiciary
included the Honorable Thomas F. Hogan, the Chief Judge of the United States District
Court for the District of Columbia and a member of the United States Judicial Conference
Executive Committee; the Honorable Lawrence Piersol, Chief Judge of the District of
South Dakota and President of the Federal Judges Association; the Honorable Paul G.
Cassell, United States District Judge for the District of Utah; the Honorable Lynn S.
Adelman, United States District Judge for the Eastern District of Wisconsin; and the
Honorable Richard P. Kopf, United States District Judge for the District of Nebraska.
The representatives of the advocacy groups included Mary Price, General Counsel
for Families against Mandatory Minimums, and Collene Thompson Campbell from
Memory of Victims Everywhere. Professors Paul Rosenzweig and Douglas Berman
presented the academic viewpoint. The next panel included participants from groups
studying the impact of Booker on the federal sentencing system: Bruce Fein, Esq., Bruce
Fein & Associates Professor Steven Saltzburg, a representative of the American Bar
Association, and Daniel Collins, a former Department of Justice attorney. Jon Sands, the
Federal Public Defender for the District of Arizona and chair of the Federal Defender
Sentencing Guidelines Committee, Carmen Hernandez, second vice-president for the
National Association of Criminal Defense Lawyers, and Amy Baron-Evans, co-chair of
the Commission’s Practitioners Advisory Group, testified for the defense bar. Robert
McCampbell, the United States Attorney for the Western District of Oklahoma and chair
of the Attorney General Advisory Subcommittee on Sentencing presented the view from
law enforcement. The witnesses testified about the topics listed in the headings below.
1.

What changes, if any, to the federal statutes, federal sentencing guidelines, or
the Federal Rules of Criminal Procedure are needed to clarify sentencing
procedures and standards in the wake of the Booker decision?

Almost all of the witnesses who addressed this question in their testimony
concurred that there was no compelling need for any legislative changes, at least in the
short term, in the wake of Booker. “[T]here is no need to rush in to fix federal
sentencing. While the current advisory guideline system is not ideal, it’s eminently
workable in this interim period. As you undertake the job of recommending to Congress
what sentencing ought to look like, you can do so secure in the competence of the courts
to impose and to review sentences.”379
One witness opined that “the advisory guidelines system created by the Supreme
Court is a fully functioning system. By this I mean that the Court’s conversion of a
379

USSC February 2005 Public Hearing (Testimony of Mary Price, General Counsel, Families Against
Mandatory Minimums) at 70, http://www.ussc.gov/hearings/02_15_05/Transcript_15th.pdf.

C-1

mandatory sentencing guidelines system into an advisory one does not somehow render
the new system incomplete.”380
Even though the decision, and its predecessor in Blakely
leave many important questions unanswered – not the least of
which is how an appellate standard of “reasonableness” is to be
interpreted and enforced – the Court’s advisory-guidelines remedy
is ready to wear, even though some ongoing alterations will be
necessary to make it fit comfortable. Moreover, Congress’
potential objection to the content of the system or the manner in
which it was created does not mean that the system itself is nonoperational. Early calls from some quarters of Capitol Hill and
elsewhere in Washington for an immediate legislative response
that would reinstate a mandatory guideline system appear to be
unwarranted by practical need…
Rash action could be unfortunate and unnecessary and I
join in the many voices that have urged Congress to take time to
study the system that the Court has created in Booker. The best
way to do this, of course, is to allow the United States Sentencing
Commission to continue its historical mandate of study and
assessment, already embraced in the post-Booker era, to determine
how the federal courts are applying the new rule.381

The representatives of the defense bar offered no proposed legislative changes to clarify
sentencing procedures and standards.382 The American Bar Association suggested no
proposed changes.383 Members of the judiciary likewise concurred that the system
created by the Booker decision could work without any legislative intervention.384
380

USSC February 2005 Public Hearing (Written Testimony of Daniel F. Wilhelm, Director, State
Sentencing And Corrections Program, Vera Institute of Justice) at 2,
http://www.ussc.gov/hearings/02_15_05/wilhelm_testimony.pdf.
381
Id.
382
USSC February 2005 Public Hearing (Written Testimony of Jon Sands, Chair, Federal Defender
Sentencing Guidelines Committee) at 2, http://www.ussc.gov/hearings/02_15_05/Sands_testimony.pdf;
(Written Testimony of Amy Baron-Evans, Co-Chair, Practitioners’ Advisory Group) at 2,
http://www.ussc.gov/hearings/02_15_05/Baron-Evans_testimony.pdf; (Testimony of Carmen Hernandez,
Second Vice-President, National Association of Criminal Defense Lawyers, at 105)
http://www.ussc.gov/hearings/02_15_05/Transcript_16th.pdf.
383
USSC February 2005 Public Hearing (Written Testimony of Stephen A. Saltzburg) at 1,
http://www.ussc.gov/hearings/02_15_05/Saltzburg_testimony.pdf ;(Testimony of Stephen A. Saltzburg) at
58, http://www.ussc.gov/hearings/02_15_05/Transcript_15th.pdf. (“I don’t think it’s necessary for
Congress to step in.”).
384
See USSC February 2005 Public Hearing (Testimony of the Honorable Lawrence Piersol, Chief Judge
of the District of South Dakota) at 23, http://www.ussc.gov/hearings/02_15_05/Transcript_15th.pdf (“I
don’t believe any statutory or guideline changes are necessary at this time.”); (Written Testimony of the
Honorable Lynn S. Adelman, United States District Judge, Eastern District of Wisconsin) at 10,
http://www.ussc.gov/hearings/02_15_05/Adelman_testimony.pdf.

C-2

One witness, however, offered a proposal for legislative change recommending
that “Congress should enact legislation declaring specific and general deterrence as the
primary objectives in sentencing, and rehabilitation and retribution of secondary or
tertiary concern.”385 The proposed legislation should include a provision that “the
Federal Sentencing Guidelines should be considered as informative in determining what
sentence would best achieve the deterrence goal.”386 The law would permit the court to
substitute the deterrence objective with the rehabilitation or retribution objective, in the
exceptional case.387
Several witnesses offered proposals for guidelines changes that the Commission
could make in the wake of Booker.388 Some related to procedural matters. For example,
one witness suggested that the Commission should devise terminology for describing
sentences that fall outside of the guideline (e.g. variance). Then, the Commission should
require courts as a procedural matter to first look to departures, and only if the departure
methodology does not produce an appropriate sentence, consider variances using the
3553(a) factors.389
Several witnesses agreed that some procedural reforms relating to notice of
sentencing issues might be in order.390 “I think this Commission should make procedures
… a key consideration because among the variation we may see in the wake of Booker
may actually turn on different applications of sentencing procedure rather than different
substantive judgments.”391 At the very minimum, the Commission should clarify that the
prior notice requirements for going outside the range, either through a departure or a
variance, are still in effect. “Courts should give prior notice to the parties that such a
course is being contemplated.” The defense bar also expressed concerns that defendants
do not receive sufficient notice prior to entering into plea agreements regarding the
applicable sentencing enhancements.392 “[A]mong the procedural focus points going
forward, I think, [should be] concerns about fair notice.”393 “The Commission should
closely examine persistent complains [sic] that the guidelines sentencing process fails to

385

USSC February 2005 Public Hearing (Written Testimony of Bruce Fein) at 2,
http://www.ussc.gov/hearings/02_15_05/Fein-testimony.pdf.
386
Id.
387
Id. at 3.
388
USSC February 2005 Public Hearing (Testimony of Douglas A. Berman) at 108-10,
http://www.ussc.gov/hearings/02_15_05/Transcript_15th.pdf; (Written Testimony of Daniel P. Collins) at
8, http://www.ussc.gov/hearings/02_15_05/Collins_Testimony.pdf ; (Testimony of Jon Sands, Chair,
Federal Defender Sentencing Guidelines Committee) at 116-17,
http://www.ussc.gov/hearings/02_15_05/Transcript_16th.pdf; (Written Testimony of the Honorable Paul
G. Cassell, United States District Judge, District of Utah) at 37-40,
http://www.ussc.gov/hearings/02_15_05/cassell_testimony.pdf.
389
Cassell, supra note 385 at 37-40.
390
Berman, supra note 385 at 108-09; Collins, supra note 385 at 8; Sands, supra note 379 at 116-17.
391
Berman, supra note 385 at 108.
392
Sands , supra note 379 at 66; Berman, supra note 385at 108-09.
393
Berman, supra note 385 at 108-09.

C-3

provide defendants fair notice and lacks transparency concerning the facts and factors
which can impact a defendant’s sentence.”394
One procedural matter about which the witnesses offered conflicting opinions was
the applicable burden of proof at sentencing. “I think the Commission should clarify that
a preponderance of the evidence standard is the appropriate standard for sentences. That
was the Commission’s view before, and there’s no reason to change now that the
guidelines are purely advisory…”395 Another suggestion involved using a continuum for
the standard of proof at sentencing. A preponderance standard should apply when the
adjustments are within a few levels; a clear and convincing standard should apply when
the adjustments are four levels or more. It was also suggested that the beyond a
reasonable doubt standard ought to apply when there is a cross-reference to a different
offense.396 Yet another witness argued that there is “significant merit in the contention
that the Constitution’s Due Process Clause should be understood to require that facts
which can lead to enhanced sentence be established beyond a reasonable doubt.”397
A number of other suggestions involved substantive changes to the guidelines.
Those included re-emphasizing that certain factors are forbidden considerations and
listing cooperation with the federal government as a forbidden factor for varying or
departing downward, absent a government motion.398 One judge proposed that the
Commission should provide greater explanation for its policy statements on offender
characteristics and departures, reasoning that this would help the judiciary understand
why a particular factor should be given more or less weight in the advisory guidelines
scheme.399 The same judge suggested that the Commission change all of its policy
statements to guidelines.400 He expressed the belief that these changes would not violate
Booker in any way and were important because “judges are going to pay considerable
attention to what the Commission has to say over the next year or so.”401
Another witness suggested that the Commission should issue a policy statement
relating to reasonableness, providing some guidance to help shape the reasonableness
inquiry. The witness believed that it would be useful for the Commission to do so, even if
the statement is not binding on the courts, because the Commission is “still charged by
statute as the entity that is to set federal sentencing policy under the implementation of
the Sentencing Reform Act.” 402 The policy statement could include a directive that a
sentence within the range is conclusively deemed to be reasonable.403 “I think that the
394

USSC February 2005 Public Hearing (Written Testimony of Douglas A. Berman) at 8,
http://www.ussc.gov/hearings/02_15_05/Berman_testimony%20(2-15).pdf.
395
USSC February 2005 Public Hearing (Testimony of the Honorable Paul G. Cassell, United States
District Judge, District of Utah) at 35.
396
Sands, supra note 379 at 117-18.
397
Berman, supra note 385 at 8.
398
Cassell, supra note 383 at 28; Saltzburg, supra note 380 at 2.
399
Cassell, supra note 383 at 31-33.
400
Id. at 36-37.
401
Cassell, supra note 383 at 63.
402
Collins, supra note 385 at 6-7.
403
USSC February 2005 Public Hearing (Testimony of Daniel P. Collins) at 64,
http://www.ussc.gov/hearings/02_15_05/Transcript_16th.pdf.

C-4

creation of a safe harbor that a sentence within the range is reasonable without more, is
not in any sense a requirement to stay in the safe harbor, because sentences outside that
safe harbor will also be reasonable, and therefore, I don’t think it backs into the Booker
problem in the same way that it would if the Commission tried to establish firm lines
beyond which courts could not go.”404 The Commission could also consider requiring a
specific articulation of grounds for going outside of the guidelines range, either in a
departure or in a variance. That requirement would be consonant with 18 U.S.C. § 3553,
which, in its existing form, still requires an explicit articulation for sentences that are
outside the range. The requirement would also allow appellate courts to vacate sentences
outside the range for which adequate explanation has not been given.405
Another member of the judiciary suggested that the Commission should examine
post-Booker sentences to ascertain whether there are situations where the courts
consistently decide to vary because the guidelines do not really work. Such guidelines
would be ripe for Commission attention.406 Finally, the defense bar suggested that the
Commission reexamine relevant conduct, urge early discovery of facts through policy
statements, and change or alter the presentence report. Several of these suggestions also
included possible changes to the Federal Rules of Criminal Procedure. Although the
Commission has no jurisdiction over rules changes, a request was made that it
recommend the proposed changes to the Federal Rules Advisory Committee.407
2.

To what extent are courts required to “consider” or “take into account” the
federal sentencing guidelines in imposing a sentence? Should this be clarified
through legislation and, if so, how?
a.

Weight to be given the guidelines

The testimony at the public hearing revealed two schools of thought regarding the
extent to which courts must take the guidelines into account in imposing sentence. The
first school of thought accords substantial weight to the guidelines.408 This viewpoint
was first espoused by Judge Cassell in United States v. Wilson.409 Proponents of this
404

Id. It should be noted that other witnesses thought that any attempt to define a sentence within the range
as presumptively reasonable would violate Booker. See Sands, supra note 379 at 3;
Baron-Evans, supra note 377 at 3. As discussed in Chapter 2, infra, Commission action in this area is not
required because the circuit courts are addressing and resolving this issue.
405
Collins, supra note 379 at 64.
406
USSC February 2005 Public Hearing (Testimony of the Honorable Lynn S. Adelman, United States
District Judge, Eastern District of Wisconsin) at 49,
http://www.ussc.gov/hearings/02_15_05/Transcript_15th.pdf.
407
Baron-Evans, supra note 377 at 4-5.
408
See generally Cassell, supra note 383; (Prepared Testimony of the Honorable Richard G. Kopf, United
States District Judge, District of Nebraska), http://www.ussc.gov/hearings/02_15_05/Kopf_testimony.pdf;
(Written Testimony of Paul Rosenzweig, Senior Legal Research Fellow, The Heritage Foundation),
http://www.ussc.gov/hearings/02_15_05/Rosenzweig-testimony.PDF; (Written Testimony of Robert
McCampbell, United States Attorney for the Western District of Oklahoma and Chair of the Attorney
General Advisory Subcommittee on Sentencing), http://www.ussc.gov/hearings/02_15_05/mccampbelltestimony.pdf.
409
350 F.Supp.2d 910 (D. Utah 2005); see also U.S. v. Wanning, 354 F.Supp.2d 1056 (D. Neb. 2005).

C-5

approach reason that even as modified by Booker, the SRA continues to direct that “[t]he
court shall impose a sentence sufficient, but not greater than necessary, to comply with
the purposes set forth ”410 in the SRA. Those purposes are:
(A)
(B)
(C)
(D)

to reflect the seriousness of the offense, to promote respect for
the law, and to provide just punishment for the offense;
to afford adequate deterrence to criminal conduct;
to protect the public from further crimes of the defendant; and
to provide the defendant with needed educational or vocational
training, medical care, or other correctional treatment in the
most effective manner.411

As stated in United States v. Wanning,412 “[t]he Guidelines and their ranges were
explicitly crafted by the Sentencing Commission at the direction of Congress to
implement the statutory purposes of sentencing.” Inherent in the process established
for guideline promulgation413 is the harmonization of all of the sentencing goals in a
way satisfactory to Congress.414 The continuing consultation between Congress and the
Commission suggests that great weight should be accorded to the guidelines. More
simply stated, this means:
Congress' creation of the Commission and subsequent
approval of the Commission's Guidelines provide strong
reason for believing that Guidelines sentences satisfy the
congressionally-mandated purposes of punishment. It
would be startling to discover that while Congress had
created an expert agency, approved the agency's members,
directed the agency to promulgate Guidelines, allowed
those Guidelines to go into effect, and adjusted those
Guidelines over a period of fifteen years, that the resulting
Guidelines did not well serve the underlying congressional
purposes. The more likely conclusion is that the Guidelines
reflect precisely what Congress believes is the punishment
that will achieve its purposes in passing criminal statutes.415
“Particularly when it comes to predictive judgments, federal courts as a rule give
Congress and the agencies it creates, substantial deference. Under Booker or otherwise,
there is no reason to withhold that customary respect from the advisory Guidelines.”416
Further, “judges lack the ability to construct an entirely new unified theory that
harmonizes in a rational way the sentencing goals articulated by Congress” and
410

18 U.S.C. § 3553(a) (emphasis added).
Id.
412
Wanning, 354 F.Supp.2d at 1060.
413
See 28 U.S.C. § 994.
414
Kopf, supra note 405 at 1.
415
Wilson, 350 F.Supp.2d at 915. See also Cassell, supra note 385 at 4.
416
Kopf, supra note 403 at 1
411

C-6

“Congress is the only body that has constitutional legitimacy to state and then implement
(through the Commission it created) sentencing goals.”417
The opposing viewpoint was offered by Judge Adelman in United States v.
Ranum.418 “Based on the statutory scheme that remains after Booker’s excision of
3553(b), I think the guidelines should be given the same weight as the other factors set
forth in 3553(a).”419 Section 3553 cites seven factors, and says that the court shall
consider these factors. Included among the factors are the guideline range and the
Commission’s policy statements. There is, however, nothing in that statute, as modified
by Booker, that says any one factor as a general principle is entitled to more weight than
others.420
The proponents of this line of thinking dispute the premise that the guidelines take
into account all of the factors in 18 U.S.C. § 3553(a) factors. They reason that when the
Booker Court directed sentencing courts to consider the guidelines, but allowed them to
“tailor the sentence in light of other statutory concerns,” the Court recognized that the
guidelines do not take into consideration all of the 3553(a) factors.421 Otherwise, the
Court would not have used this language.422 In fact, the guidelines advise courts not to
consider all of the 3553(a) factors.
For example, 3553(a) directs courts to consider “the history
and characteristics of a defendant.” Now, how you can
square that with statements in the guidelines that you’re not
allowed to look at history, or age, or education, or mental
condition, or drug or alcohol dependence, or employment,
or family ties or responsibilities, or civic and military ties?
It seems to me that no matter how you kind of try to fudge
that, 3553(a) says something different.423
Moreover, section “3553(a) contains no suggestion that any factor be accorded more
weight than any other and states that ‘in determining the particular sentence to be
imposed,’ courts ‘shall consider’ the factors listed in the statute.”424 The use of the word
“shall” prohibits the courts from turning the responsibility to consider those factors over
to some other entity.

417

Id.
353 F.Supp.2d 984 (E.D.Wis. 2005).
419
Adelman, supra note 403 at 42-43.
420
Id.
421
Id. at 43, citing Booker, 543 U.S. at 245-46.
422
Adelman, supra note 403 at 43. See also Hernandez, supra note 379 at 106, (“Indeed, with all due
respect to Judge Cassell, who has once again, I believe, served a very necessary and important function by
explaining his views and providing a jumping-off point for discussion, giving strong weight to the
guidelines is not appropriate.”).
423
Adelman, supra note 403 at 44.
424
Id. at 45, citing 18 U.S.C. § 3553 (a).
418

C-7

Other parts of 3553(a) reinforce the conclusion that the
sentencing judge, not any other person or entity, including
this Commission, is responsible for weighing the statutory
factors. Under the statute, it is the judge who has to
consider the nature and circumstances of the offense. It’s
the judge who has to consider the history and
characteristics of the defendant. It’s the judge who has to
determine the particular sentence to be imposed and to
impose a sentence sufficient, but not greater than necessary,
to comply with the purposes of sentencing.425
Thus, the proponents of this view of the weight to be accorded to the guidelines in
the advisory guideline system assert that “whether or not th[e] Commission considered
certain factors in crafting the guidelines, to comply with Booker and with 3553(a), the
judge has to independently consider them.”426 Similarly, whether or not Congress
incorporated the purposes of sentencing into the guidelines, the clear statutory command
of section 3553(a) is that the court has to consider all those factors.427 Section “3553(a)
creates a process by which individual judges sentence individual defendants … The
Sentencing Commission can do many, many good things, but it cannot perform that
function. This is so because the Commission has no knowledge of the individual being
sentenced, or of the particulars of the offense that he committed.”428
b.

Legislative clarification of weight to be given the sentencing guidelines

The several witnesses who addressed this question asserted that “congressional
enactment [regarding the weight to be given guidelines] could be seen as interfering with
the voluntary nature of the guidelines and of reinstating a mandatory system that is
constitutionally suspect.”429 Moreover, the courts of appeals will soon have resolved that
issue as a matter of statutory construction on a de novo standard of review.430

425

Id. at 45-46.
Id. at 46.
427
Id.
428
Id. at 46-47.
429
Saltzburg, supra note 380 at 3, Hernandez, supra note 379 at 106; Sands, supra note 379 at 2 (“[A]any
attempt to impose legislative requirements as to the weight to be accorded the Guidelines in relation to the
goals and other factors set forth in section 3553(a) would run the risk of being interpreted as mandatory and
thus unconstitutional.”); Baron-Evans, supra note 379 at 2 (“There is no need to legislatively clarify the
extent to which the guideline range must be considered or taken into account, and such legislation would
run a serious risk of unconstitutionality.”).
430
Hernandez, supra note 379 at 106.
426

C-8

What type of analysis should courts use for imposing sentences outside of the
guideline sentencing range?

Testimony provided at the hearing in response to this question was consistent with
testimony given about the weight to be accorded to the sentencing guidelines. Advocates
of according substantial weight suggested using the departure methodology first, and then
considering whether to vary from the sentence in light of the congressionally–prescribed
purposes of sentencing.431
Proponents of the theory that all of the section 3553(a) factors, including the
sentencing guidelines, receive equal weight suggested that the courts need not cite factors
that take the case outside the heartland but only must explain why the sentence imposed
was necessary and reasonable in light of all the relevant factors. This analysis would be
similar to that historically performed in revocation of probation or supervised release
cases.432 “A sentence outside the range can occur either because the standards for a
departure set forth in the guideline manual are met, or because the sentence resulting
from application of the guideline manual produces a sentence that is greater than
necessary or insufficient to achieve the purposes of sentencing for a reason rooted in §
3553 (a) and the facts of the case.”433 “We expect that in most cases, the advisory
Guidelines sentence will be sufficient but not greater than necessary to achieve the
statutory purposes of sentencing.”434
4.

How will review by appellate courts for “unreasonableness” work in
practice? Should a sentence within the guideline sentencing range be
considered “presumptively reasonable?” How should sentences outside of the
guideline range be reviewed, and should appellate review vary depending on
whether the sentence outside of the guideline sentencing range was based on
a departure basis specifically identified in the Guidelines Manual or pursuant
to Booker?

At least one witness foresaw no significant challenge to the use of a
reasonableness standard of review. “The courts deal regularly with applying the concept
of reasonableness and need no legislation or regulation to perform that task.”435
“Reasonableness review should be the standard to be applied to each sentence, no matter
whether it is an advisory guidelines sentence, a guidelines departure, or a variance from
the advisory guidelines. A reasonableness review would, for example, find a sentence
based upon a sentencing factor which Congress had indicated should not be a sentencing
factor, such as race or socioeconomic status, to be an unreasonable sentence.”436
431

Cassell, supra note 385 at 20, Saltzburg, supra note 380 at 3.
Adelman, supra note 381 at 6-8.
433
Baron-Evans, supra note 379 at 3.
434
Id. at 4.
435
USSC February 2005 Public Hearing (Written Testimony of the Honorable Lawrence Piersol, Chief
Judge of the District of South Dakota) at 5, http://www.ussc.gov/hearings/02_15_05/Piersol_testimony.pdf;
Adelman, supra note 381 at 8-9.
436
Piersol, supra note 432 at 5.
432

C-9

Others suggested that the body of law relating to revocation sentences would
instruct the inquiry. In those cases, sentences outside the range are not presumptively
unreasonable. Nor does the appellate court consider whether such sentences were
supported by policy statements adopted by the Commission.437 Rather, the question is
whether the sentences were “reasoned and reasonable.” 438
Certain witnesses suggested that a guidelines sentence should not be considered
presumptively reasonable because to do so would make the guideline impermissibly
mandatory.439 Nevertheless they conceded that “when the data is collected, the number
of instances in which an appellate court finds a sentence within a properly calculated
guidelines range to be unreasonable will be few or none.”440
Others offered a different opinion about the appealability of sentences within the
applicable guidelines range. They asserted that sentences within the guideline range are
not only presumptively reasonable, but they are not subject to appeal. Section 3742(a) of
title 18, United States Code, remains unchanged by the Booker decision. That section
allows defendants to appeal sentences above the guidelines range but makes no
provisions for appeals of a sentence within or below the guidelines range. Likewise, 18
U.S.C. § 3742(b) allows the government to appeal a sentence below the guidelines range
but not a sentence within or above. Congress intended to provide limited appellate
review and this interpretation of the current state of events comports with that
understanding.441
5.

Do the appellate review provisions of 18 U.S.C. § 3742 need to be amended in
light of Booker and, if so, how? Might Congress, consistent with Booker,
establish standards for appellate review of sentences different from the
“reasonableness” standard discussed by the remedial majority? Might de
novo review of sentences outside the recommended guideline range be reestablished?

The Commission heard different viewpoints regarding amendment of the
appellate provisions of 18 U.S.C. § 3742. One witness suggested that “any changes to
section 3742 to alter the standard adopted by the Booker remedial majority might run
afoul of the Booker merits majority. A stricter standard of review for sentences outside
the guidelines, for example, runs the risk of making the guidelines presumptive, much as
they were before Blakely and Booker.”442
The opposing viewpoint suggested that “[t]he ‘reasonableness’ standard of review
embraced by Justice Breyer in his remedial opinion stands on a statutory, not a
437

Adelman, supra note 381 at 9.
Id. at 6-9.
439
Sands, supra note 379 at 3; Baron-Evans, supra note 379 at 3.
440
Baron-Evans supra note 379 at 6.
441
McCampbell, supra note 405 at 18-19; Rosenzweig, supra note 405 at 10, But see developing case law
addressing this issue discussed, supra, in Chapter 2.
442
Adelman, supra note 381 at 9.
438

C-10

constitutional, plane. Thus, Congress may amend the standard by simple legislation.”443
Professor Saltzburg was of the opinion that “Congress may adopt any standard of review
that does not tie trial judges’ hands to such an extent that it makes an advisory system
mandatory (without other necessary changes.)”444 Recognizing that “[a]rguments will be
made … that a de novo standard of review reinstates a mandatory guideline system,” he
dismissed the argument as illogical. “Unless appellate courts declare that guideline
sentences will be imposed in all cases, the system is not mandatory.”445
A contrary opinion was offered that after Booker, sentences within the guidelines
wear no greater trappings of legality than sentences without. To establish de novo review
for only the former thus would seem contrary to that principle because the sentences
endorsed by the guidelines would enjoy a legal premium. The advocates of this
viewpoint suggested that Congress should consider amending the appellate review
provisions of 18 U.S.C. § 3742 to establish an abuse of discretion standard.446 Members
of this group further suggest that the abuse of discretion standard should pivot on the
overarching deterrence objective of sentencing.447 Advocates of reinstating the de novo
standard argued that a rigorous and consistent appellate standard is essential to any
guideline system because it will be an important means for the parties to obtain consistent
sentencing.448
One final point raised about appellate review was that Congress expressly
intended that the review be limited, pointing out that 18 U.S.C. § 3742(a) (and its parallel
subsection (b)) allows for appeals only in a limited number of circumstances. “Reflecting
on the text of the statute, even after excision, I am not sure that either party may appeal a
sentence imposed within a properly calculated range. And that seems to me a reasonable
rule – as it will enhance the presumptively reasonable nature of the guidelines themselves
and concomitantly provide for an incentive for district courts not to vary their sentences
from the guidelines too readily.”449
6.

Will Booker adversely affect the ability of prosecutors to reach plea
agreements or obtain other forms of defendant cooperation? How is USSG
§5K1.1 (Substantial Assistance) affected? How are “fast track” programs
and USSG §5K3.1 (Early Disposition Programs) affected? Is there any
impact on USSG §3E1.1 (Acceptance of Responsibility), particularly with
respect to the third offense level reduction?

Those witnesses from the judiciary and the defense bar who offered comments
about post-Booker plea bargaining and cooperation did not believe that Booker would
443

Fein, supra note 382 at 2.
Saltzburg, supra note 380 at 4.
445
Id. at 4-5.
446
Fein, supra note 382 at 3; Saltzburg, supra note 380 at 4-5.
447
Fein, supra note 382 at 3.
448
McCampbell, supra note 405 at 19-20; Collins, supra note 385 at 3.
449
Rosenzweig, supra note 405 at 9. As discussed, supra, in Chapter 2, under the Booker guidelines
system, courts are not limiting review, nor dismissing cases sentenced within the properly calculated range
for lack of jurisdiction.
444

C-11

alter plea bargaining practice or decrease the number of cooperators.450 “While a
defendant might believe that his odds of obtaining a lower sentence have improved, a
prosecutor can also more credibly threaten the prospect of a sentence above them. Thus,
defendants will still have a strong incentive to satisfy the government that they are
providing substantial assistance.”451
Other witnesses, including a representative of the Department of Justice,
expressed concerns that Booker would diminish the leverage of the prosecutor in plea
bargaining.452 One witness stated that the decision was too recent to make confidant
projections about the magnitude of the diminishment.453 Another witness expressed the
belief that there will be a “reduced incentive for defendants to enter early plea agreements
or cooperation agreements with the government, since the defendants may request and
obtain the same benefit from the court without such an agreement.”454 He opined that
this reduced incentive would have a “grave effect on Department’s ability to prosecute a
wide variety of cases or to obtain timely information.”455
Most of the witnesses thought that “fast track” and early disposition programs
would continue to work without any problem.456 One judge recognized, however, that
non-fast track courts may exercise their discretion to impose a lower sentence to reduce
the disparity created by such programs.457 Likewise, the system would have no
discernable impact on USSG §3E1.1, but courts may recognize varying “gradations of
‘reductions’ for acceptance.458
7.

Under the principles of Booker, may Congress prohibit judges from
considering certain factors at sentencing? What factors, if any, would be
appropriate to prohibit from consideration? After Booker, may courts
consider factors that are currently prohibited from consideration under the
federal sentencing guidelines?

All the witnesses who commented on this question uniformly concurred that
Booker on its face does not prevent Congress from prohibiting consideration of particular
factors at sentencing.459 They agreed that Congress should prohibit certain factors, and
under no circumstances should such factors be considered when fashioning a sentence

450

Adelman, supra note 381 at 9; Sands, supra note 379 at 3-4; Baron-Evans, supra note 379 at 8.
Baron-Evans. supra note 377 at 8.
452
Fein, supra note 380 at 3: McCampbell, supra note 403 at 16.
453
Fein, supra note 380 at 3.
454
McCampbell, supra note 403 at 16.
455
Id. at 17.
456
Fein, supra note 380 at 5. These programs are designed to facilitate early pleas in certain categories of
cases (usually immigration) in districts with large caseloads. The programs must be approved by the
Attorney General.
457
Adelman, supra note 381 at 9-10.
458
Id. at 10.
459
See Piersol, supra note 432 at 5; Cassell, supra note 383 at 30-34; Rosenzweig, supra note 405 at 12;
Fein, supra note 382 at 4; Saltzburg, supra note 380 at 5-6; Sands, supra note 379 at 4; Baron-Evans, supra
note 379 at 9, McCampbell, supra note 405 at 16.
451

C-12

under 18 U.S.C. § 3553(a).460 Moreover, some suggested that a variance should never be
granted on the basis of a factor already prohibited by Congress.461 The disagreement
between these witnesses concerns those factors that constitutionally could be prohibited
by Congress. Some argued that only the select set of constitutional invidious factors
could be the subject of a complete bar by Congress.462 They asserted that Congress
cannot prohibit consideration of all offender characteristics now discouraged or declare
that the guidelines already reflect all of the considerations in section. To do so would
have the impact of making the guidelines mandatory and thus violative of the Sixth
Amendment.463
Others suggested that Congress constitutionally could enact legislation barring
factors beyond those now prohibited by statute and the guidelines. Examples offered
included prohibiting a substantial assistance departure or prohibiting the award of the
one-level reduction for acceptance of responsibility without a government motion.464 At
least one witness urged Congress to adopt a system that prohibits consideration of certain
factors improper to consider or which would create sentencing disparity based upon
inappropriate characteristics of the defendant.465 Another opined that “[s]entencing to
achieve deterrence is too fact-specific to warrant a statute declaring in advance that a
particular fact shall never be considered.”466
Some witnesses urged that the Commission strongly caution against the use of
these prohibited factors because of clear congressional commands.467 Others expressed
the hope that developing appellate court jurisprudence would establish that sentences
based on these factors would receive less deference than others. Many agreed that
“Booker permits federal judges to consider factors prohibited by the Federal Sentencing
Guidelines as long as they consult the prohibition in imposing sentences.”468
8.

Under what conditions, if any, have advisory sentencing guidelines proven
effective in the states? What commendations or criticisms have been voiced
about the operation of advisory guideline systems?

Various witnesses suggested that advisory (voluntary) guidelines systems may
work almost as effectively as their mandatory counterparts in achieving more uniform
sentences.469
460

Id.
Piersol, supra note 432 at 2.
462
Sands, supra note 379 at 4; Baron-Evans, supra note 379 at 10. Those factors are “race, sex, national
origin, creed, religion and socio-economic status.” See 28 U.S.C. § 994 (e).
463
Baron-Evans, supra note 379 at 9.
464
Saltzburg, supra note 380 at 6.
465
McCampbell, supra note 405 at 16.
466
Fein, supra note 380 at 4.
467
Cassell, supra note 385 at 29-31; Rosenzweig, supra note 405 at 12.
468
Fein, supra note 382 at 4; see also Sands, supra note 379 at 4; Adelman, supra note 381 at 4-5.
469
See generally (Written Statement of Kim S. Hunt, Ph. D, Executive Director, District of Columbia
Sentencing Commission) , http://www.ussc.gov/hearings/02_15_05/Hunt_testimony.pdf; Wilhelm, supra
note 375 at 2, http://www.ussc.gov/hearings/02_15_05/wilhelm_testimony.pdf; (Testimony of Bruce Fein)
461

C-13

[T]he corresponding voluntary guidelines in Virginia,
Pennsylvania, and Minnesota were followed in 77.4%, 88%
and 75% of the cases respectively. Mandatory guidelines
in Kansas, Washington, and North Carolina commanded
adherence in 87.6%, 90.4%, and 81% of the cases
respectively. These comparisons suggest that voluntary
guidelines may work almost as effectively as their
mandatory counterparts in achieving more uniform
sentences, although the details of each scheme are
unique.470
Common missions inform the states’ sentencing guidelines scheme, whether
presumptive or voluntary, and those missions are comparable to the principles that guided
implementation of the federal guidelines system: a desire to eliminate unwarranted
disparities and to promote proportionality among sentences.471
The representatives of the state sentencing commissions reported that a large part
of the success of advisory guideline systems stem from the judges’ belief that the
underlying system is just.472 Because sentences are based on historical sentencing
practices, these time-served patterns reflect the heartland of just sentences for offenses.473
The role of judges in formulating the guidelines in some jurisdictions may also contribute
to their success.474
These witnesses quantify successful systems as those with compliance rates at or
near 80%.475 They list various reasons for commending the systems. Advisory
guidelines are less rigid than mandatory systems. These systems allow a judge more
room to structure a sentence to fit the varying circumstances of an individual case. They
make it easier for the sentencing commission to adjust sentencing ranges in the future to
account for important sentencing factors as needed and to address any unanticipated
consequences of a major shift in sentencing practice.476
Several factors associated with successful advisory guidelines “include
transparency, superior information gathering and analysis, effective dialogue and clear
at 3, http://www.ussc.gov/hearings/02_15_05/Fein-testimony.pdf. See also Kim Hunt and Michael
Connelly, Advisory Guidelines in the Post-Blakely Era, 17 FED. SENTENCING REP. 233 (April 2005).
470
Fein, supra note 382 at 4.
471
USSC February 2005 Public Hearing (Testimony of Daniel F. Wilhelm, Director, State Sentencing And
Corrections Program, Vera Institute of Justice) at 13,
http://www.ussc.gov/hearings/02_15_05/Transcript_16th.pdf.
472
Wilhelm, supra note 468 at 46; (Written Testimony of Mark H. Bergstrom, Executive Director, The
Pennsylvania Commission on Sentencing) at 4, http://www.ussc.gov/hearings/02_15_05/bergstromtestimony.pdf.
473
Wilhelm, supra note 468 at 46. See Bergstrom, supra note 469 at 1,
http://www.ussc.gov/hearings/02_15_05/bergstrom-testimony.pdf.
474
Saltzburg, supra note 380 at 6.
475
Hunt, supra note 466 at 3.
476
Id. at 1-2.

C-14

goals and feedback.”477
The term “transparency” apparently relates to the courts’
reporting requirements. “[T]he Pennsylvania system is probably the most transparent
system in the country in which each judge’s compliance rate is reported. It stands to
reason that judges would be more inclined to comply with voluntary guidelines if
compliance rates are transparent and readily available, and that when they don’t comply,
they will provide a useful reason for understanding what was unique about that case that
led them outside the guideline range.”478 The witnesses’ experience also proved that
some rigor in the form of procedural requirements that judges must follow helps to
promote compliance with advisory guidelines. States that require the judges to calculate
the guidelines report higher compliance rates than states with no procedural
requirements.479 Those procedures may include a statutory requirement that the court
calculate the guidelines, a commission rule requiring calculation of the guidelines, and/or
completion of sentencing forms to justify the sentence. Compliance in states where judges
The witnesses also
are not subject to any procedural requirements has been poor.480
opined that “the presence of an engaged sentencing commission, with capacity to study
and measure data nimbly as an objective and regularly recurring basis for policy
recommendations, is essential to the ultimate substantive and political legitimacy of
sentencing policy.”481
“One limitation of advisory guidelines systems to date is that despite high
compliance rates, without appellate review there is no remedy for the outlier, a judge who
gives a highly atypical sentence for a typical case.”482 The remaining criticisms of
advisory guidelines came from federal practitioners, rather than from the state
commission representatives. Thus, these criticisms were not drawn from any state court
experience but from early observations made of the Booker advisory system. They
suggest that disparity may increase in a voluntary system483 and argue that there is a
culture of compliance in state systems that will not exist in the federal system because “it
casts a wide net over far flung geographical areas, with diverse legal cultures.”484 They
assert that courts will adopt different sentencing procedures, resulting in inconsistent
form and substance.485 Courts will veto policy decisions made by the Commission and
consider prohibited factors.486 Finally, an advisory system provides reduced incentives
for early plea or cooperation.487 Members of the defense bar noted that sentences in the
federal system appear to be increasing in length.488

477

Id. at 4.
USSC February 2005 Public Hearing (Testimony of Kim S. Hunt, Ph. D, Executive Director, District of
Columbia Sentencing Commission) at 9-10, http://www.ussc.gov/hearings/02_15_05/Transcript_16th.pdf.
479
Wilhelm, supra note 377 at 4
480
Wilhelm, supra note 468 at 19.
481
Wilhelm, supra note 377 at 4; Hunt, supra note 466 at 4.
482
Hunt, supra note 466 at 4.
483
McCampbell, supra note 405 at 9.
484
Id. at 10.
485
Id.
486
Id. at 13-16.
487
Id. at 16-18; see also Fein, supra note 382 at 3.
488
Hernandez, supra note 379 at 114.
478

C-15

How do states with advisory guidelines ensure that their guidelines are
adequately considered? Do the states provide for appellate review and, if so,
what is the standard of review and how does such review work in practice?
Are sentences within the guideline sentencing range considered
presumptively reasonable? Does compliance with state advisory guidelines
vary depending on the width of the guideline sentencing ranges? How, if at
all, does the accountability of judges to the legislature, the public, or their
peers affect compliance with state advisory guidelines?

As noted above, the states with advisory systems have vastly different procedural
requirements. Nevertheless, the witnesses reported that the more rigor imposed
procedurally, the better the compliance rate.489 Indeed, one witness opined that Booker’s
requirement that courts consider the guidelines created the type of rigorous procedural
step that would encourage compliance with the guidelines.490 “It may be reasonable to
conclude that the process of considering applicable guidelines and formulating a written
explanation for departures helps build awareness of what the guidelines require and may
help inculcate a sense of fealty to the application of the guidelines in most
circumstances.”491 With the exception of Pennsylvania, none of the state systems
discussed with the Commission have an appellate review process.492 Thus, the appellate
review established by Booker may also serve to strengthen compliance with the
guidelines.493
The witness from Pennsylvania cited a recent Superior Court opinion to explain
how the Pennsylvania standard of review operated. 494 In that case, the court stated
It is perceived by many …that the extension of discretion to
the sentencing court has resulted in a situation where the
sentencing court is free to impose any sentence within the
limits allowed by law, as long as it states its reasons for
doing so upon the record. The corollary to this premise
suggests that as long as the court states its reason for
departing from the guidelines on the record, the Superior
Court is duty-bound to affirm, regardless of whether or not
reasons stated are viewed as reasonable or as justifying the
departure. This is simply not so.495

489

Wilhelm, supra note 458 at 18-19; Hunt, supra note 466 at 10.
Wilhelm, supra note 458 at 19.
491
Id. at 18.
492
Wilhelm, supra note 458at 19; Hunt, supra note 456 at 10; (Testimony of Mark H. Bergstrom,
Executive Director, The Pennsylvania Commission on Sentencing) at 25-30,
http://www.ussc.gov/hearings/02_15_05/Transcript_16th.pdf.
493
Wilhelm, supra note 377 at 4.
494
Bergstrom, supra note 469 at 3, citing Commonwealth. v. Walls, 846 A.2d 152, 158 (Pa. Super., 2004).
495
Id.
490

C-16

The witness went on to describe the Pennsylvania standard of review, which appears to
be remarkably similar to the reasonableness review created by Booker.
In determining whether a sentence is unreasonable,
the appellate court shall have regard for:
1)
2)

3)
4)

the nature and circumstances of the offense and
history and characteristics of the defendant;
the opportunity of the sentencing court to observe
the defendant, including any presentence
investigation;
the findings upon which the sentence was based;
and
the guidelines promulgated by the Commission.496

Judges’ compliance rates are reported in Pennsylvania and the percentage rate of
compliance is relatively high.497 This reporting procedure may be a contributing factor.
One witness mentioned that the “[s]ome observers have posited that accountability of
judges in Virginia to the legislature might affect compliance with state advisory
guidelines.”498 “Still, anecdotal evidence from Virginia suggests that very few judges are
not returned to the bench and judge-specific sentencing data is not regularly provided to
the legislature or the public.”499 Instead, it was suggested that “the judges in Virginia
comply with the guidelines because they believe that recommended sentences are fair,
just and proportionate.”500 No other witness reported that either accountability to the
legislature or the public created greater compliance. Rather, compliance was attributed to
the judges’ satisfaction that the system was just and fair.501
10.

What recommendations, if any, do you have for changes to the federal
sentencing system in either the short term or long term in light of Booker?

During the two day hearing, the Commission heard testimony about possible
responses to the Booker decision. One recurring theme that most participants espoused
was a “wait and see” approach to federal sentencing reform following Booker. “[I]t is too
early to measure accurately the impact of the decision because courts of appeals are just
beginning to render decisions interpreting the Supreme Court case, and district courts are
just beginning to resentence defendants.” 502 “I share the consensus view that it would be
wise for Congress and this Commission to hold off making substantial changes to the
496

Id. at 4.
Hunt, supra note 475 at 9-10.
498
Wilhelm, supra note 377 at 3.
499
Id.
500
Id. Mr. Wilhelm offered the observation that the same could not always be said for judges in the federal
system.
501
Wilhelm, supra note 458 at 46.
502
USSC February 2005 Public Hearing (Prepared Testimony of the Honorable Thomas F. Hogan, Chief
Judge, District of Columbia and Member, Judicial Conference Executive Committee) at 2-3,
http://www.ussc.gov/hearings/02_15_05/Hogan-testimony.pdf; see also Kopf, supra note 405 at 1.
497

C-17

federal sentencing system until we can observe and analyze how the Supreme Court’s
Booker remedy actually operates in lower courts.”503 “This is not a time to tinker around
the edges of reform or rush to adopt measures designed to just meet, or worse, to avoid
constitutional requirements. We urge you to embrace this opportunity to help Congress
critically examine federal sentencing” 504 “Booker is a chance to test how advisory
guidelines work, and to what extent the federal courts will rely on the Commission in
fashioning their own sentences. The Commission should not support or propose
legislative solutions for problems that may not exist.”505
Among the many reasons offered in support of a slow and considered response to
Booker was the following:
The last point I just want to reiterate is the sort of go-slow
attitude is not only important, …, as a policy matter but as a
pure litigation matter. The circuits are proving to us yet
again how complicated life becomes when you change an
intricate, detailed system. And I think any significant
change – rapid, slow, whatever you want to say they are –
are going to have enormous transition costs, years and
years of litigation to work out. One of the things that you
all can do effectively is start mapping out a plan for
incremental changes, helping Congress see that maybe
amendments are going to be a more efficient way to make
some of the changes that are [inaudible] necessary than
broad legislation.506
Various organizations publicly urged Congress to let the Booker advisory system
work for period of time. The Federal Judges Association board of directors unanimously
adopted the following resolution:
The board of directors of the Federal Judges Association
has resolved that the position of the FJA should be to ask
Congress to allow the present situation time to work, and
only if it does not ultimately work to the satisfaction of
Congress, should Congress then proceed, in consultation
with the courts, academics, the Justice Department, the
United States Sentencing Commission, and other interested
parties, to fashion some changes.507

503

Berman, supra note 385 at 13.
USSC February 2005 Public Hearing (Written Testimony of Mary Price, General Counsel, Families
Against Mandatory Minimums (FAMM)) at 2,
http://www.ussc.gov/hearings/02_15_05/price_testimony.pdf.
505
Sands, supra note 379 at 4; Baron-Evans, supra note 379 at 10; Adelman, supra note 403 at 48;
Wilhelm, supra note 458 at 15.
506
Berman, supra note 385 at 112-13.
507
Piersol, supra note 380 at 16-17.
504

C-18

Likewise, the National Association of Criminal Defense Lawyers and the American Bar
Association adopted similar resolutions.508
The main three recommendations in response to Booker offered by the witnesses
were maintaining advisory guidelines in some form, topless guidelines, and simplified
guidelines designed for jury factfinding.
Proponents of maintaining the advisory guideline system, either in the form
created by the Booker decision or a form altered by either Congressional or Commission
action, asserted the belief that Booker provides a nearly perfect system.509 A member of
the North Carolina Sentencing Commission observed that the “new advisory system
fashioned by Justice Breyer preserves this Commission’s dedicated 17-year odyssey
toward the creation of just and fair sentencing reform. This new system, I believe, if
allowed to flourish, will promote uniformity, while at the same time diminishing the
occasional irrational results required by any mandatory guideline system.”510 Those
advocating for federal advisory guidelines echoed the commendations made by the state
commissioners about their advisory systems. “Advisory guidelines are helpful to judges
and to the parties. They provide a thorough review of many but not all considerations, an
indication of what is generally being done in other cases, and an indication of
congressional intent.”511 “I don’t think you can find a judge who has done any significant
amount of sentencing who does not have an instance where justice was not served by
mandatory guidelines.”512 Still others opine that restoring federal judges to a meaningful
role in the sentencing process is tremendously important.
Booker enables judges to treat people being sentenced as
they should be treated, as individuals, and to craft sentences that
are appropriate to them. Insofar as is possible, a sentencing system
should not force judges to impose sentences that they don’t believe
in. It might be said that Booker constitutes a recognition of the
irreducible need for individualized judgment and humanity in
sentencing.513
Moreover, fairness in sentencing requires considerations of many factors, not just
reduction of disparities.514 Booker creates the opportunity for a real dialogue between
judges and the Commission.515

508

Hernandez, supra note 379 at 105; Saltzburg supra note 378 at 55.
Piersol, supra note 381 at 18; Adelman, supra note 403 at 37; Saltzburg supra note 380 at 59.
510
USSC February 2005 Public Hearing (Testimony of Lyle Yurko, North Carolina Sentencing
Commission) at 30-31, http://www.ussc.gov/hearings/02_15_05/Transcript_16th.pdf; see also Kim H. Hunt
and Michael Connelly, Advisory Guidelines in the Post-Blakely Era, 17 FED. SENT REP. 233, 239
(2005)(“We predict that advisory guidelines can be a success in the federal system.”).
511
Piersol, supra note 381 at 18.
512
Id. at 21-22.
513
Adelman, supra note 403 at 42.
514
Id. at 37.
515
Id. at 39.
509

C-19

The proponents of advisory guidelines offer several reason why the system will
work effectively in federal courts. “First of all, judges have operated under the guidelines
for a very long time, and to a considerable extent have internalized guideline thinking.
Judges are not going to give up this way of thinking just because the guidelines are
advisory…”516 “Secondly, Booker directs judges to consider the guidelines, and judges
most assuredly are going to follow that. Third, the fact that sentences are reviewable for
reasonableness, and if the history of departures is any guide… the fact that sentences are
reviewable for reasonableness will cause judges to think carefully about the sentences
they impose, and to explain in detail any sentence that they believe that the government
or the defendant is going to seriously question.”517
The Commission also heard the contrary viewpoint. “There are inherent problems
in an advisory guideline scheme, and those problems are not going to change over
time.”518 Those problems included increased disparity, less control by the prosecutors
over plea bargaining and substantial assistance, different procedures and policy decision
made by the Commission being rejected. One of the victim advocates made a strong
argument for the need to have “fair and reasonable, but realistic and tough, sentencing
guidelines [in] place and followed.”519 She reminded them that “it would be helpful to
this Commission’s work to recall the reasons for mandatory sentencing guidelines in the
past. It was a judiciary that was unaccountable and out of step with the American
people.” 520
Finally, the long-term vitality of advisory guideline depends greatly upon the
efficacy of the reasonableness review.
The provision for reasonableness review will either prove
to be nothing at all, in which case we will have a de facto
every decision is reasonable, and judges will routinely
affirm on some abuse of discretion standard that is a review
standard in theory and not in practice, or will actually have
some real bite and the courts of appeals will wind up
instituting reasonableness reviews that have some real
structure and meaning. But if they actually have some real
structure and meaning and become legally constraining on
district court judges, then they will become, in effect,
mandatory rules respecting the discretion of judges and will
run right back into the Blakely/Booker core remedial
problem.521

516

Id.
Id. at 40.
518
McCampbell, supra note 405 at 138.
519
USSC February 2005 Public Hearing (Testimony of Collene (Thompson) Campbell) at 86,
http://www.ussc.gov/hearings/02_15_05/Transcript_16th.pdf.
520
Id.
521
Rosenzweig, supra note 405 at 86,.
517

C-20

Professor Frank Bowman introduced the concept of “topless” or “soft-top”
guidelines as an immediate, short-term response to Blakely.522 The proposal involves
raising the top of every guideline range to the statutory maximum, which will make the
system compliant with Apprendi. After the decision in Booker, he has advocated more
sweeping reform for the long term to address “structural problems” with the federal
guideline system.523 Notwithstanding Professor Bowman’s disavowal of the topless
guidelines proposal, others still advocate this as the best system to resolve the upheaval
created by the Blakely and Booker decisions. “My recommendation to Congress is that it
act to restore the system most nearly as it was before Booker with the least changes
possible. The easiest way to do that is what has been popularly called ‘the Bowman
fix…’”524 This would require legislative action to eliminate the 25% percent rule.525
Establishing guideline minimums does not require jury factfinding,526 so the judges could
continue to make the necessary factual determinations to compute the guideline offense
level. Proponents of this solution also advocate a return to the de novo standard of
review excised by the Supreme Court as part of its Booker remedy.527
Opponents of this proposal include members of the judiciary, academics, the
defense bar and even state sentencing commissioners.528 Asserting that “ the ‘Bowman
fix’ is no fix at all,” all warn that this fix would likely be declared unconstitutional,
resulting in continued upheaval in federal sentencing law.529
The witnesses discussed one other proposal with the Commission but did not offer
any detailed description. The proposal centers around simplified guidelines, allowing for
jury factfinding of any facts that would increase the sentence. The American Bar
Association testified that it supported some version of this proposal, as did witnesses
from the defense bar. Distinct variations on the plan have been proposed by academics,
the American Bar Association and other interested groups.530 Because the specifics of
these proposals were not developed at the hearing, the Commission heard no testimony
about any criticisms of these plans.

522

Frank O. Bowman, Train Wreck? Or Can the Federal Sentencing System Be Saved? A Plea for Rapid
Reversal of Blakely v. Washington, 41 AM. CRIM. L. REV. 217 (2004).
523
Frank O. Bowman, The Failure of the Federal Sentencing System: A Structural Analysis, 105
COLUMBIA L. REV. 1315 (2005).
524
Collins, supra note 383 at 62.
525
See 28 U.S.C. § 994 (b)(2).
526
See Harris, supra, discussed in Chapter 1.
527
Collins, supra note 385 at 62,.
528
Piersol, supra note 379 at 20-21; Yurko, supra note 379 at 33; Saltzburg supra note 380 at 74-75;
(Testimony of Amy Baron-Evans, Co-Chair, Practitioners’ Advisory Group) at 99,
http://www.ussc.gov/hearings/02_15_05/Transcript_16th.pdf.
529
USSC February 2005 Public Hearing (Testimony of The Honorable Lawrence Piersol) at 20-21,
http://www.ussc.gov/hearings/02_15_05/Transcript_15th.pdf; Baron-Evans, supra note 525 at 122.
530
See Frank O. Bowman, The Failure of the Federal Sentencing System: A Structural Analysis, 105
COLUMBIA L. REV. 1315 (2005) American Bar Association, Criminal Justice Section, Report on Booker and
Recommendation (reprinted in 17 FED. SENT. REP. 335, 2005); Constitution Project’s Sentencing Initiative,
Principles for the Design and Reform of Sentencing Systems (reprinted in 17 FED. SENT. REP. 341 (2005).

C-21

The final point made by most witnesses at the hearing was the critical role played
by the Commission in informing the debate through the data collection process. “First of
all, you must gather accurate information of what the courts as a whole are doing in
sentencing after Booker rather than having a few unusual results color the debate about
what, if anything, should be done after Booker – in other words, what the outliers
control.” 531 “There will always be outlier cases. In a system that processes 60,000
cases, I would be concerned if there weren’t the occasional ugly case. Among the things
to recognize, of course, is an ugly case at the district court level may not stay an ugly
case. Appellate review oftentimes will fix that.” 532 “Importantly, the challenges for this
Commission are not only in collecting and disseminating data, but describing effectively
and accurately this variance, non-guidelines sentencing idea… And without effective
coding and analysis of the amount of the variance and its nature, there will be a
misimpression of what judges are doing out there.”533 The witnesses counseled the
Commission to play an active role in shaping the ongoing debate about the federal
sentencing system.

531

Piersol, supra note 381 at 19.
Berman, supra note 385 at 111.
533
Id. at 111-12.
532

C-22

APPENDIX D

U.S. SENTENCING COMMISSION
SPECIAL POST-BOOKER CODING PROJECT
CASES SENTENCED ONE YEAR SINCE
U.S. V. BOOKER
DATA EXTRACTION DATE: FEBRUARY 22, 2006

CONTENTS
page

NATIONAL DATA
Comparison of Sentence Imposed And Position Relative to
the Post-Booker Guideline Range . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . D-4
Most Frequently Applied Guidelines: Comparison of Sentence
Imposed And Position Relative to the Guideline Range . . . . . . . . . . . . . . . . D-5
Offenders Sentenced for Each Chapter Two Guideline . . . . . . . . . . . . . . . . . . . D-6

CIRCUIT AND DISTRICT DATA
Guideline Offenders in Each Circuit and District . . . . . . . . . . . . . . . . . . . . . . . D-8
Guideline Application Trends: National and Circuit . . . . . . . . . . . . . . . . . . . . D-10

SENTENCE LENGTHS – MOST FREQUENTLY
APPLIED GUIDELINES
Distribution of Offenders Receiving Sentencing Options . . . . . . . . . . . . . . . . D-15
Average and Median Sentence Imposed: Fiscal Years 2000-2001 . . . . . . . . . D-16
Average and Median Sentence Imposed: Fiscal Years 2002-2003 . . . . . . . . . D-17
Average and Median Sentence Imposed: Pre-Blakely 2004 and Post-Booker . D-18

D-2

DEGREE OF DEPARTURE AND VARIANCE
Departure and Variance Rate by Each Circuit and District . . . . . . . . . . . . . . . . D-19
Substantial Assistance Departures in Each Primary Offense Category . . . . . . D-22
Govt Sponsored Downward Departures in Each Primary Offense Category . . D-23
Other Downward Departures in Each Primary Offense Category . . . . . . . . . . D-24
Otherwise Below Guideline Range in Each Primary Offense Category . . . . . . D-25
Upward Departures in Each Primary Offense Category . . . . . . . . . . . . . . . . . . D-26
Otherwise Above Guideline Range in Each Primary Offense Category . . . . . . D-27

D-3

NATIONAL COMPARISON OF SENTENCE IMPOSED AND
POSITION RELATIVE TO THE GUIDELINE RANGE
Cases Sentenced One Year Since U.S. v. Booker with Data Available to USSC on February 22, 2006
N

TOTAL1

65,368

100.0

WITHIN GUIDELINE RANGE

40,645

62.2

DEPARTURE ABOVE GUIDELINE RANGE
Upward Departure from the Guideline Range2
Upward Departure with Booker /18 U.S.C. § 3553 3

175

0.3

127

0.2

0.1

OTHERWISE ABOVE THE GUIDELINE RANGE
Above the Range with Booker /18 U.S.C. § 3553 4
All Remaining Cases Above the Guideline Range5

859

1.3

426

0.6

433

0.7

GOVERNMENT SPONSORED BELOW RANGE
§5K1.1 Substantial Assistance Departure
§5K3.1 Early Disposition Program Departure
Government-Sponsored Departure6

15,500

23.7

9,402

14.4

4,366

6.7

1,732

2.6

DEPARTURE BELOW GUIDELINE RANGE
Downward Departure from the Guideline Range2
3
Downward Departure with Booker /18 U.S.C. § 3553

2,101

3.2

1,456

2.2

645

1.0

OTHERWISE BELOW THE GUIDELINE RANGE
4
Below the Range with Booker /18 U.S.C. § 3553
All Remaining Cases Below the Guideline Range5

6,088

9.3

3,850

5.9

2,238

3.4

This table reflects the 67,564 cases sentenced one year since U.S. v. Booker (January 12, 2005 through January 11, 2006) with court
documentation cumulatively received, coded, and edited at the U.S. Sentencing Commission by February 23, 2006. Of this total, there are 2,196
cases excluded for one of two general reasons. Some excluded cases involve certain Class A misdemeanors or other offenses which do not
reference a sentencing guideline. Other excluded cases have information missing from the submitted documents that prevents the comparison of
the sentence and the guideline range. As missing documents are received, subsequent U.S. Sentencing Commission data releases will incorporate
the new information.
2
All cases with imposed sentences outside of the guideline range and citing reasons for departure limited to, and affirmatively and specifically
identified in the provisions, policy statements, or commentary of the federalGuidelines Manual.
3

All cases with imposed sentences outside of the guideline range citing reasons for departure limited to, and affirmatively and specifically
identified in the provisions, policy statements, or commentary of the federal Guidelines Manual, and additionally mentioning either U.S. v.
Booker , 18 U.S.C. § 3553, or related factors as a reason for a sentence outside of the guideline range.
4

All cases with imposed sentences outside of the guideline range mentioning only U.S. v. Booker, 18 U.S.C. § 3553, or related factors as a
reason for a sentence outside of the guideline range.
5

Cases with imposed sentences outside of the guideline range that do not fall into the three previous categories. Based on the information
submitted on the Statement of Reasons, these cases cannot be classified as a guideline departure, or as a sentence outside the guideline range
pursuant to Booker /18 U.S.C. § 3553. This category includes cases which cite departure reasons that are not affirmatively and specifically
identified in the provisions, policy statements, or commentary of the federal Guidelines Manual and cases which do not provide any reason for
the sentence outside of the guideline range.
6

Cases with a reason for departure indicating that the prosecution initiates, proposes, or stipulates to a sentence outside of the guideline range,
either pursuant to a plea agreement or as part of a non-plea negotiation with the defendant.
SOURCE: U.S. Sentencing Commission, Special Post-Booker Coding Project, (data extraction on February 22, 2006; table prepared on
February 23, 2006). Summary numbers may not add up to their component parts due to rounding

D-4

MOST FREQUENTLY APPLIED GUIDELINES: COMPARISON OF SENTENCE IMPOSED
AND POSITION RELATIVE TO THE GUIDELINE RANGE
Cases Sentenced One Year Since US v. Booker with Data Available to USSC on February 22, 2006
Four Most Frequently Applied Primary Guidelines
§2D1.1
Drug
Trafficking

All
Cases
N

TOTAL1

65,368

100.0

22,496

WITHIN GUIDELINE RANGE

40,645

62.2

12,122

53.9

5,905

175

0.3

0.1

127

0.2

0.1

859

Above the Range with Booker/18 USC §3553

All Remaining Cases Above the Guideline Range5

§2B1.1
Theft and
Fraud

§2K2.1
Firearms
%

6,423 100.0

6,737

100.0

57.9

4,508

70.2

4,773

70.8

0.2

0.4

0.3

0.1

0.3

0.2

0.0

0.1

1.3

124

0.6

0.9

130

2.0

168

2.5

426

0.6

0.3

0.5

1.0

1.3

433

0.7

0.3

0.4

1.1

1.2

15,500

23.7

7,356

32.7

3,228

31.6

788

12.3

813

12.1

§5K1.1 Substantial Assistance Departure

9,402

14.4

5,817

25.9

0.6

598

9.3

703

10.4

§5K3.1 Early Disposition Program Departure

4,366

6.7

948

4.2

2,835

27.8

0.6

0.2

1,732

2.6

591

2.6

328

3.2

154

2.4

100

1.5

2,101

3.2

697

3.1

322

3.2

262

4.1

236

3.5

1,456

2.2

478

2.1

250

2.5

169

2.6

158

2.3

645

1.0

219

1.0

0.7

1.5

1.2

6,088

9.3

2,179

9.7

645

6.3

710

11.1

726

10.8

3,850

5.9

1,450

6.5

397

3.9

462

7.2

413

6.1

2,238

3.4

729

3.2

248

2.4

248

3.9

313

4.7

DEPARTURE ABOVE GUIDELINE
2

Upward Departure from the Guideline Range

Upward Departure with Booker/18 USC §3553

OTHERWISE ABOVE THE RANGE
4

GOVERNMENT BELOW GUIDELINE

Government-Sponsored Departure

DEPARTURE BELOW GUIDELINE
2

Downward Departure from the Guideline Range

Downward Departure with Booker/18USC §3553

OTHERWISE BELOW THE RANGE
4

Below the Range with Booker/18 USC §3553

All Remaining Cases Below the Guideline Range

§2L1.2
Unlawful
Entry
N

100.0 10,205

100.0

This table reflects the 67,564 cases sentenced one year since the U.S. v. Booker (January 12, 2005 through January 11, 2006), with court
documentation cumulatively received, coded, and edited at the U.S. Sentencing Commission by February 22, 2006. Of this total, there are 2,196
cases excluded for one of two general reasons. Some excluded cases involve certain Class A misdemeanors or other offenses which do not
reference a sentencing guideline. Other excluded cases have information missing from the submitted documents that prevents the comparison
of the sentence and the guideline range. As missing documents are received, subsequent U.S. Sentencing Commission data releases will
incorporate the new information.
2
All cases with imposed sentences outside of the guideline range and citing reasons for departure limited to, and affirmatively and specifically
identified in the provisions, policy statements, or commentary of the federal Guidelines Manual.
3
All cases with imposed sentences outside of the guideline range citing reasons for departure limited to, and affirmatively and specifically
identified in the provisions, policy statements, or commentary of the federal Guidelines Manual, and additionally mentioning either US v. Booker,
18 USC §3553, or related factors as a reason for a sentence outside of the guideline range.
4
All cases with imposed sentences outside of the guideline range mentioning only US v. Booker, 18 USC §3553, or related factors as a reason
for a sentence outside of the guideline range.
5
Cases with imposed sentences outside of the guideline range that do not fall into the three previous categories. Based on the information
submitted on the Statement of Reasons, these cases cannot be classified as a guideline departure, or as a sentence outside the guideline range
pursuant to Booker/18 USC §3553. This category includes cases which cite departure reasons that are not affirmatively and specifically identified
in the provisions, policy statements, or commentary of the federal Guidelines Manual and cases which do not provide any reason for the
sentence outside of the guideline range.
6
Cases with a reason for departure indicating that the prosecution initiates, proposes, or stipulates to a sentence outside of the guideline range,
either pursuant to a plea agreement or as part of a non-plea negotiation with the defendant.
SOURCE: U.S. Sentencing Commission, Special Post-Booker Coding Project, (data extraction on February 22, 2006; table prepared on February
23, 2006). Cases with multiple guideline calculations are classified by the guideline with the highest offense level. Summary numbers may
not add up to their component parts due to rounding.

D-5

OFFENDERS SENTENCED FOR EACH CHAPTER TWO GUIDELINE1
Cases Sentenced One Year Since U.S. v. Booker with Data Available to USSC on February 22, 2006

Guideline

As Primary
Guideline
n
%

2A1.1
2A1.2
2A1.3
2A1.4
2A1.5
2A2.1
2A2.2
2A2.3
2A2.4
2A3.1
2A3.2
2A3.3
2A3.4
2A4.1
2A4.2
2A5.1
2A5.2
2A5.3
2A6.1
2A6.2
2B1.1
2B1.2
2B1.3
2B1.4
2B1.5
2B2.1
2B2.2
2B2.3
2B3.1
2B3.2
2B3.3
2B4.1
2B5.1
2B5.2
2B5.3
2B5.4
2B6.1
2C1.1
2C1.2
2C1.3
2C1.4
2C1.5
2C1.6
2C1.7
2C1.8
2D1.1
2D1.2
2D1.3
2D1.4
2D1.5
2D1.6

151
34
20
32
18
54
340
33
131
145
134
6
30
55
1
0
11
0
149
6
6,880
0
5
10
14
65
0
3
1,782
48
13
57
518
0
131
0
14
217
24
11
2
0
0
33
2
22,911
333
0
0
22
33

0.2
0.1
0.0
0.1
0.0
0.1
0.5
0.1
0.2
0.2
0.2
0.0
0.0
0.1
0.0
0.0
0.0
0.0
0.2
0.0
11.0
0.0
0.0
0.0
0.0
0.1
0.0
0.0
2.8
0.1
0.0
0.1
0.8
0.0
0.2
0.0
0.0
0.3
0.0
0.0
0.0
0.0
0.0
0.1
0.0
36.5
0.5
0.0
0.0
0.0
0.1

As Any
Guideline
n
161
38
20
33
40
82
386
38
151
151
156
6
41
74
1
1
12
0
157
14
7,496
0
5
10
15
77
0
3
1,900
74
18
59
552
0
142
0
14
239
24
11
2
0
0
39
3
24,003
347
0
0
27
166

%
0.2
0.1
0.0
0.0
0.1
0.1
0.6
0.1
0.2
0.2
0.2
0.0
0.1
0.1
0.0
0.0
0.0
0.0
0.2
0.0
11.0
0.0
0.0
0.0
0.0
0.1
0.0
0.0
2.8
0.1
0.0
0.1
0.8
0.0
0.2
0.0
0.0
0.4
0.0
0.0
0.0
0.0
0.0
0.1
0.0
35.2
0.5
0.0
0.0
0.0
0.2

D-6

Guideline

As Primary
Guideline
n
%

As Any
Guideline
n

2D1.7
2D1.8
2D1.9
2D1.10
2D1.11
2D1.12
2D1.13
2D2.1
2D2.2
2D2.3
2D3.1
2D3.2
2D3.3
2D3.4
2D3.5
2E1.1
2E1.2
2E1.3
2E1.4
2E1.5
2E2.1
2E3.1
2E3.2
2E3.3
2E4.1
2E5.1
2E5.2
2E5.3
2E5.4
2E5.5
2E5.6
2F1.1
2F1.2
2G1.1
2G1.2
2G1.3
2G2.1
2G2.2
2G2.3
2G2.4
2G2.5
2G3.1
2G3.2
2H1.1
2H1.2
2H1.3
2H1.4
2H1.5
2H2.1
2H3.1
2H3.2

14
58
0
21
172
26
0
366
45
1
3
0
0
0
0
30
14
0
12
0
28
103
0
0
24
11
0
3
0
0
0
1,162
5
64
1
70
98
527
0
396
1
13
0
48
0
0
0
0
8
10
3

16
98
0
22
191
40
0
453
53
1
3
0
0
0
0
100
78
27
18
0
35
123
0
0
31
15
0
9
0
0
0
1,230
6
111
1
75
116
549
0
438
1
18
0
54
0
0
0
0
8
13
3

0.0
0.1
0.0
0.0
0.3
0.0
0.0
0.6
0.1
0.0
0.0
0.0
0.0
0.0
0.0
0.0
0.0
0.0
0.0
0.0
0.0
0.2
0.0
0.0
0.0
0.0
0.0
0.0
0.0
0.0
0.0
1.9
0.0
0.1
0.0
0.1
0.2
0.8
0.0
0.6
0.0
0.0
0.0
0.1
0.0
0.0
0.0
0.0
0.0
0.0
0.0

%
0.0
0.1
0.0
0.0
0.3
0.1
0.0
0.7
0.1
0.0
0.0
0.0
0.0
0.0
0.0
0.1
0.1
0.0
0.0
0.0
0.1
0.2
0.0
0.0
0.0
0.0
0.0
0.0
0.0
0.0
0.0
1.8
0.0
0.2
0.0
0.1
0.2
0.8
0.0
0.6
0.0
0.0
0.0
0.1
0.0
0.0
0.0
0.0
0.0
0.0
0.0

(continued)

Guideline

As Primary
Guideline
n
%

2H3.3
2H4.1
2H4.2
2J1.1
2J1.2
2J1.3
2J1.4
2J1.5
2J1.6
2J1.7
2J1.8
2J1.9
2K1.1
2K1.2
2K1.3
2K1.4
2K1.5
2K1.6
2K1.7
2K2.1
2K2.2
2K2.3
2K2.4
2K2.5
2K2.6
2K3.1
2L1.1
2L1.2
2L1.3
2L2.1
2L2.2
2L2.3
2L2.4
2L2.5
2M1.1
2M2.1
2M2.2
2M2.3
2M2.4
2M3.1
2M3.2
2M3.3
2M3.4
2M3.5
2M3.6
2M3.7
2M3.8
2M3.9

10
7
0
0
118
65
15
2
49
131
0
0
4
0
45
58
13
1
0
6,478
0
0
1
12
2
0
3,081
10,313
0
370
1,011
0
0
0
1
0
0
0
0
0
0
1
0
0
0
0
0
0

0.0
0.0
0.0
0.0
0.2
0.1
0.0
0.0
0.1
0.2
0.0
0.0
0.0
0.0
0.1
0.1
0.0
0.0
0.0
10.3
0.0
0.0
0.0
0.0
0.0
0.0
4.9
16.4
0.0
0.6
1.6
0.0
0.0
0.0
0.0
0.0
0.0
0.0
0.0
0.0
0.0
0.0
0.0
0.0
0.0
0.0
0.0
0.0

As Any
Guideline
n
14
7
0
26
160
90
28
2
63
138
0
0
5
0
48
80
13
1
0
6,859
0
0
1
14
4
0
3,163
10,444
0
400
1,068
0
0
0
1
0
0
0
0
0
0
1
0
0
0
0
0
0

Guideline

0.0
0.0
0.0
0.0
0.2
0.1
0.0
0.0
0.1
0.2
0.0
0.0
0.0
0.0
0.1
0.1
0.0
0.0
0.0
10.1
0.0
0.0
0.0
0.0
0.0
0.0
4.6
15.3
0.0
0.6
1.6
0.0
0.0
0.0
0.0
0.0
0.0
0.0
0.0
0.0
0.0
0.0
0.0
0.0
0.0
0.0
0.0
0.0

2M4.1
2M5.1
2M5.2
2M5.3
2M6.1
2M6.2
2N1.1
2N1.2
2N1.3
2N2.1
2N3.1
2P1.1
2P1.2
2P1.3
2P1.4
2Q1.1
2Q1.2
2Q1.3
2Q1.4
2Q1.5
2Q1.6
2Q2.1
2Q2.2
2R1.1
2S1.1
2S1.2
2S1.3
2S1.4
2T1.1
2T1.2
2T1.3
2T1.4
2T1.5
2T1.6
2T1.7
2T1.8
2T1.9
2T2.1
2T2.2
2T3.1
2T3.2
2T4.1
2X1.1
2X2.1
2X3.1
2X4.1
2X5.1

As Primary
Guideline
n
%
0
8
27
6
13
1
2
2
0
32
1
217
78
14
0
0
43
40
0
0
0
101
0
18
949
20
261
0
491
0
1
111
0
10
0
0
23
0
0
32
0
0
128
0
103
430
0

0.0
0.0
0.0
0.0
0.0
0.0
0.0
0.0
0.0
0.1
0.0
0.3
0.1
0.0
0.0
0.0
0.1
0.1
0.0
0.0
0.0
0.2
0.0
0.0
1.5
0.0
0.4
0.0
0.8
0.0
0.0
0.2
0.0
0.0
0.0
0.0
0.0
0.0
0.0
0.1
0.0
0.0
0.2
0.0
0.2
0.7
0.0

As Any
Guideline
n
0
9
29
9
13
1
2
2
0
58
3
240
102
14
0
0
45
40
0
0
0
104
0
20
1,037
27
291
0
603
0
1
123
0
11
0
0
36
1
0
37
0
0
1,290
49
120
444
47

Total number of guidelines applied:
Number of cases with at least one guideline applied:
1

Of the 67,564 cases, 4,799 were excluded due to missing guideline applied. The total for any guideline can exceed that for primary guideline
because a case can have several guidelines applied, but only one primary guideline.
SOURCE: U.S. Sentencing Commission, Special Post-Booker Coding Project, BOOKER05 (data extracted February 22, 2006;
table prepared February 23, 2006). Summary numbers may not add up to their component parts due to rounding.

D-7

%
0.0
0.0
0.0
0.0
0.0
0.0
0.0
0.0
0.0
0.1
0.0
0.4
0.1
0.0
0.0
0.0
0.1
0.1
0.0
0.0
0.0
0.2
0.0
0.0
1.5
0.0
0.4
0.0
0.9
0.0
0.0
0.2
0.0
0.0
0.0
0.0
0.1
0.0
0.0
0.1
0.0
0.0
1.9
0.1
0.2
0.7
0.1

68,162
62,765

GUIDELINE OFFENDERS IN EACH CIRCUIT AND DISTRICT1
Cases Sentenced One Year Since U.S. v. Booker with Data Available to USSC on February 22, 2006

CIRCUIT
District

Number

Percent

67,564

100.0

485
485

0.7
0.7

FIRST CIRCUIT
Maine
Massachusetts
New Hampshire
Puerto Rico
Rhode Island

1,528
236
467
181
512
132

2.3
0.3
0.7
0.3
0.8
0.2

SECOND CIRCUIT
Connecticut
New York
Eastern
Northern
Southern
Western
Vermont

3,973
385

5.9
0.6

1,170
363
1,271
590
194

1.7
0.5
1.9
0.9
0.3

THIRD CIRCUIT
Delaware
New Jersey
Pennsylvania
Eastern
Middle
Western
Virgin Islands

3,174
161
947

4.7
0.2
1.4

936
583
430
117

1.4
0.9
0.6
0.2

FOURTH CIRCUIT
Maryland
North Carolina
Eastern
Middle
Western
South Carolina
Virginia
Eastern
Western
West Virginia
Northern
Southern

6,178
675

9.1
1.0

657
443
571
991

1.0
0.7
0.8
1.5

1,594
624

2.4
0.9

316
307

0.5
0.5

TOTAL
D.C. CIRCUIT
District of Columbia

CIRCUIT
District

D-8

Number

Percent

FIFTH CIRCUIT
Louisiana
Eastern
Middle
Western
Mississippi
Northern
Southern
Texas
Eastern
Northern
Southern
Western

14,755

21.8

338
178
391

0.5
0.3
0.6

192
342

0.3
0.5

740
917
6,447
5,210

1.1
1.4
9.5
7.7

SIXTH CIRCUIT
Kentucky
Eastern
Western
Michigan
Eastern
Western
Ohio
Northern
Southern
Tennessee
Eastern
Middle
Western

5,118

7.6

489
375

0.7
0.6

730
403

1.1
0.6

985
618

1.5
0.9

618
323
577

0.9
0.5
0.9

SEVENTH CIRCUIT
Illinois
Central
Northern
Southern
Indiana
Northern
Southern
Wisconsin
Eastern
Western

2,940

4.4

366
1,058
289

0.5
1.6
0.4

368
305

0.5
0.5

367
187

0.5
0.3

(continued)
CIRCUIT
District
EIGHTH CIRCUIT
Arkansas
Eastern
Western
Iowa
Northern
Southern
Minnesota
Missouri
Eastern
Western
Nebraska
North Dakota
South Dakota
NINTH CIRCUIT
Alaska
Arizona
California
Central
Eastern
Northern
Southern
Guam
Hawaii
Idaho
Montana
Nevada
Northern Mariana Islands
Oregon
Washington
Eastern
Western

Number

Percent

4,920

7.3

264
198

0.4
0.3

359
334
549

0.5
0.5
0.8

972
783
811
227
423

1.4
1.2
1.2
0.3
0.6

12,653
202
3,895

18.7
0.3
5.8

1,450
899
631
2,270
124
457
216
397
427
25
533

2.1
1.3
0.9
3.4
0.2
0.7
0.3
0.6
0.6
0.0
0.8

361
766

0.5
1.1

CIRCUIT
District

Number

Percent

TENTH CIRCUIT
Colorado
Kansas
New Mexico
Oklahoma
Eastern
Northern
Western
Utah
Wyoming

5,449
630
624
2,489

8.1
0.9
0.9
3.7

96
204
248
953
205

0.1
0.3
0.4
1.4
0.3

ELEVENTH CIRCUIT
Alabama
Middle
Northern
Southern
Florida
Middle
Northern
Southern
Georgia
Middle
Northern
Southern

6,391

9.5

215
436
333

0.3
0.6
0.5

1,575
317
2,067

2.3
0.5
3.1

418
682
348

0.6
1.0
0.5

D-9

Guideline Application Trends, National and Circuit
Fiscal Years 2001, 2002, 2003, Pre-Blakely FY2004, and Post-Booker FY2005-061
(Post-Booker data extracted February 22, 2006)
NATIONAL
Position of Sentence
Relative to Guideline Range
Within Range
Upward Departures
Otherwise Above Range
Substantial Assistance Departures
Other Gov’t Sponsored Departures
Other Downward Departures
Otherwise Below Range

FY2004 FY2005-06
FY2001

FY2002

FY2003

(Pre-Blakely)

(Booker)

64.0%

65.0%

69.4%

72.2%

62.2%

0.6%

0.8%

0.3%2

—

1.3%3

17.1%

17.4%

15.9%

15.5%

14.4%

—

6.3%

6.4%

9.3%4

18.3%5

16.8%5

7.5%

5.2%

3.2%2

—

9.3%3

FY2001

FY2002

FY2003

(Pre-Blakely)

(Booker)

74.6%

59.9%

64.6%

59.2%

52.5%

0.4%

0.5%

0.2%

1.0%

0.2%2

—

1.9%3

13.8%

31.1%

26.4%

31.3%

24.2%

—

4.4%

3.9%

8.2%4

11.2%5

8.5%5

4.4%

4.7%

2.7%2

—

10.3%3

FY2001

FY2002

FY2003

(Pre-Blakely)

(Booker)

73.3%

75.7%

77.3%

79.6%

65.3%

0.4%

0.6%

0.7%

0.9%

0.3%2

—

2.2%3

14.6%

14.4%

13.5%

13.8%

12.3%

—

0.7%4

0.5%

2.1%4

11.7% 5

9.3% 5

7.8%

5.2%

4.0%2

—

13.9%3

DC CIRCUIT
Position of Sentence
Relative to Guideline Range
Within Range
Upward Departures
Otherwise Above Range
Substantial Assistance Departures
Other Gov’t Sponsored Departures
Other Downward Departures
Otherwise Below Range

FY2004 FY2005-06

FIRST CIRCUIT
Position of Sentence
Relative to Guideline Range
Within Range
Upward Departures
Otherwise Above Range
Substantial Assistance Departures
Other Gov’t Sponsored Departures
Other Downward Departures
Otherwise Below Range

FY2004 FY2005-06

(continued on next page)

D-10

Guideline Application Trends, National and Circuit
Fiscal Years 2001, 2002, 2003, Pre-Blakely FY2004, and Post-Booker FY2005-061
SECOND CIRCUIT
Position of Sentence
Relative to Guideline Range
Within Range
Upward Departures
Otherwise Above Range
Substantial Assistance Departures
Other Gov’t Sponsored Departures
Other Downward Departures
Otherwise Below Range

FY2004

FY2005-06

FY2001

FY2002

FY2003

(Pre-Blakely)

(Booker)

57.5%

61.3%

63.2%

63.8%

50.1%

0.4%

0.6%

0.5%

0.9%

0.2%2

—

0.9%3

21.7%

19.0%

17.5%

19.2%

22.7%

—

2.8%

2.5%

3.0%4

20.4% 5

19.1%5

16.0%

13.6%

6.7%2

—

16.4%3

FY2004

FY2005-06

FY2001

FY2002

FY2003

(Pre-Blakely)

(Booker)

60.2%

58.9%

62.3%

62.6%

52.1%

0.5%

0.9%

0.6%

0.2%2

—

1.1%3

30.6%

32.3%

28.8%

30.3%

27.3%

—

0.6%

0.8%

1.7%4

8.8% 5

7.9%5

7.4%

5.8%

4.1%2

—

13.5%3

FY2004

FY2005-06

FY2001

FY2002

FY2003

(Pre-Blakely)

(Booker)

73.7%

76.6%

77.0%

79.0%

67.2%

0.9%

0.7%

0.6%

1.0%

0.3%2

—

1.3%3

20.2%

18.6%

18.3%

16.7%

17.8%

—

0.3%

1.3%4

5.2% 5

4.2%5

3.8%

3.0%

2.5%2

—

9.7%3

THIRD CIRCUIT
Position of Sentence
Relative to Guideline Range
Within Range
Upward Departures
Otherwise Above Range
Substantial Assistance Departures
Other Gov’t Sponsored Departures
Other Downward Departures
Otherwise Below Range

FOURTH CIRCUIT
Position of Sentence
Relative to Guideline Range
Within Range
Upward Departures
Otherwise Above Range
Substantial Assistance Departures
Other Gov’t Sponsored Departures
Other Downward Departures
Otherwise Below Range

(continued on next page)

D-11

Guideline Application, National and Circuit
Fiscal Years 2001, 2002, 2003, Pre-Blakely FY2004, and Post-Booker FY2005-061
FIFTH CIRCUIT
Position of Sentence
Relative to Guideline Range
Within Range
Upward Departures
Otherwise Above Range
Substantial Assistance Departures
Other Gov’t Sponsored Departures
Other Downward Departures
Otherwise Below Range

FY2004

FY2005-06

FY2001

FY2002

FY2003

(Pre-Blakely)

(Booker)

69.1%

71.0%

73.7%

80.2%

72.0%

0.5%

0.9%

0.8%

0.2%2

—

1.5%3

12.3%

13.4%

12.5%

10.3%

7.8%

—

5.4%

5.2%

9.9%4

18.1% 5

14.7%5

7.5%

3.5%

2.5%2

—

6.1%3

FY2004

FY2005-06

FY2001

FY2002

FY2003

(Pre-Blakely)

(Booker)

65.1%

66.9%

69.1%

69.7%

57.9%

0.5%

0.8%

0.4%

0.5%

0.2%2

—

1.3%3

27.2%

26.0%

24.6%

24.3%

25.0%

—

0.5%

0.4%

1.6%4

7.3% 5

6.3%5

5.3%

5.1%

3.0%2

—

11.0%3

FY2004

FY2005-06

FY2001

FY2002

FY2003

(Pre-Blakely)

(Booker)

71.0%

69.3%

72.5%

75.4%

63.5%

1.0%

0.8%

1.0%

1.3%

0.3%2

—

1.1%3

21.2%

21.8%

21.2%

19.0%

17.2%

—

0.8%

2.6%4

6.9% 5

8.1%5

4.5%

3.6%

3.6%2

—

11.9%3

SIXTH CIRCUIT
Position of Sentence
Relative to Guideline Range
Within Range
Upward Departures
Otherwise Above Range
Substantial Assistance Departures
Other Gov’t Sponsored Departures
Other Downward Departures
Otherwise Below Range

SEVENTH CIRCUIT
Position of Sentence
Relative to Guideline Range
Within Range
Upward Departures
Otherwise Above Range
Substantial Assistance Departures
Other Gov’t Sponsored Departures
Other Downward Departures
Otherwise Below Range

(continued on next page)

D-12

Guideline Application Trends By Circuit
Fiscal Years 2001, 2002, 2003, Pre-Blakely FY2004, and Post-Booker FY2005-061
EIGHTH CIRCUIT
Position of Sentence
Relative to Guideline Range
Within Range
Upward Departures
Otherwise Above Range
Substantial Assistance Departures
Other Gov’t Sponsored Departures
Other Downward Departures
Otherwise Below Range

FY2004

FY2005-06

FY2001

FY2002

FY2003

(Pre-Blakely)

(Booker)

66.8%

69.3%

72.2%

77.0%

64.4%

0.7%

1.2%

1.1%

0.9%

0.4%2

—

1.6%3

22.0%

18.9%

17.6%

15.3%

14.0%

—

2.0%4

2.1%

3.9%4

10.5% 5

10.7%5

7.1%

4.7%

3.5%2

—

12.3%3

FY2004

FY2005-06

FY2001

FY2002

FY2003

(Pre-Blakely)

(Booker)

50.1%

48.8%

59.6%

61.8%

48.5%

0.4%

0.7%

1.1%

0.8%

0.4%2

—

1.2%3

10.7%

11.8%

10.2%

10.6%

10.4%

—

19.2%4

20.4%

27.5%4

38.7% 5

38.7%5

9.9%

6.5%

3.5%2

—

8.6%3

FY2004

FY2005-06

FY2001

FY2002

FY2003

(Pre-Blakely)

(Booker)

65.0%

66.6%

73.1%

73.9%

66.5%

0.7%

0.6%

0.7%

0.1%2

—

0.9%3

11.0%

9.4%

10.3%

9.3%

—

11.4%

10.7%

13.6%4

23.3% 5

21.9%5

5.5%

4.5%

2.9%2

—

6.7%3

NINTH CIRCUIT
Position of Sentence
Relative to Guideline Range
Within Range
Upward Departures
Otherwise Above Range
Substantial Assistance Departures
Other Gov’t Sponsored Departures
Other Downward Departures
Otherwise Below Range

TENTH CIRCUIT
Position of Sentence
Relative to Guideline Range
Within Range
Upward Departures
Otherwise Above Range
Substantial Assistance Departures
Other Gov’t Sponsored Departures
Other Downward Departures
Otherwise Below Range

(continued on next page)

D-13

Guideline Application Trends By Circuit
Fiscal Years 2001, 2002, 2003, Pre-Blakely FY2004, and Post-Booker FY2005-061
ELEVENTH CIRCUIT
Position of Sentence
Relative to Guideline Range
Within Range
Upward Departures
Otherwise Above Range
Substantial Assistance Departures
Other Gov’t Sponsored Departures
Other Downward Departures
Otherwise Below Range

FY2004

FY2005-06

FY2001

FY2002

FY2003

(Pre-Blakely)

(Booker)

72.1%

70.2%

74.5%

74.7%

69.9%

0.6%

0.7%

0.8%

0.4%2

—

1.5%3

19.9%

22.4%

19.9%

21.0%

17.1%

—

0.3%

0.2%

0.9%4

7.5% 5

6.7%5

4.5%

3.3%

2.6%2

—

7.6%3

In 2003, the Commission augmented its data coding procedures to determine the proportion of non-substantial
assistance downward departures that were sponsored by the government. Data prior to 2003 does not
distinguish non-substantial assistance government initiated downward departures from other downward
departures. In this table, data from FY2001and 2002 on “Other Downward Departures” combines both
government sponsored and non-government sponsored downward departures. For FY2003 and FY2004, the
“Other Downward Departures” data distinguishes departures that were sponsored by the government from
those not sponsored by the government. For example, using the national data, 6.3% of downward departures
were government sponsored and 7.5% were other downward departures; the combination of these values
(13.8%) is directly comparable to the data for “Other Downward Departures” from the preceding years. For
FY2004, this table reflects only cases sentenced prior to the Blakely v Washington decision on June 24, 2004.
For FY2005-06, this table reflects cases sentenced one year since the U.S. v Booker (January 12, 2005 through
January 11, 2006), with court documentation cumulatively received, coded, and edited at the U.S. Sentencing
Commission by February 22, 2006. In these cases, a further distinction is made among below guideline range
sentences. The data report three categories of below range sentences: those sponsored by the government;
those not sponsored by the government and citing reasons for departure limited to, and affirmatively and
specifically identified in the provisions, policy statements, or commentary of the federal Guidelines Manual;
and those mentioning only U.S. v. Booker, 18 U.S.C. § 3553, or related factors as a reason for a sentence
outside of the guideline range. Cases citing both reasons for departure limited to, and affirmatively and
specifically identified in the provisions, policy statements, or commentary of the federal Guidelines Manual
and mentioning U.S. v. Booker, 18 U.S.C. § 3553, or related factors are included in the “Other Downward
Departures” category.
2
Includes cases with imposed sentences outside of the guideline range and citing reasons for departure limited
to, and affirmatively and specifically identified in the provisions, policy statements, or commentary of the
federal Guidelines Manual and all cases with imposed sentences outside of the guideline range citing reasons
for departure limited to, and affirmatively and specifically identified in the provisions, policy statements, or
commentary of the federal Guidelines Manual, and additionally mentioning either U.S. v. Booker, 18 U.S.C.
§ 3553, or related factors as a reason for a sentence outside of the guideline range.
3
Includes cases with imposed sentences outside of the guideline range mentioning only U.S. v. Booker, 18
U.S.C. § 3553, or related factors as a reason for a sentence outside of the guideline range and all cases with
imposed sentences outside of the guideline range that do not fall into the previous category. This category
includes cases which cite departure reasons that are not affirmatively and specifically identified in the
provisions, policy statements, or commentary of the federal Guidelines Manual and cases which do not
provide any reason for the sentence outside of the guideline range.
4
Cases with a reason for departure indicating that the prosecution initiates, proposes, or stipulates to a
sentence outside of the guideline range, either pursuant to a plea agreement or as part of a non-plea
negotiation with the defendant. Note that §5K3.1 (Early Disposition Program) cases are included in this
category.
5
Includes cases in which the below range sentence was sponsored by the government and those not
sponsored by the government. Prior to FY2003, the Commission did not code this distinction.
SOURCE: U.S. Sentencing Commission Sourcebook of Federal Sentencing, FY2001 through FY2003,
Table 26; U.S. Sentencing Commission 2004 Fiscal Year Data File, USSCFY04, Pre-Blakely Only Cases
(October 1, 2003 through June 24, 2004); Special Post-Booker Coding Project, (data extracted February
22, 2006; table prepared February 23, 2006). Percents may not sum to 100 percent due to rounding.

D-14

Distribution of Offenders Receiving Sentencing Options for the Most Frequently Applied Guidelines
FY 2000-2003, Pre-Blakely FY 2004, and Post-Booker FY 2005-2006 (data extracted February 22, 2006)
FY 2000
N
%
Drug Trafficking §2D1.11
21,715
2
Prison only
20,422
3
Prison plus confinement conditions
430
Probation plus confinement conditions4
379
5
Probation only
484

FY 2001
N
%

FY 2002
N
%

FY 2003
N
%

Pre-Blakely
FY 2004
N
%

Post-Booker
FY2005-06
N
%

100.0
94.0
2.0
1.7
2.2

22,608
21,143
469
488
508

100.0
93.5
2.1
2.2
2.2

24,013
22,407
515
465
626

100.0
93.3
2.1
1.9
2.6

23,833
22,455
402
469
507

100.0
94.2
1.7
2.0
2.1

16,955
16,081
337
227
310

100.0
94.9
2.0
1.3
1.8

22,446
21,218
485
320
423

100.0
94.5
2.2
1.4
1.9

Immigration Unlawful Entry §2L1.2
6,341
2
Prison only
6,291
3
Prison plus confinement conditions
10
Probation plus confinement conditions4
1
5
Probation only
39

100.0
99.2
0.2
0.0
0.6

5,946
5,901
14
1
30

100.0
99.2
0.2
0.0
0.5

6,993
6,952
7
0
34

100.0
99.4
0.1
0.0
0.5

9,167
9,132
11
2
22

100.0
99.6
0.1
0.0
0.2

7,058
7,032
10
0
16

100.0
99.6
0.1
0.0
0.2

10,232
10,160
19
2
51

100.0
99.3
0.2
0.0
0.5

Firearms §2K2.11
2,997
Prison only2
2,604
3
Prison plus confinement conditions
104
Probation plus confinement conditions4
147
5
Probation only
142

100.0
86.9
3.5
4.9
4.7

3,629
3,177
141
155
156

100.0
87.5
3.9
4.3
4.3

4,173
3,680
158
139
196

100.0
88.2
3.8
3.3
4.7

5,425
4,779
174
224
248

100.0
88.1
3.2
4.1
4.6

4,782
4,292
128
160
202

100.0
89.8
2.7
3.4
4.2

6,266
5,625
188
228
225

100.0
89.8
3.0
3.6
3.6

Theft/Fraud §2B1.1 or §2F1.11
Prison only2
Prison plus confinement conditions3
Probation plus confinement conditions4
Probation only5

100.0
47.2
11.9
17.1
23.8

8,768
4,339
1,053
1,481
1,895

100.0
49.5
12.0
16.9
21.6

9,243
4,531
959
1,421
2,332

100.0
49.0
10.4
15.4
25.2

9,606
4,803
840
1,463
2,500

100.0
50.0
8.7
15.2
26.0

6,909
3,574
629
997
1,709

100.0
51.7
9.1
14.4
24.7

7,781
4,186
716
995
1,884

100.0
53.8
9.2
12.8
24.2

9,015
4,253
1,077
1,540
2,145

Sections report only cases with one single guideline application using the indicated guideline. Cases receiving only monetary sentences are excluded.
Prison only cases receive straight prison time.
3
Prison plus confinement cases receive a combination of prison time and alternative confinement time as defined in USSG §5C1.1.
4
Probation plus confinement cases receive, as a condition of probation, alternative confinement time as defined in USSG §5C1.1.
5
Probation only cases receive straight probation time.
2

SOURCE: U.S. Sentencing Commission, 2000-2003 Fiscal Year Datafiles, USSCFY00-USSCFY03; 2004 Fiscal Year Datafile, USSCFY04, Pre-Blakely Only
Cases (October 1, 2003 through June 24, 2004); Special Post-Booker Coding Project with cases sentenced one year since U.S. v. Booker , January 12, 2005
through January 11, 2006 (data extraction on February 22, 2006; table prepared February 23, 2006). Numbers may not sum to 100 percent due to rounding.

D-15

Average and Median Sentence Imposed1 for the
Most Frequently Applied Guidelines
Fiscal Year 2000 and Fiscal Year 2001

Fiscal Year 2000
Average
Months

Median
GL
Months Median2

Fiscal Year 2001
N

Average
Months

Median
GL
Months Median2

51,342

All Cases (one guideline computation)3

Drug Trafficking §2D1.14
Prison only5
Prison plus confinement conditions6
Probation plus confinement conditions7
Probation only8

72
74
21
6
0

50
57
10
6
0

60
63
21
12
—

21,715
20,422
430
379
484

70
72
29
6
0

48
51
10
6
0

60
60
18
12
—

22,608
21,143
469
488
508

Immigration Unlawful Entry §2L1.24
Prison only5
Prison plus confinement conditions6
Probation plus confinement conditions7
Probation only8

36
36
21
—
0

33
33
10
—
0

46
33
10
—
—

6,341
6,291
10
1
39

35
35
20
—
0

30
30
10
—
0

46
46
12
—
—

5,946
5,901
14
1
30

Firearms §2K2.14
Prison only5
Prison plus confinement conditions6
Probation plus confinement conditions7
Probation only8

53
57
23
7
0

37
37
10
6
0

37
41
12
12
—

2,997
2,604
104
147
142

52
56
22
6
0

37
40
10
6
0

37
41
15
12
—

3,629
3,177
141
155
156

Theft/Fraud §2B1.1 or §2F1.14
Prison only5
Prison plus confinement conditions6
Probation plus confinement conditions7
Probation only8

14
19
9
5
0

10
15
8
6
0

10
15
8
6
—

9,015
4,253
1,077
1,540
2,145

15
20
9
5
0

10
15
8
6
0

12
15
8
6
—

8,768
4,339
1,053
1,481
1,895

51,809

Sentence data report the sum of imprisonment and any type of confinement as defined in USSG §5C1.1.
For the guideline range of the sentencing table applied to the case, the lower value of the sentencing range.
3
All statistics in the table report data for cases with one single guideline computation for the specified fiscal year. The “All Cases”
row reports all cases regardless of the one guideline applied. Cases receiving only monetary sentences are excluded.
4
Each guideline-specific section reports only cases with one single guideline application using the indicated guideline.
5
Prison only sentence categories report straight prison time.
6
Prison plus confinement sentence categories report the sum of prison time and alternative confinement time as defined in USSG
§5C1.1.
7
Probation plus confinement categories report statistics for cases receiving, as a condition of probation, alternative confinement time
as defined in USSG §5C1.1.
8
Probation only categories report cases receiving straight probation time. By definition, the confinement time is zero months for
these cases.
2

SOURCE: U.S. Sentencing Commission, 2000 and 2001 Fiscal Year Datafiles, USSCFY00 and USSCFY01.

D-16

Average and Median Sentence Imposed1 for the
Most Frequently Applied Guidelines
Fiscal Year 2002 and Fiscal Year 2003

Fiscal Year 2002
Average
Months

Median
GL
Months Median2

Fiscal Year 2003
N

Average
Months

Median
GL
Months Median2

55,856

All Cases (one guideline computation)3

Drug Trafficking §2D1.14
Prison only5
Prison plus confinement conditions6
Probation plus confinement conditions7
Probation only8

71
74
22
6
0

51
57
10
6
0

60
57
10
6
—

24,013
22,407
515
465
626

77
79
20
6
0

57
60
10
6
0

63
70
15
12
—

23,833
22,455
402
469
507

Immigration Unlawful Entry §2L1.24
Prison only5
Prison plus confinement conditions6
Probation plus confinement conditions7
Probation only8

30
30
20
—
0

27
27
10
—
0

30
30
10
—
—

6,993
6,952
7
0
34

28
28
22
—
0

24
24
10
—
0

27
27
10
—
—

9,167
9,132
11
2
22

Firearms §2K2.14
Prison only5
Prison plus confinement conditions6
Probation plus confinement conditions7
Probation only8

53
57
18
6
0

37
37
10
6
0

37
37
12
12
—

4,173
3,680
158
139
196

56
59
21
6
0

37
41
10
6
0

37
41
12
12
—

5,425
4,779
174
224
248

Theft/Fraud §2B1.1 or §2F1.14
Prison only5
Prison plus confinement conditions6
Probation plus confinement conditions7
Probation only8

16
20
9
6
0

10
15
10
6
0

12
15
10
6
—

9,243
4,531
959
1,421
2,332

16
21
9
6
0

12
16
10
6
0

12
18
10
6
—

9,606
4,803
840
1,463
2,500

60,786

Sentence data report the sum of imprisonment and any type of confinement as defined in USSG §5C1.1.
For the guideline range of the sentencing table applied to the case, the lower value of the sentencing range.
3
All statistics in the table report data for cases with one single guideline computation for the specified fiscal year. The “All Cases”
row reports all cases regardless of the one guideline applied. Cases receiving only monetary sentences are excluded.
4
Each guideline-specific section reports only cases with one single guideline application using the indicated guideline.
5
Prison only sentence categories report straight prison time.
6
Prison plus confinement sentence categories report the sum of prison time and alternative confinement time as defined in USSG
§5C1.1.
7
Probation plus confinement categories report statistics for cases receiving, as a condition of probation, alternative confinement
time as defined in USSG §5C1.1.
8
Probation only categories report cases receiving straight probation time. By definition, the confinement time is zero months for
these cases.
2

SOURCE: U.S. Sentencing Commission, 2002 and 2003 Fiscal Year Datafiles, USSCFY02 and USSCFY03.

D-17

Average and Median Sentence Imposed1 for the
Most Frequently Applied Guidelines
Pre-Blakely FY 2004 and Post-Booker FY 2005-2006 (data extracted February 22, 2006)

Pre-Blakely FY 2004
Average
Months

Median
GL
Months Median2

Post-Booker FY2005-06
N

Average
Months

Median
GL
Months Median2

44,895

All Cases (one guideline computation)3

60,314

Drug Trafficking §2D1.14
Prison only5
Prison plus confinement conditions6
Probation plus confinement conditions7
Probation only8

83
86
22
6
0

60
60
10
6
0

70
70
12
12
—

16,955
16,081
337
227
310

83
86
19
6
0

60
63
10
6
0

70
78
21
14
—

22,446
21,218
485
320
423

Immigration Unlawful Entry §2L1.24
Prison only5
Prison plus confinement conditions6
Probation plus confinement conditions7
Probation only8

29
29
40
—
0

24
24
34
—
0

24
24
29
—
—

7,058
7,032
10
0
16

27
27
15
—
0

24
24
10
—
0

24
24
15
—
—

10,232
10,160
19
2
51

Firearms §2K2.14
Prison only5
Prison plus confinement conditions6
Probation plus confinement conditions7
Probation only8

59
63
21
6
0

40
42
10
6
0

41
46
10
10
—

4,782
4,292
128
160
202

58
61
26
7
0

37
41
10
6
0

37
41
12
12
—

6,266
5,625
188
228
225

Theft/Fraud §2B1.1 or §2F1.14
Prison only5
Prison plus confinement conditions6
Probation plus confinement conditions7
Probation only8

19
25
9
6
0

12
18
10
6
0

12
18
10
6
—

6,909
3,574
629
997
1,709

21
26
10
6
0

12
18
10
6
0

15
21
10
6
—

7,781
4,186
716
995
1,884

Sentence data report the sum of imprisonment and any type of confinement as defined in USSG §5C1.1.
For the guideline range of the sentencing table applied to the case, the lower value of the sentencing range.
3
All statistics in the table report data for cases with one single guideline computation for the specified fiscal year. The “All Cases”
row reports all cases regardless of the one guideline applied. Cases receiving only monetary sentences are excluded.
4
Each guideline-specific section reports only cases with one single guideline application using the indicated guideline.
5
Prison only sentence categories report straight prison time.
6
Prison plus confinement sentence categories report the sum of prison time and alternative confinement time as defined in USSG
§5C1.1.
7
Probation plus confinement categories report statistics for cases receiving, as a condition of probation, alternative confinement
time as defined in USSG §5C1.1.
8
Probation only categories report cases receiving straight probation time. By definition, the confinement time is zero months for
these cases.
2

SOURCE: U.S. Sentencing Commission, 2004 Fiscal Year Datafile, USSCFY04 Pre-Blakely Only Cases (October 1, 2003
through June 24, 2004); Special Post-Booker Coding Project with cases sentenced one year since U.S. v. Booker, January 12, 2005
through January 11, 2006 (data extraction on February 22, 2006; table prepared February 23, 2006).

D-18

POST-BOOKER DEPARTURE/VARIANCE RATE BY CIRCUIT AND DISTRICT1
Cases Sentenced Subsequent to U.S. v. Booker with Data Available to USSC on February 22, 2006

CIRCUIT
District
TOTAL

TOTAL

SENTENCED
WITHIN
GUIDELINE
RANGE
%

GOVERNMENT
SPONSORED DEPARTURES
BELOW THE
BELOW THE
GUIDELINE
GUIDELINE
RANGE
RANGE
%
%

OTHERWISE
BELOW THE
GUIDELINE
RANGE
%

DEPARTURES
ABOVE THE
GUIDELINE
RANGE
%

OTHERWISE
ABOVE THE
GUIDELINE
RANGE
%

65,368

40,645

62.2

15,500

23.7

2,101

3.2

6,088

9.3

175

0.3

859

1.3

476
476

250
250

52.5
52.5

154
154

32.4
32.4

13
13

2.7
2.7

49
49

10.3
10.3

1
1

0.2
0.2

9
9

1.9
1.9

FIRST CIRCUIT
Maine
Massachusetts
New Hampshire
Puerto Rico
Rhode Island

1,484
233
444
181
499
127

969
168
235
100
380
86

65.3
72.1
52.9
55.2
76.2
67.7

213
51
53
59
43
7

14.4
21.9
11.9
32.6
8.6
5.5

59
5
35
7
9
3

4.0
2.1
7.9
3.9
1.8
2.4

206
8
114
10
48
26

13.9
3.4
25.7
5.5
9.6
20.5

5
0
2
0
2
1

0.3
0.0
0.5
0.0
0.4
0.8

32
1
5
5
17
4

2.2
0.4
1.1
2.8
3.4
3.1

SECOND CIRCUIT
Connecticut
New York
Eastern
Northern
Southern
Western
Vermont

3,889
380

1,949
176

50.1
46.3

1,002
101

25.8
26.6

260
52

6.7
13.7

637
46

16.4
12.1

6
3

0.2
0.8

35
2

0.9
0.5

1,167
360
1,226
562
194

431
191
742
315
94

36.9
53.1
60.5
56.0
48.5

343
114
187
188
69

29.4
31.7
15.3
33.5
35.6

107
20
63
4
14

9.2
5.6
5.1
0.7
7.2

263
32
227
52
17

22.5
8.9
18.5
9.3
8.8

2
0
1
0
0

0.2
0.0
0.1
0.0
0.0

21
3
6
3
0

1.8
0.8
0.5
0.5
0.0

THIRD CIRCUIT
Delaware
New Jersey
Pennsylvania
Eastern
Middle
Western
Virgin Islands

3,127
161
925

1,629
104
478

52.1
64.6
51.7

906
14
293

29.0
8.7
31.7

129
13
41

4.1
8.1
4.4

421
30
103

13.5
18.6
11.1

7
0
1

0.2
0.0
0.1

35
0
9

1.1
0.0
1.0

915
582
428
116

376
273
297
101

41.1
46.9
69.4
87.1

317
223
54
5

34.6
38.3
12.6
4.3

31
20
23
1

3.4
3.4
5.4
0.9

177
54
48
9

19.3
9.3
11.2
7.8

3
3
0
0

0.3
0.5
0.0
0.0

11
9
6
0

1.2
1.5
1.4
0.0

FOURTH CIRCUIT
Maryland
North Carolina
Eastern
Middle
Western
South Carolina
Virginia
Eastern
Western
West Virginia
Northern
Southern

5,871
647

3,944
321

67.2
49.6

1,117
192

19.0
29.7

146
34

2.5
5.3

571
89

9.7
13.8

17
2

0.3
0.3

76
9

1.3
1.4

652
442
567
962

363
334
347
682

55.7
75.6
61.2
70.9

229
56
158
166

35.1
12.7
27.9
17.3

13
8
14
25

2.0
1.8
2.5
2.6

41
40
42
80

6.3
9.0
7.4
8.3

2
0
0
4

0.3
0.0
0.0
0.4

4
4
6
5

0.6
0.9
1.1
0.5

1,367
621

1,030
385

75.3
62.0

94
157

6.9
25.3

25
12

1.8
1.9

182
56

13.3
9.0

5
2

0.4
0.3

31
9

2.3
1.4

312
301

253
229

81.1
76.1

30
35

9.6
11.6

6
9

1.9
3.0

20
21

6.4
7.0

0
2

0.0
0.7

3
5

1.0
1.7

D.C. CIRCUIT
District of Columbia

D-19

CIRCUIT
District

TOTAL

SENTENCED
WITHIN
GUIDELINE
RANGE
%

GOVERNMENT
SPONSORED DEPARTURES
BELOW THE
BELOW THE
GUIDELINE
GUIDELINE
RANGE
RANGE
%
%

OTHERWISE
BELOW THE
GUIDELINE
RANGE
%

DEPARTURES
ABOVE THE
GUIDELINE
RANGE
%

OTHERWISE
ABOVE THE
GUIDELINE
RANGE
%

FIFTH CIRCUIT
Louisiana
Eastern
Middle
Western
Mississippi
Northern
Southern
Texas
Eastern
Northern
Southern
Western

14,662

10,555

72.0

2,605

17.8

360

2.5

889

6.1

0.2

220

1.5

335
178
386

254
111
276

75.8
62.4
71.5

46
46
35

13.7
25.8
9.1

7
1
9

2.1
0.6
2.3

18
8
46

5.4
4.5
11.9

3
2
1

0.9
1.1
0.3

7
10
19

2.1
5.6
4.9

192
333

118
270

61.5
81.1

56
32

29.2
9.6

2
7

1.0
2.1

6
16

3.1
4.8

2
0

1.0
0.0

8
8

4.2
2.4

739
915
6,430
5,154

593
684
4,171
4,078

80.2
74.8
64.9
79.1

84
108
1,582
616

11.4
11.8
24.6
12.0

16
13
218
87

2.2
1.4
3.4
1.7

34
63
399
299

4.6
6.9
6.2
5.8

1
2
16
6

0.1
0.2
0.2
0.1

11
45
44
68

1.5
4.9
0.7
1.3

SIXTH CIRCUIT
Kentucky
Eastern
Western
Michigan
Eastern
Western
Ohio
Northern
Southern
Tennessee
Eastern
Middle
Western

4,985

2,888

57.9

1,330

26.7

147

2.9

547

11.0

0.2

1.3

476
351

241
249

50.6
70.9

187
74

39.3
21.1

4
8

0.8
2.3

30
20

6.3
5.7

0
0

0.0
0.0

14
0

2.9
0.0

725
402

382
266

52.7
66.2

215
64

29.7
15.9

30
12

4.1
3.0

89
51

12.3
12.7

1
2

0.1
0.5

8
7

1.1
1.7

978
596

568
291

58.1
48.8

236
192

24.1
32.2

43
21

4.4
3.5

122
83

12.5
13.9

1
0

0.1
0.0

8
9

0.8
1.5

602
292
563

389
178
324

64.6
61.0
57.5

149
63
150

24.8
21.6
26.6

5
11
13

0.8
3.8
2.3

50
37
65

8.3
12.7
11.5

0
1
3

0.0
0.3
0.5

9
2
8

1.5
0.7
1.4

SEVENTH CIRCUIT
Illinois
Central
Northern
Southern
Indiana
Northern
Southern
Wisconsin
Eastern
Western

2,904

1,845

63.5

572

19.7

103

3.5

344

11.8

0.3

1.1

357
1,045
288

207
600
241

58.0
57.4
83.7

78
251
15

21.8
24.0
5.2

12
50
9

3.4
4.8
3.1

56
134
18

15.7
12.8
6.3

1
2
2

0.3
0.2
0.7

3
8
3

0.8
0.8
1.0

361
301

251
194

69.5
64.5

86
69

23.8
22.9

9
7

2.5
2.3

13
23

3.6
7.6

0
2

0.0
0.7

2
6

0.6
2.0

367
185

193
159

52.6
85.9

65
8

17.7
4.3

13
3

3.5
1.6

87
13

23.7
7.0

2
0

0.5
0.0

7
2

1.9
1.1

EIGHTH CIRCUIT
Arkansas
Eastern
Western
Iowa
Northern
Southern
Minnesota
Missouri
Eastern
Western
Nebraska
North Dakota
South Dakota

4,879

3,144

64.4

874

17.9

169

3.5

598

12.3

0.3

1.6

252
196

169
139

67.1
70.9

33
40

13.1
20.4

9
4

3.6
2.0

36
12

14.3
6.1

3
0

1.2
0.0

2
1

0.8
0.5

358
333
543

246
160
282

68.7
48.0
51.9

50
70
103

14.0
21.0
19.0

6
9
30

1.7
2.7
5.5

37
88
125

10.3
26.4
23.0

3
0
0

0.8
0.0
0.0

16
6
3

4.5
1.8
0.6

962
778
810
225
422

643
514
525
155
311

66.8
66.1
64.8
68.9
73.7

182
147
170
52
27

18.9
18.9
21.0
23.1
6.4

40
8
44
5
14

4.2
1.0
5.4
2.2
3.3

86
94
64
11
45

8.9
12.1
7.9
4.9
10.7

1
0
0
1
9

0.1
0.0
0.0
0.4
2.1

10
15
7
1
16

1.0
1.9
0.9
0.4
3.8

D-20

CIRCUIT
District
NINTH CIRCUIT
Alaska
Arizona
California
Central
Eastern
Northern
Southern
Guam
Hawaii
Idaho
Montana
Nevada
Northern Mariana Islands
Oregon
Washington
Eastern
Western

TOTAL

SENTENCED
WITHIN
GUIDELINE
RANGE
%

GOVERNMENT
SPONSORED DEPARTURES
BELOW THE
BELOW THE
GUIDELINE
GUIDELINE
RANGE
RANGE
%
%

OTHERWISE
BELOW THE
GUIDELINE
RANGE
%

DEPARTURES
ABOVE THE
GUIDELINE
RANGE
%

OTHERWISE
ABOVE THE
GUIDELINE
RANGE
%

11,654
197
3,746

5,656
115
1,069

48.5
58.4
28.5

4,410
34
2,351

37.8
17.3
62.8

402
3
105

3.4
1.5
2.8

1,005
41
142

8.6
20.8
3.8

44
0
32

0.4
0.0
0.9

137
4
47

1.2
2.0
1.3

876
893
614
2,130
121
453
213
393
415
24
511

707
482
378
1,167
64
217
82
300
300
18
276

80.7
54.0
61.6
54.8
52.9
47.9
38.5
76.3
72.3
75.0
54.0

54
316
121
703
43
142
97
47
49
5
113

6.2
35.4
19.7
33.0
35.5
31.3
45.5
12.0
11.8
20.8
22.1

29
24
23
111
5
17
9
10
9
0
21

3.3
2.7
3.7
5.2
4.1
3.8
4.2
2.5
2.2
0.0
4.1

83
63
82
137
9
69
23
19
48
0
93

9.5
7.1
13.4
6.4
7.4
15.2
10.8
4.8
11.6
0.0
18.2

0
2
0
3
0
0
0
4
0
0
1

0.0
0.2
0.0
0.1
0.0
0.0
0.0
1.0
0.0
0.0
0.2

3
6
10
9
0
8
2
13
9
1
7

0.3
0.7
1.6
0.4
0.0
1.8
0.9
3.3
2.2
4.2
1.4

355
713

209
272

58.9
38.1

71
264

20.0
37.0

10
26

2.8
3.6

53
143

14.9
20.1

2
0

0.6
0.0

10
8

2.8
1.1

TENTH CIRCUIT
Colorado
Kansas
New Mexico
Oklahoma
Eastern
Northern
Western
Utah
Wyoming

5,333
612
622
2,461

3,547
324
411
1,607

66.5
52.9
66.1
65.3

1,220
180
123
711

22.9
29.4
19.8
28.9

152
33
14
50

2.9
5.4
2.3
2.0

358
66
63
83

6.7
10.8
10.1
3.4

6
2
2
1

0.1
0.3
0.3
0.0

50
7
9
9

0.9
1.1
1.4
0.4

96
204
220
914
204

84
168
159
664
130

87.5
82.4
72.3
72.6
63.7

10
23
19
101
53

10.4
11.3
8.6
11.1
26.0

1
0
6
43
5

1.0
0.0
2.7
4.7
2.5

1
8
25
99
13

1.0
3.9
11.4
10.8
6.4

0
1
0
0
0

0.0
0.5
0.0
0.0
0.0

0
4
11
7
3

0.0
2.0
5.0
0.8
1.5

ELEVENTH CIRCUIT
Alabama
Middle
Northern
Southern
Florida
Middle
Northern
Southern
Georgia
Middle
Northern
Southern

6,104

4,269

69.9

1,097

18.0

161

2.6

463

7.6

0.4

1.5

214
423
332

129
260
226

60.3
61.5
68.1

74
108
74

34.6
25.5
22.3

2
5
7

0.9
1.2
2.1

7
37
20

3.3
8.7
6.0

1
2
0

0.5
0.5
0.0

1
11
5

0.5
2.6
1.5

1,568
311
1,951

1,028
223
1,512

65.6
71.7
77.5

365
58
198

23.3
18.6
10.1

49
4
45

3.1
1.3
2.3

104
16
176

6.6
5.1
9.0

2
3
5

0.1
1.0
0.3

20
7
15

1.3
2.3
0.8

357
658
290

252
437
202

70.6
66.4
69.7

75
107
38

21.0
16.3
13.1

0
35
14

0.0
5.3
4.8

21
68
14

5.9
10.3
4.8

1
4
4

0.3
0.6
1.4

8
7
18

2.2
1.1
6.2

Of the 67,564 cases, 123 cases with no analogous guidelines were excluded from the table. Of the remaining 67,441 cases, 2,196 were excluded due
to missing departure or variance information.
Descriptions of variables used in this table are provided in Appendix A.

D-21

SUBSTANTIAL ASSISTANCE CASES: DEGREE OF DEPARTURE
FOR OFFENDERS IN EACH PRIMARY OFFENSE CATEGORY1
Cases Sentenced Subsequent to U.S. v. Booker with Data Available to USSC on February 22, 2006
DEGREE OF DECREASE
FOR SUBSTANTIAL ASSISTANCE

PRIMARY OFFENSE
TOTAL
Murder
Manslaughter
Kidnapping/Hostage Taking
Sexual Abuse
Assault
Robbery
Arson
Drugs - Trafficking
Drugs - Communication Facility
Drugs - Simple Possession
Firearms
Burglary/B&E
Auto Theft
Larceny
Fraud
Embezzlement
Forgery/Counterfeiting
Bribery
Tax
Money Laundering
Racketeering/Extortion
Gambling/Lottery
Civil Rights
Immigration
Pornography/Prostitution
Prison Offenses
Administration of Justice Offenses
Environmental/Wildlife
National Defense
Antitrust
Food & Drug
Other Miscellaneous Offenses

n
9,000
10
0
4
6
11
166
10
5,754
63
10
770
1
12
117
904
15
78
52
81
215
153
16
8
284
45
9
122
13
6
10
6
49

Median
Sentence
in Months2
36.0
126.0
-114.5
34.5
42.0
51.0
35.0
50.0
2.9
25.3
36.5
-16.5
5.0
2.8
0.0
1.0
6.0
0.0
12.0
30.0
0.0
14.0
8.3
47.0
2.0
0.0
0.0
8.5
5.0
0.0
2.0

Median Decrease
in Months From
Guideline Minimum
28.0
180.0
-115.5
18.5
18.0
31.5
22.5
39.0
18.0
10.0
24.0
-18.0
10.0
12.0
12.0
10.0
15.5
10.0
22.0
30.0
8.0
11.5
9.0
25.0
6.0
12.0
10.0
18.0
10.0
12.0
15.0

Median Percent
Decrease From
Guideline Minimum
49.9
69.3
-47.1
35.4
31.4
35.8
49.0
45.8
87.5
40.7
46.8
-46.9
66.7
90.0
100.0
92.5
77.5
100.0
63.5
51.1
100.0
40.4
50.0
33.3
66.7
100.0
100.0
80.9
66.7
99.9
86.7

Of the 67,564 cases, 9,402 received a substantial assistance departure. Of these, 9,061 had complete guideline application information. An additional
37 cases were excluded due to several logical criteria. Of the remaining 9,024 cases, 24 were excluded due to one or both of the following reasons:
missing primary offense category (0) or missing sentence information (24).

Cases with guideline minimums of life or probation (i.e., sentence lengths of zero months) were included in the sentence average computations as 470
months and zero months respectively, but were excluded from measures of decrease in the table.
SOURCE: U.S. Sentencing Commission, Special Post-Booker Coding Project, BOOKER05 (data extracted February 22, 2006;
table prepared February 23, 2006). Summary numbers may not add up to their component parts due to rounding.

D-22

GOVERNMENT SPONSORED DOWNWARD DEPARTURE CASES: DEGREE OF
DEPARTURE FOR OFFENDERS IN EACH PRIMARY OFFENSE CATEGORY1
Cases Sentenced Subsequent to U.S. v. Booker with Data Available to USSC on February 22, 2006
DEGREE OF DECREASE
FOR GOVERNMENT SPONSORED
DOWNWARD DEPARTURE3

n
5,810
3
0
1
25
31
24
2
1,462
10
0
213
1
1
24
107
8
17
8
13
30
31
5
0
3,681
30
8
34
4
4
1
3
29

Median
Sentence
in Months2
24.0
57.0
--60.0
19.9
73.5
-24.0
11.6
-30.0
--0.0
6.0
0.0
6.8
5.0
5.0
14.0
41.0
0.0
-24.0
41.0
10.5
10.0
5.0
24.0
-16.0
0.0

Median Decrease
in Months From
Guideline Minimum
9.0
40.0
--21.9
12.0
22.0
-10.0
29.4
-12.0
--10.0
10.0
9.0
10.0
9.5
10.0
7.5
6.0
10.0
-7.0
17.0
5.5
9.6
7.5
22.0
-12.0
12.0

Median Percent
Decrease From
Guideline Minimum
27.3
41.0
--35.8
40.5
25.4
-33.3
71.7
-26.2
--99.9
59.9
99.4
50.2
65.8
66.7
50.3
19.3
100.0
-25.0
23.7
31.9
47.5
58.3
56.6
-23.3
100.0

Of the 67,564 cases, 6,098 received a government sponsored downward departure. Of these, 5,867 had complete guideline application information.
An additional 45 cases were excluded due to several logical criteria. Of the remaining 5,822 cases, 12 were excluded due to one or both of the
following reasons: missing primary offense category (0) or missing sentence information (12).

Cases with guideline minimums of life or probation (i.e., sentence lengths of zero months) were included in the sentence average computations as 470
months and zero months respectively, but were excluded from measures of decrease in the table.
SOURCE: U.S. Sentencing Commission, Special Post-Booker Coding Project, BOOKER05 (data extracted February 22, 2006;
table prepared February 23, 2006). Summary numbers may not add up to their component parts due to rounding.

D-23

OTHER DOWNWARD DEPARTURE CASES: DEGREE OF DEPARTURE
FOR OFFENDERS IN EACH PRIMARY OFFENSE CATEGORY1
Cases Sentenced Subsequent to U.S. v. Booker with Data Available to USSC on February 22, 2006
DEGREE OF DECREASE FOR
OTHER DOWNWARD DEPARTURE3

n
1,978
3
4
0
9
30
63
1
655
9
3
274
1
1
46
202
18
23
4
38
28
18
2
2
408
51
8
45
2
2
1
0
27

Median
Sentence
in Months2
22.0
70.0
24.0
-18.0
12.0
51.0
-60.0
12.0
12.0
22.5
--0.0
1.0
2.5
3.0
0.0
0.0
12.5
24.0
--24.0
18.0
21.0
0.1
----1.0

Median Decrease
in Months From
Guideline Minimum
12.0
27.0
11.0
-9.0
11.0
20.0
-17.0
18.0
22.0
11.0
--7.5
10.0
9.0
10.0
7.0
10.0
10.5
12.0
--9.0
21.0
5.0
10.0
----10.0

Median Percent
Decrease From
Guideline Minimum
34.8
27.8
26.8
-19.6
50.0
25.8
-27.5
50.0
67.5
34.7
--100.0
93.4
84.2
85.7
100.0
100.0
48.5
34.6
--27.2
48.1
22.4
98.7
----96.7

Of the 67,564 cases, 2,101 received an other downward departure. Of these, 1,982 had complete guideline application information. An additional one cases
were excluded due to several logical criteria. Of the remaining 1,981 cases, three were excluded due to one or both of the following reasons: missing
primary offense category (0) or missing sentence information (3).

Cases with guideline minimums of life or probation (i.e., sentence lengths of zero months) were included in the sentence average computations as 470
months and zero months respectively, but were excluded from measures of decrease in the table.
SOURCE: U.S. Sentencing Commission, Special Post-Booker Coding Project, BOOKER05 (data extracted February 22, 2006;
table prepared February 23, 2006). Summary numbers may not add up to their component parts due to rounding.

D-24

OTHERWISE BELOW GUIDELINE RANGE CASES: DEGREE OF VARIANCE
1
FOR OFFENDERS IN EACH PRIMARY OFFENSE CATEGORY
Cases Sentenced Subsequent to U.S. v. Booker with Data Available to USSC on February 22, 2006
DEGREE OF DECREASE
FOR OTHERWISE BELOW
GUIDELINE RANGE3

n
5,656
9
3
2
30
45
127
2
2,065
50
14
809
7
6
131
646
65
84
25
120
124
54
8
7
851
161
22
93
17
3
0
3
73

Median
Sentence
in Months2
26.0
97.0
20.0
-35.0
12.0
52.0
-60.0
13.0
10.4
30.0
6.0
30.0
0.0
5.0
0.0
2.3
0.0
1.0
14.0
45.0
0.0
28.0
19.0
26.0
13.0
6.0
0.0
24.0
-5.0
0.0

Median Decrease
in Months From
Guideline Minimum
12.0
24.5
10.0
-18.0
9.0
15.0
-19.0
10.5
8.1
12.0
6.0
7.0
6.0
9.0
8.0
8.0
10.0
10.0
12.0
18.0
6.0
14.5
9.0
17.0
8.0
10.0
6.0
22.0
-7.0
10.0

Median Percent
Decrease From
Guideline Minimum
33.6
20.2
33.3
-33.3
44.4
20.5
-27.0
36.3
55.5
29.4
52.4
28.2
100.0
67.5
99.6
80.6
100.0
87.5
51.4
36.8
100.0
33.7
33.2
35.1
40.6
66.7
100.0
51.4
-58.3
100.0

Of the 67,564 cases, 6,088 were otherwise below the guideline range and did not cite reasons for departure limited to, and affirmatively and specifically
identified in the provisions, policy statements, or commentary of the federal Guidelines Manual. Of these, 5,678 had complete guideline application
information. An additional eight cases were excluded due to several logical criteria. Of the remaining 5,670 cases, 14 were excluded due to one or both of
the following reasons: missing primary offense category (0) or missing sentence information (14).

Cases with guideline minimums of life or probation (i.e., sentence lengths of zero months) were included in the sentence average computations as 470
months and zero months respectively, but were excluded from measures of decrease in the table.
SOURCE: U.S. Sentencing Commission, Special Post-Booker Coding Project, BOOKER05 (data extracted February 22, 2006;
table prepared February 23, 2006). Summary numbers may not add up to their component parts due to rounding.

D-25

UPWARD DEPARTURE CASES: DEGREE OF DEPARTURE
FOR OFFENDERS IN EACH PRIMARY OFFENSE CATEGORY1
Cases Sentenced Subsequent to U.S. v. Booker with Data Available to USSC on February 22, 2006
DEGREE OF INCREASE
FOR UPWARD DEPARTURE3

n
168
3
4
0
4
7
3
0
20
0
2
31
1
0
2
23
0
4
0
0
0
1
0
0
43
13
1
4
0
0
0
0
2

Median
Sentence
in Months2
60.0
228.0
96.0
-145.5
63.0
150.0
-42.0
--78.0
---48.0
-48.0
------18.0
180.0
-24.0
------

Median Increase
in Months From
Guideline Maximum
14.0
105.0
18.0
-58.5
12.0
35.0
-7.5
--21.0
---14.0
-22.0
------6.0
63.0
-6.0
------

Median Percent
Increase From
Guideline Maximum
33.3
77.8
23.1
-56.5
72.8
31.4
-21.1
--25.0
---47.4
-120.8
------26.3
58.7
-50.0
------

Of the 67,564 cases, 175 received an upward departure. Of these, 170 had complete guideline application information. An additional one cases
were excluded due to several logical criteria. Of the remaining 169 cases, one were excluded due to one or both of the following reasons: missing
primary offense category (0) or missing sentence information (1).

Cases with guideline maximums of life or probation (i.e., sentence lengths of zero months) were included in the sentence average computations as 470
months and zero months respectively, but were excluded from measures of decrease in the table.
SOURCE: U.S. Sentencing Commission, Special Post-Booker Coding Project, BOOKER05 (data extracted February 22, 2006;
table prepared February 23, 2006). Summary numbers may not add up to their component parts due to rounding.

D-26

OTHERWISE ABOVE GUIDELINE RANGE CASES: DEGREE OF VARIANCE
1
FOR OFFENDERS IN EACH PRIMARY OFFENSE CATEGORY
Cases Sentenced Subsequent to U.S. v. Booker with Data Available to USSC on February 22, 2006
DEGREE OF INCREASE
FOR OTHERWISE ABOVE
GUIDELINE RANGE3

n
761
6
4
0
18
28
18
3
107
4
13
132
0
4
34
125
3
15
0
6
11
15
0
0
143
38
7
14
1
0
0
0
12

Median
Sentence
in Months2
59.0
234.0
56.5
-196.0
60.0
174.0
84.0
80.0
29.1
12.0
75.0
-78.0
30.0
45.0
36.0
57.0
-36.0
108.0
84.0
--36.0
120.0
40.0
28.5
----24.0

Median Increase
in Months From
Guideline Maximum
14.0
56.0
14.5
-37.5
25.5
33.5
13.0
20.0
2.1
6.0
16.0
-37.5
10.0
9.0
12.0
14.0
-9.0
15.9
15.0
--8.0
33.0
7.0
8.0
----9.5

Median Percent
Increase From
Guideline Maximum
37.9
32.1
32.7
-33.7
45.6
31.0
50.0
35.7
21.0
100.0
32.4
-95.2
71.4
33.3
46.3
73.2
-38.1
37.9
24.1
--37.0
40.6
21.2
60.7
----50.0

Of the 67,564 cases, 859 were otherwise below the guideline range and did not cite reasons for departure limited to, and affirmatively and specifically
identified in the provisions, policy statements, or commentary of the federal Guidelines Manual. Of these, 788 had complete guideline application
information. An additional 27 cases were excluded due to several logical criteria. Of the remaining 761 cases, zero were excluded due to one or both of
the following reasons: missing primary offense category (0) or missing sentence information (0).

D-27

APPENDIX E

Appendix E-11
Sentences Relative to the Guideline Range for All Cases and Selected Guidelines
Pre-PROTECT Act
(10/1/02-4/30/03)
All Guidelines
Theft/Fraud (§2B1.1)
Drug Trafficking (§2D1.1)
Firearms (§2K2.1)
Immigration (§2L1.1)
Unlawful Entry (§2L1.2)

n
37,699
3,910
14,169
3,121
1,268
5,066

Within/
Gov’t2
90.6
93.4
92.6
88.8
86.4
88.0

% Upward
Departure
0.8
0.8
0.2
1.0
0.5
0.4

% Downward
Departure
8.6
5.8
7.3
10.2
13.1
11.6

Post-PROTECT Act
(5/1/03-6/24/04)
All Guidelines
Theft/Fraud (§2B1.1)
Drug Trafficking (§2D1.1)
Firearms (§2K2.1)
Immigration (§2L1.1)
Unlawful Entry (§2L1.2)

n
75,723
8,463
27,399
7,384
2,516
11,069

Within/
Gov’t
93.7
94.0
95.1
92.3
92.8
93.3

% Upward
Departure
0.8
0.9
0.2
1.3
0.6
0.3

% Downward
Departure
5.5
5.1
4.7
6.5
6.6
6.4

Post-Booker
(1/12/05-1/11/06)
All Guidelines
Theft/Fraud (§2B1.1)
Drug Trafficking (§2D1.1)
Firearms (§2K2.1)
Immigration (§2L1.1)
Unlawful Entry (§2L1.2)

n
65,368
6,597
22,828
6,423
3,023
10,205

Within/
Gov’t
85.9
83.0
86.5
82.5
88.5
89.5

% Upward
Departure
1.6
2.8
0.7
2.4
2.4
1.0

% Downward
Departure
3.2
3.5
3.1
4.1
2.9
3.2

% Booker
9.3
10.7
9.7
11.1
6.2
6.3

Missing information (departure status) reduces the total number of cases.
The “Within/Gov’t” category includes within range sentences and government sponsored downward
departures (Substantial Assistance under USSG §5K1.1, EDP under USSG § 5K3.1 and other governmentsponsored downward departures). See Appendix C for further descriptions of these categories.
2

SOURCE: U.S. Sentencing Commission 2006 Booker Report Datafiles.

E-1

Appendix E-2
Average Sentence Imposed and Average Guideline Minimum
Quarterly Data for §2B1.1 Offenders
FY2002 – Post-Booker
50 Average (Mean)

Average Sentence
Average Guideline Minimum
40

20
Blakely

0
FY2002

FY2003

FY2004

BOOKER

Cases with guideline minimums of life or probation (i.e., sentence lengths of zero months) were included in the sentence average computations as 470
months and zero months respectively. Guideline minimums account for applicable statutory mandatory penalties. Only cases with a single guideline
computation were included.
Cases sentenced on or before December 31, 2005 (last full quarter of post-Booker data) were included in this figure.
SOURCE: U.S. Sentencing Commission 2002-2003 Datafiles, USSCFY2002-USSCFY2003. 2006 Booker Report Datafiles.

Appendix E-3
Average Sentence Imposed and Average Guideline Minimum
Quarterly Data for §2D1.1 Offenders
FY2000 – Post-Booker
Average (Mean)
120
Average Sentence
Average Guideline Minimum
100

Blakely

80
60

0
FY2000

FY2001

FY2002

FY2003

FY2004

BOOKER

Cases with guideline minimums of life or probation (i.e., sentence lengths of zero months) were included in the sentence average computations as 470
months and zero months respectively. Guideline minimums account for applicable statutory mandatory penalties. Also includes §2D1.2 offenders. Only
cases with a single guideline computation were included.
Cases sentenced on or before December 31, 2005 (last full quarter of post-Booker data) were included in this figure.
SOURCE: U.S. Sentencing Commission 2000-2003 Datafiles, USSCFY2000-USSCFY2003. 2006 Booker Report Datafiles.

E-2

Appendix E-4
Average Sentence Imposed and Average Guideline Minimum
Quarterly Data for §2K2.1 Offenders
FY2000 – Post-Booker
70

Average (Mean)
Blakely

60
50

Average Sentence
Average Guideline Minimum

40
30
20
10
0

FY2000

FY2001

FY2002

FY2003

FY2004

BOOKER

Cases with guideline minimums of life or probation (i.e., sentence lengths of zero months) were included in the sentence average computations as 470
months and zero months respectively. Guideline minimums account for applicable statutory mandatory penalties. Only cases with a single guideline
computation were included.
Cases sentenced on or before December 31,2005 (last full quarter of post-Booker data) were included in this figure.
SOURCE: U.S. Sentencing Commission 2000-2003 Datafiles, USSCFY2000-USSCFY2003. 2006 Booker Report Datafiles.

Appendix E-5
Average Sentence Imposed and Average Guideline Minimum
Quarterly Data for §2L1.1 Offenders
FY2000 – Post-Booker
50

Average (Mean)
Average Sentence
Average Guideline Minimum

20
Blakely

0
FY2000

FY2001

FY2002

FY2003

FY2004

BOOKER

Cases with guideline minimums of life or probation (i.e., sentence lengths of zero months) were included in the sentence average computations as 470
months and zero months respectively. Guideline minimums account for applicable statutory mandatory penalties. Only cases with a single guideline
computation were included.
Cases sentenced on or before December 31, 2005 (last full quarter of post-Booker data) were included in this figure.
SOURCE: U.S. Sentencing Commission 2000-2003 Datafiles, USSCFY2000-USSCFY2003. 2006 Booker Report Datafiles.

E-3

Appendix E-6
Average Sentence Imposed and Average Guideline Minimum
Quarterly Data for §2L1.2 Offenders
FY2000 – Post-Booker
50 Average (Mean)

Average Sentence
Average Guideline Minimum
40

30
Blakely

0
FY2000

FY2001

FY2002

FY2003

FY2004

BOOKER

Cases with guideline minimums of life or probation (i.e., sentence lengths of zero months) were included in the sentence average computations as 470
months and zero months respectively. Guideline minimums account for applicable statutory mandatory penalties. Only cases with a single guideline
computation were included.
Cases sentenced on or before December 31, 2005 (last full quarter of post-Booker data) were included in this figure.
SOURCE: U.S. Sentencing Commission 2000-2003 Datafiles, USSCFY2000-USSCFY2003. 2006 Booker Report Datafiles.

E-4

Appendix E-7
Cases with Sentence Reductions
for Cooperation Without A Motion in Each Federal Judicial District
Post-Booker
Cooperation
Without Motion
CIRCUIT
District

TOTAL

9,660

258

100.0

117

0.8

51
48
50
34
4

0
4
0
1
0

0.0
1.6
0.0
0.4
0.0

103

1.2

285
108
175
177
62

15
1
6
0
1

5.8
0.4
2.3
0.0
0.4

9
291

0
5

0.0
1.9

308
211
51
5

14
3
0
0

5.4
1.2
0.0
0.0

169

0.4

230
56
149
162

6
3
5
6

2.3
1.2
1.9
2.3

93
150

6
2

2.3
0.8

27
35

0
0

0.0
0.0

DC CIRCUIT
District of Columbia
FIRST CIRCUIT
Maine
Massachusetts
New Hampshire
Puerto Rico
Rhode Island
SECOND CIRCUIT
Connecticut
New York
Eastern
Northern
Southern
Western
Vermont
THIRD CIRCUIT
Delaware
New Jersey
Pennsylvania
Eastern
Middle
Western
Virgin Islands
FOURTH CIRCUIT
Maryland
North Carolina
Eastern
Middle
Western
South Carolina
Virginia
Eastern
Western
West Virginia
Northern
Southern

E-5

Appendix E-7 (cont.)

District
FIFTH CIRCUIT
Louisiana
Eastern
Middle
Western

TOTAL

Cooperation Without Motion
n
%

39
44
39

1
0
5

0.4
0.0
1.9

31
33

0
2

0.0
0.8

74
105
469
366

2
4
32
6

0.8
1.6
12.4
2.3

181
71

0
2

0.0
0.8

205
65

6
3

2.3
1.2

226
190

2
0

0.8
0.0

146
55
125

2
0
1

0.8
0.0
0.4

75
226
13

2
9
1

0.8
3.5
0.4

80
59

0
1

0.0
0.4

55
8

4
1

1.6
0.4

Mississippi
Northern
Southern
Texas
Eastern
Northern
Southern
Western
SIXTH CIRCUIT
Kentucky
Eastern
Western
Michigan
Eastern
Western
Ohio
Northern
Southern
Tennessee
Eastern
Middle
Western
SEVENTH CIRCUIT
Illinois
Central
Northern
Southern
Indiana
Northern
Southern
Wisconsin
Eastern
Western

E-6

Appendix E-7 (cont.)

District
EIGHTH CIRCUIT
Arkansas
Eastern
Western

TOTAL

Cooperation Without Motion
n
%

33
38

0
0

0.0
0.0

50
73
103

7
5
10

2.7
1.9
3.9

175
147
34
39
22

0
4
2
0
1

0.0
1.6
0.8
0.0
0.4

30
235

1
2

0.4
0.8

42
136
81
132
43
144
65
46
28
4
95

0
1
0
4
0
6
0
0
2
0
4

0.0
0.4
0.0
1.6
0.0
2.3
0.0
0.0
0.8
0.0
1.6

47
107

2
4

0.8
1.6

167
101
75

0
2
2

0.0
0.8
0.8

10
21
18
80
32

0
0
1
2
0

0.0
0.0
0.4
0.8
0.0

Iowa
Northern
Southern
Minnesota
Missouri
Eastern
Western
Nebraska
North Dakota
South Dakota
NINTH CIRCUIT
Alaska
Arizona
California
Central
Eastern
Northern
Southern
Guam
Hawaii
Idaho
Montana
Nevada
Northern Mariana Islands
Oregon
Washington
Eastern
Western
TENTH CIRCUIT
Colorado
Kansas
New Mexico
Oklahoma
Eastern
Northern
Western
Utah
Wyoming

E-7

Appendix E-7 (cont.)

District
ELEVENTH CIRCUIT
Alabama
Middle
Northern
Southern

TOTAL

Cooperation Without Motion
n
%

70
108
71

0
0
0

0.0
0.0
0.0

363
62
194

4
5
11

1.6
1.9
4.3

73
89
37

0
5
1

0.0
1.9
0.4

Florida
Middle
Northern
Southern
Georgia
Middle
Northern

Southern

SOURCE: U.S. Sentencing Commission 2006 Booker Report Datafiles.

E-8

Appendix E-8
Cases with Sentence Reductions for Cooperation
With and Without A Government Motion for Each Offense Type
Post-Booker

Offense Type

USSG §5K1.1
Motion
n
%

TOTAL

Cooperation
Without Motion
n
%

TOTAL

9,657

9,399

100.0

258

100.0

Murder
Kidnapping
Sex Abuse
Assault
Robbery
Arson
Drug Trafficking
Drug Comm. Fac.
Drug Simple Possession
Firearms
Burglary
Auto Theft
Larceny
Fraud
Embezzlement
Forgery
Bribery
Tax Offenses
Money Laundering
Racketeering
Gambling
Civil Rights
Immigration
Porn./Prost.
Prison Offenses
Admin. of Justice
Enviro./Fish&Wildlife
National Defense
Anti Trust
Food & Drug
Other

10
4
7
12
171
10
6,090
65
11
873
1
14
129
991
20
86
54
91
225
160
17
8
322
50
12
137
13
7
10
6
51

10
4
6
11
168
10
5,944
63
11
853
1
14
126
959
16
82
53
85
222
159
17
8
299
48
11
132
13
7
10
6
51

0.1
0.0
0.1
0.1
1.8
0.1
63.2
0.7
0.1
9.1
0.0
0.2
1.3
10.2
0.2
0.9
0.6
0.9
2.4
1.7
0.2
0.1
3.2
0.5
0.1
1.4
0.1
0.1
0.1
0.1
0.5

0
0
1
1
3
0
146
2
0
20
0
0
3
32
4
4
1
6
3
1
0
0
23
2
1
5
0
0
0
0
0

0.0
0.0
0.4
0.4
1.2
0.0
56.6
0.8
0.0
7.8
0.0
0.0
1.2
12.4
1.6
1.6
0.4
2.3
1.2
0.4
0.0
0.0
8.9
0.8
0.4
1.9
0.0
0.0
0.0
0.0
0.0

SOURCE: U.S. Sentencing Commission 2006 Booker Report Datafiles.

E-9

Appendix E-9
Reasons Cited for Below-Range Sentences
Imposed for Cooperation A Without Motion
(Where More Than One Reason Was Cited by the Court)
Reasons
Cooperation - Motion unknown
(Not 5K1.1) Cooperation without motion
18 USC 3553(a)
Criminal History Issues
Judge specifies presence of variance
(5H1.6) Family ties and responsibilities
(5K2.0) General aggravating and mitigating circumstances
Rehabilitation
Nature & circumstances of offense/hist. of def. pursuant to 18 USC 3553 (a)(1)
Mule/Role in the Offense
(5H1.1) Age
Language from 18 USC 3553(a) statute
Acceptance of responsibility
Reasonableness
Reduce disparity
(5H1.5) Previous employment record
(5H1.4) Drug dependence and alcohol abuse
(5H1.3) Mental and emotional conditions
(5H1.4) Physical condition
(5K2.20) Aberrant Behavior
5K1.1 Substantial Assistance without government motion
Advisory nature of the guidelines
General guideline adequacy issues
Reflect seriousness of offense/promote respect for law/just punishment
Restitution
US v Booker/ US v Fanfan
Deterrence
Remorse
Adequate punishment to meet purposes of sentencing
Avoid unwarranted sentencing disparity among defendants
(5H1.11) Military record/charitable Works/good deeds
Afford adequate deterrence to criminal conduct
Provide defendant with educational/vocational training/medical care/etc.
(5H1.2) Educational and vocational skills
(5H1.6) Community ties
Defendant’s positive background/good character
Insufficient documentation provided on SOR to determine reason
Low likelihood of recidivism
Protect public from further crimes
Other3
Total

Number

Percent

114
113
77
63
59
41
33
24
22
20
18
18
14
14
14
11
9
8
8
8
8
7
7
7
7
7
6
6
5
5
4
4
4
3
3
3
3
3
3
59
842

13.5
13.4
9.1
7.5
7.0
4.9
3.9
2.9
2.6
2.4
2.1
2.1
1.7
1.7
1.7
1.3
1.1
0.9
0.9
0.9
0.9
0.8
0.8
0.8
0.8
0.8
0.7
0.7
0.6
0.6
0.5
0.5
0.5
0.4
0.4
0.4
0.4
0.4
0.4
7.0
100.0

The “Other” category includes all reasons provided fewer than three times among relevant cases.

SOURCE: U.S. Sentencing Commission 2006 Booker Report Datafiles.

E-10

Appendix E-10
Demographic Information for Criminal Sexual Abuse Offenders
Post-Booker
USSG §2A3.1
Criminal Sexual
Abuse

Gender
Male
Female
Race
White
Black
Hispanic
Other
Citizenship
U.S.
Non-U.S.
Age
Under 21
21-25
26-30
31-35
36-40
41-50
Over 50
Education
< H.S.
H.S. Grad.
Some Coll.
Coll. Grad.
Criminal History
Category I
Category II
Category III
Category IV
Category V
Category VI

USSG §2A3.2
Sexual Abuse of
a Minor

USSG §2A3.4
Abusive Sexual
Contact

144
1

99.3
0.7

130
4

97.0
3.0

28
1

96.5
3.5

43
4
8
90

29.7
2.8
5.5
62.1

60
10
11
53

44.8
7.5
8.2
39.5

5
0
1
24

16.7
0.0
3.3
80.0

141
4

97.2
2.8

132
2

98.5
1.5

28
1

96.5
3.5

11
25
23
17
20
29
20

7.6
17.2
15.9
11.7
13.8
20.0
13.8

9
36
19
13
16
27
14

6.7
26.9
14.2
9.7
11.9
20.1
10.5

5
4
1
6
4
4
6

16.8
13.3
3.3
20.0
13.3
13.3
20.0

60
46
28
11

41.4
31.7
19.3
7.6

39
50
35
10

29.1
37.3
26.1
7.5

13
11
2
2

46.5
39.3
7.1
7.1

100
22
6
3
9
5

69.0
15.2
4.1
2.1
6.2
3.4

102
15
4
2
7
4

76.1
11.2
3.0
1.5
5.2
3.0

19
6
4
0
1
0

63.4
20.0
13.3
0.0
3.3
0.0

SOURCE: U.S. Sentencing Commission 2006 Booker Report Datafiles.

E-11

Appendix E-11
Demographic Information for Sexual Exploitation Offenders
Post-Booker
USSG §2G2.1
Exploitation of a
Minor

USSG §2G2.2
Trafficking Child
Pornography

USSG §2G2.4
Possession of Child
Pornography

94
4

95.9
4.1

525
2

99.6
0.4

393
3

99.2
0.8

91
4
1
2

92.9
4.1
1.0
2.0

497
6
18
5

94.5
1.1
3.4
1.0

364
3
22
7

91.9
0.8
5.6
1.8

95
3

96.9
3.1

518
9

98.3
1.7

385
11

97.2
2.8

1
4
14
15
16
32
16

1.0
4.1
14.3
15.3
16.3
32.7
16.3

8
49
57
74
74
131
132

1.5
9.3
10.9
14.1
14.1
25.0
25.1

4
37
44
44
52
110
105

1.0
9.3
11.1
11.1
13.1
27.8
26.5

12
35
39
11

12.4
36.1
40.2
11.3

48
183
193
97

9.2
35.1
37.0
18.6

30
121
132
109

7.6
30.9
33.7
27.8

56
13
7
6
8
8

57.1
13.3
7.1
6.1
8.2
8.2

438
36
29
11
10
3

83.1
6.8
5.5
2.1
1.9
0.6

330
29
18
11
4
4

83.3
7.3
4.6
2.8
1.0
1.0

SOURCE: U.S. Sentencing Commission 2006 Booker Report Datafiles.

E-12

Appendix E-12
Demographic Information for Booker Report Datafiles
Pre-PROTECT Act
(10/1/02-4/30/03)

Post-PROTECT Act
(5/1/03-6/24/04)

Post-Booker
(1/12/05-1/11/06)

Number

Percent

Number

Percent

Number

Percent

Gender
Male
Female
Missing

35,245
5,369
303

86.8
13.2
-

68,062
10,735
2,409

86.4
13.6
-

57,986
8,804
774

86.8
13.2
-

Race
White
Black
Hispanic
Other
Missing

12,104
9,317
16,657
1,363
1,476

30.7
23.6
42.2
3.5
-

23,418
18,184
32,536
3,077
3,991

30.3
23.6
42.1
4.0
-

18,735
15,695
27,719
2,936
2,479

28.8
24.1
42.6
4.5
-

Citizenship
U.S. Citizen
Non-Citizen
Missing

25,546
13,551
1,820

65.3
34.7
-

49,467
27,366
4,373

64.4
35.6
-

41,381
23,782
2,401

63.5
36.5
-

Education
Less than High School
High School
Some College
College Graduate
Missing

17,534
11,142
6,337
2,145
3,759

47.2
30.0
17.1
5.8
-

35,143
21,567
11,940
4,026
8,530

48.4
29.7
16.4
5.5
-

29,309
19,038
9,764
3,578
5,875

47.5
30.9
15.8
5.8
-

Age
Less Than 21 Years
21 to 25 Years
26 to 30 Years
31 to 35 Years
36 to 40 Years
41 to 50 Years
Greater Than 50 Years
Missing

1,889
7,351
8,130
6,918
5,410
6,594
3,459
1,166

4.8
18.5
20.5
17.4
13.6
16.6
8.7
-

3,537
14,410
16,142
13,911
10,753
13,133
6,842
2,478

4.5
18.3
20.5
17.7
13.7
16.7
8.7
-

2,464
11,200
13,534
11,951
9,149
11,920
5,915
1,431

3.7
16.9
20.5
18.1
13.8
18.0
8.9
-

SOURCE: U.S. Sentencing Commission 2006 Booker Report Datafiles.

E-13

Appendix E-13
First Offenders
Sentences Relative to the Guideline Range for Each Judicial District
Post-Booker

CIRCUIT
District

TOTAL

15,637

Within-Range
n
%

Upward
Departure
n
%

Government
Sponsored
n
%

Downward
Departure
n
%

Booker
n
%

9,389

60.0

186

1.2

3,683

23.6

563

3.6

1,816

11.6

104

51.9

0.0

36.5

1.9

9.6

58
115
32
259
21

41
62
19
197
17

70.7
53.9
59.4
76.1
81.0

0
1
0
5
0

0.0
0.9
0.0
1.9
0.0

15
17
8
26
1

25.9
14.8
25.0
10.0
4.8

0
8
2
6
0

0.0
7.0
6.3
2.3
0.0

2
27
3
25
3

3.5
23.5
9.4
9.7
14.3

123

43.9

1.6

23.6

19.5

11.4

529
90
507
134
50

170
45
294
83
27

32.1
50.0
58.0
61.9
54.0

7
1
1
0
0

1.3
1.1
0.2
0.0
0.0

147
28
89
38
17

27.8
31.1
17.6
28.4
34.0

71
6
27
0
4

13.4
6.7
5.3
0.0
8.0

134
10
96
13
2

25.3
11.1
18.9
9.7
4.0

40
314

22
148

55.0
47.1

0
2

0.0
0.6

4
106

10.0
33.8

2
15

5.0
4.8

12
43

30.0
13.7

241
89
81
69

87
41
44
58

36.1
46.1
54.3
84.1

1
1
0
0

0.4
1.1
0.0
0.0

92
29
15
4

38.2
32.6
18.5
5.8

3
3
5
1

1.2
3.4
6.2
1.5

58
15
17
6

24.1
16.9
21.0
8.7

129

37.2

0.8

32.6

3.1

26.4

109
53
61
183

64
37
34
114

58.7
69.8
55.7
62.3

1
1
0
0

0.9
1.9
0.0
0.0

32
9
21
33

29.4
17.0
34.4
18.0

3
0
1
9

2.8
0.0
1.6
4.9

9
6
5
27

8.3
11.3
8.2
14.8

318
100

240
61

75.5
61.0

2
2

0.6
2.0

27
25

8.5
25.0

5
1

1.6
1.0

44
11

13.8
11.0

30
51

22
36

73.3
70.6

0
1

0.0
2.0

1
8

3.3
15.7

2
0

6.7
0.0

5
6

16.7
11.8

E-14

CIRCUIT
District
FIFTH CIRCUIT
Louisiana
Eastern
Middle
Western

TOTAL

Within-Range
n
%

Upward
Departure
n
%

Government
Sponsored
n
%

Downward
Departure
n
%

Booker
n
%

100
37
93

73
23
69

73.0
62.2
74.2

2
1
2

2.0
2.7
2.2

11
8
8

11.0
21.6
8.6

5
0
5

5.0
0.0
5.4

9
5
9

9.0
13.5
9.7

21
74

14
55

66.7
74.3

0
1

0.0
1.4

7
9

33.3
12.2

0
3

0.0
4.1

0
6

0.0
8.1

90
150
843
960

76.3
68.5
65.1
80.5

1
7
7
16

0.9
3.2
0.5
1.3

16
32
294
138

13.6
14.6
22.7
11.6

1
5
40
17

0.9
2.3
3.1
1.4

10
25
112
61

8.5
11.4
8.6
5.1

89
75

51
59

57.3
78.7

1
0

1.1
0.0

31
14

34.8
18.7

1
0

1.1
0.0

5
2

5.6
2.7

225
67

100
39

44.4
58.2

4
1

1.8
1.5

69
6

30.7
9.0

13
5

5.8
7.5

39
16

17.3
23.9

222
123

122
62

55.0
50.4

3
4

1.4
3.3

57
42

25.7
34.2

5
1

2.3
0.8

35
14

15.8
11.4

96
48
94

50
21
57

52.1
43.8
60.6

4
0
0

4.2
0.0
0.0

27
15
25

28.1
31.3
26.6

0
3
0

0.0
6.3
0.0

15
9
12

15.6
18.8
12.8

63
273
35

48
146
22

76.2
53.5
62.9

2
4
0

3.2
1.5
0.0

5
60
7

7.9
22.0
20.0

2
19
2

3.2
7.0
5.7

6
44
4

9.5
16.1
11.4

77
80

51
49

66.2
61.3

0
0

0.0
0.0

21
22

27.3
27.5

3
2

3.9
2.5

2
7

2.6
8.8

85
27

41
24

48.2
88.9

3
0

3.5
0.0

12
0

14.1
0.0

3
0

3.5
0.0

26
3

30.6
11.1

Mississippi
Northern
Southern
Texas
Eastern
Northern
Southern
Western

118
219
1,296
1,192

SIXTH CIRCUIT
Kentucky
Eastern
Western
Michigan
Eastern
Western
Ohio
Northern
Southern
Tennessee
Eastern
Middle
Western
SEVENTH CIRCUIT
Illinois
Central
Northern
Southern
Indiana
Northern
Southern
Wisconsin
Eastern
Western

E-15

CIRCUIT
District

TOTAL

Within-Range
n
%

Upward
Departure
n
%

Government
Sponsored
n
%

Downward
Departure
n
%

Booker
n
%

EIGHTH CIRCUIT
Arkansas
Eastern

57
53

39
42

68.4
79.3

1
0

1.8
0.0

5
4

8.8
7.6

4
2

7.0
3.8

8
5

14.0
9.4

56
66
127

40
35
73

71.4
53.0
57.5

3
1
0

5.4
1.5
0.0

5
13
17

8.9
19.7
13.4

2
0
3

3.6
0.0
2.4

6
17
34

10.7
25.8
26.8

185
134
93
85
83

118
82
71
69
66

63.8
61.2
76.3
81.2
79.5

0
1
1
1
3

0.0
0.8
1.1
1.2
3.6

40
22
12
10
1

21.6
16.4
12.9
11.8
1.2

9
1
3
0
3

4.9
0.8
3.2
0.0
3.6

18
28
6
5
10

9.7
20.9
6.5
5.9
12.1

50
951

37
305

74.0
32.1

0
43

0.0
4.5

5
516

10.0
54.3

0
41

0.0
4.3

8
46

16.0
4.8

249
236
Northern
144
Southern
746
Guam
63
Hawaii
182
Idaho
28
Montana
95
Nevada
66
Northern Mariana Islands 16
Oregon
125

201
166
81
264
31
75
13
75
46
14
60

80.7
70.3
56.3
35.4
49.2
41.2
46.4
79.0
69.7
87.5
48.0

0
0
5
2
0
4
0
3
0
1
2

0.0
0.0
3.5
0.3
0.0
2.2
0.0
3.2
0.0
6.3
1.6

16
41
31
366
22
54
11
13
9
1
23

6.4
17.4
21.5
49.1
34.9
29.7
39.3
13.7
13.6
6.3
18.4

7
5
8
53
5
8
1
2
2
0
8

2.8
2.1
5.6
7.1
7.9
4.4
3.6
2.1
3.0
0.0
6.4

25
24
19
61
5
41
3
2
9
0
32

10.0
10.2
13.2
8.2
7.9
22.5
10.7
2.1
13.6
0.0
25.6

62
254

35
102

56.5
40.2

1
2

1.6
0.8

19
77

30.7
30.3

1
6

1.6
2.4

6
67

9.7
26.4

111
116
362

61
69
232

55.0
59.5
64.1

0
0
2

0.0
0.0
0.6

39
31
99

35.1
26.7
27.4

1
1
8

0.9
0.9
2.2

10
15
21

9.0
12.9
5.8

26
44
57
103
27

23
31
42
64
21

88.5
70.5
73.7
62.1
77.8

0
1
0
2
0

0.0
2.3
0.0
1.9
0.0

2
9
6
16
3

7.7
20.5
10.5
15.5
11.1

1
0
2
5
1

3.9
0.0
3.5
4.9
3.7

0
3
7
16
2

0.0
6.8
12.3
15.5
7.4

Western
Iowa
Northern
Southern
Minnesota
Missouri
Eastern
Western
Nebraska
North Dakota
South Dakota
NINTH CIRCUIT
Alaska
Arizona
California
Central

Eastern

Washington
Eastern
Western
TENTH CIRCUIT
Colorado
Kansas
New Mexico
Oklahoma
Eastern
Northern
Western
Utah
Wyoming

E-16

CIRCUIT
District

TOTAL

ELEVENTH CIRCUIT
Alabama
Middle
41
Northern
92
Southern
Florida
Middle
Northern
Southern

Within-Range
n
%

Upward
Departure
n
%

Government
Sponsored
n
%

Downward
Departure
n
%

Booker
n
%

30
47
32

73.2
51.1
72.7

0
2
0

0.0
2.2
0.0

11
29
7

26.8
31.5
15.9

0
2
0

0.0
2.2
0.0

0
12
5

0.0
13.0
11.4

594
45
738

416
32
597

70.0
71.1
80.9

2
3
2

0.3
6.7
0.3

149
5
57

25.1
11.1
7.7

3
1
17

0.5
2.2
2.3

24
4
65

4.0
8.9
8.8

59
190
63

49
121
44

83.1
63.7
69.8

0
3
3

0.0
1.6
4.8

8
33
9

13.6
17.4
14.3

0
6
2

0.0
3.2
3.2

2
27
5

3.4
14.2
7.9

Georgia
Middle
Northern
Southern

SOURCE: U.S. Sentencing Commission 2006 Booker Report Datafiles.

E-17

Appendix E-14
First Offenders
Sentences Relative to the Guideline Range for Each Offense Type
Post-Booker

Offense Type
TOTAL

Murder
Manslaughter
Kidnapping
Sex Abuse
Assault
Robbery
Arson
Drugs-Trafficking
Drugs-Comm. Fac.
Drugs-Simple Poss.
Firearms
Burglary/B&E
Auto Theft
Larceny
Fraud
Embezzlement
Forgery/Counterfeit.
Bribery
Tax Offenses
Money Laundering
Racketeering/Extort.
Gambling/Lottery
Civil Rights
Immigration
Porn./Prostitution
Prison Offenses
Admin. Justice
Environ./Wildlife
National Defense
Antitrust
Food and Drug
Other

TOTAL

Within-Range
n
%

Upward
Departure
n
%

Government
Sponsored
n
%

Downward
Departure
n
%

Booker
n
%

15,633

9,387

60.1

186

1.2

3,682

23.6

563

3.6

1,815

11.6

50.0

10.0

5.0

15.0

20.0

5
14
97
99
121
11
5,941
75
96
576
9
8
548
2,462
303
212
121
309
450
163
40
29
2,598
546
12
362
58
20
14
36
278

2
9
68
66
68
7
3,072
45
92
330
5
4
420
1,507
223
153
61
143
224
81
30
17
1,908
344
10
213
39
8
2
31
195

40.0
64.3
70.1
66.7
56.2
63.6
51.7
60.0
95.8
57.3
55.6
50.0
76.6
61.2
73.6
72.2
50.4
46.3
49.8
49.7
75.0
58.6
73.4
63.0
83.3
58.8
67.2
40.0
14.3
86.1
70.1

2
0
2
5
3
0
23
1
1
11
0
1
4
37
2
1
0
3
8
3
0
0
47
19
0
6
0
0
0
0
5

40.0
0.0
2.1
5.1
2.5
0.0
0.4
1.3
1.0
1.9
0.0
12.5
0.7
1.5
0.7
0.5
0.0
1.0
1.8
1.8
0.0
0.0
1.8
3.5
0.0
1.7
0.0
0.0
0.0
0.0
1.8

0
5
13
10
20
4
1,999
13
0
130
0
1
51
482
17
28
38
65
116
49
7
7
443
40
2
69
13
8
11
3
37

0.0
35.7
13.4
10.1
16.5
36.4
33.7
17.3
0.0
22.6
0.0
12.5
9.3
19.6
5.6
13.2
31.4
21.0
25.8
30.1
17.5
24.1
17.1
7.3
16.7
19.1
22.4
40.0
78.6
8.3
13.3

0
0
4
6
10
0
199
1
0
20
0
0
15
98
12
3
4
25
19
9
0
1
59
36
0
21
0
2
1
0
15

0.0
0.0
4.1
6.1
8.3
0.0
3.4
1.3
0.0
3.5
0.0
0.0
2.7
4.0
4.0
1.4
3.3
8.1
4.2
5.5
0.0
3.5
2.3
6.6
0.0
5.8
0.0
10.0
7.1
0.0
5.4

1
0
10
12
20
0
648
15
3
85
4
2
58
338
49
27
18
73
83
21
3
4
141
107
0
53
6
2
0
2
26

20.0
0.0
10.3
12.1
16.5
0.0
10.9
20.0
3.1
14.8
44.4
25.0
10.6
13.7
16.2
12.7
14.9
23.6
18.4
12.9
7.5
13.8
5.4
19.6
0.0
14.6
10.3
10.0
0.0
5.6
9.4

SOURCE: U.S. Sentencing Commission 2006 Booker Report Datafiles.

E-18

Appendix E-15
Career Offender
Sentences Relative to the Guideline Range for Each Judicial District
Post-Booker
CIRCUIT
District

TOTAL

Within-Range
n
%

Upward Departure
n
%

Government
Sponsored
n
%

Downward
Departure
n
%

Booker
n
%

2,040

914

44.8

0.7

675

33.1

136

6.7

301

14.8

DC CIRCUIT
District of Columbia

27.8

2.8

44.4

5.6

19.4

FIRST CIRCUIT
Maine
Massachusetts
New Hampshire
Puerto Rico
Rhode Island

11
34
18
3
11

7
11
3
1
5

63.6
32.4
16.7
33.3
45.5

0
0
0
0
0

0.0
0.0
0.0
0.0
0.0

3
5
10
0
0

27.3
14.7
55.6
0.0
0.0

1
5
1
1
1

9.1
14.7
5.6
33.3
9.1

0
13
4
1
5

0.0
38.2
22.2
33.3
45.5

9.5

0.0

54.8

19.1

16.7

19
8
19
12
9

3
1
7
4
3

15.8
12.5
36.8
33.3
33.3

0
0
0
0
0

0.0
0.0
0.0
0.0
0.0

7
5
1
7
4

36.8
62.5
5.3
58.3
44.4

1
1
3
0
0

5.3
12.5
15.8
0.0
0.0

8
1
8
1
2

42.1
12.5
42.1
8.3
22.2

3
41

3
6

100.0
14.6

0
0

0.0
0.0

0
22

0.0
53.7

0
3

0.0
7.3

0
10

0.0
24.4

65
56
24

18
21
11

27.7
37.5
45.8

1
0
0

1.5
0.0
0.0

27
29
2

41.5
51.8
8.3

5
2
3

7.7
3.6
12.5

14
4
8

21.5
7.1
33.3

25.0

0.0

42.9

14.3

17.9

55
43
30
66

19
22
14
45

34.6
51.2
46.7
68.2

1
0
0
0

1.8
0.0
0.0
0.0

32
7
13
15

58.2
16.3
43.3
22.7

1
4
0
1

1.8
9.3
0.0
1.5

2
10
3
5

3.6
23.3
10.0
7.6

44
28

32
13

72.7
46.4

0
1

0.0
3.6

2
10

4.6
35.7

1
2

2.3
7.1

9
2

20.5
7.1

12
18

9
9

75.0
50.0

0
0

0.0
0.0

3
0

25.0
0.0

0
4

0.0
22.2

0
5

0.0
27.8

TOTAL

SECOND CIRCUIT
Connecticut
New York
Eastern
Northern
Southern
Western
Vermont
THIRD CIRCUIT
Delaware
New Jersey
Pennsylvania
Eastern
Middle
Western
Virgin Islands
FOURTH CIRCUIT
Maryland
North Carolina
Eastern
Middle
Western
South Carolina
Virginia
Eastern
Western
West Virginia
Northern
Southern

E-19

CIRCUIT
District
FIFTH CIRCUIT
Louisiana
Eastern
Middle
Western
Mississippi
Northern
Southern
Texas
Eastern
Northern
Southern
Western
SIXTH CIRCUIT
Kentucky
Eastern
Western
Michigan
Eastern
Western
Ohio
Northern
Southern
Tennessee
Eastern
Middle
Western
SEVENTH CIRCUIT
Illinois
Central
Northern
Southern
Indiana
Northern
Southern
Wisconsin
Eastern
Western

Within-Range
n
%

Upward Departure
n
%

Government
Sponsored
n
%

9
6
11

3
3
8

33.3
50.0
72.7

0
0
1

0.0
0.0
9.1

5
3
0

55.6
50.0
0.0

0
0
0

0.0
0.0
0.0

1
0
2

11.1
0.0
18.2

2
9

2
8

100.0
88.9

0
0

0.0
0.0

0
1

0.0
11.1

0
0

0.0
0.0

0
0

0.0
0.0

39
14
27
50

29
6
17
27

74.4
42.9
63.0
54.0

1
0
0
1

2.6
0.0
0.0
2.0

8
4
6
14

20.5
28.6
22.2
28.0

1
1
3
3

2.6
7.1
11.1
6.0

0
3
1
5

0.0
21.4
3.7
10.0

16
16

6
5

37.5
31.3

0
0

0.0
0.0

8
7

50.0
43.8

0
1

0.0
6.3

2
3

12.5
18.8

24
25

13
13

54.2
52.0

0
0

0.0
0.0

9
7

37.5
28.0

0
0

0.0
0.0

2
5

8.3
20.0

51
19

21
7

41.2
36.8

0
0

0.0
0.0

23
8

45.1
42.1

1
1

2.0
5.3

6
3

11.8
15.8

46
19
25

20
11
11

43.5
57.9
44.0

0
0
0

0.0
0.0
0.0

20
5
11

43.5
26.3
44.0

0
1
1

0.0
5.3
4.0

6
2
2

13.0
10.5
8.0

26
39
17

10
23
14

38.5
59.0
82.4

0
0
1

0.0
0.0
5.9

9
13
0

34.6
33.3
0.0

2
1
0

7.7
2.6
0.0

5
2
2

19.2
5.1
11.8

7
11

3
7

42.9
63.6

0
0

0.0
0.0

3
3

42.9
27.3

0
1

0.0
9.1

1
0

14.3
0.0

22
17

11
12

50.0
70.6

0
0

0.0
0.0

6
3

27.3
17.7

1
0

4.6
0.0

4
2

18.2
11.8

TOTAL

E-20

Downward
Departure
n
%

Booker
n
%

CIRCUIT
District
EIGHTH CIRCUIT
Arkansas
Eastern
Western
Iowa
Northern
Southern
Minnesota
Missouri
Eastern
Western
Nebraska
North Dakota
South Dakota
NINTH CIRCUIT
Alaska
Arizona
California
Central
Eastern
Northern
Southern
Guam
Hawaii
Idaho
Montana
Nevada
Northern Mariana
Islands
Oregon
Washington
Eastern
Western
TENTH CIRCUIT
Colorado
Kansas
New Mexico
Oklahoma
Eastern
Northern
Western
Utah
Wyoming

Within-Range
n
%

Upward Departure
n
%

Government
Sponsored
n
%

5
4

3
1

60.0
25.0

0
0

0.0
0.0

1
3

20.0
75.0

0
0

0.0
0.0

1
0

20.0
0.0

13
17
37

8
2
13

61.5
11.8
35.1

0
0
0

0.0
0.0
0.0

4
9
10

30.8
53.0
27.0

0
1
5

0.0
5.9
13.5

1
5
9

7.7
29.4
24.3

49
23
17
6
10

22
13
5
3
6

44.9
56.5
29.4
50.0
60.0

0
0
1
0
1

0.0
0.0
5.9
0.0
10.0

6
6
7
2
1

12.2
26.1
41.2
33.3
10.0

5
0
2
1
1

10.2
0.0
11.8
16.7
10.0

16
4
2
0
1

32.7
17.4
11.8
0.0
10.0

6
25

3
6

50.0
24.0

0
0

0.0
0.0

1
17

16.7
68.0

0
0

0.0
0.0

2
2

33.3
8.0

9
17
13
16
1
9
2
5
7
1

6
7
4
1
1
1
0
2
1

66.7
41.2
30.8
6.3
100.0
11.1
0.0
40.0
14.3

0
0
0
1
0
0
0
0
0

0.0
0.0
0.0
6.3
0.0
0.0
0.0
0.0
0.0

2
9
6
13
0
3
2
3
2

22.2
52.9
46.2
81.3
0.0
33.3
100.0
60.0
28.6

1
1
0
1
0
4
0
0
1

11.1
5.9
0.0
6.3
0.0
44.4
0.0
0.0
14.3

0
0
3
0
0
1
0
0
3

0.0
0.0
23.1
0.0
0.0
11.1
0.0
0.0
42.9

1
8

100.0
34.8

0
0

0.0
0.0

0
7

0.0
30.4

0
1

0.0
4.4

0
7

0.0
30.4

6
11

1
2

16.7
18.2

0
0

0.0
0.0

2
8

33.3
72.7

1
0

16.7
0.0

2
1

33.3
9.1

17
27
37

4
16
9

23.5
59.3
24.3

0
1
0

0.0
3.7
0.0

7
6
19

41.2
22.2
51.4

2
1
5

11.8
3.7
13.5

4
3
4

23.5
11.1
10.8

4
9
8
18
5

3
9
4
9
3

75.0
100.0
50.0
50.0
60.0

0
0
0
0
1

0.0
0.0
0.0
0.0
20.0

0
0
1
3
1

0.0
0.0
12.5
16.7
20.0

0
0
1
2
0

0.0
0.0
12.5
11.1
0.0

1
0
2
4
0

25.0
0.0
25.0
22.2
0.0

TOTAL

E-21

Downward
Departure
n
%

Booker
n
%

CIRCUIT
District
TOTAL
ELEVENTH CIRCUIT
Alabama
Middle
4
Northern
9
Southern
4
Florida
Middle
88
Northern
24
Southern
98
Georgia
Middle
14
Northern
13
Southern
19

Within-Range
n
%

Upward Departure
n
%

Government
Sponsored
n
%

2
3
2

50.0
33.3
50.0

0
0
0

0.0
0.0
0.0

1
5
2

25.0
55.6
50.0

1
1
0

25.0
11.1
0.0

0
0
0

0.0
0.0
0.0

35
17
67

39.8
70.8
68.4

0
0
0

0.0
0.0
0.0

27
5
18

30.7
20.8
18.4

11
0
7

12.5
0.0
7.1

15
2
6

17.1
8.3
6.1

9
6
11

64.3
46.2
57.9

0
1
0

0.0
7.7
0.0

5
3
5

35.7
23.1
26.3

0
2
2

0.0
15.4
10.5

0
1
1

0.0
7.7
5.3

SOURCE: U.S. Sentencing Commission 2006 Booker Report Datafiles.

E-22

Downward
Departure
n
%

Booker
n
%

Appendix E-16
Career Offenders
Sentences Relative to the Guideline Range for Each Offense Type
Post-Booker

Offense Type

TOTAL

Within-Range
n
%

Upward
Departure
n
%

Government
Sponsored
n
%

Downward
Departure
n
%

Booker
n
%

TOTAL

2,040

914

44.8

0.7

675

33.1

136

6.7

301

14.8

Murder
Manslaughter
Kidnapping
Sex Abuse
Assault
Robbery
Drug Trafficking
Drug
Communication
Facility
Firearms
Auto Theft
Fraud
Extortion/
Racketeering
Immigration
Pornography/
Prostitution
Prison Offenses
Administration of
Justice
National Defense
Other

5
1
1
3
40
222
1,464

4
1
1
2
31
131
579

80.0
100.0
100.0
66.7
77.5
59.0
39.6

0
0
0
0
1
2
5

0.0
0.0
0.0
0.0
2.5
0.9
0.3

0
0
0
0
3
44
559

0.0
0.0
0.0
0.0
7.5
19.8
38.2

0
0
0
0
2
18
101

0.0
0.0
0.0
0.0
5.0
8.1
6.9

1
0
0
1
3
27
220

20.0
0.0
0.0
33.3
7.5
12.2
15.0

15
188
1
1

11
94
1
1

73.3
50.0
100.0
100.0

0
3
0
0

0.0
1.6
0.0
0.0

3
46
0
0

20.0
24.5
0.0
0.0

0
7
0
0

0.0
3.7
0.0
0.0

1
38
0
0

6.7
20.2
0.0
0.0

28
2

15
0

53.6
0.0

1
0

3.6
0.0

11
1

39.3
50.0

0
0

0.0
0.0

1
1

3.6
50.0

7
41

4
24

57.1
58.5

0
1

0.0
2.4

2
4

28.6
9.8

1
4

14.3
9.8

0
8

0.0
19.5

6
3
12

5
2
8

83.3
66.7
66.7

0
0
1

0.0
0.0
8.3

1
1
0

16.7
33.3
0.0

0
0
3

0.0
0.0
25.0

0
0
0

0.0
0.0
0.0

SOURCE: U.S. Sentencing Commission 2006 Booker Report Datafiles. Of the 2,090 Career Offender cases in the post-Booker Datafile, 50

were excluded due to missing information.

E-23

Appendix E-17
Career Offenders
Distribution of Offenses for Each Category of Sentence
Relative to the Guideline Range
Post-Booker

Offense Type

TOTAL

Within-Range
n
%

Upward
Departure
n
%

Government
Sponsored
n
%

Downward
Departure
n
%

Booker
n

TOTAL

2,040

914

100.0

675

100.0

136

100.0

301

100.0

Murder
Manslaughter
Kidnapping
Sex Abuse
Assault
Robbery
Drug Trafficking
Drug Comm. Fac.
Firearms
Auto Theft
Fraud
Extortion/
Racketeering
Immigration
Pornography/
Prostitution
Prison Offenses
Administration of
Justice
National Defense
Other

5
1
1
3
40
222
1,464
15
188
1
1

4
1
1
2
31
131
579
11
94
1
1

0.4
0.1
0.1
0.2
3.4
14.3
63.4
1.2
10.3
0.1
0.1

0
0
0
0
1
2
5
0
3
0
0

0.0
0.0
0.0
0.0
7.1
14.3
35.7
0.0
21.4
0.0
0.0

0
0
0
0
3
44
559
3
46
0
0

0.0
0.0
0.0
0.0
0.4
6.5
82.8
0.4
6.8
0.0
0.0

0
0
0
0
2
18
101
0
7
0
0

0.0
0.0
0.0
0.0
1.5
13.2
74.3
0.0
5.2
0.0
0.0

1
0
0
1
3
27
220
1
38
0
0

0.3
0.0
0.0
0.3
1.0
9.0
73.1
0.3
12.6
0.0
0.0

28
2

15
0

1.6
0.0

1
0

7.1
0.0

11
1

1.6
0.2

0
0

0.0
0.0

1
1

0.3
0.3

7
41

4
24

0.4
2.6

0
1

0.0
7.1

2
4

0.3
0.6

1
4

0.7
2.9

0
8

0.0
2.7

6
3
12

5
2
8

0.6
0.2
0.9

0
0
1

0.0
0.0
7.1

1
1
0

0.2
0.2
0.0

0
0
3

0.0
0.0
2.2

0
0
0

0.0
0.0
0.0

SOURCE: U.S. Sentencing Commission 2006 Booker Report Datafiles. Of the 2,090 Career Offender cases in the post-Booker Datafile, 50

were excluded due to missing information.

E-24

Appendix E-18
Fast Track Programs Authorized by the Deputy Attorney General
October 29, 20044
District

Fast Track Program

Arizona

Illegal Reentry After Deportation Cases
Transportation or Harboring of Aliens Cases
Alien Baby/Child Smuggling and “Bringing In” (i.e., cases involving
defendants caught guiding defendants across the border) Cases
Drug Cases Arising Along the Border
First Time Marijuana Offenses Along the Border Involving Less Than
20 Kilograms of Marijuana and First Time Drug Backpacking
Offenses (regardless of the amount of marijuana carried)

California Central

Illegal Reentry After Deportation Cases

California Eastern

Illegal Reentry After Deportation Cases

California Northern

Illegal Reentry After Deportation Cases

California Southern

Illegal Reentry After Deportation Cases
Transportation or Harboring of Aliens Cases
Drug Cases Arising Along the Border

Florida Southern

Cases Involving Aliens Using False/Fraudulent Immigration Documents

Georgia Northern

Cases Involving Aliens Using False/Fraudulent Immigration Documents

Idaho

Illegal Reentry After Deportation Cases

Nebraska

Illegal Reentry After Deportation Cases

New Mexico

Illegal Reentry After Deportation Cases
Transportation or Harboring of Aliens Cases
Drug Backpacking Cases

New York Eastern

Drug Courier Cases Arising out of John F. Kennedy International
Airport

North Dakota

Illegal Reentry After Deportation Cases

Oregon

Illegal Reentry After Deportation Cases

Texas Southern

Laredo Division Drug Cases Arising Along the Border
Illegal Reentry After Deportation Cases
Transportation or Harboring of Aliens Cases

Texas Western

Illegal Reentry After Deportation Cases
Transportation or Harboring of Aliens Cases
Drug Cases Arising at Border Ports of Entry

Washington Western

Illegal Reentry After Deportation Cases

Each of the Fast Track Programs listed above is authorized until September 30, 2005. In order to continue
a Fast Track Program beyond September 30, 2005, USAOs must submit a request for reauthorization to the
Executive Office for United States Attorneys (EOUSA) by September 1, 2005.
SOURCE: United States Department of Justice. 2005 Report on the Department of Justice’s Fast Track
Programs. Washington, D.C.

E-25