THE INFLUENCE OF THE GUIDELINES 

ON FEDERAL SENTENCING

Federal Sentencing Outcomes, 2005 - 2017

December 2020

United States Sentencing Commission

THE INFLUENCE OF THE GUIDELINES

ON FEDERAL SENTENCING

CHARLES R. BREYER 

Commissioner

DANNY C. REEVES 

Commissioner

PATRICIA K. CUSHWA

Ex Officio

CANDICE C. WONG

Ex Officio

KENNETH P. COHEN

Staff Director

JAMES T. STRAWLEY

Deputy Staff Director

DECEMBER 2020

REPORT OF THE UNITED STATES SENTENCING COMMISSION

National Sentencing Practices from 2005–2017

1

TABLE OF CONTENTS

INTRODUCTION & KEY FINDINGS

5	 The Influence of the Guidelines on Federal Sentencing Outcomes

7	 Updated Analysis on the Influence of the Sentencing Guidelines

18 	 Summary of Findings

METHODOLOGY

9	 The Commission’s 2012 Study of the Anchoring Effect of the Guidelines

13	 Expanding the Methodology of the 2012 Booker Report

16	 Data Analysis – Measuring the Influence of the Guidelines

FINDINGS

20	 Results of the Aggregate Analysis

21	 All Cases Methodology

23	 Judicial Discretion Methodology

25	 Impact of Substantial Assistance

26	 Results of the Guideline-Specific Analyses

Economic Crime | §2B1.1

27	 Economic Crime Offenders Sentenced Under §2B1.1

28	 §2B1.1 Analysis All Cases Methodology

30	 Judicial Discretion Methodology

Drug Trafficking | §2D1.1

32	 Drug Trafficking Offenders Sentenced Under §2D1.1

33	 §2D1.1 Analysis All Cases Methodology

36	 Judicial Discretion Methodology

Firearms | §2K2.1

38	 Firearms Offenders Sentenced Under §2K2.1

39	 §2K2.1 Analysis	All Cases Methodology

41	 Judicial Discretion Methodology
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TABLE OF CONTENTS

FINDINGS (continued)

Illegal Reentry | §2L1.2

43	 Illegal Reentry Offenders Sentenced Under §2L1.2

44	 §2L1.2 Analysis All Cases Methodology

46	 Judicial Discretion Methodology

Non-Production Child Pornography | §2G2.2

48	 Non-Production Child Pornography Offenders Sentenced Under §2G2.2

50	 §2G2.2 Analysis All Cases Methodology

52	 Judicial Discretion Methodology

Career Offenders | §4B1.1

54	 Career Offenders Sentenced Under §4B1.1

55	 §4B1.1 Analysis All Cases Methodology

57	 Judicial Discretion Methodology

CONCLUSION

60	 The Influence of the Guidelines on Federal Sentencing Outcomes
3

TABLE OF CONTENTS

APPENDIX A

63	 Judicial Discretion Methodology with

	 Substantial Assistance Cases Included

64	 Aggregate Analysis

65	 Economic Crimes

66	 Drug Trafficking

67	 Firearms

68	 Illegal Reentry

69	 Child Pornography

70	 Career Offender

APPENDIX B

71	 USSG §2D1.1 Analysis by Individual Drug Type

72	 Powder Cocaine

74	 Crack Cocaine

76	 Heroin

78	 Marijuana

80	 Methamphetamine

82	 Other Drug

APPENDIX C

84	 Percent Difference Graph of Combined

	 Guideline-Specific Analyses

ENDNOTES

86	 Endnotes

Appendices
4 | https://www.ussc.gov/topic/research-reports 

This report, the fourth 

in the series, updates 

the 2012 Booker Report’s 

examination of the 

influence of the guideline 

range on the average 

sentence imposed.
5

INTRODUCTION

The Influence of the Guidelines on 

Federal Sentencing Outcomes

National Sentencing Practices from 2005–2017

The United States Sentencing Commission provides 

timely and objective data, information, and analysis 

about federal sentencing practices as part of its mission 

to promote fairness and consistency in sentencing.1 This 

report continues the Commission’s work analyzing the 

influence of the sentencing guidelines on sentencing 

outcomes in the federal courts since the 2005 Supreme 

Court decision in United States v. Booker.

2

Specifically, this report builds on the Commission’s 

2012 report to Congress, Report on the Continuing 

Impact of United States v. Booker on Federal Sentencing,

3

which examined the influence of the guideline range 

calculated from the Guidelines Manual on sentences 

imposed from October 1995 to September 2011. 

The 2012 Booker Report compared the average 

guideline range minimum with the average sentence 

imposed for five offense types and the career offender 

enhancement. Given that its time frame began prior 

to Booker, the report tracked this comparison over 

periods of time when the sentencing guidelines were 

mandatory as well as advisory. The Commission found 

that the guidelines “remained the essential starting 

point in all federal sentences and . . . continued to exert 

significant influence on federal sentencing trends over 

time.”4 However, while the influence of the guidelines 

was generally stable for certain guidelines, such as 

drug trafficking, firearms, and immigration offenses, 

its influence had diminished for others, such as child 

pornography and fraud offenses.5

Following the 2012 Booker Report, the Supreme Court 

discussed the Commission’s findings in Peugh v. United 

States.

6 In Peugh, the Court held that the Ex Post Facto 

Clause is violated when a defendant is sentenced under 

current guidelines that yield a higher guideline range 

than the guidelines in effect at the time of the offense.7

Citing to findings in the 2012 Booker Report and other 

Commission data publications, the Court explained that 

there is “considerable empirical evidence indicating 

that the Sentencing Guidelines have the intended 

effect of influencing sentences imposed by judges” and 

that “the Sentencing Commission’s data indicate that 

when a Guidelines range moves up or down, offenders’ 

sentences move with it.”8 The Court noted that after 

Booker, sentencing courts must still begin their analysis 

by correctly calculating the guideline range, which 

will “anchor” their discretion and the appellate review 

process.9 Thus, the Court concluded that the Guidelines 

continue to be the “lodestone” of sentencing and a 

retrospective increase in the guideline range creates a 

risk of a higher sentence.10

INTRODUCTION
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Since then, the Commission has continued to study 

whether the degree of influence found in Peugh has 

changed in a series of reports updating the 2012 

Booker Report’s analyses and findings. In 2017, the first 

update focused on demographic differences in federal 

sentencing.11 The Commission concluded that increases 

in demographic differences in sentencing during the first 

seven years after Booker—including a longer average 

sentence for black male offenders compared to similar 

white male offenders—persisted in the subsequent 

five-year period.12 In 2019, a second update compared 

judges’ individual sentencing practices within the same 

city and reported that the increasing differences in 

district-level sentencing practices found in the 2012 

Booker Report had continued, even within the same 

courthouse.13 In 2020, a third update examined 

sentencing practices across districts, comparing 

each district’s sentencing practices to the average 

sentencing practices of all districts in the analysis and 

similarly found that disparities in sentencing practices 

persisted.14

This report, the fourth in the series, updates the 2012 

Booker Report’s examination of the influence of the 

guideline range on the average sentence imposed. 

Using sentencing data collected from 2005 to 2017, 

the same time frame as the 2019 and 2020 reports, this 

report first replicates the analysis in the 2012 Booker 

Report. This analysis compares, for all cases during the 

study period, the average guideline range minimum 

with the average sentence imposed under all guidelines 

in the aggregate, and then does the same under 

six individual guidelines: economic offenses under 

§2B1.1, drug trafficking offenses under §2D1.1, nonproduction child pornography offenses under §2G2.2 

(and §2G2.415), firearms offenses under §2K2.1, illegal 

reentry offenses under §2L1.2, and the career offender 

enhancement under §4B1.1.16 Next, the report limits 

this analysis to cases in which the Commission could 

meaningfully assess judicial discretion. 

Both sets of analyses show that, while the difference 

between the average guideline minimum and average 

sentence imposed has increased for most guidelines 

since Booker, the difference has generally stabilized in 

the most recent study years following the 2012 Booker

Report. Notably, however, the difference between the 

average guideline minimum and the average sentence 

imposed is consistently narrower when the analysis is 

limited to cases in which judicial discretion could be 

meaningfully assessed. While this narrowing is largely 

due to the impact of excluding substantial assistance 

departures, this trend nevertheless indicates that the 

guidelines exert a greater influence on sentences 

imposed in cases in which judicial discretion could be 

meaningfully assessed than in cases in which it could 

not. 
7

KEY FINDINGS

Updated Analysis on the Influence of the 

Sentencing Guidelines

In this report, the Commission analyzes the difference between average guideline minimums and average 

sentences imposed. These differences, measured in a raw number of months and average percentage 

difference, are analyzed for all cases in the aggregate and selected individual guidelines across three time 

periods between 2005 and 2017: the Booker, Gall, and Post-Report Periods.17 While the extent of those 

differences vary depending on the individual guideline, the Commission found several overarching trends 

indicating that the guidelines generally continue to have a substantial influence on sentences imposed 

after Booker.

•	 In the wake of Booker and Gall and continuing into the Post-Report Period, the difference between the average 

guideline minimum and average sentence imposed widened for the federal caseload overall, indicating that 

the influence of the guidelines generally decreased after Booker rendered them advisory. However, this trend 

has not continued in the most recent years of the Post-Report Period, suggesting that the influence of the 

guidelines may have stabilized.

•	 The influence of the guidelines continued to vary substantially depending on the type of offense throughout 

the Post-Report Period. As indicated by the difference between the average guideline minimum and average 

sentence imposed, the guidelines continued to exert a strong influence on sentences imposed in firearms and 

illegal reentry offenses, a more moderate influence on sentences imposed in fraud and drug offenses, and a 

weakening influence in non-production child pornography offenses and career offender cases. 

•	 Major amendments by the Commission to the drug trafficking and illegal reentry guidelines 

appear to have strengthened their influence during the most recent years of the Post-Report 

Period. The difference between the average guideline minimum and average sentence imposed 

for these two guidelines narrowed after the Commission reduced the Drug Quantity Table by 

two offense levels in 2014 and comprehensively revised the illegal reentry guideline in 2016.

•	 The guidelines generally exert a greater influence on sentences imposed in cases in which judicial discretion 

could be meaningfully assessed. Excluding cases in which judicial discretion could not be meaningfully assessed 

narrowed the difference between the average guideline minimum and the average sentence imposed for the 

federal caseload overall, and for all but one individual offense type studied, across every time period studied. 

This narrowing was largely attributable to the exclusion of cases with substantial assistance departures, which 

resulted in an average sentence reduction of 51.8 percent. Sentence reductions for substantial assistance 

require a government motion and afford substantial weight to the government’s evaluation. 

KEY FINDINGS
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9

METHODOLOGY

The Commission’s 2012 Study of the 

Anchoring Effect of the Guidelines

This report updates the 2012 Booker Report’s analysis 

of the influence of the guideline range on sentencing, 

both in terms of the time period examined and 

methodology used. In addition to updating the 2012 

findings to analyze a more recent time period, this 

report incorporates the methodology used in the 

Commission’s more recent Intra-City Report and InterDistrict Report. 

Congress included three provisions intended to reduce 

the extent of unwarranted sentencing disparities in the 

Sentencing Reform Act.18 As part of those provisions, 

Congress instructed the Commission to pay “particular 

attention” to avoiding unwarranted sentencing 

disparities in creating guidelines.19 Although the 

Supreme Court’s decision in Booker rendered the 

guidelines advisory — thereby providing courts with 

more discretion in sentencing than under the preBooker guidelines — the Court did not invalidate those 

three provisions. Indeed, the Court specifically stated 

that it believed the post-Booker advisory guideline 

system would “promote uniformity in the sentencing 

process” and thus help avoid unwarranted sentencing 

disparities.20

METHODOLOGY

the Koon period (the Supreme Court’s 1996 

decision in Koon v. United States21 until the 

enactment of the PROTECT Act22 on April 30, 

2003);

the PROTECT Act period (April 30, 2003 through 

the Supreme Court’s 2004 decision in Blakely v. 

Washington,

23 which foreshadowed the Supreme 

Court’s 2005 decision in United States v. Booker24);

the Booker period (January 12, 2005, through 

December 9, 2007); and 

the Gall period (the date of the Gall and Kimbrough

decisions25 through the end of fiscal year 2011). 

In furtherance of those directives, the Commission 

has continued to study sentencing variations from the 

guidelines. In the 2012 Booker Report, the Commission 

examined the influence of the guideline range on 

sentences imposed across four time periods:
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To examine the extent to which the guidelines influence 

sentencing outcomes, the report used two-line graphs 

to compare the average guideline range minimum and 

the average sentence imposed.26 

The distance between the two lines reflected 

how closely the sentences were adhering to their 

corresponding guideline ranges and, therefore, how 

much the guidelines were generally continuing to 

anchor the sentences.27 Thus, the farther apart the lines 

were from each other, the less the average guideline 

minimum appeared to anchor the average sentence 

imposed.28 Accompanying each two-line graph was a 

percentage graph with a single line representing the 

corresponding percent difference between the average 

guideline minimum and average sentence imposed over 

time.29 

Percent

-50.0

-40.0

-30.0

-20.0

-10.0

 0.0

 10.0

 20.0

 30.0

 40.0

 50.0

1996 1997 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011

Koon

Period

PROTECT

Act

Period

Blakely

Period

Booker

Period

Gall

Period

Percent Difference Between Average Guideline Minimum and Sentence Imposed

All Offenses

Fiscal Years 1996-2011

SOURCE: U.S. Sentencing Commission, 2011 Booker Report Datafiles.

-16.1

-13.8

-15.3 -15.5 -17.2 -17.2 -14.0 -12.1 -10.2 -13.1 -14.3 -14.1 -14.8 -16.7 -17.2 -17.9

Months

0

20

40

60

80

100

1996 1997 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011

Koon

Period

PROTECT

Act

Period

Blakely

Period

Booker

Period

Gall

Period

Average Guideline Minimum and Sentence Imposed

All Cases

Fiscal Years 1996-2011

SOURCE: U.S. Sentencing Commission, 2011 Booker Report Datafiles.

Average Guideline Minimum Average Sentence Imposed
11

The report noted, however, that the fact there was a 

difference between the average guideline minimum and 

average sentence imposed did not necessarily indicate 

that the guidelines lacked influence on sentencing 

because some sentences were lower than the guideline 

minimum due to departures for substantial assistance 

or an Early Disposition Program, both of which are 

based on specific statutory authority and incorporated 

into the Guidelines Manual.

30 To the contrary, where 

the lines were consistently parallel, the influence of the 

guidelines was relatively stable, even if the difference 

between the average guideline minimum and the 

average sentence imposed was substantial.31

The 2012 Booker Report analyzed data for all offenses 

in the aggregate, as well as five specific offense 

types (drug trafficking offenses, firearms offenses, 

immigration offenses, fraud offenses, and nonproduction child pornography offenses) and the career 

offender guideline.32 The Commission found that the 

guidelines remained the essential starting point for 

federal sentences overall and continued to significantly 

influence sentences over time.33 Although there was 

a general widening between the average guideline 

minimum and average sentence imposed after Booker

(ranging from 10.2% in 2004 to 17.9% in 2011), the 

percent difference graph showed a generally flat line, 

indicating relative stability over time in the difference 

between those two numbers.34 

Though federal sentencing outcomes had shown general 

stability in the aggregate, the report nevertheless found 

that the influence of the guidelines had diminished for 

certain offenses (child pornography and fraud) and not 

others (drug trafficking, firearms, and immigration).35 The 

report explained that these differences were driven by 

factors outside of the guidelines specific to these offense 

types—for example, the average guideline minimum 

for non-production child pornography offenses had 

increased over time due, in part, to statutory changes 

enacted in the PROTECT Act.36

METHODOLOGY

KEY FINDINGS FROM REPORT ON THE CONTINUING IMPACT OF 

UNITED STATES V. BOOKER ON FEDERAL SENTENCING (2012)

• The guidelines remained the essential starting point for all federal sentences in the 

aggregate and continued to significantly influence sentences over time. 

• Although the gap between the average guideline minimum and the average sentence 

imposed had widened generally since Booker, it remained relatively stable over the 

time period studied in the report. 

• The guidelines’ degree of influence on the sentence imposed differed between 

specific offense types, with drug trafficking, firearms, and immigration offenses 

showing a more stable relationship between the guideline minimum and sentence 

than child pornography and fraud offenses. 
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13

Gall Period Post-Report Period

Jan. 12, 2005 – Dec. 9, 2007 Dec. 10, 2007 – Sept. 30, 2011

Booker Period

Oct. 1, 2011 – Sept. 30, 2017

METHODOLOGY

Expanding the Methodology of the 

2012 Booker Report

For this report, the Commission first replicates the 

methodology of the 2012 Booker Report to analyze 

the continuing influence of the guidelines. Similar 

to the 2012 Booker Report, this report provides 

data for cases sentenced under all guidelines in the 

aggregate (“Aggregate Analysis”), as well as data for 

cases sentenced under selected individual guidelines 

(“Guideline-Specific Analyses”):

METHODOLOGY

As in the 2012 Booker Report, this report uses a similar 

style of line graphs comparing two lines over time, 

each representing the average guideline minimum and 

average sentence imposed in months. Further, the 

two-line graphs are supplemented by a percentage 

graph which plots the percentage difference between 

the average guideline minimum and average sentence 

imposed in a single line.38

This report, however, expands the 2012 methodology 

in two ways. First, this report analyzes cases in the 

time period since the 2012 report was released, 

spanning the Booker Period, the Gall Period, and the 

six-year period following the 2012 Booker Report’s 

publication (the “Post-Report Period” from fiscal years 

2012 to 2017).

Drug trafficking offenses under §2D1.1; 

Economic offenses under §2B1.1; 

Firearms offenses under §2K2.1; 

Illegal reentry offenses under §2L1.2; 

Non-production child pornography offenses 

under §2G2.2/§2G2.4; and 

The career offender enhancement under 

§4B1.1.37 
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Cases in which a statutory mandatory minimum penalty equaled or exceeded the 

otherwise applicable guideline minimum (“mandatory minimum trumps”);

Cases in which a court departed downward based on a defendant’s “substantial 

assistance” to the government under §5K1.1 or as part of an Early Disposition Program 

(insofar as such departures require the government to file motions requesting them 

and, when filed, the motions are almost always granted). 

EXCLUSION 1

EXCLUSION 2

Additionally, the current report expands on the 

2012 study by analyzing the cases using two distinct 

methodologies. First, the relevant cases are analyzed 

without any Methodology exclusions (“All Cases 

Methodology”). Second, in addition to providing the 

analysis for all cases, the Commission also prepared 

the same analyses for only those cases in which judicial 

discretion could be meaningfully assessed (“Judicial 

Discretion Methodology”). 

To identify cases in which judicial discretion could be 

meaningfully assessed, the Commission applied the 

same case exclusions adopted in the Intra-City and 

Inter-District Reports. 

By excluding cases in which a mandatory minimum 

penalty or a government-sponsored departure 

limited the Commission’s ability to fully assess judicial 

discretion, this analysis aims to focus on cases where 

the guidelines, rather than other factors like a statute or 

government motion, may influence the final sentence. 

First, a conviction for an offense carrying a mandatory 

minimum that ends up being greater than the guideline 

maximum can set the sentence without regard to the 

guideline range or the judge’s discretion.

Second, a substantial assistance departure under 

§5K1.1 can have a notable impact on the sentence 

imposed that does not solely reflect the exercise 

of judicial discretion. Section 5K1.1 provides that 

upon a government motion stating that a defendant 

has provided substantial assistance, the court may 

depart from the guidelines and, notably, a mandatory 

minimum penalty.39 Although the court has discretion 

in determining the appropriate amount of departure 

to apply, it has no discretion with regard to whether a 

government motion seeking such a departure will be 

filed. It is unlikely that such a motion will be denied if filed, 

with the commentary stating that substantial weight 

should be given to the government’s evaluation of the 

extent of the defendant’s assistance.40 Moreover, once 

granted, the court’s exercise of discretion is necessarily 

impacted by the government’s recommendation about 

the amount of departure that should be granted given 

that the government’s recommended departure must 

be afforded weight. 

The first two exclusions represent cases that do not allow for a meaningful 

assessment of judicial sentencing discretion: 
15

METHODOLOGY

Cases with one or more counts of conviction under a statute requiring a mandatory 

sentence of imprisonment to run consecutively to any sentence imposed under the 

guidelines (e.g., 18 U.S.C. §§ 924(c) and 1028A);

Cases in which the guideline minimum was life imprisonment or cases in which a 

court varied or departed upwardly from a guideline range of a term of months to a 

life imprisonment sentence (as there is no meaningful way to measure the extent of 

a departure or variance below a life term or the extent of an upward departure or 

variance to a life term, as a life term is not a fixed term of months); and

Cases in which the guideline minimum was less than ten months (which, after 2010, 

necessarily fell in Zones A or B of the Sentencing Table). 

EXCLUSION 3

EXCLUSION 4

EXCLUSION 5

The Commission also excluded three additional types of cases that present 

difficulties in accurately measuring the percent difference from the 

guideline minimum:

To identify cases in which 

judicial discretion could 

be meaningfully assessed, 

the Commission applied 

the same case exclusions 

adopted in the Intra-City and 

Inter-District Reports. 
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METHODOLOGY

Data Analysis – Measuring the 

Influence of the Guidelines

To study the degree of influence exerted by the 

guidelines after Booker, the Commission’s updated 

analysis examines the relationship between the 

average guideline minimum and the average sentence 

imposed for cases sentenced under all guidelines in the 

aggregate (“Aggregate Analysis”) and selected individual 

guidelines—economic offenses, drug trafficking 

offenses, firearms offenses, illegal reentry offenses, 

non-production child pornography offenses, and the 

career offender enhancement (“Guideline-Specific 

Analysis”)—from fiscal years 2005 to 2017. The first 

four guideline types were selected for their frequency 

of application,41 while the last two were selected due to 

longstanding concerns that appear to impact the extent 

to which they are followed.42 

For each section below, the report first analyzes the 

data for all cases that fall under that section (“All 

Cases Methodology”) before then analyzing the same 

cases but limited by the five case exclusions discussed 

in the Methodology section (“Judicial Discretion 

Methodology”). As described above, these exclusions 

represent cases that do not allow for a meaningful 

assessment of judicial sentencing discretion (because 

of a statutory mandatory minimum that equals or 

exceeds the guideline minimum or a governmentsponsored departure) and cases that present difficulties 

in accurately measuring the percent difference from the 

guideline minimum (because of a mandatory consecutive 

sentence of imprisonment, a guideline minimum or 

sentence of life imprisonment, or a guideline minimum 

of less than ten months). 
17

METHODOLOGY

AGGREGATE GROUP

To study the degree of influence exerted by the guidelines after Booker, 

this analysis examines the relationship between the guideline minimum and the sentence imposed

for all cases in the aggregate from fiscal years 2005 to 2017.

GUIDELINE-SPECIFIC GROUPS

The same analysis is then performed for the 

selected guidelines depicted in this infographic.

METHODOLOGY

NON-PRODUCTION CHILD PORNOGRAPHY OFFENSES

DRUG TRAFFICKING OFFENSES

ILLEGAL REENTRY OFFENSES

FIREARMS OFFENSES

CAREER OFFENDERS

§2D1.1

§2K2.1

§2G2.2 and §2G2.4

§2L1.2

§4B1.1

Each of the study groups above are examined using two distinct methodologies:

“ALL CASES” 

METHODOLOGY

relevant cases without any 

methodology exclusions

“JUDICIAL DISCRETION” 

METHODOLOGY

cases in which judicial discretion

could be assessed

ECONOMIC OFFENSES

§2B1.1
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As discussed below, the data under both methodologies 

show an overall increase in the difference between the 

average guideline minimum and the average sentence 

imposed since Booker. Although the spread between 

those two lines is wider in the Post-Report Period than 

in the Booker and Gall Periods, the spread generally 

stabilized in the most recent years of the Post-Report 

Period. Consistent with the 2012 Booker Report, while 

the graphs depicting the individual guidelines reveal 

significant differences among offense guideline types, 

the general trends remain the same, with a widening 

spread since Booker but a stabilization in the PostReport Period. Moreover, though the general trends 

remain the same, the spread between the average 

guideline minimum and average sentence imposed 

becomes much smaller when exclusions are applied 

to focus on the cases in which sentencing discretion 

could be assessed. 

FINDINGS

Summary of Findings
19

Both methodologies show an overall increase in 

the difference between the average guideline 

minimum and the average sentence imposed 

since Booker, followed by greater stability in 

the most recent years studied. A similar trend 

exists when analyzing individual guidelines.

“
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FINDINGS

Results of the Aggregate Analysis

Building on its previous work, the Commission first 

updates the year-by-year analysis presented in the 

Commission’s 2012 study to explore whether the 

influence of the guidelines has increased or decreased 

as more time has passed since the Booker decision. This 

section examines data for cases under all guidelines in 

the aggregate, first with the All Cases Methodology 

and then with the Judicial Discretion Methodology. 
21

FINDINGS 

All Cases Methodology

FINDINGS

Building on its previous 

work, the Commission 

updates the year-by-year 

analysis presented in its 

2012 study regarding the 

influence of the guidelines 

since the Booker decision.

In creating the dataset for this, and each of the 

subsequent analyses, the Commission first identified 

972,648 cases across the nation during fiscal years 

2005 to 2017. After excluding cases for which 

incomplete sentencing documentation was submitted 

to the Commission, the Aggregate Analysis of 

offenders sentenced from fiscal years 2005 to 2017 

includes 862,193 cases. The following graphic breaks 

down the number of cases across the Booker, Gall, and 

Post-Report Periods.
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0

40

80

120

160

200

240

2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016 2017

Months

Fiscal Year

Aggregate Analysis

Booker Period Gall Period Post-Report Period

Average Guideline Minimum

Average Sentence Imposed

-40

-30

-20

-10

0

10

20

30

40

2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016 2017

Percent

Fiscal Year

Aggregate Analysis

Booker Period Gall Period Post-Report Period

Percent Difference 

As reflected in these figures, the difference between 

the average guideline minimum and the average 

sentence imposed has generally widened since the 

Booker and Gall Periods, suggesting an overall decline 

in the influence of the guidelines over time. Although 

the difference continued to widen in the Post-Report 

Period, it appears to have stabilized after peaking in 

2014. In fact, the analysis of the years that followed 

from 2015 through 2017 demonstrated a small gradual 

decrease in the difference between the average 

guideline minimum and average sentence imposed in 

those years. 

This trend is first demonstrated in the two-line graph, 

which shows a gradual widening of the spread between 

the average guideline minimum and average sentence 

imposed. In the Booker Period, the average sentence 

imposed was 8.7 months lower than the average 

guideline minimum. In the Gall Period, the average 

sentence imposed was 9.9 months lower. And in the 

Post-Report Period, the average sentence imposed was 

13.2 months lower. However, in the most recent years 

of the Post-Report Period, average sentences imposed 

generally paralleled average guideline minimums—that 

is, where the average guideline minimum increased 

or decreased, so did the average sentence imposed—

which suggests a stabilization in the influence of the 

guidelines. 

The percentage graph also depicts the influence of 

the guidelines on sentences over time, as a single line 

representing the percentage difference between the 

average guideline minimum and the average sentence 

imposed. Across all periods, the line has remained 

below zero, because the average sentence has always 

been lower than the average guideline minimum. The 

percentage difference has generally increased since the 

Booker Period, varying from a low of 13.4 percent below 

the guideline minimum at the end of the Booker Period 

in 2008 to a high of 24.3 percent below the guideline 

minimum during the Post-Report Period in 2014. In 

the Post-Report Period, the percentage difference 

varied from a low of 19.0 percent in 2012 to a high 

of 24.3 percent in 2014, before gradually narrowing 

to 21.9 percent in 2017. This reflects the trend seen 

in the two-line graph that the relationship between 

the average guideline minimum and average sentence 

imposed for cases in the Aggregate Analysis stabilized 

in the most recent years of the Post-Report Period.
23

FINDINGS

Judicial Discretion Methodology

FINDINGS

Building on its more recent analyses in the IntraCity and Inter-District Reports, the Commission next 

explored whether the same trends hold true when 

focusing solely on cases in which judicial discretion 

could be meaningfully measured. After exclusions, 

the number of Aggregate Analysis cases decreases to 

460,681 cases (100,424 cases in the Booker Period; 

142,954 cases in the Gall Period; and 217,303 cases 

in the Post-Report Period).43 
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0

40

80

120

160

200

240

2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016 2017

Months

Fiscal Year

Aggregate Analysis with Judicial Discretion Methodology

Booker Period Gall Period Post-Report Period

Average Guideline Minimum

Average Sentence Imposed

-40

-30

-20

-10

0

10

20

30

40

2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016 2017

Percent

Fiscal Year

Aggregate Analysis with Judicial Discretion Methodology

Booker Period Gall Period Post-Report Period

Percent Difference 

As demonstrated, the Commission continued to 

observe trends similar to those seen in the broader 

All Cases Methodology above. That is, the difference 

between the average guideline minimum and average 

sentence imposed generally increased in the Booker and 

Gall Periods but relatively stabilized in the Post-Report 

Period. After the difference increased at the start of 

the Post-Report Period, peaking in 2014, it remained 

stable in the years that followed from 2015 through 

2017. 

Although the overall trends across the three time 

periods remain the same, the more limited analysis 

focusing solely on cases in which judicial discretion 

could be meaningfully assessed shows a substantially 

narrower spread between the average guideline 

minimum and average sentence imposed than the 

analysis under the All Cases Methodology. For example, 

during the most recent year of the Post-Report Period, 

the difference between the average guideline minimum 

and average sentence imposed was 16.5 percent in 

cases in which judicial discretion could be meaningfully 

assessed compared to 21.9 percent for all cases. Thus, 

removing cases that do not allow for full assessment 

of judicial discretion results in a closer relationship 

between the average guideline minimum and average 

sentence imposed. This indicates that the guidelines 

exert a greater influence on sentences imposed in 

cases in which judicial discretion could be meaningfully 

assessed.44
25

As noted, the difference between the average guideline 

minimum and the average sentence imposed narrowed 

when focusing on cases with measurable judicial 

discretion. Subsequent analysis shows that the smaller 

gap is largely due to the impact of removing cases 

with substantial assistance departures. Substantial 

assistance departures, which are based on specific 

statutory authority and require a motion by the 

government, often lead to substantial decreases from 

the guideline minimum, consistent with the intent of 

the departure to encourage cooperation with the 

government. Indeed, during the years studied in this 

report, substantial assistance departures yielded an 

average sentence reduction of 51.8 percent. 

FINDINGS

FINDINGS

Impact of Substantial Assistance Departures

To show their impact, the Commission also added the 

cases with substantial assistance departures back into 

the Judicial Discretion Methodology. As depicted in 

the graphs in Appendix A, adding back in the 88,380 

substantial assistance departure cases (9.1% of the 

total data set of 972,648 cases) substantially widens 

the spread between the average guideline minimum 

and average sentence imposed. This reflects both 

the relatively large number of cases with substantial 

assistance departures and the extent of the departures 

granted. 

The graphs in Appendix A also show the same trend 

for each of the individual guideline analyses below, 

with the smaller spread under the Judicial Discretion 

Methodology being largely attributable to the exclusion 

of departures granted for substantial assistance.

Analysis shows that the 

smaller gap is largely 

due to the impact of 

substantial assistance 

departures on sentences 

imposed in cases that 

do not solely reflect 

the exercise of judicial 

discretion.
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FINDINGS

Results of the Guideline-Specific Analyses

While the Aggregate Analysis above is informative, it 

does not show whether the extent of the influence of 

the guidelines differs across individual guidelines. As 

explained above, the Commission’s 2012 Booker Report 

found that although federal sentencing outcomes had 

shown general stability in the aggregate, the influence 

of the guidelines varied by major offense type.45 To 

explore whether this trend continues, this report’s 

Guideline-Specific Analyses analyze the influence of 

the guidelines individually among each of the four most 

commonly applied guidelines — the primary guidelines 

for economic offenses, drug trafficking offenses, firearms 

offenses, and illegal reentry offenses.46 In addition, this 

report analyzes the influence of the primary guideline 

for non-production child pornography offenses and 

the career offender enhancement, both of which 

regularly have substantially lower within-guideline rates 

compared to the within-guideline rate in the Aggregate 

Analysis.47
27

OVERVIEW

Economic Crime Offenders Sentenced Under §2B1.1

Larceny, Embezzlement, and Other Forms of Theft; Offenses Involving Stolen Property; Property 

Damage or Destruction; Fraud and Deceit; Forgery; Offenses Involving Altered or Counterfeit 

Instruments Other than Counterfeit Bearer Obligations of the United States

The Commission’s §2B1.1 analysis demonstrates that the difference between 

the average guideline minimum and the average sentence imposed has 

generally widened since the Booker and Gall Periods, suggesting an overall 

decline in the influence of the guideline over time.

FINDINGS
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FINDINGS

Results of the §2B1.1 Analysis

All Cases Methodology

In the 2012 Booker Report, the Commission examined 

economic offenses under both §2B1.1 and §2F1.1.48

The 2012 Booker Report noted that for such offenses, 

the average guideline minimum and average sentence 

imposed had not consistently paralleled each other 

over time, primarily due to statutory changes, guideline 

amendments, and the seriousness of the offenses.49

For purposes of this updated analysis, the Commission 

identified 101,319 cases during fiscal years 2005 to 

2017 for which §2B1.1 was the primary guideline. 

After excluding cases for which incomplete sentencing 

documentation was submitted to the Commission, the 

Guideline-Specific Analysis of offenders sentenced for 

economic offenses under §2B1.1 from fiscal years 

2005 to 2017 includes 97,504 cases.50 

The two-line and percentage graphs below examine 

economic offenses under §2B1.1 before the application 

of any Methodology exclusions. As shown in both 

graphs, the difference between the average guideline 

minimum and the average sentence imposed has 

generally widened since the Booker and Gall Periods, 

suggesting an overall decline in the influence of the 

§2B1.1 guideline over time. This is consistent with 

the findings in the 2012 Booker Report, which showed 

that the influence of the guideline minimum for fraud 

offenses had increasingly diminished.51
29

FINDINGS

0

40

80

120

160

200

240

2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016 2017

Months

Fiscal Year

§2B1.1 Cases

Booker Period Gall Period Post-Report Period

Average Guideline Minimum

Average Sentence Imposed

-40

-30

-20

-10

0

10

20

30

40

2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016 2017

Percent

Fiscal Year

§2B1.1 Cases

Booker Period Gall Period Post-Report Period

Percent Difference 

However, between 2015 and 2016, the average 

guideline minimum slightly decreased and the 

difference between the average guideline minimum 

and sentence imposed slightly narrowed. This likely 

reflects the Commission’s 2015 amendments of §2B1.1 

related to the “victims table,” the “sophisticated means” 

enhancement, “intended loss” in the fraud table, and 

“fraud on the market” cases, as well as inflationary 

adjustments that increased loss amounts triggering 

enhancements in order to account for inflation since 

the fraud table was last revised in 2001.52 These 

amendments were enacted to better account for harm 

to victims, individual culpability, and the offender’s 

intent and may have resulted in a subsequent decrease 

in the average guideline minimum.53

The two-line graph shows a steady widening of the 

spread between the average guideline minimum and 

average sentence imposed, with a slight narrowing 

following the 2015 amendment to the economic 

offenses guideline. In the Booker Period, the average 

sentence was 1.7 months lower than the average 

guideline minimum. In the Gall Period, the average 

sentence was 4.1 months lower than the average 

guideline minimum. In the Post-Report Period, the 

average sentence was 8.2 months lower than the 

average guideline minimum. While the spread between 

the two lines has widened overall, likely due in part to 

generally increasing guideline minimums, the average 

sentence also increased. This suggests some stability in 

the influence of the guideline over time, particularly in 

the most recent years of the Post-Report Period when 

the spread between the two lines peaked in fiscal year 

2015, then narrowed and stabilized in 2016 and 2017. 

The percentage graph depicts the same trend, showing 

a steady increase in the percentage difference between 

the average guideline minimum and average sentence 

imposed. The percentage difference has varied from 7.9 

percent below the average guideline minimum during 

the Booker Period in 2006 to 30.4 percent during the 

Post-Report Period in 2015. Although the percentage 

difference has generally grown since the Booker Period, 

the growth has remained relatively flat in the last two 

years of this study, averaging 26.0 and 26.9 percent, 

respectively. This suggests the relationship between 

the average guideline minimum and average sentence 

imposed for economic offenses may be stabilizing.
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FINDINGS 

Judicial Discretion Methodology

The following graphs apply the five Methodology 

exclusions to the economic offenses analysis. After 

exclusions, the number of economic offense cases in 

the analysis decreases to 44,899 cases (including 8,745 

cases in the Booker Period; 13,584 cases in the Gall

Period; and 22,570 cases in the Post-Report Period).54 
31

FINDINGS

0

40

80

120

160

200

240

2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016 2017

Months

Fiscal Year

§2B1.1 Cases with Judicial Discretion Methodology

Booker Period Gall Period Post-Report Period

Average Guideline Minimum

Average Sentence Imposed

-40

-30

-20

-10

0

10

20

30

40

2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016 2017

Percent

Fiscal Year

§2B1.1 Cases with Judicial Discretion Methodology

Booker Period Gall Period Post-Report Period

Percent Difference 

Compared to the All Cases Methodology of economic 

offenses in the previous section, limiting the analysis 

to those cases in which judicial discretion could be 

assessed a moderately smaller difference between 

the average guideline minimum and average sentence 

imposed. 

Removing cases in which judicial discretion cannot be 

meaningfully assessed results in a closer relationship 

between the average guideline minimum and average 

sentence imposed, though the difference is less 

pronounced compared to other guidelines discussed 

below. For example, during the most recent year of the 

Post-Report Period, the difference between the average 

guideline minimum and average sentence imposed was 

23.2 percent in cases in which judicial discretion could 

be meaningfully assessed, compared to 26.9 percent 

for all §2B1.1 cases. 

Notably, the overall trends across the three time 

periods remain the same both with and without the five 

exclusions applied. Although the percentage difference 

has generally increased since the Booker Period, the line 

has remained relatively level in the last two years of 

this study, decreasing from a high of 25.6 in 2015 to 

21.5 and 23.2 percent in 2016 and 2017, respectively. 

Like the All Cases Methodology, this suggests the 

relationship between the guideline minimum and 

sentence for economic offenses may be stabilizing 

despite the widening gap following the Booker and Gall

periods.55
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The Commission’s §2D1.1 analysis demonstrates that the difference between 

the average guideline minimum and the average sentence imposed 

generally widened until a peak in 2014, followed by some narrowing in the 

years after the Commission’s 2014 guideline amendment. 

OVERVIEW

Drug Trafficking Offenders Sentenced Under §2D1.1

Unlawful Manufacturing, Importing, Exporting, or Trafficking (Including Possession with Intent 

to Commit These Offenses); Attempt or Conspiracy
33

FINDINGS

FINDINGS

Results of the §2D1.1 Analysis

All Cases Methodology

The Commission identified 268,611 cases during 

fiscal years 2005 to 2017 for which §2D1.1 was the 

primary guideline. After excluding cases for which 

incomplete sentencing documentation was submitted 

to the Commission, the Guideline-Specific Analysis of 

all offenders sentenced for drug trafficking offenses 

under §2D1.1 from fiscal years 2005 to 2017 includes 

259,944 cases. 

In the 2012 Booker Report, the Commission examined 

drug trafficking offenses under §§2D1.1 and 2D1.2.56

The 2012 Booker Report noted that for these offenses, 

the relationship between the average guideline 

minimum and average sentence imposed had generally 

remained stable.57
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0

40

80

120

160

200

240

2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016 2017

Months

Fiscal Year

§2D1.1 Cases

Booker Period Gall Period Post-Report Period

Average Guideline Minimum

Average Sentence Imposed

Amend. 

782

-40

-30

-20

-10

0

10

20

30

40

2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016 2017

Percent

Fiscal Year

§2D1.1 Cases

Booker Period Gall Period Post-Report Period

Percent Difference 

Amend. 

782

These two-line and percentage graphs examine drug 

trafficking offenses under §2D1.1 before the application of 

any Methodology exclusions. As shown in both graphs, the 

difference between the average guideline minimum and the 

average sentence imposed has generally increased since 

the Booker Period, peaking in 2014. This peak likely reflects 

anticipation by courts and litigants of the Commission’s 

promulgation of Amendment 782, which reduced the 

drug quantity guidelines for drugs by two levels and went 

into effect on November 1, 2014.58 In fiscal year 2014, 

some courts anticipating Amendment 782 used downward 

variances to account for the expected changes to the drug 

guidelines for defendants sentenced prior to November 1, 

2014.59 However, following the amendment, in the most 

recent years of the Post-Report Period, the difference 

between the average guideline minimum and the average 

sentence imposed stabilized.

The two-line graph shows an overall widening of the 

spread between the average guideline minimum and 

average sentence imposed across the three periods. In 

the Booker Period, the average sentence was 15.4 months 

lower than the average guideline minimum. In the Gall

Period, the average sentence was 16.7 months lower 

than the average guideline minimum. In the Post-Report 

Period, the average sentence was 21.8 months lower than 

the average guideline minimum. Not only has the spread 

widened across all three periods, but the spread for drug 

trafficking cases has been consistently greater than for all 

cases generally in the Aggregate Analysis. However, while 

the spread continued to grow into the Post-Report Period, 

peaking in 2014 before Amendment 782, the spread 

narrowed in the years that followed from 2015 through 

2017. Thus, in addition to Amendment 782’s role in 

the 2014 peak, the amendment likely contributed to the 

subsequent stabilization between the lines. Indeed, the 

Commission stated that one reason for the amendment 

was to lower the guideline minimums closer to the average 

sentences imposed prior to the amendment.60

The percentage graph depicts the same trend. The percentage 

difference has varied from 16.5 percent below the average 

guideline minimum during the Booker Period in 2007 to a peak of 

30.3 percent during the Post-Report Period in 2014. Although 

the difference has generally increased since the Booker Period, its 

stabilization in the most recent years of the Post-Report Period 

has moved the percentage difference closer to what it was 

at the beginning of the Post-Report Period. The Post-Report 

Period began with a difference of 21.9 percent in 2012 and 

ended with a difference of 25.6 percent in 2017. This reflects 

the general trend that the relationship between the average 

guideline minimum and sentence for drug trafficking cases may 

be stabilizing. 
35

-40

-30

-20

-10

0

10

20

30

40

2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016 2017

Percent

Fiscal Year

Booker Period Gall Period Post-Report Period

All Drugs

Powder Cocaine Crack Cocaine Heroin Marijuana Meth Other

Amend. 

782

Similar trends are reflected across the individual drug 

types, depicted in the drug-specific percentage graph 

below.61 While the percentage difference between 

the average guideline minimum and average sentence 

imposed varies somewhat by drug type, the difference 

for every drug type has trended higher since Booker and 

stabilized in the most recent years of the Post-Report 

Period. The average percentage difference continued 

to increase at the beginning of the Post-Report Period 

for each individual drug and peaked in 2014, driven in 

part by Amendment 782.62 Similarly, like the overall 

drug analysis, the individual drug types showed 

decreases in percentage differences the following year 

and stabilization during the most recent years of the 

Post-Report Period.63 As explained in the overall drug 

analysis, this peak was likely caused by an increase in 

variances imposed after the amendment’s promulgation 

but before its effectuation.64 

A major amendment 

by the Commission to 

the drug trafficking 

guideline appears to 

have strengthened the 

guideline’s influence during 

the most recent years of the 

Post-Report Period.

FINDINGS
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FINDINGS 

Judicial Discretion Methodology

analysis decreases to 142,736 cases (including 34,283 

cases in the Booker Period; 44,400 cases in the Gall

Period; and 64,053 cases in the Post-Report Period).65 

The following graphs apply the five Methodology 

exclusions to the drug trafficking analysis. After 

exclusions, the number of drug trafficking cases in the 
37

0

40

80

120

160

200

240

2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016 2017

Months

Fiscal Year

§2D1.1 Cases with Judicial Discretion Methodology

Booker Period Gall Period Post-Report Period

Average Guideline Minimum

Average Sentence Imposed

Amend. 

782

-40

-30

-20

-10

0

10

20

30

40

2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016 2017

Percent

Fiscal Year

Booker Period Gall Period Post-Report Period

Percent Difference 

Amend. 

782

§2D1.1 Cases with Judicial Discretion Methodology

Compared to the All Cases Methodology, limiting the 

analysis to those cases in which judicial discretion could 

be meaningfully assessed demonstrates a narrower 

spread between the average guideline minimum and 

average sentence imposed. This suggests that the 

guidelines exert a greater influence on sentences 

imposed in cases where courts have more meaningful 

judicial discretion. For example, in the most recent 

year of the Post-Report Period, the difference between 

the average guideline minimum and average sentence 

imposed in drug trafficking cases in which judicial 

discretion could be meaningfully assessed was 17.3 

percent compared to 25.6 percent for all drug trafficking 

cases. 

Notably, the overall trends across the three time 

periods remain the same both with and without the five 

exclusions applied. Although the difference between 

the average guideline minimum and average sentenced 

imposed is larger now than in the Booker and Gall 

Periods, it has remained relatively stable in the most 

recent years of the Post-Report Period. Further, in both 

analyses, the difference peaked in 2014, then remained 

stable in the years that followed from 2015 through 

2017.66

FINDINGS
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The Commission’s §2K2.1 analysis demonstrates that, while the difference 

between the average guideline minimum and the average sentence imposed 

has widened slightly since Booker, the guidelines continue to exert a strong 

influence on sentences imposed in firearms offenses. 

OVERVIEW

Firearms Offenders Sentenced Under §2K2.1

Unlawful Receipt, Possession, or Transportation of Firearms or Ammunition; Prohibited 

Transactions Involving Firearms or Ammunition
39

FINDINGS

FINDINGS

Results of the §2K2.1 Analysis

All Cases Methodology

In the 2012 Booker Report, the Commission examined 

firearms offenses under §2K2.1.67 The 2012 Booker

Report noted that for these offenses, the influence of 

the guidelines on the average sentence imposed had 

generally remained stable, with the average sentence 

imposed adhering closely to the average guideline 

minimum.68

The Commission identified 77,485 cases during 

fiscal years 2005 to 2017 for which §2K2.1 was the 

primary guideline. After excluding cases for which 

incomplete sentencing documentation was submitted 

to the Commission, the Guideline-Specific Analysis of 

offenders sentenced for firearms offenses under §2K2.1 

from fiscal years 2005 to 2017 includes 75,914 cases. 
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0

40

80

120

160

200

240

2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016 2017

Months

Fiscal Year

§2K2.1 Cases

Booker Period Gall Period Post-Report Period

Average Guideline Minimum

Average Sentence Imposed

-40

-30

-20

-10

0

10

20

30

40

2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016 2017

Percent

Fiscal Year

§2K2.1 Cases

Booker Period Gall Period Post-Report Period

Percent Difference 

The two-line and percentage graphs below examine 

firearms offenses under §2K2.1 before the application 

of any Methodology exclusions. The difference 

between the average guideline minimum and the 

average sentence imposed has slightly increased since 

the Booker and Gall Periods, suggesting a small decline 

in the influence of the §2K2.1 guideline over time. 

However, consistent with the 2012 Booker Report’s 

findings, the spread in firearms cases has remained 

relatively small compared to cases under all guidelines 

in the aggregate, reflecting a strong influence from the 

firearm guideline on average sentences imposed across 

all time periods. 

The two-line graph shows a slight widening of the 

spread between the average guideline minimum and 

the average sentence imposed for firearms offenses 

since the Booker and Gall Periods. In the Booker Period, 

the average sentence was 1.8 months lower than the 

average guideline minimum. In the Gall Period, the 

average sentence was 3.3 months lower than that 

average guideline minimum. In the Post-Report Period, 

the average sentence was 4.6 months lower than the 

average guideline minimum. However, the spread has 

remained small and in the most recent years of the 

Post-Report Period has narrowed slightly. Thus, the 

firearms guideline has a stable and strong influence on 

the sentence imposed. This may be explained in part by 

the relative stability of the average guideline minimum 

over time, which has not substantially changed during 

the years of this report. 

The percentage graph depicts the same trend, showing 

a percentage difference between the average guideline 

minimum and the average sentence imposed that has 

adhered closely to zero across all periods. While the 

percentage difference has increased since the Booker 

Period, it has not varied over time as much as other 

individual guidelines or the Aggregate Analysis. The 

percentage difference has varied from 2.0 percent 

below the guideline minimum during the Booker Period 

in 2008 to 9.3 percent below the guideline minimum 

during the Post-Report Period in 2014. The percentage 

difference has decreased slightly since 2014, changing 

from 9.3 percent in 2014 to 7.6 percent in 2017. 

This suggests the relationship between the average 

guideline minimum and average sentence imposed for 

firearms cases remains strong and may be stabilizing. 
41

FINDINGS

FINDINGS 

Judicial Discretion Methodology

The following graphs apply the five Methodology 

exclusions to the firearms analysis. After exclusions, 

the number of firearms cases in the analysis decreased 

to 61,231 cases (including 14,355 cases in the Booker

Period; 17,850 cases in the Gall Period; and 29,026 

cases in the Post-Report Period).69 
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0

40

80

120

160

200

240

2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016 2017

Months

Fiscal Year

§2K2.1 Cases with Judicial Discretion Methodology

Booker Period Gall Period Post-Report Period

Average Guideline Minimum

Average Sentence Imposed

-40

-30

-20

-10

0

10

20

30

40

2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016 2017

Percent

Fiscal Year

§2K2.1 Cases with Judicial Discretion Methodology

Booker Period Gall Period Post-Report Period

Percent Difference 

Compared to the All Cases Methodology, limiting the 

analysis to those cases in which judicial discretion 

could be meaningfully assessed demonstrates a slightly 

smaller spread between the average guideline minimum 

and average sentence imposed. The relatively small 

change in spread once the exclusions are applied may 

reflect that, relative to other offenses, the exclusions 

removed a smaller proportion of the All Cases 

Methodology. Even so, in the most recent year of the 

Post-Report Period, the difference between the average 

guideline minimum and average sentence imposed was 

5.2 percent in firearms cases in which judicial discretion 

could be meaningfully assessed compared to 7.6 

percent for all firearms cases, reflecting that applying 

the exclusions yielded a closer relationship between 

the average guideline minimum and average sentence 

imposed. 

Like other analyses, the overall trends across the three 

time periods remain the same both with and without 

the five exclusions applied. One notable difference 

here is that with exclusions, the average sentence 

imposed during the Booker Period was actually higher 

than the guideline minimum. However, as with the All 

Cases Methodology, while the percentage difference 

between the guideline minimum and sentence imposed 

has increased since the Booker Period, it has not 

varied over time as much as all cases in the aggregate. 

Furthermore, while the percentage difference is greater 

now than in the Booker Period, the line has remained 

relatively flat since 2014.70
43

FINDINGS

The Commission’s §2L1.2 analysis demonstrates that, unlike the other 

analyses, the difference between the average guideline minimum and 

the average sentence imposed for illegal reentry offenses substantially 

narrowed at the end of the Post-Report Period compared to the Booker and 

Gall Periods, showing an overall increase in the influence of the guideline 

following the Commission’s 2016 guideline amendment. 

OVERVIEW

Illegal Reentry Offenders Sentenced Under §2L1.2

Unlawfully Entering or Remaining in the United States
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FINDINGS

Results of the §2L1.2 Analysis

All Cases Methodology

In the 2012 Booker Report, the Commission examined 

immigration offenses under §§2L1.1 and 2L1.2.71 The 

2012 Booker Report noted that for these offenses, 

the influence of the guidelines on the average 

sentence imposed had generally remained stable.72

The Commission identified 204,654 cases during 

fiscal years 2005 to 2017 for which §2L1.2 was the 

primary guideline. After excluding cases for which 

incomplete sentencing documentation was submitted 

to the Commission, the Guideline-Specific Analysis 

of offenders sentenced for illegal reentry offenses 

under §2L1.2 from fiscal years 2005 to 2017 includes 

201,682 cases. 

The two-line and percentage graphs examine illegal 

reentry offenses under §2L1.2 before the application 

of any Methodology exclusions. Unlike every other 

guideline in this report, the difference between the 

average guideline minimum and the average sentence 

imposed for illegal reentry offenses was smaller at 

the end of the Post-Report Period compared to the 

Booker and Gall Periods, showing an overall increase 

in the influence of the guideline over time. Although 

this trend may be attributed to a variety of factors, 

one likely influence is the Commission’s 2016 

comprehensive revision of the illegal reentry guideline 

to promote uniformity and address judicial concerns 

about the severity of the guideline.73 Notably, the 

amendment addressed the guideline’s then-existing 

16- and 12-level enhancements for certain prior 

felonies committed before a defendant’s deportation 
45

FINDINGS

by accounting for prior criminal conduct in a more 

proportionate manner.74 Specifically, the amendment 

added tiered enhancements based on criminal conduct 

occurring before and after the defendant’s first order 

of deportation.75 The tiered enhancements thus allow 

for more incremental punishment to account for the 

varying levels of culpability and risk of recidivism.

The two-line graph shows that the average guideline 

minimum has steadily decreased across all three periods, 

and the average sentence has paralleled that trend by 

steadily decreasing as well—in particular, in 2017, after 

the 2016 promulgation of Amendment 802, both the 

average guideline minimum and difference between 

the average guideline minimum and average sentence 

imposed sharply decreased. At the start of the Booker 

Period, the average illegal reentry guideline minimum 

was 30.2 months and the average sentence 27.3 

months, a difference of only 2.9 months. At the start 

of the Gall Period, the average illegal reentry guideline 

minimum was 24.1 months and the average sentence 

21.9 months, a difference of only 2.2 months. By the 

end of the Post-Report Period, in 2017, the average 

illegal reentry guideline minimum had decreased to 

12.6 months and the average sentence had decreased 

to 12.0 months, a difference of only 0.6 months. Thus, 

the data suggests that the illegal reentry guideline has a 

strong influence on the sentence imposed, which grew 

even stronger after the 2016 guideline amendment 

brought the sentences imposed by judges even closer 

to the average guideline minimum.

Similarly, the percentage graph shows that the 

percentage difference between the average guideline 

minimum and average sentence imposed remained 

0

40

80

120

160

200

240

2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016 2017

Months

Fiscal Year

§2L1.2 Cases

Booker Period Gall Period Post-Report Period

Average Guideline Minimum

Average Sentence Imposed

Amend. 

802

-40

-30

-20

-10

0

10

20

30

40

2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016 2017

Percent

Fiscal Year

§2L1.2 Cases

Booker Period Gall Period Post-Report Period

Percent Difference 

Amend. 

802

relatively stable throughout the Booker and Gall 

Periods, varying from 9.6 percent at the start of the 

Booker Period to 9.1 percent at the start of the Gall

Period. The percentage difference increased from the 

end of the Gall Period into much of the Post-Report 

Period, peaking at 18.9 percent in 2016. However, the 

percentage difference substantially decreased after the 

2016 illegal reentry guideline amendment, ending with 

4.8 percent in 2017. 
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FINDINGS 

Judicial Discretion Methodology

The following graphs apply the five Methodology 

exclusions to the illegal reentry analysis. After 

exclusions, the number of illegal reentry cases in the 

analysis decreased to 83,535 cases (including 15,673 

cases in the Booker Period; 27,912 cases in the Gall

Period; and 39,950 cases in the Post-Report Period).76 
47

FINDINGS

0

40

80

120

160

200

240

2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016 2017

Months

Fiscal Year

§2L1.2 Cases with Judicial Discretion Methodology

Booker Period Gall Period Post-Report Period

Average Guideline Minimum

Average Sentence Imposed

Amend. 

802

-40

-30

-20

-10

0

10

20

30

40

2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016 2017

Percent

Fiscal Year

§2L1.2 Cases with Judicial Discretion Methodology

Booker Period Gall Period Post-Report Period

Percent Difference 

Amend. 

802

Compared to the All Cases Methodology, limiting the 

analysis to those cases in which judicial discretion could 

be meaningfully assessed revealed a slightly smaller 

difference between the average guideline minimum and 

average sentence imposed. Like the firearms guideline, 

the difference may appear less substantial than for 

other guidelines given that even without exclusions, 

the illegal reentry cases already showed a small spread 

between the average guideline minimum and average 

sentence imposed. The smaller difference may also 

reflect the relatively small number of illegal reentry 

cases that receive substantial assistance departures.77

Even so, the results suggest that the guidelines exert 

a greater influence on sentences imposed in cases in 

which judicial discretion can be meaningfully assessed. 

For example, in the most recent year of the PostReport Period, the difference between the average 

guideline minimum and average sentence imposed in 

illegal reentry cases was 2.7 percent under the Judicial 

Discretion Methodology, compared to 4.8 percent for 

all illegal reentry cases. 

As with previous guidelines, the overall trends across the 

three time periods remain similar both with and without 

the five exclusions applied. Similar to the analysis of all 

illegal reentry cases, limiting the analysis to those cases 

in which judicial discretion could be assessed shows 

that the percentage difference increased from the end 

of the Gall Period into much of the Post-Report Period, 

peaking at 14.6 percent in 2016. Following the 2016 

illegal reentry guideline amendment, the percentage 

difference substantially decreased to 2.7 percent in 

2017. Therefore, the analysis of cases focusing on 

judicial discretion demonstrates a strong relationship 

between the guideline minimum and sentence imposed, 

particularly after the 2016 amendment.78
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The Commission’s §2G2.2 analysis demonstrates a steady increase in the 

difference between the average guideline minimum and the average 

sentence imposed until the most recent years of the Post-Report Period, 

as the increasing average guideline minimums outpaced the average 

sentences imposed. 

OVERVIEW

Non-Production Child Pornography Offenders 

Sentenced Under §2G2.2

Trafficking in Material Involving the Sexual Exploitation of a Minor; Receiving, Transporting, 

Shipping, Soliciting, or Advertising Material Involving the Sexual Exploitation of a Minor; 

Possessing Material Involving the Sexual Exploitation of a Minor with Intent to Traffic; Possessing 

Material Involving the Sexual Exploitation of a Minor.
49

FINDINGS

In addition to the most frequently applied individual 

guidelines above, the Commission also analyzed the 

guidelines for non-production child pornography 

offenses. Although these cases represent a small 

proportion of the overall caseload, the guidelines for 

these offenses have been subject to longstanding 

concern from stakeholders and have among the lowest 

within-guideline sentencing rates each year.79 

The analysis revealed that the guidelines for nonproduction child pornography cases have a smaller 

influence on the average sentence imposed than the 

other guidelines. As discussed below, this is due in 

part to congressional directives and statutory changes 

enacted over time, particularly stemming from the 

PROTECT Act in 2003.

 In the 2012 Booker Report, the Commission noted that 

compared to other guidelines, the non-production child 

pornography guideline’s average guideline minimum 

and average sentence imposed had not consistently 

paralleled each other over time and had increasingly 

diverged since 2005.80 The Commission noted that 

the average guideline minimum had steadily increased 

over time due to statutory changes implemented from 

1997 and 2003 and their corresponding guideline 

amendments.81 And as the guideline minimum increased 

through the Booker and Gall periods, the average 

sentence increasingly diverged from the guideline 

minimum, remaining relatively flat by comparison.82 

In 2012, the Commission also published its Report 

to the Congress: Federal Child Pornography Offenses, 

analyzing the data of offenders sentenced under both 

the non-production and production child pornography 

sentencing guidelines.83 The report was spurred, in part, 

by the decline in the percentage of sentences imposed 

within the applicable guideline range in non-production 

cases, which indicated that courts increasingly believed 

the sentencing scheme was overly severe.84 Moreover, 

changes in technology typically used by non-production 

offenders suggested that existing sentencing schemes 

no longer adequately distinguished between offenders 

with different degrees of culpability.85 The Child 

Pornography Report found that guideline ranges and 

average sentences had substantially increased since 

the passage of the PROTECT Act of 2003.86 Not only 

did the PROTECT Act create sentencing enhancements 

and mandatory minimum penalties, but the underlying 

conduct triggering such enhancements and penalties 

was increasingly common.87 Since the publication of the 

2012 Booker Report and the 2012 Child Pornography 

Report, the non-production child pornography guideline 

has not been substantially amended, and the previously 

identified trends have continued.88 
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FINDINGS

Results of the §2G2.2 Analysis

All Cases Methodology

The Commission identified 18,798 cases during fiscal 

years 2005 to 2017 for which §§2G2.2 or 2G2.4 was 

the primary guideline. After excluding cases for which 

incomplete sentencing documentation was submitted 

to the Commission, the Guideline-Specific Analysis 

of offenders sentenced for non-production child 

pornography offenses under §2G2.289 from fiscal years 

2005 to 2017 includes 18,406 cases.90 
51

FINDINGS

0

40

80

120

160

200

240

2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016 2017

Months

Fiscal Year

§2G2.2 Cases

Booker Period Gall Period Post-Report Period

Average Guideline Minimum

Average Sentence Imposed

2012 

Child 

Porn 

Report

-40

-30

-20

-10

0

10

20

30

40

2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016 2017

Percent

Fiscal Year

§2G2.2 Cases

Booker Period Gall Period Post-Report Period

Percent Difference 

2012 

Child 

Porn 

Report

The two-line and percentage graphs below examine nonproduction child pornography offenses under §2G2.2 

before the application of any Methodology exclusions. 

The difference between the average guideline minimum 

and the average sentence imposed has increased since 

the Booker and Gall Periods, as rising average guideline 

minimums outpace the average sentences imposed. 

However, this increasing difference slightly stabilized in 

the most recent years of the Post-Report Period. 

The two-line graph shows a steady and substantial 

widening of the spread between the average guideline 

minimum and average sentence imposed since Booker. 

At the start of the Booker Period in 2005, the guideline 

minimum and sentence tracked each other closely, 

averaging a difference of only 1.7 months. Between 

2005 and the start of the Gall Period in 2008, however, 

the average guideline minimum increased by 38.4 

months and the difference between it and the average 

sentence widened to 14.3 months. By the start of 

the Post-Report Period in 2012, the average guideline 

minimum had increased another 22.6 months, and the 

difference between the average guideline minimum 

and average sentence imposed further widened to 

30.3 months. However, there is some indication that 

the difference may be stabilizing. Although the spread 

remains notably wider compared to the Booker and Gall 

Periods, it has slightly narrowed in the last two years of 

the study. This may reflect that the average guideline 

minimum itself did not substantially change during the 

Post-Report Period. 

The percentage graph depicts the same trends. The 

percentage difference increased throughout the Booker 

and Gall Periods, varying from 2.5 percent below the 

average guideline minimum at the start of the Booker 

Period to 13.5 percent at the start of the Gall Period. 

The percentage difference increased from the end of the 

Gall Period into the Post-Report Period, peaking at 28.8 

percent in 2015. However, growth in the percentage 

difference slowed during the Post-Report Period and 

slightly decreased in the two years following its 2015 

peak. Thus, the percentage graph reflects the divergence 

between the average guideline minimum and average 

sentence imposed that grew rapidly during the Booker and 

Gall Periods but relatively stabilized in the most recent 

years of the Post-Report Period. 
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FINDINGS 

Judicial Discretion Methodology

The following graphs apply the five Methodology 

exclusions to the non-production child pornography 

analysis. After exclusions, the number of nonproduction child pornography cases in the analysis 

decreases to 16,589 cases (including 2,591 cases in 

the Booker Period; 5,456 cases in the Gall Period; and 

8,542 cases in the Post-Report Period).91
53

FINDINGS

0

40

80

120

160

200

240

2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016 2017

Months

Fiscal Year

§2G2.2 Cases with Judicial Discretion Methodology

Booker Period Gall Period Post-Report Period

Average Guideline Minimum

Average Sentence Imposed

2012 

Child 

Porn 

Report

-40

-30

-20

-10

0

10

20

30

40

2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016 2017

Percent

Fiscal Year

§2G2.2 Cases with Judicial Discretion Methodology

Booker Period Gall Period Post-Report Period

Percent Difference 

2012 

Child 

Porn 

Report

Unlike every other individual guideline discussed in this 

report, the difference between the average guideline 

minimum and average sentence imposed for nonproduction child pornography cases is slightly wider 

when limiting the analysis to those cases in which 

judicial discretion could be meaningfully assessed. For 

example, during the most recent year of the Post-Report 

Period, the difference between the average guideline 

minimum and average sentence imposed was 29.1 

percent under the Judicial Discertion Methodology, 

compared to 26.7 percent for all non-production child 

pornography cases. This indicates that the guidelines 

exert slightly less influence on the sentences imposed 

for non-production child pornography cases in which 

judicial discretion can be meaningfully assessed than 

in cases in which it cannot. This reflects, at least in 

part, the policy disagreements discussed above that 

many courts have with the child pornography statutory 

and guideline sentencing scheme, as well as the fact 

that substantial assistance departures are much less 

frequent in these cases. 

As with previous guidelines, the overall trends across 

the three time periods remain similar with or without 

the five methodology exclusions applied. Similar to the 

All Cases Methodology, limiting the analysis to those 

cases in which judicial discretion can be meaningfully 

assessed demonstrates the percentage difference 

widened throughout the Booker and Gall Periods and 

into the Post-Report Period, peaking at 30.8 percent 

in 2015. Likewise, the growth in the percentage 

difference continued but at a slower rate during the 

Post-Report Period, before stabilizing during the most 

recent Post-Report Period.92
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OVERVIEW

Career Offenders Sentenced Under §4B1.1

Career Offender

The Commission’s §4B1.1 analysis demonstrates a continuing decline in the 

guideline’s influence, as reflected by the steady increase in the difference 

between the average guideline minimum and the average sentence imposed 

in career offender cases.
55

FINDINGS

FINDINGS

Results of the §4B1.1 Analysis

All Cases Methodology

Like the non-production child pornography guideline, 

the career offender guideline represents a small 

proportion of the overall caseload. However, this 

guideline has also been the subject of longstanding 

concern and has among the lowest within-guideline 

rates each year.93

Similar to the non-production child pornography 

guideline, the career offender guideline94 has been 

shaped by a congressional directive.95 Section 994(h) 

directed the Commission to set guidelines for 

individuals meeting the career offender definition at 

or near the statutory maximum for their offenses.96 In 

2016, following a multi-year study of the application 

and impact of the career offender guideline, the 

Commission amended the guideline and published a 

report to Congress recommending statutory changes.97

The report found that career offenders often receive 

sentences below the guideline range, often at the 

government’s request, particularly when they qualified 

as career offenders based solely on drug trafficking 

offenses.98 In the ten years prior to its publication, the 

proportion of career offenders receiving a sentence 

within the applicable guideline range decreased from 

43.3 percent in 2005 to 27.5 percent in 2014.99

The Commission identified 28,333 cases across the 

nation during fiscal years 2005 to 2017 for which 

the defendant was sentenced as a career offender 

under §4B1.1. After excluding cases for which 

incomplete sentencing documentation was submitted 

to the Commission, the Guideline-Specific Analysis of 

offenders sentenced as career offenders from fiscal 

years 2005 to 2017 includes 27,547 cases.100 
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0

40

80

120

160

200

240

2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016 2017

Months

Fiscal Year

§4B1.1 Cases

Booker Period Gall Period Post-Report Period

Average Guideline Minimum

Average Sentence Imposed

-40

-30

-20

-10

0

10

20

30

40

2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016 2017

Percent

Fiscal Year

§4B1.1 Cases

Booker Period Gall Period Post-Report Period

Percent Difference 

The two-line and percentage graphs below examine 

career offender cases under §4B1.1 before the 

application of any Methodology exclusions. The 

difference between the average guideline minimum and 

the average sentence imposed has steadily widened 

since the end of the Booker Period, suggesting an overall 

decline in the influence of the §4B1.1 guideline over 

time. This is consistent with the findings in the 2016 

Career Offender Report, in which the Commission 

noted the increasing rate of sentences below the 

guideline range.101

The two-line graph shows a steady widening of the 

spread between the average guideline minimum and 

average sentence imposed. At the start of the Booker

Period in 2005, the average guideline minimum and 

average sentence imposed differed by 45.6 months. 

During the Booker Period, that difference slightly 

narrowed, so the Gall Period in 2008 began with a 

difference of 44 months. Starting in the Gall Period 

and continuing into the Post-Report Period, however, 

the average sentence imposed began decreasing 

faster than the average guideline minimum. The PostReport Period began with an average difference of 57.6 

months, increasing to 66.9 months by the last year of 

the period. 

Similarly, the percentage graph shows that the 

percentage difference narrowed slightly during the 

Booker Period but began steadily increasing during 

the Gall Period, varying from 16.2 percent below the 

guideline minimum at the end of the Booker Period 

to 24.4 percent at the end of the Gall Period. The 

percentage difference increased from the end of the 

Gall Period into the Post-Report Period, peaking at 31.8 

percent in 2017. However, the percentages from 2014 

to 2017 ranged only from 29.0 percent to 31.8 percent, 

indicating that the widening of the difference between 

the average guideline minimum and average sentence 

imposed may be slowing. 
57

FINDINGS

FINDINGS 

Judicial Discretion Methodology

The following graphs apply the five Methodology 

exclusions to the career offender analysis. After 

exclusions, the number of career offender cases in the 

analysis decreases to 17,039 cases (including 3,750 

cases in the Booker Period; 5,357 cases in the Gall

Period; and 7,932 cases in the Post-Report Period).102 
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0

40

80

120

160

200

240

2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016 2017

Months

Fiscal Year

§4B1.1 Cases with Judicial Discretion Methodology

Booker Period Gall Period Post-Report Period

Average Guideline Minimum

Average Sentence Imposed

-40

-30

-20

-10

0

10

20

30

40

2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016 2017

Percent

Fiscal Year

§4B1.1 Cases with Judicial Discretion Methodology

Booker Period Gall Period Post-Report Period

Percent Difference 

Like most of the other guidelines, limiting the analysis 

to those cases in which judicial discretion can be 

meaningfully assessed demonstrates yields a smaller 

difference between the average guideline minimum 

and average sentence imposed. For example, during 

the most recent year of the Post-Report Period, the 

difference between the average guideline minimum 

and average sentence imposed was 27.1 percent in 

career offender cases under the Judicial Discretion 

Methodology compared to 31.8 percent for all career 

offender cases. This indicates that the guidelines exert 

a greater influence on the sentence imposed on career 

offenders in cases in which judicial discretion can be 

meaningfully assessed than in cases in which it cannot.

As with all of the preceding guidelines, the overall 

trends across the three time periods remain similar 

with or without Methodology exclusions. Similar to the 

All Cases Methodology, limiting the analysis to those 

cases with meaningful judicial discretion shows that the 

percentage difference began widening during the Gall 

Period and continued to increase into the Post-Report 

Period and, contrary to the All Cases Methodology, 

does not appear to be slowing.103 
59

FINDINGS
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CONCLUSION

The Influence of the Guidelines on 

Federal Sentencing Outcomes

This report’s findings regarding the continued 

influence of the guidelines on sentencing outcomes 

update the Commission’s findings in its 2012 Booker

Report. Consistent with the findings in that report, 

the guidelines continued to substantially influence 

the sentences imposed in federal cases overall, but 

their influence diminished somewhat in the immediate 

years following the 2012 Booker Report before 

generally stabilizing in the most recent years of this 

report. This overall pattern applies to all of the major 

offense types studied in this report, but the influence 

of the guidelines varied depending on the individual 

offense type. The guidelines continued to exert a 

strong influence on sentences imposed in firearms and 

illegal reentry offenses, a more moderate influence on 

sentences imposed in fraud and drug offenses, and a 

weaker influence in non-production child pornography 

offenses and career offender cases. 

These differences at times reflect the impact of the 

actions taken by the Commission on courts and litigants. 

For example, the difference between the average 

guideline minimum and the average sentence imposed 

widened substantially in 2014 as variances increased 

in anticipation of Amendment 782 to §2D1.1. On 

the other hand, the difference narrowed substantially 

in illegal reentry cases after the Commission’s 2016 

comprehensive amendment to §2L1.1, which addressed 

many concerns regarding that guideline. The data also 

suggests that courts appear to be relying on the findings 

in the Commission’s reports to Congress regarding the 

child pornography and career offender guidelines to 

support variances. 

Finally, the guidelines generally exert a greater 

influence on sentences imposed in cases in which 

judicial discretion can be meaningfully assessed than 

in cases in which it cannot. When cases that limit 

the assessment of judicial discretion are excluded, the 

resulting narrower difference between the average 

guideline minimum and average sentence imposed is 

due in large part to removing cases with substantial 

assistance departures. This finding held true for all 

guidelines in the aggregate across all time periods, as 

well as for most individual guidelines across all time 

periods, with the sole exception of the non-production 

child pornography guideline. Thus, although the 

influence of the guidelines has diminished since the 

Booker decision, the report provides further empirical 

evidence that, as stated by the Supreme Court in Peugh, 

the guidelines remain “the lodestone of sentencing.”104
61

CONCLUSION

The guidelines continued 

to substantially influence 

the sentences in federal 

cases overall, but their 

influence diminished 

following Booker before 

stabilizing in the most 

recent years of this 

report.
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63

APPENDIX A

Judicial Discretion Methodology with 

Substantial Assistance Cases Included

After applying the Judicial Discretion Methodology to 

the Aggregate Analysis and Guideline-Specific Analyses, 

the Commission subsequently conducted further 

analyses that added cases with substantial assistance 

departures into the Judicial Discretion Methodology 

for each guideline. The Commission did so to identify 

factors driving the narrower difference between the 

guideline minimum and average sentence imposed 

after the application of Methodology exclusions. The 

results of this analysis applying only four exclusions 

are set forth in the graphs below, in the same format 

as the graphs in the main text—first, depicted as the 

raw number difference between the average guideline 

minimum and sentence imposed and second, as their 

percentage difference. 

As shown in the graphs that follow, adding substantial 

assistance departure cases widens the spread between 

the guideline minimum and average sentence imposed 

across every guideline. This is particularly so for certain 

guidelines in which individuals frequently receive 

substantial assistance departures, such as §2D1.1. 

The analysis indicates that the smaller spread under 

the Judicial Discretion Methodology is largely due to 

the exclusion of departures granted for substantial 

assistance. 

APPENDIX A
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AGGREGATE ANALYSIS

0

40

80

120

160

200

240

2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016 2017

Months

Fiscal Year

Booker Period Gall Period Post-Report Period

Average Guideline Minimum

Average Sentence Imposed

Aggregate Analysis with Judicial Discretion Methodology: 

Substantial Assistance Cases Included

-40

-30

-20

-10

0

10

20

30

40

2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016 2017

Percent

Fiscal Year

Booker Period Gall Period Post-Report Period Percent Difference 

Aggregate Analysis with Judicial Discretion Methodology: 

Substantial Assistance Cases Included
65

GUIDELINE-SPECIFIC ANALYSIS: 

ECONOMIC CRIMES

0

40

80

120

160

200

240

2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016 2017

Months

Fiscal Year

Booker Period Gall Period Post-Report Period

Average Guideline Minimum

Average Sentence Imposed

§2B1.1 Cases with Judicial Discretion Methodology: 

Substantial Assistance Cases Included

-40

-30

-20

-10

0

10

20

30

40

2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016 2017

Percent

Fiscal Year

Booker Period Gall Period Post-Report Period Percent Difference 

§2B1.1 Cases with Judicial Discretion Methodology: 

Substantial Assistance Cases Included

APPENDIX A
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GUIDELINE-SPECIFIC ANALYSIS: 

DRUG TRAFFICKING

0

40

80

120

160

200

240

2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016 2017

Months

Fiscal Year

Booker Period Gall Period Post-Report Period

Average Guideline Minimum

Average Sentence Imposed

§2D1.1 Cases with Judicial Discretion Methodology: 

Substantial Assistance Cases Included

Amend. 

782

-40

-30

-20

-10

0

10

20

30

40

2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016 2017

Percent

Fiscal Year

Booker Period Gall Period Post-Report Period

Percent Difference 

§2D1.1 Cases with Judicial Discretion Methodology: 

Substantial Assistance Cases Included

Amend. 

782
67

GUIDELINE-SPECIFIC ANALYSIS: 

FIREARMS

0

40

80

120

160

200

240

2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016 2017

Months

Fiscal Year

Booker Period Gall Period Post-Report Period

Average Guideline Minimum

Average Sentence Imposed

§2K2.1 Cases with Judicial Discretion Methodology: 

Substantial Assistance Cases Included

-40

-30

-20

-10

0

10

20

30

40

2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016 2017

Percent

Fiscal Year

Booker Period Gall Period Post-Report Period

Percent Difference 

§2K2.1 Cases with Judicial Discretion Methodology: 

Substantial Assistance Cases Included

APPENDIX A
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GUIDELINE-SPECIFIC ANALYSIS: 

ILLEGAL REENTRY

0

40

80

120

160

200

240

2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016 2017

Months

Fiscal Year

Booker Period Gall Period Post-Report Period Average Guideline Minimum

Average Sentence Imposed

§2L1.2 Cases with Judicial Discretion Methodology: 

Substantial Assistance Cases Included

Amend. 

802

-40

-30

-20

-10

0

10

20

30

40

2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016 2017

Percent

Fiscal Year

Booker Period Gall Period Post-Report Period

Percent Difference 

§2L1.2 Cases with Judicial Discretion Methodology: 

Substantial Assistance Cases Included

Amend. 

802
69

GUIDELINE-SPECIFIC ANALYSIS: 

CHILD PORNOGRAPHY

0

40

80

120

160

200

240

2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016 2017

Months

Fiscal Year

Booker Period Gall Period Post-Report Period

Average Guideline Minimum

Average Sentence Imposed

§2G2.2 Cases with Judicial Discretion Methodology: 

Substantial Assistance Cases Included

2012 

Child 

Porn 

Report

-40

-30

-20

-10

0

10

20

30

40

2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016 2017

Percent

Fiscal Year

Booker Period Gall Period Post-Report Period Percent Difference 

§2G2.2 Cases with Judicial Discretion Methodology: 

Substantial Assistance Cases Included

2012 

Child 

Porn 

Report

APPENDIX A
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GUIDELINE-SPECIFIC ANALYSIS: 

CAREER OFFENDER

0

40

80

120

160

200

240

2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016 2017

Months

Fiscal Year

Booker Period Gall Period Post-Report Period

Average Guideline Minimum

Average Sentence Imposed

§4B1.1 Cases with Judicial Discretion Methodology: 

Substantial Assistance Cases Included

-40

-30

-20

-10

0

10

20

30

40

2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016 2017

Percent

Fiscal Year

Booker Period Gall Period Post-Report Period Percent Difference 

§4B1.1 Cases with Judicial Discretion Methodology: 

Substantial Assistance Cases Included
71

APPENDIX B

USSG §2D1.1 Analysis by Individual Drug Type 

APPENDIX B

After conducting a Guideline-Specific Analysis of 

the drug trafficking guideline under §2D1.1, the 

Commission conducted further analyses by individual 

drug type: powder cocaine, crack cocaine, heroin, 

marijuana, methamphetamine, and all other drug 

cases. The results of these analyses are set forth in 

the graphs below, in the same format as the general 

§2D1.1 analysis in the main text—first, under the All 

Cases Methodology and second, under the Judicial 

Discretion Methodology. As shown in the graphs that 

follow, the individual drug type analyses largely mirror 

the same trends seen in the general drug trafficking 

analysis. In particular, the graphs reflect the peak in the 

difference between the guideline minimum and average 

sentence imposed which occurred in 2014, prior to 

the implementation of Amendment 782. For each 

individual drug, that peak was followed by a declining 

difference in the Post-Report Period years after 2014.
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POWDER COCAINE

DRUG ANALYSIS

0

40

80

120

160

200

240

2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016 2017

Months

Fiscal Year

Booker Period Gall Period Post-Report Period

Average Guideline Minimum

Average Sentence Imposed

Powder Cocaine Cases

Amend. 

782

-40

-30

-20

-10

0

10

20

30

40

2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016 2017

Percent

Fiscal Year

Booker Period Gall Period Post-Report Period

Percent Difference 

Powder Cocaine Cases

Amend. 

782
73

POWDER COCAINE

DRUG ANALYSIS CONTINUED

0

40

80

120

160

200

240

2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016 2017

Months

Fiscal Year

Booker Period Gall Period Post-Report Period

Average Guideline Minimum

Average Sentence Imposed

Powder Cocaine Cases with Judicial Discretion Methodology

Amend. 

782

-40

-30

-20

-10

0

10

20

30

40

2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016 2017

Percent

Fiscal Year

Booker Period Gall Period Post-Report Period

Percent Difference 

Powder Cocaine Cases with Judicial Discretion Methodology

Amend. 

782

APPENDIX B
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CRACK COCAINE

DRUG ANALYSIS

0

40

80

120

160

200

240

2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016 2017

Months

Fiscal Year

Booker Period Gall Period Post-Report Period

Average Guideline Minimum

Average Sentence Imposed

Crack Cocaine Cases

Amend. 

782

-40

-30

-20

-10

0

10

20

30

40

2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016 2017

Percent

Fiscal Year

Booker Period Gall Period Post-Report Period

Percent Difference 

Crack Cocaine Cases

Amend. 

782
75

CRACK COCAINE

DRUG ANALYSIS CONTINUED

0

40

80

120

160

200

240

2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016 2017

Months

Fiscal Year

Booker Period Gall Period Post-Report Period

Average Guideline Minimum

Average Sentence Imposed

Crack Cocaine Cases with Judicial Discretion Methodology

Amend. 

782

-40

-30

-20

-10

0

10

20

30

40

2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016 2017

Percent

Fiscal Year

Booker Period Gall Period Post-Report Period

Percent Difference 

Crack Cocaine Cases with Judicial Discretion Methodology

Amend. 

782

APPENDIX B
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HEROIN

DRUG ANALYSIS

0

40

80

120

160

200

240

2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016 2017

Months

Fiscal Year

Booker Period Gall Period Post-Report Period

Average Guideline Minimum

Average Sentence Imposed

Heroin Cases

Amend. 

782

-40

-30

-20

-10

0

10

20

30

40

2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016 2017

Percent

Fiscal Year

Booker Period Gall Period Post-Report Period

Percent Difference 

Heroin Cases

Amend. 

782
77

HEROIN

DRUG ANALYSIS CONTINUED

0

40

80

120

160

200

240

2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016 2017

Months

Fiscal Year

Booker Period Gall Period Post-Report Period

Average Guideline Minimum

Average Sentence Imposed

Heroin Cases with Judicial Discretion Methodology

Amend. 

782

-40

-30

-20

-10

0

10

20

30

40

2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016 2017

Percent

Fiscal Year

Booker Period Gall Period Post-Report Period

Percent Difference 

Heroin Cases with Judicial Discretion Methodology

Amend. 

782

APPENDIX B
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MARIJUANA

DRUG ANALYSIS

0

40

80

120

160

200

240

2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016 2017

Months

Fiscal Year

Booker Period Gall Period Post-Report Period

Average Guideline Minimum

Average Sentence Imposed

Marijuana Cases

Amend. 

782

-40

-30

-20

-10

0

10

20

30

40

2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016 2017

Percent

Fiscal Year

Booker Period Gall Period Post-Report Period

Percent Difference 

Marijuana Cases

Amend. 

782
79

MARIJUANA

DRUG ANALYSIS CONTINUED

0

40

80

120

160

200

240

2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016 2017

Months

Fiscal Year

Booker Period Gall Period Post-Report Period

Average Guideline Minimum

Average Sentence Imposed

Marijuana Cases with Judicial Discretion Methodology

Amend. 

782

-40

-30

-20

-10

0

10

20

30

40

2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016 2017

Percent

Fiscal Year

Booker Period Gall Period Post-Report Period

Percent Difference 

Marijuana Cases with Judicial Discretion Methodology

Amend. 

782

APPENDIX B
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METHAMPHETAMINE

DRUG ANALYSIS

0

40

80

120

160

200

240

2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016 2017

Months

Fiscal Year

Booker Period Gall Period Post-Report Period

Average Guideline Minimum

Average Sentence Imposed

Methamphetamine Cases

Amend. 

782

-40

-30

-20

-10

0

10

20

30

40

2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016 2017

Percent

Fiscal Year

Booker Period Gall Period Post-Report Period

Percent Difference 

Methamphetamine Cases

Amend. 

782
81

METHAMPHETAMINE

DRUG ANALYSIS CONTINUED

0

40

80

120

160

200

240

2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016 2017

Months

Fiscal Year

Booker Period Gall Period Post-Report Period

Average Guideline Minimum

Average Sentence Imposed

Methamphetamine Cases with Judicial Discretion Methodology

Amend. 

782

-40

-30

-20

-10

0

10

20

30

40

2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016 2017

Percent

Fiscal Year

Booker Period Gall Period Post-Report Period

Percent Difference 

Methamphetamine Cases with Judicial Discretion Methodology

Amend. 

782

APPENDIX B
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OTHER DRUG

DRUG ANALYSIS

0

40

80

120

160

200

240

2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016 2017

Months

Fiscal Year

Booker Period Gall Period Post-Report Period

Average Guideline Minimum

Average Sentence Imposed

Other Drug Cases

Amend. 

782

-40

-30

-20

-10

0

10

20

30

40

2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016 2017

Percent

Fiscal Year

Booker Period Gall Period Post-Report Period

Percent Difference 

Other Drug Cases

Amend. 

782
83

OTHER DRUG

DRUG ANALYSIS CONTINUED

0

40

80

120

160

200

240

2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016 2017

Months

Fiscal Year

Booker Period Gall Period Post-Report Period

Average Guideline Minimum

Average Sentence Imposed

Other Drug Cases with Judicial Discretion Methodology

Amend. 

782

-40

-30

-20

-10

0

10

20

30

40

2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016 2017

Percent

Fiscal Year

Booker Period Gall Period Post-Report Period

Percent Difference 

Other Drug Cases with Judicial Discretion Methodology

Amend. 

782

APPENDIX B
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-40

-30

-20

-10

0

10

20

30

40

2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016 2017

Percent

Fiscal Year

Booker Period Gall Period Post-Report Period

Percent Difference Between Average Guideline Minimum and Average Sentence Imposed

Powder Cocaine Crack Cocaine Heroin Marijuana Meth Other

Amend. 

2012 782

Child 

Porn 

Report

Amend.

802

APPENDIX C

Percent Difference Graph of Combined GuidelineSpecific Analyses

Using the All Cases Methodology, the graph below 

shows the percent difference between the guideline 

minimum and average sentence imposed for each 

individual guideline described in the main text of this 

report. By combining the percent difference lines 

included in each Guideline-Specific Analysis in the 

report, this graph allows for the direct comparison of 

each selected guideline across the Booker, Gall, and 

Post-Report Periods. 
85

ENDNOTES

1 The Commission’s data collection and dissemination efforts are consistent with its statutory mission. The 

Commission is an independent agency in the judicial branch of government. Established by the Sentencing Reform Act of 

1984, its principal purposes are: (1) to establish sentencing policies and practices for the federal courts, including guidelines 

regarding the appropriate form and severity of punishment for offenders convicted of federal crimes; (2) to advise and assist 

Congress, the federal judiciary, and the executive branch in the development of effective and efficient crime policy; and 

(3) to collect, analyze, research, and distribute a broad array of information on federal crime and sentencing issues. See 28 

U.S.C. §§ 991(b)(1)(B), 995(a)(14)–(16), (20).

2	 543 U.S. 220 (2005) (striking the mandatory provision of 18 U.S.C. § 3553(a) and rendering the guidelines 

advisory). 

3 U.S. Sentencing Comm’n, Report on the Continuing Impact of United States v. Booker on Federal Sentencing (2012), 

https://www.ussc.gov/sites/default/files/pdf/news/congressional-testimony-and-reports/booker-reports/2012-booker/

Part_A.pdf [hereinafter 2012 Booker Report]. 

4 Id. at 3.

5 Id. at 62–68.

6 569 U.S. 530 (2013)

7 Id. at 544.

8 Id. at 543–44.

9 Id. at 549.

10 Id. at 544. Subsequently, in Molina Martinez v. United States, the Court again cited to Commission data as well as 

Peugh in reiterating that “the Guidelines are not only the starting point for most federal sentencing proceedings but also the 

lodestar.” Molina Martinez v. United States, 136 S. Ct. 1338, 1345–46 (2016).

11 See U.S. Sentencing Comm’n, Demographic Differences in Sentencing: An Update to the 2012 Booker Report (2017), 

https://www.ussc.gov/sites/default/files/pdf/research-and-publications/research-publications/2017/20171114_Demographics.

pdf.

12 Id. at 2 (analysis of data from fiscal years 2012 to 2016 found that black males received a 19.1% higher sentence 

on average than white males). 

13 U.S. Sentencing Comm’n, Intra-City Differences in Federal Sentencing practices (2019), https://www.ussc.gov/sites/

default/files/pdf/research-and-publications/research-publications/2019/20190108_Intra-City-Report.pdf [hereinafter IntraCity Report].

14 See U.S. Sentencing Comm’n, Inter-district Differences in Federal Sentencing practices (2019), https://www.ussc.gov/

sites/default/files/pdf/research-and-publications/research-publications/2020/20200122_Inter-District-Report.pdf [hereinafter 

Inter-District Report].

15 See U.S. Sentencing Comm’n, Guidelines Manual, App. C, amend. 664 (effective Nov. 1, 2004) (Nov. 2018) 

[hereinafter USSG]. Thus, this guideline only applies to cases prior to its 2004 deletion. 

16 While the categories of cases studied in this report are similar to those in the 2012 Booker Report, this report 

focuses on the primary guideline for each of these offense types. For example, this report examines drug trafficking by 

analyzing cases sentenced under §2D1.1 while the 2012 Booker Report broadly grouped several drug guidelines in analyzing 

drug offenses. The guideline-specific approach in this report is consistent with the Commission’s approach in the InterDistrict Report. 

17 The Booker Period (January 12, 2005–December 9, 2007); the Gall Period (December 10, 2007–September 30, 

2011); and the Post-Report Period (October 1, 2011–September 30, 2017).

18 Two provisions were directed to the Commission, while the third was directed to sentencing judges. See 18 U.S.C. 

§ 3553(a)(1)(6); 28 U.S.C. §§ 991(b)(1)(B), 994(f).

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19 28 U.S.C. §§ 991(b)(1)(B), 994(f).

20 United States v. Booker, 543 U.S. 220, 263 (2005); see also id. at 264 (“The system remaining . . ., while lacking the 

mandatory features that Congress enacted, retains other features that help to further these objectives [including avoiding 

unwarranted sentencing disparities].”).

21 518 U.S. 996 (1996).

22 In the PROTECT Act of 2003, Congress directed the Commission to amend the guidelines by increasing the 

number of sentencing enhancements in the child pornography guidelines and limited sentencing judges’ ability to depart 

below the guideline ranges in child pornography cases. See U.S. Sentencing Comm’n, The History of the Child Pornography

Guidelines, 38-40 (Oct. 2009), https://www.ussc.gov/sites/default/files/pdf/research-and-publications/research-projects-andsurveys/sex-offenses/20091030_History_Child_Pornography_Guidelines.pdf [hereinafter 2009 Child Pornography Report].

23 542 U.S. 81 (2004). 

24 543 U.S. 220 (2005).

25 Gall v. United States, 552 U.S. 38 (2007); Kimbrough v. United States, 552 U.S. 85 (2007).

26 2012 Booker Report, supra note 3, at 60.

27 Id.

28 Id.

29 Id. at 61.

30 Id.; see infra at 60; see infra at 13-14 (explaining how substantial assistance departures under §5K1.1 may lessen 

the exercise of judicial discretion). 

31 Id. at 60-61.

32 Id. at 60–68.

33 Id. at 60–61.

34 Id. at 61.

35 Id. at 60–68. In the report, the Commission made a number of recommendations relating to the guideline system.

See id. at 111–15.

36 Id. at 68.

37 Where a drug trafficking offender is sentenced under the career offender enhancement rather than §2D1.1, that 

case is only included under the data for §4B1.1.

38 For each analysis and graphic depiction, two points are graphed in 2008 to account for the fact that 

the Gall Period began (and the Booker Period ended) in the middle of fiscal year 2008. The first point covers the months 

of the fiscal year before Gall was decided (Oct. 1, 2007 to Dec. 9, 2007), and the second point covers the months 

after Gall (Dec. 10, 2007 to Sept. 30, 2008).

39 USSG §5K1.1.

40 USSG §5K1.1, comment. (n.3).

41 Collectively, offenders sentenced under these four guidelines comprised 76.1% of the federal caseload in the 13 

years covered in this report.

42 See U.S. Sentencing Comm’n, Report to the Congress: Federal Child Pornography Offenses (2012), https://www.ussc.

gov/sites/default/files/pdf/news/congressional-testimony-and-reports/sex-offense-topics/201212-federal-child-pornographyoffenses/Full_Report_to_Congress.pdf [hereinafter 2012 Child Pornography Report]; U.S. Sentencing Comm’n, Report to the

Congress: Career Offender Sentencing Enhancements (2016), https://www.ussc.gov/sites/default/files/pdf/news/congressionaltestimony-and-reports/criminal-history/201607_RtC-Career-Offenders.pdf [hereinafter 2016 Career Offender Report].
87

43 In total, 111,467 cases were excluded due to missing information. Additionally, 400,500 cases were removed 

from the analysis based on the five Methodology exclusions. The percentage excluded under each exclusion can be broken 

down into the following: (1) 19.6% had their guideline minimums trumped by a statutory mandatory minimum or were 

subject to a mandatory minimum sentence under the Armed Career Criminal Act; (2) 48.5% had a substantial assistance or 

fast-track departure; (3) 8.6% had at least one mandatory consecutive statutory minimum sentence under a statute such as 

section 924(c); (4) 19.4% had a guideline minimum of life imprisonment or involved an upward departure and variance to life 

imprisonment; and (5) 40.1% had guideline minimums of less than ten months. Some cases fell within more than one of these 

groups, which is why the above percentages add up to more than 100%.

44 See Gall v. United States, 552 U.S. 38, 49–50 (2007).

45 2012 Booker Report, supra note 3, at 60–68.

46 Collectively, offenders sentenced under these four guidelines comprised 76.8% of the federal caseload in fiscal year 

2019, and 76.1% of the caseload in the years covered in this study.

47 For example, in fiscal year 2019, 30.2% of offenders sentenced under §2G2.2 received a within-guideline sentence, 

compared to the overall within-guideline rate of 51.4%. 

48 2012 Booker Report, supra note 3, at 67. In 2001, §2F1.1 was deleted and consolidated with §2B1.1. 

49 Id.

50 3,815 cases were excluded due to having incomplete documentation, a base offense level other than 6 or 7, or a 

discrepancy between the loss amount for which the defendant was held accountable and a specific offense characteristic that 

was applied.

51 2012 Booker Report, supra note 3, at 67.

52 USSG App. C, amend. 791 and 792 (effective November 1, 2015).

53 USSG App. C, amend. 792 (Reason for Amendment) (effective Nov. 1, 2015).

54 In total, 3,869 cases were excluded due to missing information. Additionally, 52,551 cases were excluded based on 

the five Methodology exclusions. The percentage excluded under each Methodology exclusion can be broken down into the 

following: (1) 13.8% had their guideline minimums trumped by a statutory mandatory minimum or were subject to a mandatory 

minimum sentence under the Armed Career Criminal Act; (2) 26.2% had a substantial assistance or fast-track departure; (3) 

13.9% had at least one mandatory consecutive statutory minimum sentence under a statute such as section 924(c); (4) 34.2% 

had a guideline minimum of life imprisonment or involved an upward departure and variance to life imprisonment; and (5) 

66.7% had guideline minimums of less than ten months. Some cases fell within more than one of these groups, which is why 

the above percentages add up to more than 100%.

55 The Commission also analyzed the effect of adding cases with substantial assistance departures back into the 

Judicial Discretion Methodology. Cases with substantial assistance departures represent 11.3% (10,975 cases) of the 

97,504 economic offense cases in the All Cases Methodology, with an average sentence reduction of 57.4%. Adding those 

cases substantially widens the spread between the guideline minimum and sentence to be even wider than the All Cases 

Methodology, reflecting that substantial assistance departures are a large contributor to the spread. See Appendix A. The 

overall trend remains similar, showing a greater spread in the Post-Report Period than previous periods but a stabilization in 

that spread in recent years. Id.

56 2012 Booker Report, supra note 3, at 51. Section 2D1.2, which is not included in this report, covers drug offenses 

occurring near protected locations or involving underage or pregnant individuals.

57 Id. at 62.

58 USSG App. C, amend. 782 (effective Nov. 1, 2014) (reducing drug trafficking offense penalties across all drug types); 

USSG App. C., amend. 788 (effective Nov. 1, 2014) (making the two-level reduction for all drug types retroactive with the 

proviso that no offender may be released before November 1, 2015).

59 In March of 2014, the Department of Justice issued guidance to all United States Attorneys advising prosecutors 

not to object to a defense request for a two‐level variance from the sentencing range calculated under the then-current 

version of the Guidelines Manual in drug trafficking offenses, provided that several other conditions were met. See Department 

of Justice, Attorney Holder Urges Changes in Federal Sentencing Guidelines to Reserve Harshest Penalties for Most Serious Drug 

Traffickers (Mar. 13, 2014), https://www.justice.gov/opa/pr/attorney-general-holder-urges-changes-federal-sentencingguidelines-reserve-harshest. Additionally, judges and probation offices reported that in some districts, the prosecutors 

ENDNOTES
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themselves requested such variances. See U.S. Sentencing Comm’n, 2014 Annual Report (2015), https://www.ussc.gov/about/

annual-report/archive/annual-report-2014.

60 USSG App. C., amend. 782 (Reason for Amendment) (effective Nov. 1, 2014).

61 The analysis in the drug-specific percentage graph was conducted under the All Cases Methodology so it includes 

all cases sentenced during the relevant time periods.

For the individual drug type analysis across each year of this study, refer to Appendix B of this report. Appendix B includes 

graphs displaying the raw number difference between the average guideline minimum and sentence imposed as well as 

percentage difference under the All Cases Methodology and the Judicial Discretion Methodology.

62 See Appendix B. The individual drug types showed the following peak percentages in 2014: 27.8% (powder 

cocaine), 27.5% (crack cocaine), 28.8% (heroin), 28.3% (marijuana), 31.8% (methamphetamine), and 39.1% (all other drugs). 

Id.

63 Id. 

64 Supra note 58.

65 In total, 9,214 cases were excluded due to missing information. Additionally, 116,661 cases were removed from 

the analysis based on the five Methodology exclusions. The percentage excluded under each Methodology exclusion can be 

broken down into the following: (1) 38.5% had their guideline minimum trumped by a statutory mandatory minimum or were 

subject to a mandatory minimum sentence under the Armed Career Criminal Act; (2) 68.3% had a substantial assistance or 

fast-track departure; (3) 10.5% had at least one mandatory consecutive statutory minimum sentence under a statute such as 

section 924(c); (4) 3.4% had a guideline minimum of life imprisonment or involved an upward departure and variance to life 

imprisonment; and (5) 6.8% had guideline minimums of less than ten months. Some cases fell within more than one of these 

groups, which is why the above percentages add up to more than 100%.

As previously noted, drug trafficking offenders whose guideline ranges were set by the career offender guideline rather than 

§2D1.1 are also omitted because they are counted under this report’s §4B1.1 analysis. 

66 Adding cases with substantial assistance departures back into the Judicial Discretion Methodology produced 

similar trends. Drug trafficking cases with substantial assistance departures represent 18.3% (47,598 cases) of the 259,944 

drug trafficking cases in the All Cases Methodology, with an average substantial assistance sentence reduction of 46.1%. 

Adding those cases substantially widens the spread between the guideline minimum and sentence to be nearly identical to 

the All Cases Methodology. See Appendix A. This reflects both the large numbers of drug trafficking substantial assistance 

departure cases and the large amounts of departures granted. Like the other analyses, the results show a greater spread in 

the Post-Report Period than the Booker and Gall Periods but a stabilization in that spread in recent years. 

67 2012 Booker Report, supra note 3, at 51.

68 Id. at 62–63.

69 In total, 1,622 cases were excluded due to missing information. Additionally, 14,632 cases were removed from 

the analysis based on the five Methodology exclusions. The percentage excluded under each Methodology exclusion can 

be broken down into the following: (1) 50.3% had their guideline minimums trumped by a statutory mandatory minimum or 

were subject to a mandatory minimum sentence under the Armed Career Criminal Act; (2) 44.6% had a substantial assistance 

or fast-track departure; (3) 9.5% had at least one mandatory consecutive statutory minimum sentence under a statute such 

as section 924(c); (4) 5.0% had a guideline minimum of life imprisonment or involved an upward departure and variance to 

life imprisonment; and (5) 13.8% had guideline minimums of less than ten months. Some cases fell within more than one of 

these groups, which is why the above percentages add up to more than 100%.

70 Adding cases with substantial assistance departures back into the Judicial Discretion Methodology produced 

similar trends. Firearms cases with substantial assistance departures represent 6.6% (5,018 cases) of the 75,914 firearms 

cases in the All Cases Methodology, with an average substantial assistance sentence reduction of 43.3%. Adding those 

cases back in slightly widens the spread between the guideline minimum and sentence to be similar to the All Cases 

Methodology. See Appendix A. Like the other analyses, the results show a greater spread in the Post-Report Period than the 

Booker and Gall Periods but a stabilization in that spread in the years following 2014.

71 2012 Booker Report, supra note, at 51. §2L1.1, which is not included in this report, covers smuggling, 

transporting, or harboring an unlawful alien.

72 Id. at 62–65.
89

73 See USSG App. C, amend. 802 (effective Nov. 1, 2016).

74 Id.

75 Id. 

76 In total, 2,995 cases were excluded due to missing information. Additionally, 118,124 cases were removed from 

the analysis based on the five Methodology exclusions. The percentage excluded under each Methodology exclusion can be 

broken down into the following: (1) 0.1% had their guideline minimums trumped by a statutory mandatory minimum or were 

subject to a mandatory minimum sentence under the Armed Career Criminal Act; (2) 45.1% had a substantial assistance or 

fast-track departure; (3) 0.1% had at least one mandatory consecutive statutory minimum sentence under a statute such as 

section 924(c); (4) 25.2% had a guideline minimum of life imprisonment or involved an upward departure and variance to 

life imprisonment; and (5) 61.0% had guideline minimums of less than ten months. Some cases fell within more than one of 

these groups, which is why the above percentages add up to more than 100%.

77 2012 Booker Report, supra note 3, at 60.

78 Adding cases with substantial assistance departures back into the Judicial Discretion Methodology produced 

similar trends. Illegal reentry cases with substantial assistance departures represent 0.4% (817 cases) of the 201,682 

illegal reentry cases in the All Cases Methodology, with an average substantial assistance sentence reduction of 39.3%. 

Adding those cases back in slightly widens the spread between the guideline minimum and sentence, but less so than other 

guidelines given that there are few illegal reentry cases with substantial assistance departures. See Appendix A. Like the 

other analyses, the results show a greater spread in the Post-Report Period than the Booker and Gall Periods but a sharp drop 

in that spread following the 2016 §2L1.2 guideline amendment. 

79 See 2012 Child Pornography Report, supra note 47, at 213. 

80 2012 Booker Report, supra note 3, at 67–68.

81 Id.

82 Id.

83 2012 Child Pornography Report, supra note 47.

84 Id. at 1.

85 Id. at 5.

86 Id. at 315. In the PROTECT Act of 2003, Congress directly amended the guidelines by increasing the number 

of sentencing enhancements in the child pornography guidelines and limited sentencing judges’ ability to depart below the 

guideline ranges in child pornography cases. See 2009 Child Pornography Report, supra note 22. Among other things, the 

Act also created a new five-year mandatory minimum penalty for receipt, transportation, and distribution offenses, raised the 

mandatory minimum penalty for production offenses from ten to 15 years, and raised the statutory maximum penalties for 

all production and non-production offenses. Id.

87 2012 Child Pornography Report, supra note 47, at 316.

88 Though the child pornography guidelines have not been substantially amended, in 2016, the Commission 

amended the child pornography guidelines to address circuit conflicts and application issues regarding enhancements for 

infant and toddler victims and distribution of child pornography. See USSG app. C, amend. 801 (Reason for Amendment) 

(effective Nov. 1, 2016).

89 As previously explained, this includes cases sentenced under §2G2.4, which was deleted in 2004. See supra note 

15.

90 Cases cross-referenced to §2G1.1, the child pornography guideline that includes production cases, were also 

omitted.

91 In total, 409 cases were excluded due to missing information. Additionally, 1,800 cases were removed from the 

analysis based on the five Methodology exclusions. The percentage excluded under each Methodology exclusion can be 

broken down into the following: (1) 72.1% had their guideline minimums trumped by a statutory mandatory minimum or 

were subject to a mandatory minimum sentence under the Armed Career Criminal Act; (2) 28.5% had a substantial assistance 

or fast-track departure; (3) 1.1% had at least one mandatory consecutive statutory minimum sentence under a statute such 

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as section 924(c); (4) 2.2% had a guideline minimum of life imprisonment or involved an upward departure and variance to 

life imprisonment; and (5) 0.1% had guideline minimums of less than 10 months. Some cases fell within more than one of 

these groups, which is why the above percentages add up to more than 100%.

92 Adding cases with substantial assistance departures back into the Judicial Discretion Methodology produced 

similar trends. Non-production child pornography cases with substantial assistance departures represent 2.4% (436 cases) of 

the 18,406 cases in the All Cases Methodology, with an average substantial assistance sentence reduction of 43.4%. Adding 

those cases slightly widens the spread between the guideline minimum and sentence, but less so than other guidelines given 

that there are relatively few non-production child pornography cases with substantial assistance departures. See Appendix A. 

Like the other analyses, the results show an increasing spread from the Booker and Gall Periods into the Post-Report Period 

but an apparent stabilization in recent years following the peak spread in 2015. 

93 2016 Career Offender Report, supra note 47.

94 Unlike the offense-specific guidelines discussed above, the career offender guideline is an enhancement that 

applies to adult defendants whose instant offense is a “crime of violence” or “controlled substance offense” and who have 

at least two prior felony convictions that are also a “crime of violence” or “controlled substance offense.” USSG §4B1.1(a). 

Offenders qualifying for the career offender enhancement are subject to an enhanced base offense level and an automatic 

Criminal History Category of VI. USSG §4B1.1(b). 

95 28 U.S.C. § 994(h).

96 Id.

97 2016 Career Offender Report, supra note 47.

98 Id. at 3.

99 Id. at 2. To achieve greater sentencing uniformity, the Commission recommended that the career offender 

directive be amended to differentiate between career offenders with different types of criminal records, focusing on 

punishing more severely those with a “crime of violence” rather than those qualifying based solely on drug trafficking 

offenses. Id. at 3.

100 Drug trafficking offenders sentenced under §4B1.1 are included in this analysis and not included in the §2D1.1 

analysis.

101 See 2016 Career Offender Report, supra note 47, at 18.

102 In total, 816 cases were excluded due to missing information. Additionally, 10,478 cases were removed from 

the analysis based on the five Methodology exclusions. The percentage excluded under each Methodology exclusion can 

be broken down into the following: (1) 26.9% had their guideline minimums trumped by a statutory mandatory minimum or 

were subject to a mandatory minimum sentence under the Armed Career Criminal Act; (2) 69.8% had a substantial assistance 

or fast-track departure; (3) 29.7% had at least one mandatory consecutive statutory minimum sentence under a statute such 

as section 924(c); (4) 10.7% had a guideline minimum of life imprisonment or involved an upward departure and variance to 

life imprisonment; and (5) 0.0% had guideline minimums of less than ten months. Some cases fell within more than one of 

these groups, which is why the above percentages add up to more than 100%.

103 Adding cases with substantial assistance departures back into the Judicial Discretion Methodology produced 

similar trends. Career offender cases with substantial assistance departures represent 21.6% (5,949 cases) of the 27,547 

career offender cases in the All Cases Methodology, with an average substantial assistance sentence reduction of 45.4%. 

Adding those cases widens the spread between the average guideline minimum and average sentence imposed to be slightly 

wider than the All Cases Methodology. See Appendix A. Like the other analyses, the results show a steadily increasing 

spread since the end of the Booker Period.

104 See Peugh v. United States, 569 U.S. 530, 544 (2013).
91

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