Patti B. Saris 

Chair 

William B. Carr, Jr. 

Vice Chair 

Ketanji B. Jackson 

Vice Chair 

Ricardo H. Hinojosa 

Commissioner 

Beryl A. Howell 

Commissioner 

Dabney L. Friedrich 

Commissioner 

Isaac Fulwood, Jr. 

Commissioner, Ex-officio 

Jonathan J. Wroblewski 

Commissioner, Ex-officio

Report on the 

Continuing Impact of United States v. Booker 

on Federal Sentencing 
BOOKER REPORT 2012 

Table of Contents 

 

PART A 

Overview ................................................................................................................................................ 1 

What the Commission Studied .................................................................................................................................................... 1 

What the Commission Found ...................................................................................................................................................... 3 

Organization ................................................................................................................................................................................... 4 

Summary of Key Findings ............................................................................................................................................................ 4 

Summary of Recommendations .................................................................................................................................................. 9 

History of the Federal Sentencing Guidelines .................................................................................... 10 

Introduction .................................................................................................................................................................................. 10 

Creation of the Commission and Development of the Guidelines ..................................................................................... 12 

Evolution of the Guidelines ....................................................................................................................................................... 22 

Pre-Booker Supreme Court Case Law and Statutory Changes............................................................................................... 23 

The Booker Decision .................................................................................................................................................................... 25 

The Sentencing Process After Booker ................................................................................................ 28 

The Three-Step Process .............................................................................................................................................................. 28 

Consideration of Offender Characteristics .............................................................................................................................. 32 

Policy Disagreements with the Guidelines............................................................................................................................... .36 

Post-Booker Appellate Review .................................................................................................................................................... 43 

Analysis of Federal Sentencing Data .................................................................................................. 51 

Methodology ................................................................................................................................................................................. 51 

Analysis and Findings .................................................................................................................................................................. 58 

Federal Offenders Have Continued to Receive Substantial Prison Sentences ............................................................. 59 

The Guidelines Have Remained the Essential Starting Point for Federal Sentences .................................................. 60 

The Influence of the Guidelines Has Varied by Offense Type, Remaining Stable in Drug Trafficking, Firearms, 

and Immigration Offenses, and Diminishing in Fraud and Child Pornography Offenses ......................................... 62 

i
BOOKER REPORT 2012 

The Rates of Within Range Sentences Have Decreased, as the Rates of Both Government Sponsored and NonGovernment Sponsored Below Range Sentences Have Increased ................................................................................. 69

The Influence of the Guidelines Has Varied by Circuit ................................................................................................... 75

The Rates of Non-Government Sponsored Below Range Sentences, and Variation in Those Rates, Have 

Increased Since Booker ............................................................................................................................................................ 89

Average Reductions Below the Guideline Minimum for Non-Government Sponsored Below Range Sentences 

Have Varied by Offense Type .............................................................................................................................................. 91

Government Sponsored Below Range Sentences and Differences in Prosecutorial Practices Have Contributed to 

Increasing Variation in Sentencing ....................................................................................................................................... 93

The Rates of Non-Government Sponsored Below Range Sentences Vary Among Judges Within the Same 

District ...................................................................................................................................................................................... 98

Appellate Review Has Not Promoted Sentencing Uniformity to the Extent Anticipated in Booker ....................... 105

Demographic Factors (Such as Race, Gender, Citizenship) Are Associated with Sentencing Outcomes at Higher 

Rates than in Previous Periods ........................................................................................................................................... 108

Recommendations..............................................................................................................................11

Develop More Robust Appellate Review .............................................................................................................................. 111

Require a Presumption of Reasonableness for Within Range Sentences on Appeal ................................................. 112

Require Greater Justification for Sentences Substantially Outside the Guideline Range .......................................... 112

Require Heightened Review of Sentences Based on Policy Disagreements with the Guidelines .............................112

Reconcile the Statutes that Restrict the Commission’s Consideration of Offender Characteristics with Statutory 

Interpretations that Require Courts to Consider Those Same Characteristics More Expansively ............................... 113

Codify the Three-Step Process ................................................................................................................................................ 114

Resolve the Uncertainty About the Weight to be Given the Guidelines at Sentencing ................................................. 114

ii
BOOKER REPORT 2012 

ONLINE CONTENT

(www.ussc.gov) 

PART B: Appellate Review ...................................................................................................................... 

This Part contains additional Supreme Court and Circuit Court case law, discussion of viewpoints on appellate 

procedure as expressed in public hearings, case law, and the 2010 survey of district judges, and an analysis of data 

on sentencing appeals.

PART C: Methodology and Statistical Analysis of Federal Sentencing Data ......................................... 

Following a description of the Commission’s methodology, each sub-section in Part C includes an overview of 

fiscal year 2011 data, and trend data covering four periods – PROTECT Act, Koon, Booker, and Gall, − as well as 

Appendices with additional tables. 

 Federal Offenses in the Aggregate 

 Drug Trafficking 

 Powder Cocaine Trafficking 

 Crack Cocaine Trafficking 

 Heroin Trafficking 

 Marijuana Trafficking 

 Methamphetamine Trafficking 

 Immigration Offenses 

 Alien Smuggling Offenses 

 Illegal Entry Offenses 

 Firearms Offenses 

 Fraud Offenses 

 Child Pornography Offenses 

 Production Offenses 

 Non-Production Offenses (Trafficking, Receipt, and Possession) 

 Career Offenders 

PART D: Spread of Non-Government Sponsored Below Range Sentences by Circuit and District ...... 

After a brief introduction and explanation of the Commission’s methodology, this Part analyzes non-government 

sponsored below range rates by judge within each of the 94 judicial districts, illustrating the spread in the rates 

among judges within the same district, and the spread in the extent of the reductions below the guideline minimum. 

Plots depicting the spread in the rates and the extent of the reductions for each of the 94 districts follow.

PART E: Demographic Differences in Sentencing ................................................................................. 

In this Part, the Commission updates its multivariate regression analysis on demographic differences in sentencing, 

last published in March 2010, and also presents additional multivariate analyses. Appendices to this part contain 

additional data and variables used in the analyses.

PART F: Summary of Stakeholder Views on Sentencing Reform ........................................................... 

In this Part, the Commission describes other proposals for sentencing reform and summarizes public hearing 

testimony related to post-Booker sentencing as well as a survey of district judges conducted in 2010.

iii
BOOKER REPORT 2012: PART A 

Overview 

WHAT THE COMMISSION STUDIED

The United States Sentencing Commission 

(“the Commission”) submits this report to Congress1

on the impact of United States v. Booker2

 on federal 

sentencing in order to assist Congress in its efforts to 

ensure certain and fair sentencing that avoids 

unwarranted sentencing disparities while maintaining 

sufficient flexibility,3

 as envisioned in the Sentencing 

Reform Act of 1984 (“SRA”). In preparing this report, 

the Commission reviewed case law, analyzed 

sentencing data,4

 and studied scholarly literature. 

 

1

 The Commission submits this report pursuant to its 

general authority under 28 U.S.C. §§ 994-995, and its 

specific authority under 28 U.S.C. § 995(a)(2), which 

provides that the Commission shall have authority to “make 

recommendations to Congress concerning modification or 

enactment of statutes relating to sentencing, penal, and 

correctional matters that the Commission finds to be 

necessary and advisable to carry out an effective, humane 

and rational sentencing policy.” 

2

 543 U.S. 220 (2005). 

3

 See 28 U.S.C. § 991(b)(1)(B) (“The purposes of the 

United States Sentencing Commission are to . . . provide 

certainty and fairness in meeting the purposes of sentencing, 

avoiding unwarranted sentencing disparities among 

defendants with similar records who have been found guilty 

of similar criminal conduct while maintaining sufficient 

flexibility to permit individualized sentences when 

warranted by mitigating or aggravating factors not taken 

into account in the establishment of general sentencing 

practices[.]”). 

4

 The Commission maintains a comprehensive, 

computerized data collection system and acts as the 

clearinghouse for federal sentencing information pursuant to 

28 U.S.C. §§ 995(a)(14), (15). The Commission relies on 

this database for its ongoing monitoring and evaluation of 

The Commission also sought the views of stakeholders 

in the federal criminal justice system in a variety of 

ways, including conducting seven regional public 

hearings,5

 an additional hearing on post-Booker

 

the guidelines, many of its reports and research projects, and 

for responding to hundreds of data requests received from 

Congress and other criminal justice entities each year. 

Pursuant to 28 U.S.C. § 994(w), within 30 days of entry of 

judgment in every felony and class A misdemeanor case, the 

Commission receives: (1) the judgment and commitment 

order; (2) the statement of reasons; (3) the plea agreement, if 

any; (4) the indictment or other charging information; and 

(5) the presentence report (unless waived by the court). For 

each case, the Commission routinely collects hundreds of 

pieces of information, including defendant demographics, 

statute(s) of conviction, application of (or relief from) any 

statutory mandatory minimum penalty, sentencing guideline 

applications, sentences imposed, and the reasons for any 

sentence that departs or varies from the guidelines range. A 

detailed description of the methodologies the Commission 

used to analyze the data for this report is in Part C, available 

online. 

5

 The Commission held seven regional public hearings 

coinciding with the 25th anniversary of the enactment of the 

Sentencing Reform Act of 1984 to solicit the views of 

judges, prosecutors, defense attorneys, probation officers, 

academics, and others on a variety of federal sentencing and 

criminal justice topics. These hearings were held in Atlanta, 

GA (Feb. 10-11, 2009), Stanford, CA (May 27-28, 2009), 

New York, NY (July 9-10, 2009), Chicago, IL (Sept. 9-10, 

2009), Denver, CO (Oct. 20-21, 2009), Austin, TX (Nov. 

19-20, 2009), and Phoenix, AZ (Jan. 20-21, 2010). Witness 

statements and transcripts for the public hearings are 

available online at 

http://www.ussc.gov/Legislative_and_Public_Affairs/. 

Summaries of the testimony relating specifically to postBooker sentencing issues can be found in Part F of this 

report, available online. 

1
BOOKER REPORT 2012: PART A 

sentencing held in February 2012,6 a survey of federal 

district judges,7

 and considering comments from its 

advisory groups8 as well as representatives from all 

three branches of government. 

The Commission also undertook statistical 

analyses of federal sentencing data for five offense 

types (drug trafficking, firearms, immigration, fraud, 

and child pornography) and one commonly applied 

guideline (career offender). In fiscal year 2011, four 

of these offenses (immigration, drug trafficking, 

firearms, and fraud) constituted over three quarters of 

federal offenses. The offense types studied in this 

report comprised nearly 80 percent of federal criminal 

cases in fiscal year 2011. 

The Commission commonly analyzes 

sentences by comparing the sentence imposed in a 

case with the applicable guideline range provided in 

the Guidelines Manual for that case. Through this 

analysis, the Commission routinely groups sentences 

into one of four categories: (1) sentences that fall 

within the guideline range; (2) sentences that are 

above the top of the guideline range; (3) sentences that 

are below the bottom of the guideline range 

attributable at least in part to a request from the 

government; and (4) sentences that are below the 

bottom of the guideline range but are not attributable 

to a request from the government.9

 In this report, 

 

6

 The Commission held a hearing on federal sentencing 

options after Booker in Washington, DC on February 16, 

2012. Witness statements and transcripts for this public 

hearing are available on the Commission’s webpage at 

www.ussc.gov. Summaries of the testimony can be found 

in Part F of this report, available online. 

7

 In early 2010, the Commission conducted a survey of 

federal district judges to solicit their views on a variety of 

sentencing topics. See U.S. SENT’G COMM’N, RESULTS OF 

SURVEY OF UNITED STATES DISTRICT JUDGES: JANUARY 

2010 THROUGH MARCH 2010 (June 2010) [hereinafter 2010

JUDGES’ SURVEY], available on the Commission’s webpage 

at www.ussc.gov. A summary of the survey responses 

related to post-Booker sentencing issues can be found in 

Part F of this report, available online. 

8

 The Commission has three standing advisory groups: the 

Practitioners Advisory Group, the Probation Officers 

Advisory Group, and the Victims Advisory Group. 

Information on each of these advisory groups can be found 

on the Commission’s webpage at www.ussc.gov. 

9

 See Table N, “National Comparison of Sentence Imposed 

and Position Relative to the Guideline Range,” U.S. SENT’G 

sentencing trends are discussed using these four broad 

categories: “within range;” “above range;” 

“government sponsored below range;” and “nongovernment sponsored below range.” 

 In some analyses in this report, the 

Commission further divides government sponsored 

below range sentences into three subgroups. First, 

“substantial assistance departures” are those sentences 

where the government requested a sentence below the 

guideline range on account of the defendant’s 

substantial assistance to the government in connection 

with the investigation or prosecution of another 

person. Second, “Early Disposition Program (or EDP) 

departures” are sentences where the government 

sought a sentence below the guideline range because 

the defendant participated in the government’s Early 

Disposition Program, through which cases are resolved 

in an expedited manner. Both substantial assistance 

and EDP departures are specifically authorized by 

statute and are incorporated into the Guidelines 

Manual through specific policy statements. “Other 

government sponsored below range” sentences are all 

other below range sentences imposed at the request of 

the government for a reason other than substantial 

assistance or EDP. “Other government sponsored 

below range” sentences are not specifically authorized 

by any statute, and are not incorporated into the 

Guidelines Manual through any guideline or policy 

statement. 

The Commission also analyzed sentencing 

data from individual judges in order to determine 

intra-district sentencing patterns across time, and 

examined appellate court decisions collected annually 

since 1994. Finally, the Commission updated and 

expanded its prior multivariate analysis of 

demographic differences in federal sentencing 

outcomes, most recently published in March 2010.10 

The Commission’s sentencing data analyses 

spanned a broad time frame, from October 1995 

through September 2011. In most instances, four 

periods were examined: the Koon period (June 13, 

1996 through April 30, 2003), the PROTECT Act 

 

COMM’N, SOURCEBOOK OF FEDERAL SENTENCING 

STATISTICS (2011) [hereinafter 2011 SOURCEBOOK]. 

10 U.S. SENT’G COMM’N, DEMOGRAPHIC DIFFERENCES IN 

FEDERAL SENTENCING PRACTICES: AN UPDATE OF THE 

BOOKER REPORT’S MULTIVARIATE REGRESSION ANALYSIS 

(March 2010) [hereinafter MULTIVARIATE REPORT]. 

2
BOOKER REPORT 2012: PART A 

period (May 1, 2003 through June 24, 2004), the 

Booker period (January 12, 2005 through December 

10, 2007), and the Gall period (December 11, 2007 

through September 30, 2011). The Commission 

selected these periods based on Supreme Court 

decisions and legislation that influenced federal 

sentencing in fundamental ways. Specifically, in 

United States v. Koon,

11 the Supreme Court defined 

the level of deference due to district courts’ decisions 

to sentence outside the guideline range and determined 

that such decisions should be reviewed for abuse of 

discretion. In passing the PROTECT Act12 nearly 

seven years later, Congress restricted district courts’ 

discretion to impose sentences outside the guideline 

range, and required that courts of appeals review such 

decisions de novo, or without any deference to the 

district court’s decision. In Booker, the Supreme 

Court struck down two statutory provisions in the SRA 

that made the guidelines mandatory, and also defined 

the standard of review for sentences on appeal. In 

Gall v. United States,

13 the Court further defined the 

appellate standard of review. 

WHAT THE COMMISSION FOUND

The sentencing guidelines have remained the 

essential starting point in all federal sentences and 

have continued to exert significant influence on federal 

sentencing trends over time. The most stable 

relationship between the guidelines and sentences 

imposed occurred in some of the most frequently 

prosecuted offenses, including drug trafficking, 

immigration, and firearms offenses. In other types of 

offenses, such as fraud and child pornography, the 

influence of the guidelines appeared to have 

diminished over time in several measurable ways, 

including decreasing rates of sentences imposed within 

the sentencing guideline ranges, and increasing rates 

of non-government sponsored below range sentences 

(those below range sentences imposed at the judges’ 

discretion and not in response to a government 

motion). Increasing rates of below range sentences 

sponsored by the government for reasons other than 

substantial assistance, as well as differences in 

prosecutorial practices across districts, also have 

 

11 518 U.S. 81 (1996). 

12 Pub. L. No. 108-21 (2003). 

13 552 U.S. 38 (2007). 

contributed to decreasing rates of within range 

sentences and increasing variation in sentencing for 

some offenses. 

Regional disparities have increased, as 

evidenced by the variation in rates of within range 

sentences among the circuits and districts. Further, the 

Commission’s analysis of individual judge data 

showed that the identity of the judge has played an 

increasingly important role in sentencing outcomes in 

many districts. 

The Commission also found that demographic 

characteristics are now more strongly correlated with 

sentencing outcomes than during previous periods, 

although the Commission does not suggest that this 

correlation indicates race or gender discrimination on 

the part of judges. This troubling trend also has been 

replicated in multivariate analyses performed by other 

researchers, albeit to different magnitudes. 

Finally, the courts of appeals have not 

promoted uniformity in sentencing to the extent the 

Supreme Court anticipated in Booker. The appellate 

courts lack adequate standards and uniform procedures 

in spite of a number of Supreme Court rulings 

addressing them, and the ultimate outcome of the 

substantive review of a sentence may depend in part 

on the circuit in which the appeal is brought. 

Additionally, only a small percentage of sentences are 

appealed, and usually only by the defendant. 

The trends described in this report have 

developed gradually since Booker. In the aggregate, 

federal sentences have shown general stability, as seen 

in the Commission’s analysis of sentence lengths and 

their relation to the minimum of the guideline range 

over time. Nonetheless, unwarranted disparities in 

federal sentencing appear to be increasing. Judges are 

following the dictates of the Supreme Court in Booker

and subsequent decisions in different ways, with some 

judges weighing factors such as the characteristics of 

the offense and the offender differently than other 

judges in similar cases. Indeed, the role of the 

guidelines has become less pronounced, in part 

because of a series of Supreme Court cases 

emphasizing the advisory nature of the guidelines and 

the traditional importance of individual offender 

characteristics in sentencing, and the requirement, as 

stated by the Court, that judges independently consider 

the characteristics of the offense and the offender 

under 18 U.S.C. § 3553(a). The Commission’s 

recommendations are aimed at strengthening the 

guideline system so that the sentencing guidelines can 

help move sentencing in the direction Congress 

3
BOOKER REPORT 2012: PART A 

intended in the SRA in a manner consistent with the 

Constitution and Supreme Court decisions. 

ORGANIZATION

 This report is submitted in six parts. Part A, 

available both in print and online, presents a 

condensed background of major legal events in federal 

sentencing, describes the results of the Commission’s 

data analyses, and discusses the Commission’s 

proposals for strengthening the federal sentencing 

guidelines system. 

 The following additional sections containing 

more detailed information and supporting data are 

available only online, on the Commission’s website 

(www.ussc.gov): 

Part B of this report features exhibits listing 

some of the leading Supreme Court and circuit court 

opinions on key pre- and post-Booker sentencingrelated issues and summarizes viewpoints on appellate 

procedure from circuit court opinions, the 

Commission’s training seminar, public hearings, and 

the 2010 survey of district judges. Part B also 

provides additional data on sentencing appeals. 

Part C explains both the methodology used in 

many of the report’s data analyses and how to interpret 

the charts and graphs used throughout this report. This 

part analyzes in detail data from federal courts, 

focusing on five offense types and one commonly 

applied guideline: drug trafficking, immigration, fraud, 

firearms, child pornography, and the career offender 

guideline. Additional charts and graphs for each 

offense type and guideline follow. 

Part D analyzes non-government sponsored 

below range sentence rates of individual judges, and 

intra-district disparity in those rates. Plots depicting 

the rates of non-government sponsored below range 

sentences and the extent of the reduction for each 

judge in each district are in Part D, as well as 

explanatory notes on how to interpret the plots. 

Part E updates the multivariate regression 

analysis used for the Commission’s 2010 report on 

Demographic Differences in Federal Sentencing 

Practices to determine whether there continues to be a 

correlation between sentencing outcomes and 

demographic characteristics. In conducting this 

analysis the Commission used, as it did in the 2006 

Booker Report,

14 a research tool common in the social 

and behavioral sciences. Multivariate regression 

analysis is used to examine data where multiple factors 

may contribute to an observed outcome, such as the 

sentencing of federal offenders. The principal benefit 

of this tool is that it accounts, or controls, for the effect 

of each factor in the analysis. Each factor can then be 

separately assessed, and the extent to which each 

factor influences the outcome can be measured. The 

analysis describes the magnitude of any differences 

observed, focusing on four separate time periods. This 

section also presents additional multivariate analyses, 

including analyses of three major offense types: drug 

trafficking, firearms, and fraud. 

Part F discusses other stakeholders’ views on 

sentencing reform, including testimony from the 2009-

2010 regional public hearings on the 25th anniversary 

of the SRA and the February 2012 public hearing on 

post-Booker sentencing. Summaries of the public 

hearings and of the Commission’s 2010 survey of 

district judges are also in Part F. 

Appendices containing additional data and 

more detailed descriptions of the methodologies used 

in the analyses follow the relevant sections in the 

online content. 

SUMMARY OF KEY FINDINGS

In light of the extensive data analyses, the 

review of case law, and other relevant information 

presented in this report, the Commission makes the 

following findings: 

The number of federal offenders has 

substantially increased, and most federal 

offenders have continued to receive substantial 

sentences of imprisonment. 

The number of federal offenders has increased 

substantially over the 16 years studied in this report, 

and most have continued to receive substantial 

sentences of imprisonment. In fiscal year 1996, 

37,091 federal offenders were sentenced, compared to 

76,216 in fiscal year 2011.15 The percentage of federal 

 

14 U.S. SENT’G COMM’N, REPORT ON THE IMPACT OF 

UNITED STATES V. BOOKER ON FEDERAL SENTENCING (2006) 

[hereinafter 2006 BOOKER REPORT]. 

15 The dataset used for this report differs from that used in 

the Commission’s 2011 SOURCEBOOK. An explanation of 

4
BOOKER REPORT 2012: PART A 

offenders sentenced to serve a term of imprisonment 

without any alternative to incarceration as a part of the 

sentence also has increased over this period from 76.9 

percent in fiscal year 1996, to 87.8 percent in fiscal 

year 2011. In fiscal year 1996, 10.9 percent of federal 

offenders were sentenced to probation only, 7.4 

percent were sentenced to a combination of probation 

and some form of confinement (e.g., home detention 

or other confinement), and 4.8 percent were sentenced 

to a combination of incarceration and community 

confinement. In fiscal year 2011, 5.8 percent of 

federal offenders received a sentence of probation 

only, and 6.4 percent received either a combination of 

probation and some form of confinement, or a 

combination of incarceration and community 

confinement. 

For offenses in the aggregate, the average 

length of the sentence imposed during the Gall period 

was 49 months, the same as during the Koon period, 

but a few months shorter than during the PROTECT 

Act period (53 months) and the Booker period (54 

months). The decrease from the Booker period was 

due in part to the increasing prevalence of immigration 

offenses, which generally resulted in lower sentences 

than other offenses. During the PROTECT Act 

period, for example, immigration offenses were 18.9 

percent of the federal caseload, whereas in the Gall

period, immigration offenses were 29.0 percent. 

Average sentences for illegal entry offenders have 

decreased over time due in part to guideline 

amendments lowering penalties and in part to 

increasing rates of EDP departures. 

Average sentences for drug trafficking 

offenders were shorter during the Gall period (75 

months) than during the Booker period (83 months), 

due largely to reduced penalties for crack cocaine 

trafficking offenders. From the Koon period to the 

Gall period, sentences for child pornography nonproduction offenders (including trafficking, receipt, 

and possession) increased nearly three-fold, from 34 

months to 93 months. Sentences for fraud offenders 

nearly doubled, from 13 months in the Koon period, to 

25 months in the Gall period. In child pornography 

and fraud offenses, these increases were due to both 

increased seriousness of offenses over time, and 

statutory and guideline increases. Sentences for 

 

the criteria used to define the dataset in this report is in the 

Methodology section of Part A, infra at 52, and in the 

Methodology section of Part C, available online. 

firearms offenders were also highest during the Gall

period, at 59 months, compared to 56 months in the 

Koon period. 

The guidelines have remained the essential 

starting point for all federal sentences and have 

continued to influence sentences significantly. 

The Supreme Court has held that courts must 

begin the sentencing process by properly determining 

the applicable guideline range.16 During the Gall

period, 80.7 percent of federal sentences were either 

within the guideline range (53.9% of sentences) or 

below the range pursuant to a government motion 

(26.8% of sentences). Less than one-quarter (17.4%) 

of sentences were non-government sponsored below 

range sentences. Average sentences for almost every 

offense type analyzed in this report were lower than 

average guideline minimums due to both government 

sponsored and non-government sponsored below range 

sentences. 

 Nonetheless, trends in average sentences 

generally have followed average guideline minimums 

over time. For offenses in the aggregate, when the 

average guideline minimum has increased or 

decreased due to changes in the seriousness of the 

offense, the criminal history of the offenders, or 

amendments to the guidelines, the average sentence 

also has increased or decreased in like proportion. 

The influence of the guidelines, as measured by 

the relationship between the average guideline 

minimum and the average sentence, has 

generally remained stable in drug trafficking, 

firearms, and immigration offenses, but has 

diminished in fraud and child pornography 

offenses. 

Although trends in average sentences for all 

offenses generally have followed average guideline 

minimums over time, there have been noticeable 

differences by offense type. In drug trafficking, 

firearms, and immigration, three offense types which 

comprised more than two-thirds of federal offenses in 

fiscal year 2011, the influence of the guidelines has 

remained stable over time. For these offenses, average 

sentences have increased or decreased in response to 

 

16 See Rita v. United States, 551 U.S. 338, 351 (2007); 

Gall, 552 U.S. at 49−50. 

5
BOOKER REPORT 2012: PART A 

increases and decreases in average guideline 

minimums, resulting in a consistent parallel 

relationship over time. In drug trafficking offenses, 

although average sentences have been lower than 

average guideline minimums, much of the difference 

between the average guideline minimum and the 

average sentence has been due to the prevalence of 

government sponsored below range sentences for 

substantial assistance. 

In contrast, in fraud and child pornography 

offenses, the average guideline minimum and the 

average sentence have diverged, and the divergence 

has grown over time. For both offense types, as the 

average guideline minimum has increased, the average 

sentence has remained flat by comparison. In these 

cases, the difference between the average guideline 

minimum and the average sentence has been largely 

due to increasing rates of non-government sponsored 

below range sentences, leading to the conclusion that 

the influence of the guidelines has diminished for 

fraud and child pornography offenses. 

Similarly, in career offender cases, of which 

94.7 percent were drug trafficking, robbery or firearms 

offenses in fiscal year 2011, the average sentence 

diverged from the average guideline minimum during 

the Gall period. The percentage difference between 

the average guideline minimum and the average 

sentence was greatest in fiscal year 2011, at 24.9 

percent. The increasing difference has been 

attributable to increases in the rates of both 

government sponsored and non-government sponsored 

below range sentences. 

For most offense types, the rate of within range 

sentences has decreased while the rate of below 

range sentences (both government sponsored 

and non-government sponsored) has increased 

over time. 

For most offense types, the rate of within 

range sentences has decreased because of increases in 

the rates of both government sponsored and nongovernment sponsored below range sentences. In drug 

trafficking and firearms offenses, the rates of both 

government sponsored and non-government sponsored 

below range sentences have increased. In immigration 

offenses (illegal entry in particular) the decrease in 

within range rates has been primarily attributable to 

government sponsored EDP departures. These 

programs were formally authorized by the PROTECT 

Act but had been informally used before then in a 

number of districts, and had generally been reported 

by the Commission as “other downward departures,” 

and not attributed to the government. In child 

pornography non-production offenses (including 

trafficking, receipt, and possession offenses) where the 

average guideline minimum and the average sentence 

have noticeably diverged, the rates of non-government 

sponsored below range sentences now exceed those of 

within range sentences. 

The influence of the guidelines, as measured by 

the relationship between the average guideline 

minimum and the average sentence, and as 

measured by within range rates, has varied by 

circuit.

For all offense types studied, the degree of 

influence of the guidelines has varied by circuit. For 

offense types in the aggregate, the average sentence 

has largely paralleled the guideline minimum in the 

majority of circuits, but in several circuits, the average 

sentence and average guideline minimum have 

diverged, most notably during the Gall period. Even 

in drug trafficking and firearms offenses, where the 

influence of the guideline has remained most stable at 

a national level, the degree of parallelism has varied 

by circuit. The circuit-level variation has been more 

pronounced for child pornography and fraud offenses. 

Within range rates have varied by circuit, as 

well as by offense. The decrease in within range rates 

has been driven by different factors, depending on the 

circuit and the type of offense. For example, the rates 

of government sponsored below range sentences have 

been highest in the Ninth Circuit because of EDP 

departures in both immigration and marijuana 

trafficking offenses. In fraud and child pornography 

offenses, within range rates have decreased in every 

circuit, but more in some circuits than in others. For 

example, for fraud offenses in the Second Circuit, 

rates of non-government sponsored below range 

sentences have been higher than the rates of within 

range sentences. This pattern has not occurred for 

fraud offenses in any other circuit. 

6
BOOKER REPORT 2012: PART A 

The rates of non-government sponsored below 

range sentences have increased in most districts 

and the variation in such rates across districts 

for most offenses was greatest in the Gall period, 

indicating that sentencing outcomes increasingly 

depend upon the district in which the defendant 

is sentenced. 

For most offense types, the rates of nongovernment sponsored below range sentences were 

highest and more varied during the Gall period than 

during any previous periods. For drug trafficking, 

firearms, fraud, immigration (illegal entry) and child 

pornography (non-production) offenses, both the rates

of non-government sponsored below range sentences 

and the variation in rates across the districts increased 

in the Booker period compared to the PROTECT Act 

period, and again in the Gall period compared to the 

Booker period. The difference in rates was greatest for 

child pornography non-production offenses (including 

trafficking, receipt, and possession) and was smallest 

in drug trafficking and firearms offenses. Therefore, 

for most offenses, the district in which the defendant 

was sentenced played a greater role in the sentencing 

outcome during the Gall period than during any 

previous periods. 

 

For offenses in the aggregate, the average extent 

of the reduction for non-government sponsored 

below range sentences has been approximately 

40 percent below the guideline minimum during 

all periods (amounting to average reductions of 

17 to 21 months); however, the extent of the 

reduction has varied by offense type. 

For offenses in the aggregate, the extent of 

non-government sponsored below range reductions has 

remained relatively constant over time, hovering near 

40 percent below the guideline minimum during all 

four periods. Average guideline minimums have 

changed over time; therefore, the 40 percent reduction 

below the guideline minimum represented reductions 

of between 17 and 21 months below the guideline 

minimum depending on the period. 

The extent of the reduction below the 

guideline minimum has varied by offense type. For 

example, in child pornography non-production 

offenses (including receipt, trafficking, and possession 

offenses) the average guideline minimum more than 

tripled, from 36 months in the Koon period to 115 

months in the Gall period. In terms of months, the 

reduction from the guideline minimum nearly tripled 

from 15 months below the guideline minimum in the 

Koon period to 44 months below the guideline 

minimum in the Gall period. As a percentage of the 

guideline minimum, however, the extent of the 

reduction decreased over time, from 55.7 percent 

below the guideline minimum in the Koon period, to 

40.4 percent below the guideline minimum in the Gall

period. In contrast, the reductions in illegal entry 

offenses have held steady at 12 months below the 

guideline minimum in the PROTECT Act, Booker, and 

Gall periods. 

Prosecutorial practices have contributed to 

disparities in federal sentencing. 

Differences in charging and plea agreement 

practices at the district level have contributed to 

sentencing disparities. For example, in its 2011 report 

to Congress on mandatory minimum penalties,17 the 

Commission reported wide variations in prosecutorial 

practices surrounding the filing of notices of enhanced 

mandatory minimum penalties in drug trafficking 

offenses, the charging of multiple violations of 18 

U.S.C. § 924(c) which requires mandatory minimum 

sentences to be served consecutive to underlying drug 

trafficking offenses or crimes of violence, and the use 

of binding plea agreements to specify the sentence.18 

Differences in these practices may not be evident in 

the documents provided to the Commission, but they 

influence the resulting sentence and reduce both 

uniformity and transparency in the sentencing process. 

One inconsistency in prosecutorial charging decisions 

occurred in child pornography offenses, where 

interviews conducted with federal prosecutors and a 

review of sentencing documents revealed that 

prosecutors inconsistently charged possession of child 

pornography, which does not carry a mandatory 

minimum penalty, and receipt of child pornography, 

which carries a 5-year mandatory minimum penalty.19

 

17 U.S. SENT’G COMM’N, REPORT ON MANDATORY 

MINIMUM PENALTIES IN FEDERAL SENTENCING (Oct. 2011) 

[hereinafter 2011 MANDATORY MINIMUM REPORT]. 

18 Id. at 109-10, 111-14. 

19 Id. at 114. 

7
BOOKER REPORT 2012: PART A 

Moreover, differences in the way government 

sponsored departures and variances have been applied, 

specifically with respect to EDP and other government 

sponsored below range sentences, have contributed to 

unwarranted disparity. Of the three types of 

government sponsored below range sentences 

(substantial assistance, EDP, and other government 

sponsored), substantial assistance departures have 

been the most common and typically have led to the 

greatest reductions in sentence length (more than 40 

months below the guideline minimum for offenses in 

the aggregate during every period studied). 

Substantial assistance departure rates have generally 

decreased over time. However, the rate of EDP 

departures has increased substantially over time, as 

such programs have become more prevalent and have 

applied to more offense types. A recent policy change 

in the Justice Department in which all districts were 

required to create an EDP program for illegal entry 

offenses suggests that such departures will become 

even more common in the future. Compared to 

substantial assistance departures, EDP departures have 

resulted in relatively modest reductions in sentence 

length (10 months below the guideline minimum 

during the Gall period) consistent with the fact that 

USSG §5K3.1 (Early Disposition Programs (Policy 

Statement)) limits EDP departures to no more than a 4-

level reduction. The rates of other government 

sponsored below range sentences have increased but 

have remained low compared to the rates of both 

substantial assistance and non-government sponsored 

below range sentences. 

Variation in the rates of non-government 

sponsored below range sentences among judges 

within the same district has increased in most 

districts since Booker, indicating that sentencing 

outcomes increasingly depend upon the judge to 

whom the case is assigned. 

The Commission reviewed the rates of nongovernment sponsored below range sentences of 

individual judges and found great variation even 

within the same district. Although trends differed 

depending on the district, in two-thirds of districts, the 

variation in non-government sponsored below range 

rates among judges was smallest during the PROTECT 

Act period and largest during the Gall period. In some 

districts, the rates of non-government sponsored below 

range sentences of judges with similar size caseloads 

differed by 30 percent or more. Although the analysis 

did not compare judges within a specific division or 

courthouse within each district, the rates of nongovernment sponsored below range sentences were 

sufficiently varied within each district to cause 

concern that similar offenders committing similar 

crimes were sentenced differently depending upon the 

judge. Generally, the extent of the reduction below the 

guideline minimum varied during all time periods 

studied, but did not appear to be influenced by 

Supreme Court decisions or statutory changes over 

time. 

Appellate review has not promoted uniformity in 

sentencing to the extent the Supreme Court 

anticipated in Booker. 

In Booker, the Supreme Court acknowledged 

that appellate review of sentences for reasonableness 

would not “provide the uniformity that Congress 

originally sought to secure,” but nonetheless 

anticipated that appellate review “would tend to iron 

out sentencing differences.”20 The Commission’s 

review of case law and sentencing appeals data 

suggests that the current system of appellate review is 

not an adequate tool to promote uniformity in 

sentencing. In response to Supreme Court cases 

following Booker, circuit courts have adopted different 

approaches to reviewing sentences, and panels of 

judges in different circuits have reached different 

conclusions regarding the substantive reasonableness 

of similar sentences. In addition, the infrequency of 

sentencing appeals, particularly by the government, 

has limited the influence of the appellate process on 

sentencing uniformity. 

Demographic factors (such as race, gender, and 

citizenship) have been associated with sentence 

length at higher rates in the Gall period than in 

previous periods. 

The Commission’s updated multivariate 

regression analysis showed, among other outcomes, 

that Black male offenders have continued to receive 

longer sentences than similarly situated White male 

offenders, and furthermore that this difference in 

sentence length was greatest during the Gall period. 

In addition, female offenders have received shorter 

 

20 543 U.S. at 263. 

8
BOOKER REPORT 2012: PART A 

sentences than similarly situated male offenders. 

Alternative analyses performed by other researchers 

have replicated the pattern identified in the 

Commission’s analysis, although to a somewhat lesser 

degree, that certain demographic differences were least 

pronounced during the PROTECT Act period and 

most pronounced during the Gall period. Because 

judges make sentencing decisions based on many legal 

considerations, such as violence in an offender’s past, 

or an offender’s employment history, which are not 

controlled for in the Commission’s multivariate 

regression analysis, these results should be interpreted 

with caution and should not be taken to suggest race or 

gender bias on the part of judges. 

SUMMARY OF RECOMMENDATIONS

The Commission continues to believe that a 

strong and effective guidelines system best achieves 

the purposes of the SRA. Consistent with its October 

12, 2011 testimony before the Subcommittee on 

Crime, Terrorism, and Homeland Security of the 

House Committee on the Judiciary, the Commission 

believes that Congress should consider the following 

recommendations to strengthen the guidelines system, 

provide more effective substantive appellate review, 

and generally promote the goals of the SRA: 

 Develop more robust substantive appellate review 

by requiring a presumption of reasonableness on 

appellate review of within range sentences, greater 

justification for sentences further outside the 

guideline range, and heightened review of 

sentences based on policy disagreements with the 

guidelines; 

 Reconcile the statutes that restrict the 

Commission’s consideration of certain offender 

characteristics when promulgating guidelines that 

meet the purposes of sentencing, with statutory 

interpretations that require courts to consider more 

expansively those same offender characteristics at 

sentencing; 

 

 Codify the three-step sentencing process, as 

incorporated in the guidelines and consistent with 

the process the Supreme Court established in Gall, 

which requires courts to determine properly the 

applicable guideline range (see § 3553(a)(4)), 

consider guideline departures and policy 

statements (see § 3553(a)(5)), and then consider 

the remaining section 3553(a) factors taken as a 

whole in determining the sentence to be imposed, 

including whether a variance is warranted; and 

 Resolve the uncertainty about the weight to be 

given to the federal sentencing guidelines by 

requiring courts to give substantial weight to the 

guidelines at sentencing. 

The Commission believes these proposals, if 

adopted, would promote the purposes of the SRA, 

while respecting the defendant’s Sixth Amendment 

rights. As envisioned by the SRA, the Commission 

will continue to refine the guidelines in response to 

feedback and information it receives from the criminal 

justice community and data it collects from sentencing 

documents. The Commission also understands that 

more substantial reforms may be necessary in the 

future should these reforms fail to reduce existing 

unwarranted disparities. 

9
BOOKER REPORT 2012: PART A 

History of the Federal Sentencing Guidelines 

INTRODUCTION

In 1984, Congress enacted the Sentencing 

Reform Act of 198421 (“SRA”) in response to 

widespread sentencing disparity in federal sentencing. 

The SRA ushered in a new era of federal sentencing 

through the creation of the Commission and the 

promulgation of federal sentencing guidelines. For 

nearly twenty years, courts were required to impose 

sentences within the applicable guideline range unless 

the court found the existence of an aggravating or 

mitigating circumstance of a kind or to a degree not 

adequately taken into consideration by the 

Commission in formulating the sentencing 

guidelines.22 

In 2005, the Supreme Court’s two-part 

decision in United States v. Booker23 began yet another 

era of federal sentencing by rendering the federal 

sentencing guidelines “effectively advisory.”24 In 

Booker, the Court held that enhancing a sentence 

under the federal sentencing guidelines based on the 

sentencing judge’s determination of a fact (other than 

a prior conviction) that was not found by the jury or 

admitted by the defendant violated the defendant’s 

Sixth Amendment right to trial by jury.25 The Court 

remedied the Sixth Amendment violation by excising 

 

21 Title II, Comprehensive Crime Control Act of 1984, Pub. 

L. No. 98-473 (1984). 

22 18 U.S.C. § 3553(b)(1), excised by United States v. 

Booker, 543 U.S. 220 (2005). 

23 543 U.S. 220 (2005). 

24 Id. at 245. 

25 Id. at 244. 

the provisions of the SRA that the Court held made the 

sentencing guidelines “mandatory,” thereby rendering 

the guidelines advisory in nature.26 

Since Booker the Supreme Court has issued 

eight decisions directly related to the operation of the 

federal sentencing guidelines.27 Together these 

decisions have not only significantly affected the 

sentencing practices of the district courts but also have 

reinstated a deferential standard of review in the 

appellate courts. Nonetheless, the Commission and 

the guidelines continue to play an important role in 

federal sentencing. As the Supreme Court stated in 

Booker: 

[T]he Sentencing Commission 

remains in place, writing Guidelines, 

collecting information about actual 

district court sentencing decisions, 

undertaking research, and revising the 

Guidelines accordingly.28

 

26 Id. at 245. 

27 Rita v. United States, 551 U.S. 338 (2007); Gall v. 

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

States, 552 U.S. 85 (2007); Irizarry v. United States, 553 

U.S. 708 (2008); Spears v. United States, 555 U.S. 261 

(2009) (per curiam); Nelson v. United States, 555 U.S. 350 

(2009); Dillon v. United States, 130 S. Ct. 2683 (2010); 

Pepper v. United States, 131 S. Ct. 1229 (2011). In 

addition, the Court recently agreed to resolve a conflict 

among the circuit courts of appeals regarding whether the 

Ex Post Facto clause applies to the sentencing guidelines. 

Peugh v. United States, 133 S. Ct. 594 (2012). 

28 543 U.S. at 264. 

10
BOOKER REPORT 2012: PART A 

In light of its continued statutory mandate and 

the continued importance of the guidelines, the work 

of the Commission remains significant and has 

become increasingly complex. The size of the federal 

docket has grown each year since the Booker decision, 

and the Commission has increased its efforts to 

provide meaningful guidance to the courts and 

practitioners and to ensure that the guidelines continue 

to reflect the statutory purposes of sentencing. 

The Commission continues to promulgate 

sentencing guidelines that courts must properly 

consider and guideline ranges that courts must 

properly determine in all federal criminal cases.29 

Since Booker, the Commission has promulgated 96 

amendments to the guidelines, including 44 

amendments implementing new legislation. Before 

promulgating amendments, the Commission carefully 

considers data, public comment, and other relevant 

information.30 The Commission continues to collect, 

analyze, and report sentencing data systematically to 

detect new criminal trends, to determine whether 

federal crime policies are achieving their goals, and to 

serve as a clearinghouse for federal sentencing 

statistics.31 The Commission resolves conflicting 

judicial interpretations of the guidelines by studying 

appeals court decisions on sentencing issues and 

promulgating guideline amendments to ensure uniform 

interpretation. 

The Commission’s data collection and 

reporting duties required the Commission to review 

nearly 400,000 charging and sentencing documents for 

more than 86,000 cases in fiscal year 2011,32 enabling 

quarterly dissemination of trend analyses, and specific 

analyses requested by Congress, the courts, and the 

Executive branch. The resulting, steadily expanding 

database is an invaluable source of information for the 

criminal justice community.33 Since Booker, the 

 

29 See generally 28 U.S.C. § 994; 18 U.S.C. § 3553(a)(4). 

30 See 28 U.S.C. § 994(o). 

31 See 28 U.S.C. § 995(a)(12)−(16). See also, Mistretta v. 

United States, 488 U.S. 361, 369 (1989). 

32 See U.S. SENTENCING COMM’N, 2011 SOURCEBOOK, at 3. 

33 See William W. Wilkins, Jr. & John R. Steer, The Role of 

Sentencing Guidelines Amendments in Reducing 

Unwarranted Sentencing Disparity, 50 WASH. & LEE L.

REV. 63, 65 (1993). 

Commission has published research papers on 

demographic differences in federal sentencing 

practices, recidivism of crack cocaine offenders 

released after the Commission’s 2007 crack cocaine 

amendment, a comprehensive survey of federal district 

court judges, and a report on mandatory minimum 

penalties.34 

Feedback from other parties in the criminal 

justice system is also part of the evolutionary work of 

the Commission. The Commission regularly invites 

and considers written public comment on its priorities 

and proposed amendments, among other issues. The 

Commission also actively solicits public input in the 

form of regular public hearings, the work of its 

standing advisory groups, and formal surveys, among 

other approaches. 

Finally, the Commission provides specialized 

training to judges, probation officers, staff attorneys, 

law clerks, prosecutors, defense attorneys, and other 

members of the federal criminal justice community on 

federal sentencing issues, including application of the 

guidelines.35 During fiscal year 2011 the Commission 

conducted seminars and programs in most of the 94 

judicial districts in the country, training roughly 7,000 

individuals. 

In addition to fulfilling its core functions, the 

Commission has been called upon to testify at three 

congressional hearings on post-Booker sentencing.36 

 

34 See U.S. SENT’G COMM’N, MULTIVARIATE REPORT;

REPORT TO CONGRESS: FEDERAL COCAINE SENTENCING 

POLICY (May 2007); 2010 JUDGES’ SURVEY; 2011 

MANDATORY MINIMUM REPORT. 

35 See 28 U.S.C. § 995(a)(17)−(18). 

36 Implications of the Booker/Fanfan Decisions for the 

Federal Sentencing Guidelines: Hearing Before the 

Subcomm. on Crime, Terrorism, and Homeland Security., 

109th Cong. 14−23 (2005) (Statement of Ricardo H. 

Hinojosa, Chair, U.S. Sent’g Comm’n); United States v. 

Booker: One Year Later―Chaos or Status Quo?: Hearing 

Before the Subcomm. on Crime, Terrorism, and Homeland 

Security, 109th Cong. 4−23 (2006) (Statement of Ricardo H. 

Hinojosa, Chair, U.S. Sent’g Comm’n); Uncertain Justice: 

The Status of Federal Sentencing and the U.S. Sentencing 

Commission Six Years after U.S. v. Booker: Hearing Before 

the Subcomm. on Crime, Terrorism, and Homeland 

Security, 112th Cong. 10−100 (2011) (Statement of Patti B. 

Saris, Chair, U.S. Sent’g Comm’n). [hereinafter 2011 Chair 

Statement to Subcomm. on Crime, Terrorism, & Homeland 

Security]. 

11
BOOKER REPORT 2012: PART A 

Against a backdrop of renewed interest in federal 

sentencing, the Commission submits this report as a 

continuation of its efforts to inform all three branches 

of government and other interested parties on the 

impact of Booker and its progeny on federal 

sentencing. 

CREATION OF THE COMMISSION AND 

DEVELOPMENT OF THE GUIDELINES

The SRA responded to an emerging consensus 

that the federal sentencing system resulted in such 

“glaring disparities” that it was in need of major 

reform.37 Prior to the SRA, judges possessed almost 

unlimited and unguided authority to fashion an 

appropriate sentence. Criminal statutes set broad 

ranges of minimum and maximum punishments, but 

no statute listed the purposes of sentencing. As a 

result, each judge was left to decide the various goals 

of sentencing, the relevant aggravating and mitigating 

circumstances, and the way in which those factors 

would be combined in determining a specific sentence. 

Neither party had any meaningful right of appellate 

review because sentences were limited only by 

statutory minimums and maximums.38

Studies at the time revealed that judges at 

different ends of the spectrum held widely divergent 

views on the purposes of sentencing, with some judges 

emphasizing rehabilitation and others emphasizing 

“just deserts.”39 Not surprisingly, because each judge 

was “left to apply his own notions of the purposes of 

sentencing,” the federal sentencing system exhibited 

“an unjustifiably wide range of sentences to offenders 

convicted of similar crimes.”40 Average sentences 

 

37 See S. REP. NO. 97-307, at 956 (1981) (“glaring 

disparities . . . can be traced directly to the unfettered 

discretion the law confers on those judges and parole 

authorities [that implement] the sentence”); H.R. REP. NO. 

98-1017, at 34 (1984) (“The absence of Congressional 

guidance to the judiciary has all but guaranteed that . . . 

similarly situated offenders . . . will receive different 

sentences.”). 

38 S. REP. NO. 98-225, at 38-39, 40. 

39 Id. at 41 n.18 (1983) (citing INSLAW Inc., and 

Yankelovich, Skelly, and White, Federal Sentencing: 

Toward a More Explicit Policy of Criminal Sanctions, III-4 

(1981)). 

40 S. REP. No. 97-307, at 955. 

varied across the nation for many federal offenses, 

sometimes by a number of years.41 A study of district 

court judges in the Second Circuit given identical files 

based on actual cases and asked how they would 

sentence the defendants revealed “astounding” 

variations in the sentences imposed.42 

Sentencing prior to the SRA also lacked 

transparency and certainty. No statute required judges 

to explain the reasons for the sentence, and the time 

defendants would actually serve in prison was not 

announced in open court.43 Instead, after the 

defendant began serving the sentence, the United 

States Parole Commission decided when the defendant 

would be released based largely on its judgment about 

when an offender’s rehabilitation was complete.44 The 

release of offenders based on inconsistent ideas among 

parole hearing officers regarding the potential for 

rehabilitation exacerbated the lack of uniformity in 

sentencing.45 In addition, this system of indeterminate 

sentencing by its nature did not allow public access to 

the reasons underlying the court’s sentencing decision 

or the United States Parole Commission’s decision 

about when to release an offender.46 In 1984, 

Congress responded to these concerns by enacting the 

SRA, which sought to eliminate unwarranted disparity 

in sentencing and address the inequalities created by 

indeterminate sentencing.47 

 

41 S. REP. NO. 98-225, at 41 n.21. 

42 Id. at 41. The sentences imposed on the same bank 

robber ranged from 5 to 18 years in prison. Sentences in a 

case of filing a false tax return ranged from 3 months in 

prison, plus a $5,000 fine, to 3 years in prison plus a $5,000 

fine. Id. at 42-43. In the case of an offender convicted of 

securities fraud, one judge imposed a sentence of 2 years in 

prison, another imposed a sentence of 3 years of probation, 

and yet another judge imposed only a $2,500 fine. Id. 

43 Id. at 39. 

44 Id. at 38. 

45 U.S. SENT’G COMM’N, COMMISSION REPORT ON THE 

OPERATION OF THE GUIDELINES SYSTEM, at 9 (1991) (citing 

United States v. Grayson, 438 U.S. 41, 46 (1978)). 

46 S. REP. NO. 98-225, at 39. 

47 S. REP. NO. 97-307; H.R. REP. NO. 98-1017 (1984); 28 

U.S.C. § 994(k). 

12
BOOKER REPORT 2012: PART A 

Sentencing Reform in the SRA 

In the SRA, Congress set forth four purposes 

of sentencing, any of which might take precedence in 

an individual case, but none of which would take 

precedence in the broader scheme of sentencing:48

(A) to reflect the seriousness of 

the offense, to promote respect for the 

law, and to provide just punishment 

for the offense; 

(B) to afford adequate deterrence 

to criminal conduct; 

(C) to protect the public from 

further crimes of the defendant; and 

(D) to provide the defendant with 

needed educational or vocational 

training, medical care or other 

correctional treatment in the most 

effective manner[.]49

The provision regarding the need for the 

sentence “to reflect the seriousness of the offense, to 

promote respect for law, and to provide just 

punishment for the offense” reflected the retributive 

“just deserts” concept. “[I]t is another way of saying 

that the sentence should reflect the gravity of the 

defendant’s conduct.”50 The concept of deterrence 

was seen as an especially important consideration. For 

example, the fact that “[m]ajor white collar criminals 

often [were] sentenced to small fines and little or no 

imprisonment . . . create[d] the impression that certain 

offenses . . . [could] be written off as a cost of doing 

business.”51 The provision regarding protecting the 

public expressed Congress’s concern about “those 

offenders whose criminal histories show[ed] repeated 

serious violations of the law.”52 Finally, while 

imprisonment was “not an appropriate means of 

promoting correction and rehabilitation[,]”53

 

48 S. REP. NO. 98-225, at 75-77. 

49 18 U.S.C. § 3553(a)(2). 

50 S. REP. NO. 98-225, at 75. 

51 Id. at 76. 

52 Id. 

53 18 U.S.C. § 3582(a); see also Tapia v. United States, 131 

S. Ct. 2382, 2388 (2011) (“[Section] 3582(a) tells courts 

rehabilitation was “a particularly important 

consideration in formulating conditions for persons 

placed on probation.”54 The SRA also established that 

sentences should be “sufficient but not greater than 

necessary” to meet the purposes set forth in 

§ 3553(a)(2), including the seriousness of the offense, 

deterrence, protection of the public, and needed 

correctional treatment.55 

The SRA established a robust right of appeal56

and meaningful appellate review of federal sentences 

for the first time.57 The right of appeal supported 

compliance with the guidelines in a number of ways. 

First, the courts of appeals were tasked with ensuring 

that the guidelines were properly determined in 

individual cases. Section 3742 did not allow appeals 

by either party of sentences within a properly 

determined guidelines range. Specifically, 18 U.S.C. 

§ 3742(a) provided that a defendant may appeal if the 

sentence: 

(1) was imposed in violation of 

law; (2) was imposed as a result 

of an incorrect application of the 

sentencing guidelines or; (3) is 

greater than the sentence specified 

in the applicable guideline range 

. . . ; or (4) was imposed for an 

offense for which there is no 

sentencing guideline and is plainly 

unreasonable.58

 

that they should acknowledge that imprisonment is not 

suitable for the purpose of promoting rehabilitation.”). 

54 S. REP. NO. 98-225, at 76. 

55 18 U.S.C. § 3553(a) (“The court shall impose a sentence 

sufficient but not greater than necessary, to comply with the 

purposes set forth in paragraph (2) of this subsection.”). 

56 See 18 U.S.C. § 3742. 

57 See Koon, 518 U.S. at 96 (“Before the Guidelines system, 

a federal criminal sentence within statutory limits was, for 

all practical purposes, not reviewable on appeal.”); 

Dorszynski v. United States, 418 U.S. 424, 431 (1974) 

(reiterating “the general proposition that once it is 

determined that a sentence is within the limitations set forth 

in the statute under which it is imposed, appellate review is 

at an end.”). 

58 18 U.S.C. § 3742(a). 

13
BOOKER REPORT 2012: PART A 

Section 3472(b) extended to the government the right 

to appeal on the same bases, except that it could only 

appeal those sentences that were “less than the 

sentence specified in the applicable guideline range.”59 

Appellate review of departures was deemed 

“essential” to ensuring proper application of the 

guidelines,60 and, therefore, district courts were 

required to state on the record the reasons for the 

sentence so that the courts of appeals would have full 

information about how courts reached their sentencing 

decisions.61 

Further, legislative history of the SRA reveals 

that Congress intended the right of appeal to go hand 

in hand with the guidelines system: 

The Committee believes that section 

3742 creates for the first time a 

comprehensive system of review of 

sentences that permits the appellate 

process to focus attention on those 

sentences whose review is crucial to 

the functioning of the sentencing 

guidelines system, while also 

providing adequate means for 

correction of erroneous and clearly 

unreasonable sentences.62 

Congress also anticipated that the 

Commission’s work would inform appellate courts. 

“[I]t is expected that the policy statements will be 

consulted at all stages of the criminal justice system, 

including the appellate courts, in evaluating the 

 

59 18 U.S.C. § 3742(b). 

60 S. REP. NO. 98-225, at 151. 

61 Id. at 60. See also 18 U.S.C. § 3553(c). Judges could 

depart from the guidelines in any case upon a finding that 

“an aggravating or mitigating circumstance [was] present in 

the case that was not adequately considered in the 

formulation of the guidelines[.]” S. REP. NO. 98-225, at 51. 

See also 18 U.S.C. § 3553(b)(1). 

62 S. REP. NO. 98-225, at 155. From the outset, Congress 

intended the courts of appeals to support general compliance 

with the guidelines, which in turn would reduce 

unwarranted disparity. The SRA established two principle 

determinants in sentencing: “the prior records of offenders 

and the criminal conduct for which they are to be 

sentenced.” Id. at 161. 

appropriateness of the sentence and corrections 

program applied to a particular case.”63

The Commission and a set of guidelines that 

judges were required to follow were central to the 

sentencing reform envisioned by Congress. “The 

[congressional] Committee resisted [the] attempt to 

make the sentencing guidelines more voluntary than 

mandatory” because studies and testimony before 

Congress noted that voluntary guidelines in the states 

had a “poor record” and “were completely ineffective 

in reducing sentencing disparities.”64 Congress 

studied guidelines systems adopted by the states and 

considered Minnesota’s guideline system to be 

successful for three main reasons: the guidelines were 

required, not voluntary; the guidelines reflected policy 

judgments about what any given sentence ought to be, 

rather than merely reflecting past sentencing practices; 

and appellate review of sentences outside of the 

guideline range “assure[d] judicial compliance.”65 To 

achieve Congress’s statutory purposes of sentencing, 

the SRA created the Commission as an independent 

agency within the judicial branch66 and directed it to 

promulgate guidelines that were required to be used 

for sentencing within the prescribed statutory 

maximum.67

Congress also envisioned the guidelines 

system to be flexible “in providing the sentencing 

 

63 Id. at 167-68. 

64 Id. at 79. 

65 Id. at 62. 

66 Established as “as an independent commission in the 

Judicial Branch of the United States,” the Commission 

comprises seven voting members (including the Chair) 

appointed by the President “by and with the advice and 

consent of the Senate.” The Act provides that “[a]t least 

[three] of the [Commission’s] members shall be Federal 

judges selected after considering a list of six judges 

recommended to the President by the Judicial Conference of 

the United States” and no more than four members of the 

Commission can be members of the same political party. 

The Attorney General, or the Attorney General’s designee, 

and the Chairman of the United States Parole Commission 

are designated as ex officio non-voting members. See 28 

U.S.C. § 991(a), 18 U.S.C. § 3551 note (Pub. L. No. 98-

473; 98 Stat. 2032 [set out in an Effective and Applicability 

Provisions note under this section]). 

67 See 28 U.S.C. § 994. 

14
BOOKER REPORT 2012: PART A 

judge with a range of options from which to fashion an 

appropriate sentence”68 and noted that the guidelines 

would not “remove all of the judge’s sentencing 

discretion.”69 While Congress envisioned “that most 

cases [would] result in sentences within the guideline 

range,” there would be “appropriate” instances when 

sentences fell outside the applicable guideline range.70 

Reflecting the balance struck between the goals of 

certainty and uniformity in sentencing and the need to 

retain sufficient flexibility to individualize sentences, 

18 U.S.C. § 3553(b) codified the limited authority of 

sentencing courts to impose a sentence outside the 

sentencing guideline range: 

[T]he court shall impose a sentence of 

the kind, and within the range, 

referred to in subsection (a)(4) unless 

the court finds that there exists an 

aggravating or mitigating 

circumstance of a kind, or to a degree, 

not adequately taken into 

consideration by the Sentencing 

Commission in formulating the 

guidelines that should result in a 

sentence different from that 

described.71

The SRA’s Directives to the Commission 

In meeting those purposes set forth in 18 

U.S.C. § 3553(a)(2), Congress specifically charged the 

Commission with establishing federal sentencing 

guidelines that provided certainty, fairness, national 

uniformity, and avoided unwarranted disparities 

among defendants with similar criminal records who 

were found guilty of similar conduct.72 At the same 

time, the guidelines were to maintain sufficient 

 

68 S. REP. NO. 98-225, at 50. 

69 Id. at 51. 

70 Id. at 52. Congress specifically noted that it believed a 

sentencing judge “has an obligation to consider all the 

relevant factors in a case and to impose a sentence outside 

the guidelines in an appropriate case.” Id. 

71 18 U.S.C. § 3553(b)(1), excised by United States v. 

Booker, 543 U.S. 220 (2005). 

72 28 U.S.C. § 991(b)(1)(A). 

flexibility to permit individualized sentences when 

warranted by mitigating or aggravating factors of a 

kind or to a degree not adequately taken into account 

in the guidelines. 73 Finally, Congress also charged the 

Commission with assessing whether sentencing, penal, 

and correctional practices are meeting the purposes of 

sentencing.74 It was anticipated that the guidelines 

would “reflect, to the extent practicable, advancement 

in knowledge of human behavior as it relate[s] to the 

criminal justice process.”75 The guidelines were seen 

as “an unprecedented opportunity in the Federal 

system to look at sentencing patterns as a whole to 

assure that the sentences imposed are consistent with 

the purposes of sentencing.”76 It was expected that the 

guidelines would result in proportional punishment by 

“treat[ing] all classes of offenses committed by all 

categories of offenders consistently.”77 

Anticipating that the guidelines would evolve 

over time in response to data and public comment, 

Congress “necessarily contemplated that the 

Commission would periodically review the work of 

the courts, and would make whatever clarifying 

revisions to the Guidelines conflicting judicial 

interpretations might suggest.”78 The first 

Commission also acknowledged that the courts’ 

sentencing decisions would significantly inform its 

work on the guidelines over time: 

The Commission is a permanent body, 

empowered by law to write and 

rewrite guidelines, with progressive 

changes, over many years. By 

monitoring when courts depart from 

the guidelines and by analyzing their 

stated reasons for doing so, the 

Commission, over time, will be able 

to create more accurate guidelines that 

 

73 28 U.S.C. § 991(b)(1)(B). 

74 28 U.S.C. § 991(b)(2). 

75 28 U.S.C. § 991(b)(1)(C). 

76 S. REP. NO. 98-225, at 51. 

77 Id. 

 

78 Braxton v. United States, 500 U.S. 344, 348 (1991). 

15
BOOKER REPORT 2012: PART A 

specify precisely where departures 

should and should not be permitted.79

Directives: Categories of Offenses and Offenders 

The SRA directed the Commission to 

consider, and take into account to the extent they are 

relevant, seven factors in its formulation of offense 

categories: (1) the grade of the offense; (2) the 

aggravating and mitigating circumstances of the crime; 

(3) the nature and degree of the harm caused by the 

crime; (4) the community view of the gravity of the 

offense; (5) the public concern generated by the crime; 

(6) the deterrent effect that a particular sentence may 

have on others; and (7) the current incidence of the 

offense.80 

The SRA directed the Commission to develop 

sentencing ranges applicable for specific categories of 

offenses involving particular categories of offenders. 

Congress expected that “there [would] be numerous 

guidelines ranges, each range describing a somewhat 

different combination of offender characteristics and 

offense circumstances,” including “several guideline 

ranges for a single offense varying on the basis of 

aggravating and mitigating circumstances.”81

Congress intended that there would “be a complete set 

of sentencing guidelines that covers in one way or 

another all important variations that commonly may be 

expected in criminal cases, and that reliably breaks 

cases into their relevant components and assures 

consistent and fair results.”82 

More specifically, the SRA required that the 

sentencing ranges be consistent with all pertinent 

provisions of title 18 of the United States Code, and 

that they not include sentences in excess of the 

statutorily prescribed maximum sentence.83 It also 

directed that, for sentences of imprisonment, “the 

maximum of the range established for such a term 

shall not exceed the minimum of that range by more 

than the greater of 25 percent or 6 months, except that, 

 

79 USSG Ch.1, Pt.A(4)(b) (Apr. 13, 1987). 

80 28 U.S.C. § 994(c)(1)−(7). 

81 S. REP. NO. 98-225, at 168. 

82 Id. 

83 Mistretta v. United States, 488 U.S. 361, 375 (1989); see 

also 28 U.S.C. § 994(b)(1). 

if the minimum term of the range is 30 years or more, 

the maximum may be life imprisonment.”84 

Directives: Sentence Length 

The SRA contained several directives related 

to sentence length for certain types of offenses and 

offenders. For example, legislative history reflected 

concern that white collar offenders were often 

“sentenced to small fines and little or no imprisonment 

. . . creat[ing] the impression that certain offenses are 

punishable by a small fine that can be written off as a 

cost of doing business.”85 Accordingly, the 

Commission was required to ensure that the guidelines 

reflected the fact that, “in many cases, current 

sentences do not accurately reflect the seriousness of 

the offense.”86 The Commission, therefore, was not 

“bound by such average sentences” but rather was 

required to “independently develop a sentencing range 

that is consistent with the purposes of sentencing 

described in section 3553(a)(2) of title 18, United 

States Code.”87 

The SRA also directed that the sentencing 

guidelines require a term of confinement at or near the 

statutorily prescribed maximum sentence for certain 

crimes of violence and for drug offenses, particularly 

when committed by recidivists.88 The SRA further 

directed the Commission to assure a substantial term 

of imprisonment for an offense constituting a third 

felony conviction, for a career felon, for an individual 

convicted of a managerial role in a racketeering 

enterprise, for a crime of violence by an offender on 

release from a prior felony conviction, and for an 

offense involving a substantial quantity of narcotics.89 

Various aggravating and mitigating circumstances, 

 

84 28 U.S.C. § 994(b)(2). The Sentencing Reform Act 

originally provided that the maximum of the range shall not 

exceed the minimum by more than “25 per centum,” but this 

language was amended in 1986 to its present language. See 

Pub. L. No. 99-363, § 2 (1986). 

85 S. REP. NO. 98-225, at 76. 

86 28 U.S.C. § 994(m). 

87 Id. 

88 28 U.S.C. § 994(h). 

89 28 U.S.C. § 994(i). 

16
BOOKER REPORT 2012: PART A 

such as multiple offenses and substantial assistance to 

the government, were to be reflected in the sentencing 

guidelines.90 

Directives: Offender Characteristics 

The SRA addressed offender characteristics in 

three provisions. Section 994 of Title 18 governed 

how the Commission should treat certain offender 

characteristics in the guidelines, listing eleven 

additional factors for the Commission to consider in 

formulating the guidelines and policy statements, to 

the extent that they had any relevance “to the nature, 

extent, place of service, or other incidents of an 

appropriate sentence”: age; education; vocational 

skills; mental and emotional condition; physical 

condition; previous employment record; family ties 

and responsibilities; community ties; role in the 

offense; criminal history; and degree of dependence 

upon criminal activity for a livelihood.91 The SRA 

required that the Commission ensure that the 

guidelines be “entirely neutral” as to the race, sex, 

national origin, creed, and socioeconomic status of 

offenders,92 and instructed that the sentencing 

guidelines should reflect the general inappropriateness 

of considering the education, vocational skills, 

employment record, family ties and responsibilities, 

and community ties of offenders.93 

Section 3553(a)(1) of Title 18 directed courts 

to consider “the history and characteristics of the 

defendant,” among other factors, in determining the 

 

90 28 U.S.C. § 994(l) and (n), respectively. 

91 28 U.S.C. § 994(d)(1)−(11). The legislative history 

provides additional guidance for the Commission’s 

consideration of the statutory factors. For example, the 

history indicates Congress’s intent that the “criminal history 

. . . factor includes not only the number of prior criminal 

acts – whether or not they resulted in convictions – the 

defendant has engaged in, but their seriousness, their 

recentness or remoteness, and their indication whether the 

defendant is a ‘career criminal’ or a manager of a criminal 

enterprise.” S. REP. NO. 98-225, at 174. The promulgated 

guidelines include these and other criminal history measures 

that necessarily may require judicial factfinding extending 

well beyond the ascertainment of the fact of prior 

convictions. See USSG Ch.4 (Nov. 2012). 

92 See 28 U.S.C. § 994(d). 

93 See 28 U.S.C. § 994(e). 

particular sentence to be imposed on that defendant.94 

After considering all of these factors, including the 

guidelines and policy statements, the court was 

required to sentence a defendant within the applicable 

guideline range unless the court found that there 

existed “an aggravating or mitigating circumstance of 

a kind, or to a degree, not adequately taken into 

consideration by the Sentencing Commission in 

formulating the guidelines that should result in a 

sentence different from that described.”95 

Finally, section 3661 of Title 18 recodified 18 

U.S.C. § 3577 without change: 

No limitation shall be placed on the 

information concerning the 

background, character, and conduct of 

a person convicted of an offense 

which a court of the United States 

may receive and consider for the 

purpose of imposing an appropriate 

sentence.96

Implementation of the SRA’s Directives 

In considering sentencing guidelines to 

implement the SRA, the Commission was required to 

resolve a host of important policy questions.97 For 

example, the Commission had to decide whether 

appropriate punishment would be defined primarily on 

the principles of just deserts or crime control. 

Consistent with the SRA’s rejection of a single 

doctrinal approach in favor of one that would attempt 

to balance all the objectives of sentencing, the 

Commission did not choose one theory over the 

 

94 18 U.S.C. § 3553(a)(1). 

95 18 U.S.C § 3553(b)(1). 

96 18 U.S.C. § 3661. The Commission incorporated this 

statute into the guidelines at USSG §1B1.4 (“In determining 

the sentence to impose within the guideline range, or 

whether a departure from the guidelines is warranted, the 

court may consider, without limitation, any information 

concerning the background, character and conduct of the 

defendant, unless otherwise prohibited by law. See 

18 U.S.C. § 3661.”). 

97 See USSG Ch.1, Pt.A(1)(4) (Nov. 2012). 

17
BOOKER REPORT 2012: PART A 

other.98 Instead, the guidelines embody aspects of 

both just deserts and crime-control philosophies of 

sentencing.99 

Implementation of Directives: Categories of Offenses 

Categorizing offenses was a difficult task due 

to the complexity of the federal criminal code. The 

code contained “‘innumerable statutes dealing with 

such basic offenses as theft and fraud’” that were 

“‘scattered about hither and yon among various titles 

of the United States Code’” resulting in “‘conflicting 

court interpretations.’”100 The first Guidelines Manual 

listed more than 700 penal statutes or subsections 

thereof in Appendix A (Statutory Index),101 and the 

2012 Guidelines Manual references more than 1,200 

different statutes or subsections thereof.102 Because 

the major goal of the SRA was to increase uniformity 

in sentencing while not sacrificing proportionality, the 

sentencing guidelines had to authorize appropriately 

different sentences for criminal conduct of 

significantly different severity.103 

The Commission examined existing state 

guidelines systems’ methods of categorizing offenses 

and offenders.104 The Commission rejected the 

approaches many states used, concluding that “[s]tate 

guidelines systems which use relatively few, simple 

categories and narrow imprisonment ranges . . . are ill 

suited to the breadth and diversity of federal 

 

98 U.S. SENT’G COMM’N, SUPPLEMENTARY REPORT ON

INITIAL SENTENCING GUIDELINES AND POLICY STATEMENTS 

at 16 (1987) [hereinafter SUPPLEMENTARY REPORT ON

INITIAL SENTENCING GUIDELINES]. 

99 Id. 

100 U.S. SENT’G COMM’N, PRELIMINARY REPORT TO THE

CONGRESS: STATUTORY PENALTIES PROJECT DESCRIPTION 

AND COMPILATIONS OF FEDERAL CRIMINAL OFFENSES at vi 

(1989) (quoting Reform of the Federal Criminal Laws: 

Hearings Before the Subcomm. on Crim. Law and Proc. of 

the Senate Comm. on the Judiciary). 

101 See USSG App. A (Apr. 13, 1987). 

102 See USSG App. A (Nov. 2012). 

103 U.S. SENT’G COMM’N, SUPPLEMENTARY REPORT ON THE 

INITIAL SENTENCING GUIDELINES at 13 (1991). 

104 Id. at 14. 

crimes.”105 For example, under many states’ systems, 

“a single category of robbery . . . lumped together 

armed and unarmed robberies, robberies with and 

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

robberies of millions,” and thus “would have been far 

too simplistic to achieve just and effective [federal] 

sentences, especially given the narrowness of the 

permissible sentencing ranges.”106 Consequently, the 

Commission determined that the sentencing guidelines 

should be descriptive of generic conduct rather than 

track statutory language.107 

The Commission ultimately decided to create 

a system requiring a court to consider, within 

constraints, the defendant’s real offense conduct and 

the defendant’s criminal history. The Commission 

created a sentencing table with 43 offense levels and 

six criminal history categories. The offense level 

(located on the vertical axis of the Sentencing Table) is 

determined based upon the offense conduct and the 

particular harms associated with the defendant’s crime. 

The offense level increases based upon the severity of 

the offense committed as well as the number of 

identified harms associated with the commission of the 

offense. For example, in a drug crime, the base 

offense level is determined by the type and quantity of 

drug involved in the offense of conviction and related 

criminal conduct (whether charged or uncharged). 

The base offense level is enhanced, for example, if the 

crime involved a firearm.108 A defendant’s role in the 

offense or other conduct can result in an increase or 

decrease of the offense level.109 Determination of the 

sentence also requires a determination of the 

defendant’s criminal history (located on the horizontal 

axis of the Sentencing Table).110 Once the offense 

level and criminal history are calculated, the 

applicable sentencing range is determined by use of 

the sentencing table.111 

 

105 Id. 

106 Id. at 13. 

107 See USSG Ch.1, Pt.A(1)(A)(4)(a) (Nov. 2012). 

108 USSG §2D1.1(b)(1) (Nov. 2012). 

109 See USSG Ch.3 (Nov. 2012) for other adjustments that 

apply to a wide variety of offenses. 

110 See USSG Ch.4 (Nov. 2012). 

111 See USSG Ch.5, Pt.A (Nov. 2012). 

18
BOOKER REPORT 2012: PART A 

Like Congress, the Commission recognized 

that departures would play an important role in the 

guideline system because of the “difficulty of 

foreseeing and capturing a single set of guidelines that 

encompasses the vast range of human conduct 

potentially relevant to a sentencing decision.”112 In the 

initial guidelines, the Commission provided the 

following guidance on the use of departures: 

The Commission intends the 

sentencing courts to treat each 

guideline as carving out a “heartland,” 

a set of typical cases embodying the 

conduct that each guideline describes. 

When a court finds an atypical case, 

one to which a particular guideline 

linguistically applies but where 

conduct significantly differs from the 

norm, the court may consider whether 

a departure is warranted.113

The Commission also anticipated that some individual 

offender characteristics such as age, education and 

vocational skills, and family ties and responsibilities 

could “constitute grounds for a departure in an unusual 

case.”114

Implementation of Directives: Sentence Length 

In incorporating data on then extant 

sentencing practices in accordance with 28 U.S.C. 

§ 994(m), the Commission examined data for nearly 

100,000 federal convictions, which included a 

description of the offense, a characterization of the 

defendant’s background and criminal record, the 

method of disposition of the case, and the sentence 

imposed, including both sentences of imprisonment 

and those of probation.115 The Commission 

 

112 USSG Ch.1, Pt.A(4)(b) (Apr. 13, 1987). 

113 Id. 

114 Id.; USSG §§5H1.1, p.s. (Age), 5H1.2, p.s. (Education 

and Vocational Skills (Policy Statement)), 5H1.6, p.s. 

(Family Ties and Responsibilities, and Community Ties) 

(Apr. 1987). See also 28 U.S.C. § 994(d) and (e). 

115 U.S. SENT’G COMM’N, SUPPLEMENTARY REPORT ON

INITIAL SENTENCING GUIDELINES, at 16, 21. 

considered more detailed information for more than 

10,000 defendants, including their presentence 

investigation reports and the time actually served by 

those defendants sentenced to prison.116 The 

Commission also examined the United States Parole 

Commission’s guidelines and resulting statistics, 

public commentary, and information from other 

relevant sources to determine existing sentencing 

practices and to detail the specific characteristics of 

offenses and offenders that judges considered salient at 

sentencing.117 

In determining then extant sentence lengths, 

the Commission identified offenders who were 

sentenced to prison, then computed average sentence 

lengths for those offenders. The Commission also 

considered the estimated percentage of defendants 

sentenced to probation for the offense.118 The 

Commission used both sentence length for those 

sentenced to prison, and the estimated percentage of 

defendants sentenced to probation, to determine then 

extant sentencing practices. This information 

“provided a concrete starting point and identified a list 

of relevant distinctions that, although of considerable 

length, [was] still short enough to create a manageable 

set of guidelines.”119 

Although the guideline ranges for many 

offenses incorporated then extant sentencing practices, 

the Commission was cognizant of the fact that past 

sentencing practices were merely a starting point. The 

first Guidelines Manual, for example, set sentence 

ranges equal to or higher than the average time served 

under then extant sentencing practices for many white 

collar offenses.120 

 

116 Id. 

117 See id. at 16. 

118 See id. at 23-24, 27-34. For example, then extant 

sentencing practices resulted in a range of 2 to 8 months of 

imprisonment for an unsophisticated embezzlement of less 

than $1,500, if a prison term was imposed. Id. at 24. 

However, a prison term was imposed in only about 24 

percent of such cases, with probation imposed in the other 

76 percent. Id. “Because of this, the average time served by 

all first-time embezzlers convicted at trial of stealing [was] 

actually about 1 month (rather than 2-8 months).” Id. 

119 Id. at 16. 

120 For example, under then extant sentencing practices, a 

defendant convicted of a sophisticated fraud involving a loss 

19
BOOKER REPORT 2012: PART A 

The Commission also examined public views 

on offense seriousness and sentencing policy in 

accordance with 28 U.S.C. § 994(c)(4) and (5), which 

require the Commission to consider, and take account 

only to the extent that they do have relevance, the 

“community view of the gravity of the offense” and 

the “public concern generated by the offense” in 

formulating the guidelines. With respect to the 

community view of the gravity of the offense, 

Congress explained how changes in community norms 

concerning particular criminal behavior might “justify 

increasing or decreasing the recommended penalties 

for the offense.”121 Moreover, Congress 

acknowledged that there may be circumstances in 

which the Commission might find it appropriate to 

consider regional differences in community views 

 

of between $60,001 and $400,000 would receive a sentence 

of 15-21 months of imprisonment if sentenced to prison, and 

74 percent of sophisticated fraud defendants with these loss 

amounts were sentenced to prison. See U.S. SENT’G 

COMM’N, SUPPLEMENTARY REPORT ON INITIAL

SENTENCING GUIDELINES, at 33. Use of the 1987 

Guidelines Manual resulted in a guideline range of 12-18 

months’ imprisonment for a first-time offender with a loss 

of $50,001-$100,000 (offense level 13 with more than 

minimal planning increase); a guidelines range of 15-21 

months for a loss of $100,001 to $200,000 (offense level 14 

with more than minimal planning increase); and a guideline 

range of 18-24 months for a loss of $200,001 to $500,000 

(offense level 15 with more than minimal planning 

increase). USSG §2F1.1 (Apr. 1987). For defendants 

convicted of embezzling less than $2,000, the 1987 

Guidelines Manual provided for guideline ranges which 

authorized sentencing judges to impose probation in lieu of 

confinement. This range was lower than then extant 

sentencing practices for those embezzlement offenders 

sentenced to prison. USSG §2B1.1 (Apr. 1987).

121 S. REP. NO. 98-225, at 170. Congress provided two 

examples of action by the Parole Commission to “suggest 

the kinds of situations in which the Commission might wish 

to reflect the community view of an offense in its 

guidelines: the Parole Commission has in recent years 

lowered the guidelines parole dates applicable to simple 

possession of marihuana, and, following the Vietnam War, 

lowered the guidelines parole dates for draft violations.” Id. 

Congress suggested that “similarly, if there were a 

substantial increase in the rate of commission of a very 

serious crime, the public concern generated by that increase 

might cause the Commission to conclude that the guidelines 

sentences for that offense should be increased.” Id. at 170-

71. 

when drafting guidelines that would apply 

nationwide.122 Despite its acknowledgement of 

community norms, Congress made clear its goal of 

nationwide consistency. Therefore, if regional 

differences in community views were to be considered 

at all, they were to be considered by the Commission, 

not by individual judges. 

In addition to reviewing contemporaneous 

legal and social science research about public 

assessments of crime and punishment,123 the 

Commission held a public hearing on the issue of 

offense seriousness in April 1986, at which a wide 

variety of interested organizations and individuals 

shared their views.124 In preparation for the hearing, 

 

122 Id. at 170 n.408. (“It is expected that, while nationwide 

consistency in Federal cases is generally desirable, in certain 

situations the Commission may find it appropriate to draft 

the guidelines to take account of considerations based on 

pertinent regional differences.”). 

123 See, e.g., SURVEY RESEARCH CENTER, PUBLIC AND 

INMATE ASSESSMENT OF PRISON SENTENCES, Fed. 1980 

(Oregon State Univ. Corvallis); David Smith & C. McCurdy 

Lipsey, Public Opinion and Penal Policy, 14 CRIMINOLOGY

113-124 (May 1976); Craig Boydell & Carl Grindstaff, 

Public Opinion Toward Legal Sanctions for Crimes of 

Violence, 65 J. CRIM. LAW & CRIMINOLOGY 113-116 

(1974); Charles Thomas, Robin Cage, & Samuel Foster, 

Public Opinion on Criminal Law and Legal Sanctions, J.

CRIM. LAW & CRIMINOLOGY, Vol. 67, No. 1, pp. 110-116 

(1976); Don Gibbons, Joseph Jones, & Peter Garabedian, 

Gauging Public Opinion about the Crime Problem, 18 

CRIME AND DELINQUENCY 134-146 (April 1972); Phoebe 

Ellsworth & Lee Ross, Public Opinion and Capital 

Punishment, 29 CRIME AND DELINQUENCY, 116-69 (Jan. 

1983); John Doble, Crime and Punishment: The Public’s 

View (Public Agenda Found., June 1987); Tony Poveda, 

The Fear of Crime in a Small Town, 18 CRIME &

DELINQUENCY 147-53 (April 1972); National Criminal 

Justice Association, Opinion Study Shows Public Concern 

With Sentencing, Prison Issues, JUSTICE RESEARCH (August 

1987); Joseph E. Jacoby & Christopher S. Dunn, NATIONAL 

SURVEY ON PUNISHMENT FOR CRIMINAL OFFENSES:

EXECUTIVE SUMMARY (Bowling Green State Univ. Oct. 27, 

1987). 

124 Representatives from the Association of the Bar of the 

City of New York, the Federal Probation Officers 

Association, the Federal Public Defender Association, the 

National Rifle Association, the American Civil Liberties 

Union – National Prison Project, the National Interreligious 

Service Board for Conscientious Objectors, the Washington 

Legal Foundation, the Institute for Government and Politics, 

20
BOOKER REPORT 2012: PART A 

the Commission requested written feedback from more 

than 325 circuit and district court judges, United States 

Attorneys, federal public defenders, defense attorneys, 

probation officers, criminal justice organizations, and 

editorial page editors of 40 of the largest newspapers 

in the country, sending each individual and 

organization both general offense seriousness 

questions as well as a more detailed questionnaire on 

individual offense scenarios.125 The Commission 

followed up on the offense seriousness questionnaire 

with a survey of more than 1,700 citizens throughout 

the United States on their perceptions of federal 

sentences.126 The survey, conducted in 1993 and 

1994, “identified links between the public’s just 

punishment perceptions and elements of the guideline 

calculations[.]”127

Also with respect to sentence length, the 

Commission implemented the directive in 28 U.S.C. 

§ 994(h) by promulgating §4B1.1 (Career Offender). 

The career offender guideline prescribed an increased 

sentence for an adult defendant convicted of a “crime 

of violence” or a “controlled substance offense” if the 

defendant had previously been convicted of at least 

two other such felony offenses. The guideline 

provided that such defendants would have a Criminal 

History Category of VI and an offense level that 

depended upon the statutory maximum for the offense 

of conviction. The offense levels ranged from 12 to 37 

so that the guideline range for a career offender would 

be at or near the applicable statutory maximum. 

The background commentary to §4B1.1 

explained the Commission’s view of the relationship 

between the provisions of the SRA, including 28 

 

Crime Magazine, and the National Association of Criminal 

Defense Lawyers testified at the April 1986 hearing. See

U.S. SENT’G COMM’N, PUBLIC HEARING ON OFFENSE 

SERIOUSNESS, Washington, D.C. (transcript) (April 1986). 

125 See Memorandum from Paul K. Martin to 

Commissioners & Staff Director, “Offense Seriousness 

Questionnaire,” (March 24, 1986); U.S. SENT’G COMM’N,

PUBLIC HEARING ON OFFENSE SERIOUSNESS, transcript at 5. 

126 U.S. SENT’G COMM’N, RESEARCH BULLETIN, JUST 

PUNISHMENT: PUBLIC PERCEPTIONS AND THE FEDERAL 

SENTENCING GUIDELINES , at 1, available at 

http://www.ussc.gov/Research/Research_Projects/Miscellan

eous/199703_Just_Punishment.PDF. 

127 Id. 

U.S.C. § 994(h), and §4B1.1 as promulgated by the 

Commission. The “definition of a career offender 

track[s] in large part the criteria set forth in 28 U.S.C. 

§ 994(h),” but the Commission “has modified this 

definition in several respects to focus more precisely 

on the class of recidivist offenders for whom a lengthy 

term of imprisonment is appropriate and avoid 

‘unwarranted sentencing disparities among defendants 

with similar records who have been found guilty of 

similar criminal conduct.’”128 In creating §4B1.1, the 

Commission acted “in accord with its general 

guideline promulgation authority under 28 U.S.C. 

§ 994(a)-(f), and its amendment authority under 28 

U.S.C. § 994(o) and (p)” and its view that “Congress’s 

choice of a directive to the Commission rather than a 

mandatory minimum sentencing statute” indicated 

Congress’s intent that the Commission ensure that the 

provision was appropriately tailored.129

Implementation of Directives: Offender 

Characteristics 

The Commission recognized that, similar to 

the difficulty noted in establishing guidelines to cover 

every possible offender and offense characteristic, 

“[c]ircumstances that may warrant a departure from 

the guidelines cannot . . . by their very nature, be 

comprehensively listed and analyzed in advance.”130 

Therefore, when the Commission promulgated the 

initial set of guidelines, with some specific 

exceptions,131 it did not restrict the kinds of factors 

that, whether or not mentioned in the guidelines, could 

constitute grounds for departure in an unusual case.132 

 

128 USSG §4B1.1, comment. (backg’d) (Nov. 2012) 

(quoting 28 U.S.C. § 991(b)(1)(B)). 

129 Id. (citing S. REP. NO. 98-255, at 175). 

130 USSG §5K2, p.s. (General Provisions) (Apr. 1987). 

131 See, e.g., USSG §5H1.10, p.s. (Race, Sex, National 

Origin, Creed, Religion, and Socio-Economic Status) (Apr. 

1987). The Commission subsequently promulgated 

amendments prohibiting the court from considering 

additional factors as grounds for departure in §5H1.12, p.s. 

(Lack of Guidance as a Youth and Similar Circumstances) 

(Nov. 1992) and §5K2.19, p.s. (Post-Sentencing 

Rehabilitative Efforts) (Nov. 2000). 

132 USSG Ch.1, Pt.A(4)(b) (Apr. 1987). 

21
BOOKER REPORT 2012: PART A 

Pursuant to 28 U.S.C. § 994(d)133 and (e),134

the Commission did, however, adopt several policy 

statements in Chapter Five, Parts H and K limiting the 

relevance of certain offender characteristics to the 

determination of whether a sentence should be outside 

the applicable guideline range. The Commission 

deemed education, vocational skills, employment 

record, family ties and responsibilities, and community 

ties “ordinarily not relevant in determining whether a 

departure is warranted,” although several of these 

factors were considered relevant in determining the 

conditions of probation or supervised release.135 

Those factors also could be considered in an 

exceptional case, and courts had full discretion to 

consider them in determining the sentence within the 

applicable guideline range. In contrast, in response to 

section 994(d),136 the Commission deemed race, 

gender, national origin, creed, and socioeconomic 

status “not relevant in the determination of a 

sentence.”137 

 

133 28 U.S.C. § 994(d) directs the Commission to take into 

account, “only to the extent that they do have relevance,” 

the defendant’s: (1) age; (2) education; (3) vocational skills; 

(4) mental and emotional condition to the extent that such 

condition mitigates the defendant’s culpability or to the 

extent that such condition is otherwise plainly relevant; (5) 

physical condition, including drug dependence; (6) 

previous employment record; (7) family ties and 

responsibilities; (8) community ties; (9) role in the offense; 

(10) criminal history; and (11) degree of dependence upon 

criminal activity for a livelihood. Section 994(d) further 

directs the Commission to “assure that the guidelines and 

policy statements are entirely neutral as to the race, sex, 

national origin, creed, and socioeconomic status of 

offenders.” 

134 28 U.S.C. § 994(e) directs the Commission to “assure 

that the guidelines and policy statements, in recommending 

a term of imprisonment or length of a term of imprisonment, 

reflect the general inappropriateness of considering the 

education, vocational skills, employment record, family ties 

and responsibilities, and community ties of the defendant.” 

135 See, e.g., USSG §§5H1.1, p.s. (Nov. 2009), 5H1.2, p.s. 

(Nov. 2009), 5H1.3, p.s. (Nov. 2009), 5H1.6, p.s. (Nov. 

2009). 

136 28 U.S.C. § 944(d). 

137 USSG §5H1.10, p.s. (Nov. 2012). 

EVOLUTION OF THE GUIDELINES

The Commission expected that its work on the 

sentencing guidelines would be evolutionary138 and 

that it would gather and analyze data from actual 

practice, receive feedback through testimony, 

sentencing and appellate decisions, and various forms 

of public comment, and revise the guidelines over 

time. Since the promulgation of the original set of 

sentencing guidelines through the present, the 

Commission has amended the sentencing guidelines 

over 750 times in response to court decisions, 

legislation, public comment, and the Commission’s 

own evaluations of the need to change the 

guidelines.139 

Departures were considered an important 

mechanism by which the Commission could receive 

and consider feedback from courts regarding the 

operation of the guidelines. The Commission, 

therefore, foresaw that a high or increasing rate of 

departures for a particular offense, for example, might 

indicate that the guideline for that offense does not 

take into account adequately a particular recurring 

circumstance and should be amended accordingly, or 

that the severity or proportionality of the guidelines for 

particular offenses or offenders should be adjusted. 

The Commission envisioned that such feedback from 

the courts would enhance its ability to fulfill its 

ongoing statutory responsibility under the SRA to 

periodically review and revise the guidelines.140 

 

138 USSG Ch.1, Pt.A, intro. comment. (“The Commission 

emphasizes, however that it views the guideline-writing 

process as evolutionary. It expects, and the governing 

statute anticipates, that continuing research, experience, and 

analysis will result in modifications and revisions to the 

guidelines through submission of amendments to 

Congress.”). See also Stephen Breyer, The Federal 

Sentencing Guidelines and the Key Compromises upon 

Which They Rest [hereinafter Breyer, Key Compromises], 17 

HOFSTRA L. REV. 1, 8 (1988). 

139 Generally, amendments to the sentencing guidelines are 

submitted to Congress by May 1 of each year and take effect 

not later than November 1 of that year, unless Congress 

otherwise provides. See 28 U.S.C. § 994(p). 

140 See 18 U.S.C. § 994(o) (“The Commission periodically 

shall review and revise, in consideration of comments and 

data coming to its attention, the guidelines promulgated 

pursuant to the provisions of this section.”). 

22
BOOKER REPORT 2012: PART A 

Recent changes in crack cocaine penalties141

exemplify both the evolutionary nature of the 

guidelines and the role of feedback in the form of 

departures and public comment. Cocaine sentencing 

policy came under extensive criticism from public 

officials, private citizens, criminal justice practitioners, 

researchers, and interest groups challenging the 

efficacy of the 100:1 difference in penalty levels 

between powder and crack cocaine and its 

disproportionate impact on the African American 

community. In response to these concerns, the 

Commission proposed changes to the sentencing 

guidelines for cocaine offenses and subsequently 

submitted three reports to Congress containing its 

recommendations for reform.142 In 2007, the 

Commission reduced penalties for crack cocaine 

offenders, then did so again after Congress enacted the 

Fair Sentencing Act of 2010,143 which reduced crack 

cocaine penalties by increasing the quantity thresholds 

triggering mandatory minimum penalties for crack 

cocaine offenses and by eliminating the mandatory 

minimum penalty for simple possession of crack 

cocaine. 

PRE-BOOKER SUPREME COURT CASE LAW 

AND STATUTORY CHANGES

For nearly 20 years after the guidelines came 

into effect, federal judges were required to impose 

sentences within the applicable guideline range144

 

141 USSG App. C, amend. 706 (effective Nov. 1, 2007). 

142 See, e.g., U.S. SENT’G COMM’N, REPORT TO CONGRESS:

COCAINE AND FEDERAL SENTENCING POLICY (May 2007), at 

2, available at 

http://www.ussc.gov/Legislative_and_Public_Affairs/. 

 

143 Pub. L. No. 111-220 (Aug. 3, 2010). 

144 See Mistretta v. United States, 488 U.S. 361, 379, 391 

(1989) (upholding the constitutionality of the Commission 

and of the guidelines, noting that “[d]eveloping 

proportionate penalties for hundreds of different crimes by a 

virtually limitless array of offenders is precisely the sort of 

intricate, labor-intensive task for which delegation to an 

expert body is especially appropriate,” and that “[j]ust as 

the rules of procedure bind judges and courts in the proper 

management of the cases before them, so the Guidelines 

bind judges and courts in the exercise of their uncontested 

responsibility to pass sentence in criminal cases.”). 

unless the judge departed pursuant to a guideline 

departure provision, or the judge found the existence 

of an aggravating or mitigating circumstance present 

to a degree not adequately taken into consideration in 

the guidelines, or there existed a circumstance not 

adequately taken into consideration by the 

Commission in formulating the sentencing 

guidelines.145 A series of Supreme Court cases 

rejected challenges to the guidelines’ operation.146 

However, two important events would set the stage for 

later developments. 

First, in 1996, the Supreme Court issued an 

important decision regarding the appellate review of 

sentences, Koon v. United States.

147 Koon established 

an abuse of discretion standard for appellate courts 

reviewing trial courts’ application of the guidelines to 

the facts and rejected a de novo standard of review for 

district court judges’ departure decisions, holding that 

departure decisions by district courts are owed 

deference. In doing so, the Court cited the 

“institutional advantage” district courts have over their 

colleagues on the courts of appeals,148 and observed 

that departure decisions are fact-specific inquiries 

requiring the sentencing judge to determine whether a 

case is “within the heartland given all the facts of the 

case.”149 The Court suggested that Congress “did not 

intend, by establishing limited appellate review, to vest 

in appellate courts wide-ranging authority over district 

court sentencing decisions.”150 

 

145 18 U.S.C. § 3553(b)(1), excised by Booker, 543 U.S. at 

250. 

146 See, e.g., United States v. Watts, 519 U.S. 148 (1997) 

(allowing use of acquitted conduct to enhance the 

defendant’s sentence); United States v. Dunnigan, 507 U.S. 

87 (1993) (rejecting the defendant’s claim that the 

enhancement provision for obstruction of justice violated 

the defendant’s right to testify in his or her own defense). 

147 518 U.S. 81 (1996). For a more detailed examination of 

the Koon decision, see U.S. SENT’G COMM’N, REPORT TO 

CONGRESS: DOWNWARD DEPARTURES FROM THE FEDERAL 

SENTENCING GUIDELINES (in Response to Section 401(M) 

of Pub. Law 108-21), at 5-7 (2003) [hereinafter 

DEPARTURES REPORT]. 

148 518 U.S. at 98-99. 

149 Id. at 100. 

150 Id. at 97. 

23
BOOKER REPORT 2012: PART A 

The Court pointed to 18 U.S.C. § 3742(e)(4), 

which provided that “[t]he court of appeals shall give 

due regard to the opportunity of the district court to 

judge the credibility of the witnesses, and shall accept 

the findings of fact of the district court unless they are 

clearly erroneous.”151 The Court further noted that the 

statute was amended in 1988 to require courts of 

appeals to “give due deference to the district court’s 

application of the guidelines to the facts.”152 

Therefore, the appellate court’s role was to ensure that 

the district court had not abused its discretion in 

concluding that specific facts sufficed to remove the 

case from the heartland of similar cases.153

Second, in 2003, Congress enacted the 

Prosecutorial Remedies and Other Tools to end the 

Exploitation of Children Today Act (“the PROTECT 

Act”),154 which restricted the use of departures by 

sentencing courts and changed the appellate standard 

of review for cases in which departures were imposed. 

The legislative history of the PROTECT Act reflects 

congressional concern that the increasing rate of 

downward departures from the sentencing guidelines 

at the time was undermining the goals of the SRA, 

particularly the goals of providing certainty and 

uniformity in sentencing and of avoiding unwarranted 

disparity.155 

The PROTECT Act restricted the availability 

of departures, most notably for defendants convicted 

of sexual abuse crimes involving children. In addition, 

the PROTECT Act sought to reduce the overall rate of 

departures by increasing the specificity with which 

sentencing courts had to justify sentences outside the 

guideline range. Congress amended 18 U.S.C. 

§ 3553(c) (Statement of reasons for imposing a 

sentence) by requiring a court imposing a sentence 

outside the prescribed guideline range to state “the 

 

151 Id. 

152 Id. (quoting 18 U.S.C. § 3742(e)). By contrast, the 

Court held in Braxton v. United States that the Commission 

had unique authority to resolve conflicts between the circuit 

courts over how to interpret guideline provisions. 500 U.S. 

344 (1991). 

153 Koon, 518 U.S. at 100. 

154 Pub. L. No. 108-21 (2003). 

155 See 149 CONG. REC. H3061 (Apr. 10, 2003). 

specific reason” for departing “with specificity in the 

written order of judgment and commitment[.]”156

The PROTECT Act included several 

directives to the Commission, among them a directive 

to promulgate guideline amendments “to ensure that 

the incidence of downward departures are [sic] 

substantially reduced.”157 The Commission responded 

to these directives and statutory changes with two 

amendments implementing the PROTECT Act’s direct 

amendments to the guidelines158 and an eight-part 

emergency amendment that modified nine guideline 

provisions.159 The amendment also created the early 

disposition departure (or “fast track”) called for in the 

PROTECT Act at §5K3.1 (Early Disposition 

Programs) (Policy Statement) and a new guideline at 

§1A3.1 (Authority) setting forth the statutory authority 

for the Commission and the guidelines. The 

amendments’ overall effect was to limit the 

availability of departures by prohibiting certain factors 

as grounds for departure, restricting the availability of 

certain departures, narrowing when certain permitted 

departures were appropriate, and limiting the extent of 

 

156 18 U.S.C. § 3553(c). 

157 Pub. L. No. 108-21, section 401(m). The Commission 

had “been aware of and concerned about the increasing 

incidence of downward departures” before the enactment of 

the PROTECT Act and had already taken certain steps to 

address specific areas of concern. DEPARTURES REPORT at 

71. Between 1999 and 2001, the Commission addressed 

divisions among the courts of appeals regarding certain 

types of departures and acted to reduce departures in illegal 

entry cases. Id. at 71-72; see also USSG App. C, amend. 

602, 603, and 632 (effective Nov. 2001). 

158 USSG App. C, amend. 649 (effective Apr. 30, 2003) and 

650 (effective May 30, 2003). 

159 USSG §§5K2.0, p.s. (Grounds for Departure), 5H1.4, 

p.s. (Physical Condition, Including Drug or Alcohol 

Dependence or Abuse; Gambling Addiction), 5H1.6, p.s. 

(Family Ties and Responsibilities), 5H1.7, p.s. (Role in the 

Offense), 5H1.8, p.s. (Criminal History), 5K2.10, p.s. 

(Victim’s Conduct), 5K2.12, p.s. (Coercion and Duress), 

5K2.13, p.s. (Diminished Capacity), 5K2.20, p.s. (Aberrant 

Behavior), 4A1.3, p.s. (Departures Based on Inadequacy of 

Criminal History Category), and 6B1.2, p.s. (Standards for 

Acceptance of Plea Agreements). See USSG App. C, 

amend. 651 (effective Oct. 27, 2003). 

24
BOOKER REPORT 2012: PART A 

departures.160 In addition, the Commission addressed 

the new statutory requirement that sentencing courts 

provide specific written justification for departures.161 

The PROTECT Act fundamentally changed 

the appellate review standard established in Koon by 

amending 18 U.S.C. § 3742(e) to provide that all 

departures from the guideline range would be subject 

to de novo review.162 In addition, the PROTECT Act 

established factors that courts of appeals had to 

consider when reviewing a sentence, including 

whether the sentence: 

(1) was imposed in violation of law; 

(2) resulted from the incorrect 

application of the guidelines; 

(3) is outside the guideline range, and 

the sentencing court did not provide 

an adequate statement of reasons; 

(4) departs from the guideline range 

based on a factor that does not 

advance the objectives in 

§ 3553(a)(2), is not authorized under 

§ 3553(b), or is not justified by the 

facts of the case; 

(5) departs to an unreasonable degree, 

taking into account § 3553(b); or 

(6) was imposed for an offense for 

which there are no guidelines and is 

plainly unreasonable.163

THE BOOKER DECISION

In January 2005, the Supreme Court issued its 

landmark decision rendering the federal sentencing 

 

160 DEPARTURES REPORT at 71-72; see also USSG App. C, 

amend. 651 (effective Oct. 27, 2003). 

161 DEPARTURES REPORT at 71-72; see also USSG App. C, 

amend. 651 (effective Oct. 27, 2003). 

 

162 Pub. L. No. 108-21, section 401, codified in 18 U.S.C. 

§ 3742(e). 

 

163 18 U.S.C. § 3472(e). 

guidelines “effectively advisory.” In United States v. 

Booker, the Supreme Court addressed two questions: 

(1) Whether the Sixth Amendment is violated by 

the imposition of an enhanced sentence under 

the United States Sentencing Guidelines based 

on the sentencing judge’s determination of a 

fact (other than a prior conviction) that was 

not found by the jury or admitted by the 

defendant. 

(2) If the answer to the first question is “yes,” . . . 

whether, in a case in which the Guidelines 

would require the court to find a sentence 

enhancing fact, the Sentencing Guidelines as a 

whole would be inapplicable, as a matter of 

severability analysis, such that the sentencing 

court must exercise its discretion to sentence 

the defendant within the maximum and 

minimum set by statute for the offense of 

conviction.164

 The Court answered the first question in the 

affirmative, holding that “[a]ny fact (other than a prior 

conviction) which is necessary to support a sentence 

exceeding the maximum authorized by the facts 

established by a plea of guilty or a jury verdict must be 

admitted by the defendant or proved to a jury beyond a 

reasonable doubt.”165 A different majority of the Court 

answered the question of the appropriate remedy for 

the constitutional violation. The Court concluded that 

the Sixth Amendment requirement that a jury find 

certain sentencing facts was incompatible with certain 

components of the SRA, and excised the provisions 

that made the sentencing guidelines mandatory.166 

In determining that these provisions could be 

excised, the Court rejected two remedies suggested by 

the government and the dissenting justices. First, the 

Court rejected the Government’s proposed remedy that 

would “render the Guidelines advisory in ‘any case in 

which the Constitution prohibits’ judicial factfinding” 

and “leave them as binding in all other cases.”167 The 

 

164 543 U.S at 229 n.1. 

165 Id. at 244. 

166 Id. at 245. 

167 Id. at 266. 

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BOOKER REPORT 2012: PART A 

Court held that leaving the guidelines binding in some 

cases but not in others “would impose mandatory 

Guidelines-type limits upon a judge’s ability to reduce 

sentences, but it would not impose those limits upon a 

judge’s ability to increase sentences.”168 The Court 

held that this one-way limit and the complexity of a 

sometimes-mandatory system would not advance the 

congressional objective of uniformity in sentencing.169

Second, the Court rejected the dissent’s 

proposal to graft a jury factfinding requirement onto 

the provisions of the SRA, holding that such a 

requirement “would so transform the scheme that 

Congress created that Congress likely would not have 

intended the Act as so modified to stand.”170 The 

Court reasoned that Congress would prefer an advisory 

guidelines system that maintained “a strong 

connection between the sentence imposed and the 

offender’s real conduct” to a system that would 

“engraft onto the existing system today’s Sixth 

Amendment ‘jury trial’ requirement.”171 According to 

the Court, Congress’ important objectives included 

honesty, uniformity, and proportionality in 

sentencing.172 

In fashioning a remedy to the Sixth 

Amendment violation, the Court excised only two of 

the SRA’s provisions.173 First, the Court excised 18 

U.S.C. § 3553(b)(1), which required courts to impose 

a sentence within the applicable guideline range in the 

absence of circumstances justifying a departure. The 

Court determined that “the existence of [this section] 

is a necessary condition of the constitutional 

violation.”174 Second, the Court excised 18 U.S.C. 

§ 3742(e), which the PROTECT Act had amended to 

provide a de novo standard of review for departures 

 

168 Id. 

169 Id. at 266-67. 

170 Id. at 249. 

171 Id. at 248. 

172 Id. at 264. 

173 Id. at 258-61. The remaining portions of the Act require 

a sentencing court to consider guideline ranges but permit a 

court to tailor the sentence in light of other statutory 

concerns. See 18 U.S.C. § 3553(a). 

174 543 U.S. at 259. 

from the guidelines. The Court observed that excising 

the standard of review did “not pose a critical problem 

for the handling of appeals” because “a statute that 

does not explicitly set forth a standard of review may 

nonetheless do so implicitly.”175 Taking into account 

the “related statutory language” and the “sound 

administration of justice,” as well as “the past two 

decades of appellate practice in cases involving 

departures,” the Court returned to the pre-PROTECT 

Act version of section 3742, which provided for 

review of sentences for reasonableness in light of the 

§ 3553(a) factors.176 

The Court rejected criticism questioning the 

practicality of the reasonableness standard of review, 

noting that Commission data showed that 

reasonableness review of departures and sentences 

imposed for non-guidelines offenses accounted for 

16.7 percent of appeals in 2002.177 The Court also 

rejected the argument that the application of the 

reasonableness standard of review would “‘produce a 

discordant symphony’ leading to ‘excessive sentencing 

disparities,’ and ‘wreak havoc’ on the judicial 

system.”178 Nonetheless, the Court acknowledged that 

reasonableness review might not “provide the 

uniformity that Congress originally sought to secure,” 

but noted that reasonableness review “would tend to 

iron out sentencing differences.”179

With respect to the continued role of the 

Commission, the Court noted that: 

The Sentencing Commission will 

continue to collect and study appellate 

court decisionmaking. It will continue 

to modify its Guidelines in light of 

what it learns, thereby encouraging 

what it finds to be better sentencing 

practices. It will thereby promote 

 

175 Id. at 260 (emphasis in original). 

176 Id. at 260-61. In Koon, the Supreme Court held that 

departure decisions by district courts were due deference 

and that appellate courts should use an abuse of discretion 

standard in reviewing trial courts’ application of the 

guidelines to the facts. 518 U.S. at 91. 

177 543 U.S. at 263. 

178 Id. (quoting id. at 312-13 (Scalia, J., dissenting)). 

179 Id. at 263. 

26
BOOKER REPORT 2012: PART A 

uniformity in the sentencing 

process.180 

Furthermore, “[t]he system remaining after excision, 

while lacking the mandatory features that Congress 

enacted, retains other features that help to further these 

objectives.”181 Even so, the Court recognized that 

Booker would not be the final word on the new 

sentencing regime: 

Ours, of course, is not the last word: 

The ball now lies in Congress’ court. 

The National Legislature is equipped 

to devise and install, long term, the 

sentencing system, compatible with 

the Constitution, that Congress judges 

best for the federal system of 

justice.182

 

180 Id. 

181 Id. 

182 Id. at 265. 

27
BOOKER REPORT 2012: PART A 

The Sentencing Process After Booker

THE THREE-STEP PROCESS

In Gall v. United States,

183 the Supreme Court 

described the proper procedure for post-Booker

sentencing. First, a sentencing court must properly 

determine the guideline range pursuant to 18 U.S.C 

§ 3553(a)(4). Second, the court must consider whether 

any of the guidelines’ departure policy statements 

apply pursuant to 18 U.S.C. § 3553(a)(5). Third, the 

court must consider the factors set forth in 18 U.S.C. 

§ 3553(a) taken as a whole before determining the 

sentence to be imposed, including whether a variance 

is warranted. Although the guidelines now incorporate 

the three-step process,184 courts take different 

approaches to applying it, particularly with respect to 

consideration of departure provisions and offender 

characteristics. 

The First Step: Proper Determination of the 

Guideline Range 

Courts must begin the sentencing process by 

properly determining the applicable guideline range.185 

Determination of the guideline range continues to 

include factfinding by the court to resolve disputed 

issues.186 Moreover, the burden of proof for judicial 

factfinding continues to be proof by a preponderance 

of evidence, and not proof beyond a reasonable doubt, 

 

183 552 U.S. 38, 49-50 (2007). 

184 See USSG §1B1.1(a)−(c) (Application Instructions). 

 

185 See Rita, 551 U.S. at 351; USSG §1B1.1(a). 

186 See, e.g., United States v. Gonsalves, 435 F.3d 64 (1st 

Cir. 2006); United States v. Sheikh, 433 F.3d 905 (2d Cir. 

2006). 

 

as some defendants had argued shortly after Booker.

187 

District courts may still consider reliable hearsay188

and acquitted conduct189 in resolving factual disputes 

to determine the guideline range. 

Although this first step remains largely 

unchanged after Booker, one issue on which courts 

have disagreed is whether the Ex Post Facto clause 

bars application of a guideline range that was 

increased after the defendant committed the crime. 

The Seventh Circuit190 concluded that the Ex Post 

Facto clause does not bar application of the Guidelines 

Manual in effect at the time of sentencing even if the 

guideline range is higher than the range provided by 

the Manual in effect on the date of the offense. The 

Seventh Circuit reasoned “that the ex post facto clause 

should apply only to laws and regulations that bind 

rather than advise.”191 Five other circuits have held 

that the Ex Post Facto Clause bars such increases in 

 

187 See, e.g., United States v. Mares, 402 F.3d 511 (5th Cir. 

2005); United States v. Garcia-Gonon, 433 F.3d 587 (8th 

Cir. 2006). 

188 See, e.g., United States v. Baker, 432 F.3d 1189 (11th 

Cir. 2005) (holding Booker did not change the rule that a 

sentencing court may base sentencing determinations on 

reliable hearsay). See also United States v. Brown, 430 

F.3d 942 (8th Cir. 2005) (“We see nothing in Booker that 

would require the court to determine the sentence in any 

manner other than the way the sentence would have been 

determined pre-Booker”). 

189 See, e.g., United States v. Lynch, 437 F.3d 902 (9th Cir. 

2006) (en banc). 

190 United States v. Demaree, 459 F.3d 791 (7th Cir. 2006). 

191 Id. at 795. 

28
BOOKER REPORT 2012: PART A 

sentences.192 The Supreme Court has agreed to review 

this division among the circuits.193

The Second Step: Consideration of Departure 

Provisions 

Once the court has correctly determined the 

guideline range, the court must consider whether to 

apply any of the guidelines’ departure policy 

statements raised by the parties,194 including such 

commonly applied departures as the substantial 

assistance departure at §5K1.1, the fast track departure 

at §5K3.1, the departure at §4A1.3 for overstatement 

of criminal history, and the cultural assimilation 

departure for illegal entry offenders.195 In observing 

that much of the sentencing process has remained 

 

192 See United States v. Turner, 548 F.3d 1094 (D.C. Cir. 

2008); United States v. Ortiz, 621 F.3d 82 (2d Cir. 2010); 

United States v. Lewis, 606 F.3d 193 (4th Cir. 2010); 

United States v. Lanham, 617 F.3d 873 (6th Cir. 2010); and 

United States v. Wetherald, 636 F.3d 1315 (11th Cir. 2010). 

In addition, the Third, Fifth, and Ninth Circuits have 

remanded for resentencing cases in which the district court 

applied a later version of the guidelines that imposed a 

harsher punishment than the version in effect when the 

offense was committed. See United States v. Wood, 486 

F.3d 781 (3d Cir. 2007); United States v. Reasor, 418 F.3d 

466 (5th Cir. 2005); United States v. Forrester, 616 F.3d 929 

(9th Cir. 2010). Two other circuits, the Eighth and the 

Tenth, have, in dicta, agreed with the majority view and 

rejected Demaree. See United States v. Carter, 490 F.3d 

641 (8th Cir. 2007); United States v. Thompson, 518 F.3d 

832 (10th Cir. 2008). Finally, the First Circuit, while 

avoiding the constitutional issue, has followed “a 

commonsense protocol” under which courts “ordinarily 

employ the guidelines in effect at sentencing only where 

they are as lenient as those in effect at the time of the 

offense; when the guidelines have been made more severe in 

the interim, the version in effect at the time of the crime is 

normally used.” United States v. Ricardo-Rodriguez, 630 

F.3d 39 (1st Cir. 2011). 

193 Peugh v. United States, 133 S. Ct. 594 (Nov. 9, 2012). 

194 See, e.g., United States v. Gunter, 462 F.3d 237, 247 (3d 

Cir. 2006) (abrogated on other grounds by Tapia v. United 

States, 131 S. Ct. 2382 (2011) (courts must “formally rule 

on the motions of both parties and state on the record 

whether they are granting a departure and how that 

departure affects the Guidelines calculation[.]”). 

195 USSG §1B1.1(b). 

unchanged after Booker, the Eighth Circuit has stated 

that “after determining the appropriate sentencing 

range, the district court must decide if a traditional 

departure is appropriate under Part K or §4A1.3.”196 

The Third Circuit similarly requires “that the entirety 

of the Guidelines calculation be done correctly, 

including rulings on Guidelines departures.”197 Citing 

section 3553(a) and Booker, the Third Circuit 

explained that this requirement is “[n]ot for 

jurisdictional reasons, but rather because the 

Guidelines still play an integral role in criminal 

sentencing.”198 A number of circuits recognize that 

departures are part of the guideline analysis, and that if 

a district court does not conduct a departures analysis, 

the guideline sentence cannot be properly considered 

as part of the § 3553(a) analysis either at sentencing or 

on appeal.199 

Although courts are required to consider 

departure policy statements, the use of departures, as 

opposed to variances, has continued to decrease, as 

parties increasingly have relied on the section 3553(a) 

 

196 United States v. Hawk Wing, 433 F.3d 622, 631 (8th 

Cir. 2006). 

197 United States v. Jackson, 467 F.3d 834, 838 (3d Cir. 

2006). 

198 Id. 

199 Id. at 838-39 (“district courts must still calculate what 

the proper Guidelines sentencing range is, otherwise the 

Guidelines cannot be considered properly”); United States 

v. Wallace, 461 F.3d 15, 32 (1st Cir. 2006) (“Only after the 

district court has conducted the advisory guidelines analysis, 

including a determination of the appropriateness of 

downward or upward departures under the guidelines, 

should the court then decide whether the guidelines sentence 

comports with the sentencing factors set for in 18 U.S.C. 

§ 3553(a)”) (emphasis in original); United States v. 

McBride, 434 F.3d 470, 476 (6th Cir. 2006) (“To effectuate 

the Supreme Court’s mandate, district courts are still 

required to consider the appropriate Guideline sentencing 

range. Within this Guideline calculation is the 

determination of whether a Chapter 5 departure is 

appropriate.”) (emphasis in original); United States v. 

Selioutsky, 409 F.3d 114, 118 (2d Cir. 2005) (“the 

sentencing judge must consider the factors set forth in 18 

U.S.C. § 3553(a), including the applicable Guidelines range 

and available departure authority”); United States v. 

Crawford, 407 F.3d 1174, 1179 (11th Cir. 2005) 

(characterizing erroneous application of a downward 

departure as “sentencing error”). 

29
BOOKER REPORT 2012: PART A 

factors rather than on guideline departure 

provisions.200 The Seventh Circuit has held that 

departures are “obsolete,” and that sentences based on 

departure provisions should be examined in the same 

way as variances based on factors outside the 

guidelines, that is, under the general rubric of section 

3553(a).201

The trend toward examining sentences based 

on departure provisions under the general rubric of 

section 3553(a) is reflected in circuits other than the 

Seventh. While not holding that departures are 

obsolete, the Sixth Circuit has held that a district 

court’s consideration of departures is less important 

after Booker: 

[B]ecause the Guidelines are no 

longer mandatory and the district 

court need only consider them along 

with its analysis of the section 3553(a) 

factors, the decision to deny a 

Guidelines-based downward departure 

is a smaller factor in the sentencing 

calculus. Furthermore, many of the 

very factors that used to be grounds 

for a departure under the Guidelines 

are now considered by the district 

 

200 In fiscal year 2007, courts imposed 8,433 nongovernment sponsored below range sentences. Those 

relying at least in part on departure grounds numbered only 

2,770 (32.8% of all non-government sponsored below range 

sentences), while 4,957 (58.8% of all non-government 

sponsored below range sentences) were explicitly based on 

Booker or § 3553(a) and not on any guideline departure 

ground. In fiscal year 2008, courts imposed 9,972 nongovernment sponsored below range sentences, and those 

resting at least in part on departure grounds numbered 2,459 

(24.7%), while those based solely on Booker and § 3553(a) 

numbered 6,678 (67.0%). In the years that followed, those 

percentages were: fiscal year 2009, 19.0% departures (2,403 

out of 12,655 cases) compared to 73.9% Booker/ § 3553(a) 

variances (9,358 out of 12,655 cases); fiscal year 2010, 

17.5% departures (2,552 out of 14,565 cases) compared to 

76.3% Booker/ § 3553(a) variances (11,116 out of 14,565 

cases); and fiscal year 2011, 19.6% departures (2,893 out of 

14,762 cases) compared to 77.0% Booker/ § 3553(a) 

variances (11,371 out of 14,762 cases). 

201 See, e.g., United States v. Moreno-Padilla, 602 F.3d 802 

(7th Cir. 2010). The Seventh Circuit is the only circuit to 

have held that departures are “obsolete.” 

court — with greater latitude — under 

section 3553(a).202

The importance of considering departures in 

the second step of sentencing is also questionable in 

the Ninth Circuit. In United States v. Mohamed, the 

Ninth Circuit stated: 

We think the better view is to treat the 

scheme of downward and upward 

“departures” as essentially replaced by 

the requirement that judges impose a 

“reasonable” sentence . . . The use and 

review of post-Booker departures 

would result in wasted time and 

resources in the courts of appeal, with 

little or no effect on sentencing 

decisions. After all, if a district court 

were to employ a post-Booker

“departure” improperly, the 

sentencing judge still would be free on 

remand to impose exactly the same 

sentence by exercising his discretion 

under the now-advisory guidelines. 

Such a sentence would then be 

reviewed for reasonableness, in which 

case it is the review for 

reasonableness, and not the validity of 

the so-called departure, that 

determines whether the sentence 

stands.203

In United States v. Gutierrez-Hernandez, a 

panel of the Fifth Circuit parted company with the 

Ninth Circuit on this issue, vacating the sentence and 

remanding the case to the district court because the 

court “erred in the application of the departure 

provisions.”204 Yet in a subsequent case upholding a 

sentence that was more than two times the upper end 

of the guideline range, the Fifth Circuit seemingly 

disavowed that holding: “[t]o the extent that . . . 

Gutierrez-Hernandez could arguably be construed to 

require a district court to apply the Guidelines’ 

 

202 United States v. McBride, 434 F.3d 470, 476 (6th Cir. 

2006). 

203 459 F.3d 979, 986-87 (9th Cir. 2006). 

204 581 F.3d 251, 255-256 (5th Cir. 2009). 

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BOOKER REPORT 2012: PART A 

departure methodology before imposing a nonGuidelines sentence, this passage in GutierrezHernandez is dicta.”205 The Fifth Circuit upheld the 

non-guideline sentence even though the district court 

did not utilize departure methodology in reaching its 

decision.206

The Third Step: Consideration of § 3553(a) 

Factors 

In the third step of the sentencing process, the 

court must consider the factors set forth in 18 U.S.C. 

§ 3553(a) taken as a whole before imposing the 

sentence,207 and “impose a sentence sufficient but not 

greater than necessary” to meet the purposes of 

sentencing set forth in 18 U.S.C. § 3553(a)(2). The 

factors the court must consider are ― 

(1) the nature and circumstances of 

the offense and the history and 

characteristics of the defendant; 

(2) the need for the sentence 

imposed— 

(A) to reflect the seriousness of the 

offense, to promote respect for the 

law, and to provide just punishment 

for the offense; 

(B) to afford adequate deterrence to 

criminal conduct; 

(C) to protect the public from 

further crimes of the defendant; and 

(D) to provide the defendant with 

needed educational or vocational 

training, medical care, or other 

 

205 United States v. Gutierrez, 635 F.3d 148, 153 (5th Cir. 

2011). 

206 The Fifth Circuit emphasized cases decided before 

Gutierrez-Hernandez, in which the court of appeals 

“determine[d] only whether the non-Guidelines sentence at 

issue was reasonable, not whether the district court was 

required to perform a calculation of departure []. Indeed, 

our opinion in Smith expressly states that ‘we do not 

examine whether an upward departure or an enhancement 

was available under the Guidelines.’” 635 F.3d at 152. 

207 See USSG §1B1.1(c); see also United States v. Hughes, 

401 F.3d 540, 546 (4th Cir. 2005); United States v. Stone, 

432 F.3d 651, 655 (6th Cir. 2005); United States v. Talley, 

431 F.3d 784, 786 (11th Cir. 2005). 

correctional treatment in the most 

effective manner; 

(3) the kinds of sentences available; 

(4) the kinds of sentence and the 

sentencing range established for―

(A) the applicable category of 

offense committed by the applicable 

category of defendant as set forth in 

the guidelines issued by the 

Sentencing Commission pursuant to 

section 994(a)(1) of title 28, United 

States Code, and that are in effect on 

the date the defendant is sentenced; 

or 

 (B) in the case of a violation of 

probation or supervised release, the 

applicable guidelines or policy 

statements issued by the Sentencing 

Commission pursuant to section 

994(a)(3) of title 28, United States 

Code; 

(5) any pertinent policy statement 

issued by the Sentencing Commission 

pursuant to 28 U.S.C. § 994(a)(2) that 

is in effect on the date the defendant is 

sentenced; 

(6) the need to avoid unwarranted 

sentence disparities among defendants 

with similar records who have been 

found guilty of similar conduct; and 

(7) the need to provide restitution to 

any victims of the offense.208 

The sentencing court need not give prior 

notice of its intent to vary,209 nor categorically recite 

each of the 18 U.S.C. § 3553(a) factors on the record 

when it imposes a sentence.210 Nevertheless, the 

 

208 18 U.S.C. § 3553(a)(1)−(7). 

209 In Irizarry v. United States, the Supreme Court held that 

the requirement in Federal Rule of Criminal Procedure 

32(h) that the sentencing court provide advance notice to the 

parties when departing from the applicable guideline range 

applies only to guideline departures and not to post-Booker

variances: “[t]he due process concerns that motivated the 

Court to require notice in a world of mandatory Guidelines 

no longer provide a basis for [such a requirement].” 553 

U.S. 708, 714 (2008). 

210 See, e.g., McBride, 434 F.3d 470 (6th Cir. 2006); United 

States v. Dieken, 432 F.3d 906 (8th Cir. 2006); United 

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BOOKER REPORT 2012: PART A 

record must include sufficient evidence to demonstrate 

the court’s consideration of these factors. 

Consequently, the court’s consideration of the 18 

U.S.C. § 3553(a) factors has become an essential part 

of the sentencing process.211 However, with respect to 

consideration of sections 3553(a)(4) and (5), no circuit 

has specified what weight to give the Commission’s 

guidelines and policy statements,212 and the circuits 

have not given district courts uniform direction on this 

issue. 

CONSIDERATION OF OFFENDER 

CHARACTERISTICS

The Supreme Court’s renewed emphasis213 on 

the importance of the history and characteristics of the 

 

States v. Scott, 426 F.3d 1324, 1329 (11th Cir. 2005) 

(“nothing in Booker or elsewhere requires the district court 

to state on the record that it has explicitly considered each of 

the § 3553(a) factors or to discuss each of the § 3553(a) 

factors”); but see United States v. Cunningham, 429 F.3d 

673, 679 (7th Cir. 2005) ( “A rote statement that the judge 

considered all relevant factors will not always suffice; the 

temptation to a busy judge to impose the guidelines 

sentence and be done with it, without wading into the vague 

and prolix statutory factors, cannot be ignored.”). 

211 See, e.g., United States v. Till, 434 F.3d 880, 887 (6th 

Cir. 2006). 

212 See, e.g., United States v. Hunt, 459 F.3d 1180, 1184-85 

(11th Cir. 2006) (rejecting “any across-the-board 

prescription regarding the appropriate deference to give the 

Guidelines” and opting to allow sentencing courts to 

“determine, on a case-by-case basis, the weight to give the 

guidelines, so long as that determination is made with 

reference to the remaining section 3553(a) factors the court 

must also consider in calculating the defendant’s 

sentence.”). A district court must “give respectful 

consideration to the judgment embodied in the guidelines 

range that he computes.” United States v. Higdon, 531 F.3d 

561, 562 (7th Cir. 2008); see also United States v. Stewart, 

590 F.3d 93, 167-68 (2d Cir. 2009) (“if the district court has 

ignored or slighted a factor that Congress has deemed 

pertinent in § 3553(a), it has abused its discretion.”) 

(citations omitted). 

213 See, e.g., Gall, 552 U.S. at 49 (a sentencing court must 

“consider all of the § 3553(a) factors” and “must make an 

individualized assessment based on the facts presented.”); 

Kimbrough, 552 U.S. at 101 (“In sum, while the statute still 

requires a court to give respectful consideration to the 

Guidelines, [] Booker permits the court to tailor the sentence 

defendant is not easily reconciled with section 994 of 

title 28. For example, in United States v. Pepper, the 

Court noted that sentencing courts should “conduct an 

inquiry broad in scope, largely unlimited either as to 

the kind of information [they] may consider, or the 

source from which it may come.” 214 On the other 

hand, Congress directed the Commission to 

promulgate guidelines consistent with the SRA’s 

proscriptions and limitations on offender 

characteristics in section 994(d) and (e).215

The Supreme Court has not made clear 

whether the proscriptions and limitations imposed by 

Congress to which the Commission must adhere in 

considering the section 3553(a) factors also limit the 

courts’ consideration of offender characteristics under 

section 3553(a). While the Constitution constrains 

sentencing judges from considering the “forbidden 

factors” of race, sex, national origin, and creed,216

courts now freely consider, for example, a defendant’s 

educational background and employment record, 

factors that Congress, in section 994(e), deemed 

 

in light of other statutory concerns as well[.]”) (internal 

citations omitted). 

214 131 S. Ct. 1229 (2011) (citing United States v. Tucker, 

404 U.S. 443, 446 (1972)). See also Rita, 551 U.S. at 351 

(“[A sentencing judge] may hear arguments by prosecution 

or defense that the Guidelines sentence should not apply, 

perhaps because (as the Guidelines themselves foresee) the 

case at hand falls outside the ‘heartland’ to which the 

Commission intends individual Guidelines to apply, USSG 

§5K2.0, perhaps because the Guidelines sentence itself fails 

properly to reflect § 3553(a) considerations, or perhaps 

because the case warrants a different sentence regardless, 

see Rule 32(f).”). 

215 See discussion at 17, 21-22 supra. 

216 See Pepper, 131 S. Ct. at 1240 n.8 (“Of course, 

sentencing courts’ discretion under § 3661 is subject to 

constitutional constraints.”); Clark v. Martinez, 543 U.S. 

371, 380-81 (2005) (a court should construe a statute to 

avoid a constitutional infirmity if possible); United States v. 

Kaba, 480 F.3d 152, 156 (2d Cir. 2007) (“A defendant’s 

race or nationality may play no adverse role in the 

administration of justice, including sentencing.”) (internal 

citations omitted); see also United States v. Stewart, 590 

F.3d 93, 167 (2d Cir. 2009) (Walker, J., concurring in part 

and dissenting in part) (“We do not categorically proscribe 

any factor concerning the [defendant’s] background, 

character, and conduct, with the exception of invidious 

factors.”) (internal quotations omitted). 

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BOOKER REPORT 2012: PART A 

“generally inappropriate” for the Commission to 

consider in recommending a term of imprisonment or 

length of a term of imprisonment.217 Moreover, those 

factors may be associated with socio-economic status, 

a forbidden factor under section 994(e).218 As a result 

of the lack of certainty in this area, courts sometimes 

reach different conclusions about whether and to what 

extent such characteristics should affect the 

defendant’s sentence.219

 

217 See, e.g., United States v. Tomko, 562 F.3d 558, 572 (3d 

Cir. 2009) (affirming a downward variance in part based 

upon defendant’s prior record as the operator of a large and 

successful plumbing company that employed more than 300 

people); United States v. Whitehead, 532 F.3d 991, 993 (9th 

Cir. 2008) (affirming a downward variance in part based 

upon defendant’s post-offense record of creating a 

successful house-painting business); United States v. AyalaGarcia, 2008 WL 2566858, *4 (E.D. Wisc. 2008) (imposing 

a sentence below the applicable guideline range in part 

based on the “defendant’s recent educational and vocational 

endeavors”) (unpublished); United States v. Crocker, 2007 

WL 2757130, *1 (D. Kan. 2007) (imposing a sentence 

below the guidelines in part based on the defendant’s 

“efforts to better herself through a college education”) 

(unpublished). 

218 See, e.g., United States v. Peltier, 505 F.3d 389, 393 (5th 

Cir. 2007) (“We cannot easily disentangle the weight given 

to the proper factor of need for treatment from the weight 

given to the improper factor of socioeconomic status, with 

which the former proper factor was entwined.”); United 

States v. Engle, 592 F.3d 495, 505 (4th Cir. 2010) (noting 

that the district court made it clear that, but for the 

defendant’s earning capacity, it would have imposed a 

within guidelines sentence of imprisonment, the Fourth 

Circuit found that, “[r]educed to its essence, the district 

court’s approach means that rich tax-evaders will avoid 

prison, but poor tax-evaders will almost certainly go to jail,” 

that an approach based on socioeconomic status was 

impermissible pre-Booker, and that Booker and Gall did not 

“permit[] district courts to rest a sentencing decision 

exclusively on such constitutionally suspect grounds.”). 

219 According to some criminal defense attorneys, there is 

no tension between the statutory proscriptions in section 994 

and the section 3553(a) factors because section 994(e) can 

be interpreted as making certain offender characteristics 

inappropriate for consideration only for determining 

whether to impose a sentence of imprisonment, as opposed 

to probation, or to lengthen a sentence of imprisonment. In 

their view, despite section 994(e), judges retain discretion 

under section 3553(a) to consider those same offender 

characteristics in deciding whether to shorten a sentence of 

imprisonment, or whether to impose a sentence of probation 

A defendant’s status as a young adult 

(although not a juvenile) at the time of the offense is 

an example of an offender characteristic that courts 

have viewed differently. Some courts believe relative 

youth is a mitigating factor, while others do not. The 

district judge who sentenced the defendant in Gall

noted that “[r]ecent studies on the development of the 

human brain conclude that human brain development 

may not become complete until the age of twentyfive” and “compared [the defendant’s] sale of ecstasy 

when he was a 21-year-old adult to the ‘impetuous and 

ill-considered’ actions of persons under the age of 

18.”220 The Supreme Court agreed that “it was not 

unreasonable for the District Judge to view Gall’s 

immaturity at the time of the offense as a mitigating 

factor,” and that such consideration “finds support in 

[the Court’s] cases.”221 Similarly, a district judge 

relied in part on age when sentencing a young adult 

defendant convicted of possessing child pornography 

because the defendant began viewing such images 

when he was himself a young teenager.222 The judge 

concluded that although the “unformed nature of the 

adolescent brain” did not “remove[] all culpability,” it 

did constitute a “critical distinction” from the typical 

defendant convicted of possessing child pornography, 

and it “weigh[ed] heavily in favor of a” downward 

variance from the guideline range.223

Other courts, however, have taken the view 

that a defendant’s status as a young adult cannot 

support a substantial downward variance. For 

example, the Eighth Circuit reversed a substantial 

downward variance in the case of a career offender 

 

or other alternative to incarceration. See, e.g., U.S. Sent’g 

Comm’n Public Hearing on Federal Sentencing Options 

After Booker, Washington, DC (Feb. 16, 2012) (Statement 

of Lisa Wayne, President, National Association of Criminal 

Defense Lawyers, written statement at 7); U.S. Sent’g 

Comm’n Public Hearing on Federal Sentencing Options 

After Booker, Washington, DC (Feb. 16, 2012) (Statement 

of Henry Bemporad, Federal Public Defender, Western 

District of Texas, written statement at 10). 

220 Gall, 552 U.S. at 57-58. 

221 Id. at 58. 

222 United States v. Stern, 590 F. Supp. 2d 945, 952-54 

(N.D. Ohio 2008). 

223 Id. 

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BOOKER REPORT 2012: PART A 

who was 22 years old at the time of the offense, in part 

because the district court explicitly stated that had the 

defendant been 35 or 40 years of age, the court would 

have imposed a sentence at or near the guideline range 

“because the court would have serious questions about 

whether a defendant at that age could be 

rehabilitated.”224 The Eighth Circuit held that, 

especially given the size of the downward variance, it 

was unreasonable because “[r]elative youth is a factor 

that may apply to many career offenders, and it is 

unlikely that district courts uniformly will adopt the 

view of the district court in this case.”225 In such a 

circumstance, the Eighth Circuit said, “the potential 

for excessive sentence disparities would be 

substantial.”226 In a subsequent case, one judge of the 

Eighth Circuit explained his disagreement with a 

district judge’s reliance on a defendant’s relative youth 

as a mitigating factor as follows: 

[The defendant’s] age does not 

distinguish him in any meaningful 

way from other defendants. In fact, 

34.1% of all males arrested in the 

United States in 2007 were between 

the ages of 20 and 29. In 2007, even 

more narrowly, males between the 

ages of 25 and 29 made up the largest 

demographic group - an estimated 

17.24% - of all state and federal 

prisoners in the United States. ... [The 

defendant’s] age has no significant or 

“appreciable probative value” in this 

sentencing and is irrelevant[.]227

In the same case, another Eighth Circuit judge 

explained that “[r]easonable minds can differ” on the 

question of whether a defendant’s relative youth is a 

mitigating factor, and that therefore “[t]he offender’s 

punishment in these career offender cases – ranging 

from the statutory minimum term to a sentence at or 

 

224 United States v. Maloney, 466 F.3d 663, 669 (8th Cir. 

2006). 

225 Id. 

226 Id.

227 United States v. Feemster, 572 F.3d 455, 465-66 (8th 

Cir. 2009) (citations omitted) (Riley, J., concurring). 

near the statutory maximum – will depend 

substantially on the luck of the judicial draw.”228

Similarly, in the context of considering the 

history and characteristics of the defendant as required 

by 18 U.S.C. § 3553(a), courts have considered how to 

account for a defendant’s positive employment history. 

As Justice Alito observed in his dissent in Gall, before 

the SRA: 

[I]f a defendant had a job, a 

supportive family, and friends, those 

factors were sometimes viewed as 

justifying a harsher sentence on the 

ground that the defendant had 

squandered the opportunity to lead a 

law-abiding life. Alternatively, those 

same factors were sometimes viewed 

as justifications for a more lenient 

sentence on the ground that a 

defendant with a job and a network of 

support would be less likely to return 

to crime.229

Since Booker, judges have expressed disparate 

views on this issue, making sentencing outcomes less 

certain. For example, the Third Circuit reviewed en 

banc a substantial downward variance in a tax fraud 

case in which one of the factors supporting the 

variance was the defendant’s prior record as the 

operator of a large and successful plumbing company 

that employed more than 300 people.230 The Third 

Circuit split over the substantive reasonableness of the 

sentence. Affirming the variance, the majority 

concluded that the district court appropriately relied in 

part on the defendant’s prior employment when 

imposing the sentence.231 The dissent, while 

acknowledging that a prior record of employment may 

in some cases be a mitigating factor, emphasized that 

this consideration “fails to distinguish [the defendant] 

from other tax evaders ... and therefore falls far short 

of widening the range of” substantively reasonable 

 

228 Id. at 468 (citations omitted) (Colloton, J., concurring). 

229 552 U.S. at 70 (Alito, J., dissenting). 

230 Tomko, 562 F.3d at 572. 

231 Id. 

34
BOOKER REPORT 2012: PART A 

sentences.232 The dissent expressed the view that “[a]n 

admirable record of employment is a characteristic 

common to many white-collar criminals, and the 

prospect of business failure seems of little relevance as 

a mitigating circumstance when the business itself was 

the vehicle through which the defendant perpetrated 

the crime.”233 Several judges in the Ninth Circuit have 

made substantially the same observation: “We can 

hardly be surprised if a white collar criminal has a 

good employment history – otherwise, he or she would 

likely not be in a position to commit the crime.”234

In public hearings before the Commission, 

several district court judges expressed concern over 

this uncertainty, suggesting that offender 

characteristics that do not support a guideline 

departure are what most often lead them to vary from 

the guidelines.235 Several district court judges and the 

federal public defender community asserted that the 

authority of district court judges to take account of 

offender characteristics results in a more fair and just 

sentencing outcome, allowing judges to mitigate 

otherwise harsh guidelines or unwarranted sentencing 

disparities.236 

 

232 Id. at 583-84 (Fisher, J., dissenting). 

233 Id. at 584. 

234 See, e.g., United States v. Whitehead, 559 F.3d 918, 921 

(9th Cir. 2009) (Gould, J., dissenting from denial of 

rehearing en banc). 

235 U.S. Sent’g Comm’n Public Regional Hearing on the 

25th Anniversary of the Passage of the Sentencing Reform 

Act of 1984, Austin, TX (Nov. 19-20, 2009) (Testimony of 

the Honorable Robin J. Cauthron, District Judge, Western 

District of Oklahoma, transcript at 11); see also U.S. Sent’g 

Comm’n Public Regional Hearing on the 25th Anniversary 

of the Passage of the Sentencing Reform Act of 1984, 

Denver, CO (Oct. 20-21, 2009) (Testimony of the 

Honorable Joan Ericksen, District Judge, District of 

Minnesota, transcript at 269-270, 274); see also 2010

JUDGES’ SURVEY at 19 (Question 4, Table 14) (76 percent of 

respondents indicated that they do not rely on a departure 

provision within the Guidelines Manual because the 

Guidelines Manual does not contain a departure provision 

that adequately reflects the reason for a sentence outside the 

guideline range; and 65 percent indicated that they do not 

rely on a departure provision because the departure policy 

statements in the manual are too restrictive). 

236 See U.S. Sent’g Comm’n Public Regional Hearing on 

the 25th Anniversary of the Passage of the Sentencing 

The Department of Justice has expressed 

concern that judges’ increased discretion after Booker, 

including the discretion to consider offender 

characteristics, has led to increasing unwarranted 

sentencing disparities.237 In addition, some probation 

officers have suggested that the guidelines be amended 

to better reflect the relevance of the defendant’s 

history and characteristics as described in section 

3553(a), either because those factors that the 

guidelines discourage courts from considering might 

 

Reform Act of 1984, New York, NY (July 9-10, 2009) 

(Testimony of the Honorable Donetta W. Ambrose, Chief 

District Judge, Western District of Pennsylvania, transcript 

at 51-52); U.S. Sent’g Comm’n Public Hearing on Federal 

Sentencing Options After Booker, Washington, DC (Feb. 

16, 2012) (Statement of the Honorable Paul Barbadoro, 

District Judge, District of New Hampshire, written 

statement at 6) (“Downward departures and variances may 

not reveal a problem with the advisory guidelines system 

but may in fact reduce undue rigidity in individual cases.”); 

U.S. Sent’g Comm’n Public Hearing on Federal Sentencing 

Options After Booker, Washington, DC (Feb. 16, 2012) 

(Statement of Raymond Moore, Federal Public Defender, 

Districts of Colorado and Wyoming, written statement at 

20-21) [hereinafter Moore 2012 Public Hearing Statement] 

(“Some have suggested that consideration of mitigating 

offender characteristics creates ‘racial and ethnic disparity.’ 

One cannot accept disparate impacts of aggravating factors 

because they are considered relevant (especially when they 

are often given excessive weight), but decry the supposed 

disparate impacts of offender characteristics that are clearly 

relevant, and that judges have used to mitigate excessively 

harsh punishment in deserving cases.”). 

237 U.S. Sent’g Comm’n Public Hearing on Federal 

Sentencing Options After Booker, Washington, DC (Feb. 

16, 2012) (Statement of David Axelrod, Associate Deputy 

Attorney General, United States Department of Justice, 

written statement at 12) (“We believe these two lines of 

thought and doctrine – one that insists that the length of 

federal imprisonment terms be based primarily on the 

offense and criminal history, and one that suggests that 

offender characteristics and rehabilitation should join those 

factors as co-equal determinants – ought to be examined 

more closely and reconciled to the extent possible in order 

to create a more coherent, national system. We believe the 

post-Booker sentencing regime, which gives sentencing 

courts an unbounded menu of sentencing principles from 

which to devise the ultimate sentence, will continue to lead, 

if not reformed, to unwarranted disparities in sentencing 

outcomes.”). 

35
BOOKER REPORT 2012: PART A 

be relevant to assessing the risk of recidivism,238 or 

simply because section 3553(a) suggests such factors 

are relevant while the Guidelines Manual categorizes 

them as not ordinarily relevant.239 

In 2010, the Commission amended certain 

offender characteristics in Chapter Five, Part H to 

remove age, mental and emotional condition, physical 

condition, and military service from the list of 

characteristics the Commission considered not 

ordinarily relevant.240 Those offender characteristics 

 

238 See, e.g., U.S. Sent’g Comm’n Public Regional Hearing 

on the 25th Anniversary of the Passage of the Sentencing 

Reform Act of 1984, Stanford, CA (May 27-28, 2009) 

(Testimony of Christopher Hansen, Chief Probation Officer, 

District of Nevada, transcript at 166). 

239 U.S. Sent’g Comm’n Public Regional Hearing on the 

25th Anniversary of the Passage of the Sentencing Reform 

Act of 1984, New York, NY (July 9-10, 2009) (Testimony 

of William Henry, Chief U.S. Probation Officer for the 

District of Maryland, transcript at 173); U.S. Sent’g 

Comm’n Public Regional Hearing on the 25th Anniversary 

of the Passage of the Sentencing Reform Act of 1984, 

Phoenix, AZ (Jan. 20-21, 2010) (Testimony of Mario 

Moreno, Chief U.S. Probation Officer for the District of 

Arizona, transcript at 112-113). See also U.S. Sent’g 

Comm’n Public Regional Hearing on the 25th Anniversary 

of the Passage of the Sentencing Reform Act of 1984, 

Denver, CO (Oct. 20-21, 2009) (Statement of Honorable 

Robert W. Pratt, Chief U.S. District Judge for the Southern 

District of Iowa, written statement at 3-4). 

240 Pursuant to the SRA’s directives to the Commission in 

section 994, the guidelines had until recently listed age, 

education and vocational skills, mental and emotional 

condition, physical condition, employment record, and 

several other offender characteristics as “not ordinarily 

relevant” in determining whether a departure is warranted. 

See USSG §§5H1.1, p.s. (Age), 5H1.2, p.s. (Education and 

Vocational Skills), 5H1.3, p.s. (Mental and Emotional 

Conditions), 5H1.4, p.s. (Physical Condition, Including 

Drug and Alcohol Dependence or Abuse; Gambling 

Addiction), 5H1.5, p.s. (Employment Record), and 5H1.11, 

p.s. (Military, Civic, Charitable, or Public Service; 

Employment-Related Contributions; Record of Prior Good 

Works). Recently, the Commission amended these 

provisions to state that age, mental and emotional 

conditions, physical condition, and military service “may be 

relevant in determining whether a departure is warranted,” 

generally “if the characteristic, individually or in 

combination with other such characteristics, is present to an 

unusual degree and distinguishes the case from the typical 

cases covered by the guidelines.” See USSG App. C, 

amend. 739 (effective Nov. 1, 2010). 

now “may be relevant in determining whether a 

departure is warranted” “if the characteristic 

individually or in combination with other offender 

characteristics, is present to an unusual degree and 

distinguish[] the case from the typical cases covered 

by the guidelines.”241 However, departures based on 

these offender characteristic provisions are still very 

rare.242

POLICY DISAGREEMENTS WITH THE GUIDELINES

The distinction between the consideration of 

guideline policy during the second step, and the 

consideration of the section 3553(a) factors during the 

third step has led courts to consider to what extent 

courts may disregard guideline policy in favor of their 

own policy judgments. In Kimbrough v. United States, 

the Supreme Court held that a sentencing judge may 

consider the disparity that existed before the Fair 

Sentencing Act of 2010 between the Guidelines’ 

treatment of crack and powder cocaine offenders, and 

therefore may reject the guidelines’ policy of 

sentencing crack cocaine offenders more harshly.243 

According to the Court, in creating the drug trafficking 

guidelines the Commission varied from what the Court 

perceived as its usual practice of employing an 

“empirical approach based on data about past 

sentencing practices,” instead adopting the “weightdriven scheme” used in the Anti-Drug Abuse Act of 

1986244 (“1986 Act”) and maintaining the 100-to-1 

quantity ratio throughout the drug table.245

The Court rejected the government’s position 

that the 1986 Act implicitly required both the 

 

241 See, e.g., USSG §5H1.1, p.s. (Age). 

242 A comparison of Table 25 in the 2010 Sourcebook with 

the same table in the 2011 Sourcebook shows a slight 

increase: 2010 – age (cited 97 times), mental and emotional 

condition (cited 97 times) and physical condition (cited 111 

times); 2011 – age (cited 138 times), mental and emotional 

condition (cited 153 times), and physical condition (cited 

163 times). Given the limited data it would be difficult to 

draw conclusions on the amendment’s effectiveness at 

promoting uniform consideration of these characteristics. 

243 552 U.S. at 91. 

244 Pub. L. No. 99-570. 

245 Kimbrough, 552 U.S. at 96-97. 

36
BOOKER REPORT 2012: PART A 

Commission and sentencing courts to apply the 100-

to-1 ratio: “The statute says nothing about the 

appropriate sentences within [the maximum and 

minimum sentences applicable to crack and powder 

cocaine], and we decline to read any implicit directive 

into that congressional silence.”246 The Court found 

that “drawing meaning from silence [was] particularly 

inappropriate” in this case, because Congress had 

shown that “it knows how to direct sentencing 

practices in express terms,” by, for example, requiring 

in 28 U.S.C. § 994(h) that the Commission set the 

guideline sentences for serious recidivist offenders “at 

or near” the statutory maximum.247

In addition, the Court was unpersuaded by the 

government’s argument that allowing district courts to 

vary based on the crack/powder disparity would lead 

to the very unwarranted disparities district courts are 

instructed to avoid under 18 U.S.C. § 3553(a)(6): 

“Under [§ 3553(a)(6)], district courts must take 

account of sentencing practices in other courts and the 

‘cliffs’ resulting from the statutory mandatory 

minimum sentences” and “[t]o reach an appropriate 

sentence, these disparities must be weighed against the 

other § 3553(a) factors and any unwarranted disparity 

created by the crack/powder ratio itself.”248

Finally, while underscoring the “important 

institutional role” the Commission fills by “bas[ing] its 

determinations on empirical data and national 

experience, guided by a professional staff with 

appropriate expertise,” the Court found that the crack 

cocaine guidelines “do not exemplify” what the Court 

considered to be the Commission’s “characteristic 

institutional role.”249 The Court noted that the 

Commission itself had reported that the crack cocaine 

guidelines produce “disproportionately harsh 

sanctions.”250 The Court then concluded that “[g]iven 

all this, it would not be an abuse of discretion for a 

district court to conclude when sentencing a particular 

defendant that the crack/powder disparity yields a 

 

246 Id. at 103. 

247 Id.

248 Id. at 108. 

249 Id. at 109. 

250 Id. at 109-110. 

sentence ‘greater than necessary’ to achieve 

§ 3553(a)’s purposes, even in a mine-run case.”251 

In 2009, the Supreme Court reinforced this 

holding in Spears v. United States, ruling that “district 

courts are entitled to reject and vary categorically from 

the crack cocaine Guidelines based on a policy 

disagreement with those Guidelines.”252 The Court 

made clear that the holding in Kimbrough allowing 

categorical disagreements with the guidelines 

“necessarily implies adoption of some other 

[crack/powder] ratio to govern the mine-run case.”253 

Accordingly, district courts “must also possess the 

power to apply a different ratio which, in [the court’s] 

judgment, corrects the disparity.”254 

Kimbrough engendered significant 

disagreement in the circuit courts about whether a 

district court may categorically reject several other 

sentencing guidelines, including the child pornography 

guideline at USSG §2G2.2, the fast track departure 

policy statement at USSG §5K3.1, and the career 

offender guideline at USSG §4B1.1. The circuit 

courts holding that courts could reasonably reject 

guideline policy based this holding on two aspects of 

the Kimbrough opinion: first, Kimbrough’s conclusion 

that the crack cocaine guidelines were not based on an 

“empirical approach;”255 and second, its indication that 

 

251 Id. at 110. 

252 555 U.S. 261, 265-66 (2009). 

253 Id. at 265. 

254 Id. 

255 See, e.g., United States v. Rodriguez, 527 F.3d 221, 227 

(1st Cir. 2008) (“Like the crack/powder ratio, the fast-track 

departure scheme does not ‘exemplify the [Sentencing] 

Commission’s exercise of its characteristic institutional 

role.’ . . . In other words, the Commission has ‘not take[n] 

account of empirical data and national experience’ in 

formulating them.”); United States v. Dorvee, 616 F.3d 174, 

184 (2d Cir. 2010) (“[T]he Commission did not use this 

empirical approach in formulating the Guidelines for child 

pornography. Instead, at the direction of Congress, the 

Sentencing Commission has amended the Guidelines under 

§2G2.2 several times since their introduction in 1987, each 

time recommending harsher penalties.”). For a discussion 

of the limited role of empirical evidence in promulgating 

guidelines, see “Directives: Sentence Length,” above at 16, 

and “Implementation of Directives: Sentence Length,” 

above at 19-21. 

37
BOOKER REPORT 2012: PART A 

a district court’s categorical variance may be rooted in 

a finding that the crack/powder disparity yields a 

sentence “greater than necessary” to achieve 

§ 3553(a)’s purposes, rather than based on any one 

§ 3553(a) factor in isolation.256 By contrast, the circuit 

courts holding that a categorical rejection was not a 

reasonable exercise of a district court’s discretion 

based their conclusion on other aspects of the 

Kimbrough opinion: the Court’s determination that 

Congress neither expressly nor implicitly required that 

the Commission incorporate the 100-to-1 ratio into the 

guidelines, and its corresponding reference to 

congressional policy embodied in section 994(h), as 

distinct from guideline or Commission policy.257 

In a similar vein, several circuits have 

considered whether the child pornography guidelines 

deserve less weight at sentencing because Congress 

directly amended them. In United States v. Dorvee, 

the Second Circuit concluded that USSG §2G2.2 is 

“fundamentally different” from most other guidelines 

because it was not based on “an empirical approach 

based on data about past practices” but promulgated 

“at the direction of Congress[.]”258 The circuit court 

 

256 See, e.g., United States v. Michael, 576 F.3d 323, 327 

(6th Cir. 2009) (“A district court may lawfully conclude [] 

that the policies underlying the career-offender provisions – 

including their implicit incorporation of the 100:1 ratio – 

yield a sentence ‘greater than necessary’ to serve the 

objectives of sentencing.”) (internal quotations omitted). 

257 See, e.g., United States v. Gomez-Herrera, 523 F.3d 554, 

559, 562 (5th Cir. 2008) (“[] Kimbrough, which concerned a 

district court’s ability to sentence in disagreement with 

Guideline policy, does not control this case, which concerns 

a district court’s ability to sentence in disagreement with 

Congressional policy . . . . [B]ecause any disparity that 

results from fast-track programs is intended by Congress, it 

is not ‘unwarranted’ within the meaning of § 3553(a)(6).”); 

United States v. Vazquez, 558 F.3d 1224, 1228 (11th Cir. 

2009), cert. granted, judgment vacated, 130 S. Ct. 1135 

(Jan. 19, 2010) (“[] Kimbrough does not gut our analysis in 

Williams [that variances based on a disagreement with the 

career offender guideline are improper]. To the contrary, 

the Supreme Court expressly made a distinction between the 

Guidelines’ disparate treatment of crack and powder cocaine 

offenses -- where Congress did not direct the Sentencing 

Commission to create this disparity -- and the Guideline’s 

punishment of career offenders -- which was explicitly 

directed by Congress.”). 

258 616 F.3d 174, 184 (2d Cir. 2010). 

went further by encouraging district courts “to take 

seriously the broad discretion they possess in 

fashioning sentences under §2G2.2 . . . bearing in 

mind that they are dealing with an eccentric Guideline 

of highly unusual provenance which, unless carefully 

applied, can easily generate unreasonable results.”259 

The Third and Ninth Circuits agreed, concluding that a 

district court may give less weight to §2G2.2 because, 

as the Third Circuit stated, it “was not developed 

pursuant to the Commission’s institutional role and 

based on empirical data and national experience, but 

instead was developed largely pursuant to 

congressional directives.”260 

The First Circuit, while acknowledging the 

district court’s authority to vary because of a policy 

disagreement with the child pornography guidelines, 

recognized that this discretion also includes the 

authority to agree with the congressional policies 

inherent in a certain guideline: 

Even though a guideline is affected by 

congressional adjustment, a 

sentencing court may rely on it. We 

see no reason why it would be 

somehow invalid for a district court, 

in its broad sentencing discretion, to 

conclude that its reason for rejecting a 

 

259 Id. at 188. 

 

260 United States v. Grober, 624 F.3d 592, 608 (3d Cir. 

2010); United States v. Henderson, 649 F.3d 955, 960 (9th 

Cir. 2011) (“[T]he history of the child pornography 

Guidelines reveals that, like the crack-cocaine Guidelines at 

issue in Kimbrough, the child pornography Guidelines were 

not developed in a manner ‘exemplify[ing] the [Sentencing] 

Commission’s exercise of its characteristic institutional 

role,’ . . . so district judges must enjoy the same liberty to 

depart from them based on reasonable policy disagreement 

as they do from the crack-cocaine Guidelines discussed in 

Kimbrough.”); see also United States v. Huffstatler, 571 

F.3d 620, 623 (7th Cir. 2009) (a district court “perhaps” has 

the freedom to sentence below the child pornography 

guidelines, but it is “certainly not required to do so; 

“perhaps for good reason, the government did not take issue 

with Huffstatler’s premise that the child-exploitation 

guidelines lack an empirical basis. As the Sentencing 

Commission itself stated, ‘[m]uch like policymaking in the 

area of drug trafficking, Congress has used a mix of 

mandatory minimum penalty increases and directives to the 

Commission to change sentencing policy for sex 

offenses.’”). 

 

38
BOOKER REPORT 2012: PART A 

Kimbrough variance is that it values 

congressional input. If these results 

seem inconsistent, it is only because a 

sentencing court’s discretion is so 

broad. After Kimbrough, the law 

allows one judge to find that 

congressional input makes a sentence 

less empirical, and so less appropriate, 

while another judge may reasonably 

find such input makes the sentence 

more reflective of democratic 

judgments of culpability, and so more 

reasonable.261 

The Sixth Circuit called the criticism of guidelines 

based on congressional directives “misguided” and 

explained that in our system of government, defining 

crimes and fixing penalties are legislative functions. 

While Congress has delegated limited authority to the 

Commission, “it is normally a constitutional virtue, 

rather than vice, that Congress exercises its power 

directly, rather than hand it off to an unelected 

commission.”262 The circuit court emphasized that it 

 

261 United States v. Stone, 575 F.3d 83, 93 (1st Cir. 2009) 

(“[A] district court is free to agree with the guidelines (or, at 

least, some particular guideline). Part of this freedom must 

be a freedom to agree with the guidelines because the 

sentencing court believes that the guidelines express some 

societal wisdom beyond what an entirely unrestricted 

sentencing judge might possess. Thus, part of the sentencing 

court’s broad discretion must be the discretion to conclude 

that guidelines are convincing for various reasons, including 

that they reflect popular will.”) (internal citations omitted). 

262 United States v. Bistline, 665 F.3d 758, 762 (6th Cir. 

2012) (“Congress can marginalize the Commission all it 

wants: Congress created it.”); see also United States v. 

Pugh, 515 F.3d 1179, 1201 n.15 (11th Cir. 2008) (“The 

[child pornography] Guidelines involved in Pugh’s case . . . 

do not exhibit the deficiencies the Supreme Court identified 

in Kimbrough.”); but see United States v. Irey, 612 F.3d 

1160, 1212 n.32 (11th Cir. 2010) (“In Pugh, we rejected the 

notion that Kimbrough-style policy disagreement could 

justify the district court's decision to impose a probationonly sentence in a child pornography case where the 

minimum guidelines sentence was 97 months. . . . We do 

not rule out the possibility that a sentencing court could ever 

make a reasoned case for disagreeing with the policy 

judgments behind the child pornography guidelines. We 

hold simply that in this case (involving production of child 

pornography), as in Pugh (involving possession of child 

was not constraining district court discretion to 

disagree with the child pornography guidelines on 

policy grounds, but rather holding that “the fact of 

Congress’ role in amending a guideline is not itself a 

valid reason to disagree with the guideline.”263 

Moreover, the Sixth Circuit found that the argument 

that the Commission had departed from its usual role 

in amending §2G2.2 “simply misse[d] the point”: “It is 

true that the Commission did not act in its usual 

institutional role with respect to the relevant 

amendments to §2G2.2. But that is because Congress

was the relevant actor with respect to those 

amendments; and that puts §2G2.2 on stronger ground 

than the crack-cocaine guidelines were on in 

Kimbrough.”264 

The import of congressional directives to the 

Commission took on a different significance in the 

context of the EDP and career offender guidelines. 

With respect to EDP departures, the existence of fast 

track programs in some, but not all districts, generated 

significant circuit conflict about whether a district 

court may vary on the basis of this disparity. The 

Fifth, Ninth, and Eleventh Circuits disapproved of 

variances on this basis, explaining that “Kimbrough, 

which concerned a district court’s ability to sentence 

in disagreement with Guideline policy, does not 

control this case, which concerns a district court’s 

ability to sentence in disagreement with Congressional 

policy.”265 Furthermore, “because any disparity that 

 

pornography), the district court did not come close to doing 

so.”). 

263 Bistline, 665 F.3d at 762; see also United States v. Plate, 

361 F. App’x 318, 332 (3d Cir. 2010) (holding that a 

sentence is not substantively unreasonable solely on the 

basis that §2G2.2 was based on statutory directives; 

“Kimbrough did not hold it impermissible for a guideline to 

be formulated based on statutory directives, but that when it 

is so formulated, a court may choose to give it less 

weight.”). 

264 Bistline, 665 F.3d. at 763. 

265 United States v. Gomez-Herrera, 523 F.3d 554, 563 (5th 

Cir. 2008) (“Kimbrough addressed only a district court’s 

discretion to vary from the Guidelines based on a 

disagreement with Guideline, not Congressional, policy.”); 

see also United States v. Vega-Castillo, 540 F.3d 1235, 

1239 (11th Cir. 2008) (same); United States v. GonzalezZoleto, 556 F.3d 736, 741 (9th Cir. 2009) (“[T]he judge’s 

downward departure reflected not a disagreement with the 

Guidelines, but with congressional policy authorizing 

39
BOOKER REPORT 2012: PART A 

results from fast-track programs is intended by 

Congress, it is not ‘unwarranted’ within the meaning 

of § 3553(a)(6).”266 Other circuits adopted the 

opposite view, concluding that the Commission did 

not “take[] account of empirical data and national 

experience in formulating” the fast track departure 

scheme,267 and therefore, “guidelines and policy 

statements embodying these judgments deserve less 

deference than the sentencing guidelines normally 

attract.”268 The Department of Justice has recently 

changed its policy to require EDP programs in all 

districts for illegal entry offenses. 269 However, criteria 

for qualifying for the departure and the amount of the 

reduction from the guideline minimum (within the 4-

level-reduction limit in USSG §5K3.1), remain within 

the discretion of the United States Attorney for each 

district. Therefore, regional differences in the 

programs may continue. 

The division among the circuits with respect to 

the career offender guideline continues unresolved. In 

the immediate aftermath of Kimbrough, the Seventh 

and Eleventh Circuits held that district courts lack the 

discretion to vary on the basis of a policy disagreement 

with the career offender guideline because, in the 

words of the Seventh Circuit in United States v. 

Welton, “[u]nlike the crack/powder disparity, the 

career offender Guideline range is the product of a 

 

downward departures for fast-track defendants. While 

Kimbrough permits a district court to consider its policy 

disagreements with the Guidelines, it does not authorize a 

district judge to take into account his disagreements with 

congressional policy.”). 

266 Gomez-Herrera, 523 F.3d at 562. 

 

267 United States v. Rodriguez, 527 F.3d 221, 227 (1st Cir. 

2008) (internal quotations omitted); see also United States 

v. Arrelucea-Zamudio, 581 F.3d 142, 155 (3d Cir. 2009) 

(indicating that the Commission did not use an empirical 

approach but “[r]ather, it quickly adopted the congressional 

language.”). 

268 Rodriguez, 527 F.3d at 227. 

 

269 On January 31, 2012, the Deputy Attorney General 

issued a memorandum in requiring all districts to create fast 

track programs for felony illegal reentry offenses. See 

Memorandum of James M. Cole, Deputy Attorney General, 

Department Policy on Early Disposition or “Fast-Track” 

Programs (Jan. 31, 2012) available at

http://www.justice.gov/dag/fast-track-program.pdf. 

Congressional mandate” and “the statutory origin of 

the disparity embedded in §4B1.1 removes that 

disparity from the sentencing discretion provided by 

Kimbrough.”270 The Eleventh Circuit in United States 

v. Vazquez pointed to the Supreme Court’s specific 

citation to section 994(h) in Kimbrough: “[] 

Kimbrough does not gut our analysis in Williams [that 

variances based on a disagreement with the career 

offender guideline are improper]. To the contrary, the 

Supreme Court expressly made a distinction between 

the Guidelines’ disparate treatment of crack and 

powder cocaine offenses -- where Congress did not 

direct the Sentencing Commission to create this 

disparity -- and the Guideline’s punishment of career 

offenders -- which was explicitly directed by 

Congress.”271

The reasoning of these courts “seems to be 

falling out of favor.” 272 The government confessed 

error in both Welton and Vazquez – the government 

asked the Seventh Circuit to overrule Welton, which it 

did in United States v. Corner,

273 and in Vazquez, the 

Solicitor General argued that: 

 

the reference to Section 994(h) was 

not intended to suggest that Congress 

had also bound sentencing courts to 

follow the career offender Guidelines. 

Such a conclusion would have to rest 

on a faulty premise: that congressional 

directives to the Sentencing 

Commission are equally binding on 

the courts.274 

In addition, in a case before the Third Circuit, 

the government “concede[d] that a sentencing court 

may vary downward from the Guidelines range 

 

270 583 F.3d 494, 496-97 (7th Cir. 2009), overruled by

United States v. Corner, 598 F.3d 411 (7th Cir. 2010). 

271 United States v. Vazquez, 558 F.3d 1224, 1228 (11th 

Cir. 2009), vacated, 130 S. Ct. 1135 (2010). 

272 United States v. Merced, 603 F.2d 203, 218 (3d Cir. 

2010). 

273 United States v. Corner, 598 F.3d 411, 414 (7th Cir. 

2010). 

274 United States v. Vazquez, 796 F. Supp. 2d 1370, 1374 

(M.D. Fl. 2011) (emphasis in original). 

 

40
BOOKER REPORT 2012: PART A 

generated by the career offender provision based 

solely on a policy disagreement with the scope of that 

provision.”275 This concession brought the 

government’s position in line with the decisions of the 

First, Sixth, Eighth, Ninth, and, following Corner, 

Seventh Circuits.276

These circuits have held, in the words of the 

Sixth Circuit, that a district court “may lawfully 

conclude[] that the policies underlying the careeroffender provisions . . . yield a sentence ‘greater than 

necessary’ to serve the objectives of sentencing.”277 

 

275 Merced, 603 F.2d at 218. Based on the government’s 

concession, the Third Circuit assumed that it was 

permissible to vary from §4B1.1 based on a policy 

disagreement, but held that the district court had provided 

inadequate explanation of the reasons for its variance in this 

case. Id. at 219. 

276 See United States v. Boardman, 528 F.3d 86 (1st Cir. 

2008); United States v. Sanchez, 517 F.3d 651 (2d Cir. 

2008); United States v. Michael, 576 F.3d 323 (6th Cir. 

2009); United States v. Gray, 577 F.3d 947 (8th Cir. 2009); 

United States v. Corner, 598 F.3d 411 (7th Cir. 2010). 

277 United States v. Michael, 576 F.3d 323, 327 (6th Cir. 

2009); see also United States v. Sanchez, 517 F.3d 651, 663 

(2d Cir. 2008) (“Section 994(h), [] by its terms, is a 

direction to the Sentencing Commission, not to the courts, 

and it finds no express analog in Title 18 or Title 21. While 

21 U.S.C. § 841(b) expressly establishes the minimum and 

maximum prison terms that the court is allowed to impose 

for violations of § 841(a), there is no statutory provision 

instructing the court to sentence a career offender at or near 

the statutory maximum.”); United States v. Boardman, 528 

F.3d 86, 87 (1st Cir. 2008) (“we do not see why 

disagreement with the Commission’s policy judgment [] 

would be any less permissible a reason to deviate than 

disagreement with the guideline policy judgment at issue in 

Kimbrough.”); United States v. Gray, 577 F.3d 947, 950 

(8th Cir. 2009) (“On the more general question of a district 

court’s authority to vary from the guidelines, the Supreme 

Court in Kimbrough quoted the government’s concession 

that a district court may vary based on policy 

considerations, including disagreements with the guidelines, 

[] and the district court [in the instant case] gave no 

indication that it failed to understand its authority to vary 

from the career-offender guideline on that basis.”); United 

States v. Mitchell, 624 F.3d 1023, 1030 (9th Cir. 2010) (“As 

the Supreme Court through Booker, Kimbrough, and Spears

has instructed, and as other circuits that have confronted the 

crack/powder variance in the sentence of a career offender 

have accepted and clarified in their circuit law, sentencing 

judges can reject any Sentencing Guideline, provided that 

the sentence imposed is reasonable.”) (emphasis in original). 

The Seventh Circuit explained its changed position 

from Welton to Corner as follows: 

Further reflection has led us to 

conclude that the Justices’ reference to 

§ 944(h) in Kimbrough does not 

equate §4B1.1 with either § 994(h) or 

the statutory maximum sentence that 

the career-offender guideline must be 

“at or near.” The Court made two 

related points in Kimbrough: first, the 

crack/powder ratio in the Guidelines 

was the choice of the Commission 

rather than Congress; second, district 

judges are entitled to disagree with the 

Commission’s policy choices, as long 

as judges follow all statutes. The 

reference to § 994(h) in Kimbrough

concerned the first of these points 

rather than the second; and it is the 

second, reiterated in Spears, that 

controls the career-offender issue.278

The Seventh Circuit concluded: “Because §4B1.1 is 

just a Guideline, judges are as free to disagree with it 

as they are with §2D1.1(c) (which sets the 

crack/powder ratio). No judge is required to sentence 

at variance with a Guideline, but every judge is at 

liberty to do so.”279

Although not specifically addressing 

congressional directives to the Commission, Pepper v. 

United States also addressed the authority of district 

courts to disregard those guideline policy statements 

with which they disagree, and may affect future circuit 

court decisions about sentencing courts’ authority to 

reject other guideline policies.280 In addition, as a 

matter of statutory interpretation, the Court declined 

the invitation to give greater weight to the guidelines 

and policy statements than to any other § 3553(a) 

factor.281 

 

278 Corner, 598 F.3d at 415 (“Sentencing judges must 

implement all statutes, whether or not the judges agree with 

them – but all § 994(h) requires is that the Sentencing 

Commission set the presumptive sentencing range for 

certain serial criminals at or near the statutory maximum.”). 

279 Id. at 416 (emphasis in original). 

280 131 S. Ct. 1229 (2011). 

281 Id. at 1249. 

41
BOOKER REPORT 2012: PART A 

Specifically, the question in Pepper was 

whether a district court may, on resentencing a 

defendant after a successful appeal, look to evidence 

of the defendant’s post-sentencing rehabilitation to 

support a downward variance from the guideline 

range.282 The Court found it “clear” that such 

evidence “may, in appropriate cases, support a 

downward variance from the advisory Guidelines 

range.”283 The Court noted that 18 U.S.C. § 3661 

made no distinction between an initial sentencing and 

any subsequent resentencing on remand; instead, the 

Court said a categorical ban on the consideration of 

post-sentencing rehabilitation evidence would 

contravene this provision. Moreover, the Court 

observed that post-sentencing rehabilitation evidence 

“may also critically inform a sentencing judge’s 

overarching duty under section 3553(a) to ‘impose a 

sentence sufficient, but not greater than necessary’ to 

comply with the sentencing purposes set forth in 

section 3553(a)(2).”284 In short, the Court concluded 

that a prohibition on the consideration of such postsentencing rehabilitation evidence “conflicts with 

longstanding principles of federal sentencing law and 

contravenes Congress’ directives in §§ 3661 and 

3553(a).”285 Accordingly, the Court held “as with the 

provisions in Booker, the proper remedy here is to 

invalidate § 3742(g)(2),” a provision of the SRA that 

limited resentencing to grounds expressly relied upon 

in the prior sentencing.286 

The Court also expressly disagreed with the 

Commission’s reasoning as stated in the commentary 

to §5K2.19,287 which provided that “[p]ost-sentencing 

rehabilitative efforts, even if exceptional, undertaken 

by a defendant after imposition of a term of 

imprisonment for the instant offense are not an 

appropriate basis for a downward departure when 

 

282 Id. at 1235. 

283 Id. at 1241. 

284 Id. at 1242. 

285 Id. at 1243. 

286 Id. at 1245. 

287 Id. at 1248. The Commission deleted §5K2.19 effective 

November 1, 2012. USSG App. C, amend. 768 (Nov. 1, 

2012). 

resentencing the defendant for that offense.”288 In 

rejecting the policy statement, the court noted that the 

policy found no support in section 3661’s broad 

requirement that “no limitation” be placed “on the 

information concerning the background, character, and 

conduct” of the offender before the court. 

The Court “recognized that the Commission 

post-Booker continues to ‘fil[l] an important 

institutional role’ because ‘[i]t has the capacity courts 

lack to base its determinations on empirical data and 

national experience, guided by a professional staff 

with appropriate expertise’” and the guidelines 

themselves are due “respectful consideration” at 

sentencing.289 Nevertheless, the Court emphasized 

that “a district court may in appropriate cases impose a 

non-Guidelines sentence based on a disagreement with 

the Commission’s views” and stated, “[t]hat is 

particularly true where, as here, the Commission’s 

views rest on wholly unconvincing policy rationales 

not reflected in the sentencing statutes Congress 

enacted.”290 Finally, the Court declined the invitation 

to elevate the guidelines’ policy statements (18 U.S.C. 

§ 3553(a)(5)) and the need to avoid unwarranted 

sentence disparities (18 U.S.C. § 3553(a)(6)) above all 

other section 3553(a) factors.291

To the extent that courts may disagree with 

guideline and congressional policy in favor of their 

own policy views, individual judges, sentencing 

practitioners, and academics are divided about whether 

district court judges should be allowed to take policy 

disagreements into account at sentencing. Some 

believe sentences based on policy disagreements 

should be reviewed with greater scrutiny on appeal, 

while others believe such heightened scrutiny would 

present constitutional problems by tending to make the 

guidelines more mandatory. 292 

 

288 USSG §5K2.19, p.s. (Nov. 2011).

289 Pepper, 131 S. Ct. at 1247. 

290 Id. (citing Kimbrough, 552 U.S. at 109-110). 

291 Id. at 1249. 

292 Compare, e.g., U.S. Sent’g Comm’n Public Hearing on 

Federal Sentencing Options After Booker, Washington, DC

(Feb. 16, 2012) (Testimony of the Honorable Gerard Lynch, 

Circuit Judge, United States Court of Appeals for the 

Second Circuit, transcript at 104-05) (“[T]he result that 

judges are free, individually, to disagree with the policy of 

the Guidelines is what strikes at the heart of the Guidelines 

42
BOOKER REPORT 2012: PART A 

In sum, disagreements in circuits and among 

practitioners regarding when courts may disregard 

Commission policy – and even congressional policy – 

and the permissible grounds for doing so have not 

been resolved. Further, the courts are divided on two 

important questions: how much weight should be 

given to guidelines resulting from congressional 

directives to the Commission; and the appropriate 

interaction between the proscriptions and limitations 

on consideration of offender characteristics in section 

994 of Title 28 and the courts’ consideration of 

offender characteristics in section 3553(a). 

POST-BOOKER APPELLATE REVIEW

Presumption of Reasonableness 

In Rita v. United States,

293 the Supreme Court 

responded to a division among the circuits that had 

arisen since Booker: the Fourth, Fifth, Sixth, Seventh, 

Eighth, Tenth, and District of Columbia Circuits 

adopted the rule that a sentence within the applicable 

guideline range is “presumed reasonable” on appeal,294

 

system. . . . I think [policy disagreements are] the biggest 

problem with the current system, and I would like to see 

stronger appellate review in those cases. . . . I think it is a 

good idea that policy disagreements, however defined, 

should be subject to de novo review in the courts of appeals, 

and ultimately in the Supreme Court, so that we do not have 

a system where some judges think that child pornography is 

not to be sentenced as severely, and others take a completely 

different approach.”) and U.S. Sent’g Comm’n Public 

Hearing on Federal Sentencing Options After Booker,

Washington, DC (Feb. 16, 2012) (Statement of Matthew 

Miner, Attorney, written statement at 8) (“I also support the 

Commission’s proposal for heightened appellate scrutiny for 

sentencing decisions that are based upon policy 

disagreements with the Guidelines.”), with U.S. Sent’g 

Comm’n Public Hearing on Federal Sentencing Options 

After Booker, Washington, DC (Feb. 16, 2012) (Testimony 

of Henry Bemporad, Federal Public Defender, Western 

District of Texas, transcript at 118) (“if judges are not free 

to disagree with the Guidelines on the basis of policy. . . if 

judges on the courts of appeals are substituting their 

judgments on this factor, it is going to lead to 

unconstitutional sentences.”). 

293 551 U.S. 338 (2007). 

294 United States v. Green, 436 F.3d 449, 457 (4th Cir. 

2006); United States v. Alonzo, 435 F.3d 551, 554 (5th Cir. 

2006); United States v. Williams, 436 F.3d 706, 708 (6th 

but the First, Second, Third, Ninth, and Eleventh 

Circuits held to the contrary.295 In adopting a 

presumption of reasonableness, the Seventh and Tenth 

circuits had emphasized the need for nationwide 

uniformity.296 The First and Third Circuits had 

declined to adopt a presumption of reasonableness due 

to the concern that a presumption would tend in the 

direction of making the guidelines mandatory.297 The 

Ninth Circuit had rejected a presumption of 

reasonableness because it found that a non-binding 

presumption would have little practical effect.298 

Ultimately, the Court affirmed Rita’s within range 

sentence, and held that courts of appeals may, but need 

not, apply a presumption of reasonableness when 

reviewing within range sentences.299 

In allowing the courts of appeals to adopt a 

presumption of reasonableness, the Court emphasized 

the close relationship between the guidelines and the 

section 3553(a) factors.300 First, the Court discussed 

 

Cir. 2006); United States v. Mykytiuk, 415 F.3d 606, 608 

(7th Cir. 2005); United States v. Lincoln, 413 F.3d 716, 717 

(8th Cir. 2005); United States v. Kristl, 437 F.3d 1050, 

1053-54 (10th Cir. 2006); United States v. Dorcely, 454 

F.3d 366, 376 (D.C. Cir. 2006). 

295 United States v. Jimenez-Beltre, 440 F.3d 514, 518 (1st 

Cir. 2006) (en banc); United States v. Fernandez, 443 F.3d 

19, 27 (2d Cir. 2006); United States v. Cooper, 437 F.3d 

324, 331-32 (3d Cir. 2006), abrogated on other grounds as 

recognized in United States v. Wells, 279 F. App’x 100 (3d 

Cir. 2008); United States v. Carty, 520 F.3d 984, 993-94 

(9th Cir. 2008) (en banc); United States v. Hunt, 459 F.3d 

1180, 1185 (11th Cir. 2006). 

296 Mykytiuk, 415 F.3d at 607-608; Kristl, 437 F.3d at 1054. 

For the various circuits’ reasoning on this issue, see Part B 

of this report, available online. 

297 Jimenez-Beltre, 440 F.3d at 518; Cooper, 437 F.3d at 

331. 

298 Carty, 520 F.3d at 993-94. 

299 Rita, 551 U.S. at 347-48. In Nelson v. United States, the 

Supreme Court reiterated that the presumption of 

reasonableness is an appellate presumption only: “[T]he 

sentencing court must first calculate the Guidelines range, 

and then consider what sentence is appropriate for the 

individual defendant in light of the statutory sentencing 

factors, explaining any variance from the former with 

reference to the latter.” 555 U.S. 350, 351 (2009). 

300 Rita, 551 U.S. at 348. 

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BOOKER REPORT 2012: PART A 

the statutory provisions governing the promulgation of 

the guidelines and how those provisions mirror the 

factors that § 3553(a) requires sentencing courts to 

consider, noting that “the sentencing statutes envision 

both the sentencing judge and the Commission as 

carrying out the same basic § 3553(a) objectives, the 

one, at retail, the other at wholesale.”301 

According to the Court: 

[T]he presumption reflects the nature 

of the Guidelines-writing task that 

Congress set for the Commission and 

the manner in which the Commission 

carried out that task. In instructing 

both the sentencing judge and the 

Commission what to do, Congress 

referred to the basic sentencing 

objectives that the statute sets forth in 

18 U.S.C. § 3553(a) . . . . The 

provision also tells the sentencing 

judge to “impose a sentence sufficient, 

but not greater than necessary, to 

comply with” the basic aims of 

sentencing as set out above. 

Congressional statutes then tell the 

Commission to write Guidelines that 

will carry out these same section 

3553(a) objectives.302

Second, the Court discussed the process the 

Commission used to initially promulgate and 

subsequently amend the guidelines, concluding that 

the guidelines “seek to embody the § 3553(a) 

considerations, both in principle and in practice,” and 

that they “reflect a rough approximation of sentences 

that might achieve § 3553(a)’s objectives.”303 

Accordingly, the Court held that a rebuttable 

presumption of reasonableness at the appellate level 

“simply recognizes the real-world circumstance that 

when the judge’s discretionary decision accords with 

the Commission’s view of the appropriate application 

of § 3553(a) in the mine run of cases, it is probable 

 

301 Id. 

302 Id. (emphasis in original). 

303 Id. at 350. 

that the sentence is reasonable.”304 Nonetheless, even 

after Rita, in some circuits a sentence within a 

properly determined guideline range is presumed 

reasonable on appeal, while in others it is not. 

Reasonableness Review 

In Gall v. United States,

305 the Supreme Court 

made clear that reasonableness review is a two-step 

process in which the courts of appeals first consider 

procedural reasonableness by determining whether the 

sentencing court correctly determined the guideline 

range, properly considered the § 3553(a) factors, and 

sufficiently explained the sentence imposed; and then 

consider the substantive reasonableness of the 

sentence.306 The first step is “to ensure that the district 

court committed no significant procedural error, such 

as failing to calculate (or improperly calculating) the 

Guidelines range, treating the Guidelines as 

mandatory, failing to consider the § 3553(a) factors, 

selecting a sentence based on clearly erroneous facts, 

or failing to adequately explain the chosen 

sentence.”307 “Assuming that the district court’s 

sentencing decision is procedurally sound, the 

appellate court,” as a second step, should then consider 

the substantive reasonableness of the sentence 

imposed under an abuse-of-discretion standard,”308

taking into account “the totality of the 

circumstances.”309 Moreover, the Court emphasized, 

“[t]he fact that the appellate court might reasonably 

have concluded that a different sentence was 

appropriate is insufficient to justify reversal of the 

district court.”310

The Supreme Court considered whether the 

standard of review differs for sentences within the 

 

304 Id. at 350-51. 

305 552 U.S. 38 (2007). 

306 Id. at 51. But see Rita, 551 U.S. at 370 (“I would hold 

that reasonableness review cannot contain a substantive 

component at all.” (Scalia, J., dissenting.)). 

307 Gall, 552 U.S. at 51. 

308 Id. 

309 Id. 

310 Id. 

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BOOKER REPORT 2012: PART A 

guideline range and those outside the guideline range. 

The Court held that an abuse of discretion standard 

applies equally to all sentences “whether inside, just 

outside, or significantly outside the Guidelines 

range.”311 Where the sentence varies from the 

guideline range, the appellate court “may consider the 

extent of the deviation but must give due deference to 

the district court’s decision that the § 3553(a) factors, 

on a whole, justify the extent of the variance.”312 

The Court also addressed whether the standard 

of review is heightened depending on how far outside 

the guideline range the sentence falls. The Court 

stated that it is “clear that a district judge must give 

serious consideration to the extent of any departure 

from the Guidelines and must explain his conclusion 

that an unusually lenient or an unusually harsh 

sentence is appropriate in a particular case with 

sufficient justifications.”313 However, the Court 

rejected any “appellate rule that requires 

‘extraordinary’ circumstances to justify a sentence 

outside the Guidelines range” or “the use of a rigid 

mathematical formula that uses the percentage of a 

departure as the standard for determining the strength 

of the justifications required for a specific 

sentence.”314 Such rules or formulas, the Court noted, 

“come too close to creating an impermissible 

presumption of unreasonableness for sentences outside 

the Guidelines range.”315 Moreover, such rules and 

formulas would be “inconsistent with the rule that the 

abuse-of-discretion standard of review applies to 

appellate review of all sentencing decisions — 

whether inside or outside the Guidelines range.”316 

Nonetheless, if a court chooses a sentence 

outside the guideline range, the court “must consider 

the extent of the deviation and ensure that the 

justification is sufficiently compelling to support the 

degree of the variance”317 and must provide an 

 

311 Id. at 41. 

312 Id. at 51. 

313 Id. at 46. 

314 Id. 

315 Id. at 47. 

316 Id. at 49. 

317 Id. at 50. 

explanation sufficient “to allow for meaningful 

appellate review and to promote the perception of fair 

sentencing.”318 Furthermore when a judge varies in a 

“mine-run case” based “solely on the judge’s view that 

the Guidelines range ‘fails properly to reflect 

§ 3553(a) considerations,’” closer review may be in 

order.319 

Reasonableness Review after Rita and Gall 

The courts of appeals have uniformly 

recognized that the appellate court’s role is to 

determine whether the sentence is procedurally sound 

and falls within the broader range of reasonable 

sentences, not whether the sentence was the correct 

sentence.320 However, review of the circuits’ 

sentencing cases reveals variations among the circuits’ 

stated approaches to this two-step review, as well as 

differences between the circuits’ stated approaches and 

their actual practices. 

These differences range from the types of 

reasonableness a court will consider on appeal, to the 

factors sentencing courts are permitted to consider, to 

the manner in which an appellate court will determine 

whether a sentence is substantively unreasonable. 

Some circuits focus more on procedural 

reasonableness than substantive reasonableness. For 

example, the Ninth Circuit has held that “appellate 

courts have a sua sponte duty to undertake a review 

for procedural error even where . . . no such error is 

expressly asserted by the [parties].”321 At least one 

 

318 Id.

319 Id. at 109-110 (citations omitted). 

320 See, e.g., United States v. Treadwell, 593 F.3d 990, 1015 

(9th Cir. 2010) (discussing the “broad range of sentences 

that would be reasonable in the particular circumstances”); 

United States v. Tomko, 562 F.3d 558, 568 (3d Cir. 2009) 

(en banc) (“if the district court’s sentence is procedurally 

sound, we will affirm it unless no reasonable sentencing 

court would have imposed the same sentence on that 

particular defendant for the reasons the district court 

provided).” Additional caselaw on this topic can be found 

in Part B of this report, available online. 

321 United States v. Evans-Martinez, 611 F.3d 635, 638 (9th 

Cir. 2010) (citing United States v. Ressam, 593 F.3d 1095, 

1115 (9th Cir. 2010), opinion superseded by 679 F.3d 1069 

(9th Cir. 2012) (en banc)). 

45
BOOKER REPORT 2012: PART A 

circuit does not read Gall to require such review 

absent an argument by the parties.322 Similarly, at 

least one circuit considers Gall’s instructions to 

preclude a review for substantive reasonableness when 

procedural errors are found,323 while another circuit 

elects to rule on substantive reasonableness even 

where procedural errors are established.324 Moreover, 

there are cases in several circuits that blur the line 

between procedural and substantive reasonableness; in 

at least two circuits, grave procedural errors may 

render a sentence substantively unreasonable.325

Procedural Reasonableness Review

The courts of appeals have not taken a 

uniform approach to the depth of explanation 

 

322 United States v. Friedman, 554 F.3d 1301 (10th Cir. 

2009) (examining only the substantive reasonableness of the 

sentence where the appellant did not challenge the 

procedural reasonableness of the sentence). 

323 United States v. Cantrell, 433 F.3d 1269, 1280 (9th Cir. 

2006) (“the new reasonableness standard of review 

established in Booker comes into play only if there was no 

material error in the district court’s calculation of the 

appropriate Guidelines range”); c.f. United States v. 

Vickers, 528 F.3d 1116, 1120 (8th Cir. 2008) (“Absent 

reversible procedural error, we then review the 

reasonableness of the court’s sentence for abuse of 

discretion.”). 

324 United States v. Dorvee, 616 F.3d 174, 182-83 (2d Cir. 

2010) (“nothing in our existing sentencing law prevents us 

from reaching both the procedural and substantive 

reasonableness of the sentence in the course of an appeal 

where we find both types of error. . . It is especially 

appropriate to reach the matter of substantive 

unreasonableness now because we have found and identify 

here certain serious flaws . . . which are squarely presented 

on this appeal and which must be dealt with by the district 

court at resentencing.”) (internal quotations omitted). 

325 United States v. Lychock, 578 F.3d 214, 218 (3d Cir. 

2009) (district court’s analysis was so “procedurally flawed” 

as to result in a substantively unreasonable sentence); 

United States v. Olhovsky, 562 F.3d 530, 553 (3d Cir. 2009) 

(same); United States v. Goff, 501 F.3d 250, 256-57 (3d Cir. 

2007) (same); United States v. Friedman 554 F.3d 1301, 

1312 (10th Cir. 2009) (“the very limited nature of the record 

and the paucity of reasoning on the part of the district court 

most certainly bear on our review of the substantive 

reasonableness”). 

necessary for a sentence to be deemed procedurally 

sound. Many circuits clearly state that a sentencing 

court need not explain why it is not imposing a certain 

sentence proposed by either the government or the 

defendant.326 However, some appellate courts have 

faulted sentencing courts for failing to make such 

explanations. For example, in United States v. Hall, 

the District of Columbia Circuit reversed a within 

range sentence where, among other things, “the district 

court did not explain why, in view of the factors in 18 

U.S.C. § 3553(a), a sentence of 188 months was 

necessary, much less why the lower sentence that Hall 

requested would be insufficient.”327 

In contrast, in some circuits an adequate 

explanation may render procedural error harmless. If 

the court uses the wrong starting point, for example by 

miscalculating the guidelines, the sentence will 

withstand appeal in most cases as long as the court 

recognizes the potential calculation error and 

announces that it would impose the same sentence 

under section 3553(a) regardless of the erroneous 

computation.328 Even the Ninth Circuit, which appears 

 

326 See, e.g., United States v. Wallace, 597 F.3d 794, 804 

(6th Cir. 2010) (“It is well-settled that a district judge need 

not give the reasons for rejecting any and all arguments by 

the parties for alternative sentences, nor must she give the 

specific reason for a within guidelines sentence.”) (internal 

quotation marks omitted); United States v. Vargas, 560 F.3d 

45, 52 (1st Cir. 2009) (a sentencing court is not required “to 

provide a lengthy and detailed statement of its reasons for 

refusing to deviate” from the guideline range). 

327 610 F.3d 727, 745 (D.C. Cir. 2010). See also United 

States v. Akhigbe, 642 F.3d 1078, 1086 (D.C. Cir. 2011) 

(“Reviewing the sentencing proceedings as a whole . . . we 

conclude that the court plainly erred in failing to provide an 

adequate explanation for the unsought above-Guidelines 

sentence imposed”). 

328 See, e.g., United States v. Barner, 572 F. 3d 1239, 1248 

(11th Cir. 2009) (“Where a district judge clearly states that 

he would impose the same sentence, even if he erred in 

calculating the guidelines, then any error in the calculation 

is harmless.”); United States v. Abbas, 560 F.3d 660 (7th 

Cir. 2009) (same); United States v. O’Georgia, 569 F.3d 

281, 296 (6th Cir. 2009) (“Where a Guidelines departure 

provision has been erroneously applied, the resulting 

sentence may still be procedurally reasonable if the district 

court has adequately explained it by reference to the 18 

U.S.C. § 3553(a) factors. In such a case, the sentence would 

be unreasonable as a departure but reasonable as a variance 

from the advisory Guidelines range.”); United States v. 

46
BOOKER REPORT 2012: PART A 

to have adopted a general rule of reversing sentences 

imposed after an improper calculation of the guideline 

range,329 has failed to adopt an explicit per se reversal 

rule.330

Likewise, courts of appeals take different 

approaches to the appropriate section 3553(a) factors 

to be considered at sentencing. For example, in one 

case the First Circuit rejected as unreasonable an 

upward variance from a range of zero to six months to 

a sentence of 48 months because the defendant had 

been deported twice before and was subject to an 

unexecuted bench warrant for a prior arrest.331 In 

contrast, the Fifth Circuit has held that an upward 

departure from a range of 24 to 30 months to a 

sentence of 72 months was reasonable based upon the 

sentencing court’s reliance on the defendant’s criminal 

history and post-deportation re-entry arrests as 

 

Henson, 550 F.3d 739, 742 (8th Cir. 2008) (guideline 

calculation error is harmless if court recognizes specific 

potential for error and expressly states same sentence would 

be imposed in absence of error). But c.f. United States v. 

Bah, 439 F.3d 423, 432 (8th Cir. 2006) (“[T]he district court 

cannot preemptively announce an alternative sentence under 

the § 3553(a) factors without first having determined the 

correct advisory guidelines range”). 

329 United States v. Pham, 545 F.3d 712, 716 (9th Cir. 

2008) (“If upon review we conclude that the district court 

committed a ‘significant procedural error,’ such as a 

‘material error in the Guidelines calculation that serves as 

the starting point for the district court's sentencing decision, 

we will remand for resentencing pursuant to 18 U.S.C. 

§ 3742(f).’ If no such material error in applying the 

Guidelines is found, however, we may go on to evaluate the 

sentence for its substantive reasonableness under an abuse 

of discretion standard.”) (citations omitted). 

330 United States v. Cantrell, 433 F.3d 1269, 1279 n.3 (“We 

leave open the question whether, and under what 

circumstances, district courts may find it unnecessary to 

calculate the applicable Guidelines range.”). 

331 United States v. Zapete-Garcia, 447 F.3d 57, 60 (1st Cir. 

2006). See also United States v. Poynter, 495 F.3d 349, 354 

(6th Cir. 2007) (holding that an above-guideline sentence 

for a repeat child sex offender is substantively unreasonable 

where the sentencing court relied on recidivism, which is “a 

problem common to all repeat sex offenders” and the 

guideline “was meant to account for the problem of 

recidivism”). 

evidence that the defendant had “no respect” for the 

laws of the United States.332 

Substantive Reasonableness Review

Although a direct assessment of how 

uniformly courts conduct substantive reasonableness 

review is difficult, a review of cases suggests appellate 

courts have reached different outcomes for seemingly 

similarly situated defendants. A review of child 

pornography and fraud cases illustrates that courts of 

appeals may reach different outcomes in similar cases, 

based in part on which sentencing factors the circuit 

court chooses to emphasize in that particular case. 

In the area of child pornography the Ninth 

Circuit in United States v. Autery333 found a sentence 

of probation provided just punishment and adequate 

deterrence based on the defendant’s personal 

characteristics, while the Eleventh Circuit in United 

States v. Pugh334 found that a sentence of probation did 

not provide adequate general deterrence or protect the 

public. In both cases, the defendants had no criminal 

history and no known history of sexual misconduct. In 

Autery the district court emphasized that the defendant 

“did not ‘fit the profile of a pedophile,’”335 and had the 

support of his family as well as “redeeming personal 

characteristics,” including “no history of substance 

abuse, no ‘interpersonal instability,’ no ‘sociopathic or 

criminalistic attitudes.”336 In upholding the 

probationary sentence as substantively reasonable, the 

Ninth Circuit emphasized the district court’s 

assessment that the defendant was not a pedophile and 

that his “redeeming personal characteristics” were 

sufficient to support the district court’s conclusion that 

the defendant’s case was not a mine-run child 

pornography possession case, and did not lead to 

unwarranted sentencing disparities.337 In contrast, in 

reversing Pugh’s probationary sentence as 

 

332 United States v. Lopez-Velasquez, 526 F.3d 804, 807 

(5th Cir. 2008); 

333 555 F.3d 864 (9th Cir. 2009). 

334 515 F.3d 1179 (11th Cir. 2008). 

335 555 F.3d at 867. 

336 Id. at 868. 

337 Id. at 876. 

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BOOKER REPORT 2012: PART A 

substantively unreasonable, the Eleventh Circuit 

emphasized sentencing factors other than the 

defendant’s personal characteristics, including general 

deterrence, the seriousness of the offense, the need to 

protect the public, and the need to avoid sentencing 

disparity.338 

Even within range sentences in child 

pornography cases may be subject to different 

outcomes on substantive reasonableness review. In 

United States v. Dorvee, the Second Circuit held that a 

within range sentence was substantively unreasonable, 

and that “unless applied with great care, [application 

of the child pornography guideline] can lead to 

unreasonable sentences that are inconsistent with what 

section 3553(a) requires.”339 In contrast, the Seventh 

Circuit acknowledged the Dorvee court’s view of the 

child pornography guidelines generally, but declined 

to adopt it.340 In particular, the Seventh Circuit 

concluded that “[w]hether one agrees or disagrees with 

the concerns expressed by the Second Circuit, it is 

ultimately for Congress and the Commission to 

consider these concerns.”341

In fraud cases, different approaches to 

substantive review have led to discord among judges 

on the Ninth Circuit over the appropriateness of non-

 

338 515 F.3d at 1194-1203. 

339 616 F.3d at 183-84. 

340 United States v. Mantanes, 632 F.3d 372, 376-77 (7th 

Cir. 2011). 

341 Id. at 377. In a subsequent case, the Second Circuit 

declined to find a sentence imposed under the illegal reentry 

guideline unreasonable, and in so doing commented on its 

holding in Dorvee: “the absence of empirical support is not 

the relevant flaw we identified in Dorvee. We criticized the 

child pornography Guideline in Dorvee because Congress 

ignored the Commission and directly amended the 

Guideline, which had the effect of ‘eviscerat[ing] the 

fundamental statutory requirement in section 3553(a) that 

district courts consider the nature and circumstances of the 

offense and the history and characteristics of the defendant.’ 

There is no such flaw in the reentry Guideline. Congress did 

not bypass the usual procedure for amending the Guidelines 

with respect to illegal reentry cases. To the contrary, the 16-

level enhancement in §2L1.2 was based on the 

Commission’s own determin[ation] that these increased 

offense levels are appropriate to reflect the serious nature of 

these offenses.” United States v. Perez-Frias, 636 F.3d 39, 

43 (2d Cir. 2011) (citations omitted). 

imprisonment sentences for white collar criminals. In 

United States v. Whitehead, the defendant was 

convicted of selling unauthorized “access cards” 

which allowed purchasers to pirate copyrighted 

material from DirecTV, resulting in more than a 

million dollar loss to the company.342 In dissenting 

from an opinion upholding a sentence of probation, 

which was a reduction from a guideline range of 41 to 

51 months, Judge Bybee argued that the district court’s 

decision was “not an exercise of discretion so much as 

an abdication of responsibility,”343 and expressed deep 

concern over the impact of the majority’s decision on 

sentencing practice in the Ninth Circuit: 

Whitehead’s non-sentence surely 

becomes an important starting point 

for defendants in this circuit willing to 

claim close family ties and postconviction remorse to avoid prison. 

As a circuit, we have an obligation to 

ensure roughly equal sentences both 

among our judicial districts and within 

each judicial district. Deferring 

equally to district court sentences is 

not the same as securing equal 

sentences in district court.344

 In United States v. Prosperi,

345 the First 

Circuit affirmed a sentence of probation, a downward 

variance from a range of 87 to 108 months, in a case in 

which “[t]he government charged that over the course 

of nine years [the defendants’ company] knowingly 

provided concrete that failed to meet project 

specifications and concealed that failure by creating 

false documentation purporting to show that the 

concrete provided complied with the relevant 

 

342 532 F.3d 991, 992 (9th Cir. 2008). 

343 Id. at 994 (Bybee, J., dissenting). 

344 Id. at 999-1000 (Bybee, J., dissenting). See also United 

States v. Edwards, 622 F.3d 1215, 1216 (9th Cir. 2010) 

(Gould, J., dissenting) (“[O]ur court’s practice of 

uncritically affirming unreasonably lenient sentences for 

white-collar criminals renders the Sentencing Guidelines a 

nullity, makes us an outlier among the circuit courts, and 

impairs our ability to effectively review sentences for 

substantive reasonableness.”). 

345 686 F.3d 32 (1st Cir. 2012). 

48
BOOKER REPORT 2012: PART A 

specifications.”346 The concrete was used in Boston’s 

Central Artery/Tunnel project (the “Big Dig”) over a 

16-year period. The project “was one of the largest 

public works projects in United States history at the 

time of its completion.”347 While recognizing that any 

loss calculation in the case would be imprecise given 

legitimate questions about whether the government 

sustained any loss at all,348 the court adopted the 

government’s $5.2 million loss figure, but determined 

that the loss amount should not drive the sentence: 

[l]oss is certainly important, but the 

crimes at issue do not fit the usual 

white collar crime profile. There was 

no intent on defendants’ part to enrich 

themselves personally. Nor is there 

any evidence that defendants intended 

to do harm to the [Big Dig] project or 

to the taxpaying public in any specific 

sense.349

In upholding the sentence, the First Circuit noted, 

among other things, that the district court had fulfilled 

its duty to consider the purposes of sentencing, 

including deterrence. The court of appeals found 

“plausible” the district court’s explanation of the 

sentence, including the lack of evidence that the 

substandard concrete created a safety issue, the court’s 

belief that the defendants were not seeking to enrich 

themselves, and the individual circumstances of the 

defendants.350

Other circuits have rejected sentences in fraud 

cases as substantively unreasonable because the court 

found the sentences too lenient.351 For example, in 

United States v. Engle, the Fourth Circuit vacated a 

sentence of probation, a downward variance from a 

guideline range of 24 to 30 months. Engle had evaded 

taxes for 16 years and had a total tax liability 

 

346 Id. at 34. 

347 Id. 

348 Id. at 43. 

349 Id. at 38. 

350 Id. at 50. 

351 See, e.g., United States v. Givens, 443 F.3d 642, 645 

(8th Cir. 2006). 

 

exceeding $2 million.352 While the Fourth Circuit 

recognized that after Booker a district court could 

disagree with the guidelines or its policy statements, it 

explained that the district court had not even 

acknowledged the policy statements and had given a 

significantly lower sentence in a case that some could 

believe warranted an above range sentence on the 

basis of the defendant’s lengthy tax evasion and his 

failure to pay anything toward his debt after receiving 

a lenient sentence.353 More specifically, the Fourth 

Circuit held that the district court’s near-total focus on 

the defendant’s ability to repay his debt was 

substantively unreasonable,354 noting that Booker and 

Gall did not “permit[] district courts to rest a 

sentencing decision exclusively on such 

constitutionally suspect grounds.”355 

In United States v. Martin, a case involving 

securities and mail fraud in which the defendant’s 

guideline range was 108 to 135 months, the Eleventh 

Circuit found that a sentence of probation was 

“shockingly short and wholly fail[ed] to serve the 

purposes of sentencing as set forth by Congress in 

§ 3553(a).”356 Similarly, in United States v. Cutler, a 

case involving “various charges relating to extensive 

bank frauds and tax frauds,” the Second Circuit 

rejected two downward departures, one from a range 

of 78 to 97 months down to a sentence of one year and 

one day of imprisonment for one defendant, and the 

other from a range of 108 to 135 months down to 

probation for another defendant, based on their 

extraordinary family circumstances, need to pay 

restitution, health, age, and “public humiliation” 

associated with the charges.357

 

352 592 F.3d 495 (4th Cir. 2010). 

353 Id. at 502-03. 

354 Id. at 504. 

355 Id. at 505. 

356 455 F.3d 1227, 1239 (11th Cir. 2006). 

357 520 F.3d 136, 158-175 (2d Cir. 2008), questioned in 

United States v. Cavera, 550 F.3d 180 (2d Cir. 2008) (while 

not questioning the ultimate result in Cutler, the court noted 

that it will “set aside a district court’s substantive 

determination only in exceptional cases where the trial 

court’s decision ‘cannot be located within the range of 

permissible decisions.’”) (emphasis in original). 

49
BOOKER REPORT 2012: PART A 

In addition to the different outcomes resulting 

from substantive reasonableness review, questions 

have arisen regarding how to calculate the size of a 

departure or a variance for purposes of appellate 

review. In United States v. Castillo,

358 the Seventh 

Circuit upheld an above-range sentence of 60 months 

from a guideline range of 37 to 46 months in a false 

identification case under 18 U.S.C. § 1028. In so 

doing the court clarified “an ambiguity concerning the 

scope of appellate review of an above-guidelines 

sentence.” After noting that circuit precedent requires 

that “the farther the judge’s sentence departs from the 

guidelines . . . the more compelling the justification 

based on factors in section 3553(a) that the judge must 

offer to enable the court of appeals to assess the 

reasonableness of the sentence imposed,” the court 

went on to identify an ambiguity in the word 

“farther”.359 

“It can be conceived of in either relative or 

absolute terms,” according to the court, and a variance 

that is 30 percent longer than the top of the guideline 

range seems large, but “in absolute terms . . . it is a 

smallish 14 months.”360 The court determined that 

“the relative is generally more important than the 

absolute, as is implicit in a number of our previous 

decisions,” and gave greater weight to the percentage 

deviation, than to the number of months it 

represented.361 In Castillo’s case, the court found the 

30 percent upward variance reasonable, because the 

guidelines encourage an upward departure if the 

offense involved substantially more than 100 false 

documents, and Castillo’s offense involved 2,800 

documents, “28 times the number of fraudulent 

documents that triggers the highest guideline 

sentence.”362

Other factors may limit the ability of the 

appellate process to “iron out sentencing differences,” 

as the Court anticipated in Booker.

363 First, fewer than 

ten percent of all offenders appeal some aspect of their 

 

358 695 F.3d 672 (7th Cir. 2012). 

359 Id. at 673 (citations omitted). 

360 Id. 

361 Id. 

362 Id. at 675. 

363 543 U.S. at 263. 

sentence, and the proportion of cases that are appealed 

has diminished over time.364 This may be due in part 

to the prevalence of appeal waivers in plea 

agreements.365 Second, of the appeals in the 

Commission’s database,366 defendants initiate the vast 

majority. In most of these cases the court of appeals 

affirms the sentence. The number of appellate orders 

and opinions arising from appeals initiated by the 

government pales in comparison to the number of 

appeals initiated by defendants, but the government 

prevails in a higher percentage of its appeals. The 

Commission’s analysis of court orders and opinions 

issued in fiscal year 2011 showed that courts of 

appeals ruled on nearly 6,000 constitutional issues, 

reasonableness issues, and issues related to the section 

3553(a) factors (as distinct from guideline 

determination issues) raised by the defendant, and 

approximately 30 such issues raised by the 

government.367 

 

364 See Figure, “Number of Defendants Sentenced and 

Appeals Decided Fiscal Years 1993-2011,” Part B, available 

online. 

365 Many factors likely contribute to the overall rate of 

appeal, including the prevalence of waivers of the right to 

appeal in plea agreements. See Nancy J. King and Michael 

E. O’Neill, Appeal Waivers and the Future of Sentencing 

Policy, 53 DUKE L. J. 209, 219-225 (2005) (“Based on 

interviews and an analysis of data coded from 971 randomly 

selected cases sentenced under the United States Sentencing 

Guidelines, the study’s findings include (1) in nearly twothirds of the cases settled by plea agreement, the defendants 

waived their rights to review”). 

366 The appeals database includes orders and opinions, both 

published and unpublished, in direct appeals of federal 

criminal cases in which the defendant has been convicted 

and sentenced. 

367 A more in-depth discussion of appeals data is in Part B, 

available online. 

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BOOKER REPORT 2012: PART A 

Analysis of Federal Sentencing Data 

METHODOLOGY

The Commission analyzed sentencing data for 

offenses in the aggregate and individually for five 

offense types and one commonly applied guideline: 

drug trafficking offenses368 under §§2D1.1 or 2D1.2 

(all drugs combined, powder cocaine, crack cocaine, 

heroin, marijuana, and methamphetamine); firearms 

offenses369 under §2K2.1; immigration offenses370 

 

368 Drug trafficking offenses include distribution, 

possession with intent to distribute, or manufacture of 

controlled substances, or conspiracy or attempt to do the 

same, importation and exportations of controlled substances, 

or conspiracy or attempt to do the same. These offenses are 

sentenced under USSG §2D1.1 (Unlawful Manufacturing, 

Importing, Exporting, or Trafficking (Including Possession 

with Intent to Commit These Offenses); Attempt or 

Conspiracy). Drug trafficking offenses also include 

distribution of controlled substances to persons under 21 

years of age, distribution, possession with intent to 

distribute, or manufacture controlled substances in or near 

protected locations, and employment or use of persons 

under the age of 18 in drug operations, and distribution of 

controlled substances to pregnant individuals. These 

offenses are sentenced under USSG §2D1.2 (Drug Offenses 

Occurring Near Protected Locations or Involving Underage 

or Pregnant Individuals; Attempt or Conspiracy). 

369 Firearms offenses include unlawful 

possession/transportation of firearms or ammunition; 

unlawful acquisition of a firearm from a licensed dealer, 

receiving or possessing a stolen firearm or ammunition, 

making false statements regarding firearms recordkeeping, 

and possessing or receiving an unregistered firearm. These 

offenses are sentenced under USSG §2K2.1 (Unlawful 

Receipt, Possession or Transportation of Firearms or 

Ammunition; Prohibited Transactions Involving Firearms or 

Ammunition). 

under §§2L1.1 or 2L1.2 (alien smuggling and illegal 

entry); fraud offenses371 under §2F1.1 or §2B1.1; child 

pornography offenses372 under §§2G2.1, 2G2.2, and 

 

370 Immigration offenses include smuggling, transporting or 

harboring an unlawful alien, and unlawfully entering or 

remaining in the United States. These offenses are 

sentenced under USSG §2L1.1 (Smuggling, Transporting, 

or Harboring an Unlawful Alien) and USSG §2L1.2 

(Unlawfully Entering or Remaining in the United States). 

The Commission has previously reported that beginning in 

fiscal year 2009 immigration cases became the most 

common serious federal crime. See U.S. SENT’G COMM’N,

OVERVIEW OF FEDERAL CRIMINAL CASES FISCAL YEAR 

2009, at 1-2 (December 2010) (noting immigration cases 

comprised 32.2 percent of the federal caseload while drugs 

comprised 30.3 percent). However, that analysis was based 

on the defendant’s statute of conviction, not on the guideline 

applied at sentencing. 

371 Fraud offenses include theft, embezzlement, fraud, 

forgery, some counterfeiting offenses, some insider trading 

offenses, simple property damage and destruction, and a 

wide variety of federal statutes and assimilative crimes 

sentenced under USSG §2B1.1 (Larceny, Embezzlement, 

and Other Forms of Theft; Offenses Involving Stolen 

Property; Property Damage or Destruction; Fraud and 

Deceit; Forgery; Offenses Involving Altered or Counterfeit 

Instruments Other than Counterfeit Bearer Obligations of 

the United States) with a primary offense type of fraud 

sentenced under a Guidelines Manual effective November 

1, 2001 or later, or the former USSG §2F1.1 (Fraud and 

Deceit; Forgery; Offenses Involving Altered or Counterfeit 

Instruments Other than Counterfeit Bearer Obligations of 

the United States) (deleted by consolidation with §2B1.1 

effective November 1, 2001 (see USSG App. C, amend. 

617)). 

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BOOKER REPORT 2012: PART A 

2G2.4 (production and non-production); and the career 

offender guideline, §4B1.1. These analyses are 

discussed in detail in Part C of this report, available 

online. 

The data in this report necessarily differs in 

certain respects from the data published annually in 

the Commission’s Sourcebook of Federal Sentencing 

Statistics. In the Sourcebook, offenses are generally 

classified by the offense of conviction, whereas in this 

analysis, offenses are classified by the guideline 

applied at sentencing. These two methods of defining 

cases are both useful for research analysis; the choice 

of which method to use depends on the type of 

analysis to be undertaken. For this report, the 

Commission classified offenses by the guideline 

applied at sentencing because it enables several 

analyses. The guidelines take into account real offense 

conduct, such as the presence of a weapon, or the 

amount stolen in a robbery, that are not accounted for 

by mere reference to the statute of conviction.373 If, 

for example, an offender convicted of a drug 

trafficking offense engaged in conduct in which a 

victim was killed, that offender might be sentenced 

pursuant to the guideline applicable to homicide rather 

than drug trafficking.374 Such an offender’s sentence 

would not reflect the operation of the drug trafficking 

guideline, and therefore, including that sentence in the 

analysis of drug trafficking sentences would not 

contribute to an accurate analysis of the drug 

trafficking guideline. In summary, because the 

 

372 Child pornography offenses include the production, sale, 

distribution, transportation, shipment, receipt, or possession 

of materials involving the sexual exploitation of minors 

sentenced under USSG §2G2.1 (Sexually Exploiting a 

Minor by Production of Sexually Explicit Visual or Printed 

Material; Custodian Permitting Minor to Engage in Sexually 

Explicit Conduct; Advertisement for Minors to Engage in 

Production), USSG §2G2.2 (Trafficking in Material 

Involving the Sexual Exploitation of a Minor; Receiving, 

Transporting, Shipping, Soliciting, or Advertising Material 

Involving the Sexual Exploitation of a Minor; Possessing 

Material Involving the Sexual Exploitation of a Minor with 

Intent to Traffic; Possessing Material Involving the Sexual 

Exploitation of a Minor), or USSG §2G2.4 (Possession of 

Materials Depicting a Minor Engaged in Sexually Explicit 

Conduct) (deleted by consolidation with §2G2.2 effective 

November 1, 2004 (see USSG App. C, amend. 664)). 

373 See USSG Ch.1, Pt.A, intro. comment. (Nov. 2012). 

374 USSG §2D1.1(d) (cross references) (Nov. 2012). 

offender’s conduct ultimately determines the 

applicable sentencing range, classifying offenders by 

guideline rather than by statute of conviction facilitates 

a more precise analysis in which offenders engaged in 

similar criminal conduct are grouped together. 

Complete guideline information is required for 

most of the analyses in this report, and therefore cases 

with missing data were excluded from the analyses. 

As a result, statistics in this report differ from those 

reported in the Sourcebook. For example, in fiscal 

year 2011, the Commission received sentencing 

information on 86,201 cases.375 However, the 

Commission received sufficient documentation for the 

analyses in this report in 76,216 individual cases for 

fiscal year 2011, the last full fiscal year available. The 

Commission excluded 9,985 cases because those cases 

lacked the complete documentation needed for the 

analyses performed in this report. In 8,164 of those 

cases, the majority of which were illegal entry offenses 

from border districts, the court waived the presentence 

investigation report. As a result, those cases lacked 

certain guideline application and demographic 

information. The Commission excluded other cases in 

which the statement of reasons form and the 

presentence investigation report contained conflicting 

information concerning guideline application, and 

therefore, the Commission could not ascertain how the 

Chapter Two guideline was applied. 

In the additional parts of this report available 

online, each guideline-specific section begins with a 

brief discussion about the guideline and the statutes 

referenced to it, followed by detailed fiscal year 2011 

data regarding the caseload and its distribution across 

the circuits and districts. The single year data is 

followed by analyses of trends over time with respect 

to demographic characteristics and criminal history of 

the offenders, the types of sentence imposed, the 

sentence relative to the range (e.g., sentence length for 

within range, government sponsored below range, and 

non-government sponsored below range sentences), 

the rates of within and below range sentences, and the 

 

375 Title 28, United States Code, section 994(w) requires 

that the chief judge of every district ensure that within 30 

days of entry of judgment in every felony and Class A 

misdemeanor case, the sentencing court submit to the 

Commission: (1) the judgment and commitment order; (2) 

the statement of reasons for the sentence imposed; (3) the 

plea agreement, if any; (4) the indictment or other charging 

information; and (5) the presentence report (unless waived 

by the court). 

52
BOOKER REPORT 2012: PART A 

variation among the districts in the rates of below 

range sentences. 

In most instances, four periods are examined: 

the Koon period376 (June 13, 1996 through April 30, 

2003), the PROTECT Act period377 (May 1, 2003 

through June 24, 2004), the Booker period378 (January 

12, 2005 through December 10, 2007), and the Gall

period379 (December 11, 2007 through September 30, 

2011). The Commission selected these periods based 

on Supreme Court decisions and legislation that 

influenced federal sentencing in fundamental ways. 

Specifically, in United States v. Koon,

380 the Supreme 

Court defined the level of deference due district 

courts’ decisions to sentence outside the guideline 

range and determined that such decisions should be 

reviewed for abuse of discretion. In passing the 

PROTECT Act381 nearly seven years later, Congress 

restricted district courts’ discretion to impose 

sentences outside the guideline range, and required 

that courts of appeals review such decisions without 

deference to the decision of the district court. In 

 

376 The Koon period includes 333,564 offenders sentenced 

from June 13, 1996 through and including April 30, 2003 

for which the Commission has received complete 

information. 

377 The PROTECT Act period includes 67,554 offenders 

sentenced from May 1, 2003 through and including June 24, 

2004 for which the Commission has received complete 

information. Offenders sentenced after Blakely but before 

Booker are not included in this period. In Blakely v. 

Washington, decided on June 24, 2004, the Supreme Court 

invalidated a sentence imposed under Washington’s 

sentencing guidelines system. See Blakely v. Washington, 

542 U.S. 296 (2004). Following the Blakely decision, 

district and circuit courts voiced varying opinions on the 

implications of the decision for federal sentencing and no 

longer uniformly applied the sentencing guidelines. 

378 The Booker period includes 187,632 offenders sentenced 

from January 12, 2005 through and including December 10, 

2007 for which the Commission has received complete 

information. 

379 The Gall period includes 274,623 offenders sentenced 

from December 11, 2007 through and including September 

30, 2011 for which the Commission has received complete 

information. 

380 518 U.S. 81 (1996). 

381 Pub. L. No. 108-21 (Apr. 30, 2003). 

United States v. Booker,

382 the Supreme Court struck 

the statutory provisions that made the guidelines 

mandatory, and in United States v. Gall,

383 the court 

reiterated that the guidelines were no longer 

mandatory and further defined the appellate standard 

of review. 

A direct comparison across all four periods 

cannot always be made. Shortly before the enactment 

of the PROTECT Act in April 2003 the Commission 

changed the way it reports data on departures. Before 

the PROTECT Act, the Commission reported only two 

categories of below range sentences: “substantial 

assistance” and “other downward departures.”384 In its 

2003 report on departures under the sentencing 

guidelines, the Commission found that approximately 

40 percent of the “other downward departures” 

attributed to courts in fiscal year 2001 actually cited 

some benefit to the government as the reason for the 

departure in the sentencing documents.385 Such 

benefits included “waiver of indictment” and “early 

plea,” among others.386 The practice known as “fast 

track” had been used informally in some districts 

along the southwest border prior to the PROTECT Act 

but had been reported as an “other downward 

departure.” Prior to the PROTECT Act, the existence 

of only two departure categories resulted in an 

overstatement of the proportion of downward 

departures attributable solely to the courts and an 

understatement of the proportion of downward 

departures attributable to government sponsorship. 

The Commission subsequently refined its 

collection of below range sentence data to properly 

attribute the below range sentence either to the court or 

to the government. In addition, in the PROTECT Act, 

Congress authorized Early Disposition Programs 

(EDP) which authorize below range sentences for 

offenders in high-volume districts who agree to plead 

guilty and meet other criteria as determined by the 

United States Attorney. Such sentences now are 

reported as government sponsored below range 

 

382 543 U.S. 220 (2005). 

383 552 U.S. 38 (2007). 

384 See, e.g., U.S. SENT’G COMM’N, 2001 SOURCEBOOK, at 

51. 

385 U.S. SENT’G COMM’N, DEPARTURES REPORT at 59. 

386 Id. at 59 n.130. 

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BOOKER REPORT 2012: PART A 

sentences pursuant to USSG §5K3.1 (Early 

Disposition Programs (Policy Statement)). 

Consequently, the Koon period data is not as refined as 

the data from subsequent periods and as a result, in 

some instances, cannot be compared to data from the 

other periods. 

Box plots 

Offense specific data is presented, for the most 

part, in ways familiar to most readers. For example, 

information regarding the demographic characteristics 

of offenders, the sentence length, and sentence relative 

to the range is presented in table format. Information 

such as the rates of below range sentences is presented 

in bar graphs. However, information on the rates of 

government sponsored and non-government sponsored 

below range sentences, and the variation across 

districts in these rates, is presented in alternative ways, 

including using a box plot like the example plot above. 

A full explanation of how to read the box plot 

is provided in Part C of this report, available online. 

Each box plot depicts the spread in rates among the 

districts that engaged in the sentencing practice. The 

rate for each district is the percentage of all sentences 

imposed in a given district that are below range 

sentences (either government sponsored or nongovernment sponsored below range sentences). The 

spread is the variation in those rates among the 

districts that engaged in the sentencing practice. All 

districts in which the practice occurred (for example, 

all districts in which a non-government sponsored 

below range sentence was imposed for a fraud offense) 

are plotted along the vertical axis. If a district did not 

have any cases exhibiting the particular sentencing 

practice, then that district is not depicted on the box 

plot. 

The main value of the box plot is its depiction 

of the size and position of the box over time. These 

plots answer the question: excluding those districts 

that did not impose any such sentence (i.e., nongovernment sponsored below range sentences) and 

focusing only on those districts that did, what is the 

spread in rates over time? The top and bottom of the 

whiskers (vertical lines) show the highest (top) and 

lowest (bottom) rates of non-government sponsored 

below range rates. The boxes depict the rates and 

variation within the middle 50 percent of districts that 

imposed such sentences. Changes in the height of the 

box’s position along the vertical axis over the four 

periods depict at a glance whether the rates are 

increasing or decreasing among the middle 50 percent 

of districts that engaged in the practice, and the size of 

the box depicts the spread in rates among those 

districts that engaged in the practice. A higher box 

signifies that the sentencing practice occurred more 

54
BOOKER REPORT 2012: PART A 

often among the middle 50 percent of districts that 

engaged in the practice, a lower box signifies that the 

sentencing practice occurred less often. A smaller box 

means there is less spread (greater uniformity) among 

the middle 50 percent of districts that engaged in the 

practice, and a larger box means there is a greater 

spread (less uniformity). The districts depicted on the 

box plot, as well as which districts make up the 

particular portions of the box plot, may change across 

time periods. 

The “whiskers,” the vertical lines above and 

below the box, represent those districts that engaged in 

the sentencing practice more or less often than those 

districts depicted within the box. The district that had 

the highest rate marks the endpoint of the top whisker, 

and the district that had the lowest rate (but still 

engaged in the practice at least once) marks the 

endpoint of the bottom whisker. The “Max” and 

“Min” values listed in the table below the figure report 

the numerical rates for those districts at the top and 

bottom endpoints of the whisker. The districts in the 

whiskers are not necessarily evenly distributed along 

the axis and may cluster at any point along the axis. 

An appendix to this report, available online, lists all 94 

districts for each offense type and for each type of 

sentence, in order of their rates, highest to lowest. 

Bubble plots 

In addition to offense-specific data analyses, 

the Commission analyzed intra-district sentencing 

data. This analysis is presented in Part D of this report 

in the form of bubble plots for each of the 12 circuits 

and 94 districts. The methodology behind the plots is 

explained fully in Part D, available online. The bubble 

plots depict the rates of non-government sponsored 

below range sentences for each judge within a district. 

The bubble plot contains one circle (or “bubble”) for 

each judge who sentenced a felony or Class A 

misdemeanor offender during the relevant period. The 

position of the bubbles along the vertical axis indicates 

the judge’s rate of imposing non-government 

sponsored below range sentences. The spread in the 

distribution of all the bubbles on the plot illustrates the 

spread in rates of non-government sponsored below 

range sentences. 

The bubble for each judge is sized according 

to the judge’s overall caseload relative to the overall 

caseload of other judges within the district. The 

smallest overall caseloads may be represented by a 

dot, while the largest overall caseloads will have the 

largest bubbles. Often judges with the highest and 

lowest rates of non-government sponsored below 

range sentences had small overall caseloads relative to 

the other sentencing judges in the district. 

55
BOOKER REPORT 2012: PART A 

Scatter plots 

Following each bubble plot is a “scatter plot” 

depicting, for each judge in the district, the average 

extent of the reduction below the guideline minimum 

for that judge’s non-government sponsored below 

range sentences. Each triangle represents a judge who 

sentenced at least one offender in that district for a 

Class A misdemeanor or felony offense. The triangles 

in the scatter plot are of uniform size; unlike the 

bubble plots, they are not sized according to the 

judge’s caseload. These scatter plots answer the 

question: when a judge imposes a non-government 

sponsored below range sentence, how far below the 

guideline minimum is the sentence on average? The 

answer is expressed in terms of the percentage 

reduction below the guideline minimum: the triangle 

is placed along the vertical axis according to the 

average extent of reduction for that judge. It should be 

noted that some of the non-government sponsored 

below range sentences in the bubble plot were 

excluded from the corresponding scatter plot either 

because of missing sentence information, or because 

the offender’s guideline minimum was either life or 

zero.387 

 

387 Alternatively, a court may report that the defendant 

received a below range sentence but not provide the actual 

sentence imposed. In such a case, the extent of the 

departure below the range cannot be calculated. 

Sentencing Appeals 

This report also presents data on sentencing 

appeals, which the Commission has systematically 

collected from all 12 circuit courts since 1992. Each 

fiscal year, the Commission collects from all 12 circuit 

courts of appeals final dispositive decisions of direct 

criminal appeals in which the defendant has been 

convicted and sentenced.388 Where possible, the 

appellate case is linked to the original sentencing 

datafile on that offender in the Commission’s 

monitoring database so that the Commission can 

identify data about the defendant that may not be part 

of the appellate decision. 

Historically, the Commission used the data 

collected from appellate opinions to track the 

frequency with which guideline interpretation issues 

were appealed. After Booker, the Commission 

expanded its data collection to capture additional 

information on non-guidelines issues in sentencing 

appeals, such as arguments about whether the court 

properly considered offender characteristics under 

18 U.S.C. § 3553(a), or whether the sentence was 

substantively and procedurally reasonable. 

 

388 The Commission’s methodology for collecting and 

coding appeals cases is described in detail in Part C of this 

report, available online. 

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BOOKER REPORT 2012: PART A 

Multivariate Regression Analysis 

 The final data analysis presented is a 

multivariate regression analysis addressing whether 

differences in sentencing outcomes are correlated with 

offenders’ demographic characteristics. The 

Commission most recently published this analysis in 

its 2010 report titled Demographic Differences in 

Federal Sentencing Practices: An Update of the 

Booker Report’s Multivariate Regression Analysis.

389 

The Commission later updated its analysis with data 

through fiscal year 2010 for the testimony of 

Commission Chair Patti Saris before the 

Subcommittee on Crime, Terrorism, and Homeland 

Security of the Committee on the Judiciary, House of 

Representatives, in October 2011.390 For this report, 

the Commission has included data through fiscal year 

2011. 

Multivariate regression analysis usually begins 

with a decision to examine an observed phenomenon 

or outcome. For this analysis, the observed 

phenomenon was the difference in sentence length 

between offenders, specifically the fact that, among 

other differences, Black male offenders receive longer 

sentences than White male offenders. In this 

multivariate analysis, the Commission identified a 

number of factors that affect sentence length, such as 

the type of offense, the applicable guideline minimum, 

and whether the defendant remained subject to a 

mandatory minimum penalty at sentencing. Once the 

relevant factors were identified, the multivariate 

analysis controlled for those factors, meaning that 

offenders who were alike in relevant ways were 

compared to each other. This type of analysis seeks to 

answer the question: if two offenders are similar in 

certain ways, what other factors might be associated 

with those two offenders receiving different 

sentences? 

Multivariate regression analysis often does not 

control for all relevant factors because sufficient data 

is not always readily available. Judges make 

sentencing decisions based on many legally relevant 

considerations that are not accounted for in the 

Commission’s analysis. Judges may consider other 

 

389 U.S. SENT’G COMM’N, MULTIVARIATE REPORT, supra

note 10. 

390 2011 Chair Statement to Subcomm. on Crime, 

Terrorism, & Homeland Security, supra note 36. 

potentially relevant factors available to them at 

sentencing. For example, the presentence report may 

describe whether the offender’s history included 

violent criminal conduct or a long employment 

history; however, the Commission does not routinely 

extract that information from the sentencing 

documents it receives. Such factors, therefore, are not 

included in the Commission’s datafile, and therefore 

are not controlled for in this analysis. In addition, 

some commentators have stated that disparities in 

prosecutorial decisionmaking contribute to 

demographic differences in sentencing.391 The 

presumptive sentence as used in this analysis controls 

in a limited way for some prosecutorial decisions (for 

example the charging of mandatory minimum statutes 

or the government’s motion for a below range 

sentence). However, data to determine whether other 

aspects of prosecutorial decision making (for example, 

the decision not to prosecute an offense federally at 

all) contribute to demographic differences is not 

readily available and therefore the complete impact of 

prosecutorial decision making could not be controlled 

for in the multivariate analysis. For these reasons, the 

Commission’s analysis should be interpreted with 

caution and is not intended to suggest any racial or 

gender bias on the part of judges in making sentencing 

decisions. 

The Commission performed additional 

multivariate regression analyses to determine whether 

demographic differences in sentence length were 

present in any of three specific offense types for which 

 

391 For further discussion of demographic differences in 

prosecutorial decision making, see VERA Institute of 

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

Review of Empirical Studies (June 2012), available at 

http://www.vera.org/download?file=3532/race-andethnicity-in-prosecution-first-edition.pdf (reviewing 34 

studies analyzing the role of race and ethnicity in 

prosecutorial decision making). At least one researcher has 

attempted to measure through a multivariate analysis the 

contribution, if any, of prosecutorial decision-making to 

sentencing outcomes. See Sonja B. Starr, Estimating 

Gender Disparities in Federal Criminal Cases (U. Mich. L. 

& Econ. Research Paper Series, Paper No. 12-018, 2012), 

available at http://ssrn.com/abstract=2144002; M. Marit 

Rehavi & Sonja Starr, Racial Disparity in Federal Criminal 

Charging and Its Sentencing Consequences (U. Mich. L. & 

Econ. Working Paper Series, Paper No. 12-002, 2012), 

available at http://ssrn.com/abstract=1985377. 

57
BOOKER REPORT 2012: PART A 

there was a sufficiently diverse population to conduct 

the analysis: drug trafficking, firearms, and fraud. 

Other analyses in the report examined whether there 

were differences in sentence length depending on the 

position of the sentence relative to the range (i.e., 

within range, government sponsored below range, or 

non-government sponsored below range), and whether 

there were demographic differences in the likelihood 

of receiving a non-government sponsored below range 

sentences. The final multivariate analysis determined 

whether sentence length changed for certain 

demographic groups over the four periods, and if so, 

whether sentences for these groups were longer or 

shorter compared to past periods. 

ANALYSIS AND FINDINGS

A review of the table below indicates that 

beginning in the PROTECT Act period and continuing 

through the Gall period, the proportion of sentences 

within the guideline range generally has decreased, 

while the rates of both government sponsored and nongovernment sponsored below range sentences 

generally have increased. The extent of the reductions 

below the guideline minimum, however, has remained 

relatively stable. The table also shows that average 

sentences have decreased somewhat in the Gall period 

compared to the Booker period, which reflects a 

similar reduction in the average guideline minimum. 

These data points and others are discussed at length in 

the analysis that follows. 

58
BOOKER REPORT 2012: PART A 

The number of federal offenders has 

substantially increased, and most federal 

offenders have continued to receive substantial 

sentences of imprisonment.

The number of federal offenders and the 

percentage sentenced to imprisonment without any 

alternative to incarceration, such as home detention or 

community confinement, has increased over the 

periods studied in this report. In fiscal year 1996, 

there were 37,091 federal offenders, compared to 

76,216 in fiscal year 2011. In fiscal year 2011, 87.8 

percent of federal offenders were sentenced to serve a 

term of imprisonment without any alternative to 

incarceration, an increase from 76.9 percent in fiscal 

year 1996.392 As a result of these trends, the number 

of inmates housed by the federal Bureau of Prisons has 

more than doubled, from just below 100,000 in 1996, 

to more than 200,000 in 2011.393

For offenses in the aggregate, the average 

sentence was 49 months in the Koon period, 53 

months in the PROTECT Act period, 54 months in the 

Booker period, and 49 months in the Gall period. 

Average sentences have increased or decreased over 

time depending on the offense type. 

Immigration and drug trafficking offenses 

have comprised the majority of all federal offenses 

over the four periods. Immigration offenses have 

grown substantially as a percentage of the federal case 

load. Average sentences for illegal entry offenses 

were 32 months in the Koon period, 29 months in the 

PROTECT Act period, 26 months in the Booker

period, and 20 months in the Gall period. Average 

sentences have decreased in part because of 

amendments to the guidelines, and in part because of 

increasing rates of departures for offenders sentenced 

through an Early Disposition Program (EDP). EDP 

departure rates were 7.1 percent in the PROTECT Act 

 

392 The increase in incarceration rates over time was 

attributable in part to increasing numbers of immigration 

offenders, most of whom were not eligible to receive 

alternatives to incarceration because of their undocumented 

status. 

393 U.S. SENT’G COMM’N, 2011 MANDATORY MINIMUM 

REPORT at 76, supra note 17; U.S. Sent’g Comm’n Public 

Hearing on Federal Sentencing Options after Booker, 

Washington, DC (Feb. 16, 2012) (Testimony of Charles E. 

Samuels, Director, Federal Bureau of Prisons, transcript at 

30-32, written statement at 2). 

period, 26.2 percent in the Booker period, and 26.8 

percent in the Gall period. 

In drug trafficking offenses average sentences 

peaked during the Booker period (83 months) and 

decreased to 75 months during the Gall period, three 

months longer than average sentences during the Koon

period (72 months). Average sentences for firearm 

offenses have been the most consistent of any offense 

type, increasing by one month during each period, 

from 56 months in the Koon period, to 57 months in 

the PROTECT Act period, to 58 months in the Booker

period, and to 59 months in the Gall period. 

For two offense types, average sentences have 

increased markedly over time. In child pornography 

non-production offenses (including receipt, trafficking, 

and possession offenses) average sentences have 

increased significantly over the periods due to 

statutory changes, congressional directives to the 

Commission to increase guideline penalties, and 

Commission-initiated amendments. Average 

sentences for child pornography non-production 

offenses were 34 months in the Koon period, 47 

months in the PROTECT Act period, 82 months in the 

Booker period, and 93 months in the Gall period. 

Average sentences for fraud offenders have also 

increased, partly due to increases in offense 

seriousness (e.g., loss amounts) over time and partly 

due to guideline amendments increasing penalties. 

Average sentences for fraud offenses were 13 months 

in the Koon period, 16 months in the PROTECT Act 

period, 19 months in the Booker period, and 25 months 

in the Gall period. 

For career offenders, average sentences have 

decreased, even though the average guideline 

minimum has increased slightly. Average sentences 

for career offenders were 180 months in the Koon

period, 187 months in the PROTECT Act period, 184 

months in the Booker period, and 172 months in the 

Gall period. The decrease in sentence length for 

career offenders was attributable in part to the 

increasing rates of both government and nongovernment sponsored below range sentences in career 

offender cases. During the Koon period, 53.4 percent 

of career offenders were sentenced within the 

guideline range, and in the Gall period only 36.1 

percent of career offenders were sentenced within the 

guideline range. 

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BOOKER REPORT 2012: PART A 

The guidelines have remained the essential 

starting point for all federal sentences and have 

continued to influence sentences significantly. 

The Supreme Court has held that courts must 

begin the sentencing process by properly determining 

the applicable guideline range.394 Accordingly, the 

guidelines have continued to significantly influence 

sentences for most offenses. During the 

Gall period 80.7 percent of sentences 

were either within range or below range 

pursuant to a government motion.395 As 

seen in the line chart to the right, 

average sentences have continued to 

parallel average guideline minimums 

for offenses in the aggregate. That is, 

when the average minimum of the 

applicable guideline range has increased 

(due to guideline amendments, 

increases in offense seriousness, or 

increases in the criminal history of the 

offenders) the average sentence also has 

tended to increase, as evidenced by the 

close tracking between the blue and red 

lines. Where the two lines were closer 

together, the average sentence was closer to the 

average guideline minimum; where the two lines were 

farther apart, the reverse was true. 

The fact that there was distance between the 

two lines does not necessarily indicate that the 

guidelines lacked influence over sentences. Some 

sentences were lower than the guideline minimum due 

to substantial assistance or EDP below range 

sentences, which are guidelines-based and pursuant to 

specific statutory authority. Substantial assistance 

departures have occurred frequently in drug trafficking 

offenses (24.4% of drug trafficking offenses in the 

Gall period) and typically have led to the greatest 

reductions among government sponsored below range 

sentences (54 months, or 48.4% below the guideline 

minimum in the Gall period), therefore the average 

sentence has been noticeably lower than the average 

guideline minimum for those offenses. EDP 

departures have accounted for many below range 

sentences in immigration offenses (26.8% of illegal 

entry offenses in the Gall period), therefore average 

 

394 See Rita 551 U.S. at 351. 

395 See supra, p. 58, Table “Selected Sentencing 

Characteristics – All Offenses.” 

sentences were lower than average guideline 

minimums. However, EDP departures generally have 

resulted in much smaller sentence reductions than 

substantial assistance departures (10 months, or 30.0% 

below the guideline minimum for illegal entry offenses 

in the Gall period) and for this reason the distance 

between the two lines has been smaller in immigration 

offenses than in drug trafficking offenses. 

The degree to which the lines for the average 

guideline minimum and the average sentence have 

been parallel has reflected the degree of influence of 

the guidelines. Where the lines have diverged, as in 

the cases of fraud and child pornography (discussed 

below), the lack of parallelism suggests that the 

influence of the guidelines has diminished. Where the 

lines have been consistently parallel, as in drug 

trafficking, immigration, and firearms offenses 

(discussed below), the influence of the guidelines has 

remained relatively stable, even though the difference 

between the average sentence and the average 

guideline minimum may have been sizeable. 

The graph on the next page depicts an 

alternative way to view the parallelism between the 

guideline minimum and the sentence imposed. The 

single line illustrates the percentage difference 

between the average guideline minimum and the 

average sentence. A line below zero indicates that the 

average sentence was lower than the average guideline 

minimum. 

60
BOOKER REPORT 2012: PART A 

As the figure shows, the 

percentage difference has varied from a 

low of 10.2 percent below the guideline 

minimum in fiscal year 2004 to a high of 

17.9 percent below the guideline 

minimum in fiscal year 2011. There has 

been a general widening of the 

difference since fiscal year 2005, from 

13.1 percent in fiscal year 2005 to 17.9 

percent in fiscal year 2011. However, 

the line is relatively flat, indicating 

relative stability over time in the 

relationship between the average 

guideline minimum and the average 

sentence for offenses in the aggregate. 

61
BOOKER REPORT 2012: PART A 

The influence of the guidelines, as measured by 

the relationship between the average guideline 

minimum and the average sentence, has 

generally remained stable in drug trafficking, 

firearms, and immigration offenses. 

For drug trafficking, firearms, and 

immigration offenses (alien smuggling and illegal 

entry) the average guideline minimum and the average 

sentence have maintained a fairly consistent parallel 

relationship during all four periods, although there has 

been a slight divergence between the PROTECT Act 

and Gall periods.396

 

396 See “Percent Difference Between Average Guideline 

Minimum and Sentence Imposed, Fiscal Years 1996-2011” 

for each offense type, nationally and by circuit, in Part C 

online. For a more detailed discussion of the relevant 

legislative and guidelines changes for these offenses, see

Part C, available online. 

The influence of the guidelines has remained 

stable for drug trafficking offenses generally.397 The 

average guideline minimum for drug trafficking 

offenses increased from 89 months in the Koon period 

to 96 months in the PROTECT Act period and 101 

months in the Booker period, but then decreased to 95 

months in the Gall period. The same trend occurred 

with average sentence length, which increased from 72 

months in the Koon period to 81 months in the 

PROTECT Act period and 83 months in the Booker

period, but decreased to 75 months in the Gall period.

 

397 The drug trafficking guidelines incorporate statutory 

mandatory minimum penalties where applicable. For a 

more detailed discussion of this topic, see Part C, available 

online. 

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BOOKER REPORT 2012: PART A 

63
BOOKER REPORT 2012: PART A 

 

64
BOOKER REPORT 2012: PART A 

65
BOOKER REPORT 2012: PART A 

As seen in the line charts on the preceding 

page, the average sentence was notably further below 

the average guideline minimum in drug trafficking 

offenses than in firearms and immigration offenses. 

This was due, in part, to higher rates of government 

sponsored below range sentences based on substantial 

assistance for drug trafficking offenses than for other 

offenses. In drug trafficking offenses, rates of 

substantial assistance below range sentences were 29.3 

percent during the Koon period, 27.0 percent during 

the PROTECT Act period, 26.1 percent during the 

Booker period, and 24.4 percent during the Gall 

period. 

In contrast, in firearms offenses, 

substantial assistance below range rates 

were 11.7 percent during the Koon

period, 11.4 percent during the 

PROTECT Act period, 9.4 percent 

during the Booker period, and 8.8 

percent during the Gall period. In alien 

smuggling offenses, rates of substantial 

assistance below range sentences were 

less than ten percent during all periods. 

In illegal entry offenses, rates of 

substantial assistance below range 

sentences have never exceeded two 

percent. 

In addition to the rate of below 

range sentences, the extent of the 

reduction below the guideline minimum 

for drug trafficking offenses has 

contributed to the distance between the 

red and blue lines. Substantial 

assistance below range sentences have 

been nearly 50 percent below the 

average guideline minimum (49.3% in 

the Koon period, 46.8% in the 

PROTECT Act period, 46.5% in the 

Booker period, and 48.4% in the Gall

period), which has amounted to 

reductions of between 52 and 54 

months, substantially larger than 

reductions for other types of below 

range sentences. 

The Commission also examined 

individual drug types, and analyses for 

each are in Part C, available online. In crack cocaine 

trafficking offenses, sentences have diverged from the 

average guideline minimum during the past few years. 

However, reduced penalties for crack cocaine 

offenders, resulting from the Fair Sentencing Act of 

2010 and the guideline amendments in response to 

it,398 may have slowed the divergence. In fiscal year 

2010, the average sentence for crack cocaine 

trafficking offenders was 23.8 percent below the 

average guideline minimum. This was the largest 

percent difference between the average guideline 

minimum and the average sentence dating back to 

fiscal year 1996. In contrast, the average sentence 

during 2011 was 22.3 percent below the average 

guideline minimum. The change is small, and it may 

be too soon to determine whether reduced penalties for 

crack cocaine trafficking offenses might bring average 

sentences closer to the guideline minimum. 

 

398 See USSG App. C, amend. 748 (effective Nov. 1, 2010) 

and 750 (effective Nov. 1, 2011). 

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BOOKER REPORT 2012: PART A 

The influence of the guidelines, as measured by 

the relationship between the average guideline 

minimum and the average sentence, has 

diminished in fraud and child pornography 

offenses. 

In contrast to drug trafficking, firearms, and 

immigration offenses, for fraud and child pornography 

non-production offenses (which include receipt, 

trafficking, and possession offenses) the average 

guideline minimum and the average sentence have not 

consistently paralleled one another over time, and the 

divergence between the two has increased since fiscal 

year 2004 in the case of fraud offenses, and since 

fiscal year 2005 in the case of child pornography nonproduction offenses. Average guideline minimums for 

these two offense types have increased over time as a 

result of statutory changes, including congressional 

directives to the Commission, guideline amendments, 

and the seriousness of the offenses. 

 With respect to fraud offenses, the average 

guideline minimum has more than doubled from 14 

months during the Koon period to 30 months during 

the Gall period. The average sentence also has nearly 

doubled from 13 months during the Koon period to 25 

months during the Gall period, but during the past few 

years the average guideline minimum has increased at 

a faster rate than the average sentence. For example, 

between fiscal years 2009 and 2010, the average 

sentence remained flat, while the average guideline 

minimum increased. 

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BOOKER REPORT 2012: PART A 

With respect to child pornography nonproduction offenses, the recent divergence between the 

average guideline minimum and the average sentence 

has been even more pronounced. The average 

guideline minimum for child pornography nonproduction offenses has increased steadily over time in 

large part due to statutory changes implemented 

between 1997 and the enactment of the PROTECT Act 

of 2003, and the guideline amendments in response to 

it. The average guideline minimum has more than 

tripled from 36 months in the Koon period to 115 

months in the Gall period. For many years the average 

sentence continued to track closely these sharp 

increases in the average guideline minimum. As the 

average guideline minimum has continued to increase 

through the Booker and Gall periods, however, the 

average sentence increasingly has diverged from the 

guideline minimum. Whereas the average sentence 

was 34 months during the Koon period (two months 

less than 

the average guideline minimum), the average sentence 

was 93 months during the Gall period (22 months less 

than the average guideline minimum). A graphical 

depiction of the average guideline minimum compared 

to the average sentence reveals that, as the average 

guideline minimum for child pornography nonproduction offenses has increased during the Booker

and Gall periods, the average sentence has remained 

relatively flat by comparison. 

In sum, during all four periods, the influence of 

the guidelines has remained relatively stable in drug 

trafficking, firearms, and immigration offenses, while 

in fraud and child pornography non-production 

offenses, the average sentence increasingly has 

diverged from the average guideline minimum during 

the Booker and Gall periods. 

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BOOKER REPORT 2012: PART A 

For most offense types, the rate of within range 

sentences has decreased while the rate of below 

range sentences (both government sponsored 

and non-government sponsored) has increased 

over time. 

For most offenses studied, rates of within 

range sentences have decreased while rates of below 

range sentences, particularly non-government 

sponsored below range sentences, have increased.399 

While average sentences have tended to parallel the 

average guideline minimum, courts have imposed 

more non-government sponsored below range 

sentences, resulting in a widening gap between the 

average guideline minimum and the average sentence. 

A review of quarterly data for offenses in the 

aggregate illustrates this trend. The notable decrease 

in non-government sponsored below range sentences 

between fiscal years 2002 and 2003 was due primarily 

to the change in the way the Commission reported data 

on departures shortly before enactment of the 

PROTECT Act.400 EDP departures in immigration 

offenses have increased, and immigration offenses 

have increased as a proportion of the federal case load. 

For example, in fiscal year 2003 there were 10,722 

immigration offenses. That number increased to 

11,113 in fiscal year 2004, and more than doubled to 

23,810 in fiscal year 2011. 

 

399 See Figures, “Quarterly Data for Within-Range and Outof-Range Sentences” in Part C, available online. 

400 See supra at 53-54 (discussing changes in Commission 

collection methodology). 

Even in drug trafficking, firearms, and 

immigration offenses, where the line graphs of the 

average guideline minimum and average sentence 

have shown a relatively stable relationship,401 the rates 

of non-government sponsored below range sentences 

increased during the Gall period, while rates of within 

range sentences decreased. The line graphs on the 

following pages depict quarterly data on within range 

and out of range sentences for drug trafficking (in the 

aggregate and by each major drug type), firearms, and 

immigration offenses. 

In drug trafficking offenses, rates of within 

range sentences decreased throughout the Booker and 

Gall periods from a high during the PROTECT Act 

period. Rates of within range sentences in drug 

trafficking offenses were 55.8 percent during the Koon

period, 63.3 percent during the PROTECT Act period, 

53.7 percent during the Booker period, and 47.8 

percent during the Gall period. Rates of both 

government sponsored and non-government sponsored 

below range sentences have generally increased during 

those periods. Rates of substantial assistance below 

range sentences decreased from 29.3 percent during 

the Koon period, to 27.0 percent during the PROTECT 

Act period, 26.1 percent during the Booker period, and 

24.4 percent during the Gall period. Rates of EDP 

below range sentences, on the other hand, have 

increased over the three periods during which they 

were available, from 1.0 percent in the PROTECT Act 

period, to 4.9 percent in the Booker

period, to 5.3 percent in the Gall period. 

Even though EDP departures have been 

available in only a small number of 

districts until recently (Southern 

California, Arizona, and New Mexico 

had the highest rates) EDP departures 

have contributed to an overall increase in 

the rate of government sponsored below 

range sentences. The rates of other 

government sponsored below range 

sentences were 3.7 percent in the 

PROTECT Act period, 3.0 percent in the 

Booker period, and 4.1 percent in the 

Gall period. 

Non-government sponsored 

below range rates for drug trafficking offenses 

increased during the Booker and Gall periods. Those 

rates were 14.2 percent during the Koon period, 4.7 

 

401 See e.g., supra at 62, “Average Guideline Minimum and 

Sentence Imposed – Drug Trafficking Offenses.” 

69
BOOKER REPORT 2012: PART A 

percent during the PROTECT Act 

period, 11.7 percent during the Booker

period, and 17.6 percent during the Gall

period. Rates of non-government 

sponsored below range sentences were 

lowest during the PROTECT Act 

period, whereas government sponsored 

below range sentences increased during 

that period, reflecting, in part, the 

change in the manner in which the 

Commission collected and attributed 

below range sentences.402

Even though rates of both 

government sponsored and nongovernment sponsored below range 

sentences have increased for drug 

trafficking offenses, the extent of the 

reduction below the guideline minimum has not 

changed markedly over time. The average extent of 

reduction for government sponsored below range 

sentences varied from an average reduction of 51 

months (49.2% below the average guideline minimum) 

during the Koon period, to an average reduction of 46 

months (45.2% below the average guideline minimum) 

during the Gall period. Reductions in nongovernment sponsored below range sentences ranged 

from an average reduction of 22 months (40.4% below 

the average guideline minimum) during the Koon 

period, to an average reduction of 28 months (34.3% 

below the average guideline minimum) during the Gall

period. 

 

 

402 See supra at 53-54 (discussing changes in Commission 

collection methodology). 

Examination of the same 

figures by drug type illustrates 

differences in rates of within range, 

government sponsored below range, 

and non-government sponsored below 

range sentences, depending on the type 

of drug involved in the offense. Of all 

drug types, the pattern for powder 

cocaine trafficking offenses was most 

similar to the pattern for all drugs 

combined. Marijuana was the only 

drug type in which the within range rate 

remained relatively stable during the 

Booker and Gall periods. 

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BOOKER REPORT 2012: PART A 

In crack cocaine trafficking 

offenses, as with all drugs, rates of 

within range sentences have decreased 

markedly after the PROTECT Act 

period. Between 2008 and 2010 there 

was an additional decrease in within 

range rates, and a corresponding 

increase in rates of non-government 

sponsored below range sentences. 

Within range rates increased and nongovernment sponsored below range 

rates decreased between fiscal years 

2010 and 2011, perhaps in response to 

statutory changes and guideline 

amendments reducing penalties for 

crack cocaine trafficking offenders. 

In heroin trafficking offenses, 

within range rates have decreased 

markedly since Booker and have 

generally declined through fiscal year 

2011. In heroin trafficking offenses, 

rates of both government sponsored and 

non-government sponsored sentences 

have increased. During fiscal year 2010 

the rate of non-government sponsored 

below range sentences exceeded the rate 

of government sponsored below range 

sentences. 

Of the five major drug types, 

marijuana trafficking offenses had the 

lowest average guideline minimums. 

For each of the four periods, the average 

guideline minimum for marijuana 

trafficking offenses never exceeded 50 

months, compared to average guideline 

minimums of not less than 93 months 

for powder cocaine trafficking, not less 

than 138 months for crack cocaine 

trafficking, not less than 74 months for 

heroin trafficking, and not less than 112 

months for methamphetamine 

trafficking. Marijuana trafficking 

offenses also had the lowest rates of 

non-government sponsored below range 

sentences of all the drug types, and the 

smallest decline in rates of within range 

sentences. The rate of government 

sponsored below range sentences 

increased markedly between fiscal years 

71
BOOKER REPORT 2012: PART A 

2002 and 2003, while the rate of non-government 

sponsored below range sentences decreased. This 

marked change occurred at least in part because of the 

change in the way the Commission reported its 

departure data in the first quarter of fiscal year 2003 to 

better account for downward departures attributable to 

the government, including Early Disposition Program 

departures (commonly referred to as “fast-track” 

departures).403 Three districts appeared to have EDP 

programs in marijuana trafficking offenses: Southern 

California, Arizona and New Mexico had the highest 

rates during the PROTECT Act, Booker, and Gall

periods. In Southern California, for example, 69.6 

percent of marijuana trafficking offenders received 

EDP departures during the Gall period. 

Methamphetamine was the only 

drug type for which rates of 

government sponsored below range 

sentences have exceeded rates of within 

range sentences. This first occurred in 

fiscal year 2009. The rate of 

government sponsored below range 

rates has been relatively stable, whereas 

the rate of non-government sponsored 

below range sentences has increased 

more markedly, causing most of the 

reduction in within range rates. 

 

403 See supra, discussion at 53-54. 

 In firearms offenses, the rate of within range 

sentences has remained high relative to other offenses, 

but it has decreased over time. Within range rates 

were 75.1 percent during the Koon period, 79.7 

percent during the PROTECT Act period, 70.6 percent 

during the Booker period, and 62.9 percent during the 

Gall period. In contrast, non-government sponsored 

below range rates were 11.9 percent during the Koon

period, 6.5 percent during the PROTECT Act period, 

14.6 percent during the Booker period, and 21.1 

percent during the Gall period. 

As with drug trafficking offenses, firearms 

offenses have shown consistency in the extent of the 

reduction below the guideline minimum. During the 

Koon period, the average extent of the reduction in 

government sponsored below range sentences was 26 

months (51.0% below the average 

guideline minimum), and in the Gall 

period the average extent of reduction 

was 28 months (45.2% below the 

average guideline minimum). Firearms 

offenses have also shown consistency in 

the extent of the reduction below the 

guideline minimum for non-government 

sponsored below range sentences. The 

average non-government sponsored 

below range reduction was 18 months 

(42.2% below the average guideline 

minimum) during the Koon period and 

17 months (39.4% below the average 

guideline minimum) during the Gall

period. 

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BOOKER REPORT 2012: PART A 

In illegal entry offenses, the rate 

of within range sentences has decreased 

most notably during the PROTECT Act 

period, and to a lesser degree during the 

Gall period. However, the rates of 

government sponsored below range 

sentences have substantially increased 

because of EDP departures, accounting 

for the large change during the 

PROTECT Act period. The marked 

increase in the rate of government 

sponsored below range sentences in 

illegal entry offenses between fiscal 

years 2002 and 2003, and the 

corresponding decrease in nongovernment sponsored below range 

sentences, were attributable to the 

increased use of EDP programs, as well as to the 

change in the way the Commission reported its 

departure data beginning in the first quarter of fiscal 

year 2003 to account for this. 404 

As with drug trafficking and firearms offenses, 

illegal entry offenses have shown consistency in the 

extent of the reduction below the guideline minimum. 

During the Koon period, the average extent of the 

reduction in government sponsored below range 

sentences was 13 months (28.7% below the average 

guideline minimum), and in the Gall period the 

average extent of the reduction was 10 months (30.4% 

below the average guideline minimum). Illegal entry 

offenses also show consistency in the extent of the 

reduction below the guideline minimum for non-

 

404 See supra at 53-54 (discussing changes in Commission 

collection methodology). 

government sponsored below range sentences. The 

average non-government sponsored below range 

reduction was 16 months (33.2% below the average 

guideline minimum) during the Koon period and 12 

months (35.7% below the average guideline minimum) 

during the Gall period. 

Sentencing in child pornography nonproduction offenses has been markedly different from 

any other offense type. In recent years, the rates of 

non-government sponsored below range sentences 

have exceeded within range rates. During the Gall 

period, 41.1 percent of sentences were within the 

range, and 44.0 percent of sentences were nongovernment sponsored below range sentences. 

 As Congress has enacted higher penalties for 

child pornography non-production 

offenses, the average extent of the 

reduction for both government 

sponsored and non-government 

sponsored below range sentences has 

increased substantially in terms of 

months (but not as a percentage 

reduction below the guideline 

minimum). The average extent of the 

reduction for government sponsored 

below range sentences was 16 months 

(57.2% below the average guideline 

minimum) during the Koon period, but 

increased to 47 months (42.2% below 

the average guideline minimum) during 

the Gall period. For non-government 

sponsored below range sentences in 

child pornography non-production offenses, the 

average reduction was 15 months (55.7% below the 

73
BOOKER REPORT 2012: PART A 

average guideline minimum) during the Koon period, 

but was 44 months (40.4% below the average 

guideline minimum) during the Gall period. 

The within range rate for career offenders has 

decreased substantially since Booker. More than onethird (36.7%) of career offenders received government 

sponsored below range sentences during the Gall

period, and more than one-quarter (26.4%) received

 non-government sponsored below range sentences. 

The extent of the reduction for career offenders was 

also substantial. Government sponsored below range 

sentences led to average reductions of 96 months 

(43.1% below the guideline minimum), and nongovernment sponsored below range sentences led to 

average reductions of 69 months (32.4% below the 

guideline minimum) in the Gall period. 

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BOOKER REPORT 2012: PART A 

The influence of the guidelines, as measured by 

the relationship between the average guideline 

minimum and the average sentence, has varied 

by circuit.

For offense types in the 

aggregate, the average sentence largely 

has paralleled the average guideline 

minimum in the majority of circuits, but 

the degree of divergence between the 

two has varied from circuit to circuit.405 

The line graphs illustrate the different 

trends. For example, in the Fourth 

Circuit, average sentences have 

generally paralleled average guideline 

minimums. 

 

405 The sentencing scale for all circuit level analyses is 

consistent within each offense type, although it varies from 

offense type to offense type. For instance, the top of the 

scale for the chart that depicts all offenses is 120 months in 

order to accommodate the circuit with the highest average 

guideline minimum or average sentence. The top of the 

scale for fraud, however, is 50 months because average 

sentences are lower in fraud offenses. Using the same scale 

for the same offense type facilitates comparisons between 

the circuits. 

75
BOOKER REPORT 2012: PART A 

However, in the Third Circuit a 

greater divergence between average 

guideline minimums and average 

sentences appeared between fiscal years 

2008 and 2009, when a sharp increase in 

the average guideline minimum was met 

with only a modest increase in average 

sentence length.406

 

406 Charts depicting the percentage difference between the 

average guideline minimum and the average sentence 

imposed for each circuit by offense type are provided in Part 

C, available online. 

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BOOKER REPORT 2012: PART A 

Greater differences appeared 

among the circuits when sentencing data 

was analyzed by offense type. For 

example, in fraud offenses, the percent 

difference between the average 

guideline minimum and the average 

sentence has varied. In the Fourth 

Circuit, average guideline minimums 

and average sentences for fraud offenses 

have continued to increase and decrease 

in tandem, with the exception of a small 

divergence beginning in fiscal year 

2009. 

77
BOOKER REPORT 2012: PART A 

 

In contrast, in the Second 

Circuit, changes in averages sentences 

have not paralleled changes in average 

guideline minimums over time. 

Average guideline minimums have 

increased at a much greater rate than 

average sentences since fiscal year 

2005. Moreover, in fiscal year 2011, 

the average guideline minimum 

decreased slightly, while the average 

sentence increased slightly. 

78
BOOKER REPORT 2012: PART A 

In child pornography nonproduction offenses in the Tenth 

Circuit, the relationship between the 

average guideline minimum and the 

average sentence may be diminishing 

as average sentences have remained 

below the average guideline minimum 

since fiscal year 2006. Nonetheless, in 

the Tenth Circuit, average sentences 

have continued to track average 

guideline minimums. 

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BOOKER REPORT 2012: PART A 

In all of the other circuits, 

average sentences have not increased to 

the same extent as average guideline 

minimums during the Booker period and 

continuing through the Gall period. In 

the Second Circuit, average sentences 

have demonstrated little relationship 

with average guideline minimums since 

fiscal year 2006. 

80
BOOKER REPORT 2012: PART A 

Even in firearms offenses, 

where the relationship between the 

average guideline minimum and 

average sentence has been relatively 

stable nationally, the degree of 

parallelism has varied by circuit. For 

example in the Fifth Circuit, average 

sentences have continued to track 

changes in average guideline 

minimums. 

81
BOOKER REPORT 2012: PART A 

In contrast, in the Third 

Circuit average sentences have 

diverged from average guideline 

minimums since fiscal year 2009. 

82
BOOKER REPORT 2012: PART A 

In illegal entry offenses, the 

average guideline minimum and 

average sentence have been parallel in 

most circuits over time. Even so, 

differences can be seen in the Fifth 

and Ninth Circuits, which have large 

immigration caseloads. In the Fifth 

Circuit, average sentences have nearly 

equaled average guideline minimums 

during each fiscal year. 

83
BOOKER REPORT 2012: PART A 

In contrast, in the Ninth Circuit, 

average sentences have been much 

lower than average guideline 

minimums. This was likely attributable 

to the fact that more districts with high 

immigration caseloads had EDP 

programs in the Ninth Circuit than in 

the Fifth Circuit. 

84
BOOKER REPORT 2012: PART A 

In offenses sentenced under 

the career offender guideline, the 

relationship between the average 

guideline minimum and average 

sentence has fluctuated over time. In 

the Fourth Circuit, the relationship 

has been relatively stable. 

85
BOOKER REPORT 2012: PART A 

In the First Circuit, however, 

average sentences have not tracked 

average guideline minimums since 

fiscal year 2004. 

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BOOKER REPORT 2012: PART A 

The influence of the guidelines, as measured by 

within range rates, has varied by circuit.

Although for most offense 

types the rates of within range 

sentences have decreased, the degree of 

decrease and the prevalence of nongovernment and government sponsored 

below range sentences have varied by 

circuit. For example, in the First 

Circuit, within range rates for drug 

trafficking offenses have consistently 

exceeded rates of both government and 

non-government sponsored below range 

sentences.

In contrast, in the Second 

Circuit, in fiscal year 2009 the within 

range rate for drug trafficking offenses 

was lower than both the government 

sponsored below range rate and nongovernment sponsored below range rate, 

primarily due to an increase in nongovernment sponsored below range 

sentences. 

Likewise, in fraud and child 

pornography offenses, within range rates 

have also decreased in a non-uniform 

fashion across circuits. For fraud 

offenses in the First Circuit, the majority 

of sentences have been within range, 

whereas in the Second Circuit in fiscal 

year 2011, within range rates were less 

than 40 percent, and for the first time 

non-government sponsored below range 

rates exceeded within range rates. 

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BOOKER REPORT 2012: PART A 

The Second Circuit was the only 

circuit in which non-government 

sponsored below range rates have 

exceeded within range rates in fraud 

offenses. 

In child pornography nonproduction offenses (including receipt, 

trafficking and possession offenses) the 

Fifth Circuit was the only circuit in 

which the within range rate has 

exceeded the non-government sponsored 

below range rate throughout the entire 

Gall period. As reflected in the line 

graph, however, if the current trend 

continues, within range rates will be 

lower than non-government sponsored 

below range rates in the near future. 

In all other circuits, nongovernment sponsored below range rates 

exceeded within range rates by the end 

of the Gall period. In the Ninth Circuit, 

non-government sponsored below range 

rates exceeded within range rates in 

fiscal year 2009. 

 In sum, differences among the 

circuits in the stability of the 

relationship between average sentences 

and average guideline minimums, and 

differences in within range sentencing 

rates, have demonstrated growing 

sentencing disparities. 

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BOOKER REPORT 2012: PART A 

The rates of non-government sponsored below 

range sentences have increased in most districts 

and the variation in such rates across districts 

for most offenses was greatest in the Gall period, 

indicating that sentencing outcomes increasingly 

depend upon the district in which the defendant 

is sentenced. 

For most offense types, the spread in the rates 

of non-government sponsored below range sentences 

among districts was greatest during the Gall period, 

indicating growing disparity in district practices. The 

box plot of non-government sponsored below range 

rates for all offenses exhibits this pattern. The Koon

period is not directly comparable to the other periods 

because during that period the Commission attributed 

some below range sentences to the court as “other 

downward departures,” whereas the sentencing 

documents indicated some benefit to the government. 

The Commission would now attribute such a sentence 

to the government according to the coding and 

reporting practices implemented just before enactment 

of the PROTECT Act.407 

This trend of increasing spread in rates of nongovernment sponsored below range sentences was also 

apparent with respect to specific offense types. The 

 

407 See supra at 53-54 (discussing changes in Commission 

collection methodology). 

following box plots depict the spread among districts 

in rates of non-government sponsored below range 

sentences for drug trafficking and firearms offenses. 

The rising position of the box along the vertical axis in 

the plots reflects that non-government below range 

rates have increased over time for drug trafficking and 

firearms offenses. Further, the increasing size of the 

box shows that the spread in the rates has also 

increased over time, and was largest during the Gall

period. 

In drug trafficking offenses, courts imposed 

non-government sponsored below range sentences in 

81 districts during the PROTECT Act period, and in 

all 94 districts during both the Booker and Gall

periods. The spread was smallest, and the rates of 

non-government sponsored below range sentences 

were lowest, during the PROTECT Act period. 

During the PROTECT Act period, for example, among 

the districts with the lowest rates within the box was 

Middle Pennsylvania, which had a non-government 

sponsored below range rate of 1.8 percent. Among the 

districts with the highest rates within the box was 

Minnesota, with a rate of 5.3 percent. Both districts 

sentenced just over 220 drug trafficking offenders 

during this period, and the difference in the rates was 

3.5 percentage points. The spread was greatest, and 

the rates of non-government sponsored below range 

rates were highest, during the Gall period. Southern 

Mississippi, for example, sentenced 320 drug 

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BOOKER REPORT 2012: PART A 

trafficking offenders during the Gall period and had a 

rate of 11.6 percent non-government sponsored below 

range sentences, whereas Western Michigan sentenced 

519 drug offenders during that same period and had a 

rate of 22.2 percent non-government sponsored below 

range sentences, a 10.6 percentage point difference. 

Large increases in the rates of nongovernment sponsored below range sentences within 

individual districts have contributed to the increasing 

spread in non-government sponsored below range 

rates in drug trafficking offenses. For example, in 

Southern Ohio, rates of non-government sponsored 

below range sentences were 6.1 percent during the 

PROTECT Act period, 14.1 percent during the Booker 

period, and 23.0 percent during the Gall period. In 

Middle Pennsylvania, the non-government sponsored 

below range rates were 1.8 percent during the 

PROTECT Act period, 10.4 percent during the Booker 

period, and 20.3 percent during the Gall period. In 

Eastern Tennessee, a district with relatively low rates 

of non-government sponsored below range sentences 

in drug trafficking offenses, rates increased from 2.2 

percent during the PROTECT Act period, to 6.8 

percent during the Booker period, and 12.4 percent 

during the Gall period. 

In firearms offenses courts imposed nongovernment sponsored below range sentences in 82 

districts during the PROTECT Act period, and in 93 

districts during the Booker and Gall periods. Both the 

spread and the rates among the middle 50 percent of 

districts were greatest during the Gall period. During 

the PROTECT Act period, for example, among the 

districts with the lowest rates within the box was 

Western Virginia, which had a non-government 

sponsored below range rate of 3.6 percent. Among the 

districts with the highest rates within the box was 

Wyoming, with a rate of 9.4 percent. Western 

Virginia sentenced 84 firearms offenders during the 

PROTECT Act period, Wyoming sentenced 64, and 

the spread between the two districts was 5.8 

percentage points. During the Gall period, Northern 

Oklahoma, for example, sentenced 162 firearms 

offenders and had a rate of 16.0 percent nongovernment sponsored below range sentences, 

whereas Wyoming sentenced 156 firearms offenders 

during that same period and had a rate of 26.9 percent 

non-government sponsored below range sentences, 

nearly 11 percentage points higher than the rate in 

Northern Oklahoma. 

Substantial increases in the rates of nongovernment sponsored below range sentences within 

individual districts have contributed to an increased 

spread in rates in firearms offenses. For example, in 

Eastern Michigan, rates of non-government sponsored 

below range sentences were 8.0 percent during the 

PROTECT Act period, 18.2 percent during the Booker 

period, and 26.9 percent during the Gall period. In 

Western Virginia, the rates were 3.6 percent during the 

PROTECT Act period, 12.3 percent during the Booker 

period, and 24.5 percent during the Gall period. In 

Eastern Pennsylvania, the rates were 4.0 percent 

during the PROTECT Act period, 19.2 percent during 

the Booker period, and 28.3 percent during the Gall 

period. In contrast, in South Carolina, a district with 

relatively low rates of non-government sponsored 

below range sentences in firearms offenses, rates 

increased from 1.3 percent during the PROTECT Act 

period, to 10.9 percent during the Booker period, and 

16.6 percent during the Gall period. South Carolina 

sentenced 534 firearms offenders during the Booker

period and 699 firearms offenders in the Gall period. 

The same trend was evident in fraud 

offenses408 where the number of districts with nongovernment sponsored below range sentences 

increased from 69 districts in the PROTECT Act 

period, to 92 districts in the Booker period, to 93 

districts in the Gall period. During the Gall period, 

 

408 Box plots for fraud offenses are in Part C, available 

online. 

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BOOKER REPORT 2012: PART A 

the middle 50 percent of districts had higher nongovernment sponsored below range rates and more 

variation than in previous periods. In Northern 

Georgia, for example, rates of non-government 

sponsored below range sentences more than tripled 

from the PROTECT Act period to the Gall period. In 

the PROTECT Act period, the rate was 8.3 percent, in 

the Booker period it was 17.1 percent, and in the Gall

period, it was 27.5 percent. Likewise, rates of nongovernment sponsored below range sentences in fraud 

offenses in the district of Utah increased 

tremendously, from 4.0 percent during the PROTECT 

Act period, to 18.5 percent in the Booker period, to 

27.7 percent in the Gall period. 

In illegal entry offenses,409 the spread in the 

rates of non-government sponsored below range 

sentences also was greatest in the Gall period. 

Further, the increase in the number of districts 

reporting non-government sponsored below range 

sentences was more marked: 54 districts in the 

PROTECT Act period, 79 districts in the Booker

period, and 92 districts during the Gall period. Similar 

increases in the number of districts reporting nongovernment sponsored below range sentences occurred 

in career offender cases: there were 52 districts in the 

PROTECT Act period, 86 districts in the Booker

period, and 89 districts in the Gall period. 

In child pornography non-production offenses 

(including trafficking, receipt, and possession 

offenses)410 a relatively small number of districts 

(N=39) reported non-government sponsored below 

range sentences during the PROTECT Act period, 

when Congress enacted broad restrictions on below 

range sentences in these types of cases. In contrast, 

during the Gall period, 91 districts reported nongovernment sponsored below range sentences.411 

 

409 Box plots for illegal entry offenses are in Part C, 

available online. 

410 Box plots for child pornography non-production 

offenses are in Part C, available online. 

411 During the PROTECT Act period, judges in 39 districts 

imposed non-government sponsored below range sentences, 

whereas judges in many more districts did so during the 

other periods. (Koon period N=88; Booker period N=83; 

Gall period N=91). This may reflect the fact that Congress 

specifically prohibited departures in child sexual 

exploitation cases in the PROTECT Act period. The 

PROTECT Act amended 18 U.S.C. § 3553(b) to permit the 

sentencing court to impose a sentence below the applicable 

Of all of the offense types studied, child 

pornography non-production offenses had the highest 

rates of non-government sponsored below range 

sentences among the middle 50 percent of districts. 

Furthermore, of the offense types studied, child 

pornography non-production offenses had the greatest 

spread among the middle 50 percent of districts, at 

24.3 percentage points in the Gall period.412 This 

compared to spreads of 19.8 percentage points in 

illegal entry offenses, 12.6 percentage points in fraud 

offenses, and 12.4 percentage points in firearms 

offenses and drug trafficking offenses. 

For offenses in the aggregate, the average extent 

of the reduction for non-government sponsored 

below range sentences has been approximately 

40 percent below the guideline minimum during 

all periods (amounting to average reductions of 

17 to 21 months); however, the extent of the 

reduction has varied by offense type. 

For offenses in the aggregate, the extent of 

non-government sponsored below range reductions has 

remained relatively constant over time, hovering near 

a 40 percent reduction below the guideline minimum 

during all four periods: 41.8 percent (17 months 

below the guideline minimum) during the Koon

period; 40.0 percent (17 months below the guideline 

minimum) during the PROTECT Act period; 39.1 

percent (20 months below the guideline minimum) 

during the Booker period; and 40.7 percent (21 months 

below the guideline minimum) during the Gall period. 

When analyzed by offense type, the extent of 

the reduction has varied over time and by offense type. 

 

sentencing guideline range only if the court finds that there 

exists a mitigating circumstance of a kind or to a degree that 

has been affirmatively and specifically identified as a 

permissible ground of downward departure in the sentencing 

guidelines or policy statements, taking account of any 

amendments to such sentencing guidelines or policy 

statements by Congress. 18 U.S.C. § 3553(b)(2) (Child 

crimes and sex offenses) (2003). In addition, the 

PROTECT Act directly amended several policy statements 

to specifically prohibit their application to child sexual 

exploitation cases. Furthermore, the PROTECT Act period 

was the shortest of the four periods, and had the smallest 

number of cases. 

412 The spread is the difference between the bottom of the 

box (Q1=31.3%) and the top of the box (Q3=55.6%). 

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BOOKER REPORT 2012: PART A 

In child pornography non-production offenses, for 

example, the average reduction in months increased 

from 15 months (55.7% below the guideline 

minimum) in the Koon period to 18 months (50.4% 

below the guideline minimum) in the PROTECT Act 

period, 28 months (38.8% below the guideline 

minimum) during the Booker period, and 44 months 

(40.4% below the guideline minimum) during the Gall

period. In contrast, reductions in illegal entry offenses 

held steady at 12 months during the PROTECT Act,

Booker, and Gall periods. The 12-month reduction 

has translated into a reduction of 28.1 to 35.7 percent 

below the guideline minimum depending on the 

period. 

As a percentage below the guideline 

minimum, fraud offenses have had the largest 

reductions of all offense types, more than 50 percent 

below the guideline minimum during three out of four 

periods: 56.1 percent (nine months below the 

guideline minimum) during the Koon period, 53.4 

percent (10 months below the guideline minimum) 

during the PROTECT Act period, 52.6 percent (11 

months below the guideline minimum) during the 

Booker period, and 49.3 percent (13 months below the 

guideline minimum) during the Gall period. In 

firearms offenses, the extent of the reduction has 

varied little, between 38.0 percent (16 months below 

the guideline minimum) in the Booker period and 42.2 

percent (18 months below the guideline minimum in 

the Koon period. In months, career offenders have 

received the largest reductions below the guideline 

minimum across the periods, varying between 63 

months (32.0% below the guideline minimum) in the 

PROTECT Act period and 72 months (37.3% below 

the guideline minimum) in the Koon period. 

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BOOKER REPORT 2012: PART A 

Government sponsored below range sentences 

have contributed to increasing variation in 

sentencing.

The decrease in within range sentence rates for 

offenses in the aggregate was attributable to increases 

in the rates of both non-government sponsored and 

government sponsored below range sentences. 

Specifically, rates of government sponsored below 

range sentences for all offenses were 19.8 percent in 

the Koon period, 23.4 percent in the PROTECT Act 

period, 26.1 percent in the Booker period, and 26.8 

percent in the Gall period. By comparison, rates of 

non-government sponsored below range sentences 

were 15.4 percent in the Koon period, 5.7 percent in 

the PROTECT Act period, 12.6 percent in the Booker 

period, and 17.4 percent in the Gall period.413 The 

analysis categorized the rates of government 

sponsored below range sentences as one of three types: 

substantial assistance (pursuant to USSG §5K1.1); 

EDP (pursuant to §5K3.1); or other. 

Substantial assistance below range sentences 

are specifically authorized in 18 U.S.C. § 3553(e). 

This section provides limited authority to impose a 

sentence below the statutory minimum in a case in 

which the defendant provides substantial assistance to 

the government in the investigation and prosecution of 

another person who has committed an offense. 

Further, section 994(n) of title 28, United States Code, 

requires the Commission to “assure that the guidelines 

reflect the general appropriateness” of imposing a 

reduced sentence on a defendant who has provided 

substantial assistance. The Commission implemented 

this directive in USSG §5K1.1 (Substantial 

Assistance). 

EDP departures were authorized by Congress 

in the PROTECT Act of 2003,414 but had been 

operating before then in a number of districts and had 

 

413 The sharp decrease in non-government sponsored below 

range rates between the Koon and PROTECT Act periods 

reflects in part the change in the way the Commission 

collected departure data. See supra at 53-54 (discussing 

changes in Commission collection methodology). 

414 See section 401(m)(2)(B) of the PROTECT Act, Pub. L. 

No. 108-21 (directing the Commission to formulate a 

guideline providing up to a 4-level reduction pursuant to an 

early disposition program authorized by the Attorney 

General of the United States). 

generally been reported by the Commission as “other 

downward departures.” Therefore, EDP rates are 

reported only for the PROTECT Act, Booker, and Gall

periods. The vast majority of EDP departures occur in 

illegal entry offenses, because “fast-track programs 

originated in southwestern border districts with an 

exceptional volume of immigration cases.”415 

However, the Department of Justice recently expanded 

eligibility for EDP departures, stating that “[t]he 

existence of these programs in some, but not all, 

districts has generated a concern that defendants are 

being treated differently depending on where in the 

United States they are charged and sentenced,”416 and 

noting that “USAOs in non-fast track districts 

routinely face motions for variances based on fasttrack programs in other districts.”417 The revised 

policy establishes “baseline eligibility requirements for 

any defendant who qualifies for fast-track treatment, 

regardless of where that defendant is prosecuted,” 

meaning that all districts that prosecute illegal reentry 

offenses under 8 U.S.C. § 1326 are now required to 

implement early disposition programs for offenders 

who meet the criteria.418 Nonetheless, the criteria for 

qualifying for the EDP departure, and the amount of 

the reduction (within the 4-level-reduction limit in 

USSG §5K3.1) remain within the discretion of the 

United States Attorney for each district; therefore, 

regional differences in the programs may continue. 

Unlike substantial assistance and EDP, other 

government sponsored below range sentences are not 

 

415 Memorandum of James M. Cole, Deputy Attorney 

General, Department Policy on Early Disposition or “FastTrack” Programs (Jan. 31, 2012) available at 

http://www.justice.gov/dag/fast-track-program.pdf. 

[hereinafter Cole Memorandum] See also Memorandum of 

David W. Ogden, Deputy Attorney General, Authorization 

of Certain Early Disposition Programs, at 1 (May 29, 2009) 

[hereinafter Ogden Memorandum]. 

416 Cole Memorandum at 2. 

417 Id. See also Ogden Memorandum (authorizing certain 

early disposition program and listing the classes of cases to 

which they apply). 

418 Cole Memorandum, supra note 415 (“Districts 

prosecuting felony illegal reentry cases (8 U.S.C. § 1326)—

the largest category of cases authorized for fast-track 

treatment—shall implement an early disposition program in 

accordance with the following requirements and the exercise 

of prosecutorial discretion by the United States Attorney”). 

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BOOKER REPORT 2012: PART A 

specifically authorized by statute and have not been 

incorporated into the Guidelines Manual through any 

specific guideline or policy statement. In this respect, 

other government sponsored below range sentences 

are more similar to non-government sponsored below 

range sentences. Department of Justice policy on 

charging and sentencing notes that “[i]n the typical 

case, the appropriate balance among [the statutory 

purposes of sentencing] will continue to be reflected 

by the applicable guidelines range,” and advises 

prosecutors to “generally continue to advocate for a 

sentence within that range,” because “[t]he advisory 

guidelines remain important in furthering the goal of 

national uniformity throughout the federal system.” 419 

However, the policy goes on to note that “consistent 

with the Principles of Federal Prosecution and given 

the advisory nature of the guidelines, advocacy at 

sentencing—like charging decisions and plea 

agreements—must also follow from an individualized 

assessment of the facts and circumstances of each 

particular case.” 420 By its terms, the memorandum 

permits government sponsored below range sentences 

that are based on neither substantial assistance nor 

EDP programs. 

The rates of substantial assistance sentences 

have decreased over time for offenses in the aggregate, 

from 19.1 percent in the Koon period, to 16.6 percent 

during the PROTECT Act period, to 15.2 percent 

during the Booker period, to 12.9 percent during the 

Gall period, and this trend was observed for most 

offense types. The extent of the reduction below the 

guideline minimum, however, has been generally 

consistent, ranging from 49.9 percent below the 

guideline minimum in the Booker period to 52.4 

percent below the guideline minimum in the Koon 

period. This has been fairly comparable to the extent 

of the reductions below the guideline minimum in 

non-government sponsored below range sentences, 

which ranged from 39.1 percent below the guideline 

minimum in the Booker period to 41.8 percent below 

the guideline minimum in the Koon period. 

 In terms of months, however, the reductions 

in substantial assistance sentences have been nearly 

twice as long as reductions in non-government 

 

419 Memorandum of Eric H. Holder, Jr., Attorney General, 

Department Policy on Charging and Sentencing, at 2 (May 

19, 2010). 

420 Id. at 2-3. 

sponsored below range sentences. The extent of the 

reduction in substantial assistance sentences ranged 

from 41 months during the Koon and PROTECT Act 

periods to 44 months and 45 months during the Booker

and Gall periods, respectively. By comparison, the 

extent of the reduction in non-government sponsored 

below range sentences was 17 months in the Koon and 

PROTECT Act periods, and 20 and 21 months in the 

Booker and Gall periods, respectively. This difference 

in the extent of the reduction as measured in months 

reflects the fact that substantial assistance departures 

have generally applied to offenders with higher 

guideline minimums than offenders who received nongovernment sponsored below range sentences. 

In contrast to substantial assistance rates, the 

rates of EDP departures have increased over time. The 

rates of EDP departures for illegal entry offenses, 

which constituted nearly one-third of fiscal year 2011 

offenses in this analysis421 (31.3% of all federal 

offenses), increased from 7.1 percent in the PROTECT 

Act period, to 26.2 percent in the Booker period, to 

26.8 percent in the Gall period. Now that EDP 

departures are available in all districts prosecuting 

illegal entry offenses, these rates will likely increase. 

Further, some districts make EDP available in drug 

trafficking offenses. For example, in Southern 

California, 69.6 percent of 1,991 marijuana traffickers 

received EDP departures during the Gall period. 

Marijuana trafficking offenders in New Mexico and 

Arizona received EDP departures at rates of 43.6 

percent (out of 1,472 offenders) and 37.7 percent (out 

of 3,707 offenders), respectively. It is unclear whether 

the new Department of Justice policy regarding EDP 

departure policies in illegal entry offenses will affect 

the rates of EDP departures for other offense types. 

 

421 Immigration offenses include smuggling, transporting or 

harboring an unlawful alien, and unlawfully entering or 

remaining in the United States. These offenses are 

sentenced under USSG §2L1.1 (Smuggling, Transporting, 

or Harboring an Unlawful Alien) and USSG §2L1.2 

(Unlawfully Entering or Remaining in the United States). 

The Commission has previously reported that beginning in 

fiscal year 2009 immigration cases became the most 

common serious federal crime. See U.S. SENT’G COMM’N,

OVERVIEW OF FEDERAL CRIMINAL CASES FISCAL YEAR 

2009, at 1-2 (December 2010) (noting immigration cases 

comprised 32.2 % of the federal caseload while drugs 

comprised 30.3%). That analysis was based on the 

defendant’s statute of conviction, not on the guideline 

applied at sentencing. 

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BOOKER REPORT 2012: PART A 

The extent of the reduction in terms of months 

and percentage below the guideline minimum in EDP 

sentences was relatively small compared to substantial 

assistance and non-government sponsored reductions. 

Average reductions for EDP departures in illegal entry 

offenses were ten months (25.3% below the guideline 

minimum) in the PROTECT Act period, nine months 

(26.1% below the guideline minimum) in the Booker 

period, and ten months (30.0% below the guideline 

minimum) in the Gall period.422

The rates of other government sponsored 

below range sentences were substantially lower than 

the rates of substantial assistance and EDP 

departures.423 Other government sponsored below 

range sentences for all offenses were first collected 

and reported by the Commission during the PROTECT 

Act period, when the rate was 5.1 percent. The rate 

decreased to 3.3 percent during the Booker period, 

then increased to 4.2 percent in the Gall period. These 

rates have varied depending on the type of offense. 

Although rates of other government sponsored 

below range sentences have remained relatively low, 

they have occurred in more districts over time and may 

contribute to increased variation in sentencing in the 

future. During the PROTECT Act period, for offenses 

in the aggregate, such sentences were imposed in 73 

districts, compared to 93 districts in the Booker period, 

and all 94 districts in the Gall period. This increase 

has occurred for a number of offense types. For 

example, in drug trafficking offenses, other 

government sponsored below range sentences were 

imposed in 51 districts in the PROTECT Act period, 

compared to 81 districts in the Booker period, and 87 

districts in the Gall period. Similarly, in firearms 

offenses, other government sponsored below range 

sentences occurred in 28 districts in the PROTECT 

Act period, compared to 72 districts in the Booker

period, and 81 districts in the Gall period. In fraud 

 

422 See Table, “Selected Sentencing Characteristics – Illegal 

Entry Offenses,” in Part C, available online. 

423 Box plots depicting the spread in average rates of 

substantial assistance and EDP departures, and other 

government sponsored below range sentences are in Part C, 

available online. The spread in the rates of substantial 

assistance sentences for all offenses in the aggregate has 

remained relatively stable across the periods, with the 

smallest spread in the Koon period. The spread in the rates 

of EDP departures has increased over time, likely reflecting 

the fact that this departure is a congressionally authorized 

departure intended for use in limited circumstances. 

offenses, the number of districts with other 

government sponsored below range sentences 

increased from 31 districts in the PROTECT Act 

period, to 70 districts in the Booker period, to 82 

districts in the Gall period. The same trend existed for 

child pornography non-production offenses and for 

fraud offenses. The number of districts with other 

government sponsored below range sentences in child 

pornography non-production offenses increased from 

six in the PROTECT Act period, to 45 in the Booker 

period, to 70 districts in the Gall period. The number 

of districts with other government sponsored below 

range sentences in fraud offenses increased from 31 in 

the PROTECT Act period, to 70 in the Booker period, 

to 82 districts in the Gall period. 

The rate of other government sponsored below 

range sentences has varied depending on the offense 

type. Gall period rates were very similar for several 

offenses types: 4.1 percent for drug trafficking 

offenses, 4.3 percent for firearms offenses, and 3.9 

percent for fraud offenses. For other offenses, rates of 

other government sponsored below range sentences 

were higher. The highest rates were in child 

pornography offenses: 11.7 percent for production 

offenses and 10.4 percent for non-production offenses. 

In career offender cases, the other government 

sponsored below range rate was 9.3 percent. As seen 

in the table on the next page, when other government 

sponsored below range sentences were imposed, the 

extent of the reduction was similar to the extent of the 

reduction for non-government sponsored below range 

sentences. 

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BOOKER REPORT 2012: PART A 

96
BOOKER REPORT 2012: PART A 

Differences in prosecutorial practices, such as 

charging and plea agreement practices, have 

contributed to unwarranted disparity in 

sentencing. 

A defendant’s sentence is a product not only 

of decisions made by the court at sentencing, but also 

of decisions made earlier in the process. Prosecutorial 

decision making, including, for example, the choice of 

which crime to charge and the negotiation of various 

aspects of plea agreements, impacts the applicable 

statutory and guideline penalties, and therefore the 

ultimate sentence. Some of these decisions are 

reflected in Commission data, but the Commission 

does not have information on others and therefore 

cannot analyze their impact. One area of prosecutorial 

decision making that the Commission has studied is 

the decision to charge crimes that carry mandatory 

minimum penalties. 

In its 2011 report to Congress on mandatory 

minimum penalties, the Commission studied drug 

offenses and mandatory minimum penalties.424 In 

drug trafficking offenses, the applicable statutory 

mandatory minimum penalty increases when a drug 

offender is convicted of a second or subsequent felony 

drug offense and the prosecutor files a notice of 

enhancement prior to plea or trial. Using sample 

groups from fiscal years 2006, 2008, and 2009, the 

Commission found significant variation in the manner 

in which prosecutors applied the enhancement 

provision. For example, in six districts, more than 75 

percent of eligible defendants received the increased 

statutory mandatory minimum penalty as an 

enhancement. In contrast, in eight districts, none of 

the eligible drug offenders received the enhanced 

penalty. Interviews of prosecutors confirmed this 

regional disparity with respect to filing the notice of 

enhanced penalties in drug trafficking offenses. In 

interviews conducted in 13 districts, prosecutors 

reported wide variations in the practices surrounding 

the filing of notices seeking enhanced statutory 

mandatory minimum penalties in drug trafficking 

offenses.425 The Commission’s interviews also 

 

424 2011 MANDATORY MINIMUM REPORT, supra note 17, at 

252-261. 

425 Id. at 111-113. In nine districts, prosecutors related that 

they did not file the notice automatically in every applicable 

case. In each of those districts, the prosecutors advised that 

they delayed filing the notice while engaging in plea 

revealed divergent practices relating to the filing of 

multiple charges under 18 U.S.C. § 924(c), involving 

the use of a firearm during a crime of violence or drug 

trafficking felony,426 as well as inconsistencies in 

charging and plea agreement practices relating to child 

pornography and whether to charge receipt of child 

pornography, which carries a five-year statutory 

mandatory minimum, or possession, which does not.427

 

negotiations. In two districts, prosecutors advised that they 

filed the notice triggering the enhanced penalties in every 

applicable case and did not withdraw the notice under any 

circumstances. In another district, prosecutors suggested 

that office policy required section 851 notices to be filed in 

every applicable case, absent supervisory approval to 

withhold the filing of the notice. These prosecutors noted, 

however, that the timing of the filing was left to discretion 

of the individual prosecutor handling the case. These 

prosecutors also related that they might withdraw the 

section 851 notice if the offender agreed to provide 

substantial assistance. Finally, in one district, the 

prosecutors advised that they rarely filed the notices. The 

prosecutors in this district described the enhanced penalties 

as a “hammer for the worst offenders,” but otherwise too 

harsh for low-level drug offenders. 

426 Id. at 113-114. This offense carries a consecutive 

penalty of at least five years; second and subsequent 

violations are subject to a 25-year consecutive penalty. In 

most districts, the prosecutors generally charged multiple 

section 924(c) violations in violent offenses. By contrast, in 

two districts prosecutors advised that they rarely charge 

multiple violations. Further, the charge bargaining practices 

for multiple section 924(c) counts were inconsistent. 

Prosecutors in some districts would dismiss all but one 

section 924(c) count in exchange for a guilty plea. Others 

require a plea to at least two section 924(c) counts. In 

another, prosecutors require offenders that they consider 

especially violent to plead to at least three counts. Not only 

did the practices differ among districts, but the respondents 

interviewed also noted that the practice sometimes varied 

within districts, either by division or by individual 

prosecutor. 

427 Id. at 114. A common inconsistency in prosecutorial 

charging decisions in child pornography offenses related to 

whether to charge possession, which carries no mandatory 

minimum penalty, or receipt, which carries a five-year 

mandatory minimum penalty. Interviews revealed that in a 

few districts, offenders who offered to plead guilty to a child 

pornography possession charge early in the case would have 

their receipt charges either dismissed or never filed. In at 

least one other district, if an offender successfully passed a 

polygraph examination establishing that no additional steps 

had been taken beyond viewing child pornography (i.e., the 

97
BOOKER REPORT 2012: PART A 

Variation in the rates of non-government 

sponsored below range sentences among judges 

within the same district has increased in most 

districts since Booker, indicating that sentencing 

outcomes increasingly depend upon the judge to 

whom the case is assigned. 

The Commission examined the sentencing 

practices of individual judges within each district to 

determine the extent of variation among judges within 

the same district. This analysis was aimed at 

exploring differences in the rates of non-government 

sponsored below range sentences within each district. 

The Commission analyzed these rates by district 

because judges within the same district generally are 

more likely than judges across districts to preside over 

similar cases to the extent the district’s cases are 

randomly distributed among the judges. Furthermore, 

United States Attorneys’ prosecutorial practices within 

one district are more likely to be similar than across 

various districts. The Commission recognizes, 

however, that caseload composition may differ 

substantially across divisions within the same 

district.428 For this reason and others, including all the 

districts’ judges in one analysis may not account for all 

relevant differences within a district and may limit the 

Commission’s analysis. Nonetheless, for the purpose 

of analyzing differences among sentencing judges’ 

practices, examining each district separately reduces, 

though does not eliminate, differences that may be 

attributable to caseload composition and prosecutorial 

practices, and reveals substantial differences in 

sentencing practices. 

 

offender had not touched a child), that offender would be 

permitted to plead to possession of child pornography. In 

yet another, prosecutors typically agreed to enter into a 

binding plea agreement allowing the offender to plead guilty 

to a possession charge and requiring a specific sentence if 

the forensic examination of the offender’s computer would 

be considerably delayed if the case were to go to trial. 

428 For example, Western North Carolina has one division 

(Charlotte) with a larger urban population, another district 

(Asheville) with substantial federal property, and yet 

another district (Bryson City), with a substantial American 

Indian population. Different types of cases arise in each of 

these divisions, and one judge may be assigned more cases 

from a certain division than other judges due to caseload 

management issues. 

The Commission reviewed data from all 94 

districts, which are available online in Part D of this 

report, to determine whether any patterns emerged.429 

In this review, the Commission examined the entire 

spread of judges’ non-government sponsored below 

range rates. All judges (magistrate or district) who 

sentenced at least one offender convicted of a felony 

or a Class A misdemeanor offense were included in 

the plots. However, in determining whether the spread 

in the rates had expanded or contracted over time, it 

was important to distinguish whether the judge 

represented by the bubble sentenced a few or many 

offenders. A judge with the highest or lowest rate of 

non-government sponsored below range sentences 

may have sentenced one offender because he or she 

was a visiting or senior-status judge. Therefore, when 

the judge’s bubble was a small pinpoint, indicating 

that the judge sentenced one or a very small number of 

offenders relative to the other judges in the district, the 

Commission did not consider that judge in its 

assessment of whether the spread of rates generally 

increased or decreased during that period in order to 

avoid overstating the spread during any period. 

In the majority of districts (n=64) the spread in 

the rates of non-government sponsored below range 

sentences was smallest during the PROTECT Act 

period and greatest during the Gall period. In other 

words, in two-thirds of districts, judges’ rates of nongovernment sponsored below range sentences were 

most uniform during the PROTECT Act period, and 

were the most varied during the Gall period. The 

spread of the rates in a much smaller number of 

districts (n=16) either did not change, or did not 

contract during the PROTECT Act period as compared 

to the Koon period.430 In 14 districts any difference in 

the spread between the Koon and PROTECT Act 

periods was too subtle to discern.431 In those 14 

 

429 Bubble plots for each of the 12 circuits and each of the 

94 districts are in Part D, available online. 

430 The 16 districts in which the spread either did not 

change or expanded between the Koon and PROTECT Act 

periods were, New Hampshire, Connecticut, Delaware, 

Maryland, Eastern Virginia, Northern Mississippi, Eastern 

Kentucky, Southern Ohio, Eastern Wisconsin, Southern 

Iowa, Eastern Missouri, Nebraska, Guam, Northern Mariana 

Islands, Utah, and Northern Georgia. 

431 The 14 districts in which changes between the Koon and 

PROTECT Act periods were too subtle to discern were 

Puerto Rico, Rhode Island, Eastern New York, Western 

98
BOOKER REPORT 2012: PART A 

districts, there may have been some contraction in the 

rates among most judges, but one or more outlier 

judges with comparably sized caseloads made it 

difficult to classify the change as either an expansion 

or a contraction in the spread. 

South Carolina and Northern 

Texas provide clear examples of the 

pattern in the majority of districts: the 

plots show contraction in the spread 

from the Koon period to the PROTECT 

Act period, when judges’ discretion was 

circumscribed, then an expansion in the 

spread from the PROTECT Act period 

to the Booker period, when judges had 

greater discretion. The expansion 

continued from the Booker period to the 

Gall period. 

 

New York, New Jersey, Eastern Pennsylvania, Western 

Pennsylvania, Virgin Islands, Middle North Carolina, 

Western North Carolina, Western Virginia, Northern Ohio, 

North Dakota, and Nevada. 

99
BOOKER REPORT 2012: PART A 

As seen in these scatter plots, the 

average extent of the reduction below the 

guideline minimum varied broadly 

during each period, and did not appear to 

have been affected by legislation or 

Supreme Court decisions. 

100
BOOKER REPORT 2012: PART A 

In most districts, judges with 

similarly sized caseloads imposed nongovernment sponsored below range 

sentences at very different rates. The 

following plot of Southern Florida shows 

that the non-government sponsored below 

range rates among judges with similarsize caseloads varied from under ten 

percent to just below 40 percent in the 

Gall period. The judges with the highest 

and lowest rates of non-government 

sponsored below range sentences had 

small caseloads relative to the other 

sentencing judges in the district. 

As the scatter plot reflects, the 

extent of the reduction in Southern 

Florida, as in most districts, varied 

during all four periods and did not 

appear to be affected by Supreme Court 

decisions or legislation. 

A reduction of 100 percent 

likely reflects a sentence of probation 

reduced from a guideline minimum 

recommending incarceration. 

101
BOOKER REPORT 2012: PART A 

In the district of Rhode Island, 

two of the judges with high rates of nongovernment sponsored below range 

sentences had the two largest caseloads 

in the district during the Gall period. 

In contrast, in Southern Illinois 

judges imposed non-government 

sponsored below range sentences at 

generally lower rates. Five out of six 

Southern Illinois judges had rates of 

approximately 25 percent and under. 

102
BOOKER REPORT 2012: PART A 

Western New York is an 

example of a district in which the 

spread in the rates was similar during 

all four periods. The bubble plot 

shows a slight increase in the height of 

the bubbles during the Gall period, 

indicating an increase in the rate of 

non-government sponsored below 

range sentences and a small increase in 

the spread. The size of the bubbles 

also shows that during the Gall period, 

the two judges with the highest rates of 

non-government sponsored below 

range sentences had sizeable caseloads. 

On average, judges in Western 

New York granted reductions of more 

than 40 percent below the guideline 

minimum during the PROTECT Act, 

Booker, and Gall periods. However, 

there was a relatively large amount of 

variation among judges. 

103
BOOKER REPORT 2012: PART A 

In some districts, the spread in 

the rates of non-government sponsored 

below range sentences was smallest 

during the Gall period. In the District of 

Nebraska, for example, the spread 

contracted considerably during the Gall

period compared to the Booker period 

because a number of judges with 

relatively large caseloads increased their 

non-government sponsored below range 

rates. 

In other districts (for example 

several districts along the Southwest 

border) the spread in the rates of nongovernment sponsored below range 

sentences contracted during the Gall

period, likely reflecting the impact of 

government sponsored EDP departures. 

The District of Arizona plot illustrates 

this pattern. As in other districts, the 

extent of the reduction from the 

guideline minimum in the District of 

Arizona has remained relatively constant 

over time. 

In sum, whether the spread in the 

rates of non-government sponsored 

below range sentences has expanded, 

contracted, or remained consistent over 

time has varied by district; however, in 

two-thirds of districts the spread in the 

rates of non-government sponsored 

below range sentences was smallest 

during the PROTECT Act period and 

greatest during the Gall period. This 

increased intra-district variation in nongovernment sponsored below range rates 

indicates that sentencing outcomes 

increasingly depend upon the judge to 

whom the case is assigned, within and 

across districts, and signals diminishing 

certainty and uniformity in federal 

sentencing. 

104
BOOKER REPORT 2012: PART A 

Appellate review has not promoted uniformity in 

sentencing to the extent the Supreme Court 

anticipated in Booker. 

In Booker, the Supreme Court excised the 

portion of the sentencing statutes setting forth a de 

novo standard of review of sentences on appeal. The 

Court effectively restored the pre-PROTECT Act 

standard of review, which provided for review of 

sentences for reasonableness. The Court 

acknowledged that appellate review of sentences for 

reasonableness would not “provide the uniformity that 

Congress originally sought to secure,” but nonetheless 

anticipated that appellate review “would tend to iron 

out sentencing differences.”432 Appellate review, 

however, has not promoted uniformity in sentencing to 

the extent anticipated in Booker, and the Commission 

has identified several reasons for this result. 

First, and most significantly, offenders with 

similar offense conduct and similar criminal history 

increasingly have received different sentences, and 

reasonableness review on appeal has not ironed out 

these substantive differences. A review of case law 

reveals that, in the wake of Booker, sentencing judges 

apply the section 3553(a) factors differently. Some 

judges give substantial weight to the characteristics of 

the offender, including those that, consistent with 

section 994 of Title 28, the Commission has deemed 

ordinarily not relevant at sentencing.433 Some judges 

view certain characteristics as grounds for decreasing 

the sentence, while others do not.434 Other judges 

consider such factors, but accord greater weight to the 

Commission’s guidelines and policy statements.435 

 

432 Booker, 543 U.S. at 263. 

433 See, e.g., United States v. Tomko, 562 F.3d 558 (3d Cir. 

2009) (reviewing the district court’s decision to take into 

account the defendant’s employment history in reducing his 

sentence for tax fraud). 

 

434 See, e.g., United States v. Feemster, 572 F.3d 455, 465-

66 (8th Cir. 2009) (Riley, J., concurring), 467-96 (Colloton, 

J., concurring). 

 

435 Compare United States v. Jackson, 300 F. App’x 428 

(7th Cir. 2008) (affirming district court decision to sentence 

defendant within advisory guideline range after rejecting his 

request to vary from career offender guideline, where the 

district court concluded that the defendant was “young and 

impulsive and very dangerous” and “very much deserve[d]” 

the characterization of career offender), with United States 

Still other judges categorically reject certain guidelines 

and policy statements.436

The fact that judges hold different views with 

respect to the importance of various sentencing factors 

raises a host of reasonableness issues at the appellate 

stage; indeed according to Commission data, 

reasonableness issues constituted a significant 

proportion of all sentencing issues raised on appeal in 

fiscal year 2011.437 Consistent with recent Supreme 

Court case law, appellate courts have afforded district 

court decisions great deference and have rarely 

reversed sentences on substantive reasonableness 

 

v. Maloney, 446 F.3d 663 (8th Cir. 2006) (reversing district 

court decision to sentence the defendant, which the court 

had concluded was a career offender and an armed career 

criminal, below the guideline range based on the 

defendant’s youthful age of 22 years and the court’s view 

that “a longer sentence would undermine his chances at 

rehabilitation”). See also Feemster, 572 F.3d at 468 

(Colloton, J., concurring) (“The [sentencing] judge in this 

case thought Feemster’s ‘troubled youth’ was largely 

mitigating, and elected to impose the statutory minimum 

sentence. Other reasonable federal judges will believe that 

the Sentencing Commission was correct to declare a policy 

that age, including youth, is ordinarily not relevant to 

sentencing, USSG §5H1.1, and that a relatively youthful 

drug trafficking offender with a serious criminal history 

should be sentenced at or near the statutory maximum in 

accordance with the career offender guideline. The 

offender’s punishment in these career offender cases . . . 

will depend substantially on the luck of the judicial draw.”) 

(internal citations omitted). 

436 See, e.g., United States v. Grober, 624 F.3d 592 (3d Cir. 

2010) (affirming district court’s categorical disagreement 

with USSG §2G2.2); United States v. Corner, 598 F.3d 411 

(7th Cir. 2010) (concluding that a district court may vary 

based on disagreement with the career offender guideline: 

“Because §4B1.1 is just a Guideline, judges are as free to 

disagree with it as they are with §2D1.1(c) (which sets the 

crack/powder ratio). No judge is required to sentence at 

variance with a Guideline, but every judge is at liberty to do 

so.”).

437 Out of 13,085 discrete sentencing issues raised by 

defendants, 4,547 were related to reasonableness, and 1,405 

were related to the section 3553(a) factors. Out of a total of 

92 discrete sentencing issues raised by the government and 

decided by the circuit courts in fiscal year 2011, 18 related 

to reasonableness issues, and 11 related to the section 

3553(a) factors. See Part B, available online, for a full 

explanation of how the Commission collects appeals data. 

105
BOOKER REPORT 2012: PART A 

grounds. Furthermore, a case review of certain 

offense types suggests that the substantive outcome of 

the appeals that address reasonableness has differed 

depending on the circuit. In child pornography and 

fraud appeals, panels of judges in different circuits 

have reached different outcomes regarding the 

reasonableness of similar sentences.438 

Differences in appellate review procedures 

among the circuits further limit the appellate courts’ 

ability to iron out sentencing differences. Some 

circuits have applied a presumption of reasonableness 

to review of within range sentences, and others have 

not.439 Some circuits have required district courts to 

address guideline departure arguments, while other 

 

438 In child pornography non-production offenses, compare

United States v. Autery, 555 F.3d 864 (9th Cir. 2009) 

(affirming as substantively reasonable below range sentence 

of five years of probation for possession of child 

pornography, where the guidelines range was 41-51 months 

of imprisonment), with United States v. Pugh, 515 F.3d 

1179 (11th Cir. 2008) (reversing as substantively 

unreasonable below range sentence of five years of 

probation for possession of child pornography, where the 

guidelines range was 97-120 months of imprisonment). For 

fraud offenses, compare United States v. Edwards, 595 F.3d 

1004 (9th Cir. 2010) (affirming as substantively reasonable 

below range sentence of five years of probation, where the 

guidelines range was 27-33 months of imprisonment for the 

defendant’s crimes of bankruptcy fraud and making a false 

statement to a bank), with United States v. Givens, 443 F.3d 

642 (8th Cir. 2006) (reversing below range sentence of 

supervised release including 12 months of house arrest for 

bank fraud defendant facing 24-30 months of 

imprisonment). 

439 Compare United States v. Dorcely, 454 F.3d 366 (D.C. 

Cir. 2006) (applying presumption of reasonableness); 

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

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

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

Cir. 2006) (same); United States v. Mykytiuk, 415 F.3d 606 

(7th Cir. 2005) (same); United States v. Lincoln, 413 F.3d 

716 (8th Cir. 2005) (same); United States v. Kristl, 437 F.3d 

1050 (10th Cir. 2006), with United States v. Jimenez-Beltre, 

440 F.3d 514 (1st Cir. 2006) (declining to apply 

presumption of reasonableness); United States v. Fernandez, 

443 F.3d 19 (2d Cir. 2006); United States v. Cooper, 437 

F.3d 324 (3d Cir. 2006), abrogated on other grounds as 

recognized in United States v. Wells, 279 F. App’x 100 (3d 

Cir. 2008); United States v. Carty, 520 F.3d 984 (9th Cir. 

2008); United States v. Hunt, 459 F.3d 1180 (11th Cir. 

2006). 

circuits have not. One circuit has declared departures 

“obsolete,” while the other circuits have continued to 

view proper federal sentencing practice as a three-step 

process. 

Finally, the role appellate review can play in 

promoting nationwide uniformity in sentencing is 

limited because only a small percentage of sentences 

are appealed. As seen in the figure on the next page, 

while the number of offenders sentenced has 

increased, the number of sentencing appeals decided 

each year has remained relatively flat, and has been 

less than 10 percent since Booker.440 Even more 

significantly, the number of government-initiated 

appeals has declined since Booker.

441 

 

440 See also Nancy J. King & Michael E. O’Neill, Appeal 

Waivers and the Future of Sentencing Policy, supra note 

365 (“Based on interviews and an analysis of data coded 

from 971 randomly selected cases sentenced under the 

United States Sentencing Guidelines, the study’s findings 

include (1) in nearly two-thirds of the cases settled by plea 

agreement, the defendants waived their rights to review[]”).] 

441 At the Commission’s regional public hearings, several 

prosecutors testified that the government has curtailed its 

appeal of low sentences because of the deferential standard 

of review. U.S. Sent’g Comm’n Public Regional Hearing 

on the 25th Anniversary of the Passage of the Sentencing 

Reform Act of 1984, Denver, CO (Oct. 20-21, 2009) 

(Testimony of the Honorable B. Todd Jones, United States 

Attorney, District of Minnesota, transcript at 155-56); U.S. 

Sent’g Comm’n Public Regional Hearing on the 25th 

Anniversary of the Passage of the Sentencing Reform Act of 

1984, Denver, CO (Oct. 20-21, 2009) (Testimony of the 

Honorable David M. Gaouette, United States Attorney,

District of Colorado, transcript at 166); U.S. Sent’g Comm’n 

Public Regional Hearing on the 25th Anniversary of the 

Passage of the Sentencing Reform Act of 1984, Chicago, IL 

(Sept. 9-10, 2009) (Testimony of the Honorable Patrick J. 

Fitzgerald, United States Attorney, Northern District of 

Illinois, transcript at 247); U.S. Sent’g Comm’n Public 

Regional Hearing on the 25th Anniversary of the Passage of 

the Sentencing Reform Act of 1984, New York, NY (July. 9-

10, 2009) (Testimony of the Honorable Dana Boente, 

United States Attorney, District of Eastern District of 

Virginia, transcript at 315-16); U.S. Sent’g Comm’n Public 

Regional Hearing on the 25th Anniversary of the Passage of 

the Sentencing Reform Act of 1984, New York, NY (July 9-

10, 2009) (Testimony of the Honorable Benton J. Campbell, 

United States Attorney, Eastern District of New York, 

transcript at 317-18). Prosecutors voiced concerns about the 

ability of the reasonableness standard of review to prevent 

disparities in sentencing. See, e.g., U.S. Sent’g Comm’n 

Public Regional Hearing on the 25th Anniversary of the 

106
BOOKER REPORT 2012: PART A 

In each year, defendant-initiated 

appeals far outnumber both governmentinitiated appeals and cases in which 

cross appeals were filed. The bars 

depicting government-initiated appeals 

and cross appeals are barely visible on 

the first bar chart, which has been scaled 

to accurately depict defendant-initiated 

appeals. The second bar chart shows 

government-initiated and cross appeals 

only on a different scale to make the 

government-initiated and cross appeals 

visible. 

In sum, at least four factors 

significantly limit the role of appellate 

review post-Booker in promoting 

national uniformity in sentencing: the 

different views held by judges with 

respect to the importance of various 

factors, including offender 

characteristics and the guidelines, under 

section 3553(a); the deferential standard 

of review; the lack of uniform 

procedures among the circuits; and the 

relatively low number of sentencing 

appeals. 

 

Passage of the Sentencing Reform Act of 1984, Austin, TX 

(Nov. 19-20, 2009) (Statement of the Honorable Joyce W. 

Vance, United States Attorney, Northern District of 

Alabama, written statement at 2-3). 

107
BOOKER REPORT 2012: PART A 

Demographic factors (such as race, 

gender, and citizenship) were 

associated with sentence length at 

higher rates in the Gall period than 

in previous periods. 

The Commission’s multivariate 

regression analyses, updated with data 

through fiscal year 2011 for this report, 

showed that sentence length has been 

associated with some demographic 

factors.442 For example, sentence length 

for Black male offenders exceeded 

sentence length for White male offenders 

by 19.5 percent in the Gall period. In 

contrast, the difference was 15.2 percent 

in the Booker period, and 5.5 percent 

during the PROTECT Act period. For 

Hispanic male offenders and Other 

Race443 male offenders sentenced during 

the Gall period, there was no statistically 

significant difference in sentence length 

compared to White male offenders. 

Female offenders of all races 

received shorter sentences than White 

male offenders during all four periods 

studied. Sentences for White female 

offenders were 31.1 percent shorter than 

for White male offenders during the Gall

period. Sentences for Black female 

offenders were 33.1 percent shorter than 

sentences for White male offenders 

during the Gall period. For Hispanic 

females the difference was 18.2 percent, and for Other 

Race females, the difference was 34.6 percent. 

Additional analysis also showed demographic 

differences in the likelihood of receiving a nongovernment sponsored below range sentence. During 

the PROTECT Act, Booker, and Gall periods, Black 

male offenders were at least 20 percent less likely to 

 

442 See supra at 57 for a discussion of the limitations of 

multivariate regression analysis and examples of factors for 

which no data is readily available in the Commission’s 

datasets. 

443 “Other Race” includes American Indians and Alaskan 

Natives, Asians and Pacific Islanders, Multi-racial, Non-US 

American Indians (e.g., Canadian Indians), and other nonspecified races. 

receive a non-government sponsored below range 

sentence than White male offenders. However, when 

Black male offenders did receive a non-government 

sponsored below range sentence during the Gall

period, there was no statistically significant difference 

in sentence length.444 Hispanic male offenders were 

also less likely to receive a non-government sponsored 

below range sentence in all periods, and were 31.6 

percent less likely to do so in the Gall period.445 

 

444 During the Booker period, the sentences of Black male 

offenders receiving non-government sponsored below range 

sentences were 12.3% longer than those of White male 

offenders receiving non-government sponsored below range 

sentences. There was no statistically significant difference 

during any other period. The graph depicting this analysis 

is in Part E, available online. 

108
BOOKER REPORT 2012: PART A 

Demographic differences also 

were observed in sentence length for 

specific offense types (only fraud, 

firearms, and drug trafficking offenses 

had sufficient case numbers in each of 

the various demographic groups studied 

to conduct the analysis), but the 

differences did not follow a uniform 

pattern. In fraud offenses, for example, 

there was no statistically significant 

difference in sentence length for Black 

male and White male offenders during 

the Gall period. Differences in sentence 

lengths between White, Black, and 

Hispanic female fraud offenders and 

White male fraud offenders were 

significant in some, but not all of the 

periods studied. 

 

445 During the Gall period, the sentences of Hispanic male 

offenders receiving non-government sponsored below range 

sentences were 9.3% longer than those of White male 

offenders receiving non-government sponsored below range 

sentences. There was no statistically significant difference 

during any other period. 

In contrast, in firearms 

offenses, sentences for Black male 

offenders were 10.2 percent longer 

than sentences for White male 

offenders. 

109
BOOKER REPORT 2012: PART A 

Statistically significant differences 

in sentence length for Black male and 

White male drug trafficking offenders 

were present during the Koon and Booker

periods, but the greatest difference 

occurred during the Gall period. White 

female, Black female, and Hispanic 

female drug trafficking offenders received 

shorter sentences than White male drug 

trafficking offenders during all four 

periods. 

The Commission’s analysis of 

changes in sentence length for each race 

and gender pairing across periods revealed 

some demographic differences. For 

example, White male and female 

offenders, Black male and female 

offenders, Hispanic male offenders, and 

Other Race male offenders all received shorter 

sentences during the Gall period than during the 

Booker period, whereas the sentences for Hispanic 

female offenders and Other Race female offenders did 

not decrease. The decreases in sentence length during 

the Gall period also were not evenly distributed among 

race/gender pairs. The sentences for White female 

offenders were 14.9 percent shorter during the Gall

period compared to the Booker period, whereas the 

sentences for White male offenders were 5.5 percent 

shorter. The sentences for Black female offenders 

were 11.8 percent shorter during the Gall period 

compared to the Booker period, while the sentences of 

Black male offenders were 3.6 percent shorter during 

the Gall period. 

In conclusion, although sentence length for 

both Black male and female offenders and White male 

and female offenders have decreased over time, White 

offenders’ sentence length has decreased more than 

Black offenders’ sentence length. Additionally, while 

Black male offenders received sentences that were not 

statistically different from those of White male 

offenders when both groups received non-government 

sponsored below range sentences, Black male 

offenders have been at least 20 percent less likely to 

receive a non-government sponsored below range 

sentence in the first instance. Hispanic male offenders 

also have been less likely than White male offenders to 

receive a non-government sponsored below range 

sentence. 

110
BOOKER REPORT 2012: PART A 

Recommendations 

The Commission continues to believe that a 

strong and effective guidelines system best serves the 

purposes of the SRA. The importance of achieving the 

goals of the SRA is heightened as the number of 

federal offenders steadily increases over time. In 

fiscal year 1996, there were 37,091 federal offenders, 

compared to 76,216 in fiscal year 2011. The number 

of inmates housed by the federal BOP has more than 

doubled, from just below 100,000 in 1996, to more 

than 200,000 in 2011.446 Of note, post-Booker, most 

federal offenders have continued to receive substantial 

sentences of imprisonment without any alternative to 

incarceration. In fiscal year 2011, 87.8 percent of 

federal offenders were sentenced to serve a term of 

imprisonment only, compared to 76.9 percent in fiscal 

year 1996. 

The continued importance and influence of the 

guidelines on sentencing decisions is evident from 

both Supreme Court decisions and sentencing data, as 

the overwhelming majority of offenders – 80.7 percent 

in the Gall period – still received a sentence either 

within the guideline range or below the guideline 

range for a reason sponsored by the government (most 

often, but not always, congressionally authorized 

reductions for substantial assistance to the government 

or an expedited guilty plea pursuant to an EDP 

approved by the Attorney General). 

However, consistent with Supreme Court 

precedent, sentencing decisions increasingly depend 

upon consideration of the section 3553(a) factors other 

than the guidelines (section 3553(a)(4)) and policy 

statements (section 3553(a)(5)). The Commission’s 

review of sentencing decisions suggests that judges 

view similar circumstances and weigh the section 

3553(a) factors differently, in particular individual 

offender characteristics, much as they did during the 

 

446 See supra note 393. 

years leading up to the SRA. In the wake of these 

changes, the Commission has observed both increasing 

inconsistencies in sentencing practices – nationally, 

locally, and by offense type – and widening 

demographic differences in sentencing. The 

Commission is concerned about these developments. 

In reaching its recommendations in this report, the 

Commission reviewed various alternative proposals 

for sentencing reform and the criticisms levied against 

those proposals, including the calls by some for 

maintaining the status quo.447 The Commission 

believes the trends demonstrated in this report are 

troubling and should be addressed. At this time, the 

Commission makes the following recommendations to 

strengthen and improve the sentencing guidelines 

system. 

DEVELOP MORE ROBUST SUBSTANTIVE 

APPELLATE REVIEW

The Commission proposes that Congress enact 

a more robust appellate review standard. Appellate 

review was a key component of sentencing reform in 

the SRA. Congress envisioned that appellate review 

of sentences would provide the Commission valuable 

information on federal sentencing and ensure certain, 

fair, and more uniform sentences. Since Booker, 

where the Court anticipated that appellate review 

would tend to “iron out” sentencing differences, the 

role of appellate review remains unclear, the standards 

inconsistent, and its effectiveness in achieving 

uniformity in sentencing is increasingly questionable. 

 

447 Many commentators have made alternative proposals for 

sentencing reform. Some of these proposals and the 

criticisms against them are discussed in detail in Part F, 

available online. 

111
BOOKER REPORT 2012: PART A 

The Commission recommends that Congress revitalize 

appellate review in three ways. 

Require a Presumption of Reasonableness for 

Within Range Sentences on Appeal 

Appellate courts should be required to 

presume within range sentences to be substantively 

reasonable. The Supreme Court permits a 

presumption of reasonableness for within range 

sentences only on appeal. The SRA requires that 

similarly situated defendants be treated similarly, and 

this is hindered by the current appellate review 

dichotomy between those circuits that have adopted 

the presumption of reasonableness and those that have 

not. It is already the practice in the majority of 

circuits, including the Fourth, Fifth, Sixth, Seventh, 

Eighth, Tenth, and District of Columbia Circuits. 

Requiring the presumption of reasonableness in all 

circuits would promote national sentencing uniformity 

by facilitating review of sentences as the SRA 

contemplated. An appellate review standard that 

presumes within range sentences to be reasonable 

reflects the fact that the Commission’s process for 

promulgating guidelines results in “a set of Guidelines 

that seek to embody the § 3553(a) considerations, both 

in principle and in practice.”448 

Require Greater Justification for Sentences 

Substantially Outside the Guideline Range 

Congress should require sentencing courts to 

provide greater justification for sentences imposed the 

further the sentence is from the otherwise applicable 

guideline range.449 The greater a sentencing judge’s 

variance from a guideline, the more compelling should 

 

448 Rita, 551 U.S. at 350. See also Booker, 543 U.S. at 263-

264 (noting that “[t]he Sentencing Commission will 

continue to collect and study appellate court 

decisionmaking. It will continue to modify its Guidelines in 

light of what it learns, thereby encouraging what it finds to 

be better sentencing practices. It will thereby promote 

uniformity in the sentencing process. . . . the 

Sentencing Commission remains in place, writing 

Guidelines, collecting information about actual district court 

sentencing decisions, undertaking research, and revising the 

Guidelines accordingly.”). 

449 See Gall, 552 U.S. at 50. 

be the judge’s justification for the variance.450 This 

reform aligns with Supreme Court doctrine as stated in 

Gall v. United States: it is “uncontroversial that a 

major departure should be supported by a more 

significant justification than a minor one.”451 Such 

explanation would ensure that the vision of a 

transparent system remains intact and would help 

ensure that appellate review remains robust.452 As the 

Court noted in Rita, “The sentencing judge should set 

forth enough to satisfy the appellate court that he has 

considered the parties’ arguments and has a reasoned 

basis for exercising his own legal decisionmaking 

authority.”453 Any legislative proposal to strengthen 

the guidelines system should require heightened 

justification for a sentence substantially outside the 

guidelines. 

Require Heightened Review of Sentences Based 

on Policy Disagreements with the Guidelines 

Congress should create a heightened standard 

of review for sentences imposed based on a “policy 

disagreement” with the guidelines. The Supreme 

Court permitted policy-based variances in Kimbrough

and Spears. However, the Commission believes that 

the current lack of rigorous appellate review of policy 

disagreements undermines the role of the guidelines 

system and risks increasing unwarranted sentencing 

disparity as judges substitute their own policy 

judgments for the collective policy judgments of 

Congress and the Commission. Even in the course of 

declaring that individual judges may categorically 

disagree with the Commission’s policy decisions, the 

Court recognized that “closer review may be in order 

when the sentencing judge varies from the guidelines 

based solely on the judge’s view that the guideline 

range ‘fails properly to reflect § 3553(a) 

considerations’ even in a mine-run case.”454 Judges 

have varied backgrounds and policy preferences, and 

 

450 See, e.g., United States v. Castillo, 695 F.3d 672 (7th 

Cir. 2012). 

 

451 Gall, 552 U.S. at 50. 

452 See Rita, 551 U.S. at 357-358. 

453 Id. at 356. 

454 Kimbrough, 552 U.S. at 109 (quoting Rita, 551 U.S. at 

352). 

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reducing unwarranted disparity requires that policybased variances be subject to heightened scrutiny. 

RECONCILE THE STATUTES THAT RESTRICT THE 

COMMISSION’S CONSIDERATION OF CERTAIN 

OFFENDER CHARACTERISTICS WITH STATUTORY 

INTERPRETATIONS THAT REQUIRE COURTS TO 

CONSIDER MORE EXPANSIVELY THOSE SAME 

OFFENDER CHARACTERISTICS. 

Section 994 of Title 28 requires the 

Commission to restrict the manner in which certain 

offender characteristics can be considered in the 

guidelines. In contrast, section 3553(a) of Title 18 has 

been interpreted as instructing courts to give broad 

consideration to some of the same offender 

characteristics restricted by Title 28. The Commission 

recommends that Congress clarify the relationship 

between 28 U.S.C. § 994 and 18 U.S.C. § 3553(a). In 

Rita, the Supreme Court recognized that “the 

sentencing statutes envision both the sentencing judge 

and the Commission as carrying out the same basic 

§ 3553(a) objectives, the one, at retail, the other at 

wholesale.”455 

In the SRA, Congress specifically directed the 

Commission to limit the role certain offender 

characteristics would play at sentencing. Section 

994(e) of Title 28 directs the Commission to “assure 

that the guidelines and policy statements, in 

recommending a term of imprisonment or length of a 

term of imprisonment, reflect the general 

inappropriateness of considering the education, 

vocational skills, employment record, family ties and 

responsibilities, and community ties of the 

defendant.”456 Even where certain offender 

characteristics may be relevant, Congress directed the 

Commission to take them into account “only to the 

 

455 Rita, 551 U.S. at 348. Moreover, a statute must be given 

“‘the most harmonious, comprehensive meaning possible’ 

in light of the legislative policy and purpose,” Weinberger v. 

Hynson, Westcott & Dunning, Inc., 412 U.S. 609, 631-32 

(1973) (quoting Clark v. Uebensee Finanz-Korp, 332 U.S. 

480, 488 (1947)), and it is normally presumed “that a 

legislature says in a statute what it means and means in a 

statute what it says there.” Connecticut Nat’l Bank v. 

Germain, 503 U.S. 249, 253-54 (1992). 

456 28 U.S.C. § 994(e). 

extent that they do have relevance.”457 Accordingly the 

Commission adopted several policy statements 

limiting the relevance of certain offender 

characteristics to the determination of whether a 

sentence should be outside the applicable guideline 

range in Chapter Five, Parts H and K of the Guidelines 

Manual. The Commission determined that the factors 

listed in 28 U.S.C. § 994(e) “are not ordinarily 

relevant” to the determination of whether a sentence 

should be outside the applicable guideline range, but 

did not foreclose them from consideration in an 

exceptional case or from consideration for determining 

where to sentence the offender within the guideline 

range. 

The Commission recognized that the 

guidelines could not capture every possible 

circumstance about the offense or the offender, and 

instead intended the guidelines to describe “a set of 

typical cases embodying the conduct that each 

guideline describes.” Offender characteristics could 

always be considered to determine where within the 

range to sentence an offender. Moreover, in the SRA, 

Congress explicitly permitted sentences outside the 

guideline range in cases in which “there exists an 

aggravating or mitigating circumstance of a kind, or to 

a degree, not adequately taken into consideration by 

the Sentencing Commission in formulating the 

guidelines.”458 Courts could always choose to depart 

“where conduct significantly differs from the norm.”459 

However, current law as interpreted by the Supreme 

Court directs courts to consider broadly offender 

characteristics (except those that would violate 

constitutional principles) and judges increasingly 

sentence offenders outside the range based on 

characteristics such as education, employment history, 

and family and community ties that not only fail to 

distinguish the case from the norm, but, to the 

contrary, are often present in the typical case. 

Further, the fact that judges weigh section 

3553(a)(1) factors differently results in substantial 

sentencing disparities. Both the historical 

underpinnings of the SRA and current case law 

demonstrate that judges weigh factors differently and 

have widely divergent views about the relevance of 

 

457 28 U.S.C. § 994(d). 

458 See 18 U.S.C. § 3553(b); USSG §5K2.0. 

459 USSG Ch.1, Pt.A(4)(b) (Apr. 13, 1987). 

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offender characteristics at sentencing. To the extent 

the interaction between the SRA’s directives to the 

Commission and its instructions to judges is unclear, 

as is currently the case, unwarranted disparity becomes 

inevitable. 

 

CODIFY THE THREE-STEP PROCESS

The Commission recommends that Congress 

codify the three-step sentencing process in which 

sentencing courts begin by calculating the guideline 

range, proceed to evaluate departures within the 

guidelines, and only then consider the sentencing 

factors listed at section 3553(a). Codification of the 

three-step process would have the dual benefit of 

working in concert with the substantial weight 

amendment recommended below and of promoting 

uniformity. Currently the Seventh Circuit does not 

support the three-step process and instead has declared 

departures “obsolete.” In other circuits, case law does 

not state clearly whether the second step is necessary, 

or states that consideration of departures is 

unnecessary as long as the sentence is reasonable. 

Codification of the three-step process would promote 

uniformity in sentencing and may reduce unwarranted 

disparity. 

The importance of the second step, which 

requires consideration of departure policy statements, 

is often overlooked by parties and courts. This 

development both deprives the courts from benefitting 

from the Commission’s expertise provided in the 

departure provisions and diminishes the quality of 

feedback from the courts to the Commission regarding 

offense severity, consideration of offender 

characteristics, and other aspects of the guidelines. 

The Commission finds that as courts increasingly rely 

on the broad section 3553(a) factors without providing 

the same level of specificity as required by departure 

provisions, its ability to discern and respond to specific 

areas of concern to the courts is hindered and 

transparency is lessened. The Commission believes 

that this trend is unlikely to be reversed unless the 

three-step process is formally codified. 

RESOLVE THE UNCERTAINTY ABOUT THE 

WEIGHT TO BE GIVEN TO THE SENTENCING 

GUIDELINES

Finally, the Commission believes that 

Congress should require that courts give the guidelines 

substantial weight. In Booker, the Supreme Court said 

that courts must “consider” the properly determined 

guideline range, but did not express exactly how much 

weight the guidelines should be given. In Pepper v. 

United States, the Supreme Court noted that the 

guidelines are due “respectful consideration,” but, 

citing Gall, declined to distinguish the guidelines and 

policy statements as deserving any greater weight than 

any of the other section 3553(a) factors.460 As a result, 

the Commission is concerned that judges may give 

insufficient weight to the guidelines relative to the 

other section 3553(a) factors, which would contribute 

to increasing sentencing disparity. The Commission 

suggested in its October 2011 testimony that Congress 

statutorily require district courts to give “substantial 

weight” to the guidelines. Other possibilities include 

“due regard” or the “respectful consideration” standard 

adopted by the Court in Pepper.

461 

Regardless of the precise wording chosen, the 

Commission believes Congress should impose one 

uniform standard that conveys the importance of the 

guidelines at sentencing. The guidelines “seek to 

embody the § 3553(a) considerations, both in principle 

and in practice” and they “reflect a rough 

approximation of sentences that might achieve 

§ 3553(a)’s objectives.”462 During the process of 

developing the initial set of guidelines and refining 

them throughout the ensuing years, the Commission 

has considered the factors listed in section 3553(a) that 

were cited with approval in Booker. By setting a 

uniform standard for sentencing judges and resolving 

existing uncertainty as to the weight sentencing judges 

 

460 131 S. Ct. 1229, 1241 (2011) (“Finally, we note that 

§§ 3553(a)(5) and (a)(6) describe only two of the seven 

sentencing factors that courts must consider in imposing 

sentence. At root, amicus effectively invites us 

to elevate two § 3553(a) factors above all others. We reject 

that invitation.”). 

461 Id. at 1249. 

462 Rita, 551 U.S. at 350. 

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should afford the guidelines, Congress would continue 

to move sentencing policy in its preferred direction. 



As envisioned by the SRA, the Commission 

will continue to refine the guidelines in response to 

feedback and information it receives, and remains 

uniquely positioned to provide Congress and the 

criminal justice community with advice and 

information that will help further the goals of 

sentencing. The guidelines will continue to be 

evolutionary in nature, 463 as the Commission gathers 

and analyzes data from actual practice, receives 

feedback through testimony, sentencing and appellate 

decisions, and various forms of public comment, and 

revises the guidelines over time in response to this 

feedback. Below range sentences continue to be an 

important mechanism by which the Commission 

receives feedback from courts regarding the operation 

of the guidelines, and the Commission continues to 

examine below range sentence rates to determine 

whether the severity or proportionality of the 

guidelines for particular offenses or offenders should 

be adjusted. Such feedback from the courts enhances 

the Commission’s ability to fulfill its ongoing statutory 

responsibility under the SRA to periodically review 

and revise the guidelines.464

The Commission continues to believe that a 

strong and effective guidelines system best serves the 

purposes of the SRA. The Commission believes that 

the recommendations described in this report, if 

adopted by Congress, would promote those goals, 

although it recognizes that more substantial reforms 

may be necessary in the future if unwarranted 

disparities persist despite such measures. The 

Commission stands ready to work with Congress, the 

 

463 USSG Ch.1, Pt.A, intro. comment. (“The Commission 

emphasizes, however, that it views the guideline-writing 

process as evolutionary. It expects, and the governing 

statute anticipates, that continuing research, experience, and 

analysis will result in modifications and revisions to the 

guidelines through submission of amendments to 

Congress.”). See also Stephen Breyer, Key Compromises, 

supra note 138, at 8. 

464 See 18 U.S.C. § 994(o) (“The Commission periodically 

shall review and revise, in consideration of comments and 

data coming to its attention, the guidelines promulgated 

pursuant to the provisions of this section.”). 

federal judiciary, the executive branch, and others in 

the federal criminal justice community to ensure 

certain and fair sentencing that avoids unwarranted 

sentencing disparities while maintaining sufficient 

flexibility to permit individualized sentences when 

warranted.465

 

465 See 28 U.S.C. § 991(b)(1)(B). 

115