There was a time when federal sentencing was rather straightforward. A convicted defendant, either through a guilty plea or a jury verdict, appeared before a judge to face sentencing. The judge would consider a pre-sentence investigation report, entertain suggestions made by the prosecution, and consider arguments for leniency made by the defendant. The judge then had the discretion within the parameters of a statute—a minimum to a maximum—from which to fashion an appropriate sentence.


In effect, federal judges had unfettered sentencing discretion within statutory parameters. This discretion led to significant sentencing disparities. For example, a judge would impose a sentence of two years on one defendant and 10 years on another defendant for relatively similar conduct; or a judge in one district would impose a twenty-year sentence on a defendant while a judge in another district would give the defendant probation for similar conduct.


Concern for Sentencing Disparity Leads to Guidelines


Abuse of sentencing discretion became a source of congressional concern in the 1970s. It would take Congress ten years of research and debate before it enacted the Sentencing Reform Act of 1984. That Act created the U.S. Sentencing Commission which was charged with the responsibility of establishing guidelines that would make federal sentencing more uniform and fair. The guidelines creation process would be guided by three basic objectives:


  1. Incorporate the purposes of sentencing (i.e., just punishment, deterrence, incapacitation and rehabilitation);
  2. Provide certainty and fairness in meeting the purpose of sentencing by avoiding unwarranted disparity among offenders with similar characteristics convicted of similar criminal conduct, while permitting sufficient judicial flexibility to take into account relevant aggravating factors; and
  3. Reflect, to the extent practicable, advancement in the knowledge of human behavior as it relates to the criminal justice process.


Booker: SCOTUS Holds Guidelines “Advisory”


The U.S. Sentencing Guidelines created by the Commission took effect on November 1, 1987 and were actually implemented in January 1989. For the next sixteen years, federal judges considered those guidelines mandatory under 18 U.S.C. § 3553(b)(1) before the U.S. Supreme Court in 2005 in United States v. Booker ruled that the guidelines were “advisory” but had to be consulted before imposition of sentence.


Booker in effect created four sources of federal sentencing: the recommended sentence in the presentence investigation report prepared by the U.S. probation department based on the guidelines, the U.S. Attorney’s suggested sentence, the defendant’s plea for downward departure from the guidelines, and the judge’s consideration of these three sources.


Post Booker Case in Point


A February 14, 2017 decision by the Eighth Circuit Court of Appeals in United States v. Bevins exemplifies the way the post-Booker process works. Bevins pled guilty in the U.S. District Court for the District of Minnesota to production of child pornography, receipt of child pornography, and possession of child pornography. The advisory sentencing guidelines recommended a sentence of 720 months, the U.S. Attorney’s Office suggested a sentence of 360 months, and the defendant requested a downward departure to 180 months. The judge considered the guidelines recommendation, the government’s suggestion, and the defendant’s request and decided upon a sentence of 300 months—420 months less than guidelines recommended, 60 months less than the government suggested, and 120 months more than the defendant requested.


Was the sentence fair and just?


87 Percent of Defendants Convicted of Federal Crimes Serve Prison Time


According to a 2014 report by the U.S. Sentencing Commission, 87 percent of all convicted federal offenders in fiscal year 2014 received a sentence of imprisonment. The term of imprisonment varied greatly depending upon the seriousness of the offense. For example, offenders convicted of murder received the longest prison terms while offenders convicted of violations of environmental and wildlife laws received the shortest prison terms.


71.1 percent of federal defendants receiving a sentence had a sentence of less than five years imposed. An additional 16.5 percent had a sentence of more than five but less than ten years imposed. Only 12.4 percent of the defendants received a sentence of ten years or more.


Most of the defendants in that 12.4 percent range, it can reasonably be assumed, were convicted of serious violent crimes. The defendant in Bevins was convicted of production of child pornography—a production that depicted him having sexual intercourse with an adolescent child. That made the production offense a serious violent offense. The Bevins defendant, therefore, was sentenced for not only producing child pornography but the sexual assault of a child as well.


Given the parameters in which the judge faced in Bevins, from the 720-month sentence recommended by the guidelines to the 180-month sentence requested by the defendant, the 300-month sentence appears fair and just in that narrow context.  It is interesting to note the wide range of incarceration suggested by the guidelines and the parties before the judge.


Federal sentencing is not for the faint of heart.  Defense lawyers must be prepared to make proper objections to guideline calculations, submit compelling arguments for leniency to the court and fight for the lowest possible sentence that is fair and reasonable.