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 SS 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 fact finding 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 SS 3553(a)'s purposes, even in "a mine-run case." Kimbrough, 128 S. Ct. at 575. Click on the headings below to access links to documents deconstructing a particular guideline. Career Offender Guidelines Data Analyses -Career Offenders Effect of Career Offender Status: Description of Data, Methodologies and Data Source Average Sentences of Drug Trafficking Offenders (Career Offender and Non-Career Offender) -- FY 2005-2014 Comparison of Average Sentence for Drug Defendants (Career Offender and Non-Career Offender) -- FY 2005-2014 In fiscal year 2011, 2,257 defendants were subject to the career offender guideline. Only 33.9% were sentenced within the guideline range, while 1.1% were sentenced above the range. Judges departed or varied below the range in 26.6% of cases without a government motion, and in 38.4% of cases with a government motion. See U.S. Sentencing Commission 2011 Monitoring Dataset. Deconstructing the Career Offender Guideline by Amy Baron-Evans, Jennifer Coffin, & Sara Noonan, National Federal Defender Sentencing Resource Counsel Appellant's Opening Brief in United States v. Clay (providing an example of how to argue that the career offender guideline is unsound) 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 [SS 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 SS 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 Government's Motion to Dismiss Appeal 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 SS 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 Sample Sentencing Memo in Child Pornography Case This sentencing memo refutes Congress's reasons for directing the child pornography guideline in a hypothetical case involving a defendant convicted of possessing child pornography. The memo also deconstructs those aspects of the guideline that were chosen by the Commission. List of Child Pornography Cases in Which the Defendant Received a Sentence of Probation or One Day Prepared by the National Federal Defender Sentencing Resource Counsel Project Placement of Sentences Under U.S.S.G. SS2G2.2 - FY 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" and fails to provide a sentence that is not greater than necessary to achieve the purposes of sentencing. The tables in this document show (1) percentages of sentences within, above and below the guideline range for defendants sentenced under U.S.S.G. SS2G2.2 in all CHCs combined and in each CHC; (2) percentages of sentences within, above and below the guideline range for defendants in CHCI who receive the most common upward specific offense level adjustments under the guideline; and (3) the number of defendants receiving various lengths of prison terms, including no term of imprisonment, for defendants in each CHC, and for defendants in CHCI who receive various final offense levels. Number of Sentences Receiving Various Terms of Imprisonment Under SS2G.2.2 in Each CHC - FY 2010 The table in this document shows the number of defendants receiving various lengths of prison terms, including no term of imprisonment, for defendants in each CHC in fiscal year 2010. 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 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: Sample Sentencing Argument Promulgation and Amendment History of USSG SS 2D1.1 Promulgation and Amendment History of USSG SS 2D1.11 for Offenses Involving Methamphetamine Precursors Placement of Sentences Under U.S.S.G. SS2G2.2 - FY 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. Firearms Guidelines 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 Table of Amendments to USSG SS 2B1.1 and SS 2F.1.1 (1988-2013) Compiled by National Sentencing Resource Counsel 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 Fast-Track Policies, Plea Agreements, Authorization Memos, and Other Fast-Track Materials Sentencing Memo in Illegal Re-entry Case (sentencing memo excerpt using statistics and other deconstruction arguments) 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 SS2L1.2 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. 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. SS 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 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 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 2012. 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
