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.

• Career Offender Guidelines

• Deconstructing the Career Offender Guideline
  by Amy Baron-Evans, Jennifer Coffin, & Sara Noonan, National Federal Defender Sentencing Resource Counsel
  
  
• Letter Stating the Government's Position on the Career Offender Guideline, Docketed March 17, 2008 in United States v. Funk, No. 05-3708, 3709 (6th Cir.)
  In this letter from a U.S. Attorneys' Office to the Sixth Circuit Court of Appeals in a pending case, the stated "position of the United States" is that the career offender guideline is not mandatory, and that "Kimbrough's reference to [§ 994(h)] reflected the conclusion that Congress intended the Guidelines to reflect the policy stated in Section 994(h), not that the guideline implementing that policy binds federal courts." (Emphasis in original.)
  
  
• Petition for Rehearing En Banc Filed in United States v. Funk -- Government Ordered to Respond -- DOJ Concedes Error
  Despite the government's letter (posted just above), two judges of the panel for the Court of Appeals for the Sixth Circuit applied the "closer review" dictum in Kimbrough to create a novel two-tiered standard of review for substantive reasonableness and to hold that a downward variance based on a district court's policy disagreement with the career offender guideline is "improper." In response to the defendant's petition for rehearing en banc, the government, now represented by the Department of Justice, conceded that the panel majority erred and that courts can disagree as a matter of policy with the career offender guideline, despite Congress's direction to the Commission at 28 USC § 994(h). Yet, DOJ insists that "closer review" is warranted, apparently in light of Congress's directive in 994(h), and that there is no merit to Mr. Funk's argument that the career offender guideline is flawed. Mr. Funk's response, a copy of which is attached here, concisely refutes DOJ's position.
  
  
  • United States v. Funk, No. 05-3708 (6th Cir., July 22, 2008)
  • Petition for Rehearing En Banc
  • Government's Response
  • Petitioner's Reply (as tendered)
  • United States v. Funk, Order Granting Rehearing En Banc (6th Cir, Dec. 18, 2008)
  • Government's Supplemental Brief
  • Appellee's Supplemental Brief
    
    
• United States v. Funk: Order Dismissing Government's Appeal
  On March 27, 2009, the Sixth Circuit, on the government's unopposed motion, dismissed with prejudice the government's appeal in United States v. Funk (see pleadings posted just above). The Court stated: "The opinion of the panel, which was vacated pursuant to the court's order of December 18, 2008 granting en banc review, 6 Cir. R. 35(a), remains vacated."
  
  
• Government Concedes Error in United States v. Vazquez
  A Panel of the Eleventh Circuit held that judges may not disagree with the policy of the career offender guideline. Vazquez filed a petition for rehearing en banc: (1) informing the Court that Congress expressly chose to make § 994(h) a directive to the Commission, not the courts, for the purpose of facilitating judicial feedback about (i.e., disagreement with) the guideline; (2) demonstrating that under Rita, Kimbrough and Gall, sentencing courts are free to disagree with guidelines that are based on congressional directives to the Commission; (3) showing that the career offender guideline did not arise from the Commission's exercise of its characteristic institutional role; (4) detailing the position of every Circuit to decide the issue, and the Solicitor General of the United States, that courts are free to disagree with the career offender guideline; and (5) arguing that the Panel misapplied the Eleventh Circuit's prior precedent rule.
  
  After denial of the petition for rehearing en banc, Vazquez petitioned for certiorari. The Solicitor General has conceded error, arguing that the petition for a writ of certiorari should be granted, the judgment of the court of appeals vacated, and the case remanded for further proceedings in light of the position of the United States asserted in its brief. On January 19, 2010, the Supreme Court granted certiorari, vacated the judgment and remanded for further consideration in light of the position asserted by the Solicitor General in her brief.
  
  

• Child Pornography Guidelines

  • A Method for Careful Study: A Proposal for Reforming the Child Pornography Guidelines
    by Troy Stabenow, Assistant Federal Public Defender, W.D. MO
    (The Federal Sentencing Reporter, Vol. 24, No. 2, p. 108, December 2011) This article provides: (1) a summary of court trends from 2008 to 2011, providing empirical evidence that courts increasingly sentence 2G2.2 cases below the Guidelines; (2) new information on charging and plea disparities around the country; and (3) a survey of the various forensic studies undertaken in an effort  to quantify the risk that these offenders will go on to re-offend, or "progress" to contact offenses.
    
    
  • Deconstructing the Myth of Careful Study: A Primer on the Flawed Progression of the Child Pornography Guidelines (revised January 1, 2009) and Table of Amendments
    by Troy Stabenow, Assistant Federal Public Defender, W.D. MO
    
    
  • 2G2.2 Reply to Government
    This reply brief in a child pornography case refutes the government's argument that guidelines based on congressional directives are not properly subject to scrutiny by district court judges. The reply also supplements Troy Stabenow's paper (submitted at an earlier stage in the case) in showing that the Commission did not act in its characteristic institutional role in promulgating the child pornography guidelines.
    
    
  • Appellant's Brief Regarding Amount-of-Images Enhancement
    This brief, filed in the Sixth Circuit, argues that the amount-of-images enhancement to the child pornography guideline violates the separation of powers doctrine because Congress, not the Commission, unilaterally and directly promulgated that enhancement.
    
    
  • Troy Stabenow Letter to the Editor of the ABA Journal (July 13, 2009)
    (criticizing DOJ's response to ABA article on child pornography and the Sentencing Guidelines)
    
    

• Drug Guidelines

  • 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.)
    
    

• Firearms Guideline

  • 2K2.1 Sentencing Memo
    This sentencing memo deconstructs the firearms guideline as applied in a particular case.
    
    
  • Sample Sentencing Memo on Semiautomatic Weapon and Magazine
    This sentencing memo deconstructs the firearms guideline relating to the base offense level for possession of a semiautomatic firearm with a large capacity magazine in close proximity.
    

• Fraud Guidelines

  • Sentencing Memo in Fraud Case
    This sentencing memorandum makes use of sentencing purposes and individualized circumstances in Part II, and deconstructs the fraud guideline in Part III.
    
    
  • Groundhog Day: What's New in White Collar Sentencing
    by David Debold, Gibson, Dunn & Crutcher LLP, and Amy Baron-Evans, National Federal Defender Sentencing Resource Counsel
    (This PowerPoint presentation contains information on deconstructing the fraud guideline, particularly with respect to the increases in the loss table over time.)

• Immigration Guidelines

  • United States v. Ramirez, et al. - Petition for Rehearing & Rehearing En Banc
    (arguing that the Seventh Circuit's panel decision (1) creates a circuit split and deviates from the Seventh Circuit's own precedent by requiring defendants seeking fast-track disparity reductions to waive certain rights without receiving any benefit in exchange; and (2) creates an additional circuit split by requiring defendants to provide extremely detailed information about all fast-track programs)
    
    
  • The Fallacies Underlying Immigration Guideline §2L1.2
    by Maureen Franco, Deputy Federal Public Defender, W.D. TX, Judy Madewell, Assistant Federal Public Defender, W.D. TX, Mike Gorman, Legal Research & Writing Assistant, W.D. TX
    
    
  • Why the Prior Conviction Sentencing Enhancements In Illegal Re-Entry Cases Are Unjust and Unjustified (and Unreasonable Too)
    (This article by Doug Keller, formerly an attorney with the Federal Defenders of San Diego, Inc., was published in the Boston College Law Review, 51 Boston Coll. L. Rev. 719 (May 2010). It argues that the Commission has never provided a justification for the sentencing enhancements in illegal re-entry cases, the enhancements undercut Congress's goal of reducing unwarranted sentencing disparity, and a cursory examination of the enhancements shows that they are unsound and should not be followed.)
    
    
  • 12/28/09 DOJ Fast-Track Authorization Memo
    

• Mitigating Factors

  • No More Math Without Subtraction: Deconstructing the Guidelines' Prohibitions and Restrictions on Mitigating Factors
    by Amy Baron-Evans and Jennifer Niles Coffin, Sentencing Resource Project
    (This paper builds on the work of the Federal Defenders during the United States Sentencing Commission's regional hearings and recent amendment cycle to convince the Commission to either delete its policy statements or bring them in line with current "knowledge of human behavior as it relates to the criminal justice system." 28 U.S.C. § 991(b)(1)(C). It sets forth a number of reasons why judges should vary from the guideline range based on mitigating factors that the policy statements continue to prohibit or discourage, and reject the Guideline Manual's math-without-subtraction approach. Use the live hyperlinks in the Table of Contents to navigate through the document.)
    
    

• Probation

  • Deconstructing the Commission's Failure to Provide for Probation and Intermediate Sanctions
    by Amy Baron-Evans, National Federal Defender Sentencing Resource Counsel
    (explaining that Congress intended that probation and intermediate sanctions would be used more often under the guidelines than before, when probation was imposed in about 38% of cases, and how the Commission failed to implement that intent.)
    
    
  • United States v. Negroni, Brief of Appellee Negroni
    (Argument I.B deconstructs the Commission's failure to provide for probation as a distinct kind of sentence.)
    
    
  • United States v. Negroni, Petition for Rehearing of Appellee Negroni
    (Argument 2 establishes that the Commission's disapproval of probation is contrary to congressional intent.)
    
    
  • Amicus Brief, United States v. Tomko
    National Association of Criminal Defense Lawyers; Third Circuit Federal Public & Community Defenders
    (In the context of a particular case, this brief deconstructs the tax guidelines as well as the guidelines' failure to provide for probation.)
    
    

• Relevant Conduct Guideline

  • Deconstructing the Relevant Conduct Guideline: Challenging the Use of Uncharged and Acquitted Offenses in Sentencing (Revised August 11, 2008)
    by Amy Baron-Evans & Jennifer Niles Coffin, National Federal Defender Sentencing Resource Counsel
    
    

• Tax Guideline

  • Amicus Brief, United States v. Tomko
    National Association of Criminal Defense Lawyers; Third Circuit Federal Public & Community Defenders
    (In the context of a particular case, this brief deconstructs the tax guidelines as well as the guidelines' failure to provide for probation.)
    
    

• Resources on Deconstruction

  • Sentencing Resource Counsel Project of the Federal Public and Community Defenders
    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).
    
    
  • Senate Report on the Sentencing Reform Act of 1984
    (a source of legislative history for the Deconstructing the Guidelines project)
    
    
  • Sentencing Resource Counsel Directives Table (November 2011)
    In 2004, the Commission collected every congressional directive enacted since the advent of the guidelines system. See Fifteen Years of Guidelines Sentencing: An Assessment of How Well the Federal Criminal Justice System is Achieving the Goals of Sentencing Reform, Appendix B (Nov. 2004). This document updates that table so that it spans 1988 through November 2011. It also supplements the information in the Commission's table by including the actual language of the directive and describing in detail the changes made to the Guidelines Manual in response to the directive. In this form, the table is intended to serve as a research tool for deconstructing a particular guideline, focusing on the Commission's actions in response to each directive and showing whether the Commission's response exceeded the scope of the directive, contradicted it, or failed to respond at all.
    
    

• Developing mitigation evidence
  
  
• Persuasive writing/effective hearing
  
  
• Model documents

The resources below are designed to further an understanding of sentencing under particular statutory provisions and/or sentencing guidelines. Many of the links provide ideas for how to argue against the application of a particular statutory provision or guideline in a given case. For resources that critically examine the history and basis of the most frequently encountered sentencing guidelines see the Deconstruction section on this page.

• Acquitted Conduct

  • Appellant's Supplemental Brief and Cert Petition Raising Sixth Amendment Challenge to the Use of Acquitted Conduct in Sentencing
    
    

• Child Pornography

  • Briefs Challenging Application of Mandatory Minimum for Receipt of Child Pornography
    This opening brief and reply brief (filed in a pending case in the Third Circuit) argue that (1) where five counts of receiving or transporting child pornography were all the "same offense," for multiplicity and double jeopardy purposes, as a single count of possession of those very same files, the judgment must be vacated and the case remanded for an exercise of discretion whether to vacate the possession count (with no mandatory minimum), or the five other counts (each with a five-year mandatory minimum); and (2) the mandatory minimums were not mandatory because 18 U.S.C. § 3553(a) is the controlling sentencing provision.

• Controlled Substances

  • Crack Cocaine Sentencing
    
    
  • Endangering Human Life & the Environment - A Sentencing Hearing Potential
    by Gene Gietzen, Forensic Scientist, Forensic Consulting Associates, Springfield, MO
    (describing usefulness of expert testimony in combating the endangering human life and the environment enhancement in meth lab cases)
    
    

• Crime Victim Rights

  • Crime Victim Rights Page

• Fast-Track Disparity

  • The Truth About Fast Track
    
    
  • 12/28/09 DOJ Fast-Track Authorization Memo
    
    
  • 5/29/09 DOJ Fast-Track Authorization Memo
    
    
  • 2/1/08 DOJ Fast-Track Authorization Memo
    
    
  • Conditional Waiver of Rights in Districts Without Fast-Track
    Practitioners in districts without fast-track may consider using a conditional waiver of rights to support a disparate sentencing argument. The conditional waiver helps prove the client is similarly situated to defendants in fast-track districts in that he is willing to waive the same rights as do fast-track defendants, in exchange for a comparably low sentence.
    
    
  • Fast-Track Articles and Primary Source Materials
    These articles and primary source materials, published in the Fast Track issue of the Federal Sentencing Reporter (Vol. 21, No. 5, June 2009), are useful in arguing that judges have discretion to mitigate fast-track disparities. The above link provides free excerpts of and citations to the articles and source materials; use the citations to locate complete versions through LEXIS.
    
    
  • United States v. Ramirez, et al. - Petition for Rehearing & Rehearing En Banc
    (arguing that the Seventh Circuit's panel decision (1) creates a circuit split and deviates from the Seventh Circuit's own precedent by requiring defendants seeking fast-track disparity reductions to waive certain rights without receiving any benefit in exchange; and (2) creates an additional circuit split by requiring defendants to provide extremely detailed information about all fast-track programs)
    
    

• Firearms

  • "Annotated" USSG § 2K2.1 & Commentary
    by Brent E. Newton, Assistant Federal Public Defender, S.D. TX
    (providing step-by-step instruction in applying § 2K2.1, the firearms guideline)
    
    

• Guidelines Sentencing Generally

  • Video: Introduction to the Federal Sentencing Guidelines (Sentencing Guidelines 101)
    Michael F. Maloney, AFD, District of Nebraska
    
    

• Illegal Re-Entry

  (See also Fast-Track Disparity links above)
  
  
  • Challenging the Upward Bumps: The Categorical Approach and Other Sentencing Strategies for Illegal Re-Entry (8 U.S.C. §1326) Cases
    by Francisco Morales, Assistant Federal Public Defender, W.D. TX
  
  
  
  • Analyzing Presentence Reports and Common Sentencing Issues in Illegal Reentry Cases
    by Shari Allison and James Langell, Assistant Federal Public Defenders D. NM
    
    
  • Crimes of Violence Under §2L1.2
    compiled by Anne Berton, Assistant Federal Public Defender, W.D. TX
    
    
  • Case List: Sentencing Issues in Reentry Cases
    by Shari Allison, Research and Writing Specialist; and James Langell, Assistant Federal Public Defender, D. NM
    
    
  • Defending Against Sentencing Enhancements in Immigration Cases
    by Anne Berton, Assistant Federal Defender, W.D. TX, & Mike Gorman, Staff Attorney, Office of the Federal Defender, W.D. TX.
    
    
  • Sentencing in Illegal Reentry Cases: Getting the Departures and Variances Your Client Deserves
    by Kari Converse, Assistant Federal Public Defender, D. NM
    (discussing ways to bring your client’s sentence down from the guideline Offense Severity Level.)
    
    

• Predicate Convictions

  (See also Illegal Re-Entry links above)
  
  
• Is That Prior a Violent Felony or a Crime of Violence?: An Analytical Framework for Approaching ACCA (and Career Offender) Predicates
  by Denise C. Barrett and Laura Mate, National Sentencing Resource Counsel Project
  
  
• Determining "Crimes of Violence" and "Violent Felonies"
  by Michael A. Meetze, Assistant Federal Public Defender, D. SC
  (Discussing how to determine whether a previous conviction actually qualifies as a crime of violence or violent felony and how to defend against any such erroneous characterization.)
  
  
• Video: Determining "Crimes of Violence" & "Violent Felonies"
  by Michael A. Meetze, Assistant Federal Public Defender, D. SC
  
  
• Video: Defending Against Armed Career Criminal & Career Offender Designations
  by Raquel Lazo, Assistant Federal Public Defender, D. NV; Brenda Weksler, Assistant Federal Public Defender, D. NV
  
  
• Video: Recidivism, Recidivism, Recidivism: How to Mitigate Your Client's Criminal History
  by Jane McClellan, Assistant Federal Defender, D. AZ
  
  
• Glorious Goo: The Taylor/Shepard Categorical & Modified Categorical Analyses
  by Steven Kalar, Senior Litigator, and Jodi Linker, Assistant Federal Public Defender, N.D. CA
  
  
• Potential Uses of Begay & Chambers: Annotated Caselaw Outline
  by Anne E. Blanchard & Sara E. Noonan, Sentencing Resource Counsel Project
  (discussing caselaw for use in ACCA cases and career offender guideline cases)
  
  
• Preserving the Sixth Amendment Claim for Proof of Prior Convictions (February 12, 2008)
  In a number of federal prosecutions -- including immigration, firearms, and child pornography cases -- a client's sentence may be increased on the basis of prior convictions. This may violate the Sixth Amendment's jury trial and reasonable doubt requirements. In this article from the Ninth Circuit Blog, Steve Sady (Chief Deputy Federal Public Defender, D. OR) argues that practitioners should continue to make and preserve the Sixth Amendment claim that the fact of a prior conviction must be found by the jury.
  
  

2011 Guideline Amendments Take Effect: The United States Sentencing Commission has published its 2011 Guidelines Manual. Several amendments to the sentencing guidelines took effect as of November 1, 2011. For an analysis of the most relevant amendments see the Sentencing Resource Counsel Project’s Summary of 2011 Proposed Amendments to the Sentencing Guidelines. (Congress adopted the proposed amendments without modification.) The more significant amendments include the promulgation of a permanent amendment implementing the provisions of the Fair Sentencing Act of 2010; an amendment to §2L1.2 (illegal reentry) that provides a limitation on the use of convictions under §2L1.2(b)(1)(A) and (B) in certain circumstances, and a provision for an upward departure in other circumstances; changes to the application notes to the §3B1.2 guidelines (mitigating role); an amendment on supervised release, creating an exception to the general rule that a term of supervised release be imposed whenever a sentence of imprisonment of more than one year is imposed, or when required by statute, and lowering the minimum term of supervised release required by the guidelines for certain defendants when a statute does not require a higher minimum; amendment of the fraud guideline regarding health care fraud offenses; and amendment of the firearms guideline involving straw purchasers.

Sentencing Commission Gives Notice of Proposed Priorities for 2012: The Sentencing Commission has published notice of its proposed policy priorities for the guideline amendment cycle ending May 1, 2012. Its tentative priorities include the following (see the Federal Register Notice of Proposed Priorities and Request for Public Comment for full details): (1) continued work on statutory mandatory minimum penalties, including a review of the operation of the "safety valve" provision at 18 U.S.C. § 3553(e); (2) continued work on implementation of the directives in section 1079A of the Dodd-Frank Wall Street Reform and Consumer Protection Act, regarding securities fraud offenses and fraud offenses relating to financial institutions or federally related mortgage loans; (3) continued study of and reporting on the manner in which Booker and its progeny have impacted federal sentencing practices; (4) continued work on multi-year review of § 2D1.1 and possible consideration of amendments to the federal sentencing guidelines for drug offenses; (5) Continued review of child pornography offenses, with a resulting report and recommendation to Congress; (6) continued multi-year study of the statutory and guideline definitions of “crime of violence”, “aggravated felony”, “violent felony”, and “drug trafficking offense”, including possible consideration of an amendment to specify the types of documents to be considered under the Taylor/Shepard "categorical approach" for determining the applicability of guideline enhancements; (7) continued review of departures within the guidelines, including provisions in Parts H and K of Chapter Five of the Guidelines Manual, and the extent to which pertinent statutory provisions prohibit, discourage, or encourage certain factors as forming the basis for departure from the guideline sentence; (8) continued multi-year review of the guidelines’ application to human rights offenses, and possible promulgation of guidelines or guideline amendments with respect to these offenses; (9) consideration of §5K2.19 (Post-Sentencing Rehabilitative Efforts) (Policy Statement) in light of Pepper; (10) consideration of whether to provide a specific reference for N-Benzylpiperazine (BZP) in the Drug Quantity Table in §2D1.1.

Alternatives to Incarceration: On July 14-15, 2008, the USSC held a national symposium on alternatives to incarceration in Washington, D.C. According to the Commission, the purposes of the symposium were "to gather information regarding the use of alternatives to incarceration and to provide a forum for idea-sharing concerning possible implementation of non-incarceration sanctions in the federal system." In January 2009 the Commission also issued an extensive report, Alternative Sentencing in the Federal Criminal Justice System. In its guideline amendments promulgated in April 2010, the Commission expanded the availability of alternatives to incarceration, as explained in the Analysis by the National Sentencing Resource Counsel Project.

Defender Recommendations to Sentencing Commission: The Federal Defender community frequently submits written comments to the USSC on a variety of matters, including proposed amendments to the guidelines. These submissions, which may provide ideas for challenging guideline sentences, can be accessed on our Defender Recommendations to Sentencing Commission page.

• The Presentence Investigation Report
  Publication 107 of the Office of Probation and Pretrial Services (March 2006)
  (a guide for U.S. probation officers in the preparation of presentence reports)

Occasionally counsel may represent a client who receives a sentence of probation. More often, clients will be sentenced to a term of imprisonment which will be followed by a term of supervised release. Supervised release is similar to probation in that it involves supervision by a federal probation officer, and requires adherence to conditions set by the court at the original sentencing hearing. Whether the client faces the prospect of a sentence to probation, or a sentence of imprisonment to be followed by a term of supervised release, counsel should be familiar with the law and mechanics of these modes of supervision so that, among other things, counsel may argue for appropriate conditions, advise the client of the ramifications of violating those conditions, and prepare the client for the rigors of federal supervision.

Further, from time to time counsel may be appointed to represent a client who has allegedly violated the conditions of probation or supervised release, and thus faces the potential consequences of revocation and incarceration. Effective advocacy in a revocation case includes an understanding of the process due a client in a revocation proceeding, a familiarity with the applicable statutes and sentencing guidelines, and, if a violation is conceded or proved, the thorough preparation and presentation of mitigating evidence.

There have also been some advances in the movement toward alternatives to incarceration, other than probation, within the federal system. For example, the Second Chance Act includes provisions that could increase slightly the percentage of a federal sentence that can be served in home confinement.

Please visit our Probation/Supervised Release/Alternatives to Incarceration page for further information.

• United States Sentencing Commission
  
  
• Sentencing Law & Policy Blog
  
  
• Families Against Mandatory Minimums
  
  
• The Sentencing Project
  
  
• Sentencing Resource Counsel Project of the Federal Public and Community Defenders