Demographic Differences in Sentencing: 

An Update to the 2012 Booker Report

UNITED STATES SENTENCING COMMISSION
William H. Pryor, Jr. 

Acting Chair

Rachel E. Barkow

Commissioner

Charles R. Breyer

Commissioner

Danny C. Reeves

Commissioner

Zachary C. Bolitho

Ex Officio 

J. Patricia Wilson Smoot

Ex Officio

Kenneth P. Cohen 

Staff Director

Glenn R. Schmitt

Director

Office of Research and Data

November 2017

United States Sentencing Commission

One Columbus Circle, N.E. 

Washington, DC 20002

www.ussc.gov
Glenn R. Schmitt, J.D., M.P.P., Director, Office of Research and Data 

Louis Reedt, Sc.D., Deputy Director, Office of Research and Data 

Kevin Blackwell, Senior Research Associate, Office of Research and Data 

Section I: Introduction........................................................................................................1

Key Findings.................................................................................................................................................................................2

Multivariate Analysis of Demographic Differences in Sentencing........................................................................3

Why Multivariate Regression Analysis is Helpful........................................................................................................3

Section II: The Commission’s Updated Findings..............................................................5

Summary of Findings from the Commission’s Updated Multivariate Analysis...............................................6

Results of Demographic Multivariate Regression Analysis for All Cases...........................................................8

Analysis of Differences in Sentencing by Guideline Application............................................................................9

Analysis of Likelihood of Obtaining a Below Range Sentence................................................................................14

The Effect of Adding Data on Prior Violence as a Factor in the Model...............................................................16

 Limitations of Regression Analysis....................................................................................................................................17

Section III: Conclusion.......................................................................................................19

Appendices........................................................................................................................21

 Appendix A: Analysis of Other Demographic Factors................................................................................................22

 Appendix B: Offense Specific Analysis..............................................................................................................................26

 Appendix C: Methodology......................................................................................................................................................31

 Appendix D: Regression Model Output...........................................................................................................................33

Endnotes.............................................................................................................................37

TABLE OF CONTENTS

Demographic Differences in Sentencing i

t

Section I

Introduction
Demographic Differences in Sentencing 2

Introduction

In 2010, the Commission published an analysis of federal 

sentencing data which examined whether the length of sentences 

imposed on federal offenders was correlated with demographic 

characteristics of those offenders.1 That analysis found that some 

demographic factors were associated with sentence length to a 

statistically significant extent during some of the time periods studied.2 

Among other findings, the analysis showed that Black male offenders 

received longer sentences than White male offenders, and that the gap 

between the sentence lengths for Black and White male offenders was 

increasing. 

In 2012, the Commission updated this analysis by examining 

cases in which the offender was sentenced after the release of the 

2010 report.3 The Commission also expanded its analyses to examine 

demographic differences in sentences based on a comparison of the 

position of the sentence imposed relative to the sentencing guideline 

range that applied in the case; based on the type of offense committed 

by the offender, including drug trafficking, fraud, and firearms; and 

based on changes in sentence length for offenders of particular race 

and gender pairings. These findings were released as part of the 

Commission’s comprehensive report4 on sentencing practices after the 

Supreme Court’s decision in United States v. Booker.

5

 In its 2012 report, 

the Commission found that the type of demographic differences in 

sentencing reported in 2010 continued to be observed in sentencings 

that occurred after that report.

The Commission has once again updated its analysis by 

examining cases in which the offender was sentenced during the period 

following the 2012 report. This new time period, from October 1, 

2011, to September 30, 2016, is referred to as the “Post-Report period” 

in this publication. Also, the Commission has collected data about an 

additional variable—violence in an offender’s criminal history—that 

the Commission had previously noted was missing from its analysis but 

that might help explain some of the differences in sentencing noted in 

its work. This report presents the results observed from adding that 

new data to the Commission’s analysis.

Key Findings

Consistent with its previous reports, the Commission found that sentence 

length continues to be associated with some demographic factors. In particular, 

after controlling for a wide variety of sentencing factors, the Commission found:

• Black male offenders continued to receive longer sentences than 

similarly situated White male offenders. Black male offenders received 

sentences on average 19.1 percent longer than similarly situated White male 

offenders during the Post-Report period (fiscal years 2012-2016), as they had 

for the prior four periods studied. The differences in sentence length remained 

relatively unchanged compared to the Post-Gall period. 

• Non-government sponsored departures and variances appear to 

contribute significantly to the difference in sentence length between Black 

male and White male offenders. Black male offenders were 21.2 percent 

less likely than White male offenders to receive a non-government sponsored 

downward departure or variance during the Post-Report period. Furthermore, 

when Black male offenders did receive a non-government sponsored departure or 

variance, they received sentences 16.8 percent longer than White male offenders 

who received a non-government sponsored departure or variance. In contrast, 

there was a 7.9 percent difference in sentence length between Black male and 

White male offenders who received sentences within the applicable sentencing 

guidelines range, and there was no statistically significant difference in sentence 

length between Black male and White male offenders who received a substantial 

assistance departure.

• Violence in an offender’s criminal history does not appear to account 

for any of the demographic differences in sentencing. Black male offenders 

received sentences on average 20.4 percent longer than similarly situated White 

male offenders, accounting for violence in an offender’s past in fiscal year 2016, 

the only year for which such data is available. This figure is almost the same as 

the 20.7 percent difference without accounting for past violence. Thus, violence 

in an offender’s criminal history does not appear to contribute to the sentence 

imposed to any extent beyond its contribution to the offender’s criminal history 

score determined under the sentencing guidelines.

• Female offenders of all races received shorter sentences than White 

male offenders during the Post-Report period, as they had for the prior 

four periods. The differences in sentence length decreased slightly during the 

five-year period after the 2012 Booker Report for most offenders. The differences 

in sentence length fluctuated across all time periods studied for White females, 

Black females, Hispanic females, and Other Race female offenders. 
Demographic Differences in Sentencing 3

Multivariate Analysis of Demographic Differences in 

Sentencing 

For this report and in its prior two reports, the Commission 

has used multivariate regression analyses to explore the relationships 

between demographic factors, such as race and gender, and sentencing 

outcomes. These analyses were aimed at determining whether there 

were demographic differences in sentencing outcomes that were 

statistically significant, and whether those findings changed during the 

periods studied. 

Multivariate regression analysis usually begins with a decision 

to examine an observed phenomenon or outcome. In the Commission’s 

work, the outcome observed are the sentences imposed in federal 

cases. The researcher will then develop a hypothesis as to the many 

possible factors that might produce that outcome. Among the factors 

considered by the Commission were the type of offense, the sentencing 

range determined by the court in each case using the Commission’s 

Guidelines Manual,

6

 and whether the offender was subject to a mandatory 

minimum penalty. The hypothesis is then tested using multivariate 

regression analysis to bring together data about the outcome and many 

possible factors that might affect that outcome. The goal of multivariate 

regression analysis is to determine whether there is an association 

between the factors being studied and, if so, to measure the extent to 

which each factor contributes to the observed outcome. Researchers 

refer to the outcome (in this report the length of the sentence imposed) 

as the “dependent variable.” The factors that might affect (and therefore 

might explain) that outcome are referred to as the “independent 

variables” or the “explanatory variables.”7

The principal benefit of multivariate regression analysis is 

that it controls for the effect of each factor in the analysis by comparing 

offenders who are similar to one another in relevant ways. By 

controlling for such factors and comparing similarly situated offenders, 

this multivariate regression analysis seeks to answer the question: if 

two offenders are similar in certain ways, what other factors might be 

associated with those two offenders receiving different sentences? In 

addition, multivariate regression analysis measures the extent of the 

difference in outcomes. 

Multivariate regression analysis often cannot control for all 

possible factors that might affect the outcome being studied, typically 

because sufficient data about some factors is not readily available. For 

example, in its past reports, the Commission noted some potentially 

relevant factors were not included in its analyses, such as whether 

the offender’s criminal history included violent criminal conduct, the 

offender’s family ties, and the offender’s employment history.8 Data was 

not readily available for those factors because the Commission did not 

routinely extract that information from the court documents it receives.9 

Therefore, for those prior analyses, the Commission could not control for 

them.10 For this reason, caution should always be used when drawing 

conclusions based on multivariate regression analysis. 

Why Multivariate Regression Analysis is Helpful

Multivariate regression analysis can be helpful when 

considering demographic differences in sentencing outcomes because 

results from more simplistic data analyses that examine only selected 

demographic factors and sentencing outcomes can be misleading. Such 

simplistic analyses may yield results that might appear to indicate that 

demographic factors correlate with sentence length, when the actual 

correlation may be attributable to other, non-demographic factors, 

such as the type of offense committed or whether the offense was 

one for which a statutory mandatory minimum penalty applied. Most 

importantly, simplistic analyses do not consider the effect of the guideline 

range provided for under the sentencing guidelines, which takes into 

account, among other things, the type of offense, the presence of 

aggravating or mitigating factors, and the criminal history of the offender.

For example, a simplistic pairing of recent data regarding race 

and gender with sentence length shows that sentences of Black male 

offenders have always been longer than those of White male offenders. 

As shown on figure 1, however, the average sentences for Black male 

offenders were shorter during the Post-Report period (fiscal years 2012 

to 2016) than during the Booker period (January 2005 to December 

2007), and the Gall period (December 2007 to the end of fiscal year 

2011). At the same time, the average sentence for White male offenders 

increased during the Post-Report period after a slight decrease in the 

Gall period. As a result, the difference in the sentences imposed on Black 

male and White male offenders has substantially decreased in recent 

years, from a difference of 34 months in fiscal year 2006, to nine months 

in fiscal years 2016. 
Demographic Differences in Sentencing 4

Some commentators have pointed to this change to erroneously 

assert that racial differences in sentencing are decreasing.11 However, 

such an analysis ignores many important factors that affect sentence 

length, such as the type of offense, criminal history, and weapon 

possession. For instance, the narrowing gap between Black and 

White male offender sentence lengths is due, in large part, to sizeable 

reductions in penalties for crack cocaine offenses, in which Black 

offenders constitute the large majority of the offenders. Despite these 

apparent changes in sentencing outcomes, the Commission’s multivariate 

regression analysis shows that when other relevant factors are controlled 

for, the gap in the sentence length between Black male and White male 

offenders did not shrink but, in fact, remained relatively stable across 

these periods. 

Because simplistic analyses do not control for other relevant 

factors, they cannot provide an accurate estimate of the extent to which 

demographic factors are associated with sentence length. For this 

reason, multivariate regression analysis is necessary to explore the many 

factors that may contribute to these sentencing outcomes.

SOURCE: U.S. Sentencing Commission, 1999 - 2016 Datafile, USSCFY 99 -USSCFY16.

0

20

40

60

80

100

White Male Black Male Months

Fig. 1. Average Sentence for White Male and Black Male Offenders

Fiscal Years 1999-2016
Section II

Updated Findings
Demographic Differences in Sentencing 6

The Commission’s Updated Findings

The Commission’s findings are set forth below in five parts. 

The first part summarizes the findings from the Commission’s updated 

analysis. The second part provides the findings from the Commission’s 

updated analysis of all cases regarding demographic differences 

associated with race and gender. Findings regarding other demographic 

factors are discussed in Appendix A to this report. In the third part of 

this report the Commission presents the findings of the multivariate 

regression analysis of cases divided into groups by the position of the 

sentence imposed relative to the guideline range. The findings regarding 

race and gender are discussed in the body of the report and the findings 

regarding other demographic factors are discussed in Appendix A. In 

the fourth part, multivariate regression analysis is used to examine the 

differences among offenses in the likelihood of receiving a sentence 

below the applicable guideline range. Lastly, the fifth part presents the 

results of a multivariate regression analysis that incorporates data about 

an offender’s violent criminal history. In Appendix B to this report the 

Commission presents the results of a multivariate regression analysis 

examining the sentences imposed for three types of offenses: drug 

trafficking, fraud, and firearms offenses.

Summary of Findings from the Commission’s Updated 

Multivariate Analysis 

Consistent with its previous reports, the Commission found 

that sentence length is associated with some demographic factors. The 

Commission’s analysis considered race, gender, citizenship, age, and 

education level.12

The Commission found that sentences of Black male offenders 

were longer than those of White male offenders for all periods studied. 

Black male offenders’ sentences were 19.1 percent longer than those of 

White male offenders during the Post-Report period. The gap in sentence 

length between these two groups was smallest during the PROTECT Act 

period (5.5%) and largest during the Gall period (19.5%). Hispanic male 

offenders received sentences that were 5.3 percent longer than those of 

White male offenders during the Post-Report period. However, there was 

no statistically significant difference between the average sentences for 

the two groups during the Gall period. The differences in the sentences 

imposed on Other Race male offenders compared to those imposed on 

White male offenders were not statistically significant in the Post-Report 

period or the Gall period. 

When examining all cases as a group, female offenders of all 

races received shorter sentences than White male offenders during the 

Post-Report period, as they had in the prior four periods. White female 

offenders received sentences that were 28.9 percent shorter than those 

of White male offenders in the Post-Report period, compared to 31.1 

percent shorter during the Gall period. Black female offenders and 

Other Race female offenders also received shorter sentences than White 

male offenders during the Post-Report period, at 29.7 percent and 35.4 

percent shorter respectively. In the Gall period these differences were 

33.1 percent and 34.6 percent, respectively. Hispanic female offenders 

received sentences that were 16.8 percent shorter than those of White 

male offenders during the Post-Report period, compared to 18.2 percent 

shorter in the Gall period.

Non-citizen offenders received longer sentences than United 

States citizens during the Post-Report period, although this difference 

• The Koon period, from October 1, 1998 through April 30, 2003. 

This period relates to cases decided after the Supreme Court’s 1996 

decision in Koon v. United States. 

• The PROTECT Act period, from May 1, 2003 (the date of the 

enactment of the PROTECT Act), through June 24, 2004 (the date of 

the Supreme Court’s decision in Blakely v. Washington).

• The Booker period, from January 12, 2005 (the date of the 

Supreme Court’s decision in United States v. Booker), through 

December 10, 2007 (the date of the Supreme Court’s decisions in 

Kimbrough v. United States and Gall v. United States). 

• The Gall period, from December 11, 2007 through September 30, 

2011.

• The Post-Report period, from October 1, 2011 through 

September 30, 2016. 

Report Time Periods
Demographic Differences in Sentencing 7

decreased from the Gall period. No difference was found during the 

PROTECT Act period, but differences in sentence length returned during 

the Booker and Gall periods at levels exceeding those of the Koon period. 

Offenders with at least some college education had no difference in 

sentence length than offenders who did not attend college in the PostReport period; a finding that differs from the other four periods where 

offenders with some college education received shorter sentences than 

offenders with no college education.13

The Commission also studied whether there were demographic 

differences in sentencing based on the position of the sentence imposed 

relative to the sentencing guideline range that applied in the case.14 The 

Commission found statistically significant differences in sentence length 

during all time periods for Black male offenders, who received longer 

within range sentences than White male offenders who received within 

range sentences, although the difference decreased in the Post-Report 

period. The differences in sentence length between Hispanic male 

offenders and White male offenders who received within range sentences 

varied over the five time periods studied, but Hispanic male offenders 

generally received shorter sentences than White male offenders during 

all but the Post-Report period. In the Post-Report period, however, there 

was no statistically significant difference between the average sentences 

for Hispanic and White male offenders who were sentenced within the 

guideline range. 

With respect to offenders who received below range sentences 

based on their substantial assistance to the government,15 Black male 

offenders received longer sentences than White male offenders during 

the Koon period only. In all other periods, there was no statistically 

significant difference between the two groups. Other Race male offenders 

who received substantial assistance below range sentences received 

longer sentences than White male offenders during the Booker period 

only. 

Comparing Black male offenders to White male offenders 

who received a non-government sponsored below range sentence, the 

differences in sentence length between the two groups were statistically 

significant in two periods, including the Post-Report period, where Black 

males received sentences that were 16.8 percent longer than those for 

White males. Differences in sentence length between Hispanic male 

offenders and White male offenders who received a non-government 

sponsored below range sentence were statistically significant only in the 

Gall and Post-Report periods, when the differences were 9.3 and 10.6 

percent respectively. There were no statistically significant differences 

between the sentences imposed on Other Race male offenders and White 

male offenders who received a non-government sponsored below range 

sentence. 

Across most periods, female offenders who received within 

range sentences, regardless of their race, were sentenced to terms 

shorter than those of White male offenders who received within range 

sentences. For most female offenders, these differences increased over 

time. In the Post-Report period, White female offenders who received 

within range sentences received sentences that were 24.1 percent 

shorter than those of White male offenders who received within range 

sentences. Black female offenders with within range sentences received 

sentences that were 27.1 percent shorter than within range sentences for 

White male offenders in the Post-Report period. 

Sentences for Hispanic female offenders followed a different 

pattern. The sentences for Hispanic females who received within range 

sentences were not statistically different from those for White male 

offenders during the Post-Report period. This is a change from all prior 

periods studied, where Hispanic female within range sentences were 

lower than those for White male offenders. The differences in sentence 

length between Other Race female offenders who received within range 

sentences and White male offenders have decreased in the recent period 

studied. This difference was 37.2 percent during the Post-Report period.

Female offenders of all races who received substantial assistance 

departures generally received shorter sentences than White male 

offenders who received substantial assistance departures. During the 

Post-Report period, the sentence length for White female offenders who 

received substantial assistance departures was 26.0 percent shorter 

than for White male offenders who received substantial assistance 

departures. For Black female offenders who received substantial 

assistance departures the difference was 21.1 percent shorter than White 

male offenders. In the Post-report period, sentences for Hispanic female 

offenders who received a substantial assistance departure were 25.5 

percent shorter than for White male offenders who received a substantial 

assistance departure. However, the difference for Other Race female 

offenders and White male offenders was not statistically significant in the 

Post-Report period.
Demographic Differences in Sentencing 8

White and Black female offenders who received a nongovernment sponsored below range sentence received shorter sentences 

than White male offenders who received a non-government sponsored 

below range sentence during the Gall and Post-Report periods. Hispanic 

and Other Race female offenders who received a non-government 

sponsored below range sentence received shorter sentences than White 

male offenders who received a non-government sponsored below range 

sentence during the Booker, Gall, and Post-Report periods.

The Commission also conducted a multivariate regression 

analysis of the likelihood that an offender would receive a nongovernment sponsored below range sentence. This analysis showed 

statistically significant differences during the PROTECT Act, Booker, Gall, 

and Post-Report periods.16 During these periods, Black male offenders 

were between 20 to 25 percent less likely to receive a non-government 

sponsored below range sentence than White male offenders. These 

differences in the likelihood of receiving this type of below range 

sentence may contribute to the sentence length differences between 

Black and White male offenders. Hispanic male offenders also were less 

likely than White male offenders to receive a non-government sponsored 

below range sentence during all periods.

Finally, the Commission conducted a multivariate regression 

analysis of demographic differences in sentencing associated with the 

specific type of offense committed. This analysis showed that sentencing 

outcomes varied depending on the offense. For example, an analysis 

of firearms cases revealed statistically significant differences between 

the sentence length of White and Black male offenders during the Koon, 

Booker, Gall, and Post-Report periods. In comparison, an analysis of 

fraud cases showed statistically significant differences between sentence 

length of White male and Black male offenders only in the Koon and PostReport periods. 

Results of Demographic Multivariate Regression Analysis for 

All Cases

The Commission’s multivariate regression analysis for all cases, 

updated through fiscal year 2016, continues to demonstrate that some 

demographic factors are associated with sentence length to a statistically 

significant extent during the periods studied. For the remainder of 

this report, the Commission’s analysis will focus primarily on the most 

recent period studied—the Post-Report period—as compared to the 

immediately preceding period, the Gall period. The results for all periods 

are presented in the figures that accompany this discussion.17 Also, 

this portion of the report will discuss differences in sentencing that are 

associated with race and gender. Analyses of sentencing differences 

associated with other demographic factors can be found in Appendix A of 

this report.

Analysis: All Cases

Figures 2 and 3 depict differences in sentence length for all 

cases. Differences in sentence length for Black male offenders compared 

to White male offenders remained relatively stable between the Gall

and Post-Report periods. During the Post-Report period, Black male 

offenders were sentenced to 19.1 percent longer sentences than White 

male offenders. In the Gall period, the sentences of Black male offenders 

were 19.5 percent longer. 

Hispanic male offenders received sentences that were 5.3 

percent longer than those of White male offenders during the PostReport period. However, there was no statistically significant difference 

between the average sentences for the two groups during the Gall period. 

Fig. 2. Differences in Sentence Length for Male Offenders

Koon, PROTECT, Booker, Gall, and Post-Report Periods

11.2

-3.6

*

5.5

-4.4

-8.0

15.2

* *

19.5

* *

19.1

5.3

*

-10

-5

0

5

10

15

20

25 Koon PROTECT Booker Gall Post-Report

Percentage Difference in Sentence Length

Black Male vs. White Male Hispanic Male vs. White Male Other Male vs. White Male

•Indicates that the difference between the two groups was not statistically significant. 

SOURCE: U.S. Sentencing Commission, 1999 -2016 Datafiles, USSCFY99-USSCFY16.
Demographic Differences in Sentencing 9

The differences in the sentences imposed on Other Race 

males compared to those imposed on White male offenders were not 

statistically significant in the Post-Report period or the Gall period. 

As depicted in Figure 3, female offenders, regardless of their 

race, received sentences that were shorter, on average, than sentences 

for White male offenders during the Post-Report period. This finding 

is consistent with the differences observed in all prior periods. White 

female offenders received sentences that were 28.9 percent shorter than 

those of White male offenders in the Post-Report period, compared to 

31.1 percent shorter during the Gall period. Black female offenders and 

Other Race female offenders also received shorter sentences than White 

male offenders during the Post-Report period, at 29.7 percent and 35.4 

percent shorter respectively, compared to 33.1 percent and 34.6 percent 

in the Gall period, respectively. Hispanic female offenders received 

sentences that were 16.8 percent shorter than those of White male 

offenders during the Post-Report period, compared to 18.2 percent in the 

Gall period.

Analysis of Differences in Sentencing by Guideline 

Application

The Commission conducted further analyses focusing on the 

position of the sentence imposed relative to the applicable guideline 

range and on specific offense types. These additional analyses were 

undertaken for three reasons: (1) to identify more precisely where 

demographic differences may be occurring; (2) to determine whether the 

same pattern of results would be replicated when studying sentencing 

outcomes other than sentence length, and when studying specific 

offenses; and (3) to identify and measure the extent to which any 

particular factor, such as type of offense or sentence relative to the range, 

might contribute to the overall finding of demographic differences in 

sentencing. 

For the analysis discussed in this section of the report, cases 

were divided into four groups: (1) those where the sentence was within 

the sentencing guideline range; (2) those where the sentence was 

above the guideline range,18 (3) those where the sentence was imposed 

below the guideline range at the request of the government; and (4) 

non-government sponsored below range sentences (i.e., downward 

departures and variances).19 The Commission then examined the 

presence of demographic differences in the sentences imposed in the 

cases in each group. Also, because prior reports suggested that the 

imposition of a non-government sponsored below range sentence may be 

a source of sentencing disparity,20 the Commission also repeated its prior 

analysis to estimate the likelihood that an offender would receive a nongovernment sponsored below range sentence. These analyses showed 

statistically significant differences in sentence length associated with 

various demographic factors for each of the periods studied.21 

Within Range Sentences 

Figure 4 on the next page depicts the results of the multivariate 

analysis of sentences falling within the applicable guideline range. The 

analysis found that the differences in sentence length for Black male 

offenders who received within range sentences compared to White 

male offenders who received within range sentences were statistically 

significant during all periods, although the difference decreased during 

the Post-Report period. In the Gall period this difference was 12.2 

percent longer for Black male offenders, but 7.9 percent longer during 

the Post-Report period.

Fig. 3. Differences in Sentence Length for Female Offenders

Koon, PROTECT, Booker, Gall, and Post-Report Periods

-22.2

-17.8

-29.8 -30.3

-23.1

-34.5

-23.1

-43.4

-19.0

-24.9 -23.1 -22.8

-31.1 -33.1

-18.2

-34.6

-28.9 -29.7

-16.8

-35.4

-50

-45

-40

-35

-30

-25

-20

-15

-10

-5

0

Koon PROTECT Booker Gall Post-Report

Percentage Difference in Sentence Length

White Female vs. 

White Male

Black Female vs. 

White Male

Hispanic Female vs. 

White Male

Other Female vs. 

White Male

•Indicates that the difference between the two groups was not statistically significant.

SOURCE: U.S. Sentencing Commission, 1999 -2016 Datafiles, USSCFY99-USSCFY16.
Demographic Differences in Sentencing 10

The differences in sentence length between Hispanic male 

offenders and White male offenders who received within range sentences 

varied over the five time periods studied, but Hispanic male offenders 

received shorter sentences than White male offenders during all but the 

Post-Report period. In the Gall period, Hispanic male offenders who 

received within range sentences received sentences that were 4.2 percent 

shorter than those of White male offenders who received within range 

sentences. In the Post-Report period, however, there was no statistically 

significant difference between the average sentences for Hispanic and 

White male offenders.

In the Post-Report period, Other Race male offenders received 

sentences that were 7.9 percent shorter than those imposed on White 

male offenders. There was no statistically significant difference between 

the sentences for these two groups in the Gall period.

Across most periods, female offenders who received within 

range sentences, regardless of their race, were sentenced to terms 

shorter than those of White male offenders who received within range 

sentences. For most female offenders, these differences have increased 

over time. In the Post-Report period, White female offenders who 

received within range sentences received sentences that were 24.1 

percent shorter than White male offenders who received within range 

sentences. In the Gall period this difference was 27.3 percent. For Black 

females, within range sentences were 27.1 percent shorter than within 

range sentences for White male offenders in the Post-Report period. In 

the Gall period this difference was 31.5 percent.

Sentences for Hispanic female offenders followed a different 

pattern. The sentences for Hispanic females who received within range 

sentences were not statistically different from those for White male 

offenders during the Post-Report period. This is a change from all 

prior periods studied, where Hispanic female within range sentences 

were lower than those for White male offenders. For example, in the 

Gall period, Hispanic female offenders sentenced within the guideline 

range had sentences that were 5.5 percent shorter than the within range 

sentences for White male offenders. 

The differences in sentence length between Other Race female 

offenders who received within range sentences and White male offenders 

have decreased slightly in the recent period studied. In the Gall period, 

that difference was 40.2 percent, the largest percentage difference for 

all race/gender pairs for all time periods studied, but decreased to 37.2 

percent during the Post-Report period.

Fig. 4. Differences in Within Range Sentences for Male Offenders

Koon, PROTECT, Booker, Gall, and Post-Report Periods

3.8

-5.7

*

3.5

-8.1

*

6.6

-8.3

-4.4

12.2

-4.2

*

7.9

*

-7.9

-10

-5

0

5

10

15 Koon PROTECT Booker Gall Post-Report

Percentage Difference in Sentence Length

Black Male vs. White Male Hispanic Male vs. White Male Other Male vs. White Male

•Indicates that the difference between the two groups was not statistically significant. 

SOURCE: U.S. Sentencing Commission, 1999 -2016 Datafiles, USSCFY99-USSCFY16.

-14.2 -13.5 -11.9

-24.3

-15.9

-29.7

-13.6

-20.8

-17.2

-24.1

-12.1

-25.0

-27.3

-31.5

-5.5

-40.2

-24.1

-27.1

*

-37.2

-45

-40

-35

-30

-25

-20

-15

-10

-5

0

Koon PROTECT Booker Gall Post-Report

Percentage Difference in Sentence Length

White Female vs. 

White Male

Black Female vs. 

White Male

Hispanic Female vs. 

White Male

Other Female vs. 

White Male

•Indicates that the difference between the two groups was not statistically significant.

SOURCE: U.S. Sentencing Commission, 1999 -2016 Datafiles, USSCFY99-USSCFY16.

Fig. 5. Differences in Within Range Sentences for Female Offenders

Koon, PROTECT, Booker, Gall, and Post-Report Periods
Demographic Differences in Sentencing 11

Below Range Sentences

Substantial Assistance Departure Sentences

The Commission also examined cases in which the sentence 

imposed was below the applicable guideline range to determine whether 

demographic differences were present. These “below range” sentences 

can occur for different considerations. For statistical purposes, the 

Commission groups below range sentences into two broad categories—

those sponsored by the government and those not sponsored by the 

government.22 Government sponsored below range sentences are further 

subdivided.23 Each will be addressed in turn.

Figure 6 presents the results of the analysis of below range 

sentences based on substantial assistance departures. During the 

Koon period, Black male offenders who received substantial assistance 

departures received sentences 19.2 percent longer than White male 

offenders who received such departures. However, there were no 

statistically significant differences between the sentences of Black and 

White male offenders who received substantial assistance departures 

during any later period, including the Post-Report period.

There were also no statistically significant differences between 

White male and Hispanic male offenders who received substantial 

assistance departures during any period. Similarly, in only one period 

did Other Race male offenders have a statistically significant difference 

from White male offenders. During the Booker period Other Race males 

received sentences that were 24.4 percent longer than those for White 

males.

Female offenders of all races who received substantial assistance 

departures generally received shorter sentences than White male 

offenders who received substantial assistance departures. During the 

Post-Report period, the sentence length for White female offenders who 

received substantial assistance departures was 26.0 percent shorter 

than that for White male offenders who received substantial assistance 

departures. The difference was a slight decrease from the 27.4 percent 

difference during the Gall period.

Black female offenders who received substantial assistance 

departures also received shorter sentences than White male offenders 

who received substantial assistance departures. During the Post-Report 

period, Black female offenders who received substantial assistance 

19.2

* * * * * * *

24.4

* * * * * * 0

5

10

15

20

25

Koon PROTECT Booker Gall Post-Report

Percentage Difference in Sentence Length

Black Male vs. White Male Hispanic Male vs. White Male Other Male vs. White Male

•Indicates that the difference between the two groups was not statistically significant. 

SOURCE: U.S. Sentencing Commission, 1999 -2016 Datafiles, USSCFY99-USSCFY16.

Fig. 6. Differences in Substantial Assistance Departure Sentences for 

Male Offenders

Koon, PROTECT, Booker, Gall, and Post-Report Periods

-31.5 -29.0

-41.7 -38.9 -35.5

-45.1

-35.9

-74.0

-20.5

-27.7

-29.1

*

-27.4

-31.6 -35.6

-26.4 -26.0

-21.1

-25.5

*

-80

-70

-60

-50

-40

-30

-20

-10

0

Koon PROTECT Booker Gall Post-Report

Percentage Difference in Sentence Length

White Female vs. 

White Male

Black Female vs. 

White Male

Hispanic Female vs. 

White Male

Other Female vs. 

White Male

•Indicates that the difference between the two groups was not statistically significant. 

SOURCE: U.S. Sentencing Commission, 1999 -2016 Datafiles, USSCFY99-USSCFY16.

Fig. 7. Differences in Substantial Assistance Departure Sentences for 

Female Offenders

Koon, PROTECT, Booker, Gall, and Post-Report Periods
Demographic Differences in Sentencing 12

departures received sentences that were 21.1 percent shorter than those 

for White male offenders who received substantial assistance departures. 

However, this was a decrease from the 31.6 percent difference observed 

in the Gall period. 

Sentences for Hispanic female offenders who received 

substantial assistance departures followed a somewhat similar pattern. 

In the Post-Report period, sentences for Hispanic female offenders 

who received a substantial assistance departure were 25.5 percent 

shorter than those for White male offenders who received a substantial 

assistance departure. In the Gall period this difference was 35.6 percent.

The differences in sentence lengths between Other Race 

female offenders and White male offenders who received a substantial 

assistance departure have varied over all five time periods studied.24 In 

the Gall period this difference was 26.4 percent, however, in the PostReport period no statistically significant difference was observed.

Other Government Sponsored Below Range Sentences 

Figure 8 presents the findings of the Commission’s multivariate 

analysis of government sponsored below range sentences for reasons 

other than the offender’s substantial assistance.25 Cases from the Koon

period were excluded from this analysis because the Commission did not 

collect data during that period in a manner that would indicate whether 

a sentence below the guideline range for reasons other than substantial 

assistance was initiated by the government or the court. 

The analysis found that the differences in sentence length 

were statistically significant during some periods. During the PostReport period, sentence lengths for Black males who received an other 

government sponsored below range sentence were 28.7 percent longer 

than those for White males who received other government sponsored 

below range sentences. However, no statistically significant difference 

was noted during the Gall period. There were no statistically significant 

differences between the sentence lengths of Other Race male offenders 

who received an other government sponsored below range sentence and 

White male offenders except during the Post-Report period, where Other 

Race male offenders received sentences that were 17.6 percent longer 

than those for White males.

* * *

22.8

29.8

* *

23.6

*

28.7

25.9

17.6

0

5

10

15

20

25

30

35 PROTECT Booker Gall Post-Report

Percentage Difference in Sentence Length

Black Male vs. 

White Male

Hispanic Male vs. 

White Male

Other Male vs. 

White Male

•Indicates that the difference between the two groups was not statistically significant. 

SOURCE: U.S. Sentencing Commission, 2003 -2016 Datafiles, USSCFY03-USSCFY16.

Fig. 8. Differences in Other Gov’t Sponsored Below Range Sentences for 

Male Offenders

PROTECT, Booker, Gall, and Post-Report Periods

-48.8

*

-27.3

-64.3

-32.3

* *

-46.4

-41.4

-48.2

* *

-26.0

*

-28.7

-38.6

-70

-60

-50

-40

-30

-20

-10

0

PROTECT Booker Gall Post-Report

Percentage Difference in Sentence Length

•Indicates that the difference between the two groups was not statistically significant. 

SOURCE: U.S. Sentencing Commission, 2003 -2016 Datafiles, USSCFY03-USSCFY16.

White Female vs. 

White Male

Black Female vs. 

White Male

Hispanic Female vs. 

White Male

Other Female vs. 

White Male

Fig. 9. Differences in Other Gov’t Sponsored Below Range Sentences for 

Female Offenders

PROTECT, Booker, Gall, and Post-Report Periods
Demographic Differences in Sentencing 13

The differences in sentence length between Hispanic male 

offenders and White male offenders who received an other government 

sponsored below range sentence were statistically significant during 

three periods. In the Post-Report period, Hispanic male offenders who 

received an other government sponsored below range sentence received 

sentences that were 25.9 percent longer than those for White male 

offenders who received an other government sponsored below range 

sentence. During the Gall period, the difference was 23.6 percent. 

For the periods in which there were statistically significant 

differences, female offenders of all races who received an other 

government sponsored below range sentence were sentenced to 

shorter terms than White male offenders. In the Post-Report period, the 

sentences of White female offenders who received an other government 

sponsored below range sentence were 26.0 percent shorter than those of 

White males who received an other government sponsored below range 

sentence. The difference was a decrease from 41.4 percent during the 

Gall period. 

The sentences of Black female offenders who received an other 

government sponsored below range sentence were 48.2 percent shorter 

than those of White male offenders who received an other government 

sponsored below range sentence during the Gall period, the only period 

in which there were statistically significant differences. There was no 

statistically significant difference between the two groups in the PostReport period. 

Other Race female offenders who received an other government 

sponsored below range sentence in the Post-Report period received 

sentences that were 38.6 percent shorter than those for White male 

offenders who received an other government sponsored below range 

sentence. Although similar differences were noted in earlier periods, no 

statistically significant difference was observed during the Gall period.

Sentences for Hispanic female offenders who received an 

other government sponsored below range sentence were 28.7 percent 

shorter in the Post-Report period. There were no statistically significant 

differences between the sentences of Hispanic female offenders who 

received an other government sponsored below range sentence and 

White male offenders who received an other government sponsored 

below range sentence during the Gall period. 

Non-Government Sponsored Below Range Sentences

Figure 10 depicts the results of the Commission’s multivariate 

analysis of non-government sponsored below range sentences, i.e., 

downward departures and variances resulting in sentences below the 

guideline range for any reason not initiated by the government. Only four 

time periods are included in this multivariate analysis: the PROTECT Act, 

Booker, Gall, and Post-Report periods.26 

The analysis found that in the Post-Report period, Black male 

offenders who received a non-government sponsored below range 

sentence received sentences that were 16.8 percent longer than those 

for White male offenders who received that type of sentence. The only 

other period in which such a difference was noted was the Booker period, 

where the difference was 12.3 percent. There were no statistically 

significant differences between the two groups in the other two periods. 

Similarly, the differences in sentence length between 

Hispanic male offenders and White male offenders who received a 

non-government sponsored below range sentence were statistically 

significant in only two periods. In the Gall period, Hispanic male 

offenders who received a non-government sponsored below range 

Fig. 10. Differences in Non-Gov’t Sponsored Below Range Sentences for 

Male Offenders

PROTECT, Booker, Gall, and Post-Report Periods

* * *

12.3

* * *

9.3

*

16.8

10.6

* 0

5

10

15

20 PROTECT Booker Gall Post-Report

Percentage Difference in Sentence Length

Black Male vs. White Male Hispanic Male vs. White Male Other Male vs. White Male

•Indicates that the difference between the two groups was not statistically significant. 

SOURCE: U.S. Sentencing Commission, 2003 -2016 Datafiles, USSCFY03-USSCFY16.
Demographic Differences in Sentencing 14

sentence received sentences 9.3 percent longer than those for White male 

offenders who received that type of sentence. In the Post-Report period 

the difference was 10.6 percent. There were no statistically significant 

differences between the sentences imposed on Other Race male 

offenders and White male offenders who received a non-government 

sponsored below range sentence in any period. 

Among female offenders, White female offenders who received 

a non-government sponsored below range sentence received sentences 

that were 25.4 percent shorter in the Post-Report period compared to 

21.3 percent shorter in the Gall period. No other time period evidenced 

a statistically significant difference in sentence length when comparing 

the two groups. Similarly, Black female offenders who received a nongovernment sponsored below range sentence received sentences that 

were 21.6 percent shorter in the Post-Report period compared to 22.1 

percent shorter during the Gall period. 

Sentences for Hispanic female offenders who received a nongovernment sponsored below range sentence were 17.2 percent shorter 

in the Post-Report period, an increase from the 13.2 percent difference 

during the Gall period. Other Race female offenders who received a nongovernment sponsored below range sentence received sentences that

* * * * * *

-24.0

-26.7

-21.3 -22.1

-13.2

-23.4

-25.4

-21.6

-17.2 -17.2

-30

-25

-20

-15

-10

-5

0

PROTECT Booker Gall Post-Report Percentage Difference in Sentence Length

White Female vs. 

White Male

Black Female vs. 

White Male

Hispanic Female vs. 

White Male

Other Female vs. 

White Male

•Indicates that the difference between the two groups was not statistically significant. 

SOURCE: U.S. Sentencing Commission, 2003 -2016 Datafiles, USSCFY03-USSCFY16.

Fig. 11. Differences in Non-Gov’t Sponsored Below Range Sentences for 

Female Offenders

PROTECT, Booker, Gall, and Post-Report Periods

were 17.2 percent shorter in the Post-Report period, a decrease from the 

23.4 percent difference observed in the Gall period. 

Analysis of Likelihood of Obtaining a Below Range 

Sentence

In this part of the report, the Commission presents the results 

of an analysis of an offender’s likelihood of receiving a non-government 

sponsored below range sentence, when judges had the discretion to 

impose such a sentence.27 As discussed above, the Commission first 

undertook this type of analysis as part of the 2012 Booker Report.28 

At that time, the Commission found differences associated with 

demographic factors in the likelihood that offenders would receive a 

non-government sponsored below range sentence. These results could 

explain part of the overall demographic differences in sentence lengths 

that the Commission has observed in its prior reports.

There are difficulties in studying all types of below range 

sentences and, in particular, the several types of below range sentences 

sponsored by the government.29 For example, an analysis of the 

likelihood of an offender receiving a substantial assistance departure 

may be incomplete because the Commission does not have data 

regarding which defendants who did not receive a substantial assistance 

departure were eligible for a substantial assistance departure in the first 

instance. Also, government sponsored departures due to an offender’s 

willingness to participate in an Early Disposition Program (EDP)30

would be difficult to analyze, because most districts did not have an 

EDP program during the periods studied. Additionally, because there 

is little racial diversity in the offenders who receive EDP departures, 

their inclusion might mask important findings. Finally, with respect to 

the category of “other government sponsored below range sentences,” 

which typically result from plea agreements, the Commission had no data 

regarding which offenders were offered the opportunity to accept a plea 

bargain but declined. For these reasons, the Commission’s analysis of 

below range sentences is limited to non-government sponsored below 

range sentences.

The independent variables used in this analysis were the same 

as those used in the regression analysis of all cases. In this analysis, the 

Commission measured the likelihood that an offender would obtain a 

non-government sponsored below range sentence when the sentencing 

judge had the option of imposing it. That is, this analysis excluded cases 
Demographic Differences in Sentencing 15

in which a below range sentence was not possible, such as when the 

sentencing guideline range included an applicable statutory mandatory 

minimum penalty, or in cases where some aspect of the sentencing was 

otherwise outside the court’s discretion, such as when the court accepts 

a binding plea agreement. The Koon period was not included in this 

analysis.31

 Figure 12 depicts the results of the Commission’s findings. The 

analysis found that Black and Hispanic male offenders were less likely 

to receive a non-government sponsored below range sentence than 

White male offenders during all periods studied. In the Post-Report 

period, Black male offenders were 21.2 percent less likely than White 

male offenders to receive a non-government sponsored below range 

sentence. In the Gall period, this difference was 25.2 percent. This 

analysis indicated that Black male offenders were consistently less likely 

to receive a non-government sponsored below range sentence compared 

to White male offenders. 

For Hispanic male offenders, the Commission found a 31.4 

percent difference in the likelihood of receiving a non-government 

sponsored below range sentence compared to White male offenders in 

the Post-Report period. This difference was virtually unchanged from the 

31.6 percent difference observed in the Gall period. 

There were no statistically significant differences in any time 

period when comparing the likelihood of an Other Race male offender 

receiving a non-government sponsored below range sentence compared 

to the likelihood of a White male offender receiving such a sentence. 

As depicted in figure 13, White female offenders were 13.1 

percent more likely than White male offenders to receive a nongovernment sponsored below range sentence during the Post-Report 

period. This compared to an 11.5 percent difference in the Gall period. 

There were no statistically significant differences in the Booker period 

when comparing the likelihood of White female offenders receiving a 

non-government sponsored below range sentence to the likelihood of 

White male offenders receiving such a sentence.

When comparing Black female offenders to White male 

offenders, only in the Post-Report period was there a statistically 

significant difference between the two groups regarding the likelihood 

of receiving a non-government sponsored below range sentence. In the 

Post-Report period, Black female offenders were 9.5 percent more likely 

than White male offenders to receive a non-government sponsored below 

range sentence. 

Fig. 12. Likelihood of Obtaining Non-Gov’t Sponsored Below Range 

Sentences for Male Offenders

PROTECT, Booker, Gall, and Post-Report Periods

-25.0

-15.7

*

-20.9

-25.3

*

-25.2

-31.6

*

-21.2

-31.4

*

-35

-30

-25

-20

-15

-10

-5

0

PROTECT Booker Gall Post-Report

Likelihood of Obtaining a Non-Government Sponsored Below Range Sentence

Black Male vs. White Male Hispanic Male vs. White Male Other Male vs. White Male

•Indicates that the difference between the two groups was not statistically significant. 

SOURCE: U.S. Sentencing Commission, 2003 -2016 Datafiles, USSCFY03-USSCFY16.

Fig. 13. Likelihood of Obtaining Non-Gov’t Sponsored Below Range 

Sentences for Female Offenders

PROTECT, Booker, Gall, and Post-Report Periods

37.1

*

37.6

* * * * *

11.5

* * *

13.1

9.5

14.0

* 0

5

10

15

20

25

30

35

40

PROTECT Booker Gall Post-Report

White Female vs. 

White Male

Black Female vs. 

White Male

Hispanic Female vs. 

White Male

Other Female vs. 

White Male

•Indicates that the difference between the two groups was not statistically significant.

SOURCE: U.S. Sentencing Commission, 2003 -2016 Datafiles, USSCFY03-USSCFY16.

Likelihood of Obtaining a Non-Government Sponsored Below Range Sentence
Demographic Differences in Sentencing 16

The likelihood of Hispanic females receiving a non-government 

sponsored below range sentence was 14.0 percent higher in the PostReport period. There was no statistically significant difference between 

the two groups during the Gall period or the Booker period, although 

there was a 37.6 percent higher likelihood than that of White male 

offenders during the PROTECT Act period. 

The Effect of Adding Data on Prior Violence as a Factor in 

the Model

As discussed above, the Commission’s 2012 Booker Report 

and its 2010 Booker Multivariate Analysis noted that judges make 

sentencing decisions based on many legal factors and other legitimate 

considerations, and that data regarding some of these considerations was 

not included in the Commission’s regression analyses because it was not 

readily available.32 One specific example concerned information about 

violence in an offender’s criminal history. As the Commission explained 

in 2010:

[A] judge sentencing two offenders convicted of similar 

crimes with the same criminal history score under the 

federal sentencing guidelines might impose a longer 

sentence on the offender with a more violent criminal 

past than on the offender with a less violent, or nonviolent, criminal history. Similarly, a judge sentencing 

two offenders convicted of similar crimes might be 

influenced by the presence of violence in one case that 

was not present in the other case and was not reflected 

in the final offense level for those cases as determined 

under the sentencing guidelines.33

To address this issue, the Commission examined cases in which 

the offender was sentenced in fiscal year 2016 and collected information 

about the types of prior offenses for which the offender had been 

sentenced, including both federal and state crimes.34 Using this data, 

the Commission determined whether the offender had ever committed 

a violent offense.35 This data was then included in the Commission’s 

regression analysis to assess whether adding the data had any effect on 

the demographic differences in sentencing that had been observed.

Because the data regarding violent offenses was available 

only for offenders sentenced in fiscal year 2016, the Commission’s 

analysis had to be limited to cases from that fiscal year. Also, in order to 

determine whether adding the data regarding violence had any effect on 

the analysis, the Commission first performed an analysis of cases from 

fiscal year 2016 without the additional data involving violence. Then the 

analysis was replicated, with data concerning prior violence added into 

the analysis. The two results were then compared.

Figure 14 shows the results of those analyses. Examining 

only cases from fiscal year 2016, the Commission found a 20.7 percent 

difference in the sentence length for Black male offenders compared to 

White male offenders, and a 9.4 percent difference between Hispanic 

male offenders and White male offenders. Any difference between the 

sentences for Other Race male offenders and White male offenders was 

not statistically significant. 

In order to determine whether adding the additional data 

regarding violence had any effect on the analysis, the Commission then 

replicated the analysis using the data on offenders’ violent criminal 

history. To do this, the Commission added an independent variable in the 

model to control for that fact. Through this technique, the Commission 

was able to assess the effect of data about violence in the criminal history 

not only on the demographic differences in sentencing but on the overall 

model itself. 

20.7

9.4

*

20.4

9.7

* 0

5

10

15

20

25 2016 2016 - Violence CH Variable

Percentage Difference in Sentence Length

Black Male vs. White Male Hispanic Male vs. White Male Other Male vs. White Male

•Indicates that the difference between the two groups was not statistically significant. 

SOURCE: U.S. Sentencing Commission, 2016 Datafile, USSCFY16.

Fig. 14. Differences in Sentence Length Accounting for Prior Violence for 

Male Offenders 

Fiscal Year 2016
Demographic Differences in Sentencing 17

As can be seen in figures 14 and 15, the addition of the variable 

indicating a prior conviction for a violent offense had almost no effect 

on the contribution of race and gender to the sentence of the offender 

after controlling for all other factors. For example, after controlling for 

violence in the offenders’ criminal history, the difference in sentence 

length between Black male offenders and White male offenders was 

20.4 percent, a difference of only 0.3 percentage points from the results 

found without the additional data. The difference in sentence length 

between Hispanic male offenders and White male offenders also changed 

only slightly, from 9.4 percent to 9.7 percent. Similarly, the difference in 

average sentence between the remaining offender groups was virtually 

identical to what it was without the additional data included in the 

analysis. 

Also, the Commission found that the effect of the data about 

violent criminal history on the sentences imposed was, in itself, not 

statistically significant. That is, violence in an offender’s past did not 

have any independent effect on the sentence imposed over and above 

the effect of the other variables measured. As discussed more fully 

in the 2010 Booker Multivariate Analysis, interpreting regression 

analysis results depends on several factors. One primary factor is the 

“significance test,” which asks whether the results of the analysis for each 

independent variable are “statistically significant.” Statistical significance 

is a determination of the probability that the measured relationship 

between an independent variable and the dependent variable is the 

result of random chance (i.e., that the measured relationship does not, 

in fact, reflect a true association).36 The Commission found that the 

prior violence variable itself had no statistically significant effect on the 

dependent variable (i.e., sentence length).37 That is, it cannot be said that 

violence in an offender’s past has any true association with the sentence 

imposed. 

A second factor helpful in assessing the results of regression 

analysis is the R2 (or “r-squared”). This is a numerical measure of 

the extent to which the results of a regression analysis account for all 

the variation in the data used in the analysis. Put another way, it is a 

representation of the “degree of fit” between the regression results 

and the particular data being analyzed. A high R2 means that much of 

the variation in the dependent variable has been accounted for by the 

independent variables in the model whereas a low R2 indicates that 

there are one or more variables missing from the model that affect the 

dependent variable, or the variables selected have little to no association 

with the independent variables.38

In theory, the addition of data about a factor that has an effect 

on a phenomenon being studied should increase the R2 of a regression 

analysis. If additional data does not increase the R2, then the researcher 

can conclude that the factor does not help explain the phenomenon being 

studied; that is, it has no actual effect on the outcome. The inclusion of 

the prior violence data in the Commission’s regression analysis had no 

effect in the overall R2 of the model.39 Based on this, the Commission 

concludes that violence in an offender’s criminal history has no effect on 

the sentence imposed over and above the contribution that the sentence 

imposed for the crime in which the violent act occurred has on the 

offender’s criminal history score.40

Limitations of Regression Analysis

In its prior reports,41 the Commission noted that results from its 

analyses should be taken with caution. Although regression analysis is 

a tool commonly used by social scientists, as well as in a variety of legal 

contexts, to examine the relationship between multiple factors, 42 it has 

limitations. In particular, one or more key factors that could affect the 

analysis may have been omitted from the methodologies used because 

a particular factor is unknown, or because data about it is not readily 

available. 

Fig. 15. Differences in Sentence Length Accounting for Prior Violence for 

Female Offenders 

Fiscal Year 2016

-27.2 -26.4

*

-37.7

-27.0 -26.4

*

-37.5 -40

-35

-30

-25

-20

-15

-10

-5

0

2016 2016 - Violence CH Variable

Percentage Difference in Sentence Length

White Female vs. 

White Male

Black Female vs. 

White Male

Hispanic Female vs. 

White Male

Other Female vs. 

White Male

•Indicates that the difference between the two groups was not statistically significant. 

SOURCE: U.S. Sentencing Commission, 2016 Datafile, USSCFY16.
Demographic Differences in Sentencing 18

For example, judges may consider potentially relevant 

information available to them in a presentence report, such as an 

offender’s employment history or family circumstances. However, 

the Commission does not routinely extract this information from the 

sentencing documents it receives and, therefore, data about those 

factors are not controlled for in this analysis. Additionally, judges may 

make decisions about sentencing offenders based on other legitimate 

considerations that cannot be measured. 

Because multivariate regression analysis cannot control for all of 

the factors that judges may consider, the results of the analyses presented 

in this report should be interpreted with caution and should not be taken 

to suggest discrimination on the part of judges. Multivariate analysis 

cannot explain why the observed differences in sentencing outcomes 

exist, but only that they do exist. 
Section III

Conclusion
Demographic Differences in Sentencing 20

Conclusion

In this report, the Commission has provided an update to its 

prior reports on demographic differences in sentencing. The Commission 

found that sentence length continues to be associated with some 

demographic factors, in particular race and gender. After controlling for 

a wide variety of sentencing factors, the Commission found that Black 

male offenders continued to receive longer sentences than similarly 

situated White male offenders, and that female offenders of all races 

received shorter sentences than White male offenders.

Non-government sponsored departures and variances appear 

to contribute significantly to the difference in sentence length between 

Black male and White male offenders. Black male offenders were less 

likely than White male offenders to receive a non-government sponsored 

downward departure or variance during the most recent period studied. 

Further, even when Black male offenders received a non-government 

sponsored departure or variance, their sentences were longer than White 

male offenders who received a non-government sponsored departure or 

variance. 

The Commission also found that prior violent crimes, as 

documented in an offender’s criminal history, do not significantly 

contribute to demographic differences in federal sentencing. An 

offender’s past criminal violence is not a statistically significant predictor 

of the sentence imposed for a federal offense to any extent beyond the 

contribution it makes to the offender’s final sentence imposed through 

operation of the criminal history score under the sentencing guidelines.
Appendices
Demographic Differences in Sentencing 22

Appendix A: Analysis of Other Demographic Factors

Results of Demographic Multivariate Regression Analysis for 

All Cases

As discussed in the body of this report, the Commission’s 

multivariate regression analysis for all cases, updated through fiscal 

year 2016, continues to demonstrate that some demographic factors are 

associated with sentence length to a statistically significant extent during 

the periods studied. In this appendix, the Commission will focus on the 

demographic factors of citizenship, education, and age of the offender. 

Again, the analysis will focus primarily on the most recent period 

studied—the Post-Report period—as compared to the immediately 

preceding period, the Gall period; however, the results for all periods are 

presented in the figures that accompany this discussion.43

Figure 16 depicts differences in sentence length associated with 

the demographic factors of citizenship, education, and age for all cases. 

Non-citizen offenders received sentences that were 5.0 percent longer 

than those for United States citizens during the Post-Report period, 

although this difference was lower than observed in any of the prior 

periods studied. During the Gall period the difference was 10.4 percent 

longer than those of United States citizens. 

The differences in sentences for offenders with at least some 

college education compared to offenders with no college education was 

not statistically significant in the Post-Report period, although those 

differences had been statistically significant in prior periods. During 

the Gall period, offenders with at least some college education received 

sentences that were 4.6 percent shorter than those of offenders with no 

college education.

Finally, offenders over the age of 25 had slightly longer sentences 

than those 25 years of age or younger, with a difference of 2.9 percent in 

the Post-Report period. The differences between the sentences for these 

two groups was 2.5 percent in the Gall period. 

Analysis of Differences in Sentencing by Guideline 

Application

The Commission conducted further analyses focusing on the 

position of the sentence imposed relative to the applicable guideline 

range and on specific offense types. These additional analyses were 

undertaken for three reasons: (1) to identify more precisely where 

demographic differences may be occurring; (2) to determine whether the 

same pattern of results would be replicated when studying sentencing 

outcomes other than sentence length, and when studying specific 

offenses; and (3) to identify and measure the extent to which any 

particular factor, such as type of offense or sentence relative to the range, 

might contribute to the overall finding of demographic differences in 

sentencing. 

For this analysis, cases were divided into four groups: (1) those 

where the sentence was within the sentencing guideline range; (2) those 

where the sentence was above the guideline range;44 (3) those where the 

sentence was imposed below the guideline range at the request of the 

government; and (4) all other below range sentences.45 

7.4

-7.8

3.6

*

-3.9

*

8.5

-5.4

3.1

10.4

-4.6

2.5

5.0

*

2.9

-10

-5

0

5

10

15

Koon PROTECT Booker Gall Post-Report

Percentage Difference in Sentence Length

Non-U.S. Citizen vs.

U.S. Citizen

Any College vs.

No College

Over 25 Years of Age vs.

25 Years of Age or Younger

•Indicates that the difference between the two groups was not statistically significant. 

SOURCE: U.S. Sentencing Commission, 1999 -2016 Datafiles, USSCFY99-USSCFY16.

Fig. 16. Differences in Sentence Length in All Cases by Demographic Factors 

Koon, PROTECT, Booker, Gall, and Post-Report Periods
Demographic Differences in Sentencing 23

Within Range Sentences 

Figure 17 depicts the results of the multivariate analysis 

regarding citizenship, education, and age for within range sentences. 

During the Koon period, non-citizen offenders sentenced within the 

guideline range received sentences that were 5.5 percent shorter than 

those for United States citizens sentenced within the range. However, in 

the four periods afterward, the within range sentences for non-citizens 

were longer than those for United States citizens. This difference was 7.0 

percent in the Gall period, and 6.3 percent in the Post-Report period.

The Commission’s prior analysis found no statistically significant 

differences in the sentence length of offenders who had attended college 

and received within range sentences compared to offenders who had 

not attended college and received within range sentences. However, in 

the Post-Report period, the Commission found that those who attended 

college received sentences that were 1.9 percent longer than offenders 

who did not attend college. 

Similarly, the Commission’s prior analysis found no statistically 

significant differences in the sentence length for offenders over the age of 

25 who received within range sentences compared with the within range 

sentences for offenders 25 years of age or younger. In the Post-Report 

period, however, the Commission found a 2.8 percent decrease in the 

within range sentences of those who were over 25 years of age compared 

to those who were 25 years of age and younger.

Below Range Sentences

Substantial Assistance Departure Sentences

The Commission also examined cases in which the sentence 

imposed was below the applicable guideline range to determine whether 

demographic differences were present. These “below range” sentences 

can occur for different considerations. For statistical purposes, the 

Commission groups below range sentences into two broad categories—

those sponsored by the government and those not sponsored by the 

government.46 Government sponsored below range sentences are further 

subdivided.47 Each will be addressed in turn.

Figure 18 depicts the findings of the analysis regarding 

citizenship, education, and age for cases in which there was a substantial 

assistance departure. There were no statistically significant differences 

between the sentence lengths of non-citizen offenders compared to 

Fig. 17. Differences in Within Range Sentences by Demographic Factors 

Koon, PROTECT, Booker, Gall, and Post-Report Periods

Fig. 18. Differences in Substantial Assistance Departure Sentences by 

Demographic Factors 

Koon, PROTECT, Booker, Gall, and Post-Report Periods

-5.5

*

*

6.0

*

*

9.7

*

*

7.0

*

*

6.3

1.9

-2.8

-10

-5

0

5

10

15 Koon PROTECT Booker Gall Post-Report

Percentage Difference in Sentence Length

•Indicates that the difference between the two groups was not statistically significant. 

SOURCE: U.S. Sentencing Commission, 1999 -2016 Datafiles, USSCFY99-USSCFY16.

Non-U.S. Citizen vs.

U.S. Citizen

Any College vs.

No College

Over 25 Years of Age vs.

25 Years of Age or Younger

*

-18.2

* * * * *

-14.0

-8.4

*

-14.3

-11.8

*

-10.5

-12.5

-20

-18

-16

-14

-12

-10

-8

-6

-4

-2

0

Koon PROTECT Booker Gall Post-Report

Percentage Difference in Sentence Length

•Indicates that the difference between the two groups was not statistically significant. 

SOURCE: U.S. Sentencing Commission, 1999 -2016 Datafiles, USSCFY99-USSCFY16.

Non-U.S. Citizen vs.

U.S. Citizen

Any College vs.

No College

Over 25 Years of Age vs.

25 Years of Age or Younger
Demographic Differences in Sentencing 24

sentence lengths of United States citizens who received substantial 

assistance departures in any period. 

The differences in sentences for offenders with some college 

education who received substantial assistance departures compared to 

offenders with no college education who received substantial assistance 

departures were statistically significant in all but one time period. In the 

Post-Report period, offenders with any college education who received 

substantial assistance departures received sentences that were 10.5 

percent shorter than offenders with no college education who received 

such departures. During the Gall period this difference was 14.3 percent.

The differences between sentences of offenders over the 

age of 25 who received a substantial assistance departure compared 

with those 25 years of age or younger who received such a departure 

were statistically significant in only the last three time periods. In 

the Post-Report period, offenders over the age of 25 who received a 

substantial assistance departure received sentences 12.5 percent shorter 

than offenders who were 25 years of age or younger who received a 

substantial assistance departure, a slight increase from the 11.8 percent 

difference in the Gall period. 

Other Government Sponsored Below Range Sentences 

Figure 19 presents the findings of the Commission’s multivariate 

analysis of government sponsored below range sentences for reasons 

other than the offender’s substantial assistance.48 Cases from the Koon

period were excluded from this analysis because the Commission did not 

collect data during that period in a manner that would indicate whether 

a sentence below the guideline range for reasons other than substantial 

assistance was initiated by the government or the court. 

Figure 19 shows the Commission’s findings of the multivariate 

analysis as to citizenship, education, and age specific to other government 

sponsored below range sentences. In the Gall period, the sentence for 

non-citizen offenders was 19.2 percent longer than those for U.S. citizen 

offenders. This difference increased to 27.7 percent in the Post-Report 

period. 

There was no statistically significant difference in sentence 

length between offenders with at least some college education 

compared to offenders with no college education who received an other 

government sponsored below range sentence in any period. In the Gall

period, offenders over the age of 25 who received an other government 

sponsored below range sentence received sentences 18.5 percent shorter 

than offenders who were 25 years of age or younger and received an 

other government sponsored below range sentence. In the Post-Report 

period this difference was 10.1 percent. 

Non-Government Sponsored Below Range Sentences

Figure 20 on the next page depicts the results of the 

Commission’s multivariate analysis of non-government sponsored below 

range sentences, i.e., those sentences falling below the guideline range for 

any reason not initiated by the government. Only four time periods are 

included in this multivariate analysis: the PROTECT Act, Booker, Gall, and 

Post-Report periods.49 

The Commission’s findings regarding citizenship, education, 

and age for non-government sponsored below range sentences are 

depicted in Figure 20. During the Post-Report period, the sentences for 

non-citizens who received a non-government sponsored below range 

sentence were 24.3 percent longer than those for United States citizens 

who received a non-government sponsored below range sentence. In the 

Gall period, that difference was 25.2 percent. There were no statistically 

* *

*

22.9

*

-15.2

19.2

*

-18.5

27.7

*

-10.1

-20

-10

0

10

20

30

PROTECT Booker Gall Post-Report

Percentage Difference in Sentence Length

•Indicates that the difference between the two groups was not statistically significant.

SOURCE: U.S. Sentencing Commission, 2003 -2016 Datafiles, USSCFY03-USSCFY16.

Non-U.S. Citizen vs.

U.S. Citizen

Any College vs.

No College

Over 25 Years of Age vs.

25 Years of Age or Younger

Fig. 19. Differences in Other Gov’t Sponsored Below Range Sentences by 

Demographic Factors 

PROTECT, Booker, Gall, and Post-Report Periods
Demographic Differences in Sentencing 25

significant differences in sentence length between these two groups in 

the PROTECT Act period. 

Only in the Post-Report period was there a statistically 

significant difference found in sentence length between offenders with at 

least some college education who received a non-government sponsored 

below range sentence and offenders with no college education who 

received that type of sentence. Offenders who attended college received 

sentences 7.0 percent higher than those who did not attend in the PostReport period. In all prior periods, no statistically significant differences 

in non-government sponsored below range sentences were observed. 

The differences between sentences of offenders over the age of 

25 who received a non-government sponsored below range sentence 

and those 25 years of age or younger who received a non-government 

sponsored below range sentence were not statistically significant in the 

Post-Report period. In the Gall period the difference was 8.4 percent. 

Analysis of Likelihood of Obtaining a Below Range 

Sentence

In this part of the Appendix, the Commission presents the results 

of an analysis of an offender’s likelihood of receiving a non-government 

sponsored below range sentence, when judges had the discretion to 

impose such a sentence, and any association with the demographic 

factors of citizenship, education, and age.50 

As depicted in Figure 21, during the Post-Report period, noncitizen offenders had a 20.4 percent higher likelihood of receiving a 

non-government sponsored below range sentence than United States 

citizen offenders. The difference was an increase from the 11.2 percent 

difference observed during the Gall period.

In the Post-Report period, offenders with at least some college 

education were 22.5 percent more likely to receive a non-government 

sponsored below range sentence than offenders with no college 

education. The difference was 23.7 percent in the Gall period. 

The differences between sentences of offenders over the age of 

25 compared with those 25 years of age or younger were statistically 

20.7

18.1

14.1

18.2

22.1

7.5

11.2

23.7

*

20.4

22.5

-3.7

-10

-5

0

5

10

15

20

25

PROTECT Booker Gall Post-Report

•Indicates that the difference between the two groups was not statistically significant. 

SOURCE: U.S. Sentencing Commission, 2003 -2016 Datafiles, USSCFY03-USSCFY16.

Likelihood of Obtaining a Non-Government Sponsored Below Range Sentence

Non-U.S. Citizen vs.

U.S. Citizen

Any College vs.

No College

Over 25 Years of Age vs.

25 Years of Age or Younger

Fig. 21. Likelihood of Obtaining Non-Gov’t Sponsored Below Range 

Sentences by Demographic Factors

PROTECT, Booker, Gall, and Post-Report Periods

Fig. 20. Differences in Non-Gov’t Sponsored Below Range Sentences by 

Demographic Factors 

PROTECT, Booker, Gall, and Post-Report Periods

* *

*

17.2

*

-10.3

25.2

*

-8.4

24.3

7.0

*

-15

-10

-5

0

5

10

15

20

25

30

PROTECT Booker Gall Post-Report

Percentage Difference in Sentence Length

•Indicates that the difference between the two groups was not statistically significant. 

SOURCE: U.S. Sentencing Commission, 2003 -2016 Datafiles, USSCFY03-USSCFY16.

Non-U.S. Citizen vs.

U.S. Citizen

Any College vs.

No College

Over 25 Years of Age vs.

25 Years of Age or Younger
Demographic Differences in Sentencing 26

significant in three time periods, but in different directions. In the PostReport period, offenders who were over 25 years of age were 3.7 percent 

less likely to receive a non-government sponsored below range sentence 

than offenders who were 25 years of age and younger. This was a 

reverse of the relationship observed during the PROTECT Act and Booker 

periods, where offenders over the age of 25 were more likely to receive 

a non-government sponsored below range sentence than offenders who 

were 25 years of age or younger. By the time of the Gall period, however, 

no statistically significant differences were found between the two 

groups.

Appendix B: Offense Specific Analysis

Analysis of Differences in Sentencing by Offense Type

For the 2012 Booker Report, the Commission expanded its 

multivariate analysis to examine specific types of offenses.51 While the 

Commission’s multivariate analyses always control for the type of offense 

involved in the case, the additional analyses presented in the 2012 

Booker Report used the regression technique to examine a single offense 

more closely, by limiting the cases in each analysis to those involving that 

specific offense type. The Commission performed this additional analysis 

for two reasons: first, to determine whether its findings on demographic 

differences in overall sentencing outcomes would be replicated in the 

major offense types; and second, to determine the extent to which 

demographic differences in sentencing for different offense types 

contributed to the demographic differences observed for all sentences. 

In the 2012 Booker Report the Commission presented an analysis of three 

major offense types for which there was a sufficient number of cases and 

sufficient diversity in the demographic factors: drug trafficking, fraud, 

and firearms. Immigration and child pornography offenses lacked a 

sufficient number of cases with offenders of different races to support a 

robust analysis.52 

Consistent with the results of the analysis of all cases, 

demographic factors were associated with sentence length to a 

statistically significant extent during some of the time periods studied 

for drug trafficking, fraud, and firearms offenses. For this report, the 

Commission has updated these offense type analyses with data from the 

Post-Report period.53

Drug Trafficking Offenses

Figure 22 depicts the results of the Commission’s multivariate 

analysis specific to drug trafficking offenses. This analysis includes 

offenders involved in trafficking of the five major drug types—powder 

cocaine, crack cocaine, marijuana, methamphetamine, and heroin—while 

controlling for the type of drug involved in the offense. Controlling for 

drug type means, for example, that crack cocaine offenders are compared 

only to other crack cocaine offenders, while methamphetamine offenders 

are compared only to other methamphetamine offenders. The analysis 

found that the differences in sentence length for Black male drug 

offenders compared to White male drug offenders have varied over time. 

In the Post-Report period, Black male drug offenders received sentences 

that were 17.7 percent longer than White male drug offenders. In the 

Gall period the difference between these two groups was 13.1 percent. 

The differences in sentence length between Hispanic male and 

White male drug offenders were statistically significant in three of the 

five time periods studied. In the Post-Report period Hispanic male drug 

offenders received sentences 6.8 percent longer than White male drug 

offenders. This compares to 4.3 percent during the Gall period. There 

were no statistically significant differences between the sentences for the 

two groups during the Koon or PROTECT Act periods. 

9.2

* * * * *

9.1

4.8

10.6

13.1

4.3

11.8

17.7

6.8

11.8

0

5

10

15

20

Koon PROTECT Booker Gall Post-Report

Percentage Difference in Sentence Length

Black Male vs. White Male Hispanic Male vs. White Male Other Male vs. White Male

•Indicates that the difference between the two groups was not statistically significant. 

SOURCE: U.S. Sentencing Commission, 1999 -2016 Datafiles, USSCFY99-USSCFY16.

Fig. 22. Differences in Sentence Length for Male Drug Trafficking Offenders

Koon, PROTECT, Booker, Gall, and Post-Report Periods
Demographic Differences in Sentencing 27

Similarly, there were no statistically significant differences in 

sentence length between Other Race male and White male drug offenders 

during the Koon or PROTECT Act periods. However, in both the PostReport and Gall periods, the differences between the sentences for the 

two groups had increased to 11.8 percent. 

Female drug offenders of all races received sentences that were 

shorter than those of White male drug offenders in nearly all of time 

periods studied. In the Post-Report period, White female drug offenders 

received sentences 26.6 percent shorter than White male drug offenders. 

This difference was 22.4 percent during the Gall period. 

Sentence length for Black female drug offenders compared 

to White male drug offenders followed a different pattern, with Black 

female drug offenders receiving increasingly shorter sentences over the 

five time periods. These differences increased steadily to the Post-Report 

period, where Black female drug offenders received sentences that were 

38.2 percent shorter than those for White male drug offenders. 

Sentences for Hispanic female drug offenders also were shorter 

than those of White male drug offenders during all periods studied. In 

the Post-Report period, sentences for Hispanic female drug offenders 

were 23.8 percent shorter than for White male drug offenders. This 

difference was 17.1 percent in the Gall period.

Other Race female drug offenders received sentences 22.4 

percent shorter than White male drug offenders during the Post-Report 

period. However, there was no statistically significant difference in 

sentence length observed between Other Race female drug offenders and 

White male drug offenders during the Gall period. 

Figure 24 depicts the results of the analysis as to citizenship, 

education, and age for drug trafficking offenses. Non-citizen drug 

offenders received shorter sentences than United States citizen drug 

offenders in three of the five time periods, although there were no 

statistically significant differences in sentence length between these two 

groups in the Post-Report and Gall periods. 

The differences in sentences for drug offenders with at least 

some college education compared to drug offenders with no college 

education were statistically significant in four time periods. Drug 

offenders with at least some college education received sentences that 

were 4.5 percent shorter than drug offenders with no college experience 

in the Post-Report period, and 7.8 percent shorter in the Gall period. 

-27.0

-20.4 -20.9 -19.8

-30.6

-21.3

-11.9

-26.2

-15.2

-23.9

-15.0

*

-22.4

-28.5

-17.1

*

-26.6

-38.2

-23.8 -22.4

-45

-40

-35

-30

-25

-20

-15

-10

-5

0

Koon PROTECT Booker Gall Post-Report Percentage Difference in Sentence Length

White Female vs. 

White Male

Black Female vs. 

White Male

Hispanic Female vs. 

White Male

Other Female vs. 

White Male

•Indicates that the difference between the two groups was not statistically significant. 

SOURCE: U.S. Sentencing Commission, 1999 -2016 Datafiles, USSCFY99-USSCFY16.

Fig. 23. Differences in Sentence Length for Female Drug Trafficking Offenders

Koon, PROTECT, Booker, Gall, and Post-Report Periods

-2.7

-8.6

4.8

-6.0

*

*

-4.9 -6.1

5.1

*

-7.8

*

*

-4.5

7.2

-15

-10

-5

0

5

10

15

20

25

Koon PROTECT Booker Gall Post-Report

Percentage Difference in Sentence Length

Non-U.S. Citizen vs. 

U.S. Citizen

Any College vs. 

No College

Over 25 Years of Age vs.

25 Years of Age or Younger

•Indicates that the difference between the two groups was not statistically significant. 

SOURCE: U.S. Sentencing Commission, 1999 -2016 Datafiles, USSCFY99-USSCFY16.

Fig. 24. Differences in Sentence Length for Drug Trafficking Offenders by 

Demographic Factors

Koon, PROTECT, Booker, Gall, and Post-Report Periods
Demographic Differences in Sentencing 28

Finally, there were differences between sentences of drug 

offenders over the age of 25 compared with those 25 years of age or 

younger during three of the five periods studied. In the Post-Report 

period, drug offenders over the age of 25 received sentences that were 

7.2 percent longer than drug offenders 25 years of age or younger. 

During the Gall period, there were no statistically significant sentencing 

differences between these two groups of offenders.

Fraud Offenses

The findings of the Commission’s multivariate analysis specific 

to fraud offenses are presented in Figure 25. The differences in sentence 

length for Black male fraud offenders compared to White male fraud 

offenders were statistically significant during the Post-Report period, 

when the difference was a 10.7 percent longer sentence for Black male 

offenders. There was no statistically significant difference observed 

during the Gall period. 

The differences in sentence length between Hispanic male and 

White male fraud offenders were statistically significant in each period. 

In the Post-Report period, Hispanic male fraud offenders received 

sentences that were 17.3 percent longer than White male fraud offenders. 

That difference was a decrease from 29.6 percent in the Gall period. 

There were no statistically significant differences in sentence length 

between Other Race male and White male fraud offenders during any 

time period.

As seen in figure 26, female fraud offenders of all races generally 

were sentenced to shorter terms than White male fraud offenders. In the 

Post-Report period, White female fraud offenders received sentences that 

were 20.9 percent shorter than those for White male fraud offenders. In 

the Gall period, that difference was 18.3 percent. During the PROTECT 

Act and Booker periods, there were no statistically significant differences 

in sentence length between the two groups. 

The differences in sentence length for Black female fraud 

offenders compared to White male fraud offenders were statistically 

significant in each period. In the Post-Report period, Black female fraud 

offenders received sentences 18.1 percent shorter than White male fraud 

offenders. This difference was similar to the 18.6 percent observed in 

Gall period. 

Differences in sentence length for Hispanic female fraud 

offenders compared to White male fraud offenders were not statistically 

significant in the Post-Report and Gall periods. 

7.4

12.1

* *

25.6

* *

20.8

* *

29.6

*

10.7

17.3

* 0

5

10

15

20

25

30

35 Koon PROTECT Booker Gall Post-Report

Percentage Difference in Sentence Length

Black Male vs. White Male Hispanic Male vs. White Male Other Male vs. White Male

•Indicates that the difference between the two groups was not statistically significant. 

SOURCE: U.S. Sentencing Commission, 1999 -2016 Datafiles, USSCFY99-USSCFY16.

Fig. 25. Differences in Sentence Length for Male Fraud Offenders

Koon, PROTECT, Booker, Gall, and Post-Report Periods

-12.2 -13.0

-25.5

-31.6

*

-23.0

-28.9

-35.0

*

-15.4

-19.2

*

-18.3 -18.6

*

-21.5 -20.9

-18.1

* *

-40

-35

-30

-25

-20

-15

-10

-5

0

Koon PROTECT Booker Gall Post-Report Percentage Difference in Sentence Length

White Female vs. 

White Male

Black Female vs. 

White Male Hispanic Female vs. 

White Male

Other Female vs. 

White Male

•Indicates that the difference between the two groups was not statistically significant. 

SOURCE: U.S. Sentencing Commission, 1999 -2016 Datafiles, USSCFY99-USSCFY16.

Fig. 26. Differences in Sentence Length for Female Fraud Offenders

Koon, PROTECT, Booker, Gall, and Post-Report Periods
Demographic Differences in Sentencing 29

Other Race female fraud offenders received sentences that were 

shorter than those for White male fraud offenders in three of the five 

time periods studied. The difference in sentence length between the two 

groups was not statistically significant in the Post-Report period. In the 

Gall period, Other Race female fraud offenders received sentences that 

were 21.5 percent shorter than White male fraud offenders.

The results of the analyses regarding citizenship, education, 

and age for fraud offenders are depicted in Figure 27. Non-citizen fraud 

offenders received sentences that were 29.7 percent shorter than United 

States citizen fraud offenders in the Koon period. However, from the 

PROTECT Act period through the Post-Report period, non-citizen fraud 

offenders received sentences increasingly longer than United States 

citizen fraud offenders. This difference was 24.1 percent longer in the 

Post-Report period and 34.5 percent longer in the Gall period.

The differences in sentences for fraud offenders with at least 

some college education compared to fraud offenders with no college 

education were statistically significant in only the two most recent 

periods. In the Post-Report period, fraud offenders with at least some 

college education received sentences 9.4 percent longer than fraud 

offenders with no college education. This difference was 8.4 percent in 

the Gall period.

For most of the periods studied, there were no statistically 

significant sentence differences between fraud offenders over the age of 

25 compared to those 25 years of age or younger. However, during the 

Post-Report period, fraud offenders over the age of 25 had 11.5 percent 

lower sentences than those 25 years of age or younger. 

Firearms Offenses

The results of the Commission’s multivariate analysis of firearms 

offenses are depicted in Figure 28.54 The analysis found that, in general, 

Black male firearms offenders received longer sentences than White 

male firearms offenders. In the Post-Report period, Black male firearms 

offenders received sentences that were 19.3 percent longer than those 

for White male firearms offenders. This was an increase from the 10.2 

percent difference observed in the Gall period.

In contrast, there were no statistically significant differences 

between the sentences of Hispanic male and White male firearms 

offenders during any time period studied. The sentences for Other Race 

male firearms offenders differed from those for White male firearms 

offenders only in the Koon period. There were no statistically significant 

differences in the sentences of these offenders in the four later time 

periods.

Fig. 27. Differences in Sentence Length for Fraud Offenders by 

Demographic Factors

Koon, PROTECT, Booker, Gall, and Post-Report Periods

-29.7

*

*

28.4

*

*

30.1

*

*

34.5

8.4

*

24.1

9.4

-11.5

-40

-30

-20

-10

0

10

20

30

40

Koon PROTECT Booker Gall Post-Report

Percentage Difference in Sentence Length

Non-U.S. Citizen vs.

U.S. Citizen

Any College vs.

No College Over 25 Years of Age vs.

25 Years of Age or Younger

•Indicates that the difference between the two groups was not statistically significant.

SOURCE: U.S. Sentencing Commission, 1999 -2016 Datafiles, USSCFY99-USSCFY16.

6.0

*

18.2

* * *

8.5

* *

10.2

* *

19.3

* * 0

5

10

15

20

25 Koon PROTECT Booker Gall Post-Report

Percentage Difference in Sentence Length

Black Male vs. White Male Hispanic Male vs. White Male Other Male vs. White Male

•Indicates that the difference between the two groups was not statistically significant. 

Hispanic Females and “Other” Females are excluded from this analysis due to lack of firearm offenders of these races and gender.

SOURCE: U.S. Sentencing Commission, 1999 -2016 Datafiles, USSCFY99-USSCFY16.

Fig. 28. Differences in Sentence Length for Male Firearms Offenders

Koon, PROTECT, Booker, Gall, and Post-Report Periods
Demographic Differences in Sentencing 30

In general, White female and Black female firearms offenders 

received sentences that were shorter than sentences for White male 

firearms offenders. In the Post-Report period, White female firearms 

offenders received sentences 45.0 percent shorter than White male 

firearms offenders. This difference was similar to the 44.0 percent 

difference observed during the Gall period. 

Differences in sentence lengths for Black female firearms 

offenders compared to White male firearms offenders were statistically 

significant during all five periods. During the Post-Report period, Black 

female firearms offenders received sentences 45.1 percent shorter than 

White male firearms offenders. However, this was a decrease from the 

59.4 percent difference observed during the Gall period.

Regarding citizenship, education, and age, Figure 30 depicts the 

results of these analyses specific to firearms offenders. There were no 

statistically significant differences between the sentences of non-citizen 

firearms offenders and those of United States citizen firearms offenders 

during any time period. 

In contrast, there were statistically significant differences in 

sentences for firearms offenders with at least some college education 

compared to the sentences of firearms offenders with no college 

education in all five time periods. Firearms offenders with at least some 

college education received sentences 12.6 percent shorter than firearms 

offenders with no college education in the Post-Report period. This 

difference was 9.9 percent in the Gall period.

Differences in the sentences for offenders who were over the 

age of 25 were only statistically significantly in the Post-Report period. 

In that period, offenders over the age of 25 years received sentences 

that were 5.7 percent longer than offenders who were 25 years of age or 

younger.

-47.5 -45.2

*

-73.5

-38.5

-48.3

-44.0

-59.4

-45.0 -45.1

-80

-70

-60

-50

-40

-30

-20

-10

0

Koon PROTECT Booker Gall Post-Report

Percentage Difference in Sentence Length

White Female vs. White Male Black Female vs. White Male

•Indicates that the difference between the two groups was not statistically significant. 

Hispanic Females and “Other” Females are excluded from this analysis due to lack of firearm offenders of these races and gender.

SOURCE: U.S. Sentencing Commission, 1999 -2016 Datafiles, USSCFY99-USSCFY16.

Fig. 29. Differences in Sentence Length for Female Firearms Offenders

Koon, PROTECT, Booker, Gall, and Post-Report Periods

*

-8.4

* *

-14.9

* *

-10.4

* *

-9.9

* *

-12.6

5.7

-20

-15

-10

-5

0

5

10 Koon PROTECT Booker Gall Post-Report

Percentage Difference in Sentence Length

•Indicates that the difference between the two groups was not statistically significant. 

Hispanic Females and “Other” Females are excluded from this analysis due to lack of firearm offenders of these races and gender.

SOURCE: U.S. Sentencing Commission, 1999 -2016 Datafiles, USSCFY99-USSCFY16.

Non-U.S. Citizen vs.

U.S. Citizen

Any College vs.

No College

Over 25 Years of Age vs.

25 Years of Age or Younger

Fig. 30. Differences in Sentence Length for Firearms Offenders by 

Demographic Factors

Koon, PROTECT, Booker, Gall, and Post-Report Periods
Demographic Differences in Sentencing 31

Appendix C: Methodology

The dependent variable used in each of the analyses was an 

offender’s total sentence length, in months, which included alternatives 

to imprisonment.55 Probationary sentences without conditions of 

confinement are included as sentences of zero months. The independent 

variables were:

•	 The presumptive sentence, which is the bottom of the 

applicable sentencing guideline range that applies in a 

case (i.e., the minimum sentence, in months, to which the 

offender was subject under the sentencing guidelines, 

taking into account all guideline, statutory, and mandatory 

minimum provisions);56

•	 Type of offense committed (violent, sexual, pornography, 

drug trafficking, white collar, immigration, or other);57

•	 Whether a statutory mandatory minimum punishment was 

applied at sentencing;58

•	 Whether the court determined that a sentence outside the 

applicable sentencing guideline range was warranted;59

•	 Detention status (whether the offender had been released 

on bail prior to sentencing);

•	 Whether the offender pleaded guilty;

•	 Race of the offender paired with the gender of the offender;

•	 Citizenship of the offender (whether the offender was a 

United States citizen);

•	 Educational level of the offender; and

•	 Age of the offender.

The multivariate analyses pair race and gender into eight distinct 

groups: White males/females, Black males/females, Hispanic males/

females, and Other Race males/females. Reporting the results of the 

analyses in this way identifies any differences in sentencing outcomes 

associated with the offender’s race, gender, or both. 

For the portion of this report regarding violence in an offender’s 

criminal history, the Commission used data from a separate project 

examining the criminal history of federal offenders. As part of that 

project, the Commission examined the presentence investigation reports 

(PSRs) for all offenders sentenced in fiscal year 2016 to collect data on all 

juvenile adjudications and state and federal adult convictions. An optical 

recognition program scanned the criminal history section of the PSRs and 

recorded the following:

• Date of arrest;

• Date of sentence;

• State in which the court was located;

• Number of points assigned under Chapter 4 of the sentencing 

 guidelines; 

• Chapter 4 guideline(s) cited;

• Whether the offense was a juvenile adjudication or adult 

 conviction; 

• Whether the adjudication/conviction was in a federal, state, 

 or tribal court; and 

• Conviction charge(s).

The program assigned each adjudication or conviction to one 

of 102 standardized offense categories. Those categories were further 

grouped into 35 broad offense groups for analytical purposes. For all 

offenders with criminal history, staff reviewed all of the information 

recorded by the program to ensure accuracy, made any necessary changes 

to the data, and confirmed the categorization of the adjudication or 

offense into one of the 35 offense groups. 
Demographic Differences in Sentencing 32

Assault, Simple Assault, Intimidation (of a person other than a witness), 

Hit and Run with Bodily Injury, Extortion, Child Abuse, Burglary, Arson, 

Rioting, and Other Violent Offense (a group of infrequently-occurring 

violent offenses). All offenders were then divided into two groups: those 

with any prior adjudication or conviction for a violent offense and those 

with no prior adjudications or convictions for a violent offense. A binary 

independent variable was created with this data and included in the 

Commission’s multivariate regression analysis model.

These analyses show that some differences exist, and describe 

the relative size of those differences, in the periods in which the 

differences were observed. However, the fact that certain sentencing 

outcomes may be correlated with demographic factors does not mean 

that the demographic factors caused the outcome.60 Therefore, the 

demographic differences in sentencing outcomes revealed by these 

analyses should not be interpreted as a finding that demographic factors 

caused those differences. Neither can the analyses presented in this 

report be used to explain why the observed differences in sentencing 

outcomes exist.

Although multivariate regression analysis is common in social 

science research, and steps were taken to ensure its appropriateness for 

these analyses, this type of analysis has limitations. One or more key 

factors that could affect the analysis may have been omitted from the 

methodologies used because a particular factor is unknown, or because 

data concerning the factor is not readily available in the Commission’s 

datasets. Such factors may include whether the offender committed 

crimes not reflected in an offender’s criminal history score, and the 

offender’s employment record. Accordingly, the results presented in this 

report should be interpreted with caution and should not be taken to 

suggest race or gender discrimination on the part of judges.
Demographic Differences in Sentencing 33

Appendix D: Regression Model Output

 Regression model 

 2012-2016 

 The REG Procedure 

 Model: MODEL1 

 Dependent Variable: logsplit 

 Number of Observations Read 322275 

 Number of Observations Used 322275 

 Analysis of Variance 

 Sum of Mean 

 Source DF Squares Square F Value Pr > F 

 Model 23 1068533 46458 18451.7 <.0001 

 Error 322251 811366 2.51781 

 Corrected Total 322274 1879899 

 Root MSE 1.58676 R-Square 0.5684 

 Dependent Mean 2.68470 Adj R-Sq 0.5684 

 Coeff Var 59.10388 

 Parameter Estimates 

 Parameter Standard Standardized 

 Variable DF Estimate Error t Value Pr > |t| Estimate 

 Intercept 1 0.21375 0.01371 15.59 <.0001 0 

 logmin 1 0.61526 0.00148 415.49 <.0001 0.61552 

 drugtraff 1 0.18545 0.00959 19.33 <.0001 0.03604 

 sexual2 1 0.23591 0.02985 7.90 <.0001 0.00949 

 porn 1 0.62975 0.01917 32.85 <.0001 0.04464 

 immigration 1 -0.03436 0.01217 -2.82 0.0048 -0.00647 

 othtype 1 -0.57546 0.01733 -33.21 <.0001 -0.04382 

 whitecoll 1 -0.20351 0.01154 -17.63 <.0001 -0.03100 

 upward 1 0.64847 0.01957 33.13 <.0001 0.03897 

 downdep 1 -1.06743 0.00662 -161.36 <.0001 -0.21512 

 subasst 1 -1.11105 0.00992 -111.95 <.0001 -0.15554 

 mandmin2 1 0.47247 0.00966 48.92 <.0001 0.06714 

 NEWCNVTN 1 0.50739 0.01632 31.09 <.0001 0.03693 

 custody 1 1.34406 0.00819 164.17 <.0001 0.24219 

 whitefemale 1 -0.34097 0.01444 -23.61 <.0001 -0.03029 

 blackmale 1 0.17520 0.00949 18.46 <.0001 0.02790 

 blackfemale 1 -0.35241 0.01792 -19.66 <.0001 -0.02452 

 hispmale 1 0.05176 0.00976 5.30 <.0001 0.01067 

 hispfemale 1 -0.18347 0.01478 -12.41 <.0001 -0.01629 

 othermale 1 -0.03887 0.01704 -2.28 0.0225 -0.00284 

 otherfemale 1 -0.43742 0.03152 -13.88 <.0001 -0.01640 

 agedummy 1 0.02821 0.00783 3.60 0.0003 0.00428 

 educ 1 -0.00270 0.00765 -0.35 0.7241 -0.00045774 

 NEWCIT 1 0.04916 0.00938 5.24 <.0001 0.00996 
Demographic Differences in Sentencing 34

 Regression model 

 2016 

 The REG Procedure 

 Model: MODEL1 

 Dependent Variable: logsplit 

 Number of Observations Read 59160 

 Number of Observations Used 59160 

 Analysis of Variance 

 Sum of Mean 

 Source DF Squares Square F Value Pr > F 

 Model 23 206222 8966.18995 3281.01 <.0001 

 Error 59136 161604 2.73275 

 Corrected Total 59159 367826 

 Root MSE 1.65310 R-Square 0.5607 

 Dependent Mean 2.58726 Adj R-Sq 0.5605 

 Coeff Var 63.89395 

 Parameter Estimates 

 Parameter Standard Standardized 

 Variable DF Estimate Error t Value Pr > |t| Estimate 

 Intercept 1 0.03523 0.03399 1.04 0.3000 0 

 logmin 1 0.59033 0.00354 166.77 <.0001 0.59220 

 drugtraff 1 0.16276 0.02323 7.01 <.0001 0.03050 

 sexual2 1 0.32368 0.06596 4.91 <.0001 0.01396 

 porn 1 0.69122 0.04528 15.27 <.0001 0.04972 

 immigration 1 -0.11592 0.02936 -3.95 <.0001 -0.02114 

 othtype 1 -0.63132 0.04268 -14.79 <.0001 -0.04553 

 whitecoll 1 -0.10795 0.02833 -3.81 0.0001 -0.01567 

 upward 1 0.61161 0.04569 13.39 <.0001 0.03721 

 downdep 1 -1.12238 0.01612 -69.64 <.0001 -0.22097 

 subasst 1 -1.16465 0.02478 -46.99 <.0001 -0.15234 

 mandmin2 1 0.53709 0.02369 22.68 <.0001 0.07309 

 NEWCNVTN 1 0.53340 0.04138 12.89 <.0001 0.03598 

 custody 1 1.62716 0.02026 80.30 <.0001 0.28125 

 whitefemale 1 -0.31754 0.03598 -8.83 <.0001 -0.02685 

 blackmale 1 0.18778 0.02358 7.96 <.0001 0.02911 

 blackfemale 1 -0.30730 0.04444 -6.91 <.0001 -0.02046 

 hispmale 1 0.08940 0.02478 3.61 0.0003 0.01788 

 hispfemale 1 -0.07408 0.03550 -2.09 0.0369 -0.00662 

 othermale 1 0.00265 0.04147 0.06 0.9490 0.00018873 

 otherfemale 1 -0.47330 0.07757 -6.10 <.0001 -0.01701 

 agedummy 1 0.03591 0.01925 1.87 0.0620 0.00524 

 educ 1 -0.01221 0.01859 -0.66 0.5113 -0.00202 

 NEWCIT 1 0.00027532 0.02259 0.01 0.9903 0.00005390 
Demographic Differences in Sentencing 35

 Regression model 

 2016 

 Violence variable 

 The REG Procedure 

 Model: MODEL1 

 Dependent Variable: logsplit 

 Number of Observations Read 59160 

 Number of Observations Used 59160 

 Analysis of Variance 

 Sum of Mean 

 Source DF Squares Square F Value Pr > F 

 Model 24 206229 8592.87288 3144.48 <.0001 

 Error 59135 161597 2.73269 

 Corrected Total 59159 367826 

 Root MSE 1.65308 R-Square 0.5607 

 Dependent Mean 2.58726 Adj R-Sq 0.5605 

 Coeff Var 63.89319 

 Parameter Estimates 

 Parameter Standard Standardized 

 Variable DF Estimate Error t Value Pr > |t| Estimate 

 Intercept 1 0.02861 0.03426 0.83 0.4037 0 

 logmin 1 0.58962 0.00357 165.23 <.0001 0.59150 

 drugtraff 1 0.16793 0.02347 7.16 <.0001 0.03147 

 sexual2 1 0.32951 0.06607 4.99 <.0001 0.01421 

 porn 1 0.69981 0.04561 15.34 <.0001 0.05034 

 immigration 1 -0.11570 0.02936 -3.94 <.0001 -0.02110 

 othtype 1 -0.62747 0.04276 -14.68 <.0001 -0.04525 

 whitecoll 1 -0.10230 0.02856 -3.58 0.0003 -0.01485 

 VIOLENCE 1 0.02597 0.01674 1.55 0.1207 0.00470 

 upward 1 0.61025 0.04569 13.36 <.0001 0.03712 

 downdep 1 -1.12151 0.01613 -69.55 <.0001 -0.22080 

 subasst 1 -1.16341 0.02480 -46.92 <.0001 -0.15218 

 mandmin2 1 0.53720 0.02369 22.68 <.0001 0.07311 

 NEWCNVTN 1 0.53385 0.04138 12.90 <.0001 0.03601 

 custody 1 1.62337 0.02041 79.54 <.0001 0.28060 

 whitefemale 1 -0.31463 0.03603 -8.73 <.0001 -0.02661 

 blackmale 1 0.18526 0.02364 7.84 <.0001 0.02872 

 blackfemale 1 -0.30639 0.04444 -6.89 <.0001 -0.02040 

 hispmale 1 0.09135 0.02481 3.68 0.0002 0.01827 

 hispfemale 1 -0.06912 0.03564 -1.94 0.0525 -0.00618 

 othermale 1 0.00241 0.04147 0.06 0.9537 0.00017130 

 otherfemale 1 -0.47040 0.07759 -6.06 <.0001 -0.01691 

 agedummy 1 0.03257 0.01937 1.68 0.0926 0.00475 

 educ 1 -0.00952 0.01867 -0.51 0.6103 -0.00157 

 NEWCIT 1 0.00520 0.02281 0.23 0.8197 0.00102 
Demographic Differences in Sentencing 36
Endnotes
Demographic Differences in Sentencing 38

Endnotes

1 See U.S. Sentencing Comm’n, Demographic Differences in Federal 

Sentencing Practices: An Update of the Booker Report’s Multivariate 

Regression Analysis (2010) [hereinafter 2010 Booker Multivariate Analysis].

2 The time periods studied in the 2010 report were as follows: the 

PROTECT Act period, from May 1, 2003, the date of the enactment of the 

PROTECT Act, through June 24, 2004, the date of the Supreme Court’s decision 

in Blakely v. Washington, 542 U.S. 296 (2004); the Booker period, from January 

12, 2005, the date of the Supreme Court’s decision in United States v. Booker, 543 

U.S. 220 (2005), through December 10, 2007, the date of the Supreme Court’s 

decisions in Kimbrough v. United States, 552 U.S. 85 (2007) and Gall v. United 

States, 552 U.S. 38 (2007); and the Gall period, from December 11, 2007 through 

September 30, 2009. 

3 The Commission’s updated analysis examined cases in which the 

offender was sentenced between October 1, 2009 through September 30, 2011. 

In that report, the Commission expanded the Gall period to include offenders 

sentenced from December 11, 2007 to September 30, 2011. An additional time 

period was also included in that analysis, the Koon period, involving cases in 

which the offender was sentenced between October 1, 1998 through April 30, 

2003. This period relates to cases decided after the Supreme Court’s decision in 

Koon v. United States, 518 U.S. 81 (1996).

4 U.S. Sentencing Comm’n, Report on the Continuing Impact of 

United States v. Booker on Federal Sentencing, Part E (2012) [hereinafter

2012 Booker Report].

5 United States v. Booker, 543 U.S. 220 (2005).

6 U.S. Sentencing Comm’n, Guidelines Manual (Nov. 2016) [hereinafter 

USSG]. 

7 For a more detailed explanation of multivariate regression analysis, 

the methodology behind it, and its uses and limitations, see 2010 Booker

Multivariate Analysis, supra note 1, at 4–10. See also Federal Judicial Center, 

Reference Manual on Scientific Evidence 303–587 (3d ed. 2011) [hereinafter 

FJC Reference Manual] (chapters titled “Reference Guide on Multiple 

Regression,” by Daniel L. Rubinfeld, Ph.D.); Neil J. Salkind, Statistics for People 

Who (Think They) Hate Statistics 324 (2d ed. 2007).

8 As the Commission first stated in 2006, “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% 

random sample of cases sentenced in fiscal year 2000. This datafile looked more 

closely at [an] 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% of white offenders had violent 

criminal history events, as did 43.7% of Black offenders, 18.9% of Hispanic 

offenders, and 23.7% of ‘other’ offenders.” U.S. Sentencing Comm’n, Final 

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

(2006) 105 n.317. See also 2010 Booker Multivariate Analysis, supra note 1, at 

9–10; 2012 Booker Report, supra note 4, at Part E, 8. 

9 Beginning with fiscal year 2016 data, the Commission has developed a 

process to record all prior criminal history of federal offenders, including the date 

of sentence and the type of offense involved. This data is discussed later in this 

report. See infra notes 32 to 35 and accompanying text. A discussion of how this 

data was collected can be found in Appendix C.

10 In addition, the Commission also does not have ready access to data 

related to prosecutorial decision making, which some commentators contend 

may contribute to demographic differences in sentencing. For further discussion 

of demographic differences in prosecutorial decision making, see Vera Institute 

of Justice, Do Race and Ethnicity Matter in Prosecution?: A Review of 

Empirical Studies (2012) (reviewing 34 studies analyzing the role of race 

and ethnicity in prosecutorial decision making), https://storage.googleapis.

com/vera-web-assets/downloads/Publications/do-race-and-ethnicity-matterin-prosecution-a-review-of-empirical-studies/legacy_downloads/race-andethnicity-in-prosecution-first-edition.pdf June 2012.

11 Amy Baron-Evans and David Patton, A Response to Judge Pryor’s 

Proposal to “Fix” the Guidelines: A Cure Worse than the Disease, 29 Fed. 

Sentencing Rep. 104, 106 (2016–2017).

12 See the Appendix to this report for more information about these 

factors and a discussion of how the Commission’s analysis was performed. The 

Commission’s analysis pairs race and gender factors into eight distinct groups: 

White males/females, Black males/females, Hispanic males/females, and Other 

Race males/females. Conducting analyses in this way helps to identify differences 

in sentencing outcomes associated with the offender’s race, gender, or both. 

13 For statistical purposes, the Commission divides offenders into 

four broad groups based on the level of education reported by the court in the 

presentence investigation report: less than high school graduate, high school 

graduate, some college education, college graduate. For this analysis, offenders 

were combined into two groups—those with no college education and those with 

at least some college education. 
Demographic Differences in Sentencing 39

14 See infra notes 18 to 21 and accompanying text for a discussion of how 

the Commission determines the position of the sentence imposed relative to the 

sentencing guideline range. 

15 See infra notes 22 to 24 and accompanying text for a discussion of 

sentences based on an offender’s substantial assistance to the government. 

16 This analysis did not include the Koon period because the Commission 

did not collect data during that period in a manner that would indicate whether 

the below range sentence was sponsored by the government, except in cases 

involving substantial assistance motions.

17 These results are unchanged from those reported in the 2010 Booker

Multivariate Analysis and the 2012 Booker Report.

18 Due to the small number of cases in the “Above Range” group, no 

further analysis was possible.

19 For additional information about the Commission’s practice of 

separating cases into various subgroups according to the position of the sentence 

relative to the guideline range, see generally U.S. Sentencing Comm’n, 2016 

Sourcebook of Federal Sentencing Statistics (2017) (Appendix A).

20 2012 Booker Report, supra note 4, at Part E, 20–23.

21 No analysis was performed for government sponsored below range 

sentences based on an offender’s participation in an early disposition program, 

because there was insufficient racial diversity among the offenders in that group 

to perform such an analysis. 

22 See generally U.S. Sentencing Comm’n, 2016 Sourcebook of Federal 

Sentencing Statistics S-51 (2017). For additional information about the 

Commission’s practice of separating cases into various subgroups according to 

the position of the sentence relative to the guideline range, see id. at Appendix A.

23 The three categories of government sponsored below range sentences 

are: those based on an offender’s substantial assistance to the government (see

18 U.S.C. § 3553(e); USSG, supra note 6, at §5K1.1), those based on an offender’s 

participation in an early disposition program (see USSG, supra note 6, at §5K3.1); 

and all other government sponsored below range sentences. 

24 The high fluctuations for this comparison were mainly due to the small 

population of Other Race female offenders who received substantial assistance 

departures.

25 As discussed above, no analysis was performed for government 

sponsored below range sentences based on the offender’s participation in an 

early disposition program. See supra note 21. 

26 Cases from the Koon period were excluded from the analysis because 

the Commission did not collect data during that period in a manner that would 

indicate whether the below range sentence was sponsored by the government, 

except in cases involving substantial assistance motions.

27 Such an analysis is also called “odds ratio” analysis, as it measures 

the probability of an outcome occurring while controlling for independent 

variables. Odds ratios are calculated from a regression analysis on a binary 

outcome measure (in the case of this analysis, the binary outcome is whether the 

offender received a non-government sponsored below range sentence). This type 

of regression analysis is known as “logistic regression.” Similar to a regression 

analysis on a continuous variable, logistic regression shows the effect of the 

outcome variable, controlling for the independent variables in the model. 

28 2012 Booker Report, supra note 4, at Part E, 20–23.

29 For more information on the nature and prevalence of these types 

of sentences see U.S. Sentencing Comm’n, 2016 Sourcebook of Federal 

Sentencing Statistics S-51 (2017).

30 USSG, supra note 6, at §5K3.1.

31 Cases from the Koon period were excluded from the analysis because 

the Commission did not collect data during that period in a manner that would 

indicate whether the below range sentence was sponsored by the government, 

except in cases involving substantial assistance motions.

32 See supra notes 8 to 10 and accompanying text.

33 2010 Booker Multivariate Analysis, supra note 1, at 9–10 (citations 

omitted).

34 While the Commission regularly collects information about the number 

of prior convictions and the number of points assigned to those offenses under 

the guidelines (see USSG, supra note 6, at Ch. 4), the Commission did not regularly 

collect information about the nature of an offender’s prior offenses (e.g., assault, 

robbery, larceny, drug trafficking) prior to fiscal year 2016. Beginning with 

fiscal year 2016 data, the Commission developed a method to collect data about 

all prior state and federal convictions, including the type of offense and date of 

sentence. This information was extracted from the presentence investigation 

report prepared in connection with the offender’s federal offense and submitted 
Demographic Differences in Sentencing 40

to the Commission by the sentencing court. For more information on how this 

data was collected, and for a list of the offense types that were determined to 

involve violence, see Appendix C.

35 The offender’s instant (i.e., current) federal offense was not considered 

in making this determination. However, violence associated with an offender’s 

instant federal offense was separately controlled for in the Commission’s 

regression model. 

36 The researcher determines the statistical significance threshold that 

he or she wishes to use, often called the “p value.” This decision is based on a 

number of factors, including the amount of data available for analysis and the 

purpose for the analysis. The Commission’s measure of statistical significance 

is p < 0.01. That is, the Commission will not report an observed difference in 

sentencing unless the probability that it occurred simply by random chance is 

less than .01%. 

37 The p value for the independent variable regarding violence in an 

offender’s criminal history was 0.1207.

38 The R2 has a value of between 0 and 1 and is commonly expressed as a 

percentage.

39 The R2 of the Commission’s analysis for fiscal year 2016 data was 

56.1% before the addition of the data on violent criminal history and 56.1% after 

the inclusion of that data.

40 Under the guidelines, offenders are assigned to one of six criminal 

history categories (CHCs) based on their prior criminal history. The criminal 

history score establishes the CHC for an offender. See USSG, supra note 6, at Ch. 

4. The CHC, along with the final offense level, determines the sentencing range 

under the guidelines. The Commission regression analysis controlled for what 

it called the “presumptive sentence” in each case, which is the bottom of the 

guideline range that applied in the case. This variable accounts for the fact that 

the sentencing judge must properly determine this range and consider it when 

imposing sentencing. This variable was statistically significant in all time periods 

studied. Therefore, all of an offender’s criminal history, whether involving 

violence or not, has an effect on the presumptive sentence that applied in each 

case. 

41 2012 Booker Report, supra note 7, at Part E, 1; 2010 Booker

Multivariate Analysis, supra note 1, at 9-10.

42 See Michael O. Finkelstein and Bruce Levin, Statistics For 

Lawyers 350 (2d ed. 2001).

43 These results are unchanged from those reported in the 2010 Booker

Multivariate Analysis and the 2012 Booker Report.

 

44 Due to the small number of cases in the “Above Range” group, no 

further analysis was possible.

45 For additional information about the Commission’s practice of 

separating cases into various subgroups according to the position of the sentence 

relative to the guideline range, see generally U.S. Sentencing Comm’n, 2016 

Sourcebook of Federal Sentencing Statistics (2017) (Appendix A).

46 See generally U.S. Sentencing Comm’n, 2016 Sourcebook of Federal 

Sentencing Statistics S-51 (2017). For additional information about the 

Commission’s practice of separating cases into various subgroups according to 

the position of the sentence relative to the guideline range, see id. at Appendix A. 

47 The three categories of government sponsored below range sentences 

are: those based on an offender’s substantial assistance to the government (see

18 U.S.C. § 3553(e); USSG, supra note 6, at §5K1.1), those based on an offender’s 

participation in an early disposition program (see USSG, supra note 6, at §5K3.1); 

and all other government sponsored below range sentences.

48 As discussed above, no analysis was performed for government 

sponsored below range sentences based on the offender’s participation in an 

early disposition program. See supra note 21. 

49 Cases from the Koon period are excluded from the analysis because 

the Commission did not collect data during that period in a manner that would 

indicate whether the below range sentence was sponsored by the government, 

except in cases involving substantial assistance motions.

50 Such an analysis is also called “odds ratio” analysis, as it measures the 

probability of an outcome occurring while controlling for independent variables. 

Odds ratios are calculated from a regression analysis on a binary outcome 

measure (in the case of this analysis, the binary outcome is receiving a nongovernment sponsored below range sentence or not). This type of regression 

analysis is known as “logistic regression.” Similar to a regression analysis on a 

continuous variable, logistic regression shows the effect of the outcome variable, 

controlling for the independent variables in the model. 

51 For a list and description of the offense types used in Commission 

analyses, see U.S. Sentencing Comm’n, 2016 Sourcebook of Federal 

Sentencing Statistics S-165-68 (2017).

52 Child pornography offenders are overwhelmingly White male 
Demographic Differences in Sentencing 41

offenders, and immigration offenders are overwhelmingly Hispanic male 

offenders. See generally U.S. Sentencing Comm’n, 2016 Sourcebook of Federal 

Sentencing Statistics S-14 (2017).

53 Cases in which the offender was sentenced between fiscal year 2012 

and 2016.

54 Hispanic and Other females were excluded from this analysis because 

the number of these offenders sentenced for firearms offenses was insufficient 

for the Commission to use regression analysis to examine the sentences imposed 

in those cases. 

55 Some commentators have suggested that a period of alternative 

confinement should not be included in the offender’s total sentence length. 

The Commission’s analysis includes periods of alternative confinement (home 

detention or community confinement) because the main independent variable 

is the presumptive sentence. In Zones A, B, and C of the Sentencing Table (USSG, 

supra note 6, at §5A), the presumptive sentence can be satisfied by a period of 

alternative confinement. The inclusion of alternative sentences reduces the 

likelihood of introducing error in the statistical analysis due to the relationship of 

the presumptive sentence and overall confinement. 

56 In some cases, a mandatory minimum provision limits the guideline 

range. For example, in a drug trafficking case in which a ten-year mandatory 

minimum applies, the guideline minimum cannot be less than 120 months 

unless the offender qualifies for relief from the mandatory minimum. See USSG 

§5G1.1(b) (“Where a statutorily required minimum sentence is greater than the 

maximum of the applicable guideline range, the statutorily required minimum 

sentence shall be the guideline sentence.”). For more information on how 

the guidelines incorporate mandatory minimum penalty provisions, see U.S. 

Sentencing Comm’n, An Overview of Mandatory Minimum Penalties in the 

Federal Criminal Justice System 16-17 (2017).

57 The offense types (or categories) used in this analysis are broad in 

order to ensure a sufficient number of cases. The seriousness of the several 

crimes varies within the offense type categories as does the demographic 

characteristics of the offenders convicted of those crimes. Certain crimes within 

an offense type are punished more severely than others (e.g., those crimes 

involving injury not accounted for under the sentencing guidelines) and offenders 

of a particular demographic group may be disproportionately convicted of those 

crimes. If so, the offense type variables used in this analysis may not fully account 

for the effect on the sentence length imposed that is attributable to certain 

crimes.

58 This variable refers to whether the offender remained subject to a 

mandatory minimum penalty at sentencing, or whether the offender obtained 

relief from the mandatory minimum penalty and therefore was not subject to a 

mandatory minimum penalty at sentencing (or was never subject to a mandatory 

minimum penalty because no such penalty applied to the charged offense). 

59 This variable refers to whether the court imposed a sentence above or 

below the guideline range. 

60 Correlation and causation are different concepts. A variable that is 

correlated with another may not be caused by it.

[I]n interpreting the results of a multiple regression analysis, it is 

important to distinguish between correlation and causality. Two 

variables are correlated when the events associated with the 

variables occur more frequently together than one would expect by 

chance . . . . A correlation between two variables does not imply that 

one event causes the second. Therefore, in making causal inferences, 

it is important to avoid spurious correlation. Spurious correlation 

arises when two variables are closely related but bear no causal 

relationship because both are caused by a third, unexamined variable 

. . . . Causality cannot be inferred by data analysis alone; rather, 

one must infer that a causal relationship exists on the basis of an 

underlying causal theory that explains the relationship between the 

two variables. Even when an appropriate theory has been identified, 

causality can never be inferred directly. One must look for empirical 

evidence that there is a causal relationship. Conversely, the fact that 

two variables are correlated does not guarantee the existence of a 

relationship; it could be that the model—a characterization of the 

underlying theory—does not reflect the correct interplay among the 

explanatory variables.

FJC Reference Manual, supra note 7, at 183–85. Judges make decisions when 

sentencing offenders based on many legitimate considerations that are not or 

cannot be measured. Some of these factors could be correlated with one or more 

of the demographic characteristics of offenders but not be influenced by any 

consideration of those characteristics.
Demographic Differences in Sentencing 42
Demographic Differences in Sentencing 43