I. Introduction Amy Baron-Evans April 2009

Introduction and “How To” Guide to Deconstructing the Guidelines
Amy Baron-Evans
April 2009
I.
Introduction
Judges are now invited to consider arguments that the applicable guidelines fail properly
to reflect § 3553(a) considerations, reflect an unsound judgment, do not treat defendant
characteristics in the proper way, or that a different sentence is appropriate regardless.
Rita v.United States, 127 S. Ct. 2456, 2465, 2468 (2007). Judges “may vary [from
Guidelines ranges] based solely on policy considerations, including disagreements with
the Guidelines,” Kimbrough v. United States, 128 S. Ct. 558, 570 (2007) (internal
quotation marks omitted), and when they do, the courts of appeals may not “grant greater
factfinding leeway to [the Commission] than to [the] district judge.” Rita, 127 S. Ct. at
2463.
Judges and courts of appeals are embracing this invitation with respect to a wide variety
of guidelines. 1 A reasoned judicial determination that a particular guideline reflects
1
See United States v. Mondragon-Santiago, __ F.3d __, 2009 WL 782894 (5th Cir. Mar. 26,
2009) (all guidelines, including § 2L1.2); United States v. White, 551 F.3d 381, 386 (6th Cir.
2008) (all guidelines); United States v. Cavera, 550 F.3d 180, 191 (2d Cir. 2009) (en banc) (all
guidelines); United States v. Hearn, 549 F.3d 680, 683 (7th Cir. 2008) (all guidelines); United
States v. Seval, slip op., 2008 WL 4376826 (2d Cir. Sept. 25, 2008) (fast track); United States v.
Vanvliet, 542 F.3d 259 (1st Cir. 2008) (computer enhancement under § 2G1.3); United States v.
Liddell, 543 F.3d 877 (7th Cir. 2008) (career offender); United States v. Tankersley, 537 F.3d
1100 (9th Cir. 2008) (all guidelines); United States v. Jones, 531 F.3d 163 (2d Cir. 2008) (all
guidelines); United States v. Boardman, 528 F.3d 86, 87 (1st Cir. 2008) (career offender); United
States v. Rodriguez, 527 F.3d 221 (1st Cir. 2008) (fast track and all guidelines); United States v.
Martin, 520 F.3d 87, 88-96 (1st Cir. 2008) (career offender); United States v. Smart, 518 F.3d.
800, 808-09 (10th Cir. 2008) (all guidelines); United States v. Sanchez, 517 F.3d 651, 662-65 (2d
Cir. 2008) (career offender); United States v. Marshall, slip op., 2008 WL 55989 at **8-9 (7th
Cir. Jan. 4, 2008) (career offender); United States v. Barsumyan, 517 F.3d 1154, 1158-59 (9th
Cir. 2008) (all guidelines); United States v. Nincehelser, 2009 WL 872441 (D. Neb. Mar. 30,
2009) (methamphetamine); United States v. Beiermann, 599 F. Supp. 2d 1087 (N.D. Iowa 2009);
United States v. Phinney, 599 F. Supp. 2d 1037 (E.D. Wis. 2009) (child pornography); United States v.
Lenagh, 2009 WL 296999 (D. Neb. Feb. 6, 2009) (white collar crimes); United States v. Thomas,
595 F. Supp. 2d 949 (E.D. Wis. 2009) (all drug guidelines); United States v. Moreland, 568 F.
Supp. 2d 674 (S.D. W. Va. 2008) (career offender); United States v. Malone, slip op., 2008 U.S.
Dist. LEXIS 13648 (E.D. Mich. Feb. 22, 2008) (career offender); United States v. Cabrera, 567
F.Supp.2d 271 (D. Mass. 2008) (over-emphasis on drug quantity, under-emphasis on minimal
role); United States v. Grant, slip op., 2008 WL 2485610 (D. Neb. June 16, 2008) (second degree
murder guideline); United States v. Shipley, 560 F. Supp. 2d 739 (S.D. Iowa June 19, 2008) (child
pornography); United States v. Rausch, 570 F. Supp. 2d 1295 (D. Colo. 2008) (child
pornography); United States v. Hanson, 561 F.Supp.2d 1004 (E. D. Wis. June 20, 2008) (child
pornography); United States v. Ontiveros, 2008 WL 2937539 (E.D. Wis. July 24, 2008) (child
pornography); United States v. Taylor, 2008 WL 2332314 (S.D.N.Y. June 2, 2008) (child
pornography); United States v. McClelland, 2008 WL 1808364 (D. Kan. April 21, 2008 (child
pornography); United States v Baird, slip op., 2008 WL 151258 (D. Neb. Jan. 11, 2008) (child
1
unsound judgment in light of § 3553(a) considerations results in a more just and effective
sentence in the individual case, and, by providing feedback to the Sentencing
Commission, serves a core function in the constructive evolution of responsible
guidelines. See Rita, 127 S. Ct. at 2464, 2465, 2468-69; Kimbrough, 128 S. Ct. at 57374; United States v. Jones, 531 F.3d 163, 174 n.8 (2d Cir. 2008).
A.
General Framework
Whether a judge may draw any useful advice from a guideline depends first on whether
the Commission, in promulgating or amending it, acted in “the exercise of its
characteristic institutional role.” Kimbrough, 128 S. Ct. at 575. As described in Rita, the
exercise of this role has two basic components: (1) reliance on empirical evidence of preguidelines 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.
The importance of whether empirical evidence of past practice was used to develop a
particular guideline was repeated in both Gall and Kimbrough. See Gall, 128 S. Ct. at
594 & n.2; Kimbrough, 128 S. Ct. at 567. But why is this important? Because, although
Congress directed the Commission to design the guidelines based on the purposes of
sentencing set forth in § 3553(a)(2), see 28 U.S.C. § 991(b), a “philosophical problem”
arose when the Commissioners could not agree on which purposes should predominate.
Thus, they abandoned that approach and instead “took an ‘empirical approach,’
beginning with an empirical examination of 10,000 presentence reports setting forth what
judges had done in the past and then modifying and adjusting past practice in the interests
of greater rationality, avoiding inconsistency, complying with congressional instructions,
and the like.” 2 Rita, 127 S. Ct. at 2464, citing U.S. Sentencing Guidelines Ch. 1, Pt. A(3)
pornography); United States v. Parris, 573 F. Supp. 2d 744, 751 (E.D.N.Y. 2008) (fraud
guideline); United States v. Grober, 595 F.Supp.2d 382 (D. N.J. 2008) (child pornography);
United States v. Doktor, slip op., 2008 WL 5334121 (M.D.Fla. Dec. 19, 2008) (child
pornography); United States v. Johnson, 588 F.Supp.2d 997 (S.D. Iowa 2008) (child
pornography); United States v. Stern, 590 F.Supp.2d 945 (N.D. Ohio 2008) (child pornography);
United States v. Horn, 590 F. Supp. 2d 976 (M.D. Tenn. 2008) (Commission’s failure to include
in § 1B1.10 for retroactive application Amendment 709 amending the definition of “related
cases” under § 4A1.2(a)(2) was unsound).
2
Two Commissioners resigned in frustration over the Commission’s lack of a principled
approach, see Dissenting View of Commissioner Paul H. Robinson to the Promulgation of
Sentencing Guidelines by the United States Sentencing Commission, 52 Fed. Reg. 18121-18132
(1987), reprinted in 41 Crim. L. Rep. 3174-86 (1987); Paula Yost, Sentencing Panel Member
Resigns over Research, Wash. Post, Aug. 23, 1989, at A25, arguing that amendments were based
on political pressures and compromise rather than empirical evidence and documented need. See
Michael Block, Emerging Problems in the Sentencing Commission’s Approach to Guideline
Amendments, 1 Fed. Sent. Rep. 451 (1989); Jeffery S. Parker & Michael K. Block, The
Sentencing Commission, P.M. (Post-Mistretta): Sunshine or Sunset?, 27 Am. Crim. L. Rev. 289,
318-23 (1989).
2
(1988). In short, the original Commission used past practice as a substitute for
sentencing purposes, and the Supreme Court now accepts that past practice is a rough
proxy for sentencing purposes, but recognizes that “not all of the Guidelines are tied to
this empirical evidence.” Gall, 128 S. Ct. at 594 n.2.
If the Commission did not rely on past practice, and/or did not review and revise the
guideline in response to data and feedback from judges and others in the field, it is not
“fair to assume” that the guideline “reflect[s] a rough approximation” of sentences that
“might achieve 3553(a) objectives.” Rita, 127 S. Ct. at 2464-65. When the guideline is
not based on “empirical data and national experience,” it “does not exemplify the
Commission’s exercise of its characteristic institutional role,” and it is not an abuse of
discretion to conclude that it yields a sentence that is greater than necessary even in a
“mine-run case.” Kimbrough, 128 S. Ct. at 575.
Standard of Review for Below-Guideline Sentences Based on Policy Considerations,
Including Disagreement with the Guidelines. If the sentence is procedurally reasonable,
the appellate court has to answer “only one question”: “whether the District Judge abused
his discretion in determining that the § 3553(a) factors supported” the sentence imposed.
Gall, 128 S. Ct. at 600. Any sentence, “whether inside, just outside, or significantly
outside the Guidelines range,” is reviewed under a “deferential abuse-of-discretion
standard.” Gall, 128 S. Ct. at 591. “The uniqueness of the individual case . . . does not
change the deferential abuse-of-discretion standard of review that applies to all
sentencing decisions.” Id. at 598.
Beware of Kimbrough’s “closer review” dicta. Near the end of the Kimbrough opinion,
Justice Ginsburg took an odd detour:
[T]he Commission . . . has the capacity courts lack to “base its
determinations on empirical data and national experience, guided by a
professional staff with appropriate expertise.” . . . The sentencing judge,
on the other hand, has “greater familiarity with ... the individual case and
the individual defendant before him than the Commission or the appeals
court.” . . . In light of these discrete institutional strengths, a district
court’s decision to vary from the advisory Guidelines may attract greatest
respect when the sentencing judge finds a particular case “outside the
‘heartland’ to which the Commission intends individual Guidelines to
apply.” On the other hand, while the Guidelines are no longer binding,
closer review may be in order when the sentencing judge varies from the
Guidelines based solely on the judge’s view that the Guidelines range
“fails properly to reflect § 3553(a) considerations” even in a mine-run
case.
Kimbrough, 128 S. Ct. at 574-75 (emphasis supplied).
Here, Justice Ginsburg cites to the transcript of the oral argument in Gall. On the cited
pages, Justice Breyer said he wants to “interpret that word ‘reasonable’ so that we get
3
back to a situation where judges do depart when they have something unusual and maybe
occasionally when they think the guideline wasn’t considered properly.” See Gall v.
United States, No. 06-7949, Transcript of Oral Argument 39 (Oct. 2, 2007) (emphasis
supplied). However, “getting back” to that system would be unconstitutional. Under that
system, the Commission essentially dictated if and when courts could depart. 3 Thus, §
3553(b) was excised because that restrictive departure system “does not avoid the
constitutional issue.” United States v. Booker, 543 U.S. 220, 233-34 (2005).
Several points should be made if the government argues, or the court seems to believe,
that this dicta creates some sort of hierarchy of review:
(1) Justice Ginsburg immediately clarified that it was dicta: “The crack cocaine
Guidelines, however, present no occasion for elaborate discussion of this matter
because those Guidelines do not exemplify the Commission’s exercise of its
characteristic institutional role.” Kimbrough, 128 S. Ct. at 575.
(2) If there were any doubt before, the Supreme Court has now made perfectly
clear in Spears v. United States, __ S.Ct. __, 2009 WL 129044 (Jan. 21, 2008),
that this dicta does not apply to cases involving guidelines that “do not exemplify
the Commission’s exercise of its characteristic institutional role”:
Kimbrough considered and rejected the position taken by the Eighth
Circuit below. It noted that “a district court’s decision to vary from the
advisory Guidelines may attract greatest respect when the sentencing
judge finds a particular case ‘outside the “heartland” to which the
Commission intends individual Guidelines to apply.’ ” 552 U. S., at ___
(slip op., at 20–21) (quoting Rita v. United States, 551 U. S. 338, 351
(2007)). The implication was that an “inside the heartland” departure
(which is necessarily based on a policy disagreement with the Guidelines
and necessarily disagrees on a “categorical basis”) may be entitled to less
respect. Our opinion said, however, that the “crack cocaine Guidelines …
present no occasion for elaborative discussion of this matter because those
Guidelines do not exemplify the Commission’s exercise of its
characteristic institutional role.” 552 U. S., at ___ (slip op., at 21).
Kimbrough thus holds that with respect to the crack cocaine Guidelines, a
categorical disagreement with and variance from the Guidelines is not
suspect.
See also Kimbrough, 128 S. Ct. at 574-75; United States v. Cavera, __ F.3d __,
2008 WL 5102341 *8 (2d Cir. 2008) (en banc); id. at *17 (Raggi, J., concurring);
United States v. Jones, 531 F.3d 163 (2d Cir. 2008); United States v. Carty, 520
F.3d 984, 993 n.8 (9th Cir. 2008) (en banc); United States v. Smart, 518 F.3d 800,
807, 808 n.5 (10th Cir. 2008). If ever, it applies only “when the sentencing judge
3
See 18 U.S.C. § 3553(b) (“In determining whether a circumstance was adequately taken into
consideration, the court shall consider only the sentencing guidelines, policy statements, and
official commentary of the Sentencing Commission.”).
4
varies from the Guidelines based solely on the judge’s [presumably entirely
personal] view that the Guidelines range ‘fails properly to reflect § 3553(a)
considerations.’” Kimbrough, 128 S. Ct. at 574-75.
(3) The Supreme Court’s holdings do not allow any distinction in the standard of
review based on whether the sentence was “outside the ‘heartland’ to which the
Commission intends individual Guidelines to apply,” Kimbrough, 128 S. Ct. at
575, was “based solely on policy considerations, including disagreements with the
Guidelines,” id. at 570, or was based on offense and offender characteristics that
the guidelines’ “departure” policy statements prohibit or discourage, as in Gall.
The same deferential abuse of discretion standard applies whether the facts of the
case are unique, as in Gall, or the court disagrees with the guideline as a policy
matter, as in Kimbrough. Gall, 128 S. Ct. at 591, 598. See also United States v.
Evans, 526 F.3d 155, 165 n.4 (4th Cir. 2008).
(4) A “departure” is merely one kind of outside-guideline sentence that judges can
impose. Rita, 127 S. Ct. at 2468. “Departure” is merely a “term of art” that
describes a “narrow category of cases.” Irizarry v. United States, 128 S. Ct. 2198,
2202 (2008). Indeed, the use of “departures” is dwindling. For example, in FY
2004, 5.2% of sentences were non-government-sponsored below-guideline
sentences, all of which at the time were downward “departures.” See USSC, 2004
Sourcebook, Table 26A. In FY 2008, there were only 3.3% non-governmentsponsored downward “departures,” and 9.9% non-government-sponsored belowguideline sentences not categorized as “departures.” See USSC, Preliminary
Quarterly Data Report, 4th Quarter Release, Table 1 (December 2008). If
“departures” were entitled to special deference as compared to other nonguideline sentences, this would constitute a return to the departure system which
the Supreme Court found to be too restrictive to save the mandatory guidelines
from unconstitutionality. United States v. Booker, 543 U.S. 220, 233-34 (2005).
(5) There must be reasons based upon which the judge may freely rely to sentence
outside the guideline range, other than the facts of the individual offense or
offender, or the guidelines will violate the Sixth Amendment. The Court held 6-3
in Cunningham v. California, 127 S. Ct. 856, 862-70 (2007) that a system that
does not permit judges to sentence outside a recommended range based on
“general objectives of sentencing” alone without a “factfinding anchor” violates
the Sixth Amendment. This was Justice Scalia’s point in his Kimbrough
concurrence, where he responded to the “closer review” dicta by stating that he
joined “the opinion only because I do not take this to be an unannounced
abandonment of the following clear statements in our recent opinions.”
Kimbrough, 128 S. Ct. at 576 (Scalia, J., concurring). After reviewing those
clear statements, he said:
These statements mean that the district court is free to make its
own reasonable application of the § 3553(a) factors, and to reject
(after due consideration) the advice of the Guidelines [as the
5
majority just said at p. 570]. If there is any thumb on the scales; if
the Guidelines must be followed even where the district court’s
application of the § 3553(a) factors is entirely reasonable; then the
“advisory” Guidelines would, over a large expanse of their
application, entitle the defendant to a lesser sentence but for the
presence of certain additional facts found by judge rather than jury.
This, as we said in Booker, would violate the Sixth Amendment.
Id. (emphasis in original).
(6) The different institutional strengths of the Commission versus those of district
court judges are not so neatly “discrete,” judges are in many ways better suited to
the task of scrutinizing the guidelines in light of the “general objectives of
sentencing,” and a healthy system depends on their ability to do so. While the
Commission may have the “capacity” to base its determinations on empirical
evidence and national experience, Kimbrough, 128 S. Ct. at 574, it very often
does not incorporate its own research into the guidelines. See Part II(7), infra.
Judges can read Commission reports and other relevant materials, and hear expert
testimony, as well as the Commission can, and have the advantage of being able
to analyze and apply the information in an adjudicative context in real cases.
While the Commission has the “capacity” to assemble and analyze facts on a
macro level, judges (1) actually sentence, on average, 117 defendants each year;
(2) are “in a superior position to find facts and judge their import under § 3553(a)
in the individual case;” and (3) have “access to, and greater familiarity with, the
individual case and the individual defendant before [them] than the Commission
or the appeals court.” Gall, 128 S. Ct. at 597-98 & n.7. Further, district courts
are the gate-keepers of what kinds of empirical and expert evidence are reliable
and relevant, subject to a deferential standard of review. See Cavera, 550 F.3d at
196 n.15; Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999); Gen. Elec. Co. v.
Joiner, 522 U.S. 136 (1997); Daubert v. Merrell Dow Pharm., 509 U.S. 579
(1993). Finally, without the freedom to disagree with the guidelines on the basis
of policy, judges cannot play their critical role in providing information to the
Commission so that “the Guidelines [can] constructively evolve over time.” Rita,
127 S. Ct. ay 2469. All of this, presumably, is why the appeals courts may not
grant greater factfinding leeway to the Commission than to the district court
judge. Rita, 127 S. Ct. at 2463.
B.
Defense Counsel Must Develop and Present Policy-Based Facts.
Judges must explain their acceptance, or rejection, of “nonfrivolous reasons” for a
sentence different from what the guideline recommends, Rita, 127 S. Ct. at 2468, but they
need not consider arguments that are not raised. Gall, 128 S. Ct. at 599.
Thus, defense counsel must assist the court in understanding the flaws in the applicable
guideline, and in supporting a sentence that differs from that recommended by the
guidelines, in kind or severity, with findings of fact. These are not only facts about the
6
offense and offender, but also facts about the failings of the guideline itself, regardless of
whether the facts of the case are typical or remarkable. Kimbrough, 128 S. Ct. at 575.
The more facts presented and the more findings the judge makes in this regard, the better.
Sufficient explanation is a component of procedural reasonableness, and a lengthier
explanation is required – whether the court sentences within the guideline range or
outside of it -- if a party “contests the Guidelines sentence generally under § 3553(a)” as
“an unsound judgment” or because the guidelines “do not generally treat certain
defendant characteristics in the proper way.” Id. Fact finding is reviewed for clear error.
Gall, 128 S. Ct. at 597.
Note that the Supreme Court has approved reliance on both Commission materials, see
Kimbrough, 128 S. Ct. at 575 (USSC crack reports), and relevant materials from other
sources. See Gall, 128 S. Ct. at 601 (studies on brain development). See also, e.g.,
United States v. Politano, 522 F.3d 69 (1st Cir. 2008) (upholding judge’s reliance on news
accounts of impact of firearms trafficking on the local community).
II.
How to Do it Yourself
The basic task is to reconstruct the history of the guideline provision, and analyze it
critically. When analyzing a guideline, look to see if it was:
(1) not based on past practice, empirical data, or national experience at its
inception
(2) created or amended after the initial set of guidelines with no empirical basis or
study
(3) created or amended contrary to the Commission’s own research, other
available research, departure data, or comments from judges and other in the field
(4) created or amended on the basis of some congressional hint, policy, directive,
or change in minimum or maximum, but without or contrary to empirical research
(5) said to be created or amended based on a statute, but Commission exceeded
the statute
(6) created or amended for no stated reason
(7) not amended in the face of later data which now shows it to be unsound
The guidelines do not have legislative history in the same way that rules promulgated by
other agencies do and that laws enacted by Congress sometimes do. However, there are
several places to turn to find a guideline provision’s history. Here are some questions to
ask and tips to guide your search for the answers:
1.
Has all or part of the job already been done?
Check the Deconstruction page on fd.org,
http://www.fd.org/odstb_SentencingResource3.htm#DECONS. To date, papers, briefs
and memoranda on Acquitted/Uncharged Crimes, Career Offender, Child Pornography,
Firearms, Probation, and Tax Offenses are posted. Any of these may be updated or
supplemented at any time. Papers on other topics are in the works, including drugs,
7
immigration, and mitigating factors. Reviewing these documents will also give you ideas
on how to deconstruct other guidelines.
Check the Struggle paper on fd.org, http://www.fd.org/pdf_lib/EvansStruggle.pdf. This
paper covers drugs, immigration, firearms, and other topics. Some guidelines are treated
fairly extensively, others less so. Depending on the case, it may be enough, or at least a
start.
2.
Was the guideline based on past practice at its inception, and how far from
past practice is it now?
Important in your analysis is to determine whether the guideline, at its inception, called
for sentences higher than the average sentence imposed prior to the promulgation of the
guidelines, and how much sentences under that guideline have increased since then.
The Commission’s Supplementary Report on the Initial Sentencing Guidelines and Policy
Statements 4 is the only public account of the results of the past practice study. It
discusses the lack of agreement regarding an underlying philosophy for the guidelines,
contains tables comparing pre- and post-guidelines sentences, and includes prison
population projections.
“[T]he Commission, either on its own initiative or in response to congressional actions,
established guideline ranges that were significantly more severe than past practice” for
“the most frequently sentenced offenses in the federal courts,” including white collar
offenses, drug trafficking, immigration offenses, robbery of an individual, murder,
aggravated assault, and rape. 5 Further, in estimating past practice sentencing levels, the
Commission did not include probationary sentences. 6 This was no small omission, since
nearly 40% of all defendants were sentenced to straight probation in 1984. 7
The Fifteen Year Review, at http://www.ussc.gov/15_year/15year.htm, gives the
percentage increase since the guidelines’ inception for the most common offenses as of
2002. You can find average sentence length, at least for the general type of offense but
not the particular statute, and notably not for career offenders, in Table 13 of the
Sourcebook of Federal Sentencing Statistics for any year, at
http://www.ussc.gov/annrpts.htm.
4
U.S. Sentencing Commission, Supplementary Report on the Initial Sentencing Guidelines and
Policy Statements (1987) (hereinafter “Supplementary Report”), available at
http://www.fd.org/pdf_lib/Supplementary%20Report.pdf.
5
U.S. Sentencing Commission, Fifteen Years of Guidelines Sentencing: An Assessment of How
Well the Federal Criminal Justice System is Achieving the Goals of Sentencing Reform at 47
(2004)., citing Supplementary Report.
6
Supplementary Report at 24.
7
Fifteen Year Review supra, at 43.
8
The Child Pornography paper contains a good example of a chart showing the upward
ratchet. See p. 2 of http://www.fd.org/pdf_lib/child%20porn%20july%20revision.pdf.
3.
What did Congress intend in the SRA?
This will not be relevant to all guidelines, but it is relevant to broad issues like “relevant
conduct” and offender characteristics, and certain guidelines, e.g., career offender. It is
worth reviewing 28 U.S.C. §§ 991-995. The Senate Report for the SRA, considered to be
the best indicator of congressional intent, is posted at
http://www.fd.org/pdf_lib/SRA%20Leg%20History.pdf. It’s in Word (though all caps),
so you can easily search for a word or phrase.
4.
Collect the original guideline and all succeeding amendments that are
relevant.
The Historical Note at the end of each guideline states its original effective date, and the
date and Amendment Number of each amendment.
The original effective date of most guidelines is November 1, 1987. If so, obtain the
original version the Commission sent to Congress on May 13, 1987, which is found at 52
Fed. Reg. 18046, in the Westlaw FR database.
In October 1987, before the six-month congressional review period had passed and
before the November 1, 1987 effective date of the initial set of guidelines, the
Commission distributed for use by judges and practitioners a revised version (in looseleaf form) that included several “technical and conforming amendments” to guidelines,
commentary and policy statements. The Commission published these changes in the
Federal Register a few weeks after the November 1, 1987 effective date, explaining there
that it did not believe the amendments were substantive in nature or that Congress needed
to review them. See 52 Fed. Reg. 44,674 (Nov. 20, 1987) (“[T]he Commission does not
believe that the revisions effect any substantive change, or that Congressional review of
these revisions is required.”). The reissued guidelines, including the October technical
and conforming amendments and effective November 1, 1987, are accessible on
Westlaw, in the database FCJ-FSG-OLD. However, you should still check the Federal
Register notice regarding the technical and conforming amendments issued in loose leaf
form in October 1987 to verify that no substantive changes were made to the guideline at
issue. See 52 Fed. Reg. 44,674 (Nov. 20, 1987).
If the original effective date was after November 1, 1987, you can get the original version
in Appendix C of the Manual under its amendment number (from the Historical Note) in
hard copy or in Westlaw database fcj-fsg.
All subsequent amendments to the original version are in Appendix C under their
amendment numbers in Westlaw database fcj-fsg.
9
The Manual for all dates beginning November 1, 1987 are on Westlaw in fcj-fsg-old. If
you want to see all of the guidelines for a year, use that database and use the search term
“da(1990),” for example, for that year.
However, the 1988 Revised Edition of the Manual with provisions labeled October, 1987,
January 15, 1988, and June 15, 1988 is not on Westlaw. It’s worth having if you can get
a copy.
Many amendments are not relevant because they changed wording without substantive
effect, or they don’t affect what’s at issue in your case. However, do not be fooled by
things labeled “technical,” “conforming,” or “clarifying.” These often make a
substantive difference.
5.
What did each amendment do? What is the official Reason for Amendment?
What is the real reason for amendment?
At the end of each amendment in Appendix C is an official “Reason for Amendment.”
-Often, the reason cites a new statute or change to a statute. For how to analyze this, see
#6.
-Sometimes an amendment says it resolves a circuit split or otherwise cites caselaw. If
so, check the caselaw. Does the amendment make sense in light of the caselaw? Is the
amendment an effort to shut down caselaw that is favorable to defendants, instead of
taking account of feedback from the courts?
-Most often, the Reason for Amendment does not explain why or how the Commission
decided to do what it did. The Reason for Amendment often just restates what the
Commission did. You can then say that the Commission gave no reason for this
amendment, much less one based on empirical evidence or national experience.
-Or, you may want to dig deeper – into caselaw and/or law review articles, to see if you
can find what precipitated the change. For example, here is a passage from a paper on
Offender Characteristics that is underway.
In November 1992, the Commission added a new policy statement prohibiting the
court from considering “lack of guidance as a youth and similar circumstances indicating
a disadvantaged upbringing are not relevant grounds” as grounds for a departure. USSG,
App. C, Amend. 466 (Nov. 1, 1992). As its reason, the Commission simply stated,
without any reasons or analysis: “This amendment provides that the factors specified are
not appropriate grounds for departure.” Id. (Reason for Amendment). In a subsequent
article, then-Commission Chair Wilkins and General Counsel John Steer, acknowledge
that a particular decision by the Ninth Circuit in United States v. Floyd “directly
precipitated this Commission action.” William W. Wilkins, Jr. & John R. Steer, The Role
of Sentencing Guideline Amendments in Reducing Unwarranted Sentencing Disparity, 50
10
Wash & Lee L. Rev. 63, 84 (1993). The authors explained there that a number of factors
contributed to the Commission’s disapproval of “lack of youthful guidance”:
Among them was a concern that this particular label, amorphous as it is,
potentially could be applied to an extremely large number of cases
prosecuted in federal court, thereby permitting judges wide discretion to
impose virtually any sentence they deemed appropriate (within or below
the guidelines). The unwarranted disparity that could result from such a
wide-open path around the guidelines was inconsistent with SRA
objectives as the Commission understood them. Moreover, departures
predicated on this factor could reintroduce into the sentencing equation
considerations of a defendant’s socioeconomic background and other
personal characteristics that Congress clearly intended the guidelines to
place off limits.
Id. at 84-85. As with other amendments intended to stamp out judicial discretion, this
amendment – along with both the official and unofficial reasons given for it – fails to
demonstrate that the Commission engaged in the type of examination of a judge’s reasons
for granting the departure before enacting a categorical change. Given the concern about
the factor being applied “in an extremely large number of cases,” it is clear that even the
Commission understood the manifest relationship between disadvantage and crime. Yet,
rather than examine the sentencing policy as a whole in response to this judicial
feedback, the Commission simply rendered it absolutely off-limits. As such, this
amendment amounts to no more than “second-guessing [of] individual judicial sentencing
actions,” something Congress specifically indicated the Commission should not do. See
S. Rep. 98-225 at 178.
-Another way to dig deeper is to look at public comments and public hearing transcripts.
An example of how to use public comments and hearing transcripts to show that what the
Commission did makes no sense is in the Struggle paper regarding the Firearms
amendments of 2006, at pp. 42-47, http://www.fd.org/pdf_lib/EvansStruggle.pdf.
Do not expect that the public comment file will necessarily reveal a “real reason.” You
could look at it all, and still not know how the Commission decided to do what it did,
because, unlike other agencies, the Commission does not explain what it actually
considered or how it resolved conflicting information and proposals, and the Commission
can and does rely on secret meetings with DOJ and other law enforcement agencies. The
Commission’s failure to explain how it reached its decisions allows it to respond easily to
pressure from DOJ and what it perceives as signals from Congress without having to give
evidence-based reasons.
You can obtain these materials as explained in #8 below.
-Was a harmful thing done not through a guideline, but through commentary or a policy
statement? The vehicle the Commission used may have significance in a variety of ways.
11
See Career Offender Paper; Acquitted/Uncharged Conduct paper; forthcoming
Offense/Offender Characteristics paper.
6.
If a guideline or amendment is said to be based on a congressional action,
what does the new law say, and what is its effect on the sentence in this case?
Always check the legislation itself. Did USSC follow it or go further? Did Congress
only tell the Commission to study whether penalties should be changed? Was no study
done? Does any study not support it? Did Congress simply amend a criminal statute
with no directive? Tell the Commission to increase penalties in a limited way that it
exceeded?
Representative Bobby Scott, Chair of the House Subcommittee on Crime, Terrorism and
Homeland Security, recently urged the Commission to take a long hard look at whether
‘congressionally-driven” guidelines are appropriate. See Speech of Robert C. “Bobby”
Scott, American Bar Association Criminal Justice Section, Sentencing Advocacy,
Practice and Reform Institute, Oct. 24, 2008,
http://www.fd.org/pdf_lib/Scott%20ABA%202008%20sentencing%20conference%20spe
ech.pdf.
A statutory directives table is posted on the Deconstruction page on fd.org,
http://www.fd.org/odstb_SentencingResource3.htm#DECONS. This table lists
guidelines that were created or amended in response to congressional action of some sort,
according to the Commission’s Statement of Reasons. It includes the actual language of
the congressional directive and describes in detail the changes made to the Guidelines
Manual in response to the directive. It 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.
You can look up congressional directives yourself. Public laws all the way back to the
93d Congress (1973-74) are available at http://thomas.loc.gov/bss/d110/d110laws.html.
They can also be found by using the Find function on Westlaw, and typing in, for
example, PL 100-182. Here is a cool thing on Westlaw. Pull up a public law, then look
to the left under the tab, “Links to ___.” At the bottom are links to “Legislative History”
that is relevant to this public law.
The Court made clear in Kimbrough that “implicit” congressional requirements,
the possibility of “logical incoherence” with congressional policy, congressional silence,
and directives to study and recommend unspecified changes are not the equivalent of a
congressional command to the Commission. Only congressional direction in “express
terms” compel the Commission to act in a certain way. 128 S. Ct. at 570-73.
Of course, the courts are not compelled to follow a congressional directive to the
Commission, even in express terms. See, for example, the numerous cases cited in
footnote 1 in which courts sentenced below the guideline range based on policy
12
considerations regarding the career offender and child pornography guidelines, which
were based on (and in some ways exceeded) express congressional directives.
-Was there an express congressional directive? The point, when the Commission follows
an express congressional directive, is not that the guideline is defective because it rests
on a congressional directive but that the Commission is likely to have acted on that basis
alone and not on the basis of past practice, empirical evidence or national experience.
See the papers on Deconstructing the Child Pornography and Career Offender Guidelines,
for example. Both of these papers make use of statutes, legislative history, and the
Commission’s research to show how guidelines based on congressional directives can be
contrary to sound policy.
-Did the Commission exceed a congressional directive? If so, did any courts already say
it was improper? See United States v. Butler, 207 F.3d 839 (6th Cir. 2000) (U.S.S.G. §
3B1.4 authorizing enhancement for using or attempting to use a minor in the offense
regardless of defendant’s age was contrary to statute directing that the defendant be at
least twenty-one). If some courts said it was improper, what did the Commission do in
response? See Career Offender paper at 24-25.
-Was there no statutory directive but the guideline was based on a mandatory minimum?
If so:
Did USSC set the guideline above the mandatory minimum level even at CHC I,
as it did with the drug guidelines, which it admitted contributed to the problems
with the crack guideline and was the basis for the two-level reduction?
What was Congress’ reason for enacting a mandatory minimum? Hysteria over a
headline? No discernible reason?
The Criminal Law Committee of the Judicial Conference has urged the
Commission, when deciding whether to amend the guidelines in response to a
mandatory minimum, to make an assessment based on its own expert opinion and
independent of any potentially applicable mandatory minimum, and if the
resulting guideline, alone or in combination with specific offense characteristics,
is lower than the mandatory minimum, § 5G1.1(b) can operate. See Comments of
the Criminal Law Committee of the Judicial Conference (March 16, 2007),
http://www.ussc.gov/hearings/03_20_07/walton-testimony.pdf. The Criminal
Law Committee suggested that the Commission could consider in its independent
evaluation any information in published reports or hearing records upon which
Congress may have relied. Id. Is there any such thing? What does it say?
-Was there no statutory directive but the guideline was based on an increased statutory
maximum?
What was Congress’ reason for increasing the statutory maximum? Hysteria over
a headline? No discernible reason?
13
-Was it a general directive to study and amend if appropriate?
If so, was there any study of empirical evidence? Usually not, just reflexive
increases.
-Is there evidence that Congress did not intend an aspect of guideline sentencing? E.g.,
uncharged & acquitted crimes, prohibitions and restrictions on offender characteristics.
7.
What, if any, empirical (or sociological, medical, scientific, etc.) evidence is
there on this guideline? What does it show?
-Is there any empirical evidence referenced in the Reason for Amendment? Usually not.
-Is there a USSC Working Group on the subject, e.g., Immigration, Firearms, Native
American Advisory Group? Many contain suggestions for revision that have not been
implemented or have even been directly ignored, or contain reasons that the actions the
Commission did take are unsound.
-Has USSC identified problems but never fixed them? As we wrote in the Gall amicus
brief:
The Commission itself has conducted studies that have not been incorporated into
the Guidelines but upon which judges can and should rely. In addition to the
reports on crack cocaine sentencing, the Commission’s Fifteen Year Report
identifies serious problems with the career offender guideline, the relevant
conduct rules, the drug guidelines generally, and various forms of disparity that
have increased under the Guidelines, most notably racial disparity and hidden
disparities caused by the government’s practices as permitted and encouraged by
the Guidelines. 8 It has published three reports on recidivism, acknowledging that
the criminal history rules were never based on empirical evidence and identifying
numerous factors that predict reduced recidivism which are not included in the
Guidelines and factors that do not predict recidivism which are included in the
Guidelines. 9 While the rules remain unchanged, judges can and should rely on
8
U.S. Sentencing Comm’n, Fifteen Years of Guidelines Sentencing: An Assessment of How Well
the Federal Criminal Justice System is Achieving the Goals of Sentencing Reform 47-55, 76, 82,
91, 94, 102-06, 111-15, 117, 122, 131-35, 140-42 (2004).
9
U.S. Sentencing Comm’n, Measuring Recidivism: The Criminal History Computation of the
Federal Sentencing Guidelines (May 2004) (hereinafter “Measuring Recidivism”); U.S.
Sentencing Comm’n, Recidivism and the First Offender (May 2004); U.S. Sentencing Comm’n, A
Comparison of the Federal Sentencing Guidelines Criminal History Category and the U.S.
Parole Commission Salient Factor Score (Jan. 2005).
14
these extra-guideline findings to impose non-guideline sentences that better
comply with § 3553(a). 10
-Are judges departing/varying often in the face of this guideline, to which USSC has
failed to respond in the dialogue the Supreme Court assumes will occur? Check USSC’s
March 2006 Post-Booker Report; the Booker Quarterly Updates; Sourcebooks; other
USSC publications; district court caselaw. Is this one of reasons for non-guideline
sentences that has spiked after Booker? Paul J. Hofer, United States v. Booker As A
Natural Experiment: Using Empirical Research To Inform The Sentencing Policy
Debate, 6 Criminology and Public Policy 433 (2007).
-Not just the rate of below-guideline sentences is important, but what judges say in their
decisions. There are many decisions criticizing aspects of the guidelines even before
Kimbrough, and of course that source of common law is growing. See footnote 1, supra.
As we wrote in the Gall amicus brief:
[D]istrict judges can inform the Commission of issues it has not identified, help it
to understand issues it has not resolved, and alert it to issues it may have thought
were closed. For example, after Booker, district courts have informed the
Commission that the career offender guideline (from which the Guidelines permit
a departure of only one level) fails to distinguish between serious and non-serious
offenses by substantially reducing career offender sentences in many cases. 11 In
United States v. Ennis, 468 F. Supp. 2d 228, 234 & n.11 (D. Mass. 2006), the
judge pointed out that the definition of career offender predicates covers
10
See United States v. Fernandez, 436 F. Supp. 2d 983 (E.D. Wis. 2006) (relying on Fifteen Year
Report’s discussion of career offender guideline to impose non-guideline sentence); United States
v. Germosen, 473 F. Supp. 2d 221 (D. Mass. 2007) (relying on Fifteen Year Report to point out
disparities arising from government’s unilateral power to reward cooperation, contrasting
restrictions on aberrant conduct guideline with recidivism reports); United States v. Martinez,
Crim. No. 99-40072, 2007 WL 593629 (D. Kan. Feb. 21, 2007) (notifying counsel considering
non-guideline sentence based, in part, on defendant’s age, referencing recidivism reports showing
increased age and first offender status show decreased likelihood of recidivism); United States v.
Ruiz, Crim. No. 04-1146-03, 2006 WL 1311982 (S.D.N.Y. May 10, 2006) (noting several courts
have imposed non-guideline sentences for defendants over 40 based on markedly reduced
recidivism, citing recidivism study); United States v. Ali, Crim. No. 1:05-5, 2006 WL 1102835
(E.D. Va. Apr. 17, 2006) (imposing non-guideline sentence, citing recidivism reports).
11
See U.S. Sentencing Comm’n, Final Report on the Impact of United States v. Booker on
Federal Sentencing 137-40 (Mar. 2006); see, e.g., United States v. Person, 377 F. Supp. 2d 308
(D. Mass. 2005); United States v. Hubbard, 369 F. Supp. 2d 146, 148 (D. Mass. 2005); United
States v. Naylor, 359 F. Supp. 2d 521 (W.D. Va. 2005); United States v. Serrano, Crim. No. 04424, 2005 WL 1214314, at **7-9 (S.D.N.Y. May 19, 2005); United States v. Carvajal, Crim. No.
04-222, 2005 WL 476125, **5-6 (S.D.N.Y. Feb. 22, 2005). But see United States v. Moreland,
366 F. Supp. 2d 416 (S.D. W.Va. 2005) (reducing 360-month career offender sentence to 120
months under § 3553(a)), rev’d, 437 F.3d 424 (4th Cir. 2006) (vacating and remanding for
imposition of sentence of no less than 240 months under extraordinary circumstances test).
15
misdemeanor convictions, contrary to 28 U.S.C. § 994(h), from states with
misdemeanors punishable by more than one year. In United States v. Quinn, 472
F. Supp. 2d 104, 111 (D. Mass. 2007), the judge identified a “structural problem”
in the relevant conduct rule as shown by two different probation officers
“calculating” ranges of 37-46 months and 151-188 months for two identicallysituated defendants in the same case. In United States v. Adelson, 441 F. Supp. 2d
506 (S.D.N.Y. 2006), the judge explained how calculations under the fraud
guideline based on unintended loss and various overlapping adjustments resulted
in a “patently absurd” life sentence. United States v. Gener, Crim. No. 04-42417, 2005 WL 2838984 *5 (S.D.N.Y. Oct. 26, 2005) illustrated the problem with
including juvenile adjudications with a sentence of 60 days or more in the
criminal history score where the juvenile offense is trivial and the length of
confinement results not from the gravity of the offense but family circumstances
and special needs.
-Is there caselaw criticizing some aspect of the guidelines? Did the Commission
respond? How? For example, the Third Circuit informed the Commission loud and clear
that it had amended the definition of “crime of violence” in the career offender guideline
to include offenses that were not violent. The Commission then proposed an amendment
– in a Federal Register Notice – admitting what the Third Circuit said, and proposing a
fix. Yet it never acted on it. See Career Offender Paper at 14-15, 35-36, 43.
The papers on Career Offender, Uncharged and Acquitted Crimes, and Child
Pornography contain lots of criticisms in judicial opinions.
-Is there empirical evidence from a non-USSC source demonstrating that this guideline is
unsound policy? Examples of places to check: The Defender Sentencing Resource
Manual, http://www.fd.org/pdf_lib/Sentencing_Resource_Manual_March_2008.pdf, the
Sentencing Project’s website, http://www.sentencingproject.org, and written testimony of
USSC hearing witnesses (NACDL’s witness on steroids in 2004 or 2005 comes to mind),
http://www.ussc.gov/HEARINGS.HTM. The transcript, papers, power points, charts and
graphs from the Commission’s July 2008 Symposium entitled “Alternatives to
Incarceration,” are available at http://www.rashkind.com/alternatives/toc.htm, and
http://www.ussc.gov/SYMPO2008/NSATI_0.htm. For an overview of what works and
what doesn’t in preventing crime, see Doris Layton MacKenzie, Criminal Justice and
Crime Prevention, Chapter 9, What Works, What Doesn’t, What’s Promising: A Report to
the United States Congress Prepared for the National Institute of Justice,
http://www.ncjrs.gov/works/chapter9.htm. The possibilities are broad. As we wrote in
the Gall amicus brief:
There are many areas, highly relevant to sentencing purposes, in which the
Commission has not collected or conducted research, but in which significant
research is available from other sources. Examples include studies on brain
development by the National Institutes of Health and others, as cited by the
16
district court in this case, 12 research showing the efficacy and cost savings of drug
treatment, education and job training over lengthy incarceration in reducing
crime, 13 reports from the Department of Justice and others showing that lengthy
prison terms are being served by too many offenders with little risk of recidivism
and without deterrent value, 14 research on the adverse impact of incarceration on
children and families, 15 analyses of the suitability of members of immigrant
populations for intermediate sanctions, 16 reports on the efficacy of victim
12
Jay N. Giedd, Structural Magnetic Resonance Imaging of the Adolescent Brain, 1021 Annals
N.Y. Acad. Science 105-09 (June 2004) (reporting results of longitudinal study for the National
Institutes on Health on brain development in adolescents); Elizabeth Williamson, Brain
Immaturity Could Explain Teen Crash Rate, Wash. Post, Feb. 1, 2005 at A01 (study shows “that
the region of the brain that inhibits risky behavior is not fully formed until age 25”).
13
Susan L. Ettner et al., Benefit-Cost in the California Treatment Outcome Project: Does
Substance Abuse Treatment “Pay for Itself?”, Health Services Res., 41(1), 192-213 (2006) (for
every $1 spent on drug treatment, $7 is saved in general social savings, primarily in reduced
offending and also in medical care); Stephen J. Morse, Addiction, Genetics and Criminal
Responsibility, 69 Law & Contemp. Probs. 165, 205 (2006) (“The criminal justice system
response should be limited and reformed to enhance the potential efficacy of treatment
approaches.”); Don Stemen, Reconsidering Incarceration: New Directions for Reducing Crime,
Vera Institute of Justice, January 2007 (discussing diminishing returns of increased incarceration
on crime rate and cost effectiveness of investment in education and employment).
14
U.S. Dep’t of Justice, An Analysis of Non-Violent Drug Offenders with Minimal Criminal
Histories, Executive Summary (Feb. 1994), available at
http://www.fd.org/pdf_lib/1994%20DoJ%20study%20part%201.pdf; The Sentencing Project,
Incarceration and Crime: A Complex Relationship 7-8 (2005), available at
http://www.sentencingproject.org/pdfs/incarceration-crime.pdf; Paul J. Hofer & Courtney
Semisch, Examining Changes in Federal Sentence Severity: 1980-1998, 12 Fed. Sent. Rep. 12,
1999 WL 1458615 (July/August 1999); Miles D. Harar, Do Guideline Sentences for Low-Risk
Drug Traffickers Achieve Their Stated Purposes?, 7 Fed. Sent. Rep. 22, 1994 WL 502677
(July/Aug. 1994).
15
Ross D. Parke & K. Alison Clarke-Stewart, From Prison to Home: Effects of Parental
Incarceration on Young Children (Dec. 2001), presented at U.S. Dep’t of Health and Human
Services National Policy Conference, “From Prison to Home: The Effect of Incarceration and
Reentry on Children, Families and Communities” (2002) (discussing impact of parental
incarceration on children and benefits of alternatives to incarceration); U.S. Dep’t of Justice,
Office of Juvenile Justice and Delinquency Prevention, Risk Factors for Delinquency: An
Overview (2001) (discussing link between aggression, drug abuse, and delinquency in children to
several factors, including separation from parents); The Sentencing Project, Incarceration and
Crime: A Complex Relationship 7 (2005) (“The persistent removal of persons from the
community to prison and their eventual return has a destabilizing effect that has been
demonstrated to fray family and community bonds, and contribute to an increase in recidivism
and future criminality.”); Patricia M. Wald, “What About the Kids?’: Parenting Issues in
Sentencing, 8 Fed. Sent. Rep. 137 (1995) (discussing growing body of research showing that
children fare better in their parents’ care than in foster care or elsewhere).
17
mediation as an alternative to incarceration, 17 and studies demonstrating that
contrary to myth, recidivism rates for sex offenders are lower than in the general
criminal population, and that community treatment for sex offenders is
effective. 18
As Judge Gertner has written:
The status of being addicted has an ambiguous relationship to the
defendant's culpability. It could be a mitigating factor, explaining the
motivation for the crime. It could be an aggravating factor, supporting a
finding of likely recidivism. Barbara S. Meierhoefer, The Role of Offense
and Offender Characteristics in Federal Sentencing, 66 S. Cal. L. Rev.
367, 385 (1992). On the other hand, the relationship between drug
rehabilitation and crime is clear. If drug addiction creates a propensity to
crime, drug rehabilitation goes a long way to preventing recidivism. In
fact, statistics suggest that the rate of recidivism is less for drug offenders
who receive treatment while in prison or jail, and still less for those treated
outside of a prison setting. Lisa Rosenblum, Mandating Effective
Treatment for Drug Offenders, 53 Hastings L.J. 1217, 1220 (2002).
United States v. Perella, 273 F. Supp. 2d 162, 164 (D. Mass. 2003).
8.
Sources of History and Policy Analysis
16
Nora V. Demleitner, Smart Public Policy: Replacing Imprisonment with Targeted Nonprison
Sentences and Collateral Sanctions, 58 Stan. L. Rev. 338, 353 (2005).
17
Nancy Lucas, Restitution, Rehabilitation, Prevention, and Transformation: Victim-Offender
Mediation for First-Time Non-Violent Youthful Offenders, 29 Hofstra L. Rev. 1365 (2001)
(explaining ancient concept of “restorative justice” as alternative to incarceration, citing
numerous studies examining its effectiveness in criminal context); see also, e.g., James Bonta et
al., Restorative Justice: An Evaluation of the Restorative Resolutions Project, Report No. 199805, Solicitor General of Canada (Oct. 1998) (collecting studies regarding restorative justice and
reporting that offenders participating in victim and community reconciliation program rather than
being incarcerated were more likely to make restitution to victims and generally had significantly
lower recidivism rates), available at http://ww2.pssp.gc.ca/publications/corrections/pdf/199810b_e.pdf.
18
U.S. Dep’t of Justice, Bureau of Justice Statistics, Office of Justice Programs, Recidivism of
Sex Offenders Released from Prison in 1994 (Nov. 2003) (finding sex offenders had lower overall
rearrest rate compared to non-sex offenders and no clear association between length of
incarceration and recidivism rates); U.S. Dep’t of Justice, Center for Sex Offender Management,
Office of Justice Programs, Myths and Facts About Sex Offenders (Aug. 2000) (discussing
recidivism rates and finding that treatment costs far less than incarceration); F.S. Berlin, A FiveYear Plus Follow-up Survey of Criminal Recidivism Within a Treated Cohort of 406 Pedophiles,
111 Exhibitionists and 109 Sexual Aggressives: Issues and Outcomes, 12 Am. J. of Forensic
Psych. 3 (1991) (documenting effectiveness of community treatment for sex offenders).
18

Materials on Sentencing Resource page, www.fd.org, including Deconstructing
the Guidelines, http://www.fd.org/odstb_SentencingResource3.htm#DECONS,
and the Struggle paper, http://www.fd.org/pdf_lib/EvansStruggle.pdf

Law Review Articles by Commissioners and former Commissioners, staff, judges,
academics, stakeholders close to the process – e.g., Breyer, Parker & Block,
Maxfield, Hofer, Stith, Gertner, Adelman, O’Hear, Marc Miller, Sands, Barkow,
Bowman, Berman, Baron-Evans, and there are others. Many such articles are
cited in the Struggle paper.

Public Policy Research Nonprofits:
 Sentencing Project website, http://www.sentencingproject.org
 Justice Policy Institute, http://www.justicepolicy.org/
 Rand Corporation, http://www.rand.org/

SRA and its legislative history: 28 U.S.C. 991-995; Senate Report,
http://www.fd.org/pdf_lib/SRA%20Leg%20History.pdf.

USSC, Supplementary Report on the Initial Sentencing Guidelines and Policy
Statements (1987), available at
http://www.fd.org/pdf_lib/Supplementary%20Report.pdf.

Historical Note at end of guideline tells you the first effective date and all
amendments

Amendments and Reasons for Amendment in Appendix C

Hutchison et al., Federal Sentencing Law and Practice (West), updated annually
and on Westlaw in the fslp database, is very helpful for an overview of the
changes to each guideline over time, cites caselaw, and sometimes highlights
problematic issues. If you are having trouble untangling what happened, this is
usually helpful.

Federal Register Notices published before and after amendment. These are
available at http://www.ussc.gov/NOTICE.HTM back through 1996, and are on
Westlaw in the FR database for all years.

Any congressional directive cited in the Commission’s Reason for Amendment

Public Comment and Hearings:
o written and oral testimony of witnesses at USSC hearings back to 1996 are
posed at http://www.ussc.gov/HEARINGS.HTM
o Public comments, however, are not posted by the Commission
19




Public comments of the Federal Public and Community Defenders
going back only to August 2005, are posted at
http://www.fd.org/pub_SentenceLetters.htm,
Public comments of the Practitioners Advisory Group back to June
2004, http://www.usscpag.com/.
Public comments of the National Association of Criminal Defense
Lawyers,
http://www.nacdl.org/public.nsf/freeform/Rules&Reg?OpenDocu
ment
Public comments of the Probation Officers Advisory Group,
http://www.ussc.gov/POAG/minutes.html
o If you would like to examine all relevant materials, members of the public
may “inspect” (1) agendas and schedules for Commission public meetings
and public hearings, (2) approved minutes of Commission public
meetings, (3) transcripts of public hearings, (4) public comment as defined
in Rule 5.1, (5) data, reports, and other information made available
pursuant to Rule 5.3, and (6) with respect to nonpublic meetings described
in Rule 3.3(3), a list of outside parties attending the meeting, a list of
issues upon which the Commission was briefed, and copies of written
materials submitted by outside parties. See USSC, Rule 6.2, Rules of
Practice and Procedure, U.S. Sentencing Commission, Rules of Practice
and Procedure, available at http://www.ussc.gov/general/rules11_01.pdf..
This appears to mean on-site inspection, but perhaps can be copied upon
request.

Research Papers and Working Group Reports (e.g., Recidivism Reports, Survey
of Article III Judges, Fifteen Year Review), http://www.ussc.gov/research.htm.

Reports to Congress (e.g., Crack Reports, Sex Offense Reports, Departures),
http://www.ussc.gov/reports.htm

Data: Federal Sentencing Statistics by State, District and Circuit; Sourcebooks
(http://www.ussc.gov/annrpts.htm), Guideline Application Frequencies
(http://www.ussc.gov/gl_frequencies.htm), Post-Booker Impact Report and
Quarterly Updates (http://www.ussc.gov/bf.htm), and 2008 Post- Kimbrough/Gall
Data Report
(http://www.ussc.gov/USSC_Kimbrough_Gall_Report_Final_FY2008.pdf).
o Caution: Commission sources should be read with a critical eye.
Nonetheless, there is helpful information to be found in all of these
materials.
20