The Sentencing Reform Act (SRA) was part of the Comprehensive Crime Control Act of 1984. The SRA abolished the federal parole system, replaced indeterminate sentencing with determinate sentencing, eliminated rehabilitation as a primary sentencing objective, established the United States Sentencing Commission (USSC) to establish consistent, mandatory sentencing guidelines, and authorized appellate review of sentences.


The subsequent set of complex mandatory guidelines established by the USSC removed most judicial sentencing discretion that previously existed in prior decades under the indeterminate sentencing scheme. This sentencing system remained in place for the next two decades until the U.S. Supreme Court in 2005 decided United States v. Booker, which effectively removed the mandatory provisions of the USSC’s guidelines and made them advisory.


That same year, a Congressional Research Service Report (CRSR) explained the impact of Booker:


“In United States v. Booker (Booker), an unusual two-part opinion transformed federal criminal sentencing by restoring to judges much of the discretion Congress took away when it put mandatory sentencing guidelines in place. In the first opinion, the United States Supreme Court held that the mandatory sentencing guidelines violated defendants’ Sixth Amendment right to a trial by jury by giving judges the power to make factual findings that increased sentences beyond the maximum that the jury’s finding alone would support. In the second part, a different majority concluded that the constitutional deficiency could be remedied if the guidelines were treated as discretionary or advisory rather than mandatory. As a result of the decisions, the Court struck down a provision in the law that made the federal sentencing guidelines mandatory, as well as a provision that permitted appellate review of departures from the guidelines. In essence, the high Court’s ruling gives federal judges discretion in sentencing offenders by not requiring them to adhere to the guidelines; rather, the guidelines can be used by judges on an advisory basis.”


Initially hailed as a panacea of a more rational sentencing scheme, criminal defense attorneys have come to realize that while the advisory guidelines system has its benefits, it also poses risks, necessitating that they be prepared to use the broad range of sentencing considerations set forth in 18 U.S.C. § 3553(a)(4)(A), (a)(5) to produce the best outcome for their client. Subsection (a)(2) requires the trial court to “impose s sentence sufficient, but not greater than necessary” to achieve the following purposes of sentencing:


  • to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense; 
  • to afford adequate deterrence to criminal conduct; 
  • to protect the public from further crimes of the defendant; and 
  • to provide the defendant with needed education or vocational training, medical care, or other correctional treatment in the most effective manner.


While the trial court must consider these purposes and record its reasons for imposing any given sentence, it can impose any sentence authorized by the statute for which the defendant is convicted. That sentence can be reviewed only under the narrow legal prism of “unreasonableness” unless proper objections are made, ruled upon, and preserved for appeal.


And therein lays the fundamental uncertainty of federal sentencing: some criminal statutes mandate the imposition of a mandatory minimum sentence. For example, the federal “three strikes” provisions under 18 U.S.C. § 3559(c) mandates that a life sentence be imposed. Supreme Court precedent requires that the mandatory minimum/maximum supersede both the sentencing guideline recommendations and/or the sentencing purposes of § 3553(a).


There are two exceptions to this rule: 1) when a defendant cooperates with the government during the investigation and/or prosecution stages, and 2) when a defendant meets what is known as the “safety valve” requirements in certain drug offenses cases.


3553(e) allows the trial court to sentence a cooperating defendant below the mandatory minimum when they have provided “substantial assistance in the investigation and prosecution of another person who has committed an offense.” Such a departure can occur only after the government, under Rule 35(b) of the Federal Rules of Criminal Procedure, files what is known as a § 5K1.1 motion of substantial assistance. Cooperation alone does not require the government to file such a motion. This is where defense counsel must open the lines of negotiation to secure an agreement that the government will file the motion.


The motion will detail the government’s reasons for seeking a downward departure based upon the prerequisites of U.S. Sentencing Guideline § 5K1.1, such as:


  • The significance and utility of the assistance provided.
  • The truthfulness, reliability, accuracy, and completeness of any testimony or information provided.
  • The nature and extent of the assistance provided.
  • Any injury sustained or risk of injury to the cooperating defendant or their family arising from the assistance provided.
  • The timeliness of the rendered assistance provided.


The sentencing court must then consider the factors in determining whether the downward sentencing departure is warranted.


The “safety valve” provisions are found in § 3553(f). In its detailed and comprehensive analysis of the “Introduction of Federal Sentencing,” the Training Division of the Federal Public Defender’s Office for the Western District of Texas explained how the safety valve process works:


“The ‘safety valve’ statute, 18 U.S.C. § 3553(f), removes the statutory minimum for certain drug crimes. To qualify, the crimes cannot have resulted in death or serious injury, and the court must find that the defendant does not have more than a certain number of criminal history points under the Guidelines, was not violent, armed, or a high-level participant, and provided the government with truthful, complete information regarding the offense of conviction and related conduct. Unlike § 3553(e), the § 3553(f) ‘safety valve’ does not require a government motion, but the government must be allowed to make a recommendation to the court. The Sentencing Commission has promulgated a safety-valve guideline, USSG §5C1.2, which incorporates the requirements of § 3553(f)—with one notable exception: although the First Step Act of 2018 revised the criminal-history criteria under § 3553(f)(1), the Commission has not incorporated that change into §5C1.2. Thus, a defendant may qualify for the statutory safety valve, but not the §5C1.2 safety valve, if he has more than one criminal history point. Similarly, guideline §5C1.2 may reduce the recommended sentencing range even when no statutory minimum is in play.”


Sentencing guidelines, statutory minimums/maximums, presentence investigation reports, upward/downward departures, and a wide array of post-conviction processes make federal sentencing an uncertain landscape. Sentencing is never a perfunctory process. It demands investigation, negotiation, and both factual and legal research by an experienced federal criminal defense lawyer. These demands are the only way to bring some certainty into the process.