Sentencing - Federal Sentencing Guidelines

The Sentencing Reform Act of 1984 is the federal approach to truth-in-sentencing, or determinate sentencing. In the U.S. Sentencing Commission's publication Fifteen Years of Guidelines Sentencing (Washington, DC, November 2004) are listed the goals of the Sentencing Reform Act:

1. Elimination of unwarranted disparity
2. Transparency, certainty, and fairness
3. Proportionate punishment; and
4. Crime control through deterrence, incapacitation, and the rehabilitation of offenders

These goals were aimed at eliminating the unregulated power of federal judges to impose sentences of indeterminate length. Such power resulted in persons convicted of the same crime but sentenced by different judges receiving wildly different terms of incarceration. The development of federal guidelines by the USCC was intended to give both a range of sentencing options to federal judges while guaranteeing minimum and maximum sentencing lengths.

The federal guidelines were originally developed by the USSC, which continues to update the guidelines as laws administered by the federal courts are changed or new laws are passed. The latest edition of the guidelines were published in 2004 (Federal Sentencing Guidelines Manual, November 2004, http://www.ussc.gov/2004guid/TABCON04.htm). Supplemental volumes are also issued by the USSC.

At the core of the guidelines are offenses as defined by federal statutes. The USSC assigns an "offense level" to each offense, known as the Base Offense Level. Levels are numbered from 1 to 43. The lowest actual offense for which the USSC has a level is Trespass. Trespass is level 4. First degree murder has a Base Offense Level of 43. Based on various circumstances associated with an offense, additional levels may be added or taken away until a particular offense has been precisely defined by level. Levels are abstract numbers. Their purpose is to enable the judge or prosecutor to find a particular sentence, in months of imprisonment, in the federal Sentencing Table.

An illustration is provided for kidnapping, abduction, and unlawful restraint. (See Table 9.1.) The table reproduces the USSC's guideline for this offense. The

TABLE 9.1
Federal sentencing guidelines on kidnapping
SOURCE: "§2A4.1. Kidnapping, Abduction, Unlawful Restraint," in 2004 Federal Sentencing Guidelines Manual, U.S. Sentencing Commission, November 2004, http://www.ussc.gov/2004guid/2a4_1.htm (accessed March 31, 2005)

§2A4.1. Kidnapping, abduction, unlawful restraint

Base offense level: 32 Specific offense characteristics If a ransom demand or a demand upon government was made, increase by 6 levels. If the victim sustained permanent or life-threatening bodily injury, increase by 4 levels; if the victim sustained serious bodily injury, increase by 2 levels; or if the degree of injury is between that specified in subdivisions (A) and (B), increase by 3 levels. If a dangerous weapon was used, increase by 2 levels. If the victim was not released before thirty days had elapsed, increase by 2 levels. If the victim was not released before seven days had elapsed, increase by 1 level. If the victim was sexually exploited, increase by 6 levels. If the victim is a minor and, in exchange for money or other consideration, was placed in the care or custody of another person who had no legal right to such care or custody of the victim, increase by 3 levels. If the victim was kidnapped, abducted, or unlawfully restrained during the commission of, or in connection with, another offense or escape therefrom; or if another offense was committed during the kidnapping, abduction, or unlawful restraint, increase to— the offense level from the chapter two offense guideline applicable to that other offense if such offense guideline includes an adjustment for kidnapping, abduction, or unlawful restraint, or otherwise takes such conduct into account; or 4 plus the offense level from the offense guideline applicable to that other offense, but in no event greater than level 43, in any other case, if the resulting offense level is greater than that determined above.

offense has a Base Offense Level of 32, but additional levels can be added. For instance, if the victim sustained serious bodily injury, the level is increased by four to 36. If the victim was also sexually exploited, the level is increased by six levels to 38. If the victim was not released before seven days had passed, the level is increased by one to 33.

In the USSC's Sentencing Table, presented as Table 9.2, level 28 points to six columns of sentence ranges indicating a minimum and a maximum sentence in each column. The first column, where the sentence range is seventy-eight to ninety-seven months, the offender either has no prior convictions or has one prior conviction. In the sixth column, where the sentence is 140 to 175 months, the offender has thirteen or more prior convictions. A single level thus provides six different levels of confinement, and, within each level, there is a range from minimum to maximum. Judges are not entirely deprived of discretion by determinate sentencing.

Level 28 falls into the Sentencing Table's Zone D. This means that the individual may not receive any probation and must serve at least the minimum sentence shown in the applicable column. A three-time offender would be minimally sentenced to eighty-seven months in prison and, under the USSC guidelines, could receive, maximally, fifty-four days off per year for good behavior and would therefore serve at least 85% of the minimum sentence. In the case illustrated earlier, where sexual exploitation is involved, the individual would also be charged for criminal sexual abuse (a Base Offense Level of 24) or for sexual abuse of a minor (Level 18 to 24 depending on whether the abuse was attempted or committed). Parole is not available in any of the guideline cases.

Property crimes are handled in the USSC guidelines in a similar manner. The base level is increased with the amount of property involved. With larceny, embezzlement, and other forms of theft, for instance, the Base Offense Level is 6 in cases where the loss to the victim is $5,000 or less. If the loss is greater than $5,000 but less than $10,000, the level rises to 8 and continues to rise as the amount of the loss rises. If the loss is more than $200,000 but less than $400,000, the level is 18. If the loss is greater than $100 million, the level is 32—which will result in a mandatory sentence of at least ten years in prison for a first-time offender. A person who earned the maximum days for good behavior could expect to be out in eight years and six months if he or she received the minimum sentence. Fines and restitution of stolen money or property would be required in addition.

"Departures" from the Guidelines

Application of the Federal Sentencing Guidelines has increased the likelihood of imprisonment and the average length of sentences, according to the USSC's Fifteen Years of Guidelines Sentencing. In 2002 some 86% of all federal offenders were sentenced to prison, an increase from 69% in 1987. The average sentence in 2002 was almost twice as long as in 1984, but there were yearly variations during this period. Based on data published in the Sourcebook of Criminal Justice Statistics, 2002 (Bureau of Justice Statistics, 2004), the average sentence imposed in 1990 was 59.2 months, excluding life sentences. The average length peaked at 66.4 months in 1995 and then declined to 46.9 months in 2002. This is

TABLE 9.2
Federal sentencing table, 2004
[In months of imprisonment]
SOURCE: "Sentencing Table," in 2004 Federal Sentencing Guidelines Manual, U.S. Sentencing Commission, November 2004, http://www.ussc.gov/2004guid/5a.htm (accessed March 31, 2005)

		Criminal history category (criminal history points)
	Offense level	I (0 or 1)	II (2 or 3)	III (4, 5, 6)	IV (7, 8, 9)	V (10, 11, 12)	VI (13 or more)
	1	0–6	0–6	0–6	0–6	0–6	0–6
	2	0–6	0–6	0–6	0–6	0–6	1–7
	3	0–6	0–6	0–6	0–6	2–8	3–9
	4	0–6	0–6	0–6	2–8	4–10	6–12
zone A	5	0–6	0–6	1–7	4–10	6–12	9–15
	6	0–6	1–7	2–8	6–12	9–15	12–18
	7	0–6	2–8	4–10	8–14	12–18	15–21
	8	0–6	4–10	6–12	10–16	15–21	18–24
zone B	9	4–10	6–12	8–14	12–18	18–24	21–27
	10	6–12	8–14	10–16	15–21	21–27	24–30
zone C	11	8–14	10–16	12–18	18–24	24–30	27–33
	12	10–16	12–18	15–21	21–27	27–33	30–37
	13	12–18	15–21	18–24	24–30	30–37	33–41
	14	15–21	18–24	21–27	27–33	33–41	37–46
	15	18–24	21–27	24–30	30–37	37–46	41–51
	16	21–27	24–30	27–33	33–41	41–51	46–57
	17	24–30	27–33	30–37	37–46	46–57	51–63
	18	27–33	30–37	33–41	41–51	51–63	57–71
	19	30–37	33–41	37–46	46–57	57–71	63–78
	20	33–41	37–46	41–51	51–63	63–78	70–87
	21	37–46	41–51	46–57	57–71	70–87	77–96
	22	41–51	46–57	51–63	63–78	77–96	84–105
	23	46–57	51–63	57–71	70–87	84–105	92–115
	24	51–63	57–71	63–78	77–96	92–115	100–125
	25	57–71	63–78	70–87	84–105	100–125	110–137
	26	63–78	70–87	78–97	92–115	110–137	120–150
zone D	27	70–87	78–97	87–108	100–125	120–150	130–162
	28	78–97	87–108	97–121	110–137	130–162	140–175
	29	87–108	97–121	108–135	121–151	140–175	151–188
	30	97–121	108–135	121–151	135–168	151–188	168–210
	31	108–135	121–151	135–168	151–188	168–210	188–235
	32	121–151	135–168	151–188	168–210	188–235	210–262
	33	135–168	151–188	168–210	188–235	210–262	235–293
	34	151–188	168–210	188–235	210–262	235–293	262–327
	35	168–210	188–235	210–262	235–293	262–327	292–365
	36	188–235	210–262	235–293	262–327	292–365	324–405
	37	210–262	235–293	262–327	292–365	324–405	360–life
	38	235–293	262–327	292–365	324–405	360–life	360–life
	39	262–327	292–365	324–405	360–life	360–life	360–life
	40	292–365	324–405	360–life	360–life	360–life	360–life
	41	324–405	360–life	360–life	360–life	360–life	360–life
	42	360–life	360–life	360–life	360–life	360–life	360–life
	43	life	life	life	life	life	life
Note: Zones indicate whether or not the individual is eligible for probation. Terms that fall into Zone A are eligible for straight probation. Terms that fall into Zone B are eligible for a split sentence in which a portion of the sentence is served in prison, a portion under probation. The person may receive less than the minimum sentence but must serve the remaining time under probation, intermittent confinement, community confinement, or home detention. Terms that fall into Zone C are eligible for probation, but at least half of the guideline sentence must be served in prison. Terms that fall into Zone D require that the minimum term must be served in prison. The criminal history columns refer to prior offenses. Under Category II, for instance, the person to be sentenced has had 2 or 3 prior convictions. This note is not part of the official Sentencing Table; it has been adapted from Lucien B. Cambell and Henry J. Bemporad, An Introduction to Federal Guideline Sentencing, United States Sentencing Commission, Washington, DC, March 2003.

due, in part, to stipulations in the guidelines for so-called "departures" from the guidelines' own provisions. Departures may be "upward" for cases where special circumstances merit longer incarceration than the guideline provides for the maximum sentence; "downward" departures authorize lesser than guideline sentences either for extenuating circumstances or because the defendant provided "substantial assistance" to federal authorities, typically in the form of helping a broader investigation or providing testimony against other suspects.

The 2002 Sourcebook of Federal Sentencing Statistics (Washington, DC: U.S. Sentencing Commission, 2003) reported that in 2002 only 65% of sentences rendered by federal courts were within the range of the guidelines; 0.8% of sentences were upward departures and 34.2% were downward departures, slightly more than half of those for "substantial assistance." (See Table 9.3.)

Departures mean that the guidelines are applied to a majority but not to all persons charged with federal

TABLE 9.3
Sentences within and departing from U.S. Sentencing Commission guidelines, fiscal year 2002
[Prior to enactment of the Protect Act]
SOURCE: "Table 27. Offenders Receiving Departures in Each Primary Offense Category, Fiscal Year 2002," in 2002 Sourcebook of Federal Sentencing Statistics, U.S. Sentencing Commission, 2003, http://www.ussc.gov/ANNRPT/2002/table27.pdf (accessed March 31, 2005)

		Sentenced within range		Substantial assistance departure		Other downward departure		Upward departure
Primary offense	Total	Number	Percent	Number	Percent	Number	Percent	Number	Percent
Total	58,423	37,968	65.0	10,170	17.4	9,828	16.8	457	0.8
Murder	76	50	65.8	4	5.3	9	11.8	13	17.1
Manslaughter	57	37	64.9	1	1.8	6	10.5	13	22.8
Kidnapping/hostage-taking	57	33	57.9	4	7.0	12	21.1	8	14.0
Sexual abuse	195	142	72.8	2	1.0	37	19.0	14	7.2
Assault	445	347	78.0	12	2.7	70	15.7	16	3.6
Robbery	1,522	1,051	69.1	227	14.9	220	14.5	24	1.6
Arson	59	38	64.4	14	23.7	4	6.8	3	5.1
Drugs—trafficking	23,949	13,398	55.9	6,565	27.4	3,932	16.4	54	0.2
Drugs—communication facility	421	303	72.0	56	13.3	61	14.5	1	0.2
Drugs—simple possession	481	458	95.2	17	3.5	4	0.8	2	0.4
Firearms	4,765	3,511	73.7	581	12.2	602	12.6	71	1.5
Burglary/breaking and entering	42	30	71.4	5	11.9	4	9.5	3	7.1
Auto theft	151	93	61.6	41	27.2	14	9.3	3	2.0
Larceny	2,038	1,745	85.6	151	7.4	126	6.2	16	0.8
Fraud	6,378	4,539	71.2	1,135	17.8	633	9.9	71	1.1
Embezzlement	672	588	87.5	24	3.6	58	8.6	2	0.3
Forgery/counterfeiting	1,363	1,094	80.3	159	11.7	97	7.1	13	1.0
Bribery	148	87	58.8	41	27.7	20	13.5	0	0.0
Tax	557	352	63.2	107	19.2	95	17.1	3	0.5
Money laundering	852	496	58.2	245	28.8	101	11.9	10	1.2
Racketeering/extortion	744	474	63.7	178	23.9	75	10.1	17	2.3
Gambling/lottery	95	57	60.0	27	28.4	11	11.6	0	0.0
Civil rights	87	60	69.0	16	18.4	11	12.6	0	0.0
Immigration	10,399	6,861	66.0	248	2.4	3,236	31.1	54	0.5
Pornography/prostitution	613	442	72.1	34	5.5	117	19.1	20	3.3
Prison offenses	297	229	77.1	19	6.4	46	15.5	3	1.0
Administration of Justice offenses	1,010	719	71.2	144	14.3	134	13.3	13	1.3
Environmental/wildlife	121	76	62.8	25	20.7	20	16.5	0	0.0
National defense	9	6	66.7	1	11.1	2	22.2	0	0.0
Antitrust	16	5	31.3	9	56.3	2	12.5	0	0.0
Food & drug	77	55	71.4	10	13.0	11	14.3	1	1.3
Other miscellaneous offenses	727	592	81.4	68	9.4	58	8.0	9	1.2
Note: Of the 64,366 cases, 5,943 were excluded due to one or both of the following reasons: missing primary offense (393) or missing/inapplicable departure information (5,682).

offenses—and also variably by category of offense. In 2002 the two highest categories under guidelines were simple possession of drugs (95.2% under guideline) and embezzlement (87.5%). The lowest category by far was related to antitrust violations (31.3%). Those charged with antitrust violations were most likely to get lower sentences for cooperating with prosecutors; those charged with manslaughter were the most likely to get higher than guideline sentences for unusual violence.

Blakely v. Washington and United States v. Booker

U.S. Supreme Court decisions in 2004 and 2005 have modified sentencing guidelines. In 2004 the Supreme Court ruled in Blakely v. Washington that a state judge cannot impose a longer sentence when the basis for such an enhanced sentence was neither admitted to by the subject nor found by a jury. In the Blakely case the subject admitted to kidnapping his estranged wife. The maximum sentence for the crime was fifty-three months in prison, but the judge imposed a sentence of ninety months after determining that the subject had acted with deliberate cruelty, a factor that under existing statutes allowed a longer sentence. However, the charge of deliberate cruelty had not been part of the subject's plea, and it had not been determined by a jury. The Supreme Court found that the Sixth Amendment right to a trial by jury had thus been violated. The Blakely ruling means that only facts proved to a jury can justify an enhanced sentence.

A related ruling occurred in January 2005 with United States v. Booker. In this case the subject had been charged with possession with intent to distribute 50 grams of crack cocaine, a crime for which the federal sentencing guidelines set a twenty-one-year, ten-month sentence. But the judge later determined that the subject had possessed 92 grams of crack cocaine and had obstructed justice as well. Because of these additional offenses, the judge sentenced Booker to thirty years in prison. In language similar to the Blakely ruling, the U.S. Supreme Court ruled that federal judges cannot determine facts that are used to increase a defendant's punishment beyond what is authorized by a jury verdict or the defendant's own admissions. In addition, the court ruled that federal sentencing guidelines should be considered, but judges are not required to follow them. The legal impact of these two decisions is still being worked out in the courts.