The Enduring Importance of the Federal Sentencing Guidelines
The Federal Sentencing Guidelines begin as a reform measure
Historically, federal judges had near-complete discretion in deciding what sentences to impose for crimes committed in their districts. They needed only to stay within the broad statutory maximum prescribed by Congress. Further, the sentencing decisions of federal judges were rarely subject to appellate review, and therefore rarely overturned or modified.
Not surprisingly, federal sentences were wildly inconsistent, often turning on the temperament of the sentencing judge or, worse, on suspect or biased considerations. Consequently, a movement began to push for more consistency in federal sentencing. Even the U.S. Supreme Court acknowledged that federal judges had unjustifiable discretion in imposing sentences for similar crimes against defendants with similar histories.
In response to increased pressure to reform federal sentencing, Congress passed the landmark Sentencing Reform Act of 1984, which created the United States Sentencing Commission, which in turn was charged with promulgating the Federal Sentencing Guidelines. Alongside the creation of the guidelines, federal parole was simultaneously abolished, meaning that federal prisoners sentenced under the guidelines would serve their full terms.
The guidelines became effective in 1987. As stated, they were enacted with the goal of decreasing sentencing disparity among similarly-charged defendants with similar backgrounds. Specifically, the guidelines were designed as a set of rules that assigned “points” based on the charged offense, the conduct of the defendant in committing the offense, the harm caused by the offense, and the defendant’s prior criminal history. The calculation produced an imprisonment sentencing range expressed in months.
At their inception, the guidelines were binding on all federal judges when imposing sentence on a defendant. The sentencing judge did retain some limited discretion to “depart” from the guidelines, but only if certain factors were “present to an unusual degree.”
The Booker decision upends the federal sentencing landscape
The Federal Sentencing Guidelines were largely succeeding in decreasing sentencing disparity, but they were seemingly always under attack. Many federal judges disliked the guidelines because they took away the discretion they once enjoyed (although judges who came up under the guidelines had a more favorable view of them).
Defendants and federal criminal defense lawyers meanwhile viewed the guidelines as overly-punitive and inflexible. It seemed that only federal prosecutors did not have a beef with the guidelines.
In 2005, in the case United States v. Booker, the U.S. Supreme Court rendered the guidelines “advisory only.” The Court reasoned that the guidelines could result in a sentence based on facts not proven beyond a reasonable doubt to a jury, in violation of the Sixth Amendment. However, importantly, Booker also required that federal judges still “consider” the guidelines when determining the appropriate sentence.
The Booker decision effectively returned sentencing discretion back to federal judges, but that discretion was now tethered to and constrained by the guidelines and its mathematical formulas. Some feared that federal sentencing would return to its historical days of irrational disparity. Others hoped the new advisory guidelines system would produce more individualized and just sentences.
The post-Booker era informs and enlightens
The progeny of cases that followed Booker and interpreted its mandate brought into clear focus the role of the advisory Federal Sentencing Guidelines in federal sentencing.
These cases inform that the sentencing judge is still required to accurately calculate the guidelines in every case, including adherence to controlling case law interpreting guideline provisions. Also, the sentencing judge must use the accurately-calculated guideline sentencing range as the “starting point” for the determination of an appropriate sentence. Further, any variance from the guideline range must be explained on the record, including the specific factors warranting the variance, and the more significant the variance the more significant the factors must be.
However, in a nod to the discretion traditionally afforded to sentencing judges, the standard of appellate review was determined to be “reasonableness.” Thus, unless an abuse of discretion is found, a district judge’s sentencing decisions are highly likely to be upheld, even if the judge failed to make a strong record of their decision.
The Federal Sentencing Guidelines today
Booker and its progeny have undeniably upheld the importance of the Federal Sentencing Guidelines in the federal sentencing landscape. In fact, some would say, myself included, that the guidelines have grown in their importance. How so? Prior to Booker, the guidelines rendered a narrow range of mandatory, and often draconian, sentencing options. Today, while the guidelines continue to be a central sentencing consideration, they also offer an opportunity to argue for less punitive and more individualized sentences outside of the guidelines.
However, to achieve favorable sentencing outcomes in the era of the advisory guidelines, it’s imperative that federal criminal defense lawyers have expert knowledge of the guidelines, a clear sense of which guideline provisions to argue and under what circumstances, and how best to present the issues and arguments to the court. As more senior federal judges retire and are replaced by younger judges, there is a growing comfort for the guidelines among federal judges. In my experience, most judges are content with imposing a guideline sentence, unless they are persuaded to take a more discerning and critical look at the guidelines-suggested sentence. As such, it’s critical that federal criminal defense lawyers not only recognize when the guidelines are applied incorrectly and bring it to the court’s attention, but also recognize when the guidelines are technically applied correctly, but overstate the seriousness of the conduct, and therefore are overly punitive and support a variance from the guideline sentencing range.
I was fortunate to witness much of the evolution of the guidelines while working for the federal judiciary in Southern California from 1998 to 2020. During my career, I spent years learning, researching, and applying the guidelines in over a thousand criminal cases as a federal sentencing specialist and presentence supervisor. Every case seemed to present a new challenge and revelation about the meaning of the guidelines and how they worked. Then, Booker came along and presented new challenges and an entirely new way of approaching the guidelines. For those who were willing, Booker invited federal criminal defense lawyers and other practitioners to dig deeper, consider new legal arguments, and seek more just and individualized sentences for federal criminal defendants. Booker didn’t take away the force of the guidelines; to the contrary, it breathed new vitality into them. It gave the guidelines the flexibility to be a central part of a new progressive sentencing scheme that considers not only the nature and circumstances of the offense, but also the unique personal history and characteristics of the defendant.
After retiring from the federal judiciary in 2020, my continuing deep interest in federal criminal law, and particularly my passion for the history and evolution of the Federal Sentencing Guidelines, inspired me to open my own law office in Southern California specializing in federal criminal defense. I’m a firm believer that today’s federal criminal defense lawyer must have complete and thorough knowledge and understanding of the guidelines, and the willingness and skill to aggressively argue and litigate guideline issues, statutory sentencing factors, and sentence mitigation.