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DECONSTRUCTING THE GUIDELINES

Deconstructing the Guidelines is a special project undertaken by National Federal Defender Sentencing Resource Counsel.

The papers in this section critically examine the history and basis of the most frequently encountered provisions of the U.S. Sentencing Guidelines. Judges are now invited to consider arguments that the guideline itself fails properly to reflect § 3553(a) considerations, reflects an unsound judgment, does not treat defendant characteristics in the proper way, or that a different sentence is appropriate regardless. Rita v. United States , 127 S. Ct. 2456, 2465, 2468 (2007). Judges "may vary [from Guidelines ranges] based solely on policy considerations, including disagreements with the Guidelines," Kimbrough v. United States, 128 S. Ct. 558, 570 (2007) (internal quotation marks omitted), and when they do, the courts of appeals may not "grant greater factfinding leeway to [the Commission] than to [the] district judge." Rita , 127 S. Ct. at 2463. Whatever respect a guideline may deserve depends on whether the Commission acted in "the exercise of its characteristic institutional role." Kimbrough, 128 S. Ct. at 575. This role has two basic components: (1) reliance on empirical evidence of pre-guidelines sentencing practice, and (2) review and revision in light of judicial decisions, sentencing data, and comments from participants and experts in the field. Rita, 127 S. Ct. at 2464-65. "Notably, not all of the Guidelines are tied to this empirical evidence." Gall v. United States, 128 S. Ct. 586, 594 n.2 (2007). When a guideline is not the product of "empirical data and national experience," it is not an abuse of discretion to conclude that it fails to achieve the § 3553(a)'s purposes, even in "a mine-run case." Kimbrough, 128 S. Ct. at 575.

 

In addition to the papers linked below, National Federal Defender Resource Counsel is working on papers deconstructing other guidelines. Look for these papers in the upcoming months. In the meantime, see The Continuing Struggle for Just, Effective and Constitutional Sentencing After United States v. Booker (August 2006) for evidence and resources supporting the argument that other guidelines are not based on empirical evidence, do not advance sentencing purposes, and do not avoid unwarranted disparities or unwarranted similarities.

 

Also, on the Sentencing Resource Counsel Project Website you can now access a large number of documents and materials from the public record of the Commission that are not currently available on the Commission's website (and are otherwise difficult to obtain). These include public comment (including public comment regarding the initial guideline development process), written hearing testimony from early amendment cycles (and some others), hearing transcripts (before 1997), and various reports (including the 1990 Firearms Working Group Report). These materials are useful for tracing the history and development of any given guideline provision. What comments were received? What was said at the hearings? What did that staff report say? The answers to these questions should help you demonstrate that the Commission, in developing a guideline or policy statement, may not have done so as envisioned by the Sentencing Reform Act and as the Supreme Court has re-emphasized.

Click on the headings below to access links to documents deconstructing a particular guideline.  

CHILD PORNOGRAPHY GUIDELINES
  • Quantity Dependent Sentencing Ranges, the Drug Equivalency Table, and "Oxycodone (Actual)"
    by Michael J. Liston, Esq., Boston, MA
    This article shows that the oxycodone "actual" equivalence is not based on "actual" weight, and produces guideline ranges disproportionate to those for other drugs. It also highlights similar problems resulting from the October 2014 rescheduling of hydrocodone combination products from schedule III to schedule II.

  • Methamphetamine Offenses:
  • Placement of Sentences Under U.S.S.G. § 2D1.1 – FY 2010/2011
    Judges and courts of appeals are increasingly interested in knowing whether other judges are sentencing outside the guideline range.  This can be a rough way of avoiding unwarranted disparity, though the guidelines do not include many relevant factors and the guideline itself may reflect unwarranted disparity or unwarranted uniformity.  A high rate of sentences outside the guideline range indicates that the guideline is not based on "empirical data and national experience."  The tables in this document show percentages of sentences within, above and below the guideline range for offenses involving common drugs that received sentences within the range less than half the time. 

  • Materials on MDMA Guideline: Supplemental Sentencing Memorandum and Hearing Transcript in United States v. Phan; Hearing Transcript, Second Supplemental Sentencing Memorandum, and Opinion in United States v. McCarthy
    These materials present arguments and evidence attacking the appropriateness of adhering to the empirically-flawed MDMA guideline. In Phan the sentencing court varied by 6 months based on the evidence presented by the defense that MDMA is less harmful than reflected in the guidelines as currently constructed. These materials are the work of the ACLU Criminal Law Reform Project.

  • Deconstructing the New Guideline Enhancements Implemented in Response to the Fair Sentencing Act of 2010
    by the National Federal Defender Sentencing Resource Counsel Project
    (This paper provides a brief overview of why guideline increases promulgated in response to a congressional directive are unlikely to advance the purposes of sentencing. It then demonstrates that the guideline increases promulgated in response to the directives in the FSA do not advance the purposes of sentencing, focusing first on the two new enhancements most likely to impact your cases (use or threatened use of violence and maintaining a drug-involved premises), how the Commission amended the guidelines in response to these directives, and ways to argue that the resulting enhancement either does not apply or should not be followed as a matter of policy.)