The Irretrievably Broken “Career Offender” Guideline
The Promulgation of the Career Offender Guideline
The career offender guideline was promulgated as part of the Sentencing Reform Act of 1984 in response to a Congressional directive to increase penalties for certain repeat offenders.
The basic statutory criteria of the career offender guideline are that a defendant qualifies as a career offender if the instant offense of conviction is a felony that is either a “crime of violence” or a “controlled substance offense,” and the defendant has at least two prior felony convictions of either a crime of violence or controlled substance offense.
Unlike the federal sentencing guidelines’ customary development process, the U.S. Sentencing Commission, in drafting the career offender guideline, did not use any empirical data. It simply keyed sentences to the statutory maximum for the instant offense of conviction, regardless if it met any of the statutory purposes of sentencing, such as avoiding unwarranted sentence disparity or not conflicting with the “parsimony provision” of 18 U.S.C. § 3553(a) requiring that the sentence be “sufficient, but not greater than necessary” to achieve the statutory goals of sentencing.
The Flaws of the Career Offender Guideline
One of the primary flaws with the career offender guideline is that it fails to meaningfully distinguish among career offenders with different types of criminal records and instant offense conduct.
There are three different pathways to career offender status: drug trafficking only, violent only, and mixed. While there are clear and notable differences between these distinct pathways, the career offender guideline is nonetheless applied uniformly across all three types of cases.
Consider that in fiscal year 2020, 78% of career offenders were convicted of drug trafficking offenses, and therefore would ordinarily be sentenced pursuant to the drug guideline (USSG § 2D1.1). However, in 2020, career offenders were sentenced to an average sentence of 150 months, far exceeding what would otherwise be prescribed by the drug guideline. This is noteworthy because drug trafficking career offenders are not materially different from other federal drug trafficking offenders, yet they are categorically subject to significant increases in punishment required by the career offender guideline.
Also consider that career offenders who are convicted of a violent offense or who have prior violent offenses, have more serious and extensive criminal histories than drug traffickers, recidivate at a higher rate, and are more likely to commit a violent offense in the future. Despite this clear distinction, drug traffickers and dangerous violent offenders are treated on scale with each other under the career offender guideline. Worse still, federal drug trafficking offenses often carry higher statutory maximum penalties than violent offenses, and thus are subject to longer career offender sentences.
The Impact of Career Offender Status
The career offender guideline provides two mechanisms to increase the sentence: a prescribed increase in the offense level based on the statutory maximum sentence of the instant offense of conviction, and a directive that the career offender be placed in the highest criminal history category in every case (category VI).
In virtually all cases, the two-mechanism application of the career offender guideline results in an increase in the otherwise applicable guideline sentence. Further, in fiscal year 2020, application of the career offender guideline resulted in an increase in both the offense level and criminal history category in 44% of the cases.
As should be readily apparent, the most significant sentencing impacts are felt by offenders with the least extensive criminal history. In fact, in 2020, 60% of career offenders who had their criminal history category automatically increased to category VI would have otherwise been in category III or IV.
Sentencing Career Offenders
The percentage of career offenders sentenced outside the applicable guideline range has steadily increased over the past several years. The largest increases have been relevant to career offenders with the least extensive criminal histories. It’s apparent that federal judges have recognized the inherent flaws of the career offender guideline, and, in the absence of legislative action, have chosen to exercise their discretion to restore a semblance of equity when sentencing career offenders who are situated substantially differently from one another.
In fiscal year 2020, the average sentence imposed for career offenders was 150 months. This compares to the average guideline minimum sentence of 220 months, meaning that the average variance was 32% below the guideline range. The percentage variance has been increasing steadily over a number of years, suggesting that the anchoring effect of the guidelines for career offenders is lessening. In 2020, the majority of career offenders, 53%, were sentenced below the guideline range.
Fixing the Career Offender Guideline
As shown, there are two primary concerns with the career offender guideline: its inability to distinguish among offenders with different predicate convictions and different types of qualifying instant offense conduct, and the severe and disproportionate enhancements that result from sentences being keyed to the statutory maximum sentence.
With respect to the first issue, the career offender qualifying criteria should be limited only to those offenders who have committed an instant offense or prior offense that is a crime of violence. This approach is consistent with data showing that career offenders who are convicted of a violent offense or who have prior violent offenses, have more serious and extensive criminal histories than drug traffickers, recidivate at a higher rate, and are more likely to commit a violent offense in the future. This approach is also consistent with the understanding that the normal operation of the guidelines’ criminal history provisions adequately accounts for the risk of recidivism for non-violent offenders who are currently deemed career offenders.
The second issue is a collateral consequence of the first because federal drug trafficking offenses carry much higher statutory maximum sentences than do violent offenses. Even under the proposed change, a drug trafficker with a prior violent offense could still face a longer sentence than a violent offender with a prior violent offense. However, the most serious inequity of the career offender guideline – where non-violent drug traffickers receive substantially longer sentences than violent offenders – would at least begin to be addressed in a meaningful way.
For years, the career offender guideline has severely, and without purpose, punished non-violent drug offenders. While no one expects congressional action anytime soon, federal judges have become more willing to use their discretion to render career offender sentences more just. If you or a loved one are potentially facing a career offender designation, it’s important that you consult with an experienced federal criminal defense attorney to protect your rights and ensure you receive the best possible outcome in your case.