Federal Sentencing Guidelines: Background, Legal Analysis, and Policy Options

Prepared for Members and Committees of Congress

In United States v. Booker (Booker), an unusual two-part opinion transformed federal criminal
sentencing by restoring to judges much of the discretion that Congress took away when it put
mandatory sentencing guidelines in place. In the first opinion, the Court held that the current
mandatory sentencing guidelines violated defendants’ Sixth Amendment right to a trial by jury by
giving judges the power to make factual findings that increased sentences beyond the maximum
that the jury’s finding alone would support. In the second part, a different majority concluded that
the constitutional deficiency could be remedied if the guidelines were treated as discretionary or
advisory rather than mandatory. As a result of the decisions, the Court struck down a provision in
law that made the federal sentencing guidelines mandatory as well as a provision that permitted
appellate review of departures from the guidelines. In essence, the high Court’s ruling gives
federal judges discretion in sentencing offenders by not requiring them to adhere to the
guidelines; rather, the guidelines can be used by judges on an advisory basis.
Historically, the way in which convicted offenders are sentenced falls under one of two penal
policies—indeterminate and determinate sentences. Indeterminate sentencing practices were
predominant for several decades, leading up to the major reform efforts undertaken by many
states and the federal government in the mid-to late 1970s and early 1980s. The perceived failure
of the indeterminate system to “cure” the criminal, coupled with renewed concern about the rising
crime rate throughout the nation in the mid-1970s, resulted in wide experimentation with
sentencing systems by many states and the creation of sentencing guidelines at the federal level.
In 1984, Congress passed a sentencing reform measure, which abolished indeterminate
sentencing at the federal level and created a determinate sentencing structure through the federal
sentencing guidelines. The Sentencing Reform Act of 1984 reformed the federal sentencing
system by (1) dropping rehabilitation as one of the goals of punishment; (2) creating the U.S.
Sentencing Commission and charging it with establishing sentencing guidelines; (3) making all
federal sentences determinate; and (4) authorizing appellate review of sentences.
In light of the Court ruling in Booker and subsequent cases, the issue for Congress is whether to
amend current law to require federal judges to follow guided sentences, or permit federal judges
to use their discretion in sentencing under certain circumstances. Congressional options include
(1) maintain the sentencing guidelines by specifying mandatory minimum sentences and
increasing the top of each guideline range to a statutory maximum for specified offenses (hence,
codify specified sentencing ranges that are in the guidelines); (2) require jury trials for any
enhancement factor that would increase the sentence for which the defendant did not waive his or
her rights; or (3) take no action, thus permitting judicial discretion in sentencing in cases where
Congress has not specified mandatory sentences.

Introduc tion ..................................................................................................................................... 1
Supreme Court Cases......................................................................................................................2
United States v. Booker and Beyond.........................................................................................2
Penal Policy...................................................................................................................................10
Indeterminate Sentencing.........................................................................................................11
Determinate Sentencing..........................................................................................................12
The Sentencing Reform Act of 1984.............................................................................................12
Sentencing Guidelines...................................................................................................................13
Presumptive Sentencing Guidelines.................................................................................13
Statutory Sentencing Guidelines.......................................................................................14
Advisory or Voluntary Sentencing Guidelines..................................................................14
States’ Sentencing Guidelines...........................................................................................14
Departures from the Guidelines..............................................................................................15
Possible Policy Consideration.......................................................................................................17
Maintain the Sentencing Guidelines.................................................................................17
Provide Jury Trials............................................................................................................18
Permit Judicial Discretion in Sentencing..........................................................................18
Figure 1. Federal Sentences Under the Guidelines, 2003 (Pre-Booker)........................................16
Figure 2. Federal Sentences Under the Guidelines, 2006 (Post-Booker)......................................17
Author Contact Information..........................................................................................................18

On January 12, 2005, the U.S. Supreme Court ruled that the Sixth Amendment right to a trial by 1
jury requires that the current federal sentencing guidelines be advisory, rather than mandatory. In
doing so, the Court struck down a provision in law that made the federal sentencing guidelines 2
mandatory as well as a provision that permitted appellate review of departures from the 3
guidelines. In essence, the Court’s ruling gives federal judges discretion in sentencing offenders
by not requiring them to adhere to the guidelines; rather the guidelines can be used by judges on 4
an advisory basis. As a result of the ruling, judges now have discretion in sentencing defendants
unless the offense carries a mandatory sentence (as specified in law). While some may view the
ruling as an opportunity for federal judges to take into consideration the circumstances unique to
each individual offender, thus handing down a sentence that better fits the offender, others fear
that federal sentencing will give way to unwarranted disparity and inconsistencies across 5
jurisdictions. The Court has begun to clarify some of the lingering questions regarding the
amount of weight to be given to the guidelines and what standards appellate courts should use in
accessing the “reasonableness” of a particular sentence. In light of these rulings, the issue for
Congress is whether to amend current law to require federal judges to follow guided sentences
(hence, codify specified sentencing ranges that are in the guidelines), or to continue the status quo
and permit federal judges to use their discretion in sentencing, under certain circumstances.
The issue that brought the matter before the Court was a judge’s obligation to move from one
guideline maximum to a higher one based on the judge’s factual determination. The Court
examined “[w]hether the Sixth Amendment is violated by the imposition of an enhanced sentence
under the United States Sentencing Guidelines (USSG) based on the sentencing judge’s
determination of a fact (other than a prior conviction) that was not found by the jury or admitted 6
by the defendant.”
This report provides a legal analysis of the Court rulings leading up to and including Booker, as
well as subsequent rulings. The report then provides background information on the federal
sentencing guidelines. In doing so, the report provides a summary of U.S. penal policy, paying
particular attention to such policy at the federal level. The report then discusses legislation
enacted in 1984 that created the current federal sentencing structure. Next, the different types of
sentencing guidelines, including the one that was approved by Congress that was the basis for the
recent U.S. Supreme Court decision, are discussed. The report then provides an analysis of

1 See United States v. Booker, 543 U.S. 220 (2005).
2 According to the ruling, a provision in current law makes the guidelines binding on all judges. The provision, 18
U.S.C. §3553(b), requires courts to impose a sentence within the applicable guidelines range.
3 See 18 U.S.C. §3742(e).
4 While the Court struck down a provision that made the federal sentencing guidelines mandatory, the Court also noted
that current law “... requires judges to take account of the guidelines together with other sentencing goals. See 18
U.S.C. §3553(a). The Court also struck down a provision that permitted appellate review of sentences that were
imposed as a result of a judges departure from the guidelines. The Court noted, however, that current law... continues
to provide for appeals from sentencing decisions (irrespective of whether the trial judge sentences within or outside the
guidelines range)”. See 18 U.S.C. §3742(a),(b).
5 See for example, Erik Luna, “Misguided Guidelines: A Critique of Federal Sentencing,” Policy Analysis, no. 458,
November 1, 2002.
6 U.S. v. Booker, 543 U.S. 220 (2005).

departures from the guidelines under the federal system. The report concludes with an analysis of
possible policy options Congress may wish to consider if it chooses to address this issue.

In a series of cases, the U.S. Supreme Court has held that given the Sixth Amendment right to
trial by jury, judges cannot impose sentences beyond the prescribed statutory maximum unless the 7
facts supporting such an increase are found by a jury beyond a reasonable doubt. In Apprendi v. 89
New Jersey (Apprendi), the Court held that except in the case of recidivists a judge could not
sentence a criminal defendant to a term of imprisonment greater than the statutory maximum
assigned to the crime for which he had been convicted by the jury. Most recently, in Blakely v. 10
Washington (Blakely), the Court held that Washington State’s sentencing guidelines violated the
Sixth Amendment’s guarantee of a trial by jury in criminal cases. Washington State guidelines
allowed judges, rather than juries, to make certain findings of fact that increased an offender’s
sentence. The Court found that the “statutory maximum” for Apprendi purposes is the maximum
sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or
admitted by the defendant. In other words, the relevant statutory maximum is not the maximum
sentence a judge may impose after finding additional facts, but the maximum he may impose 11
without any additional facts. After Blakely, federal courts were immediately faced with
arguments that the USSG also violated the Sixth Amendment. The courts were divided sharply on 12
this issue.
The Court spoke to the application of Blakely to the federal sentencing guidelines in United States
v. Booker (Booker). In Booker, the defendants were each convicted of controlled substances
offenses. In both cases, application of the USSG would require sentencing within ranges beyond
those supported by the verdict alone: in Booker’s case 30 years to life rather than 17 to 21 years
and in Fanfan’s case 15 to 16 years rather than five to six years. The Court unanimously agreed
on the notion that discretionary sentencing guidelines would not implicate a defendant’s Sixth 1314
Amendment right. Applying its decisions in Apprendi and Blakely, the Court held that “[a]ny

7 See Ring v. Arizona, 536 U.S. 584 (2002)(holding that an aggravating circumstance that makes a defendant eligible
for a death sentence is the functional equivalent of an element of an offense for purposes of the Sixth Amendment right
to a jury trial and therefore must be found by a jury).
8 520 U.S. 466 (2000).
9 A recidivist is an ex-offender who has either committed a new crime or has violated the terms of his or her probation
or parole.
10 542 U.S. 296 (2004).
11 Ibid. at 302.
12 See, U.S. v. Fanfan, 2004 WL 1723117, *2 (D.Me. June 28, 2004)(holding that for purposes of constitutional
analysis the federal sentencing guidelines were indistinguishable from those in Blakely); Compare, U.S. v. Koch, 2004 thth
WL 1899930, *1-*6(en banc)(6 Cir. August 2, 2004); U.S. v. Pineiro, 377 F.3d 464, 468-73 (5 Cir. 2004); U.S. v. thth
Reese, 2004 WL 1946076, *1-*4 (11 Cir. September 2, 2004); U.S. v. Ameline, 376 F. 3d 967, 984-87(9 Cir. 2004
(Gould, J. dissenting), with U.S. v. Koch, 2004 WL 1899930, at *7-*13 (Martin J., dissenting); U.S. v. Ameline, 376
F.3d at 972-978.
13 Booker at 231 (stating that “everyone agrees that the constitutional issues presented by these cases would have been
avoided entirely if Congress had omitted from the Sentencing Reform Act of 1984 (SRA) the provisions that make the
Guidelines binding on district judges ...”); Cf, Booker at 795-802 (Thomas, J., dissenting). The majority does not

fact (other than a prior conviction) which is necessary to support a sentence exceeding the
maximum authorized by the facts established by a plea of guilty or a jury verdict must be
admitted by the defendant or proved to a jury beyond a reasonable doubt.” The Court reasoned
that the sentencing guidelines direct a judge in some instances to enhance sentences in a manner
which violates this principle. This violation occurs when a judge makes certain factual findings 15
supported by a preponderance of the evidence to enhance a sentence beyond the range otherwise
authorized by the jury’s verdict or the defendant’s admissions.
In rejecting the government’s arguments to Blakely’s applicability to the federal sentencing
guidelines (guidelines), the Court found that the guidelines were developed by the United States 16
Sentencing Commission rather than by Congress constitutionally insignificant. Moreover, the
Court found that Blakely’s application to the guidelines was not precluded or contradicted by 1718
recent cases dealing with other issues including perjury and the Double Jeopardy clause.
Finally, the Court noted that a separation of powers argument was precluded by its decision in 19
Mistretta v. United States.
In the first opinion, the Court sought to restore the jury’s significance in its finding of the 20
underlying crime. However, in the remedial portion of the decision, the majority gave judges
more discretion in sentencing. With Justice Ginsburg joining the four dissenting judges from the
first part (Justices Breyer, O’Connor, Kennedy and Chief Justice Rehnquist), the Court held
unconstitutional two provisions of the Sentencing Reform Act (SRA): 18 U.S.C. §3553(b)(1),
which makes the guidelines mandatory, and 18 U.S.C. §3742(e), which sets forth standards of 21
review for appeals of departures from the mandatory guidelines.
To reach this conclusion, the majority evaluated the likely effect of the constitutional requirement
on the SRA’s language, history and basic purpose. In other words, the Court answered the

explain how changing the mandatory nature of the guidelines to discretionary cures the constitutional deficiency.
14 This opinion of the Court, in part, was delivered by Justice Stevens, who was joined by Justices Scalia, Souter,
Thomas and Ginsburg.
15 A preponderance of the evidence is “the greater weight of the evidence; superior evidentiary weight that, through not
sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one
side of the issue rather than the other. Bryan A. Garner, Editor,Blacks Law Dictionary,” Second Edition, (St. Paul,
MN: West Group: 2001).
16 Booker at 238. The dissenters in part, Justice Breyer, Chief Justice Rehnquist, and Justices OConnor and Kennedy
found that Blakely should not apply to the federal sentencing guidelines as they are not statutes nor represent elements
of a crime but rather are sentencing facts.
17 United States v. Dunnigan, 507 U.S. 87 (1993) (holding that the provisions of the guidelines that require a sentence
enhancement if the judge determines that the defendant committed perjury do not violate the privilege of the accused to
testify on her own behalf).
18 See Witte v. United States, 515 U.S. 389 (1995) (holding that the Double Jeopardy Clause did not bar a prosecution
for conduct that had provided the basis for an enhancement of the defendant’s sentence in a prior case.
19 488 U.S. 361 (1989) (concluding that even though the Commission performed political rather than adjudicatory
functions, Congress did not exceed its constitutional limitations in creating the Commission).
20 Booker at 237 (stating that the “new sentencing practice forced the Court to address the question of how the right of
jury trial could be preserved, in a meaningful way guaranteeing that the jury would still stand between the individual
and the power of the government under the new sentencing regime.).
21 The solution urged by Justice Stevens with but three of his colleagues would be to avoid constitutional infirmities by
allowing juries to decide the facts that have guideline consequences. The Court found that the remainder of the SRA is
constitutional, can function independently, and is consistent with Congress’ basic objectives in enacting the SRA.

question of what “Congress would have intended” in light of the Court’s constitutional holding.
The Supreme Court based its decision to delete the mandatory requirement of the guidelines on
the supposition that, given the choice, Congress would not have enacted a mandatory system 22
modified to accommodate Blakely. This majority considered three options: (1) invalidating the
act in its entirety; (2) engrafting the Sixth Amendment “jury trial” requirement; and (3) severance
and excision of the offending parts of the SRA. The Breyer majority opined that Congress would
have preferred “the total invalidation of the Act to an Act with the Court’s Sixth Amendment 23
requirement engrafted onto it.” In addition, it concluded that Congress would have preferred the
“excision of some of the Act, namely the Act’s mandatory language to the invalidation of the 24
entire Act.” The Breyer majority noted that severance and excision was closer to Congress’
intended system by “maintaining a strong connection between the sentence imposed and the 25
offender’s real conduct....” As such, the Court concluded that 18 U.S.C. §3553(b)(1) and 18
U.S.C. §3742(e) should be severed and excised to match Congress’ intent of increased uniformity
of sentencing. The Court called upon Congress to decide whether its declaration of judicial 26
discretion merits legislative action.
A possible issue arising under Booker involves the degree of deference the advisory guidelines 27
command. At one end of the spectrum is the view embodied in United States v. Wilson (Wilson)
in which the judge flatly decreed that he will follow the guidelines and impose their prescribed 28
sentence “in all but the most exceptional cases.” At the opposite end is the view reflected in 29
United States v. Ranum (Ranum) where the judge elected to treat the guidelines as just one of a
number of sentencing factors spelled out in 18 U.S.C. §3553(a), including the defendant’s history 30
and characteristics. Applied to Ranum—a sympathetic defendant with compelling personal
qualities, appealing family circumstances and strong proof in mitigation—this approach yielded a 31
year and a day sentence where the guidelines called for 37 to 46 months. A third perspective

22 Booker at 249 (stating thatseveral considerations convince us that, were the Court’s constitutional requirement
added onto the SRA as currently written, the requirement would so transform the scheme that Congress created that
Congress likely would not have intended the Act as so modified to stand.”).
23 Ibid. at 248.
24 Ibid. The dissenters opined that if the constitutional problem was a violation of the right to trial by jury, the solution
should also lay with the jury: to require prosecutors to make more specific indictments and to present to the jury any
fact that would increase a sentence beyond the ordinary range. Justice Stevens said that in avoiding this solution and
instead changing the nature of the guidelines themselves, it was “clear that the courts creative remedy is an exercise of
legislative, rather than judicial, power,” one thatviolates the tradition of judicial restraint.”
25 Ibid. at 253 (stating thatuniformity does not consist simply of similar sentences for those convicted of violations of
the same statute ... It consists, more importantly, of similar relations that Congress sentencing statutes helped to
advance and that Justice Stevens’ approach would undermine.”).
26 Ibid. at 263 (stating thatours, of course, is not the last word: The ball now lies in Congress’ court.”).
27 350 F.Supp.2d 910 (D. Utah January 13, 2005).
28 Id. at 925; see also, United States v. Peach, 327 F.Supp. 2d 1081(D. N.D. February 15, 2005) (concluding that the
court will continue to give consideration to the advisory sentencing guidelines, which will be afforded substantial
weight in sentencing hearings because the federal sentencing guidelines, policy statements, and the sentencing tables
and ranges were created at the direction of Congress and the statutory purposes of sentencing, as directed by Congress,
are best reflected in the guidelines).
29 353 F.Supp.2d 984 (E.D. Wis. January ___, 2005).
30 Id. at 986 (stating that “in every case, courts must now consider all of the §3553(a) factors, not just the guidelines.).
31 Ibid. at 13; accord United States v. Jones, 352 F.Supp.2d 22 (D. Me. January 21, 2005)(imposing discretionary
probation term under §3553(a) where defendant, whose guideline sentence was at least one year, did not qualify for
downward departure); United States v. Revock, 353 F.Supp.2d 127 (D. Me. January 28, 2005)(cutting defendant’s
sentence to eliminate disparity among codefendants, an impermissible departure ground under the guidelines); United
States v. Myers, 353 F. Supp. 2d 1026 (S.D. Iowa, January 26, 2005) (sentencing defendant to three months probation

comes from the Northern District of Oklahoma in United States v. Barkley (Barkley).32 In a
somewhat ironic twist, the Barkley Court exercised its procedural discretion under Booker to
implement the remedy offered by the first Booker merits majority. As such, in trial cases in this
district, juries will find the facts necessary to support relevant sentencing enhancements by proof 33
beyond a reasonable doubt.
Booker and its progeny appear to stand for the proposition that the Guidelines are just one of the 34
factors district courts must consider under §3553(a) to determine a reasonable sentence. While
an appellate court may considerable a sentence within a Guidelines range to be presumptive 35
reasonable, a court may not consider a sentence outside the Guidelines range to be per se 36
unreasonable. It would appear that as long as a district court judge follows proper procedure by
correctly calculating the Guidelines range, addressing §3553(a) factors and articulating
reasonable considerations of the factors, appellate courts are required to give such analysis
deference. As such, the issue of how much weight or deference a sentencing judge must give to
the advisory guidelines remains unanswered.
In Booker’s aftermath, questions remain regarding the decision’s retroactivity. It appears that the 37
Booker Court did not intend that every case on appeal be remanded for resentencing. Rather,
appellate courts were directed “to apply ordinary prudential doctrines, determining, for example, 38
whether the issue was raised below and whether it fails the ‘plain-error’ test.” Although the 39
Supreme Court did not address the issue of its retroactivity on collateral review, the Court’s

instead of using the guideline range of 20-30 months; finding Ranum persuasive); United States v. West, 2005 WL
180930 (S.D.N.Y., January 27, 2005)(following Ranum, in that guidelines are only one factor to consider).
32 369 F.Supp.2d 1309 (N.D. Okla. January 24, 2005).
33 Ibid. at 1325-26. In plea cases, the Court will find enhancing facts in accordance with the Federal Rules of Evidence,
also applying the reasonable doubt standard; see also, United States v. Huerta-Rodriguez, 355 F.Supp.2d 1019 (D. Neb.
February 1, 2005).
34 See Rita v. United States, 127 S.Ct. 2456 (2007)(holding that an appellate court may view the Guidelines range as
presumptive reasonable, although the presumption is nonbinding); Gall v. United States, 2007 WL 4292116
(2007)(holding that while appellate court, in reviewing the reasonableness of a sentence outside advisory Guidelines
range, may take degree of variance into account, there is no rule that requiresextraordinary circumstances to justify
sentence outside Guidelines range); Kimbrough v. United States, 2007 WL 4292040 (2007)(holding that a district court
judge must include the Guidelines range in the array of factors warranting consideration, but the judge may determine
that, in the particular case, a within Guidelines sentence is “greater than necessary” to serve the objectives of
sentencing under §3553(a).
35 See Rita v. United States, 127 S.Ct. 2456 (2007).
36 See Gall v. United States, 2007 WL 4292116 (2007).
37 Booker at 268 (applying the Court’s holding to all cases pending on direct review).
38 Ibid. Some courts are requiring automatic resentencing where a Sixth Amendment claim is preserved, either in
explicit Apprendi/Blakely terms or by contesting a judicial enhancement on other grounds. See, e.g., United States v. thth
Coffey, 395 F.3d 856 (8 Cir. Jan 21, 2005); United States v. Davis, 397 F.3d 340 (6 Cir. January 21, th
2005)(unpublished); United States v. Reese, 397 F.3d 1337 (11 Cir. January 27, 2005); United States v. Harrower, no. th
04-4853, 2005 WL 226164 (4 Cir. January 31, 2005) (unpublished). Other courts have suggested that even
unpreserved Booker violations (i.e., imposing mandatory enhancements on judge-found facts) always amount to plain th
error warranting a remand for resentencing. See, e.g., United States v. Hughes, 396 F.3d 374 (4 Cir. January 24,
2005)(finding no plain error whereoverwhelming evidence supported obstruction of justice enhancement); United th
States v. Milan, 398 F.3d 445 (6 Cir. February 10, 2005).
39 Collateral review occurs after final judgment. For a discussion of retroactivity in criminal law, see CRS Report
RL32613, Standards For Retroactive Application Based Upon Groundbreaking Supreme Court Decisions in Criminal
Law, by Paul Starett Wallace Jr.

decision in Schriro v. Summerlin,40 may provide guidance on the point. Generally, the question of
retroactivity turns on whether the Court announced a new rule and whether the new rule is
substantive (in which case it may apply retroactively) or procedural (in which case it would not 41
apply retroactively unless it qualified as “watershed”). The Summerlin Court concluded that its
previous decision in Ring v. Arizona holding that “any increase in a defendant’s authorized
punishment contingent on the finding of a fact, including eligibility for the death penalty must be 42
found by a jury beyond a reasonable doubt” cannot be treated as a new substantive rule, a rule 43
that “alters the range of conduct or the class of persons that the law punishes.” As such, the
Summerlin Court held that Ring is not retroactive on collateral review. In McReynolds v. United 44
States, a lower court found that Booker, like Apprendi and Ring, must be treated as a procedural 45
decision for purposes of retroactivity analysis. As such, the court concluded that Booker does
not apply retroactively to criminal cases that became final before its release on January 12, 2005.
Due to the severance of 18 U.S.C. §3553(b)(1) and 18 U.S.C. §3742(e)46 district courts are not
bound to apply the guidelines. However, they must consult and consider the guidelines when 47
sentencing. In addition, the Court preserved a right to appeal. A sentence that is outside the
guidelines-determined range is subject to reversal if it fails to meet a “reasonableness” standard, a
term the Court did not define. Some may contend that this lack of definition for
“unreasonableness” may signal a return to pre-guidelines. For example, Justice Scalia noted in his
dissent from the opinion’s second holding, “what I anticipate will happen is that
‘unreasonableness’ review will produce a discordant symphony of different standards, varying
from court to court and judge to judge.” Justice Breyer’s majority felt that the “reasonableness”
standard of review would not be a foreign concept to appellate courts as they have experience in
dealing with reviews of departures and reviews of sentences imposed in the absence of applicable
guidelines. As such, this majority feels that it is fair to assume that appellate judges will prove
capable of handling the task. However, subsequent to the Booker decision, circuits have been split 48
as to the use of a presumption of reasonableness for within-guidelines sentences.

40 542 U.S. 348 (2005) (applying Apprendi’s principles to a particular subject is not retroactive on collateral review).
41 Ibid at 351-52. A procedural decision may be applied retroactively if it establishes one of those rarewatershed rules
of criminal procedure implicating the fundamental fairness and accuracy of the criminal proceeding.” Ibid. at 2522.
42 Ring v. Arizona, 536 U.S. 584, 602 (2002).
43 Summerlin at 352.
44 397 F.3d 479 (7th Cir. January 13, 2005)(concluding that Booker does not apply retroactively to criminal cases that
became final before its release on January 12, 2005).
45 See also, Varela v. United States, 400 F.3d 864 (11th Cir. February 17, 2005)(granting certificate of appealability, but
concluding that although neither 11th Circuit nor Supreme Court have addressed retroactivity of Blakely and Booker;
also stating that U.S. Supreme Court case, Schiro v. Summerlin, “is essentially dispositive of issue); Humphress v. th
United States, 398 F.3d 855 (6 Cir. February 25, 2005) King v. Jeter, 2005 WL 195446 (N.D. Tex. January 27,
2005)(stating that Booker, like Blakely, does not implicate petitioner’s conviction for a substantive offense, and that
Booker is not retroactive when first raised on collateral review); Tuttamore v. United States, 2005 WL 234368 (N.D.
Ohio February 1, 2005); United States v. Ceja, 2005 WL 300415 (N.D. Ill. February 7, 2005).
46 Severance of this section renders inapplicable §401(d)(1) of the Prosecutorial Remedies and Other Tools to end the
Exploitation of Children Today Act of 2003 (PROTECT Act), P.L. 108-21, which added a de novo standard of review
for departures from the sentencing guidelines.
47 Justice Breyer noted that the body of federal sentencing appellate law decided since the guidelines adoption remains
in effect to guide federal courts.
48 Compare United States v. Dorcely, 454 F.3d 366, 376 (D.C. Cir July 21, 2006)(using presumption); United States v.
Green, 436 F.3d 449, 457 (4th Cir February 6, 2006)(same); United States v. Alonzo, 435 F.3d 551, 554 (5th Cir. th
January 09, 2006)(same); United States v. Williams, 436 F.3d 706, 708 (6 Cir. January 31, 2006)(same); United States thth
v. Mykytiuk, 415 F.3d 606, 608 (7 Cir. July 5, 2005) (same); United States v. Lincoln, 413 F.3d 716, 717 (8 Cir. July

In Rita v. United States,49 the Court provided some guidance on how appellate courts should
undertake the “reasonableness” review of a lower court’s sentencing decision. Mr. Rita was
convicted of perjury, making false statements, and obstructing justice. A pre-sentencing report
calculated the applicable guideline range of 33-41 months. After hearing sentencing arguments
from both sides, the judge imposed a sentence of 33 months. On appeal, the defendant argued that
his 33-month sentence was “unreasonable” because (1) it did not adequately take into account
“the defendant’s history and characteristics,” and (2) it “is greater than necessary to comply with
the purposes of the sentencing set forth in 18 U.S.C. § 3553(a)(2).” The Fourth Circuit stated that
a sentence imposed within properly calculated guidelines range is presumptively reasonable. As
such, the court rejected Mr. Rita’s arguments and upheld the sentence. The issue before the
Supreme Court was whether a presumption of reasonableness should apply to a sentence within
the Federal Sentencing Guidelines.
Justice Breyer, writing for the Court,50 held that an appellate court may view the Guideline range 51
as presumptively reasonable, although the presumption is non-binding. The plurality also
concluded that the guidelines are rightly owed a presumption of reasonableness as the guidelines
embody the culmination of an academic effort to craft ranges which accurately reflect the severity
of the charged conduct, while balancing statutory considerations and seeking uniformity and 52
predictability in sentences. However, according to the Court, this presumption is applicable only 53
on appellate review. As such, a sentencing judge is apparently forbidden from using a similar 54
presumption that the guideline sentence is a correct or reasonable one. Rather, the sentencing
judge, after determining the guideline range, may decide that the guideline sentence
should not apply, perhaps because (as the Guidelines themselves foresee) the case at hand
falls outside the “heartlandto which the Commission intends individual Guidelines to
apply, U.S.S.G. §5K2.0, perhaps because the Guidelines sentence itself fails properly to
reflect § 3553(a) considerations, or perhaps the case warrants a different sentence regardless.
See Rule 32(f). Thus, the sentencing court subjects the defendants sentence to the thorough 55
adversarial testing contemplated by federal sentencing procedure.

5, 2005)(same); and United States v. Kristl, 437 F.3d 1050, 1054-1054 (10th Cir. February 17, 2006) (per st
curiam)(same), with United States v. Jimenez-Beltre, 440 F.3d 514, 518 (1 Cir. March 9, 2006) (en banc) (not using nd
presumption); United States v. Fernandez, 443 F.3d 19, 27 (2 Cir. April 3, 2006)(same); United States v. Cooper, 437 rdth
F.3d 324, 331 (3 Cir. February 14, 2006)(same); and United States v. Talley, 431 F.3d 784, 788 (11 Cir. December 2,
2005) (per curiam)(same).
49 127 S.Ct. 2456 (2007).
50 It should be noted that the Courts opinion consisted of four parts, none of which received a majority vote. Arguably,
eight justices concurred in the judgment of the Court with Justice Souter being the lone dissenter.
51 127 S.Ct. at 2463 (noting that by the time the appellate court reviews a within-guidelines sentence, both the
sentencing judge and the Sentencing Commission will have reached the same conclusion as to the proper sentence in
the particular case. That double determination significantly increases the likelihood that the sentence is a reasonable
52 Id. at 2466-67. The plurality also noted that, although appellate courts may presume reasonable a within-guideline
sentence, they may not presume a non-guidance sentence to be unreasonable.
53 Id. at 2465.
54 Id. (stating thatthe sentencing court does not enjoy the benefit of a legal presumption that the Guidelines sentence
should apply.).
55 Id. In addition, Justice Stevens’ concurrence apparently assures district courts that the guidelines are truly advisory.
Id. at 2473 (Stevens, J. concurring).

As such, the Court affirmed the broad sentencing discretion district judges posses under Booker
and stated that they may impose non-guideline sentences by departing or applying §3553(a).
However, the Court also stressed the importance of providing reasons for the sentencing 56
decision. These reasons may be brief when a sentencing judge imposes a guideline sentence.
However, the sentencing judge must respond when a “party contests the Guidelines sentence
generally under §3553(a) - that is argues that the Guidelines reflect an unsound judgment, or, for
example, that they do not generally treat certain defendant characteristics in a proper way—or 57
argues for departure[.]”
While the guidelines can be considered reasonable as a starting point for appellate review, the 58
plurality cautions that this should not be interpreted to be obligatory. Justice Stevens, in a
concurrence signed by Justice Ginsburg in part, appears to pick up on this point and seeks to draw
a distinction between the process described in Rita and prior practices that were deemed 59
unconstitutional in Apprendi and Booker. Justice Souter, the lone dissenter in the case, appears
to be concerned that affording the Guideline range a presumption of reasonableness moves the
federal sentencing system back in the direction of the prior mandatory scheme that was found th
unconstitutional in Booker, and is incongruous with the 6 Amendment protections outlined in 60
In the aftermath of this decision, it appears that, while it is permissible for appellate courts to
apply a non-binding presumption of reasonableness to within-guidelines sentences, questions
linger as to what factors the appellate courts may or should consider to overcome the
presumption. Moreover, given that the Court apparently approved only one method of reviewing
sentences, questions remain as to other methods the Court might approve and whether the
acceptable methods of appellate review apply in other instances where sentences are not within
guideline range.
In two recent decisions, Gall v. United States61 and Kimbrough v. United States,62 the Court
provided additional clarification to both sentencing and appellate courts as to crafting and

56 Id. at 2468.
57 Id.
58 Id. at 2464 (stating that anon-binding appellate presumption that a Guidelines is reasonable does not require the
sentencing judge to impose that sentence.”).
59 Id. at 2473 (Stevens, J. concurring)(stating that
Booker’s standard of review allowsindeed, requiresdistrict judges to consider all of the factors
listed in §3553(a) and to apply them to the individual defendants before them. Appellate courts
must then give deference to the sentencing decisions made by those judges, whether the resulting
sentence is inside or outside the advisory Guidelines range, under traditional abuse-of-discretion
principles. As the Court acknowledges, moreover, presumptively reasonable does not mean always
reasonable; the presumption, of course, must be genuinely rebuttable.
60 Id. at 2487 (Stevens, J. dissenting)(stating that
But if sentencing judges attributed substantial gravitational pull to the now-discretionary
Guidelines, if they treated the Guidelines result as persuasive or presumptively appropriate, the
Booker remedy would in practical terms preserve the very feature of the Guidelines that threatened
to trivialize the jury right. For a presumption of Guidelines reasonableness would tend to produce
Guidelines sentences almost as regularly as mandatory Guidelines had done, with judges finding
the facts needed for a sentence in an upper subrange. This would open the door to undermining
Apprendi itself, and this is what has happened today.
61 2007 WL 4292116 (2007).
62 2007 WL 4292040 (2007).

reviewing sentences in a post-Booker regime. In Gall, the Court ruled that judges may deviate
from the guidelines without having to demonstrate that “extraordinary circumstances” required 63
sentencing outside the guidelines. Gall, while in college, joined a criminal enterprise to sell 64
“ecstasy”. Gall withdrew from the enterprise and obtained steady employment and ultimately 65
became a successful entrepreneur. Approximately three years after withdrawing from the 66
enterprise, Gall pleaded guilty to conspiracy to distribute ecstasy. The guideline range from this 67
crime was imprisonment between 30 to 37 months. However, the sentencing judge gave him 36 68
months on probation, largely based on Gall’s most recent behavior. The Eighth Circuit reversed
the decision on the ground that a sentence outside the guidelines must be supported by 69
“extraordinary circumstances.”
In a 7-2 decision, the Court disagreed and held that the acceptable method of appellate review for
all sentences, whether inside, just outside, or significantly outside the guidelines range, was a
deferential abuse-of-discretion standard. Justice Stevens writing for the majority rejected a
presumption of unreasonableness for sentences outside the guidelines range. As such, the
appellate court must first ensure that the sentencing court followed proper procedure to include
correctly calculating the guidelines range and considering the §3553(a) factors with appropriate 70
explanation. The appellate court may consider the extent of any deviation from the guidelines
range. However, the appellate court “must give due deference to the district court’s decision that 71
the §3553(a) factors, on a whole, justify the extent of the variance.” The fact that an appellate
court would have concluded a different sentence was more appropriate, “is insufficient to justify
reversal of the district court.”
Similarly, In Kimbrough v. United States, another 7-2 decision, the Court held that a sentence
outside the guidelines range is not per se unreasonable when it is based on a disagreement with 72
the sentencing disparity for crack and powered cocaine offenses. In reaching its decision, the 73
Court found that the cocaine guidelines, like all other guidelines, are only advisory. As such, the
cocaine guidelines are just one of the factors warranting consideration under §3553(a) when 74
determining an appropriate sentence. Under relevant statutes, Kimbrough pleaded guilty to a
myriad of offenses including conspiracy to distribute crack and powder cocaine; possession with
intent to distribute more than 50 grams of crack; possession with intent to distribute powder; and 75
possession of a firearm in furtherance of a drug-trafficking offense. Kimbrough’s plea subjected
him to a minimum prison term of 15 years and a maximum of life. The applicable guidelines
range was 19 to 22.5 years. The district court judge found that a sentence within this range would

63 2007 WL 4292116 *7-10.
64 Id. at *2.
65 Id.
66 Id. at *3.
67 Id. at *3-4.
68 Id.
69 Id. at *6.
70 Id. at *12.
71 Id. at *12-13.
72 2007 WL 4292040 at *1.
73 Id. at *10-11.
74 Id.
75 Id. at *5.

have been greater than necessary to achieve the sentencing purposes of §3553(a).76 In making its
determination, the district court took into account Kimbrough’s “history and characteristics” and 77
also took exception with the relative treatment of crack and powdered cocaine.
As in Gall, the Court noted that the district court followed appropriate procedure by properly
calculating and considering the guidelines range. In addition, the district court addressed the
relevant §3553 factors in crafting its sentence. The Court noted that the district court “homed in
on the particular circumstances of Kimbrough’s case and accorded weight to the U.S. Sentencing
Commission’s consistent and emphatic position that the crack/powder disparity is at odds with 78
§3553(a).” As such, the Court found that a reviewing court “could not rationally conclude that 79
the ...reduction Kimbrough received qualified as an abuse of discretion.”
Taken together, these cases arguably provide federal district court judges some discretion in
crafting reasonable sentences, regardless of whether the sentence falls within or outside the
guidelines range. It would appear that judges have more flexibility in determining sentences in
drug cases as judges can disagree with the crack versus cocaine disparity. However, it should be
noted that this flexibility does not eliminate the mandatory minimums established by statute
under federal law.

Historically, the way in which convicted offenders are sentenced falls under one of two penal
policies—indeterminate and determinate sentences. Indeterminate sentencing practices were
predominant for several decades, leading up to the major reform efforts undertaken by many
states and the federal government in the mid-to late 1970s and early 1980s (see discussion in the
next section). Many states and the federal government have variations of determinate sentencing,
including sentencing guidelines. Some states, however, continue to operate under indeterminate
Early penal policy in the United States served the goals of retribution and punishment. Beginning
in 1870, however, rehabilitation became the focus of criminal sentencing, which led to the
adoption of an indeterminate sentencing system in the federal penal system. At the time,
indeterminate sentencing was seen as the preferred mechanism to rehabilitate offenders, which
was the stated goal of punishment. Under the federal indeterminate sentencing scheme, Congress
established the penalty range within which the judge imposed a sentence. Typically, after one-
third of the sentence was served, a parole board would determine if the offender had been
rehabilitated and could be released from prison and placed on parole.
Federal sentencing policy was reexamined by Congress in the early 1970s, and in 1973, a
proposal to revise the entire Federal Criminal Code was introduced, which ultimately included a 80
reform of the federal sentencing system. It wasn’t until 1984, however, that Congress passed a

76 Id.
77 Id.
78 Id. at *15.
79 Id. This decision does not change the statutory 100:1 ratio under federal law.
80 The Criminal Justice Codification, Revision and Reform Act (S. 1) was a product of the movement to revise the
Federal Criminal Code that began in 1952 with the drafting of a Model Penal Code by the American Law Institute

sentencing reform measure, which abolished indeterminate sentencing at the federal level and
created a determinate sentencing structure through the federal sentencing guidelines (see
discussion below).
As stated previously, federal sentencing was indeterminate throughout much of the 20th century.
Defendants sentenced under an indeterminate sentencing scheme do not know the length of time
they will serve. At the federal level, primary control over sentencing rested with the district court.
With few exceptions, Congress provided only maximum terms of incarceration for federal crimes,
while judges set the minimum sentence in individual cases, and the U.S. Parole Board decided
when the offender was released. At the state level, a range of sentences for a particular crime is
established according to statute (e.g., 12 to 20 years) and a judge would sentence the defendant to
that range. The precise amount of time an offender serves, however, is left to prison officials,
usually a parole board. Sentences were indeterminate because the actual length of time that would
be served could not be determined at the time of sentencing.
Indeterminate sentencing, once viewed as a major reform designed to individualize the treatment
of offenders and facilitate rehabilitation, came under attack because it was perceived as
promoting unwarranted disparity in sentences as well as uncertainty of punishment. Critics
contended that the unlimited judicial discretion, without documented justification and review by 81
an appellate court produced sentencing disparities.
The perceived failure of the indeterminate system to “cure” the criminal (usually measured by
recidivism rates), coupled with renewed concern about rising crime rates throughout the nation in
the mid-1970s, resulted in experimentation with sentencing systems by several states and the
creation of sentencing guidelines at the federal level. Despite these developments, however,
indeterminate sentencing remains “the predominate sentencing structure for most states ...
although these laws are becoming increasingly determinate in structure ... by greater use of
mandatory minimums, truth in sentencing provisions, and reduction in the amount of good time 82
credits an inmate can earn while incarcerated.”

(Institute). That document was refined during the following 10 years, and in 1962 the Institute published aProposed
Official Draft of a Model Penal Code. In 1966, Congress created a National Commission on Reform of Federal
Criminal Laws (the Brown Commission) and mandated that it study and review U.S. statutory and case law and make
recommendations for its improvement. The Brown Commission’s report was transmitted to Congress and the President
in 1971 in the form of a “work basis, from which S. 1 was derived. See U.S. Congress, Senate Committee on the thst
Judiciary, Criminal Code Reform Act of 1977, Report on S. 1437, 95 Cong., 1 sess., S.Rept. 95-605, part I
(Washington: Govt. Print. Off., 1977) pp. 10-15.
81 See for example, Marvin E. Frankel, Criminal Sentences: Law Without Order (New York: Hill and Wang, 1973);
Report of the Twentieth Century Fund, Task Force on Criminal Sentencing, Fair and Certain Punishment (New York:
McGraw-Hill Book Company, 1976); and Andrew Von Hirsch, Doing Justice, The Choice of Punishments (New York:
Hill and Wang, 1976).
82 U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Assistance, 1996 National Survey of State
Sentencing Structures, BJA Monograph, pp. xi and 18. According to a 1996 DOJ BJA report, 36 states and the District
of Columbia had at that time an indeterminate sentencing structure.

Prior to many states and the federal government adopting sentencing guidelines and other forms
of sentencing policies, the only alternative to indeterminate sentencing was determinate or
“fixed” sentencing. As sentencing policy evolved, so did the scope of determinate sentencing. For
example, beginning in the 1970s and continuing into the 1990s, Congress and many states passed
legislation that revised sentencing laws and required, in many cases, the mandatory imprisonment
of offenders for committing certain types of crimes. In many instances, such legislation required a
mandatory minimum term of imprisonment. In addition to mandatory minimum laws, Congress
and several states passed legislation that created sentencing commissions charged with
establishing sentencing guidelines. Congress and some states also passed “three-strikes”
provisions, which usually required a life sentence after the third strike and truth-in-sentencing
measures, which required an offender to serve a large percentage of his or her sentence.
Many of the current sentencing alternatives to indeterminate sentencing are variations of
determinate sentencing. There are usually explicit standards specifying the amount of punishment
and a set release date that is not subject to review by an administrative body (i.e., a parole board).
Under determinate sentencing, however, time served can be reduced by good time or earned time.
Both indeterminate and determinate sentencing practices have been criticized by many who
believe that such practices lead to abuse by criminal justice officials and unwarranted disparities
in sentences. Critics of both penal policies contend that such sentences give way to a nonuniform
application of sentences across jurisdictions. With respect to determinate sentences, for example,
judges sentence offenders to a fixed period based on statute, which some contend does not take
into consideration individual offender characteristics. Indeterminate sentencing practices, on the
other hand, lead to disparities due to the potential for “two defendants committing the same crime
under similar circumstances receiving very different sentences depending on a particular judge’s 83
sentencing idiosyncrasies.”

In 1984, Congress passed legislation that led to the creation of federal sentencing guidelines. The
Sentencing Reform Act of 1984 (Chapter II of the Comprehensive Crime Control Act of 1984;
P.L. 98-473), in essence, eliminated indeterminate sentencing at the federal level. The act created
the United States Sentencing Commission, an independent body within the judicial branch of the
federal government and charged it with promulgating guidelines for federal sentencing. The
purpose of the Commission was to examine unwarranted disparity in federal sentencing policy, 84
among other things. In establishing sentencing guidelines for federal judges, the Commission
took into consideration factors such as (1) the nature and degree of harm caused by the offense;
(2) the offender’s prior record; (3) public views of the gravity of the offense; (4) the deterrent 85
effect of a particular sentence; and (5) aggravating or mitigating circumstances. In addition to
these factors, the Commission also considered characteristics of the offender, such as age,

83 American Bar Association, Justice Kennedy Commission, Report with Recommendations to the ABA House of
Delegates, August 2004, p. 14.
84 The Commission was also mandated to examine the effects of sentencing policy upon prison resources (e.g.,
overcrowding) and the use of plea bargaining in the federal criminal justice system.
85 See 18 U.S.C. §994(c).

education, vocational skills, and mental or emotional state, among other things.86 Prior to the
recent Supreme Court ruling, the guidelines were binding, and they were also subjected to
congressional directives and mandatory minimum penalties for specific offenses set by 87
In summary, the Sentencing Reform Act reformed the federal sentencing system in the following
• It abandoned one of the traditional goals of punishment, rehabilitation, and
asserted the following goals: retribution, education, deterrence and 88
• It consolidated the power that had been exercised by judges and the U.S. Parole
Board to decide the type of punishment and its length by abolishing paroles and
creating the U.S. Sentencing Commission and charging it with establishing 89
sentencing guidelines.
• It made all federal sentences determinate.90
• It authorized appellate review of sentences in which the judge departed from the 9192
guidelines and review of other sentences under certain circumstances.

Sentencing guidelines can be presumptive, statutory, advisory or voluntary. The most notable of
these are the presumptive sentencing guidelines, which had been in place at the federal level at
the time of the Supreme Court’s ruling in Booker.
Prior to the Court’s ruling in Booker, the federal sentencing guidelines were characterized as
being presumptive, rather than statutory, advisory or voluntary. Presumptive sentencing
guidelines are contained in or based on legislation, which are adopted by a legislatively created
body, usually a sentencing commission. Presumptive sentencing guidelines set a range of
penalties for an offense that is based on the seriousness of the offense and the defendant’s 93
criminal history. “The guidelines are presumptive in the sense that they set sentencing standards

86 See 18 U.S.C. §994(d).
87 Mandatory minimum sentencing laws are separate from the federal sentencing guidelines. Over the years, Congress
has directed the U.S. Sentencing Commission to integrate mandatory minimum penalties it has passed into the federal
sentencing guidelines. Examples of federal mandatory minimum sentencing laws include the 1986 and 1988 Anti-Drug
Abuse Acts (P.L. 99-570 and P.L. 100-690). In addition to mandatory minimum penalties for certain drug violations,
Congress has passed mandatory minimum penalties for certain gun violations and sex offenses.
88 See 28 U.S.C. §994(k) and 18 U.S.C. §3553(a)92).
89 See 28 U.S.C. §991, 994 and 995(a)91).
90 See 18 U.S.C. §3624(a), (b).
91 See 18 U.S.C. §3742(e).
92 See 18 U.S.C. §3742(a), (b).
93 At the federal level, an applicable sentencing guideline has been designated for each of the more frequently
prosecuted federal crimes. The guideline begins by assigning a base offense level (there are 43 offense levels). For

for individual cases that were presumed to be appropriate and that judges were expected to 94
follow” unless they documented the reasons for departing. At the federal level, after the
guidelines have been adopted by the sentencing commission they are submitted to Congress and
they become effective, barring other congressional action. While judges were required to adhere
to the guidelines, they could depart from them. Departures under presumptive sentencing
guidelines, however, are subject to appellate review.
Statutory sentencing guidelines are created by a legislative body. Statutory sentencing guidelines
are sometimes confused with presumptive sentencing guidelines. While both types of guidelines
are ultimately authorized by a legislative body, statutory sentencing guidelines are directly
authorized by a legislative body, while presumptive sentencing guidelines are established by a
sentencing commission that is usually legislatively created.
The Booker ruling now makes the federal sentencing guidelines advisory. Under an advisory or
voluntary sentencing guideline scheme, judges are not required to follow the sentences set forth
in the guidelines but can use them as a reference.
According to the National Center for State Courts, 23 states and the District of Columbia have 95
implemented presumptive, statutory, or voluntary/advisory sentencing guidelines. Some states,
however, may only have presumptive sentencing guidelines that are applicable to specific
offenses (e.g., certain felonies). Unlike the federal system, states that have adopted presumptive
sentencing guidelines generally do not have enhancement factors built into the guidelines’

example, the guideline for a theft offense, U.S.S.G. §2B1.1, has a base offense level of 6. Offense level adjustments are
available to accommodate aggravating and mitigating circumstances associated with a particular case. The theft
guideline has offense level increases for the amount of money involved, the amount of planning that went into the
offense, and the nature of the property taken, among other things. The final offense level dictates a band of six sentence
ranges, based on the offenders criminal history. The sentencing range for theft at the base offense level of 6 for a first
time offender is 0-6 months; that is, absent a departure, a sentencing court may impose a sentence of imprisonment at
any term up to six months or simply impose a fine. The sentencing range for an offense level of 6 in the case of a repeat
offender with more than four prior felony convictions is 12-18 months; that is, absent a departure, a sentencing court
must impose a sentence between a year and a year-and-a-half.
94 Michael Torny and Kathleen Hatlestad, eds., Sentencing Reform in Overcrowded Times (New York: Oxford
University Press, 1997), pp. 7-8.
95 The 23 states include AK, AR, DE, IN, KA, LA, MD, MI, MN, MO, NC, NJ, OH, OR, PA, RI, SC, TN, UT, VA,
VT, WA and WI. See National Center for State Courts, Blakely v. Washington: Implications for State Courts, July 16,
2004, Appendix E.

Departures from the sentencing guidelines in the federal system can take three forms: substantial
assistance departures, other downward departures and upward departures. Substantial assistance
departures are a form of downward departures and occur when a defendant provides substantial
assistance to the prosecution. Of the three types of departures, upward departures are used least
often and substantial assistance departures are used most often. While departures are available for
judges, the guidelines explicitly prescribe when a judge can depart from the guidelines. As the
Supreme Court asserted in the Booker ruling, “... departures are not available in every case, and in
fact are unavailable in most. In most cases, as a matter of law, the Commission will have 96
adequately taken all relevant factors into account, and no departure will be legally permissible.”
Prior to the Booker decision, Congress weighed in on the issue of downward departures in the th

108 Congress when an amendment to the PROTECT Act was passed that restricted the grounds 97

upon which a federal judge could apply a downward departures. Among other things, the
amendment struck language in current law (18 U.S.C. §3742(e)) that required appellate courts to
“give due deference to the district court’s application of the guidelines to the facts” with respect
to departures and in cases wherein the district court failed to provide a written statement of 98
reasons for the sentence.
As previously discussed, the Booker case had an impact on federal judges’ use of departures in
sentencing defendants. The Blakely case, albeit indirectly, also had an impact on federal judges’
sentencing behavior. Although the Blakely case pertained to Washington State’s sentencing 99
guidelines, federal judges weighed in on the implications Blakely’s decision had on federal
The majority of federal sentences are handed down under the guidelines, with approximately 1% 100
of federal sentences falling outside the guideline’s jurisdiction. The following figures (Figures
1 and 2) depict aggregate departure data pre-and post-Booker (2002 and 2006). As previously
mentioned, Blakely also had an impact on federal judges’ sentencing behavior. However, the
decision was handed down on June 24, 2004, less than seven months prior to the Booker decision.
As a result, there is not a complete year of data for which CRS could provide analysis on the
Blakely decision. Therefore, this section analyzes data pre- and post-Booker (2003 and 2006).
As Figure 1 shows, the majority of pre-Booker departures were downward departures. The
majority of the downward departures occurred due to the defendant providing substantial
assistance to the prosecution or the judge finding mitigating factors, which in both cases would
necessitate a downward departure. In 2003, federal judges departed from the sentencing
guidelines 29.7% of the time, of which less than 1% of the departures were upward departures.

96 U.S. v. Booker, 73 U.S.L.W. 3077 (2004), p. 10.
97 Prosecutorial Remedies and Tools Against the Exploitation of Children Today (PROTECT) Act of 2003 (P.L. 108-
98 For additional information, see CRS Report RL31917, The PROTECT (Amber Alert) Act and the Sentencing
Guidelines, by Charles Doyle.
99 As previously discussed, in Blakely, the Court decided that the judicial application of a sentencing enhancement
under the Washington states sentencing guidelines violated a defendant’s Sixth Amendment right to a jury trial.
100 For example, defendants who are found guilty of an Act of Congress applicable exclusively in the District of
Columbia and defendants convicted of petty crimes are not sentenced under the guidelines.

These figures have remained relatively constant for the years preceding 2003.101 Since the Booker
decision, however, the percentage of sentences that fell within the guideline range has dropped,
while the percentages for both upward and downward departures have increased, as discussed
Figure 1. Federal Sentences Under the Guidelines, 2003 (Pre-Booker)
Source: CRS presentation of federal sentencing data.
Figure 2 depicts a similar picture as in Figure 1 with respect to the majority of sentences falling
within the guideline range. However, there were some variances. In 2006 (post-Booker), there
was an almost 8% drop of federal judges sentencing within the guideline range. As a result, both
downward and upward departures increased by almost 7% and 1%, respectively. In order to fully
understand the changes in federal judicial sentencing practices post-Booker, one would need to
take a more nuance examination of the data at the district and circuit court level.

101 See United States Sentencing Commission, Sourcebook of Federal Sentencing Statistics, (1999, 2000, 2001 and
2002), Table 26.

Figure 2. Federal Sentences Under the Guidelines, 2006 (Post-Booker)
Source: CRS presentation of federal sentencing data.
In both years examined, the data revealed that the vast majority of departures were downward
departures. While proponents view downward departures as necessary in a structured system
because their use allows judges to individualize sentences, critics argue that the frequent use of
downward departures is a mechanism for judges to circumvent the limits imposed on them
through the sentencing guidelines. Moreover, such critics argue that departures should be
eliminated because they produce unwarranted disparity. Unlike the structure that exists with the
prescribed sentencing ranges in the guidelines, departures provide an opportunity for judges to
sentence outside that range. Critics contend that permitting a judge to sentence outside the
specified range could be problematic because judges could potentially increase or decrease a
defendant’s sentence substantially, depending on the circumstances. Departures, however, are not
always viewed as a negative tool. Some view departures as a mechanism for judges to tailor a
sentence that reflects the totality of circumstances regarding an offender and the offense.

In light of the Court’s ruling in Booker and its subsequent rulings in Gall and Kimrough, the issue
for Congress is whether to amend current law to require federal judges to follow guided
sentences, or continue to permit federal judges to use their discretion in sentencing, under certain
circumstances. Following is a discussion and analysis of several selected options Congress could
One option Congress may wish to consider could be to maintain the sentencing guidelines by
specifying mandatory minimum sentences and increasing the top of each guideline range to a
statutory maximum for specified offenses (hence, codify specified sentencing ranges that are in
the guidelines). In essence, this option would require any upward departures to coincide with the
statutory maximum for the offense in question, in which case a statutory maximum would have to
be specified. This option was first presented to the U.S. Sentencing Commission shortly after the

U.S. Supreme Court decision in Blakely by Frank Bowman, who concluded with respect to such
an option:
The practical effect of such an amendment would be to preserve current federal practice
almost unchanged. Guidelines factors would not be elements. They could still
constitutionally be determined by post-conviction judicial findings of fact.... The only
theoretical difference would be that judges could sentence defendants above the top of the 102
current guideline ranges without the formality of an upward departure....
Congress could consider a measure that has been implemented in Kansas. Kansas had 103
presumptive sentencing guidelines that were invalidated by the state’s supreme court. In
response to the court ruling, the state’s legislature chose to retain the sentencing structure by 104
incorporating jury fact-finding as the basis for enhanced sentences. Under this scheme, for each
enhancement that would increase the sentence beyond the guideline maximum for which the
defendant did not waive his or her rights, the judge has the option of trying aggravating factors
before the jury, either during the main trial or in a separate, bifurcated proceeding. The jury would
have to find that the enhanced factors exist beyond a reasonable doubt in order for the enhanced
sentence to be applicable. While this option may satisfy constitutional questions, it may prove to
be an expensive and time-consuming.
Congress may also allow federal judges to exercise their discretion in sentencing in cases where
Congress has not specified a mandatory term of sentence. This option could possibly mirror the
indeterminate sentencing scheme that was in place prior to the sentencing reform effort in 1984.
While such an option would allow judges to individualize sentences to the extent that Congress
has not established a mandatory sentence for the offense, it could also result in a lack of
uniformity due to judges applying different sentences across jurisdictions.
Lisa M. Seghetti Alison M. Smith
Specialist in Domestic Security and Immigration Legislative Attorney
Policy amsmith@crs.loc.gov, 7-6054
lseghetti@crs.loc.gov, 7-4669

102 Frank Bowman, “A Proposal for Bringing the Federal Sentencing Guidelines Into Conformity with Blakely v.
Washington,” Federal Sentencing Reported, vol. 16, no. 364 (June 2004), p. 7.
103 State v. Gould, 23 P.3d 801 (Kan. 2001).
104 Kansas statute annotated §21-4718(b).