United States General Accounting Office 

GAO Report to Congressional Requesters 

October 2003 FEDERAL DRUG 

OFFENSES 

Departures from 

Sentencing Guidelines 

and Mandatory 

Minimum Sentences, 

Fiscal Years 1999-2001 

GAO-04-105 

October 2003 

FEDERAL DRUG OFFENSES 

Departures from Sentencing Guidelines 

and Mandatory Minimum Sentences, 

Fiscal Years 1999-2001 

Generally, downward departures are defined as (1) substantial assistance 

departures, made at the prosecutor’s request because the offender provided 

substantial assistance to the government; and (2) other downward 

departures made for other reasons, such as a plea agreement, a judge’s 

consideration of mitigating factors, or early disposition, i.e., “fast track” 

programs initiated by prosecutors for low-level drug trafficking offenses. 

Of federal sentences for drug-related offenses in fiscal years 1999-2001, the 

majority (56 percent) was within applicable guideline ranges. Downward 

sentencing departures were more frequently due to prosecutors’ substantial 

assistance motions (28 percent) than for any other reasons (16 percent). 

For federal drug sentences that carried a mandatory minimum term of 

imprisonment, more than half of the drug sentences imposed fell below a 

mandatory minimum. Of these, half fell below a minimum due to 

prosecutors’ substantial assistance motions and half due to other reasons. 

After adjusting for differences in offense and offender characteristics among 

judicial circuits and districts, our analysis showed variations among certain 

circuits and districts in the likelihood an offender received a substantial 

assistance departure, other downward departure, or a sentence falling below 

a mandatory minimum. However, these variations did not necessarily 

indicate unwarranted sentencing departures or misapplication of the 

guidelines because data were not available to fully compare the offenders 

and offenses for which they were convicted. 

For drug sentences nationally, USSC receives 96 percent or more of the 

three key documents, including the statement of reasons (SOR), used to 

record sentence length and departures. For a small percentage of drug cases 

in USSC’s database, information is missing, incomplete, or too difficult for 

USSC to interpret, principally affecting sentencing analyses in districts 

where the missing or incomplete data are most prevalent. 

Downward Departures for Federal Drug Sentences Imposed in FY 1999-2001 

Highlights of GAO-04-105, a report to 

congressional requesters 

Created in 1984, the United States 

Sentencing Commission (USSC) 

was charged with developing the 

federal sentencing guidelines to 

limit disparities in sentencing 

among offenders with similar 

criminal backgrounds found guilty 

of similar crimes. Judges determine 

a specific sentence based on an 

applicable sentencing guideline 

range, such as 57 to 71 months, 

provided in the guidelines. Judges 

may impose sentences that fall 

anywhere within the range, above it 

(upward departures), or below it 

(downward departures). For some 

offenses, Congress established 

mandatory minimum sentences. 

Judges may also sentence below 

the minimum in certain 

circumstances. 

We examined the differences in 

drug offense departures from 

sentencing guidelines and 

mandatory minimum sentences 

among federal courts and the 

documents the USSC used to 

record and analyze sentences. 

We recommend that USSC and the 

Administrative Office of the U.S. 

Courts (AOUSC) continue to 

collaborate on education programs 

to encourage judges and other 

court officials to use AOUSC’s 

standard statement of reasons form 

(SOR), to complete the SOR more 

effectively; and to revise the 

standard SOR to better meet the 

All criminal ntences All drug sentences 

Number Percent Number Percent 

Sentences imposed 175,245 72,283 

Sentences with complete sentencing 

information 162,090 100% 69,279 100% 

Sentences within guidelines 104,389 64% 39,138 56% 

Downward departures 

Substantial assistance 29,247 18% 19,107 28% 

Other reasons 27,474 17% 10,891 16% 

se

data collection needs of the USSC. 

www.gao.gov/cgi-bin/getrpt?GAO-04-105. 

To view the full product, including the scope 


and methodology, click on the link above. 


For more information, contact William O. Source: GAO analysis of USSC data. 


Jenkins at (202) 512-8757 or 


jenkinswo@gao.gov. 

Contents 


Letter 


Results in Brief 


Background


Federal Drug Sentences Departed Downward More Often Due to 


Substantial Assistance than for Other Reasons 


More Than Half of Drug Sentences Fell below an Otherwise 


Applicable Mandatory Minimum Sentence 


Likelihood of Sentences Departing Downward or Falling below a 


Mandatory Minimum Varied by Judicial Circuits and Districts 


Opportunities Exist to Improve Sentencing Data Collection and 


Reporting 


Conclusions 


Recommendations 


Agency Comments 


1 

3 

5 

11 

14 

19 

21 

24 

24 

25 

Appendix I Objectives, Scope, and Methodology 28 


Objectives 28


Scope 28


Methodology 29


Appendix II 	 Percentage of Sentences Falling below an Applicable 

Guideline Range or An Otherwise Applicable 

Mandatory Minimum 

Appendix III 	 Likelihood of Sentences Falling below a Guideline 

Range or an Otherwise Applicable Mandatory 

Minimum 

Appendix IV 	 Data for Analyzing Departures and Mandatory 


Minimum Sentences at Circuit and District Court 


Levels Limited 61 


Documents USSC Requests from District Courts 61


How USSC Uses Documents to Create Its Database 61


USSC Receives Most of Requested Sentencing Documents 62


USSC Takes Steps to Reduce Missing Document Rate 63


Page i GAO-04-105 Federal Drug Sentences 

38 

49 
Missing or Difficult to Interpret Information Can Affect Analysis of 

Departures 64 

USSC Actions to Improve Coding 65 

Multiple Reasons Cited for Missing Documentation and 

Information 65 

Other Downward Departures Do Not Solely Reflect Judicial 

Discretion 67 

Appendix V Comments from U.S. Sentencing Commission 

Appendix VI 	 Comments from the Judicial Conference Committee 

on Criminal Law 

Appendix VI GAO Contacts and Staff Acknowledgments 81 

GAO Contacts 81 

Staff Acknowledgments 81 

Tables 

Table 1: Comparing Downward Departures Due to Substantial 

Assistance and Other Reasons for All Federal Sentences 

with Federal Drug Sentences, Fiscal Years 1999-2001 12 

Table 2: Numbers and Percents of Drug Cases Involving Different 

Types of Offenses or Offenders, and Percentages of Each 

Type Receiving Sentences Departing Downward from the 

Guidelines 29 

Table 3: Numbers and Percents of Drug Cases Involving Different 

Types of Offenses or Offenders, and Percentages of Each 

Type Receiving Sentences Departing Downward from the 

Guidelines 32 

Table 4: Hypothetical Example Showing Effect of Two Different 

Methods of Computing Percentages for “Other Downward 

Departures” 34 

Table 5: Percentages of Drug Cases between 1999 and 2001 

Resulting in Upward Departures, Within Range Sentences, 

and Downward Departures, by Circuit 39 

Page ii GAO-04-105 Federal Drug Sentences 

75 

77 
Table 6: Percentages of Drug Cases between 1999 and 2001 

Resulting in Upward Departures, Within Range Sentences, 

and Downward Departures, by District 40 

Table 7: Percentages of Mandatory Minimum Drug Cases between 

1999 and 2001 Resulting in Sentences at or above a 

Minimum, and below An Otherwise Applicable Minimum 

Due to Substantial Assistance or for Other Reasons, by 

Circuit 44 

Table 8: Percentages of Mandatory Minimum Drug Cases between 

1999 and 2001 Resulting in Sentences at or above the 

Minimum, and below An Otherwise Applicable Minimum 

Due to Substantial Assistance or For Other Reasons, by 

District 45 

Table 9: Odds on Substantial Assistance Departures and Other 

Downward Departures, and Odds Ratios Indicating the 

Differences between Circuits, before and after Adjusting 

for Offense and Offender Characteristics 50 

Table 10: Odds on Substantial Assistance Departures and Other 

Downward Departures, and Odds Ratios Indicating the 

Differences between Districts, before and after Adjusting 

for Offense and Offender Characteristics 51 

Table 11: Odds on Mandatory Minimum Sentences Falling below an 

Otherwise Applicable Mandatory Minimum for Substantial 

Assistance and for Other Reasons, and Odds Ratios 

Indicating the Differences between Circuits, before and 

after Adjusting for Offense and Offender Characteristics 56 

Table 12: Odds on Mandatory Minimum Sentences Falling below an 

Otherwise Applicable Mandatory Minimum for Substantial 

Assistance and for Other Reasons, and Odds Ratios 

Indicating the Differences between Districts, before and 

after Adjusting for Offense and Offender Characteristics 57 

Table 13: Percent of Missing Drug Sentencing Documents, by 

Circuit, as Shown in USSC’s Database for Fiscal Years 

1999-2001 63 

Table 14: Percent of Missing Drug Sentencing Information on 

Documents USSC Received, by Circuit, Fiscal Years 1999-

2001 64 

Table 15: First Reason Provided by Judges for Other Downward 

Departure in Drug Sentences Nationwide, Fiscal Years 

1999-2001 68 

Page iii GAO-04-105 Federal Drug Sentences 
Table 16: Second Reason Provided by Judges for Other Downward 

Departure in Drug Sentences Nationwide, Fiscal Years 

1999-2001 72 

Table 17: Third Reason Provided by Judges for Other Downward 

Departure in Drug Sentences Nationwide, Fiscal Years 

1999-2001 74 

Figures 

Figure 1: Sentences Departing from Guideline Ranges and 

Sentences Falling below a Mandatory Minimum 2 

Figure 2: Geographical Boundaries of the 12 Regional Circuit 

Courts of Appeals and 94 District Courts 6 

Figure 3: Illustration of a Sentencing Guideline for an Offense of 

Conviction Carrying a Mandatory Minimum 8 

Figure 4: Percent of Substantial Assistance and Other Downward 

Departures for Drug Sentences, by Circuit, Fiscal Years 

1999-2001 13 

Figure 5: Number of Districts by Percent of Drug Sentences 

Departing Downward Due to Substantial Assistance or for 

Other Reasons, Fiscal Years 1999-2001 14 

Figure 6: Percent of Drug Sentences Meeting or below an 

Otherwise Applicable Mandatory Minimum, Fiscal Years 

1999-2001 15 

Figure 7: Summary of Mandatory Minimum Drug Sentences below 

an Otherwise Applicable Mandatory Minimum and 

Departing Downward Compared with Sentences that Did 

Not Carry a Mandatory Minimum, Fiscal Years 1999-2001 17 

Figure 8: Percent of Drug Sentences Falling below an Otherwise 

Applicable Mandatory Minimum due to Substantial 

Assistance or for Other Reasons, Fiscal Years 1999-2001 18 

Figure 9: Number of Districts by Percent of Sentences Falling 

below an Otherwise Applicable Mandatory Minimum Due 

to Substantial Assistance or Other Reasons, Fiscal Years 

1999-2001 19 

Page iv GAO-04-105 Federal Drug Sentences 
Abbreviations 

AOUSC Administrative Office of the U.S. Courts 


J&C Judgment and Commitment Order 


PSR Presentence Report 


SOR Statement of Reasons 


USSC U.S. Sentencing Commission 


This is a work of the U.S. government and is not subject to copyright protection in the 

United States. It may be reproduced and distributed in its entirety without further 

permission from GAO. However, because this work may contain copyrighted images or 

other material, permission from the copyright holder may be necessary if you wish to 

reproduce this material separately. 

Page v GAO-04-105 Federal Drug Sentences 
United States General Accounting Office 

Washington, DC 20548 

October 24, 2003 


The Honorable F. James Sensenbrenner 


Chairman 


Committee on the Judiciary 


House of Representatives 


The Honorable Howard Coble 


Chairman 


Subcommittee on Crime, Terrorism,


and Homeland Security 

Committee on the Judiciary 

House of Representatives 

The Sentencing Reform Act of 19841

 established the independent U.S. 

Sentencing Commission (USSC) and charged it with developing the 

Federal Sentencing Guidelines. The guidelines were intended to avoid 

unwarranted disparities in sentences among defendants with similar 

criminal records who were found guilty of similar criminal conduct 

without eliminating the thoughtful imposition of individualized sentences.2 

To foster this goal, the guidelines specify sentencing guideline ranges—a 

range of time (in months)—that offenders should serve given the nature of 

their offense and other factors but also permit sentences to depart upward 

or downward from guideline ranges due to aggravating or mitigating 

circumstances. For certain types of offenses, including certain drug and 

weapons offenses, Congress has statutorily specified mandatory minimum 

sentences that supplant the otherwise applicable guidelines range (see fig. 

1). Judges may impose sentences that depart downward from established 

guidelines or fall below a mandatory minimum at the request of the 

prosecution because the defendant has provided substantial assistance to 

the government. USSC designates sentences departing downward for this 

reason as substantial assistance departures. 3

 A judge may also depart 

downward as a result of accepting a plea agreement or after considering 

characteristics of the offender or the offense not fully covered in the 

1

18 U.S.C. 3551 et seq., 28 U.S.C. 991-998. 

2

28 U.S.C. 991(b)(1)(B); see also S. Rep. No. 98-225, p. 52 (1983). 

3

See 18 U.S.C. 3553(e). 

Page 1 GAO-04-105 Federal Drug Sentences 
guidelines, such as extraordinary rehabilitation efforts after the offense 

but prior to sentencing. To distinguish such sentences from substantial 

assistance sentences, USSC designates them as “other downward 

departures” as part of its data gathering efforts. 

Figure 1: Sentences Departing from Guideline Ranges and Sentences Falling below a Mandatory Minimum 

Mandatory 

minimum 

Range 

minimum 

Range 

maximum 

Higher offense 

level 

Lower offense 

level 

Sentences that fall below the sentencing guideline 

range, (including sentences for which the offense of 

conviction did not carry a mandatory minimum). 

Sentences that fall below the 

applicable mandatory minimum. 

Applicable guideline range 













Sources: USSC 2002 guidelines and GAO analysis. 

As you requested, this report discusses downward departures for federal 

drug offenses. We identified the extent to which federal drug sentences 

departed downward from a guideline range determined by the court or fell 

below an applicable mandatory minimum in fiscal years 1999-2001. Our 

objectives were to (1) identify the percentage of federal sentences, and, 

specifically, those for drug-related offenses, departing downward due to 

substantial assistance motions or other reasons; (2) identify the 

percentage of federal drug sentences that fell below an applicable 

mandatory minimum due to substantial assistance motions or other 

reasons; (3) compare the likelihood across judicial circuits and districts 

that offenders received downward departing sentences or sentences 

below a mandatory minimum; and (4) identify limitations, if any, of USSC’s 

sentencing data for drug offenses. 

To meet these objectives, we obtained USSC’s sentencing database for 

fiscal years 1999 through 2001 and used its coding scheme to identify 

(1) sentences departing downward due to a prosecutor’s substantial 

assistance motion (substantial assistance departures); (2) sentences that 

Page 2 GAO-04-105 Federal Drug Sentences 
departed downward for other reasons (other downward departures); and 

(3) sentences that fell below an applicable mandatory minimum. We used 

the offender and offense characteristics in USSC’s database to statistically 

control for major differences among circuits and districts in the types of 

offenders sentenced and the offenses for which they were sentenced. 

However, it is important to note that a variety of other variables, such as 

an offender’s extraordinary rehabilitation efforts after the offense but 

prior to sentencing, could affect departure decisions, but data for these 

variables are not readily available. 

We also reviewed the types of documents USSC staff used to identify 

departures, the reasons for those departures, and the number of missing 

documents by circuit and district. We interviewed officials at USSC and 

the Administrative Office of the U.S. Courts (AOUSC), the administrative 

arm of the federal judiciary, and the Chair, Committee on Criminal Law of 

the Judicial Conference of the United States, the judiciary’s principal 

policymaking body. We conducted our work between March and August 

2003 in Washington, D.C., in accordance with generally accepted 

government auditing standards. Appendix I includes a more detailed 

description of our scope and methodology. Appendixes II and III provide 

more detailed descriptions of how we applied our methodology. 

Federal judges imposed 175,245 sentences subject to the federal 

sentencing guidelines in fiscal years 1999-2001. Of the 162,090 sentences 

for which complete departure information was available, the majority of 

all federal criminal sentences (64 percent) as well as drug sentences 

(56 percent) were within applicable guideline ranges. Of the federal 

sentences that departed downward, 18 percent departed downward due to 

prosecutors’ substantial assistance motions and 17 percent departed 

downward due to other reasons. Federal drug sentences imposed during 

the same period departed downward more frequently due to prosecutors’ 

substantial assistance motions (28 percent) than for other reasons 

(16 percent).

4 

4

Other reasons that sentences departed downward included early disposition, that is, “fast 

track,” programs initiated by prosecutors; plea agreements; and judges’ consideration of 

mitigating circumstances. See appendix IV for more information on the frequency of 

reasons cited for other downward departures. 

Results in Brief 

Page 3 GAO-04-105 Federal Drug Sentences 
Of 68,670 federal drug sentences imposed during fiscal years 1999-2001 

with complete departure and sentence length information, 41,861 carried a 

mandatory minimum term of imprisonment. Of these, more than half 

(52 percent) fell below an otherwise applicable mandatory minimum 

sentence. An equal proportion of sentences fell below an otherwise 

applicable mandatory minimum due to substantial assistance (26 percent) 

as for other reasons, such as the safety valve (26 percent). 

After taking into account differences in offender and offense 

characteristics across the 12 judicial circuits and 94 districts, our 

statistical analysis showed major variation among certain judicial circuits 

and districts in the likelihood of an offender receiving a substantial 

assistance departure, other downward departure, or a sentence falling 

below a mandatory minimum. For example, offenders sentenced in the 

Third Circuit during fiscal years 1999-2001 were over 3 times more likely to 

receive a substantial assistance departure at a prosecutor’s initiative than 

offenders sentenced in the First Circuit. Further, the odds that an offender 

would be granted an “other downward departure” also varied substantially 

across circuits. For example, offenders sentenced in the Ninth Circuit 

were over 18 times more likely to have received an other downward 

departure than offenders sentenced in the Fourth Circuit. We analyzed the 

extent to which sentences departed below applicable guidelines on 

average nationally; however, we did not compare the degree to which the 

length of the departures varied across circuits and districts. Finally, it is 

important to note the departure differences among circuits and districts 

that we found may not, in and of themselves, indicate unwarranted 

sentencing departures or misapplication of the guidelines. Empirical data 

on all factors that could influence sentencing were not available, and so an 

analysis that could fully explain why sentences varied was not possible. 

USSC data were generally sufficient for our analyses of downward 

departures and mandatory minimum sentences across circuits and for the 

great majority of districts. USSC’s sentencing data are based on 

information from five documents usually produced for each case during 

the sentencing process, but it principally relies on three of them—the 

Judgment and Commitment Order (J&C), Statement of Reasons (SOR), 

and Presentence Report (PSR)—to identify the length of sentences 

imposed, departures, and the reasons for departures. For drug sentences 

nationally, USSC receives 96 percent or more of these three key 

documents. For a small percentage of drug cases nationally, information 

regarding departures or the reasons for departures is lacking in USSC’s 

database because documents are missing, incomplete, or too difficult for 

USSC to interpret. Opportunities for improving USSC data exist. 

Page 4 GAO-04-105 Federal Drug Sentences 
In order to improve USSC’s data on federal drug sentences, we are making 

recommendations that USSC and AOUSC collaborate to improve the 

collection and recording of sentencing information through education 

programs, further revision of the standard SOR, and notification of Chief 

Judges of unclear, incomplete or difficult to interpret information received 

from their districts. On October 10, 2003, we received official written 

comments on a draft of our report from USSC and the Chair of the Judicial 

Conference Committee on Criminal Law that generally agreed with our 

recommendations (see app. V). However, the Chair of the Criminal Law 

Committee noted that our report did not sufficiently distinguish downward 

departures that are due to judicial discretion from those that are due to 

prosecutorial discretion. As a result, according to the Committee, the 

category “other downward departures” invites confusion, and some may 

mistakenly attribute all such departures to judges. We state in our report 

that all other downward departures are not attributable to judicial 

discretion and that data were not available to fully distinguish sentences 

that are attributable to judicial discretion from those due to prosecutorial 

discretion. USSC, AOUSC, and Department of Justice also provided 

technical comments that we incorporated as appropriate. 

The United States is divided into 94 federal judicial districts, each 

containing the federal trial courts, where criminal and civil cases are tried. 

Congress placed each of the 94 districts in 1 of 12 regional circuits, each 

containing a court of appeals, to which district court decisions may be 

appealed. Figure 2 is a map of the United States showing the geographical 

boundaries of the 94 district courts and the 12 regional circuit courts of 

appeals (including 11 numbered circuits and the District of Columbia 

Circuit.). There is also a Court of Appeals for the Federal Circuit with 

nationwide jurisdiction for specific types of cases, such as patent appeals. 

This court does not hear cases involving the federal sentencing guidelines. 

Background 

Page 5 GAO-04-105 Federal Drug Sentences 
Figure 2: Geographical Boundaries of the 12 Regional Circuit Courts of Appeals and 94 District Courts 

Guam 

Puerto 

Rico 

Virgin 

Islands 

D.C. 

Circuit 

Federal 

Circuit 

Northern 

Mariana 

Islands 

W E 

N 

C 

S 

E 

N 

N N 

N 

S 

S 

S 

W 

W 

W 

W 

E 

E 

E 

N 

S 

W 

W 

W 

W 

W 

E 

E 

M E

N 

W S

E 

N.Y.-E 

M 

W 

N 

S W 

E 

E 

M 

N 

S M 

N 

S M 

E 

C 

N 

S 

M 

N 

M S

N 

S 

W 

W 

E 

Districts within states = C(entral) W(estern) 

M(iddle) S(outhern) 

N(orthern) E(astern) 

1 2 

3 

4 

5 

6 

7 

8 

9 

9 

10 11 

Maine 

Pa. 

Ill. Ind. 

Ohio 

Mich. 

Wis. 

N.Y. 

Miss. 

Ky. 

Tenn. 

Ala. Ga. 

S.C. 

N.C. 

Va. 

Nebr. 

Tex. 

Kans. 

Okla. 

Iowa 

Mo. 

Ark. 

La. 

Fla. 

N.Dak. 

S.Dak. 

Minn. Ore. 

Nev. 

Idaho 

Mont. 

Wyo. 

Utah 

Ariz. 

N.Mex. 

Colo. 

Calif. 

Wash. 

Alaska 

Hawaii 

N.H. 

Vt. 

Mass. 

R.I. 

Conn. 

N.J. 

Del. 

Md. 

W.Va. 

Sources: Administrative Office of the U.S. Courts and GAO (data); copyright © Corel Corp. All rights reserved (map). 

In 1984, to help ensure that similar crimes committed by similar criminals 

were punished with similar sentences, Congress, under the Sentencing 

Reform Act, established the U.S. Sentencing Commission (USSC) and 

directed that it develop a comprehensive sentencing scheme for federal 

crimes.5

 USSC established guideline ranges for the length of federal prison 

5

28 U.S.C. 994. 

Page 6 GAO-04-105 Federal Drug Sentences 
sentences taking into account offender and offense characteristics to 

establish appropriate sentence terms. The sentencing guidelines cover 

more than 90 percent of all felony and Class A misdemeanor cases in the 

federal courts. The sentencing guidelines do not apply to Class B or C 

misdemeanors or infractions, offenses with a maximum prison exposure 

of 6 months or less.6 

Applying USSC’s guidance, federal district judges in the 94 federal district 

courts determine the appropriate sentencing guideline range for an 

offender based on various factors related to (1) the offense and (2) the 

offender. The offense is assigned an offense level, which for drug offenses 

is based on several factors such as the quantity and type of drug involved 

and whether the offense involved violence. The offender is also assigned a 

criminal history category based on the number of criminal history points. 

Criminal history points reflect the severity of an offender’s prior criminal 

record. Taken in combination, the offense level and criminal history 

category correlate with a sentencing guideline range, which is expressed 

in months. In addition, for some drug offenses where a mandatory 

minimum sentence applies, the applicable mandatory minimum sentence 

supplants the lower end of the applicable guidelines sentencing range. For 

example, as shown in figure 3, a convicted offender whose offense of 

conviction is assigned an offense level of 25 and who has a “criminal 

history category I” should be sentenced between a maximum of 71 months 

and a minimum of 57 months under the sentencing guidelines unless a 

mandatory minimum greater than 57 months (e.g., 60 months) is required. 

A sentence less than 60 months falls below the applicable mandatory 

minimum. 

6

See USSC 2002 Guidelines, 1B1.9 and ch. 1, pt. A, intro. comment. 5. 

Page 7 GAO-04-105 Federal Drug Sentences 
Figure 3: Illustration of a Sentencing Guideline for an Offense of Conviction Carrying a Mandatory Minimum 

The guidelines also permit sentences that fall above or below an 

applicable guidelines range, often called upward or downward departures, 

respectively, in certain circumstances. As illustrated in figure 3, a sentence 

of more than 71 months would depart upward from the applicable 

guideline range while a sentence of less than 57 months would depart 

downward, falling below the lower end of the guideline range. 

At the request of the prosecution, the judge may depart downward 

because the defendant has provided substantial assistance to the 

government—what USSC designates as substantial assistance departures. 

But the guidelines also provide that a judge may depart downward if the 

court finds certain mitigating circumstances exist that were not adequately 

taken into consideration by USSC in formulating the guidelines that should 

Page 8 GAO-04-105 Federal Drug Sentences 
result in a sentence below the guideline range.

7

 To assist sentencing 

courts, the guidelines list both encouraged departure factors (such as 

coercion or duress, diminished capacity, or aberrant behavior of nonviolent offenders) and discouraged though permissible departure factors 

(such as age, physical condition, family responsibilities, or prior good 

works).8

 Judges may also consider other, unmentioned factors that were 

not adequately considered by the guidelines (such as extraordinary 

rehabilitation after the offense but prior to sentencing). USSC designates 

consideration of encouraged, discouraged, and unmentioned factors as 

“other departures.” Judges are required to explain the reasons for 

departing from the guidelines. The recently enacted PROTECT Act of 2003 

makes clear that the reasons must be specific, written, and provided to 

USSC.9 

USSC maintains a database that records a variety of data on the offenders 

and offenses for which sentences are imposed. Judges must comply with 

USSC’s data collection needs by furnishing a written report of the 

sentence, and the PROTECT Act makes clear that specific sentencing 

documents must accompany that report.10 Included in these data is 

information on whether the sentences imposed fell within or outside the 

applicable sentencing guidelines range as determined by the sentencing 

judge. Information on the incidence of sentencing outside of the guideline 

ranges is used by USSC to identify areas where the sentencing guidelines 

may need adjustment. Congress, under the PROTECT Act, directed USSC 

to review the grounds of downward departures that are authorized by its 

sentencing guidelines, policy statements, and official commentary, and to 

promulgate amendments to ensure that the incidence of downward 

departures is substantially reduced. The required amendments to the 

sentencing guidelines are due October 27, 2003.11 

As previously noted, various drug offenses carry a mandatory minimum.12 

For such offenses, the mandatory minimum precludes judges from 

7

See 18 U.S.C. 3553(b); USSC 2002 Guidelines, ch. 5, pt. K, sec. 2. 


8

See USSC 2002 Guidelines., 5K2.0 and ch. 5, pt. H, intro. comment. 


9

See P.L. 108-21 (April 30, 2003), sec. 401(c), amending 18 U.S.C. 3553(c). 


10See id., sec. 401(h), amending 28 U.S.C. 994(w). 


11See id., sec. 401(m)(1), (2)(A).


12See 21 U.S.C. 841, 844, 846, 960, 963.


Page 9 GAO-04-105 Federal Drug Sentences 
sentencing at a lower guideline range minimum or from granting a 

downward departure that might otherwise be available, unless one of two 

statutory provisions applies. First, a judge may impose a sentence below 

the applicable mandatory minimum if the government (the federal 

prosecutor) files a motion with the court for such sentencing relief 

because of the defendant’s “substantial assistance” in the investigation or 

prosecution of another person.13 The discretion to make such a motion 

rests solely with the prosecutor. Second, in the absence of a substantial 

assistance motion, the “safety valve” provision affords relief from any 

otherwise applicable mandatory minimum sentence for drug offenders 

who have minimal criminal history (i.e., no more than 1 criminal history 

point); were not violent, armed, or high-level participants; and provided 

the government with truthful information regarding the offense. In these 

cases, the court is directed by statute to impose a sentence pursuant to the 

sentencing guidelines without regard to a mandatory minimum.14 

As incorporated in USSC’s sentencing guidelines, both the substantial 

assistance and the safety valve provision may affect sentencing for 

offenders whose offense of conviction does not carry a mandatory 

minimum sentence—that is, whose sentences are solely governed by the 

application of the sentencing guidelines. For such offenders, a substantial 

assistance motion permits the judge to depart downward from the 

applicable guidelines range.15 With respect to the safety valve, the 

sentencing guidelines provide offenders who are convicted of certain drug 

offenses and who meet the legislative safety valve requirements a 2-level 

decrease to their base offense level, for example, from level 25 to level 23.

16 

13See 18 U.S.C. 3553(e). 


14See id. 3553(f). 


15See USSC 2002 Guidelines, sec. 5K1.1. 


16See id., secs. 2D1.1(b)(6); 2D2.1(b)(1). 


Page 10 GAO-04-105 Federal Drug Sentences 
Federal Drug 

Sentences Departed 

Downward More 

Often Due to 

Substantial Assistance 

than for Other 

Reasons 

The majority of federal sentences fell within an applicable guideline range, 

but when sentences departed downward, or fell below a guideline range, 

they did so about as often due to substantial assistance as to other 

reasons. Of the 162,090 federal sentences from fiscal years 1999-2001 for 

which complete sentencing information was available, most were within 

the guideline ranges determined by the court (64 percent), and about an 

equal proportion of sentences departed downward due to substantial 

assistance (18 percent) as for other reasons (17 percent).17 

Similar to federal sentences overall, of the 69,279 drug sentences for which 

complete departure information was available, we found that most 

sentences were within guideline ranges (56 percent). Unlike federal 

sentences overall, from fiscal years 1999 to 2001, federal drug sentences 

departed downward more frequently due to substantial assistance 

(28 percent) than other reasons (16 percent), as shown in table 1. Other 

reasons that drug sentences departed downward included early 

disposition, that is, fast track, programs initiated by prosecutors; plea 

agreements; and judges’ consideration of mitigating circumstances. See 

appendix IV for more information on the frequency of reasons cited for 

other downward departures. 

17Since circuits and districts may vary widely in the number of offenders and type of 

offenses for which they are convicted, analyses that identify the percent of cases that fell 

below an applicable guideline range or a mandatory minimum do not provide a fair basis 

for comparing sentencing practices across circuits and districts. For example, a greater 

proportion of offenders appearing before a district court who possessed and shared 

information of a crime that assisted the government in the investigation or prosecution of 

others or whose offenses were less serious may influence the frequency of sentences that 

fell below an applicable guideline range. Taking various offender and offense 

characteristics into account to identify the likelihood of a sentence falling below a 

guideline range or a mandatory minimum provides a more accurate picture of variation in 

sentencing across circuits and districts. We provide this statistical analysis later in the 

report. See appendix I for more information on the limitations of percentages as a basis for 

comparison. 

Page 11 GAO-04-105 Federal Drug Sentences 
Table 1: Comparing Downward Departures Due to Substantial Assistance and Other 

Reasons for All Federal Sentences with Federal Drug Sentences, Fiscal Years 1999-

2001 

All criminal sentencesa 

Number Percent Number Percent 

All drug sentences 

Sentences imposed 175,245 72,283 

Sentences with complete 

sentencing information 162,090b

 100 69,279b 100 

Sentences within guidelines 104,389 64 39,138 

Upward departures 980 c 143 

Downward departures 

Substantial assistance 29,247 18 19,107 

Other reasons 27,474 17 10,891 

Source: GAO analysis of USSC Data. 

a

Includes only offenders who were sentenced under the Federal Sentencing Guidelines. 

b

The USSC database lacked departure information on a total of 12,630 (7 percent) of all federal 

sentences; of these, the USSC database lacked departure information on 3,004 (4 percent) federal 

drug sentences. An additional 525 sentences were missing offense type information. 

c

Less than 1 percent. 

Prosecutors’ substantial assistance motions resulted in downward 

departing sentences that were on average 49 percent of the average lowest 

sentence drug offenders otherwise would have received under the 

guidelines. Other downward departures resulted in sentences that were on 

average 57 percent of the average lowest sentence drug offenders 

otherwise would have received under the guidelines. See appendix I for 

more detailed information on sentence reductions. 

The percentage of drug sentences that departed downward due to 

prosecutors’ substantial assistance motions or for other reasons varied 

across judicial circuits in fiscal years 1999–2001, as shown in figure 4. 

Page 12 GAO-04-105 Federal Drug Sentences 

56 

c 

28 

16 
Figure 4: Percent of Substantial Assistance and Other Downward Departures for Drug Sentences, by Circuit, Fiscal Years 

1999-2001 

The percentages of drug sentences departing downward differed notably 

across the 94 districts, even in some cases among districts within the same 

circuit. Figure 5 shows the 94 judicial districts grouped according to the 

percent of sentences imposed in districts that departed downward due to 

substantial assistance and for other reasons. In 55 districts, more than 

30 percent of sentences departed downward due to substantial assistance, 

while in only 5 districts more than 30 percent of the sentences departed 

downward due to other reasons. However, these percentage differences 

do not take into account differences in offender and offense 

characteristics that may contribute to differences among circuits and 

districts. 

Page 13 GAO-04-105 Federal Drug Sentences 
Figure 5: Number of Districts by Percent of Drug Sentences Departing Downward Due to Substantial Assistance or for Other 

Reasons, Fiscal Years 1999-2001 

Number of districts 

71 

13 

5 3 

0 1 

6 

19 

14 

25 

14 12 

4 

1 

0 to 10% 11 to 20% 21 to 30% 31 to 40% 41 to 50% 51 to 60% Over 60% 

Substantial assistance departures 

Other downward departures 

Source: GAO analysis of USSC data. 

More Than Half of 


Drug Sentences Fell 

below an Otherwise 

Applicable Mandatory 

Minimum Sentence 

Of 41,861 federal drug sentences included in our analysis that carried a 

mandatory minimum term of imprisonment, more than half (52 percent) 

fell below an otherwise applicable mandatory minimum sentence. These 

sentences were split equally among those that fell below an otherwise 

applicable mandatory minimum sentence due to substantial assistance 

(26 percent) and those that fell below for other reasons, such as the safety 

valve (26 percent).18 (See fig. 6.) 

18If a sentence fell below a mandatory minimum sentence and involved a substantial 

assistance motion, we described the sentence as a “substantial assistance sentence falling 

below.” If a sentence otherwise fell below, we described that sentence as falling below 

because of “other reasons.” The data indicated that most, but not all, of sentences falling 

below for other reasons involved the safety valve provision, which is the only mechanism 

by which a judge may disregard a mandatory minimum in the absence of a substantial 

assistance motion. Reasons for 681 drug sentences falling below a mandatory minimum 

were not clearly indicated on the sentencing documents, according to USSC officials. Our 

analysis included these sentences as falling below a mandatory minimum for other reasons. 

Page 14 GAO-04-105 Federal Drug Sentences 

80 

70 

60 

50 

40 

30 

20 

10 

0 
Figure 6: Percent of Drug Sentences Meeting or below an Otherwise Applicable 

Mandatory Minimum, Fiscal Years 1999-2001 

48% 

26% 

26% 

Below mandatory 

minimum because of 

substantial assistance 

Meeting 

mandatory 

minimum 

Below mandatory 

minimum for other 

reasons such as the 

safety valve 

Source: GAO analysis of USSC data. 

Nearly all of the mandatory minimum drug sentences carried either a 

5-year (48 percent) mandatory minimum or a 10-year minimum 

(49 percent). On average, prosecutors’ substantial assistance motions 

reduced drug offenders’ 5-year mandatory minimum sentence by 

33 months. Sentences lowered for other reasons, such as the safety valve, 

that would otherwise be subject to a 5-year mandatory minimum were 

reduced by an average of 26 months. On average, prosecutors’ substantial 

assistance motions reduced drug offenders’ 10-year mandatory minimum 

sentences by 63 months, and sentences lowered for other reasons that 

would otherwise be subject to a 10-year mandatory minimum were 

reduced by an average of 52 months. See appendix I for more detailed 

information on sentence reductions. 

Figure 7 provides a summary of the number and percent of federal drug 

sentences that fell below a mandatory minimum or guideline range 

compared with sentences that did not carry a mandatory minimum. 

Almost all of the sentences (99 percent) that fell below a mandatory 

minimum due to substantial assistance also departed downward from an 

applicable guideline range, whereas only a quarter of sentences that fell 

below an otherwise applicable mandatory minimum for other reasons also 

Page 15 GAO-04-105 Federal Drug Sentences 
departed downward from an applicable guideline range. These percentage 

differences do not take into account offender and offense characteristics 

that may contribute to differences among circuits and districts. 

Page 16 GAO-04-105 Federal Drug Sentences 
Figure 7: Summary of Mandatory Minimum Drug Sentences below an Otherwise Applicable Mandatory Minimum and 

Departing Downward Compared with Sentences that Did Not Carry a Mandatory Minimum, Fiscal Years 1999-2001 

Note: Of the 72,283 federal drug sentences imposed during fiscal years 1999-2001, 3,004 lacked 

complete information on departure status and 609 lacked sentence length information needed to 

identify sentences that fell below a mandatory minimum. These sentences were omitted from this 

analysis. 

In 7 of the 12 Circuits, more sentences fell below a mandatory minimum 

due to substantial assistance motions than for other reasons, as figure 

8 shows. 

Page 17 GAO-04-105 Federal Drug Sentences 
Figure 8: Percent of Drug Sentences Falling below an Otherwise Applicable Mandatory Minimum due to Substantial 

Assistance or for Other Reasons, Fiscal Years 1999-2001 

Percentage 

50 

40 

40 

30 

20 

10 

0 

24 

17 

30 29 

22 

12 

34 

13 

17 16 

38 

34 

29 28 

30 

19 

34 

25 

20 

39 

24 

31 

27 

22 23 

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

Circuit 

Average 

Substantial assistance sentences below 

Sentences below for other reasons 

Source: GAO analysis of USSC data. 

In addition to these differences among the circuits, across the 94 districts 

the percentage of sentences meeting or below an otherwise applicable 

mandatory minimum substantially varied. Figure 9 shows the 94 judicial 

districts grouped according to the percent of sentences imposed that fell 

below an otherwise applicable mandatory minimum due to substantial 

assistance and for other reasons. In 40 districts, more than 30 percent of 

sentences fell below an otherwise applicable mandatory minimum due to 

substantial assistance whereas in 16 districts more than 30 percent fell 

below for other reasons. Appendix II has more details on our analysis of 

sentences for which the offense of conviction carried a mandatory 

minimum sentence. 

Page 18 GAO-04-105 Federal Drug Sentences 
Figure 9: Number of Districts by Percent of Sentences Falling below an Otherwise Applicable Mandatory Minimum Due to 

Substantial Assistance or Other Reasons, Fiscal Years 1999-2001 

Number of districts 

45 

20 

13 

10 

4 

1 1 

7 

19 

28 

22 

9 

7 

2 

0 to 10% 11 to 20% 21 to 30% 31 to 40% 41 to 50% 51 to 60% Over 60% 

Sentences falling below a mandatory minimum 

due to substantial assistance 

Sentences falling below a mandatory minimum 

for other reasons 

Source: GAO analysis of USSC data. 

Likelihood of 

Sentences Departing 

Downward or Falling 

below a Mandatory 

Minimum Varied by 

Judicial Circuits and 

Districts 

The percentage differences among circuits and districts suggest that 

variation existed in the way courts sentenced offenders; however, as 

discussed earlier, these percentages do not take into account factors such 

as the offender and offense characteristics that may affect sentencing 

within a circuit or district. For example, in addition to the number of 

deportable aliens potentially affecting the percent of other downward 

departures, some circuits and districts, when compared with others, could 

sentence a greater proportion of offenders who possessed and shared 

information of the crime that assisted the government in the investigation 

or prosecution of others. Therefore, a larger percent of offenders in those 

circuits and districts could have received a decrease in their sentence due 

to substantial assistance. Recognizing that judicial circuits and districts 

differed in the types of offenders sentenced and the offenses for which the 

offenders were sentenced, our analysis adjusted for differences such as 

race, gender, offense, criminal history, and offense severity (see appendix 

I for a complete list of variables included in our analysis). Although these 

Page 19 GAO-04-105 Federal Drug Sentences 

50 

40 

30 

20 

10 

0 
are the major factors that could affect the likelihood of an offender 

receiving a departure, they are not all-inclusive. 

We used adjusted odds ratios to estimate how circuits and districts vary in 

sentencing practices. An adjusted odds ratio in this case indicates whether 

a departure is statistically less likely, as likely, or more likely to occur in 

one circuit as in another. We can describe how much more likely or less 

likely a substantial assistance departure was to occur in one jurisdiction 

versus another; for instance, we can estimate that a substantial assistance 

departure was 20 percent less likely to occur or 3.6 times more likely to 

occur in one circuit compared with another. Our analysis focused on 

adjusted odds ratios since they provide us with our best estimates of 

differences across circuits and districts after taking into account the 

differences in drug cases handled across jurisdictions. 

Using adjusted odds ratios to estimate the likelihood of an offender 

receiving a substantial assistance departure, we can see that percentage 

differences can be misleading. In comparing percentages of substantial 

assistance sentences in the Eighth Circuit (37 percent) with other circuits, 

it appears that in 5 circuits –D.C. (30 percent), the Second (32 percent), 

Fourth (33 percent), Seventh (31 percent), and Eleventh Circuits 

(30 percent)— fewer offenders received substantial assistance departures. 

But taking into account differences of offenders and offense 

characteristics, adjusted odds ratios show that in D.C., the Fourth and 

Eleventh circuits, offenders were actually as likely to receive a substantial 

assistance motion as in the Eighth Circuit. Although the Second Circuit’s 

percentage of substantial assistance departures was lower than the Eighth 

Circuit’s, after adjusting for offender and offense characteristics, offenders 

in the Second Circuit were 1.4 times more likely to be granted a 

substantial assistance departure than offenders in the Eighth Circuit. In 

another example, the First Circuit appears to grant more other downward 

departures (10 percent) than the Eighth (8 percent), but the adjusted odds 

ratios imply that offenders in the First Circuit are actually 22 percent less 

likely to be granted an other downward departure than similar offenders in 

the Eighth Circuit. 

After adjusting for differences in drug offenses and offender 

characteristics, the likelihood of an offender receiving a lower sentence 

due to either a prosecutor’s substantial assistance motion or for other 

reasons varied substantially across the 12 U.S. circuits and the 94 U.S. 

district courts. For example, drug offenders sentenced in the Third Circuit 

from fiscal years 1999-2001 were over 3 times more likely to receive a 

substantial assistance departure at a prosecutor’s initiative than drug 

Page 20 GAO-04-105 Federal Drug Sentences 
offenders sentenced in the First Circuit during that same time period. The 

likelihood a drug offender would be granted an other downward departure 

also varied substantially. Adjusting for differences in offender and offense 

characteristics, drug offenders sentenced in the Ninth Circuit from fiscal 

years 1999-2001 were over 18 times more likely to have received an other 

downward departure than similar drug offenders sentenced in the Fourth 

Circuit during that same time period. 

The likelihood of courts to impose a sentence that fell below a mandatory 

minimum due to substantial assistance or other reasons also varied 

substantially across the 12 U.S. circuits and the 94 U.S. district courts, 

even after taking into account offense and offender characteristics for 

drug offenses. See appendix III for more details about the statistical 

likelihood of drug sentences departing downward or falling below a 

mandatory minimum and the variation in those likelihoods across all 

circuits and districts. 

Our analysis shows variation—in some cases substantial differences— 

among circuits and districts in the likelihood that offenders convicted of 

drug offenses would receive substantial assistance or other downward 

departures in fiscal years 1999-2001. However, these differences, in and of 

themselves, may not indicate unwarranted sentencing departures or 

misapplication of the sentencing guidelines. Empirical data on all factors 

that could influence sentencing were not available, and so an analysis that 

could fully explain why sentences varied was not possible. 

Opportunities Exist to 

Improve Sentencing 

Data Collection and 

Reporting 

USSC data were generally sufficient for our analyses of downward 

departures and mandatory minimum sentences across circuits and for 

most districts. USSC’s sentencing data are based on information from five 

documents usually produced for each case during the sentencing process. 

USSC requires that district courts send them these documents for each 

sentence imposed but principally relies on three of them—the Judgment 

and Commitment Order (J&C), Statement of Reasons (SOR), and 

Presentence Report (PSR)—to identify the length of sentences imposed, 

departures, and the reasons for departures. Nationally for drug cases, 

USSC received 96 percent or more of each of these documents from the 

district courts. The percentage of documents missing varied by circuit and 

districts within circuits. For example, among the circuits the percentage of 

missing SORs ranged from less than 1 percent to more than 7 percent. 

Among districts within the Ninth Circuit, the percentage of missing SORs 

ranged from less than 1 percent to more than 58 percent. Although USSC 

received most of the requested documents, some were missing key 

Page 21 GAO-04-105 Federal Drug Sentences 
information or contained unclear information that was difficult to 

interpret. For instance, among the 12 circuits, departure data were missing 

for 1 percent to 7 percent of all drug sentences imposed in fiscal years 

1999-2001. See appendix IV for more detailed information. 

In districts where the missing documents or information are concentrated 

analysis of departures could be affected. Missing or unclear data also 

limited our ability to determine when the safety valve was used as the 

basis for sentencing below a mandatory minimum. For example, in our 

preliminary analysis, we found that of the 11,256 federal drug sentences 

for which the offense of conviction carried a mandatory minimum and fell 

below that minimum, about 1,600 (14 percent) were coded by USSC as 

falling below the applicable mandatory minimum but not involving either 

the safety valve or substantial assistance. We discussed this issue with 

USSC. After reviewing the underlying documents used for coding these 

1,600 sentences, USSC determined that over 900 sentences were miscoded. 

These miscoded sentences were recoded in a variety of ways, including 

some coded as involving the safety valve, some coded as involving 

substantial assistance, some coded as having a changed drug quantity that 

affected the applicable mandatory minimum, and some coded as missing 

safety valve information. USSC did not recode 681 sentences; these 

sentences remained coded as falling below a mandatory minimum but 

involving neither the safety valve nor substantial assistance. In addition, 

safety valve information was determined to be missing from 770 sentences 

for which the offense of conviction carried and fell below a mandatory 

minimum. 

AOUSC and USSC officials offered several explanations for missing 

documents and information or unclear information on documents that was 

difficult to interpret and code consistently. AOUSC officials noted that 

judges may not submit documents due to security concerns in cases where 

the record has been sealed or the offender placed in the witness 

protection program. Processing a high volume of drug cases could 

potentially affect document submission, they also noted. Of the four 

circuits with the highest volume of drug cases, two—the Fourth and the 

Ninth—also had the highest percentage of missing SORs, 7.4 percent and 

6.6 percent, respectively. Although AOUSC developed a standard SOR 

form for judges to use, USSC officials said that judges submit information 

to USSC using a variety of forms and formats. In USSC’s view, this may 

contribute to missing information on documents (e.g., forms that do not 

prompt for an applicable mandatory minimum) or unclear information on 

the forms that is difficult to interpret. 

Page 22 GAO-04-105 Federal Drug Sentences 
In addition to these explanations, USSC and AOUSC officials said no 

information had been provided to judges and other court officials on how 

sentencing documents are used by USSC to create its database or how to 

clearly and completely prepare forms such as the SOR to meet USSC’s 

data collection needs. USSC relies almost exclusively on the SOR to 

determine whether the sentence imposed departed from the guidelines 

range, met a mandatory minimum, or involved substantial assistance. 

Thus, missing, incomplete, or difficult to interpret information on that 

form can affect the completeness and accuracy of the data in USSC’s 

database. 

USSC has taken steps to reduce the number of missing documents and 

information, but opportunities for improvements exist. For instance, USSC 

sends an annual letter to the courts identifying those cases in which there 

appear to be missing documents. However, USSC officials said they do not 

inform courts of documents that, while received by USSC, contained 

missing or unclear information. In addition, USSC collaborates with the 

AOUSC and the Federal Judicial Center, the judiciary’s research and 

education body, to educate judges and court officials on how to apply the 

sentencing guidelines, but they do not offer programs or workshops on 

how to complete forms such as the SOR and other documents used by 

USSC. 

Although the AOUSC has also taken steps to improve the quality of 

sentencing data captured on the SOR, opportunities for improvements 

remain. At its September 2003 meeting, the Judicial Conference of the 

United States, the federal judiciary’s principal policymaking body, 

approved a new standard SOR form. The Conference designated the new 

form as the mechanism by which courts comply with the requirements of 

the PROTECT Act to report reasons for sentences to USSC. The form was 

revised in part because AOUSC officials and the Chair of the Judicial 

Conference’s Committee on Criminal Law stated that the previous SOR 

provided an imprecise measure of judicial discretion. It did not collect 

information on other downward departures that are initiated by the 

prosecution. The form was revised in consultation with USSC to better 

meet its data collection needs. However, a USSC official said that the new 

SOR does not specifically prompt for information on the application of the 

safety valve or whether the offense of conviction carried a mandatory 

minimum. In addition, judges will not be required to use this form 

although USSC believes that the most effective step to improving the 

completeness of the data the district courts report is for all courts to use a 

single, standard SOR. AOUSC officials said that while the Judicial 

Conference has endorsed the new form, they do not believe that the 

Page 23 GAO-04-105 Federal Drug Sentences 
Conference has the authority to require judges to use the new SOR. 

However, AOUSC officials stated that with additional education they 

believe judges will see the benefits of the new form and routinely use it. 

Conclusions 

Recommendations 

The judiciary provided and USSC collected and interpreted sentencing 

information for the vast majority of the 72,283 drug sentences imposed 

during fiscal years 1999-2001. The small percentage of documents and 

sentencing information for drug cases that were lacking in USSC’s 

database did not affect the validity of our analyses at the national or 

circuit level or for the vast majority of districts. However, the missing data 

could limit analyses of sentencing practices in the few districts where 

missing data are most prevalent. Reducing missing, incomplete, or difficult 

to interpret information would improve USSC’s data on departures and 

reasons sentences fell below an applicable mandatory minimum. Unless 

the judiciary’s standard SOR is revised, judges are made aware of how to 

effectively complete the SOR, and data submitted more consistently to 

USSC by the courts, these data problems are likely to persist. More could 

be done to help reduce the number of documents that are missing, 

incomplete, or too difficult for USSC to interpret. Evaluating how USSC 

interprets sentencing data was beyond the scope of this work. However, 

we believe that without changes to the way USSC reports other downward 

departures, that is, distinguishing, rather than combining other downward 

departures initiated by the government with those initiated by judges, the 

benefits of improved data collection of sentencing practices may not be 

fully realized. 

As USSC and the AOUSC work together to collect and record information 

on federal sentences and provide additional education and information to 

judges, we recommend that both USSC and AOUSC continue to 

collaborate to 

• 	 develop educational programs and information for judges and other 

officers of the court to encourage the use of AOUSC’s standard SOR and 

more effective ways to complete the SOR and 

• revise the standard SOR to better meet the data collection needs of USSC. 

We also recommend, resources permitting, that USSC, in addition to 

notifying courts of missing sentencing documents, notify the Chief Judge 

of each district of documents for drug cases that were received but 

Page 24 GAO-04-105 Federal Drug Sentences 
Agency Comments 

contained information that was unclear, incomplete, or difficult to 

interpret. 

We requested comments on a draft of this report from USSC, the AOUSC, 

the Judicial Conference Committee on Criminal Law, and the Department 

of Justice (DOJ). We received written comments on October 10, 2003, from 

USSC and the Judicial Conference Committee on Criminal Law. Both 

generally agreed with our report and our recommendations, although the 

Criminal Law Committee was concerned that the variation among districts 

we found in the likelihood of other downward departures could 

mistakenly be attributed to judicial discretion. Their official comments are 

reproduced in Appendix V. We received oral technical comments from 

USSC and written technical comments from DOJ and the AOUSC that we 

incorporated where appropriate. DOJ, the Committee on Criminal Law, 

and USSC all noted that “fast-track” sentences—prosecutor-initiated 

programs to encourage early case disposition and reduce the burden on 

the courts—could account for some of the variation we found among 

districts in other downward departures. We have added new tables in 

appendix IV that show the reasons reported to USSC for other downward 

departures and the frequency with which each reason was cited. 

USSC 	 USSC generally agreed with our report and our recommendations. USSC 

stated that it is already working to develop more detailed sentencing 

documentation, submission procedures, and educational outreach to 

courts and court personnel. USSC noted that while our recommendations 

are helpful and consistent with their own thinking, implementation of such 

measures may exceed their current resources given the increasing volume 

of sentences to be processed and more detailed information for each 

sentence required by the PROTECT Act. 

The Judicial Conference 

Committee on Criminal 

Law 

The Judicial Conference Committee on Criminal Law generally agreed 

with our report and our recommendations. The Committee noted that it 

has taken significant steps to help USSC improve its data collection by 

revising the standard Statement of Reasons form and endorsing the 

standard form as the way to comply with PROTECT Act requirements. 

The Committee commented that our report did not address the extent to 

which judges themselves, absent a prosecutor’s request, have imposed 

sentences that fall below the sentencing guideline range. Further, the 

Committee noted that our report did not sufficiently distinguish downward 

Page 25 GAO-04-105 Federal Drug Sentences 
departures that are due to judicial discretion from those that are due to 

prosecutorial discretion. As a result, according to the Committee, the 

category “other downward departures” invites confusion, and some may 

mistakenly attribute all such departures to judges. We state in our report 

on page 11 that other downward departures are attributable to 

prosecutors as well as judges. Additionally, data are not recorded, coded, 

or reported in ways that clearly delineate other downward departures due 

to judicial discretion from those due to prosecutorial discretion. 

Impact of Fast Track 

Sentences on Analysis of 

Other Downward 

Departures 

In addition, DOJ, USSC, and the Committee on Criminal Law stated that 

our report did not sufficiently discuss the impact of early disposition or 

“fast track” programs on rates of other downward departures in those 

circuits and districts where such programs were in place. Fast-track 

programs in the southwest border districts provide lower sentences 

initiated by prosecutors for low-level drug trafficking offenses. DOJ noted 

that these programs were developed in response to a dramatic rise in 

immigration cases handled by federal prosecutors in districts along the 

southwestern border and were designed to enhance public safety and 

minimize the burden on the court system by processing these cases as 

quickly as possible. All of the agencies took the position that some circuits 

and districts departed downward more than others due to the greater 

prevalence in some circuits and districts of cases involving fast track 

programs. 

It may ultimately be useful to distinguish fast track departures from other 

downward departures, in the same way that we have distinguished 

substantial assistance departures from other downward departures. 

However, as currently coded in USSC database, fast track cases can be 

identified only when a judge explicitly lists fast track as a reason for a 

downward departure. Sentences citing fast track as a reason for departing 

downward occurred almost entirely in one district--the Southern District 

of California in which 2,171 sentences (58 percent of other downward 

departures imposed in this district) were recorded by USSC as departing 

due to the government’s fast track program. In all of the remaining 93 

districts combined, only 9 sentences were recorded as departing 

downward due to fast track programs. Moreover, when we eliminate from 

our analyses those other downward departures that list "fast track" as a 

reason for departing, we obtain very similar results to those published in 

our report; that is, a greater likelihood of other downward departures 

occurring in the Southern District of California than in most other 

districts. We do not include these results in detail in our report because of 

our concern that fast track cases are not always reported by judges as 

Page 26 GAO-04-105 Federal Drug Sentences 
such or coded by USSC in their database. If fast track departures are to be 

distinguished from other departures, then changes will need to be made in 

how such cases are currently reported to USSC. USSC is completing a 

report on departures, pursuant to a Congressional directive in the 

PROTECT Act, and will address the impact of fast track programs on 

departures in greater detail. 

As agreed with your offices, unless you publicly announce its contents 


earlier, we plan no further distribution of this report until 2 days from the 


date of this report. At that time, we will send copies of this report to the 


AOUSC and Judicial Conference; DOJ; USSC; and the Federal Judicial 


Center. We will also make copies available to others upon request. In 


addition, the report will be available at no charge on GAO’s Web site at 


http://www.gao.gov. 


If you or your staffs have any questions about this report, please contact 


David Alexander at (202) 512-8777 or at Alexanderd@gao.gov or me at 


(202) 512-8777 or at jenkinswo@gao.gov. Major contributors to this report 


are listed in appendix V.


William O. Jenkins, Jr. 


Director, Homeland Security and Justice Issues 


Page 27 GAO-04-105 Federal Drug Sentences 
Appendix I: Objectives, Scope, and 

Methodology 

Objectives 	 Our objectives were to review and categorize all sentences imposed under 

the federal sentencing guidelines by federal district judges in fiscal years 

1999 through 2001. Specifically, our objectives were to 

• 	 identify the percentage of federal sentences, and specifically, those for 

drug-related offenses, departing downward from the applicable guidelines 

range as determined by the court due to substantial assistance motions or 

other reasons; 

• 	 identify the percentage of federal drug sentences that fell below an 

applicable mandatory minimum due to substantial assistance motions or 

other reasons; 

• 	 compare the likelihood across judicial circuits and districts that offenders 

received downward departing sentences or sentences below a mandatory 

minimum; 

• 	 identify limitations, if any, of the U.S. Sentencing Commission’s (USSC) 

sentencing data for drug offenses. 

Scope 	 To meet these objectives, we obtained USSC sentencing data for fiscal 

years 1999 through 2001. During fiscal years 1999 through 2001, federal 

judges imposed sentences on 175,245 criminal offenders. Of this total, 

11,584 sentences (6.6 percent) lacked information on whether there was a 

departure from the guidelines range, and for 1,046 sentences (0.6 percent) 

the guidelines were not applicable. An additional 167 sentences 

(0.1 percent) lacked information on the type of offender sentenced (drug 

versus non-drug), and 358 sentences (0.2 percent) lacked information on 

both departure status and type of offender. For the remaining 162,090 

sentences (92.5 percent), table 2 shows the numbers and percents of 

departure and non-departure sentences for drug and non-drug sentences. 

Page 28 GAO-04-105 Federal Drug Sentences 
Appendix I: Objectives, Scope, and 

Methodology 

Table 2: Numbers and Percents of Drug Cases Involving Different Types of Offenses or Offenders, and Percentages of Each 

Type Receiving Sentences Departing Downward from the Guidelines 

Departure status 

Substantial Other 

Upward No assistance downward 

Type of sentence departure departure departure departure Total 

Non-Drug 837 65,251 10,140 16,583 92,811 

0.9% 70.3% 10.9% 17.9% 

Drug 143 39,138 19,107 10,891 69,279 

0.2% 56.5% 27.6% 15.7% 

Total 980 104,389 29,247 27,474 162,090 

0.6% 64.4% 18.0% 16.9% 

Source: GAO analysis of USSC data. 

Of the total of 175,245 offenders sentenced, 72,283 offenders (41 percent) 

were convicted of drug offenses, and of those, 69,279 offenders had 

complete information on departure status. Roughly 11 percent of the nondrug offenders and 28 percent of the drug offenders received sentences 

below the guidelines range due to substantial assistance, while 18 percent 

of the non-drug offenders and 16 percent of the drug offenders received 

sentences that departed downward for other reasons. Of the 69,279 drug 

sentences that had valid information for USSC’s departure variable, 42,145 

sentences (61 percent) carried a mandatory minimum. Our analyses of 

mandatory minimum sentences excluded 284 of these sentences 

(0.6 percent of all mandatory minimum sentences) that lacked the valid 

sentence length information necessary to determine whether the sentence 

fell below the minimum. 

Methodology 	 We had extensive discussions with knowledgeable USSC staff about the 

definitions and use of the data elements in our analysis. USSC takes many 

steps to ensure the reliability and completeness of the data it receives 

from districts. We did not independently validate the data in USSC’s 

database; however, we did assess the quality of USSC data in our analysis 

by testing and crosschecking selected data elements for internal 

consistency. We discussed any anomalies we found from these tests with 

knowledgeable USSC staff. On the basis of our tests and discussions with 

USSC officials, we determined that the data were sufficiently accurate for 

our reporting objectives. 

Page 29 GAO-04-105 Federal Drug Sentences 
Appendix I: Objectives, Scope, and 

Methodology 

We defined sentences that fell above or below an applicable guideline 

range in accordance with USSC’s definition of “departures”—sentences 

imposed that fall outside the sentencing guidelines range established by 

the court. In USSC’s database sentences are coded into five categories: no 

departure, upward departure, downward departure, substantial assistance, 

and inapplicable. We distinguished sentences coded as “substantial 

assistance” as those that fell below sentencing guidelines due to 

“substantial assistance” or prosecutorial discretion. For sentences that fell 

below the guideline ranges for reasons other than substantial assistance, 

generally attributed to judicial discretion, we used those sentences coded 

as “downward departures.” See appendix IV for a description of other 

reasons, which include the government’s early disposition or “fast track” 

programs, cited by judges for downward departures. Sentences for which 

departure information was not available or coded “inapplicable” were 

deleted from our analysis. 

We defined sentences that fell below an applicable mandatory minimum 

using USSC’s recorded information for sentence length. For convictions 

where a mandatory minimum was recorded, those sentences with 

recorded lengths that fell below the length of time stipulated by the 

mandatory minimum were defined as “falling below the mandatory 

minimum.” We identified 41,861 drug sentences that carried a mandatory 

minimum and had valid sentence length data. Of those sentences we 

designated as falling below an applicable mandatory minimum, we 

identified those sentences that involved a substantial assistance motion 

and those that fell below the mandatory minimum for other reasons, such 

as the safety valve. If a sentence fell below and involved a substantial 

assistance motion, we interpreted that sentence as a “substantial 

assistance sentence” that fell below a mandatory minimum due to 

prosecutorial discretion. If a sentence otherwise fell below, we interpreted 

it as falling below for “other reasons.” Most of these sentences (9,384 or 87 

percent of them) involved offenders that qualified for the safety valve 

provision allowing judges to grant sentences below the mandatory 

minimum. The data do not indicate that all of these sentences involve the 

safety valve, which may be the result of coding errors or insufficient 

available data. 

We also reviewed the types of documents USSC staff used to identify 

departures, the reasons for those departures, and the potential effect of 

missing or unclear documentation on the interpretation of the departure 

data in USSC’s database by district. We also interviewed officials at USSC 

and the Administrative Office of the U.S. Courts (AOUSC), and the Chair 

of the Judicial Conference Committee on Criminal Law. 

Page 30 GAO-04-105 Federal Drug Sentences 
Appendix I: Objectives, Scope, and 

Methodology 

Analyzing Numbers and 

Percents 

We analyzed sentencing data using both descriptive statistics and 

multivariate analytic methods. For fiscal years 1999-2001, we used USSC’s 

data to identify for each circuit and district the total number and percent 

of sentences that fell above or within an applicable guideline range and 

below a guideline range for substantial assistance or for other reasons. We 

also identified all sentences that fell below an applicable mandatory 

minimum due to substantial assistance or for other reasons for each 

circuit and district. We provide these numbers and percentages in 

appendix II. 

The simple differences in the percentage of drug sentences that fall below 

the guidelines range or below the mandatory minimum may not, without 

some adjustment, provide an appropriate basis for making comparisons 

across circuits and districts. Characteristics of the offenses and offenders 

sentenced can vary from one circuit or district to the next, and these 

differences may affect the number or percent of sentences that fall below 

applicable guideline ranges or a mandatory minimum. Judges in some 

circuits or districts, for example, may sentence a greater proportion of 

offenders who possessed and shared information of the crime that assisted 

the government in the investigation or prosecution of others or whose 

offenses were less serious. Differences in these characteristics might 

produce differences in sentences that have little to do with the exercise of 

discretion. Therefore, the unadjusted differences in the percent of 

sentences below the guidelines range or mandatory minimum might result 

from judges sentencing different offenders, rather than from judges 

sentencing offenders differently. Table 3 shows the offense and offender 

characteristics we considered in the multivariate analyses we conducted 

to adjust for such differences and re-estimate differences across circuits 

and districts after taking them into account. It also provides the numbers 

and percentages of all drug offenders or drug offenses that possessed each 

of these characteristics. 

Page 31 GAO-04-105 Federal Drug Sentences 
Appendix I: Objectives, Scope, and 

Methodology 

Table 3: Numbers and Percents of Drug Cases Involving Different Types of Offenses or Offenders, and Percentages of Each 

Type Receiving Sentences Departing Downward from the Guidelines 

Offense/offender Number of all Percent of all Percent substantial Percent other 

characteristics drug cases drug cases assistance departure downward departure 

Type of drug offense 

Drug trafficking 66,616 96% 28% 16% 

Drug: Communication facilities 1,212 2% 20% 12% 

Drug: Simple possession 1,451 2% 4% 2% 

Drug type 

Cocaine 15,110 22% 31% 10% 

Crack 14,562 22% 33% 8% 

Heroine 5,101 8% 23% 14% 

Marijuana/Hashish 21,699 32% 18% 28% 

Other 11,208 17% 36% 10% 

Severity of offense score 

Less than 17 14,700 21% 13% 29% 

17 to 22 13,822 20% 22% 19% 

23 to 28 18,453 27% 30% 10% 

Greater than 28 22,206 32% 38% 9% 

Weapon involved 

No enhancement 58,779 90% 27% 16% 

Enhancement applied 6,630 10% 35% 8% 

Mandatory minimum 

No minimum involved 27,133 39% 17% 24% 

Mandatory minimum involved 42,145 61% 34% 10% 

Guilty plea 

No guilty plea entered 3,352 5% 2% 10% 

Guilty plea entered 65,824 95% 29% 16% 

Safety valve provision 

No safety valve applied 45,788 73% 28% 16% 

Safety valve applied 16,832 27% 30% 16% 

Education 

Less than high school 34,197 51% 23% 18% 

High school graduate 21,502 32% 31% 12% 

Some college 9,819 15% 34% 13% 

College graduate 1,708 3% 31% 15% 

Page 32 GAO-04-105 Federal Drug Sentences 
Appendix I: Objectives, Scope, and 

Methodology 

Offense/offender Number of all Percent of all Percent substantial Percent other 

characteristics drug cases drug cases assistance departure downward departure

Race 

White 17,405 25% 38% 13% 

Black 20,355 29% 32% 8% 

Hispanic 29,811 43% 18% 23% 

Other 1,708 2% 32% 13% 

Sex 

Male 59,801 86% 27% 15% 

Female 9,467 14% 33% 19% 

Citizenship 

U.S. citizen 46,928 68% 33% 12% 

Non-Citizen 22,351 32% 17% 24% 

Criminal history category 

38,798 56% 24% 18% 

8,343 12% 31% 12% 

10,010 14% 32% 12% 

4,550 7% 32% 13% 

2,185 3% 33% 13% 

5,277 8% 35% 15% 

Source: GAO analysis of USSC data. 

Note: Severity Score is determined by the court. It ranges from 1 to 60 for all crimes, but the highest 

score for a drug crime is 46. 

Our primary focus in this report involved understanding how departure 

sentences vary across circuits and districts. Some of this variability across 

circuits and districts in the percentages of substantial assistance 

departures and other downward departures in the sentencing of drug 

offenders results from differences in the characteristics of offenses and 

offenders sentenced across circuits and districts. Moreover, the 

prosecution has sole authority to initiate a downward departure for 

substantial assistance, and all offenders are potentially eligible for such 

consideration. If an offender receives a substantial assistance departure, 

USSC codes the case as a substantial assistance departure and does not 

reflect any other downward departures that the judge may have granted in 

that particular case. Because of this coding convention, the percentage of 

other downward departures is partly a function of the percentage of 

downward departures for substantial assistance, which result from 

prosecutorial motions. To understand how these percentages are derived, 

it is useful to consider the following two hypothetical districts and the 

numbers of sentences of each type in each district shown in table 4. 

Page 33 GAO-04-105 Federal Drug Sentences 

1 

2 

3 

4 

5 

6 
Appendix I: Objectives, Scope, and 

Methodology 

Table 4: Hypothetical Example Showing Effect of Two Different Methods of Computing Percentages for “Other Downward 

Departures” 

Sentences above Substantial Other 

and within a assistance downward 

District guideline range departures departures Total 

Number of sentences imposed 

A 40 20 40 

B 20 50 30 

Other downward departures as 

percent of total sentences imposed 

A 40 (base 100) 20 (base 100) 40 (base 100) 

B 20 (base 100) 50 (base 100) 30 (base 100) 

Other downward departures as 

percent of total sentences less 

substantial assistance departures 

A 40 (base 100) 20 (base 100) 50 (base 80) 

B 20 (base 100) 50 (base 100) 60 (base 50) 

Source: GAO example. 

The prosecution makes its selection for substantial assistance motions 

after screening the total universe of 100 offenders sentenced in each 

district. In our hypothetical example, the prosecutor offered and the court 

accepted substantial assistance motions for 20 percent of 100 offenders in 

district A and 50 percent of 100 offenders in district B—or 30 percent less 

in district A. Because USSC’s coding convention distinguishes substantial 

assistance cases from other downward departures, the universe of 

offenders who could be coded as receiving other downward departures is 

equal to the number of offenders who did not receive substantial 

assistance departures. In district A this would be 80 offenders (100 minus 

20 substantial assistance departures) and in district B it would be 50 

(100 minus 50 substantial assistance departures). Using this universe of 

offenders for our calculation, we would conclude that district A involves 

10 percent fewer other departures than district B (40/80=50 percent versus 

30/50=60 percent). While we offer percentages in some of the following 

tables that, following standard procedures, are based on the total number 

of offenders, we also use odds and odds ratios to describe the likelihoods 

of sentences departing. These odds and odds ratios have the advantage of 

utilizing the appropriate universe of offenders in making comparisons 

across circuits and districts. 

Page 34 GAO-04-105 Federal Drug Sentences 

100 

100 
Appendix I: Objectives, Scope, and 

Methodology 

Estimating Departure 

Likelihoods 

In order to make a fair comparison of sentencing patterns across circuits 

and districts, we used logistic regression analysis to estimate the 

likelihood that sentences would fall below an applicable guideline range or 

a mandatory minimum, before and after adjusting for differences in 

offender and offense characteristics across circuits and districts. Our 

adjusted estimates of the differences in likelihoods across circuits and 

districts involved controlling for the following offender and offense 

characteristics: 

• 	 Offender: gender, race, education, citizenship, and criminal history 

category score. 

• 	 Offense: type of drug involved; type and severity of offense; whether the 

offense was eligible for mandatory minimum sentence; whether a gun was 

involved in commission of the offense; whether the defendant was 

convicted after trial or entered a guilty plea; and whether the safety valve 

was applied. 

Because they are somewhat more amenable to adjustment for offense and 

offender characteristics, we use odds and odds ratios, rather than 

percentages and percentage differences, to estimate the likelihood of 

sentences falling below a guideline range and the variability in those 

likelihoods across circuits and districts. We first calculated the odds on 

substantial assistance falling below a guideline range among all sentences, 

and then calculated the odds on other downward departures for those 

sentences that did not involve departures for substantial assistance. In 

both cases odds were compared across circuits and districts by taking 

their ratios. In our simple two district example above, the odds on 

substantial assistance departures in districts A and B would be 20/80=0.25 

and 50/50=1.0, respectively, and the odds ratio of 1.0/0.25=4.0 indicates 

that the likelihood of substantial assistance departures were 4 times as 

great in district B as in district A. The odds on other downward 

departures, excluding the substantial assistance departures, would be 

40/40 =1.0 in district A and 30/20=1.5 in district B, and the ratio of 

1.5/1.0=1.5 indicates that downward departures are 1.5 times as likely in 

district B as in district A. 

We conducted four regression analyses. First, we conducted two 

regression analyses that estimated the likelihoods that drug sentences fell 

below an applicable guideline range due to either prosecutors’ substantial 

assistance motions or for other reasons before and after controlling for 

offense and offender characteristics. Second, we conducted two 

regression analyses that estimated the likelihoods that drug sentences that 

Page 35 GAO-04-105 Federal Drug Sentences 
Appendix I: Objectives, Scope, and 

Methodology 

carried a mandatory minimum fell below an otherwise applicable 

mandatory minimum due to either substantial assistance or other reasons 

before and after controlling for offense or offender characteristics. 

Limitations Our work was limited to drug sentences imposed during fiscal years 1999-

2001, and excluded drug cases in that year that lacked information on 

whether the case departed from the guidelines (4 percent of all drug 

cases). We also excluded cases for which there was insufficient 

information to indicate whether the sentence involved was below a 

mandatory minimum (0.7 percent of all mandatory minimum drug cases), 

and were unable to identify whether 7 percent of the cases that fell below 

the mandatory minimum, and did not involve substantial assistance, 

involved the use of the safety valve provision. Further, our ability to 

control for differences in the likelihood of sentences departing from the 

guidelines, or falling below a mandatory minimum, was also restricted to a 

reasonably small number of characteristics for which we had data and was 

affected by the amount of missing data on those characteristics. Empirical 

data on all factors that could influence sentencing were not available, and 

so an analysis that could fully explain why sentences varied was not 

possible. 

Our analyses were also limited to determining whether sentences fell 

below a guideline range or a mandatory minimum, and we did not 

investigate whether there were differences across circuits or districts in 

how far below a guideline range minimum or a mandatory minimum the 

sentences fell. Nationwide, the average (mean) minimum sentence length, 

under the guidelines, for drug sentences that departed downward for 

substantial assistance reasons was 108 months (or about 9 years). Those 

sentences were reduced as a result of the substantial assistance motion, 

on average, by 53 months, and the resulting sentence was, on average, 49 

percent of the average lowest sentence drug offenders otherwise would 

have received under the guidelines.1

 The average minimum sentence 

length under the guidelines for drug sentences that departed downward 

for reasons other than substantial assistance was 60 months (or 5 years). 

Those sentences were reduced, on average, by 22 months, and the 

resulting sentence was, on average, 57 percent of the average lowest 

1

The average percentage sentence reduction was calculated by taking the percentage 

reductions for all sentences and averaging them. This average does not necessarily equal 

the ratio of the average reduced sentence (as a result of a departure) to the average 

expected sentence (the guidelines minimum or mandatory minimum sentence length). 

Page 36 GAO-04-105 Federal Drug Sentences 
Appendix I: Objectives, Scope, and 

Methodology 

sentence drug offenders otherwise would have received under the 

guidelines. 

Nearly all of the mandatory minimum drug sentences were for 5 years 

(48 percent) or 10 years (49 percent). The 5-year mandatory minimum 

sentences that were reduced for substantial assistance were reduced by an 

average of 33 months, resulting in an average sentence that was 45 percent 

of the mandatory minimum. The sentences lowered for other reasons, 

(primarily the safety valve), that would otherwise be subject to a 5-year 

mandatory minimum were reduced by an average of 26 months, resulting 

in an average sentence that was 57 percent of the mandatory minimum. 

The 10-year mandatory minimum sentences that were reduced for 

substantial assistance were reduced by an average of 63 months, resulting 

in an average sentence that was 47 percent of the mandatory minimum. 

The sentences lowered for other reasons, (primarily the safety valve), that 

would otherwise be subject to a 10-year mandatory minimum were 

reduced for other reasons by an average of 52 months, resulting in an 

average sentence that was 57 percent of the mandatory minimum. 

We also did not attempt to determine, for those sentences that fell within 

the guideline range, across circuits and districts whether sentences fell 

more frequently at the lower or higher end of the guideline range. 

However, overall, 72 percent of drug sentences that were within the 

guidelines range and did not depart were at the bottom of the range. 

Page 37 GAO-04-105 Federal Drug Sentences 
Appendix II: Percentage of Sentences Falling 

below an Applicable Guideline Range or An 

Otherwise Applicable Mandatory Minimum 

This appendix provides information on the percent of federal drug 

sentences that fall below an applicable guideline range or an otherwise 

applicable mandatory minimum. We show in tables 5 and 6 the variability 

across circuits and districts in the percentages of drug sentences that were 

(1) above the guidelines range, (2) within the guidelines range, (3) below 

the range due to substantial assistance, and (4) below the range for other 

reasons. We then show in tables 7 and 8 the variability across circuits and 

districts in the percentages of mandatory minimum drug cases that 

resulted in sentences (1) at or above a mandatory minimum sentence, 

(2) below a mandatory minimum due to prosecutorial motions for 

substantial assistance, and (3) below the mandatory minimum for other 

reasons. 

Table 5 shows that the percentage of upward departures from the 

sentencing guidelines for drug cases in fiscal years 1999–2001 was similar 

and exceedingly small across all 12 circuits. However, the percentages of 

within range sentences and downward departures varied substantially 

across circuits. The percentage of all drug sentences that were within the 

guidelines range varied from 34 percent in the Ninth Circuit to 69 percent 

in the First and Fifth Circuits. The percentage of drug sentences that 

involved downward departures for substantial assistance varied from 

18 percent in the Ninth Circuit to 45 percent in the Third Circuit, and the 

percentage that resulted in downward departures for other reasons varied 

from 4 percent in the Fourth Circuit to 47 percent in the Ninth Circuit. The 

Ninth Circuit was the only circuit in which the percentage of departures 

for other reasons exceeded 20 percent and the only circuit in which 

departures for other reasons were more common than departures for 

substantial assistance. 

Page 38 GAO-04-105 Federal Drug Sentences 
Appendix II: Percentage of Sentences Falling 

below an Applicable Guideline Range or An 

Otherwise Applicable Mandatory Minimum 

Table 5: Percentages of Drug Cases between 1999 and 2001 Resulting in Upward Departures, Within Range Sentences, and 

Downward Departures, by Circuit 

Sentenced Substantial Other 

Upward within assistance downward Total number 

Circuit departure guideline range departure departure of drug cases 

D.C. 0.3% 53% 30% 16% 

First 0.3% 69% 21% 10% 2,166 

Second 0.3% 48% 32% 20% 5,166 

Third 0.2% 48% 45% 7% 2,750 

Fourth 0.2% 63% 33% 4% 6,302 

Fifth 0.1% 69% 20% 11% 15,102 

Sixth 0.1% 53% 42% 5% 5,067 

Seventh 0.3% 64% 31% 5% 3,017 

Eighth 0.2% 55% 37% 8% 5,255 

Ninth 0.3% 34% 18% 47% 12,116 

Tenth 0.2% 63% 22% 15% 3,500 

Eleventh 0.3% 64% 30% 5% 8,457 

Source: GAO analysis of USSC data. 

Note: 3,004 cases lacking information on departures were excluded. 

Table 6 reveals that the percentages of sentences within the guidelines 

range and the percentages of sentences departing downward from them 

notably differed across the 94 districts, even in some cases among districts 

within the same circuit. 

Page 39 GAO-04-105 Federal Drug Sentences 

381 
Appendix II: Percentage of Sentences Falling 

below an Applicable Guideline Range or An 

Otherwise Applicable Mandatory Minimum 

Table 6: Percentages of Drug Cases between 1999 and 2001 Resulting in Upward Departures, Within Range Sentences, and 

Downward Departures, by District 

Sentenced Substantial Other 

Upward within assistance downward Total number 

District departure guideline range departure departure of drug cases 

D.C. Circuit 

District of Columbia 0.3% 53% 30% 16% 

First Circuit 

Maine 0.0% 44% 52% 3% 

Massachusetts 0.6% 51% 30% 19% 

New Hampshire 0.5% 49% 43% 8% 

Puerto Rico 0.1% 87% 7% 5% 1,006 

Rhode Island 0.0% 80% 9% 11% 

Second Circuit 

Connecticut 0.8% 44% 24% 31% 

New York Eastern 0.3% 45% 24% 32% 1,961 

New York Northern 0.2% 24% 68% 8% 

New York Southern 0.2% 64% 24% 12% 1,642 

New York Western 0.6% 42% 52% 5% 

Vermont 0.0% 43% 37% 21% 

Third Circuit 

Delaware 0.0% 52% 41% 7% 71 

New Jersey 0.4% 60% 32% 8% 847 

Pennsylvania Eastern 0.2% 36% 57% 6% 1,028 

Pennsylvania Middle 0.0% 38% 56% 6% 392 

Pennsylvania Western 0.0% 55% 37% 9% 352 

Virgin Islands 0.0% 75% 17% 8% 60 

Fourth Circuit 

Maryland 0.2% 43% 43% 14% 517 

North Carolina Eastern 0.2% 56% 41% 3% 619 

North Carolina Middle 0.8% 63% 34% 2% 508 

North Carolina Western 0.0% 32% 62% 5% 970 

South Carolina 0.1% 60% 38% 2% 988 

Virginia Eastern 0.3% 89% 8% 3% 1,360 

Virginia Western 0.2% 56% 42% 2% 567 

West Virginia Northern 0.3% 89% 9% 2% 339 

West Virginia Southern 0.0% 81% 16% 3% 433 

Page 40 GAO-04-105 Federal Drug Sentences 

381 

153 

656 

199 

152 

264 

586 

508 

208 
Appendix II: Percentage of Sentences Falling 

below an Applicable Guideline Range or An 

Otherwise Applicable Mandatory Minimum 

Sentenced Substantial Other 

Upward within assistance downward Total number 

District departure guideline range departure departure of drug cases 

Fifth Circuit 

Louisiana Eastern 0.0% 74% 19% 6% 

Louisiana Middle 0.0% 39% 58% 3% 

Louisiana Western 0.0% 64% 32% 3% 

Mississippi Northern 0.0% 42% 49% 8% 

Mississippi Southern 0.0% 58% 39% 3% 

Texas Eastern 0.0% 80% 14% 6% 

Texas Northern 0.0% 65% 31% 4% 

Texas Southern 0.1% 66% 26% 8% 4,863 

Texas Western 0.1% 72% 12% 16% 6,750 

Sixth Circuit 

Kentucky Eastern 0.2% 57% 40% 2% 

Kentucky Western 0.0% 81% 16% 3% 

Michigan Eastern 0.0% 51% 43% 6% 

Michigan Western 0.3% 49% 44% 6% 

Ohio Northern 0.3% 47% 44% 9% 

Ohio Southern 0.0% 38% 54% 7% 

Tennessee Eastern 0.1% 57% 41% 2% 742 

Tennessee Middle 0.0% 53% 40% 7% 205 

Tennessee Western 0.2% 56% 40% 4% 517 

Seventh Circuit 

Illinois Central 0.5% 38% 56% 5% 424 

Illinois Northern 0.1% 53% 38% 9% 687 

Illinois Southern 0.3% 90% 6% 4% 722 

Indiana Northern 0.2% 71% 25% 4% 455 

Indiana Southern 0.0% 39% 58% 3% 296 

Wisconsin Eastern 0.4% 65% 32% 3% 280 

Wisconsin Western 1.3% 79% 17% 3% 153 

Eighth Circuit 

Arkansas Eastern 0.0% 81% 16% 3% 321 

Arkansas Western 0.0% 70% 27% 4% 168 

Iowa Northern 1.3% 52% 41% 6% 477 

Iowa Southern 0.1% 45% 44% 11% 692 

Minnesota 0.2% 54% 31% 15% 590 

Missouri Eastern 0.0% 59% 36% 5% 908 

Missouri Western 0.1% 37% 59% 3% 914 

Page 41 GAO-04-105 Federal Drug Sentences 

587 

66 

395 

245 

369 

869 

960 

866 

296 

871 

335 

729 

506 
Appendix II: Percentage of Sentences Falling 

below an Applicable Guideline Range or An 

Otherwise Applicable Mandatory Minimum 

Sentenced Substantial Other 

Upward within assistance downward Total number 

District departure guideline range departure departure of drug cases 

Nebraska 0.0% 65% 25% 10% 

North Dakota 0.0% 53% 38% 8% 

South Dakota 0.5% 69% 19% 11% 

Ninth Circuit 

Alaska 0.0% 69% 19% 11% 

Arizona 0.6% 28% 13% 58% 2,560 

California Central 0.2% 72% 16% 12% 

California Eastern 0.0% 64% 26% 10% 

California Northern 1.5% 60% 15% 23% 

California Southern 0.1% 17% 13% 70% 5,312 

Guam 1.2% 43% 54% 1% 

Hawaii 0.4% 58% 32% 10% 

Idaho 0.0% 33% 62% 5% 

Montana 0.0% 54% 40% 5% 

Nevada 0.3% 63% 18% 18% 

Northern Mariana Islands 0.0% 29% 71% 0% 

Oregon 0.3% 55% 33% 12% 

Washington Eastern 0.0% 62% 14% 24% 249 

Washington Western 0.2% 52% 33% 15% 544 

Tenth Circuit 

Colorado 0.0% 41% 52% 7% 420 

Kansas 0.4% 63% 29% 7% 560 

New Mexico 0.1% 66% 13% 21% 1,672 

Oklahoma Eastern 1.4% 54% 5% 39% 74 

Oklahoma Northern 0.8% 73% 21% 5% 131 

Oklahoma Western 0.9% 74% 22% 3% 229 

Utah 0.0% 67% 12% 21% 199 

Wyoming 0.0% 59% 34% 7% 217 

Eleventh Circuit 

Alabama Middle 0.4% 38% 55% 6% 279 

Alabama Northern 0.0% 49% 49% 2% 417 

Alabama Southern 0.0% 44% 49% 6% 342 

Florida Middle 0.2% 57% 37% 6% 2,007 

Florida Northern 0.9% 60% 38% 1% 565 

Florida Southern 0.1% 78% 16% 6% 3,237 

Georgia Middle 1.1% 55% 39% 5% 558 

Page 42 GAO-04-105 Federal Drug Sentences 

893 

86 

206 

201 

418 

622 

406 

83 

524 

97 

399 

315 

17 

366 
Appendix II: Percentage of Sentences Falling 

below an Applicable Guideline Range or An 

Otherwise Applicable Mandatory Minimum 

Sentenced Substantial Other 

Upward within assistance downward Total number 

District departure guideline range departure departure of drug cases 

Georgia Northern 0.3% 60% 30% 10% 

Georgia Southern 0.0% 63% 33% 4% 

Source: GAO analysis of USSC data. 

Note: 3,004 cases lacking information on departures were excluded. 

There were 6 districts in which the percentage of sentences departing 

upward from the guidelines exceeded 1 percent of all cases—Wisconsin 

Western (1.3 percent), Iowa Northern (1.3 percent), California Northern 

(1.5 percent), Guam (1.2 percent), Oklahoma Eastern (1.4 percent), and 

Georgia Middle (1.1). The percentage of sentences within the guidelines 

range varied substantially, from 17 percent in the California Southern 

District to 90 percent in the Illinois Southern District. Fewer than 10 

percent of the sentences departed downward for substantial assistance in 

Puerto Rico (7 percent), Rhode Island (9 percent), Virginia Eastern (8 

percent), West Virginia Northern (9 percent), Illinois Southern (6 percent), 

and Oklahoma Eastern (5 percent). At the same time, the percentage of 

cases departing downward for substantial assistance exceeded 50 percent 

in 16 districts, and was highest in the North Mariana Islands (71 percent), 

New York Northern (68 percent), North Carolina Western (62 percent), 

and Idaho (62 percent) Districts. Sentences departing downward for other 

reasons represented only 3 percent or less of all sentences in 24 districts 

but over 20 percent of the sentences in 10 districts; these other downward 

departures were especially common in New York Eastern (32 percent), 

Oklahoma Eastern (39 percent), Arizona (58 percent), and California 

Southern (70 percent) Districts. While the percentages of other downward 

departures were fairly similar and involved 10 percent or fewer of all cases 

in the various districts in the Sixth and Seventh Circuits, the range in the 

percentage of other downward departures were sizable across the districts 

in the Second Circuit (5 percent to 32 percent), Ninth Circuit (none to 

70 percent), and Tenth Circuit (3 to 39 percent). 

Table 7 shows the differences across circuits in the percentages of 

mandatory minimum drug sentences between 1999 and 2001 that were at 

or above an applicable mandatory minimum, below an otherwise 

applicable mandatory minimum due to substantial assistance, and below 

an otherwise applicable mandatory minimum for other reasons. The 

percentage of mandatory minimum sentences that were at or above an 

applicable mandatory minimum sentence ranged from 35 percent in the 

Ninth Circuit to 64 percent in the Fourth Circuit. The percentage of 

sentences that fell below an otherwise applicable mandatory minimum 

Page 43 GAO-04-105 Federal Drug Sentences 

756 

293 
Appendix II: Percentage of Sentences Falling 

below an Applicable Guideline Range or An 

Otherwise Applicable Mandatory Minimum 

due to substantial assistance motions ranged from 19 percent in the First 

Circuit to 40 percent in the Third Circuit. The percentage of mandatory 

minimum sentences that fell below an otherwise applicable mandatory 

minimum sentence for other reasons ranged from 12 percent in the Fourth 

Circuit to 38 percent in the Ninth Circuit. 

Table 7: Percentages of Mandatory Minimum Drug Cases between 1999 and 2001 

Resulting in Sentences at or above a Minimum, and below An Otherwise Applicable 

Minimum Due to Substantial Assistance or for Other Reasons, by Circuit 

At or Below a Below a Total number of 

above a minimum due to minimum mandatory 

mandatory substantial for other minimum 

Circuit minimum assistance reasons drug cases 

D.C. 54% 30% 17% 236 

First 51% 19% 30% 1,444 

Second 37% 34% 29% 2,835 

Third 37% 40% 22% 1,927 

Fourth 64% 25% 12% 4,633 

Fifth 46% 20% 34% 7,161 

Sixth 49% 39% 13% 3,201 

Seventh 59% 24% 17% 2,279 

Eighth 53% 31% 16% 4,062 

Ninth 35% 27% 38% 5,381 

Tenth 44% 22% 34% 2,065 

Eleventh 47% 23% 29% 6,637 

Source: GAO analysis of USSC data. 

Note: 41,861 sentences carried a mandatory minimum and had complete sentence length 

information; 284 sentences with a mandatory minimum lacked complete sentence length information. 

Table 8 provides these same percentages, classified by districts rather than 

circuits, and shows that variability in the sentencing of mandatory 

minimum offenders is considerable across the 94 districts. The percentage 

of sentences falling below an otherwise applicable mandatory minimum 

for substantial assistance reasons was very different across districts, 

ranging from less than 10 percent of all mandatory minimum sentences in 

7 districts to over 50 percent in 9 districts. The percentage of sentences 

falling below an otherwise applicable mandatory minimum for other 

reasons also varied greatly across districts, from less than 10 percent of all 

mandatory minimum sentences in 11 districts to 50 percent or more in 

3 districts. 

Page 44 GAO-04-105 Federal Drug Sentences 
Appendix II: Percentage of Sentences Falling 

below an Applicable Guideline Range or An 

Otherwise Applicable Mandatory Minimum 

Table 8: Percentages of Mandatory Minimum Drug Cases between 1999 and 2001 Resulting in Sentences at or above the 

Minimum, and below An Otherwise Applicable Minimum Due to Substantial Assistance or For Other Reasons, by District 

At or above Below a minimum Below a Total number of 


a mandatory due to substantial minimum for mandatory minimum 


District minimum assistance other reasons drug cases 


D.C. Circuit 

District of Columbia 54% 30% 17% 

First Circuit 

Maine 31% 52% 17% 

Massachusetts 43% 33% 23% 

New Hampshire 37% 42% 21% 

Puerto Rico 58% 6% 36% 

Rhode Island 58% 7% 35% 

Second Circuit 

Connecticut 52% 22% 27% 

New York Eastern 34% 30% 36% 

New York Northern 17% 70% 13% 

New York Southern 43% 25% 33% 1,230 

New York Western 40% 46% 14% 

Vermont 31% 54% 15% 

Third Circuit 

Delaware 53% 36% 11% 36 

New Jersey 31% 30% 39% 577 

Pennsylvania Eastern 32% 52% 16% 828 

Pennsylvania Middle 53% 37% 11% 200 

Pennsylvania Western 52% 31% 17% 263 

Virgin Islands 52% 30% 17% 23 

Fourth Circuit 

Maryland 61% 28% 10% 443 

North Carolina Eastern 70% 23% 7% 505 

North Carolina Middle 70% 21% 9% 458 

North Carolina Western 50% 41% 9% 822 

South Carolina 61% 28% 11% 685 

Virginia Eastern 76% 7% 17% 996 

Virginia Western 49% 39% 12% 456 

West Virginia Northern 82% 7% 12% 92 

West Virginia Southern 70% 12% 18% 174 

Page 45 GAO-04-105 Federal Drug Sentences 

236 

75 

433 

86 

762 

88 

198 

787 

353 

211 

59 
Appendix II: Percentage of Sentences Falling 

below an Applicable Guideline Range or An 

Otherwise Applicable Mandatory Minimum 

At or above Below a minimum Below a Total number of 


a mandatory due to substantial minimum for mandatory minimum 


District minimum assistance other reasons drug cases 


Fifth Circuit 

Louisiana Eastern 55% 17% 29% 

Louisiana Middle 50% 40% 10% 

Louisiana Western 83% 12% 5% 

Mississippi Northern 61% 27% 12% 

Mississippi Southern 50% 32% 18% 

Texas Eastern 71% 11% 18% 

Texas Northern 57% 25% 18% 

Texas Southern 40% 21% 39% 2,702 

Texas Western 36% 18% 46% 2,124 

Sixth Circuit 

Kentucky Eastern 32% 52% 15% 

Kentucky Western 71% 14% 15% 

Michigan Eastern 46% 40% 14% 

Michigan Western 57% 32% 11% 

Ohio Northern 45% 42% 13% 

Ohio Southern 44% 47% 9% 

Tennessee Eastern 52% 35% 13% 472 

Tennessee Middle 49% 40% 12% 136 

Tennessee Western 59% 31% 10% 367 

Seventh Circuit 

Illinois Central 60% 35% 5% 304 

Illinois Northern 44% 31% 26% 570 

Illinois Southern 79% 4% 17% 547 

Indiana Northern 60% 22% 18% 274 

Indiana Southern 43% 45% 12% 272 

Wisconsin Eastern 60% 23% 17% 217 

Wisconsin Western 79% 9% 12% 95 

Eighth Circuit 

Arkansas Eastern 68% 15% 17% 207 

Arkansas Western 63% 18% 18% 119 

Iowa Northern 64% 26% 10% 388 

Iowa Southern 54% 30% 16% 629 

Minnesota 49% 27% 24% 472 

Missouri Eastern 53% 33% 15% 663 

Missouri Western 38% 53% 9% 654 

Page 46 GAO-04-105 Federal Drug Sentences 

423 

42 

283 

140 

257 

543 

647 

402 

185 

558 

234 

522 

326 
Appendix II: Percentage of Sentences Falling 

below an Applicable Guideline Range or An 

Otherwise Applicable Mandatory Minimum 

At or above Below a minimum Below a Total number of 

a mandatory due to substantial minimum for mandatory minimum 

District minimum assistance other reasons drug cases 

Nebraska 57% 22% 21% 

North Dakota 44% 45% 11% 

South Dakota 63% 23% 14% 

Ninth Circuit 

Alaska 59% 19% 22% 

Arizona 18% 20% 62% 1,157 

California Central 52% 14% 34% 

California Eastern 57% 23% 20% 

California Northern 54% 16% 31% 

California Southern 19% 34% 47% 1,357 

Guam 28% 52% 19% 

Hawaii 44% 33% 23% 

Idaho 54% 37% 8% 

Montana 50% 40% 10% 

Nevada 51% 18% 30% 

Northern Mariana Islands 22% 67% 11% 

Oregon 50% 27% 22% 

Washington Eastern 51% 16% 33% 128 

Washington Western 41% 35% 24% 381 

Tenth Circuit 

Colorado 32% 52% 16% 251 

Kansas 63% 22% 15% 382 

New Mexico 29% 16% 55% 874 

Oklahoma Eastern 57% 7% 37% 46 

Oklahoma Northern 65% 21% 14% 72 

Oklahoma Western 73% 17% 10% 151 

Utah 41% 16% 43% 107 

Wyoming 54% 27% 19% 185 

Page 47 GAO-04-105 Federal Drug Sentences 

771 

55 

103 

130 

325 

401 

274 

67 

415 

59 

219 

212 

9 

246 
Appendix II: Percentage of Sentences Falling 

below an Applicable Guideline Range or An 

Otherwise Applicable Mandatory Minimum 

At or above Below a minimum Below a Total number of 


a mandatory due to substantial minimum for mandatory minimum 


District minimum assistance other reasons drug cases 


Eleventh Circuit 

Alabama Middle 43% 48% 9% 

Alabama Northern 52% 37% 11% 

Alabama Southern 49% 41% 10% 

Florida Middle 53% 28% 19% 1,642 

Florida Northern 59% 33% 8% 

Florida Southern 35% 14% 50% 2,686 

Georgia Middle 65% 25% 10% 

Georgia Northern 57% 22% 21% 

Georgia Southern 75% 19% 7% 

Source: GAO analysis of USSC data. 

Note: 41,861 sentences carried a mandatory minimum and had complete sentence length 

information; 284 sentences with a mandatory minimum lacked complete sentence length information. 

Page 48 GAO-04-105 Federal Drug Sentences 

193 

301 

267 

477 

305 

566 

197 
Appendix III: Likelihood of Sentences Falling 

below a Guideline Range or an Otherwise 

Applicable Mandatory Minimum 

This appendix provides odds and odds ratios to describe the differences 

across circuits and districts in sentences falling below a guideline range or 

an otherwise applicable mandatory minimum for substantial assistance 

and other reasons, both before and after controlling for differences in 

offender and offense characteristics. In the left columns of tables 9 and 10, 

we show the odds on substantial assistance departures across circuits and 

districts and ratios indicating differences across circuits and districts, 

before and after we adjust for characteristics of offenses and offenders. In 

the right columns of tables 9 and 10, we show the odds on other 

downward departures across circuits and districts and ratios indicating 

differences between them, before and after we adjust for characteristics of 

offenses and offenders. In the comparisons across circuits, we used the 

Eighth Circuit as the reference category, so the odds ratios reflect how 

much more or less likely other circuits were than that circuit to depart in 

sentencing offenders. In comparisons across districts, the Minnesota 

District was used as the reference category. The offense and offender 

characteristics we controlled for were described earlier in appendix I. The 

ratios that estimate differences before and after adjusting for these 

characteristics were derived from logistic regression models. We focus on 

adjusted ratios in the following discussion, since they provide us with our 

best estimates of differences across circuits and districts after taking into 

account the differences in the drug cases handled across jurisdictions. 

Table 9 shows that both the odds on substantial assistance departures and 

other downward departures varied substantially across circuits. After 

adjusting for differences across circuits in offense and offender 

characteristics, the odds on substantial assistance departures were 

significantly greater in three circuits than the Eighth Circuit. In the Third 

Circuit, for example, substantial assistance departures were 2.2 times as 

likely as in the Eighth Circuit. Four circuits were not significantly different 

from the Eighth Circuit in terms of the likelihood of sentences departing 

for substantial assistance, and in the remaining 4 circuits substantial 

assistance departures were significantly less likely. In the First Circuit, for 

example, substantial assistance departures were less likely by a factor of 

0.64, or 36 percent less likely, than in the Eighth Circuit. The fact that 

some circuits are less likely than the Eighth Circuit while others are more 

likely than the Eighth Circuit to depart for substantial assistance implies 

that some differences between other circuits are larger than those 

explicitly indicated by these ratios. For example, these ratios imply that 

substantial assistance departures in the Third Circuit are 2.2/0.64=3.4 

times as likely as in the First Circuit. 

Page 49 GAO-04-105 Federal Drug Sentences 
Appendix III: Likelihood of Sentences Falling 

below a Guideline Range or an Otherwise 

Applicable Mandatory Minimum 

Table 9: Odds on Substantial Assistance Departures and Other Downward Departures, and Odds Ratios Indicating the 

Differences between Circuits, before and after Adjusting for Offense and Offender Characteristics 

Odds on Odds on 

substantial other 

assistance Unadjusted Adjusted downward Unadjusted Adjusted 

Circuit departures ratios ratios departures ratios ratios 

Eighth 0.59 0.14 

D.C. 0.44 0.75* 1.15 0.31 2.19* 2.16* 

First 0.26 0.44* 0.64* 0.14 1.02 0.78* 

Second 0.47 0.81* 1.4* 0.41 2.92* 2.39* 

Third 0.83 1.41* 2.2* 0.15 1.05 

Fourth 0.49 0.84* 1.01 0.06 0.43* 0.37* 

Fifth 0.25 0.43* 0.85* 0.16 1.11 0.55* 

Sixth 0.71 1.22* 1.68* 0.10 0.69* 0.57* 

Seventh 0.45 0.78* 0.91 0.08 0.55* 0.48* 

Ninth 0.22 0.38* 0.75* 1.38 9.9* 6.87* 

Tenth 0.29 0.49* 0.78* 0.23 1.67* 1.2* 

Eleventh 0.43 0.74* 0.98 0.09 0.61* 0.5* 

Source: GAO analysis of USSC data. 

Note: Odds on substantial assistance departures were calculated using all cases. Odds on other 

downward departures were calculated using only cases not involving downward departures for 

substantial assistance. Ratios were calculated using the Eighth Circuit as the referent category. 

Adjusted ratios are from logistic regression models that control for offense and offender 

characteristics. 

*Odds ratio coefficients that are significant at the 0.05 level. 

Table 9 also shows that for those sentences that do not involve substantial 

assistance departures, (and again after adjusting for offense and offender 

characteristics), other downward departures are significantly more likely 

in 4 circuits than in the Eighth Circuit, significantly less likely in 6 circuits 

than in the Eighth Circuit, and no different in the other one. The fact that 

other downward departures are 6.87 times more likely in the Ninth Circuit 

than in the Eighth Circuit, but less likely by a factor of 0.37 in the Fourth 

Circuit than in the Eighth Circuit, implies that such departures are 

6.87/0.37 = 18.6 or 19 times as likely in the Ninth Circuit as in the Fourth 

Circuit. 

Table 10 shows that both the adjusted odds ratios on substantial 

assistance departures and other downward departures also varied 

substantially and significantly across districts. Substantial assistance 

departures were significantly more likely in 41 districts than in the 

Minnesota District. In the small Northern Mariana Islands District, for 

Page 50 GAO-04-105 Federal Drug Sentences 

0.93 
Appendix III: Likelihood of Sentences Falling 

below a Guideline Range or an Otherwise 

Applicable Mandatory Minimum 

example, substantial assistance departures were 10 times more likely than 

in the Minnesota District, and in the large New York Northern District, 

they were 5 times more likely. Twenty-three districts were not significantly 

different from the Minnesota District in terms of the likelihood of 

sentences departing for substantial assistance, and in the remaining 29 

districts substantial assistance departures were significantly less likely. In 

the Illinois Southern District, for example, substantial assistance 

departures were less likely by a factor of 0.11, which implies that the 

likelihood of substantial assistance departures were 9 times higher in the 

Minnesota District than they were there. Other districts, these odds imply, 

were even more disparate from one another. For example, these ratios 

imply that substantial assistance departures in the New York Northern 

District were 5.5/0.11=49.5 or 50 times more likely than in the Illinois 

Southern District. 

Table 10: Odds on Substantial Assistance Departures and Other Downward Departures, and Odds Ratios Indicating the 

Differences between Districts, before and after Adjusting for Offense and Offender Characteristics 

Odds on Odds on 

substantial other 

assistance Unadjusted Adjusted downward Unadjusted Adjusted 

District departures ratios ratios departures ratios ratios 

Minnesota 0.45 0.27 

D.C. Circuit 

District of Columbia 0.44 0.97 1.19 0.31 1.12 

First Circuit 

Maine 1.10 2.44* 2.79* 0.07 0.27* 0.28* 

Massachusetts 0.42 0.93 1.01 0.37 1.35 

New Hampshire 0.75 1.66* 2.23* 0.15 0.56 0.42* 

Puerto Rico 0.08 0.17* 0.17* 0.06 0.23* 0.19* 

Rhode Island 0.10 0.23* 0.28* 0.13 0.48* 0.42* 

Second Circuit 

Connecticut 0.32 0.71* 0.69* 0.69 2.56* 2.42* 

New York Eastern 0.31 0.68* 0.97 0.71 2.61* 2.48* 

New York Northern 2.13 4.75* 5.51* 0.34 1.23 0.95 

New York Southern 0.32 0.7* 0.78* 0.19 0.69* 0.66* 

New York Western 1.10 2.44* 4.5* 0.11 0.4* 0.49* 

Vermont 0.58 1.28 1.47* 0.48 1.78* 1.81* 

Page 51 GAO-04-105 Federal Drug Sentences 

1.12 

1.17 
Appendix III: Likelihood of Sentences Falling 

below a Guideline Range or an Otherwise 

Applicable Mandatory Minimum 

Odds on Odds on 

substantial other 

assistance Unadjusted Adjusted downward Unadjusted Adjusted 

District departures ratios ratios departures ratios ratios 

Third Circuit 

Delaware 0.69 1.54 1.78* 0.14 0.50 0.37* 

New Jersey 0.47 1.04 1.29* 0.12 0.46* 0.45* 

Pennsylvania 

Eastern 1.33 2.96* 3.41* 0.17 0.62* 0.6* 

Pennsylvania Middle 1.25 2.79* 3.44* 0.17 0.62 0.56* 

Pennsylvania 

Western 0.59 1.30 1.25 0.16 0.57* 0.49* 

Virgin Islands 0.20 0.44* 1.00 0.11 0.41 

Fourth Circuit 

Maryland 0.75 1.66* 1.76* 0.33 1.20 

North Carolina 

Eastern 0.71 1.57* 1.37* 0.05 0.18* 0.15* 

North Carolina 

Middle 0.52 1.15 1.05 0.03 0.11* 0.09* 

North Carolina 

Western 1.66 3.7* 3.06* 0.16 0.6* 0.44* 

South Carolina 0.62 1.38* 1.35* 0.03 0.11* 0.09* 

Virginia Eastern 0.09 0.2* 0.2* 0.03 0.12* 0.12* 

Virginia Western 0.72 1.61* 1.43* 0.04 0.14* 0.11* 

West Virginia 

Northern 0.10 0.22* 0.24* 0.02 0.09* 0.06* 

West Virginia 

Southern 0.19 0.41* 0.46* 0.04 0.15* 0.12* 

Fifth Circuit 

Louisiana Eastern 0.24 0.52* 0.53* 0.09 0.32* 0.34* 

Louisiana Middle 1.36 3.02* 3.94* 0.08 0.28 0.32 

Louisiana Western 0.48 1.07 1.03 0.05 0.19* 0.16* 

Mississippi Northern 0.98 2.17* 2.02* 0.19 0.71 0.62 

Mississippi Southern 0.63 1.41* 1.42* 0.05 0.19* 0.18* 

Texas Eastern 0.16 0.37* 0.38* 0.07 0.28* 0.23* 

Texas Northern 0.44 0.98 0.97 0.07 0.25* 0.22* 

Texas Southern 0.36 0.8* 1.28* 0.11 0.42* 0.35* 

Texas Western 0.13 0.3* 0.55* 0.22 0.81 0.6* 

Page 52 GAO-04-105 Federal Drug Sentences 

0.54 

1.23 
Appendix III: Likelihood of Sentences Falling 

below a Guideline Range or an Otherwise 

Applicable Mandatory Minimum 

Odds on Odds on 

substantial other 

assistance Unadjusted Adjusted downward Unadjusted Adjusted 

District departures ratios ratios departures ratios ratios 

Sixth Circuit 

Kentucky Eastern 0.68 1.51* 1.96* 0.04 0.16* 0.17* 

Kentucky Western 0.19 0.43* 0.47* 0.03 0.12* 0.14* 

Michigan Eastern 0.76 1.68* 2.02* 0.12 0.44* 0.43* 

Michigan Western 0.80 1.78* 1.91* 0.13 0.47* 0.42* 

Ohio Northern 0.77 1.72* 1.8* 0.20 0.74 

Ohio Southern 1.19 2.65* 3.18* 0.19 0.70 

Tennessee Eastern 0.69 1.54* 1.56* 0.04 0.14* 0.12* 

Tennessee Middle 0.65 1.45* 1.58* 0.14 0.51* 

Tennessee Western 0.68 1.51* 1.4* 0.07 0.26* 0.22* 

Seventh Circuit 

Illinois Central 1.27 2.82* 2.62* 0.14 0.52* 0.37* 

Illinois Northern 0.60 1.34* 1.52* 0.17 0.62* 0.67* 

Illinois Southern 0.06 0.14* 0.11* 0.04 0.15* 0.11* 

Indiana Northern 0.34 0.76 0.97 0.05 0.18* 0.18* 

Indiana Southern 1.39 3.08* 2.69* 0.09 0.32* 0.35* 

Wisconsin Eastern 0.47 1.05 0.96 0.04 0.14* 0.12* 

Wisconsin Western 0.20 0.46* 0.35* 0.03 0.12* 0.1* 

Eighth Circuit 

Arkansas Eastern 0.19 0.43* 0.35* 0.04 0.14* 0.12* 

Arkansas Western 0.37 0.81 0.83 0.05 0.19* 0.18* 

Iowa Northern 0.69 1.54* 1.03 0.12 0.44* 0.41* 

Iowa Southern 0.79 1.76* 1.20 0.24 0.89 0.77 

Missouri Eastern 0.57 1.26* 1.19 0.09 0.32* 0.31* 

Missouri Western 1.44 3.21* 2.63* 0.09 0.33* 0.3* 

Nebraska 0.33 0.73* 0.52* 0.16 0.58* 0.54* 

North Dakota 0.62 1.38 1.16 0.15 0.56 0.65 

South Dakota 0.24 0.54* 0.57* 0.15 0.56* 0.58* 

Ninth Circuit 

Alaska 0.24 0.54* 0.61* 0.17 0.61 0.69 

Arizona 0.15 0.34* 0.61* 1.98 7.3* 7.41* 

California Central 0.19 0.42* 0.55* 0.17 0.63* 0.69 

California Eastern 0.35 0.78 0.86 0.15 0.55* 0.51* 

California Northern 0.18 0.4* 0.48* 0.38 1.4* 1.68* 

California Southern 0.15 0.33* 0.65* 4.18 15.39* 14.69* 

Page 53 GAO-04-105 Federal Drug Sentences 

0.76 

0.76 

0.58 
Appendix III: Likelihood of Sentences Falling 

below a Guideline Range or an Otherwise 

Applicable Mandatory Minimum 

Odds on Odds on 

substantial other 

assistance Unadjusted Adjusted downward Unadjusted Adjusted 

District departures ratios ratios departures ratios ratios 

Guam 1.18 2.63* 2.12* 0.03 0.1* 0.13* 

Hawaii 0.47 1.05 1.06 0.16 0.6* 

Idaho 1.62 3.61* 4.16* 0.16 0.57 

Montana 0.68 1.5* 1.76* 0.10 0.36* 0.41* 

Nevada 0.23 0.5* 0.55* 0.28 1.02 

Northern Mariana 

Islands 2.40 5.34* 10.08* 0.00 0.00 

Oregon 0.48 1.07 1.02 0.22 0.80 0.59* 

Washington Eastern 0.16 0.36* 0.44* 0.39 1.43 

Washington Western 0.50 1.11 1.34* 0.28 1.04 

Tenth Circuit 

Colorado 1.07 2.38* 3.82* 0.17 0.64 

Kansas 0.41 0.92 0.96 0.11 0.4* 0.4* 

New Mexico 0.15 0.34* 0.54* 0.31 1.14 

Oklahoma Eastern 0.06 0.13* 0.11* 0.71 2.6* 3.28* 

Oklahoma Northern 0.27 0.6* 0.55* 0.07 0.27* 0.26* 

Oklahoma Western 0.28 0.62* 0.52* 0.04 0.15* 0.11* 

Utah 0.14 0.31* 0.4* 0.31 1.13 

Wyoming 0.52 1.15 0.73 0.13 0.46* 0.43* 

Eleventh Circuit 

Alabama Middle 1.23 2.74* 3.84* 0.16 0.58 

Alabama Northern 0.96 2.13* 2.11* 0.04 0.14* 0.15* 

Alabama Southern 0.98 2.17* 2.1* 0.15 0.54* 0.5* 

Florida Middle 0.59 1.3* 1.28* 0.10 0.36* 0.31* 

Florida Northern 0.62 1.39* 1.25 0.02 0.06* 0.05* 

Florida Southern 0.19 0.42* 0.44* 0.07 0.26* 0.24* 

Georgia Middle 0.64 1.42* 1.88* 0.09 0.33* 0.31* 

Georgia Northern 0.43 0.96 0.89 0.16 0.6* 0.55* 

Georgia Southern 0.49 1.08 1.09 0.07 0.26* 0.22* 

Source: GAO analysis of USSC data. 

Note: Odds on substantial assistance departures were calculated using all cases. Odds on other 

downward departures were calculated using only cases not involving downward departures for 

substantial assistance. Ratios were calculated using the Minnesota district as the referent category. 

Adjusted ratios are from logistic regression models that control for offense and offender 

characteristics. 

*Odd ratio coefficients that are significant at the 0.05 level. 

Page 54 GAO-04-105 Federal Drug Sentences 

0.76 

0.58 

1.01 

0.00 

1.45 

1.17 

0.76 

1.02 

1.29 

0.64 
Appendix III: Likelihood of Sentences Falling 

below a Guideline Range or an Otherwise 

Applicable Mandatory Minimum 

Table 10 also shows that for those sentences that do not involve 

substantial assistance departures, other downward departures are 

significantly more likely in 7 districts than in the Minnesota district, 

significantly less likely in 62 districts than in the Minnesota district, and no 

different in the remaining 23 districts.

1

 The fact that other downward 

departures are 15 times more likely in the California Southern District than 

in the Minnesota district, but less likely by a factor of 0.09 in the South 

Carolina District than in the Minnesota District, implies that such 

departures are 15/0.09 = 167 times as likely in the California Southern 

District as in the South Carolina District. 

Tables 11 and 12 pertain to mandatory minimum sentences and show that 

substantial and often significant variation in the likelihood of sentences 

falling below an otherwise applicable mandatory minimum exists even 

after controls for differences in offense and offender characteristics 

across circuits and districts. If we focus on the adjusted ratios in table 11 

first, which estimate the differences among circuits after controls, we find 

that there were some circuits in which the odds on sentences falling below 

an otherwise applicable mandatory minimum due to substantial assistance 

were significantly higher than in the Eighth Circuit, and others in which 

those odds were significantly lower. 

1

 As noted in table 10, USSC data contained no “other downward departure” sentences in 

drug cases in the Northern Mariana Islands District for fiscal years 1999 through 2001. 

Page 55 GAO-04-105 Federal Drug Sentences 
Appendix III: Likelihood of Sentences Falling 

below a Guideline Range or an Otherwise 

Applicable Mandatory Minimum 

Table 11: Odds on Mandatory Minimum Sentences Falling below an Otherwise Applicable Mandatory Minimum for Substantial 

Assistance and for Other Reasons, and Odds Ratios Indicating the Differences between Circuits, before and after Adjusting 

for Offense and Offender Characteristics 

Odds on Odds on 

falling below falling below 

for substantial Unadjusted Adjusted for other Unadjusted Adjusted 

Circuit assistance ratios ratios reasons ratios ratios 

Eighth 0.44 0.36 

D.C. 0.42 0.95 1.54* 0.33 0.91 2.55* 

First 0.23 0.53* 0.67* 0.64 1.78* 

Second 0.51 1.16* 1.7* 0.85 2.38* 1.53* 

Third 0.68 1.53* 2.29* 0.75 2.08* 1.54* 

Fourth 0.33 0.74* 0.99 0.23 0.64* 

Fifth 0.25 0.55* 0.71* 0.85 2.37* 

Sixth 0.63 1.43* 1.74* 0.33 0.93 

Seventh 0.31 0.71* 0.88* 0.33 0.93 

Ninth 0.37 0.83* 1.04 1.21 3.37* 2* 

Tenth 0.29 0.65* 0.78* 0.89 2.47* 

Eleventh 0.30 0.68* 0.9* 0.75 2.09* 

Source: GAO analysis of USSC data. 

Note: The odds on sentences falling below for substantial assistance were calculated using all cases. 

The odds on sentences falling below for other reasons were calculated using only cases that did not 

fall below for substantial assistance. Ratios were calculated using the Eighth Circuit as the referent 

category. Adjusted ratios are from logistic regression models that control for offense and offender 

characteristics. 

*Odds ratio coefficients that are significant at the 0.05 level. 

The same is true of the likelihood of sentences falling below an otherwise 

applicable mandatory minimum for reasons other than substantial 

assistance. The adjusted ratios in table 11 suggest that the biggest 

difference in the likelihood of mandatory minimum sentences falling 

below an otherwise applicable mandatory minimum due to substantial 

assistance involved the Third and First Circuits (such sentences were 

2.29/0.67=3.4 times more likely in the former circuit than in the latter), 

while the biggest difference in the likelihood of mandatory minimum 

sentences falling below an otherwise applicable mandatory minimum for 

reasons other reasons, such as the safety valve, involved the D.C. vs. the 

Fourth and Sixth Circuits (such sentences were 2.55/0.94=2.7 times more 

likely in the former circuit than in the latter two). 

Table 12 shows, similarly, that in many districts judges were much more 

likely than in the Minnesota district to issue sentences below a mandatory 

Page 56 GAO-04-105 Federal Drug Sentences 

0.99 

0.94 

1.17 

0.94 

1.01 

1.25 

1.14 
Appendix III: Likelihood of Sentences Falling 

below a Guideline Range or an Otherwise 

Applicable Mandatory Minimum 

minimum to offenders facing a mandatory minimum, both for reasons of 

substantial assistance and for other reasons; and, at the same time, judges 

in many other districts were less likely to do so, overall. 

Table 12: Odds on Mandatory Minimum Sentences Falling below an Otherwise Applicable Mandatory Minimum for Substantial 

Assistance and for Other Reasons, and Odds Ratios Indicating the Differences between Districts, before and after Adjusting 

for Offense and Offender Characteristics 

Odds on falling Odds on 

below for falling below 

substantial Unadjusted Adjusted for other Unadjusted Adjusted 

District assistance ratios ratios reasons ratios ratios 

Minnesota 0.37 0.54 

D.C. Circuit 

Dist of Columbia 0.42 1.13 2.78 0.33 0.6* 

First Circuit 

Maine 1.08 2.91* 1.02 0.72 1.33 

Massachusetts 0.50 1.34* 2.55* 0.57 1.05 

New Hampshire 0.72 1.94* 0.69 0.82 1.50 

Puerto Rico 0.07 0.18* 0.27* 0.65 1.20 

Rhode Island 0.07 0.2* 0.31 0.63 1.16 

Second Circuit 

Connecticut 0.28 0.75 3.69* 0.57 1.05 3.89* 

New York Eastern 0.43 1.17 3.5* 1.17 2.15* 

New York Northern 2.33 6.26* 2.75* 0.98 1.8* 

New York Southern 0.33 0.88 6.16* 0.80 1.48* 

New York Western 0.85 2.29* 1.02 0.43 0.80 

Vermont 1.19 3.19* 6.71 0.53 0.97 3.95 

Third Circuit 

Delaware 0.57 1.52 0.43 0.29 0.53 1.50 

New Jersey 0.43 1.16 0.8 1.50 2.77* 0.87 

Pennsylvania Eastern 1.07 2.88* 2.33* 0.62 1.13 1.37 

Pennsylvania Middle 0.59 1.58* 0.32* 0.33 0.60 4.49* 

Pennsylvania Western 0.45 1.2 1.18 0.36 0.66* 0.92 

Virgin Islands 0.44 1.18 0.33 0.61 0.34 

Fourth Circuit 

Maryland 0.40 1.07 0.44* 0.23 0.42* 1.87 

North Carolina Eastern 0.30 0.8 0.28* 0.15 0.27* 0.44 

North Carolina Middle 0.27 0.72* 0.46* 0.15 0.28* 0.38* 

North Carolina Western 0.70 1.88* 0.53* 0.36 0.66* 3.04* 

Page 57 GAO-04-105 Federal Drug Sentences 

1.83 

0.70 

1.03 

0.42 

0.74 

0.81 

1.68 

2.02 

0.75 

1.34 
Appendix III: Likelihood of Sentences Falling 

below a Guideline Range or an Otherwise 

Applicable Mandatory Minimum 

Odds on falling Odds on 

below for falling below 

substantial Unadjusted Adjusted for other Unadjusted Adjusted 

District assistance ratios ratios reasons ratios ratios 

South Carolina 0.39 1.05 0.39* 0.23 0.43* 

Virginia Eastern 0.08 0.2* 0.83 0.23 0.42* 0.5* 

Virginia Western 0.63 1.69* 1.92 0.29 0.54* 

West Virginia Northern 0.07 0.19* 0.15 0.27* 

West Virginia Southern 0.14 0.37* 0.39 0.29 0.53* 

Fifth Circuit 

Louisiana Eastern 0.20 0.53* 0.57 0.58 1.07 

Louisiana Middle 0.68 1.83 0.23* 0.33 0.61 

Louisiana Western 0.14 0.37* 0.12* 0.08 0.14* 0.24* 

Mississippi Northern 0.37 1 0.36* 0.27 0.49* 2.88* 

Mississippi Southern 0.48 1.28 0.27* 0.45 0.83 0.34* 

Texas Eastern 0.12 0.33* 0.39* 0.28 0.52* 

Texas Northern 0.33 0.88 0.43* 0.40 0.74 

Texas Southern 0.27 0.72* 0.63 1.07 1.96* 

Texas Western 0.22 0.59* 0.45* 1.44 2.65* 1.76* 

Sixth Circuit 

Kentucky Eastern 1.10 2.97* 2.46* 0.52 0.96 

Kentucky Western 0.16 0.44* 0.16* 0.23 0.42* 0.4* 

Michigan Eastern 0.67 1.79* 0.85 0.38 0.71* 0.89 

Michigan Western 0.46 1.24 0.16* 0.32 0.58* 0.79 

Ohio Northern 0.73 1.96* 0.85 0.38 0.7* 1.37 

Ohio Southern 0.87 2.35* 0.6 0.29 0.54* 0.59 

Tennessee Eastern 0.54 1.44* 0.45* 0.32 0.59* 0.57 

Tennessee Middle 0.66 1.77* 1.4 0.30 0.54* 0.65 

Tennessee Western 0.46 1.23 0.69 0.22 0.4* 0.65 

Seventh Circuit 

Illinois Central 0.54 1.46* 0.38* 0.14 0.27* 0.37 

Illinois Northern 0.45 1.2 0.71 0.71 1.30 1.07 

Illinois Southern 0.04 0.11* 0.42 0.22 0.4* 0.78 

Indiana Northern 0.29 0.77 0.59 0.33 0.6* 0.85 

Indiana Southern 0.81 2.19* 0.55 0.39 0.71 1.49 

Wisconsin East 0.29 0.78 0.66 0.34 0.63* 0.77 

Wisconsin West 0.10 0.28* 0.09* 0.17 0.31* 0.1* 

Page 58 GAO-04-105 Federal Drug Sentences 

0.64 

0.58 

0.31 

1.07 

1.68 

0.85 

0.52 

0.63 

0.77 

0.71 
Appendix III: Likelihood of Sentences Falling 

below a Guideline Range or an Otherwise 

Applicable Mandatory Minimum 

Odds on falling Odds on 

below for falling below 

substantial Unadjusted Adjusted for other Unadjusted Adjusted 

District assistance ratios ratios reasons ratios ratios 

Eighth Circuit 

Arkansas Eastern 0.18 0.47* 0.62 0.27 0.5* 

Arkansas Western 0.23 0.61 0.15* 0.35 0.64 

Iowa Northern 0.35 0.93 0.35* 0.21 0.39* 

Iowa Southern 0.43 1.15 0.33* 0.42 0.77 

Missouri Eastern 0.48 1.3* 0.6 0.33 0.61* 

Missouri Western 1.12 3.02* 1.29 0.29 0.54* 

Nebraska 0.27 0.74* 0.94 0.39 0.73* 

North Dakota 0.83 2.24* 1.98 0.27 0.50 

South Dakota 0.30 0.82 0.39 0.23 0.43* 0.16* 

Ninth Circuit 

Alaska 0.24 0.64 0.67 0.38 0.70 

Arizona 0.26 0.69* 1.87 3.73 6.87* 7.5* 

California Central 0.16 0.42* 0.53 0.73 1.35 

California Eastern 0.30 0.8 0.77 0.42 0.77 

California Northern 0.19 0.5* 1.07 0.60 1.11 

California Southern 0.51 1.37* 2.27* 2.68 4.94* 2.61* 

Guam 1.09 2.94* 1.55 0.72 1.33 0.2* 

Hawaii 0.49 1.31 1.36 0.56 1.03 0.3* 

Idaho 0.59 1.6 0.34* 0.25 0.46 1.07 

Montana 0.66 1.77* 0.89 0.22 0.41* 0.81 

Nevada 0.23 0.61* 0.48 0.63 1.15 0.65 

Northern Mariana Islands 2.00 5.37* 0.28 1.00 1.84 0.93 

Oregon 0.37 1.01 0.27* 0.56 1.02 0.66 

Washington Eastern 0.20 0.53* 0.66 0.70 1.29 0.73 

Washington Western 0.54 1.44* 1.23 0.69 1.27 1.48 

Tenth Circuit 

Colorado 1.07 2.89* 0.68 0.73 1.34 1.57 

Kansas 0.28 0.76 0.3* 0.28 0.51* 0.41* 

New Mexico 0.19 0.5* 1 1.99 3.66* 0.86 

Oklahoma Eastern 0.07 0.19* 0.65 1.20 10.79* 

Oklahoma Northern 0.26 0.71 0.53 0.24 0.45* 1.50 

Oklahoma Western 0.21 0.56* 0.88 0.16 0.29* 0.22* 

Utah 0.19 0.51* 1.05 1.92* 2.50 

Wyoming 0.37 1 0.18* 0.42 0.77 1.19 

Page 59 GAO-04-105 Federal Drug Sentences 

0.64 

0.78 

0.75 

1.02 

0.61 

0.61 

0.73 

0.27 

1.09 

0.86 

0.57 

1.04 
Appendix III: Likelihood of Sentences Falling 

below a Guideline Range or an Otherwise 

Applicable Mandatory Minimum 

Odds on falling Odds on 

below for falling below 

substantial Unadjusted Adjusted for other Unadjusted Adjusted 

District assistance ratios ratios reasons ratios ratios 

Eleventh Circuit 

Alabama Middle 0.91 2.45* 0.46* 0.34 0.62 

Alabama Northern 0.59 1.59* 0.63 0.27 0.49* 

Alabama Southern 0.69 1.85* 0.75 0.27 0.49* 0.3* 

Florida Middle 0.38 1.03 0.46* 0.44 0.82 

Florida Northern 0.49 1.32 1.63 0.16 0.3* 

Florida Southern 0.17 0.44* 0.56 1.56 2.87* 

Georgia Middle 0.33 0.88 0.2* 0.21 0.39* 0.23* 

Georgia Northern 0.28 0.75* 0.26* 0.47 0.86 

Georgia Southern 0.23 0.62* 0.18* 0.12 0.21* 0.25* 

Source: GAO analysis of USSC data. 

Note: The odds on sentences falling below for substantial assistance were calculated using all cases. 

The odds on sentences falling below for other reasons were calculated using only cases that did not 

fall below for substantial assistance. Ratios were calculated using the Minnesota District as the 

referent category. Adjusted ratios are from logistic regression models that control for offense and 

offender characteristics. 

*Odd ratio coefficients that are significant at the 0.05 level. 

Page 60 GAO-04-105 Federal Drug Sentences 

1.81 

0.75 

0.68 

0.79 

1.12 

1.11 
Appendix IV: Data for Analyzing Departures 

and Mandatory Minimum Sentences at 

Circuit and District Court Levels Limited 

Documents USSC 

Requests from 

District Courts 

• 

• 

• 

• 

• 

How USSC Uses 

Documents to Create 

Its Database 

Overall, the data the U.S. Sentencing Commission (USSC) has received


from district courts and judges were generally sufficient for our analyses 


of downward departures and mandatory minimum sentences across 


circuits and for most districts. Missing data due to missing sentencing 


documents or information posed few limitations for our analysis. 


However, opportunities for improvement exist. 


Under the authority of the Sentencing Reform Act of 1984, USSC required 


courts to forward to it the following five sentencing documents in every 


guidelines case.1

 The PROTECT Act of 2003 codifies this data collection


requirement: 


the Judgment and Commitment Order (J&C); 


the Statement of Reasons (SOR); 


the Pre-sentence Report (PSR); 


any written plea agreements, if applicable; and 


all indictments or other charging documents. 


Under the PROTECT Act, courts are to send to USSC a “Report of 


Sentence” enclosing the required sentencing documents within 30 days of


a judgment, and the Chief Judge in every district is to ensure that their 


courts do so.2


Of the five sentencing documents submitted by district courts, USSC 


officials told us they rely primarily on the J&C, SOR, and PSR to obtain the 


sentencing information that USSC staff code into USSC database. From 


the J&C, USSC obtains data on the sentence, including the number of 


months of any imprisonment, the statute of conviction, and whether any 


mandatory minimum sentence applied. USSC officials also said that they 


rely almost exclusively on the SOR to obtain data on the basis for the 


sentence, such as whether the sentence imposed fell within or outside the 


applicable sentencing guidelines range as determined by the court, the 


reason(s) for any departure, and whether a substantial assistance motion


or safety valve adjustment was used. If the SOR is missing, USSC coding 


1

28 U.S.C. 994(w), 995(a)(8). Courts are also to forward additional documentation related 

to actions taken after sentencing, such as revocations of probation or resentencing under 

Federal Rule of Criminal Procedure 35(b). 

2

P.L. 108-21, sec. 401(h), amending 28 U.S.C. 994(w). 

Page 61 GAO-04-105 Federal Drug Sentences 
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procedures have required document analysts to record the departure 

status as missing, although other documents, such as the plea agreement, 

may have information that indicate whether and why the sentence 

departed. USSC is initiating some changes in its coding procedures as 

discussed below. From the PSR, which is drafted by a district probation 

officer, USSC obtains demographic and other background information 

about offenders, an initial sentencing recommendation according to the 

guidelines, and other sentencing information such as whether the offense 

of conviction had a mandatory minimum (should this information not be 

noted in the J&C), and whether the safety valve could potentially be 

applied (in certain limited circumstances where this information has not 

been recorded in a SOR). 

Our analysis shows that district courts provided these five sentencing 

documents to USSC for the great majority of drug sentences imposed in 

fiscal years 1999-2001. Of 72,283 drug sentences imposed during this 

period, district courts submitted between 96 and 99 percent of the three 

key sentencing documents– the J&C (99 percent), SOR (96 percent), and 

PSR (98 percent)—from which USSC obtains sentencing data. According 

to USSC data, a lower percentage of plea agreements (89 percent) and 

indictments (87 percent) were submitted during this time period. During 

the period of our review, USSC did not primarily rely on these two 

documents for departure information. Table 13 shows, by circuit, the 

percentage of each type of sentencing document USSC did not receive in 

fiscal years 1999-2001. 

USSC Receives Most 

of Requested 

Sentencing 

Documents 

Page 62 GAO-04-105 Federal Drug Sentences 
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Table 13: Percent of Missing Drug Sentencing Documents, by Circuit, as Shown in USSC’s Database for Fiscal Years 1999-

2001 

Sentencing National 

documents average D.C. First Second Third Fourth Fifth Sixth Seventh Eighth Ninth Tenth Eleventh 

Judgment and 

commitment 

order 0.7% 2.0% 0.2% 0.8% 1.1% 1.4% 0.5% 0.5% 0.3% 0.4% 1.0% 0.4% 0.6% 

Statement of 

reasons 3.7% 0.5% 4.9% 5% 1.4% 7.4% 1.6% 1.9% 2.5% 1.3% 6.6% 4.5% 2.4% 

Presentence 

report 1.5% 1.3% 2.3% 1.8% 1.8% 1.7% 1.2% 1.3% 2.3% 1.1% 1.6% 1.8% 0.9% 

Plea 

agreement 11% 33% 12% 50% 5% 7% 9% 7% 8% 5% 8% 9% 9% 

Indictment 13% 39% 3% 75% 32% 10% 5% 3% 20% 3% 5% 6% 7% 

Source: GAO analysis of UUSC data. 

Among the 12 circuits, the rate of missing SORs—the principal document 

used to determine the reason for a sentencing departure—ranged from 

less than 1 percent to about 7 percent. Two of the 4 circuits in which the 

highest number of drug sentences were imposed were also missing the 

highest percent of their SORs–the 9th Circuit at 6.6 percent and the Fourth 

Circuit at 7.4 percent. A circuit’s average can mask wide differences 

among the districts within the circuit. For example, the percentages of 

missing SORs among districts in the Ninth Circuit ranged from less than 

1 percent to 58 percent and in the Fourth Circuit from less than 1 percent 

to 20 percent. 

USSC Takes Steps to 

Reduce Missing 

Document Rate 

USSC reviews the documents it receives from the district courts and 

annually sends a letter to each district court identifying the cases in which 

documents appear to be missing. Additionally, in its annual report, USSC 

discloses the overall document submission rate for all criminal cases for 

the J&C, SOR, and PSR documents. USSC also attempts to identify 

guidelines cases for which the courts may not have submitted any 

sentencing documents. By linking data from a database maintained by 

AOUSC with the data on cases in its database, USSC develops a list of 

cases for which it has not yet received documentation. USSC sends this 

list of cases to the relevant district courts and asks them to review the list 

and forward any documents USSC should have received. 

Page 63 GAO-04-105 Federal Drug Sentences 
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Missing or Difficult to In addition to missing sentencing documents, the documents USSC 

received in fiscal years 1999-2001 had missing information or information 

Interpret Information that was difficult to interpret. As shown in table 14, among the circuits 

Can Affect Analysis of departure data were missing for 1 percent to 7 percent of drug sentences 

imposed in fiscal years 1999-2001. In addition, for 4 percent to 15 percent

Departures of sentences, information was missing on whether the safety value was 

used as the basis for sentencing below a mandatory minimum. 

Table 14: Percent of Missing Drug Sentencing Information on Documents USSC Received, by Circuit, Fiscal Years 1999-2001 

Sentencing National 

information average D.C. First Second Third Fourth Fifth Sixth Seventh Eighth Ninth Tenth Eleventh 

Departure 

information 4% 3% 5% 5% 2% 8% 2% 2% 3% 1% 7% 5% 3% 

Safety valve 

applied 8% 11% 10% 10% 13% 15% 4% 5% 7% 6% 12% 7% 4% 

Source: GAO analysis of UUSC data. 

Nationally, of the 72,283 federal drug sentence imposed in fiscal years 

1999-2001, 3,004 (4 percent) were coded as missing information necessary 

to determine whether the sentence departed from an applicable guideline 

range. Of these, 2,118 sentences were missing information because the 

SOR had not been received, and for 570, the SOR was received but did not 

include departure information. 

Missing or unclear data also limited our ability to determine when the 

safety valve was used as the basis for sentencing below an otherwise 

applicable mandatory minimum. For example, in our preliminary analysis, 

we found that of the 11,256 federal drug sentences for which the offense of 

conviction carried a mandatory minimum and fell below that minimum, 

about 1,600 (14 percent) were coded by USSC as falling below the 

applicable mandatory minimum but not involving either the safety valve or 

substantial assistance. We discussed this issue with USSC. After reviewing 

the underlying documents used for coding these 1,600 sentences, USSC 

determined that over 900 sentences were miscoded. These miscoded 

sentences were recoded in a variety of ways, including some coded as 

involving the safety valve, some coded as involving substantial assistance, 

some coded as having a changed drug quantity that affected the applicable 

mandatory minimum, and some coded as missing safety valve information. 

USSC did not recode 681 sentences; these sentences remained coded as 

falling below a mandatory minimum but involving neither the safety valve 

nor substantial assistance. In addition, safety valve information was 

determined to be missing from 770 sentences for which the offense of 

Page 64 GAO-04-105 Federal Drug Sentences 
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and Mandatory Minimum Sentences at Circuit 

and District Court Levels Limited 

conviction carried and fell below a mandatory minimum. A USSC official 

said that there is no specific prompt on the SOR asking for information on 

the application of the safety valve or whether the offense of conviction 

carried a mandatory minimum. 

On the basis of our analysis, missing or incomplete sentencing information 

is unlikely to affect analyses nationally or by circuit but could affect the 

analysis of departures in districts where the missing documents or 

information are concentrated. Missing or incomplete sentencing 

information may also affect USSC’s records for individual judges and thus 

USSC’s ability to provide accurate judge-specific sentencing analysis were 

Congress to request this information under the auspices of the PROTECT 

Act. 

USSC Actions to 

Improve Coding 

Multiple Reasons 

Cited for Missing 

Documentation and 

Information 

USSC officials told us that they have not generally followed-up with 

district courts to obtain information that is missing from submitted 

documents or is unclear (e.g., whether the safety valve provision was the 

basis for a sentence below an applicable mandatory minimum). USSC staff 

does not use information from one document to substitute for missing or 

unclear information in another document. As a result of coding issues we 

identified during this review, USSC plans to implement new quality control 

and review procedures for sentences where information on the SOR is 

missing, incomplete, or unclear. These include identifying common errors 

for coding staff, using technology to develop automatic edit checks for 

apparently contradictory coding information for a sentence (e.g., those 

below an applicable mandatory minimum whose reason for departure is 

not substantial assistance or the safety valve), and having a staff attorney 

review sentences in which the coding supervisor is unable to determine 

the appropriate coding. 

Officials from USSC, the AOUSC, and the Judicial Conference Committee 

on Criminal Law cited several reasons that sentencing documents or 

information on sentencing documents were missing. First, USSC and 

AOUSC officials told us that some judges do not provide all the 

documents, in part because judges may be unclear whether documents 

under court seal or that pertain to individuals in the federal witness 

protection program are to be forwarded to USSC. 

Second, USSC relies almost exclusively on the SOR to determine whether 

the sentence departed, met a mandatory minimum, or involved substantial 

assistance. If the SOR is missing, USSC’s coding procedures require 

Page 65 GAO-04-105 Federal Drug Sentences 
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and District Court Levels Limited 

document analysts to record the departure status as missing, even if other 

documents, such as the plea agreement, suggests that a departure may by 

recommended by the government. As a result, incomplete information 

prevents USSC from collecting some sentencing data, as illustrated below 

by two examples drawn from drug sentences imposed during fiscal years 

1999-2001: 

• 	 In one case, the SOR did not indicate the reason the court sentenced the 

offender to 97 months—a sentence below the applicable 10-year (120 

month) mandatory minimum. Without this information on the SOR, under 

the coding conventions used, USSC document analysts could not record 

substantial assistance as the reason that the sentence of 97 months fell 

below a mandatory minimum even though the plea agreement (prepared 

by the parties) and the PSR (prepared by the probation officer) indicated 

that a substantial assistance motion was to have been made. 

• 	 In another case, the SOR stated that the court was crediting the offender 

for time served but failed to state the specific amount of time being 

credited. Unable to determine the amount of time being credited, and thus 

the sentence length being imposed, USSC document analysts could not 

determine whether the sentence departed or met an applicable mandatory 

minimum. 

Third, judges report the information using different versions of the SOR 

forms that can make consistent interpretation more difficult. For example, 

some jurisdictions provide one-page, single-spaced narratives that report 

the sentence and, in rare cases, others provide a transcript of the 

sentencing hearing instead of an SOR. According to USSC officials, 

interpreting multiple forms that report sentencing information in different 

ways and in different locations complicates the process of coding 

sentencing data such as departure status and use of the safety valve and 

may lead to missing sentencing information. USSC officials stated the 

single most effective step towards improving the completeness of data the 

courts report and USSC’s ability to code it would be the increased use of a 

standard SOR. The Judicial Conference at its September 2003 meeting 

accepted revisions to the standard SOR. The Conference designated the 

revised form as the mechanism by which courts comply with the 

requirements of the PROTECT Act to report reasons for sentences to 

USSC. The Committee plans to encourage judges to use it through 

education about the benefits of its use, but the Chair of the Committee 

stated that the Committee does not believe it has the authority to require 

the use of the new SOR. Officials from AOUSC and the Committee said 

they believe that with additional education judges will routinely use the 

Page 66 GAO-04-105 Federal Drug Sentences 
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and Mandatory Minimum Sentences at Circuit 

and District Court Levels Limited 

new standard SOR, resulting in more useful and higher quality data 

reported to USSC. 

Last, according to officials from AOUSC and the Criminal Law Committee, 

judges and other court officials lack an awareness of how to complete the 

SORs with a level of detail that would allow USSC to collect sentencing 

information. The Committee official said that education for judges and 

other court officials is needed on how to properly complete the SOR. In 

addition, no feedback mechanism is in place to inform judges that 

information on the SOR was incomplete or unclear to USSC and, 

therefore, cases are coded as missing sentencing information. Although 

USSC contacts the courts to request missing sentencing documents be 

submitted, it does not provide a similar list of documents that contained 

information coded as missing. Without knowing which cases are coded as 

missing sentencing information, judges cannot clarify or complete 

information needed by USSC. 

While USSC and the Federal Judicial Center offer programs and 

workshops on application of the guidelines to judges and other court 

officials, no education programs are provided on how to complete the SOR 

in ways that provide clear, complete information. Officials from USSC, 

AOUSC, and Criminal Law Committee said that education on how to apply 

increasingly complex guidelines has been their focus, not educating judges 

and other officials to correctly complete the SOR. Officials also said that in 

the future it would be possible to provide programs at judicial workshops 

or through the Federal Judicial Center that educates judges and other 

court officials on how to provide clear, complete reports on sentencing. 

The category “other downward departures” generally thought to represent 

judicial discretion may also reflect downward departures resulting from 

prosecutorial discretion and initiative. In this report we classified 

departures as either “substantial assistance” or “other downward” 

departures. Substantial assistance departures can be viewed as a measure 

of prosecutorial discretion because only the prosecutor has the authority 

to initiate and recommend to the court that an offender be given a reduced 

sentence for substantial assistance to the prosecution. Neither the judge 

nor defense counsel may do so. The remaining departures, “other 

downward departures,” are generally considered to be an indication of 

judicial discretion. AOUSC officials suggested, however, that the category 

“other downward departures” provides an imprecise measure of judicial 

discretion. For example, AOUSC officials noted that some departures 

classified in USSC database as other departures may actually arise from 

Other Downward 

Departures Do Not 

Solely Reflect Judicial 

Discretion 

Page 67 GAO-04-105 Federal Drug Sentences 
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agreements, particularly plea bargains, that either were initiated or 

supported by the government. We did not confirm this statement with 

federal prosecutors. USSC documents in its database up to three reasons 

judges provide for an other downward departure. According to USSC 

database for drug sentences in fiscal years 1999-2001, the first reason 

provided for an other downward departure in 18 percent of the sentences 

was the government’s fast track programs;3 in 16 percent, plea agreement; 

and in 4 percent, deportation. Tables 15, 16, and 17 detail for drug 

sentences the number and percent of other downward departures 

associated with the first, second, and third reasons provided for those 

departures. 

Table 15: First Reason Provided by Judges for Other Downward Departure in Drug Sentences Nationwide, Fiscal Years 1999-

Number of other Percent of other 

downward downward departures 

First reason departures for drug sentences 

No Reason given 16 * 

(5G1.3) Convictions on related counts 10 * 

(5H1.1) Age 40 * 

(5H1.2) Educational and vocational skills 1 * 

(5H1.3) Mental and emotional conditions 55 1% 

(5H1.4) Physical condition 223 2% 

(5H1.4) Drug dependence and alcohol 

abuse 21 * 

(5H1.5) Previous employment record 5 * 

(5H1.6) Family ties and responsibilities 360 3% 

(5H1.6) Community ties 14 * 

(5K1.1) Substantial assistance at motion 1 * 

not 5K1.1 Cooperation without motion 30 * 

Cooperation (motion unknown) 34 * 

(5K2.0) Several persons injured 1 * 

(5K2.2) Physical injury 1 * 

(5K2.3) Extreme psychological injury 1 *


(5K2.6) Weapons and dangerous 


instrumentalities 1 *


3

 “Fast-track” or other early disposition programs in the southwest border districts provide 

lower sentences initiated by prosecutors for low-level drug trafficking offenses. 

Page 68 GAO-04-105 Federal Drug Sentences 

2001 
Appendix IV: Data for Analyzing Departures 

and Mandatory Minimum Sentences at Circuit 

and District Court Levels Limited 

Number of other Percent of other 

downward downward departures 

First reason departures for drug sentences 

(5K2.10) Victim’s conduct 2 * 

(5K2.11) Lesser harm 4 * 

(5K2.12) Coercion and duress 74 1% 

(5K2.13) Diminished capacity 207 2% 

Fast Track - Immigration 1,969 18% 

(2A1.1) Death not caused intentionally 2 * 

(2A6.1) Factors not incorporated in 

guideline 4 * 

(2D1.1) Unusually high drug amount 16 * 

(2Q1.2, 2Q1.3) Harm resulting from risk 1 * 

(4A1.3) Pattern of conduct 2 * 

(4A1.3) Pending cases 1 * 

General adequacy of criminal history; 

does not reflect seriousness of criminal 

history 7 * 

Significance or similarity of past conduct 6 * 

Criminal history category overrepresents the defendant’s involvement 1,169 11% 

Pursuant to a plea agreement 1,680 16% 

Due to stipulations 10 * 

Other plea agreement reason 1 * 

Mule/Role in the offense 89 1% 

Deportation 472 4% 

Local conditions 4 * 

Adequate punishment to meet the 

purposes of sentencing 82 1% 

Deterrence 36 * 

Prey to other inmates 3 * 

Guidelines do not reflect the seriousness 

of the offense 8 * 

No prior record/first offender 6 * 

Put defendant’s sentence in line with codefendant’s. Reduce disparity. 9 * 

Lack of culpability/accountability of 

defendant 5 * 

Time or cost involved in the investigation 3 * 

Acceptance of responsibility 91 1% 

Limited/minor prior record 2 * 

Page 69 GAO-04-105 Federal Drug Sentences 
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and Mandatory Minimum Sentences at Circuit 

and District Court Levels Limited 

Number of other Percent of other 

downward downward departures 

First reason departures for drug sentences 

Rehabilitation 191 2% 

Restitution 2 * 

Incapacitation 4 * 

Sufficient punishment 23 * 

Nature/seriousness of the offense 5 * 

First felony conviction 2 * 

Dollar amount involved in crime 

(general) 2 * 

Currently receiving punishment under 

state or federal jurisdiction 1 * 

Defendant’s positive background/good 

character 2 * 

Military record 1 * 

Not representative of the “heartland” 93 1% 

Guidelines too high/offense level overrepresented 2 * 

Guidelines too low/offense level underrepresented 1 * 

(5K2.0) General aggravating or 

mitigating circumstance 1,671 15% 

Other (SPECIFY) 804 7% 

Defendant is a law enforcement officer 

or ex-law enforcement officer 1 * 

Offense behavior was an isolated 

incident 995 9% 

Lower sentence gives defendant a 

chance to be a productive member of 

society 1 * 

(5K2.16) Voluntary disclosure 7 * 

Lack of youthful guidance 2 * 

Delay in prosecution; evidentiary 

concerns 2 * 

Time served 28 * 

Child abuse (child abuse/battered child 

syndrome) 4 * 

Remorse 2 * 

Missing/indeterminable 191 2% 

Source: GAO analysis of USSC data. 

Page 70 GAO-04-105 Federal Drug Sentences 
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and Mandatory Minimum Sentences at Circuit 

and District Court Levels Limited 

Note: These percentages are based on 10,891 drug sentences imposed during fiscal years 1999-

2001 for which departure information is available and the sentence was coded an other downward 

departure. USSC codes up to three reasons provided by judges as the bases for departing. 

*Less than 1percent. 

Page 71 GAO-04-105 Federal Drug Sentences 
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Table 16: Second Reason Provided by Judges for Other Downward Departure in Drug Sentences Nationwide, Fiscal Years 

1999-2001 

Second reason Number of drug sentences Percent of drug sentences 

(Second Reason field left blank) 8,986 82% 

No reason given 1 * 

(5H1.1) Age 20 * 

(5H1.2) Educational and vocational skills 2 * 

(5H1.3) Mental and emotional conditions 34 * 

(5H1.4) Physical condition 71 1% 

(5H1.4) Drug dependence and alcohol 

abuse 7 * 

(5H1.5) Previous employment record 4 * 

(5H1.6) Family ties and responsibilities 105 1% 

(5H1.6) Community ties 3 * 

not 5K1.1 Cooperation without motion 7 * 

Cooperation (motion unknown) 4 * 

(5K2.10) Victim’s conduct 1 * 

(5K2.12) Coercion and duress 15 * 

(5K2.13) Diminished capacity 34 * 

Fast Track - Immigration 206 2% 

(2A6.1) Factors not incorporated in * 

guideline 1 

(2D1.1) Unusually high drug purity 1 * 

(2D1.1) Unusually high drug amount 1 * 

Significance or similarity of past conduct 1 * 

Criminal history category over-represents 

the defendant’s involvement 72 1% 

(4B1.1) Career offender 1 * 

Pursuant to a plea agreement 61 1% 

Due to stipulations 2 * 

Other plea agreement reason 1 * 

Mule/role in the offense 44 * 

Deportation 39 * 

Local conditions 3 * 

Adequate punishment to meet the * 

purposes of sentencing 9 

Deterrence 13 * 

Charge/plea does not reflect the * 

seriousness of the offense 1 

No prior record/first offender 7 * 

Page 72 GAO-04-105 Federal Drug Sentences 
Appendix IV: Data for Analyzing Departures 

and Mandatory Minimum Sentences at Circuit 

and District Court Levels Limited 

Second reason Number of drug sentences Percent of drug sentences 

Put defendant’s sentence in line with * 

codefendant’s. Reduce disparity. 4 

Lack of culpability/accountability of * 

defendant 1 

Lack of available facilities/overcrowding 1 * 

Time or cost involved in the investigation 2 * 

Acceptance of responsibility 18 * 

Rehabilitation 46 * 

Incapacitation 1 * 

Sufficient punishment 12 * 

First felony conviction 1 * 

Defendant’s positive background/good * 

character 2 

Military record 1 * 

Not representative of the “heartland” 18 * 

(5K2.0) General aggravating or mitigating 

circumstance 282 3% 

Other (SPECIFY) 160 1% 

Unknown 2 * 

Offense behavior was an isolated incident 567 5% 

(5K2.16) Voluntary disclosure 1 * 

Lack of youthful guidance 6 *


Time served 2 *


Child abuse (child abuse/battered child *


syndrome) 3 


Missing/indeterminable 4 *


Source: GAO analysis of USSC data. 

Note: These percentages are based on 10,891 drug sentences imposed during fiscal years 1999-

2001 for which departure information is available and the sentence was coded an other downward 

departure. USSC codes up to three reasons provided by judges as the bases for departing. 

*Less than 1percent. 

Page 73 GAO-04-105 Federal Drug Sentences 
Appendix IV: Data for Analyzing Departures 

and Mandatory Minimum Sentences at Circuit 

and District Court Levels Limited 

Table 17: Third Reason Provided by Judges for Other Downward Departure in Drug Sentences Nationwide, Fiscal Years 1999-

2001 

Third reason Number of drug sentences Percent of drug sentences 

(Third Reason field left blank) 10,705 98% 

(5H1.1) Age 7 * 

(5H1.2) Educational and vocational skills 1 * 

(5H1.3) Mental and emotional conditions 4 * 

(5H1.4) Physical condition 15 * 

(5H1.5) Previous employment record 3 * 

(5H1.6) Family ties and responsibilities 20 * 

Cooperation (motion unknown) 2 * 

(5K2.11) Lesser harm 1 * 

(5K2.12) Coercion and duress 3 * 

(5K2.13) Diminished capacity 6 * 

Fast Track - Immigration 5 * 

(2D1.1) Unusually high drug amount 1 * 

Criminal history category over-represents the * 

defendant’s involvement 9 

Pursuant to a plea agreement 6 * 

Mule/role in the offense 8 * 

Deportation 3 * 

Local conditions 1 * 

Deterrence 3 * 

No prior record/first offender 3 * 

Put defendant’s sentence in line with * 

codefendant’s. Reduce disparity 1 

Acceptance of responsibility 3 * 

Rehabilitation 12 * 

Incapacitation 7 * 

Defendant’s positive background/good character 1 * 

Not representative of the “heartland” 6 * 

(5K2.0) General aggravating or mitigating * 

circumstance 17 

Other (SPECIFY) 13 * 

Offense behavior was an isolated incident 24 * 

Lack of youthful guidance 1 * 

Source: GAO analysis of USSC data. 

Note: These percentages are based on 10,891 drug sentences imposed during fiscal years 1999-

2001 for which departure information is available and the sentence was coded an other downward 

departure. USSC codes up to three reasons provided by judges as the bases for departing. 

*Less than 1percent. 

Page 74 GAO-04-105 Federal Drug Sentences 
Appendix V: Comments from U.S. Sentencing 

Commission 

Page 75 GAO-04-105 Federal Drug Sentences 
Appendix V: Comments from U.S. Sentencing 

Commission 

Page 76 GAO-04-105 Federal Drug Sentences 
Appendix VI: Comments from the Judicial 

Conference Committee on Criminal Law 

Page 77 GAO-04-105 Federal Drug Sentences 
Appendix VI: Comments from the Judicial Conference Committee on Criminal Law 

Page 78 GAO-04-105 Federal Drug Sentences 
Appendix VI: Comments from the Judicial Conference Committee on Criminal Law 

Copy of testimony is not included. 

Page 79 GAO-04-105 Federal Drug Sentences 
Appendix VI: Comments from the Judicial Conference Committee on Criminal Law 

Page 80 GAO-04-105 Federal Drug Sentences 
Appendix VI: GAO Contacts and Staff 

Acknowledgments 

GAO Contacts 

Staff 

Acknowledgments 

(440188) 

William O. Jenkins, Jr. (202) 512-8757 

David Alexander (202) 512-4223 

In addition to the persons named above, the following persons made key 

contributions to this report: William W. Crocker, III, Christine Davis, 

Barbara Hills, David Makoto Hudson, E. Anne Laffoon, William Sabol, 

Doug Sloane, Wendy Turenne. 

Page 81 GAO-04-105 Federal Drug Sentences 
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