Sentencing Guidelines
Reprinted from: Sentencing Guidelines, 40 Georgetown Law Journal Annual Review of Criminal Procedure 711 (2011) (152 Footnotes Omitted).
The Sentencing Reform Act of 1984 created the U.S. Sentencing Guidelines (“Guidelines”), which require a federal district court judge to consider each of the factors in 18 U.S.C. § 3553(a) when crafting a sentence. However, because the Sixth Amendment requires a jury to make all findings of fact, the sentencing range determined through a judge's application of the Guidelines must be treated as an “advisory” recommendation, not a mandatory range.
The factors courts must consider in crafting a sentence are: (1) the “nature and circumstances of the offense” and the defendant's “history and characteristics”; (2) the general purposes of the Sentencing Reform Act; (3) the “kinds of sentences available”; (4) the “pertinent policy statements issued by the U.S. Sentencing Commission”; (5) the “need to avoid unwarranted sentence disparities” between defendants convicted of similar conduct; (6) the “need to provide restitution to any victims”; and (7) the applicable sentence range recommended by the Guidelines. Sentencing courts are required to consider the § 3553(a) factors and may not presume that a sentence within the Guidelines range is automatically reasonable. However, sentencing courts have considerable discretion in deciding how the factors apply to the case and in setting a sentence accordingly. For further discussion, see APPELLATE REVIEW OF SENTENCES in Part V.
The U.S. Sentencing Commission (“Commission”) promulgates the Guidelines. The Guidelines contain a sentencing table that consists of forty-three offense levels and six criminal history categories that, when considered together, provide the recommended sentencing range for any federal offense. The table guides judges in identifying the recommended sentencing range and type of sentence applicable to a defendant.
Offense Level. To determine a defendant's offense level under the Guidelines, the judge selects the offense guideline applicable to the defendant's conviction, determines the base offense level from that guideline, and adjusts that offense level for specific offense characteristics and special instructions contained in the guideline.
The judge may adjust a defendant's offense level based on: (1) the defendant's role in the offense; (2) the defendant's role in any obstructive conduct; (3) the relationship between the counts of which the defendant was convicted; (4) the defendant's acceptance of responsibility for the offense; and (5) the level of victim harm.
In determining the defendant's role in the offense, the court will consider the number of participants and the extensiveness of the offense, as well as whether the defendant was a leader, middleman, or minor participant. The court will also consider whether the defendant abused a position of public or private trust, whether the defendant used any “special skills,” and whether the defendant used or attempted to use a person under the age of eighteen to help commit the crime.
Obstructive conduct includes actions that obstruct or impede the investigation, prosecution, or sentencing of the defendant, such as testifying falsely under oath. Recklessly endangering others while fleeing from a law enforcement officer also warrants sentencing enhancement.
If a defendant is convicted of multiple counts, those involving “substantially the same harm” are “grouped,” or treated as a single offense for sentencing purposes. Counts are also “grouped” when the sentence calculations are interdependent or cumulative.
The sentencing judge may reduce the defendant's offense level if the defendant accepts personal responsibility for the offense, depending on the degree and timeliness of the acceptance. Pleading guilty does not guarantee a reduction, although a conviction at trial does not automatically preclude a reduction. The government may move for a further one-level reduction if: (1) prior to the initial two-level acceptance of responsibility reduction, the combined offense level is sixteen or greater; and (2) the defendant has signaled his or her intention to plead guilty in a timely fashion, thereby assisting authorities in their investigation or prosecution, permitting the government to avoid preparing for trial, and enabling the court to allocate its resources efficiently. The court also considers continuing criminal behavior and any obstruction of the government's investigation in evaluating reductions. Reductions based on acceptance of responsibility have withstood challenges that they violate defendants' Fifth Amendment right against selfincrimination, Fifth Amendment right to due process, and Sixth Amendment right to a jury trial.
Five possible victim-related adjustments may apply to a wide variety of offenses. First, if it can be determined beyond a reasonable doubt that the defendant intentionally selected the victim or property as the object of the offense based on race, color, religion, national origin, ethnicity, gender, disability, or sexual orientation, the base offense level is increased three levels. Second, if the defendant knew or should have known of the victim's unusual vulnerability due to age, physical or mental condition, or other particular susceptibility to criminal conduct, the base offense level is increased two levels. Third, if the victim was a state or federal official or a member of the official's immediate family, the base offense level is increased three levels. Fourth, a two-level increase is applied if a victim was physically restrained during the course of the offense. Fifth, a twelve-level increase is applied if the offense is a felony that involved, or was intended to promote, a federal crime of terrorism.
Criminal History. After determining the “total offense level,” the judge determines the defendant's criminal history category. Prior sentences generally increase a defendant's criminal history category. Prior sentences may be excluded because they occurred in the distant past or for other reasons. Extra points are also assessed when the defendant commits an offense while serving any criminal justice sentence. When the criminal history category does not adequately reflect the seriousness of the defendant's past criminal conduct or the likelihood of recidivism, the Guidelines instruct courts to consider imposing sentences outside of the recommended range.
Career Offenders. Under the Guidelines, “career offenders” must be assigned the highest criminal history category (category VI) and enhanced offense levels. A defendant is a career offender if: (1) the defendant was at least eighteen years old at the time of the instant offense; (2) the instant offense is a felony that is a crime of violence or a controlled substance offense; and (3) the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense.
Career offenders must be at least eighteen years old when committing the instant offense. An offense committed before age eighteen is counted if the defendant was convicted as an adult and received a sentence of imprisonment exceeding one year and one month.
In determining whether an offense is a “crime of violence,” courts consider policy statements and commentary in the Guidelines unless doing so “violates the Constitution or a federal statute, or is inconsistent with, or a plainly erroneous reading of, that guideline.” Crimes of violence include murder, manslaughter, kidnapping, aggravated assault, forcible sex offenses, robbery, arson, extortion, extortionate extension of credit, and burglary of a dwelling. In addition, other offenses are included where an element of the offense involves the use, attempted use, or threatened use of physical force. The defendant's conduct may also establish a crime of violence if the conduct, by its nature, presented a serious potential risk of physical injury.
“Controlled substance offenses” are those “under federal or state law [prohibiting] the manufacture, import, export, distribution, or dispensing of a controlled substance (or a counterfeit substance) or the possession of a controlled substance (or a counterfeit substance) with intent to manufacture, export, distribute, or dispense.”
A defendant's third felony conviction establishes the defendant as a career offender. A defendant's prior conviction need not have been classified as a crime of violence under state law at the time of conviction.
If the instant conviction is a violation of 18 U.S.C. § 922(g) and the defendant has at least three prior convictions for “violent felon[ies] ” or “serious drug offense[s] ,” the defendant is an armed career criminal.
A defendant engaged in a “criminal livelihood” will also receive an enhanced sentence. A defendant is engaged in a “criminal livelihood” if he or she “committed an offense as part of a pattern of criminal conduct engaged in as a livelihood.”
Sentencing Range. The court arrives at the recommended sentence by identifying the range in the Guidelines' sentencing table that corresponds to the defendant's total offense level and criminal history category. Depending on the minimum term of imprisonment contemplated by the Guidelines, the judge has several different punishment options, including imprisonment, probation, and supervised release. For certain crimes, the judge must order restitution. In all cases, the court must impose a fine unless the defendant is currently, and will likely remain, unable to pay.
Departures. Judges have discretion to depart from the recommendations of the Sentencing Guidelines upon finding that the case includes an aggravating or mitigating circumstance “of a kind not adequately taken into consideration” by the Commission. Depending on the nature of such circumstances, either an upward or downward departure may be justified. In either case, the Guidelines require the judge to state the specific reasons for imposing a sentence outside the applicable sentencing range.
Except in exceptional cases, the Guidelines discourage downward departures based on a defendant's personal attributes. Although some factors are precluded from being used as grounds for downward departure, the Guidelines encourage a judge to depart downward based on mitigating factors such as the victim's conduct, lesser harm, coercion and duress, voluntary disclosure of an undiscovered offense, or diminished capacity in the commission of a nonviolent offense.
The Guidelines also allow courts to depart downward if the government moves for a downward departure based on the defendant's substantial assistance in another case. The government's refusal to file a substantial assistance motion is subject to limited judicial review and can be challenged only if a defendant shows that the government breached a plea agreement or that the refusal was motivated by unconstitutional considerations.
Under limited circumstances, a judge may depart upward in the face of aggravating factors associated with the defendant's conduct such as death, physical injury, extreme psychological injury, abduction or unlawful restraint, property damage or loss, possession or use of weapons or dangerous instrumentalities, disruption of a government function, extreme conduct, facilitation or concealment of the commission of another offense, danger to the public welfare, participation in a violent street gang, or possession of a high-capacity semiautomatic firearm in connection with a crime of violence or controlled substance offense. The court cannot consider a defendant's refusal to assist authorities in the investigation of others as an aggravating factor.
Presentence Investigation Reports. Prior to sentencing, the court's probation officer must investigate the defendant and file a presentence investigation report (“PSR”) with the court. A defendant may not waive the PSR, even with the permission of the court. The PSR must contain: (1) the history and characteristics of the defendant, including prior criminal record, financial condition, and any circumstances affecting the defendant's behavior that may be helpful in sentencing; (2) the probation officer's conclusions regarding the defendant's offense level and criminal history category under the Guidelines, the types of sentences available and the applicable sentencing range, and an explanation of any factors that may warrant departure; (3) the impact of the crime on the victim; (4) the nature and extent of nonprison programs available, if appropriate; (5) where the law provides for restitution, information sufficient for a restitution order; (6) any report and recommendation resulting from a court-ordered study of the defendant; and (7) any other required information, including factors listed under 18 U.S.C. § 3553. If the court desires more information than the PSR contains, it may order a complete study of the defendant. Upon request, the defendant's counsel is entitled to notice and a reasonable opportunity to attend any presentence investigation interview.
To prevent the contents of the PSR from influencing the adjudication of guilt or innocence, Rule 32(e)(1) prohibits the probation officer from disclosing the contents of the report to the trial court unless the defendant has pleaded guilty or no contest, been convicted, or given written consent. Subject to certain exceptions, the court must disclose the PSR to the defendant, the defense counsel, and the attorney for the government at least thirty-five days before the sentencing hearing unless the defendant waives this minimum period. Although Rule 32 is silent regarding disclosure of the PSR to third parties, courts are reluctant to disclose a PSR to anyone except the defendant, defense counsel, and the attorney for the government absent a demonstrated need to meet the ends of justice.
Before imposing a sentence, the court must give the defendant, defense counsel, and the attorney for the government an opportunity to comment on the PSR, according to strict timetables. The district court must notify the parties if it is considering departing on a basis not identified as grounds for upward departure in either the PSR or the prehearing submission by the government. If the defendant alleges that the PSR contains factual inaccuracies, the court may choose to hold an evidentiary hearing, allowing the defendant to introduce evidence related to the alleged factual inaccuracy. The court must either make a finding as to the truth of the disputed portion of the PSR or determine that no finding is necessary because the court will not consider the disputed portion of the PSR in sentencing.
Generally, resentencing is required when the sentencing judge fails to make explicit findings, when the sentencing judge fails to disclaim reliance on controverted matters, or when the sentence imposed in a post-Booker case rests on the previously mandatory nature of the Guidelines.
Imposition of Sentence. “A court must impose a sentence without unnecessary delay.” Before imposing a sentence, the court must determine that the defendant and his or her counsel have had an opportunity to read and discuss the PSR or a summary of the report. Furthermore, the court must allow defense counsel the opportunity to speak on the defendant's behalf. Subject to certain exceptions, the defendant must be present at the imposition of the sentence. In addition, the court must address the defendant personally and ask the defendant if he or she wishes to make a statement on his or her own behalf or present any mitigating information. Finally, the victim of the crime has the right to address the court if the victim wishes to speak or present evidence.
In United States v. Watts, the Supreme Court held that a sentencing court may consider conduct underlying charges on which a defendant has been acquitted “if the Government establishes that conduct by a preponderance of the evidence” and the final sentence is within the statutory range. The sentence that a trial judge imposes generally determines the length of imprisonment, although prison terms may be shortened by credits awarded for satisfactory behavior after the first year. In addition, a sentence may be modified or corrected on review.
After the court imposes the sentence, it must advise the defendant of any right to appeal. In addition, the court must advise the defendant of the right to apply for leave to appeal in forma pauperis if the defendant is unable to pay appeal costs.
Improper Considerations. Several constitutional provisions limit the information the sentencing judge may properly consider in determining a sentence. The Due Process Clause forbids the judge to rely on materially false or unreliable information or to vindictively inflict a harsher punishment on the defendant for exercising his or her constitutional right to trial or privilege against self-incrimination. When a judge imposes a more severe sentence after retrial than was initially imposed in the first trial, a rebuttable presumption of vindictiveness may arise. To over come this presumption, a judge must justify his or her action by identifying newly discovered conduct of the defendant about which the judge was unaware at the original sentencing proceeding. A sentencing judge may impose a harsher sentence based on conduct or events subsequent to the first trial such as an intervening conviction of the defendant for an offense committed before imposition of the original sentence. The judge may also impose an increased sentence based on new evidence and testimony relating to events that occurred prior to the first trial. The judge must, however, state on the record the rationale for the increased sentence.
Other constitutional considerations limit the information that may be considered during sentencing. The First Amendment precludes a sentencing judge from considering the defendant's political or religious beliefs, but the judge may consider a racial, ethnic, or religious motivation for a crime. The Fifth Amendment prevents a judge from considering statements obtained from the defendant in violation of the privilege against self-incrimination. The Fourth Amendment exclusionary rule, however, does not automatically prohibit the court from considering evidence obtained in violation of the Fourth Amendment, even though the evidence would be inadmissible at trial.
Statements elicited in violation of the Sixth Amendment right to counsel are generally barred from consideration at sentencing. A sentencing court may, however, consider a previous, uncounseled misdemeanor conviction when sentencing the defendant for a subsequent offense if the previous conviction did not result in a sentence of imprisonment or if the defendant waived the right to counsel.
A sentencing judge may not rely on prosecutorial recommendations in violation of a plea agreement or on prosecutorial communications to the judge in the absence of defense counsel.
Credit for Time Served. The Fifth Amendment prohibition of multiple punishments for the same offense requires that a defendant convicted on retrial receive credit for time served under the original sentence. Defendants also receive credit for time spent in “official detention” prior to the date the sentence commences. This requirement applies whether detention results from the offense for which the sentence was imposed or from arrest on another charge as long as that time has not been credited to some other sentence. An imprisonment sentence commences on the date the defendant voluntarily arrives at the official detention center where the sentence is to be served or when the defendant is placed in custody to await transportation to that location.
A defendant may receive credit toward a federal sentence for time spent in state custody prior to federal custody if (1) the state confinement was solely the result of the state's detention in order to subsequently turn the defendant over to federal authorities at the end of the defendant's term (a federal detainer) and (2) the defendant has not already received credit for that time toward a state sentence. The defendant may not, however, receive credit for serving the federal sentence concurrently with the state sentence. The Attorney General, through the Bureau of Prisons, is responsible for computing credit for time served in official detention.
