Booker: the first 10 years in Florida.

• Author: Handberg, Roger B.

In 1984, the Sentencing Reform Act established the U.S. Sentencing Commission. One of the primary purposes of the commission was to develop sentencing policies and practices that would "provide certainty and fairness in meeting the purposes of sentencing" and that would "avoid[] unwarranted disparities among defendants with similar records who have been found guilty of similar criminal conduct while maintaining sufficient flexibility to permit individualized sentences[.]" (1) To achieve those results, the commission was empowered to enact guidelines, and U.S. district courts were required, with limited exceptions, to impose sentences within the range determined by those guidelines. (2)

All of that changed in 2005 with the decision by the U.S. Supreme Court in United States v. Booker, 543 U.S. 220 (2005). In that case, the Supreme Court held that the Sixth Amendment was "violated by the imposition of an enhanced sentence under the U.S. Sentencing Guidelines based on the sentencing judge's determination of a fact (other than a prior conviction) that was not found by the jury or admitted by the defendant." (3) To remedy that situation, the Supreme Court severed and excised from the act the provisions that made the federal sentencing guidelines mandatory. By doing that, the sentencing guidelines became "effectively advisory." (4)

Booker caused a sea change in federal criminal sentencings. Although district courts must determine the applicable guidelines range and consider that as a factor in sentencing, district courts now have substantial discretion to impose sentences that vary, either upward or downward, from the advisory guidelines range based on a consideration of several statutory factors. Those factors include the nature and circumstances of the offense; the history and characteristics of the defendant; the kinds of sentences available; pertinent policy statements of the Sentencing Commission; the need to provide restitution; the applicable sentencing guidelines range; the need to avoid unwarranted sentencing disparities; and the need for the sentence to reflect the seriousness of the offense, promote respect for the law and just punishment, deter criminal conduct, protect the public from further crimes, and provide the defendant with needed training, care, and treatment. (5)

Ten years have passed since Booker. In that time period, district courts in Florida have shown an increasing willingness to impose sentences that vary from the advisory guidelines range. This article provides an overview of the standards that apply to federal criminal sentencings and a statistical analysis of the sentences that have been imposed by Florida district courts post-Booker.

Overview of the Sentencing Guidelines

In a typical year, over 90 percent of federal defendants plead guilty or are convicted at trial. (6) After one of those events occurs, the sentencing process begins. As part of that process, the U.S. Probation Office prepares a presentence investigation report (PSR). (7) The PSR includes a summary of the defendant's criminal conduct, as well as information about the defendant's personal characteristics (i.e., family history, criminal history, employment, drug use, etc.). (8) One purpose of the PSR is to determine the defendant's advisory guidelines range. Two components are used to make that determination.

First, the PSR calculates the defendant's offense level. The federal sentencing guidelines contain different sections that apply to different criminal violations. For example, there are separate guideline provisions that apply to drug, immigration, firearm, fraud, and child exploitation offenses. (9) Each guideline specifies a base offense level, plus additional enhancements that, if applicable, increase a defendant's offense level. Other portions of the sentencing guidelines set forth additional enhancements, such as leadership and abuse of a position of trust. (10) The sentencing guidelines also provide for various downward adjustments, such as reductions for accepting responsibility or playing a minor role in an offense. (11) Once all of the additions and subtractions are made, each defendant ends up with an offense level of somewhere between one and 43.

The second component that is used in determining a defendant's advisory guidelines range is a defendant's criminal history category. As part of the determination of a defendant's criminal history category, the PSR sets forth each conviction and assesses a certain number of points for each qualifying conviction. (12) Depending on the number of criminal history points, the PSR places a defendant into one of six criminal history categories (I through VI).

Once the offense level and criminal history category are determined, the defendant's advisory guidelines range is calculated in accordance with a chart. The chart consists of a grid. On the left side, the chart lists offense levels from 1 to 43. On the top, the chart lists criminal history categories going from I to VI. In general, the greater the offense level or criminal history category, the greater a defendant's advisory guidelines range.

Principles Applicable to Federal Criminal Sentencings

Prior to Booker, the act required a district court, with certain limited exceptions, to impose a sentence within the applicable guidelines range. This limited much of the advocacy at sentencing to presentations regarding application of possible sentencing guidelines enhancements or reductions. After those enhancements or reductions were decided, the resulting guidelines range provided a limited range (from six months at the lowest levels to 81 months at the highest levels) within which a district court was required to sentence a defendant.

Booker changed this focus. A defendant's advisory guidelines range is still determined, but a district court is no longer required to sentence a defendant within that range. Instead, a district court may vary upward or downward based upon application of the factors set forth in 18 U.S.C. [section] 3553. Those factors include the nature and circumstances of the offense, the defendant's history and characteristics, the kinds of sentences available, the applicable sentencing guidelines range, pertinent policy statements of the Sentencing Commission, the need to provide restitution to any victims, and the need to avoid unwarranted sentencing disparities. (13) To arrive at an appropriate sentence, a district court must consider all of the applicable [section] 3553(a) factors (14) and impose a sentence that will adequately "reflect the seriousness of the offense," "promote respect for the law," "provide just punishment," "afford adequate deterrence," "protect the public from further crimes of the defendant," and provide the defendant with any needed training and treatment. (15)

Since Booker, district courts have used their discretion and imposed sentences above and below the advisory guidelines range. When challenged on appeal, the 11th Circuit Court of Appeals has largely upheld those sentences. In so doing, the 11th Circuit recognizes that district courts are afforded due deference when they make sentencing decisions, because "they have great advantages over appellate courts when it comes to sentencing." (16) In particular, district courts are in a "superior position to find facts and judge their import under [section] 3553(a) in the individual case," due to the fact that they "see[] and hear[] the evidence, make[] credibility determinations, ha[ve] full knowledge of the facts and gain[] insights not conveyed by the record." (17)

For these reasons, the 11th Circuit has held that decisions about the assignment of weight given to each sentencing factor are "committed to the sound discretion of the district court." (18) The 11th Circuit has "not attempted to specify any particular weight that should be given to the guidelines range," (19) and has rejected "any across-the-board prescription regarding the appropriate deference to give the [g]uidelines." (20) A district court "is permitted to attach 'great weight' to one factor over others," (21) and the advisory guidelines range is but one of many considerations that a district court must take into account in exercising its sentencing discretion. (22)

The end result is that "district courts enjoy substantial discretion in sentencing regardless of whether they sentence above or below the guidelines." (23) "[I]f the sentence is outside the [g]uidelines range, the [reviewing] court may not apply a presumption of unreasonableness." (24) As the 11th Circuit explained, "[i] f we did presume an out-of-guidelines-range sentence was unreasonable, the advisory guidelines would not be advisory." (25) In its review, the 11th Circuit may "consider the extent of the deviation, but must give due deference to the district court's decision that the [section]3553(a) factors, on a whole, justify the extent of the variance. The fact that the appellate court might reasonably have concluded that a different sentence was appropriate is insufficient to justify reversal of the district court." (26)

Applying those principles, the 11th Circuit has upheld sentences of district courts that were below the advisory guideline range (Figure A). The 11th Circuit has also upheld sentences that were above the guidelines range (Figure B).

In sum, the discretion provided to a district court in sentencing is substantial. A district court abuses its discretion only when it "(1) fails to afford consideration to relevant factors that were...