Final Report on the Impact of

United States v. Booker

On Federal Sentencing

UNITED STATES SENTENCING COMMISSION

March 2006
FINAL REPORT ON THE IMPACT OF

UNITED STATES v. BOOKER

ON FEDERAL SENTENCING

Ricardo H. Hinojosa

Chair

Ruben Castillo

Vice Chair

William K. Sessions III

Vice Chair

John R. Steer

Vice Chair

Michael E. Horowitz

Commissioner

Beryl A. Howell

Commissioner

Michael J. Elston

(ex officio)

Edward F. Reilly, Jr.

(ex officio)
i

TABLE OF CONTENTS 

Executive Summary......................................................................................................... iv 

A. INTRODUCTION ....................................................................................................... iv 

B. POST-BOOKER APPELLATE JURISPRUDENCE.............................................................v 

C. IMPLEMENTATION OF THE ADVISORY GUIDELINE SYSTEM .......................................v 

D. FINDINGS FROM DATA ANALYSIS ........................................................................... vi 

 1. National Sentencing Trends.......................................................................... vi 

 2. Regional and Demographic Differences in Sentencing Practices............... viii 

 3. Specific Sentencing Issues............................................................................ ix 

 a. Cooperation Reductions without a Government Motion.................. ix 

 b. Sex Offenses ..................................................................................... ix 

 c. Crack Cocaine Offenses......................................................................x 

 d. First Offenders ....................................................................................x 

 e. Career Offenders.................................................................................x 

 f. Early Disposition Programs .............................................................. xi 

E. CONCLUSION ........................................................................................................... xi 

Chapter 1 

INTRODUCTION ............................................................................................................1 

A. OVERVIEW OF REPORT..............................................................................................1 

B. HISTORICAL DEVELOPMENT OF THE FEDERAL SENTENCING GUIDELINE SYSTEM....2 

 1. The Statutory Requirements of the Sentencing Reform Act ..........................2 

 2. Promulgation of the Sentencing Guidelines ...................................................5 

C. LEGAL CHALLENGES TO THE OPERATION OF THE GUIDELINES .................................7 

D. THE SUPREME COURT’S DEVELOPING SIXTH AMENDMENT JURISPRUDENCE............9 

E. THE BLAKELY DECISION AND ITS RESULTING IMPACT ON THE FEDERAL 

 SENTENCING GUIDELINE SYSTEM...........................................................................12 

F. UNITED STATES V. BOOKER....................................................................................14 

Chapter 2

POST-BOOKER APPELLATE JURISPRUDENCE.....................................................20 

A. INTRODUCTION .......................................................................................................20 

B. APPLICATION AND INTERPRETATION OF THE GUIDELINES.......................................20 

C. APPLICATION OF THE 18 U.S.C. § 3553(a) FACTORS ..............................................23 

D. REASONABLENESS REVIEW.....................................................................................24 

E. JURISDICTION..........................................................................................................31 

F. OTHER APPELLATE SENTENCING ISSUES ................................................................32 

 1. Crack and Powder Cocaine...........................................................................32 

 2. Early Disposition Programs ..........................................................................33 

G. STATUTORY PENALTY SCHEMES.............................................................................33 

 1. Armed Career Criminal Act..........................................................................33 
ii

 2. Mandatory Minimum Sentences...................................................................34 

H. APPELLATE COURT JURISPRUDENCE CONTINUES TO EVOLVE.................................35 

Chapter 3 

IMPLEMENTATION OF THE ADVISORY GUIDELINE SYSTEM.........................37 

A. EMPHASIS ON DOCUMENT SUBMISSION REQUIREMENTS ........................................37 

B. REAL-TIME DATA COLLECTION AND REPORTING...................................................38 

C. TESTIMONY BEFORE CONGRESS .............................................................................40 

D. PUBLIC HEARING ON THE PRESENT AND FUTURE IMPACT OF BOOKER

 ON FEDERAL SENTENCING......................................................................................41 

E. GUIDELINES EDUCATION AND TRAINING................................................................42 

Chapter 4

ANALYSIS OF COMMISSION SENTENCING DATA: TRENDS IN 

FEDERAL SENTENCING PRACTICES......................................................................44 

A. INTRODUCTION .......................................................................................................44 

B. MAJOR FINDINGS ....................................................................................................46 

C. ASSESSING TRENDS IN FEDERAL SENTENCING PRACTICES .....................................47 

 1. Introduction...................................................................................................47 

 2. Changes in Rates of Within-Range and Out-of-Range Sentences................49 

 a. The Impact of Events Prior to the PROTECT Act ...........................49 

 b. The PROTECT Act...........................................................................52 

 c. The Immediate Effect of Booker on Rates of Within-and 

 Out-of-Range Sentences ...................................................................57 

 3. Changes in the Extent that Below-Range Sentences 

 Fall below the Range ....................................................................................63 

 4. Changes in Sentence Length and the Use of Alternatives 

 to Imprisonment............................................................................................69 

 a. Changes in Average Recommended and Imposed 

 Sentence Lengths ..............................................................................69 

b. Changes in Sentence Type................................................................73 

c. Changes in Sentence Length.............................................................75 

D. FACTORS RELIED UPON AND REASONS CITED FOR IMPOSITION OF

 BELOW-RANGE SENTENCES....................................................................................77 

 1. Factors relied upon for imposition for below-range sentences.....................77 

 2. Reasons cited for imposition for below-range sentences..............................78 

Chapter 5

ANALYSIS OF COMMISSION SENTENCING DATA: REGIONAL AND 

DEMOGRAPHIC DIFFERENCES IN FEDERAL SENTENCING PRACTICES.......84 

A. INTRODUCTION AND MAJOR FINDINGS ...................................................................84 

B. DIFFERENCES IN CIRCUIT AND DISTRICT SENTENCING PRACTICES .........................85 

 1. Differences in Circuit Sentencing Practices .................................................86 

 2. Differences in District Sentencing Practices.................................................89 
iii

C. DEMOGRAPHIC DIFFERENCES IN FEDERAL SENTENCING PRACTICES ....................105 

 1. Use of Multivariate Analysis ......................................................................105 

 2. Results.........................................................................................................106 

Chapter 6

ANALYSIS OF COMMISSION DATA: IMPACT OF BOOKER ON SPECIFIC 

OFFENSE-AND OFFENDER-ISSUES.......................................................................110 

A. INTRODUCTION .....................................................................................................110 

B. FINDINGS ..............................................................................................................110 

 1. Cooperation Reductions without a Government Motion............................110 

 2. Sex Offenses ...............................................................................................110 

 3. Crack Cocaine Offenses..............................................................................111 

 4. First Offenders ............................................................................................112 

 5. Career Offenders.........................................................................................112 

 6. Early Disposition Programs ........................................................................112 

C. COOPERATION REDUCTIONS WITHOUT A GOVERNMENT MOTION .......................112 

D. SEX OFFENSES ......................................................................................................115 

 1. Criminal Sexual Abuse Offenses................................................................116 

 2. Sexual Exploitation Offenses......................................................................122 

E. CRACK COCAINE OFFENSES..................................................................................126 

F. FIRST OFFENDERS AND CAREER OFFENDERS........................................................131 

 1. First Offenders ............................................................................................132 

 2. Career Offenders.........................................................................................136 

G. EARLY DISPOSITION PROGRAMS AND OTHER “FAST TRACK”

 SENTENCING PRACTICES.......................................................................................140 

Chapter 7

CONCLUSION.............................................................................................................143 

APPENDIX 

A. Statement of Reasons form (A0245B (rev. 06/05))............................. A-1 

B. Methodology for Data Collection and Analysis ...................................B-1 

C. Summary of the Public Hearing Testimony..........................................C-1 

D. Commission, Special Post-Booker Coding Project 

 One Year Report .................................................................................. D-1 

E. Figures and Tables ................................................................................E-1 
iv

Executive Summary 

A. INTRODUCTION

This report assesses the impact of United States v. Booker1 on federal sentencing. The 

report is prepared pursuant to the general statutory authority of the United States Sentencing 

Commission (the “Commission”) under 28 U.S.C. §§ 994-995, and the specific responsibilities 

enumerated in 28 U.S.C. § 995(a)(14) and (15), which require the Commission to publish data 

concerning the sentencing process and to collect and systematically disseminate information 

concerning the actual sentences imposed and the relationship of such sentences to the factors set 

forth in 18 U.S.C. § 3553(a). 

On June 24, 2004, the Supreme Court decided Blakely v. Washington,2 invalidating a 

sentence imposed under the State of Washington’s sentencing guideline system. The Supreme 

Court held that the Washington guidelines violated the right to trial by jury under the Sixth 

Amendment of the United States Constitution. Although the Court stated that it expressed no 

opinion on the federal sentencing guidelines,3

 the decision had an immediate impact on the 

federal criminal justice system. Following Blakely, district and circuit courts voiced varying 

opinions on the implication of the decision for federal sentencing and no longer uniformly 

applied the sentencing guidelines. 

 

On January 12, 2005, the Supreme Court decided Booker, applying Blakely to the federal 

guideline system and determining that the mandatory application of the federal sentencing 

guidelines violated the right to trial by jury under the Sixth Amendment. The Court remedied 

the Sixth Amendment violation by excising the provisions in the Sentencing Reform Act that 

made the federal sentencing guidelines mandatory, thereby converting the mandatory system that 

had existed for almost 20 years into an advisory one. 

 The uniformity that had been a hallmark of mandatory federal guideline sentencing no 

longer was readily apparent as courts began to address new issues raised by Booker. For 

example, some district courts began to consider only facts proved beyond a reasonable doubt at 

sentencing, reasoning that Booker required this elevated standard. Others continued to apply the 

preponderance standard generally accepted before Booker. Some district courts continued to use 

settled procedures for imposing sentences; others created new procedures to implement the 

decision. Some district courts fashioned sentences without any consideration of the applicable 

guideline range. In fashioning a sentence outside the applicable guideline range, some district 

courts decided to forego an analysis of whether a departure under the guidelines would be 

warranted and instead relied only on Booker to impose the sentence. The majority of district 

courts, however, considered the applicable guideline range first, considered guideline departure 

reasons under the guidelines, and then decided whether consideration of the factors listed in 18 

U.S.C. § 3553(a) warranted imposition of an out-of-range sentence. While some of these 

questions have been answered by the courts of appeal, others remain unresolved. 

 

1

 543 U.S. 220 (2005). 

2

 542 U.S. 296 (2004). 3 Id. at 304, n.9. 
v

B. POST-BOOKER APPELLATE JURISPRUDENCE 

 As Chapter 2 illustrates, the appellate case law remains at an early stage of development. 

Requirements for the adequacy and specificity of the reasons for sentences provided by 

sentencing judges are just now beginning to take shape. Appellate jurisprudence setting forth the 

reasons that will, or will not, be considered reasonable for imposing a sentence outside the 

guideline range has just begun to emerge. However, the system has begun to settle as the 

appellate courts decide issues arising after Booker. For example, the circuit courts now have 

uniformly agreed that all post-Booker sentencing must begin with calculation of the applicable 

guideline range. As each respective circuit arrived at this conclusion, the district courts in that 

circuit began to use more uniform procedures to impose sentences. Six circuits ― the Fourth, 

Fifth, Sixth, Seventh, Eighth, and Tenth ― now have held that a sentence within the properly 

calculated guideline range is presumptively reasonable. Only one circuit has concluded that a 

sentence within the properly calculated guideline range is unreasonable. As appellate 

jurisprudence evolves, uncertainties are resolved, the system becomes more predictable, and a 

more complete picture of the impact of Booker on federal sentences can be developed. 

C. IMPLEMENTATION OF THE ADVISORY GUIDELINE SYSTEM

A lack of uniformity that existed pre-Booker in the reporting of sentencing information to 

the Commission, especially the reporting of reasons for the sentence imposed, was exacerbated 

post-Booker. Statutory amendments made by The Prosecutorial Remedies and Other Tools to 

end the Exploitation of Children Today (PROTECT) Act of 20044

 required courts to submit 

sentencing documentation to the Commission, including the statement of reasons for imposing a 

particular sentence. Courts were not required, however, to use a standard form for reporting 

those reasons, although the Judicial Conference of the United States had developed a form for 

such use. The form, including all of its early iterations that existed prior to Booker, was not 

adequate to fully capture sentencing decisions made post-Booker. 

 As will be discussed in further detail in Chapter 3, the Judicial Conference, working 

closely with the Commission, revised the Statement of Reasons form5

 to encapsulate postBooker changes in the sentencing guideline system. The revised form, approved in June, 2005, 

allows for a more complete picture of post-Booker sentencing practices. However, the revised 

form was not adopted until 6 months after the decision. Consequently, for the 6-month period 

preceding adoption of the revised form, courts used old forms, modified the forms, or created 

their own. Much of the improvement brought by the revised form, therefore, was not 

immediately realized. Moreover, use of the revised form has not been adopted by all courts. As 

of the date of this report, approximately two-thirds of the 94 federal districts have implemented 

use of the revised form to varying degrees.6

 

4

 Pub. L. No. 108–21, 117 Stat. 650, hereinafter the “PROTECT Act.” See also 28 U.S.C. § 994(w) and 18 U.S.C. 

§ 3553(c).

5 See Statement of Reasons AO245B (Rev. 06/05), reproduced in Appendix A. 

6

 The advisory committee for the Federal Rules of Criminal Procedure has taken steps to impose uniformity with 

respect to use of the statement of reasons form. See Proposed Rules Change to Fed. R. Crim. P. 32 

(Judgment)(proposing to amend Rule 32(k) to require courts to use the judgment form, which includes the statement 

of reasons form, prescribed by the Judicial Conference of the United States). Congress also has taken steps to 

address this documentation issue through the Patriot Act conference report. See sec. 735 of H.Rep. 109–174, Pt. I 
vi

Such changes in practice and procedure have had an impact upon the Commission’s data 

collection and analysis. One of the assumptions upon which the Commission’s historical 

analysis of data is based is the relatively uniform application of the guidelines. This assumption 

is not necessarily valid after Booker. The differences in practice and procedure that resulted 

from Booker are not entirely quantifiable, and this impacts the quality of the data collected. 

Booker also necessitated changes in the methodology used by the Commission in the 

collection and analysis of the data. The Commission had to refine the categorization of 

sentences in relation to the final guideline range.7

 The new methodology implemented in 

response to Booker uses 11 categories designed to collect and report the nuances of sentencing 

under the advisory guideline system. Despite the Commission’s best attempt to devise rigorous 

and specific categories, the categorization itself has limitations, and incomplete or unclear 

documentation often makes it difficult to characterize individual cases as falling into these 

categories. Moreover, because the reliability of any analyses conducted by the Commission 

directly correlates to the quality of the information collected, the results reported herein may not 

provide a complete picture of the system’s adaptation to advisory guidelines. 

D. FINDINGS FROM DATA ANALYSIS

For the reasons described in Part C of this executive summary, some degree of caution 

should be exercised in drawing conclusions from the post-Booker data collected and analyzed 

thus far. Nevertheless, a number of conclusions reasonably can be drawn and are described in 

Chapters 4 through 6. 

 1. National Sentencing Trends 

Chapter 4 of this report details the results of the Commission’s data analyses of the 

impact of Booker generally on federal sentencing. For ease of discussion, the terms “withinrange,” “above-range,” and “below-range” are used throughout this report to describe sentences 

in relation to the applicable guideline range. Many of the analyses in Chapter 4 compare 

historical guideline trends and trends in the post-Booker system. In sum, these analyses yielded 

the following findings:8

• The majority of federal cases continue to be sentenced in conformance with the 

sentencing guidelines. National data show that when within-range sentences and 

government-sponsored, below-range sentences are combined, the rate of 

sentencing in conformance with the sentencing guidelines is 85.9 percent. This 

conformance rate remained stable throughout the year that followed Booker. The 

 2005 (requiring submission by courts of a “written statement of reasons form issued by the Judicial Conference and 

approved by the United States Sentencing Commission.”). 

7

 For a comprehensive discussion of the new methodology, see Appendix B. 8

 Unless otherwise noted, findings discussed throughout this report are based on data contained in Commission, 

Special Post-Booker Coding Project One Year Report, contained in Appendix D. 
vii

conformance rate in the pre-PROTECT Act period was 90.6 percent. The 

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

• The severity of sentences imposed has not changed substantially across time. The 

average sentence length after Booker has increased. 

• With respect to within-range sentences, patterns for selecting the point at which to 

sentence within the range are unchanged after Booker. Approximately 60 percent 

of within-range sentences are still imposed at the minimum, or bottom, of the 

applicable guideline range. 

• The rate of imposition of sentences of imprisonment has not decreased. 

Offenders are still being incarcerated in the vast majority of cases. 

• The rate of imposition of above-range sentences doubled to a rate of 1.6 percent 

after Booker. 

• The rate of government-sponsored, below-range sentences has increased slightly 

after Booker to a rate of 23.7 percent, with substantial assistance departures 

accounting for 14.4 percent, Early Disposition Program departures accounting for 

6.7 percent, and other government-sponsored downward departures accounting 

for 2.6 percent. 

• The rate of imposition of non-government-sponsored, below-range sentences has 

increased after Booker to a rate of 12.5 percent. 

• In approximately two-thirds of cases involving non-government-sponsored, 

below-range sentences, the extent of the reductions granted are less than 40 

percent below the minimum of the range. Courts have granted small sentence 

reductions, of 9 percent or less, at a higher rate after Booker than before. Courts 

have granted 100 percent sentence reductions, to probation, at a lower rate after 

Booker than before. 

• The imposition of non-government-sponsored, below-range sentences often is 

accompanied by a citation to Booker or factors under 18 U.S.C. § 3553(a).

• The use of guideline departure reasons remains prevalent in many cases involving 

the imposition of non-government-sponsored, below-range sentences, including 

those citing Booker or factors under 18 U.S.C. § 3553(a). 

• Multivariate analysis10 indicates that four factors associated with the decision to 

impose a below-range sentence are different after Booker but not before: the 

 

9

 For purposes of this report, the pre-PROTECT Act period is the 7-month period from October, 2002 through April, 

2003. The post-PROTECT Act period is a 13-month period from mid-2003 through mid-2004. The post-Booker 

period is a 1-year period generally in 2005. 
viii

application of a mandatory minimum sentence, criminal history points, career 

offender status, and citizenship. However, most factors associated with this 

decision are the same after Booker. 

2. Regional and Demographic Differences in Sentencing Practices 

 Chapter 5 of this report details the results of the Commission’s data analyses of Booker’s 

impact on regional and demographic differences in federal sentencing practices. In sum, these 

analyses yielded the following findings: 

• The regional differences in sentencing practices that existed before Booker

continue to exist. There are varying rates of sentencing in conformance with the 

guidelines reported by the twelve circuits. Consistent with the national trend, 

rates of imposition of within-range sentences decreased for each of the twelve 

circuits following Booker. 

• Fifty-two of the 94 districts, or 55 percent, have rates of imposition of withinrange sentences at or above the national average of 62.2 percent. Forty-two 

districts have rates of imposition of within-range sentences below the national 

average. In 34 of these 42 districts, the rates of imposition of governmentsponsored, below-range sentences exceed the rates of imposition of other belowrange sentences. 

• Multivariate analysis conducted on post-Booker data reveals that male offenders 

continue to be associated with higher sentences than female offenders. Such an 

association is found every year from 1999 through the post-Booker period. 

Associations between demographic factors and sentence length should be viewed 

with caution because there are unmeasured factors, such as violent criminal 

history or bail decisions, statistically associated with demographic factors that the 

analysis may not take into account. 

• Multivariate analysis conducted on post-Booker data reveals that black offenders 

are associated with sentences that are 4.9 percent higher than white offenders. 

Such an association was not found in the post-PROTECT Act period but did 

appear in 4 of the 7 time periods analyzed from 1999 through the post-Booker 

period. 

• Multivariate analysis conducted on post-Booker data reveals that offenders of 

“other” races (mostly Native American offenders) are associated with sentences 

that are 10.8 percent higher than white offenders. This association also was found 

in 2 of the 7 time periods from 1999 through the post-Booker period. 

 10 Multivariate analysis is one statistical method to measure the effects of policy changes at the aggregate level and 

to evaluate the potential influence of other factors. The purpose of conducting multivariate analysis is to determine 

whether any sentencing changes were statistically significant after controlling for relevant factors for which data are 

available. For a detailed discussion of the multivariate analyses undertaken for this report, see Appendix B. 
ix

• Multivariate analysis conducted on post-Booker data reveals that there is no 

statistical difference between the sentence length of Hispanic offenders and the 

sentence length of white offenders. 

3. Specific Sentencing Issues 

Chapter 6 of this report details the results of the Commission’s data analyses of Booker’s 

impact on specific sentencing issues. In sum, these analyses yielded the following findings: 

a. Cooperation Reductions without a Government Motion 

• Non-government-sponsored, below-range sentences based on the 

defendant’s cooperation with authorities, i.e., below-range sentences 

granted for substantial assistance without a government motion for such, 

occur post-Booker. Post-Booker, there were 258 cases in which 

cooperation with authorities was given as a reason for the imposition of a 

non-government-sponsored, below-range sentence. In 28 of these cases, 

substantial assistance or cooperation with authorities was the only reason 

cited. In 230 of these cases, it was one of a combination of reasons for the 

below-range sentence. 

b. Sex Offenses 

• The average length of sentences for cases sentenced under each of the 

criminal sexual abuse guidelines has remained fairly constant. 

• The rate of imposition of below-range sentences declined for criminal 

sexual abuse cases post-PROTECT, but increased slightly post-Booker. 

The rate of imposition of below-range sentences in criminal sexual abuse 

cases is below the rate for all cases post-Booker. 

• The rate of imposition of below-range sentences for abusive sexual contact 

cases decreased following the PROTECT Act but increased post-Booker. 

• The rate of imposition of below-range sentences for cases involving the 

sexual abuse of a minor decreased post-PROTECT Act but increased postBooker. The increased rate post-Booker was less than what the rate had 

been pre-PROTECT Act. 

• The rate of imposition of above-range sentences increased post-Booker for 

criminal sexual abuse offenses and abusive sexual contact offenses but 

declined for offenses involving the sexual abuse of a minor. 

• The majority of below-range sentences in cases involving criminal sexual 

abuse are imposed for offenders with little or no criminal history. 
x

• Consistent with the trend seen in the national post-Booker data for cases 

overall, the average length of sentences has increased for cases sentenced 

under the sexual exploitation, i.e., child pornography, guidelines. 

• The rate of imposition of below-range sentences for sexual exploitation 

offenses declined post-PROTECT Act but increased post-Booker. 

• The rate of imposition of above-range sentences for cases involving 

production of child pornography decreased post-PROTECT Act but 

increased post-Booker. Above-range sentences have steadily increased for 

cases involving possession of child pornography. 

c. Crack Cocaine Offenses

• Courts do not often appear to be using Booker or the factors under 18 

U.S.C. § 3353(a) to impose below-range sentences in crack cocaine cases. 

Courts do not often explicitly cite crack cocaine/cocaine powder 

sentencing disparity as a reason to impose below-range sentences in crack 

cocaine cases. 

d. First Offenders 

• The rate of imposition of below-range sentences for first offenders 

increased after Booker. 

• The rate of imposition of above-range sentences for first offenders 

increased after Booker. 

• The proportion of first offenders receiving prison sentences has remained 

essentially the same, as has the average length of sentences imposed. 

e. Career Offenders 

• The rate of imposition of below-range sentences for career offenders 

increased after Booker. The majority of the cases in which below-range 

sentences are being imposed for career offenders are drug trafficking 

cases. 

• The average length of sentences imposed for career offenders has 

decreased after Booker. This continues the pattern that existed before 

Booker.
xi

f. Early Disposition Programs 

• Sentencing courts in districts without early disposition programs (EDP)11

report relatively low rates of imposition of below-range sentences. In its 

2003 Departure Report, the Commission expressed concern that these 

districts increasingly might grant below-range sentences to reach 

outcomes for similarly-situated defendants similar to the outcomes that 

would be reached in EDP districts. The data do not reflect that these 

concerns generally have been realized. In districts without EDP, the data 

do not reflect widespread use of Booker to grant below-range sentences to 

reflect sentences available in EDP districts. 

E. CONCLUSION

The Commission intends to continue its outreach and training efforts and to regularly 

release updated, real-time data on rates of imposition of within-range and out-of-range sentences, 

types of sentences imposed, average sentence lengths, the reasons judges report for sentencing 

outside the guidelines system, and the results of sentencing appeals. Uniform and complete 

statements of reasons and timely reporting to the Commission by the district courts can provide 

valuable feedback to Congress, the Commission, the courts, and all others in the federal criminal 

justice community regarding the long-term impact of Booker on the federal sentencing system. 

This report is an important part of the Commission’s efforts to inform careful consideration of 

the evolving post-Booker federal sentencing system. 

 

11 For a detailed discussion of Early Disposition Programs, see Chapter 6, Part G of this report. 
1

Chapter 1 

INTRODUCTION 

A. OVERVIEW OF REPORT

In 1984, Congress enacted the Sentencing Reform Act of 1984 (the “SRA”) in 

response to widespread sentencing disparity that existed in the federal sentencing 

system.12 Promulgation of the SRA ushered in a new era of sentencing in federal courts 

through the creation of the United States Sentencing Commission (the “Commission”) 

and the promulgation of mandatory sentencing guidelines. For nearly twenty years, the 

mandatory sentencing guideline system required federal judges to impose sentences 

within the applicable guideline range, unless the court found the existence of an 

aggravating or mitigating circumstance not adequately taken into consideration by the 

Commission in formulating the sentencing guidelines.13 This system changed on January 

12, 2005, when the Supreme Court issued its opinion in United States v. Booker.14 The 

Booker Court determined that mandatory application of the sentencing guidelines 

violated the right to trial by jury under the Sixth Amendment of the United States 

Constitution. The Court remedied the Sixth Amendment violation by excising the 

provisions in the SRA that made the sentencing guidelines mandatory, thereby turning 

the mandatory sentencing guideline system into an advisory guideline system. 

This report assesses the impact of Booker on federal sentencing. It does so by 

discussing developing appellate court jurisprudence interpreting Booker and the resulting 

advisory guideline system and by reporting and analyzing data reflecting the sentences 

imposed subsequent to the Booker decision. This report is prepared pursuant to the 

Commission’s general statutory authority under 28 U.S.C. §§ 994-995 and the specific 

responsibilities enumerated in 28 U.S.C. § 995(a)(14) and (15), which require the 

Commission to publish data concerning the sentencing process, and to collect and 

systematically disseminate information concerning the actual sentences imposed and the 

relationship of such sentences to the factors set forth in 18 U.S.C. § 3553(a). 

This chapter briefly summarizes the history of the promulgation of the sentencing 

guidelines and relevant Supreme Court precedent deciding challenges to their operation. 

The chapter then examines the Sixth Amendment line of Supreme Court decisions 

starting with Apprendi v. New Jersey,15 and culminating with Booker. Chapter 2 provides 

an overview of the circuit court decisions interpreting and applying Booker, highlighting 

select decisions of import to the consideration of Booker’s overall impact on federal 

sentencing. Chapter 3 describes the Commission response to the advisory guidelines 

system created by Booker. Chapters 4 through 6 analyze Commission data to provide a 

comparative overview of sentencing practices before and after Booker. The analysis in 

 

12 Title II, Comprehensive Crime Control Act of 1984, Pub. L. No. 98–473, 98 Stat. 1837 (1984). 

13 18 U.S.C. § 3553(b)(1), excised by United States v. Booker, 543 U.S. 220 (2005) 14 543 U.S. 220 (2005). 

15 530 U.S. 466 (2000). 
2

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

groups. 

B. HISTORICAL DEVELOPMENT OF THE FEDERAL SENTENCING GUIDELINE 

SYSTEM 

 1. The Statutory Requirements of the Sentencing Reform Act 

The SRA responded to an emerging consensus that the federal sentencing system 

needed major reform.16 Prior to the SRA, a federal judge possessed almost unlimited 

authority to fashion an appropriate sentence within a broad, statutorily prescribed range 

and “decided the various goals of sentencing, the relevant aggravating and mitigating 

circumstances, and the way in which these factors would be combined in determining a 

specific sentence.”17 Sentences were limited only by statutorily prescribed minimum and 

maximum sentences. Because each judge was “left to apply his own notions of the 

purposes of sentencing,” the federal sentencing system exhibited “an unjustifiably wide 

range of sentences to offenders convicted of similar crimes.”18 Neither party had a 

meaningful right of appellate review.19 The parole system permitted the release of 

prisoners based upon inconsistent ideas regarding the potential for rehabilitation, 

exacerbated the lack of uniformity.20 

The SRA was the culmination of lengthy bipartisan efforts. It sought to eliminate 

unwarranted disparity in sentencing and to address the inequalities created by sentencing 

indeterminacy.21 Congress decided that sentencing should be tailored―

(A) to reflect the seriousness of the offense, to promote 

respect for the law, and to provide just punishment for the offense; 

(B) to afford adequate deterrence to criminal conduct; 

(C) to protect the public from further crimes of the 

defendant; and 

 

16 See S. REP. NO. 97–307, at 956 (1981) (“glaring disparities . . . can be traced directly to the unfettered 

discretion the law confers on those judges and parole authorities [that implement] the sentence”); H.R. REP.

NO. 98–1017, at 34 (1984) (“The absence of Congressional guidance to the judiciary has all but guaranteed 

that . . . similarly situated offenders . . . will receive different sentences.”). A more comprehensive 

discussion of the events underlying the promulgation of the Act and its legislative history can be found in 

the amicus brief filed by Senators Hatch, Kennedy and Feinstein in United States v. Booker, Nos. 04-104 & 

04-105. 

17 See Commission, THE FEDERAL SENTENCING GUIDELINES: A REPORT ON THE OPERATION OF THE 

GUIDELINES SYSTEM AND SHORT-TERM IMPACTS ON DISPARITY IN SENTENCING, USE OF INCARCERATION,

AND PROSECUTORIAL DISCRETION AND PLEA BARGAINING, Vol. I (December 1991) [hereinafter 

Commission 1991 DISPARITY REPORT] at 9. 18 S. REP. NO. 97–307, at 5. 

19 S. REP. NO. 97–307, at 956, n.3. 20 Commission 1991 DISPARITY REPORT, at 9 (citing United States v. Grayson, 438 U.S. 41, 46 (1978)). 21 See S. REP. NO. 97–307 (1981); H.R. REP. NO. 98–1017 (1984); 28 U.S.C. § 994(k). 
3

(D) to provide the defendant with needed educational or 

vocational training, medical care or other correctional treatment in 

the most effective manner.22 

To this end, the SRA created the Commission as an independent agency within the 

judicial branch of the federal government23 and directed it to promulgate guidelines to be 

used for sentencing within the statutorily prescribed maximum sentence.24

Although the SRA directed the Commission to promulgate standardized 

guidelines for the courts to follow, it preserved judges’ discretion to depart from the 

prescribed guideline range in a particular case if a judge found an important aggravating 

or mitigating factor present in the case that the Commission did not consider adequately 

when formulating the sentencing guidelines.25 The SRA required courts to state their 

reasons for the sentences imposed and to articulate the specific reason for imposing 

sentences different from those described in a particular guideline.26 The SRA authorized 

limited appellate review of the sentence, permitting a defendant to appeal a sentence 

above the defined range and the government to appeal a sentence falling below that 

range. It also allowed either party to appeal an incorrect application of the sentencing 

guidelines.27 Finally, to limit further sentencing disparity, the SRA abolished federal 

parole and permitted a sentence to be reduced by not more than fifteen percent as a result 

of an inmate’s good behavior while in custody.28 

The SRA directed the Commission to create the sentencing guidelines with three 

goals in mind. First, the Commission was to assure the meeting of the purposes of 

sentencing, as set forth in 18 U.S.C. § 3553(a)(2).29 Second, the Commission was to 

provide certainty and fairness in meeting the purposes of sentencing, avoiding 

unwarranted sentencing disparities among defendants with similar records who have been 

 

22 See 18 U.S.C. § 3553(a)(2). 23 Established as “as an independent commission in the Judicial Branch of the United States,” see 28 U.S.C. 

§ 991(a), the Commission was placed in the Judicial Branch because Congress concluded that “sentencing 

should remain primarily a judicial function,” and because sitting judges would serve on the Commission. 

The Commission is comprised of seven voting members (including the Chair) appointed by the President 

“by and with the advice and consent of the Senate.” The SRA provided “[a]t least three of the 

[Commission] members shall be Federal judges selected after considering a list of six judges recommended 

to the President by the Judicial Conference of the United States” and no more than four members of the 

Commission could be members of the same political party. See 28 U.S.C. § 991. Although originally at 

least three commissioners were to be federal judges, the Prosecutorial Remedies and Other Tools to end the 

Exploitation of Children Today (PROTECT) Act of 2003, Pub L. No. 108-21, 117 Stat. 650 (2003) 

(hereinafter “the PROTECT Act”), amended 28 U.S.C. § 991(a) to limit to “no more than three” the 

number of judges who may be members of the Commission. The Attorney General, or his designee, and 

the Chairman of the Parole Commission are designated as ex officio non-voting members. 24 See 28 U.S.C. §§ 991, 994, and 995(a)(1). The SRA called for the abolition of the U.S. Parole 

Commission within five years after the effective date of the Guidelines, but the existence of the Parole 

Commission has been extended, and its duties revised, over time. 

25 See 18 U.S.C. § 3553(a), (b). 26 See 18 U.S.C. § 3553(c). 27 See 18 U.S.C. § 3742(a), (b). 28 See 18 U.S.C. § 3624(a), (b). The Bureau of Prisons uses “good time” reductions for disciplinary 

purposes, not as a parole mechanism. 

29 See 28 U.S.C. § 991(b)(1)(A). 
4

found guilty of similar criminal conduct while maintaining sufficient flexibility to permit 

individualized sentences when warranted by mitigating or aggravating factors not taken 

into account in the establishment of general sentencing practices.30 Finally, the 

Commission was to reflect, to the extent practicable, advancement in knowledge of 

human behavior as it relate[s] to the criminal justice process.31 

Congress expected that “there [would] be numerous guidelines ranges, each range 

describing a somewhat different combination of offender characteristics and offense 

circumstances,” including “several guideline ranges for a single offense varying on the 

basis of aggravating and mitigating circumstances.”32 Congress intended that there “be a 

complete set of sentencing guidelines that covers in one way or another all important 

variations that commonly may be expected in criminal cases, and that reliably breaks 

cases into their relevant components and assures consistent and fair results.”33 

The SRA further directed the Commission to consider seven factors in its 

formulation of offense categories: (1) the grade of the offense; (2) the aggravating and 

mitigating circumstances of the crime; (3) the nature and degree of the harm caused by 

the crime; (4) the community view of the gravity of the offense; (5) the public concern 

generated by the crime; (6) the deterrent effect that a particular sentence may have on 

others; and (7) the current incidence of the offense.34 The SRA listed eleven additional 

factors for the Commission to consider in establishing categories of defendants, 

including, but not limited to, age, education, mental and emotional condition, physical 

condition, role in the offense, and criminal history.35 The SRA prohibited the 

Commission from considering the race, sex, national origin, creed, and socioeconomic 

status of offenders,36 and instructed that the sentencing guidelines should reflect the 

general inappropriateness of considering certain other factors that might serve as proxies 

for forbidden factors, such as current unemployment.37 

To meet these goals, the SRA directed the Commission to develop sentencing 

ranges applicable for specific categories of offenses involving particular categories of 

defendants. More specifically, the SRA required that the sentencing ranges be consistent 

with all pertinent provisions of title 18, United States Code, and that they not include 

sentences in excess of the statutorily prescribed maximum sentence.38 It also directed 

 

30 See 28 U.S.C. § 991(b)(1)(B). 31 See 28 U.S.C. § 991(b)(1)(C). 32 S. REP. NO. 98–225, at 168. 33 Id. 34 See 28 U.S.C. § 994(c)(1)-(7). 35 See 28 U.S.C. § 994(d)(1)-(11). The legislative history provides additional guidance for the 

Commission's consideration of the statutory factors. For example, the history indicates Congress’ intent 

that the “criminal history . . . factor includes not only the number of prior criminal acts – whether or not 

they resulted in convictions – the defendant has engaged in, but their seriousness, their recentness or 

remoteness, and their indication whether the defendant is a ‘career criminal’ or a manager of a criminal 

enterprise.” S. REP. NO. 98–225, at 174. The promulgated guidelines include these and other criminal 

history measures that necessarily may require judicial factfinding extending well beyond the ascertainment 

of the fact of prior convictions. See Guidelines Manual, Ch. 4 (2005). 36 See 28 U.S.C. § 994(d). 37 See 28 U.S.C. § 994(e). 38 Mistretta v. United States, 488 U.S. 361, 375 (1989); see also 28 U.S.C. § 994(b)(1). 
5

that, “for sentences of imprisonment, ‘the maximum of the range established for such a 

term shall not exceed the minimum of that range by more than the greater of 25 percent 

or 6 months, except that, if the minimum term of the range is 30 years or more, the 

maximum may be life imprisonment.’”39 

In addition to these constraints, the SRA provided additional considerations for 

the Commission to adhere to in the fulfillment of its duties. The SRA directed that 

sentencing guidelines require a term of confinement at or near the statutorily prescribed 

maximum sentence for certain crimes of violence and for drug offenses, particularly 

when committed by recidivists.40 The SRA further directed the Commission to assure a 

substantial term of imprisonment for an offense constituting a third felony conviction, for 

a career felon, for an individual convicted of a managerial role in a racketeering 

enterprise, for a crime of violence by an offender on release from a prior felony 

conviction, and for an offense involving a substantial quantity of narcotics.41 The SRA 

also enumerated various aggravating and mitigating circumstances to be reflected in the 

sentencing guidelines, such as multiple offenses and substantial assistance to the 

Government.42 

2. Promulgation of the Sentencing Guidelines 

In promulgating sentencing guidelines to implement the SRA, the Commission 

was required to resolve a host of important policy questions typically involving rather 

evenly balanced sets of competing considerations.43 Among those questions, the 

Commission had to decide whether appropriate punishment would be defined primarily 

on the principles of just deserts or crime control. Consistent with the SRA’s rejection of 

a single doctrinal approach in favor of one that would attempt to balance all the 

objectives of sentencing, the Commission did not choose one theory over the other.44 

Instead, the Guidelines embody aspects of both just deserts and crime-control 

philosophies of sentencing and give effect to both considerations.45 

The Commission’s task was compounded by the complexity of the federal 

criminal code, which contained “innumerable statutes dealing with such basic offenses as 

theft and fraud” that were “scattered about hither and yon among various titles of the 

United States Code” resulting in “conflicting court interpretations.”46 The first 

Guidelines Manual listed more than 700 penal statutes or subsections thereof in Appendix 

 

39 Mistretta, 488 U.S. at 375 (quoting 28 U.S.C. § 994(b)(2)). 40 See 28 U.S.C. § 994(h). 41 See 28 U.S.C. § 994(i). 42 See 28 U.S.C. § 994(l) and (n), respectively. 43 See Guidelines Manual, §1A1.1, cmt. Intro. and Gen. App. Principles, (A)(4) (2005). 44 See Commission, SUPPLEMENTARY REPORT ON INITIAL SENTENCING GUIDELINES AND POLICY

STATEMENTS (1987) [hereinafter “Commission, SUPPLEMENTARY REPORT ON INITIAL SENTENCING

GUIDELINES”] at 16. 45 Id. 46 Commission, PRELIMINARY REPORT TO THE CONGRESS: STATUTORY PENALTIES PROJECT DESCRIPTION 

AND COMPILATIONS OF FEDERAL CRIMINAL OFFENSES (1989), at vi (quoting Reform of the Federal 

Criminal Laws: Hearings Before the Subcommittee on Criminal Law and Procedures of the Senate 

Committee on the Judiciary). 
6

A,47 and the 2005 Guidelines Manual references more than 1200 different statutes or 

subsections thereof.48 Because the major goal of the SRA was to increase uniformity in 

sentencing while not sacrificing proportionality, the sentencing guidelines had to 

authorize appropriately different sentences for criminal conduct of significantly different 

severity.49 Consequently, the Commission determined that the sentencing guidelines 

should be descriptive of generic conduct rather than track statutory language.50 

The Commission employed an empirical approach as a starting point for its work, 

examining detailed data from more than 10,000 presentence investigations and less 

detailed data on nearly 100,000 federal convictions. The Commission also examined the 

United States Parole Commission’s guidelines and resulting statistics, public 

commentary, and information from other relevant sources to determine existing 

sentencing practices.51 The Commission concluded that “[t]his approach provided a 

concrete starting point and identified a list of relevant distinctions that, although of 

considerable length, [was] still short enough to create a manageable set of guidelines.”52 

The Commission also examined existing state guidelines systems.53 The 

Commission rejected the approach used by many states, concluding that “[s]tate 

guidelines systems which use relatively few, simple categories and narrow imprisonment 

ranges . . . are ill suited to the breadth and diversity of federal crimes.”54 For example, 

under many states’ systems, “a single category of robbery . . . lumped together armed and 

unarmed robberies, robberies with and without injuries, [and] robberies of a few dollars 

and robberies of millions,” and thus “would have been far too simplistic to achieve just 

and effective [federal] sentences, especially given the narrowness of the permissible 

sentencing ranges.”55 

The Commission decided to create a system requiring a court to consider, within 

constraints, a defendant’s real offense conduct and the defendant’s criminal history. The 

Commission created a sentencing table with 43 offense levels and six criminal history 

categories. The offense level (located on the vertical axis of the Sentencing Table) is 

determined based upon the elements of the offense committed by the defendant and the 

particular harms associated with the defendant’s crime. The offense level increases based 

upon the severity of the offense committed, as well as by the number of identified harms 

associated with the commission of the offense. For example, in a drug crime, the base 

offense level is determined by the quantity and type of drug involved in the offense of 

conviction and related criminal conduct (whether charged or uncharged). The base 

offense level is enhanced, for example, if the crime involves a firearm.56 Finally, a 

 

47 See Guidelines Manual, App. A (1987). 48 See Guidelines Manual, App. A (2005). 

49 Commission, SUPPLEMENTARY REPORT TO THE CONGRESS: STATUTORY PENALTY REVIEW PROJECT 

(1991), at 13. 

50 See Guidelines Manual, §1A1.1, cmt. Intro. and Gen. App. Principles, (A)(4)(a) (2005). 51 See Commission, SUPPLEMENTARY REPORT ON INITIAL SENTENCING GUIDELINES, at 16. 52 Id. 53 Commission, SUPPLEMENTARY REPORT ON INITIAL SENTENCING GUIDELINES, at 14. 54 Id. 55 Commission, SUPPLEMENTARY REPORT ON INITIAL SENTENCING GUIDELINES, at 13. 56 See Guidelines Manual, §2D1.1 (2005). 
7

defendant’s role in the offense or other conduct can result in an increase or decrease of 

the offense level.57 Calculation of the sentence also requires a determination of the 

defendant’s criminal history (located on the horizontal axis of the Sentencing Table).58 

Once the offense level and criminal history are calculated, the applicable sentencing 

range is determined by use of the sentencing table.59 

The Commission expected that its work on the sentencing guidelines would be 

evolutionary60 and that it would issue guidelines, gather data from actual practice, 

analyze the data, and revise the guidelines over time.61 The monitoring function alone 

requires the Commission to review the charging and sentencing documents for 

approximately 70,000 cases per year,62 and the Commission codes hundreds of pieces of 

information with respect to each of these cases. The resulting, steadily expanding 

database is an invaluable source of information for the criminal justice community.63 

Congress also “necessarily contemplated that the Commission would periodically review 

the work of the courts, and would make whatever clarifying revisions to the Guidelines 

conflicting judicial interpretations might suggest.”64 Since the promulgation of the 

original set of sentencing guidelines through the present, the sentencing guidelines 

frequently have been amended to respond to court decisions, congressional directives, 

and the Commission’s own evaluations of the need for guideline refinement.65 

C. LEGAL CHALLENGES TO THE OPERATION OF THE GUIDELINES 

 Legal challenges to the operation of the sentencing guidelines began immediately 

after their promulgation. The constitutionality of the sentencing guidelines was first 

addressed by the United States Supreme Court in Mistretta v. United States.66 In 

Mistretta, the defendant raised nondelegation and separation of powers challenges to both 

the federal sentencing guidelines and the Sentencing Commission. In upholding the 

constitutionality of both, the Supreme Court held that “Congress neither delegated 

 

57 See Guidelines Manual, Chapter 3 (2005) for other adjustments that apply to a wide variety of offenses. 58 See Guidelines Manual, Chapter 4 (2005). 

59 See Guidelines Manual, Chapter 5 Pt. A (2005). For a more comprehensive discussion of how the 

sentencing guidelines determine the presumptive sentence, see Commission, FIFTEEN YEARS OF GUIDELINE

SENTENCING: AN ASSESSMENT OF HOW WELL THE FEDERAL CRIMINAL JUSTICE SYSTEM IS ACHIEVING THE

GOALS OF SENTENCING REFORM (Nov. 2004) (hereinafter “FIFTEEN YEAR REVIEW”) at 16-18 and Chpater 

4 c.4. of this report. 

60 See Stephen Breyer, The Federal Sentencing Guidelines and the Key Compromises upon Which They 

Rest [hereinafter Breyer, Key Compromises], 17 HOFSTRA L. REV. 1, 8 (1988). 61 Id. 62 See Commission, 2003 ANNUAL REPORT, at 34; Mistretta, 488 U.S. at 369. 63 See William W. Wilkins, Jr. and John R. Steer, The Role of Sentencing Guidelines Amendments in 

Reducing Unwarranted Sentencing Disparity, 50 WASH. & LEE L. REV. 63, 65 (1993). The Commission 

also uses the database to evaluate whether the sentencing guidelines have achieved the goals of the SRA. 

To that end, the Commission issued a report examining how the sentencing guidelines have met the goals 

of the SRA. See Commission, FIFTEEN YEAR REVIEW. 64 Braxton v. United States, 500 U.S. 344, 348 (1991). 65 Amendments to the sentencing guidelines automatically take effect unless Congress, within a 180-day 

waiting period, affirmatively acts to reject them. See 28 U.S.C. § 994(p). 66 488 U.S. 361 (1989). The case was decided by an 8-to-1 vote, and Justice Blackmun authored the 

opinion. Justice Scalia was the lone dissenter. 
8

excessive legislative power [to the Commission] nor upset the constitutionally mandated 

balance of powers among the coordinate branches” by placing the Commission within the 

Judicial Branch.67 Likening the role of the Commission to that of the courts in 

promulgating rules of procedure,68 the Supreme Court stated that “[the Guidelines] do not 

bind or regulate the primary conduct of the public or vest in the Judicial Branch the

legislative responsibility for establishing minimum or maximum penalties for every 

crime. They do no more than fetter the discretion of sentencing judges to do what they 

have done for generations–impose sentences within the broad limits set by Congress.”69 

The Court further went on to state that the “judicial contribution to the enterprise of 

creating rules to limit the discretion of sentencing judges does not enlist the resources or 

reputations of the Judicial Branch in either the legislative business of determining what 

conduct should be criminalized or the executive business of enforcing the law.”70 

 Once the Supreme Court settled the question of the constitutionality of the 

sentencing guidelines, courts were then required to impose federal sentences in 

accordance with the sentencing guidelines. This did not, however, put an end to all 

litigation concerning challenges to the operation of the sentencing guidelines. The Court 

was then called upon to decide issues relating to the relevant conduct rules and sentence 

enhancements for conduct that could have been charged but was not. 

 In United States v. Dunnigan,

71 the Court unanimously held that the Constitution 

permits a court to enhance the defendant’s sentence pursuant to the obstruction of justice 

enhancement, USSG §3C1.1, if the court finds that the defendant committed perjury at 

trial.”72 In so holding, the Court noted that “the enhancement provision is part of a 

sentencing scheme designed to determine the appropriate type and extent of punishment 

after the issue of guilt has been resolved.”73 In Witte v. United States,

74 the Court held 

that consideration of relevant conduct at sentencing did not bar a subsequent prosecution 

for the related criminal conduct. The Supreme Court also held that a jury’s verdict of 

acquittal does not prevent the sentencing judge from considering the conduct underlying 

the acquitted charge, so long as the conduct has been proved by a preponderance of 

evidence.75 In United States v. Nichols,

76 the Court upheld the consideration of an 

uncounseled misdemeanor conviction to enhance punishment for a subsequent 

conviction. The Court noted that recidivism is an important factor in determining what 

 

67 Id. at 384-85. 68 Id. at 391. 69 Id. at 396. 70 Id. at 407. 71 507 U.S. 87 (1993). Justice Kennedy delivered the opinion of the Court. 

72 Id. at 89. 73 Id. at 94. 74 515 U.S. 389, 406 (1995). Justice O'Connor delivered the opinion of the Court, in Parts I, II, and IV, of 

which Chief Justice Rehnquist, and Justices Kennedy, Souter, Ginsburg, and Breyer joined, and in Part III 

of which Justices Stevens, Souter, Ginsburg, and Breyer joined. Justice Scalia filed an opinion concurring 

in the judgment, in which Justice Thomas joined. 

75 United States v. Watts, 519 U.S. 148 (1997) (per curiam). 76 511 U.S. 738 (1994). Chief Justice Rehnquist delivered the opinion of the Court, in which Justices 

O'Connor, Scalia, Kennedy, and Thomas, joined. Justice Souter filed an opinion concurring in the 

judgment.
9

sentence to impose on a defendant and thus upheld the constitutionality of such 

consideration.77 

 In Edwards v. United States,

78 the Court held that the sentencing guidelines 

authorized the judge to determine for sentencing purposes whether crack cocaine, as well 

as powder cocaine, was involved in the defendants’ offense related activities and the 

applicable quantities of each drug form. In upholding the sentence, the Court stated that 

“regardless of the jury’s actual, or assumed, beliefs about the conspiracy, the Guidelines 

nonetheless require the judge to determine the ‘controlled substances’ at issue and how 

much of those controlled substances consisted of cocaine, crack, or both.”79 The Court 

summarily disposed of the defendant's statutory and constitutional claims, stating that 

perhaps those claims “would make a difference if it were possible to argue, say, that the 

sentences imposed exceeded the maximum that the statutes permit for a cocaine only 

conspiracy.”80

D. THE SUPREME COURT’S DEVELOPING SIXTH AMENDMENT JURISPRUDENCE 

 The aforementioned cases appeared to solidify the sentencing guidelines’ role in 

the federal sentencing system. Moreover, judicial factfinding in order to calculate 

sentences, a critical component of the sentencing guidelines, seemed firmly grounded by 

this precedent as constitutionally sound. The Supreme Court then decided Apprendi.81 

Apprendi was one of a series of cases challenging under the Sixth Amendment of the 

Constitution judicial factfinding when imposing sentences. This section of the report 

focuses on Apprendi and its progeny, which ultimately culminated in Booker. 

 Apprendi involved a challenge to a sentence imposed in state court. The 

defendant was convicted of a firearms violation, which carried a prison term of 5 to 10 

years. After he pleaded guilty to the crime, the State of New Jersey filed a motion to 

enhance the sentence under the State’s hate crime statute, alleging that the defendant 

committed the crime of conviction to intimidate a person or group because of racial 

animus. After finding by a preponderance of the evidence that the crime was racially 

motivated, the trial court imposed a 12-year sentence. The Supreme Court reversed, 

holding that the Sixth Amendment requires that “[o]ther than the fact of a prior 

conviction,82 any fact that increases the penalty for a crime beyond the prescribed 

 

77 Id. at 747-48. 78 523 U.S. 511 (1998). Justice Breyer delivered the opinion for a unanimous Court. 79 Id. at 514. 80 Id. at 515. 81 530 U.S. 466 (2000). Justice Stevens wrote the opinion, joined by Justices Souter, Scalia, Thomas and 

Ginsburg. 

82 The exception for prior convictions is derived from the Court’s holding in Almendarez-Torres v. United 

States, 523 U.S. 224 (1998). Justice Breyer delivered the opinion of the Court, in which Chief Justice 

Rehnquist, and Justices O'Connor, Kennedy, and Thomas joined. The Court held that Congress' decision to 

treat recidivism as a sentencing factor upon an alien's subsequent conviction of an illegal reentry offense, 

rather than as an element of that offense, did not exceed due process or other constitutional limits on 

Congress' power to define elements of crime. 
10

statutory maximum must be submitted to a jury, and proved beyond a reasonable 

doubt.”83 

Harris v. United States84 raised the issue of whether the Apprendi rule applied to 

facts that trigger a statutory mandatory minimum penalty, thereby calling into question 

McMillan v. Pennsylvania.85 The case involved the interpretation of 18 U.S.C. § 

924(c),86 which allowed the court to increase a statutory minimum penalty from 5 to 7 

years upon a finding that a firearm was brandished during and in relation to a crime of 

violence or drug trafficking crime.87 The defendant’s indictment did not charge that he 

had brandished the weapon. After the defendant was convicted, his presentence report 

recommended that he receive the 7-year minimum sentence. The defendant objected, 

arguing that brandishing was an element of a separate statutory offense for which he was 

not indicted or convicted. The lower court overruled his objection, and sentenced him to 

a seven year term of imprisonment. The court of appeal also rejected the defendant’s 

constitutional argument, finding that McMillan foreclosed his argument that if 

brandishing is a sentencing factor, then 18 U.S.C. § 924(c) is unconstitutional under 

Apprendi. 

The Supreme Court agreed, explaining that Apprendi and McMillan were not 

inconsistent with one another because “there is a fundamental distinction between the 

factual findings that were at issue in those two cases. Apprendi held that any fact 

extending the defendant's sentence beyond the maximum authorized by the jury's verdict 

would have been considered an element of an aggravated crime ― and thus the domain 

of the jury ― by those who framed the Bill of Rights.”88 McMillan recognized that once 

the jury's verdict has authorized the judge to impose the minimum sentence, a statute may 

reserve to the judge the finding of a fact increasing the mandatory minimum (but not 

extending the sentence beyond the statutorily prescribed maximum sentence), without 

violating the Constitution. 89 

 

83 Id. at 490. 84 536 U.S. 545 (2002). Justice Kennedy announced the judgment of the Court and delivered the opinion of 

the Court with respect to Parts I, II, and IV, in which Chief Justice Rehnquist and Justices O'Connor, 

Scalia, and Breyer joined, and an opinion with respect to Part III, in which Chief Justice Rehnquist and 

Justices O'Connor and Scalia joined. Justice O'Connor filed a concurring opinion. Justice Breyer filed an 

opinion concurring in part and concurring in the judgment). 

85 477 U.S. 79 (1986). In McMillan, the Court sustained a statute that increased the minimum penalty for a 

crime, though not beyond the statutorily prescribed maximum sentence, when the sentencing judge found, 

by a preponderance of the evidence, that the defendant had possessed a firearm. 

86 18 U.S.C. § 924(c) provides a separate criminal offense for carrying a weapon during and in relation to a 

crime of violence or drug trafficking crime. The statute imposes a mandatory minimum penalty of 5 years, 

which must be served consecutively to any sentence imposed for the underlying offense. The minimum 

penalty increases to 7 and 10 years, if the firearm was brandished or discharged, respectively. 87 See 18 U.S.C. § 924(c). 88 Id. at 557 (emphasis added). 

89 Id.
11

The Court distinguished 18 U.S.C. § 924(c) from the federal carjacking statute in 

Jones v. United States.90 In Jones, the Court had “accorded great significance to the 

‘steeply higher penalties’ authorized by the carjacking statute's three subsections, which 

enhanced the defendant's maximum sentence from 15 years, to 25 years, to life ―

enhancements the Court doubted Congress would have made contingent upon judicial 

factfinding.” By contrast, 18 U.S.C. § 924(c) has “an effect on the defendant's sentence 

that is more consistent with traditional understandings about how sentencing factors 

operate; the required findings constrain, rather than extend, the sentencing judge's 

discretion.”91

Citing Apprendi,

92 the Court noted that the “Fifth and Sixth Amendments ensure 

that the defendant ‘will never get more punishment than he bargained for when he did the 

crime,’ but they do not promise that he will receive ‘anything less’ than that.”93 The 

Court then concluded that 18 U.S.C. § 924(c) was constitutional and did not evade the 

requirements of the Fifth and Sixth Amendment. “Congress ‘simply took one factor that 

has always been considered by sentencing courts to bear on punishment .... and dictated 

the precise weight to be given that factor.’”94 “That factor need not be alleged in the 

indictment, submitted to the jury, or proved beyond a reasonable doubt.”95 

 In Ring v. Arizona,

96 the Court considered whether the State of Arizona’s death 

penalty statute violated the defendant’s Sixth Amendment right to a jury trial in capital 

prosecutions. The statute allowed the trial judge, sitting alone, to determine the presence 

or absence of the aggravating factors required by Arizona law to impose the death 

penalty, following a jury adjudication of a defendant's guilt of first-degree murder. 

Reasoning that “[t]he Arizona first-degree murder statute ‘authorizes a maximum penalty 

of death only in a formal sense,’ for it explicitly cross-references the statutory provision 

requiring a judicial finding of an aggravating circumstance before imposition of the death 

penalty,” the Court concluded that the Arizona statute violated the Sixth Amendment. 

Because the “enumerated aggravating factors operated as ‘the functional equivalent of an 

element of a greater offense,’ the Sixth Amendment requires that they be found by a 

jury.”97 

 

90 526 U.S. 227 (1999). Justice Souter delivered the opinion of the Court, in which Justices Stevens, Scalia, 

Thomas, and Ginsburg joined. Justices Stevens and Scalia filed concurring opinions. Jones held that the 

federal carjacking statute, 18 U.S.C. § 2119, establishes three separate offenses, each of which must be 

charged in the indictment, proven beyond a reasonable doubt, and submitted to the jury for its verdict. See 

also United States v. Castillo, 530 U.S. 120 (2000). Justice Breyer delivered the opinion of the Court, in 

which Chief Justice Rehnquist and Justices Stevens, O'Connor, Kennedy, Souter, Thomas, and Ginsburg 

joined, and in which Justice Scalia joined except as to point Fourth of Part II. 

91 Id. at 554. 

92 530 U.S. at 498. 

93 Id. at 554. 

94 Id at 568 (citing McMillan, 477 U.S. at 89-90). 

95 Id. 96 536 U.S. 584 (2002). 

97 Id. at 609 (citing Apprendi, 530 U.S. at 494, n. 19). See Shriro v. Summerlin, 542 U.S. 348 (2004), in 

which the Supreme Court held that the decision in Ring was properly classified as procedural rather than 

substantive and did not apply retroactively to death penalty cases already final on direct review and that 

Ring did not announce a watershed rule of criminal procedure. 
12

E. THE BLAKELY DECISION AND ITS RESULTING IMPACT ON THE FEDERAL

SENTENCING GUIDELINE SYSTEM

 On June 24, 2004, the Supreme Court decided Blakely v. Washington,98

invalidating a sentence imposed under Washington’s sentencing guidelines system. The 

state trial court sentenced the defendant to a term of imprisonment more than 3 years 

above the 53-month statutory standard range for his offense, based on the court’s finding 

that the defendant had acted with deliberate cruelty. Deliberate cruelty was a statutorily 

enumerated ground for departing from the standard sentencing range. Washington law 

required an exceptional sentence to be based on factors other than those used in 

computing the standard range. Because the defendant had not made admissions 

supporting the sentencing court’s finding of deliberate cruelty, the Court held that the 

judicial application of an enhanced range under the Washington state guidelines violated 

the defendant’s right to a jury trial under the Sixth Amendment. The Court made this 

finding notwithstanding the fact that the sentence imposed did not exceed that statutory 

maximum penalty of 10 years.99 In so holding, the Court redefined the term “statutory 

maximum” as used in Apprendi to mean the maximum sentence that a judge may impose 

solely on the basis of the facts reflected in the jury verdict or admitted to by the 

defendant, not the maximum the judge may impose after making additional findings. 

Although the Court stated that it expressed no opinion on the federal sentencing 

guidelines, which were not before it,100 the decision had an immediate impact upon the 

federal criminal justice system. 

After Apprendi but before Blakely, the federal circuit courts of appeal 

unanimously had concluded that the maximum sentence a defendant could receive “if 

punished according to the facts reflected in the jury verdict alone,”101 was the maximum 

penalty provided in the statute setting forth the offense of conviction (or whatever penalty 

statute was referenced by the statute setting forth the offense of conviction), not the top of 

the guideline sentencing range mandated by those facts.102 The Court’s redefinition of 

the term “statutory maximum” caused many courts to question the reasoning underlying 

these decisions. Following the Blakely decision, district and circuit courts voiced varying 

opinions on the implications of the decision for federal sentencing and no longer 

uniformly applied the sentencing guidelines. 

 

98 542 U.S. 296 (2004). 99 Id. at 303-04. 100 Id. at 304, n.9. 101 Apprendi, 530 U.S. at 483. 102 See United States v. Reyes-Echevarria, 345 F.3d 1, 6-7 (1st Cir. 2003); United States v. Garcia, 240 F.3d 

180, 182-84 (2d Cir. 2001); United States v. Williams, 235 F.3d 858, 862-63 (3dCir. 2000); United States 

v. Kinter, 235 F.3d 192, 198-202 (4th Cir. 2000); United States v. Doggett, 230 F.3d 160, 166 (5th Cir. 

2000); United States v. Lawrence, 308 F.3d 623, 634-35 (6th Cir. 2002); United States v. Knox, 301 F.3d 

616, 620 (7th Cir. 2002); United States v. Walker, 324 F.3d 1032, 1041 (8th Cir.); United States v. Ochoa, 

311 F.3d 1133, 1135-36 (9th Cir. 2002); United States v. Jackson, 240 F.3d 1245, 1249 (10th Cir. 2001); 

United States v. Harris, 244 F.3d 828, 829-30 (11th Cir. 2001); United States v. Fields, 251 F.3d 1041, 

1043-44 (D.C. Cir. 2001). 
13

Two circuits immediately declared that the operation of the federal sentencing 

guidelines violated the Sixth Amendment. In United States v. Booker,

103 the Seventh 

Circuit held that the Sixth Amendment, as interpreted in Blakely, was violated by the 

sentencing court’s factual determinations on drug quantity and obstruction of justice.104

Because the parties had neither briefed nor argued the question of severability,105 the 

Seventh Circuit declined to rule on that issue.106 Instead the court remanded the case for 

resentencing.107 In United States v. Ameline,108 the Ninth Circuit concluded that 

Blakely’s definition of statutory maximum applies to the determination of the base 

offense levels and any applicable upward enhancements imposed under the sentencing 

guidelines.109 The court declined to invalidate the sentencing guidelines entirely, holding 

that where the procedural aspects of applying the sentencing guidelines violated the Sixth 

Amendment, those portions could be severed and a sentence using the remaining 

guideline provisions could be imposed.110 

 Five circuits held that Blakely did not affect the constitutionality of the federal 

sentencing guidelines. In United States v. Pineiro,

111 the Fifth Circuit became the first 

circuit to hold that Blakely did not extend to the sentencing guidelines. After examining 

circuit precedent and Supreme Court case law that had “consistently embraced and relied 

upon the distinction between guideline ranges and maximum sentences in rejecting 

various challenges to the Guidelines,”112 the court concluded that this precedent 

supported the view that the sentencing guidelines were a tool for channeling judicial 

discretion and that Blakely did not compel a departure from the long-embraced distinction 

between guideline ranges and the maximum penalties established in the United States 

Code for various offenses.113 Four circuits similarly declared that Blakely did not 

invalidate the sentencing guidelines.114 

 

103 375 F.3d 508 (7th Cir. 2004). 104 Id. at 513. 105 The issue of severability addresses the remedy the court should apply if finding that the operation of the 

sentencing guidelines violated the Sixth Amendment. Possible remedies included invalidation of the 

sentencing guidelines in their entirety, resulting in a return to indeterminate sentencing; invalidation of only 

those portions of the sentencing guidelines violating the Sixth Amendment in a particular case, and 

imposition of the requirement that all base offense levels and enhancements under the sentencing 

guidelines be determined by a jury. 

106 Id. at 514-15. 107 Id. at 515. 108 376 F.3d 967 (9th Cir. 2004). 

109 Id. at 978. 110 Id. at 981. 111 377 F.3d 464 (5th Cir. 2004). 112 Id. at 471. 113 Id. at 470-73. 114 United States v. Mincey, 380 F.3d 102 (2d Cir. 2004) (holding that absent a Supreme Court ruling to the 

contrary, the Sixth Amendment does not require that every enhancement factor under the sentencing 

guidelines be pleaded and proved to a jury beyond a reasonable doubt); United States v. Hammoud, 381 

F.3d 316 (4th Cir. 2004) (en banc) (holding that Blakely did not invalidate the sentencing guidelines and 

directing the district courts within the circuit to continue sentencing defendants in accordance with the 

sentencing guidelines); United States v. Koch, 383 F.3d 436 (6th Cir. 2004) (en banc) (ruling that Blakely 

does not invalidate the sentencing guidelines and the sentencing guidelines do not violate the Sixth 

Amendment); United States v. Reese, 382 F.3d 1308 (11th Cir. 2004) (declining to conclude that Blakely

compels an alteration of the established view of the sentencing guidelines as a tool for channeling the 
14

F. UNITED STATES V. BOOKER 

On August 2, 2004, the Supreme Court accepted for expedited review two federal 

sentencing guidelines cases, Booker and United States v. Fanfan,

115 to clarify the 

implications of the Blakely decision for the federal sentencing guidelines. 

 The petitions for certiorari presented two questions for the Court’s resolution: 

(1) Whether the Sixth Amendment is violated by the imposition of an 

enhanced sentence under the United States Sentencing Guidelines based 

on the sentencing judge’s determination of a fact (other than a prior 

conviction) that was not found by the jury or admitted by the defendant. 

(2) If the answer to the first question is “yes,” ... whether, in a case in which 

the Guidelines would require the court to find a sentence enhancing fact, 

the Sentencing Guidelines as a whole would be inapplicable, as a matter of 

severability analysis, such that the sentencing court must exercise its 

discretion to sentence the defendant within the maximum and minimum 

set by statute for the offense of conviction.116

 In an opinion authored by Justice Stevens, the Court117 held that both lower courts 

correctly concluded that the Sixth Amendment, as construed in Blakely, does apply to the 

sentencing guidelines.118 In so holding, the Court reaffirmed the holding in Apprendi, 

rephrasing it as “[a]ny fact (other than a prior conviction) which is necessary to support a 

sentence exceeding the maximum authorized by the facts established by a plea of guilty 

or a jury verdict must be admitted by the defendant or proved to a jury beyond a 

reasonable doubt.” 119 

 In answering the first question, the Court undertook to explain the genesis of its 

recent Sixth Amendment doctrine as enunciated in Jones, Apprendi, Ring, and Blakely. 

According to the Court, the basic precepts of the right to trial by jury and the right to 

have the crime proved beyond a reasonable doubt were undercut by a new trend in the 

legislative regulation of sentencing, which placed an increasing emphasis on facts that 

enhanced sentencing ranges. It thus became the judge, and not the jury, who determined 

the upper limits of sentencing based upon facts not required to be raised before trial or 

proved beyond a reasonable doubt. The legislative trend thereby operated to increase the 

judge’s power and decrease that of the jury.120 This new circumstance “forced the Court 

to address the question of how the right to jury trial could be preserved, in a meaningful 

 sentencing court's discretion within a crime's minimum and maximum sentence provided in the United 

States Code, with that maximum being the only constitutionally relevant maximum sentence). 

115 524 U.S. 956 (2004). 116 United States v. Booker, 543 U.S. at 229, n.1. 117 The Blakely majority (Justices Stevens, Scalia, Souter, Thomas and Ginsburg) formed the majority in 

this portion of the court’s opinion. 

118 543 U.S. at 243. 

119 Id. at 244. 120Id. at 236. 
15

way, guaranteeing that the jury would still stand between the individual and the power of 

the government in the new sentencing regime.”121 The Court answered the question as it 

did in the Apprendi line of cases to “preserve Sixth Amendment substance.”122

 The question of the appropriate remedy for the constitutional violation was 

answered by a different majority of the Court in an opinion authored by Justice Breyer.123 

After considering the legislative intent underlying the SRA, the Court concluded that the 

Sixth Amendment requirement that a jury find certain sentencing facts was incompatible 

with components of the SRA. The Court concluded that the severability question must be 

answered by excising from the SRA those provisions that made the sentencing guidelines 

mandatory. The Court stated: 

We must decide whether or to what extent, "as a matter of 

severability analysis," the Guidelines "as a whole" are 

"inapplicable ... such that the sentencing court must exercise its 

discretion to sentence the defendant within the maximum and 

minimum set by statute for the offense of conviction." Pet. for 

Cert. in No. 04-104, p. I. 

 

We answer the question of remedy by finding the provision 

of the federal sentencing statute that makes the Guidelines 

mandatory, 18 U.S.C.A. § 3553(b)(1) (Supp.2004), incompatible 

with today's constitutional holding. We conclude that this 

provision must be severed and excised, as must one other statutory 

section, § 3742(e) (main ed. and Supp.2004), which depends upon 

the Guidelines' mandatory nature. So modified, the Federal 

Sentencing Act, see Sentencing Reform Act of 1984, as amended, 

18 U.S.C. § 3551 et seq., 28 U.S.C. § 991 et seq., makes the 

Guidelines effectively advisory. It requires a sentencing court to 

consider Guidelines ranges, see 18 U.S.C.A. § 3553(a)(4) 

(Supp.2004), but it permits the court to tailor the sentence in light 

of other statutory concerns as well, see § 3553(a) (Supp. 2004).124 

In determining that these mandatory provisions could be excised, the Court first 

decided that the two remedies suggested by the dissent and the respondents were 

insufficient to preserve the intent of Congress in enacting the SRA. Notably, in rejecting 

the Government’s proposed remedy that would “render the Guidelines advisory in ‘any 

case in which the Constitution prohibits’ judicial factfinding,” the Court determined that 

the proposal would impose a one-way mandatory system that would limit only judges’ 

 

121 Id. at 237. 122 Id. The Court’s opinion is devoid of any discussion of Harris, raising many questions about whether 

that decision is still good law. The holding in Harris, which allows judicial factfinding for the imposition 

of minimum sentences, is critical to the efficacy of what some commentators call a “topless guidelines” 

proposal for reforming the federal guideline system. See infra, Appendix C. 123 Along with Justice Breyer, Chief Justice Rehnquist and Justices O’Connor, Kennedy, and Ginsburg 

formed the majority that fashioned the remedy. 

124 Id. at 245. 
16

ability to reduce sentences, but put no limits on a judge’s ability to increase sentences. 

This one-way limit, the Court concluded, would not promote the congressional objective 

of uniformity in sentencing.125 

The Court also rejected the dissent’s proposal to graft a jury factfinding 

requirement onto the provisions of the SRA by reading “the court” as meaning “the judge 

working together with the jury,” because such a reading would be contrary to the intent of 

Congress. The Court based this conclusion on the determination that a jury factfinding 

sentencing system would be incompatible with the use of real offense conduct in 

sentencing, an element the Court considered critical to congressional intent to achieve 

sentencing reform. The Court also noted that application of jury factfinding to the 

guideline system would result in very complicated trial procedures and increased power 

to prosecutors through plea bargaining as more sentencing enhancements would have to 

be charged.126

In devising the remedy, the Court targeted only two provisions of the SRA. The 

Court excised 18 U.S.C. § 3553(b)(1), which required the court to impose a sentence as 

determined by the sentencing guidelines unless “the court finds there exists an 

aggravating or mitigating circumstance of the kind, or to a degree, not adequately taken 

into consideration by the Sentencing Commission in formulating the guidelines.” The 

Court determined that “the existence of [this section] is a necessary condition of the 

constitutional violation.”127 The Court also excised 18 U.S.C. § 3742(e), which provided 

for a de novo standard of review for departures from the guidelines, and replaced it with 

“reasonableness.” It left intact all other provisions of the SRA, explicitly mentioning 18 

U.S.C. § 3553(a), relating to considerations when imposing a sentence, and 18 U.S.C. 

§ 3742(a) and (b), relating to the right of appeal of sentencing decision. The Court 

identified as problematic only those provisions making the sentencing guidelines 

mandatory.128 

By severing these provisions, the Court rendered the sentencing guidelines 

effectively advisory, thereby permitting the courts to continue factfinding under a 

preponderance of the evidence standard. Although the Court recognized that Congress 

expected the guideline system to be mandatory, it reasoned that Congress would prefer a 

system in which the guidelines were considered in every case.129 Congress’ important 

objectives when creating the Commission to promulgate sentencing guidelines included 

honesty, uniformity, and proportionality in sentencing.130 The Court theorized that “[t]he 

system remaining after excision, while lacking the mandatory features that Congress 

enacted, retains other features that help to further these objectives.”131 For example, 

 

125 Id. at 266. 126 Id. at 249-58. 127 Id. at 259. 128 Id. at 258-61. The remaining portions of the Act require a sentencing court to consider guidelines 

ranges but permit a court to tailor the sentence in light of other statutory concerns. See 18 U.S.C. 

§ 3553(a). 

129 Booker, 543 U.S. at 248. 130 Id. at 264. 131 Id. 
17

“[t]he Sentencing Commission will continue to collect and study appellate court 

decisionmaking. It will continue to modify its Guidelines in light of what it learns, 

thereby encouraging what it finds to be better sentencing practices. It will thereby 

promote uniformity in the sentencing process.”132 

Booker’s instruction that the courts consider the guidelines, but “tailor the 

sentence in light of other statutory concerns,”133 immediately raised the question of the 

extent to which courts must take the sentencing guidelines into account in imposing 

sentence. Section 3553(a) of title 18, United States Code, lists seven factors, including 

the guidelines and policy statements, particularly those governing departures from the 

guidelines, that must be taken into consideration in imposing a sentence. Following 

Booker, two schools of thought emerged regarding the extent to which courts must take 

the sentencing guidelines into account. The first school of thought accords substantial 

weight to the sentencing guidelines. This viewpoint was first espoused in United States 

v. Wilson,134 which concluded that the sentencing guidelines already take the other factors 

enumerated in 18 U.S.C. § 3553(a) into account. The opposing viewpoint was offered in 

United States v. Ranum,135 in which the court concluded that the sentencing guidelines 

are only one of the factors included in 18 U.S.C. § 3553(a), all of which must be given 

equal consideration when arriving at an appropriate sentence. 

The weight to be accorded the sentencing guidelines is only one of many legal 

issues that have arisen since the Supreme Court decided Booker. District courts applied 

different approaches to sentencing.136 Some district courts fashioned sentences without 

any consideration of the applicable guideline range. More specifically, in fashioning a 

sentence outside the applicable guideline range, some courts decided to forego an 

analysis of whether a departure under the guidelines would be warranted and instead 

relied only on Booker to impose the sentence. The majority of courts, however, 

considered the applicable guideline range first and then proceeded to decide whether 

consideration of the factors listed in 18 U.S.C. § 3553(a) warranted imposition of a nonguideline sentence. This continued until all circuit courts uniformly agreed that post-

 

132 Id. at 263. 133 Id. at 245. 134 350 F. Supp. 2d 910 (D. Utah 2005); see also United States v. Wanning, 354 F. Supp. 2d 1056 (D. Neb. 

2005). 

135 353 F. Supp. 2d 984 (E.D. Wis. 2005). 136Compare United States v. Wilson, 350 F. Supp. 2d 910, 912 (D. Utah 2005) (concluding that a 

sentencing court should give considerable weight to the guidelines in determining what sentence to impose 

and stating that the court will depart from the guidelines range in unusual cases for clearly identified and 

persuasive reasons), and United States v. Wanning, 354 F. Supp. 2d 1056, 1062-63 (D. Neb. 2005) 

(positing that a sentencing court should give substantial weight to the guidelines range and that the 

guidelines should be considered presumptively reasonable because the Sentencing Commission crafted the 

guidelines at the direction of Congress and to implement congressional intent), with United States v. 

Ranum, 353 F. Supp. 2d 984, 985-87 (E.D. Wis. 2005) (explaining that under Booker, the court will treat 

the guidelines sentence as just one of a number of sentencing factors), and United States v. Myers, 353 F. 

Supp. 2d 1026, 1028 (S. D. Iowa 2005) (announcing that the court will treat the guidelines sentence as one 

of the sentencing factors because treating the guidelines range as presumptively reasonable makes the 

guidelines mandatory). 
18

Booker sentencing must begin with calculation of the applicable guideline range.137 

District courts also differed over the proper evidentiary standard to be applied for 

factfinding at sentencing.138 For example, some district courts began to consider only 

facts proved beyond a reasonable doubt at sentencing, reasoning that Booker required this 

elevated standard. Others continued to apply the preponderance standard generally 

accepted before Booker. Some courts no longer considered acquitted conduct and others 

continued to apply the standards for acquitted conduct that existed before Booker.

139 

Debate also arose regarding whether a district court’s disagreement with policy 

decisions made by Congress could form the basis for imposition of a below-range 

sentence. Conflicting opinions quickly developed in the areas of crack cocaine140 and 

fast track immigration cases,141 which will be explored in further detail in later chapters. 

 

137 See infra n. 147. 138 See United States v. Kwame Okai, No. 05-19, 2005 WL 2042301 (D. Neb. Aug. 22, 2005) (requiring 

proof beyond a reasonable doubt); United States v. Malouf, 377 F. Supp. 2d 315 (D. Mass. 2005) (same); 

United States v. Gray, 362 F. Supp. 2d 714 (S.D.W.Va 2005) (same).

139 See United States v. Pimental, 367 F. Supp. 2d 143 (D. Mass. 2005) (If acquitted conduct could be 

considered at sentencing, burden of proof would be proof beyond a reasonable doubt); United States v. 

Coleman, 370 F. Supp. 2d 661 (S.D. Ohio 2005) (same); United States v. Baldwin, 389 F. Supp. 2d (D.D.C. 

2005) (same). Cf. United States v. Agostini, 365 F. Supp. 2d 530 (S.D.N.Y. 2005) (“The Supreme Court's 

decision in Booker did not alter the court's ability to enhance a defendant's sentence on the basis of 

acquitted conduct.”). 

140 United States v. Smith, 359 F. Supp. 2d 771 (E.D. Wis. 2005) (deviating from the Guidelines to account 

for the harsh sentence produced under the Guidelines for crack cocaine; instead of a 100:1 crack:powder 

ratio, using the 20:1 crack:powder ratio recommended by the Commission in a report to Congress); Simon 

v. United States, 361 F. Supp. 2d 35 (E.D.N.Y 2005) (deviating from the sentencing range of 324 to 405 

months and imposing a sentence of 262 months because the guidelines range substantially overstates the 

seriousness of the offense which involved crack cocaine; following the guidelines in sentencing the 

defendant would create unjust sentencing disparities and more deterrence than necessary to protect the 

public; the 20:1 crack:powder ratio of crack to powder cocaine recommended by the Commission in a 

report to Congress would avoid disparity with the sentence imposed on the co-defendant who engaged in 

the same criminal conduct); United States v. Fisher, No. S3-03-CR-1501-SAS, 2005 WL 2542916 

(S.D.N.Y. Oct. 11, 2005) (after an extensive analysis of the crack/powder cocaine sentencing guidelines, 

using a 10:1 ratio instead of a 100:1 crack:powder ratio to punish the defendant because that ratio is 

sufficient to punish crack cocaine dealers more harshly than those who deal in powder cocaine and because 

a sentence based largely on the crack cocaine/powder cocaine disparity is greater than necessary to satisfy 

the purposes of sentencing). Cf. United States v. Tabor, 365 F. Supp. 2d 1052 (D. Neb. 2005) (although 

critical of the crack cocaine/powder cocaine sentencing disparity, the court rejects the idea that a judge 

should exercise his discretion under Booker to deviate from the guidelines in a case involving crack 

cocaine; deviating from the guidelines would contradict clear legislative intent to punish crack dealers more 

harshly); United States v. John Doe, No. 02-0406, 2006 WL 177396 (D.D.C. Jan. 26, 2006) (it is not up to 

federal judges to reject as bad policy a legislative determination made by Congress;, in circumstances 

where no other 18 U.S.C. § 3553 factors support mitigation in sentencing, judges cannot conclude that a 

guidelines sentence for crack (which reflects the 100:1 crack:powder ratio) creates an “unwarranted 

sentence disparit[y]” solely because an offender who possessed the same amount of powder cocaine would 

get a much lower sentence”). 

141 United States v. Galvez-Barrios, 355 F. Supp. 2d 958 (E.D. Wis. 2005) (holding because fast-track 

programs in border districts for illegal reentry offenses are creating serious sentencing disparities, it may be 

appropriate in some cases for a sentencing court to exercise its discretion under Booker to minimize the 

sentencing disparity that fast-track programs create); United States v. Ramirez-Ramirez, 365 F. Supp. 2d 

728 (E.D. Va. 2005) (sentencing below the guidelines in an illegal reentry case where the defendant’s 

sentence was enhanced based on a crime of violence, after considering the 18 U.S.C. § 3553(a) factors, in 
19

Although some district courts concluded that disagreement with policy decisions could 

justify below-range sentences, no appellate court has sustained that conclusion.142 

Some of the issues that arose after Booker have been resolved at the circuit court 

level, while still others remain to be answered as cases wind their way through the 

appellate process. Chapter 2 of this report discusses the developing appellate 

jurisprudence in further detail and will identify the areas of concern that remain 

unresolved. 

 large part, based on the absence of a fast-track program in the district). Cf. United States v. Perez-Chavez, 

No. 05-CR-00003PGC, 2005 U.S. Dist. Lexis 9252 (D. Utah May 16, 2005) (explaining why it is 

inappropriate to deviate from the guidelines range based on the absence of a fast-track program; the issue is 

foreclosed by a pre-Booker decision in which the Tenth Circuit determined that the absence of a fast-track 

program is not a basis for a downward departure; Congress approved the disparity created by fast-track 

programs when it enacted the PROTECT Act; judicially created fast-track programs encroached on the 

Executive Branch’s responsibility to enforce the nation’s criminal laws). 

142 See generally Chapter 2. 
20

Chapter 2 

POST-BOOKER APPELLATE JURISPRUDENCE 

A. INTRODUCTION

The Supreme Court instructed in Booker that “[t]he district courts, while not 

bound to apply the Guidelines, must consult those guidelines and take them into account 

when sentencing.”143 This chapter will discuss cases interpreting that directive. 

Moreover, upon excising the de novo standard of review in 18 U.S.C. § 3742(e), the 

Court directed courts of appeal to “review sentencing decisions for unreasonableness.”144

Chapters 4 through 6 will examine the impact of Booker as evidenced by 

sentencing information received from the district courts. In many instances, however, 

sentencing decisions do not end at the district court level. Both the government and the 

defendant have a limited right of appellate review.145 Consequently, no discussion about 

the impact of Booker on the federal sentencing system would be complete without 

examining the post-Booker appellate court decisions interpreting and applying Booker. 

 This chapter is intended to explore the developing appellate court jurisprudence 

discussing reasonableness. It also highlights select decisions relevant to the consideration 

of Booker’s overall impact on the federal sentencing system. 

B. APPLICATION AND INTERPRETATION OF THE GUIDELINES

Sentencing after Booker, like sentencing under the mandatory guideline regime, 

begins with consideration of the sentencing guidelines. For example, the Fourth Circuit 

has stated: “In any given case after Booker, a district court will calculate, consult, and 

take into account the exact same guideline range that it would have applied under the 

pre-Booker mandatory guidelines regime.”146 Thus, the “guideline range remains the 

starting point for the sentencing decision. And, if the district court decides to impose a 

sentence outside that range, it should explain its reasons for doing so.”147 Indeed, courts 

 

143 Booker, 543 U.S. at 264. 144 Id. 145 See 18 U.S.C. § 3742(a) & (b) (2005). 146 United States v. White, 405 F.3d 208, 219 (4th Cir. 2005), citing (Booker, 543 U.S. at 264); United States 

v. Hughes II, 401 F.3d 540, 546 (4th Cir. 2005). 147 White, 405 F.3d at 219 (internal citations omitted). See also United States v. Vaughn, 430 F.3d 518 (2d 

Cir. 2005) (“District courts remain statutorily obliged to calculate guidelines ranges in the same manner as 

before Booker and to find facts relevant to sentencing by a preponderance of the evidence”); United States 

v. Mares, 402 F.3d 511 (5th Cir. 2005) (stating that ordinarily, the sentencing judge must determine the 

applicable guidelines range in the same manner as before Booker; this process includes finding all facts 

relevant to sentencing using a preponderance of the evidence standard); United States v. Stone, 432 F.3d 

651 (6th Cir. 2005) (“District courts . . . must, therefore, calculate the guideline range as they would have 

done prior to Booker); United States v. Rodriguez-Alvarez, 425 F.3d 1041 (7th Cir. 2005) (“Sentencing 

courts must continue to calculate the applicable guidelines range even though the guidelines are now 

advisory.”); United States v. Pizano, 403 F.3d 991 (8th Cir. 2005) (stating that although the Guidelines are 
21

have opined that “while [] the appropriate circumstances for imposing a sentence outside 

the guideline range will depend on the facts of individual cases, we have no reason to 

doubt that most sentences will continue to fall within the applicable guideline range.”148

In Booker, the Supreme Court adopted a remedy to the Sixth Amendment 

violation that “maintains a strong connection between the sentence imposed and the 

offender's real conduct―a connection important to the increased uniformity of 

sentencing that Congress intended its Guidelines system to achieve.”149 Thus, Booker

reaffirmed the role of relevant conduct150 in the advisory guideline scheme. 

Consequently, relevant conduct considerations continue to play an integral part of postBooker sentencing.151

Calculation of the guideline range continues to include factfinding by the court to 

resolve disputed issues. Although defendants have argued that the sentencing judge is 

now prohibited from resolving disputed facts during sentencing, those courts considering 

the issue have rejected this argument. These courts reason that Booker does not prohibit 

 no longer mandatory, a sentencing court must still begin its analysis by considering them); United States v. 

Cantrell, 433 F.3d 1269 (9th Cir. 2006) (holding that although district courts are not bound to sentence 

within the applicable Guidelines ranges, district courts still must consult the Guidelines and take them into 

account when sentencing); United States v. Medrano, No. 05-2057, 2006 WL 165017 (10th Cir. Jan. 24, 

2006) (unpub.) (holding that although the guideline range is now advisory, the process of determining the 

correct guideline range is the same); United States v. Talley, 431 F.3d 784 (11th Cir. 2005) (noting that 

sentencing involves two steps—first calculate the guideline range then consider the 18 U.S.C. § 3553(a) 

factors to determine a reasonable sentence).

148 United States v. White, 405 F.3d at 218. See also United States v. Mykytiuk, 415 F.3d 606, 607 (7th Cir. 

2005) (“When the Supreme Court directed the federal courts to continue using the Guidelines as a source of 

advice for proper sentences, it expected that many (perhaps most) sentences would continue to reflect the 

results obtained through an application of the Guidelines”). This echoes sentiments expressed by many 

witnesses at the Commission’s public hearing in February, 2005. See generally Appendix C. 

149 Booker, 543 U.S. at 246. 150 See Guidelines Manual, §1B1.3 (2005), which provides that the defendant’s offense level shall be 

determined on the basis of the following: (1)(A) all acts and omissions committed, aided, abetted, 

counseled, commanded, induced, procured, or willfully caused by the defendant; and (B) in the case of a 

jointly undertaken criminal activity (a criminal plan, scheme, endeavor, or enterprise undertaken by the 

defendant in concert with others, whether or not charged as a conspiracy), all reasonably foreseeable acts 

and omissions of others in furtherance of the jointly undertaken criminal activity, that occurred during the 

commission of the offense of conviction, in preparation for that offense, or in the course of attempting to 

avoid detection or responsibility for that offense; (2) solely with respect to offenses of a character for which 

USSG §3D1.2(d) would require grouping of multiple counts, all acts and omissions described in 

subdivisions (1)(A) and (1)(B) above that were part of the same course of conduct or common scheme or 

plan as the offense of conviction; (3) all harm that resulted from the acts and omissions specified in 

subsections (a)(1) and (a)(2) above, and all harm that was the object of such acts and omissions; and (4) 

any other information specified in the applicable guideline. 151 See United States v. Killgo, 397 F.3d 628, 631, n.5 (8th Cir. 2005) (“Relevant conduct also relates to the 

‘history and characteristics of the defendant,’ § 3553(a)(1), as well as the need to ‘protect the public from 

further crimes of the defendant,’ § 3553(a)(2)(C). Using relevant conduct in sentencing a defendant also 

aids in the ‘need to avoid unwarranted sentence disparities.’ 18 U.S.C. § 3553(a)(6)”); United States v. 

Speelman, 431 F.3d 1226 (9th Cir. 2005) (stating that the district court may apply a cross reference based on 

relevant conduct alleged on charges dismissed pursuant to a plea agreement). 
22

any and all judicial factfinding.152 Instead, the circuits have held that Booker proscribes 

only judicial factfinding that increases a sentence beyond the maximum authorized by the 

jury verdict or supported by the defendant’s admissions. Likewise, arguments that the 

burden of proof for judicial factfinding is now beyond a reasonable doubt have proved 

unavailing. Most circuits have held that the district court may resolve factual disputes 

using a preponderance of the evidence burden of proof.153 This same burden of proof 

generally was applied to factual determinations in the pre-Booker mandatory guidelines 

era.154 

 

 Furthermore, since Booker, the appellate courts have held that sentencing courts 

may still consider reliable hearsay in fashioning a sentence in the advisory guidelines 

scheme.155 Circuit courts also have held that the district judge can still consider 

acquitted conduct in determining the guideline range, as long as the consideration of 

acquitted conduct does not increase the sentence above the statutory maximum 

 

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

2006); United States v. McKinney, 406 F.3d 744 (5th Cir. 2005); United States v. Coffee, 434 F.3d 887 (6th

Cir. 2006); United States v. Manning, No. 05-1406, 2005 WL 3557446 (8th Cir. Dec. 30, 2005) (unpub.); 

United States v. Haack, 403 F.3d 997 (8th Cir. 2005); United States v. Fifield, 432 F.3d 1056 (9th Cir. 

2005); United States v. Stephenson, 159 F.App’x 50 (10th Cir. 2005); United States v. Smith, No. 05-3252, 

2005 WL 3485985 (10th Cir. Dec. 21, 2005) (unpub.). 153 United States v. Garcia, 413 F.3d 201 (2d Cir. 2005); United States v. Vaughn, 430 F.3d 518 (2d Cir. 

2005); United States v. Ledesma, No. 05-1563, 2005 WL 3477715 (3d Cir. Dec. 20, 2005) (unpub.); 

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

2006); United States v. Tynes, No. 05-13035, 2005 WL 3536189 (11th Cir. Dec. 28, 2005) (unpub). 154 Prior to Booker, the courts of appeal have held that a preponderance of the evidence was sufficient for 

most factfinding under the sentencing guidelines. See, e.g., United States v. Morgan, 384 F.3d 1, 5 (1st Cir. 

2004); United States v. Leung, 360 F.3d 62, 67 (2d Cir. 2004); United States v. Mack, 229 F.3d 226, 233 

(3d Cir. 2000); United States v. Hill, 322 F.3d 301, 307 (4th Cir. 2003); United States v. Bieganowski, 313 

F.3d 264, 294 (5th Cir. 2002); United States v. Helton, 349 F.3d 295, 299 (6th Cir. 2003); United States v. 

Peterson, 256 F.3d 612, 615 (7th Cir. 2001); United States v. Flores, 362 F.3d 1030, 1037 (8th Cir. 2004); 

United States v. Gonzales, 307 F.3d 906, 909 (9th Cir. 2002); United States v. Keifer, 198 F.3d 798, 800 

(10th Cir. 1999); United States v. Polar, 369 F.3d 1248, 1255 (11th Cir. 2004). But see United States v. 

Kikumura, 918 F.2d 1084, 1101 (3d Cir. 1990) (holding that where “the magnitude of a contemplated 

departure is sufficiently great that the sentencing hearing can fairly be characterized as ‘a tail which wags 

the dog of the substantive offense,’” “the factfinding underlying that departure must be established at least 

by clear and convincing evidence”); United States v. Jordan, 256 F.3d 922 (9th Cir. 2001) (holding when a 

sentencing factor has extremely disproportionate effect on the sentence relative to offense of conviction, 

due process requires that government prove the facts underlying the enhancement by clear and convincing 

evidence). 

155 United States v. Baker, 432 F.3d 1189 (11th Cir. 2005) (holding Booker did not change the rule that a 

sentencing court may base sentencing determinations on reliable hearsay). See also United States v. 

Katzopoulos, 437 F.3d 569 (6th Cir. 2006) (the defendant’s Sixth Amendment rights were not violated by 

the admission of hearsay at sentencing); United States v. Luciano, 414 F.3d 174 (1st Cir. 2005) (Sixth 

Amendment confrontation rights were not violated by the admission of hearsay at sentencing); United 

States v. Martinez, 413 F.3d 239 (2d Cir. 2005) (post-Booker, the Sixth Amendment rights of confrontation 

do not bar judicial consideration of hearsay at sentencing proceedings); United States v. Brown, 430 F.3d 

942 (8th Cir. 2005) ("We see nothing in Booker that would require the court to determine the sentence in 

any manner other than the way the sentence would have been determined pre-Booker"). 
23

sentence.156 These courts rely in part upon the Supreme Court’s decision in Watts157 and 

18 U.S.C. § 3661 to support this conclusion. 

 

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

Once the court has correctly calculated the applicable guideline range, the court 

must then consider the policy statements issued by the Commission in determining 

guideline departure factors that may be applicable under the guidelines. After 

considering guideline departure factors under the Commission’s policy statements, the 

courts must then consider the factors set forth in 18 U.S.C. § 3553(a) before imposing the 

sentence.158 Section 3553(a) states that a “court shall impose a sentence sufficient but not 

greater than necessary to comply with the purposes set forth” herein. Those factors 

are ― 

(1) the nature and circumstances of the offense and the history and characteristics 

of the defendant; 

 (2) the need for the sentence imposed-- 

 (A) to reflect the seriousness of the offense, to promote respect for the 

law, and to provide just punishment for the offense; 

 (B) to afford adequate deterrence to criminal conduct; 

 (C) to protect the public from further crimes of the defendant; and 

 (D) to provide the defendant with needed educational or vocational 

training, medical care, or other correctional treatment in the most effective 

manner; 

 (3) the kinds of sentences available; 

 (4) the kinds of sentence and the sentencing range established 

for―

 (A) the applicable category of offense committed by the applicable 

category of defendant as set forth in the guidelines issued by the Sentencing 

Commission pursuant to section 994(a)(1) of title 28, United States Code, and 

that are in effect on the date the defendant is sentenced; or 

 (B) in the case of a violation of probation or supervised release, the 

applicable guidelines or policy statements issued by the Sentencing Commission 

pursuant to section 994(a)(3) of title 28, United States Code; 

(5) any pertinent policy statement issued by the Sentencing Commission pursuant 

to 28 U.S.C. § 994(a)(2) that is in effect on the date the defendant is sentenced; 

 (6) the need to avoid unwarranted sentence disparities among defendants with 

similar records who have been found guilty of similar conduct; and 

 (7) the need to provide restitution to any victims of the offense.159 

 

156 United States v. Vaughn, 430 F.3d 518 (2d Cir. 2005); United States v. Ashworth, 139 F. App’x 525 (4th 

Cir. 2005); United States v. Price, 418 F.3d 771 (7th Cir. 2005); United States v. Lynch, 437 F.3d 902 (9th

Cir. 2006) (en banc); United States v. Magallanez, 408 F.3d 672 (10th Cir. 2005); United States v. Duncan, 

400 F.3d 1297 (11th Cir.), cert. denied, 126 S. Ct. 432 (2005). 157 See supra, n. 71. 158 See Hughes II, 401 F.3d at 546; Stone, 432 F.3d at 655; Talley, 431 F.3d at 786. 

159 18 U.S.C. § 3553(a)(1)-(7). 
24

The sentencing court need not categorically recite each of the 18 U.S.C. § 3553(a) 

factors on the record when it imposes a sentence.160 Nevertheless, the record on appeal 

must include sufficient evidence to demonstrate affirmatively the court's consideration of 

these factors. The circuit courts are more likely to find “procedural unreasonableness in 

the court's sentencing determination,” if a district court hides its reasoning or requires the 

appellate court “to ponder and speculate” what the reasons for the sentence might have 

been.161 Consequently, the sentencing court’s consideration of the 18 U.S.C. § 3553(a) 

factors has become an essential part of the imposition of sentence.162

D. REASONABLENESS REVIEW

 Review of a sentence in the advisory system created by Booker begins with an 

examination of the guideline calculation. Indeed, the appellate courts have concluded 

that a sentence based on an error of law, including improper guideline calculation, is 

unreasonable. As a result, the appellate courts first determine whether the sentencing 

judge correctly calculated the guideline range. If the sentencing judge erred in 

calculating the guideline range, the appellate courts do not reach the question of whether 

the sentence is reasonable in light of all statutory factors. 163 

 

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

2006); United States v. Scott, 426 F.3d 1324 (11th Cir. 2005) (“nothing in Booker or elsewhere requires the 

district court to state on the record that it has explicitly considered each of the § 3553(a) factors or to 

discuss each of the § 3553(a) factors”), but see United States v. Cunningham, 429 F.3d 673, 679 (7th Cir. 

2005) (“A rote statement that the judge considered all relevant factors will not always suffice; the 

temptation to a busy judge to impose the guidelines sentence and be done with it, without wading into the 

vague and prolix statutory factors, cannot be ignored”). 

161 McBride, 434 F.3d at 476, n.3. See also United States v. Lenover, 157 F. App’x 917 (7th Cir. 2005) 

(stating that the court cannot review the appellant’s sentence for reasonableness because the “absence of an 

explanation leaves us in the dark as to the district judge’s reasons for rejecting the proffered § 3553 factors 

and requires that the case be remanded to the district court”); United States v. Oduardo, No. 05-10921, 

2006 WL 231645 (11th Cir. Feb. 11, 2006) (unpub.) (holding that to fashion a reasonable sentence, a 

sentencing judge must be guided by the 18 U.S.C. § 3553(a) factors; the judge need not establish the 

reasonableness of a sentence by explicitly considering every factor, but he must indicate in some way that 

he adequately and properly considered appropriate factors in imposing a within- range sentence). 162 United States v. Till, 434 F.3d 880 (6th Cir. 2006). 163 See, e.g., United States v. Cantrell, 433 F.3d 1269 (9th Cir. 2006) (explaining that a reasonableness 

review includes two steps: (1) first determining whether the sentencing court correctly calculated the 

Guideline range, and (2) and then determining reasonableness; but, the court will review for reasonableness 

only if the district court correctly calculated the Guidelines range—otherwise, the court will remand for 

resentencing from the recommended sentencing range under the Guidelines.”); United States v. Williams, 

435 F.3d 1350 (11th Cir. 2006) (holding that the first step in imposing a reasonable sentence is to correctly 

calculate the Guidelines range); United States v. Price, 409 F.3d 436 (D.C. Cir. 2005) (stating that a 

sentence is unreasonable, regardless of length, if it resulted from legal errors, which include improper 

guideline calculations); United States v. Kristl, 437 F.3d 1050 (10th Cir. 2006).
25

 The circuit courts have not changed the way they review challenges to the district 

court’s application and interpretation of the sentencing guidelines. The courts still review 

a district court’s factual findings for clear error and the district court’s conclusions of law 

de novo.

164 The courts applied the same type of review to factual findings and 

conclusions of law before Booker.

165 

 As stated previously, the Booker remedial opinion excised the de novo standard of 

appellate review under 18 U.S.C. § 3742 and replaced it with a reasonableness review. 

The reasonableness standard is necessarily deferential to the district court because 

“‘reasonableness’ is inherently a concept of flexible meaning, generally lacking precise 

boundaries.”166 One court has made clear that “[a]lthough this standard clearly requires 

us to afford a degree of deference to the sentencing decisions of the district court, 

‘reasonableness’ is not a code-word for ‘rubber stamp.’”167 To enable the court of 

 

164 United States v. Robinson, 433 F.3d 31 (1st Cir. 2005) (observing that despite Booker’s reasonableness 

standard, the court continues to review the district court’s interpretations of the legal meaning of the 

sentencing guidelines de novo and its factual findings for clear error); United States v. Powell, 404 F.3d 

678 (2d Cir. 2005) (stating that the question of what constitutes a separate conviction is a question of law 

reviewed de novo); United States v. Savage, No. 04-5127, 2006 WL 10893 (4th Cir. Jan. 3, 2006) (unpub.) 

(stating the court reviews the district court’s application of the sentencing guidelines de novo); United 

States v. Amaya-Portillo, 423 F.3d 427 (4th Cir. 2005) (holding that the court of appeals reviews “the 

district court’s imposition of the sentence enhancement de novo because it entails the interpretation of a 

statute”); United States v. Villegas, 404 F.3d 355 (5th Cir. 2005) (holding that the de novo standard of 

review still applies to determining whether the district court correctly interpreted and applied the 

sentencing guidelines); United States v. Hazelwood, 398 F.3d 792 (6th Cir. 2005) (the court reviews the 

district court’s factual findings for clear error and the district court’s conclusions of law de novo); United 

States v. Arnaout, 431 F.3d 994 (7th Cir. 2005) (“[W]e continue to review the district court’s factual 

findings at sentencing for clear error and the application of those facts to the Sentencing Guidelines de 

novo”); United States v. Mashek, 406 F.3d 1012 (8th Cir. 2005) (stating that “the most appropriate standard 

for reviewing a district court's interpretation and application of the guidelines is the de novo standard”); 

United States v. Mathijssen, 406 F.3d 496 (8th Cir. 2005) (stating that the court continues to review the 

interpretation and application of the guidelines provisions de novo); United States v. Speelman, 431 F.3d 

1226 (9th Cir. 2005) (the court reviews the application of the guidelines de novo); United States v. 

Kimbrew, 406 F.3d 1149, 1151 (9th Cir. 2005) (holding that after Booker, the court of appeals continues to 

review the district court’s interpretation of the sentencing guidelines de novo, the court’s application of the 

guidelines to the facts of a case for an abuse of discretion, and the court’s factual findings for clear error); 

United States v. Souser, 405 F.3d 1162 (10th Cir. 2005) (the court reviews district court’s interpretation of 

the guidelines de novo); United States v. Scott, No. 05-13132, 2005 WL 3501863 (11th Cir. Dec. 23, 2005) 

(unpub.) (explaining that because Booker did not alter the court’s review of the application of the 

sentencing guidelines, the court of appeals reviews the district court’s application of the sentencing 

guidelines de novo); United States v. Crawford, 407 F.3d 1174 (11th Cir. 2005) (noting whether a factor is a 

permissible ground for a downward departure is a question of law subject to de novo review). 165 See, e.g., United States v. Alegria, 192 F.3d 179, 191 (1st Cir. 1999); United States v. Vasquez, 389 F.3d 

65, 74 (2d Cir. 2004); United States v. Cothran, 286 F.3d 173, 177 (3d Cir. 2002); United States v. 

Montgomery, 262 F.3d 233, 248 (4th Cir. 2001); United States v. Miles, 360 F.3d 472, 481 (5th Cir. 2004); 

United States v. Sandlin, 291 F.3d 875, 880 (6th Cir. 2002); United States v. Mabrook, 301 F.3d 503, 510 

(7th Cir. 2002); United States v. Dabney, 367 F.3d 1040, 1043 (8th Cir. 2004); United States v. Castillo, 181 

F.3d 1129, 1135 (9th Cir. 1999); United States v. Bolden, 23 Fed.App’x. 900, 904 (10th Cir. 2001); United 

States v. Cook, 181 F.3d 1232 (11th Cir. 1999). 166 United States v. Dominguez-Hernandez, No. 05-1870-CR, 2005 WL 3528883 (2d Cir. Dec. 21, 2005) 

(unpub.); see also United States v. Pizano, 403 F.3d 991 (8th Cir. 2005) (noting that in reviewing 

reasonableness, the court asks whether the district court abused its discretion). 167 United States v. Moreland, 437 F.3d 424 (4th Cir. 2006). 
26

appeals to review a sentence for reasonableness, the district court must articulate 

carefully its reasons for the sentence imposed. “These reasons should be fact specific and 

include, for example, aggravating or mitigating circumstances relating to personal 

characteristics of the defendant, his offense conduct, his criminal history, relevant 

conduct or other facts specific to the case at hand which led the court to conclude that the 

sentence imposed was fair and reasonable.”168 “The determination of reasonableness 

depends not only on an evaluation of the actual sentence imposed but also the method 

employed in determining it.”169 The court of appeals must consider not only the length of 

the sentence, but also the factors evaluated and the procedures employed by the district 

court in imposing the sentence. A sentence is unreasonable if the district judge fails to 

consider the sentencing guidelines or neglects to consider the 18 U.S.C. § 3553(a) 

factors, and instead simply selects what he believes is an appropriate sentence.170 

Moreover, “the farther the judge’s sentence departs from the guidelines sentence (in 

either direction . . .), the more compelling the justification based on factors in section 

3553(a) that the judge must offer.”171

Although Booker instructed appellate courts to review a sentence to determine if it 

is unreasonable, the circuits have uniformly referred to such reviews as reasonableness 

reviews. Six circuits ― the Fourth, Fifth, Sixth, Seventh, Eighth, and Tenth ― have held 

that a sentence within the applicable guideline range is presumptively reasonable.172 

These circuits reasoned that a per se or conclusively reasonable test would be 

“inconsistent with the Supreme Court's decision in Booker, as such a standard ‘would 

effectively re-institute mandatory adherence to the Guidelines.’”173 Exhibit 1 shows the 

leading appellate decisions for each circuit discussing reasonableness or the weight of the 

sentencing guidelines. 

 

168 United States v. Hardin, 437 F.3d 463 (5th Cir. 2006). 

169 United States v. Hughes, 401 F.3d 540 (4th Cir. 2005). 170 United States v. Webb, 403 F.3d 373 (6th Cir. 2005). 171 United States v. Dean, 414 F.3d 725 (7th Cir. 2005); see also United States v. Moreland, 437 F.3d 424 

(4th Cir. 2006) (stating that the farther the court diverges from the advisory guideline range, the more 

compelling the reasons for the divergence must be); United States v. McMannus, 436 F.3d 871 (8th Cir. 

2006) (“[T]he farther the district court varies from the presumptively reasonable guidelines range, the more 

compelling the justification based on the § 3553(a) factors must be.”). 172 United States v. Green, 436 F.3d 449 (4th Cir. 2006); United States v. Alonzo, 435 F.3d 551 (5th Cir. 

2006); United States v. Williams, 436 F.3d 706 (6th Cir. 2006); United States v. Mykytiuk, 415 F.3d at 607; 

United States v. Tobacco, 428 F.3d 1148 (8th Cir. 2005); United States v. Kristl, 437 F.3d 1050 (10th Cir. 

2006). 

173 United States v. Webb, 403 F.3d 373, 385 n.9 (6th Cir. 2005) citing United States v. Crosby, 397 F.3d 

103, 115 (2d Cir. 2005). See also United States v. Alonzo, 435 F.3d 551 (5th Cir. 2006); United States v. 

Cunningham, 429 F.3d 673 (7th Cir. 2005); Mykytiuk, 415 F.3d at 607;Talley, 431 F.3d at 786..
27

Exhibit 1 

Leading Appellate Case in Each Circuit 

Discussing Reasonableness or Weight of the Sentencing Guidelines 

Circuit Leading Case Determination 

 

First United States v. Jiminez-Beltre, 

No. 05-1268, 2006 WL 562154 

(1st Cir. Mar. 9, 2006) (en banc). 

“[T]he guidelines cannot be called just ‘another factor’ in 

the statutory list because they are the only integration of 

multiple factors.” 

Second United States v. Crosby, 397 F.3d 

103 (2d Cir. 2005). 

“[W]e decline to fashion any per se rules as to the 

reasonableness of every sentence within an applicable 

guideline or the unreasonableness of every sentence outside 

an applicable guideline.” 

Third United States v. Cooper, 437 F.3d 

324 (3d Cir. 2006). 

“[A]ppellants have the burden of demonstrating 

unreasonableness. A sentence that falls within the 

guidelines range is more likely to be reasonable than one 

outside the guidelines range.” 

Fourth United States v. Green, 436 F.3d 

449 (4th Cir. 2006). 

Guideline sentence is presumptively reasonable. 

Fifth United States v. Alonzo, 435 F.3d 

551 (5th Cir. 2006). 

Guideline sentence is presumptively reasonable. 

Sixth United States v. Williams, 

436 F.3d 706 (6th Cir. 2006). 

Guideline sentence is presumptively reasonable. 

Seventh United States v. Mykytiuk, 415 

F.3d 606 (7th Cir. 2005). 

Guideline sentence is presumptively reasonable. 

Eighth United States v. Lincoln, 413 F.3d 

716 (8th Cir. 2005). 

Guideline sentence is presumptively reasonable. 

 

Ninth United States v. Cantrell 433 F.3d 

1269 (9th Cir. 2006). 

“[W]e are stressing that district courts still ‘must consult 

[the] [g]uidelines and take them into account when 

sentencing,’ even thought they now have the discretion to 

impose non-[g]uidelines sentences.” 

Tenth United States v. Kristl, 437 F.3d 

1050 (10th Cir. 2005). 

Guideline sentence is presumptively reasonable. 

Eleventh United States v. Talley, 431 F.3d 

784 (11th Cir. 2005). 

“When the district court imposes a sentence within the 

advisory Guidelines range, we ordinarily will expect that 

choice to be a reasonable one.” See also United States v. 

Lisbon, No. 05-12637, 2006 WL 306343 (11th Cir. Feb. 10, 

2006) (unpub.) (“A sentence within the guideline range is 

not presumptively reasonable.”). 

 

DC - - - None as of the date of the report. 
28

The Seventh Circuit, for example, explained the reasoning underlying its adoption 

of a presumption of reasonableness for sentences within the guideline range. “The 

Sentencing Guidelines represent at this point eighteen years' worth of careful 

consideration of the proper sentence for federal offenses.”174 “[W]hile a per se or 

conclusively presumed reasonableness test would undo the Supreme Court's merits 

analysis in Booker, a clean slate that ignores the proper Guidelines range would be 

inconsistent with the remedial opinion.”175 Because “[t]he Guidelines remain an essential 

tool in creating a fair and uniform sentencing regime across the country... [t]he best way 

to express the new balance, in our view, is to acknowledge that any sentence that is 

properly calculated under the Guidelines is entitled to a rebuttable presumption of 

reasonableness.”176 “The defendant can rebut this presumption only by demonstrating 

that his or her sentence is unreasonable when measured against the factors set forth in § 

3553(a).”177 Two other circuits ― the Eighth and the Eleventh ― have stated that the 

guidelines were fashioned taking the other § 3553(a) factors into account.178

A recent opinion from the Sixth Circuit explained, however, that the presumption 

of reasonableness “does not mean that a sentence outside of the Guidelines – either 

higher or lower – is presumptively un reasonable.”179 Nor does it mean that a guidelines 

sentence is reasonable in the absence of evidence that “the district court followed its 

statutory mandate to ‘impose a sentence sufficient, but not greater than necessary’ to 

comply with the purposes of sentencing in section 3553(a)(2).”180 In comparison, the 

Second Circuit has stated that a sentence is not reasonable merely because it falls within 

the applicable guideline range and that it is not unreasonable just because it falls outside 

the applicable guideline range.181 While the circuit courts continue to consider the 

reasonableness standard, the Commission has identified only one reported cases in which 

a guideline sentence was held to be unreasonable.182

 The following are illustrative examples of sentences above and below the 

guideline range that the circuit courts have found to be reasonable. In United States v. 

Adams,

183 the Eighth Circuit upheld a sentence of 327 months, based upon an upward 

departure from a guideline range of 188 to 235 months. Although recognizing that the 

sentence was lengthy, the district court indicated that the lengthy sentence was necessary 

 

174 Mykytiuk, 415 F.3d at 607. 175 Id. 176 Id. at 608. 177 Id. 178 See United States v. Claiborne, No. 05-2198, 2006 WL 452899 (8th Cir. Feb. 27, 2006) (“The Guidelines 

were fashioned taking the other § 3553(a) factors into account and are the product of years of careful 

study.”); United States v. Shelton, 400 F.3d 1325 (11th Cir. 2005) (“Indeed, the factors the Sentencing 

Commission were required to use in developing the Guidelines are a virtual mirror image of the factors 

sentencing courts are required to consider under Booker and § 3553(a).”). 

179 United States v. Foreman, 436 F.3d 638 (6th Cir. 2006). 180 Id. 181 Crosby, 397 F.3d at 115. 182 United States v. Lazenby, No. 05-2216 (8th Cir. Mar. 10, 2006), available at 

http://www.ca8.uscourts.gov.

183 401 F.3d 886 (8th Cir.), cert. denied, 126 S. Ct. 492 (2005). . 
29

to ensure the community would be safe from the defendant’s behavior. In United States 

v. Menyweather,

184 the Ninth Circuit upheld as reasonable a probationary sentence with 

the condition that the defendant pay restitution and spend 40 days in jail. This sentence 

represented an 8-level reduction below the applicable guideline range. When imposing 

the sentence, the district court relied on the defendant’s evidence that she suffered from 

post-traumatic stress disorder and that she was the sole support for her minor child.185 

The following are illustrative examples of sentences above and below the 

guideline range that the circuit courts have found to be unreasonable. In United States v. 

McMannus,

186 the Eighth Circuit vacated a sentence that was 54 percent less than the 

sentencing guideline range. The district court deviated from the sentencing guidelines 

because of the defendant’s criminal history. The Eighth Circuit concluded that this basis 

did not justify a variance of that magnitude. The Seventh Circuit found a sentence of 

more than double the high end of the guideline range to be unreasonable in United States 

v. Castro-Juarez.

187 The district judge acknowledged the need to consider the 18 U.S.C. 

§ 3553(a) factors but failed to single out any factor except the defendant’s criminal 

history to support the non-guideline sentence. In United States v. Clark,

188 the Fourth 

Circuit explained that while considering state sentencing practices is not per se 

unreasonable, deviating from the sentencing guidelines simply because a defendant 

would have received a different sentence in state court, without considering the need to 

avoid unwarranted sentence disparities among federal defendants with similar records 

who have been found guilty of similar conduct, is unreasonable. The Eighth Circuit has 

reversed several downward departures resulting from substantial assistance motions filed 

by the government, concluding that the extent of the departures was unreasonable.189 

Exhibit 2 shows selected appellate decisions addressing reasonableness. 

 

184 431 F.3d 692 (9th Cir. 2005). 185 Judge Kleinfeld authored a vigorous dissent arguing that reasonableness still requires review and that 

the appellate court may not properly defer to an unreasonable sentencing decision. He opined that the 

grounds justifying the below-range sentence were insufficient even in the post-Booker advisory era. Id. at 

702. 

186 436 F.3d 871(8th Cir. 2006). 187 425 F.3d 430 (7th Cir. 2005). 188 434 F.3d 684 (4th Cir. 2006). 

189 See, e.g., United States v. Coyle, 429 F.3d 1192 (8th Cir. 2005) (concluding that a 73% reduction was 

unreasonably large given the extent of the defendant’s cooperation); United States v. Saenz, 428 F.3d 1159 

(8th Cir. 2005) (holding that a 50% reduction in sentence is an extraordinary reduction and the district court 

was wrong to conclude that a defendant who cooperates truthfully and timely always warrants a 50% 

reduction); United States v. Dalton, 404 F.3d 1029 (8th Cir. 2005) (stating that a 75% downward departure 

was unreasonable when the district judge placed a higher value on the defendant’s assistance than the 

government did and viewed the defendant as a drug offender with a good chance at being rehabilitated). .
30

Exhibit 2 

Reasonableness Review Doctrines for Selected Appellate Decisions 

AFFIRMANCES REVERSALS/REMANDS

Within-Guideline Range as Reasonable Numerous 

Within-Guideline Range as Unreasonable 

United States v. Lazenby, No. 05-2214 (8th Cir. Ma

Below-Guideline Range as Reasonable

United States v. Berni, No. 05-1678, 2006 WL 463173 (8th Cir. Feb. 28, 2006).

United States v. Burns, No 04-2901, 2006 WL 345850 (8th Cir. Feb. 16, 2006). 

United States v. Pizano, 403 F.3d 991 (8th Cir. 2005). 

United States v. Menyweather, 431 F.3d 692 (9th Cir. 2005). 

United States v. Williams, 435 F.3d 1350 (11th Cir. 2006). 

United States v. Montgomery, No. 05-13935, 2006 WL 284205  (11th Cir. Feb. 7, 2006)(unpub.). 

Above-Guideline Range as Reasonable United States v. Fairclough, No. 05-2799, 2006 WL 465367 (2d Cir. Feb. 17, 2006). United States v. Reinhart, No 05-30245, 2006 WL 541037 (5th Cir. Mar. 7, 2006). 

United States v. Zuniga-Peralta, No. 04-50575, 2006 WL 522459  (5th Cir. Mar. 6, 2006). 

United States v. Smith, No 05-30313, 2006 WL 367011 (5th Cir. Feb. 17, 2006). 

United States v. Smith, 417 F.3d 483 (5th Cir. 2005). 

United States v. Saldana, 427 F.3d 298 (5th Cir. 2005). United States v. Jordan, 435 F.3d 693 (7th Cir. 2006). 

United States v. Johnson, 427 F.3d 425 (7th Cir. 2005). 

United States v. Long, 425 F.3d 482 (7th Cir. 2005). 

United States v. Larrabee, 436 F3.d 890 (8th Cir. 2006). 

United States v. Rogers, 423 F.3d 823 (8th Cir. 2005). 

United States v. Winters, 416 F.3d 856 (8th Cir. 2005). 

United States v. Shannon, 414 F.3d 921 (8th Cir. 2005). 

United States v. Adams, 401 F.3d 886 (8th Cir. 2005). 

Below-Guideline Range as Unreasonable

United States v. Pho, 433 F.3d 53 (1st Cir. 2006). 

United States v. Eura, No. 05-4437, 2006 WL 440

United States v. Moreland, 437 F.3d 424 (4th Cir. 2United States v. Clark, 434 F.3d 684 (4th Cir. 2006

United States v. Duhon, No. 05-30387, 2006 WL 3

United States v. Castillo, 430 F.3d 230 (5th Cir. 20

United States v. Claiborne, No. 05-2198, 2006 WL  (8th Cir. Feb. 27, 2006). 

United States v. Gatewood, No. 05-1865, 2006 WL  (8th Cir. Feb. 27, 2006). United States v. Shafer, No. 05-2049, 2006 WL 45

United States v. McMannus, 436 F.3d 871 (8th Cir. 

United States v. Coyle, 429 F.3d 1192 (8th Cir. 200

United States v. Saenz, 428 F.3d 1159 (8th Cir. 200United States v. Rogers, 400 F.3d 640 (8th Cir. 200United States v. Dalton, 404 F.3d 1029 (8th Cir. 20

United States v. Devegter, No. 04-14075, 2006 WL  (11th Cir. Feb. 16, 2006). 

Above-Guideline Range as Unreasonable United States v. Castro-Juarez, 425 F.3d 430 (7th C

United States v. Wolfe, 435 F.3d 1289 (10th Cir. 20

Reversed/Remanded For Further Explanat

United States v. Cunningham, 429 F.3d 673 (7th Ci

United States v. Castro-Juarez, 425 F.3d 430 (7th C

United States v. Myers, No. 05-1543, 2006 WL 48

United States v. Feemster, 435 F.3d 881 (8th Cir. 2
31

E. JURISDICTION

 Separate and apart from the reasonableness analysis, circuit courts also are 

examining issues of jurisdiction. Congress provided for limited appellate review of 

sentences in the SRA.190 Before Booker, neither the defendant nor the government had 

the right to appeal a sentence within a properly calculated guideline range. The appellate 

courts simply lacked jurisdiction to review such a sentence. Booker did not excise the 

relevant portions of 18 U.S.C. § 3742 that established limited review. Hence, many have 

drawn the legal conclusion that Booker rendered no change to the review standard for 

within-range sentences. 

To date, that conclusion has found no support in any reported cases.191 Following 

Booker, the government has raised jurisdictional challenges to the review of within-range 

sentences. These challenges have not been successful. Three circuits categorically have 

rejected the argument.192 These circuits reason that a within-range sentence might be 

unreasonable in a particular case. The sentence would therefore be “in violation of the 

law” and subject to review under 18 U.S.C. § 3742(a)(1). 

 Prior to Booker, the circuit courts agreed that they lacked jurisdiction to review 

the denial of a motion to depart downward if the district court correctly understood its 

authority to depart downward and declined to exercise that discretion.

193 The circuit 

courts agree post-Booker that a district judge’s denial of a motion for downward 

departure is still unreviewable.194 With the Supreme Court’s excision of the de novo

standard of review for departures, the appellate courts have reverted to the standard of 

 

190 See 18 U.S.C. § 3742(a), (b). 

191 It has, however, been the subject of some concurring/dissenting opinions. See United States v. Cooper, 

437 F.3d 324.(3d Cir. 2006) (Judge Aldisert, concurring in part, dissenting in part). 

192 United States v. Jimenez-Beltre, No. 05-1268, 2006 WL 562154 (1st Cir. Mar. 9, 2006);United States v. 

Martinez, 434 F.3d 1318 (11th Cir. 2006) (rejecting the government’s argument that the court cannot review 

a guidelines sentence because an unreasonable sentence would violate the law and therefore is subject to 

review under 18 U.S.C. § 3742(a)(1)); United States v. Mickelson, 433 F.3d 1050 (8th Cir. 2006) (rejecting 

the government’s argument that the court cannot review a sentence that falls within the guidelines range 

because “an unreasonable sentence would be ‘in violation of law’ and subject to review under 18 U.S.C. § 

3742(a)(1) regardless of whether it was within the guideline range”). 

193 See, e.g., United States v. Castelli, 392 F.3d 35, 54-55 (1st Cir. 2004); United States v. Scott, 387 F.3d 

139, 142 (2d Cir. 2004); United States v. Minutoli, 374 F.3d 236, 239 (3d Cir. 2004); United States v. 

Shaw, 313 F.3d 219, 222 (4th Cir. 2002); United States v. Buck, 324 F.3d 786, 797 (5th Cir. 2003); United 

States v. Clark, 385 F.3d 609, 622 (6th Cir. 2004); United States v. Fudge, 325 F.3d 910, 917-18 (7th Cir. 

2003); United States v. Lopez-Arce, 267 F.3d 775, 784-85 (8th Cir. 2001); United States v. Smith, 330 F.3d 

1209, 1212 (9th Cir. 2003); United States v. Alcorn, 329 F.3d 759, 768 (10th Cir. 2003); United States v. 

Liss, 265 F.3d 1220, 1231 (11th Cir. 2001). 

194 United States v. Melendez-Torres, 420 F.3d 45 (1st Cir. 2005); United States v. Morrell, 138 F. App’x 

373 (2d Cir. 2005); United States v. Forbes, No. 04-4211, 2006 WL 197581 (3d Cir. Jan. 27, 2006) 

(unpub.); United States v. Hatcher, 132 F. App’x 468 (4th Cir. 2005) ;United States v. Puckett, 422 F.3d 

340 (6th Cir. 2005); United States v. Baretz, 411 F.3d 867 (7th Cir. 2005); United States v. Frokjer, 415 F.3d 

865 (8th Cir. 2005); United States v. Hagberg, 138 F. App’x 949 (9th Cir. 2005); (United States v. SierraCastillo, 405 F.3d 932, 936 (10th Cir. 2005); United States v. Winingear, 422 F.3d 1241 (11th Cir. 2005). 
32

review for departures enunciated in Koon v. United States.

195 Accordingly, when the 

district court departs from the guidelines range, the appellate courts consider whether the 

departure constituted an abuse of the court’s discretion.196 

 

F. OTHER APPELLATE SENTENCING ISSUES

1. Crack and Powder Cocaine 

To date, no circuit court has concluded that a policy disagreement with the crack 

cocaine and powder cocaine sentencing ratio is a proper basis for imposing a nonguideline sentence.197 In several cases, the circuit courts have affirmed sentences within 

the applicable guideline range, dismissing arguments that the sentences are unreasonable 

because of the disparity caused by the ratio.198

 

The First Circuit considered the reasonableness of a below range sentence 

imposed in a case involving crack cocaine in which the district court judge expressed his 

disagreement with the 100:1 crack:powder sentencing ratio.199 The district court then 

fashioned the sentence using a 20:1 crack:powder ratio. The First Circuit reversed the 

sentence, holding that “the district court erred as a matter of law when it constructed a 

new sentencing range based on the categorical substitution of a 20:1 crack-to-powder 

ratio for the 100:1 crack:powder ratio embedded in the sentencing guidelines.”200 The 

court further noted that “this holding recognizes that sentencing decisions must be done 

case by case and must be grounded in case-specific considerations...”201 Accordingly, in 

the post-Booker advisory guidelines scheme, a district court’s general disagreement with 

 

195 518 U.S. 81, 98 (1996). 

196 See United States v. Fuller, 426 F.3d 556 (2d Cir. 2005); United States v. Saldana, 427 F.3d 298 (5th Cir. 

2005); United States v. Williams, 432 F.3d 621 (6th Cir. 2005); United States v. Macedo, 406 F.3d 778 (7th

Cir. 2005); United States v. Mashek, 406 F.3d 1012 (8th Cir. 2005); United States v. Menyweather, 431 F.3d 

692 (9th Cir. 2005); United States v. Serrata, 425 F.3d 886 (10th Cir. 2005); United States v. Magluta, 418 

F.3d 1166 (11th Cir. 2005). But see United States v. Johnson, 427 F.3d 423, 426 (7th Cir. 2005) (“It is now 

clear that after Booker what is at stake is the reasonableness of the sentence, not the correctness of the 

‘departures’ as measured against pre-Booker decisions that cabined the discretion of sentencing courts to 

depart from guidelines that were then mandatory”). 

197 See Chapter 6 E for a discussion of the crack powder/powder cocaine sentencing ratio.

198United States v. Morrison, 152 F. App’x 385 (5th Cir. 2005) (rejecting the appellant’s argument that he 

should have received a lesser sentence due to the disparity in the punishment imposed for offenses 

involving powder cocaine because sentencing judges must still consult the Guidelines and the guidelines 

distinction between crack and powder cocaine remains intact); United States v. Gipson, 425 F.3d 335 (7th

Cir. 2005) (noting that where the district court imposes a sentence within the Guideline range, it is not 

unreasonable to refuse to consider the differential in sentences for crack cocaine versus powder cocaine); 

United States v. Cawthorn, 429 F.3d 793 (8th Cir. 2005) (observing that sentencing within the Guidelines 

based on the crack-powder disparity is not inherently unreasonable). But see United States v. Stephen, No. 

05-2100, 2005 WL 3479301 (7th Cir. Dec. 20, 2005) (unpub.)(noting that although the court previously 

held that it was not unreasonable for the district court to depart downward on the discrepancy between 

Guideline ranges for crack and powder cocaine, “[n]othing prevents the district court from considering the 

discrepancy in selecting a reasonable sentence”). 

199 United States v. Pho, 433 F.3d 53 (1st Cir. 2006). 200 Id. at 64-65. 201 Id. at 65. 
33

broad-based policies enunciated by Congress or the Commission, as its agent, cannot 

serve as the basis for sentencing outside the applicable guidelines range.202

The Fourth Circuit categorically has rejected imposition of below-range sentences 

based solely on a rejection of congressional policy in a crack cocaine case. In United 

States v. Eura,

203 the court stated that “[i]n arriving at a reasonable sentence, the court 

simply must not rely on a factor that would result in a sentencing disparity that totally is 

at odds with the will of Congress.”204 

2. Early Disposition Programs 

The Commission has not identified any reported cases in which circuit courts 

have upheld sentences below the guidelines range in non-Early Disposition Programs 

(EDP)205 districts, because the district court cited the resulting disparity between districts 

that qualify for EDP departures and those that do not qualify. Two circuits have rejected 

the defendant’s argument that the sentence was unreasonable because the district judge 

failed to consider the unwarranted disparities in sentencing created by the existence of 

EDP in other jurisdictions. These circuits explained that the policymaking branches of 

government can determine that certain disparities are warranted and thus courts need not 

avoid the disparity created by these programs.206 

G. STATUTORY PENALTY SCHEMES 

1. Armed Career Criminal Act 

In Booker, the Supreme Court repeated its holding in Apprendi that facts “other 

than a prior conviction” are subject to the jury requirements of the Sixth Amendment. As 

a result, the circuits that have addressed Booker’s effect on the Armed Career Criminal 

Act207 have agreed that the fact of a prior conviction is not a fact that a jury must find 

 

202 Id. 203 Nos. 05-4437, 05-4533, 2006 WL 440099 (4th Cir. Feb. 24, 2006) 204 Id. at *6. See also United States v. Moreland, 437 F.3d 424 (4th Cir. 2006)(observing that to the extent 

that the sentence imposed by the district court rests on a rejection of congressional policy with respect to 

repeat drug offenders, it is subject to reversal on that basis alone). 

205 See Chapter 6 G for a discussion of early disposition programs. 206 United States v. Sebastin, 436 F.3d 913 (8th Cir. 2006); United States v. Hernandez-Cervantes, No. 05-

5414, 2005 WL 3529114 (6th Cir. Dec. 23, 2005) (unpub.) (rejecting the appellant’s argument that his 

sentence was unreasonable because the district judge failed to consider the unwarranted disparities in 

sentencing created by the existence of fast-track programs in other jurisdictions, in part, because Congress 

explicitly authorized such disparities the PROTECT Act). See also United States v. Martinez-Flores, 428 

F.3d 22, 30 n. 3 (1st Cir. 2005) (“It is arguable that even post-Booker, it would never be reasonable to 

depart downward based on disparities between fast-track and non-fast-track jurisdictions given Congress' 

clear (if implied) statement in the PROTECT Act provision that such disparities are acceptable”). 207 18 U.S.C. § 924(e)(1), which states: “In the case of a person who violates section 922(g) of this title and 

has three previous convictions by any court referred to in section 922(g)(1) of this title for a violent felony 

or a serious drug offense, or both, committed on occasions different from one another, such person shall be 

fined under this title and imprisoned not less than fifteen years, and, notwithstanding any other provision of 

law, the court shall not suspend the sentence of, or grant a probationary sentence to, such person with 

respect to the conviction under section 922(g).” 
34

beyond a reasonable doubt.208 The circuits do differ about the extent of this exception. 

The majority of circuits extend the exception to facts they characterize as inherent in the 

fact of a conviction.209 

2. Mandatory Minimum Sentences 

The circuit courts have reasoned that Booker does not apply to mandatory 

minimum sentences, which are driven by statutes, not by the sentencing guidelines. 

Thus, district courts still must comply with the requirements of mandatory minimum 

statutes.210 The recognized exceptions to this rule remain; the court may depart below 

the mandatory minimum sentence upon the filing of a government motion based upon 

 

208 See, e.g., United States v. Lewis, 406 F.3d 11 (1st Cir. 2005); United States v. Ivery, 427 F.3d 69 (1st Cir. 

2005); United States v. Ordaz, 398 F.3d 236 (3d Cir. 2005); United States v. Thompson, 421 F.3d 278 (4th

Cir. 2005); United States v. Martin, 431 F.3d 846 (5th Cir. 2005); United States v. Barnett, 398 F.3d 516 

(6th Cir. 2005); United States v. Powers, 129 F. App’x 942 (6th Cir. 2005) ; United States v. Lewis, 405 

F.3d 511 (7th Cir. 2005); United States v. Brown, 417 F.3d 1077 (9th Cir. 2005); United States v. Moore, 401 

F.3d 1220 (10th Cir. 2005); United States v. Burge, 407 F.3d 1183 (11th Cir. 2005). 

209 See, e.g., United States v. Thompson, 421 F.3d 278 (4th Cir. 2005) (holding that the date on which a prior 

crime was committed is a fact inherent in the fact of a prior conviction and does not have to be admitted by 

the defendant or found by a jury and observing that the fact of a prior conviction cannot be severed from its 

essential components, e.g., whether prior convictions occurred on different occasions; “some facts are so 

inherent in a conviction that they need not be found by a jury”); United States v. Powers, 129 F. App’x 942 

(6th Cir. 2005) (“the determination by a district court that prior convictions exist and were committed on 

‘different occasions,’ are so intimately related that the ‘different occasions’ requirement of § 924(e) 

sufficiently comes within the exception in Apprendi.”); United States v. Carrillo-Beltran, 424 F.3d 845 (8th

Cir. 2005) (stating that in addition to determining the “fact of a prior conviction,” the court can also 

determine those facts so intimately related to the prior conviction to fall within the Apprendi exception; 

thus, a court can determine whether the defendant has a prior conviction under an alias); United States v. 

Corchado, 427 F.3d 815, 820 (10th Cir.2005) (holding that the prior-conviction exception extends to 

subsidiary findings such as whether a defendant was under court supervision at the time of the subsequent 

crime and when the defendant was released from prison; “such facts are merely aspects of the defendant’s 

recidivist potential, are easily verified, and their application for purposes of enhancing a sentence requires 

nothing more than official records, a calendar, and the most self-evident mathematical computation”); 

United States v. Greer, 435 F.3d 1327 (11th Cir. 2006) (“There is no reason the Constitution would permit a 

judge to decide whether the person the conviction documents describe was the defendant but forbid the 

judge from deciding what type of crime those same documents describe. . . . If a judge may determine the 

facts about whether the defendant has been convicted, a judge may determine the facts about the type of 

crime for which he was convicted.”). But see United States v. Kortgaard, 425 F.3d 602 (9th Cir. 2005) 

(finding that the guideline range did not adequately represent the seriousness of defendant’s criminal 

history and that likelihood of recidivism is not within the Apprendi exception; “[t]he mere fact that the 

sentencing judge considered prior convictions in departing upward does not bring this case within the 

exception for ‘the fact of a prior conviction’”). 210 United States v. Sanchez-Berrios, 424 F.3d 65 (1st Cir. 2005); United States v. Sharpley, 399 F.3d 123 

(2d Cir. 2005); United States v. Robinson, 404 F.3d 850 (4th Cir. 2005); United States v. Smith, 419 F.3d 

521 (6th Cir. 2005); United States v. Ngamwuttibal, Nos. 04-5818, 04-6019 , 2006 WL 45256 (6th Cir. Jan. 

9, 2006) (unpub.); United States v. Lee, 399 F.3d 864 (7th Cir. 2005); United States,v. Cannon, 429 F.3d 

1158 (7th Cir. 2005); United States v. Blaylock, 421 F.3d 758 (8th Cir. 2005); United States v. Cardenas, 

405 F.3d 1046 (9th Cir. 2005); United States v. Payton, 405 F.3d 1168, 1173 (10th Cir.2005); United States 

v. Cherry, 433 F.3d 698 (10th Cir. 2005); United States v. Shelton, 400 F.3d 1325 (11th Cir. 2005). 
35

substantial assistance under 18 U.S.C. § 3553(a), or if the defendant qualifies for the 

“safety valve” under 18 U.S.C. § 3553(f).211

H. APPELLATE COURT JURISPRUDENCE CONTINUES TO EVOLVE

As has been discussed throughout this report, the federal criminal justice system 

continues to adapt to Booker. Nevertheless, the evolution of appellate jurisprudence 

occurs gradually rather than overnight. Thus, issues known to be of interest to the 

Commission and the rest of the criminal justice community have not been answered in all 

circuits. For example, as noted earlier, six circuits have adopted a presumption of 

reasonableness for a guidelines sentence. One circuit ― D.C.– has not addressed the 

issue in any published or unpublished opinions. The Third Circuit has expressly noted 

that it is unnecessary to adopt a presumption of reasonableness because the appellant 

already has the burden of demonstrating that the sentence is unreasonable.212 The 

Eleventh Circuit has noted in an unpublished case that it rejects the presumption of 

reasonableness.213 The Second Circuit seems to have rejected the presumption of 

reasonableness, and the Ninth Circuit recently appeared to adopt the standard, but then 

issued a corrected opinion which deleted reference to the presumption of 

reasonableness.214

Regardless of any standard adopted, only one circuit court has held a properly 

calculated guideline sentence to be unreasonable.215 No circuit court has upheld a belowrange sentence granted on the basis of either a prohibited factor or the defendant’s 

cooperation without a government motion having been filed. Further, courts generally 

appear to reversing below- ranges sentences more often than above-range sentences.216

Finally, many circuits have rejected disagreement with congressional policies as a 

legitimate basis to impose a below-range sentence. The First and Fourth Circuits have 

discussed this in the context of crack cocaine. The Sixth and Eighth Circuits have 

 

211 See United States v. Robinson, 404 F.3d 850 (4th Cir. 2005) (“Except upon motion of the Government on 

the basis of substantial assistance, a district court still may not depart below a statutory minimum.”). See 

also 18 U.S.C. § 3553(f) (2005). It is also the subject of supplemental briefing. See United States v. 

Plouffe, 437 F.3d 917(9th Cir. 2006) (parties ordered to file supplemental briefs about whether the court 

has jurisdiction to review a within-range sentence). 

212 See United States v. Cooper, 437 F.3d 324 (3d Cir. 2006). 213 See United States v Lisbon, No. 04-00441, 2006 WL 306343 (11th Cir. Feb. 10, 2006) (unpub.). 214 See United States v. Crosby, 397 F.3d 103 (2d Cir. 2005); United States v. Guerrero-Velasquez, 434 

F.3d 1193 (9th Cir. 2006) (the corrected version of the opinion). The first version of the opinion, United 

States v. Guerrero-Velasquez, No. 05-30066, n. 1 (9th Cir. Jan. 19. 2006), is available at 

http://www.ca9.uscourts.gov. 

215 United States v. Lazenby, No. 05-2216 (8th Cir. Mar. 10, 2006), available at 

http://www.ca8.uscourts.gov. 

216United States v. Eura, Nos. 05-4437, 05-4533, 2006 WL 440099 (4th Cir. Feb. 24, 2006) (reversing 

below-range sentence);United States v. Duhon, No. 05-30387, 2006 WL 367017 (5th Cir. Feb. 17, 2006) 

(same); United States v. Claiborne, No. 05-2198, 2006 WL 452899 (8th Cir. Feb. 27, 2006) (same); United 

States v. Gatewood, No. 05-1865, 2006 WL 452902 (8th Cir. Feb. 27, 2006) (same); United States v. Shafer, 

No. 05-2049, 2006 WL 453200 (8th Cir. Feb. 27, 2006) (same). Cf. United States v. Fairclough, No. 05-

2799, 2006 WL 465367 (2d Cir. Feb. 17, 2006) (affirming above-range sentence); United States v. Rogers, 

423 F.3d 823 (8th Cir. 2005) (same); 
36

considered the issue as it relates to Congress’ fast track policies. Finally, the Fifth Circuit 

has reversed a sentence in a pornography case 217 on this basis. 

 

217 United States v. Duhon, No. 05-30387, 2006 WL 367017 (5th Cir. Feb. 17, 2006) (“We agree with the 

First and Eighth Circuits that a sentencing disparity intended by Congress is not unwarranted”). 
37

Chapter 3

IMPLEMENTATION OF THE ADVISORY GUIDELINE SYSTEM 

The Commission and other actors in the criminal justice system took immediate 

steps to implement the advisory guideline system. This chapter summarizes the results 

of the Commission’s efforts to implement the system in the year following Booker. 

A. EMPHASIS ON DOCUMENT SUBMISSION REQUIREMENTS

The Commission maintains a comprehensive, computerized data collection 

system that forms the basis for its clearinghouse of federal sentencing information.218 

The Commission relies upon this database for its ongoing monitoring and evaluation of 

the guidelines, for many of its research projects, and for responding to the hundreds of 

data requests received from Congress and other criminal justice entities each year. For 

each case sentenced under the guidelines, the Commission routinely collects hundreds of 

pieces of information, including defendant demographics, statutes of conviction, 

sentencing guideline applications, and sentences imposed.219 

The Prosecutorial Remedies and Other Tools to end the Exploitation of Children 

Today (PROTECT) Act of 2004220 established new statutory documentation requirements 

aimed in part at improving the Commission’s ability to collect and report complete and 

accurate sentencing data. Section 401(h) of the PROTECT Act, entitled “Improved Data 

Collection,” amended 28 U.S.C. § 994(w) to state―

The Chief Judge of each district court shall ensure that, within 30 days 

following entry of judgment in every criminal case, the sentencing court 

submits to the Commission a written report of the sentence, the offense for 

which it is imposed, the age, race, sex of the offender, and information 

regarding factors made relevant by the guidelines. The report shall also 

include―

(A) the judgment and commitment order; 

(B) the statement of reasons for the sentence imposed 

(which shall include the reason for any departure from the 

otherwise applicable guideline range); 

(C) any plea agreement; 

 

218 See 28 U.S.C. § 995(a)(14),(15). 

219 See Commission, REPORT TO CONGRESS: DOWNWARD DEPARTURES FROM THE SENTENCING 

GUIDELINES (October 2003) [hereinafter “2003 DEPARTURES REPORT”] at 25. 220 Pub. L. No. 108–21, 117 Stat. 650, hereinafter the “PROTECT Act”; see also 28 U.S.C. § 994(w) and 

18 U.S.C. § 3553(c).
38

(D) the indictment or other charging document; 

(E) the presentence report; and 

(F) any other information as the Commission finds 

appropriate.221

The PROTECT Act also amended 18 U.S.C. § 3553(c) to require the sentencing court, if 

imposing a sentence outside the prescribed guidelines range, to state “the specific reason” 

for departing from the guidelines “with specificity in the written order of judgment and 

commitment.” 

 Immediately following Booker, a portion of the federal criminal justice 

community expressed uncertainty abut Booker’s impact on the PROTECT Act’s statutory 

documentation submission requirements, prompting the need for immediate action. On 

January 21, 2005, United States District Judge Sim Lake, Chair of the Criminal Law 

Committee of the Judicial Conference, and United States District Judge Ricardo H. 

Hinojosa, the Chair of the Commission, issued a joint memorandum to all United States 

District Judges and other court personnel reminding them of the duty to continue 

fulfilling the document submission requirements imposed by the PROTECT Act. The 

memorandum emphasized that the Booker decision had rendered no changes to the 

relevant statutes mandating submission of documents to the Commission.222 

The Chair of the Commission also participated in a broadcast presented by the 

Federal Judicial Center entitled “Federal Sentencing after Booker,” in which the 

Commission reiterated that the courts should continue to submit five specific sentencing 

documents to the Commission within 30 days of entry of judgment: Submission of the 

sentencing documents is of the utmost importance to enable the Commission to generate 

the sentencing data needed to evaluate the impact of Booker. 

B. REAL-TIME DATA COLLECTION AND REPORTING 

 The Commission reorganized its data receipt, analysis, editing, and reporting 

tasks to provide real-time post-Booker information to the federal criminal justice 

community, Congress, and other interested persons. For the past fourteen months, the 

Commission has analyzed post Booker sentencing data to monitor the proportion of 

within-range and out-of-range sentences. These data have been updated and published 

nearly every month since the Booker decision.223 The Commission also has performed 

in-depth analyses of trends evidenced by the data. The results of these analyses are 

 

221 Section 994(w) previously did not contain a 30-day deadline for submission of the documents and did 

not impose a duty on the Chief Judge of each district to ensure compliance with this section. Additionally, 

the only document specifically required by statute to be submitted to the Commission prior to the 

PROTECT Act was a “written report of the sentence.” Other documents were submitted to the 

Commission pursuant to a longstanding Memorandum of Understanding between the Administrative Office 

of the United States Courts and the Commission. See 2003 DEPARTURES REPORT at 24, n.65. 222 For the text of the memorandum, see http://www.ussc.gov/Blakely/DIR5-014.PDF. 223 The Commission’s Post-Booker sentencing updates are available at http://www.ussc.gov.
39

discussed in the following chapters of this report. Recognizing that comparisons of 

historical guideline trends and trends in the post-Booker system might provide further 

insight into the efficacy of the advisory guideline system, the Commission also recently 

released data tables including information on all guideline calculations performed on 

cases received during Fiscal Years 2003 and 2004. 

Booker presented new challenges to the Commission’s data collection efforts. 

The existing Statement of Reasons form had been tailored to capture information in a 

mandatory guideline regime. It did not provide a suitable format for reporting 

information about sentences outside the guideline range, which were not based upon 

reasons for departure limited to, and affirmatively and specifically identified, in the 

policy statements and commentary of the Guidelines Manual. For approximately 6 

months after the decision, courts used the old form, modified it, or created their own. 

This lack of uniformity in reporting sentencing data impacted the Commission’s 

collection efforts. 

 As part of its continuing efforts to improve data collection, the Commission 

assisted the Judicial Conference with revisions to the Statement of Reasons Form 

(AO245B (Rev. 6/05)). These revisions were designed to capture more accurately the 

courts’ reasons for imposing sentences outside the advisory guideline range. The revised 

form distinguishes between sentences within the advisory guideline range, departures 

provided for by the guidelines, and sentences outside the advisory guideline system. The 

changes to the form will enable the Commission to report with greater specificity the 

impact of Booker on federal sentences. 

The Commission encourages all districts to use the standardized form.224 

Uniformity in the method of reporting sentencing information will augment the 

completeness and accuracy of the Commission’s sentencing data, which are directly 

dependent on the documentation the Commission receives from the sentencing courts. 

The judicial districts generally are highly compliant with document submission 

requirements. The Commission has, as of the date of this report, received documentation 

for Fiscal Year 2005 at an overall rate of 98.4 percent. 

 The Commission also implemented an electronic submission program designed to 

enable the federal district courts to submit required documentation to the Commission, in 

“pdf” format. After conducting a successful pilot program involving 5 districts, the 

Commission implemented the program nationwide. To date, 64 districts are submitting 

their sentencing documentation electronically. The Commission’s goal is to achieve 100 

percent participation by Fiscal Year 2007. Participation in the program is cost-effective 

 

224 The advisory committee for the Federal Rules of Criminal Procedure has taken steps to impose 

uniformity with respect to use of the statement of reasons form. See Proposed Rules Change to Fed. R. 

Crim. P. 32 (Judgment)(proposing to amend Rule 32(k) to require courts to use the judgment form, which 

includes the statement of reasons form, prescribed by the Judicial Conference of the United States). 

Congress also has taken steps to address this documentation issue through the Patriot Act conference 

report. See Sec. 735, H. REP. 109-174, Pt. I (requiring submission by courts of a “written statement of 

reasons form issued by the Judicial Conference and approved by the United States Sentencing 

Commission.”). 
40

for the courts, eliminating postage and copying costs. The ease of submission of the 

documents is a time-saving device, as well. Finally, the Commission anticipates that the 

on-line submission of documents eventually will result in a completely paperless file 

storage system. 

C. TESTIMONY BEFORE CONGRESS

 On February 10, 2005, the Commission presented testimony at an oversight 

hearing on the Implications of the Booker for the sentencing guidelines before the 

Subcommittee on Crime, Terrorism, and Homeland Security of the House Judiciary 

Committee. The Chair of the Commission testified on its behalf, stating that the Booker

decision rendered no changes to the Commission’s statutory obligations under the 

SRA.225 Moreover, although excising the statutory provisions that made the guidelines 

mandatory, the decision instructed that “district courts, while not bound to apply the 

Guidelines, must consult those guidelines and take them into account when sentencing,” 

subject to review by the courts of appeal for unreasonableness.226 Thus, “the guidelines 

remain an important and essential factor in the imposition of Federal sentences.”227 

 The Commission, through its Chair, explained that “the Booker decision makes 

clear that the sentencing courts must consider the guidelines and that such consideration 

necessarily requires the sentencing court to calculate the guideline sentencing range and 

consider the departure policy statements of the Federal sentencing guidelines.”228 

Although the decision does not expressly address the question of how much weight the 

guidelines should be accorded by the sentencing court, “[t]he Commission believes that 

the courts should give substantial weight to the guidelines in determining the appropriate 

sentence because as mandated by the [SRA], the Commission has considered the factors 

listed in section 3553(a) during the process of promulgating and refining the 

guidelines.”229 Moreover, “Congressional action through the history of the Federal 

sentencing guidelines indicates Congress’ belief that [the guidelines] generally achieve 

the statutory purposes of sentencing as they are submitted for Congressional review 

before they become effective, and Congressional approval can only be interpreted as a 

sign that Congress believes that the guidelines have done so.”230 

 The Commission informed Congress of its continuing commitment to assist in 

assessing and responding to the decision.231 The Commission then outlined the actions it 

had undertaken to ensure that the guidelines continue to be an effective sentencing 

tool.232 Among other things, the Commission conducted a 2-day hearing on November 

 

225 Implications of the Booker/Fanfan Decisions for the Federal Sentencing Guidelines: Hearing before the 

Subcomm. on Crime, Terrorism, and Homeland Security of the House Judiciary Comm. 109th Cong. 14-15 

(2005) (Statement of Judge Ricardo H. Hinojosa, Chairman, United States Sentencing Commission). 

226 Id. citing Booker, 543 U.S. at 264 (opinion of Justice Breyer) 227 Id. at 15. 228 Id. 

229 Id. 230 Id. 231 Id. at 17. 232 Id. at 15. 
41

16 and 17, 2004, at which it heard testimony from the Department of Justice, defense 

attorneys, and academics. The Commission and its staff also attended various 

conferences and meetings following the Blakely decision and continued to attend similar 

events following the Booker decision. Participation in these events informed the 

Commission of a number of proposals that were being debated in the federal criminal 

justice community as possible responses to Booker. 

Those proposals include, among others, a ‘wait and see’ 

approach, statutory implementation in some form of the Booker

sentencing scheme, providing a jury trial mechanism for 

sentencing guidelines enhancements, ‘simplification’ of the 

guidelines either by reducing the number of guidelines adjustments 

and/or by expanding the sentencing guidelines ranges, equating the 

maximum of the guidelines sentencing ranges with the statutory 

maximum for the offense of conviction, and broader reliance on 

statutory mandatory minimum penalties.233

 The Commission expressed the hope that if Congress decided at some point to 

pursue legislation, it would “preserve the core principles of the SRA and, to the extent 

possible, avoid a wholesale rewriting of a system that has operated well for nearly two 

decades. [The Commission] believe[s] that the [SRA] was a landmark piece of 

legislation and that the resulting guidelines have made significant strides in furthering the 

goals of the SRA.”234 

 The Chair concluded the Commission’s remarks by assuring Congress that “the 

Commission and its staff are dedicated to the mission of carrying out the goals of 

sentencing reform and, as the Booker decision itself says, ‘to provide certainty and 

fairness in meeting the purposes of sentencing [while] avoiding unwarranted sentencing 

disparities...[and] maintaining sufficient flexibility to permit individualized sentences 

when warranted.’”235

D. PUBLIC HEARING ON THE PRESENT AND FUTURE IMPACT OF BOOKER ON

FEDERAL SENTENCING

 On February 15 and 16, 2005, the Commission conducted a public hearing in 

Washington, D.C., to solicit testimony from judges, prosecutors, the defense bar, 

advocacy groups, academics, and representatives of state sentencing commissions on the 

present and future impact of Booker on federal sentencing. The participants were asked 

to testify regarding specific topics, including legislative responses to the Booker decision, 

the weight to be given to the sentencing guidelines after Booker, and state advisory 

 

233 Id. at 19. 234 Id. 235 Id. citing Booker, 543 U.S. at 264 (opinion of Justice Breyer)(internal citation omitted).
42

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

Appendix C. 

E. GUIDELINES EDUCATION AND TRAINING

 Immediately after the Booker decision, the Commission developed a post-Booker

guidelines training program. The program is designed to provide information about the 

Booker decision and legal developments resulting from the decision. The program 

describes federal sentencing under Booker as a 3-step process.237 First, because the 

Booker decision requires that courts consult the sentencing guidelines, a sentencing court 

must calculate the applicable guideline range in the customary fashion. Second, the court 

should determine whether a departure from the guideline range is consistent with the 

guidelines’ policy statements and commentary. Third, the court should evaluate whether 

a variance, i.e., a sentence outside the advisory guideline range is warranted under the 

authority of 18 U.S.C. § 3553(a). Appellate courts should apply a reasonableness 

standard of review. 

 The standard training program explains how the sentencing guidelines reflect 

Congress’ objectives in the SRA and that the guidelines accordingly should be given 

substantial weight in fashioning sentences in post-Booker. The program also 

encompasses a discussion of the most recent sentencing data released by the 

Commission. Finally, the program emphasizes the importance of sentencing data in postBooker. Submission of documentation by the district courts meets the statutory 

requirements of 28 U.S.C. § 994(w). Data collected from these documents also 

contribute to transparency in sentencing and allow Congress and others to evaluate 

whether the post-Booker guidelines system is meeting the intent of the SRA. In 

discussing the data, the program highlights the revised Statement of Reasons form 

(AO245B) approved by the Judicial Conference and encourages the courts to use the new 

form. 

 To date, the Commission has presented this program to judges, judicial law 

clerks, probation officers, prosecutors, and defense attorneys in 61 of the 94 districts. 

These districts account for 75.5 percent of the post-Booker cases analyzed in this report. 

The Commission also has presented this post-Booker training program to circuit staff 

attorney offices in ten circuits and at the training program for new judges. In addition to 

staff presentations of this training program, individual commissioners have attended 

circuit court judicial conferences in most of the circuits. At these conferences, the 

commissioners have reported recent sentencing data and discussed the 3-step approach to 

sentencing. The commissioners also have emphasized the importance of submitting 

complete documentation to the Commission. 

 

236 United States Sentencing Commission February 15 and 16, 2005 Public Hearing (hereinafter “USSC 

February 2005 Public Hearing”), http://www.ussc.gov/hearings/02_15_05/topics_02_05.htm. 237 The Judicial Conference has adopted this approach in proposed rules changes to the Federal Rules of 

Criminal Procedure. For the text of the proposed changes, see www.uscourts.gov/rules. 
43

 The Commission’s “HelpLine” has provided guideline application assistance to 

more than 100 callers each month. 

 The Commission, along with the Federal Bar Association, hosted the Fourteenth 

Annual National Seminar on the Federal Sentencing Guidelines in San Francisco on May 

25-27, 2005. The program featured more than 80 speakers and welcomed over 500 

participants. The presentations included in-depth discussions of the impact of the Booker 

decision on the federal sentencing. The Commission also included guideline application 

lectures on drugs, immigration, and firearms offenses, among other topics. 

 The Commission co-sponsored and participated in the National Sentencing Policy 

Institute, presenting data on national sentencing trends. Commission staff provided 

assistance to the Federal Judicial Center and the Criminal Law Committee of the Judicial 

Conference at the program, held in Washington, D.C. on July 11-12, 2005. In 

conjunction with the D.C. Sentencing Commission, the Commission hosted the National 

Association of Sentencing Commission’s Annual Conference. The program focused on 

the impact of the Blakely and Booker decisions on guidelines sentencing scheme and 

included more than 30 speakers and 150 participants. 

 The Commission, along with the Federal Bar Association, has scheduled the 

Fifteenth Annual National Seminar on the Federal Sentencing Guidelines for May 31 

through June 2, 2006, in Miami, Florida. The program will feature more than 70 

speakers, including district and circuit court judges, all former chairs of the Commission, 

prosecutors, defense attorneys, probation officers, and academics. The presentations will 

include discussions assessing the impact of Booker on federal sentencing and developing 

appellate jurisprudence. As a result of the data discussed in this report, the Commission 

expects to refine and update its training programs. 

 The Commission also continues to perform its core mission to promulgate and 

revise the sentencing guidelines, as the Supreme Court noted in Booker.

238

 

238 The Commission has the continuing obligation to promulgate and revise the sentencing guidelines. 

Accordingly, on May 1, 2005, the Commission promulgated amendments pertaining to antitrust and 

aggravated identity theft offenses, effective November 1, 2005 in response to congressional directives. On 

October 24, 2005, the Commission promulgated emergency amendments in response to congressional 

directives. The first was an amendment to the intellectual property guideline, USSG §2B5.3, which 

implemented the directive in section 105 of the Family Entertainment and Copyright Act of 2005. Pub. L. 

No. 109–9, 119 Stat. 218 (2005). The second emergency amendment implemented section 6703 of the 

Intelligence Reform and Prevention Act of 2004, Pub. L. No. 108–458, 118 Stat. 3638 (2004), relating to 

obstruction of justice and false statements made in connection with international or domestic terrorism and 

sentenced under USSG §2J1.2. At the Commission’s January 2006 meeting, the Commission voted to 

publish for comment proposed amendments implementing Commission policy priorities for this 

amendment cycle. See 71 Fed.R 4782-01 (January 27, 2006). The proposed amendments address inter alia

issues related to the sentencing of immigration, firearms, and steroid offenses. In addition to seeking public 

comment on all of the proposed amendments, the Commission scheduled a public hearing on the proposed 

amendments on March 15, 2006, in Washington, D.C., and two regional public hearings principally 

focused on the proposed immigration amendments in San Antonio, Texas, on February 21, 2006, and San 

Diego, California, on March 5, 2006. 
44

Chapter 4

ANALYSIS OF COMMISSION SENTENCING DATA: TRENDS IN 

FEDERAL SENTENCING PRACTICES 

A. INTRODUCTION

 One measurement of Booker’s impact on federal sentencing is the rate of 

imposition of sentences in conformance with the guidelines. Additionally and more 

specifically, Booker’s impact can be measured to a large degree by analyzing the 

available data to answer the following questions: 

• Has Booker affected the rate of imposition of sentences within and outside the 

applicable guideline range and if so, how has it affected sentence type and length, 

including the extent of any departure or variance from the guideline range? 

• Has Booker affected federal sentencing compared to sentencing practices 

occurring prior to the decision? 

• In what circumstances do judges find sentences outside the guideline range more 

appropriate than a guideline sentence? In other words, for what reasons do judges 

impose non-guideline sentences, and have those reasons changed after Booker? 

As described in Chapter 3, the Commission post-Booker regularly has analyzed 

and published sentencing data to monitor the proportion of cases sentenced within and 

outside the applicable guideline range.239 Cognizant of the need to measure and analyze 

more fully the implication of Booker beyond that rate of imposition of within-range 

sentences, the Commission has performed more in-depth analysis of trends evidenced by 

the data. Comparisons of historical guideline trends with post-Booker data help put 

Booker’s overall effect on federal sentencing practices in context. 

 Analysis of the data also provides insight into how judges are exercising 

discretion in the imposition of sentences after Booker. This in turn might provide useful 

information to gauge the efficacy of the advisory guideline system itself. For example, 

analysis of the reasons given by the courts for non-government-sponsored, below-range 

sentences could illustrate judicial sentiment for particular changes in the guideline 

system. 

 The analyses presented in this chapter are subject to two important caveats that 

affect the reliability of these early results. First, in the early months following the 

opinion, courts did not apply uniform practices and procedures for imposing sentences 

post-Booker.240 Even now, the courts do not report sentences in a uniform fashion. The 

 

239 See post-Booker sentencing updates, http://www.ussc.gov. 240 Some, but not all, of the lack of uniformity in practice has been resolved by circuit court case law. See 

generally Chapter 2. 
45

differences in practice and procedure that resulted after Booker undoubtedly have had an 

impact on the data collected, warranting cautious interpretation of the findings. 

Second, in addition to changes in post-Booker practices and procedures, changes 

necessitated by Booker in the Commission’s methodologies for data collection and 

analysis, and the emerging appellate jurisprudence make it difficult to quantify fully 

Booker’s impact on federal sentencing. With this in mind, results of the Commission’s 

analysis are presented in this chapter as follows: 

 Part B gives a brief overview of major findings discussed throughout this chapter 

regarding the impact of Booker generally on federal sentencing practices. 

 Part C assesses Booker’s impact on federal sentencing practices by examining 

several national guideline sentencing trends. The Commission used the following three 

salient time periods as points of comparison to discern these trends: the pre-PROTECT 

Act period,241 which is the 7-month period from October, 2002 through April, 2003, the 

post-PROTECT Act period,242 which is a 13-month period from mid-2003 through mid2004, and the post-Booker period,243 which is a 1-year period generally in 2005. In 

addition to aggregate, national data, data are presented either in this chapter or in 

Appendix E, for sentences under the 5 most commonly used guidelines.244 Multivariate 

analyses also are included to assess whether any changes in national sentencing trends are 

significant after controlling for a number of relevant factors. 

 As an initial gauge of Booker’s impact, Part C assesses trends with respect to the 

imposition of within-range above-range, and below-range sentences. For ease of 

 

241 The pre-PROTECT Act time period used for purposes of this analysis is the period from October 1, 

2002 (the beginning of Fiscal Year 2003) through April 30, 2003 (the date of the enactment of the 

PROTECT Act). Accordingly, the pre-PROTECT Act datafile is a subset of the Commission’s Fiscal Year 

2003 datafile consisting of data on 40,917 offenders sentenced between October 1, 2003 and April 30, 

2003. 

242 The post-PROTECT Act time period used for purposes of this analysis is the period from May 1, 2003 

(the date after the enactment of the PROTECT Act) through June 24, 2004 (the day of issuance of the 

Blakely decision by the Supreme Court). Accordingly, the post-PROTECT Act datafile consists of an 

aggregation of the Commission’s Fiscal Year 2003 and Fiscal Year 2004 datafiles consisting of the 81,206 

offenders sentenced from May 1, 2003 through June 24, 2004. As explained in Chapter 1, information on 

sentences imposed after issuance of the Blakely decision but before issuance of the Booker decision is not 

included in this analysis. 

243 The post-Booker time period used for purposes of this analysis is the period from January 12, 2005 (the 

date of issuance of the Booker decision by the Supreme Court) and January 11, 2006 (the date through 

which the Commission’s data has been analyzed for this report). Accordingly, the post-Booker datafile 

consists of data on all 67,564 offenders sentenced between January 12, 2005 and January 11, 2006 for 

which the Commission has received information. Other Commission datafiles, collected by fiscal year, are 

included in the analysis as appropriate, and their use is indicated in figures and tables throughout this 

chapter. 

244 These five guidelines, the theft and fraud guideline (USSG §2B1.1), the drug guideline (USSG §2D1.1), 

the firearms guideline (USSG §2K2.1), the alien smuggling guideline (USSG §2L1.1), and the immigration 

illegal reentry guideline (USSG §2L1.2) were selected for analysis because, combined, they consistently 

account for the overwhelming majority of the total federal caseload (69.4% pre-PROTECT Act, 71.4% 

post-PROTECT Act, and 73.8% post-Booker). 
46

discussion, the terms “within-range”, “above-range”, and “below-range” are used to 

describe sentences in relation to the applicable guideline range.245 Part C also assesses 

trends occurring in the length and type of sentences actually imposed, as well as changes 

occurring in the severity of the sentence to which defendants potentially are subject. 

Finally, Part D examines the reasons given and factors relied upon by the courts for 

imposition of below-range sentences. 

B. MAJOR FINDINGS

The Commission’s data analyses of Booker’s impact on federal sentencing trends 

yielded the following findings: 

• The majority of federal cases continue to be sentenced in conformance 

with the sentencing guidelines. National data show that when withinrange sentences and government-sponsored, below-range sentences are 

combined, the rate of sentencing in conformance with the sentencing 

guidelines is 85.9 percent. The conformance rate remained stable 

throughout the year that followed Booker. The conformance rate in the 

pre-PROTECT Act period was 90.6 percent. The conformance rate in the 

post-PROTECT Act period was 93.7 percent.

• The severity of sentences imposed has not changed substantially across 

time. The average sentence length after Booker has increased. 

• With respect to within-range sentences, patterns for selecting the point at 

which to sentence within the range are unchanged after Booker. 

Approximately 60 percent of within-range sentences are still imposed at 

the minimum, or bottom, of the applicable guideline range. 

• The rate of imposition of sentences of imprisonment has not decreased. 

Offenders are still being incarcerated in the vast majority of cases. 

• The rate of imposition of above-range sentences doubled to a rate of 1.6 

percent after Booker. 

• The rate of government-sponsored, below-range sentences has increased 

slightly after Booker to a rate of 23.7 percent, with substantial assistance 

departures accounting for 14.4 percent, Early Disposition Program 

departures accounting for 6.7 percent, and other government-sponsored 

downward departures accounting for 2.6 percent . 

 

245 For purposes of this report, a “below-range” sentence is one indicated by the court on the Statement of 

Reasons form as a downward departure of any type for the pre-PROTECT Act and post-PROTECT Act 

data. For the post-Booker data, a “below-range” sentence is one indicated by the court on the Judgment 

and Commitment Order that falls below the final sentencing guideline range indicated by the court on the 

Statement of Reasons form. 
47

• The rate of imposition of non-government-sponsored, below-range 

sentences has increased after Booker to a rate of 12.5 percent. 

• In approximately two-thirds of cases involving non-governmentsponsored, below-range sentences, the extent of the reductions granted are 

less than 40 percent below the minimum of the range. Courts have 

granted small sentence reductions, of 9 percent or less, at a higher rate 

after Booker than before. Courts have granted 100 percent sentence 

reductions, to probation, at a lower rate after Booker than before. 

• The imposition of non-government-sponsored, below-range sentences 

often is accompanied by a citation to Booker or factors under 18 U.S.C. § 

3553(a).

• The use of guideline departure reasons remains prevalent in many cases 

involving the imposition of non-government-sponsored, below-range 

sentences, including those citing Booker or factors under 18 U.S.C. § 

3553(a). 

• Multivariate analysis246 indicates that four factors associated with the 

decision to impose a below-range sentence appear after Booker but not 

before: the application of a mandatory minimum sentence, criminal history 

points, career offender status, and citizenship. However, most factors 

associated with this decision are the same after Booker. 

C. ASSESSING TRENDS IN FEDERAL SENTENCING PRACTICES 

1. Introduction 

The effects of Booker may be examined in the context of long-term trends in 

sentencing practices and the impact of other changes to the law of sentencing.247 The 

 

246 Multivariate analysis is one statistical method to measure the effects of policy changes at the aggregate 

level and to evaluate the potential influence of other factors. The purpose of conducting multivariate 

analysis is to determine whether any sentencing changes were statistically significant after controlling for 

relevant factors for which data are available. For a detailed discussion of the multivariate analyses 

undertaken for this report, see Appendix B. 247 As a general matter, understanding trends in federal sentencing practices also requires understanding the 

many influences on these practices and how they have developed over the long term. Since implementation 

of the federal sentencing guidelines nearly 20 years ago, the law of federal sentencing has been revised and 

amended numerous times through statutory enactment, Supreme Court ruling, or amendment of the 

guidelines themselves. Although these legal changes influence sentencing practices, they are not the sole 

influences affecting sentencing. Experts on guideline systems have noted that practices such as sentencing 

in conformance with the guidelines depend on a multitude of institutional and cultural factors, as well as 

structural features of each system. Just as the law influences a guideline system, informal incentives for 

compliance and the norms and culture that develop in each court likewise have an influence. See Kim H. 

Hunt & Michael Connelly, Advisory Guidelines in the post-Blakely Era, 17 FED. SENT'G REP. 233 (2005); 

Kevin R. Reitz, The Enforceability of Sentencing Guidelines, 58 STAN. L. REV. 155 (2005), 156. Some 

commentators have suggested that these informal and cultural factors will be important in the federal 
48

most detailed account of these long-term trends is reported in the Commission’s 2004 

study of the first 15 years of federal sentencing under the Sentencing Reform Act of 

1984.248 That report contains data on long-term trends in incarceration rates and average 

sentence lengths from Fiscal Years 1987 through 2002 for a wide variety of offenses. 

The Commission’s 2003 report on downward departures from the guidelines contains 

additional analyses of trends in guideline sentencing from 1991 through 2001.249 These 

data do not take into account, however, three later-occurring, major events in federal 

sentencing: the April 2003 enactment of the PROTECT Act,250 the June 2004 Supreme 

Court decision in Blakely, and the January 2005 decision in Booker. Accordingly, this 

section begins by examining long-term trends generally but with a particular focus on the 

effects produced by the PROTECT Act and Booker.

251

Because the shift to an advisory guideline system has raised particular interest in 

how much weight judges would afford the guidelines and how frequently they would 

continue to sentence within the guideline range, this section begins with an examination 

of trends in within-range and out-of-range sentences. It then discusses trends in the use 

of probation and alternatives to prison and in the length of prison sentences imposed. 

Changes in the factors that determine whether a within-range or out-of-range sentence 

was imposed are discussed, along with factors that affect changes in sentence severity. 

Customarily, the Commission reports data by fiscal year, which runs from 

October 1 through September 30. The Commission concluded, however, that use of 

fiscal year data in this report generally would not lend itself to meaningful analysis. As 

discussed earlier, the Commission used data for the analysis in this report from 3 time 

periods: pre-PROTECT Act, post-PROTECT Act, and post-Booker. Most analyses in 

this chapter compare data from these 3 time periods. When appropriate, some analyses 

may use the Commission’s fiscal year data, as reported in the Commission’s Annual 

Reports and Sourcebooks, and these data will be identified when used. 

When conducting statistical analysis of small numbers of cases, extreme values in 

either direction will tend to have an undue impact on averages, thereby skewing the 

results of the analysis. By contrast, because the median represents the mid-point, use of 

this statistic provides a more moderate measure of the central tendency of the data. It 

represents the value of the “middle” case in a category: half of the cases have values 

below the median and the other half of the cases have values above the median. This is a 

more conservative approach to the statistical analysis of a small universe of cases, 

customarily accepted by researchers. In fact, the Commission generally reports data in 

the Sourcebook in this format. Use of the average is an accepted measure of the central 

 system after Booker. See Douglas Berman, Same Old Sentencing, 27 LEGAL TIMES, Dec. 26, 2005 (stating 

that “in the wake of Booker, federal sentencing practices and outcomes have not really changed much (at 

least not yet)” and suggesting that culture influences sentencing practices more than doctrine). 248Commission FIFTEEN YEAR REVIEW, available at www.ussc.gov. 

249 Commission, 2003 DEPARTURES REPORT, available at www.ussc.gov. 250 Pub. L. No. 108–21, 117 Stat. 650. 251 The analysis in this chapter does not include assessment of the effects of Blakely on federal sentencing 

practices because of the difficulty of interpreting information received from the courts on cases sentenced 

after Blakely but before Booker. 
49

tendencies of data for larger numbers. Consequently, the average (or mean) has also been 

included in this report when the analysis involves a larger number of cases. 

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

 a. The Impact of Events Prior to the PROTECT Act 

 From Fiscal Year 1991 through Fiscal Year 2003, the Commission reported four 

major types of sentences in its Annual Reports and Sourcebooks throughout the 

guidelines era:252 (1) within-range sentences, (2) upward departures from the withinrange sentence, (3) departures from the within-range sentence under USSG §5K1.1 for 

providing substantial assistance in the prosecution of other persons, and (4) other 

downward departures from the within-range sentence. These latter could be based on 

mitigating circumstances identified by the judge or agreed to by the parties in a plea 

agreement. Figure 1 shows quarterly rates, from Fiscal Year 1991 through Fiscal Year 

2003, of these four major types of sentences. Vertical lines on Figure 1 show the 

occurrence of historic events that were expected to have, or appear to have had, an effect 

on rates of imposition of within-range sentences. In interpreting the data in Figure 1, it 

should be noted that the Commission’s methods for distinguishing government-sponsored 

from other downward departures were refined beginning in Fiscal Year 2003. The rates 

for fiscal years before 2003 were calculated by combining several reported reasons for 

departure that indicated government sponsorship.253 Subsequently, plea agreements and 

the new Statement of Reasons form were scrutinized to more accurately identify 

government-sponsored departures. 

Examination of the historical data illustrated in Figure 1 reveals a series of 

gradual, long-term trends. Notably, the data illustrated in Figure 1 do not indicate 

substantial changes in sentencing rates at previous points when the law governing 

departures was changed. For example, amendment 508, which authorized departures 

based on “combination of . . . characteristics or circumstances”254 took effect November 

1994. The rates of downward departures, as illustrated by the green line on Figure 1, did 

not sharply increase after that date. Indeed, the data show little, if any, effect of the 

amendment on departure rates.255 

The data reflect a similar response to the Supreme Court’s decision in June 1996 

in Koon v. United States.256 The decision established an abuse-of-discretion standard for 

review of guideline departures. Although downward departures increased slightly after 

Koon, the increase was gradual rather than abrupt. Moreover, the increase appears to be 

 

252 These data are contained in U.S. Sentencing Commission annual datafiles and are available from the 

University of Michigan’s website at www.icpsr.umich.edu/nacjd/archive.html. 253 See 2003 DEPARTURES REPORT, footnote 130. 254 Guidelines Manual, App. C, amend. 508. 255 Restrictive appellate decisions also may have had an impact on departure rates at this time. See e.g., 

United States v. Dyce, 91 F.3d 1462 (D.C. Cir. 1996) (reversing departure based on the “totality of 

circumstances” when none of the factors cited by the district court alone could serve as a basis for 

departure). 

256 518 U.S. 81 (1996). 
50

continuing a long-term trend that pre-dated Koon and was likely based on a variety of 

factors.257

 The increase in downward departures from 1991 until the mid-1990s was most 

pronounced with respect to substantial assistance departures under USSG §5K1.1258 and 

then became more evident in other grounds for departure as USSG §5K1.1 rates 

stabilized and then began a gradual decline. Except for some shifting between 2000 and 

2002, rates of imposition of USSG §5K1.1 departures always were higher than other 

departures. For most of the 1990s, they were markedly higher. The long-term trend 

toward higher rates of imposition of other downward departures began to reverse itself in 

2002. 

 

257 Mark T. Bailey, Feeney’s Folly: Why Appellate Courts Should Review Departures from the Federal 

Sentencing Guidelines with Deference, 90 IOWA L. REV. 269 (2004)(noting that the government rarely 

appealed downward departures after Koon but was highly successful when it did, and arguing that Koon

had little effect on departure rates). 

258 Guidelines Manual USSG §5K1.1 provides that “Upon motion of the government stating that the 

defendant has provided substantial assistance in the investigation or prosecution of another person who has 

committed an offense, the court may depart from the guidelines.”
51

0

102030405060708090

Figure 1

Quarterly Data for Within-Range and Out-of-Range Sentences

FY1991-FY2003

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

Within-Range

§5K1.1 Departures

Other Downward Departures

Upward Departures

Percent of Cases

11/94 

Amendment 508

6/96 

Koon

P

FY91 FY92 FY93 FY94 FY95 FY96 FY97 FY98 FY99 FY00 FY01 
52

 b. The PROTECT Act 

In 2003 Congress expressed growing concern259 that the rate of downward 

departures was too great to control crime and eliminate unwarranted sentencing disparity, 

particularly in sex offenses against children.260 The PROTECT Act made significant 

changes to the federal law of sentencing.261 In particular, the PROTECT Act re-instituted 

a de novo standard of appellate review for departures, thereby undoing the abuse of 

discretion standard of review established by Koon, and limited the district court’s 

discretion to identify new grounds for departure on remand. It also directed the 

Commission to amend the guidelines “to ensure that the incidence of downward 

departures are substantially reduced” and prohibited the Commission from creating new 

grounds for downward departures for 2 years.262

Although Congress sought to reduce the incidence of downward departures with 

the PROTECT Act, it also sanctioned the use of government-sponsored downward 

departures for “fast track” reasons. In the years prior to the PROTECT Act, prosecutors 

had developed so-called “fast track” programs in districts with heavy immigration and 

drug trafficking caseloads. Under these programs, offenders who enter into plea 

agreements in a timely fashion and waive certain procedural rights—for example, pretrial discovery or deportation hearings—obtain more favorable sentences. The programs 

had been created on a more-or-less ad hoc basis, with varying degrees of formality. With 

the PROTECT Act, Congress sought to standardize these programs by authorizing the 

Department of Justice to certify “Early Disposition Programs” (“EDP”) in certain 

districts. The PROTECT Act directed the Commission to authorize a departure of up to 

four offense levels for offenders whom the government certified met the criteria for such 

programs. The newly-authorized government-sponsored departure was added to the 

Guidelines Manual at USSG §5K3.1 effective October 27, 2003.263

 

259 Those concerns had been the subject of an earlier Congressional hearing. See Oversight of the U.S. 

Sentencing Commission: Are the Guidelines Being Followed?: Hearing Before the Subcommittee on 

Criminal Justice Oversight of the Senate Judiciary Committee, 106th Cong., 2nd Sess. (2000). 

260Representative Tom Feeney, Reaffirming the 1984 Sentencing Reforms, 27 HAMLINE L. REV. 383 

(2004)(arguing that since Koon some judges had “systematically crafted ways to circumvent the Sentencing 

Guidelines and substitute their judgment for that of Congress and the Federal Sentencing Commission.” p. 

383); 149 CONG. REC. H2424 (daily ed. March 27, 2003) (statement of Representative Feeney) (arguing 

that adoption of the “Feeney Amendment” would provide a deterrent effect). 261For history and description of the PROTECT Act and the responses of the Department of Justice, the 

Sentencing Commission, and certain members of Congress and the Judiciary see David P. Mason, Barking 

Up the Wrong Tree: The Misplaced Furor over the Feeney Amendment as a Threat to Judicial 

Independence, 46 WILLIAM AND MARY L REV. 731 (2004); Noeelle Tsigounis Valentine, An Exploration of 

the Feeney Amendment: The Legislation that Prompted the Supreme Court to Undo Twenty Years of 

Sentencing Reform, 55 SYRACUSE L. REV. 619 (2005). 262 PROTECT Act, Pub. L. No. 108-21 § 401(m)(2)(a), 2003 U.S.C.C.A.N. (117 Stat.) 650, 675. 263 Guidelines Manual, App. C, amend. 651. The legislation and amendment are described in Michael M. 

O’Hear, Localization and Transparency in Sentencing: Reflections on the New Early Disposition 

Departure, 27 HAMLINE L. REV. 357 (2004). 
53

These developments, among others,264 alerted both the courts and the Commission 

to the need more carefully to distinguish between downward departures that were 

initiated, encouraged, or at least tacitly approved by the prosecution from those that were 

initiated by the court. In response, the Judicial Conference of the United States, through 

the Administrative Office of the United States Courts, worked closely with the 

Commission to modify the form that judges use to report the reasons for imposing a 

sentence. The modified Statement of Reasons form (form AO245B (Rev. 12/03)) more 

clearly differentiated among different types of downward departure. 

Further, the Commission, in its 2003 Departures Report, began to further 

distinguish government-sponsored downward departures from other downward 

departures. In addition to departures under USSG §5K1.1 for substantial assistance and 

departures under USSG §5K3.1 for the use of early disposition programs, the 

Commission included in this new category other government-initiated downward 

departures that were made for reasons such as “pursuant to a plea agreement, 

“deportation,” and “savings to government.”265 

Figure 2 uses this new distinction between government-sponsored and other 

downward departures to illustrate quarterly rates of imposition of within-range and outof-range sentences from October 2001 through December 2005. Figure 2 includes data 

from the date the PROTECT Act was signed into law until the decision in Booker, and 

approximately one year of data following that decision, with the exception of the 6 

months between the Blakely decision (June 24, 2004) and Booker on January 12, 2005. 

The Commission excluded post-Blakely information it received from the courts because, 

as more fully described in Chapter 1, the Commission could not rely upon the assumption 

that the guidelines had been uniformly applied due to a split of opinions about Blakely’s 

applicability to the federal sentencing guidelines, resulting in inconsistent approaches to 

sentencing. Figure 3 illustrates the rates of sentences in conformance with the guidelines, 

using the same data depicted in Figure 2. 

 The differentiation initiated in the documentation in 2003 between governmentsponsored and other downward departures reveals that a very large portion of belowrange sentences were, and still are, initiated or approved by the government. For all of 

the years shown in Figure 2, the rate of imposition of government-sponsored departures 

was consistently higher than the other categories. Further, the rate of governmentsponsored downward departures in the first two years depicted remains relatively 

constant, displaying only a slight decrease prior to the PROTECT Act. In contrast, the 

rate of imposition of other downward departures remained relatively steady from the 

beginning of Fiscal Year 2002, declining sharply in the period preceding the decision in 

Booker. 

 

264 See U.S. General Accounting Office, Federal Drug Offenses: Departures from Sentencing Guidelines 

and Mandatory Minimum Sentences Fiscal Years 1999-2001 (Oct. 2003). 265 The Commission’s methods for distinguishing government-sponsored from other downward departures 

were refined beginning in Fiscal Year 2003. In Figures 2 and 3, the rates for fiscal years before 2003 were 

calculated by combining several reported reasons for departure that indicated government sponsorship. (See

2003 DEPARTURES REPORT). In later years, plea agreements and the new Statement of Reasons form were 

scrutinized to more accurately identify government-sponsored departures. 
54

 

The downward trend in other downward departures beginning prior to the 

PROTECT Act and continuing in the quarters following it, settled in at between 4.9 and 

5.5 percent in Fiscal Year 2004. The rate of imposition of government-sponsored 

downward departures showed little change and was about four times greater than nongovernment-sponsored departures during this period. That rate ranged from 21.2 to 22.4 

percent of all cases. 

Quantifying the PROTECT Act’s effect on non-government-sponsored downward 

departures is difficult for several reasons. The date of the PROTECT Act is shown on 

Figure 1 with the line at the quarter containing April 2003. While downward departure 

rates decreased after that date, to some extent they may have been continuing the trend 

that began some time before. In addition, the changes created by the PROTECT Act did 

not take place all at once. Some of the restrictions on downward departures took effect 

upon signing of the PROTECT Act, while Commission-developed guideline amendments 

were not effective until the end of October 2003. Many changes could not immediately 

apply to all cases sentenced after the PROTECT Act or effective date of the guideline 

amendments due to ex post facto considerations.266 Whatever their precise contributions, 

the combination of the various aspects of the PROTECT Act and the factors accounting 

for the pre-existing trend contributed to a reduction of non-government-sponsored 

downward departures to their lowest rates since the early 1990s. 

 

266 The ex post facto clause in Article I, § 9 of the United States Constitution has been held to require that 

cases be sentenced under the guidelines in effect at the time the offense was committed, not sentenced, if 

changes occurring after the offense increase the severity of the applicable sentence. See Guidelines Manual 

§1B1.11 (2005). 
55

0

20406080

100

FY2001 FY2002 FY2003 FY2004 P

Bo

Figure 2

Quarterly Data for Within-Range and Out-of-Range Sentences

FY2001 – Post-Booker

Blakely

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

Within-RangeGovernment Sponsored

Below-Range

Below-Range

Above-Range

Percent of Cases

4/03

PROTECT Act
56

0

20406080

100

FY2001 FY2002 FY2003 FY2004 P

Bo

Figure 3

Quarterly Data for Within-Range/Government and Out-of-Range Sente

FY2001 – Post-Booker

Blakely

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

Below-Range

Above-Range

Percent of Cases

Within-Range/Government Sponsored

4/03

PROTECT Act
57

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

As has been discussed in Chapter 3 of this report, the nature of below-range 

sentences changed in Booker’s wake. To respond to the change, the Commission 

significantly revised its procedures for collecting and reporting sentences relative to the 

applicable guideline range. Because of the broader sentencing authority created by 

Booker, guideline downward departures no longer are the single mechanism by which 

courts can fashion below-range sentences when appropriate. In response, the Judicial 

Conference, through the Administrative Office of the United States Courts, after 

consulting with the Commission and others, modified the Statement of Reasons form 

(form AO245B 06/05) more clearly to differentiate between downward departures made 

under guideline departure authority and other below-range sentences (i.e., “variances”). 

Before the changes to the Statement of Reasons form took effect, the Commission 

revised its data coding protocols to reflect the new sentencing patterns and documentation 

that emerged in the Booker era with respect to the imposition of below-range sentences 

using Booker rather than or in addition to guideline departures.267 The latest revision to 

the Statement of Reasons form, and the ensuing data collection and reporting changes, 

initiated a widespread Commission outreach and training program designed to introduce 

the new Statement of Reasons form and to provide in-depth explanations of how the 

Commission extracts its data from the Statement of Reasons and other court documents. 

This training initiative is aimed, in part, at producing the most accurate and complete data 

possible in the post-Booker era. As of the date of this report, the Commission has 

conducted training sessions in 61 of the 94 federal judicial districts. Sentencings in these 

61 districts account for 75.5 percent of the post-Booker cases analyzed for this report. 

As is illustrated in Figure 2, the majority of federal cases continue to be sentenced 

in conformance with the sentencing guidelines. National data show that when withinrange sentences and government-sponsored, below-range sentences are combined, the 

rate of sentencing in conformance with the sentencing guidelines is 85.9 percent. This 

conformance rate remained stable throughout the year that followed Booker. This 

compares to a conformance rate of 90.6 percent pre-PROTECT Act and a conformance 

rate of 93.7 percent post-PROTECT Act. Changes in the rates of imposition of withinrange and non-government-sponsored, below-range sentences occur more suddenly 

immediately following Booker than following any previous change in sentencing law 

during the guidelines era. The post-Booker data demonstrate a decrease in the rate of 

imposition of within-range sentences of 8.9 percentage points from the end of the postPROTECT Act period and a concomitant 6.7 percentage point increase in the rate of 

imposition of non-government-sponsored, below-range sentences. 268

 

267 Methodologies associated with the revised collection and reporting of data post-Booker are more 

thoroughly detailed in Appendix B. Below-range categories are described in the discussion of nongovernment-sponsored, below-range sentences later in this chapter. 

268 Rates of imposition of within-range and out-of-range sentences for offenses covered by the 5 most 

frequently applied guidelines show trends similar to the overall trends presented herein (See Appendix E1), with the exception of trends indicated for immigration offenses sentenced under USSG §§2L1.1 and 
58

The rate of imposition of above-range sentences approximately doubled to a rate 

of 1.6 percent. Multivariate analysis undertaken for this report confirmed that the 

likelihood of receiving an above-range sentence is higher post-Booker than pre-Booker. 

Specifically, offenders are 20.7 percent more likely post-Booker than pre-Booker to 

receive an above-range sentence. 

The rate of government-sponsored, below-range sentences has increased slightly 

after Booker to a rate of 23.7 percent, with substantial assistance departures accounting 

for 14.4 percent, Early Disposition Program departures accounting for 6.7 percent, and 

other government-sponsored downward departures accounting for 2.6 percent. 

Government-sponsored, below-range sentences continue to account for the highest 

percentage of below-range sentences post-Booker. Most of the increase in the rate of 

imposition of government-sponsored, below-range sentences is attributable to nonsubstantial assistance reasons. Specifically, results of multivariate analysis undertaken 

for this report demonstrate that the likelihood of receiving a substantial assistance 

departure is lower post-Booker than pre-Booker. Offenders post-Booker have a greater 

likelihood of receiving other below-range sentences, whether initiated by the government 

(excluding substantial assistance) or by the court. 

The likelihood of obtaining a government-initiated, downward departure 

(excluding substantial assistance) is 61.4 percent greater post-Booker than pre-Booker. 

Offenders in the post-Booker period are 6.2 percent less likely than those in the PostPROTECT period to receive a substantial assistance departure. 

Figure 4 charts the monthly rates of imposition of within-range and out-of- range 

sentences for the year following Booker. As illustrated, immediately after the Booker

decision, the rate of imposition of non-government-sponsored, below-range sentences 

increased to 14.6 percent. The rate dropped back in the following months, varying 

between 9.6 and 13.8 percent. Part of these changes may be due to other changes 

occurring over the same time period, such as changes in the types of cases being 

sentenced. Nevertheless, Booker likely had some independent impact. 

Figure 5 illustrates the rates of sentences in conformance with the guidelines, 

using the same data depicted in Figure 4. Using the data illustrated in Figures 4 and 5, 

Table 1 provides the percentages of within- range and out-of-range sentence. 

Despite the initial increase in the imposition of non-government-sponsored, 

below-range sentences, a relatively stable month-to-month trend was immediately 

established and has continued. Some commentators have expressed surprise that judges 

 2L1.2. For those guidelines, there was an overall decrease in the imposition of non-government-sponsored, 

below-range sentences accompanied by an increase in the imposition of government-sponsored, belowrange sentences that employed early disposition programs under USSG §5K3.1. 
59

have continued to sentence within-range over 60 percent of the time.269 Those who 

predict considerable long-term stability in the system may also be intrigued by what 

appears, upon visual inspection of Figure 4, to be a possible beginning of an upward 

trend in the rate of imposition of within-range sentences and a concomitant decrease in 

the rate of imposition of non-government sponsored, below-ranges sentences. Drawing 

conclusions from these data should be done cautiously. At this time, the number of 

months is still too small to establish the certainty of any emerging trend, and the large 

number of continuances granted in the Blakely interim period make the cases sentenced 

in the first few months following Booker a sample potentially biased in unknown ways.270 

The Commission will continue to monitor this trend, especially as the appellate courts 

give substance to “reasonableness” review. 

 

269 Douglas Berman, Same Old Sentencing, 27 LEGAL TIMES, December 26, 2005 (stating that “in the wake 

of Booker, federal sentencing practices and outcomes have not really changed much (at least not yet)” and 

suggesting that culture influences sentencing practices more than doctrine). 270 Commission, 2004 Survey Results/Preliminary Findings on Blakely Effect, http://www.ussc.gov. 
60

0

20406080

100

Jan-05 Feb Mar Apr May Jun Jul Aug Sept Oct Nov 

Figure 4

Monthly Data for Within-Range and Out-of-Range Sentences Post-Boo

January 12, 2005-January 11, 2006

See Appendix B for information regarding the determination of sentencing categories.Cases sentenced on or before January 11, 2006 were included in this figure. As of the data extraction date for the post-Booker datafile, the Comm

coded and edited 1,300 cases sentenced between January 1, 2006 and January, 11, 2006.SOURCE: U.S. Sentencing Commission, 2006 Booker Report Datafiles.

Within-RangeGovernment Sponsored

Below-Range

Below-RangeAbove-Range

Percent of Cases
61

0

20406080

100

Jan-05 Feb Mar Apr May Jun Jul Aug Sept Oct Nov 

Figure 5

Monthly Data for Within-Range/Government Sponsored

and Out-of-Range Sentences Post-Booker

January 12, 2005-January 11, 2006

See Appendix B for information regarding the determination of sentencing categories.Cases sentenced on or before January 11, 2006 were included in this figure. As of the data extraction date for the post-Booker datafile, the Comm

coded and edited 1,300 cases sentenced between January 1, 2006 and January, 11, 2006.SOURCE: U.S. Sentencing Commission, 2006 Booker Report Datafiles.

Below-RangeAbove-Range

Percent of Cases

Within-Range/Government Sponsored
62

Table 1 

National Comparison of Sentence Imposed and Position Relative to the Guideline Range 

Post-Booker 

 n % 

TOTAL 65,368 100.0

Within-Guideline Range 40,645 62.2 

 

Departure Above Guideline Range 175 0.3 

Upward Departure from the Guideline Range271 127 0.2 

Upward Departure with Booker/18 U.S.C. § 3553272 48 0.1 

Otherwise Above the Guideline Range 859 1.3 

Above the Range with Booker/18 U.S.C. § 3553273 426 0.6 

All Remaining Cases Above the Guideline Range274 433 0.7 

 

Government Sponsored Below-Range 15,500 23.7 

§5K1.1 Substantial Assistance Departure 9,402 14.4 

§5K3.1 Early Disposition Program Departure 4,366 6.7 

Government-Sponsored Departure275 1,732 2.6 

 

Departures Below Guideline Range 2,101 3.2 

Downward Departure from the Guideline Range 1,456 2.2 

Downward Departure with Booker/18 U.S.C. § 3553 645 1.0 

Otherwise Below the Guideline Range 6,088 9.3 

Below the Range with Booker/18 U.S.C. § 3553 3,850 5.9 

All Remaining Cases Below the Guideline Range 2,238 3.4 

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

 

271 All cases with imposed sentences outside of the guideline range and citing reasons for departure limited 

to, and affirmatively and specifically identified in the provisions, policy statements, or commentary of the 

federal Guidelines Manual. The same classification applies to “Downward Departure from the Guideline 

Range” category. 

272 All cases with imposed sentences outside of the guideline range citing reasons for departure limited to, 

and affirmatively and specifically identified in the provisions, policy statements, or commentary of the 

federal Guidelines Manual, and additionally mentioning either U.S. v. Booker, 18 U.S.C. § 3553, or related 

factors as a reason for a sentence outside of the guideline range. The same classification applies to the 

“Downward Departure with Booker/18 U.S.C. § 3553” category. 273 All cases with imposed sentences outside of the guideline range mentioning only U.S. v. Booker, 18 

U.S.C. § 3553, or related factors as a reason for a sentence outside of the guideline range. The same 

classification applies to the “Below the Range with Booker /18 U.S.C. § 3553” category. 274 Cases with imposed sentences outside of the guideline range that do not fall into the three previous 

categories. Based on the information submitted on the Statement of Reasons, these cases cannot be 

classified as a guideline departure, or as a sentence outside the guideline range pursuant to Booker/18 

U.S.C. § 3553. This category includes cases which cite departure reasons that are not affirmatively and 

specifically identified in the provisions, policy statements, or commentary of the federal Guidelines Manual 

and cases which do not provide any reason for the sentence outside of the guideline range. The same 

classification applies to the “All Remaining Cases Below the Guideline Range” category. 

275 Cases with a reason for departure indicating that the prosecution initiates, proposes, or stipulates to a 

sentence outside of the guideline range, either pursuant to a plea agreement or as part of a non-plea 

negotiation with the defendant. 
63

3. Changes in the Extent that Below-Range Sentences 

Fall below the Range 

One of the questions that the Commission sought to answer in this report is 

whether the magnitude of the reductions granted for below-range sentences after Booker 

has changed. Even though the data evidences an increase in the rates of imposition of 

below-range sentences, the overall impact of this increased rate may be affected 

somewhat by the extent to which sentences are below range. The data indicate that while 

the rates of imposition of below-range sentences have increased, the extent of the 

reductions being granted do not differ from the recommended guideline sentence by a 

greater degree today than they did in earlier periods. Figure 6 compares the magnitude 

of reductions below the applicable guideline range in the three relevant time periods: prePROTECT Act, post-PROTECT Act and post-Booker. In order to display the extent of 

the difference among non-government-sponsored, below-range sentences during three 

time periods, the Commission classified the reductions into one of ten percentile 

categories, listed on the horizontal axis of the grid (e.g, 0-9 percent, 10-19 percent, etc.) 

A below-range sentence is placed in the category that corresponds to its percentage below 

the guideline minimum. The vertical axis displays the percent of cases falling in each of 

the ten percentile categories. For example, Figure 6 demonstrates that the proportion of 

cases sentenced between zero and 9 percent below the applicable guideline minimum was 

5.7 percent pre-PROTECT Act, 6.9 percent post-PROTECT Act, and 8.6 percent postBooker. Sentences in this first category were less than 10 percent below the 

recommended guideline range. 

The 100 percent category represents instances in which the court imposed a 

sentence of probation rather than a term of imprisonment. Among the cases sentenced 

below-range post-Booker, courts sentenced a smaller portion to probation in lieu of 

imprisonment than they did prior to the Booker decision. Figure 6 shows a decline in the 

percentage of below-range probationary sentences from 14.5 percent pre-PROTECT Act, 

to 13.3 percent post-PROTECT Act, to 10.3 percent post-Booker. 

In general, sentence reductions in the post-Booker era tend to be distributed more 

heavily among the smaller reductions than among the large ones. As Figure 6 indicates, 

the vast majority of below-range sentences in all three time periods show sentence 

reductions between 10 to 29 percent below the guideline minimum. Notably, large 

reductions below the minimum of the within-range sentence (i.e., reductions of the 

within-range sentence by greater than 59 percent) have decreased in the post-Booker time 

period. Overall, the courts are imposing below-range sentences more often but are not 

differing from the guideline sentence by a greater extent today compared to the two 

previous time periods. 
64

8.1

1.5

2.6

4.7

6.4

7.8

8.3

11.9

16.5

20.0

5.7

1.

2.3

7.8

7.0

12.0

6.9

3.6

5.2

17.5

22.8

1.6

3.0

4.8

8.4

14.2

19.2

20.5

8.6

05

10152025

0-9% 10-19% 20-29% 30-39% 40-49% 50-59% 60-69% 70-79% 80-89% 90-9

Pre-PROTECT Act Post-PROTECT Act 

Figure 6

Extent of Non-Government Sponsored Below-Range Sentences 

Pre-PROTECT Act, Post-PROTECT Act and Post-Booker

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

Percent Below the Guideline Range
65

As a complement to the analysis illustrated in Figure 6, the Commission 

examined below–range sentences to determine the median percentage decrease and 

median months of decrease from the guideline minimum across the 3 time periods for all 

cases and for the five most commonly cited guidelines.276 Table 2 shows the results of 

this analysis. The universe of cases for some categories was relatively small, as can be 

seen in the columns labeled “n” on the table. The analysis revealed that there is little 

variation between most of the guidelines across the 3 time periods. The median 

percentages of decreases remain relatively constant during each time period (see Table 2, 

columns labeled Med %), as do the absolute months of sentence reductions, shown as 

median months below the guideline minimum (see Table 2, columns labeled Med Mths). 

For example, the extent of the reduction for theft and fraud offenses under USSG 

§2B1.1 has remained relatively constant. The median percentage decreases from the 

guideline minimum remain at approximately 100 percent. This indicates that half of the 

offenders receiving below-range sentences under this guideline are sentenced to 

probation. The median reduction below the guideline minimum consistently is about 9 

months, which indicates that most of these theft and fraud cases involve relatively low 

guideline minimums. 

The pattern for immigration offenses is slightly different. Alien smuggling 

offenses sentenced under USSG §2L1.1 and illegal reentry offenses sentenced under 

USSG §2L1.2 show a decrease in median percentage reduction from the minimum of the 

within-range sentence following the PROTECT Act. The median percentage reduction 

then increased post-Booker, essentially to pre-PROTECT Act rates. After a postPROTECT Act decline, USSG §2L1.1 reductions have increased to a median percentage 

below the guideline minimum of 50 percent for downward departures and 43.7 percent 

for other non-government-sponsored, below-range sentences. Similarly, USSG §2L1.2 

sentence reductions declined following the PROTECT Act and returned to median 

percentages below the guideline minimum of 25 percent for downward departures and 

28.6 percent for other non-government-sponsored, below-range sentences. The absolute 

months of sentence reductions, shown as median months below the guideline minimum, 

have not changed substantially, about 6 months and 11 months, for USSG §2L1.1 and 

USSG §2L1.2, respectively. 

The pattern for drug trafficking offenses under USSG §2D1.1, also is slightly 

different. As Table 2 indicates, for these offenses, the median percentage reduction from 

the minimum of the within-range sentence continued to decrease post-Booker. 

 

276 These five guidelines, the theft and fraud guideline (USSG §2B1.1), the drug guideline (USSG §2D1.1), 

the firearms guideline (USSG §2K2.1), the alien smuggling guideline (USSG §2L1.1), and the immigration 

illegal reentry guideline (USSG §2L1.2) were selected for analysis because, combined, they consistently 

account for the overwhelming majority of the total federal caseload (69.4% pre-PROTECT Act, 71.4% 

post-PROTECT Act, and 73.8% post-Booker). 
66

Table 2 

Degree of Decrease Below Guideline Minimum 

for All Cases and Selected Sentencing Guidelines 

 Post-Booker 

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

Pre-PROTECT Act 

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

Post-PROTECT Act 

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

Downward 

Departure 

n 

Med

Mths 

Med 

% n 

Med 

Mths 

Med 

% n 

Med

Mths 

Med 

% n 

Med 

Mths 

All 

Guidelines 2,945 12 40.0 3,714 12 35.1 1,977 12 34.8 5,611 12 

Theft and Fraud 

§2B1.1277 217 9 100.0 398 10 100.0 222 10 99.7 673 8 

Drug Trafficking 

§2D1.1278 967 16 34.1 1,179 16 30.0 664 17 27.7 2,068 18 

Firearms 

§2K2.1 307 12 40.0 438 13 39.0 255 10 35.3 692 12 

Alien Smuggling 

§2L1.1 153 7 44.4 152 6 33.2 84 6 50.0 180 6 

Illegal Reentry 

§2L1.2 565 11 28.3 657 9 21.7 315 10 25.0 627 11 

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

277 Includes amendment years 2001 and later. 278 Includes offenders under both USSG §§2D1.1 and 2D1.2. 
67

Regardless of whether courts use guideline downward departures or cite Booker 

to impose below-range sentences, the extent of the reductions is essentially the same. 

This is illustrated in Figure 7. Using post-Booker data, Figure 7 compares the extent of 

guideline downward departures to the extent of below-range sentences imposed under 

Booker. This comparison indicates that there is little difference in the magnitude to 

which below-range sentences fall below the guideline minimum, whether achieved 

through guideline departure reasons or through the use of Booker.

279 For example, 6.1 

percent of downward departures and 9.4 percent of Booker below-range sentences fell 

between zero and nine percent below the applicable guideline minimum. Further, about 

half of the reductions in either category (48.3 percent of both downward departures and 

Booker below-range sentences) had a median percentage decrease below the guideline 

minimum of 29 percent or less.280 

 

279 Descriptions of the various below-range categories are set forth in Appendix B. 280 In general, a 25% sentence decrease equates to a 2-level offense level decrease on the Sentencing Table. 
68

1.7 1.5

3.7

5.2

7.6 7.6

12.5

19.6

22.6

6.1

1.6

8.3 8.7

14.8

9.4

2.8

4.7

19.1

19.8

05

10152025

0-9% 10-19% 20-29% 30-39% 40-49% 50-59% 60-69% 70-79% 80-89% 90-9

Downward Departures B

Percent of Cases in Each Category

Figure 7

Extent of Downward Departures Compared to 

Booker Below-Range Sentences 

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

Percent Below the Guideline Range
69

4. Changes in Sentence Length and the Use of Alternatives to 

Imprisonment 

Despite the increase in the rate of imposition below-range sentences in the postBooker era, the average length of sentences imposed actually has increased in the 

caseload taken as a whole. More specifically, average sentences have increased for all 

major offense types except for certain immigration offenses.281 Moreover, several other 

indicators of sentencing practices suggest continuity in the use of imprisonment instead 

of probation or alternatives to imprisonment. This section explores this overall continuity 

and how it is possible that sentence lengths have increased when the rate of imposition of 

below-range sentences also has increased. 

a. Changes in Average Recommended and Imposed 

Sentence Lengths 

Beginning in Fiscal Year 2000 and continuing through 2002, the length of 

sentences imposed averaged between 44 and 47 months and remained fairly constant. By 

Fiscal Year 2003, however, a trend toward increasing severity in the length of sentences 

imposed began to emerge and accelerated in the months preceding the gap representing 

the Blakely period. Figure 8 shows the average length of sentence imposed for each 

quarter beginning in Fiscal Year 2000 and continuing through the first year of the postBooker era. Figure 8 also illustrates the average applicable guideline minimum for the 

same time period. The increased length in the average sentence is also apparent in Table 

3, which shows the average sentence length for offenses covered by all guidelines 

combined and for offenses covered by the 5 most frequently applied guidelines. This 

trend toward lengthier prison sentences has continued after Booker. As shown in both 

Figure 8 and Table 3, sentence lengths post-Booker increased for the caseload overall.282 

 

281 For illegal reentry offenses sentenced under USSG §2L1.2, the average length of the sentence 

recommended under the guidelines and the average length of the sentence imposed both have declined over 

time beginning, as indicated in Figure E-6, roughly in 2002 and continuing post-Booker. Factors that may 

account for the continuing decline in sentence length in illegal reentry cases include changes in the 

guideline and use of EDP departures. For an analysis of these cases, see Commission, INTERIM STAFF 

REPORT ON IMMIGRATION REFORM AND THE FEDERAL SENTENCING GUIDELINES (Jan. 20, 2006), 

http://www.ussc.gov/publicat/imigration_06.pdf. 

282See also Appendix E-2 through E-6 which contains figures, showing similar trends with respect to 

sentence length for offenses covered by the five most frequently applied guidelines. 
70

Figure 8

Average Sentence Imposed and Average Guideline Minimum 

Quarterly Data for All Cases 

FY2000 – Post-Booker

0

20406080

FY2000 FY2001 FY2002 FY2003 FY2004 B

Average SentenceAverage Guideline Minimum

Cases with guideline minimums of life or probation (i.e., sentence lengths of zero months) were included in the sentence average computations months respectively. Guideline minimums account for applicable statutory mandatory penalties. Only cases with a single guideline computation Cases sentenced on or before December 31, 2005 (last full quarter of post-Booker data). 

SOURCE: U.S. Sentencing Commission 2000-2003 Datafiles, USSCFY2000-USSCFY2003. 2006 Booker Report Datafiles.

Average (Mean)

Blakely
71

Table 3283

Sentence Type and Length 

for All Cases and Selected Sentencing Guidelines 

Pre-PROTECT Act 

(10/1/02-4/30/03) n

Percent

Prison

Average 

Sentence 

Median 

Sentence

All Guidelines 40,678 85.2 56 33

Theft and Fraud (§2B1.1)284 4,002 53.4 16 12

Drug Trafficking (§2D1.1)285 14,619 95.7 80 60

Firearms (§2K2.1) 3,175 91.6 60 40

Alien Smuggling (§2L1.1) 1,349 88.9 16 12

Illegal Reentry (§2L1.2) 5,147 99.6 29 24

Post-PROTECT Act 

(5/1/03-6/24/04) n

Percent

Prison

Average 

Sentence 

Median 

Sentence

All Guidelines 80,782 85.9 57 33

Theft and Fraud (§2B1.1 ) 8,622 56.2 20 12

Drug Trafficking (§2D1.1) 27,880 96.6 83 60

Firearms (§2K2.1) 7,460 92.2 61 41

Alien Smuggling (§2L1.1) 2,603 91.5 17 15

Illegal Reentry (§2L1.2) 11,210 99.8 29 24

Post-Booker 

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

Percent

Prison

Average 

Sentence 

Median 

Sentence

All Guidelines 67,417 88.6 58 36

Theft and Fraud (§2B1.1) 6,723 61.6 23 15

Drug Trafficking (§2D1.1) 23,203 96.7 85 60

Firearms (§2K2.1) 6,474 92.8 60 41

Alien Smuggling (§2L1.1) 3,078 90.9 17 14

Illegal Reentry (§2L1.2) 10,291 99.5 27 24

The Commission’s post-Booker data evidence an increase in average sentence 

length, despite an increase in the rate of imposition of below-range sentences. The cause 

of this apparent inconsistency is a matter of interest to participants in the criminal justice 

community. There are a number of reasons why average sentence lengths can increase 

when the rate of imposition of sentences below the guideline range also increases. 

 

283 Excludes cases missing information on primary sentencing guideline, sentence imposed and sentence 

length. Cases with zero months of prison ordered or missing or indeterminable information were excluded. 

The information in this table does not include any time of confinement as defined in USSG §5C1.1. 

284 Includes amendment years 2001 and later. 285 Includes offenders sentenced under both USSG §§2D1.1 and USSG 2D1.2. 

SOURCE: U.S. Sentencing Commission 2006 Booker Report Datafiles. 
72

Average sentence lengths depend on both the rate of imposition of sentences outside the 

range and the extent to which they fall outside the range. 

Perhaps as important, average sentence lengths depend on the recommended 

guideline ranges for the offenses being sentenced at a given time. Social science research 

refers to the most likely sentence within the guideline range as the “presumptive 

sentence”, i.e., the sentence recommended by the guidelines and most likely to be 

imposed by the court if the sentence is within the guidelines. In the federal system, the 

presumptive sentence is assumed to be the minimum of the guideline range.286

The presumption that the minimum of the range is the most likely sentence to be 

imposed if the sentence is within-range is borne out by sentencing practices over time. In 

all three time periods analyzed for this report, approximately 60 percent of within-range 

sentences were located at the bottom of the range. Approximately 10 percent of cases 

were sentenced at the top of the range in each respective time period. Table 4 catalogues 

the position of sentences within the guideline range for all cases sentenced during the 

relevant time periods. Interestingly, there is no marked difference between the patterns 

of selecting the position of sentence in each of the three time periods. 

Table 4 

Position of Sentence Within the Guideline Range for All Cases 

Position Within 

Guideline Range 

Pre-PROTECT Act 

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

Post-PROTECT Act 

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

Post-Booker

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

Guideline 

Minimum 59.3% 60.4% 58.2%

Lower Half 

of Range 14.5% 14.2% 15.6%

Mid Point 

of Range 8.9% 9.0% 8.4%

Upper Half 

of Range 6.7% 6.5% 7.5%

Guideline 

Maximum 10.6% 10.0% 10.3%

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

 

286 A discussion of the “presumptive sentence model” may be found in Paul J. Hofer and Kevin R. 

Blackwell, What are We Learning from Multiple Regression Studies of Federal Sentencing Decisions, 

(Paper presented at the American Society of Criminology Meeting, November 9, 2001, Atlanta, GA). 

Available from the authors; Rodney L. Engen and Randy R. Gainey, Modeling the Effects of Legally 

Relevant and Extralegal Factors Under Sentencing Guidelines: The Rules Have Changed, CRIMINOLOGY

38(4): 1207 (2000). 
73

The applicable guideline minimum presented in Figure 8 therefore is also the 

presumptive sentence. There is a consistent relationship over time between the severity of 

the sentence recommended by the guidelines for an offense, i.e., the presumptive 

sentence, and the sentence imposed for that offense. The proximity of the two lines in 

Figure 8 demonstrates this relationship. This relationship partly explains why average 

sentence lengths have increased when the rate of imposition of below-range sentences 

also has increased. 

Presumptive sentences have been increasing since the middle of Fiscal Year 2003 

and have continued to do so following the decision in Booker. Presumptive sentences 

increase for a variety of reasons. Part of the increase is due to guideline and statutory 

amendments that stiffened penalties and increased the guideline range, such as those in 

the Commission’s 2001 “Economic Crime Package,” the 2002 Sarbanes-Oxley Act, 287 or 

the PROTECT Act. In addition, more serious offenses may have been brought for 

prosecution. As shown in Figure 8, the average sentences recommended by the 

guidelines have varied between 59 and 61 months since Booker. Partly because of this 

relationship between the length of the sentence recommended by the guidelines and the 

length of sentence imposed, the average sentence imposed since Booker consequently 

varies between 51 and 52 months in the caseload as a whole. 

The effect of the higher post-Booker rate of imposition of below-range sentences 

can be seen in the somewhat wider gap between the recommended and imposed 

sentences in the post-Booker era. This widening was not enough, however, to undo the 

effects of the increases in the presumptive sentence. 

b. Changes in Sentence Type 

Several other indicators of federal sentencing practices suggest continuity over 

time in the type of sentence imposed, for example, in the use of imprisonment instead of 

probation or other alternatives to imprisonment. Overall, rates in the imposition of 

particular types of sentences have remained relatively constant, and rates of 

imprisonment actually have increased somewhat, across the three time periods, indicating 

that Booker itself has not had an effect on rates of imposition of particular types of 

sentence. 

Table 3 demonstrates the Commission’s analysis of the pattern of increase for all 

cases in the proportion of offenders sentenced to prison.288 Analysis revealed that 85.2 

percent of offenders were sentenced to prison in the pre-PROTECT Act period, as 

compared to 85.9 percent post-PROTECT Act and 88.6 percent post-Booker. The 

Commission also analyzed the data to show the imprisonment rates for the 5 most 

commonly applied guidelines. (see Table 3) For example, rates of imprisonment for theft 

and fraud offenders sentenced under USSG §2B1.1 increased more than eight percentage 

 

287 Pub. L. No. 107-204, 116 Stat. 745 (2002). 288 The columns labeled “n” reflect the number of cases included in each category, “percent prison” 

indicated the number of offenders in each category sentenced to a term of imprisonment, and the average 

and median sentences imposed are also listed on Table 3. 
74

points during the 3-year time frame (53.4% pre-PROTECT Act, to 56.2% postPROTECT Act, to 61.6% post-Booker). 

There likely are two factors contributing to the increased rate of imprisonment for 

theft and fraud offenders. First, statutory and guideline penalties increased for many 

fraud offenses as a result of the Commission’s Economic Crime Package of 2001, the 

2002 Sarbanes-Oxley Act and other recent legislation. The proportion of cases sentenced 

under USSG §2B1.1 that are subject to the higher base offense level of level seven under 

that guideline increased from 0.7 percent post-PROTECT Act to 13.7 percent postBooker.

289 Second, the government may be prosecuting more serious economic crimes. 

The amount of economic loss involved in theft and fraud cases has increased. The 

median loss amounts for cases with loss amounts sufficient to trigger a sentence increase 

from the loss table in USSG §2B1.1 increased during the three time periods from $33,929 

pre-PROTECT Act, to $41,595 post-PROTECT Act, to $54,566 post-Booker.290 These 

median loss amounts depict a steady increase in offense severity. Additionally, the 

victim table at USSG §2B1.1(b)(2) is being applied at a steadily increased rate. The 

victim-related increases applied to 10.6 percent of USSG §2B1.1 cases pre-PROTECT 

Act, 13.9 percent of cases post-PROTECT Act, and 16.7 percent of cases post-Booker. 

In addition to the analysis discussed above, analysis was conducted to determine 

whether alternatives to imprisonment were being used post-Booker, in cases where 

imprisonment was mandated by the guidelines. The data indicate that, notwithstanding 

the increased sentencing discretion afforded by Booker, alternatives to imprisonment are 

not being imposed at an increased rate, particularly in regard to the most serious category 

of offenders. For all cases for which the final offense level was in Zone D of the 

Sentencing Table (requiring that, absent a below-range sentence, the minimum sentence 

term be satisfied with a sentence of imprisonment),291 the percentages of Zone D 

offenders sentenced to a term of imprisonment were 94.1 percent pre-PROTECT Act, 

95.2 percent post-PROTECT Act, and 94.5 percent post-Booker, respectively.292 

 Multivariate analysis was undertaken to assess independently whether Booker had 

any impact on the court’s decision to impose imprisonment. Since courts have increased 

discretion, including the ability to sentence offenders to non-incarceration sentences, one 

might hypothesize that the courts would impose more alternative sentences and less 

 

289 Because the base offense level of 7 was effective November 1, 2003, it is not applicable to the Fiscal 

Year 2003 pre-PROTECT Act offenders. 

290 See Guidelines Manual §2B1.1(b)(1) (2005). There also was a change in the definition of “loss” in 

USSG § 2B1.1 in 2001, but the effect on loss amounts is not clear. 

291 See Guidelines Manual §5C1.1(f) (2005). In contrast, sentence terms in Zone B and C can be satisfied 

in part with alternative confinement, and sentence terms in Zone A do not require confinement or 

imprisonment. Within any given criminal history category, the sentence terms of guideline ranges in Zone 

D have the greatest length in the sentencing table. 

292 These percentages are less than 100 percent due to departures that result in sentences in other zones of 

the Sentencing Table, all of which permit forms of punishment alternative to imprisonment. The 

Commission’s data indicate that offenders in Zones B and C are being sentenced to probationary sentences, 

rather than confinement, in 10.4 percent and 9.2 percent of these cases, respectively. This compares to PrePROTECT Act rates of 8.2 percent and 8.4 percent, respectively, and post-PROTECT Act rates of 9.0 

percent and 6.9 percent, respectively. 
75

prison only sentences. The multivariate analysis indicated that there is no statistically 

significant difference in the decision to imprison or not before and after Booker. This 

relationship holds for drug and non-drug cases. 

c. Changes in Sentence Length 

The Commission also examined the pattern of increase in the average length of 

prison sentences for all cases. Table 3 sets forth the results of that analysis. Prior to the 

PROTECT Act, the average sentence was 56 months. The average sentence in the postPROTECT Act period was 57 months, and increased to 58 months post-Booker. Table 3 

also includes average sentence lengths across the three time periods for the 5 most 

commonly applied guidelines. For most of the 5 types, the average sentence increased. 

For example, the average sentence for theft and fraud offenders sentenced under USSG 

§2B1.1 increased a total of 7 months (16 months pre-PROTECT Act, to 20 months postPROTECT Act, to 23 months post-Booker). Average sentences in illegal reentry cases 

declined post-Booker by a few months. 

 Multivariate analysis also was conducted to assess whether there are any 

differences in the factors associated with an increased or decreased sentence before and 

after Booker.

293 Table 5 shows the percentage difference pre-Booker and post-Booker in 

the association between sentence length and factors such as offense type, criminal 

history, role in the offense, and other characteristics of the case. As Table 5 indicates, 

factors associated with sentence length are essentially the same before and after Booker. 

For example, violent offenders were associated with sentences 9.5 percent lower than 

drug trafficking offenders in the post-PROTECT Act period and 10.8 percent lower 

sentences post-Booker. Only one guideline relevant factor was significant post-Booker

and not significant before. After controlling for all other factors, post-Booker offenders 

convicted of white collar offenses had sentences 9.7 percent lower than those convicted 

of drug trafficking offenses. This relationship was not statistically significant in the postPROTECT Act period. Whether an offender went to trial was statistically significant in 

the post-PROTECT Act population but was not so for the post-Booker population. PostPROTECT Act, an offender who went to trial was sentenced 10.6 percent lower than an 

offender who pled after controlling for all other factors.294 Going to trial had no 

significant effect on sentences of offenders in the post-Booker population. A discussion 

of the association of demographic factors and sentence length is discussed in Chapter 5. 

 

293 Table B-1 in Appendix B provides the results of this analysis. 

294 This seems to contradict the “trial penalty” hypothesis that has usually been put forth (Nancy King, et al. 

2005). When Process Affects Punishment Differences in Sentences After Guilty Plea, Bench Trial, and Jury 

Trial in Five Guideline States, 105 COLUM. LAW REV: 959. 
76

Table 5 

Guideline Relevant Factors Post-Booker and Post-PROTECT Act 

Post-PROTECT Act

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

Post-Booker

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

 Percent Difference Percent Difference

Offense Type (reference category is drug trafficking offenses) 

 

Violent Offense -9.5 -10.8

Sex Offense -20.5 -16.7

Other Drug Offense 367.7 132.3

Immigration Offense 43.0 39.8

White Collar Offense ns295 -9.7

Other Offenses -12.4 -16.9

Criminal History 

Criminal History Points -1.5 -0.6

Career Offender296 30.4 30.7

Armed Career Criminal ns ns

Role in the offense (reference category is no role adjustment applied) 

Mitigating Role -15.1 -18.7

Aggravating Role ns ns

Case Characteristics 

Trial -10.6 ns

18 U.S.C. § 924(c) conviction ns ns

Weapon SOC ns ns

Mandatory Minimum applied 6.0 12.4

Safety Valve -17.8 ns

 

295 Not statistically significant. 

296 For career offender, armed career criminal, and all case characteristic variables, the reference categories 

are comprised of offenders who did not receive the specified adjustment or statutory designation. The 

reference category for the trial variable is guilty plea. 
77

D. FACTORS RELIED UPON AND REASONS CITED FOR IMPOSITION OF BELOWRANGE SENTENCES

1. Factors relied upon for imposition for below-range sentences 

 

As indicated earlier in this chapter, findings thus far indicate that the most 

substantial effect of Booker on federal guideline sentences is the increased rate of 

imposition of non-government sponsored, below-range sentences, including a shift in 

fashioning these sentences from the use of guideline downward departures to general 

citations of Booker or 18 U.S.C. § 3553(a) factors. The proportion of non-governmentsponsored, below-range sentences has increased from 8.6 percent pre-PROTECT Act, to 

12.5 percent post-Booker. As classified by the Commission, post-Booker nongovernment-sponsored, below-range sentences are comprised of 3.2 percent departure 

sentences and 9.3 percent Booker or otherwise below-range sentences. 

 Multivariate analysis was conducted to determine whether any factors associated 

with the court’s decision to impose a below-range sentence changed after Booker. Most 

of the variables analyzed were significant in both time periods, and their magnitudes 

remain relatively constant. For example, post-Booker, an offender with an aggravating 

role adjustment had a 32.6 percent less likelihood of receiving a court-initiated, 

downward departure as compared to those with no role adjustment. In the postPROTECT Act period, this likelihood was 41.8 percent. 

 Four factors associated with non-government-sponsored, below-range sentences 

were shown to be statistically significant in the post-Booker period but not statistically 

significant before Booker:297 the application of a mandatory minimum sentence, criminal 

history points, career offender status, and citizenship. After Booker: (1) offenders who 

had a mandatory minimum sentence applied were 26.7 percent less likely than those 

without a mandatory minimum sentence to obtain a non-government-sponsored, belowrange sentence; (2) each criminal history point attributable to the offender decreased the 

likelihood of a non-government-sponsored, below-range sentence by 2.9 percent; (3) 

career offender status decreased the likelihood of receiving a non-government-sponsored, 

below-range sentence by 44.6 percent compared to those without career offender status; 

and (4) non-U.S. citizenship decreased the likelihood of receiving a non-governmentsponsored, below-range sentence by 11.8 percent compared to U.S. citizenship. 

 Two factors were statistically significant post-PROTECT Act but not significant 

post-Booker. The application of safety valve decreased the likelihood post-PROTECT 

Act of receiving a downward departure by 29.2 percent, and offenders over the age of 25 

had 11.1 percent greater likelihood of a below-range sentence compared with those 25 

years of age and younger. 

 

297 See Table B-2 for complete results. 
78

2. Reasons cited for imposition for below-range sentences

 In order to assess the specific circumstances that prompted courts to sentence 

below the range after Booker, the Commission examined the types and frequency of 

reasons given by the courts for the imposition of non-government-sponsored, belowrange sentences. Four post-Booker below-range categories presented separately for this 

analysis are as follows: 

• Downward Departure/Guideline Reason:298 All cases with imposed 

sentence below the range and citing reasons for departure limited to, and 

affirmatively and specifically identified in the policy statements, or 

commentary of the federal Guidelines Manual. 

• Downward Departure/Booker Reason: All cases with imposed sentence 

below the range and citing reasons for departure limited to, and 

affirmatively and specifically identified in the policy statements, or 

commentary of the federal Guidelines Manual, and additionally 

mentioning either U.S. v. Booker, 18 U.S.C. § 3553, or related factors as a 

reason for a sentence below-range. 

• Below-range Booker: All cases with imposed sentences below the range 

mentioning only U.S. v. Booker, 18 U.S.C. § 3553, or related factors as a 

reason for a below-range sentence. 

• Otherwise below-range: Cases with imposed sentences below the range 

that do not fall into the three previous categories. Based on the 

information submitted on the Statement of Reasons, these cases cannot be 

classified as a guideline departure, or as a below-range sentence pursuant 

to Booker/18 U.S.C. § 3553. This category includes cases which cited 

departure reasons that are not affirmatively and specifically identified in 

the policy statements, or commentary of the federal Guidelines Manual

and cases which do not provide any reasons for the below-range sentence. 

Overall, reasons used under the guidelines for the imposition of downward 

departures often are used in all but one of the Booker below-range categories. In fact, 

criminal history, a guideline departure reason, consistently appears as one of the 4 most 

commonly cited reasons for the imposition of a below-range sentence under Booker in all 

4 below-range categories. 

Table 6 shows that the most commonly cited reasons post-Booker for the 

imposition of guideline downward departures citing guideline reasons are criminal 

history, general mitigating circumstances, family ties, and aberrant behavior. These 

 

298 Above-range sentences follow the same decision protocol and are reported in identically defined 

categories but with an “upward” modifier. 
79

reasons historically have been the most commonly cited reasons for downward 

departures.299 

The most commonly cited reasons post-Booker for the imposition of guideline 

downward departures that also cite Booker are 18 U.S.C. § 3553(a), the presence of a 

variance, criminal history, family ties, and nature of the offense pursuant to 18 U.S.C. § 

3553(a). See Table 7.

The most commonly cited reasons post-Booker for the imposition of a belowrange sentence using Booker are 18 U.S.C. § 3553(a) generally, the presence of a 

variance, specific language from 18 U.S.C. § 3553(a), criminal history, and the nature 

and circumstances of the offense/history of the defendant pursuant to 18 U.S.C. § 

3553(a)(1). As expected, cases in this category least employ guideline downward 

departure reasons. See Table 8. 

As Table 9 indicates, insufficient information in the documentation by far 

accounted for the largest proportion of sentences categorized by the Commission as 

otherwise below-range. This category also included a combination of guideline departure 

grounds and other grounds as reasons for the imposition of the below-range sentence 

(e.g., criminal history and general mitigating circumstances). The lack of meaningful 

documentation in many cases makes assessment of the reasons for the imposition of a 

non-government-sponsored below-range sentence exceptionally difficult if not 

impossible. Universal use of the newly revised Statement of Reasons form should help in 

the collection of more detailed and meaningful information.300 

A number of conclusions can be drawn from examining the reasons for the 

imposition of non-government-sponsored, below-range sentences. First, even in cases 

citing to or otherwise using Booker, the consideration of departure reasons remains 

prevalent. Although there is extensive reliance on reasons that are not guideline 

departure reasons, these often are used in combination with guideline departure reasons. 

Second, the defendant’s criminal history and to a lesser extent the defendant’s 

family ties and circumstances frequently provide the basis for the imposition of nongovernment-sponsored, below-range sentences. 

 Third, while some courts cite only in general terms to Booker and/or the 

provisions of 18 U.S.C. § 3553(a) in the imposition of non-departure, below-range 

sentences, a number of cases make more specific reference to the particular purposes of 

sentencing that would, in the court’s view, better be achieved by fashioning a belowrange sentence. 

 

299 See 2003 DEPARTURES REPORT, available at www.ussc.gov. 300See Statement of Reasons form, (AO245B (rev. 06/05)) in Appendix A. 
80

Table 6 

Reasons Given By Sentencing Courts 

for Departures Below the Guideline Range 

Downward Departures with Guideline Reasons301 Number Percent

Criminal history issues 662 34.6 

(5K2.0) General aggravating or mitigating circumstances 299 15.6 

(5H1.6) Family ties and responsibilities 181 9.4 

(5K2.20) Aberrant behavior 159 8.3 

(5H1.4) Physical condition 140 7.3 

(5K2.13) Diminished capacity 86 4.5 

(5H1.3) Mental and emotional conditions 69 3.6 

(5H1.1) Age 65 3.4 

(5K2.23) Discharge terms of imprisonment 43 2.2 

(5K2.12) Coercion and duress 32 1.7 

(5H1.11) Military record/charitable works/good deeds 26 1.4 

(5K2.11) Lesser harm 24 1.3 

5G1.3 23 1.2 

(5K2.10) Victim conduct 17 0.9 

(5H1.5) Previous employment record 14 0.7 

(5H1.4) Drug dependence and alcohol abuse 13 0.7 

(5K2.16) Voluntary disclosure 12 0.6 

(5H1.6) Community ties 9 0.5 

(5K2.22) Age or health of sex offenders 9 0.5 

Loss issues 8 0.4 

(5K2.2) Physical injury 4 0.2 

(5K2.9) Criminal Purpose 3 0.2 

(5K2.3) Extreme psychological injury 2 0.1 

Other302 16 0.8 

Total 1,916 100.0 

 

301 Of the 67,564 cases, 1,456 departed below the guideline range for a guideline reason. Departure reasons 

were available in 1,456 of these cases which cited 1,916 reasons for downward departure. Courts often 

provide multiple reasons for departure; consequently, the total number of downward departure reasons may 

exceed the number of cases with a downward departure. 

302 The “Other” category includes all reasons provided fewer than two times among relevant cases. 

SOURCE: U.S. Sentencing Commission 2006 Booker Report Datafiles. 
81

Table 7 

Reasons Given By Sentencing Courts 

for Departures Below the Guideline Range 

Downward Departures with Booker Reasons303 Number Percent

18 USC 3553(a) 270 12.8 

Judge specifies presence of variance 220 10.4 

Criminal History Issues 187 8.9 

(5H1.6) Family ties and responsibilities 179 8.5 

Nature & circumstances of offense/hist. of def. pursuant to 18 USC 3553 (a)(1) 117 5.6 

(5K2.0) General Aggravating or Mitigating Circumstance 109 5.2 

(5H1.4) Physical condition 91 4.3 

Rehabilitation 91 4.3 

Language from 18 USC 3553(a) statute 74 3.5 

(5H1.1) Age 70 3.3 

(5H1.3) Mental and Emotional Conditions 69 3.3 

Reflect seriousness of offense/promote respect for law/just punishment 57 2.7 

US v Booker/ US v Fanfan 53 2.5 

Reduce disparity 49 2.3 

(5K2.20) Aberrant Behavior 46 2.2 

Afford adequate deterrence to criminal conduct 45 2.1 

Reasonableness 41 1.9 

(5H1.5) Previous Employment Record 40 1.9 

Protect public from further crimes 34 1.6 

(5K2.13) Diminished capacity 33 1.6 

Provide defendant with educational/vocational training/medical care/etc. 33 1.6 

Avoid unwarranted sentencing disparity among defendants 28 1.3 

(5H1.11) Military Record/Charitable Works/Good Deeds 23 1.1 

(5H1.4) Drug dependence and alcohol abuse 20 1.0 

Advisory nature of the guidelines 20 1.0 

Deterrence 20 1.0 

(5H1.2) Educational and vocational skills 18 0.9 

Adequate punishment to meet purposes of sentencing 15 0.7 

(5H1.6) Community ties 9 0.4 

(5K2.12) Coercion and duress 7 0.3 

Provide restitution to any victims 7 0.3 

(5K2.11) Lesser harm 5 0.2 

(5K2.16) Voluntary disclosure 5 0.2 

(5K2.23) Discharge terms of imprisonment 4 0.2 

Incapacitation 4 0.2 

5G1.3 3 0.1 

Insufficient documentation provided on SOR to determine reason 3 0.1 

(5K2.10) Victim Conduct 2 0.1 

Loss issues 2 0.1 

Other304 6 0.3 

Total 2,109 100.0 

 

303 Of the 67,564 cases, 645 departed below the guideline range citing a Booker reason. Departure reasons 

were available in 645 of these cases which cited 2,109 reasons for downward departure. Courts often 

provide multiple reasons for departure; consequently, the total number of downward departure reasons may 

exceed the number of cases with a downward departure. 

304 The “Other” category includes all reasons provided fewer than two times among relevant cases. 

SOURCE: U.S. Sentencing Commission 2006 Booker Report Datafiles. 
82

Table 8 

Reasons Given By Sentencing Courts for 

Sentences Below the Guideline Range Citing Booker

Below Range Booker305 Number Percent 

18 USC 3553(a) 2,162 19.9 

Judge specifies presence of variance 1,331 12.2 

Language from 18 USC 3553(a) statute text 572 5.3 

Criminal History issues 569 5.2 

Nature and circumstances of offense/hist. of def. pursuant to 18 USC 3553(a)(1) 519 4.8 

Reasonableness 361 3.3 

US v Booker/US v Fanfan 339 3.1 

Insufficient documentation provided on SOR to determine reason 306 2.8 

Advisory nature of the guidelines 299 2.8 

Reflect seriousness of offense/promote respect for law/just punishment 284 2.6 

General Guideline Adequacy Issues 282 2.6 

Reduce disparity 279 2.6 

(5H1.6) Family Ties and Responsibilities 235 2.2 

Afford adequate deterrence to criminal conduct 222 2.0 

Adequate punishment to meet purposes of sentencing 190 1.8 

Deterrence 180 1.7 

Rehabilitation 180 1.7 

Avoid unwarranted sentencing disparities among def. 173 1.6 

Protect the public from further crimes 168 1.5 

(5H1.1) Age 141 1.3 

Mule/Role in the offense 127 1.2 

Provide def. with education/vocational training/medical care/etc. 127 1.2 

(5H1.5) Previous Employment Record 91 0.8 

(5K2.0) General Aggravating or Mitigating Circumstance 88 0.8 

Not 5K1.1 Cooperation without Motion 82 0.8 

(5H1.4) Physical Condition 79 0.7 

Cooperation-Motion unknown 70 0.6 

(5H1.3) Mental and Emotional Conditions 67 0.6 

Incapacitation 66 0.6 

Restitution 60 0.6 

Time Served 56 0.5 

Def. positive background/good character 51 0.5 

(5H1.4) Drug dependence and alcohol abuse 44 0.4 

Lack of culpability/accountability of def 42 0.4 

Acceptance of responsibility 40 0.4 

(5K2.20) Aberrant behavior 38 0.4 

Provide restitution to any victims 36 0.3 

Sufficient punishment 36 0.3 

Remorse 35 0.3 

5H1.11 Military Record/Charitable Works/Good Deeds 28 0.3 

Not representative of heartland 28 0.3 

(5H1.6) Community Ties 27 0.3 

Crack/Powder Cocaine Disparity 27 0.3 

Loss Issues 26 0.2 

Other306 715 6.6 

Total 10,878 100.0 

 

305 Of the 67,564 cases, 3,850 were below the guideline range citing a Booker reason. Reasons were 

available in 3,850 of these cases which cited 10,878 reasons for below range sentences. Courts often 

provide multiple reasons for below range sentences; consequently, the total number of below range reasons 

may exceed the number of cases with sentences below the guideline range. 306 The “Other” category includes all reasons provided twenty-five times or fewer among relevant cases. 

SOURCE: U.S. Sentencing Commission 2006 Booker Report Datafiles. 
83

Table 9 

Reasons Given By Sentencing Courts for 

Sentences Below the Guideline Range Citing Booker

Otherwise Below Range307 Number Percent 

Insufficient documentation provided on SOR to determine reason 970 24.5 

Criminal history issues 496 12.5 

(5K2.0) General aggravating or mitigating circumstances 251 6.3 

(5H1.6) Family ties and responsibilities 165 4.2 

General guideline adequacy issues 97 2.5 

(5H1.1) Age 90 2.3 

Rehabilitation 84 2.1 

Mule/role in the offense 78 2.0 

Time Served 73 1.8 

(5H1.4) Physical Condition 71 1.8 

Reduce Disparity 63 1.6 

Restitution 62 1.6 

(5H1.3) Mental/Emotional Conditions 61 1.5 

Cooperation – Motion Unknown 59 1.5 

(5K2.20) Aberrant Behavior 57 1.4 

(5H1.5) Previous Employment 53 1.3 

Not Representative of Heartland 52 1.3 

Acceptance of Responsibility 47 1.2 

(Not 5K1.1) Cooperation without Motion 43 1.1 

Deterrence 41 1.0 

Adequate Punishment to meet Purposes of Sentencing 39 1.0 

Cultural Assimilation 39 1.0 

Reasonableness 39 1.0 

Remorse 30 0.8 

(5H1.4) Drug Dependence and Alcohol Abuse 28 0.7 

Def. Positive Background/Good Character 28 0.7 

5H1.11 – Military Record/Charitable Works/ Good Deeds 24 0.6 

Lack of Culpability/Accountability of Def 22 0.6 

Loss issues 22 0.6 

Totality of Circumstances/Combination of Factors 22 0.6 

Advisory nature of guidelines 20 0.5 

Impact on Employment of Defendant/Others 20 0.5 

(5K2.13) Diminished Capacity 18 0.5 

Susceptibility/Prey to other inmates 17 0.4 

Delay in Prosecution/Evidentiary Concerns 16 0.4 

Statmin/Statmax 16 0.4 

Aberrant Behavior/Offense Behavior was Isolated Incident 15 0.4 

Child Abuse Syndrome 15 0.4 

Currently Rec Punishment Under State/Fed Juris 15 0.4 

(5H1.6) Community Ties 14 0.4 

Low Likelihood or Recidivism 14 0.4 

Mitigating Factors Regarding Firearms 14 0.4 

(5H1.2) Educational and Vocational Skills 12 0.3 

Interest of Justice 11 0.3 

Other308 535 13.5 

Total 3,958 100.0 

 

307Of the 67,564 cases, 2,238 were otherwise below the guideline range. Reasons were available in 2,210 

of these cases which cited 3,958 reasons for below range sentences. Courts often provide multiple reasons 

for below range sentences; consequently, the total number of below range reasons may exceed the number 

of cases with sentences below the guideline range. 

308 The “Other” category includes all reasons provided ten times or fewer among relevant cases. 

SOURCE: U.S. Sentencing Commission 2006 Booker Report Datafiles. 
84

Chapter 5

ANALYSIS OF COMMISSION SENTENCING DATA: REGIONAL 

AND DEMOGRAPHIC DIFFERENCES IN FEDERAL SENTENCING 

PRACTICES 

A. INTRODUCTION AND MAJOR FINDINGS 

This chapter details the results of the Commission’s data analyses of the impact of 

Booker with respect to regional and demographic differences in federal sentencing 

practices. In sum, these analyses yielded the following findings: 

• The regional differences in sentencing practices that existed before Booker

continue to exist. There are varying rates of sentencing in conformance 

with the guidelines reported by the twelve circuits. Consistent with the 

national trend, rates of imposition of within-range sentences decreased for 

each of the twelve circuits following Booker. 

• Fifty-two of the 94 districts, or 55 percent, have rates of imposition of 

within-range sentences at or above the national average of 62.2 percent. 

Forty-two districts have rates of imposition of within-range sentences 

below the national average. In 34 of these 42 districts, the rates of 

imposition of government-sponsored, below-range sentences exceed the 

rates of imposition of other below-range sentences. 

• Multivariate analysis conducted on post-Booker data reveals that male 

offenders continue to be associated with higher sentences than female 

offenders. Such an association is found every year from 1999 through the 

post-Booker period. Associations between demographic factors and 

sentence length should be viewed with caution because there are 

unmeasured factors, such as violent criminal history or bail decisions, 

statistically associated with demographic factors that the analysis may not 

take into account. 

• Multivariate analysis conducted on post-Booker data reveals that black 

offenders are associated with sentences that are 4.9 percent higher than 

white offenders. Such an association was not found in the post-PROTECT 

Act period but did appear in 4 of the 7 time periods analyzed from 1999 

through the post-Booker period. 

• Multivariate analysis conducted on post-Booker data reveals that offenders 

of “other” races (mostly Native American offenders) are associated with 

sentences that are 10.8 percent higher than white offenders. This 

association also was found in 2 of the 7 time periods from 1999 through 

the post-Booker period. 
85

• Multivariate analysis conducted on post-Booker data reveals that there is 

no statistical difference between the sentence length of Hispanic offenders 

and the sentence length of white offenders. 

B. DIFFERENCES IN CIRCUIT AND DISTRICT SENTENCING PRACTICES

Variation in rates of imposition of within-range and below-range sentences among 

different circuits and districts has been a long-standing feature of federal guidelines 

sentencing. These variations have been the subject of analysis and research by the 

Commission, other government agencies and commentators,309 and by academic 

researchers.310 This research suggests that downward departures may be contributing to 

regional differences in sentencing, but the reasons for variations in departure rates have 

been difficult to understand. 

Previous Commission reports have found regional variations and explored some 

of their reasons. In 1998, the Commission reported significant variations among districts 

in the policies and practices governing use of USSG §5K1.1 departures based on 

offenders’ substantial assistance in the prosecution of other persons.311 The 

Commission’s 2003 Departures Report showed general consistency across time in the 

districts reporting the highest and lowest rates of imposition of out-of-range sentences but 

substantial differences across districts. The composition of the caseload and the role of 

government-sponsored departures were shown to be important determinants of interdistrict variations. The Commission’s Fifteen Year Review discussed a variety of factors 

leading to disparity among districts.312 Differences among the culture and practices of 

district courts were found to contribute to regional variation in departure rates more than 

differences among the circuits. That is, differences among districts within the circuits 

were more important than overall differences over time among the circuits. 

Modified reporting practices implemented subsequent to the PROTECT Act 

permit further exploration of variations in rates of imposition of government-sponsored 

downward departures and non-government-sponsored, below-range sentences. This 

section uses the revised post-Booker categories to describe and compare district and 

circuit practices pre-PROTECT Act, post- PROTECT Act, and post-Booker. 

 

309 William W. Mercer, Assessing Compliance with the U. S. Sentencing Guidelines: The Significance of 

Improved Data Collection and Reporting, 16 FED. SENT'G REP. 43 (2003); General Accounting Office, 

2003. 

310 Douglas A. Berman, Balanced and Purposeful Departures: Fixing a Jurisprudence that Undermines the 

Federal Sentencing Guidelines, 76 NOTRE DAME L. REV. 21 (2003); Patti B. Saris, Below the Radar 

Screens: Have the Sentencing Guidelines Eliminated Disparity? One Judge’s Perspective, 30 SUFFOLK U. 

L. REV. 1027 (1997); Lida Farabee Disparate Departures under the Federal Sentencing Guidelines: A Tale 

of Two Districts, 30 CONN. L. REV. 569 (1998). 311 Linda Maxfield & John Kramer, Substantial Assistance: An Empirical Yardstick Gauging Equity in 

Current Policy and Practice (January 1998). 312 FIFTEEN YEAR REVIEW at 93-110. 
86

1. Differences in Circuit Sentencing Practices

Circuit and district rates of imposition of within-range and out-of-range sentences 

have varied across both time and jurisdiction. The Commission examined circuit changes 

over the 4 most recent fiscal years and compared them to the post-Booker period.313 

Table 10 illustrates the result of the comparison. Rates of imposition of within-range 

sentences decreased for each of the twelve circuits from the post-PROTECT Act period 

to the post-Booker period. Those rates fell as little as 4.8 percentage points in the 

Eleventh Circuit, (from 74.7 % to 69.9 %) to as much as 14.3 percentage points in the 

First Circuit (from 79.6 % to 65.3 %). 

With the exception of the DC Circuit, the rankings among circuits have remained 

relatively stable across time. Rates of imposition of within-range sentences in the postBooker period vary from a low of 48.5 percent in the Ninth Circuit to a high of 72.0 

percent in the Fifth Circuit. The ranges narrowed somewhat from about a 25-percentage 

point spread in Fiscal Year 2001 to an 18-percentage point spread in Fiscal Year 2003. 

Post-Booker, the ranges returned to rates more comparable to 2001 and 2002. 

Table 10 

Rates of Within-Range Sentences 

for Each Federal Judicial Circuit 

FY2001 FY2002 FY2003

FY2004 

Pre-Blakely

Post-Booker

(1/12/05-

1/11/06)

DC Circuit 74.6 59.9 64.6 59.2 52.5

First Circuit 73.3 75.7 77.3 79.6 65.3

Second Circuit 57.5 61.3 63.2 63.8 50.1

Third Circuit 60.2 58.9 62.3 62.6 52.1

Fourth Circuit 73.7 76.6 77.0 79.0 67.2

Fifth Circuit 69.1 71.0 73.7 80.2 72.0

Sixth Circuit 65.1 66.9 69.1 69.7 57.9

Seventh Circuit 71.0 69.3 72.5 75.4 63.5

Eighth Circuit 66.8 69.3 72.2 77.0 64.4

Ninth Circuit 50.1 48.8 59.6 61.8 48.5

Tenth Circuit 65.0 66.6 73.1 73.9 66.5

Eleventh Circuit 72.1 70.2 74.5 74.7 69.9

SOURCE: U.S. Sentencing Commission Sourcebook of Federal Sentencing Statistics, FY2001 

through FY2003, U.S Sentencing Commission FY2004 Datafile USSCFY04, pre-Blakely only 

(10/1/03-6/23/04); Special Post-Booker coding project (data extracted February 22, 2006). 

 

313 See Appendix D, page D-10 (Guideline Application By Circuit). 
87

Rates of imposition of within-range sentences depend on different combinations 

of the various types of out-of-range sentences. Circuits with similarly low rates of 

imposition of within-range sentences vary significantly in their rates of imposition of 

government-sponsored downward departures and other non-government-sponsored, 

below-range sentences. The Ninth Circuit reports the lowest rate of imposition of withinrange sentences but also has by far the highest rate of imposition of governmentsponsored, below-range sentences (27.5%) due to the large portion of fast track 

departures in several districts in that circuit. In contrast, the Third Circuit has the highest 

rates of imposition of USSG §5K1.1 departures (27.3%), low rates of imposition of other 

types of government-sponsored departures (1.7%), and higher rates of imposition of nongovernment-sponsored, below-range sentences (17.6%). Figure 9 displays the rate of 

imposition of within-range sentences and the rates of imposition of various types of outof-range sentences for each circuit.314

 

314 Figure 9 depicts the rates of above-range sentences at the top of the figure (red lines). Within-range 

sentences for each circuit are in green, over the thick black line. 
88

-60-50-40-30-20-10

0

1020304050607080

DC 1st 2nd 3rd 4th 5th 6th 7th 8th 9th 10th 

Within-Range Above-Range Other Below-Range Gov't Sponsored Below-Range USS

SOURCE: U.S. Sentencing Commission, Special Post-Booker Coding Project, BOOKER05 (data extraction on February 22, 2006). See Appendix 

Application Trends, National and Circuit).

Percent

Figure 9

Position of Sentences Relative to the Guideline Range Post-Booker

for Each Circuit
89

2. Differences in District Sentencing Practices 

Two major findings in the Commission’s 2003 Departures Report were that (1) 

most judicial districts have relatively low rates of imposition of non-governmentsponsored, below-range sentences; and (2) the districts with the highest and lowest rates 

remain relatively stable over time.315 Figure 10 shows the concentration of rates of 

imposition of non-government-sponsored, below-range sentences in the pre-PROTECT 

Act, post-PROTECT Act, and post-Booker time periods. For example, 34 districts had 

rates of imposition of below-range sentences between zero and 5 percent prior to the 

PROTECT Act. That number peaked at 57 districts following the PROTECT Act and 

has decreased to five districts post-Booker. Eighteen districts had rates of imposition of 

non-government-sponsored, below-range sentences greater than ten percent prior to the 

PROTECT Act. That number decreased to 12 districts following the PROTECT Act and 

increased to 54 post-Booker. 

Data from the post-Booker period show a shift toward higher rates of imposition 

of non-government-sponsored, below-range sentences. As Figure 10 illustrates, the 

majority of districts remain in the lower rate categories overall. (see Figure 10) For 

example, 42.5 percent of the districts (40 of 94) had rates of imposition of nongovernment-sponsored, below-range sentences post-Booker at or below 10 percent 

(compared to 76 pre-PROTECT Act and 82 post-PROTECT Act in those two categories). 

A majority of the districts (76 of 94, or 80.9%) show rates of imposition of nongovernment-sponsored, below-range sentences of between 5 percent and 20 percent postBooker. 

As discussed earlier in this report, rates of imposition of government-sponsored 

departures are uniformly higher at each time period than are rates of imposition of nongovernment-sponsored, below-range sentences. The Commission compared the rates of 

imposition of government-sponsored departures (under USSG §§ 5K1.1 and 5K3.1 and 

other government-sponsored downward departures) among the 94 districts across the 

same three time periods. Figure 11 illustrates those comparisons. 

 

315 See 2003 DEPARTURES REPORT at 34. 
90

3 4

10

42

34

2 1

57

9

25

5

2

6

20

21

35

5

0

102030405060

0-5% 5-10% 10-15% 15-20% 20-25% 25-30% 30-35% 

Pre-PROTECT Act Post-PROTECT Ac

Figure 10

Rates of Other Below-Range Sentences Among Districts

Pre-PROTECT Act, Post-PROTECT Act and Post-Booker

Number of Districts

Rate of Other Below-Range Sentences

Other Below-Range Sentences are defined as non-government sponsored downward departures for the pre-PROTECT Act (10/01/02 – 04/30/03) and (05/01/03 – 06/24/04) data. For the post-Booker data (01/12/05 – 01/11/06), Other Below-Range Sentences include non-government sponsored downbelow-range citing Booker and otherwise below the range. 

SOURCE: U.S. Sentencing Commission, 2006 Booker Report Datafiles.
91

13

2

3

7

19

22

13

15

11

2

1

12

22

13

1 1

5

9

22

8

1

7

10

20

12

17

11

2

05

10152025

0-5% 5-10% 10-15% 15-20% 20-25% 25-30% 30-35% 35-40% 40-45% 45-50% 50-55% 5

Pre-PROTECT Act Post-PROTECT Ac

Figure 11

Rates of Government Sponsored Downward Departures Among Distri

Pre-PROTECT Act, Post-PROTECT Act and Post-Booker

Number of Districts

Rate of Government Sponsored Below-Range Sentences

The data in this figure are from the following three time periods: Pre-PROTECT Act (10/01/02 – 04/30/03), Post-PROTECT Act (05/01/03 – 06/Booker (01/12/05 – 01/11/06). Government Sponsored Downward Departures include USSG §5K1.1 Departures, USSG §5K3.1 (EDP) Departur

government sponsored downward departures. See Appendix B for further information regarding the determination of sentencing categories. SOURCE: U.S. Sentencing Commission, 2006 Booker Report Datafiles.
92

Table 11 further demonstrates that the high rates of imposition of below-range 

sentences primarily tend to be the result of government-sponsored downward departures 

or motions. Government-sponsored, below-range sentences account for 23.7 percent of 

all cases, and other below-range sentences account for 12.5 percent of all cases (3.2% 

downward departures and 9.3% Booker authority). Table 11 lists the 94 judicial districts 

in descending order of rates of imposition within-range sentences in the post-Booker 

period. Noteworthy is the fact that 55 percent (52 districts), of the 94 districts have rates 

of imposition of within-range sentences at or above the national average of 62.2 percent. 

The role of government-sponsored, below-range sentences is apparent, especially upon 

considering the remaining 42 districts that have rates of imposition of within-range 

sentences below the national average. In 34 of these 42 districts, rates of imposition of 

government-sponsored, below-range sentences are relatively high, ranging from 19.7 

percent in the Northern District of California to 62.8 percent in the District of Arizona 

(which has an approved EDP or “fast track” program). 

Table 12 lists the 94 federal judicial districts in descending order of imposition of 

non-government-sponsored, below-range sentences. Slightly more than half of the 94 

districts (49 districts, or 52.1%) have overall rates of imposition of non-governmentsponsored, below-range sentences less than the national average of 12.5 percent, with 

rates ranging from zero percent to 12.4 percent. Focusing on the remaining 45 districts 

with rates of imposition of non-government-sponsored, below-range sentences above the 

national average of 12.5 percent, there is approximately an even split between those with 

higher rates of imposition of government-sponsored, below-range sentences as follows. 

In 26 of these 45 districts (57.8%), the rates of imposition of government-sponsored, 

below-range sentences are greater than the rates of imposition of non-governmentsponsored, below range sentences. The remaining 19 districts have greater rates of 

imposition of non-government-sponsored, below-range sentences. 

Focusing specifically on rates of guideline conformance, Table 13 lists the 94 

federal judicial districts in descending order of combined rates of imposition of withinrange and government-sponsored, below-range sentences. Forty-seven of the 94 federal 

judicial districts have combined rates of imposition of within-range and governmentsponsored, below-range sentences at or above the national average of 85.9 percent, 

ranging from 97.9 percent in the Eastern District of Oklahoma to 85.9 percent in the 

District of Kansas. 
93

Table 11 

Sentences Relative to the Guideline Range for Each Judicial District 

Ordered by Decreasing Rates of Within-Range Sentences 

Post-Booker

Within-Range

Gov’t Sponsored 

Below-Range

Downward 

Departures

Below-Range 

Booker

U

Dep

District TOTAL n % n % n % n % n

TOTAL 65,368 40,645 62.2 15,500 23.7 2,101 3.2 6,088 9.3 175 Oklahoma Eastern 96 84 87.5 10 10.4 1 1.0 1 1.0 0 

Virgin Islands 116 101 87.1 5 4.3 1 0.9 9 7.8 0 

Wisconsin Western 185 159 85.9 8 4.3 3 1.6 13 7.0 0 

Illinois Southern 288 241 83.7 15 5.2 9 3.1 18 6.3 2 

Oklahoma Northern 204 168 82.4 23 11.3 0 0.0 8 3.9 1 

West Virginia Northern 312 253 81.1 30 9.6 6 1.9 20 6.4 0 

Mississippi Southern 333 270 81.1 32 9.6 7 2.1 16 4.8 0 

California Central 876 707 80.7 54 6.2 29 3.3 83 9.5 0 

Texas Eastern 739 593 80.2 84 11.4 16 2.2 34 4.6 1 

Texas Western 5,154 4,078 79.1 616 12.0 87 1.7 299 5.8 6 

Florida Southern 1,951 1,512 77.5 198 10.1 45 2.3 176 9.0 5 

Montana 393 300 76.3 47 12.0 10 2.5 19 4.8 4 

Puerto Rico 499 380 76.2 43 8.6 9 1.8 48 9.6 2 

West Virginia Southern 301 229 76.1 35 11.6 9 3.0 21 7.0 2 

Louisiana Eastern 335 254 75.8 46 13.7 7 2.1 18 5.4 3 

North Carolina Middle 442 334 75.6 56 12.7 8 1.8 40 9.0 0 

Virginia Eastern 1,367 1,030 75.3 94 6.9 25 1.8 182 13.3 5 

Northern Mariana Islands 24 18 75.0 5 20.8 0 0.0 0 0.0 0 

Texas Northern 915 684 74.8 108 11.8 13 1.4 63 6.9 2 

South Dakota 422 311 73.7 27 6.4 14 3.3 45 10.7 9 

Utah 914 664 72.6 101 11.1 43 4.7 99 10.8 0 

Nevada 415 300 72.3 49 11.8 9 2.2 48 11.6 0 

Oklahoma Western 220 159 72.3 19 8.6 6 2.7 25 11.4 0 
94

Table 11 

Sentences Relative to the Guideline Range for Each Judicial District 

Ordered by Decreasing Rates of Within-Range Sentences 

Post-Booker

Within-Range

Gov’t Sponsored 

Below-Range

Downward 

Departures

Below-Range 

Booker

U

Dep

District TOTAL n % n % n % n % n

Maine 233 168 72.1 51 21.9 5 2.1 8 3.4 0 Florida Northern 311 223 71.7 58 18.6 4 1.3 16 5.1 3 

Louisiana Western 386 276 71.5 35 9.1 9 2.3 46 11.9 1 

South Carolina 962 682 70.9 166 17.3 25 2.6 80 8.3 4 

Kentucky Western 351 249 70.9 74 21.1 8 2.3 20 5.7 0 

Arkansas Western 196 139 70.9 40 20.4 4 2.0 12 6.1 0 

Georgia Middle 357 252 70.6 75 21.0 0 0.0 21 5.9 1 

Georgia Southern 290 202 69.7 38 13.1 14 4.8 14 4.8 4 

Indiana Northern 361 251 69.5 86 23.8 9 2.5 13 3.6 0 

Pennsylvania Western 428 297 69.4 54 12.6 23 5.4 48 11.2 0 

North Dakota 225 155 68.9 52 23.1 5 2.2 11 4.9 1 

Iowa Northern 358 246 68.7 50 14.0 6 1.7 37 10.3 3 

Alabama Southern 332 226 68.1 74 22.3 7 2.1 20 6.0 0 

Rhode Island 127 86 67.7 7 5.5 3 2.4 26 20.5 1 

Arkansas Eastern 252 169 67.1 33 13.1 9 3.6 36 14.3 3 

Missouri Eastern 962 643 66.8 182 18.9 40 4.2 86 8.9 1 

Georgia Northern 658 437 66.4 107 16.3 35 5.3 68 10.3 4 

Michigan Western 402 266 66.2 64 15.9 12 3.0 51 12.7 2 

Missouri Western 778 514 66.1 147 18.9 8 1.0 94 12.1 0 

Kansas 622 411 66.1 123 19.8 14 2.3 63 10.1 2 

Florida Middle 1,568 1,028 65.6 365 23.3 49 3.1 104 6.6 2 

New Mexico 2,461 1,607 65.3 711 28.9 50 2.0 83 3.4 1 

Texas Southern 6,430 4,171 64.9 1,582 24.6 218 3.4 399 6.2 16 

Nebraska 810 525 64.8 170 21.0 44 5.4 64 7.9 0 

Delaware 161 104 64.6 14 8.7 13 8.1 30 18.6 0 

Tennessee Eastern 602 389 64.6 149 24.8 5 0.8 50 8.3 0 
95

Table 11 

Sentences Relative to the Guideline Range for Each Judicial District 

Ordered by Decreasing Rates of Within-Range Sentences 

Post-Booker

Within-Range

Gov’t Sponsored 

Below-Range

Downward 

Departures

Below-Range 

Booker

U

Dep

District TOTAL n % n % n % n % n

Indiana Southern 301 194 64.5 69 22.9 7 2.3 23 7.6 2 Wyoming 204 130 63.7 53 26.0 5 2.5 13 6.4 0 

Louisiana Middle 178 111 62.4 46 25.8 1 0.6 8 4.5 2 

Virginia Western 621 385 62.0 157 25.3 12 1.9 56 9.0 2 

California Northern 614 378 61.6 121 19.7 23 3.7 82 13.4 0 

Mississippi Northern 192 118 61.5 56 29.2 2 1.0 6 3.1 2 

Alabama Northern 423 260 61.5 108 25.5 5 1.2 37 8.7 2 

North Carolina Western 567 347 61.2 158 27.9 14 2.5 42 7.4 0 

Tennessee Middle 292 178 61.0 63 21.6 11 3.8 37 12.7 1 

New York Southern 1,226 742 60.5 187 15.3 63 5.1 227 18.5 1 

Alabama Middle 214 129 60.3 74 34.6 2 0.9 7 3.3 1 

Washington Eastern 355 209 58.9 71 20.0 10 2.8 53 14.9 2 

Alaska 197 115 58.4 34 17.3 3 1.5 41 20.8 0 

Ohio Northern 978 568 58.1 236 24.1 43 4.4 122 12.5 1 

Illinois Central 357 207 58.0 78 21.8 12 3.4 56 15.7 1 

Tennessee Western 563 324 57.5 150 26.6 13 2.3 65 11.5 3 

Illinois Northern 1,045 600 57.4 251 24.0 50 4.8 134 12.8 2 

New York Western 562 315 56.0 188 33.5 4 0.7 52 9.3 0 

North Carolina Eastern 652 363 55.7 229 35.1 13 2.0 41 6.3 2 

New Hampshire 181 100 55.2 59 32.6 7 3.9 10 5.5 0 

California Southern 2,130 1,167 54.8 703 33.0 111 5.2 137 6.4 3 

California Eastern 893 482 54.0 316 35.4 24 2.7 63 7.1 2 

Oregon 511 276 54.0 113 22.1 21 4.1 93 18.2 1 

New York Northern 360 191 53.1 114 31.7 20 5.6 32 8.9 0 

Massachusetts 444 235 52.9 53 11.9 35 7.9 114 25.7 2 

Guam 121 64 52.9 43 35.5 5 4.1 9 7.4 0 
96

Table 11 

Sentences Relative to the Guideline Range for Each Judicial District 

Ordered by Decreasing Rates of Within-Range Sentences 

Post-Booker

Within-Range

Gov’t Sponsored 

Below-Range

Downward 

Departures

Below-Range 

Booker

U

Dep

District TOTAL n % n % n % n % n

Colorado 612 324 52.9 180 29.4 33 5.4 66 10.8 2 Michigan Eastern 725 382 52.7 215 29.7 30 4.1 89 12.3 1 

Wisconsin Eastern 367 193 52.6 65 17.7 13 3.5 87 23.7 2 

District of Columbia 476 250 52.5 154 32.4 13 2.7 49 10.3 1 

Minnesota 543 282 51.9 103 19.0 30 5.5 125 23.0 0 

New Jersey 925 478 51.7 293 31.7 41 4.4 103 11.1 1 

Kentucky Eastern 476 241 50.6 187 39.3 4 0.8 30 6.3 0 

Maryland 647 321 49.6 192 29.7 34 5.3 89 13.8 2 

Ohio Southern 596 291 48.8 192 32.2 21 3.5 83 13.9 0 

Vermont 194 94 48.5 69 35.6 14 7.2 17 8.8 0 

Iowa Southern 333 160 48.0 70 21.0 9 2.7 88 26.4 0 

Hawaii 453 217 47.9 142 31.3 17 3.8 69 15.2 0 

Pennsylvania Middle 582 273 46.9 223 38.3 20 3.4 54 9.3 3 

Connecticut 380 176 46.3 101 26.6 52 13.7 46 12.1 3 

Pennsylvania Eastern 915 376 41.1 317 34.6 31 3.4 177 19.3 3 

Idaho 213 82 38.5 97 45.5 9 4.2 23 10.8 0 

Washington Western 713 272 38.1 264 37.0 26 3.6 143 20.1 0 

New York Eastern 1,167 431 36.9 343 29.4 107 9.2 263 22.5 2 

Arizona 3,746 1,069 28.5 2,351 62.8 105 2.8 142 3.8 32 

SOURCE: U.S. Sentencing Commission, Special Post-Booker Coding Project, BOOKER05 (data extracted February 22, 2006; 

table prepared February 23, 2006). Summary numbers may not add up to their component parts due to rounding. 
97

Table 12 

Sentences Relative to the Guideline Range for Each Judicial District 

Ordered by Decreasing Rates of Overall Below-Range Sentences 

Post-Booker

Within Range

Gov’t Sponsored 

Below-Range

Downward 

Departures/Below 

Range Booker

Upward 

Departures

District TOTAL n % n % n % n % 

TOTAL 65,368 40,645 62.2 15,500 23.7 8,189 12.5 175 0.3 Massachusetts 444 235 52.9 53 11.9 149 33.6 2 0.5 

New York Eastern 1,167 431 36.9 343 29.4 370 31.7 2 0.2 

Iowa Southern 333 160 48.0 70 21.0 97 29.1 0 0.0 

Minnesota 543 282 51.9 103 19.0 155 28.5 0 0.0 

Wisconsin Eastern 367 193 52.6 65 17.7 100 27.2 2 0.5 

Delaware 161 104 64.6 14 8.7 43 26.7 0 0.0 

Connecticut 380 176 46.3 101 26.6 98 25.8 3 0.8 

Washington Western 713 272 38.1 264 37.0 169 23.7 0 0.0 

New York Southern 1,226 742 60.5 187 15.3 290 23.7 1 0.1 

Rhode Island 127 86 67.7 7 5.5 29 22.8 1 0.8 

Pennsylvania Eastern 915 376 41.1 317 34.6 208 22.7 3 0.3 

Alaska 197 115 58.4 34 17.3 44 22.3 0 0.0 

Oregon 511 276 54.0 113 22.1 114 22.3 1 0.2 

Illinois Central 357 207 58.0 78 21.8 68 19.0 1 0.3 

Maryland 647 321 49.6 192 29.7 123 19.0 2 0.3 

Hawaii 453 217 47.9 142 31.3 86 19.0 0 0.0 

Arkansas Eastern 252 169 67.1 33 13.1 45 17.9 3 1.2 

Washington Eastern 355 209 58.9 71 20.0 63 17.7 2 0.6 

Illinois Northern 1,045 600 57.4 251 24.0 184 17.6 2 0.2 

Ohio Southern 596 291 48.8 192 32.2 104 17.4 0 0.0 

California Northern 614 378 61.6 121 19.7 105 17.1 0 0.0 

Ohio Northern 978 568 58.1 236 24.1 165 16.9 1 0.1 

Pennsylvania Western 428 297 69.4 54 12.6 71 16.6 0 0.0 
98

Table 12 

Sentences Relative to the Guideline Range for Each Judicial District 

Ordered by Decreasing Rates of Overall Below-Range Sentences 

Post-Booker

Within Range

Gov’t Sponsored 

Below-Range

Downward 

Departures/Below 

Range Booker

Upward 

Departures

District TOTAL n % n % n % n % 

Tennessee Middle 292 178 61.0 63 21.6 48 16.4 1 0.3 Michigan Eastern 725 382 52.7 215 29.7 119 16.4 1 0.1 

Colorado 612 324 52.9 180 29.4 99 16.2 2 0.3 

Vermont 194 94 48.5 69 35.6 31 16.0 0 0.0 

Michigan Western 402 266 66.2 64 15.9 63 15.7 2 0.5 

Georgia Northern 658 437 66.4 107 16.3 103 15.7 4 0.6 

New Jersey 925 478 51.7 293 31.7 144 15.6 1 0.1 

Utah 914 664 72.6 101 11.1 142 15.5 0 0.0 

Virginia Eastern 1,367 1,030 75.3 94 6.9 207 15.1 5 0.4 

Idaho 213 82 38.5 97 45.5 32 15.0 0 0.0 

New York Northern 360 191 53.1 114 31.7 52 14.4 0 0.0 

Louisiana Western 386 276 71.5 35 9.1 55 14.2 1 0.3 

Oklahoma Western 220 159 72.3 19 8.6 31 14.1 0 0.0 

South Dakota 422 311 73.7 27 6.4 59 14.0 9 2.1 

Tennessee Western 563 324 57.5 150 26.6 78 13.9 3 0.5 

Nevada 415 300 72.3 49 11.8 57 13.7 0 0.0 

Nebraska 810 525 64.8 170 21.0 108 13.3 0 0.0 

Missouri Western 778 514 66.1 147 18.9 102 13.1 0 0.0 

Missouri Eastern 962 643 66.8 182 18.9 126 13.1 1 0.1 

District of Columbia 476 250 52.5 154 32.4 62 13.0 1 0.2 

California Central 876 707 80.7 54 6.2 112 12.8 0 0.0 

Pennsylvania Middle 582 273 46.9 223 38.3 74 12.7 3 0.5 

Kansas 622 411 66.1 123 19.8 77 12.4 2 0.3 

Iowa Northern 358 246 68.7 50 14.0 43 12.0 3 0.8 

California Southern 2,130 1,167 54.8 703 33.0 248 11.6 3 0.1 

Guam 121 64 52.9 43 35.5 14 11.6 0 0.0 
99

Table 12 

Sentences Relative to the Guideline Range for Each Judicial District 

Ordered by Decreasing Rates of Overall Below-Range Sentences 

Post-Booker

Within Range

Gov’t Sponsored 

Below-Range

Downward 

Departures/Below 

Range Booker

Upward 

Departures

District TOTAL n % n % n % n % 

Puerto Rico 499 380 76.2 43 8.6 57 11.4 2 0.4 Florida Southern 1,951 1,512 77.5 198 10.1 221 11.3 5 0.3 

Virginia Western 621 385 62.0 157 25.3 68 11.0 2 0.3 

South Carolina 962 682 70.9 166 17.3 105 10.9 4 0.4 

North Carolina Middle 442 334 75.6 56 12.7 48 10.9 0 0.0 

West Virginia Southern 301 229 76.1 35 11.6 30 10.0 2 0.7 

Indiana Southern 301 194 64.5 69 22.9 30 10.0 2 0.7 

New York Western 562 315 56.0 188 33.5 56 10.0 0 0.0 

Alabama Northern 423 260 61.5 108 25.5 42 9.9 2 0.5 

North Carolina Western 567 347 61.2 158 27.9 56 9.9 0 0.0 

Florida Middle 1,568 1,028 65.6 365 23.3 153 9.8 2 0.1 

California Eastern 893 482 54.0 316 35.4 87 9.7 2 0.2 

Georgia Southern 290 202 69.7 38 13.1 28 9.7 4 1.4 

Texas Southern 6,430 4,171 64.9 1,582 24.6 617 9.6 16 0.2 

New Hampshire 181 100 55.2 59 32.6 17 9.4 0 0.0 

Illinois Southern 288 241 83.7 15 5.2 27 9.4 2 0.7 

Tennessee Eastern 602 389 64.6 149 24.8 55 9.1 0 0.0 

Wyoming 204 130 63.7 53 26.0 18 8.8 0 0.0 

Wisconsin Western 185 159 85.9 8 4.3 16 8.6 0 0.0 

Virgin Islands 116 101 87.1 5 4.3 10 8.6 0 0.0 

West Virginia Northern 312 253 81.1 30 9.6 26 8.3 0 0.0 

Texas Northern 915 684 74.8 108 11.8 76 8.3 2 0.2 

North Carolina Eastern 652 363 55.7 229 35.1 54 8.3 2 0.3 

Arkansas Western 196 139 70.9 40 20.4 16 8.2 0 0.0 

Alabama Southern 332 226 68.1 74 22.3 27 8.1 0 0.0 

Kentucky Western 351 249 70.9 74 21.1 28 8.0 0 0.0 
100

Table 12 

Sentences Relative to the Guideline Range for Each Judicial District 

Ordered by Decreasing Rates of Overall Below-Range Sentences 

Post-Booker

Within Range

Gov’t Sponsored 

Below-Range

Downward 

Departures/Below 

Range Booker

Upward 

Departures

District TOTAL n % n % n % n % 

Texas Western 5,154 4,078 79.1 616 12.0 386 7.5 6 0.1 Louisiana Eastern 335 254 75.8 46 13.7 25 7.5 3 0.9 

Montana 393 300 76.3 47 12.0 29 7.4 4 1.0 

Kentucky Eastern 476 241 50.6 187 39.3 34 7.1 0 0.0 

North Dakota 225 155 68.9 52 23.1 16 7.1 1 0.4 

Mississippi Southern 333 270 81.1 32 9.6 23 6.9 0 0.0 

Texas Eastern 739 593 80.2 84 11.4 50 6.8 1 0.1 

Arizona 3,746 1,069 28.5 2,351 62.8 247 6.6 32 0.9 

Florida Northern 311 223 71.7 58 18.6 20 6.4 3 1.0 

Indiana Northern 361 251 69.5 86 23.8 22 6.1 0 0.0 

Georgia Middle 357 252 70.6 75 21.0 21 5.9 1 0.3 

Maine 233 168 72.1 51 21.9 13 5.6 0 0.0 

New Mexico 2,461 1,607 65.3 711 28.9 133 5.4 1 0.0 

Louisiana Middle 178 111 62.4 46 25.8 9 5.1 2 1.1 

Alabama Middle 214 129 60.3 74 34.6 9 4.2 1 0.5 

Mississippi Northern 192 118 61.5 56 29.2 8 4.2 2 1.0 

Oklahoma Northern 204 168 82.4 23 11.3 8 3.9 1 0.5 

Oklahoma Eastern 96 84 87.5 10 10.4 2 2.1 0 0.0 

Northern Mariana Islands 24 18 75.0 5 20.8 0 0.0 0 0.0 

SOURCE: U.S. Sentencing Commission, Special Post-Booker Coding Project, BOOKER05 (data extracted February 22, 2006table prepared February 23, 2006). Summary numbers may not add up to their component parts due to rounding. 
101

Table 13 

Sentences Relative to the Guideline Range for Each Judicial District 

Ordered by Decreasing Rates of Guideline Conformance 

Post-Booker

Within-Range/

Government 

Sponsored

Downward 

Departures

Below-Range 

Booker

Upward 

Departures

District TOTAL n % n % n % n % TOTAL 65,368 56,145 85.9 2,101 3.2 6,088 9.3 175 0.3 

Oklahoma Eastern 96 94 97.9 1 1.0 1 1.0 0 0.0 

Northern Mariana Islands 24 23 95.8 0 0.0 0 0.0 0 0.0 

Alabama Middle 214 203 94.9 2 0.9 7 3.3 1 0.5 

New Mexico 2,461 2,318 94.2 50 2.0 83 3.4 1 0.0 

Maine 233 219 94.0 5 2.1 8 3.4 0 0.0 

Oklahoma Northern 204 191 93.6 0 0.0 8 3.9 1 0.5 

Indiana Northern 361 337 93.4 9 2.5 13 3.6 0 0.0 

Kentucky Western 351 323 92.0 8 2.3 20 5.7 0 0.0 

North Dakota 225 207 92.0 5 2.2 11 4.9 1 0.4 

Texas Eastern 739 677 91.6 16 2.2 34 4.6 1 0.1 

Georgia Middle 357 327 91.6 0 0.0 21 5.9 1 0.3 

Virgin Islands 116 106 91.4 1 0.9 9 7.8 0 0.0 

Arkansas Western 196 179 91.3 4 2.0 12 6.1 0 0.0 

Arizona 3,746 3,420 91.3 105 2.8 142 3.8 32 0.9 

Texas Western 5,154 4,694 91.1 87 1.7 299 5.8 6 0.1 

North Carolina Eastern 652 592 90.8 13 2.0 41 6.3 2 0.3 

West Virginia Northern 312 283 90.7 6 1.9 20 6.4 0 0.0 

Mississippi Southern 333 302 90.7 7 2.1 16 4.8 0 0.0 

Mississippi Northern 192 174 90.6 2 1.0 6 3.1 2 1.0 

Alabama Southern 332 300 90.4 7 2.1 20 6.0 0 0.0 

Florida Northern 311 281 90.4 4 1.3 16 5.1 3 1.0 

Wisconsin Western 185 167 90.3 3 1.6 13 7.0 0 0.0 

Kentucky Eastern 476 428 89.9 4 0.8 30 6.3 0 0.0 
102

Table 13 

Sentences Relative to the Guideline Range for Each Judicial District 

Ordered by Decreasing Rates of Guideline Conformance 

Post-Booker

Within-Range/

Government 

Sponsored

Downward 

Departures

Below-Range 

Booker

Upward 

Departures

District TOTAL n % n % n % n % Wyoming 204 183 89.7 5 2.5 13 6.4 0 0.0 

Louisiana Eastern 335 300 89.6 7 2.1 18 5.4 3 0.9 

New York Western 562 503 89.5 4 0.7 52 9.3 0 0.0 

Texas Southern 6,430 5,753 89.5 218 3.4 399 6.2 16 0.2 

Tennessee Eastern 602 538 89.4 5 0.8 50 8.3 0 0.0 

California Eastern 893 798 89.4 24 2.7 63 7.1 2 0.2 

North Carolina Western 567 505 89.1 14 2.5 42 7.4 0 0.0 

Illinois Southern 288 256 88.9 9 3.1 18 6.3 2 0.7 

Florida Middle 1,568 1,393 88.8 49 3.1 104 6.6 2 0.1 

Guam 121 107 88.4 5 4.1 9 7.4 0 0.0 

Montana 393 347 88.3 10 2.5 19 4.8 4 1.0 

North Carolina Middle 442 390 88.2 8 1.8 40 9.0 0 0.0 

Louisiana Middle 178 157 88.2 1 0.6 8 4.5 2 1.1 

South Carolina 962 848 88.1 25 2.6 80 8.3 4 0.4 

New Hampshire 181 159 87.8 7 3.9 10 5.5 0 0.0 

California Southern 2,130 1,870 87.8 111 5.2 137 6.4 3 0.1 

West Virginia Southern 301 264 87.7 9 3.0 21 7.0 2 0.7 

Florida Southern 1,951 1,710 87.6 45 2.3 176 9.0 5 0.3 

Indiana Southern 301 263 87.4 7 2.3 23 7.6 2 0.7 

Virginia Western 621 542 87.3 12 1.9 56 9.0 2 0.3 

Alabama Northern 423 368 87.0 5 1.2 37 8.7 2 0.5 

California Central 876 761 86.9 29 3.3 83 9.5 0 0.0 

Texas Northern 915 792 86.6 13 1.4 63 6.9 2 0.2 

Kansas 622 534 85.9 14 2.3 63 10.1 2 0.3 

Nebraska 810 695 85.8 44 5.4 64 7.9 0 0.0 

Missouri Eastern 962 825 85.8 40 4.2 86 8.9 1 0.1 
103

Table 13 

Sentences Relative to the Guideline Range for Each Judicial District 

Ordered by Decreasing Rates of Guideline Conformance 

Post-Booker

Within-Range/

Government 

Sponsored

Downward 

Departures

Below-Range 

Booker

Upward 

Departures

District TOTAL n % n % n % n % Pennsylvania Middle 582 496 85.2 20 3.4 54 9.3 3 0.5 

Missouri Western 778 661 85.0 8 1.0 94 12.1 0 0.0 

District of Columbia 476 404 84.9 13 2.7 49 10.3 1 0.2 

Puerto Rico 499 423 84.8 9 1.8 48 9.6 2 0.4 

New York Northern 360 305 84.7 20 5.6 32 8.9 0 0.0 

Tennessee Western 563 474 84.2 13 2.3 65 11.5 3 0.5 

Nevada 415 349 84.1 9 2.2 48 11.6 0 0.0 

Idaho 213 179 84.0 9 4.2 23 10.8 0 0.0 

Vermont 194 163 84.0 14 7.2 17 8.8 0 0.0 

Utah 914 765 83.7 43 4.7 99 10.8 0 0.0 

New Jersey 925 771 83.4 41 4.4 103 11.1 1 0.1 

Georgia Southern 290 240 82.8 14 4.8 14 4.8 4 1.4 

Iowa Northern 358 296 82.7 6 1.7 37 10.3 3 0.8 

Georgia Northern 658 544 82.7 35 5.3 68 10.3 4 0.6 

Tennessee Middle 292 241 82.5 11 3.8 37 12.7 1 0.3 

Colorado 612 504 82.4 33 5.4 66 10.8 2 0.3 

Michigan Eastern 725 597 82.3 30 4.1 89 12.3 1 0.1 

Virginia Eastern 1,367 1,124 82.2 25 1.8 182 13.3 5 0.4 

Ohio Northern 978 804 82.2 43 4.4 122 12.5 1 0.1 

Michigan Western 402 330 82.1 12 3.0 51 12.7 2 0.5 

Pennsylvania Western 428 351 82.0 23 5.4 48 11.2 0 0.0 

Illinois Northern 1,045 851 81.4 50 4.8 134 12.8 2 0.2 

California Northern 614 499 81.3 23 3.7 82 13.4 0 0.0 

Ohio Southern 596 483 81.0 21 3.5 83 13.9 0 0.0 

Oklahoma Western 220 178 80.9 6 2.7 25 11.4 0 0.0 

Louisiana Western 386 311 80.6 9 2.3 46 11.9 1 0.3 
104

Table 13 

Sentences Relative to the Guideline Range for Each Judicial District 

Ordered by Decreasing Rates of Guideline Conformance 

Post-Booker

Within-Range/

Government 

Sponsored

Downward 

Departures

Below-Range 

Booker

Upward 

Departures

District TOTAL n % n % n % n % Arkansas Eastern 252 202 80.2 9 3.6 36 14.3 3 1.2 

South Dakota 422 338 80.1 14 3.3 45 10.7 9 2.1 

Illinois Central 357 285 79.8 12 3.4 56 15.7 1 0.3 

Maryland 647 513 79.3 34 5.3 89 13.8 2 0.3 

Hawaii 453 359 79.2 17 3.8 69 15.2 0 0.0 

Washington Eastern 355 280 78.9 10 2.8 53 14.9 2 0.6 

Oregon 511 389 76.1 21 4.1 93 18.2 1 0.2 

New York Southern 1,226 929 75.8 63 5.1 227 18.5 1 0.1 

Pennsylvania Eastern 915 693 75.7 31 3.4 177 19.3 3 0.3 

Alaska 197 149 75.6 3 1.5 41 20.8 0 0.0 

Washington Western 713 536 75.2 26 3.6 143 20.1 0 0.0 

Delaware 161 118 73.3 13 8.1 30 18.6 0 0.0 

Rhode Island 127 93 73.2 3 2.4 26 20.5 1 0.8 

Connecticut 380 277 72.9 52 13.7 46 12.1 3 0.8 

Minnesota 543 385 70.9 30 5.5 125 23.0 0 0.0 

Wisconsin Eastern 367 258 70.3 13 3.5 87 23.7 2 0.5 

Iowa Southern 333 230 69.1 9 2.7 88 26.4 0 0.0 

New York Eastern 1,167 774 66.3 107 9.2 263 22.5 2 0.2 

Massachusetts 444 288 64.9 35 7.9 114 25.7 2 0.5 

SOURCE: U.S. Sentencing Commission, Special Post-Booker Coding Project, BOOKER05 (data extracted February 22, 2006Table prepared February 23, 2006). Summary numbers may not add up to their component parts due to rounding. 
105

C. DEMOGRAPHIC DIFFERENCES IN FEDERAL SENTENCING PRACTICES 

1. Use of Multivariate Analysis 

Much of Chapter 4 assessed Booker’s impact on federal sentencing by comparing 

the aggregate rate of imposition of within-range sentences after Booker with such rates 

before Booker. This general approach is natural and sound—one need not attempt to 

classify each individual case to assess the impact of a policy change among a whole 

population of cases. The caveat that accompanies this type of analysis, however, is that 

one must be cautious in attributing any changes in the aggregate rates solely to Booker

rather than to other changes that may have occurred at the same time. 

 Social scientists have developed a variety of statistical methods to measure the 

effects of policy changes at the aggregate level and to evaluate the potential influence of 

other factors.316 The basic approach is to compare a rate or average before and after a 

policy change after accounting for the effects of other changes that occurred at the same 

time. Multivariate analysis is one such method. The purpose of conducting the 

multivariate analysis is to determine whether any sentencing changes were statistically 

significant after controlling for relevant factors, or variables, for which data are available. 

The methodologies associated with the multivariate analyses undertaken for this report 

are described in Appendix B. 

 Associations among some variables, especially demographic ones, and the 

sentencing outcome should be viewed with caution. Multivariate analysis can not 

measure all factors that may affect the sentence of an offender or the time an offender 

may spend in prison. Unmeasured factors in the analyses conducted may include, for 

example, violent criminal history317 or the bail decision.318 If these “unmeasured factors” 

were able to be included in the models, significance of demographic factors may change. 

To the extent that a demographic factor such as race or gender is associated with any 

unmeasured factors, the demographic factor may serve as a proxy for the unmeasured 

 

316 These methods are sometimes called quasi-experimental or “Campbell and Stanley” designs, after a 

seminal monograph by Donald T. Campbell and Julian C. Stanley. See “Experimental and QuasiExperimental Designs for Research ”(1963). 317 The presence of violent criminal history may lead the court to sentence higher in the prescribed range. 

The Commission’s datafile does not have information on the type of criminal history behavior. In 2002, 

the Commission created a datafile which took a 25 percent random sample of cases sentenced in Fiscal 

Year 2000. This datafile looked more closely at offender’s criminal conduct, including detailed information 

on the type of criminal history the offender had. Using this data (the Intensive Study Sample 2000, or 

ISS2000), it was found that 24.4 percent of white offenders had violent criminal history events, as did 43.7 

percent of black offenders, 18.9 percent of Hispanic offenders, and 23.7 percent of “other” offenders. 

318 Offenders who are not given the opportunity to post bail, or may not be able to afford bail, are detained 

for the entire period before their sentencing. Thus, if an offender’s final sentencing range is 6-12 months, 

and the offender serves 10 months in prison before the final adjudication of the sentence, the court could 

sentence the offender to “time served,” and the sentence would be 10 months. An offender who was out on 

bail during this process may get a 6-month sentence for the same behavior, which the court may have 

wanted to give to the first offender if the bail circumstances were similar. 
106

factors in the multivariate models.319 If it were possible to include these unmeasured 

factors in the models, the statistical significance and impact of these demographic 

variables would likely change. 

2. Results 

 

 Multivariate analysis was conducted to assess whether a number of demographic 

factors were associated with lesser or greater sentence lengths after Booker. Figure 12 

shows the results of that analysis. 

 The multivariate analysis determined that demographic factors are associated with 

sentence length and their contribution to sentence lengths before and after Booker are 

identical. For example, studies conducted by the Commission before Booker concluded 

that the sentencing guidelines have not successfully eliminated an association between 

gender and sentencing outcome. In other words, before Booker, male offenders 

consistently were associated with higher sentences than female offenders. Sentences for 

male offenders were 17.0% higher than for female offenders post-PROTECT Act and 

16.2% higher post-Booker. Multivariate analysis conducted on post-Booker data 

revealed, therefore, that male offenders continue to be associated with higher sentences 

than female offenders. 

 Likewise, Figure 12 shows that age and citizenship show similar degrees of 

association with sentence length before and after Booker. Offenders over 25 years of age 

were associated with sentences 10.3% lower than offenders under 25 years of age postPROTECT Act, and with sentences 9.0% lower post-Booker. Non-U.S. citizens were 

associated with sentences 33.9% higher than U.S. citizens post-PROTECT Act and with 

sentences 35.7% higher post Booker. 

 Education also showed a statistically significant association with sentence length 

both pre-Booker and post-Booker. Post-PROTECT Act, offenders who went to college 

had sentences on average 8.4 percent less those who did not go to college. Post-Booker,

offenders who went to college had sentences on average 4.6 percent less than those who 

did not go to college. 

 As Figure 12 illustrates, there is a statistical association between the race of the 

offender and sentence length in the post-Booker population that was not present in the 

post-PROTECT Act population. Post-Booker, black offenders are associated with 

sentences that are 4.9 percent higher than white offenders, and “other” race offenders 

(mostly Native American offenders) are associated with sentences that are 10.8 percent 

higher than white offenders. Neither of these relationships was statistically significant in 

the post-PROTECT Act period. No difference was found between white and Hispanic 

offenders during either time period. 

 

 

319 See Myrna S. Raeder, Gender Related Issues in a Post-Booker Federal Guidelines World, 37 

MCGEORGE L. REV. No. 3 (Forthcoming 2006). 
107

17

33.9

-8.4

4.9

16.2

35.7

-4.6

10.8

-30-20-10

0

10203040

Post-PROTECT Act Post-Booker

Figure 12

Differences in Sentence Length for Demographic Factors

Results of Multivariate Analysis

Post-PROTECT Act - Post-Booker

“Other”

Race

vs.

White

Non-U.S.

Citizen

vs.

U.S. Citizen

Percentage Difference in Sentence Length

Any College

vs.

No College

No data point signifies that there was no statistical difference between the two groups. The data in this figure are from the Post-PROTECT Act (0Post-Booker (01/12/05 – 01/11/06) eras. Cases sentenced on or before January 11, 2006 were included in this figure. As of the data extraction dat

datafile, the Commission had received, coded and edited 1,300 cases sentenced between January 1, 2006 and January, 11, 2006.SOURCE: U.S. Sentencing Commission, 2006 Booker Report Datafiles.

Male

vs.

Female

Black 

vs.

White

Over 

25 Ye
108

 The Commission’s Fifteen Year Review determined that year-to-year fluctuations 

in racial or ethnic variables are not uncommon. These fluctuations should not 

automatically be thought of as signs of disparity or discrimination.320 Other social 

scientists have opined that “[t]hese relatively small effects may not be meaningful even 

though they are statistically significant...Any findings that are sensitive to minor changes 

in model specifications such as these must be interpreted with caution.” 321 This may be 

further demonstrated by examining the significant factors in the “drug” and “non-drug” 

populations (see Table B-1 in Appendix B for these results). Post-Booker, there was no 

statistical difference between black and white offenders’ sentences in drug cases, but 

there was a difference post-PROTECT Act. Conversely, in non-drug cases, black and 

white offenders’ sentences were statistically different post-Booker but not postPROTECT Act. 

 Figure 13 gives a year-by-year depiction of differences in sentencing lengths by 

race and gender from Fiscal Year 1999 through January 2006. Figure 13 graphically 

depicts the year-to- year fluctuations of the significance of race in the sentence decision, 

while also showing the stability of the gender association. 

 

320 “Offense-to-offense and year to year fluctuations in racial and ethnic effects are difficult to reconcile 

with theories of enduring stereotypes, powerlessness, or overt discrimination...” See FIFTEEN YEAR 

REVIEW. 321 McDonald, Douglas C. and Kenneth E. Carlson. 1993. Sentencing in the Federal Courts: Does Race 

Matter? U.S. Department of Justice, Bureau of Justice Statistics, Washington, D.C., p. 106. 
109

14.2

10.2

8.2

18.6

16.8

13.2

15.6

17.0 

-7.6

-13.2

10.7 

27.6

-20.0-15.0-10.0

-5.0

0.05.0

10.015.020.025.030.0

FY1999 FY2000 PrePROTECT

Act

PostPROTECT

Act

Hispanic vs. White Black vs. White O ther vs. White Male vs. Female

Figure 13

Differences in Sentence Length by Race and Gender

Results of Multivariate Analysis

FY1999 – Post-Booker

Percentage Difference in Sentence Length

FY2001 FY2002

No data point signifies that there was no statistical difference between the two groups. Cases sentenced on or before January 11, 2006 were included data extraction date for the post-Booker datafile, the Commission had received, coded and edited 1,300 cases sentenced between January 1, 2006 an

SOURCE: U.S. Sentencing Commission, 1999-2003 Datafiles, USSCFY1999-USSCFY2003, and 2006 Booker Report Datafiles.
110

Chapter 6 

ANALYSIS OF COMMISSION DATA: IMPACT OF BOOKER ON SPECIFIC 

OFFENSE- AND OFFENDER- ISSUES 

A. INTRODUCTION

Quite apart from the analyses in Chapter 4 of overall national sentencing trends, 

and the analyses in Chapter 5 of regional and demographic differences in sentencing 

practices, there are analyses that may prove useful to gauge whether Booker has impacted 

federal sentencing practices in several distinct areas. This chapter, therefore, focuses on 

assessing the impact of Booker with respect to more specific sentencing areas, such as 

particular types of offenses (i.e., sex offenses and crack cocaine offenses), and particular 

categories of offenders (i.e., first offenders and career offenders). 

The analysis in this section focuses on specific sentencing issues and offender 

groups that are of perennial interest to the federal criminal justice community, or for 

which the issue of a Booker effect naturally arises. Specifically, this part of the analysis 

addresses changes in sentencing practices regarding the use of cooperation without a 

government motion as a reason for the imposition of a non-government-sponsored, 

below-range sentence, sex offenders, crack cocaine offenders, first offenders, career 

offenders, and the rate of imposition of below-range sentences based on early disposition 

programs or other “fast track” mechanisms. 

B. FINDINGS

Analyses of the impact of Booker with respect to specific sentencing issues 

yielded the following findings: 

1. Cooperation Reductions without a Government Motion 

• Non-government-sponsored, below-range sentences based on the 

defendant’s cooperation with authorities, i.e., below-range 

sentences granted for substantial assistance without a government 

motion for such, occur post-Booker. Post-Booker, there were 258 

cases in which cooperation with authorities was given as a reason 

for the imposition of a non-government-sponsored, below-range 

sentence. In 28 of these cases, substantial assistance or cooperation 

with authorities was the only reason cited. In 230 of these cases, it 

was one of a combination of reasons for the below-range sentence. 

2. Sex Offenses 

• The average length of sentences for cases sentenced under each of 

the criminal sexual abuse guidelines has remained fairly constant. 
111

• The rate of imposition of below-range sentences declined for 

criminal sexual abuse cases post-PROTECT Act but increased 

slightly post-Booker. The rate of imposition of below-range 

sentences in criminal sexual abuse cases is below the rate for all 

cases post-Booker. 

• The rate of imposition of below-range sentences for abusive sexual 

contact cases decreased following the PROTECT Act but increased 

post-Booker. 

• The rate of imposition of below-range sentences for cases 

involving the sexual abuse of a minor decreased post-PROTECT 

Act but increased post-Booker. The increased rate post-Booker

was less than what the rate had been pre-PROTECT Act. 

• The rate of imposition of above-range sentences increased postBooker for criminal sexual abuse offenses and abusive sexual 

contact offenses but declined for offenses involving the sexual 

abuse of a minor. 

• The majority of below-range sentences in cases involving criminal 

sexual abuse are imposed for offenders with little or no criminal 

history. 

• Consistent with the trend seen in the national post-Booker data for 

cases overall, the average length of sentences has increased for 

cases sentenced under the sexual exploitation, i.e., child 

pornography, guidelines. 

• The rate of imposition of below-range sentences for sexual 

exploitation offenses declined post-PROTECT Act but increased 

post-Booker. 

• The rate of imposition of above-range sentences for cases 

involving production of child pornography decreased postPROTECT Act but increased post-Booker. Above-range sentences 

have steadily increased for cases involving possession of child 

pornography. 

3. Crack Cocaine Offenses

• Courts do not often appear to be using Booker or the factors under 

18 U.S.C. § 3353(a) to impose below-range sentences in crack 

cocaine cases. Courts do not often explicitly cite crack 

cocaine/powder cocaine sentencing disparity as a reason to impose 

below-range sentences in crack cocaine cases. 
112

4. First Offenders 

• The rate of imposition of below-range sentences for first offenders 

increased after Booker. 

• The rate of imposition of above-range sentences for first offenders 

increased after Booker. 

• The proportion of first offenders receiving prison sentences has 

remained essentially the same, as has the average length of 

sentences imposed. 

5. Career Offenders 

• The rate of imposition of below-range sentences for career 

offenders increased after Booker. The majority of the cases in 

which below-range sentences are being imposed for career 

offenders are drug trafficking cases. 

• The average length of sentences imposed for career offenders has 

decreased after Booker. This continues the pattern that existed 

before Booker.

6. Early Disposition Programs 

• Sentencing courts in districts without early disposition programs 

(EDP) report relatively low rates of imposition of below-range 

sentences. In its 2003 Departure Report, the Commission 

expressed concern that these districts increasingly might grant 

below-range sentences to reach outcomes for similarly-situated 

defendants similar to the outcomes that would be reached in EDP 

districts. The data do not reflect that these concerns generally have 

been realized. In districts without EDP, the data do not reflect 

widespread use of Booker to grant below-range sentences to reflect 

sentences available in EDP districts. 

C. COOPERATION REDUCTIONS WITHOUT A GOVERNMENT MOTION

The Department of Justice has expressed concern that courts would cite Booker to 

impose non-government-sponsored, below-range sentences based on the defendant’s 

cooperation despite the absence of a government motion for a substantial assistance 
113

departure under USSG §5K1.1.322 Use of Booker in this fashion might reduce 

defendants’ incentive for cooperating with the government. To address this concern, the 

Commission examined cases in the relevant time periods discussed throughout this 

chapter. The Commission specifically reviewed the reasons given for below-range 

sentences to determine the extent to which such sentences are imposed based on the 

defendant’s cooperation with authorities in the absence of a government motion for a 

substantial assistance departure under USSG §5K1. 

The findings in this section should be considered with one additional caveat in 

mind. In many cases, the statement of reasons may indicate that the court sentenced 

below the range for cooperation, but the form contains no indication whether the 

government filed a motion for substantial assistance. The Commission classifies those 

cases as “cooperation motion unknown.” Pursuant to the revised coding methodology 

adopted after Booker, these cases fall into one of the non-government-sponsored, belowrange categories. 

Consistent with the analysis performed throughout this report, the Commission 

examined the 3 relevant time periods to identify non-government-sponsored, below-range 

sentences citing either “cooperation without a motion,” “cooperation motion unknown,” 

or “§5K1.1 substantial assistance without government motion” in the reasons cited by the 

court. In the pre-PROTECT Act period, courts cited these reasons in 17 cases (0.5%) out 

of 3,258 receiving a non-government-sponsored downward departure. In the postPROTECT Act period, courts cited these reasons in 29 cases (0.7%) out of 4,137 

receiving a non-government-sponsored downward departure. Finally, in the post-Booker 

period, courts cited these reasons in 258 cases (3.2%) out of 8,189 receiving a nongovernment-sponsored, below-range sentence. Therefore, the date indicate that the use of 

these reasons has increased post-Booker. 

The Commission examined each of these 258 post-Booker cases in an attempt to 

ascertain whether the cases evidenced a discernable pattern, such as arising from 

particular districts or in particular types of cases. This examination revealed that 61 of 

the 94 federal judicial districts reported these reasons for the imposition of nongovernment-sponsored, below-range sentences post-Booker. Of these 61 districts, 14 

reported only a single case citing one of these reasons. The greatest number reported by 

a single district (the Southern District of Texas) was 32 cases. That district accounted for 

12.4 percent of all below-range sentences citing these reasons. Four other districts 

reported double-digit numbers of cases receiving a non-government-sponsored, belowrange sentence for these reasons. In all, these five districts (the Eastern District of New 

York, the Eastern District of Pennsylvania, the District of Minnesota, the Southern 

District of Florida and the Southern District of Texas) account for 82 of the cases (or 

31.8% of the total) (See Appendix E-7). 

 

322 See Implications of the Booker/Fanfan Decisions for the Federal Sentencing Guidelines: Hearing before 

the Subcomm. on Crime, Terrorism, and Homeland Security of the House Judiciary Comm. 109th Cong. 

(2005) (Written Statement of Christopher Wray, Assistant Attorney General, U.S. Department of Justice). 
114

In-depth examination of these cases also revealed that there is no discernable 

pattern among the offenses that receive a reduction for this reason. Eighteen different 

offense types (out of a total of 32 possible offense type classifications) included at least 

one case with a non-government-sponsored, below-range sentence citing these reasons. 

Of these, 4 offense types (drug trafficking, fraud, immigration, and firearms offenses) 

accounted for 85.7 percent of the cases; drug trafficking alone accounted for more than 

half (56.6%). Not surprisingly, these are 4 of the most frequently prosecuted types of 

cases. Interestingly, these 4 offense types also had the highest rates of imposition of 

government-sponsored, substantial assistance departures (USSG §5K1.1) post-Booker, 

accounting for 85.7 percent of all substantial assistance departures (See Appendix E-8) 

Only 28 of the 258 cases (10.8%) cite one of these reasons as the only reason for 

the non-government-sponsored, below-range sentence. Of the 230 cases citing additional 

reasons for the below-range sentence, the other reasons cited by the court are similar to 

the reasons cited generally for downward departures and below-range sentences citing 

Booker (See Appendix E-9). Of the 258 cases citing one of these reasons as grounds for 

the below-range sentence, 114 cases fall into the category of “cooperation-motion 

unknown.” Conceivably, some of these cases might involve government-sponsored 

reductions. Absent better documentation, the Commission cannot make that 

determination. 

 The Commission compared the extent of the reductions below the applicable 

guideline range granted in this category of cases to the extent of reductions granted in 

cases in which the government filed a substantial assistance motion. The analysis 

revealed that the extent to which the sentence is below-range differs when the substantial 

assistance reduction is pursuant to a government motion, compared with cases in which 

there is no motion or the motion is unknown. In cases involving a government motion, 

the median percent decrease below the applicable guideline range is 50.0 percent, or a 

median of 28 months below the guideline sentence. By contrast, in cases in which the 

filing of a government motion is not reflected in the documents provided to the 

Commission, the median percent decrease is 35.1 percent or a median of 13 months 

below the guideline minimum. 

The Commission also examined the proportion of cases with these departure 

reasons receiving imprisonment and the average length of the prison sentence. These 

results are reported in Table 14. Comparisons across the 3 time periods must be viewed 

cautiously because of the very small number of cases identified during the pre-PROTECT 

Act and post-PROTECT Act periods. Based on the limited data available, the proportion 

of offenders receiving imprisonment has declined post-Booker while the length of 

imprisonment for those receiving prison sentences has increased. 
115

Table 14 

Cases with Sentence Reduction for Cooperation Without A Motion 

Sentence Type and Length 

 n

Percent

Prison

Average 

Sentence 

Median 

Sentence

Pre-PROTECT Act 

(10/1/02-4/30/03) 17 94.1 79 30

Post-PROTECT Act 

(5/1/03-6/24/04) 29 93.1 49 18

Post-Booker 

(1/12/05-1/11/06) 257 85.2 61 37

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

D. SEX OFFENSES

 As indicated earlier in this chapter, a major impetus for enactment of the 

PROTECT Act was congressional concern that the rate of downward departures was too 

great to control and deter crime, particularly sex offenses against children. Beyond the 

desire to curb downward departures, there also was a strong congressional desire 

generally to stiffen penalties for sex offenses against children. A number of legislative 

changes and guideline amendments have increased punishment for these offenses in 

recent years. 

For purposes of this section of the report, and to facilitate the analysis of the data, 

federal sex offenses are broken down into two categories: (1) criminal sexual abuse 

offenses and (2) sexual exploitation offenses. Criminal sexual abuse offenses include 

crimes such as rape, statutory rape, and inappropriate sexual contact offenses. The 

following guidelines comprise the offenses of criminal sexual abuse: Criminal Sexual 

Abuse—Rape (USSG §2A3.1), Criminal Sexual Abuse of a Minor—Statutory Rape 

(USSG §2A3.2), and Abusive Sexual Contact (USSG §2A3.4). Sexual exploitation 

offenses include crimes related to the production, trafficking, and possession of child 

pornography. The following guidelines comprise the offenses of sexual exploitation: 

Sexual Exploitation of a Minor—Production (USSG §2G2.1), Trafficking in Materials 

Involving the Sexual Exploitation of a Minor (USSG §2G2.2), and Possession of 

Materials Involving Sexual Exploitation of a Minor (USSG §2G2.4). 

The analysis in this section evaluates the sentencing patterns for both criminal 

sexual abuse offenses and sexual exploitation offenses in light of a primary goal of the 

PROTECT Act: to curtail the imposition of below-range sentences in federal sex 

offenses. 
116

Two factors warrant caution in the use of this analysis to draw conclusions about 

the effect of Booker on the sentencing of federal sex offenses.323 First, numerous 

legislative changes (particularly statutorily prescribed mandatory minimum sentences) 

and amendments to the sex offense guidelines (e.g., increased base offense levels) have 

resulted in substantial sentence increases for these offenders.324 Second, sex offenses 

account for a very small proportion of the federal caseload.325 The number of offenders 

sentenced under each of these guidelines is quite small compared to the number of 

offenders sentenced under the five most commonly applied guidelines. Such small 

numbers of cases potentially distort both percentages and averages. 

 1. Criminal Sexual Abuse Offenses

 Historically, criminal sexual abuse offenses have comprised a small proportion of 

the overall federal caseload. This trend continued in the post-Booker period with 309 

cases sentenced under these guidelines comprising 0.5% of the overall caseload. In 

addition, this small group of offenders differs in composition from the overall federal 

caseload. Post-Booker, criminal sexual abuse offenses consist of a relatively large 

proportion of offenders in the “other” race category (primarily Native Americans, 62.1%, 

39.5%, and 80.0% for USSG §§2A3.1, 2A3.2, and 2A3.4, respectively).326 Native 

Americans comprise only 4.5 percent of the overall federal sentencing population. A 

large proportion of offenders sentenced for criminal sexual abuse offenses are in Criminal 

History Category I (69.0 percent, 76.1 percent, and 63.4 percent for USSG §§2A3.1, 

2A3.2, and 2A3.4, respectively) compared to 46.4 percent for all post-Booker 

offenders.327 

 

323 The use of caution in the interpretation of this data also is necessary because of the ambiguous status of 

the departure provisions of 18 U.S.C. § 3553(b)(2). Those provisions, curtailing the use of downward 

departures in sex offense cases, were added by the PROTECT Act. The Booker decision, however, excised 

the departure provisions of 18 U.S.C. § 3553(a) but, perhaps inadvertently, left intact the provisions of 18 

U.S.C. § 3553(b). Post-Booker practices regarding the imposition of below-range sentences in sex offense 

cases may have been affected by this ambiguity, but the extent of such an effect, if any, cannot be measured 

by the data. 

324 The Commission undertook a comprehensive restructuring of the sexual exploitation guidelines 

effective November 1, 2004. Base offense levels were increased for USSG §§2A3.1, 2A3.4, 2G2.1 and 

2G2.2. Specific offense characteristic enhancement levels were increased for USSG §§2A3.2(b)(1) and 

2A3.2(b)(2) and new specific offense characteristics were created for USSG §§2G2.1(b)(2), (3) and (4) and 

2G2.2(b)(1). Finally, a new guideline was created at USSG §2G1.3 (Promoting a Commercial Sex Act or 

Prohibited Sexual Conduct with a Minor) that increased sentences for offenders who travel across state 

lines to engage in illegal sexual conduct with a minor. These amendments accompanied the PROTECT 

Act’s enactment of a number of mandatory minimum penalties affecting offenses sentenced under USSG 

§§2G1.3, 2G2.1, and 2G2.2, and the creation of a specific offense characteristic for the number of images. 325 Pre-PROTECT, post-PROTECT, and post-Booker the sex offense guidelines (USSG §§2A3.1, 2A3.2, 

2A3.4, 2G2.1, 2G2.2, and 2G2.4) accounted for 1.4 percent, 1.5 percent, and 2.0 percent of the caseload, 

respectively. 

326 See Appendix E-10 through E-12 for complete demographic information. 327 The proportion of Native Americans among these offenders in the past has influenced sentences because 

of jurisdictional differences in sentencing practices, specifically potential sentencing disparity based on 

different federal, state, and tribal punishments for similar offenses. See the Sentencing Commission’s 

Report of the Native American Advisory Group available on www.ussc.gov for a discussion of the 

sentencing and disparity issues. 
117

Sentencing patterns for criminal sexual abuse offenses were similar across the 3 

time periods. As illustrated by Table 15, the average sentences for each of the 3 

guidelines have remained fairly constant. Table 16 shows rates of imposition of nongovernment-sponsored, below-range sentences decreased for all three criminal sexual 

abuse guidelines following the PROTECT Act. 
118

Table 15328

Sentence Type and Length for Selected Sex Offense Guidelines 

Pre-PROTECT Act 

(10/1/02-4/30/03) n

Percent

Prison

Average 

Sentence 

Median 

Sentence

Criminal Sexual Abuse (§2A3.1) 67 97.0 149 121

Sexual Abuse of a Minor (§2A3.2) 96 93.8 43 33

Abusive Sexual Contact (§2A3.4) 25 88.0 27 18

Exploitation of Minor (§2G2.1) 53 98.1 146 126

Traff. in Child Pornography (§2G2.2) 163 93.9 65 51

Possession of Child Pornography (§2G2.4) 159 86.8 25 27

Post-PROTECT Act 

(5/1/03-6/24/04) n

Percent

Prison

Average 

Sentence 

Median 

Sentence

Criminal Sexual Abuse (§2A3.1) 195 100.0 144 120

Sexual Abuse of a Minor (§2A3.2) 166 98.8 49 37

Abusive Sexual Contact (§2A3.4) 38 92.1 32 24

Exploitation of Minor (§2G2.1) 117 100.0 162 135

Traff. in Child Pornography (§2G2.2) 368 96.7 63 51

Possession of Child Pornography (§2G2.4) 322 94.7 32 27

Post-Booker 

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

Percent

Prison

Average 

Sentence 

Median 

Sentence

Criminal Sexual Abuse (§2A3.1) 145 99.3 158 120

Sexual Abuse of a Minor (§2A3.2) 134 94.8 53 37

Abusive Sexual Contact (§2A3.4) 30 83.3 27 22

Exploitation of Minor (§2G2.1) 98 100.0 209 180

Traff. in Child Pornography (§2G2.2) 527 97.7 92 71

Possession of Child Pornography (§2G2.4) 396 93.4 42 30

As illustrated by Table 16, rates of imposition of below-range sentences for 

USSG §2A3.1 declined post-PROTECT Act but increased slightly post-Booker. The 

proportion of above-range sentences has nearly doubled for these offenses during the 

same time period (4.6% pre-PROTECT Act to 2.6% post-PROTECT Act to 9.0% postBooker). 

 

328 Excludes cases missing information on primary sentencing guideline, sentence imposed and sentence 

length. Cases with zero months of prison ordered or missing or indeterminable information were excluded. 

The information in this table does not include any time of confinement as defined in USSG §5C1.1. 

SOURCE: U.S. Sentencing Commission 2006 Booker Report Datafiles. 
119

Table 16329

Sentences Relative to Guideline Range for Selected Sex Offense Guidelines 

Pre-PROTECT Act 

(10/1/02-4/30/03) n 

Percent 

Within 

/Gov’t330

Percent 

Upward 

Departure 

Percent 

Downward 

Departure 

All Guidelines 37,699 90.6 0.8 8.6 

Criminal Sexual Abuse (§2A3.1) 66 81.8 4.6 13.6 

Sexual Abuse of a Minor (§2A3.2) 93 77.4 6.5 16.1 

Abusive Sexual Contact (§2A3.4) 25 84.0 4.0 12.0 

Exploitation of Minor (§2G2.1) 53 81.1 15.1 3.8 

Traff. in Child Porn. (§2G2.2) 161 82.6 3.7 13.7 

Poss. of Child Porn. (§2G2.4) 152 73.7 1.3 25.0 

Post-PROTECT Act 

(5/1/03-6/24/04) n 

Percent 

Within 

/Gov’t 

Percent 

Upward 

Departure

Percent 

Downward 

Departure 

All Guidelines 75,723 93.7 0.8 5.5 

Criminal Sexual Abuse (§2A3.1) 194 89.2 2.6 8.2 

Sexual Abuse of a Minor (§2A3.2) 164 93.3 5.5 1.2 

Abusive Sexual Contact (§2A3.4) 38 86.8 7.9 5.3 

Exploitation of Minor (§2G2.1) 112 92.0 6.2 1.8 

Traff. in Child Porn. (§2G2.2) 362 83.7 4.1 12.2 

Poss. of Child Porn. (§2G2.4) 316 84.5 3.2 12.3 

Post-Booker 

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

Percent 

Within 

/Gov’t 

Percent 

Upward 

Departure 

Percent 

Downward 

Departure 

Percent 

Booker

Authority 

All Guidelines 65,368 85.9 1.6 3.2 9.3 

Criminal Sexual Abuse (§2A3.1) 144 81.9 9.0 2.1 6.9 

Sexual Abuse of a Minor (§2A3.2) 130 83.1 4.6 3.1 9.2 

Abusive Sexual Contact (§2A3.4) 30 70.0 16.7 3.3 10.0 

Exploitation of Minor (§2G2.1) 97 74.2 14.4 1.0 10.3 

Traff. in Child Porn. (§2G2.2) 520 78.2 2.7 5.4 13.7 

Poss. of Child Porn. (§2G2.4) 387 69.5 4.1 5.4 20.9 

After a substantial post-PROTECT Act decline, post-Booker rates of imposition 

of non-government-sponsored, below-range sentences for cases sentenced under USSG 

 

329 Missing information (departure status) reduces the total number of cases. 330 The "Within/Gov’t” category includes within range sentences and government-sponsored downward 

departures (Substantial Assistance under USSG §5K1.1, EDP under USSG § 5K3.1 and other governmentsponsored downward departures). See Appendix B for further descriptions of these categories. 

SOURCE: U.S. Sentencing Commission 2006 Booker Report Datafiles. 
120

§2A3.2 (statutory rape) increased, but to rates below pre-PROTECT rates (16.1% prePROTECT Act to 1.2 % post-PROTECT Act to 12.3% post-Booker). 

Rates of imposition of non-government-sponsored, below-range sentences for 

cases sentenced under USSG §2A3.4, the abusive sexual contact guideline, decreased 

following the PROTECT Act and increased post-Booker (12.0% pre-PROTECT Act to 

5.3% post-PROTECT Act to 13.3% post-Booker). At the same time, above-range 

sentences have quadrupled from about four percent pre-PROTECT Act to 16.7 percent 

post-Booker. 

Post-Booker, the majority of non-government-sponsored, below-range sentences 

are for offenders in these offense categories who have little or no criminal history. Table 

17 shows that the overwhelming majority of these offenders are in Criminal History 

Category I, which also is the category of offenders with the largest number of belowrange sentences. 
121

Table 17331

Sentence Relative to the Guideline Range for Each Criminal History Category for 

Criminal Sexual Abuse Offenders 

Post-Booker 

 Criminal Sexual Abuse 

 (USSG §2A3.1) 

 Within/Gov’t332 Above Range Down. Dep. Booker

CHC Total n % n % n % n %

Total 144 118 81.9 13 9.0 3 2.1 10 6.9

I 99 84 84.8 8 8.1 2 2.0 5 5.0

II 22 18 81.8 1 4.5 1 4.5 2 9.1

III 6 3 50.0 1 16.7 0 0.0 2 33.3

IV 3 3 100.0 0 0.0 0 0.0 0 0.0

V 9 6 66.7 2 22.2 0 0.0 1 11.1

VI 5 4 80.0 1 20.0 0 0.0 0 0.0

 Sexual Abuse of a Minor 

 (USSG §2A3.2) 

 Within/Gov’t Above Range Down. Dep. Booker

CHC Total n % n % n % n %

Total 130 108 83.1 6 4.6 4 3.1 12 9.2

I 99 82 82.8 3 3.0 2 2.0 12 12.1

II 15 14 93.3 0 0.0 1 6.7 0 0.0

III 4 3 75.0 0 0.0 1 25.0 0 0.0

IV 2 2 100.0 0 0.0 0 0.0 0 0.0

V 6 3 50.0 3 50.0 0 0.0 0 0.0

VI 4 4 100.0 0 0.0 0 0.0 0 0.0

 Abusive Sexual Contact 

 (USSG §2A3.4) 

 Within/Gov’t Above Range Down. Dep. Booker

CHC Total n % n % n % n %

Total 30 21 70.0 5 16.7 1 3.3 3 10.0

I 19 15 78.9 2 10.5 1 5.3 1 5.3

II 6 3 50.0 2 33.3 0 0.0 1 16.7

III 4 2 50.0 1 25.0 0 0.0 1 25.0

IV 0 0 0.0 0 0.0 0 0.0 0 0.0

V 1 1 100.0 0 0.0 0 0.0 0 0.0

VI 0 0 0.0 0 0.0 0 0.0 0 0.0

 

331 Missing information (departure status) reduces the total number of cases. 332 The “Within/Gov’t” category includes within range sentences and government-sponsored downward 

departures (Substantial Assistance under USSG §5K1.1, EDP under USSG § 5K3.1 and other governmentsponsored downward departures). See Appendix B for further descriptions of these categories. 

SOURCE: U.S. Sentencing Commission 2006 Booker Report Datafiles. 
122

2. Sexual Exploitation Offenses 

 Sexual exploitation offenses, similar to criminal sexual abuse offenses, also 

comprise a relatively small proportion of the federal caseload, accounting for 1.5 percent 

(1,021 cases) of the post-Booker cases. The composition of offenders sentenced for 

sexual exploitation is substantially different from the overall federal caseload. PostBooker, offenders sentenced under these guidelines overwhelmingly were white (92.9%, 

94.5%, and 91.9% of USSG §§2G2.1, 2G2.2, and 2G2.4, respectively), compared to the 

overall federal caseload, in which 28.8 percent of offenders were white. 

 The Commission examined average sentence lengths for each of the sexual 

exploitation guidelines. Consistent with the trend seen in the national post-Booker data, 

average sentences for these guidelines have increased. Table 15 shows the results of this 

examination. The Commission determined that the rates of imposition of nongovernment-sponsored, below-range sentences among these offenses have also increased 

substantially across the three time periods. See Table 16. 

Rates of imposition of non-government-sponsored, below-range sentences for 

production offenses (USSG §2G2.1) decreased slightly following the PROTECT Act 

(from 3.8 % to 1.8%) and then increased post-Booker to 11.3 percent, a rate nearly three 

times the pre-PROTECT Act. During the same time period, rates of imposition of aboverange sentences fell, but returned to rates close to pre-PROTECT Act rates (15.1% prePROTECT Act to 6.2% post-PROTECT Act to 14.4% post-Booker). 

Rates of imposition of non-government-sponsored, below-range sentences for 

trafficking in child pornography (USSG §2G2.2) show an overall increase across the 

three time periods from 13.7 percent pre-PROTECT Act to 12.2 post-PROTECT Act to 

19.1 percent post-Booker. Rates of imposition of above-range sentences have remained 

relatively constant. 

Rates of imposition of non-government-sponsored, below-range sentences for 

possession of child pornography offenses (USSG §2G2.4) decreased following the 

PROTECT Act and returned post-Booker to rates that exceed pre-PROTECT Act rates 

(25.0% to 12.3% to 26.3%). Rates of imposition of above-range sentences increased 

steadily during the same time period from 1.3 percent pre-PROTECT Act to 3.2 percent 

post-PROTECT Act to 4.1 percent post-Booker offenders. 

Table 18 shows that the criminal history for sexual exploitation offenders is 

similar to that demonstrated for criminal sexual abuse offenders. Specifically, the 

majority of offenders sentenced under each guideline are in Category I, and the majority 

of non-government-sponsored, below-range sentences are for these offenders with little 

or no criminal history. For example, approximately 83 percent of both trafficking (USSG 

§2G2.2) and possession (USSG §2G2.4) offenders are in criminal history category I, and 

those Category I offenders account for 92.9 percent and 94.1 percent of below-range 

sentences, respectively. 
123

Table 18333

Sentence Relative to the Guideline Range for Each Criminal History Category for 

Sexual Exploitation Offenses 

Post-Booker

Exploitation of a Minor 

(USSG §2G2.1) 

 Within/Gov’t334 Above Range Down. Dep. Booker

CHC Total n % n % n % n %

Total 97 72 74.2 14 14.4 1 1.0 10 10.3

I 55 37 67.3 10 18.2 0 0.0 8 14.5

II 13 10 76.9 1 7.7 1 7.7 1 7.7

III 7 6 85.7 0 0.0 0 0.0 1 14.3

IV 6 4 66.7 2 33.3 0 0.0 0 0.0

V 8 7 87.5 1 12.5 0 0.0 0 0.0

VI 8 8 100.0 0 0.0 0 0.0 0 0.0

Trafficking in Child Pornography 

(USSG §2G2.2) 

 Within/Gov’t Above Range Down. Dep. Booker

CHC Total n % n % N % n %

Total 520 407 78.3 14 2.7 28 5.4 71 13.6

I 432 329 76.2 11 2.5 27 6.3 65 15.1

II 36 32 88.9 2 5.6 0 0.0 2 5.6

III 28 24 85.7 0 0.0 1 3.6 3 10.7

IV 11 10 90.9 1 9.1 0 0.0 0 0.0

V 10 9 90.0 0 0.0 0 0.0 1 10.0

VI 3 3 100.0 0 0.0 0 0.0 0 0.0

Possession of Child Pornography 

(USSG §2G2.4) 

 Within/Gov’t Above Range Down Dep. Booker

CHC Total n % n % n % n %

Total 387 269 69.5 16 4.1 21 5.4 81 20.9

I 322 213 66.2 13 4.0 21 6.5 75 23.3

II 28 23 82.1 2 7.1 0 0.0 3 10.7

III 18 15 83.3 0 0.0 0 0.0 3 16.7

IV 11 10 90.9 1 9.1 0 0.0 0 0.0

V 4 4 100.0 0 0.0 0 0.0 0 0.0

VI 4 4 100.0 0 0.0 0 0.0 0 0.0

 

333 Missing information (departure status) reduces the total number of cases. 334 The “”Within/Gov’t” category includes within range sentences and government-sponsored downward 

departures (Substantial Assistance under USSG §5K1.1, EDP under USSG §5K3.1 and other governmentsponsored downward departures). See Appendix B for further descriptions of these categories. 

SOURCE: U.S. Sentencing Commission 2006 Booker Report Datafiles. 
124

While the rates of imposition of non-government-sponsored, below-range 

sentences have increased post-Booker for production, trafficking, and possession of child 

pornography offenses, the average and median sentences for these offenses also have 

increased from the post-PROTECT period. See Table 15. For example, the median 

sentence for production of child pornography has increased from 135 months to 180 

months (average sentence has increased from 162 to 209 months), median sentences for 

trafficking have increased from 51 to 71 months (average increased from 63 to 92 

months), and the median sentence for possession has increased from 27 to 30 months 

(average sentence has increased from 32 to 42 months). 

Table 19 shows the distribution across the guideline range for sex offenses 

sentenced within-range. Less than half of within-range sentences are located at the 

bottom of the guideline range for four of the sex offense guidelines. Only child 

pornography trafficking cases (USSG §2G2.2) demonstrate a pattern similar to that 

reported for all offenses (see Table 3), with approximately 60 percent of within-range 

sentences at the bottom of the range. Possession offenses tend to cluster at the bottom of 

the range, with 74.5 percent of sentences at the guideline minimum. 
125

Table 19 

Position of Sentence Within the Guideline Range 

for Selected Sex Offense Guidelines and All Guidelines 

Post-Booker 

Guideline 

Minimum 

 Lower Half 

of Range 

 Midpoint of 

Range 

 Upper Hal

of Range 

Total n % n % n % n 

All Guidelines 31,530 18,354 58.2 4,920 15.6 2,649 8.4 2,360 Criminal Sexual Abuse (§2A3.1) 89 39 43.8 16 18.0 4 4.5 7 

Sexual Abuse of a Minor  (§2A3.2) 71 32 45.1 7 9.9 5 7.0 7 

Abusive Sexual Contact  (§2A3.4) 19 7 36.8 3 15.8 3 15.8 2 1

Exploitation of Minor  (§2G2.1) 36 12 33.3 8 22.2 2 5.6 3 

Trafficking in Child Pornography  (§2G2.2) 295 174 59.0 40 13.6 14 4.8 23 

Possession of Child Pornography (§2G2.4) 196 146 74.5 12 6.1 15 7.7 3 

SOURCE: U.S. Sentencing Commission 2006 Booker Report Datafiles. 
126

E. CRACK COCAINE OFFENSES

In 1986, Congress responded to a national sense of urgency surrounding penalties 

for crack cocaine and other controlled substances by enacting the Anti-Drug Abuse Act 

of 1986335 (“the Act”), which created the basic framework of statutory mandatory 

minimum penalties currently applicable to federal drug trafficking offenses generally. 

Concluding that crack cocaine offenses were more serious than powder cocaine offenses, 

Congress established significantly higher penalties for crack cocaine offenses. The Act 

differentiated between powder cocaine offenses and crack cocaine offenses by requiring 

100 times less crack cocaine than powder cocaine to trigger five- and ten-year mandatory 

minimum penalties. The Commission responded to the Act by incorporating the statutory 

100-to-1 drug quantity ratio into the guidelines. Because of the statutory and guideline 

differentiation between crack cocaine offenses and powder cocaine offenses, the withinrange sentence based solely on drug quantity generally is three to over six times longer 

for crack cocaine offenses than for powder cocaine offenses. 

Federal sentencing policy for cocaine offenses, particularly the 100-to-1 drug 

quantity ratio that distinguishes crack cocaine offenses from powder cocaine offenses, 

long has come under intense criticism from the criminal justice community. The 

Commission itself has recommended three times to Congress that the 100-to-1 drug 

quantity ratio be revisited.336 In its 2002 cocaine report, the Commission found that: (1) 

the current penalties exaggerate the relative harmfulness of crack cocaine, (2) current 

penalties sweep too broadly and apply most often to lower level offenders, (3) current 

quantity-based penalties overstate the seriousness of most crack cocaine offenses and fail 

to provide adequate proportionality, and (4) the severity of current penalties mostly 

impacts minorities.337 

 The criticism of federal sentencing policy for crack cocaine offenses has 

continued post-Booker.

338 Some commentators have hypothesized that courts would use 

their expanded authority under Booker to fashion more non-government-sponsored, 

below-range sentences in crack cocaine cases. This analysis assesses empirically the 

validity of that hypothesis and also assesses whether the post-Booker data distinguish the 

sentencing of crack cocaine offenses in any other respect. 

 Sentencing practices regarding crack cocaine offenses generally have followed 

the same patterns described thus far and are consistent with those of the other major drug 

types across the pre-PROTECT Act, post-PROTECT Act, and post-Booker time periods. 

See Table 20. All five of the major drug types had overall decreases in within-range 

sentences across the three time periods primarily attributable to an increase in rates of 

 

335 See Pub. L. 99–570, 100 Stat. 3207 (1986). 336The Commission submitted 3 reports to Congress on cocaine offenses: the 1995 SPECIAL REPORT TO 

CONGRESS: COCAINE AND FEDERAL SENTENCING POLICY, the 1997 SPECIAL REPORT TO CONGRESS:

COCAINE AND FEDERAL SENTENCING POLICY and the 2002 REPORT TO CONGRESS: COCAINE AND FEDERAL 

SENTENCING POLICY, which are available at http://www.ussc.gov. 337 Commission, 2002 REPORT TO CONGRESS: COCAINE AND FEDERAL SENTENCING POLICY, at pp.v-viii. 338 See. e.g., Ryan S. King and Marc Mauer, Sentencing with Discretion: Crack Cocaine Sentencing After 

Booker, The Sentencing Project, January 2006. 
127

imposition non-government-sponsored, below-range rates, specifically non-governmentsponsored, below-range cases citing Booker rather than downward departures. The largest 

percentage of below-range sentences were for crack cocaine and methamphetamine 

offenders, with rates of below-range sentences approximately twice as high post-Booker

compared to pre-PROTECT Act (increase from 6.2% to 14.7% for crack cocaine and 

from 6.1% to 13.6% for methamphetamine). Rates of above-range sentences also have 

increased for all 5 drug types, ranging from 0.5 percent for methamphetamine offenses to 

0.9 percent for marijuana offenses. These increases in rates for above-range sentences 

are lower than those reported for all offenses (1.6 %). 
128

Table 20339

Sentences Relative to the Guideline Range 

for Selected Drug Types340

Pre-PROTECT Act 

(10/1/02-4/30/03) n 

Percent

Within 

/Gov’t341

Percent

Upward

Departure

Percent 

Downward 

Departure 

Powder Cocaine 3,400 93.2 0.1 6.7 

Crack Cocaine 3,184 93.8 0.1 6.2 

Heroin 1,018 86.6 0.3 13.1 

Marijuana 3,279 92.3 0.3 7.4 

Methamphetamine 2,422 93.7 0.2 6.1 

Post-PROTECT Act 

(5/1/03-6/24/04) n 

Percent

Within 

/Gov’t 

Percent

Upward

Departure

Percent 

Downward 

Departure 

Powder Cocaine 6,228 95.4 0.4 4.2 

Crack Cocaine 5,706 95.5 0.2 4.3 

Heroin 1,941 90.2 0.4 9.3 

Marijuana 7,016 95.7 0.2 4.1 

Methamphetamine 5,241 95.3 0.2 4.5 

Post-Booker 

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

Percent

Within 

/Gov’t

Percent

Upward

Departure

Percent 

Downward 

Departure 

Percent

Booker

Authority

Powder Cocaine 5,263 88.6 0.6 2.6 8.2

Crack Cocaine 5,112 84.8 0.6 3.4 11.3

Heroin 1,593 78.7 0.8 5.4 15.1

Marijuana 5,317 89.8 0.9 2.9 6.5

Methamphetamine 4,636 86.0 0.5 2.6 11.0

 

339 Missing information (departure status) reduces the total number of cases. 340 Cases sentenced for drug trafficking under USSG §§2D1.1 and 2D1.2 are included in the table. 341 The “Within/Gov’t” category includes within range sentences and government-sponsored downward 

departures (Substantial Assistance under USSG §5K1.1, EDP under USSG §5K3.1 and other governmentsponsored downward departures). See Appendix B for further descriptions of these categories. 

SOURCE: U.S. Sentencing Commission 2006 Booker Report Datafiles. 
129

 Focusing specifically on the post-Booker era, the Commission examined the 

percentage of crack cocaine cases sentenced in conformance with the guidelines. Table 

20 shows that 84.8 percent of crack cocaine cases were sentenced in conformance with 

the guidelines (including government-sponsored departures). This rate is comparable to 

the overall national rate of 85.9 percent. Comparison of post-Booker data on crack 

cocaine sentences with post-Booker data on all drugs shows that crack cocaine offenses 

are sentenced in conformance with the guidelines at about the same rate as all other drug 

types (ranging from 78.7 percent for heroin to 89.8 percent for marijuana). 

 The Commission’s earlier findings on national trends in sentence lengths were 

replicated in the analysis of drug cases. Table 21 shows that the pattern of increased 

below-range sentences is accompanied by an increase in average sentence for all drug 

offenses, except crack cocaine (which did not change). The average sentence increased 

for four of the five major drug types across the three time periods, ranging from eight 

months for marijuana offenders to one month for crack cocaine offenders. 
130

Table 21 

Sentence Type and Length for Selected Drug Types342

Pre-PROTECT Act 

(10/1/02-4/30/03) n

Percent 

Prison

Average 

Sentence

Median 

Sentence 

Powder Cocaine 3,513 95.8 81 60 

Crack Cocaine 3,240 99.0 123 100 

Heroin 1,070 97.8 62 46 

Marijuana 3,406 92.4 37 24 

Methamphetamine 2,493 98.0 95 75 

Post-PROTECT Act 

(5/1/03-6/24/04) n

Percent 

Prison

Average 

Sentence

Median 

Sentence 

Powder Cocaine 6,332 97.0 83 60 

Crack Cocaine 5,761 98.9 127 110 

Heroin 1,976 97.9 66 46 

Marijuana 7,173 94.9 41 27 

Methamphetamine 5,320 98.3 101 80 

Post-Booker 

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

Percent 

Prison

Average 

Sentence

Median 

Sentence 

Powder Cocaine 5,342 97.6 86 64 

Crack Cocaine 5,176 98.6 124 108 

Heroin 1,619 96.2 66 48 

Marijuana 5,389 94.1 45 30 

Methamphetamine 4,748 98.4 97 78 

 These data suggest that, for the most part post-Booker, the courts have made 

limited use of Booker to fashion non-government-sponsored, below-range sentences in 

crack cocaine cases. As the data illustrate, much of the post-Booker adjustment in federal 

sentencing practices with respect to crack cocaine cases is similar to practices for the 

other major drug types. 

 The Commission then examined each of the 610 post-Booker crack cocaine cases 

in which the court imposed a non-government-sponsored, below-range sentence using 

Booker. The purpose of the examination was to study the reasons cited by the court to 

ascertain whether the crack cocaine/cocaine powder disparity was a driving factor for 

 

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

SOURCE: U.S. Sentencing Commission 2006 Booker Report Datafiles. 
131

these sentences. Thirty-five of the cases cited a reason that clearly indicated the 

sentencing court’s discontent with the 100:1 drug quantity ratio (e.g., reference was made 

that specifically stated the crack/cocaine disparity). These 35 reasons account for 0.7 

percent of the total number of crack cocaine cases in the post-Booker universe of cases. 

Four judicial districts ―the Eastern District of New York, the Middle District of North 

Carolina, the District of Columbia, and the District of Connecticut ― report 3 or more of 

these sentences. The same 4 districts reported nearly half (16 of the 35) of the cases in 

which reasons specifically stated disagreement with the ratio. An additional 73 reasons 

given for these non-government-sponsored, below-range sentences suggested disparity 

but did not clearly cite the drug quantity ratio issue.343 This analysis indicates that courts 

infrequently are using Booker to impose non-government-sponsored, below-range 

sentences on this basis. 

F. FIRST OFFENDERS AND CAREER OFFENDERS

As stated in the Introductory Commentary to Chapter Four of the Guidelines 

Manual, consideration of a defendant’s criminal history is directly relevant to the 

achievement of the purposes of sentencing set forth in the SRA.344 In promulgating 

guidelines to account for an offender’s criminal history, the Commission long ago 

recognized that “[a] defendant with a record of prior criminal behavior is more culpable 

than a first offender and thus deserving of greater punishment” in order better to achieve 

the purposes of sentencing.345 The Commission also recognized, however, that the 

criminal history score computed under the guidelines’ criminal history rules sometimes 

may not adequately reflect the seriousness of the defendant’s criminal history or 

likelihood of recidivism and that departures from the computed criminal history category 

may be appropriate in some cases.346 

Gauging the seriousness of the defendant’s criminal history and the likelihood of 

recidivism is difficult, but it is of continuing interest to the Commission, the courts, and 

others in the federal criminal justice community.347 As indicated in chapter 4, issues 

associated with accounting for the defendant’s criminal history provide the most frequent 

bases for imposition of non-government-sponsored, below-range sentences. 

 

343 The 35 reasons clearly referenced the crack-powder cocaine ratio. The remaining 73 reasons made 

reference to general guideline adequacy issues, reduction of disparity (without elaboration), statutory 

minimum or maximum, and drug quantity (without further elaboration). These reasons, in the context of 

below-range sentences for crack cocaine offenses, may indicate a drug quantity ratio dispute, but do not 

state it as plainly as the 35 others.

344 Guidelines Manual, Ch.4, intro.comment (2005). 345Id. 346 Guidelines Manual, §4A1.3 provides departure mechanisms in such cases. 347The Commission has released three of a series of reports on recidivism and the federal sentencing 

guidelines. The first report, MEASURING RECIDIVISM: THE CRIMINAL HISTORY COMPUTATION OF THE 

FEDERAL SENTENCING GUIDELINES, and the second report, RECIDIVISM AND THE “FIRST OFFENDER” were 

issued in May 2004. The third report, A COMPARISON OF THE FEDERAL SENTENCING GUIDELINES 

CRIMINAL HISTORY CATEGORY AND THE U.S. PAROLE COMMISSION SALIENT FACTOR SCORE, was issued in 

January 2005. All three reports are available at www.ussc.gov. 
132

This analysis focuses on whether Booker has had any effect on the imposition of 

non-government-sponsored, below-range sentences for two criminal history categories: 

“first offenders” and “career offenders.” 

 1. First Offenders 

The Commission published an analysis of issues associated with first offenders in 

its May 2004 report on “Recidivism and the ‘First Offender.’” For purposes of the 

analysis conducted for this report, first offenders are defined as those with no prior 

contact with the criminal justice system whatsoever. This category includes only 

offenders without any criminal record reported in the presentence report.348 

Table 22 provides information on sentence position relative to the guideline range 

for first offenders. The rate of the imposition of non-government-sponsored, belowrange sentences decreased from the pre-PROTECT Act period to the post-PROTECT Act 

period from 9.8 percent to 6.1 percent. Post-Booker, the rate of the imposition of nongovernment-sponsored, below-range sentences increased to a total of 15.2 percent (3.6% 

citing downward departures and 11.6% under Booker). Though accounting for a small 

number of cases, the proportion of sentences above the guideline range steadily increased 

across these 3 time periods from 0.7 percent pre-PROTECT Act to 0.8 percent postPROTECT Act to 1.2 percent post-Booker. 

Table 22 

First Offenders 

Sentences Relative to the Guideline Range 

 

Within 

/Gov’t349

Upward 

Departure 

Downward 

Departure Booker 

n % n % n % n % 

PrePROTECT Act 

(10/1/02-4/30/03) 8,945 89.5 68 0.7 975 9.8 - -

PostPROTECT Act 

(5/1/03-6/24/04) 18,573 93.1 155 0.8 1,210 6.1 - -

PostBooker 

(1/12/05-1/11/06) 13,072 83.6 186 1.2 563 3.6 1,816 11.6 

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

 

348 Defined as offenders with no sentencings that qualify for criminal history points, as well as no other 

events, such as arrests, that are not included in the criminal history score. 

349 The “Within/Gov’t” category includes within range sentences and government-sponsored downward 

departures (Substantial Assistance under USSG §5K1.1, EDP under USSG §5K3.1 and other governmentsponsored downward departures). See Appendix B for further descriptions of these categories. 
133

Despite the increased rates of imposition of non-government-sponsored, belowrange sentences for first offenders, sentence severity has increased across the three time 

periods as shown in Table 23. The proportion of first offenders receiving a prison 

sentence has steadily increased during these three time periods, from 76.2 percent prePROTECT Act to 76.7 percent post-PROTECT Act to 79.0 percent post-Booker. The 

average prison sentence has remained stable (average prison sentence 37 months prePROTECT Act and 39 months post-PROTECT Act and post-Booker). 

Table 23 

First Offenders 

Sentence Type and Length 

n

Percent

Prison

Average 

Sentence 

Pre-PROTECT Act 

(10/1/02-4/30/03) 10,430 76.2 37 

Post-PROTECT Act 

(5/1/03-6/24/04) 20,462 76.7 39 

Post-Booker 

(1/12/05-1/11/06) 15,967 79.0 39 

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

This analysis examined the distribution of first offenders among the 94 judicial 

districts, various offense types, and receipt of a mitigating role reduction pursuant to 

USSG §3B1.2. In all but three districts (Northern District of Mississippi, the District of 

the Mariana Islands, and the Middle District of Alabama), at least one first offender 

received a non-government-sponsored, below-range sentence. The rate of imposition of 

downward departures ranged from zero to 19.5 percent, and the rate of imposition of nongovernment-sponsored, below-range sentences under Booker ranged from zero to 30.6 

percent. Non-government-sponsored, below-range sentences for first offenders generally 

were distributed evenly across the districts. 

The majority of districts accounted for less than 1.0 percent of the first offenders 

receiving a non-government-sponsored, below-range sentence. Seventy-one districts 

each accounted for less than 1.0 percent of downward departures, and 64 districts each 

accounted for less than 1.0 percent of below-range sentences under Booker. Typically, 

the rate of imposition of non-government-sponsored, below-range sentences citing 

Booker exceeded the downward departure rate (85 of the 94 districts). In 5 districts, the 

rates of the 2 forms of below-range sentences were the same and in four districts, the 

downward departure rate was greater than the below-range rate citing Booker (see

Appendix E-13). 

The Commission then examined the proportion of downward departures and 

below-range sentences citing Booker among first offenders for each offense type. The 
134

results of the analysis are presented in Appendix E-14. The Commission classifies 

federal offenses into 32 offense types, and first offenders were represented in each of 

these 32 categories. In 3 of these offense type categories (kidnapping, arson, and prison 

offenses), offenders received neither a downward departure nor a below-range sentence 

citing Booker. 

Rates of imposition of non-government-sponsored, below-range sentences 

generally are proportional to the number of cases in each offense type category. For 

example, 38.0 percent (5,941 of the total 15,633) of first offenders were convicted of 

drug trafficking. First offender drug traffickers account for 35.3 percent (199 of the 563 

total) of the downward departures and 35.7 percent (648 of the total 1,815) of the nongovernment-sponsored, below-range sentences citing Booker. Immigration offenses 

account for proportionally fewer non-government-sponsored, below-range sentences than 

their proportion in the population of first offenders. While immigration offenses account 

for 16.6 percent of first offenders overall, they account for 10.5 percent of the downward 

departures and 7.8 percent of the non-government-sponsored, below-range sentences 

citing Booker. Among the remaining offense types, those with the highest rates of either 

type of below-range sentence involve small numbers of cases. The highest rate of 

imposition of downward departures for first offenders is in murder offenses (15.0%) but 

includes only 3 offenders. The highest rate of imposition of non-government-sponsored, 

below-range sentences citing Booker is in Burglary/Breaking and Entering offenses 

(44.4%), involving only 4 offenders (See Appendix E-14). 

Table 24 shows rates of imposition of non-government-sponsored, below-range 

sentences for first offenders based on mitigating role status pursuant to USSG §3B1.2.350 

Reflecting previous findings, rates of imposition of non-government-sponsored, belowrange sentences citing Booker are higher than rates of downward departure. In addition, 

Table 24 shows an apparent relationship between mitigating role reductions and nongovernment-sponsored, below-range sentences for first offenders. Combining both types 

of below-range rates, 27.2 percent of first offenders receiving a reduction for minimal 

role in the offense (a 4 level reduction) were sentenced below-range. The effect for 

offenders receiving minimal role reductions is greater than for those receiving minor role 

(2 level) reductions and those that did not receive a reduction under USSG §3B1.2. 

Those rates were 12.0 percent and 15.6 percent, respectively. 

 

350 Pursuant to USSG §3B1.2, offenders are eligible for offense level decreases based on their role in the 

offense as follows: “(a) If the defendant was a minimal participant...decrease by 4 levels. (b) If the 

defendant was a minor participant...decrease by 2 levels. In cases falling between (a) and (b), decrease by 

3 levels.” See Guidelines Manual, USSG §3B1.2 (2005). 
135

Table 24 

First Offenders 

Sentences Relative to Guideline Range 

for Each Mitigating Role (USSG §3B1.2) Category 

Post-Booker 

 Below-Range 

WithinRange

Above 

Range

Gov’t 

Sponsored

Downward 

Departure Booker

Mitigating Role TOTAL n % n % n % n % n %

TOTAL 15,072 8,885 59.0 185 1.2 3,647 24.2 560 3.7 1,795 11.9

Minimal 

Participant (-4) 626 270 43.1 1 0.2 185 29.6 52 8.3 118 18.9

Less than 

Minimal participant (-3) 191 111 58.1 0 0.0 39 20.4 7 3.7 34 17.8

Minor 

participant (-2) 1,946 1,049 53.9 5 0.3 659 33.9 75 3.9 158 8.1

No mitigating role 

reduction (no adj.) 12,309 7,455 60.6 179 1.5 2,764 22.5 426 3.5 1,485 12.1

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

Table 25 presents demographic information for first offenders post-Booker. The 

table compares all first offenders to those receiving a non-government-sponsored, belowrange sentence. A smaller proportion of non-citizens and Hispanic offenders received 

below-range sentences compared to their representation in the first offender population as 

a whole. This is consistent with the finding of a lower rate of imposition of nongovernment-sponsored, below-range sentences among immigration offenses (which 

primarily involve Hispanic, non-citizen offenders). 
136

Table 25 

First Offenders 

Selected Demographic Information 

Post-Booker 

All First Offenders

First Offenders with 

Downward 

Depart/Booker

 Number Percent Number Percent 

Gender 

 Male 12,243 76.9 1,737 73.1 

 Female 3,672 23.1 640 26.9 

 Missing 90 - 2 -

Race 

 White 5,267 33.8 1,028 43.6 

 Black 2,069 13.3 360 15.3 

 Hispanic 7,146 45.9 784 33.3 

 Other 1,103 7.1 186 7.9 

 Missing 420 - 21 -

Citizenship 

 U.S. 

Citizen 

8,834 56.7 1,661 70.4 

 NonCitizen 6,736 43.3 698 29.6 

 Missing 435 - 20 -

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

 2. Career Offenders 

The Commission undertook an analysis of all defendants who met the guideline 

definition of career offender351 and for whom the career offender guideline, USSG 

§4B1.1, had an impact on the final sentence.352 The Commission’s analysis revealed that, 

 

351 For purposes of the guidelines, “[a] defendant is a career offender if (1) the defendant was at least 

eighteen years old at the time the defendant committed the instant offense of conviction; (2) the instant 

offense of conviction is a felony that is either a crime of violence or a controlled substance offense; and (3) 

the defendant has at least two prior felony convictions of either a crime of violence or a controlled 

substance offense.” A career offender's criminal history category in every case shall be Category VI and a 

career offender may also receive an offense level increase if the otherwise applicable offense level is lower 

than the offense levels in the table in USSG §4B1.1. See Guidelines Manual, USSG §4B1.1 (2005). 352For purposes of this analysis, USSG §4B1.1 was considered to have had an impact on the final sentence 

if the defendant’s offense level increased due to application of the table in USSG §4B1.1 or if the defendant 

had a criminal history category of less than category VI prior to application of the guideline. As a result, 

approximately 99 percent of defendants sentenced under USSG §4B1.1 qualified as career offenders for 

purposes of the analysis. 
137

similar to patterns for first offenders, rates of imposition of within-range sentences for 

career offenders were fairly consistent in pre-PROTECT Act (89.4% within-range) and 

post-PROTECT Act (92.1% within-range) time periods but noticeably declined postBooker (77.9% within-range). Table 26 provides information for within-range and 

below-range sentences for career offenders. 

The analysis summarized in Table 26 also shows the rate of imposition of nongovernment-sponsored, below-range sentences during the relevant time period. The prePROTECT Act rate was 10.0 percent, decreasing post-PROTECT Act to 7.3 percent. 

The rate then increased in the post-Booker period to 21.5 percent. 

Table 26 

Career Offenders 

Sentences Relative to the Guideline Range 

Within

 /Gov’t353

Upward

Departure

Downward 

Departure Booker 

 n % n % n % n %

Pre-PROTECT Act 

(10/1/02-4/30/03) 930 89.4 6 0.6 104 10.0 - -

Post-PROTECT Act 

(5/1/03-6/24/04) 1,991 92.1 13 0.6 158 7.3 - -

Post-Booker 

(1/12/05-1/11/06) 1,589 77.9 14 0.7 136 6.7 301 14.8

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

Subsequent to Booker, 93 districts reported career offender sentencings (only the 

District of the Virgin Islands did not sentence a career offender). Many of the districts 

report a small number of career offenders (e.g., 28 of the 93 districts had fewer than 10 

career offenders). In 14 of the 93 career offender districts, there are no reported nongovernment-sponsored, below-range sentences (either downward departures or other 

below-range sentences) for the career offenders. While the national-level data indicate 

that the rate of imposition of downward departures is less than the rate of imposition of 

other below-range sentences (6.7% versus 14.8%), in 15 districts the reverse was true. In 

these districts, rates of downward departure for career offenders exceeded the rates of 

other below-range sentences. Additionally, five districts had identical rates of both types 

of below-range sentences. The highest rate of downward departure among career 

offenders was 44.4 percent; however, this involved only four cases. Likewise, the 

 

353 The “Within/Gov’t” category includes within range sentences and government-sponsored downward 

departures (Substantial Assistance under USSG §5K1.1, EDP under USSG §5K3.1 and other governmentsponsored downward departures). See Appendix B for further descriptions of these categories. 
138

highest rate of other below-range sentences was 45.5 percent but involved only five 

cases. (See Appendix E-15). 

Post-Booker career offenders were identified in 18 of the 32 offense types 

reported by the Commission (See Appendix E-16). Two-thirds (12) of these offense 

types reported below-range sentences for career offenders. Three offense types account 

for nearly all (91.9%) cases involving career offenders (drug trafficking 71.8%, robbery 

10.9%, and firearms offenses 9.2%) and nearly all the below-range sentences (a total of 

94.0% ) (See Appendix E-17). Among these three offense types, the proportion of the 

total number of below-range cases corresponds to the proportion of cases accounted for 

by these offenses. That is, drug trafficking accounts for 71.8 percent of the career 

offender cases and 74.3 percent of all downward departures and 73.1 percent of other 

below-range sentences among the career offender cases. The robbery cases account for a 

greater proportion of non-government-sponsored, below-range sentences than downward 

departures. Firearms offenses account for a greater proportion of downward departures 

than other below-range sentences. Combining both types of below-range sentences, 

robbery and firearms offenses each account for 10.3 percent of all below-range sentences, 

similar to the proportion of cases accounted for by each. 

Drug trafficking offenses accounted for about three-quarters of the career offender 

cases and below-range sentences. Table 27 shows the position of sentence relative to the 

guideline range for career offenders sentenced for drug trafficking. Rates of imposition 

of below-range sentences are highest for government-sponsored downward departures, 

followed by other below-range sentences, and then downward departures. As previously 

demonstrated (with the exception of the “other” drug category comprised of a very small 

number of cases), other below-range sentences occur at a greater rate than downward 

departures. Rates of combined types of non-government-sponsored, below-range 

sentences (downward departures and other below-range sentences), are similar across the 

five major drug types, ranging from 18.9 percent for powder cocaine to 28.4 percent for 

heroin. Government-sponsored, below-range sentences also are granted at a rate higher 

than the combined non-government-sponsored, below-range rate. 
139

Table 27

Career Offenders 

Sentence Relative to the Guideline Range for Selected Drug Types 

Post-Booker 

Within-Range

Upward 

Departure

Gov’t 

Sponsored

Downward 

Departure Booker 

Offense Type TOTAL n % n % n % n % n %

TOTAL 1,585 642 40.5 7 0.4 583 36.8 108 6.8 245 15.5

 

Powder Cocaine 302 103 34.1 0 0.0 142 47.0 10 3.3 47 15.6

Crack Cocaine 781 337 43.2 2 0.3 261 33.4 56 7.2 125 16.0

Heroin 106 40 37.7 0 0.0 36 34.0 8 7.6 22 20.8

Marijuana 170 71 41.8 4 2.4 66 38.8 10 5.9 19 11.2

Methamphetamine 183 69 37.7 1 0.6 66 36.1 18 9.8 29 15.9

Other 43 22 51.2 0 0.0 12 27.9 6 14.0 3 7.0

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

Table 28 shows that the overwhelming majority of career offenders (over 99.0%) 

receive a sentence of imprisonment. Deviating from the national patterns for average 

sentences, the average sentences for career offenders were similar during the prePROTECT Act and post-PROTECT Act periods, but dropped slightly post-Booker. 

Table 28 

Career Offenders 

Sentence Type and Length 

n

Percent

Prison

Average 

Sentence 

Pre-PROTECT Act 

(10/1/02-4/30/03) 1,068 99.7% 190 

Post-PROTECT Act 

(5/1/03-6/24/04) 2,188 99.8% 189 

Post-Booker 

(1/12/05-1/11/06) 2,082 99.9% 180 

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

The Commission analyzed the extent of decrease below the guideline minimum of 

non-government-sponsored, below-range sentences for career offenders for the postPROTECT Act and post-Booker periods. The results of this analysis are detailed in 

Table 29. At both points in time, the median proportional reduction in sentence (as well 
140

as the median reduction in months) is greater in cases receiving a government-sponsored 

substantial assistance departure under USSG §5K1.1. The extent of the proportional 

reduction for both substantial assistance departures and non-government-sponsored, 

below-range reductions increases between the post-PROTECT Act period and the postBooker period. 

Table 29 

Career Offender 

Degree of Decrease Below Guideline Minimum 

 

 USSG §5K1.1__

Downward 

___Departures___ Booker 

 

n 

Med 

Mths 

Med 

% n 

Med 

Mths 

Med 

% n 

Med 

Mths 

Med 

% 

 

Post-PROTECT Act 

(5/1/03-6/24/04) 600 87 39.8 147 59 28.2 - - -

 

Post-Booker 

(1/12/05-1/11/06) 529 94 42.4 130 67 33.4 288 67 30.5 

 

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

Examination of the reasons for non-government-sponsored, below-range 

sentences indicates that the reason most often cited is criminal history, a guideline 

downward departure reason. Criminal history is the most frequently cited reason in 

downward departure cases and the second most often cited reason in below-range cases 

citing Booker. 

G. EARLY DISPOSITION PROGRAMS AND OTHER “FAST TRACK” SENTENCING 

PRACTICES

Prior to 2003, fast track procedures varied throughout the districts, but generally 

entailed (1) the government’s use of expedited procedures (mostly involving the waiver 

of certain procedural rights by the defendant) in order to facilitate the handling of large 

volumes of particular types of immigration and drug cases; and (2) a concomitant 

reduction in the defendant’s sentence through the provision of a below-range sentence. 

 In 2003, fast track procedures were formalized as early disposition programs 

(EDPs) pursuant to a directive to the Commission in section 401(m)(2)(B) of the 

PROTECT Act. That section required the Commission to promulgate “a policy statement 

authorizing a downward departure of not more than four levels if the Government files a 

motion for such departure pursuant to an early disposition program authorized by the 

Attorney General and the United States Attorney.” Pursuant to that directive, the 

Commission promulgated USSG §5K3.1, which provides, upon motion of the 
141

government, for a departure of not more than four offense levels pursuant to an early 

disposition program. 

 The PROTECT Act also required that the Attorney General approve all early 

disposition programs. According to the most recent information provided to the 

Commission by the Department of Justice,354 the Attorney General has approved early 

disposition programs in 16 federal judicial districts, leaving 78 districts without such 

programs. Presumptively, early disposition programs are used to the exclusion of less 

formal, and less standardized, “fast track” procedures that previously had been used in 

many districts. 

In its 2003 Departures Report, the Commission expressed the concern that 

“sentencing courts in districts without early disposition programs, particularly those in 

districts that adjoin districts with such programs, may feel pressured to employ other 

measures – downward departures in particular – to reach similar sentencing outcomes for 

similarly situated defendants.”355 Since then, some courts have expressed the same 

concern, i.e., that non-government-sponsored, below-range sentences would be used in 

districts without these programs in an effort to avoid disparity among similarly-situated 

defendants.356 

Analysis conducted for this report357 indicates that this concern has not been 

realized generally. One reason is that immigration cases account for only a fraction of 

the cases sentenced in the 78 districts that do not have early disposition programs. In all, 

these districts account for 3.6 percent (2,456 cases) of the overall post-Booker caseload. 

Of these 78 districts, only four have sentenced greater than 100 immigration cases358

post-Booker. The District of Utah sentenced 204 immigration cases (or 21.4% of its postBooker caseload). The Northern District of Texas sentenced 172 immigration cases (or 

 

354 U.S. Department of Justice. Report on the Department of Justice’s Fast Track Programs. Washington, 

D.C (2005) See Appendix E-18 for the list of districts cited in the report with approved EDP programs. 355 Id. at p. 67. 356 United States v. Medrano-Duran, 386 F. Supp. 2d 943 (N.D. Ill. 2005) (unpub.) (discussing the disparity 

in sentence that occurs in illegal reentry case between jurisdictions with fast track programs and those that 

do not have such programs: departing by three offense levels based on the average of the departures given 

in districts with early disposition programs); United States v. Santos, 406 F. Supp. 2d 320 (S.D.N.Y. 2005) 

(imposing a non-Guidelines sentence in an illegal reentry case, because of sentencing disparity created by 

fast track programs, because the Guidelines sentence double-counted the defendant’s nonviolent drug 

offenses, and because of the delay in taking the defendant into federal custody); United States v. GalvezBarrios, 355 F. Supp. 2d 958 (E.D. Wis. 2005) (stating that because fast track programs in border districts 

for illegal reentry offenses are creating serious sentencing disparities, it may be appropriate in some cases 

for a sentencing court to exercise its discretion under Booker to minimize the sentencing disparity that fast 

track programs create); United States v. Ramirez-Ramirez, 365 F. Supp. 2d 728 (E.D. Va. 2005) (deviating 

from the Guidelines in an illegal reentry case where the defendant’s sentence was enhanced based on a 

crime of violence; after considering the § 3553(a) factors, deviating, in large part, based on the absence of a 

fast track program in the district). Cf. United States v. Perez-Chavez, No. 05-CR-00003PGC, 2005 U.S. 

Dist. Lexis 9252 (D. Utah May 16, 2005) (explaining why it is inappropriate to deviate from the Guidelines 

range based on the absence of a fast-track program). 357 The analysis in this section was not undertaken with respect to any district with an approved Early 

Disposition Program. The analysis was not intended to evaluate the operation of those programs. 

358 Cases with USSG §2L1.1 or USSG §2L1.2 as the primary sentencing guideline. 
142

18.8% of its post-Booker caseload). The Middle District of Florida sentenced 162 

immigration cases (or 10.3% of its post-Booker caseload). The Southern District of New 

York sentenced 106 immigration cases (or 8.3% of its post-Booker caseload). 

With respect to these 4 districts, all but one, the Southern District of New York, 

had rates of imposition of non-government-sponsored, below-range sentences using 

Booker in immigration cases that were less than the overall national average of 9.3 

percent. In the Middle District of Florida, the rate of imposition of an otherwise belowrange sentence is 7.4 percent. In the District of Utah, the rate of imposition of an 

otherwise below-range sentence is 6.9 percent. In the Northern District of Texas, the rate 

of imposition of an otherwise below-range sentence is 1.7 percent. 

Of the 297 immigration sentences otherwise below-range in the 78 districts 

without early disposition programs, 707 reasons were cited.359 The most commonly cited 

reasons for below-range sentences were 18 U.S.C. § 3553(a) language (cited 93 times) 

and specification of a variance (cited 73 times). Insufficient documentation to provide a 

reason occurred in 57 of the cases. Disparity due to the nonexistence of an early 

disposition program was cited only 10 times. Cultural assimilation, a reason frequently 

cited for fast track departures prior to implementation of USSG §5K3.1, was specifically 

cited only 25 times, the twenty-first most commonly cited reason. 

 

359 The number of cited reasons is greater than the number of cases because courts often cite more than one 

reason in a case. 
143

Chapter 7

CONCLUSION 

 The Commission intends to continue its outreach and training efforts and to 

regularly release updated, real-time data on rates of imposition of within-range and outof-range sentences, types of sentences imposed, average sentence lengths, the reasons 

judges report for sentencing outside the guidelines system, and the results of sentencing 

appeals. Uniform and complete statements of reasons and timely reporting to the 

Commission by the district courts can provide valuable feedback to Congress, the 

Commission, the courts, and all others in the federal criminal justice community 

regarding the long-term impact of Booker on the federal sentencing system. This report 

is an important part of the Commission’s efforts to inform careful consideration of the 

evolving post-Booker federal sentencing system. 
APPENDIX A 
A-1

AO 245B (Rev. 06/05) Criminal Judgment

Attachment (Page 1) — Statement of Reasons

DEFENDANT:

CASE NUMBER:

DISTRICT:

STATEMENT OF REASONS

(Not for Public Disclosure)

I COURT FINDINGS ON PRESENTENCE INVESTIGATION REPORT

A G The court adopts the presentence investigation report without change.

B G The court adopts the presentence investigation report with the following changes.

(Check all that apply and specify court determination, findings, or comments, referencing paragraph numbers in the presentence report, if applicable.)

(Use page 4 if necessary.)

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

specific offense characteristics):

2 G Chapter Three of the U.S.S.G. Manual determinations by court (including changes to victim-related adjustments, 

role in the offense, obstruction of justice, multiple counts, or acceptance of responsibility):

3 G Chapter Four of the U.S.S.G. Manual determinations by court (including changes to criminal history category or 

scores, career offender, or criminal livelihood determinations):

4 G Additional Comments or Findings (including comments or factual findings concerning certain information in the 

presentence report that the Federal Bureau of Prisons may rely on when it makes inmate classification, designation,

or programming decisions):

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

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

A G No count of conviction carries a mandatory minimum sentence.

B G Mandatory minimum sentence imposed.

C G One or more counts of conviction alleged in the indictment carry a mandatory minimum term of imprisonment, but the

sentence imposed is below a mandatory minimum term because the court has determined that the mandatory minimum

does not apply based on

G findings of fact in this case

G substantial assistance (18 U.S.C. § 3553(e))

G the statutory safety valve (18 U.S.C. § 3553(f))

III COURT DETERMINATION OF ADVISORY GUIDELINE RANGE (BEFORE DEPARTURES):

Total Offense Level:

Criminal History Category:

Imprisonment Range: to months

Supervised Release Range: to years

Fine Range: $ to $

G Fine waived or below the guideline range because of inability to pay.
A-2

AO 245B (Rev. 06/05) Criminal Judgment

Attachment (Page 2) — Statement of Reasons

DEFENDANT:

CASE NUMBER:

DISTRICT:

STATEMENT OF REASONS

(Not for Public Disclosure)

IV ADVISORY GUIDELINE SENTENCING DETERMINATION (Check only one.)

A G The sentence is within an advisory guideline range that is not greater than 24 months, and the court finds no reason to depart.

B G The sentence is within an advisory guideline range that is greater than 24 months, and the specific sentence is imposed for these reasons.

(Use page 4 if necessary.)

C G The court departs from the advisory guideline range for reasons authorized by the sentencing guidelines manual.

(Also complete Section V.)

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

V DEPARTURES AUTHORIZED BY THE ADVISORY SENTENCING GUIDELINES (If applicable.)

A The sentence imposed departs (Check only one.):

G below the advisory guideline range

G above the advisory guideline range

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

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

G 5K1.1 plea agreement based on the defendant’s substantial assistance

G 5K3.1 plea agreement based on Early Disposition or “Fast-track” Program

G binding plea agreement for departure accepted by the court

G plea agreement for departure, which the court finds to be reasonable

G plea agreement that states that the government will not oppose a defense departure motion.

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

G 5K1.1 government motion based on the defendant’s substantial assistance

G 5K3.1 government motion based on Early Disposition or “Fast-track” program

G government motion for departure

G defense motion for departure to which the government did not object

G defense motion for departure to which the government objected

3 Other

G Other than a plea agreement or motion by the parties for departure (Check reason(s) below.):

C Reason(s) for Departure (Check all that apply other than 5K1.1 or 5K3.1.)

G 4A1.3 Criminal History Inadequacy G 5K2.1 Death G 5K2.11 Lesser Harm

G 5H1.1 Age G 5K2.2 Physical Injury G 5K2.12 Coercion and Duress

G 5H1.2 Education and Vocational Skills G 5K2.3 Extreme Psychological Injury G 5K2.13 Diminished Capacity

G 5H1.3 Mental and Emotional Condition G 5K2.4 Abduction or Unlawful Restraint G 5K2.14 Public Welfare

G 5H1.4 Physical Condition G 5K2.5 Property Damage or Loss G 5K2.16 Voluntary Disclosure of Offense

G 5H1.5 Employment Record G 5K2.6 Weapon or Dangerous Weapon G 5K2.17 High-Capacity, Semiautomatic Weapon

G 5H1.6 Family Ties and Responsibilities G 5K2.7 Disruption of Government Function G 5K2.18 Violent Street Gang

G 5H1.11 Military Record, Charitable Service, G 5K2.8 Extreme Conduct G 5K2.20 Aberrant Behavior

Good Works G 5K2.9 Criminal Purpose G 5K2.21 Dismissed and Uncharged Conduct

G 5K2.0 Aggravating or Mitigating Circumstances G 5K2.10 Victim’s Conduct G 5K2.22 Age or Health of Sex Offenders

G 5K2.23 Discharged Terms of Imprisonment

D Explain the facts justifying the departure. (Use page 4 if necessary.)
A-3

AO 245B (Rev. 06/05) Criminal Judgment

Attachment (Page 3) — Statement of Reasons

DEFENDANT:

CASE NUMBER:

DISTRICT:

STATEMENT OF REASONS

(Not for Public Disclosure)

VI COURT DETERMINATION FOR SENTENCE OUTSIDE THE ADVISORY GUIDELINE SYSTEM

(Check all that apply.)

A The sentence imposed is (Check only one.):

G below the advisory guideline range

G above the advisory guideline range

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

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

G binding plea agreement for a sentence outside the advisory guideline system accepted by the court

G plea agreement for a sentence outside the advisory guideline system, which the court finds to be reasonable

G plea agreement that states that the government will not oppose a defense motion to the court to sentence outside the advisory guideline

system

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

G government motion for a sentence outside of the advisory guideline system

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

G defense motion for a sentence outside of the advisory guideline system to which the government objected

3 Other

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

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

G the nature and circumstances of the offense and the history and characteristics of the defendant pursuant to 18 U.S.C. § 3553(a)(1)

G to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense (18 U.S.C. § 3553(a)(2)(A))

G to afford adequate deterrence to criminal conduct (18 U.S.C. § 3553(a)(2)(B))

G to protect the public from further crimes of the defendant (18 U.S.C. § 3553(a)(2)(C))

G to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner

(18 U.S.C. § 3553(a)(2)(D))

G to avoid unwarranted sentencing disparities among defendants (18 U.S.C. § 3553(a)(6))

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

AO 245B (Rev. 06/05) Criminal Judgment

Attachment (Page 4) — Statement of Reasons

DEFENDANT:

CASE NUMBER:

DISTRICT:

STATEMENT OF REASONS

(Not for Public Disclosure)

VII COURT DETERMINATIONS OF RESTITUTION

A G Restitution Not Applicable.

B Total Amount of Restitution: 

C Restitution not ordered (Check only one.):

1 G For offenses for which restitution is otherwise mandatory under 18 U.S.C. § 3663A, restitution is not ordered because the number of

identifiable victims is so large as to make restitution impracticable under 18 U.S.C. § 3663A(c)(3)(A).

2 G For offenses for which restitution is otherwise mandatory under 18 U.S.C. § 3663A, restitution is not ordered because determining complex 

issues of fact and relating them to the cause or amount of the victims’ losses would complicate or prolong the sentencing process to a degree

that the need to provide restitution to any victim would be outweighed by the burden on the sentencing process under 18 U.S.C. § 3663A(c)(3)(B).

3 G For other offenses for which restitution is authorized under 18 U.S.C. § 3663 and/or required by the sentencing guidelines, restitution is not

ordered because the complication and prolongation of the sentencing process resulting from the fashioning of a restitution order outweigh 

the need to provide restitution to any victims under 18 U.S.C. § 3663(a)(1)(B)(ii).

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

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

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

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

Defendant’s Soc. Sec. No.: Date of Imposition of Judgment

Defendant’s Date of Birth:

Defendant’s Residence Address: Signature of Judge

Defendant’s Mailing Address: Name and Title of Judge

Date Signed
APPENDIX B 
B-1 

APPENDIX B 

METHODOLOGY FOR DATA COLLECTION AND ANALYSIS

A. DATA COLLECTION

The Commission maintains a comprehensive, computerized data collection 

system that forms the basis for its clearinghouse of federal sentencing information.360 

The Commission relies upon this database for its ongoing monitoring and evaluation of 

the guidelines, for many of its research projects, and for responding to the hundreds of 

data requests received from Congress and other criminal justice entities each year. For 

each case sentenced under the guidelines, the Commission routinely collects more than 

250 pieces of information, including defendant demographics, statutes of conviction, 

sentencing guideline applications, and sentences imposed.361 

The PROTECT Act established new statutory documentation requirements aimed 

at improving the Commission’s ability to collect and report complete and accurate 

sentencing data. Section 401(h) of the PROTECT Act, entitled “Improved Data 

Collection,” amended 28 U.S.C. § 994(w) to state: 

The Chief Judge of each district court shall ensure that, within 30 days 

following entry of judgment in every criminal case, the sentencing court 

submits to the Commission a written report of the sentence, the offense for 

which it is imposed, the age, race, sex of the offender, and information 

regarding factors made relevant by the guidelines. The report shall also 

include - 

 (A) the judgment and commitment order; 

(B) the statement of reasons for the sentence imposed 

(which shall include the reason for any departure from 

the otherwise applicable guideline range); 

(C) any plea agreement; 

(D) the indictment or other charging document; 

(E) the presentence report; and 

(F) any other information as the Commission finds 

appropriate.362

 

360 See 28 U.S.C. § 995(a)(14)-(15) (2003). 361 See 2003 DEPARTURE REPORT at 25. 362 Section 994(w) previously did not contain a 30-day deadline for submission of the documents and did 

not impose a duty on the Chief Judge of each district to ensure compliance with this section. Additionally, 
B-2 

The PROTECT Act also amended 18 U.S.C. § 3553(c) to require the sentencing court, if 

imposing a sentence outside the prescribed guidelines range, to state “the specific reason” 

for departing from the guidelines “with specificity in the written order of judgment and 

commitment.” 

On September 22, 2003, in response to the PROTECT Act, the Judicial 

Conference of the United States adopted a more detailed Statement of Reasons form 

intended to enhance the sentencing court’s ability to provide additional specificity in that 

document. The statutory requirements enacted by Congress and the courts’ responses to 

them were intended to enhance the Commission’s ability to collect and report complete 

sentencing data.363 In addition, the greater specificity in the Statement of Reasons was 

expected to provide the Commission with more useful feedback from the courts regarding 

the operation of the guidelines. 

Booker presented new challenges to the Commission’s data collection efforts. 

Courts were now directed to consider all the 18 U.S.C. § 3553(a) factors in fashioning an 

appropriate sentence. The existing Statement of Reasons form had been tailored to 

capture information in a mandatory guideline regime. It did not provide a suitable format 

for reporting information about sentences outside the guideline range, which were not 

based upon reasons for departure limited to, and affirmatively and specifically identified 

in the provisions, policy statement or commentary of the Guidelines Manual. Following 

the Booker decision, as noted in Chapter 2, the Judicial Conference adopted a revised 

Statement of Reasons form created in consultation with the Commission. The revised 

form, approved in June, 2005, is designed to encapsulate the changes in the sentencing 

guideline system wrought by Booker. The new form includes greater detail so that the 

courts can better describe the type of and reason for an out of range sentence under the 

advisory system and the government’s role, if any, in the imposition of the sentence.364 

The Commission encourages all districts to use the standardized form. 

Uniformity in the method of reporting sentencing information will augment the 

completeness and accuracy of the Commission’s sentencing data, which are directly 

dependent on the documentation the Commission receives from the sentencing courts. 

 the only document specifically required by statute to be submitted to the Commission prior to the 

PROTECT Act was a “written report of the sentence.” Other documents were submitted to the 

Commission pursuant to a longstanding Memorandum of Understanding between the Administrative Office 

of the United States Courts and the Commission. See 2003 DEPARTURE REPORT at 24, n.65. The judicial 

districts generally are highly compliant with document submission requirements. In Fiscal Year 2003, for 

example, the Commission received the Statement of Reasons in 90 percent of cases. See Commission, 2003 

SOURCEBOOK OF FEDERAL SENTENCING STATISTICS, at 3. Although the Commission has not yet completed 

the process of accounting for missing documentation for the Fiscal Year 2005, the Commission has, as of 

the date of this report, received the Statement of Reasons for Fiscal Year 2005 in 96 percent of the cases 

submitted to the Commission.

363 2003 DEPARTURE REPORT at 29. 364 For the six-month period preceding adoption of the new form, courts used the old form, modified it, or 

created their own. This lack of uniformity in reporting sentencing data impacted the Commission’s 

collection efforts and led to the decision to revise the coding methodology. Those revisions are discussed 

supra. 
B-3 

The PROTECT Act, Blakely and Booker decisions each had an impact on federal 

sentencing practices. To control for these developments when analyzing the impact of 

Booker on the federal sentencing system, the Commission selected cases for analysis that 

were sentenced during specific time periods relative to each respective development. The 

analysis in Chapter 3 compares data from Fiscal Year 2003 sentenced prior to the 

implementation of the PROTECT Act, Fiscal Year 2004 prior to the Blakely decision, 

and Fiscal Years 2005 and 2006 following the Booker decision. 

The Fiscal Year 2003 pre-PROTECT Act data file consists of all cases received 

and coded by the Commission that were sentenced between October 1, 2002 and April 

30, 2003, the effective date of the PROTECT Act. This data, consisting of a total of 

40,917 cases, enable analysis of sentences prior to the implementation of the PROTECT 

Act, which primarily focused on downward departures from the sentencing guidelines 

and provide a comparison point of sentencing practices before changes in departure 

application. 

The Commission historically has conducted extensive quality control checks to 

ensure the accuracy of its data. The Fiscal Year 2003 data file is the first Commission 

data file for which additional “departure checks” were employed, making it the best data 

file to use for comparisons of out of range sentences. Every case in which the court has 

indicated a non-substantial assistance departure has been reviewed to verify the accuracy 

of departure status, departure reasons, the sentence imposed, the applicable guideline 

range, and any statutory penalties that trumped the applicable guideline range. 

The post-PROTECT Act time period used for purposes of this analysis is the 

period from May 1, 2003 (the date after the enactment of the PROTECT Act) through 

June 24, 2004 (the day of issuance of the Blakely decision by the Supreme Court). 

Accordingly, the post-PROTECT Act datafile consists of an aggregation of the 

Commission’s Fiscal Year 2003 and Fiscal Year 2004 datafiles consisting of the 81,206 

offenders sentenced from May 1, 2003 through June 24, 2004. As explained in Chapter 

1, information on sentences imposed after issuance of the Blakely decision but before 

issuance of the Booker decision is not included in this analysis. 

The Fiscal Year 2005 and 2006 post-Booker data file consists of all cases received 

and coded by the Commission that were sentenced between January 12, 2005 and January 

11, 2006. The Commission continues to collect the same information for the post-Booker

data with some necessary modifications. In the post-Booker sentencing era, sentencing 

documentation includes terminology associated with the advisory nature of the 

sentencing guidelines (e.g., “variance”). In an effort accurately to capture and report 

these changes, the Commission refined its coding procedures regarding sentences outside 

the guideline range. As explained in further detail below, post-Booker data collection and 

reporting of out of range sentences includes a larger number of categories designed to 

capture the nuances of sentencing that have developed under the advisory system.
B-4 

B. DATA ANALYSIS

 1. Analysis of Below-range Sentences 

The reporting of below-range sentences changed following the Booker decision. 

This change necessitated a significant revision of the Commission’s collection and 

reporting of sentences relative to the guideline range. Because of the broader sentencing 

authority created by Booker, guideline downward departures are no longer the single 

mechanism by which courts can craft below-the-range sentences when appropriate. The 

Commission revised its long-established coding protocols to better and more accurately 

reflect the new sentencing patterns and documentation that emerged in the post-Booker

era. 

Following the PROTECT Act, but prior to the Booker decision non-government 

sponsored below-the-range sentences were classified as “other downward departures.”365 

This departure category consisted of any sentence the court indicated as a downward 

departure on the Statement of Reasons form regardless of the position of the sentence 

relative to the final guideline range. Documentation of below-the-range sentences 

reported on the Statement of Reasons forms began to differ significantly following the 

Booker decision. In lieu of reporting guideline downward departures with departure 

reasons, some courts provided Statements of Reasons that: 

• Indicated a downward (or upward) departure citing Booker (or a variety of 

terms originating in the decision) as one or more of the reasons. 

• Indicated variances with or without guideline or Booker reasons. 

• Provided reasons for below (or above) range sentences without any 

categorization of the sentence in relation to the guideline range. 

The Commission revised its departure coding scheme to accurately collect and 

report these documentation changes. Prior to Booker, collection of this information 

involved a single step: assessment of the departure status (within range, upward 

departure, other downward departure, substantial assistance downward departure 

pursuant to USSG §5K1.1, downward departure pursuant to early disposition program 

pursuant to USSG §5K3.1, or other government sponsored downward departure) as 

indicated on the Statement of Reasons. This classification solely was determined by the 

information on the Statement of Reasons.366

 

365 Government sponsored downward departures were first coded by the Commission in the Fiscal Year 

2003 datafile and include: §5K1.1 (substantial assistance), §5K3.1 (early disposition program), or 

departures with reasons citing government involvement in the departure (e.g., savings to the government). 

A list of reasons comprising government sponsored downward departures can be found in Table 25 in the 

2003 SOURCEBOOK OF FEDERAL SENTENCING STATISTICS. 366Downward departures strictly reflected the court’s designation of a non-government sponsored 

downward departure on the SOR. In a small proportion of sentences, this classification rule resulted in 

anomalous categorizations. For example, if an SOR indicated a downward departure but the sentence on 
B-5 

Following Booker, collecting this information is a two step process of: 1) 

assessing the location of the sentence in relation to the final sentencing guideline range 

(within, above, or below) and 2) determining the reason for any above- or below-therange sentence. Once an out of range sentence is identified, the appropriate category is 

selected from the following list: 

• Downward Departure/Guideline Reason: 367 All cases with imposed 

sentence below-the-range and citing reasons for departure limited to, and 

affirmatively and specifically identified in the provisions, policy 

statements, or commentary of the federal Guidelines Manual. 

• Downward Departure/Booker Reason: All cases with imposed sentence 

below-the-range and citing reasons for departure limited to, and 

affirmatively and specifically identified in the provisions, policy 

statements, or commentary of the federal Guidelines Manual, and 

additionally mentioning either U.S. v. Booker, 18 U.S.C. § 3553, or related 

factors as a reason for a sentence below-the-range. 

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

as a reason for a sentence below-the-range. 

• Otherwise below-the-range: Cases with imposed sentences below-therange that do not fall into the three previous categories. Based on the 

information submitted on the Statement of Reasons, these cases cannot be 

classified as a guideline departure, or as a sentence below-the-range 

pursuant to Booker/18 U.S.C. § 3553. This category includes cases which 

cited departure reasons that are not affirmatively and specifically 

identified in the provisions, policy statements, or commentary of the 

federal Guidelines Manual and cases which do not provide any reasons for 

the sentence below-the-range. 

 

 This new classification scheme provides more detailed information about 

sentences in relation to their applicable guideline ranges. However, the new 

classification has limitations. The reasons for below-the-range sentence are more easily 

identified using the classification scheme, but there is no way to discern from the data 

whether, in cases of below-the-range cases citing Booker, whether or not the court would 

have sentenced the same offender to the same sentence under the departure authority that 

existed with the mandatory guideline system. 

 the Judgement and Commitment Order was within the guideline range, the sentence was classified as a 

downward departure. Such incongruous findings typically were excluded from departure analyses. 

367 Above range sentences follow the same decision protocol and are reported in identically defined 

categories but with an “upward” modifier. 
B-6 

Because Booker effects primarily occur in the category of non-government 

sponsored below-the-range sentences, some of the other categories have been combined 

to simplify the presentation of the analysis. Within range sentences and government 

sponsored downward departures (§5K1.1, §5K3.1, and other government sponsored 

downward departures) are combined into a single category to better demonstrate the 

changes in upward departures and non-government sponsored below-the-range sentences. 

The four subcategories of non-government sponsored below-the-range sentences 

in the post-Booker data also are combined to facilitate the presentation of some results. 

Both downward departure categories (downward departures citing the guidelines, 

downward departures citing Booker) are sometimes combined into a single downward 

departure category. These two categories both specifically indicate use of a guideline 

downward departure in formulating the appropriate sentence. Irrespective of the reasons 

given for the departures, the language suggests that the court is acting under guideline 

departure authority. 

The other two below-range categories, below the range citing Booker and 

otherwise below-range sentences sometimes are combined into a Booker category. These 

cases are combined because the court either affirmatively indicates a variance from the 

guidelines or fails to indicate under which specific sentencing authority the below-therange sentence is imposed.368 

In order to facilitate presentation of still other findings, the four below-range 

categories sometimes are combined and identified as departure plus Booker. Historically 

upward departures have been rare in federal sentencings, accounting for approximately 

one percent of sentences. Due to their small numbers, all above range sentences are 

combined, regardless of which (if any) sentencing authority is invoked. 

 The coding protocols used post-Booker follow. 

 

368 These categories are defined in the coding protocol that follows. 
B-7 

DEPARTURE AND VARIANCE CATEGORY DESCRIPTIONS 

FOR THE COMMISSION AFTER JANUARY 12, 2005 DECISION ON 

UNITED STATES v. BOOKER .

Introduction

This document was prepared to describe the various outside the range categories 

used in the data releases produced by the Commission since the Booker decision on 

January 12, 2005. The first section of the document discusses how the different types of 

data are reported in the 12 different sentencing categories and the second section 

discusses how some scenarios are coded on the Commission =s datafile (note that there is 

not a perfect match between the coding and the reporting for some types of cases). 

 
B-8 

Within Range

(BOOKER CATEGORY 0)

$ Cases where the sentence is within BOTH the guideline range AND the statutory 

range AS WELL AS meeting the zone requirements REGARDLESS of the 

departure/variance status marked on the Statement of Reasons (“SOR”). 

$ SOR says AWithin Range@, the SOR indicates the final guideline range is 

51-63 months, the statutory range is 60-480 months, and the sentence is 60 

months 

$ SOR says ADeparture of 1 level for '5K3.1/EDP@ and the final guideline 

range is 18-24 months and the statutory range is 0-240 months and the 

sentence is 18 months (the rationale here is that the pre-departure range is 

18-24 months and the post-departure range is 15-21 and the sentence falls 

within both the pre- and post-departure ranges so the departure had no 

discernable effect. Therefore, the Commission considers these cases as 

within range). 

$ 18 U.S.C. § 924(c) cases within the statutory range (the rationale is that '2K2.4 

says to use the statutory range). 

$ Example is statutory minimum of 60 months and sentence of 60 months 

$ 8 U.S.C. §1325 cases with 24 months statutory maximum and no guideline 

calculation where the sentence is equal to the statutory maximum (the rationale 

for this is that if the guideline had been present in the case file the calculation 

would be trumped by the 24 month statutory maximum so a sentence equal to the 

statutory maximum would have been within the trumped range). 

$ Cases with sentence missing or indeterminable but SOR says AWithin Range@

$ No judgment and commitment order (“J&C”) received or page with 

sentence is missing but SOR says AWithin Range.@

$ J&C says ATime Served@ and there is no presentence report (“PSR”) to 

determine the exact amount of time served or PSR is unclear about amount 

of time served but SOR says AWithin Range.@ 

$ Time Served Instances 

$ Cases where time served is greater than the guideline range - all of the 

sentence must be time already served (the rationale for this is that often an 

offender is in custody for example 8 months prior to being sentenced and 

then if their guideline range is 0-6 months then the judge is not 

intentionally sentencing the offender above the guideline range so we call 

these within range). 

$ Cases where sentence is reported as Atime served@ on the J&C and the 

amount of time served cannot be determined (usually when the PSR is 

waived or missing). and the guideline range is 0-6 months (the rationale 

for this is that even if we cannot determine the amount of time served the 
B-9 

offender is not actually required to serve any time since the range is 0-6 so 

we say it is in range). 

* Note that sentences with partial months are rounded (if fraction of a month is .5 or 

higher than the sentence is rounded up - ex. If judge gives a time served sentence and the 

PSR reports that the offender has been in custody 169 days the Commission codes this as 

5 months and 19 days and this will be rounded up to 6 months). If the rounded sentence 

is within range then the Commission considers this sentence within range (ex. In the 

above example the sentence is rounded to 6 months and if the range was 6-12 months 

then the sentence of 169 days would be considered within range). 

Upward Departure from the Guideline Range 

(BOOKER CATEGORY 1)

$ Cases which are marked as departures only [i.e. cannot also have any variance 

information marked on the SOR] AND have ONLY a guideline reason limited to, 

and affirmatively and specifically identified in the provisions, policy statements, 

or commentary of the federal Guidelines Manual or multiple approved guideline 

reasons 

$ ex. Departure indicated on SOR and only reason is '5K2.8 

$ ex. Departure indicated on SOR and reasons are '5K2.8 and Criminal 

History Adequacy 

$ See list of guideline reasons limited to, and affirmatively and specifically 

identified in the provisions, policy statements, or commentary of the 

federal Guidelines Manual, infra at p. B-18. 

$ Note that the SOR must use the word Adeparture@ or Aadjustment@ for any outside 

of the range sentence to be considered a departure.

Upward Departure with Booker/18 U.S.C. ' 3553

(BOOKER CATEGORY 2)

$ Cases which are marked as upward departures AND have ONLY an guideline 

reason limited to, and affirmatively and specifically identified in the provisions, 

policy statements, or commentary of the federal Guidelines Manual (or multiple 

approved guideline reasons) AS WELL AS 1 or more reasons specifically (and 

only) citing Booker-related language 

$ Scenario 1: SOR only checks/indicates departure 

$ ex. 2 reasons for departure: '5K2.8 (Extreme conduct) and Booker

$ ex. 1 reason for departure: '5K2.8 (Extreme conduct) and in the AReasons 

for Departure@ section, the SOR says that the court applied the principals 

of 18 U.S.C. ' 3553(a) in determining the offender=s sentence (the 

rationale is that this example has 1 guideline departure reason limited to, 

and affirmatively and specifically identified in the provisions, policy 
B-10 

statements, or commentary of the federal Guidelines Manual and since 18 

U.S.C. ' 3553(a) is discussed also, it is coded as the 2nd departure reason 

and since it is considered a Booker cite the case is now in the Aboth@

category) 

$ Scenario 2: SOR indicates BOTH a departure and a variance 

$ ex. Departure with 1 guideline reason (ex. '5K2.8) and variance with 1 

Booker-related reason (ex. 18 U.S.C. ' 3553) 

$ Note that the SOR must use the word Adeparture@ or Aadjustment@ for any 

outside of the range sentence to be considered a departure. The 

Commission considers all other phrasing (ex. AOutside the range@, AAbove 

the Range@, AOutside the guideline system@, AVariance@, ADeviation@, 

AExcursion@, etc.) as variances. If multiple terms are used (ex. The SOR 

indicates it is departing for '5K2.8 and also says additionally the court is 

giving a sentence outside the guideline system to protect the public from 

future crimes of the offender), then the case is recorded as both a departure 

and a variance. 

$ See list of guideline reasons limited to, and affirmatively and specifically 

identified in the provisions, policy statements, or commentary of the federal 

Guidelines Manual and for list of Booker-related reasons, infra at p. B-18. 

Above the Range with Booker/18 U.S.C. ' 3553

(BOOKER CATEGORY 3)

$ Variances/Outside Guideline System is specified on the SOR and only Bookerrelated reason(s) specified 

$ SOR checks variance/outside system 

$ Variance with 1 Booker-related reason (ex. 18 U.S.C. ' 3553) 

$ Variance with multiple Booker-related reasons (ex. Deterrence and 

Reasonableness) 

$ Only a variance specified and no other reason provided. 

$ Departure is not specified and neither is a variance but at least one reason 

provided on the SOR for being outside the range is Booker-related 

$ SOR says the sentence is Aoutside the guideline range@ and the reason is 

AAdvisory nature of the guidelines@. Note that if the SOR does not 

indicate if the sentence is above or below the range the coder makes that 

determination based on logical criteria (i.e., if the sentence actually above 

the range then it is coded as above the range and vice-versa).

All remaining Cases Above the Guideline Range

(BOOKER CATEGORY 4)
B-11 

$ All other scenarios involving sentences outside of the guideline range not 

previously described in one of the other above the range categories fall into this 

category. 

$ Cases with no reason provided for being outside of the range 

$ SOR says ANo departure@ but the sentence is above the guideline 

range 

$ SOR says ADeparture@ but fails to provide any reason for the 

departure. Note that this also includes cases that say AAs stated on 

record@ or ASee Transcript/Exhibit@ and then fail to provide these 

additional documents to the Commission for determination of 

departure reason. 

$ SOR does not specify a variance, however, indicates the sentence 

is above the range but fails to provide any reason for why the 

sentence is outside of the range. Note that this also includes cases 

that say AAs stated on record@ or ASee Transcript/Exhibit@ and then 

fail to provide these additional documents to the Commission. 

$ Only a departure is specified and SOR cites 1 or more reasons which are 

not guideline reasons limited to, and affirmatively and specifically 

identified in the provisions, policy statements, or commentary of the 

federal Guidelines Manual

$ ex. Only reason cited is Booker-related (ex. Reasonableness) 

$ departure with guideline reason limited to, and affirmatively and 

specifically identified in the provisions, policy statements, or 

commentary of the federal Guidelines Manual (ex. '5K2.8) and 

miscellaneous reason (ex. Lack of Remorse) 

$ Both a departure and variance are specified on the SOR and 1 or more 

departure reasons are not guideline reasons limited to, and affirmatively 

and specifically identified in the provisions, policy statements, or 

commentary of the federal Guidelines Manual or 1 or more variance 

reasons are non-Booker-related reasons 

$ ex. Departure specified with miscellaneous reason (ex. Defendant 

exhibited no remorse for his actions) and variance specified with 

Booker-related reason (ex. 18 U.S.C. ' 3553) 

$ ex. Departure specified with guideline reason limited to, and 

affirmatively and specifically identified in the provisions, policy 

statements, or commentary of the federal Guidelines Manual (ex. 

'5K2.8) and variance specified with non-Booker related reason 

which may be guideline reason limited to, and affirmatively and 

specifically identified in the provisions, policy statements, or 

commentary of the federal Guidelines Manual or miscellaneous 

reason (ex. Criminal History Under-represents Seriousness) 

$ Only a variance specified and 1 or more non-Booker-related reasons are 

provided on the SOR 

$ ex. Variance specified and reason provided is an guideline reason 

limited to, and affirmatively and specifically identified in the 
B-12 

provisions, policy statements, or commentary of the federal 

Guidelines Manual (ex. '5K2.8 (Extreme Conduct)) 

$ ex. Variance specified with Booker-related reason (ex. Language 

from 18 U.S.C. ' 3553a cited) and 1 guideline reason limited to, 

and affirmatively and specifically identified in the provisions, 

policy statements, or commentary of the federal Guidelines 

Manual (ex. '5K2.8 (Extreme Conduct)) 

$ ex. Variance specified and 1 miscellaneous reason cited (not a 

guideline reason limited to, and affirmatively and specifically 

identified in the provisions, policy statements, or commentary of 

the federal Guidelines Manual or Booker-related reason) (ex. “The 

court varies because the defendant exhibited no remorse for his 

actions.”) 

$ Upward departures or variances that are marked as being initiated by the 

government on the SOR 

$ ex. Upward Departure or variance indicated on SOR due to plea 

agreement entered into pursuant to Rule 11(c)(1)(C) of the Federal 

Rules of Criminal Procedure.
B-13 

'5K1.1 Substantial Assistance Departures

(BOOKER CATEGORY 5)

$ All departures or variances if '5K1.1 is one of the reasons listed 

$ ex. Departure/variance is marked on SOR and only reason is '5K1.1 

$ ex. Departure/variance is marked and one reason is '5K1.1 and another 

reason is a guideline reason limited to, and affirmatively and specifically 

identified in the provisions, policy statements, or commentary of the 

federal Guidelines Manual (ex. Family Ties) 

$ ex. Departure/variance is marked and one reason is '5K1.1 and 2nd reason 

is another government sponsored reason (ex. '5K3.1/EDP) 

$ ex. Departure is marked on SOR and only reason is '5K1.1 and a variance 

is also marked with a Booker-related reason (ex. Reasonableness) 

$ Departure is marked on SOR and only reason is '5K1.1 and a variance is 

also marked with a miscellaneous reason (ex. AAs stated on Record@ and 

no other explanation or explanatory documentation (ex. transcript) is 

provided) 

'5K3.1/Early Disposition Program

(BOOKER CATEGORY 6)

$ All departures or variances involving '5K3.1 even if another reason is present or 

if a variance was also documented 

$ ex. Departure/variance is marked on SOR and only reason is '5K3.1 

$ ex. Departure/variance is marked and one reason is '5K3.1 and another 

reason is a guideline reason limited to, and affirmatively and specifically 

identified in the provisions, policy statements, or commentary of the 

federal Guidelines Manual (ex. Family Ties) 

$ ex. Departure/variance is marked and one reason is '5K3.1 and 2nd reason 

is another government sponsored reason (ex. Binding Plea Agreement) 

$ ex. Departure is marked on SOR and only reason is '5K3.1 and a variance 

is also marked with a Booker-related reason (ex. Reasonableness) 

$ Departure is marked on SOR and only reason is '5K3.1 and a variance is 

also marked with a miscellaneous reason (ex. AAs stated on Record@ and 

no other explanation or explanatory documentation (ex. transcript) is 

provided)

Government Sponsored Below the Range

(BOOKER CATEGORY 7)

$ All government sponsored below range sentences even if another non-government 

sponsored reason is also present or if a variance was also documented 

$ ex. Departure/variance is marked on SOR and only reason is government 

sponsored (ex. Binding Plea Agreement) 

$ ex. Departure/variance is marked and one reason is government sponsored 
B-14 

(ex. Early Plea) and another reason is a guideline reason limited to, and 

affirmatively and specifically identified in the provisions, policy 

statements, or commentary of the federal Guidelines Manual (ex. Family 

Ties) 

$ ex. Departure/variance is marked and one reason is government sponsored 

(ex. Savings to the Government) and 2nd reason is another government 

sponsored reason (ex. Binding Plea Agreement) 

$ ex. Departure is marked on SOR and only reason is government sponsored 

(ex. Waiver of Indictment) and a variance is also marked with a Bookerrelated reason (ex. Reasonableness) 

$ ex. Departure is marked on SOR and only reason is government sponsored 

(ex. Waiver of Appeal) and a variance is also marked with a miscellaneous 

reason (ex. AAs stated on Record@ and no other explanation or explanatory 

documentation (ex. transcript) is provided) 

$ ex. Departure or variance is marked, any reason is given, AND the SOR 

indicates that the reason is based on a plea agreement or was a government 

motion either via the check-boxes in Part V/VI, B on the AO245B (12/03-

06/05) forms or in writing on other SOR forms 

$ See Table 25 of the Commission=s yearly Sourcebook of Federal Sentencing 

Statistics for a complete list of government sponsored reasons. Note that districts 

that specify AFast-Track@ without specifying the official EDP/'5K3.1 designation 

on the SOR are included in this government sponsored category, not in the 

EDP/'5K3.1 category. 

Downward Departure from the Guideline Range 

(BOOKER CATEGORY 8)

$ Cases which are marked as departures only [i.e. cannot also have any variance 

information marked on the SOR] AND have ONLY a guideline reason limited to, 

and affirmatively and specifically identified in the provisions, policy statements, 

or commentary of the federal Guidelines Manual or multiple guideline reasons 

limited to, and affirmatively and specifically identified in the provisions, policy 

statements, or commentary of the federal Guidelines Manual

$ ex. Departure is marked on SOR and only reason is '5K2.13 

$ ex. Departure is marked on SOR and reasons are Family Ties and 

Aberrant Behavior 

$ See list of guideline reasons limited to, and affirmatively and specifically 

identified in the provisions, policy statements, or commentary of the 

federal Guidelines Manual, infra at B-18. 

$ Note that the SOR must use the word Adeparture@ or Aadjustment@ for any outside 

of the range sentence to be considered a departure. 
B-15 

$

Downward Departure with Booker/18 U.S.C. ' 3553

(BOOKER CATEGORY 9)

$ Cases which are marked as a downward departure AND have ONLY a guideline 

reason limited to, and affirmatively and specifically identified in the provisions, 

policy statements, or commentary of the federal Guidelines Manual (or multiple 

guideline reasons) AS WELL AS 1 or more reasons specifically (and only) citing 

Booker-related reasons 

$ Scenario 1: SOR only checks/indicates departure 

$ ex. 2 reasons for departure: Family Ties and Booker

$ ex. 1 reason for departure: Aberrant Behavior and in the AReasons for 

Departure@ section, the SOR says that the court applied the principals of 

18 U.S.C. ' 3553(a) in determining the offender=s sentence (the rationale 

is that this example has 1 guideline departure reason limited to, and 

affirmatively and specifically identified in the provisions, policy 

statements, or commentary of the federal Guidelines Manual and since 18 

U.S.C. ' 3553(a) is discussed also, it is coded as the 2nd departure reason 

and since it is considered a Booker cite the case is now in the Aboth@

category) 

$ Scenario 2: SOR indicates BOTH a departure and a variance 

$ ex. Departure with 1 guideline reason limited to, and affirmatively and 

specifically identified in the provisions, policy statements, or commentary 

of the federal Guidelines Manual (ex. Criminal History Adequacy) and 

variance with 1 Booker-related reason (ex. 18 U.S.C. ' 3553) 

$ Note that the SOR must use the word Adeparture@ or Aadjustment@ for any outside 

of the range sentence to be considered a departure. The Commission considers all 

other phrasing (ex. AOutside the range@, ABelow the Range@, AOutside the 

guideline system@, AVariance@, ADeviation@, AExcursion@, etc.) as variances. If 

multiple terms are used (ex. The SOR indicates it is departing for '5K2.13 and 

also says additionally the court is giving a sentence outside the guideline system 

to achieve just punishment), then the case is recorded as both a departure and a 

variance. 

$ See list of guideline reasons limited to, and affirmatively and specifically 

identified in the provisions, policy statements, or commentary of the federal 

Guidelines Manual and for list of Booker-related reasons, infra at B-21. 
B-16 

Below the Range with Booker/18 U.S.C. ' 3553 

(BOOKER CATEGORY 10)

$ Variances/Outside Guideline System is specified on the SOR and only Bookerrelated reason(s) specified 

$ SOR checks variance/outside system 

$ Variance with 1 Booker-related reason (ex. 18 U.S.C. ' 3553) 

$ Variance with multiple Booker-related reasons (ex. Rehabilitation 

and Reasonableness) 

$ Variance specified and no other reason provided. 

$ Departure is not specified and neither is a variance but the reason provided on the 

SOR for being out side the range is Booker-related 

$ SOR says the sentence is Aoutside the guideline range@ and the reason is 

AAdvisory nature of the guidelines@. Note that if the SOR does not 

indicate if the sentence is above or below the range the coder makes that 

determination based on logical criteria (i.e. if the sentence actually below 

the range then it is coded as below the range and vice-versa). 

$

All remaining Cases Below the Guideline Range 

(BOOKER CATEGORY 11)

$ All other scenarios involving sentences below the guideline range not previously 

described in one of the other below the range categories fall into this category. 

$ Cases with no reason provided for being outside of the range 

$ SOR says ANo departure@ but the sentence is below the guideline 

range. 

$ SOR says ADeparture@ but fails to provide any reason for the 

departure. Note that this also includes cases that say AAs stated on 

record@ or ASee Transcript/Exhibit@ and then fail to provide these 

additional documents to the Commission for determination of 

departure reason. 

$ SOR does not specify a variance, however, indicates the sentence 

is below the range but fails to provide any reason for why the 

sentence is outside of the range. Note that this also includes cases 

that say AAs stated on record@ or ASee Transcript/Exhibit@ and then 

fail to provide these additional documents to the Commission. 

$ Only a departure is specified and SOR cites 1 or more reasons which are 

not guideline reasons limited to, and affirmatively and specifically 

identified in the provisions, policy statements, or commentary of the 

federal Guidelines Manual

$ ex. Only reason cited is Booker-related (ex. Reasonableness) 

$ departure with guideline reason limited to, and affirmatively and 

specifically identified in the provisions, policy statements, or 

commentary of the federal Guidelines Manual (ex. Diminished 
B-17 

Capacity) and miscellaneous reason (ex. Lost job is punishment 

enough) 

$ Both a departure and variance are specified on the SOR and 1 or more 

departure reasons are not guideline reasons limited to, and affirmatively 

and specifically identified in the provisions, policy statements, or 

commentary of the federal Guidelines Manual or 1 or more variance 

reasons are non-Booker-related reasons 

$ ex. Departure specified with miscellaneous reason (ex. Childhood 

abuse) and variance specified with Booker-related reason (ex. 18 

U.S.C. ' 3553) 

$ ex. Departure specified with guideline reason limited to, and 

affirmatively and specifically identified in the provisions, policy 

statements, or commentary of the federal Guidelines Manual (ex. 

Family Ties) and variance specified with non-Booker related 

reason which may be guideline reason limited to, and affirmatively 

and specifically identified in the provisions, policy statements, or 

commentary of the federal Guidelines Manual (ex. Criminal 

History Under-represents Seriousness) or miscellaneous reason 

(ex. Childhood Abuse) 

$ Variance specified and 1 or more non-Booker-related reasons are provided 

on the SOR 

$ ex. Variance specified and reason provided is a guideline reason 

limited to, and affirmatively and specifically identified in the 

provisions, policy statements, or commentary of the federal 

Guidelines Manual (ex. “Court varies because of Family Ties”) 

$ ex. Variance specified with -related reason (ex. Language from 18 

U.S.C. ' 3553(a) cited) and 1 guideline reason limited to, and 

affirmatively and specifically identified in the provisions, policy 

statements, or commentary of the federal Guidelines Manual (ex. 

Aberrant Behavior) 

$ ex. Variance specified and 1 miscellaneous reason cited (not an 

approved guideline reason or Booker-related reason) (ex. “Court 

varies due to defendant=s positive background/good character”.) 

Missing/Indeterminable

(NOT REPORTED IN ANY BOOKER CATEGORY)

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

received 

$ Class A Misdemeanors for which there were no analogous guidelines applied in 

the PSR or SOR 

$ Sentence is missing (J&C not received al all or sentence information missing from 

J&C) and SOR does not specifically say sentence is AWithin Range@ (i.e. SOR is 
B-18 

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

$ No guideline range is determinable due to missing documents (ex. Both PSR and 

SOR are not received). 

$ Sentence is ATime Served@ and the amount of time served cannot be determined 

(the PSR is not received or does not clearly delineate the amount of time served) 

AND the sentencing range is greater than 0-6 months AND the SOR does not 

indicate if the sentence is within/outside the guideline range. 

$ Cases with logical criteria issues between the sentence and reported 

departure/variance status (ex. cases where the sentence is below the range but the 

SOR reports it as being an upward departure or variance). 

Guideline Departure Reasons 

(limited to, and affirmatively and specifically identified in the provisions, 

policy statements, or commentary of the federal Guidelines Manual) 

(10) '5G1.3 - Convictions on related counts 

(11) '5H1.1 - Age 

(12) '5H1.2 - Educational and vocational skills 

(13) '5H1.3 - Mental and emotional conditions 

(14) '5H1.4 - Physical condition 

(15) '5H1.4 - Drug dependence and alcohol abuse 

(16) '5H1.5 - Previous employment record 

(17) '5H1.6 - Family ties and responsibilities 

(18) '5H1.6 - Community ties 

(22) '5K2.0 - Several persons injured 

(23) '5K2.1 - Death 

(24) '5K2.2 - Physical injury 

(25) '5K2.3 - Extreme psychological injury 

(26) '5K2.4 - Abduction or unlawful restraint 

(27) '5K2.5 - Property damage or loss 

(28) '5K2.6 - Weapons and dangerous instrumentalities 

(29) '5K2.7 - Disruption of governmental function 

(30) '5K2.8 - Extreme conduct 

(31) '5K2.9 - Criminal purpose 

(32) '5K2.10 - Victim=s conduct 

(33) '5K2.11 - Lesser harm 

(34) '5K2.12 - Coercion and duress 

(35) '5K2.13 - Diminished capacity 

(36) '5K2.14 - Public welfare 

(41) '4A1.3 - Criminal history adequacy (Explain) 

(42) '5K2.17 - High-capacity semiautomatic firearm 
B-19 

(43) '5K2.18 - Violent street gang 

(44) '5K2.20 - Aberrant behavior 

(45) '5K2.21 - Dismissed and uncharged conduct 

(46) '5K2.22 - Age or health sex offenders 

(47) '5K2.23 - Discharge terms of imprisonment 

(100) '2A1.1 - Death not caused intentionally 

(101) ''2A2.1, 2A2.2 - Degree of injury falls between two categories 

(103) '2A3.2 - Criminal sex act for commercial purpose 

(105) '2A6.1 - factors not incorporated into guideline 

(106) '2B1.3 - Monetary value does not reflect extent of harm 

(108) '2B3.1 - Intended to murder the victim 

(110) '2C1.1 - Systematic or persuasive corruption of governmental function 

(111) '2D1.1 - Unusually high drug purity 

(112) '2D1.1 - Unusually high drug amount 

(114) '2D1.5 - Sanctioned use of violence in enterprise 

(118) '2F1.1 - Loss substantially exceeds maximum from loss table 

(119) '2F1.1 - Dollar loss overstates seriousness of offense 

(120) '2F1.1 - Fraudulent statements could be covered by more specific statute 

(121) '2G1.1 - Offense did not involve profit nor physical force or coercion 

(124) '2H2.1 - Corrupting a public official/bodily injury/property damage 

(125) '2L1.1 - Large number of aliens 

(126) '2L1.1 - Dangerous or inhumane treatment 

(127) ''2L2.2, 2L2.4 - Deported on one or more prior occasions 

(128) ''2M3.1, 2M3.7, 2M3.9 - Revelation causes little or no harm 

(131) ''2M5.1, 2M5.2 - Extreme threat to national security 

(132) ''2M5.1, 2M5.2 - Extreme volume of commerce involved 

(134) ''2M5.1, 2M5.2 - Extreme number of multiple occurrences 

(137) ''2N2.1, 2Q1.2 - Negligence involved 

(139) ''2Q1.2, 2Q1.3 - Harm resulting from emission, release, or discharge 

(140) ''2Q1.2, 2Q1.3 - Harm resulting from quantity and nature of substance or pollutant 

(141) ''2Q1.2, 2Q1.3 - Harm resulting from duration of event 

(142) ''2Q1.2, 2Q1.3 - Harm resulting from risk 

(143) ''2Q1.2, 2Q1.3 - Nature of risk 

(144) ''2Q1.2, 2Q1.3 - Number of people at risk 

(145) ''2Q1.2, 2Q1.3 - Nature of contamination 

(146) ''2Q1.2, 2Q1.3 - Similar conduct by civil adjudication 

(147) ''2Q1.2, 2Q1.3 - Failure to comply with administrative order 

(148) '2T1.6 - Tax evasion and embezzlement 

(151) '§2T3.1, 2T3.2 - Importation of drugs, obscene matter, firearms, pelts of 

endangered species 

(152) '2T3.1 - Duties may not adequately reflect harm 

(200) '3A1.2 - Exceptionally high level victim 

(201) '3C1.1 - Further obstruction of justice 

(250) '3D1.4 - Offenses significantly more than 5 units 
B-20 

(300) '4A1.3 - Pattern of conduct 

(302) '4A1.3 - Related cases 

(304) General adequacy of criminal history; does not reflect seriousness of criminal 

history 

(305) '4A1.3 - Outside applicable time period, but similar misconduct 

(306) '4A1.3 - Outside applicable time period, but substantial portion of income 

(307) '4A1.3 - Significance or similarity of past conduct 

(309) Criminal history category over-represents defendant=s involvement 

(703) '5K2.0 - General aggravating or mitigating circumstances 

(711) '5G1.3 

(721) '5H1.11 - Military record/charitable service/good works 

(801) '8C4.2 - Risk of death or bodily injury 

(825) '5K2.16 - Voluntary disclosure 

$ Additionally, the SAS code looks through the text fields associated with the 

AOther@ codes for the following terms: "2B1", "2G2", "5C1", and "5H1". 
B-21 

Booker-related Reasons

(1) Nature and circumstance of offense and history and characteristics of defendant 

pursuant to 18 U.S.C. ' 3553(a)(1) 

(2) Reflect the seriousness of the offense, to promote respect for the law and just 

punishment 

(3) Afford adequate deterrence to criminal conduct 

(4) Protect the public from further crimes of the defendant 

(5) Provide the defendant with education or vocational training, medical care, or other 

(6) Avoid unwarranted sentencing disparities among defendants 

(7) Provide restitution to any victims of the offense 

(654) Adequate punishment to meet the purposes of sentencing 

(655) Deterrence 

(657) Reduce disparity 

(662) Put sentence in line with co-defendants (i.e. reduce disparity among co-defendants) 

(676) Rehabilitation 

(678) Incapacitation 

(712) Advisory nature of the guidelines 

(713) Judge specifies presence of variance/deviation 

(714) DOES NOT EXIST IN ORACLE AT THIS TIME 

(750) Reasonableness 

(760) US v Booker/ US v Fanfan

(761) 18 U.S.C. ' 3553(a) 

(762) Language from the 18 U.S.C. ' 3553(a) statute text 

$ Additionally, the SAS code looks through the text fields associated with the 

AOther@ codes for the following terms: "BOOKER", "REASONABLE", 

"ADVISORY", "3553", and "DISCRETIONARY" and assigns these reasons as 

Booker-related reasons. 

$ If the SAS code finds "3553E" then it does not assign the text as a Booker-related 

reason. 
B-22 

B. DETAILS OF THE MULTIVARIATE ANALYSES 

 1. Data used for the analyses

 The Commission analyzed three populations for the multivariate regression 

analyses. The first population is comprised of 34,758 cases (14,446 drug cases sentenced 

under §2D1.1 and 20,312 non-drug cases). These cases were sentenced between October 

1, 2002 (the beginning of fiscal year 2003) and April 30, 2003 (the date of the enactment 

of the Protect Act). This population will be referred to as “pre-PROTECT Act.” 

 The second, the post- PROTECT Act population, is comprised of 68,376 cases 

(27,402 drug cases and 40,974 non-drug) sentenced between May 1, 2003 (the day after 

the enactment of the Protect Act) and June 24, 2004 (the date of the Blakely decision).369 

 The final population is comprised of 67,654 cases (22,855 drug cases and 35,839 

non-drug) sentenced between January 12, 2005 (the date of the Booker decision) and 

January 11, 2006 (one year after the Booker decision). This population will be referred to 

as “post-Booker.” 

 2. Variables used for the analyses

 The multiple regression analysis attempts to statistically control for certain factors 

in order to measure the effect of others. Models involving the length of the sentence 

imposed use the logarithm of the sentence imposed,370 including any alternative 

confinement imposed.371 The decision to treat alternative confinement the same as 

imprisonment is based on the fact that the guideline sentencing Table is a “confinement 

Table” as opposed to an “imprisonment Table.” Offenders sentenced in Zones A, B, and 

C may have their sentences satisfied under the guidelines with sentences of probation, 

imprisonment, alternatives or a combination of imprisonment or alternatives. Thus, 

models that simply use the prison sentence imposed may underestimate the length of the 

confinement imposed and make some sentences appear out of range by not accounting 

for relevant alternatives. 

 

369 As discussed in earlier chapters, Blakely caused some confusion in the federal sentencing community 

that resulted in inconsistent guideline application and sentencing. Because of these inconsistencies, data 

collected during that period is incompatible with the rest of the fiscal year. 

370 As suggested in literature. See Spohn, Cassia, Sentencing Decisions in Three U.S. District Courts: 

Testing the Assumption of Uniformity in the Federal Sentencing Process. (Paper presented at the 2004 

Annual Meeting of the American Society of Criminology in Nashville, TN) (2004). 

371 Sentences of zero months were assigned a sentence of .01 months (the logarithm of zero is not 

mathematically possible). 
B-23 

 The “presumptive sentence” model372 includes several major assumptions and 

decision points. One of the major decisions in this model is where to set the 

“presumptive sentence.” When dealing with federal sentencing data, the assumption in 

the “presumptive sentence” model is that courts use the bottom of the sentencing range as 

the “starting point” when determining the final sentence. This assumption is based on 

historical Commission data.373 All statutory and mandatory minimums are taken into 

account when calculating the presumptive sentence. 

 The independent (or predictor) variables used in these models may be classified 

into guideline relevant (or case characteristics) and demographic factors. The guideline 

relevant characteristics included in the models were: the logarithm of the guideline 

minimum (including any statutory minimums), the type of offense (violent, sexual, drug, 

immigration, white collar, and “other”374), whether the offender received a safety valve 

adjustment, the number of criminal history points, whether the offender was convicted of 

an 18 U.S.C. § 924(c) offense, whether the offender received a specific offense 

characteristic (SOC) enhancement for use of a weapon, departure status (upward, 

downward - government initiated, downward - court initiated, §5K1.1 substantial 

assistance departure, or none), whether the offender went to trial, whether the offender 

had a mandatory minimum sentence, whether the Career Offender375 enhancement 

applied, whether the Armed Career Criminal376 enhancement applied, and role in the 

offense (mitigating role, aggravating role or none). Analyses involving only drug cases 

included controls for the type of drug involved in the case (cocaine, crack, heroin, 

marijuana, methamphetamine, and other). 

 Most guideline relevant factors are also incorporated in the calculation of the 

guideline minimum, the exceptions are the departure status, and whether the offender 

went to trial.377 Inclusion of these factors in the model with presumptive sentence allows 

a measure of their weight in determining the sentence beyond the weight they are given 

in the guidelines. For example, consider two offenders with a guideline minimum of 63 

months, but one has a weapon involved in his offense and the other receives a mitigating 

 

372 A discussion of the “presumptive sentence model” may be found in Paul J. Hofer and Kevin R. 

Blackwell What Are We Learning from Multiple Regression Studies of Federal Sentencing Decisions

(Paper presented at the American Society of Criminology Meeting, Atlanta, GA) (2002). Available from 

the authors; Rodney L. Engen and Randy R. Gainey. Modeling the Effects of Legally Relevant and 

Extralegal Factors Under Sentencing Guidelines: The Rules Have Changed, CRIMINOLOGY 38(4): 1207 

(2000). 

373 4

 In the “Post-Booker" population, 57.1 percent of the cases that were sentenced within the guideline 

range were sentenced at the bottom of the range. For the “Post-Protect Act" cases, 58.3 percent were 

sentenced at the bottom of the range. 

374 The type of offenses were classified by the guideline that controlled the guideline calculation. Details as 

to how each guideline was classified are included in Appendix C. 375 See Guideline Manual, §4B1.1. 376 See Guideline Manual, §4B1.4. 377 An argument may be made that the “acceptance of responsibility” adjustment may be a proxy for going 

to trial. In the Post-Booker time period, 96.9 percent of those who pled received an acceptance of 

responsibility adjustment, and conversely 94.3 percent of those who went to trial did not receive this 

adjustment. 
B-24 

role adjustment. It would not be surprising if the offender with a weapon received a 

higher sentence even though the presumptive sentences and guideline ranges for both 

offenders are the same. Judges may weigh the presence of a weapon or a mitigating role 

somewhat differently than the guidelines. By including these factors in the model, a 

sense of the importance the court places in these factors in the final determination of the 

sentence may be inferred. 

 Demographic variables include; race of the offender (White, Black, Hispanic, or 

Other), whether the offender was over 25 years of age, whether the offender attended 

college, gender of the offender, and whether the offender was a non-United States citizen. 

 The discrete decision analyses used several outcome (or dependent) variables 

depending on the analysis. The “departure decision” analyses involved the use of the 

different types of departure: upward, downward - government initiated, downward - court 

initiated and substantial assistance departure. The post-Booker analysis also modeled the 

decision of the court as to whether a “variance” was used or a “guidelines based 

departure” was used. Analysis of the decision whether to imprison or not (the “in/out” 

decision”) used a dichotomous variable with two categories: 1) whether the offender was 

sentenced to a prison term or 2) sentenced to an alternative or straight probation. 378 

3. Methodologies and results 

 The sentence length analyses were performed using ordinal least squares (OLS) 

analysis. 

Statistical significance was determined at p < 0.01. The variables used in the analysis 

were as follows: 

Length of sentence imposed: The independent variable for these analyses used the 

sentence imposed, including all alternative confinement included. This logarithm of this 

variable was used, with all sentences of zero months given the value of 0.01 months as 

the logarithm of zero is not mathematically possible. Life sentences were given the value 

of 470 months, and all values greater than 470 were given a value of 470 months. The 

variable used from the data files was SENSPLT0. 

The independent variables were: 

Guideline minimum: The minimum sentence in months, without the use of a departure, 

the offender was subject to, taking into account all guideline, statutory and mandatory 

minimums. The logarithm of this variable was used, with all minimums of zero months 

 

378 The independent variables for these analyses were identical to the ones used in the sentence length 

models except that the guideline minimum in months was used (not the logarithm), for the “in/out” 

decision, the zone the offender’s sentencing range was under was added, and for the departure decision, 

departure status was not included as an independent variable. 
B-25 

given the value of 0.1 months as the logarithm of zero is not mathematically possible. 

Minimums of life in prison were recoded as 470 months. The variable GLMIN was used. 

Violent offense: Offenders whose guideline sentence was controlled by the following 

guidelines were considered violent offenders: Chapter Two Part K offenders (“Offenses 

involving Public Safety”), §§2A1.1-2A1.5, 2A2.1-2A2.4, 2A4.1-2A4.2, 2A5.1-2A5.3, 

2A6.1, 2A6.2, 2E1.3, 2E1.4, 2E2.1, 2B3.1, 2B3.2, and 2B3.3. The variable used from the 

data file for this and all other variables involving offense type was GDLINEHI. 

Sexual offense: Offenders whose guideline sentence was controlled by the following 

guidelines: §§2A3.1-2A3.4, 2G1.1-2G1.3, and 2G2.1-2G2.5. 

Drug trafficking offense: Offenders whose guideline sentence was controlled by the 

following guidelines: §§2D1.1, 2D1.2, 2D1.3, 2D1.11, and 2D1.12. 

Other drug offenses: Offenders whose guideline sentence was controlled by the following 

guidelines: §§2D1.5-2D1.10, 2D2.1-2D2.3, 2D3.1, and 2D3.2. 

White collar offenses: Offenders whose guideline sentence was controlled by the 

following guidelines: §§2B1.1, 2B1.6, 2B4.1, 2B5.1, 2B5.3, 2F1.1, 2F1.2, 2R1.1, 

Chapter Two Part S offenses (“Money Laundering and Monetary Transaction 

Reporting”) and Chapter Two Part T offenses (“Offenses Involving Taxation”). 

Immigration offenses: Offenders whose guideline sentence was controlled by offenses in 

Chapter Two Part L (“Offenses Involving Immigration, Naturalization and Passports”). 

Other type offenses: Offenders whose guideline sentence was controlled by offenses not 

in the violent, sexual, drug trafficking, other drug offenses, white collar offenses, and 

immigration offenses. 

Criminal History Points: The number of criminal history points assigned to the offender. 

The variable used from the data file was SORCHPT. 

Conviction for 18 U.S.C. § 924(c): Conviction by the court under this statute carries a 

consecutive mandatory minimum. The variable from the data file is IS924C. 

Weapon enhancement: The application of an enhancement for use or possession of a 

weapon during the offense. The variable from the date files is WEAPSOC. 

Mandatory minimum application: If the statutory minimum for the offense was greater 

than zero, a mandatory minimum applies in the case. The variable STATMIN was used 

Career offender applied: Whether the offender was subject to the enhanced criminal 

history level and offense level under §4B1.1. The variable CAROFFAP was used. 
B-26 

Armed career criminal application: Whether the offender was subject to the enhanced 

criminal history level and offense level under §4B1.4. The variable ACCAP was used. 

 

Departure status: Post-Booker the variable from the data file used was BookerCAT3 and 

pre-Booker the variables were DEPART AND DEPART_D. Some recoding was done 

for post-Booker variables. Upward departures were coded yes if the values were “upward 

departure - guideline reason,” “upward departure - guideline and 18 U.S.C. § 3553 (3553) 

reason,” “above range with Booker and 3553 reason,” and “other above range.” 

Downward - court initiated were coded yes if the values were “downward departure - 

guideline reason,” downward departure - guideline and 3553 reason,” “below range with 

Booker and 3553 reason,” and “other below range.” “Variances” were values of “below 

range with Booker and 3553 reason,” and “other below range.” Finally, government 

initiated downward departures were yes for “early disposition/§5K3.1" and “government 

sponsored - below range.” In the post-Protect Act population, there are 265 cases that 

were sentenced below the guideline minimum and were not classified as downward 

departures because the documentation stated that these cases were sentenced “within 

range.” It was decided to re-code these cases as “downward departure - court initiated.” 

In the post-Booker population, these cases were already considered as “downward 

variances.” Also, in the same population, there were an additional 371 cases whose 

documentation listed the case as “within range” and yet were sentenced above the 

guideline maximum. These cases were re-coded to be “upward departures.” 

Safety valve: The application of safety valve under §5C1.2 (Limitation of Applicability 

of Statutory Minimum Sentences in Certain Cases). The variable SAFETY was used. 

Trial: The variable NEWCNVTN was used. 

Mitigating role: Court determination that the offender had a minor or minimal role in the 

offense according to §3B1.2 in the guidelines manual. The variable MITROLHI was 

used. 

Aggravating role: Court determination that the offender had an aggravating role in the 

offense according to §3B1.1 in the guidelines manual. The variable AGGROLHI was 

used. 

Race of offender: The variable NEWRACE was used. 

Age of offender: This was recoded as a dichotomous variable, separated those who were 

25 years of age and younger from those older than 25 years of age. The variable AGE 

was used. 

Educational attainment: This was recoded into those offenders who attended college for 

any period of time and those who never attended college. The variable EDUCATN was 

used. 
B-27 

Male: The variable MONSEX was used. 

Citizenship: The variable NEWCIT was used. 

 There were also analysis on non-drug and drug cases separately. The non-drug 

population was analyzed with the same variables as the overall model. The drug 

population was analyzed with the same variables, with the exception that offense type 

was not controlled for, but rather the type of drug involved in the offense was. 

Type of drug: The major type of drug which controlled the guideline sentence was used. 

This is important when multiple drugs were involved in the case. The categories used 

were cocaine, crack, heroin, marijuana, methamphetamine, and “other” drugs. The 

variable COMBDRG2 was used. 

The model was a “restricted” model. The parameter estimate of the log of the guideline 

minimum was set to have a value of 1.0. This was done so that the true measure of the 

effects that go into the calculation of the guideline minimum could be measured. The 

value of this variable without the restriction was always close to one (a typical value was 

.99998). 

The results of this analysis were then transformed into percent of the sentence affected by 

the variable. Table C-1 shows the result of all the models for selected variables. Here is 

an example of a printout using this model: 
B-28 

Regression model 

Booker

The REG Procedure 

Model: MODEL1 

Dependent Variable: logsplit 

NOTE: Restrictions have been applied to parameter estimates. 

 Analysis of Variance 

 Sum of Mean 

 Source DF Squares Square 

F Value Pr > F 

 Model 27 200729 7434.39525 

3459.60 <.0001 

 Error 58492 125695 2.14892 

 Corrected Total 58519 326423 

 Root MSE 1.46592 R-Square 

0.6149 

 Dependent Mean 2.91494 Adj R-Sq 

0.6148 

 Coeff Var 50.28988 

 Parameter Estimates 

 Parameter Standard 

Standardized 

 Variable DF Estimate Error t Value Pr 

> |t| Estimate 

 Intercept 1 0.20217 0.02994 6.75 

<.0001 0 

 logmin 1 1.00000 0 Infty 

<.0001 1.01322 

 violent 1 -0.11441 0.02350 -4.87 

<.0001 -0.01761 

 sexual 1 -0.18311 0.04330 -4.23 

<.0001 -0.01191 

 drug 1 0.84297 0.06711 12.56 

<.0001 0.03327 

 immigration 1 0.33534 0.02607 12.86 

<.0001 0.05888 

 othtype 1 -0.18464 0.03625 -5.09 

<.0001 -0.01482 

 whitecoll 1 -0.10210 0.02409 -4.24 

<.0001 -0.01631 

 sorchpt 1 -0.00568 0.00130 -4.36 

<.0001 -0.01334 
B-29 

 is924c 1 -0.00114 0.03470 -0.03 

0.9738 -0.00009129 

 weapsoc 1 0.02733 0.02631 1.04 

0.2989 0.00279 

 valve 1 -0.12634 0.02310 -5.47 

<.0001 -0.01821 

 accap 1 0.13662 0.06610 2.07 

0.0387 0.00571 

 caroffap 1 0.26763 0.03588 7.46 

<.0001 0.02057 

 upward 1 0.86295 0.04798 17.99 

<.0001 0.04660 

 downgovt 1 -1.15026 0.02215 -51.94 

<.0001 -0.14485 

 downcourt 1 -1.32362 0.01856 -71.32 

<.0001 -0.18964 

 subasst 1 -1.65665 0.01820 -91.00 

<.0001 -0.25359 

 mandmin 1 0.12396 0.01982 6.25 

<.0001 0.02414 

 newcnvtn 1 -0.03380 0.02750 -1.23 

0.2190 -0.00327 

 mitigate 1 -0.20673 0.02290 -9.03 

<.0001 -0.02541 

 aggravate 1 0.03490 0.02879 1.21 

0.2254 0.00321 

 black 1 0.04764 0.01714 2.78 

0.0054 0.00878 

 hisp 1 -0.02193 0.01957 -1.12 

0.2625 -0.00455 

 other 1 0.10254 0.03052 3.36 

0.0008 0.00914 

 agedummy 1 -0.11866 0.01555 -7.63 

<.0001 -0.02020 

 educ 1 -0.04746 0.01631 -2.91 

0.0036 -0.00821 

 male 1 0.14974 0.01892 7.92 

<.0001 0.02156 

 newcit 1 0.30543 0.01923 15.88 

<.0001 0.06101 

 RESTRICT -1 -60238 636.09510 -94.70 

<.0001* . 

 * Probability computed using beta 

distribution. 
B-30 

Table B-1 

SENTENCE LENGTH MODELS 

GUIDELINE RELEVANT CHARACTERISTICS 

Post-PROTECT Act and Post-Booker

Post-Booker Post-PROTECT ACT

All controls Drug cases Non-drug cases All controls Drug cases Non-drug cases 

Variable PERCENT DIFF PERCENT DIFF PERCENT DIFF PERCENT DIFF PERCENT DIFF PERCENT DIFF 

Offense Type (reference category = Drug Trafficking offenses)16

Violent -10.8 NA NS -9.5 NA NS 

Sexual -16.7 NA NS -20.5 NA -14.3 

Other Drug 132.3 REFERENCE NA 367.7 REFERENCE NA 

Drug Trafficking REFERENCE -64.9 NA REFERENCE -81.2 NA 

Immigration 39.8 NA 42.0 43.0 NA 43.9 

White Collar -9.7 NA NS NS NA NS 

Other Type -16.9 NA REFERENCE -12.4 NA REFERENCE 

Criminal History

Criminal History Points -0.6 1.3 -1.4 -1.5 0.6 -2.5 

Career Offender application 30.7 NS 51.4 30.4 NS 45.6 

Armed Career Criminal NS NS 34.5 NS NS 40.5 

Departure Status (reference category = No departure)

Upward 137.0 193.8 251.2 383.8 804.3 270.3 

Down - Government -68.3 -44.6 -74.4 -66.8 -51.2 -71.7 

Substantial Assistance -80.9 -67.2 -90.4 -79.9 -65.6 -90.1 

Down - Court -73.4 -48.2 -81.7 -73.0 -52.6 -80.0 

Role in the offense (No role in the offense)

Mitigating role -18.7 -14.6 -27.3 -15.1 -12.8 -14.8 

Aggravating role NS NS NS NS NS NS 

Case Characteristics

Trial (Plea) NS NS NS -10.6 NS -11.5 

18 U.S.C. § 924(c) conviction NS NS NS NS NS NS 

Weapon SOC NS NS NS NS NS NS 

Mandatory Minimum applied 13.2 12.4 NS 6.0 NS NS 

Safety valve -11.9 NS NA -17.8 -9.1 NA 

 

16The reference group for the “Non-drug model” are the “other offenses.” 
B-31 

Table B-1 (cont.) 

SENTENCE LENGTH MODELS 

DRUG TYPE AND DEMOGRAPHIC CHARACTERISTICS 

Post-PROTECT Act and Post-Booker

Post-Booker Post-PROTECT ACT

All controls Drug cases Non-drug cases All controls Drug cases Non-drug cases 

Variable

PERCENT 

DIFF 

PERCENT 

DIFF 

PERCENT 

DIFF 

PERCENT 

DIFF 

PERCENT 

DIFF 

PERCENT 

DIFF 

Drug Type (reference category = Marijuana)

Cocaine NS NS NA NS -13.4 NA

Crack NS NS NA NS -12.7 NA

Heroin NS NS NA NS -16.9 NA

Methamphetamine NS 9.5 NA NS NS NA

Other drugs NS 12.4 NA NS -25.5 NA

Race of offender (Reference category = White offender)

Black 4.9 NS 9.2 NS 10.3 NS

Hispanic NS 9.3 NS NS 13.3 -7.9

Other 10.8 14.6 NS NS NS NS

Other Demographic Characteristics

Over 25 years of age -11.2 NS -15.3 -10.9 -4.1 -14.6

College attendance -4.6 NS NS -8.4 -6.6 -7.7

Male (Female) 16.2 29.9 11.0 17.0 28.6 12.2

Non-citizen (U.S. Citizen) 35.7 8.3 70.0 33.9 16.0 61.3
B-32 

The decision to depart used many of the same variables as in the OLS analysis. A 

“logistic regression” was used to analyze these data. The dependent variable was the 

type of departure that was being studies (upward, downward - government initiated, 

downward - court initiated, and substantial assistance). The post-Booker population was 

also analyzed by separating out “variance” and guideline based downward departures 

from the downward departure - court initiated category. The guideline minimum was 

used for this analysis, and the value was not transformed via logarithms (and values of 

zero were kept as such). 

 Finally, there are cases in which the statutory minimum and the guideline 

minimum are above zero months and they are equal. Unless the offender has been 

granted a departure for substantial assistance or given a “Safety valve” in a drug case, the 

court is unable to give a downward departure in the case as they are restricted by the 

statutory minimum. These cases were excluded from the analyses. The same logic is 

used in excluding cases in the upward departure analyses of the statutory maximum and 

the guideline maximum are equal. 

 An example of the output from one of these logistic regression analyses follows: 

Table C-2 gives a synopsis of the information obtained from these analyses: 
B-33 

Down - Court 

Overall - 2005 

The LOGISTIC Procedure 

 Model Information 

 Data Set 

WORK.DEPARTBooker

 Response Variable downcourt 

 Number of Response Levels 2 

 Number of Observations 55952 

 Model binary logit 

 Optimization Technique Fisher's 

scoring 

 Response Profile 

 Ordered Total 

 Value downcourt Frequency 

 1 1 7711 

 2 0 48241 

 Probability modeled is downcourt=1. 

NOTE: 168 observations were deleted due to missing values for the 

response or explanatory variables. 

 Model Convergence Status 

 Convergence criterion (GCONV=1E-8) 

satisfied. 

 Model Fit Statistics 

 Intercept 

 Intercept and 

 Criterion Only Covariates 

 AIC 44872.857 43891.721 

 SC 44881.789 44115.027 

 -2 Log L 44870.857 43841.721 

 Down - Court 

 Overall - 2005 

 The LOGISTIC Procedure 

 Testing Global Null Hypothesis: BETA=0 

 Test Chi-Square DF Pr > 

ChiSq 
B-34 

 Likelihood Ratio 1029.1364 24 

<.0001 

 Score 1099.2309 24 

<.0001 

 Wald 1040.6394 24 

<.0001 

 Analysis of Maximum Likelihood Estimates 

 Standard Wald 

 Parameter DF Estimate Error Chi-Square 

Pr > ChiSq 

 Intercept 1 -1.6999 0.0761 498.8788 

<.0001 

 glmin 1 0.00296 0.000252 137.6426 

<.0001 

 violent 1 0.1473 0.0710 4.3039 

0.0380 

 sexual 1 0.2250 0.0968 5.4046 

0.0201 

 drugtraff 1 0.0517 0.0723 0.5115 

0.4745 

 immigration 1 -0.0497 0.0753 0.4361 

0.5090 

 drug 1 -0.9181 0.1965 21.8383 

<.0001 

 whitecoll 1 0.1337 0.0681 3.8560 

0.0496 

 sorchpt 1 -0.0283 0.00291 94.9416 

<.0001 

 is924c 1 -0.2359 0.0738 10.2089 

0.0014 

 weapsoc 1 -0.1413 0.0541 6.8298 

0.0090 

 valve 1 -0.0438 0.0487 0.8100 

0.3681 

 accap 1 0.1456 0.1407 1.0707 

0.3008 

 caroffap 1 0.3689 0.0674 29.9799 

<.0001 

 mandmin 1 -0.2369 0.0446 28.1849 

<.0001 

 newcnvtn 1 0.5682 0.0479 140.6541 

<.0001 

 mitigate 1 0.1387 0.0464 8.9536 

0.0028 

 aggravate 1 -0.2825 0.0594 22.5972 

<.0001 

 black 1 -0.1289 0.0336 14.7441 

0.0001 

 hisp 1 -0.2564 0.0397 41.7453 

<.0001 

 other 1 -0.0856 0.0586 2.1335 

0.1441 

 agedummy 1 0.0466 0.0327 2.0255 

0.1547 
B-35 

 educ 1 0.1581 0.0313 25.5151 

<.0001 

 male 1 -0.1655 0.0362 20.8655 

<.0001 

 newcit 1 -0.1116 0.0401 7.7518 

0.0054 

 Odds Ratio Estimates 

 Point 95% Wald 

 Effect Estimate Confidence 

Limits 

 glmin 1.003 1.002 

1.003 

 violent 1.159 1.008 

1.332 

 sexual 1.252 1.036 

1.514 

 drugtraff 1.053 0.914 

1.213 

 immigration 0.951 0.821 

1.103 

 drug 0.399 0.272 

0.587 

 whitecoll 1.143 1.000 

1.306 

 sorchpt 0.972 0.967 

0.978 

 is924c 0.790 0.683 

0.913 

 weapsoc 0.868 0.781 

0.965 

 valve 0.957 0.870 

1.053 

 accap 1.157 0.878 

1.524 

 caroffap 1.446 1.267 

1.650 

 mandmin 0.789 0.723 

0.861 

 newcnvtn 1.765 1.607 

1.939 

 mitigate 1.149 1.049 

1.258 

 aggravate 0.754 0.671 

0.847 

 black 0.879 0.823 

0.939 

 hisp 0.774 0.716 

0.836 

 other 0.918 0.818 

1.030 

 agedummy 1.048 0.983 

1.117 
B-36 

 educ 1.171 1.102 

1.245 

 male 0.847 0.789 

0.910 

 newcit 0.894 0.827 

0.968 

 Association of Predicted Probabilities and Observed 

Responses 

 Percent Concordant 60.3 Somers' D 

0.220 

 Percent Discordant 38.3 Gamma 

0.223 

 Percent Tied 1.4 Tau-a 

0.052 

 Pairs 371986351 c 

0.610 
B-37 

Table B-2

DEPARTURE DECISION 

Post-Booker

Variances and Departures Grouped Separated - Court 

Court Government §5K1.1 Upward Variance Departure 

Variable ODDS RATIO ODDS RATIO ODDS RATIO ODDS RATIO ODDS RATIO ODDS RATIO 

Offense Type (reference category = Other offenses)

Violent NS -1.431 -1.645 1.618 NS NS 

Sexual NS NS -9.434 5.596 NS NS 

Drug Trafficking NS NS NS NS NS NS 

Other Drug -2.506 -10.752 -2.398 2.462 -2.024 -5.917 

Immigration NS 3.106 -3.597 NS NS NS 

White Collar NS -1.656 NS NS NS NS 

Role in the offense (No role in the offense)

Mitigating role 1.149 1.619 1.452 -3.731 NS 1.253 

Aggravating role -1.326 -1.389 1.202 NS -1.244 -1.553 

Case Characteristics

Guideline Minimum 1.003 1.005 1.007 -1.006 1.003 NS 

Safety valve NS 1.793 -1.143 -2.012 NS NS 

Mandatory Minimum applied -1.267 -3.236 1.893 NS NS -1.595 

Trial (Plea) 1.765 -8.621 -83.333 2.860 1.797 1.378 

18 U.S.C. § 924(c) conviction -1.266 NS -1.658 2.355 -1.272 NS 

Weapon SOC -1.152 -1.435 -1.160 2.021 NS NS 

Criminal History

Criminal History Points -1.029 1.021 -1.038 1.073 -1.037 NS 

Career Offender applied 1.446 NS -1.406 NS 1.273 1.853 

Armed Career Criminal NS NS NS NS NS NS 

Race of offender (Reference category = White offender)

Black -1.138 -1.595 -1.294 NS -1.110 NS 

Hispanic -1.292 1.802 -1.890 NS -1.284 -1.250 

Other NS NS NS 1.430 NS NS 

Other Demographic Characteristics

Over 25 years of age NS -1.195 1.131 NS NS NS 

College attendance 1.171 -1.206 1.255 NS 1.217 NS 

Male (Female) -1.181 NS -1.305 NS NS -1.437 

Non-citizen (U.S. Citizen) -1.118 1.761 -1.451 NS -1.166 NS 
B-38 

Table B-2 (cont.) 

DEPARTURE DECISION 

Post-PROTECT Act

Court Government 5K1.1 Upward 

Variable ODDS RATIO ODDS RATIO ODDS RATIO ODDS RATIO 

Offense Type (reference category = Other offenses)

Violent NS NS -1.613 NS 

Sexual NS NS -7.752 2.585 

Drug Trafficking NS 1.612 1.176 -4.504 

Other Drug -3.379 -5.848 -2.778 5.072 

Immigration NS 5.864 -3.096 -3.058 

White Collar NS NS -1.211 NS 

Role in the offense (No role in the offense)

Mitigating role 1.815 1.738 NS NS 

Aggravating role -1.418 NS NS NS 

Case Characteristics

Guideline Minimum 1.002 1.005 1.007 NS 

 Safety valve -1.292 1.787 NS -2.024 

Mandatory Minimum applied NS -3.125 1.612 NS 

Trial (Plea) 1.209 -14.084 -47.619 2.406 

18 U.S.C. §924(c) conviction -1.350 NS -1.631 2.725 

Weapon SOC -1.337 -1.426 NS 1.545 

Criminal History

Criminal History Points NS NS -1.043 1.037 

Career Offender applied NS -1.767 -1.245 NS 

Armed Career Criminal NS 3.957 NS NS 

Race of offender (Reference category = White offender)

Black -1.300 -2.150 -1.353 NS 

Hispanic -1.161 1.903 -1.730 NS 

Other NS NS -1.179 1.622 

Other Demographic Characteristics

Over 25 years of age 1.110 NS 1.127 NS 

College attendance 1.188 -1.203 1.265 NS 

Male (Female) -1.357 1.250 -1.346 NS 

Non-citizen (U.S. Citizen) NS 1.181 -1.637 1.424 
B-39 

 Finally, the question of whether the decision to imprison has been affected by the 

Booker decision. The same variables and techniques that were used in the departure 

decision were used. The dependent variable for this case was the variable that represents 

whether the offender went to prison or not (PRISDUM). Also, a variable was added that 

controlled for the zone the offender’s sentencing range fell within. The guideline manual 

gives instructions as to the types of sentences and alternatives that are available to the 

court depending on the zone the offender falls within (see §5C1.1). For example, 

offenders in Zone D are not to receive alternative sentences or probation without a 

downward departure. This may affect the decision to imprison and thus was controlled 

for. 
APPENDIX C 
C-1 

Appendix C 

SUMMARY OF THE PUBLIC HEARING TESTIMONY 

The witnesses at the Commission’s 2005 public hearing from the Judiciary 

included the Honorable Thomas F. Hogan, the Chief Judge of the United States District 

Court for the District of Columbia and a member of the United States Judicial Conference 

Executive Committee; the Honorable Lawrence Piersol, Chief Judge of the District of 

South Dakota and President of the Federal Judges Association; the Honorable Paul G. 

Cassell, United States District Judge for the District of Utah; the Honorable Lynn S. 

Adelman, United States District Judge for the Eastern District of Wisconsin; and the 

Honorable Richard P. Kopf, United States District Judge for the District of Nebraska. 

The representatives of the advocacy groups included Mary Price, General Counsel 

for Families against Mandatory Minimums, and Collene Thompson Campbell from 

Memory of Victims Everywhere. Professors Paul Rosenzweig and Douglas Berman 

presented the academic viewpoint. The next panel included participants from groups 

studying the impact of Booker on the federal sentencing system: Bruce Fein, Esq., Bruce 

Fein & Associates Professor Steven Saltzburg, a representative of the American Bar 

Association, and Daniel Collins, a former Department of Justice attorney. Jon Sands, the 

Federal Public Defender for the District of Arizona and chair of the Federal Defender 

Sentencing Guidelines Committee, Carmen Hernandez, second vice-president for the 

National Association of Criminal Defense Lawyers, and Amy Baron-Evans, co-chair of 

the Commission’s Practitioners Advisory Group, testified for the defense bar. Robert 

McCampbell, the United States Attorney for the Western District of Oklahoma and chair 

of the Attorney General Advisory Subcommittee on Sentencing presented the view from 

law enforcement. The witnesses testified about the topics listed in the headings below. 

1. What changes, if any, to the federal statutes, federal sentencing guidelines, or 

the Federal Rules of Criminal Procedure are needed to clarify sentencing 

procedures and standards in the wake of the Booker decision? 

Almost all of the witnesses who addressed this question in their testimony 

concurred that there was no compelling need for any legislative changes, at least in the 

short term, in the wake of Booker. “[T]here is no need to rush in to fix federal 

sentencing. While the current advisory guideline system is not ideal, it’s eminently 

workable in this interim period. As you undertake the job of recommending to Congress 

what sentencing ought to look like, you can do so secure in the competence of the courts 

to impose and to review sentences.”379

One witness opined that “the advisory guidelines system created by the Supreme 

Court is a fully functioning system. By this I mean that the Court’s conversion of a 

 

379 USSC February 2005 Public Hearing (Testimony of Mary Price, General Counsel, Families Against 

Mandatory Minimums) at 70, http://www.ussc.gov/hearings/02_15_05/Transcript_15th.pdf. 
C-2 

mandatory sentencing guidelines system into an advisory one does not somehow render 

the new system incomplete.”380 

Even though the decision, and its predecessor in Blakely

leave many important questions unanswered – not the least of 

which is how an appellate standard of “reasonableness” is to be 

interpreted and enforced – the Court’s advisory-guidelines remedy 

is ready to wear, even though some ongoing alterations will be 

necessary to make it fit comfortable. Moreover, Congress’ 

potential objection to the content of the system or the manner in 

which it was created does not mean that the system itself is nonoperational. Early calls from some quarters of Capitol Hill and 

elsewhere in Washington for an immediate legislative response 

that would reinstate a mandatory guideline system appear to be 

unwarranted by practical need... 

Rash action could be unfortunate and unnecessary and I 

join in the many voices that have urged Congress to take time to 

study the system that the Court has created in Booker. The best 

way to do this, of course, is to allow the United States Sentencing 

Commission to continue its historical mandate of study and 

assessment, already embraced in the post-Booker era, to determine 

how the federal courts are applying the new rule.381 

The representatives of the defense bar offered no proposed legislative changes to clarify 

sentencing procedures and standards.382 The American Bar Association suggested no 

proposed changes.383 Members of the judiciary likewise concurred that the system 

created by the Booker decision could work without any legislative intervention.384

 

380 USSC February 2005 Public Hearing (Written Testimony of Daniel F. Wilhelm, Director, State 

Sentencing And Corrections Program, Vera Institute of Justice) at 2, 

http://www.ussc.gov/hearings/02_15_05/wilhelm_testimony.pdf. 381 Id. 382 USSC February 2005 Public Hearing (Written Testimony of Jon Sands, Chair, Federal Defender 

Sentencing Guidelines Committee) at 2, http://www.ussc.gov/hearings/02_15_05/Sands_testimony.pdf; 

(Written Testimony of Amy Baron-Evans, Co-Chair, Practitioners’ Advisory Group) at 2, 

http://www.ussc.gov/hearings/02_15_05/Baron-Evans_testimony.pdf; (Testimony of Carmen Hernandez, 

Second Vice-President, National Association of Criminal Defense Lawyers, at 105) 

http://www.ussc.gov/hearings/02_15_05/Transcript_16th.pdf. 383 USSC February 2005 Public Hearing (Written Testimony of Stephen A. Saltzburg) at 1, 

http://www.ussc.gov/hearings/02_15_05/Saltzburg_testimony.pdf ;(Testimony of Stephen A. Saltzburg) at 

58, http://www.ussc.gov/hearings/02_15_05/Transcript_15th.pdf. (“I don’t think it’s necessary for 

Congress to step in.”). 

384 See USSC February 2005 Public Hearing (Testimony of the Honorable Lawrence Piersol, Chief Judge 

of the District of South Dakota) at 23, http://www.ussc.gov/hearings/02_15_05/Transcript_15th.pdf (“I 

don’t believe any statutory or guideline changes are necessary at this time.”); (Written Testimony of the 

Honorable Lynn S. Adelman, United States District Judge, Eastern District of Wisconsin) at 10, 

http://www.ussc.gov/hearings/02_15_05/Adelman_testimony.pdf. 
C-3 

 One witness, however, offered a proposal for legislative change recommending 

that “Congress should enact legislation declaring specific and general deterrence as the 

primary objectives in sentencing, and rehabilitation and retribution of secondary or 

tertiary concern.”385 The proposed legislation should include a provision that “the 

Federal Sentencing Guidelines should be considered as informative in determining what 

sentence would best achieve the deterrence goal.”386 The law would permit the court to 

substitute the deterrence objective with the rehabilitation or retribution objective, in the 

exceptional case.387 

 Several witnesses offered proposals for guidelines changes that the Commission 

could make in the wake of Booker.

388 Some related to procedural matters. For example, 

one witness suggested that the Commission should devise terminology for describing 

sentences that fall outside of the guideline (e.g. variance). Then, the Commission should 

require courts as a procedural matter to first look to departures, and only if the departure 

methodology does not produce an appropriate sentence, consider variances using the 

3553(a) factors.389

 Several witnesses agreed that some procedural reforms relating to notice of 

sentencing issues might be in order.390 “I think this Commission should make procedures 

... a key consideration because among the variation we may see in the wake of Booker

may actually turn on different applications of sentencing procedure rather than different 

substantive judgments.”391 At the very minimum, the Commission should clarify that the 

prior notice requirements for going outside the range, either through a departure or a 

variance, are still in effect. “Courts should give prior notice to the parties that such a 

course is being contemplated.” The defense bar also expressed concerns that defendants 

do not receive sufficient notice prior to entering into plea agreements regarding the 

applicable sentencing enhancements.392 “[A]mong the procedural focus points going 

forward, I think, [should be] concerns about fair notice.”393 “The Commission should 

closely examine persistent complains [sic] that the guidelines sentencing process fails to 

 

385 USSC February 2005 Public Hearing (Written Testimony of Bruce Fein) at 2, 

http://www.ussc.gov/hearings/02_15_05/Fein-testimony.pdf. 

386 Id. 387 Id. at 3. 388 USSC February 2005 Public Hearing (Testimony of Douglas A. Berman) at 108-10, 

http://www.ussc.gov/hearings/02_15_05/Transcript_15th.pdf; (Written Testimony of Daniel P. Collins) at 

8, http://www.ussc.gov/hearings/02_15_05/Collins_Testimony.pdf ; (Testimony of Jon Sands, Chair, 

Federal Defender Sentencing Guidelines Committee) at 116-17, 

http://www.ussc.gov/hearings/02_15_05/Transcript_16th.pdf; (Written Testimony of the Honorable Paul 

G. Cassell, United States District Judge, District of Utah) at 37-40, 

http://www.ussc.gov/hearings/02_15_05/cassell_testimony.pdf. 

389 Cassell, supra note 385 at 37-40. 

390 Berman, supra note 385 at 108-09; Collins, supra note 385 at 8; Sands, supra note 379 at 116-17. 391 Berman, supra note 385 at 108. 

392 Sands , supra note 379 at 66; Berman, supra note 385at 108-09. 

393 Berman, supra note 385 at 108-09. 
C-4 

provide defendants fair notice and lacks transparency concerning the facts and factors 

which can impact a defendant’s sentence.”394

 One procedural matter about which the witnesses offered conflicting opinions was 

the applicable burden of proof at sentencing. “I think the Commission should clarify that 

a preponderance of the evidence standard is the appropriate standard for sentences. That 

was the Commission’s view before, and there’s no reason to change now that the 

guidelines are purely advisory...”395 Another suggestion involved using a continuum for 

the standard of proof at sentencing. A preponderance standard should apply when the 

adjustments are within a few levels; a clear and convincing standard should apply when 

the adjustments are four levels or more. It was also suggested that the beyond a 

reasonable doubt standard ought to apply when there is a cross-reference to a different 

offense.396 Yet another witness argued that there is “significant merit in the contention 

that the Constitution’s Due Process Clause should be understood to require that facts 

which can lead to enhanced sentence be established beyond a reasonable doubt.”397

A number of other suggestions involved substantive changes to the guidelines. 

Those included re-emphasizing that certain factors are forbidden considerations and 

listing cooperation with the federal government as a forbidden factor for varying or 

departing downward, absent a government motion.398 One judge proposed that the 

Commission should provide greater explanation for its policy statements on offender 

characteristics and departures, reasoning that this would help the judiciary understand 

why a particular factor should be given more or less weight in the advisory guidelines 

scheme.399 The same judge suggested that the Commission change all of its policy 

statements to guidelines.400 He expressed the belief that these changes would not violate 

Booker in any way and were important because “judges are going to pay considerable 

attention to what the Commission has to say over the next year or so.”401 

Another witness suggested that the Commission should issue a policy statement 

relating to reasonableness, providing some guidance to help shape the reasonableness 

inquiry. The witness believed that it would be useful for the Commission to do so, even if 

the statement is not binding on the courts, because the Commission is “still charged by 

statute as the entity that is to set federal sentencing policy under the implementation of 

the Sentencing Reform Act.” 402 The policy statement could include a directive that a 

sentence within the range is conclusively deemed to be reasonable.403 “I think that the 

 

394 USSC February 2005 Public Hearing (Written Testimony of Douglas A. Berman) at 8, 

http://www.ussc.gov/hearings/02_15_05/Berman_testimony%20(2-15).pdf. 

395 USSC February 2005 Public Hearing (Testimony of the Honorable Paul G. Cassell, United States 

District Judge, District of Utah) at 35. 

396 Sands, supra note 379 at 117-18. 

397 Berman, supra note 385 at 8. 

398 Cassell, supra note 383 at 28; Saltzburg, supra note 380 at 2. 

399 Cassell, supra note 383 at 31-33. 400 Id. at 36-37. 401 Cassell, supra note 383 at 63. 

402 Collins, supra note 385 at 6-7. 403 USSC February 2005 Public Hearing (Testimony of Daniel P. Collins) at 64, 

http://www.ussc.gov/hearings/02_15_05/Transcript_16th.pdf. 
C-5 

creation of a safe harbor that a sentence within the range is reasonable without more, is 

not in any sense a requirement to stay in the safe harbor, because sentences outside that 

safe harbor will also be reasonable, and therefore, I don’t think it backs into the Booker 

problem in the same way that it would if the Commission tried to establish firm lines 

beyond which courts could not go.”404 The Commission could also consider requiring a 

specific articulation of grounds for going outside of the guidelines range, either in a 

departure or in a variance. That requirement would be consonant with 18 U.S.C. § 3553, 

which, in its existing form, still requires an explicit articulation for sentences that are 

outside the range. The requirement would also allow appellate courts to vacate sentences 

outside the range for which adequate explanation has not been given.405

 Another member of the judiciary suggested that the Commission should examine 

post-Booker sentences to ascertain whether there are situations where the courts 

consistently decide to vary because the guidelines do not really work. Such guidelines 

would be ripe for Commission attention.406 Finally, the defense bar suggested that the 

Commission reexamine relevant conduct, urge early discovery of facts through policy 

statements, and change or alter the presentence report. Several of these suggestions also 

included possible changes to the Federal Rules of Criminal Procedure. Although the 

Commission has no jurisdiction over rules changes, a request was made that it 

recommend the proposed changes to the Federal Rules Advisory Committee.407 

2. To what extent are courts required to “consider” or “take into account” the 

federal sentencing guidelines in imposing a sentence? Should this be clarified 

through legislation and, if so, how? 

a. Weight to be given the guidelines 

The testimony at the public hearing revealed two schools of thought regarding the 

extent to which courts must take the guidelines into account in imposing sentence. The 

first school of thought accords substantial weight to the guidelines.408 This viewpoint 

was first espoused by Judge Cassell in United States v. Wilson.409 Proponents of this 

 

404 Id. It should be noted that other witnesses thought that any attempt to define a sentence within the range 

as presumptively reasonable would violate Booker. See Sands, supra note 379 at 3; 

Baron-Evans, supra note 377 at 3. As discussed in Chapter 2, infra, Commission action in this area is not 

required because the circuit courts are addressing and resolving this issue. 405 Collins, supra note 379 at 64. 406 USSC February 2005 Public Hearing (Testimony of the Honorable Lynn S. Adelman, United States 

District Judge, Eastern District of Wisconsin) at 49, 

http://www.ussc.gov/hearings/02_15_05/Transcript_15th.pdf. 407 Baron-Evans, supra note 377 at 4-5. 408 See generally Cassell, supra note 383; (Prepared Testimony of the Honorable Richard G. Kopf, United 

States District Judge, District of Nebraska), http://www.ussc.gov/hearings/02_15_05/Kopf_testimony.pdf; 

(Written Testimony of Paul Rosenzweig, Senior Legal Research Fellow, The Heritage Foundation), 

http://www.ussc.gov/hearings/02_15_05/Rosenzweig-testimony.PDF; (Written Testimony of Robert 

McCampbell, United States Attorney for the Western District of Oklahoma and Chair of the Attorney 

General Advisory Subcommittee on Sentencing), http://www.ussc.gov/hearings/02_15_05/mccampbelltestimony.pdf. 

409 350 F.Supp.2d 910 (D. Utah 2005); see also U.S. v. Wanning, 354 F.Supp.2d 1056 (D. Neb. 2005).
C-6 

approach reason that even as modified by Booker, the SRA continues to direct that “[t]he 

court shall impose a sentence sufficient, but not greater than necessary, to comply with 

the purposes set forth ”410 in the SRA. Those purposes are: 

(A) to reflect the seriousness of the offense, to promote respect for 

the law, and to provide just punishment for the offense; 

(B) to afford adequate deterrence to criminal conduct; 

(C) to protect the public from further crimes of the defendant; and 

(D) to provide the defendant with needed educational or vocational 

training, medical care, or other correctional treatment in the 

most effective manner.411 

As stated in United States v. Wanning,

412 “[t]he Guidelines and their ranges were 

explicitly crafted by the Sentencing Commission at the direction of Congress to 

implement the statutory purposes of sentencing.” Inherent in the process established 

for guideline promulgation413 is the harmonization of all of the sentencing goals in a 

way satisfactory to Congress.414 The continuing consultation between Congress and the 

Commission suggests that great weight should be accorded to the guidelines. More 

simply stated, this means: 

Congress' creation of the Commission and subsequent 

approval of the Commission's Guidelines provide strong 

reason for believing that Guidelines sentences satisfy the 

congressionally-mandated purposes of punishment. It 

would be startling to discover that while Congress had 

created an expert agency, approved the agency's members, 

directed the agency to promulgate Guidelines, allowed 

those Guidelines to go into effect, and adjusted those 

Guidelines over a period of fifteen years, that the resulting 

Guidelines did not well serve the underlying congressional 

purposes. The more likely conclusion is that the Guidelines 

reflect precisely what Congress believes is the punishment 

that will achieve its purposes in passing criminal statutes.415 

“Particularly when it comes to predictive judgments, federal courts as a rule give 

Congress and the agencies it creates, substantial deference. Under Booker or otherwise, 

there is no reason to withhold that customary respect from the advisory Guidelines.”416 

Further, “judges lack the ability to construct an entirely new unified theory that 

harmonizes in a rational way the sentencing goals articulated by Congress” and 

 

410 18 U.S.C. § 3553(a) (emphasis added). 411 Id. 412 Wanning, 354 F.Supp.2d at 1060. 413 See 28 U.S.C. § 994. 414 Kopf, supra note 405 at 1. 415 Wilson, 350 F.Supp.2d at 915. See also Cassell, supra note 385 at 4. 416 Kopf, supra note 403 at 1 
C-7 

“Congress is the only body that has constitutional legitimacy to state and then implement 

(through the Commission it created) sentencing goals.”417 

 The opposing viewpoint was offered by Judge Adelman in United States v. 

Ranum.418 “Based on the statutory scheme that remains after Booker’s excision of 

3553(b), I think the guidelines should be given the same weight as the other factors set 

forth in 3553(a).”419 Section 3553 cites seven factors, and says that the court shall 

consider these factors. Included among the factors are the guideline range and the 

Commission’s policy statements. There is, however, nothing in that statute, as modified 

by Booker, that says any one factor as a general principle is entitled to more weight than 

others.420 

The proponents of this line of thinking dispute the premise that the guidelines take 

into account all of the factors in 18 U.S.C. § 3553(a) factors. They reason that when the 

Booker Court directed sentencing courts to consider the guidelines, but allowed them to 

“tailor the sentence in light of other statutory concerns,” the Court recognized that the 

guidelines do not take into consideration all of the 3553(a) factors.421 Otherwise, the 

Court would not have used this language.422 In fact, the guidelines advise courts not to 

consider all of the 3553(a) factors. 

For example, 3553(a) directs courts to consider “the history 

and characteristics of a defendant.” Now, how you can 

square that with statements in the guidelines that you’re not 

allowed to look at history, or age, or education, or mental 

condition, or drug or alcohol dependence, or employment, 

or family ties or responsibilities, or civic and military ties? 

It seems to me that no matter how you kind of try to fudge 

that, 3553(a) says something different.423

Moreover, section “3553(a) contains no suggestion that any factor be accorded more 

weight than any other and states that ‘in determining the particular sentence to be 

imposed,’ courts ‘shall consider’ the factors listed in the statute.”424 The use of the word 

“shall” prohibits the courts from turning the responsibility to consider those factors over 

to some other entity. 

 

417 Id. 418 353 F.Supp.2d 984 (E.D.Wis. 2005). 

419 Adelman, supra note 403 at 42-43. 420 Id. 421 Id. at 43, citing Booker, 543 U.S. at 245-46. 

422 Adelman, supra note 403 at 43. See also Hernandez, supra note 379 at 106, (“Indeed, with all due 

respect to Judge Cassell, who has once again, I believe, served a very necessary and important function by 

explaining his views and providing a jumping-off point for discussion, giving strong weight to the 

guidelines is not appropriate.”). 423 Adelman, supra note 403 at 44. 424 Id. at 45, citing 18 U.S.C. § 3553 (a). 
C-8 

Other parts of 3553(a) reinforce the conclusion that the 

sentencing judge, not any other person or entity, including 

this Commission, is responsible for weighing the statutory 

factors. Under the statute, it is the judge who has to 

consider the nature and circumstances of the offense. It’s 

the judge who has to consider the history and 

characteristics of the defendant. It’s the judge who has to 

determine the particular sentence to be imposed and to 

impose a sentence sufficient, but not greater than necessary, 

to comply with the purposes of sentencing.425

 Thus, the proponents of this view of the weight to be accorded to the guidelines in 

the advisory guideline system assert that “whether or not th[e] Commission considered 

certain factors in crafting the guidelines, to comply with Booker and with 3553(a), the 

judge has to independently consider them.”426 Similarly, whether or not Congress 

incorporated the purposes of sentencing into the guidelines, the clear statutory command 

of section 3553(a) is that the court has to consider all those factors.427 Section “3553(a) 

creates a process by which individual judges sentence individual defendants ... The 

Sentencing Commission can do many, many good things, but it cannot perform that 

function. This is so because the Commission has no knowledge of the individual being 

sentenced, or of the particulars of the offense that he committed.”428 

b. Legislative clarification of weight to be given the sentencing guidelines 

The several witnesses who addressed this question asserted that “congressional 

enactment [regarding the weight to be given guidelines] could be seen as interfering with 

the voluntary nature of the guidelines and of reinstating a mandatory system that is 

constitutionally suspect.”429 Moreover, the courts of appeals will soon have resolved that 

issue as a matter of statutory construction on a de novo standard of review.430 

 

425 Id. at 45-46. 426 Id. at 46. 427 Id. 428 Id. at 46-47. 

429 Saltzburg, supra note 380 at 3, Hernandez, supra note 379 at 106; Sands, supra note 379 at 2 (“[A]any 

attempt to impose legislative requirements as to the weight to be accorded the Guidelines in relation to the 

goals and other factors set forth in section 3553(a) would run the risk of being interpreted as mandatory and 

thus unconstitutional.”); Baron-Evans, supra note 379 at 2 (“There is no need to legislatively clarify the 

extent to which the guideline range must be considered or taken into account, and such legislation would 

run a serious risk of unconstitutionality.”). 

430 Hernandez, supra note 379 at 106. 
C-9 

3. What type of analysis should courts use for imposing sentences outside of the 

guideline sentencing range? 

Testimony provided at the hearing in response to this question was consistent with 

testimony given about the weight to be accorded to the sentencing guidelines. Advocates 

of according substantial weight suggested using the departure methodology first, and then 

considering whether to vary from the sentence in light of the congressionally–prescribed 

purposes of sentencing.431

Proponents of the theory that all of the section 3553(a) factors, including the 

sentencing guidelines, receive equal weight suggested that the courts need not cite factors 

that take the case outside the heartland but only must explain why the sentence imposed 

was necessary and reasonable in light of all the relevant factors. This analysis would be 

similar to that historically performed in revocation of probation or supervised release 

cases.432 “A sentence outside the range can occur either because the standards for a 

departure set forth in the guideline manual are met, or because the sentence resulting 

from application of the guideline manual produces a sentence that is greater than 

necessary or insufficient to achieve the purposes of sentencing for a reason rooted in § 

3553 (a) and the facts of the case.”433 “We expect that in most cases, the advisory 

Guidelines sentence will be sufficient but not greater than necessary to achieve the 

statutory purposes of sentencing.”434 

4. How will review by appellate courts for “unreasonableness” work in 

practice? Should a sentence within the guideline sentencing range be 

considered “presumptively reasonable?” How should sentences outside of the 

guideline range be reviewed, and should appellate review vary depending on 

whether the sentence outside of the guideline sentencing range was based on 

a departure basis specifically identified in the Guidelines Manual or pursuant 

to Booker? 

 At least one witness foresaw no significant challenge to the use of a 

reasonableness standard of review. “The courts deal regularly with applying the concept 

of reasonableness and need no legislation or regulation to perform that task.”435 

“Reasonableness review should be the standard to be applied to each sentence, no matter 

whether it is an advisory guidelines sentence, a guidelines departure, or a variance from 

the advisory guidelines. A reasonableness review would, for example, find a sentence 

based upon a sentencing factor which Congress had indicated should not be a sentencing 

factor, such as race or socioeconomic status, to be an unreasonable sentence.”436

 

431 Cassell, supra note 385 at 20, Saltzburg, supra note 380 at 3. 432 Adelman, supra note 381 at 6-8. 433 Baron-Evans, supra note 379 at 3. 434 Id. at 4. 435 USSC February 2005 Public Hearing (Written Testimony of the Honorable Lawrence Piersol, Chief 

Judge of the District of South Dakota) at 5, http://www.ussc.gov/hearings/02_15_05/Piersol_testimony.pdf; 

Adelman, supra note 381 at 8-9. 436 Piersol, supra note 432 at 5. 
C-10 

 Others suggested that the body of law relating to revocation sentences would 

instruct the inquiry. In those cases, sentences outside the range are not presumptively 

unreasonable. Nor does the appellate court consider whether such sentences were 

supported by policy statements adopted by the Commission.437 Rather, the question is 

whether the sentences were “reasoned and reasonable.” 438 

 Certain witnesses suggested that a guidelines sentence should not be considered 

presumptively reasonable because to do so would make the guideline impermissibly 

mandatory.439 Nevertheless they conceded that “when the data is collected, the number 

of instances in which an appellate court finds a sentence within a properly calculated 

guidelines range to be unreasonable will be few or none.”440 

 

 Others offered a different opinion about the appealability of sentences within the 

applicable guidelines range. They asserted that sentences within the guideline range are 

not only presumptively reasonable, but they are not subject to appeal. Section 3742(a) of 

title 18, United States Code, remains unchanged by the Booker decision. That section 

allows defendants to appeal sentences above the guidelines range but makes no 

provisions for appeals of a sentence within or below the guidelines range. Likewise, 18 

U.S.C. § 3742(b) allows the government to appeal a sentence below the guidelines range 

but not a sentence within or above. Congress intended to provide limited appellate 

review and this interpretation of the current state of events comports with that 

understanding.441 

5. Do the appellate review provisions of 18 U.S.C. § 3742 need to be amended in 

light of Booker and, if so, how? Might Congress, consistent with Booker,

establish standards for appellate review of sentences different from the 

“reasonableness” standard discussed by the remedial majority? Might de 

novo review of sentences outside the recommended guideline range be reestablished? 

The Commission heard different viewpoints regarding amendment of the 

appellate provisions of 18 U.S.C. § 3742. One witness suggested that “any changes to 

section 3742 to alter the standard adopted by the Booker remedial majority might run 

afoul of the Booker merits majority. A stricter standard of review for sentences outside 

the guidelines, for example, runs the risk of making the guidelines presumptive, much as 

they were before Blakely and Booker.”442 

The opposing viewpoint suggested that “[t]he ‘reasonableness’ standard of review 

embraced by Justice Breyer in his remedial opinion stands on a statutory, not a 

 

437 Adelman, supra note 381 at 9. 438 Id. at 6-9. 

439 Sands, supra note 379 at 3; Baron-Evans, supra note 379 at 3. 440 Baron-Evans supra note 379 at 6. 441 McCampbell, supra note 405 at 18-19; Rosenzweig, supra note 405 at 10, But see developing case law 

addressing this issue discussed, supra, in Chapter 2. 442 Adelman, supra note 381 at 9. 
C-11 

constitutional, plane. Thus, Congress may amend the standard by simple legislation.”443 

Professor Saltzburg was of the opinion that “Congress may adopt any standard of review 

that does not tie trial judges’ hands to such an extent that it makes an advisory system 

mandatory (without other necessary changes.)”444 Recognizing that “[a]rguments will be 

made ... that a de novo standard of review reinstates a mandatory guideline system,” he 

dismissed the argument as illogical. “Unless appellate courts declare that guideline 

sentences will be imposed in all cases, the system is not mandatory.”445 

A contrary opinion was offered that after Booker, sentences within the guidelines 

wear no greater trappings of legality than sentences without. To establish de novo review 

for only the former thus would seem contrary to that principle because the sentences 

endorsed by the guidelines would enjoy a legal premium. The advocates of this 

viewpoint suggested that Congress should consider amending the appellate review 

provisions of 18 U.S.C. § 3742 to establish an abuse of discretion standard.446 Members 

of this group further suggest that the abuse of discretion standard should pivot on the 

overarching deterrence objective of sentencing.447 Advocates of reinstating the de novo

standard argued that a rigorous and consistent appellate standard is essential to any 

guideline system because it will be an important means for the parties to obtain consistent 

sentencing.448 

One final point raised about appellate review was that Congress expressly 

intended that the review be limited, pointing out that 18 U.S.C. § 3742(a) (and its parallel 

subsection (b)) allows for appeals only in a limited number of circumstances. “Reflecting 

on the text of the statute, even after excision, I am not sure that either party may appeal a 

sentence imposed within a properly calculated range. And that seems to me a reasonable 

rule – as it will enhance the presumptively reasonable nature of the guidelines themselves 

and concomitantly provide for an incentive for district courts not to vary their sentences 

from the guidelines too readily.”449 

6. Will Booker adversely affect the ability of prosecutors to reach plea 

agreements or obtain other forms of defendant cooperation? How is USSG 

§5K1.1 (Substantial Assistance) affected? How are “fast track” programs 

and USSG §5K3.1 (Early Disposition Programs) affected? Is there any 

impact on USSG §3E1.1 (Acceptance of Responsibility), particularly with 

respect to the third offense level reduction? 

Those witnesses from the judiciary and the defense bar who offered comments 

about post-Booker plea bargaining and cooperation did not believe that Booker would 

 

443 Fein, supra note 382 at 2. 444 Saltzburg, supra note 380 at 4. 445 Id. at 4-5. 446 Fein, supra note 382 at 3; Saltzburg, supra note 380 at 4-5. 447 Fein, supra note 382 at 3. 448 McCampbell, supra note 405 at 19-20; Collins, supra note 385 at 3. 

449 Rosenzweig, supra note 405 at 9. As discussed, supra, in Chapter 2, under the Booker guidelines 

system, courts are not limiting review, nor dismissing cases sentenced within the properly calculated range 

for lack of jurisdiction. 
C-12 

alter plea bargaining practice or decrease the number of cooperators.450 “While a 

defendant might believe that his odds of obtaining a lower sentence have improved, a 

prosecutor can also more credibly threaten the prospect of a sentence above them. Thus, 

defendants will still have a strong incentive to satisfy the government that they are 

providing substantial assistance.”451 

Other witnesses, including a representative of the Department of Justice, 

expressed concerns that Booker would diminish the leverage of the prosecutor in plea 

bargaining.452 One witness stated that the decision was too recent to make confidant 

projections about the magnitude of the diminishment.453 Another witness expressed the 

belief that there will be a “reduced incentive for defendants to enter early plea agreements 

or cooperation agreements with the government, since the defendants may request and 

obtain the same benefit from the court without such an agreement.”454 He opined that 

this reduced incentive would have a “grave effect on Department’s ability to prosecute a 

wide variety of cases or to obtain timely information.”455 

Most of the witnesses thought that “fast track” and early disposition programs 

would continue to work without any problem.456 One judge recognized, however, that 

non-fast track courts may exercise their discretion to impose a lower sentence to reduce 

the disparity created by such programs.457 Likewise, the system would have no 

discernable impact on USSG §3E1.1, but courts may recognize varying “gradations of 

‘reductions’ for acceptance.458 

7. Under the principles of Booker, may Congress prohibit judges from 

considering certain factors at sentencing? What factors, if any, would be 

appropriate to prohibit from consideration? After Booker, may courts 

consider factors that are currently prohibited from consideration under the 

federal sentencing guidelines? 

 

 All the witnesses who commented on this question uniformly concurred that 

Booker on its face does not prevent Congress from prohibiting consideration of particular 

factors at sentencing.459 They agreed that Congress should prohibit certain factors, and 

under no circumstances should such factors be considered when fashioning a sentence 

 

450 Adelman, supra note 381 at 9; Sands, supra note 379 at 3-4; Baron-Evans, supra note 379 at 8. 451 Baron-Evans. supra note 377 at 8. 452 Fein, supra note 380 at 3: McCampbell, supra note 403 at 16. 453 Fein, supra note 380 at 3. 454 McCampbell, supra note 403 at 16. 455 Id. at 17. 456 Fein, supra note 380 at 5. These programs are designed to facilitate early pleas in certain categories of 

cases (usually immigration) in districts with large caseloads. The programs must be approved by the 

Attorney General. 

457 Adelman, supra note 381 at 9-10. 458 Id. at 10. 

459 See Piersol, supra note 432 at 5; Cassell, supra note 383 at 30-34; Rosenzweig, supra note 405 at 12; 

Fein, supra note 382 at 4; Saltzburg, supra note 380 at 5-6; Sands, supra note 379 at 4; Baron-Evans, supra

note 379 at 9, McCampbell, supra note 405 at 16. 
C-13 

under 18 U.S.C. § 3553(a).460 Moreover, some suggested that a variance should never be 

granted on the basis of a factor already prohibited by Congress.461 The disagreement 

between these witnesses concerns those factors that constitutionally could be prohibited 

by Congress. Some argued that only the select set of constitutional invidious factors 

could be the subject of a complete bar by Congress.462 They asserted that Congress 

cannot prohibit consideration of all offender characteristics now discouraged or declare 

that the guidelines already reflect all of the considerations in section. To do so would 

have the impact of making the guidelines mandatory and thus violative of the Sixth 

Amendment.463

Others suggested that Congress constitutionally could enact legislation barring 

factors beyond those now prohibited by statute and the guidelines. Examples offered 

included prohibiting a substantial assistance departure or prohibiting the award of the 

one-level reduction for acceptance of responsibility without a government motion.464 At 

least one witness urged Congress to adopt a system that prohibits consideration of certain 

factors improper to consider or which would create sentencing disparity based upon 

inappropriate characteristics of the defendant.465 Another opined that “[s]entencing to 

achieve deterrence is too fact-specific to warrant a statute declaring in advance that a 

particular fact shall never be considered.”466

 

 Some witnesses urged that the Commission strongly caution against the use of 

these prohibited factors because of clear congressional commands.467 Others expressed 

the hope that developing appellate court jurisprudence would establish that sentences 

based on these factors would receive less deference than others. Many agreed that 

“Booker permits federal judges to consider factors prohibited by the Federal Sentencing 

Guidelines as long as they consult the prohibition in imposing sentences.”468

8. Under what conditions, if any, have advisory sentencing guidelines proven 

effective in the states? What commendations or criticisms have been voiced 

about the operation of advisory guideline systems? 

Various witnesses suggested that advisory (voluntary) guidelines systems may 

work almost as effectively as their mandatory counterparts in achieving more uniform 

sentences.469 

 

460 Id. 461 Piersol, supra note 432 at 2. 462 Sands, supra note 379 at 4; Baron-Evans, supra note 379 at 10. Those factors are “race, sex, national 

origin, creed, religion and socio-economic status.” See 28 U.S.C. § 994 (e). 463 Baron-Evans, supra note 379 at 9. 464 Saltzburg, supra note 380 at 6. 465 McCampbell, supra note 405 at 16. 466 Fein, supra note 380 at 4. 467 Cassell, supra note 385 at 29-31; Rosenzweig, supra note 405 at 12. 468 Fein, supra note 382 at 4; see also Sands, supra note 379 at 4; Adelman, supra note 381 at 4-5. 

469 See generally (Written Statement of Kim S. Hunt, Ph. D, Executive Director, District of Columbia 

Sentencing Commission) , http://www.ussc.gov/hearings/02_15_05/Hunt_testimony.pdf; Wilhelm, supra 

note 375 at 2, http://www.ussc.gov/hearings/02_15_05/wilhelm_testimony.pdf; (Testimony of Bruce Fein) 
C-14 

[T]he corresponding voluntary guidelines in Virginia, 

Pennsylvania, and Minnesota were followed in 77.4%, 88% 

and 75% of the cases respectively. Mandatory guidelines 

in Kansas, Washington, and North Carolina commanded 

adherence in 87.6%, 90.4%, and 81% of the cases 

respectively. These comparisons suggest that voluntary 

guidelines may work almost as effectively as their 

mandatory counterparts in achieving more uniform 

sentences, although the details of each scheme are 

unique.470 

Common missions inform the states’ sentencing guidelines scheme, whether 

presumptive or voluntary, and those missions are comparable to the principles that guided 

implementation of the federal guidelines system: a desire to eliminate unwarranted 

disparities and to promote proportionality among sentences.471 

 The representatives of the state sentencing commissions reported that a large part 

of the success of advisory guideline systems stem from the judges’ belief that the 

underlying system is just.472 Because sentences are based on historical sentencing 

practices, these time-served patterns reflect the heartland of just sentences for offenses.473 

The role of judges in formulating the guidelines in some jurisdictions may also contribute 

to their success.474 

 These witnesses quantify successful systems as those with compliance rates at or 

near 80%.475 They list various reasons for commending the systems. Advisory 

guidelines are less rigid than mandatory systems. These systems allow a judge more 

room to structure a sentence to fit the varying circumstances of an individual case. They 

make it easier for the sentencing commission to adjust sentencing ranges in the future to 

account for important sentencing factors as needed and to address any unanticipated 

consequences of a major shift in sentencing practice.476

 Several factors associated with successful advisory guidelines “include 

transparency, superior information gathering and analysis, effective dialogue and clear 

 at 3, http://www.ussc.gov/hearings/02_15_05/Fein-testimony.pdf. See also Kim Hunt and Michael 

Connelly, Advisory Guidelines in the Post-Blakely Era, 17 FED. SENTENCING REP. 233 (April 2005). 470 Fein, supra note 382 at 4. 471 USSC February 2005 Public Hearing (Testimony of Daniel F. Wilhelm, Director, State Sentencing And 

Corrections Program, Vera Institute of Justice) at 13, 

http://www.ussc.gov/hearings/02_15_05/Transcript_16th.pdf. 472 Wilhelm, supra note 468 at 46; (Written Testimony of Mark H. Bergstrom, Executive Director, The 

Pennsylvania Commission on Sentencing) at 4, http://www.ussc.gov/hearings/02_15_05/bergstromtestimony.pdf. 

473 Wilhelm, supra note 468 at 46. See Bergstrom, supra note 469 at 1, 

http://www.ussc.gov/hearings/02_15_05/bergstrom-testimony.pdf. 

474 Saltzburg, supra note 380 at 6. 475 Hunt, supra note 466 at 3. 476 Id. at 1-2. 
C-15 

goals and feedback.”477 The term “transparency” apparently relates to the courts’ 

reporting requirements. “[T]he Pennsylvania system is probably the most transparent 

system in the country in which each judge’s compliance rate is reported. It stands to 

reason that judges would be more inclined to comply with voluntary guidelines if 

compliance rates are transparent and readily available, and that when they don’t comply, 

they will provide a useful reason for understanding what was unique about that case that 

led them outside the guideline range.”478 The witnesses’ experience also proved that 

some rigor in the form of procedural requirements that judges must follow helps to 

promote compliance with advisory guidelines. States that require the judges to calculate 

the guidelines report higher compliance rates than states with no procedural 

requirements.479 Those procedures may include a statutory requirement that the court 

calculate the guidelines, a commission rule requiring calculation of the guidelines, and/or 

completion of sentencing forms to justify the sentence. Compliance in states where judges 

are not subject to any procedural requirements has been poor.480 The witnesses also 

opined that “the presence of an engaged sentencing commission, with capacity to study 

and measure data nimbly as an objective and regularly recurring basis for policy 

recommendations, is essential to the ultimate substantive and political legitimacy of 

sentencing policy.”481 

 “One limitation of advisory guidelines systems to date is that despite high 

compliance rates, without appellate review there is no remedy for the outlier, a judge who 

gives a highly atypical sentence for a typical case.”482 The remaining criticisms of 

advisory guidelines came from federal practitioners, rather than from the state 

commission representatives. Thus, these criticisms were not drawn from any state court 

experience but from early observations made of the Booker advisory system. They 

suggest that disparity may increase in a voluntary system483 and argue that there is a 

culture of compliance in state systems that will not exist in the federal system because “it 

casts a wide net over far flung geographical areas, with diverse legal cultures.”484 They 

assert that courts will adopt different sentencing procedures, resulting in inconsistent 

form and substance.485 Courts will veto policy decisions made by the Commission and 

consider prohibited factors.486 Finally, an advisory system provides reduced incentives 

for early plea or cooperation.487 Members of the defense bar noted that sentences in the 

federal system appear to be increasing in length.488 

 

477 Id. at 4. 478 USSC February 2005 Public Hearing (Testimony of Kim S. Hunt, Ph. D, Executive Director, District of 

Columbia Sentencing Commission) at 9-10, http://www.ussc.gov/hearings/02_15_05/Transcript_16th.pdf. 

479 Wilhelm, supra note 377 at 4 480 Wilhelm, supra note 468 at 19. 481 Wilhelm, supra note 377 at 4; Hunt, supra note 466 at 4. 482 Hunt, supra note 466 at 4. 483 McCampbell, supra note 405 at 9. 484 Id. at 10. 485 Id. 486 Id. at 13-16. 487 Id. at 16-18; see also Fein, supra note 382 at 3. 488 Hernandez, supra note 379 at 114. 
C-16 

9. How do states with advisory guidelines ensure that their guidelines are 

adequately considered? Do the states provide for appellate review and, if so, 

what is the standard of review and how does such review work in practice? 

Are sentences within the guideline sentencing range considered 

presumptively reasonable? Does compliance with state advisory guidelines 

vary depending on the width of the guideline sentencing ranges? How, if at 

all, does the accountability of judges to the legislature, the public, or their 

peers affect compliance with state advisory guidelines? 

 As noted above, the states with advisory systems have vastly different procedural 

requirements. Nevertheless, the witnesses reported that the more rigor imposed 

procedurally, the better the compliance rate.489 Indeed, one witness opined that Booker’s 

requirement that courts consider the guidelines created the type of rigorous procedural 

step that would encourage compliance with the guidelines.490 “It may be reasonable to 

conclude that the process of considering applicable guidelines and formulating a written 

explanation for departures helps build awareness of what the guidelines require and may 

help inculcate a sense of fealty to the application of the guidelines in most 

circumstances.”491 With the exception of Pennsylvania, none of the state systems 

discussed with the Commission have an appellate review process.492 Thus, the appellate 

review established by Booker may also serve to strengthen compliance with the 

guidelines.493

 The witness from Pennsylvania cited a recent Superior Court opinion to explain 

how the Pennsylvania standard of review operated. 494 In that case, the court stated 

It is perceived by many ...that the extension of discretion to 

the sentencing court has resulted in a situation where the 

sentencing court is free to impose any sentence within the 

limits allowed by law, as long as it states its reasons for 

doing so upon the record. The corollary to this premise 

suggests that as long as the court states its reason for 

departing from the guidelines on the record, the Superior 

Court is duty-bound to affirm, regardless of whether or not 

reasons stated are viewed as reasonable or as justifying the 

departure. This is simply not so.495

 

489 Wilhelm, supra note 458 at 18-19; Hunt, supra note 466 at 10. 

490 Wilhelm, supra note 458 at 19. 

491 Id. at 18. 

492 Wilhelm, supra note 458at 19; Hunt, supra note 456 at 10; (Testimony of Mark H. Bergstrom, 

Executive Director, The Pennsylvania Commission on Sentencing) at 25-30, 

http://www.ussc.gov/hearings/02_15_05/Transcript_16th.pdf. 

493 Wilhelm, supra note 377 at 4. 

494 Bergstrom, supra note 469 at 3, citing Commonwealth. v. Walls, 846 A.2d 152, 158 (Pa. Super., 2004). 

495 Id. 
C-17 

The witness went on to describe the Pennsylvania standard of review, which appears to 

be remarkably similar to the reasonableness review created by Booker. 

 In determining whether a sentence is unreasonable, 

the appellate court shall have regard for: 

1) the nature and circumstances of the offense and 

history and characteristics of the defendant; 

2) the opportunity of the sentencing court to observe 

the defendant, including any presentence 

investigation; 

3) the findings upon which the sentence was based; 

and 

4) the guidelines promulgated by the Commission.496 

 Judges’ compliance rates are reported in Pennsylvania and the percentage rate of 

compliance is relatively high.497 This reporting procedure may be a contributing factor. 

One witness mentioned that the “[s]ome observers have posited that accountability of 

judges in Virginia to the legislature might affect compliance with state advisory 

guidelines.”498 “Still, anecdotal evidence from Virginia suggests that very few judges are 

not returned to the bench and judge-specific sentencing data is not regularly provided to 

the legislature or the public.”499 Instead, it was suggested that “the judges in Virginia 

comply with the guidelines because they believe that recommended sentences are fair, 

just and proportionate.”500 No other witness reported that either accountability to the 

legislature or the public created greater compliance. Rather, compliance was attributed to 

the judges’ satisfaction that the system was just and fair.501 

10. What recommendations, if any, do you have for changes to the federal 

sentencing system in either the short term or long term in light of Booker? 

 

During the two day hearing, the Commission heard testimony about possible 

responses to the Booker decision. One recurring theme that most participants espoused 

was a “wait and see” approach to federal sentencing reform following Booker. “[I]t is too 

early to measure accurately the impact of the decision because courts of appeals are just 

beginning to render decisions interpreting the Supreme Court case, and district courts are 

just beginning to resentence defendants.” 502 “I share the consensus view that it would be 

wise for Congress and this Commission to hold off making substantial changes to the 

 

496 Id. at 4. 

497 Hunt, supra note 475 at 9-10. 

498 Wilhelm, supra note 377 at 3. 

499 Id. 500 Id. Mr. Wilhelm offered the observation that the same could not always be said for judges in the federal 

system.

501 Wilhelm, supra note 458 at 46. 502 USSC February 2005 Public Hearing (Prepared Testimony of the Honorable Thomas F. Hogan, Chief 

Judge, District of Columbia and Member, Judicial Conference Executive Committee) at 2-3, 

http://www.ussc.gov/hearings/02_15_05/Hogan-testimony.pdf; see also Kopf, supra note 405 at 1.
C-18 

federal sentencing system until we can observe and analyze how the Supreme Court’s 

Booker remedy actually operates in lower courts.”503 “This is not a time to tinker around 

the edges of reform or rush to adopt measures designed to just meet, or worse, to avoid 

constitutional requirements. We urge you to embrace this opportunity to help Congress 

critically examine federal sentencing” 504 “Booker is a chance to test how advisory 

guidelines work, and to what extent the federal courts will rely on the Commission in 

fashioning their own sentences. The Commission should not support or propose 

legislative solutions for problems that may not exist.”505 

Among the many reasons offered in support of a slow and considered response to 

Booker was the following: 

The last point I just want to reiterate is the sort of go-slow 

attitude is not only important, ..., as a policy matter but as a 

pure litigation matter. The circuits are proving to us yet 

again how complicated life becomes when you change an 

intricate, detailed system. And I think any significant 

change – rapid, slow, whatever you want to say they are – 

are going to have enormous transition costs, years and 

years of litigation to work out. One of the things that you 

all can do effectively is start mapping out a plan for 

incremental changes, helping Congress see that maybe 

amendments are going to be a more efficient way to make 

some of the changes that are [inaudible] necessary than 

broad legislation.506 

Various organizations publicly urged Congress to let the Booker advisory system 

work for period of time. The Federal Judges Association board of directors unanimously 

adopted the following resolution: 

The board of directors of the Federal Judges Association 

has resolved that the position of the FJA should be to ask 

Congress to allow the present situation time to work, and 

only if it does not ultimately work to the satisfaction of 

Congress, should Congress then proceed, in consultation 

with the courts, academics, the Justice Department, the 

United States Sentencing Commission, and other interested 

parties, to fashion some changes.507

 

503 Berman, supra note 385 at 13. 504 USSC February 2005 Public Hearing (Written Testimony of Mary Price, General Counsel, Families 

Against Mandatory Minimums (FAMM)) at 2, 

http://www.ussc.gov/hearings/02_15_05/price_testimony.pdf. 505 Sands, supra note 379 at 4; Baron-Evans, supra note 379 at 10; Adelman, supra note 403 at 48; 

Wilhelm, supra note 458 at 15. 506 Berman, supra note 385 at 112-13. 507 Piersol, supra note 380 at 16-17. 
C-19 

Likewise, the National Association of Criminal Defense Lawyers and the American Bar 

Association adopted similar resolutions.508

 

The main three recommendations in response to Booker offered by the witnesses 

were maintaining advisory guidelines in some form, topless guidelines, and simplified 

guidelines designed for jury factfinding. 

Proponents of maintaining the advisory guideline system, either in the form 

created by the Booker decision or a form altered by either Congressional or Commission 

action, asserted the belief that Booker provides a nearly perfect system.509 A member of 

the North Carolina Sentencing Commission observed that the “new advisory system 

fashioned by Justice Breyer preserves this Commission’s dedicated 17-year odyssey 

toward the creation of just and fair sentencing reform. This new system, I believe, if 

allowed to flourish, will promote uniformity, while at the same time diminishing the 

occasional irrational results required by any mandatory guideline system.”510 Those 

advocating for federal advisory guidelines echoed the commendations made by the state 

commissioners about their advisory systems. “Advisory guidelines are helpful to judges 

and to the parties. They provide a thorough review of many but not all considerations, an 

indication of what is generally being done in other cases, and an indication of 

congressional intent.”511 “I don’t think you can find a judge who has done any significant 

amount of sentencing who does not have an instance where justice was not served by 

mandatory guidelines.”512 Still others opine that restoring federal judges to a meaningful 

role in the sentencing process is tremendously important. 

Booker enables judges to treat people being sentenced as 

they should be treated, as individuals, and to craft sentences that 

are appropriate to them. Insofar as is possible, a sentencing system 

should not force judges to impose sentences that they don’t believe 

in. It might be said that Booker constitutes a recognition of the 

irreducible need for individualized judgment and humanity in 

sentencing.513

Moreover, fairness in sentencing requires considerations of many factors, not just 

reduction of disparities.514 Booker creates the opportunity for a real dialogue between 

judges and the Commission.515 

 

508 Hernandez, supra note 379 at 105; Saltzburg supra note 378 at 55. 

509 Piersol, supra note 381 at 18; Adelman, supra note 403 at 37; Saltzburg supra note 380 at 59. 510 USSC February 2005 Public Hearing (Testimony of Lyle Yurko, North Carolina Sentencing 

Commission) at 30-31, http://www.ussc.gov/hearings/02_15_05/Transcript_16th.pdf; see also Kim H. Hunt 

and Michael Connelly, Advisory Guidelines in the Post-Blakely Era, 17 FED. SENT REP. 233, 239

(2005)(“We predict that advisory guidelines can be a success in the federal system.”). 511 Piersol, supra note 381 at 18. 512 Id. at 21-22. 513 Adelman, supra note 403 at 42. 514 Id. at 37. 515 Id. at 39. 
C-20 

The proponents of advisory guidelines offer several reason why the system will 

work effectively in federal courts. “First of all, judges have operated under the guidelines 

for a very long time, and to a considerable extent have internalized guideline thinking. 

Judges are not going to give up this way of thinking just because the guidelines are 

advisory...”516 “Secondly, Booker directs judges to consider the guidelines, and judges 

most assuredly are going to follow that. Third, the fact that sentences are reviewable for 

reasonableness, and if the history of departures is any guide... the fact that sentences are 

reviewable for reasonableness will cause judges to think carefully about the sentences 

they impose, and to explain in detail any sentence that they believe that the government 

or the defendant is going to seriously question.”517

The Commission also heard the contrary viewpoint. “There are inherent problems 

in an advisory guideline scheme, and those problems are not going to change over 

time.”518 Those problems included increased disparity, less control by the prosecutors 

over plea bargaining and substantial assistance, different procedures and policy decision 

made by the Commission being rejected. One of the victim advocates made a strong 

argument for the need to have “fair and reasonable, but realistic and tough, sentencing 

guidelines [in] place and followed.”519 She reminded them that “it would be helpful to 

this Commission’s work to recall the reasons for mandatory sentencing guidelines in the 

past. It was a judiciary that was unaccountable and out of step with the American 

people.” 520

Finally, the long-term vitality of advisory guideline depends greatly upon the 

efficacy of the reasonableness review. 

The provision for reasonableness review will either prove 

to be nothing at all, in which case we will have a de facto 

every decision is reasonable, and judges will routinely 

affirm on some abuse of discretion standard that is a review 

standard in theory and not in practice, or will actually have 

some real bite and the courts of appeals will wind up 

instituting reasonableness reviews that have some real 

structure and meaning. But if they actually have some real 

structure and meaning and become legally constraining on 

district court judges, then they will become, in effect, 

mandatory rules respecting the discretion of judges and will 

run right back into the Blakely/Booker core remedial 

problem.521

 

516 Id. 517 Id. at 40. 518 McCampbell, supra note 405 at 138. 

519 USSC February 2005 Public Hearing (Testimony of Collene (Thompson) Campbell) at 86, 

http://www.ussc.gov/hearings/02_15_05/Transcript_16th.pdf. 520 Id. 521 Rosenzweig, supra note 405 at 86,. 
C-21 

Professor Frank Bowman introduced the concept of “topless” or “soft-top” 

guidelines as an immediate, short-term response to Blakely.

522 The proposal involves 

raising the top of every guideline range to the statutory maximum, which will make the 

system compliant with Apprendi. After the decision in Booker, he has advocated more 

sweeping reform for the long term to address “structural problems” with the federal 

guideline system.523 Notwithstanding Professor Bowman’s disavowal of the topless 

guidelines proposal, others still advocate this as the best system to resolve the upheaval 

created by the Blakely and Booker decisions. “My recommendation to Congress is that it 

act to restore the system most nearly as it was before Booker with the least changes 

possible. The easiest way to do that is what has been popularly called ‘the Bowman 

fix...’”524 This would require legislative action to eliminate the 25% percent rule.525 

Establishing guideline minimums does not require jury factfinding,526 so the judges could 

continue to make the necessary factual determinations to compute the guideline offense 

level. Proponents of this solution also advocate a return to the de novo standard of 

review excised by the Supreme Court as part of its Booker remedy.527

 Opponents of this proposal include members of the judiciary, academics, the 

defense bar and even state sentencing commissioners.528 Asserting that “ the ‘Bowman 

fix’ is no fix at all,” all warn that this fix would likely be declared unconstitutional, 

resulting in continued upheaval in federal sentencing law.529 

 The witnesses discussed one other proposal with the Commission but did not offer 

any detailed description. The proposal centers around simplified guidelines, allowing for 

jury factfinding of any facts that would increase the sentence. The American Bar 

Association testified that it supported some version of this proposal, as did witnesses 

from the defense bar. Distinct variations on the plan have been proposed by academics, 

the American Bar Association and other interested groups.530 Because the specifics of 

these proposals were not developed at the hearing, the Commission heard no testimony 

about any criticisms of these plans. 

 

522 Frank O. Bowman, Train Wreck? Or Can the Federal Sentencing System Be Saved? A Plea for Rapid 

Reversal of Blakely v. Washington, 41 AM. CRIM. L. REV. 217 (2004). 523 Frank O. Bowman, The Failure of the Federal Sentencing System: A Structural Analysis, 105 

COLUMBIA L. REV. 1315 (2005). 524 Collins, supra note 383 at 62. 525 See 28 U.S.C. § 994 (b)(2). 526 See Harris, supra, discussed in Chapter 1. 527 Collins, supra note 385 at 62,. 528 Piersol, supra note 379 at 20-21; Yurko, supra note 379 at 33; Saltzburg supra note 380 at 74-75; 

(Testimony of Amy Baron-Evans, Co-Chair, Practitioners’ Advisory Group) at 99, 

http://www.ussc.gov/hearings/02_15_05/Transcript_16th.pdf. 

529 USSC February 2005 Public Hearing (Testimony of The Honorable Lawrence Piersol) at 20-21, 

http://www.ussc.gov/hearings/02_15_05/Transcript_15th.pdf; Baron-Evans, supra note 525 at 122. 530 See Frank O. Bowman, The Failure of the Federal Sentencing System: A Structural Analysis, 105 

COLUMBIA L. REV. 1315 (2005) American Bar Association, Criminal Justice Section, Report on Booker and 

Recommendation (reprinted in 17 FED. SENT. REP. 335, 2005); Constitution Project’s Sentencing Initiative, 

Principles for the Design and Reform of Sentencing Systems (reprinted in 17 FED. SENT. REP. 341 (2005).
C-22 

 The final point made by most witnesses at the hearing was the critical role played 

by the Commission in informing the debate through the data collection process. “First of 

all, you must gather accurate information of what the courts as a whole are doing in 

sentencing after Booker rather than having a few unusual results color the debate about 

what, if anything, should be done after Booker – in other words, what the outliers 

control.” 531 “There will always be outlier cases. In a system that processes 60,000 

cases, I would be concerned if there weren’t the occasional ugly case. Among the things 

to recognize, of course, is an ugly case at the district court level may not stay an ugly 

case. Appellate review oftentimes will fix that.” 532 “Importantly, the challenges for this 

Commission are not only in collecting and disseminating data, but describing effectively 

and accurately this variance, non-guidelines sentencing idea... And without effective 

coding and analysis of the amount of the variance and its nature, there will be a 

misimpression of what judges are doing out there.”533 The witnesses counseled the 

Commission to play an active role in shaping the ongoing debate about the federal 

sentencing system. 

 

531 Piersol, supra note 381 at 19. 532 Berman, supra note 385 at 111. 533 Id. at 111-12. 
APPENDIX D 
 

U.S. SENTENCING COMMISSION

SPECIAL POST-BOOKER CODING PROJECT

CASES SENTENCED ONE YEAR SINCE 

U.S. V. BOOKER

DATA EXTRACTION DATE: FEBRUARY 22, 2006

CONTENTS

 page

NATIONAL DATA

Comparison of Sentence Imposed And Position Relative to 

the Post-Booker Guideline Range . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . D-4

Most Frequently Applied Guidelines: Comparison of Sentence

Imposed And Position Relative to the Guideline Range . . . . . . . . . . . . . . . . D-5

Offenders Sentenced for Each Chapter Two Guideline . . . . . . . . . . . . . . . . . . . D-6

CIRCUIT AND DISTRICT DATA

Guideline Offenders in Each Circuit and District . . . . . . . . . . . . . . . . . . . . . . . D-8

Guideline Application Trends: National and Circuit . . . . . . . . . . . . . . . . . . . . D-10

SENTENCE LENGTHS – MOST FREQUENTLY 

APPLIED GUIDELINES

Distribution of Offenders Receiving Sentencing Options . . . . . . . . . . . . . . . . D-15

Average and Median Sentence Imposed: Fiscal Years 2000-2001 . . . . . . . . . D-16

Average and Median Sentence Imposed: Fiscal Years 2002-2003 . . . . . . . . . D-17

Average and Median Sentence Imposed: Pre-Blakely 2004 and Post-Booker . D-18

D-2
DEGREE OF DEPARTURE AND VARIANCE

Departure and Variance Rate by Each Circuit and District . . . . . . . . . . . . . . . . D-19

Substantial Assistance Departures in Each Primary Offense Category . . . . . . D-22

Govt Sponsored Downward Departures in Each Primary Offense Category . . D-23

Other Downward Departures in Each Primary Offense Category . . . . . . . . . . D-24

Otherwise Below Guideline Range in Each Primary Offense Category . . . . . . D-25

Upward Departures in Each Primary Offense Category . . . . . . . . . . . . . . . . . . D-26

Otherwise Above Guideline Range in Each Primary Offense Category . . . . . . D-27

D-3
N %

TOTAL1 65,368 100.0

WITHIN GUIDELINE RANGE 40,645 62.2

DEPARTURE ABOVE GUIDELINE RANGE 175 0.3

Upward Departure from the Guideline Range2 127 0.2

Upward Departure with Booker/18 U.S.C. § 35533 48 0.1

OTHERWISE ABOVE THE GUIDELINE RANGE 859 1.3

Above the Range with Booker/18 U.S.C. § 35534 426 0.6

All Remaining Cases Above the Guideline Range5 433 0.7

GOVERNMENT SPONSORED BELOW RANGE 15,500 23.7

§5K1.1 Substantial Assistance Departure 9,402 14.4

§5K3.1 Early Disposition Program Departure 4,366 6.7

Government-Sponsored Departure6 1,732 2.6

DEPARTURE BELOW GUIDELINE RANGE 2,101 3.2

Downward Departure from the Guideline Range2 1,456 2.2

Downward Departure with Booker/18 U.S.C. § 35533 645 1.0

OTHERWISE BELOW THE GUIDELINE RANGE 6,088 9.3

Below the Range with Booker/18 U.S.C. § 35534 3,850 5.9

All Remaining Cases Below the Guideline Range5 2,238 3.4

2

All cases with imposed sentences outside of the guideline range and citing reasons for departure limited to, and affirmatively and specifically

identified in the provisions, policy statements, or commentary of the federal Guidelines Manual.

3

All cases with imposed sentences outside of the guideline range citing reasons for departure limited to, and affirmatively and specifically

identified in the provisions, policy statements, or commentary of the federal Guidelines Manual, and additionally mentioning either U.S. v.

Booker, 18 U.S.C. § 3553, or related factors as a reason for a sentence outside of the guideline range.

D-4

NATIONAL COMPARISON OF SENTENCE IMPOSED AND 

POSITION RELATIVE TO THE GUIDELINE RANGE

SOURCE: U.S. Sentencing Commission, Special Post-Booker Coding Project, (data extraction on February 22, 2006; table prepared on

February 23, 2006). Summary numbers may not add up to their component parts due to rounding

4

All cases with imposed sentences outside of the guideline range mentioning only U.S. v. Booker, 18 U.S.C. § 3553, or related factors as a

reason for a sentence outside of the guideline range.

5

Cases with imposed sentences outside of the guideline range that do not fall into the three previous categories. Based on the information

submitted on the Statement of Reasons, these cases cannot be classified as a guideline departure, or as a sentence outside the guideline range

pursuant to Booker/18 U.S.C. § 3553. This category includes cases which cite departure reasons that are not affirmatively and specifically

identified in the provisions, policy statements, or commentary of the federal Guidelines Manual and cases which do not provide any reason for

the sentence outside of the guideline range.

6

Cases with a reason for departure indicating that the prosecution initiates, proposes, or stipulates to a sentence outside of the guideline range,

either pursuant to a plea agreement or as part of a non-plea negotiation with the defendant.

Cases Sentenced One Year Since U.S. v. Booker with Data Available to USSC on February 22, 2006

1

This table reflects the 67,564 cases sentenced one year since U.S. v. Booker (January 12, 2005 through January 11, 2006) with court

documentation cumulatively received, coded, and edited at the U.S. Sentencing Commission by February 23, 2006. Of this total, there are 2,196

cases excluded for one of two general reasons. Some excluded cases involve certain Class A misdemeanors or other offenses which do not

reference a sentencing guideline. Other excluded cases have information missing from the submitted documents that prevents the comparison of

the sentence and the guideline range. As missing documents are received, subsequent U.S. Sentencing Commission data releases will incorporate

the new information.
MOST FREQUENTLY APPLIED GUIDELINES: COMPARISON OF SENTENCE IMPOSED

AND POSITION RELATIVE TO THE GUIDELINE RANGE

Cases Sentenced One Year Since US v. Booker with Data Available to USSC on February 22, 2006

 

Four Most Frequently Applied Primary Guidelines

All

Cases

§2D1.1

Drug

Trafficking

§2L1.2

Unlawful

Entry

§2K2.1

Firearms

§2B1.1

Theft and

Fraud

N% N% N% N% N%

TOTAL1 65,368 100.0 22,496 100.0 10,205 100.0 6,423 100.0 6,737 100.0

WITHIN GUIDELINE RANGE 40,645 62.2 12,122 53.9 5,905 57.9 4,508 70.2 4,773 70.8

DEPARTURE ABOVE GUIDELINE 175 0.3 18 0.1 16 0.2 25 0.4 21 0.3

Upward Departure from the Guideline Range2 127 0.2 15 0.1 10 0.1 20 0.3 13 0.2

Upward Departure with Booker/18 USC §35533 48 0.1 3 0.0 6 0.1 5 0.1 8 0.1

OTHERWISE ABOVE THE RANGE 859 1.3 124 0.6 89 0.9 130 2.0 168 2.5

Above the Range with Booker/18 USC §35534 426 0.6 58 0.3 53 0.5 62 1.0 86 1.3

All Remaining Cases Above the Guideline Range5 433 0.7 66 0.3 36 0.4 68 1.1 82 1.2

GOVERNMENT BELOW GUIDELINE 15,500 23.7 7,356 32.7 3,228 31.6 788 12.3 813 12.1

§5K1.1 Substantial Assistance Departure 9,402 14.4 5,817 25.9 65 0.6 598 9.3 703 10.4

§5K3.1 Early Disposition Program Departure 4,366 6.7 948 4.2 2,835 27.8 36 0.6 10 0.2

Government-Sponsored Departure6 1,732 2.6 591 2.6 328 3.2 154 2.4 100 1.5

DEPARTURE BELOW GUIDELINE 2,101 3.2 697 3.1 322 3.2 262 4.1 236 3.5

Downward Departure from the Guideline Range2 1,456 2.2 478 2.1 250 2.5 169 2.6 158 2.3

Downward Departure with Booker/18USC §35533 645 1.0 219 1.0 72 0.7 93 1.5 78 1.2

OTHERWISE BELOW THE RANGE 6,088 9.3 2,179 9.7 645 6.3 710 11.1 726 10.8

Below the Range with Booker/18 USC §35534 3,850 5.9 1,450 6.5 397 3.9 462 7.2 413 6.1

All Remaining Cases Below the Guideline Range5 2,238 3.4 729 3.2 248 2.4 248 3.9 313 4.7

1

This table reflects the 67,564 cases sentenced one year since the U.S. v. Booker (January 12, 2005 through January 11, 2006), with court

documentation cumulatively received, coded, and edited at the U.S. Sentencing Commission by February 22, 2006. Of this total, there are 2,196

cases excluded for one of two general reasons. Some excluded cases involve certain Class A misdemeanors or other offenses which do not

reference a sentencing guideline. Other excluded cases have information missing from the submitted documents that prevents the comparison

of the sentence and the guideline range. As missing documents are received, subsequent U.S. Sentencing Commission data releases will

incorporate the new information.

2

All cases with imposed sentences outside of the guideline range and citing reasons for departure limited to, and affirmatively and specifically

identified in the provisions, policy statements, or commentary of the federal Guidelines Manual. 3

All cases with imposed sentences outside of the guideline range citing reasons for departure limited to, and affirmatively and specifically

identified in the provisions, policy statements, or commentary of the federal Guidelines Manual, and additionally mentioning either US v. Booker, 18 USC §3553, or related factors as a reason for a sentence outside of the guideline range. 4

All cases with imposed sentences outside of the guideline range mentioning only US v. Booker, 18 USC §3553, or related factors as a reason

for a sentence outside of the guideline range. 

5

Cases with imposed sentences outside of the guideline range that do not fall into the three previous categories. Based on the information

submitted on the Statement of Reasons, these cases cannot be classified as a guideline departure, or as a sentence outside the guideline range

pursuant to Booker/18 USC §3553. This category includes cases which cite departure reasons that are not affirmatively and specifically identified

in the provisions, policy statements, or commentary of the federal Guidelines Manual and cases which do not provide any reason for the

sentence outside of the guideline range.

6

Cases with a reason for departure indicating that the prosecution initiates, proposes, or stipulates to a sentence outside of the guideline range,

either pursuant to a plea agreement or as part of a non-plea negotiation with the defendant.

SOURCE: U.S. Sentencing Commission, Special Post-Booker Coding Project, (data extraction on February 22, 2006; table prepared on February

23, 2006). Cases with multiple guideline calculations are classified by the guideline with the highest offense level. Summary numbers may

not add up to their component parts due to rounding.

D-5
Guideline n% n% Guideline n% n%

2A1.1 151 0.2 161 0.2 2D1.7 14 0.0 16 0.0

2A1.2 34 0.1 38 0.1 2D1.8 58 0.1 98 0.1

2A1.3 20 0.0 20 0.0 2D1.9 0 0.0 0 0.0

2A1.4 32 0.1 33 0.0 2D1.10 21 0.0 22 0.0

2A1.5 18 0.0 40 0.1 2D1.11 172 0.3 191 0.3

2A2.1 54 0.1 82 0.1 2D1.12 26 0.0 40 0.1

2A2.2 340 0.5 386 0.6 2D1.13 0 0.0 0 0.0

2A2.3 33 0.1 38 0.1 2D2.1 366 0.6 453 0.7

2A2.4 131 0.2 151 0.2 2D2.2 45 0.1 53 0.1

2A3.1 145 0.2 151 0.2 2D2.3 1 0.0 1 0.0

2A3.2 134 0.2 156 0.2 2D3.1 3 0.0 3 0.0

2A3.3 6 0.0 6 0.0 2D3.2 0 0.0 0 0.0

2A3.4 30 0.0 41 0.1 2D3.3 0 0.0 0 0.0

2A4.1 55 0.1 74 0.1 2D3.4 0 0.0 0 0.0

2A4.2 1 0.0 1 0.0 2D3.5 0 0.0 0 0.0

2A5.1 0 0.0 1 0.0 2E1.1 30 0.0 100 0.1

2A5.2 11 0.0 12 0.0 2E1.2 14 0.0 78 0.1

2A5.3 0 0.0 0 0.0 2E1.3 0 0.0 27 0.0

2A6.1 149 0.2 157 0.2 2E1.4 12 0.0 18 0.0

2A6.2 6 0.0 14 0.0 2E1.5 0 0.0 0 0.0

2B1.1 6,880 11.0 7,496 11.0 2E2.1 28 0.0 35 0.1

2B1.2 0 0.0 0 0.0 2E3.1 103 0.2 123 0.2

2B1.3 5 0.0 5 0.0 2E3.2 0 0.0 0 0.0

2B1.4 10 0.0 10 0.0 2E3.3 0 0.0 0 0.0

2B1.5 14 0.0 15 0.0 2E4.1 24 0.0 31 0.0

2B2.1 65 0.1 77 0.1 2E5.1 11 0.0 15 0.0

2B2.2 0 0.0 0 0.0 2E5.2 0 0.0 0 0.0

2B2.3 3 0.0 3 0.0 2E5.3 3 0.0 9 0.0

2B3.1 1,782 2.8 1,900 2.8 2E5.4 0 0.0 0 0.0

2B3.2 48 0.1 74 0.1 2E5.5 0 0.0 0 0.0

2B3.3 13 0.0 18 0.0 2E5.6 0 0.0 0 0.0

2B4.1 57 0.1 59 0.1 2F1.1 1,162 1.9 1,230 1.8

2B5.1 518 0.8 552 0.8 2F1.2 5 0.0 6 0.0

2B5.2 0 0.0 0 0.0 2G1.1 64 0.1 111 0.2

2B5.3 131 0.2 142 0.2 2G1.2 1 0.0 1 0.0

2B5.4 0 0.0 0 0.0 2G1.3 70 0.1 75 0.1

2B6.1 14 0.0 14 0.0 2G2.1 98 0.2 116 0.2

2C1.1 217 0.3 239 0.4 2G2.2 527 0.8 549 0.8

2C1.2 24 0.0 24 0.0 2G2.3 0 0.0 0 0.0

2C1.3 11 0.0 11 0.0 2G2.4 396 0.6 438 0.6

2C1.4 2 0.0 2 0.0 2G2.5 1 0.0 1 0.0

2C1.5 0 0.0 0 0.0 2G3.1 13 0.0 18 0.0

2C1.6 0 0.0 0 0.0 2G3.2 0 0.0 0 0.0

2C1.7 33 0.1 39 0.1 2H1.1 48 0.1 54 0.1

2C1.8 2 0.0 3 0.0 2H1.2 0 0.0 0 0.0

2D1.1 22,911 36.5 24,003 35.2 2H1.3 0 0.0 0 0.0

2D1.2 333 0.5 347 0.5 2H1.4 0 0.0 0 0.0

2D1.3 0 0.0 0 0.0 2H1.5 0 0.0 0 0.0

2D1.4 0 0.0 0 0.0 2H2.1 8 0.0 8 0.0

2D1.5 22 0.0 27 0.0 2H3.1 10 0.0 13 0.0

2D1.6 33 0.1 166 0.2 2H3.2 3 0.0 3 0.0

OFFENDERS SENTENCED FOR EACH CHAPTER TWO GUIDELINE1

Cases Sentenced One Year Since U.S. v. Booker with Data Available to USSC on February 22, 2006 

As Primary

Guideline

As Any

Guideline

As Primary

Guideline

As Any

Guideline

D-6
Guideline n% n% Guideline n% n%

2H3.3 10 0.0 14 0.0 2M4.1 0 0.0 0 0.0

2H4.1 7 0.0 7 0.0 2M5.1 8 0.0 9 0.0

2H4.2 0 0.0 0 0.0 2M5.2 27 0.0 29 0.0

2J1.1 0 0.0 26 0.0 2M5.3 6 0.0 9 0.0

2J1.2 118 0.2 160 0.2 2M6.1 13 0.0 13 0.0

2J1.3 65 0.1 90 0.1 2M6.2 1 0.0 1 0.0

2J1.4 15 0.0 28 0.0 2N1.1 2 0.0 2 0.0

2J1.5 2 0.0 2 0.0 2N1.2 2 0.0 2 0.0

2J1.6 49 0.1 63 0.1 2N1.3 0 0.0 0 0.0

2J1.7 131 0.2 138 0.2 2N2.1 32 0.1 58 0.1

2J1.8 0 0.0 0 0.0 2N3.1 1 0.0 3 0.0

2J1.9 0 0.0 0 0.0 2P1.1 217 0.3 240 0.4

2K1.1 4 0.0 5 0.0 2P1.2 78 0.1 102 0.1

2K1.2 0 0.0 0 0.0 2P1.3 14 0.0 14 0.0

2K1.3 45 0.1 48 0.1 2P1.4 0 0.0 0 0.0

2K1.4 58 0.1 80 0.1 2Q1.1 0 0.0 0 0.0

2K1.5 13 0.0 13 0.0 2Q1.2 43 0.1 45 0.1

2K1.6 1 0.0 1 0.0 2Q1.3 40 0.1 40 0.1

2K1.7 0 0.0 0 0.0 2Q1.4 0 0.0 0 0.0

2K2.1 6,478 10.3 6,859 10.1 2Q1.5 0 0.0 0 0.0

2K2.2 0 0.0 0 0.0 2Q1.6 0 0.0 0 0.0

2K2.3 0 0.0 0 0.0 2Q2.1 101 0.2 104 0.2

2K2.4 1 0.0 1 0.0 2Q2.2 0 0.0 0 0.0

2K2.5 12 0.0 14 0.0 2R1.1 18 0.0 20 0.0

2K2.6 2 0.0 4 0.0 2S1.1 949 1.5 1,037 1.5

2K3.1 0 0.0 0 0.0 2S1.2 20 0.0 27 0.0

2L1.1 3,081 4.9 3,163 4.6 2S1.3 261 0.4 291 0.4

2L1.2 10,313 16.4 10,444 15.3 2S1.4 0 0.0 0 0.0

2L1.3 0 0.0 0 0.0 2T1.1 491 0.8 603 0.9

2L2.1 370 0.6 400 0.6 2T1.2 0 0.0 0 0.0

2L2.2 1,011 1.6 1,068 1.6 2T1.3 1 0.0 1 0.0

2L2.3 0 0.0 0 0.0 2T1.4 111 0.2 123 0.2

2L2.4 0 0.0 0 0.0 2T1.5 0 0.0 0 0.0

2L2.5 0 0.0 0 0.0 2T1.6 10 0.0 11 0.0

2M1.1 1 0.0 1 0.0 2T1.7 0 0.0 0 0.0

2M2.1 0 0.0 0 0.0 2T1.8 0 0.0 0 0.0

2M2.2 0 0.0 0 0.0 2T1.9 23 0.0 36 0.1

2M2.3 0 0.0 0 0.0 2T2.1 0 0.0 1 0.0

2M2.4 0 0.0 0 0.0 2T2.2 0 0.0 0 0.0

2M3.1 0 0.0 0 0.0 2T3.1 32 0.1 37 0.1

2M3.2 0 0.0 0 0.0 2T3.2 0 0.0 0 0.0

2M3.3 1 0.0 1 0.0 2T4.1 0 0.0 0 0.0

2M3.4 0 0.0 0 0.0 2X1.1 128 0.2 1,290 1.9

2M3.5 0 0.0 0 0.0 2X2.1 0 0.0 49 0.1

2M3.6 0 0.0 0 0.0 2X3.1 103 0.2 120 0.2

2M3.7 0 0.0 0 0.0 2X4.1 430 0.7 444 0.7

2M3.8 0 0.0 0 0.0 2X5.1 0 0.0 47 0.1

2M3.9 0 0.0 0 0.0

68,162

62,765

1

Of the 67,564 cases, 4,799 were excluded due to missing guideline applied. The total for any guideline can exceed that for primary guideline 

because a case can have several guidelines applied, but only one primary guideline.

SOURCE: U.S. Sentencing Commission, Special Post-Booker Coding Project, BOOKER05 (data extracted February 22, 2006;

table prepared February 23, 2006). Summary numbers may not add up to their component parts due to rounding.

(continued)

Guideline

As Primary As Any As Primary As Any

Guideline Guideline Guideline

D-7

Total number of guidelines applied:

Number of cases with at least one guideline applied:
CIRCUIT CIRCUIT

District Number Percent District Number Percent

TOTAL 67,564 100.0

FIFTH CIRCUIT 14,755 21.8

D.C. CIRCUIT 485 0.7 Louisiana

District of Columbia 485 0.7 Eastern 338 0.5

 Middle 178 0.3

FIRST CIRCUIT 1,528 2.3 Western 391 0.6

Maine 236 0.3 Mississippi

Massachusetts 467 0.7 Northern 192 0.3

New Hampshire 181 0.3 Southern 342 0.5

Puerto Rico 512 0.8 Texas

Rhode Island 132 0.2 Eastern 740 1.1

 Northern 917 1.4

SECOND CIRCUIT 3,973 5.9 Southern 6,447 9.5

Connecticut 385 0.6 Western 5,210 7.7

New York

 Eastern 1,170 1.7 SIXTH CIRCUIT 5,118 7.6

 Northern 363 0.5 Kentucky

 Southern 1,271 1.9 Eastern 489 0.7

 Western 590 0.9 Western 375 0.6

Vermont 194 0.3 Michigan

 Eastern 730 1.1

THIRD CIRCUIT 3,174 4.7 Western 403 0.6

Delaware 161 0.2 Ohio

New Jersey 947 1.4 Northern 985 1.5

Pennsylvania Southern 618 0.9

 Eastern 936 1.4 Tennessee

 Middle 583 0.9 Eastern 618 0.9

 Western 430 0.6 Middle 323 0.5

Virgin Islands 117 0.2 Western 577 0.9

FOURTH CIRCUIT 6,178 9.1 SEVENTH CIRCUIT 2,940 4.4

Maryland 675 1.0 Illinois

North Carolina Central 366 0.5

 Eastern 657 1.0 Northern 1,058 1.6

 Middle 443 0.7 Southern 289 0.4

 Western 571 0.8 Indiana

South Carolina 991 1.5 Northern 368 0.5

Virginia Southern 305 0.5

 Eastern 1,594 2.4 Wisconsin

 Western 624 0.9 Eastern 367 0.5

West Virginia Western 187 0.3

 Northern 316 0.5

 Southern 307 0.5

GUIDELINE OFFENDERS IN EACH CIRCUIT AND DISTRICT1

Cases Sentenced One Year Since U.S. v. Booker with Data Available to USSC on February 22, 2006 

D-8
CIRCUIT CIRCUIT

District Number Percent District Number Percent

EIGHTH CIRCUIT 4,920 7.3 TENTH CIRCUIT 5,449 8.1

Arkansas Colorado 630 0.9

 Eastern 264 0.4 Kansas 624 0.9

 Western 198 0.3 New Mexico 2,489 3.7

Iowa Oklahoma

 Northern 359 0.5 Eastern 96 0.1

 Southern 334 0.5 Northern 204 0.3

Minnesota 549 0.8 Western 248 0.4

Missouri Utah 953 1.4

 Eastern 972 1.4 Wyoming 205 0.3

 Western 783 1.2

Nebraska 811 1.2 ELEVENTH CIRCUIT 6,391 9.5

North Dakota 227 0.3 Alabama

South Dakota 423 0.6 Middle 215 0.3

 Northern 436 0.6

NINTH CIRCUIT 12,653 18.7 Southern 333 0.5

Alaska 202 0.3 Florida

Arizona 3,895 5.8 Middle 1,575 2.3

California Northern 317 0.5

 Central 1,450 2.1 Southern 2,067 3.1

 Eastern 899 1.3 Georgia

 Northern 631 0.9 Middle 418 0.6

 Southern 2,270 3.4 Northern 682 1.0

Guam 124 0.2 Southern 348 0.5

Hawaii 457 0.7

Idaho 216 0.3

Montana 397 0.6

Nevada 427 0.6

Northern Mariana Islands 25 0.0

Oregon 533 0.8

Washington

 Eastern 361 0.5

 Western 766 1.1

SOURCE: U.S. Sentencing Commission, Special Post-Booker Coding Project, BOOKER05 (data extracted February 22, 2006;

table prepared February 23, 2006). Summary numbers may not add up to their component parts due to rounding.

D-9

(continued)
Guideline Application Trends, National and Circuit

Fiscal Years 2001, 2002, 2003, Pre-Blakely FY2004, and Post-Booker FY2005-061

(Post-Booker data extracted February 22, 2006)

NATIONAL

Position of Sentence

Relative to Guideline Range FY2001 FY2002 FY2003

FY2004

(Pre-Blakely)

FY2005-06

(Booker)

Within Range 64.0% 65.0% 69.4% 72.2% 62.2%

Upward Departures 0.6% 0.8% 0.8% 0.8% 0.3%2

Otherwise Above Range — — — — 1.3%3

Substantial Assistance Departures 17.1% 17.4% 15.9% 15.5% 14.4%

Other Gov’t Sponsored Departures — — 6.3%4 6.4% 9.3%4

Other Downward Departures 18.3%5 16.8%5 7.5% 5.2% 3.2%2

Otherwise Below Range — — — — 9.3%3

DC CIRCUIT

Position of Sentence

Relative to Guideline Range FY2001 FY2002 FY2003

FY2004

(Pre-Blakely)

FY2005-06

(Booker)

Within Range 74.6% 59.9% 64.6% 59.2% 52.5%

Upward Departures 0.4% 0.5% 0.2% 1.0% 0.2%2

Otherwise Above Range — — — — 1.9%3

Substantial Assistance Departures 13.8% 31.1% 26.4% 31.3% 24.2%

Other Gov’t Sponsored Departures — — 4.4%4 3.9% 8.2%4

Other Downward Departures 11.2%5 8.5%5 4.4% 4.7% 2.7%2

Otherwise Below Range — — — — 10.3%3

FIRST CIRCUIT

Position of Sentence

Relative to Guideline Range FY2001 FY2002 FY2003

FY2004

(Pre-Blakely)

FY2005-06

(Booker)

Within Range 73.3% 75.7% 77.3% 79.6% 65.3%

Upward Departures 0.4% 0.6% 0.7% 0.9% 0.3%2

Otherwise Above Range — — — — 2.2%3

Substantial Assistance Departures 14.6% 14.4% 13.5% 13.8% 12.3%

Other Gov’t Sponsored Departures — — 0.7%4 0.5% 2.1%4

Other Downward Departures 11.7% 5 9.3% 5 7.8% 5.2% 4.0%2

Otherwise Below Range — — — — 13.9%3

 (continued on next page)

D-10
Guideline Application Trends, National and Circuit

Fiscal Years 2001, 2002, 2003, Pre-Blakely FY2004, and Post-Booker FY2005-061

SECOND CIRCUIT

Position of Sentence

Relative to Guideline Range FY2001 FY2002 FY2003

FY2004

(Pre-Blakely)

FY2005-06

(Booker)

Within Range 57.5% 61.3% 63.2% 63.8% 50.1%

Upward Departures 0.4% 0.6% 0.5% 0.9% 0.2%2

Otherwise Above Range — — — — 0.9%3

Substantial Assistance Departures 21.7% 19.0% 17.5% 19.2% 22.7%

Other Gov’t Sponsored Departures — — 2.8%4 2.5% 3.0%4

Other Downward Departures 20.4% 5 19.1%5 16.0% 13.6% 6.7%2

Otherwise Below Range — — — — 16.4%3

 THIRD CIRCUIT

Position of Sentence

Relative to Guideline Range FY2001 FY2002 FY2003

FY2004

(Pre-Blakely)

FY2005-06

(Booker)

Within Range 60.2% 58.9% 62.3% 62.6% 52.1%

Upward Departures 0.5% 0.9% 0.9% 0.6% 0.2%2

Otherwise Above Range — — — — 1.1%3

Substantial Assistance Departures 30.6% 32.3% 28.8% 30.3% 27.3%

Other Gov’t Sponsored Departures — — 0.6%4 0.8% 1.7%4

Other Downward Departures 8.8% 5 7.9%5 7.4% 5.8% 4.1%2

Otherwise Below Range — — — — 13.5%3

FOURTH CIRCUIT

Position of Sentence

Relative to Guideline Range FY2001 FY2002 FY2003

FY2004

(Pre-Blakely)

FY2005-06

(Booker)

Within Range 73.7% 76.6% 77.0% 79.0% 67.2%

Upward Departures 0.9% 0.7% 0.6% 1.0% 0.3%2

Otherwise Above Range — — — — 1.3%3

Substantial Assistance Departures 20.2% 18.6% 18.3% 16.7% 17.8%

Other Gov’t Sponsored Departures — — 0.3%4 0.3% 1.3%4

Other Downward Departures 5.2% 5 4.2%5 3.8% 3.0% 2.5%2

Otherwise Below Range — — — — 9.7%3

 (continued on next page)

D-11
Guideline Application, National and Circuit

Fiscal Years 2001, 2002, 2003, Pre-Blakely FY2004, and Post-Booker FY2005-061

FIFTH CIRCUIT

Position of Sentence

Relative to Guideline Range FY2001 FY2002 FY2003

FY2004

(Pre-Blakely)

FY2005-06

(Booker)

Within Range 69.1% 71.0% 73.7% 80.2% 72.0%

Upward Departures 0.5% 0.9% 0.9% 0.8% 0.2%2

Otherwise Above Range — — — — 1.5%3

Substantial Assistance Departures 12.3% 13.4% 12.5% 10.3% 7.8%

Other Gov’t Sponsored Departures — — 5.4%4 5.2% 9.9%4

Other Downward Departures 18.1% 5 14.7%5 7.5% 3.5% 2.5%2

Otherwise Below Range — — — — 6.1%3

SIXTH CIRCUIT

Position of Sentence

Relative to Guideline Range FY2001 FY2002 FY2003

FY2004

(Pre-Blakely)

FY2005-06

(Booker)

Within Range 65.1% 66.9% 69.1% 69.7% 57.9%

Upward Departures 0.5% 0.8% 0.4% 0.5% 0.2%2

Otherwise Above Range — — — — 1.3%3

Substantial Assistance Departures 27.2% 26.0% 24.6% 24.3% 25.0%

Other Gov’t Sponsored Departures — — 0.5%4 0.4% 1.6%4

Other Downward Departures 7.3% 5 6.3%5 5.3% 5.1% 3.0%2

Otherwise Below Range — — — — 11.0%3

SEVENTH CIRCUIT

Position of Sentence

Relative to Guideline Range FY2001 FY2002 FY2003

FY2004

(Pre-Blakely)

FY2005-06

(Booker)

Within Range 71.0% 69.3% 72.5% 75.4% 63.5%

Upward Departures 1.0% 0.8% 1.0% 1.3% 0.3%2

Otherwise Above Range — — — — 1.1%3

Substantial Assistance Departures 21.2% 21.8% 21.2% 19.0% 17.2%

Other Gov’t Sponsored Departures — — 0.8%4 0.8% 2.6%4

Other Downward Departures 6.9% 5 8.1%5 4.5% 3.6% 3.6%2

Otherwise Below Range — — — — 11.9%3

 (continued on next page)

D-12
Guideline Application Trends By Circuit

Fiscal Years 2001, 2002, 2003, Pre-Blakely FY2004, and Post-Booker FY2005-061

EIGHTH CIRCUIT

Position of Sentence

Relative to Guideline Range FY2001 FY2002 FY2003

FY2004

(Pre-Blakely)

FY2005-06

(Booker)

Within Range 66.8% 69.3% 72.2% 77.0% 64.4%

Upward Departures 0.7% 1.2% 1.1% 0.9% 0.4%2

Otherwise Above Range — — — — 1.6%3

Substantial Assistance Departures 22.0% 18.9% 17.6% 15.3% 14.0%

Other Gov’t Sponsored Departures — — 2.0%4 2.1% 3.9%4

Other Downward Departures 10.5% 5 10.7%5 7.1% 4.7% 3.5%2

Otherwise Below Range — — — — 12.3%3

NINTH CIRCUIT

Position of Sentence

Relative to Guideline Range FY2001 FY2002 FY2003

FY2004

(Pre-Blakely)

FY2005-06

(Booker)

Within Range 50.1% 48.8% 59.6% 61.8% 48.5%

Upward Departures 0.4% 0.7% 1.1% 0.8% 0.4%2

Otherwise Above Range — — — — 1.2%3

Substantial Assistance Departures 10.7% 11.8% 10.2% 10.6% 10.4%

Other Gov’t Sponsored Departures — — 19.2%4 20.4% 27.5%4

Other Downward Departures 38.7% 5 38.7%5 9.9% 6.5% 3.5%2

Otherwise Below Range — — — — 8.6%3

TENTH CIRCUIT

Position of Sentence

Relative to Guideline Range FY2001 FY2002 FY2003

FY2004

(Pre-Blakely)

FY2005-06

(Booker)

Within Range 65.0% 66.6% 73.1% 73.9% 66.5%

Upward Departures 0.7% 0.6% 0.6% 0.7% 0.1%2

Otherwise Above Range — — — — 0.9%3

Substantial Assistance Departures 11.0% 11.0% 9.4% 10.3% 9.3%

Other Gov’t Sponsored Departures — — 11.4%4 10.7% 13.6%4

Other Downward Departures 23.3% 5 21.9%5 5.5% 4.5% 2.9%2

Otherwise Below Range — — — — 6.7%3

 (continued on next page)

D-13
Guideline Application Trends By Circuit

Fiscal Years 2001, 2002, 2003, Pre-Blakely FY2004, and Post-Booker FY2005-061

ELEVENTH CIRCUIT

Position of Sentence

Relative to Guideline Range FY2001 FY2002 FY2003

FY2004

(Pre-Blakely)

FY2005-06

(Booker)

Within Range 72.1% 70.2% 74.5% 74.7% 69.9%

Upward Departures 0.6% 0.7% 0.8% 0.8% 0.4%2

Otherwise Above Range — — — — 1.5%3

Substantial Assistance Departures 19.9% 22.4% 19.9% 21.0% 17.1%

Other Gov’t Sponsored Departures — — 0.3%4 0.2% 0.9%4

Other Downward Departures 7.5% 5 6.7%5 4.5% 3.3% 2.6%2

Otherwise Below Range — — — — 7.6%3

1

In 2003, the Commission augmented its data coding procedures to determine the proportion of non-substantial

assistance downward departures that were sponsored by the government. Data prior to 2003 does not

distinguish non-substantial assistance government initiated downward departures from other downward

departures. In this table, data from FY2001and 2002 on “Other Downward Departures” combines both

government sponsored and non-government sponsored downward departures. For FY2003 and FY2004, the

“Other Downward Departures” data distinguishes departures that were sponsored by the government from

those not sponsored by the government. For example, using the national data, 6.3% of downward departures

were government sponsored and 7.5% were other downward departures; the combination of these values

(13.8%) is directly comparable to the data for “Other Downward Departures” from the preceding years. For

FY2004, this table reflects only cases sentenced prior to the Blakely v Washington decision on June 24, 2004.

For FY2005-06, this table reflects cases sentenced one year since the U.S. v Booker (January 12, 2005 through

January 11, 2006), with court documentation cumulatively received, coded, and edited at the U.S. Sentencing

Commission by February 22, 2006. In these cases, a further distinction is made among below guideline range

sentences. The data report three categories of below range sentences: those sponsored by the government;

those not sponsored by the government and citing reasons for departure limited to, and affirmatively and

specifically identified in the provisions, policy statements, or commentary of the federal Guidelines Manual;

and those mentioning only U.S. v. Booker, 18 U.S.C. § 3553, or related factors as a reason for a sentence

outside of the guideline range. Cases citing both reasons for departure limited to, and affirmatively and

specifically identified in the provisions, policy statements, or commentary of the federal Guidelines Manual

and mentioning U.S. v. Booker, 18 U.S.C. § 3553, or related factors are included in the “Other Downward

Departures” category.

2

Includes cases with imposed sentences outside of the guideline range and citing reasons for departure limited

to, and affirmatively and specifically identified in the provisions, policy statements, or commentary of the

federal Guidelines Manual and all cases with imposed sentences outside of the guideline range citing reasons

for departure limited to, and affirmatively and specifically identified in the provisions, policy statements, or

commentary of the federal Guidelines Manual, and additionally mentioning either U.S. v. Booker, 18 U.S.C.

§ 3553, or related factors as a reason for a sentence outside of the guideline range. 3

Includes cases with imposed sentences outside of the guideline range mentioning only U.S. v. Booker, 18

U.S.C. § 3553, or related factors as a reason for a sentence outside of the guideline range and all cases with

imposed sentences outside of the guideline range that do not fall into the previous category. This category

includes cases which cite departure reasons that are not affirmatively and specifically identified in the

provisions, policy statements, or commentary of the federal Guidelines Manual and cases which do not

provide any reason for the sentence outside of the guideline range.

4

Cases with a reason for departure indicating that the prosecution initiates, proposes, or stipulates to a

sentence outside of the guideline range, either pursuant to a plea agreement or as part of a non-plea

negotiation with the defendant. Note that §5K3.1 (Early Disposition Program) cases are included in this

category.

5

Includes cases in which the below range sentence was sponsored by the government and those not

sponsored by the government. Prior to FY2003, the Commission did not code this distinction. 

SOURCE: U.S. Sentencing Commission Sourcebook of Federal Sentencing, FY2001 through FY2003,

Table 26; U.S. Sentencing Commission 2004 Fiscal Year Data File, USSCFY04, Pre-Blakely Only Cases

(October 1, 2003 through June 24, 2004); Special Post-Booker Coding Project, (data extracted February

22, 2006; table prepared February 23, 2006). Percents may not sum to 100 percent due to rounding.

D-14
N% N% N% N% N

Dru

g Traffickin

g §2D1.11 21,715 100.0 22,608 100.0 24,013 100.0 23,833 100.0 16,955 

Prison only2 20,422 94.0 21,143 93.5 22,407 93.3 22,455 94.2 16,081 Prison plus confinement conditions3 430 2.0 469 2.1 515 2.1 402 1.7 337 Probation plus confinement conditions4 379 1.7 488 2.2 465 1.9 469 2.0 227 Probation only5 484 2.2 508 2.2 626 2.6 507 2.1 310 

Immi

gration Unlawful Entr

y §2L1.21 6,341 100.0 5,946 100.0 6,993 100.0 9,167 100.0 7,058 

Prison only2 6,291 99.2 5,901 99.2 6,952 99.4 9,132 99.6 7,032 Prison plus confinement conditions3 10 0.2 14 0.2 7 0.1 11 0.1 10 Probation plus confinement conditions4 1 0.0 1 0.0 0 0.0 2 0.0 0 Probation only5 39 0.6 30 0.5 34 0.5 22 0.2 16 

Firearms §2K2.11 2,997 100.0 3,629 100.0 4,173 100.0 5,425 100.0 4,782 

Prison only2 2,604 86.9 3,177 87.5 3,680 88.2 4,779 88.1 4,292 Prison plus confinement conditions3 104 3.5 141 3.9 158 3.8 174 3.2 128 Probation plus confinement conditions4 147 4.9 155 4.3 139 3.3 224 4.1 160 Probation only5 142 4.7 156 4.3 196 4.7 248 4.6 202 

Theft/Fraud §2B1.1 or §2F1.11 9,015 100.0 8,768 100.0 9,243 100.0 9,606 100.0 6,909 

Prison only2 4,253 47.2 4,339 49.5 4,531 49.0 4,803 50.0 3,574 Prison plus confinement conditions3 1,077 11.9 1,053 12.0 959 10.4 840 8.7 629 Probation plus confinement conditions4 1,540 17.1 1,481 16.9 1,421 15.4 1,463 15.2 997 Probation only5 2,145 23.8 1,895 21.6 2,332 25.2 2,500 26.0 1,709 

Pre-Bla

FY 20

D-15

1Sections report only cases with one single guideline application using the indicated guideline. Cases receiving only monetary sentenc2Prison only cases receive straight prison time. 3Prison plus confinement cases receive a combination of prison time and alternative confinement time as defined in USSG §5C1.1.4Probation plus confinement cases receive, as a condition of probation, alternative confinement time as defined in USSG §5C1.1.5Probation only cases receive straight probation time. 

SOURCE: U.S. Sentencing Commission, 2000-2003 Fiscal Year Datafiles, USSCFY00-USSCFY03; 2004 Fiscal Year Datafile, USSC

Cases (October 1, 2003 through June 24, 2004); Special Post-Booker Coding Project with cases sentenced one year since U.S. v. Book

through January 11, 2006 (data extraction on February 22, 2006; table prepared February 23, 2006). Numbers may not sum to 100 pe

Distribution of Offenders Receivin

g Sentencin

g Options for the Most Frequentl

y Appli

FY 2000-2003, Pre-Blakely FY 2004, and Post-Booker FY 2005-2006 (data extracted February 

FY 2000 FY 2001 FY 2002 FY 2003
Average and Median Sentence Imposed1

 for the 

Most Frequently Applied Guidelines

Fiscal Year 2000 and Fiscal Year 2001

 Fiscal Year 2000 Fiscal Year 2001

Average

Months

 Median

Months

GL

Median2 N

Average

Months

 Median

Months

GL

Median2 N

All Cases (one guideline computation)3 50 30 51,342 50 30 51,809

Drug Trafficking §2D1.14 72 50 60 21,715 70 48 60 22,608

Prison only5 74 57 63 20,422 72 51 60 21,143

Prison plus confinement conditions6 21 10 21 430 29 10 18 469

Probation plus confinement conditions7 6 6 12 379 6 6 12 488

Probation only8 0 0 — 484 0 0 — 508

Immigration Unlawful Entry §2L1.24 36 33 46 6,341 35 30 46 5,946

Prison only5 36 33 33 6,291 35 30 46 5,901

Prison plus confinement conditions6 21 10 10 10 20 10 12 14

Probation plus confinement conditions7 ——— 1 ——— 1

Probation only8 0 0 — 39 0 0 — 30

Firearms §2K2.14 53 37 37 2,997 52 37 37 3,629

Prison only5 57 37 41 2,604 56 40 41 3,177

Prison plus confinement conditions6 23 10 12 104 22 10 15 141

Probation plus confinement conditions7 7 6 12 147 6 6 12 155

Probation only8 0 0 — 142 0 0 — 156

Theft/Fraud §2B1.1 or §2F1.14 14 10 10 9,015 15 10 12 8,768

Prison only5 19 15 15 4,253 20 15 15 4,339

Prison plus confinement conditions6 9 8 8 1,077 9 8 8 1,053

Probation plus confinement conditions7 5 6 6 1,540 5 6 6 1,481

Probation only8 0 0 — 2,145 0 0 — 1,895

1

Sentence data report the sum of imprisonment and any type of confinement as defined in USSG §5C1.1. 2

For the guideline range of the sentencing table applied to the case, the lower value of the sentencing range. 3

All statistics in the table report data for cases with one single guideline computation for the specified fiscal year. The “All Cases”

row reports all cases regardless of the one guideline applied. Cases receiving only monetary sentences are excluded. 4

Each guideline-specific section reports only cases with one single guideline application using the indicated guideline. 5

Prison only sentence categories report straight prison time. 

6

Prison plus confinement sentence categories report the sum of prison time and alternative confinement time as defined in USSG

§5C1.1. 

7

Probation plus confinement categories report statistics for cases receiving, as a condition of probation, alternative confinement time

as defined in USSG §5C1.1.

8

Probation only categories report cases receiving straight probation time. By definition, the confinement time is zero months for

these cases.

SOURCE: U.S. Sentencing Commission, 2000 and 2001 Fiscal Year Datafiles, USSCFY00 and USSCFY01.

D-16
Average and Median Sentence Imposed1

 for the 

Most Frequently Applied Guidelines

Fiscal Year 2002 and Fiscal Year 2003

Fiscal Year 2002 Fiscal Year 2003

Average

Months

Median

Months

 GL

Median2 N

Average

Months

Median

Months

 GL

Median2 N

All Cases (one guideline computation)3 51 30 55,856 52 30 60,786

Drug Trafficking §2D1.14 71 51 60 24,013 77 57 63 23,833

Prison only5 74 57 57 22,407 79 60 70 22,455

Prison plus confinement conditions6 22 10 10 515 20 10 15 402

Probation plus confinement conditions7 6 6 6 465 6 6 12 469

Probation only8 0 0 — 626 0 0 — 507

Immigration Unlawful Entry §2L1.24 30 27 30 6,993 28 24 27 9,167

Prison only5 30 27 30 6,952 28 24 27 9,132

Prison plus confinement conditions6 20 10 10 7 22 10 10 11

Probation plus confinement conditions7 ——— 0 ——— 2

Probation only8 0 0 — 34 0 0 — 22

Firearms §2K2.14 53 37 37 4,173 56 37 37 5,425

Prison only5 57 37 37 3,680 59 41 41 4,779

Prison plus confinement conditions6 18 10 12 158 21 10 12 174

Probation plus confinement conditions7 6 6 12 139 6 6 12 224

Probation only8 0 0 — 196 0 0 — 248

Theft/Fraud §2B1.1 or §2F1.14 16 10 12 9,243 16 12 12 9,606

Prison only5 20 15 15 4,531 21 16 18 4,803

Prison plus confinement conditions6 9 10 10 959 9 10 10 840

Probation plus confinement conditions7 6 6 6 1,421 6 6 6 1,463

Probation only8 0 0 — 2,332 0 0 — 2,500

1

Sentence data report the sum of imprisonment and any type of confinement as defined in USSG §5C1.1. 2

For the guideline range of the sentencing table applied to the case, the lower value of the sentencing range. 3

All statistics in the table report data for cases with one single guideline computation for the specified fiscal year. The “All Cases”

row reports all cases regardless of the one guideline applied. Cases receiving only monetary sentences are excluded. 4

Each guideline-specific section reports only cases with one single guideline application using the indicated guideline. 5

Prison only sentence categories report straight prison time. 

6

Prison plus confinement sentence categories report the sum of prison time and alternative confinement time as defined in USSG

§5C1.1. 

7

Probation plus confinement categories report statistics for cases receiving, as a condition of probation, alternative confinement

time as defined in USSG §5C1.1.

8

Probation only categories report cases receiving straight probation time. By definition, the confinement time is zero months for

these cases.

SOURCE: U.S. Sentencing Commission, 2002 and 2003 Fiscal Year Datafiles, USSCFY02 and USSCFY03.

D-17
Average and Median Sentence Imposed1

 for the 

Most Frequently Applied Guidelines

Pre-Blakely FY 2004 and Post-Booker FY 2005-2006 (data extracted February 22, 2006)

 

Pre-Blakely FY 2004 Post-Booker FY2005-06

Average

Months

Median

Months

GL

Median2 N

Average

Months

Median

Months

GL

Median2 N

All Cases (one guideline computation)3 56 33 44,895 55 33 60,314

Drug Trafficking §2D1.14 83 60 70 16,955 83 60 70 22,446

Prison only5 86 60 70 16,081 86 63 78 21,218

Prison plus confinement conditions6 22 10 12 337 19 10 21 485

Probation plus confinement conditions7 6 6 12 227 6 6 14 320

Probation only8 0 0 — 310 0 0 — 423

Immigration Unlawful Entry §2L1.24 29 24 24 7,058 27 24 24 10,232

Prison only5 29 24 24 7,032 27 24 24 10,160

Prison plus confinement conditions6 40 34 29 10 15 10 15 19

Probation plus confinement conditions7 ——— 0 ——— 2

Probation only8 0 0 — 16 0 0 — 51

Firearms §2K2.14 59 40 41 4,782 58 37 37 6,266

Prison only5 63 42 46 4,292 61 41 41 5,625

Prison plus confinement conditions6 21 10 10 128 26 10 12 188

Probation plus confinement conditions7 6 6 10 160 7 6 12 228

Probation only8 0 0 — 202 0 0 — 225

Theft/Fraud §2B1.1 or §2F1.14 19 12 12 6,909 21 12 15 7,781

Prison only5 25 18 18 3,574 26 18 21 4,186

Prison plus confinement conditions6 9 10 10 629 10 10 10 716

Probation plus confinement conditions7 6 6 6 997 6 6 6 995

Probation only8 0 0 — 1,709 0 0 — 1,884

1

Sentence data report the sum of imprisonment and any type of confinement as defined in USSG §5C1.1. 2

For the guideline range of the sentencing table applied to the case, the lower value of the sentencing range. 3

All statistics in the table report data for cases with one single guideline computation for the specified fiscal year. The “All Cases”

row reports all cases regardless of the one guideline applied. Cases receiving only monetary sentences are excluded. 4

Each guideline-specific section reports only cases with one single guideline application using the indicated guideline. 5

Prison only sentence categories report straight prison time. 

6

Prison plus confinement sentence categories report the sum of prison time and alternative confinement time as defined in USSG

§5C1.1. 

7

Probation plus confinement categories report statistics for cases receiving, as a condition of probation, alternative confinement

time as defined in USSG §5C1.1.

8

Probation only categories report cases receiving straight probation time. By definition, the confinement time is zero months for

these cases.

SOURCE: U.S. Sentencing Commission, 2004 Fiscal Year Datafile, USSCFY04 Pre-Blakely Only Cases (October 1, 2003

through June 24, 2004); Special Post-Booker Coding Project with cases sentenced one year since U.S. v. Booker, January 12, 2005

through January 11, 2006 (data extraction on February 22, 2006; table prepared February 23, 2006).

D-18
CIRCUIT

District TOTAL % % % % % %

TOTAL 65,368 40,645 62.2 15,500 23.7 2,101 3.2 6,088 9.3 175 0.3 859 1.3

D.C. CIRCUIT 476 250 52.5 154 32.4 13 2.7 49 10.3 1 0.2 9 1.9

District of Columbia 476 250 52.5 154 32.4 13 2.7 49 10.3 1 0.2 9 1.9

FIRST CIRCUIT 1,484 969 65.3 213 14.4 59 4.0 206 13.9 5 0.3 32 2.2

Maine 233 168 72.1 51 21.9 5 2.1 8 3.4 0 0.0 1 0.4

Massachusetts 444 235 52.9 53 11.9 35 7.9 114 25.7 2 0.5 5 1.1

New Hampshire 181 100 55.2 59 32.6 7 3.9 10 5.5 0 0.0 5 2.8

Puerto Rico 499 380 76.2 43 8.6 9 1.8 48 9.6 2 0.4 17 3.4

Rhode Island 127 86 67.7 7 5.5 3 2.4 26 20.5 1 0.8 4 3.1

SECOND CIRCUIT 3,889 1,949 50.1 1,002 25.8 260 6.7 637 16.4 6 0.2 35 0.9

Connecticut 380 176 46.3 101 26.6 52 13.7 46 12.1 3 0.8 2 0.5

New York

 Eastern 1,167 431 36.9 343 29.4 107 9.2 263 22.5 2 0.2 21 1.8

 Northern 360 191 53.1 114 31.7 20 5.6 32 8.9 0 0.0 3 0.8

 Southern 1,226 742 60.5 187 15.3 63 5.1 227 18.5 1 0.1 6 0.5

 Western 562 315 56.0 188 33.5 4 0.7 52 9.3 0 0.0 3 0.5

Vermont 194 94 48.5 69 35.6 14 7.2 17 8.8 0 0.0 0 0.0

THIRD CIRCUIT 3,127 1,629 52.1 906 29.0 129 4.1 421 13.5 7 0.2 35 1.1

Delaware 161 104 64.6 14 8.7 13 8.1 30 18.6 0 0.0 0 0.0

New Jersey 925 478 51.7 293 31.7 41 4.4 103 11.1 1 0.1 9 1.0

Pennsylvania

 Eastern 915 376 41.1 317 34.6 31 3.4 177 19.3 3 0.3 11 1.2

 Middle 582 273 46.9 223 38.3 20 3.4 54 9.3 3 0.5 9 1.5

 Western 428 297 69.4 54 12.6 23 5.4 48 11.2 0 0.0 6 1.4

Virgin Islands 116 101 87.1 5 4.3 1 0.9 9 7.8 0 0.0 0 0.0

FOURTH CIRCUIT 5,871 3,944 67.2 1,117 19.0 146 2.5 571 9.7 17 0.3 76 1.3

Maryland 647 321 49.6 192 29.7 34 5.3 89 13.8 2 0.3 9 1.4

North Carolina

 Eastern 652 363 55.7 229 35.1 13 2.0 41 6.3 2 0.3 4 0.6

 Middle 442 334 75.6 56 12.7 8 1.8 40 9.0 0 0.0 4 0.9

 Western 567 347 61.2 158 27.9 14 2.5 42 7.4 0 0.0 6 1.1

South Carolina 962 682 70.9 166 17.3 25 2.6 80 8.3 4 0.4 5 0.5

Virginia

 Eastern 1,367 1,030 75.3 94 6.9 25 1.8 182 13.3 5 0.4 31 2.3

 Western 621 385 62.0 157 25.3 12 1.9 56 9.0 2 0.3 9 1.4

West Virginia

 Northern 312 253 81.1 30 9.6 6 1.9 20 6.4 0 0.0 3 1.0

 Southern 301 229 76.1 35 11.6 9 3.0 21 7.0 2 0.7 5 1.7

D-19

ABOVE THE 

GUIDELINE 

RANGE

ABOVE THE 

GUIDELINE 

RANGE

GUIDELINE 

RANGE RANGE RANGE

OTHERWISE

GUIDELINE GUIDELINE 

WITHIN BELOW THE BELOW THE 

SENTENCED SPONSORED

BELOW THE 

GUIDELINE 

DEPARTURES OTHERWISE DEPARTURES

RANGE

POST-BOOKER DEPARTURE/VARIANCE RATE BY CIRCUIT AND DISTRICT1

GOVERNMENT

Cases Sentenced Subsequent to U.S. v. Booker with Data Available to USSC on February 22, 2006
CIRCUIT

District TOTAL % % % % % %

FIFTH CIRCUIT 14,662 10,555 72.0 2,605 17.8 360 2.5 889 6.1 33 0.2 220 1.5

Louisiana

 Eastern 335 254 75.8 46 13.7 7 2.1 18 5.4 3 0.9 7 2.1

 Middle 178 111 62.4 46 25.8 1 0.6 8 4.5 2 1.1 10 5.6

 Western 386 276 71.5 35 9.1 9 2.3 46 11.9 1 0.3 19 4.9

Mississippi

 Northern 192 118 61.5 56 29.2 2 1.0 6 3.1 2 1.0 8 4.2

 Southern 333 270 81.1 32 9.6 7 2.1 16 4.8 0 0.0 8 2.4

Texas

 Eastern 739 593 80.2 84 11.4 16 2.2 34 4.6 1 0.1 11 1.5

 Northern 915 684 74.8 108 11.8 13 1.4 63 6.9 2 0.2 45 4.9

 Southern 6,430 4,171 64.9 1,582 24.6 218 3.4 399 6.2 16 0.2 44 0.7

 Western 5,154 4,078 79.1 616 12.0 87 1.7 299 5.8 6 0.1 68 1.3

SIXTH CIRCUIT 4,985 2,888 57.9 1,330 26.7 147 2.9 547 11.0 8 0.2 65 1.3

Kentucky

 Eastern 476 241 50.6 187 39.3 4 0.8 30 6.3 0 0.0 14 2.9

 Western 351 249 70.9 74 21.1 8 2.3 20 5.7 0 0.0 0 0.0

Michigan

 Eastern 725 382 52.7 215 29.7 30 4.1 89 12.3 1 0.1 8 1.1

 Western 402 266 66.2 64 15.9 12 3.0 51 12.7 2 0.5 7 1.7

Ohio

 Northern 978 568 58.1 236 24.1 43 4.4 122 12.5 1 0.1 8 0.8

 Southern 596 291 48.8 192 32.2 21 3.5 83 13.9 0 0.0 9 1.5

Tennessee

 Eastern 602 389 64.6 149 24.8 5 0.8 50 8.3 0 0.0 9 1.5

 Middle 292 178 61.0 63 21.6 11 3.8 37 12.7 1 0.3 2 0.7

 Western 563 324 57.5 150 26.6 13 2.3 65 11.5 3 0.5 8 1.4

SEVENTH CIRCUIT 2,904 1,845 63.5 572 19.7 103 3.5 344 11.8 9 0.3 31 1.1

Illinois

 Central 357 207 58.0 78 21.8 12 3.4 56 15.7 1 0.3 3 0.8

 Northern 1,045 600 57.4 251 24.0 50 4.8 134 12.8 2 0.2 8 0.8

 Southern 288 241 83.7 15 5.2 9 3.1 18 6.3 2 0.7 3 1.0

Indiana

 Northern 361 251 69.5 86 23.8 9 2.5 13 3.6 0 0.0 2 0.6

 Southern 301 194 64.5 69 22.9 7 2.3 23 7.6 2 0.7 6 2.0

Wisconsin

 Eastern 367 193 52.6 65 17.7 13 3.5 87 23.7 2 0.5 7 1.9

 Western 185 159 85.9 8 4.3 3 1.6 13 7.0 0 0.0 2 1.1

EIGHTH CIRCUIT 4,879 3,144 64.4 874 17.9 169 3.5 598 12.3 17 0.3 77 1.6

Arkansas

 Eastern 252 169 67.1 33 13.1 9 3.6 36 14.3 3 1.2 2 0.8

 Western 196 139 70.9 40 20.4 4 2.0 12 6.1 0 0.0 1 0.5

Iowa

 Northern 358 246 68.7 50 14.0 6 1.7 37 10.3 3 0.8 16 4.5

 Southern 333 160 48.0 70 21.0 9 2.7 88 26.4 0 0.0 6 1.8

Minnesota 543 282 51.9 103 19.0 30 5.5 125 23.0 0 0.0 3 0.6

Missouri

 Eastern 962 643 66.8 182 18.9 40 4.2 86 8.9 1 0.1 10 1.0

 Western 778 514 66.1 147 18.9 8 1.0 94 12.1 0 0.0 15 1.9

Nebraska 810 525 64.8 170 21.0 44 5.4 64 7.9 0 0.0 7 0.9

North Dakota 225 155 68.9 52 23.1 5 2.2 11 4.9 1 0.4 1 0.4

South Dakota 422 311 73.7 27 6.4 14 3.3 45 10.7 9 2.1 16 3.8

D-20

GUIDELINE 

RANGE

BELOW THE ABOVE THE 

GUIDELINE 

RANGE

ABOVE THE 

GUIDELINE 

RANGE

BELOW THE 

OTHERWISE

RANGE RANGE RANGE

WITHIN

GUIDELINE 

SENTENCED

GUIDELINE GUIDELINE 

BELOW THE 

SPONSORED DEPARTURES

GOVERNMENT

DEPARTURES OTHERWISE
CIRCUIT

District TOTAL % % % % % %

NINTH CIRCUIT 11,654 5,656 48.5 4,410 37.8 402 3.4 1,005 8.6 44 0.4 137 1.2

Alaska 197 115 58.4 34 17.3 3 1.5 41 20.8 0 0.0 4 2.0

Arizona 3,746 1,069 28.5 2,351 62.8 105 2.8 142 3.8 32 0.9 47 1.3

California

 Central 876 707 80.7 54 6.2 29 3.3 83 9.5 0 0.0 3 0.3

 Eastern 893 482 54.0 316 35.4 24 2.7 63 7.1 2 0.2 6 0.7

 Northern 614 378 61.6 121 19.7 23 3.7 82 13.4 0 0.0 10 1.6

 Southern 2,130 1,167 54.8 703 33.0 111 5.2 137 6.4 3 0.1 9 0.4

Guam 121 64 52.9 43 35.5 5 4.1 9 7.4 0 0.0 0 0.0

Hawaii 453 217 47.9 142 31.3 17 3.8 69 15.2 0 0.0 8 1.8

Idaho 213 82 38.5 97 45.5 9 4.2 23 10.8 0 0.0 2 0.9

Montana 393 300 76.3 47 12.0 10 2.5 19 4.8 4 1.0 13 3.3

Nevada 415 300 72.3 49 11.8 9 2.2 48 11.6 0 0.0 9 2.2

Northern Mariana Islands 24 18 75.0 5 20.8 0 0.0 0 0.0 0 0.0 1 4.2

Oregon 511 276 54.0 113 22.1 21 4.1 93 18.2 1 0.2 7 1.4

Washington

 Eastern 355 209 58.9 71 20.0 10 2.8 53 14.9 2 0.6 10 2.8

 Western 713 272 38.1 264 37.0 26 3.6 143 20.1 0 0.0 8 1.1

TENTH CIRCUIT 5,333 3,547 66.5 1,220 22.9 152 2.9 358 6.7 6 0.1 50 0.9

Colorado 612 324 52.9 180 29.4 33 5.4 66 10.8 2 0.3 7 1.1

Kansas 622 411 66.1 123 19.8 14 2.3 63 10.1 2 0.3 9 1.4

New Mexico 2,461 1,607 65.3 711 28.9 50 2.0 83 3.4 1 0.0 9 0.4

Oklahoma

 Eastern 96 84 87.5 10 10.4 1 1.0 1 1.0 0 0.0 0 0.0

 Northern 204 168 82.4 23 11.3 0 0.0 8 3.9 1 0.5 4 2.0

 Western 220 159 72.3 19 8.6 6 2.7 25 11.4 0 0.0 11 5.0

Utah 914 664 72.6 101 11.1 43 4.7 99 10.8 0 0.0 7 0.8

Wyoming 204 130 63.7 53 26.0 5 2.5 13 6.4 0 0.0 3 1.5

ELEVENTH CIRCUIT 6,104 4,269 69.9 1,097 18.0 161 2.6 463 7.6 22 0.4 92 1.5

Alabama

 Middle 214 129 60.3 74 34.6 2 0.9 7 3.3 1 0.5 1 0.5

 Northern 423 260 61.5 108 25.5 5 1.2 37 8.7 2 0.5 11 2.6

 Southern 332 226 68.1 74 22.3 7 2.1 20 6.0 0 0.0 5 1.5

Florida

 Middle 1,568 1,028 65.6 365 23.3 49 3.1 104 6.6 2 0.1 20 1.3

 Northern 311 223 71.7 58 18.6 4 1.3 16 5.1 3 1.0 7 2.3

 Southern 1,951 1,512 77.5 198 10.1 45 2.3 176 9.0 5 0.3 15 0.8

Georgia

 Middle 357 252 70.6 75 21.0 0 0.0 21 5.9 1 0.3 8 2.2

 Northern 658 437 66.4 107 16.3 35 5.3 68 10.3 4 0.6 7 1.1

 Southern 290 202 69.7 38 13.1 14 4.8 14 4.8 4 1.4 18 6.2

1

Of the 67,564 cases, 123 cases with no analogous guidelines were excluded from the table. Of the remaining 67,441 cases, 2,196 were excluded due

to missing departure or variance information.

Descriptions of variables used in this table are provided in Appendix A.

SOURCE: U.S. Sentencing Commission, Special Post-Booker Coding Project, BOOKER05 (data extracted February 22, 2006;

table prepared February 23, 2006). Summary numbers may not add up to their component parts due to rounding.

D-21

GUIDELINE GUIDELINE 

BELOW THE 

GUIDELINE 

BELOW THE 

RANGE RANGE

ABOVE THE 

RANGE

ABOVE THE 

RANGE RANGE RANGE

GUIDELINE GUIDELINE GUIDELINE 

WITHIN BELOW THE 

SENTENCED SPONSORED DEPARTURES OTHERWISE DEPARTURES OTHERWISE

GOVERNMENT
PRIMARY OFFENSE n

TOTAL 9,000 36.0 28.0 49.9

Murder 10 126.0 180.0 69.3

Manslaughter 0 -- -- --

Kidnapping/Hostage Taking 4 114.5 115.5 47.1

Sexual Abuse 6 34.5 18.5 35.4

Assault 11 42.0 18.0 31.4

Robbery 166 51.0 31.5 35.8

Arson 10 35.0 22.5 49.0

Drugs - Trafficking 5,754 50.0 39.0 45.8

Drugs - Communication Facility 63 2.9 18.0 87.5

Drugs - Simple Possession 10 25.3 10.0 40.7

Firearms 770 36.5 24.0 46.8

Burglary/B&E 1 -- -- --

Auto Theft 12 16.5 18.0 46.9

Larceny 117 5.0 10.0 66.7

Fraud 904 2.8 12.0 90.0

Embezzlement 15 0.0 12.0 100.0

Forgery/Counterfeiting 78 1.0 10.0 92.5

Bribery 52 6.0 15.5 77.5

Tax 81 0.0 10.0 100.0

Money Laundering 215 12.0 22.0 63.5

Racketeering/Extortion 153 30.0 30.0 51.1

Gambling/Lottery 16 0.0 8.0 100.0

Civil Rights 8 14.0 11.5 40.4

Immigration 284 8.3 9.0 50.0

Pornography/Prostitution 45 47.0 25.0 33.3

Prison Offenses 9 2.0 6.0 66.7

Administration of Justice Offenses 122 0.0 12.0 100.0

Environmental/Wildlife 13 0.0 10.0 100.0

National Defense 6 8.5 18.0 80.9

Antitrust 10 5.0 10.0 66.7

Food & Drug 6 0.0 12.0 99.9

Other Miscellaneous Offenses 49 2.0 15.0 86.7

1

Of the 67,564 cases, 9,402 received a substantial assistance departure. Of these, 9,061 had complete guideline application information. An additional

37 cases were excluded due to several logical criteria. Of the remaining 9,024 cases, 24 were excluded due to one or both of the following reasons: 

missing primary offense category (0) or missing sentence information (24).

2

Cases with guideline minimums of life or probation (i.e., sentence lengths of zero months) were included in the sentence average computations as 470

months and zero months respectively, but were excluded from measures of decrease in the table.

SOURCE: U.S. Sentencing Commission, Special Post-Booker Coding Project, BOOKER05 (data extracted February 22, 2006;

table prepared February 23, 2006). Summary numbers may not add up to their component parts due to rounding.

D-22

Median Median Decrease

Guideline Minimum

Sentence

in Months2

in Months From

Median Percent

Decrease From

Guideline Minimum

DEGREE OF DECREASE

FOR SUBSTANTIAL ASSISTANCE

SUBSTANTIAL ASSISTANCE CASES: DEGREE OF DEPARTURE 

FOR OFFENDERS IN EACH PRIMARY OFFENSE CATEGORY1

Cases Sentenced Subsequent to U.S. v. Booker with Data Available to USSC on February 22, 2006
PRIMARY OFFENSE n

TOTAL 5,810 24.0 9.0 27.3

Murder 3 57.0 40.0 41.0

Manslaughter 0 -- -- --

Kidnapping/Hostage Taking 1 -- -- --

Sexual Abuse 25 60.0 21.9 35.8

Assault 31 19.9 12.0 40.5

Robbery 24 73.5 22.0 25.4

Arson 2 -- -- --

Drugs - Trafficking 1,462 24.0 10.0 33.3

Drugs - Communication Facility 10 11.6 29.4 71.7

Drugs - Simple Possession 0 -- -- --

Firearms 213 30.0 12.0 26.2

Burglary/B&E 1 -- -- --

Auto Theft 1 -- -- --

Larceny 24 0.0 10.0 99.9

Fraud 107 6.0 10.0 59.9

Embezzlement 8 0.0 9.0 99.4

Forgery/Counterfeiting 17 6.8 10.0 50.2

Bribery 8 5.0 9.5 65.8

Tax 13 5.0 10.0 66.7

Money Laundering 30 14.0 7.5 50.3

Racketeering/Extortion 31 41.0 6.0 19.3

Gambling/Lottery 5 0.0 10.0 100.0

Civil Rights 0 -- -- --

Immigration 3,681 24.0 7.0 25.0

Pornography/Prostitution 30 41.0 17.0 23.7

Prison Offenses 8 10.5 5.5 31.9

Administration of Justice Offenses 34 10.0 9.6 47.5

Environmental/Wildlife 4 5.0 7.5 58.3

National Defense 4 24.0 22.0 56.6

Antitrust 1 -- -- --

Food & Drug 3 16.0 12.0 23.3

Other Miscellaneous Offenses 29 0.0 12.0 100.0

1

Of the 67,564 cases, 6,098 received a government sponsored downward departure. Of these, 5,867 had complete guideline application information.

An additional 45 cases were excluded due to several logical criteria. Of the remaining 5,822 cases, 12 were excluded due to one or both of the

following reasons: missing primary offense category (0) or missing sentence information (12).

2

Cases with guideline minimums of life or probation (i.e., sentence lengths of zero months) were included in the sentence average computations as 470

months and zero months respectively, but were excluded from measures of decrease in the table.

SOURCE: U.S. Sentencing Commission, Special Post-Booker Coding Project, BOOKER05 (data extracted February 22, 2006;

table prepared February 23, 2006). Summary numbers may not add up to their component parts due to rounding.

D-23

GOVERNMENT SPONSORED DOWNWARD DEPARTURE CASES: DEGREE OF 

DEPARTURE FOR OFFENDERS IN EACH PRIMARY OFFENSE CATEGORY1

Cases Sentenced Subsequent to U.S. v. Booker with Data Available to USSC on February 22, 2006

Sentence

in Months2

in Months From

DEGREE OF DECREASE

Median Median Decrease

Guideline Minimum

Median Percent

Decrease From

Guideline Minimum

FOR GOVERNMENT SPONSORED

 DOWNWARD DEPARTURE3
PRIMARY OFFENSE n

TOTAL 1,978 22.0 12.0 34.8

Murder 3 70.0 27.0 27.8

Manslaughter 4 24.0 11.0 26.8

Kidnapping/Hostage Taking 0 -- -- --

Sexual Abuse 9 18.0 9.0 19.6

Assault 30 12.0 11.0 50.0

Robbery 63 51.0 20.0 25.8

Arson 1 -- -- --

Drugs - Trafficking 655 60.0 17.0 27.5

Drugs - Communication Facility 9 12.0 18.0 50.0

Drugs - Simple Possession 3 12.0 22.0 67.5

Firearms 274 22.5 11.0 34.7

Burglary/B&E 1 -- -- --

Auto Theft 1 -- -- --

Larceny 46 0.0 7.5 100.0

Fraud 202 1.0 10.0 93.4

Embezzlement 18 2.5 9.0 84.2

Forgery/Counterfeiting 23 3.0 10.0 85.7

Bribery 4 0.0 7.0 100.0

Tax 38 0.0 10.0 100.0

Money Laundering 28 12.5 10.5 48.5

Racketeering/Extortion 18 24.0 12.0 34.6

Gambling/Lottery 2 -- -- --

Civil Rights 2 -- -- --

Immigration 408 24.0 9.0 27.2

Pornography/Prostitution 51 18.0 21.0 48.1

Prison Offenses 8 21.0 5.0 22.4

Administration of Justice Offenses 45 0.1 10.0 98.7

Environmental/Wildlife 2 -- -- --

National Defense 2 -- -- --

Antitrust 1 -- -- --

Food & Drug 0 -- -- --

Other Miscellaneous Offenses 27 1.0 10.0 96.7

1

Of the 67,564 cases, 2,101 received an other downward departure. Of these, 1,982 had complete guideline application information. An additional one cases

were excluded due to several logical criteria. Of the remaining 1,981 cases, three were excluded due to one or both of the following reasons: missing

primary offense category (0) or missing sentence information (3).

2

Cases with guideline minimums of life or probation (i.e., sentence lengths of zero months) were included in the sentence average computations as 470

months and zero months respectively, but were excluded from measures of decrease in the table.

SOURCE: U.S. Sentencing Commission, Special Post-Booker Coding Project, BOOKER05 (data extracted February 22, 2006;

table prepared February 23, 2006). Summary numbers may not add up to their component parts due to rounding.

D-24

Median Median Decrease

Guideline Minimum

Sentence

in Months2

in Months From

Median Percent

Decrease From

Guideline Minimum

DEGREE OF DECREASE FOR 

OTHER DOWNWARD DEPARTURE3

OTHER DOWNWARD DEPARTURE CASES: DEGREE OF DEPARTURE 

FOR OFFENDERS IN EACH PRIMARY OFFENSE CATEGORY1

Cases Sentenced Subsequent to U.S. v. Booker with Data Available to USSC on February 22, 2006
PRIMARY OFFENSE n

TOTAL 5,656 26.0 12.0 33.6

Murder 9 97.0 24.5 20.2

Manslaughter 3 20.0 10.0 33.3

Kidnapping/Hostage Taking 2 -- -- --

Sexual Abuse 30 35.0 18.0 33.3

Assault 45 12.0 9.0 44.4

Robbery 127 52.0 15.0 20.5

Arson 2 -- -- --

Drugs - Trafficking 2,065 60.0 19.0 27.0

Drugs - Communication Facility 50 13.0 10.5 36.3

Drugs - Simple Possession 14 10.4 8.1 55.5

Firearms 809 30.0 12.0 29.4

Burglary/B&E 7 6.0 6.0 52.4

Auto Theft 6 30.0 7.0 28.2

Larceny 131 0.0 6.0 100.0

Fraud 646 5.0 9.0 67.5

Embezzlement 65 0.0 8.0 99.6

Forgery/Counterfeiting 84 2.3 8.0 80.6

Bribery 25 0.0 10.0 100.0

Tax 120 1.0 10.0 87.5

Money Laundering 124 14.0 12.0 51.4

Racketeering/Extortion 54 45.0 18.0 36.8

Gambling/Lottery 8 0.0 6.0 100.0

Civil Rights 7 28.0 14.5 33.7

Immigration 851 19.0 9.0 33.2

Pornography/Prostitution 161 26.0 17.0 35.1

Prison Offenses 22 13.0 8.0 40.6

Administration of Justice Offenses 93 6.0 10.0 66.7

Environmental/Wildlife 17 0.0 6.0 100.0

National Defense 3 24.0 22.0 51.4

Antitrust 0 -- -- --

Food & Drug 3 5.0 7.0 58.3

Other Miscellaneous Offenses 73 0.0 10.0 100.0

1

Of the 67,564 cases, 6,088 were otherwise below the guideline range and did not cite reasons for departure limited to, and affirmatively and specifically

identified in the provisions, policy statements, or commentary of the federal Guidelines Manual. Of these, 5,678 had complete guideline application

information. An additional eight cases were excluded due to several logical criteria. Of the remaining 5,670 cases, 14 were excluded due to one or both of

the following reasons: missing primary offense category (0) or missing sentence information (14).

2

Cases with guideline minimums of life or probation (i.e., sentence lengths of zero months) were included in the sentence average computations as 470

months and zero months respectively, but were excluded from measures of decrease in the table.

SOURCE: U.S. Sentencing Commission, Special Post-Booker Coding Project, BOOKER05 (data extracted February 22, 2006;

table prepared February 23, 2006). Summary numbers may not add up to their component parts due to rounding.

D-25

DEGREE OF DECREASE 

GUIDELINE RANGE3

OTHERWISE BELOW GUIDELINE RANGE CASES: DEGREE OF VARIANCE 

FOR OFFENDERS IN EACH PRIMARY OFFENSE CATEGORY1

Cases Sentenced Subsequent to U.S. v. Booker with Data Available to USSC on February 22, 2006

Median Percent

Decrease From

Guideline Minimum

FOR OTHERWISE BELOW

Median Median Decrease

Guideline Minimum

Sentence

in Months2

in Months From
PRIMARY OFFENSE n

TOTAL 168 60.0 14.0 33.3

Murder 3 228.0 105.0 77.8

Manslaughter 4 96.0 18.0 23.1

Kidnapping/Hostage Taking 0 -- -- --

Sexual Abuse 4 145.5 58.5 56.5

Assault 7 63.0 12.0 72.8

Robbery 3 150.0 35.0 31.4

Arson 0 -- -- --

Drugs - Trafficking 20 42.0 7.5 21.1

Drugs - Communication Facility 0 -- -- --

Drugs - Simple Possession 2 -- -- --

Firearms 31 78.0 21.0 25.0

Burglary/B&E 1 -- -- --

Auto Theft 0 -- -- --

Larceny 2 -- -- --

Fraud 23 48.0 14.0 47.4

Embezzlement 0 -- -- --

Forgery/Counterfeiting 4 48.0 22.0 120.8

Bribery 0 -- -- --

Tax 0 -- -- --

Money Laundering 0 -- -- --

Racketeering/Extortion 1 -- -- --

Gambling/Lottery 0 -- -- --

Civil Rights 0 -- -- --

Immigration 43 18.0 6.0 26.3

Pornography/Prostitution 13 180.0 63.0 58.7

Prison Offenses 1 -- -- --

Administration of Justice Offenses 4 24.0 6.0 50.0

Environmental/Wildlife 0 -- -- --

National Defense 0 -- -- --

Antitrust 0 -- -- --

Food & Drug 0 -- -- --

Other Miscellaneous Offenses 2 -- -- --

1

Of the 67,564 cases, 175 received an upward departure. Of these, 170 had complete guideline application information. An additional one cases

were excluded due to several logical criteria. Of the remaining 169 cases, one were excluded due to one or both of the following reasons: missing

primary offense category (0) or missing sentence information (1).

2

Cases with guideline maximums of life or probation (i.e., sentence lengths of zero months) were included in the sentence average computations as 470

months and zero months respectively, but were excluded from measures of decrease in the table.

SOURCE: U.S. Sentencing Commission, Special Post-Booker Coding Project, BOOKER05 (data extracted February 22, 2006;

table prepared February 23, 2006). Summary numbers may not add up to their component parts due to rounding.

D-26

Median Median Increase

Guideline Maximum

Sentence

in Months2

in Months From

Median Percent

Increase From

Guideline Maximum

DEGREE OF INCREASE

FOR UPWARD DEPARTURE3

UPWARD DEPARTURE CASES: DEGREE OF DEPARTURE 

FOR OFFENDERS IN EACH PRIMARY OFFENSE CATEGORY1

Cases Sentenced Subsequent to U.S. v. Booker with Data Available to USSC on February 22, 2006
PRIMARY OFFENSE n

TOTAL 761 59.0 14.0 37.9

Murder 6 234.0 56.0 32.1

Manslaughter 4 56.5 14.5 32.7

Kidnapping/Hostage Taking 0 -- -- --

Sexual Abuse 18 196.0 37.5 33.7

Assault 28 60.0 25.5 45.6

Robbery 18 174.0 33.5 31.0

Arson 3 84.0 13.0 50.0

Drugs - Trafficking 107 80.0 20.0 35.7

Drugs - Communication Facility 4 29.1 2.1 21.0

Drugs - Simple Possession 13 12.0 6.0 100.0

Firearms 132 75.0 16.0 32.4

Burglary/B&E 0 -- -- --

Auto Theft 4 78.0 37.5 95.2

Larceny 34 30.0 10.0 71.4

Fraud 125 45.0 9.0 33.3

Embezzlement 3 36.0 12.0 46.3

Forgery/Counterfeiting 15 57.0 14.0 73.2

Bribery 0 -- -- --

Tax 6 36.0 9.0 38.1

Money Laundering 11 108.0 15.9 37.9

Racketeering/Extortion 15 84.0 15.0 24.1

Gambling/Lottery 0 -- -- --

Civil Rights 0 -- -- --

Immigration 143 36.0 8.0 37.0

Pornography/Prostitution 38 120.0 33.0 40.6

Prison Offenses 7 40.0 7.0 21.2

Administration of Justice Offenses 14 28.5 8.0 60.7

Environmental/Wildlife 1 -- -- --

National Defense 0 -- -- --

Antitrust 0 -- -- --

Food & Drug 0 -- -- --

Other Miscellaneous Offenses 12 24.0 9.5 50.0

1

Of the 67,564 cases, 859 were otherwise below the guideline range and did not cite reasons for departure limited to, and affirmatively and specifically

identified in the provisions, policy statements, or commentary of the federal Guidelines Manual. Of these, 788 had complete guideline application

information. An additional 27 cases were excluded due to several logical criteria. Of the remaining 761 cases, zero were excluded due to one or both of

the following reasons: missing primary offense category (0) or missing sentence information (0).

2

Cases with guideline maximums of life or probation (i.e., sentence lengths of zero months) were included in the sentence average computations as 470

months and zero months respectively, but were excluded from measures of decrease in the table.

SOURCE: U.S. Sentencing Commission, Special Post-Booker Coding Project, BOOKER05 (data extracted February 22, 2006;

table prepared February 23, 2006). Summary numbers may not add up to their component parts due to rounding.

D-27

DEGREE OF INCREASE

GUIDELINE RANGE3

OTHERWISE ABOVE GUIDELINE RANGE CASES: DEGREE OF VARIANCE 

FOR OFFENDERS IN EACH PRIMARY OFFENSE CATEGORY1

Cases Sentenced Subsequent to U.S. v. Booker with Data Available to USSC on February 22, 2006

Median Percent

Increase From

Guideline Maximum

FOR OTHERWISE ABOVE

Median Median Increase

Guideline Maximum

Sentence

in Months2

in Months From
APPENDIX E 
E-1 

Appendix E-11

Sentences Relative to the Guideline Range for All Cases and Selected Guidelines 

Pre-PROTECT Act 

(10/1/02-4/30/03) n 

Within/ 

Gov’t2

% Upward 

Departure 

% Downward 

Departure 

All Guidelines 37,699 90.6 0.8 8.6 

Theft/Fraud (§2B1.1) 3,910 93.4 0.8 5.8 

Drug Trafficking (§2D1.1) 14,169 92.6 0.2 7.3 

Firearms (§2K2.1) 3,121 88.8 1.0 10.2 

Immigration (§2L1.1) 1,268 86.4 0.5 13.1 

Unlawful Entry (§2L1.2) 5,066 88.0 0.4 11.6 

Post-PROTECT Act 

(5/1/03-6/24/04) n 

Within/ 

Gov’t 

 % Upward 

Departure 

% Downward 

Departure 

All Guidelines 75,723 93.7 0.8 5.5 

Theft/Fraud (§2B1.1) 8,463 94.0 0.9 5.1 

Drug Trafficking (§2D1.1) 27,399 95.1 0.2 4.7 

Firearms (§2K2.1) 7,384 92.3 1.3 6.5 

Immigration (§2L1.1) 2,516 92.8 0.6 6.6 

Unlawful Entry (§2L1.2) 11,069 93.3 0.3 6.4 

Post-Booker 

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

Within/ 

Gov’t 

 % Upward 

Departure 

% Downward 

Departure % Booker

All Guidelines 65,368 85.9 1.6 3.2 9.3 

Theft/Fraud (§2B1.1) 6,597 83.0 2.8 3.5 10.7 

Drug Trafficking (§2D1.1) 22,828 86.5 0.7 3.1 9.7 

Firearms (§2K2.1) 6,423 82.5 2.4 4.1 11.1 

Immigration (§2L1.1) 3,023 88.5 2.4 2.9 6.2 

Unlawful Entry (§2L1.2) 10,205 89.5 1.0 3.2 6.3 

 

1

 Missing information (departure status) reduces the total number of cases. 

2 The “Within/Gov’t” category includes within range sentences and government sponsored downward 

departures (Substantial Assistance under USSG §5K1.1, EDP under USSG § 5K3.1 and other governmentsponsored downward departures). See Appendix C for further descriptions of these categories. 

SOURCE: U.S. Sentencing Commission 2006 Booker Report Datafiles.
E-2 

Appendix E-2

Average Sentence Imposed and Average Guideline Minimum 

Quarterly Data for §2B1.1 Offenders

FY2002 – Post-Booker

0

10

20

30

40

50

FY2002 FY2003 FY2004 BOOKER

Average Sentence

Average Guideline Minimum

Cases with guideline minimums of life or probation (i.e., sentence lengths of zero months) were included in the sentence average computations as 470 

months and zero months respectively. Guideline minimums account for applicable statutory mandatory penalties. Only cases with a single guideline 

computation were included.

Cases sentenced on or before December 31, 2005 (last full quarter of post-Booker data) were included in this figure. 

SOURCE: U.S. Sentencing Commission 2002-2003 Datafiles, USSCFY2002-USSCFY2003. 2006 Booker Report Datafiles.

Average (Mean)

Blakely

Appendix E-3

Average Sentence Imposed and Average Guideline Minimum 

Quarterly Data for §2D1.1 Offenders

FY2000 – Post-Booker

0

20

40

60

80

100

120

FY2000 FY2001 FY2002 FY2003 FY2004 BOOKER

Average Sentence

Average Guideline Minimum

Cases with guideline minimums of life or probation (i.e., sentence lengths of zero months) were included in the sentence average computations as 470 

months and zero months respectively. Guideline minimums account for applicable statutory mandatory penalties. Also includes §2D1.2 offenders. Only 

cases with a single guideline computation were included.

Cases sentenced on or before December 31, 2005 (last full quarter of post-Booker data) were included in this figure. 

SOURCE: U.S. Sentencing Commission 2000-2003 Datafiles, USSCFY2000-USSCFY2003. 2006 Booker Report Datafiles.

Average (Mean)

Blakely
E-3 

Appendix E-4

Average Sentence Imposed and Average Guideline Minimum 

Quarterly Data for §2K2.1 Offenders

FY2000 – Post-Booker

0

10

20

30

40

50

60

70

FY2000 FY2001 FY2002 FY2003 FY2004 BOOKER

Average Sentence

Average Guideline Minimum

Cases with guideline minimums of life or probation (i.e., sentence lengths of zero months) were included in the sentence average computations as 470 

months and zero months respectively. Guideline minimums account for applicable statutory mandatory penalties. Only cases with a single guideline 

computation were included.

Cases sentenced on or before December 31,2005 (last full quarter of post-Booker data) were included in this figure. 

SOURCE: U.S. Sentencing Commission 2000-2003 Datafiles, USSCFY2000-USSCFY2003. 2006 Booker Report Datafiles.

Average (Mean)

Blakely

Appendix E-5

Average Sentence Imposed and Average Guideline Minimum 

Quarterly Data for §2L1.1 Offenders

FY2000 – Post-Booker

0

10

20

30

40

50

FY2000 FY2001 FY2002 FY2003 FY2004 BOOKER

Average Sentence

Average Guideline Minimum

Cases with guideline minimums of life or probation (i.e., sentence lengths of zero months) were included in the sentence average computations as 470 

months and zero months respectively. Guideline minimums account for applicable statutory mandatory penalties. Only cases with a single guideline 

computation were included.

Cases sentenced on or before December 31, 2005 (last full quarter of post-Booker data) were included in this figure. 

SOURCE: U.S. Sentencing Commission 2000-2003 Datafiles, USSCFY2000-USSCFY2003. 2006 Booker Report Datafiles.

Average (Mean)

Blakely
E-4 

Appendix E-6

Average Sentence Imposed and Average Guideline Minimum 

Quarterly Data for §2L1.2 Offenders

FY2000 – Post-Booker

0

10

20

30

40

50

FY2000 FY2001 FY2002 FY2003 FY2004 BOOKER

Average Sentence

Average Guideline Minimum

Cases with guideline minimums of life or probation (i.e., sentence lengths of zero months) were included in the sentence average computations as 470 

months and zero months respectively. Guideline minimums account for applicable statutory mandatory penalties. Only cases with a single guideline 

computation were included.

Cases sentenced on or before December 31, 2005 (last full quarter of post-Booker data) were included in this figure. 

SOURCE: U.S. Sentencing Commission 2000-2003 Datafiles, USSCFY2000-USSCFY2003. 2006 Booker Report Datafiles.

Average (Mean)

Blakely
E-5 

Appendix E-7 

Cases with Sentence Reductions 

for Cooperation Without A Motion in Each Federal Judicial District

Post-Booker

Cooperation 

 Without Motion

CIRCUIT 

District TOTAL n %

TOTAL 9,660 258 100.0 

 

DC CIRCUIT 

District of Columbia 117 2 0.8 

 

FIRST CIRCUIT

Maine 51 0 0.0 

Massachusetts 48 4 1.6 

New Hampshire 50 0 0.0 

Puerto Rico 34 1 0.4 

Rhode Island 4 0 0.0 

 

SECOND CIRCUIT

Connecticut 103 3 1.2 

New York 

 Eastern 285 15 5.8 

 Northern 108 1 0.4 

 Southern 175 6 2.3 

 Western 177 0 0.0 

Vermont 62 1 0.4 

 

THIRD CIRCUIT

Delaware 9 0 0.0 

New Jersey 291 5 1.9 

Pennsylvania 

 Eastern 308 14 5.4 

 Middle 211 3 1.2 

 Western 51 0 0.0 

Virgin Islands 5 0 0.0 

 

FOURTH CIRCUIT

Maryland 169 1 0.4 

North Carolina 

 Eastern 230 6 2.3 

 Middle 56 3 1.2 

 Western 149 5 1.9 

South Carolina 162 6 2.3 

Virginia 

 Eastern 93 6 2.3 

 Western 150 2 0.8 

West Virginia 

 Northern 27 0 0.0 

 Southern 35 0 0.0 
E-6 

 Appendix E-7 (cont.)

Cooperation Without Motion

District TOTAL n %

FIFTH CIRCUIT 

Louisiana 

 Eastern 39 1 0.4 

 Middle 44 0 0.0 

 Western 39 5 1.9 

Mississippi 

 Northern 31 0 0.0 

 Southern 33 2 0.8 

Texas 

 Eastern 74 2 0.8 

 Northern 105 4 1.6 

 Southern 469 32 12.4 

 Western 366 6 2.3 

 

SIXTH CIRCUIT

Kentucky 

 Eastern 181 0 0.0 

 Western 71 2 0.8 

Michigan 

 Eastern 205 6 2.3 

 Western 65 3 1.2 

Ohio 

 Northern 226 2 0.8 

 Southern 190 0 0.0 

Tennessee 

 Eastern 146 2 0.8 

 Middle 55 0 0.0 

 Western 125 1 0.4 

 

SEVENTH CIRCUIT

Illinois 

 Central 75 2 0.8 

 Northern 226 9 3.5 

 Southern 13 1 0.4 

Indiana 

 Northern 80 0 0.0 

 Southern 59 1 0.4 

Wisconsin 

 Eastern 55 4 1.6 

 Western 8 1 0.4 

 
E-7 

Appendix E-7 (cont.) 

 

Cooperation Without Motion

District TOTAL n %

EIGHTH CIRCUIT 

Arkansas 

 Eastern 33 0 0.0 

 Western 38 0 0.0 

Iowa 

 Northern 50 7 2.7 

 Southern 73 5 1.9 

Minnesota 103 10 3.9 

Missouri 

 Eastern 175 0 0.0 

 Western 147 4 1.6 

Nebraska 34 2 0.8 

North Dakota 39 0 0.0 

South Dakota 22 1 0.4 

 

NINTH CIRCUIT

Alaska 30 1 0.4 

Arizona 235 2 0.8 

California 

 Central 42 0 0.0 

 Eastern 136 1 0.4 

 Northern 81 0 0.0 

 Southern 132 4 1.6 

Guam 43 0 0.0 

Hawaii 144 6 2.3 

Idaho 65 0 0.0 

Montana 46 0 0.0 

Nevada 28 2 0.8 

Northern Mariana Islands 4 0 0.0 

Oregon 95 4 1.6 

Washington 

 Eastern 47 2 0.8 

 Western 107 4 1.6 

 

TENTH CIRCUIT

Colorado 167 0 0.0 

Kansas 101 2 0.8 

New Mexico 75 2 0.8 

Oklahoma 

 Eastern 10 0 0.0 

 Northern 21 0 0.0 

 Western 18 1 0.4 

Utah 80 2 0.8 

Wyoming 32 0 0.0 

 
E-8 

Appendix E-7 (cont.)

Cooperation Without Motion

District TOTAL n %

ELEVENTH CIRCUIT 

Alabama 

 Middle 70 0 0.0 

 Northern 108 0 0.0 

 Southern 71 0 0.0 

Florida 

 Middle 363 4 1.6 

 Northern 62 5 1.9 

 Southern 194 11 4.3 

Georgia 

 Middle 73 0 0.0 

 Northern 89 5 1.9 

 Southern 37 1 0.4 

SOURCE: U.S. Sentencing Commission 2006 Booker Report Datafiles. 
E-9 

Appendix E-8 

Cases with Sentence Reductions for Cooperation 

With and Without A Government Motion for Each Offense Type 

Post-Booker

USSG §5K1.1 

Motion

Cooperation 

Without Motion

Offense Type TOTAL n % n %

TOTAL 9,657 9,399 100.0 258 100.0 

Murder 10 10 0.1 0 0.0 

Kidnapping 4 4 0.0 0 0.0 

Sex Abuse 7 6 0.1 1 0.4 

Assault 12 11 0.1 1 0.4 

Robbery 171 168 1.8 3 1.2 

Arson 10 10 0.1 0 0.0 

Drug Trafficking 6,090 5,944 63.2 146 56.6 

Drug Comm. Fac. 65 63 0.7 2 0.8 

Drug Simple Possession 11 11 0.1 0 0.0 

Firearms 873 853 9.1 20 7.8 

Burglary 1 1 0.0 0 0.0 

Auto Theft 14 14 0.2 0 0.0 

Larceny 129 126 1.3 3 1.2 

Fraud 991 959 10.2 32 12.4 

Embezzlement 20 16 0.2 4 1.6 

Forgery 86 82 0.9 4 1.6 

Bribery 54 53 0.6 1 0.4 

Tax Offenses 91 85 0.9 6 2.3 

Money Laundering 225 222 2.4 3 1.2 

Racketeering 160 159 1.7 1 0.4 

Gambling 17 17 0.2 0 0.0 

Civil Rights 8 8 0.1 0 0.0 

Immigration 322 299 3.2 23 8.9 

Porn./Prost. 50 48 0.5 2 0.8 

Prison Offenses 12 11 0.1 1 0.4 

Admin. of Justice 137 132 1.4 5 1.9 

Enviro./Fish&Wildlife 13 13 0.1 0 0.0 

National Defense 7 7 0.1 0 0.0 

Anti Trust 10 10 0.1 0 0.0 

Food & Drug 6 6 0.1 0 0.0 

Other 51 51 0.5 0 0.0 

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

 
E-10 

Appendix E-9 

Reasons Cited for Below-Range Sentences 

Imposed for Cooperation A Without Motion 

(Where More Than One Reason Was Cited by the Court) 

Reasons Number Percent

Cooperation - Motion unknown 114 13.5 

(Not 5K1.1) Cooperation without motion 113 13.4 

18 USC 3553(a) 77 9.1 

Criminal History Issues 63 7.5 

Judge specifies presence of variance 59 7.0 

(5H1.6) Family ties and responsibilities 41 4.9 

(5K2.0) General aggravating and mitigating circumstances 33 3.9 

Rehabilitation 24 2.9 

Nature & circumstances of offense/hist. of def. pursuant to 18 USC 3553 (a)(1) 22 2.6 

Mule/Role in the Offense 20 2.4 

(5H1.1) Age 18 2.1 

Language from 18 USC 3553(a) statute 18 2.1 

Acceptance of responsibility 14 1.7 

Reasonableness 14 1.7 

Reduce disparity 14 1.7 

(5H1.5) Previous employment record 11 1.3 

(5H1.4) Drug dependence and alcohol abuse 9 1.1 

(5H1.3) Mental and emotional conditions 8 0.9 

(5H1.4) Physical condition 8 0.9 

(5K2.20) Aberrant Behavior 8 0.9 

5K1.1 Substantial Assistance without government motion 8 0.9 

Advisory nature of the guidelines 7 0.8 

General guideline adequacy issues 7 0.8 

Reflect seriousness of offense/promote respect for law/just punishment 7 0.8 

Restitution 7 0.8 

US v Booker/ US v Fanfan 7 0.8 

Deterrence 6 0.7 

Remorse 6 0.7 

Adequate punishment to meet purposes of sentencing 5 0.6 

Avoid unwarranted sentencing disparity among defendants 5 0.6 

(5H1.11) Military record/charitable Works/good deeds 4 0.5 

Afford adequate deterrence to criminal conduct 4 0.5 

Provide defendant with educational/vocational training/medical care/etc. 4 0.5 

(5H1.2) Educational and vocational skills 3 0.4 

(5H1.6) Community ties 3 0.4 

Defendant’s positive background/good character 3 0.4 

Insufficient documentation provided on SOR to determine reason 3 0.4 

Low likelihood of recidivism 3 0.4 

Protect public from further crimes 3 0.4 

Other3 59 7.0 

Total 842 100.0 

 

3

 The “Other” category includes all reasons provided fewer than three times among relevant cases. 

SOURCE: U.S. Sentencing Commission 2006 Booker Report Datafiles. 
E-11 

Appendix E-10 

Demographic Information for Criminal Sexual Abuse Offenders 

Post-Booker

 

USSG §2A3.1 

Criminal Sexual 

Abuse

USSG §2A3.2 

Sexual Abuse of 

a Minor

USSG §2A3.4 

Abusive Sexual 

Contact

n % n % n %

Gender 

Male 144 99.3 130 97.0 28 96.5 

Female 1 0.7 4 3.0 1 3.5 

Race 

White 43 29.7 60 44.8 5 16.7 

Black 4 2.8 10 7.5 0 0.0 

Hispanic 8 5.5 11 8.2 1 3.3 

Other 90 62.1 53 39.5 24 80.0 

Citizenship 

U.S. 141 97.2 132 98.5 28 96.5 

Non-U.S. 4 2.8 2 1.5 1 3.5 

Age 

Under 21 11 7.6 9 6.7 5 16.8 

21-25 25 17.2 36 26.9 4 13.3 

26-30 23 15.9 19 14.2 1 3.3 

31-35 17 11.7 13 9.7 6 20.0 

36-40 20 13.8 16 11.9 4 13.3 

41-50 29 20.0 27 20.1 4 13.3 

Over 50 20 13.8 14 10.5 6 20.0 

Education 

< H.S. 60 41.4 39 29.1 13 46.5 

H.S. Grad. 46 31.7 50 37.3 11 39.3 

Some Coll. 28 19.3 35 26.1 2 7.1 

Coll. Grad. 11 7.6 10 7.5 2 7.1 

Criminal History 

Category I 100 69.0 102 76.1 19 63.4 

Category II 22 15.2 15 11.2 6 20.0 

Category III 6 4.1 4 3.0 4 13.3 

Category IV 3 2.1 2 1.5 0 0.0 

Category V 9 6.2 7 5.2 1 3.3 

Category VI 5 3.4 4 3.0 0 0.0 

SOURCE: U.S. Sentencing Commission 2006 Booker Report Datafiles. 
E-12 

Appendix E-11 

Demographic Information for Sexual Exploitation Offenders 

Post-Booker 

USSG §2G2.1

Exploitation of a 

Minor

USSG §2G2.2

Trafficking Child 

Pornography

USSG §2G2.4

Possession of Child 

Pornography

n % n % n %

Gender 

Male 94 95.9 525 99.6 393 99.2

Female 4 4.1 2 0.4 3 0.8

Race 

White 91 92.9 497 94.5 364 91.9

Black 4 4.1 6 1.1 3 0.8

Hispanic 1 1.0 18 3.4 22 5.6

Other 2 2.0 5 1.0 7 1.8

Citizenship 

U.S. 95 96.9 518 98.3 385 97.2

Non-U.S. 3 3.1 9 1.7 11 2.8

Age 

Under 21 1 1.0 8 1.5 4 1.0

21-25 4 4.1 49 9.3 37 9.3

26-30 14 14.3 57 10.9 44 11.1

31-35 15 15.3 74 14.1 44 11.1

36-40 16 16.3 74 14.1 52 13.1

41-50 32 32.7 131 25.0 110 27.8

Over 50 16 16.3 132 25.1 105 26.5

Education 

< H.S. 12 12.4 48 9.2 30 7.6

H.S. Grad. 35 36.1 183 35.1 121 30.9

Some Coll. 39 40.2 193 37.0 132 33.7

Coll. Grad. 11 11.3 97 18.6 109 27.8

Criminal History 

Category I 56 57.1 438 83.1 330 83.3

Category II 13 13.3 36 6.8 29 7.3

Category III 7 7.1 29 5.5 18 4.6

Category IV 6 6.1 11 2.1 11 2.8

Category V 8 8.2 10 1.9 4 1.0

Category VI 8 8.2 3 0.6 4 1.0

SOURCE: U.S. Sentencing Commission 2006 Booker Report Datafiles. 
E-13 

Appendix E-12 

Demographic Information for Booker Report Datafiles 

Pre-PROTECT Act 

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

Post-PROTECT Act 

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

Post-Booker

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

 

Number Percent Number Percent Number Percent

Gender 

 Male 35,245 86.8 68,062 86.4 57,986 86.8

 Female 5,369 13.2 10,735 13.6 8,804 13.2

 Missing 303 - 2,409 - 774 -

 

Race 

 White 12,104 30.7 23,418 30.3 18,735 28.8

 Black 9,317 23.6 18,184 23.6 15,695 24.1

 Hispanic 16,657 42.2 32,536 42.1 27,719 42.6

 Other 1,363 3.5 3,077 4.0 2,936 4.5

 Missing 1,476 - 3,991 - 2,479 -

 

Citizenship 

 U.S. Citizen 25,546 65.3 49,467 64.4 41,381 63.5

 Non-Citizen 13,551 34.7 27,366 35.6 23,782 36.5

 Missing 1,820 - 4,373 - 2,401 -

 

Education 

 Less than High School 17,534 47.2 35,143 48.4 29,309 47.5

 High School 11,142 30.0 21,567 29.7 19,038 30.9

 Some College 6,337 17.1 11,940 16.4 9,764 15.8

 College Graduate 2,145 5.8 4,026 5.5 3,578 5.8

 Missing 3,759 - 8,530 - 5,875 -

 

Age 

 Less Than 21 Years 1,889 4.8 3,537 4.5 2,464 3.7

 21 to 25 Years 7,351 18.5 14,410 18.3 11,200 16.9

 26 to 30 Years 8,130 20.5 16,142 20.5 13,534 20.5

 31 to 35 Years 6,918 17.4 13,911 17.7 11,951 18.1

 36 to 40 Years 5,410 13.6 10,753 13.7 9,149 13.8

 41 to 50 Years 6,594 16.6 13,133 16.7 11,920 18.0

 Greater Than 50 Years 3,459 8.7 6,842 8.7 5,915 8.9

 Missing 1,166 - 2,478 - 1,431 -

SOURCE: U.S. Sentencing Commission 2006 Booker Report Datafiles. 
E-14 

Appendix E-13

First Offenders 

Sentences Relative to the Guideline Range for Each Judicial District 

Post-Booker

Within-Range

Upward 

Departure

Government 

Sponsored 

Downward 

CIRCUIT Departure Booker

District TOTAL n % n % n % n % n %

TOTAL 15,637 9,389 60.0 186 1.2 3,683 23.6 563 3.6 1,816 11.6

 

DC CIRCUIT 

District of Columbia 104 54 51.9 0 0.0 38 36.5 2 1.9 10 9.6

FIRST CIRCUIT

Maine 58 41 70.7 0 0.0 15 25.9 0 0.0 2 3.5

Massachusetts 115 62 53.9 1 0.9 17 14.8 8 7.0 27 23.5

New Hampshire 32 19 59.4 0 0.0 8 25.0 2 6.3 3 9.4

Puerto Rico 259 197 76.1 5 1.9 26 10.0 6 2.3 25 9.7

Rhode Island 21 17 81.0 0 0.0 1 4.8 0 0.0 3 14.3

 

SECOND CIRCUIT

Connecticut 123 54 43.9 2 1.6 29 23.6 24 19.5 14 11.4

New York 

 Eastern 529 170 32.1 7 1.3 147 27.8 71 13.4 134 25.3

 Northern 90 45 50.0 1 1.1 28 31.1 6 6.7 10 11.1

 Southern 507 294 58.0 1 0.2 89 17.6 27 5.3 96 18.9

 Western 134 83 61.9 0 0.0 38 28.4 0 0.0 13 9.7

Vermont 50 27 54.0 0 0.0 17 34.0 4 8.0 2 4.0

 

THIRD CIRCUIT

Delaware 40 22 55.0 0 0.0 4 10.0 2 5.0 12 30.0

New Jersey 314 148 47.1 2 0.6 106 33.8 15 4.8 43 13.7

Pennsylvania 

 Eastern 241 87 36.1 1 0.4 92 38.2 3 1.2 58 24.1

 Middle 89 41 46.1 1 1.1 29 32.6 3 3.4 15 16.9

 Western 81 44 54.3 0 0.0 15 18.5 5 6.2 17 21.0

Virgin Islands 69 58 84.1 0 0.0 4 5.8 1 1.5 6 8.7

 

FOURTH CIRCUIT

Maryland 129 48 37.2 1 0.8 42 32.6 4 3.1 34 26.4

North Carolina 

 Eastern 109 64 58.7 1 0.9 32 29.4 3 2.8 9 8.3

 Middle 53 37 69.8 1 1.9 9 17.0 0 0.0 6 11.3

 Western 61 34 55.7 0 0.0 21 34.4 1 1.6 5 8.2

South Carolina 183 114 62.3 0 0.0 33 18.0 9 4.9 27 14.8

Virginia 

 Eastern 318 240 75.5 2 0.6 27 8.5 5 1.6 44 13.8

 Western 100 61 61.0 2 2.0 25 25.0 1 1.0 11 11.0

West Virginia 

 Northern 30 22 73.3 0 0.0 1 3.3 2 6.7 5 16.7

 Southern 51 36 70.6 1 2.0 8 15.7 0 0.0 6 11.8

 
E-15 

Within-Range

Upward 

Departure

Government 

Sponsored 

Downward 

CIRCUIT Departure Booker

District TOTAL n % n % n % n % n %

FIFTH CIRCUIT 

Louisiana 

 Eastern 100 73 73.0 2 2.0 11 11.0 5 5.0 9 9.0

 Middle 37 23 62.2 1 2.7 8 21.6 0 0.0 5 13.5

 Western 93 69 74.2 2 2.2 8 8.6 5 5.4 9 9.7

Mississippi 

 Northern 21 14 66.7 0 0.0 7 33.3 0 0.0 0 0.0

 Southern 74 55 74.3 1 1.4 9 12.2 3 4.1 6 8.1

Texas 

 Eastern 118 90 76.3 1 0.9 16 13.6 1 0.9 10 8.5

 Northern 219 150 68.5 7 3.2 32 14.6 5 2.3 25 11.4

 Southern 1,296 843 65.1 7 0.5 294 22.7 40 3.1 112 8.6

 Western 1,192 960 80.5 16 1.3 138 11.6 17 1.4 61 5.1

 

SIXTH CIRCUIT

Kentucky 

 Eastern 89 51 57.3 1 1.1 31 34.8 1 1.1 5 5.6

 Western 75 59 78.7 0 0.0 14 18.7 0 0.0 2 2.7

Michigan 

 Eastern 225 100 44.4 4 1.8 69 30.7 13 5.8 39 17.3

 Western 67 39 58.2 1 1.5 6 9.0 5 7.5 16 23.9

Ohio 

 Northern 222 122 55.0 3 1.4 57 25.7 5 2.3 35 15.8

 Southern 123 62 50.4 4 3.3 42 34.2 1 0.8 14 11.4

Tennessee 

 Eastern 96 50 52.1 4 4.2 27 28.1 0 0.0 15 15.6

 Middle 48 21 43.8 0 0.0 15 31.3 3 6.3 9 18.8

 Western 94 57 60.6 0 0.0 25 26.6 0 0.0 12 12.8

 

SEVENTH CIRCUIT

Illinois 

 Central 63 48 76.2 2 3.2 5 7.9 2 3.2 6 9.5

 Northern 273 146 53.5 4 1.5 60 22.0 19 7.0 44 16.1

 Southern 35 22 62.9 0 0.0 7 20.0 2 5.7 4 11.4

Indiana 

 Northern 77 51 66.2 0 0.0 21 27.3 3 3.9 2 2.6

 Southern 80 49 61.3 0 0.0 22 27.5 2 2.5 7 8.8

Wisconsin 

 Eastern 85 41 48.2 3 3.5 12 14.1 3 3.5 26 30.6

 Western 27 24 88.9 0 0.0 0 0.0 0 0.0 3 11.1

 
E-16 

Within-Range

Upward 

Departure

Government 

Sponsored 

Downward 

CIRCUIT Departure Booker

District TOTAL n % n % n % n % n %

EIGHTH CIRCUIT 

Arkansas 

 Eastern 57 39 68.4 1 1.8 5 8.8 4 7.0 8 14.0

 Western 53 42 79.3 0 0.0 4 7.6 2 3.8 5 9.4

Iowa 

 Northern 56 40 71.4 3 5.4 5 8.9 2 3.6 6 10.7

 Southern 66 35 53.0 1 1.5 13 19.7 0 0.0 17 25.8

Minnesota 127 73 57.5 0 0.0 17 13.4 3 2.4 34 26.8

Missouri 

 Eastern 185 118 63.8 0 0.0 40 21.6 9 4.9 18 9.7

 Western 134 82 61.2 1 0.8 22 16.4 1 0.8 28 20.9

Nebraska 93 71 76.3 1 1.1 12 12.9 3 3.2 6 6.5

North Dakota 85 69 81.2 1 1.2 10 11.8 0 0.0 5 5.9

South Dakota 83 66 79.5 3 3.6 1 1.2 3 3.6 10 12.1

 

NINTH CIRCUIT

Alaska 50 37 74.0 0 0.0 5 10.0 0 0.0 8 16.0

Arizona 951 305 32.1 43 4.5 516 54.3 41 4.3 46 4.8

California 

 Central 249 201 80.7 0 0.0 16 6.4 7 2.8 25 10.0

 Eastern 236 166 70.3 0 0.0 41 17.4 5 2.1 24 10.2

 Northern 144 81 56.3 5 3.5 31 21.5 8 5.6 19 13.2

 Southern 746 264 35.4 2 0.3 366 49.1 53 7.1 61 8.2

Guam 63 31 49.2 0 0.0 22 34.9 5 7.9 5 7.9

Hawaii 182 75 41.2 4 2.2 54 29.7 8 4.4 41 22.5

Idaho 28 13 46.4 0 0.0 11 39.3 1 3.6 3 10.7

Montana 95 75 79.0 3 3.2 13 13.7 2 2.1 2 2.1

Nevada 66 46 69.7 0 0.0 9 13.6 2 3.0 9 13.6

Northern Mariana Islands 16 14 87.5 1 6.3 1 6.3 0 0.0 0 0.0

Oregon 125 60 48.0 2 1.6 23 18.4 8 6.4 32 25.6

Washington 

 Eastern 62 35 56.5 1 1.6 19 30.7 1 1.6 6 9.7

 Western 254 102 40.2 2 0.8 77 30.3 6 2.4 67 26.4

 

TENTH CIRCUIT

Colorado 111 61 55.0 0 0.0 39 35.1 1 0.9 10 9.0

Kansas 116 69 59.5 0 0.0 31 26.7 1 0.9 15 12.9

New Mexico 362 232 64.1 2 0.6 99 27.4 8 2.2 21 5.8

Oklahoma 

 Eastern 26 23 88.5 0 0.0 2 7.7 1 3.9 0 0.0

 Northern 44 31 70.5 1 2.3 9 20.5 0 0.0 3 6.8

 Western 57 42 73.7 0 0.0 6 10.5 2 3.5 7 12.3

Utah 103 64 62.1 2 1.9 16 15.5 5 4.9 16 15.5

Wyoming 27 21 77.8 0 0.0 3 11.1 1 3.7 2 7.4

 
E-17 

Within-Range

Upward 

Departure

Government 

Sponsored 

Downward 

CIRCUIT Departure Booker

District TOTAL n % n % n % n % n %

ELEVENTH CIRCUIT 

Alabama 

 Middle 41 30 73.2 0 0.0 11 26.8 0 0.0 0 0.0

 Northern 92 47 51.1 2 2.2 29 31.5 2 2.2 12 13.0

 Southern 44 32 72.7 0 0.0 7 15.9 0 0.0 5 11.4

Florida 

 Middle 594 416 70.0 2 0.3 149 25.1 3 0.5 24 4.0

 Northern 45 32 71.1 3 6.7 5 11.1 1 2.2 4 8.9

 Southern 738 597 80.9 2 0.3 57 7.7 17 2.3 65 8.8

Georgia 

 Middle 59 49 83.1 0 0.0 8 13.6 0 0.0 2 3.4

 Northern 190 121 63.7 3 1.6 33 17.4 6 3.2 27 14.2

 Southern 63 44 69.8 3 4.8 9 14.3 2 3.2 5 7.9

 

SOURCE: U.S. Sentencing Commission 2006 Booker Report Datafiles. 
E-18 

Appendix E-14

First Offenders 

Sentences Relative to the Guideline Range for Each Offense Type 

Post-Booker

Within-Range

Upward 

Departure

Government 

Sponsored 

Downward 

Departure Booker

Offense Type TOTAL n % n % n % n % n %

TOTAL 15,633 9,387 60.1 186 1.2 3,682 23.6 563 3.6 1,815 11.6

 

Murder 20 10 50.0 2 10.0 1 5.0 3 15.0 4 20.0

Manslaughter 5 2 40.0 2 40.0 0 0.0 0 0.0 1 20.0

Kidnapping 14 9 64.3 0 0.0 5 35.7 0 0.0 0 0.0

Sex Abuse 97 68 70.1 2 2.1 13 13.4 4 4.1 10 10.3

Assault 99 66 66.7 5 5.1 10 10.1 6 6.1 12 12.1

Robbery 121 68 56.2 3 2.5 20 16.5 10 8.3 20 16.5

Arson 11 7 63.6 0 0.0 4 36.4 0 0.0 0 0.0

Drugs-Trafficking 5,941 3,072 51.7 23 0.4 1,999 33.7 199 3.4 648 10.9

Drugs-Comm. Fac. 75 45 60.0 1 1.3 13 17.3 1 1.3 15 20.0

Drugs-Simple Poss. 96 92 95.8 1 1.0 0 0.0 0 0.0 3 3.1

Firearms 576 330 57.3 11 1.9 130 22.6 20 3.5 85 14.8

Burglary/B&E 9 5 55.6 0 0.0 0 0.0 0 0.0 4 44.4

Auto Theft 8 4 50.0 1 12.5 1 12.5 0 0.0 2 25.0

Larceny 548 420 76.6 4 0.7 51 9.3 15 2.7 58 10.6

Fraud 2,462 1,507 61.2 37 1.5 482 19.6 98 4.0 338 13.7

Embezzlement 303 223 73.6 2 0.7 17 5.6 12 4.0 49 16.2

Forgery/Counterfeit. 212 153 72.2 1 0.5 28 13.2 3 1.4 27 12.7

Bribery 121 61 50.4 0 0.0 38 31.4 4 3.3 18 14.9

Tax Offenses 309 143 46.3 3 1.0 65 21.0 25 8.1 73 23.6

Money Laundering 450 224 49.8 8 1.8 116 25.8 19 4.2 83 18.4

Racketeering/Extort. 163 81 49.7 3 1.8 49 30.1 9 5.5 21 12.9

Gambling/Lottery 40 30 75.0 0 0.0 7 17.5 0 0.0 3 7.5

Civil Rights 29 17 58.6 0 0.0 7 24.1 1 3.5 4 13.8

Immigration 2,598 1,908 73.4 47 1.8 443 17.1 59 2.3 141 5.4

Porn./Prostitution 546 344 63.0 19 3.5 40 7.3 36 6.6 107 19.6

Prison Offenses 12 10 83.3 0 0.0 2 16.7 0 0.0 0 0.0

Admin. Justice 362 213 58.8 6 1.7 69 19.1 21 5.8 53 14.6

Environ./Wildlife 58 39 67.2 0 0.0 13 22.4 0 0.0 6 10.3

National Defense 20 8 40.0 0 0.0 8 40.0 2 10.0 2 10.0

Antitrust 14 2 14.3 0 0.0 11 78.6 1 7.1 0 0.0

Food and Drug 36 31 86.1 0 0.0 3 8.3 0 0.0 2 5.6

Other 278 195 70.1 5 1.8 37 13.3 15 5.4 26 9.4

 

SOURCE: U.S. Sentencing Commission 2006 Booker Report Datafiles. 
E-19 

Appendix E-15

Career Offender 

Sentences Relative to the Guideline Range for Each Judicial District 

Post-Booker

Within-Range Upward Departure

Government 

Sponsored 

Downward 

CIRCUIT Departure Booker

District TOTAL n % n % n % n % n % 

TOTAL 2,040 914 44.8 14 0.7 675 33.1 136 6.7 301 14.8

 

DC CIRCUIT 

District of Columbia 36 10 27.8 1 2.8 16 44.4 2 5.6 7 19.4

 

FIRST CIRCUIT 

Maine 11 7 63.6 0 0.0 3 27.3 1 9.1 0 0.0

Massachusetts 34 11 32.4 0 0.0 5 14.7 5 14.7 13 38.2

New Hampshire 18 3 16.7 0 0.0 10 55.6 1 5.6 4 22.2

Puerto Rico 3 1 33.3 0 0.0 0 0.0 1 33.3 1 33.3

Rhode Island 11 5 45.5 0 0.0 0 0.0 1 9.1 5 45.5

 

SECOND CIRCUIT 

Connecticut 42 4 9.5 0 0.0 23 54.8 8 19.1 7 16.7

New York 

 Eastern 19 3 15.8 0 0.0 7 36.8 1 5.3 8 42.1

 Northern 8 1 12.5 0 0.0 5 62.5 1 12.5 1 12.5

 Southern 19 7 36.8 0 0.0 1 5.3 3 15.8 8 42.1

 Western 12 4 33.3 0 0.0 7 58.3 0 0.0 1 8.3

Vermont 9 3 33.3 0 0.0 4 44.4 0 0.0 2 22.2

 

THIRD CIRCUIT 

Delaware 3 3 100.0 0 0.0 0 0.0 0 0.0 0 0.0

New Jersey 41 6 14.6 0 0.0 22 53.7 3 7.3 10 24.4

Pennsylvania 

 Eastern 65 18 27.7 1 1.5 27 41.5 5 7.7 14 21.5

 Middle 56 21 37.5 0 0.0 29 51.8 2 3.6 4 7.1

 Western 24 11 45.8 0 0.0 2 8.3 3 12.5 8 33.3

Virgin Islands 

 

FOURTH CIRCUIT 

Maryland 56 14 25.0 0 0.0 24 42.9 8 14.3 10 17.9

North Carolina 

 Eastern 55 19 34.6 1 1.8 32 58.2 1 1.8 2 3.6

 Middle 43 22 51.2 0 0.0 7 16.3 4 9.3 10 23.3

 Western 30 14 46.7 0 0.0 13 43.3 0 0.0 3 10.0

South Carolina 66 45 68.2 0 0.0 15 22.7 1 1.5 5 7.6

Virginia 

 Eastern 44 32 72.7 0 0.0 2 4.6 1 2.3 9 20.5

 Western 28 13 46.4 1 3.6 10 35.7 2 7.1 2 7.1

West Virginia 

 Northern 12 9 75.0 0 0.0 3 25.0 0 0.0 0 0.0

 Southern 18 9 50.0 0 0.0 0 0.0 4 22.2 5 27.8

 
E-20 

Within-Range Upward Departure

Government 

Sponsored 

Downward 

CIRCUIT Departure Booker

District TOTAL n % n % n % n % n % 

FIFTH CIRCUIT 

Louisiana 

 Eastern 9 3 33.3 0 0.0 5 55.6 0 0.0 1 11.1

 Middle 6 3 50.0 0 0.0 3 50.0 0 0.0 0 0.0

 Western 11 8 72.7 1 9.1 0 0.0 0 0.0 2 18.2

Mississippi 

 Northern 2 2 100.0 0 0.0 0 0.0 0 0.0 0 0.0

 Southern 9 8 88.9 0 0.0 1 11.1 0 0.0 0 0.0

Texas 

 Eastern 39 29 74.4 1 2.6 8 20.5 1 2.6 0 0.0

 Northern 14 6 42.9 0 0.0 4 28.6 1 7.1 3 21.4

 Southern 27 17 63.0 0 0.0 6 22.2 3 11.1 1 3.7

 Western 50 27 54.0 1 2.0 14 28.0 3 6.0 5 10.0

 

SIXTH CIRCUIT 

Kentucky 

 Eastern 16 6 37.5 0 0.0 8 50.0 0 0.0 2 12.5

 Western 16 5 31.3 0 0.0 7 43.8 1 6.3 3 18.8

Michigan 

 Eastern 24 13 54.2 0 0.0 9 37.5 0 0.0 2 8.3

 Western 25 13 52.0 0 0.0 7 28.0 0 0.0 5 20.0

Ohio 

 Northern 51 21 41.2 0 0.0 23 45.1 1 2.0 6 11.8

 Southern 19 7 36.8 0 0.0 8 42.1 1 5.3 3 15.8

Tennessee 

 Eastern 46 20 43.5 0 0.0 20 43.5 0 0.0 6 13.0

 Middle 19 11 57.9 0 0.0 5 26.3 1 5.3 2 10.5

 Western 25 11 44.0 0 0.0 11 44.0 1 4.0 2 8.0

 

SEVENTH CIRCUIT 

Illinois 

 Central 26 10 38.5 0 0.0 9 34.6 2 7.7 5 19.2

 Northern 39 23 59.0 0 0.0 13 33.3 1 2.6 2 5.1

 Southern 17 14 82.4 1 5.9 0 0.0 0 0.0 2 11.8

Indiana 

 Northern 7 3 42.9 0 0.0 3 42.9 0 0.0 1 14.3

 Southern 11 7 63.6 0 0.0 3 27.3 1 9.1 0 0.0

Wisconsin 

 Eastern 22 11 50.0 0 0.0 6 27.3 1 4.6 4 18.2

 Western 17 12 70.6 0 0.0 3 17.7 0 0.0 2 11.8

 
E-21 

Within-Range Upward Departure

Government 

Sponsored 

Downward 

CIRCUIT Departure Booker

District TOTAL n % n % n % n % n % 

EIGHTH CIRCUIT 

Arkansas 

 Eastern 5 3 60.0 0 0.0 1 20.0 0 0.0 1 20.0

 Western 4 1 25.0 0 0.0 3 75.0 0 0.0 0 0.0

Iowa 

 Northern 13 8 61.5 0 0.0 4 30.8 0 0.0 1 7.7

 Southern 17 2 11.8 0 0.0 9 53.0 1 5.9 5 29.4

Minnesota 37 13 35.1 0 0.0 10 27.0 5 13.5 9 24.3

Missouri 

 Eastern 49 22 44.9 0 0.0 6 12.2 5 10.2 16 32.7

 Western 23 13 56.5 0 0.0 6 26.1 0 0.0 4 17.4

Nebraska 17 5 29.4 1 5.9 7 41.2 2 11.8 2 11.8

North Dakota 6 3 50.0 0 0.0 2 33.3 1 16.7 0 0.0

South Dakota 10 6 60.0 1 10.0 1 10.0 1 10.0 1 10.0

 

NINTH CIRCUIT

Alaska 6 3 50.0 0 0.0 1 16.7 0 0.0 2 33.3

Arizona 25 6 24.0 0 0.0 17 68.0 0 0.0 2 8.0

California 

 Central 9 6 66.7 0 0.0 2 22.2 1 11.1 0 0.0

 Eastern 17 7 41.2 0 0.0 9 52.9 1 5.9 0 0.0

 Northern 13 4 30.8 0 0.0 6 46.2 0 0.0 3 23.1

 Southern 16 1 6.3 1 6.3 13 81.3 1 6.3 0 0.0

Guam 1 1 100.0 0 0.0 0 0.0 0 0.0 0 0.0

Hawaii 9 1 11.1 0 0.0 3 33.3 4 44.4 1 11.1

Idaho 2 0 0.0 0 0.0 2 100.0 0 0.0 0 0.0

Montana 5 2 40.0 0 0.0 3 60.0 0 0.0 0 0.0

Nevada 7 1 14.3 0 0.0 2 28.6 1 14.3 3 42.9

Northern Mariana 

Islands 

 1 

1 100.0 0 0.0 0 0.0 0 0.0 0 0.0

Oregon 23 8 34.8 0 0.0 7 30.4 1 4.4 7 30.4

Washington 

 Eastern 6 1 16.7 0 0.0 2 33.3 1 16.7 2 33.3

 Western 11 2 18.2 0 0.0 8 72.7 0 0.0 1 9.1

 

TENTH CIRCUIT 

Colorado 17 4 23.5 0 0.0 7 41.2 2 11.8 4 23.5

Kansas 27 16 59.3 1 3.7 6 22.2 1 3.7 3 11.1

New Mexico 37 9 24.3 0 0.0 19 51.4 5 13.5 4 10.8

Oklahoma 

 Eastern 4 3 75.0 0 0.0 0 0.0 0 0.0 1 25.0

 Northern 9 9 100.0 0 0.0 0 0.0 0 0.0 0 0.0

 Western 8 4 50.0 0 0.0 1 12.5 1 12.5 2 25.0

Utah 18 9 50.0 0 0.0 3 16.7 2 11.1 4 22.2

Wyoming 5 3 60.0 1 20.0 1 20.0 0 0.0 0 0.0

 
E-22 

Within-Range Upward Departure

Government 

Sponsored 

Downward 

CIRCUIT Departure Booker

District TOTAL n % n % n % n % n % 

ELEVENTH CIRCUIT 

Alabama 

 Middle 4 2 50.0 0 0.0 1 25.0 1 25.0 0 0.0

 Northern 9 3 33.3 0 0.0 5 55.6 1 11.1 0 0.0

 Southern 4 2 50.0 0 0.0 2 50.0 0 0.0 0 0.0

Florida 

 Middle 88 35 39.8 0 0.0 27 30.7 11 12.5 15 17.1

 Northern 24 17 70.8 0 0.0 5 20.8 0 0.0 2 8.3

 Southern 98 67 68.4 0 0.0 18 18.4 7 7.1 6 6.1

Georgia 

 Middle 14 9 64.3 0 0.0 5 35.7 0 0.0 0 0.0

 Northern 13 6 46.2 1 7.7 3 23.1 2 15.4 1 7.7

 Southern 19 11 57.9 0 0.0 5 26.3 2 10.5 1 5.3

 

SOURCE: U.S. Sentencing Commission 2006 Booker Report Datafiles. 
E-23 

Appendix E-16

Career Offenders 

Sentences Relative to the Guideline Range for Each Offense Type 

Post-Booker

Within-Range

Upward 

Departure

Government 

Sponsored

Downward 

Departure Booker

Offense Type TOTAL n % n % n % n % n %

TOTAL 2,040 914 44.8 14 0.7 675 33.1 136 6.7 301 14.8

 

Murder 5 4 80.0 0 0.0 0 0.0 0 0.0 1 20.0

Manslaughter 1 1 100.0 0 0.0 0 0.0 0 0.0 0 0.0

Kidnapping 1 1 100.0 0 0.0 0 0.0 0 0.0 0 0.0

Sex Abuse 3 2 66.7 0 0.0 0 0.0 0 0.0 1 33.3

Assault 40 31 77.5 1 2.5 3 7.5 2 5.0 3 7.5

Robbery 222 131 59.0 2 0.9 44 19.8 18 8.1 27 12.2

Drug Trafficking 1,464 579 39.6 5 0.3 559 38.2 101 6.9 220 15.0

Drug 

Communication 

Facility 15 11 73.3 0 0.0 3 20.0 0 0.0 1 6.7

Firearms 188 94 50.0 3 1.6 46 24.5 7 3.7 38 20.2

Auto Theft 1 1 100.0 0 0.0 0 0.0 0 0.0 0 0.0

Fraud 1 1 100.0 0 0.0 0 0.0 0 0.0 0 0.0

Extortion/ 

Racketeering 28 15 53.6 1 3.6 11 39.3 0 0.0 1 3.6

Immigration 2 0 0.0 0 0.0 1 50.0 0 0.0 1 50.0

Pornography/ 

Prostitution 7 4 57.1 0 0.0 2 28.6 1 14.3 0 0.0

Prison Offenses 41 24 58.5 1 2.4 4 9.8 4 9.8 8 19.5

Administration of 

Justice 6 5 83.3 0 0.0 1 16.7 0 0.0 0 0.0

National Defense 3 2 66.7 0 0.0 1 33.3 0 0.0 0 0.0

Other 12 8 66.7 1 8.3 0 0.0 3 25.0 0 0.0

SOURCE: U.S. Sentencing Commission 2006 Booker Report Datafiles. Of the 2,090 Career Offender cases in the post-Booker Datafile, 50 

were excluded due to missing information.
E-24 

Appendix E-17

Career Offenders 

Distribution of Offenses for Each Category of Sentence 

Relative to the Guideline Range 

Post-Booker

Within-Range

Upward 

Departure

Government 

Sponsored

Downward 

Departure Booker

Offense Type TOTAL n % n % n % n % n %

TOTAL 2,040 914 100.0 14 100.0 675 100.0 136 100.0 301 100.0

 

Murder 5 4 0.4 0 0.0 0 0.0 0 0.0 1 0.3

Manslaughter 1 1 0.1 0 0.0 0 0.0 0 0.0 0 0.0

Kidnapping 1 1 0.1 0 0.0 0 0.0 0 0.0 0 0.0

Sex Abuse 3 2 0.2 0 0.0 0 0.0 0 0.0 1 0.3

Assault 40 31 3.4 1 7.1 3 0.4 2 1.5 3 1.0

Robbery 222 131 14.3 2 14.3 44 6.5 18 13.2 27 9.0

Drug Trafficking 1,464 579 63.4 5 35.7 559 82.8 101 74.3 220 73.1

Drug Comm. Fac. 15 11 1.2 0 0.0 3 0.4 0 0.0 1 0.3

Firearms 188 94 10.3 3 21.4 46 6.8 7 5.2 38 12.6

Auto Theft 1 1 0.1 0 0.0 0 0.0 0 0.0 0 0.0

Fraud 1 1 0.1 0 0.0 0 0.0 0 0.0 0 0.0

Extortion/ 

Racketeering 28 15 1.6 1 7.1 11 1.6 0 0.0 1 0.3

Immigration 2 0 0.0 0 0.0 1 0.2 0 0.0 1 0.3

Pornography/ 

Prostitution 7 4 0.4 0 0.0 2 0.3 1 0.7 0 0.0

Prison Offenses 41 24 2.6 1 7.1 4 0.6 4 2.9 8 2.7

Administration of 

Justice 6 5 0.6 0 0.0 1 0.2 0 0.0 0 0.0

National Defense 3 2 0.2 0 0.0 1 0.2 0 0.0 0 0.0

Other 12 8 0.9 1 7.1 0 0.0 3 2.2 0 0.0

SOURCE: U.S. Sentencing Commission 2006 Booker Report Datafiles. Of the 2,090 Career Offender cases in the post-Booker Datafile, 50 

were excluded due to missing information.
E-25 

Appendix E-18 

Fast Track Programs Authorized by the Deputy Attorney General 

October 29, 20044

 

District Fast Track Program 

 

 Illegal Reentry After Deportation Cases 

 Transportation or Harboring of Aliens Cases 

 Alien Baby/Child Smuggling and “Bringing In” (i.e., cases involving 

defendants caught guiding defendants across the border) Cases 

 Drug Cases Arising Along the Border 

Arizona 

 First Time Marijuana Offenses Along the Border Involving Less Than 

20 Kilograms of Marijuana and First Time Drug Backpacking 

Offenses (regardless of the amount of marijuana carried) 

California Central Illegal Reentry After Deportation Cases 

 

California Eastern Illegal Reentry After Deportation Cases 

 

California Northern Illegal Reentry After Deportation Cases 

 

 Illegal Reentry After Deportation Cases 

 Transportation or Harboring of Aliens Cases 

California Southern 

 Drug Cases Arising Along the Border 

 

Florida Southern Cases Involving Aliens Using False/Fraudulent Immigration Documents 

Georgia Northern Cases Involving Aliens Using False/Fraudulent Immigration Documents 

Idaho Illegal Reentry After Deportation Cases 

 

Nebraska Illegal Reentry After Deportation Cases 

 

 Illegal Reentry After Deportation Cases 

 Transportation or Harboring of Aliens Cases 

New Mexico 

 Drug Backpacking Cases 

 

New York Eastern Drug Courier Cases Arising out of John F. Kennedy International 

Airport 

North Dakota Illegal Reentry After Deportation Cases 

 

Oregon Illegal Reentry After Deportation Cases 

 

 Laredo Division Drug Cases Arising Along the Border 

 Illegal Reentry After Deportation Cases 

Texas Southern 

 Transportation or Harboring of Aliens Cases 

 

 Illegal Reentry After Deportation Cases 

 Transportation or Harboring of Aliens Cases 

Texas Western 

 Drug Cases Arising at Border Ports of Entry 

 

Washington Western Illegal Reentry After Deportation Cases 

 

4

 Each of the Fast Track Programs listed above is authorized until September 30, 2005. In order to continue 

a Fast Track Program beyond September 30, 2005, USAOs must submit a request for reauthorization to the 

Executive Office for United States Attorneys (EOUSA) by September 1, 2005. 

SOURCE: United States Department of Justice. 2005 Report on the Department of Justice’s Fast Track 

Programs. Washington, D.C.