In December of 2020, the U.S. Sentencing Commission issued a report examining the level of influence guideline ranges imposed in United States v. Booker (2005) still have on sentencing today.
The Basics of the Report
The Commission made other similar reports in the years following Booker. This report, however, looked at longer term trends in guideline influence by dividing the years into three main periods: The Booker Period (2005-2007), The Gall Period (2007-2011) and the Post-Report Period (2012-2017). The report compares actual sentences to the minimum sentencing guideline range in each period for several offense types. The report included fraud, drug trafficking, illegal reentry, non-production child pornography, weapons, and career offense enhancements.
By comparing these factors, the Commission estimated the level of influence by the guidelines on sentencing. They can also identify how levels of influence disseminate across each time period. In other words, the closer the imposed sentences appear to the minimum guideline range, the more influence exerted by the guidelines.
What Kind of Cases?
The report compares the aggregate results and discretionary results. Aggregate results include cases of all types. The Commission defines discretionary results, on the other hand, as cases where “judicial discretion could be meaningfully assessed.” In layman’s terms, this means discretionary results exclude certain cases. Discretionary results exclude cases where external forces significantly alter the imposed sentence. Such exclusion paints a clearer picture of why sentences deviate from the guidelines. Do these guidelines reflect the court’s discretion or other factors? For example, Rule 35 situations where a defendant receives a sentence reduction after providing substantial assistance to the government might artificially lower the aggregate imposed sentence. The aggregate imposed sentence might appear further from the guideline in this case. However, it wouldn’t paint an accurate picture of the guideline’s influence on the court’s decision.
Overall, the report found that sentences, while consistently lower than the guideline minimum for most offense types, still heavily reflect the guidelines.
Since 2005, the gap between average imposed sentence and the guideline minimum widened both in aggregate and discretionary cases across offense types. However, several factors can lead to a revitalization of the guideline influence. Greater guideline influence leads to a subsequent narrowing of the gap between average imposed sentence and guideline minimum. For example, most offense types saw an increased guideline influence with applicable legislation. Drug trafficking offense sentences drew closer to the guideline minimum with the introduction of Amendment 782 in 2014. A changed amendment to the illegal reentry guidelines in 2016 led to an increase in guideline influence in 2017.
Although the guidelines generally influenced all offense types, the type of crime guided the level of influence held by the guidelines. Firearm charges and illegal reentry charges saw sentences close to the guidelines, indicating a very strong influence. Non-production child pornography charges and career offender enhancements were further away from the guidelines than other charges. This indicates a weaker influence. In fact, career offender enhancement cases consistently saw the lowest rates of sentences within the guidelines each year. Drug trafficking cases and fraud cases fell somewhere in between – a moderate influence.
The Sentencing Guidelines are not strictly mandatory. We’ve seen this in many cases, some recent. Nevertheless, they continue to cast a dark cloud over sentencing proceedings to this day. Judges start and too often end with sentences within the Sentencing Guideline range.