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

  • 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)
    
    

• Firearms Guideline

  • 2K2.1 Sentencing Memo
    This sentencing memo deconstructs the firearms guideline as applied in a particular case.
    

• Fraud Guidelines

  • Sentencing Memo in Fraud Case
    This sentencing memo deconstructs the guidelines applicable to fraud in a particular case.
    

• Immigration Guidelines

  • 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
    

• Probation

  • 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 (June 2010)
    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 to the present. 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
    
    

• Controlled Substances

  • Crack Cocaine Sentencing: Guideline Amendments and Elimination of Crack/Powder Disparity
    
    
  • 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)
    
    

Sentencing Commission Announces Proposed Priorities for 2011: The Sentencing Commission has issued notice and request for public comment on possible priority policy issues for the amendment cycle ending May 1, 2011. Tentative priorities include study of and/or reporting on: (1) sentencing practices post-Booker; (2) statutory mandatory minimum penalties; (3) arms trading violations including consideration of amendments to §2M5.2 or other guidelines in Parts K or M of Chapter Two as appropriate; (4) implementation of the directive in section 10606(a)(2)(A) of the Patient Protection and Affordable Care Act regarding health care fraud offenses; (5) cocaine sentencing policy, including consideration of amending the Drug Quantity Table in §2D1.1 across drug types; (6) child pornography offenses; (7) departures within the guidelines; (8) statutory and guideline definitions of "crime of violence", "aggravated felony", "violent felony", and "drug trafficking offense"; (9) possible amendment to provide a reduction in the offense level for certain deportable aliens who agree to a stipulated order of deportation; (10) the guidelines and policy statements pertaining to supervised release; (11) alternatives to incarceration; (12) resolution of circuit conflicts on interpretations of the guidelines; (13) guidelines pertaining to environmental crimes, with particular consideration of whether the fine provisions in Part C of Chapter Eight should apply to such offenses.

Sentencing Commission Votes to Promulgate Amendments to Sentencing Guidelines: In April 2010 the Commission voted to promulgate amendments to the Guidelines. Key among these amendments are those that eliminate recency points in the criminal history calculation, expand the availability of alternatives to incarceration, and address the relevance of certain offender characteristics. The Commission will submit all promulgated amendments to Congress in May 2010. Absent Congressional action, the amendments will take effect on November 1, 2010. For more information on key amendments, and how they can be used even prior to November 2010 to advocate for better sentences, see the Analysis by the National Sentencing Resource Counsel Project. For the federal defender response to the amendments as originally proposed, see defender testimony and comment.

See 2010 Amendments to the Sentencing Guidelines for the official text of all amendments as submitted to Congress. See the Reader Friendly Version of 2010 Amendments for text organized by amendment.

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