Decoupling federal offense guidelines from statutory limits on sentencing.

• Author: Bennardo, Kevin

1. INTRODUCTION

   The United States Sentencing Commission (Commission) must strike a delicate balance when incorporating statutory limits on sentencing into the U.S. Sentencing Guidelines Manual (Guidelines). On one hand, the Guidelines must be "consistent with all pertinent provisions of any Federal statute." (1) On the other, the Commission's "characteristic institutional role" is to advise sentencing courts based on "empirical data and national experience." (2) Particularly in the realm of controlled substance offenses, the Commission may find itself hard-pressed to reconcile harsh, quantity-based statutorily-mandated minimum sentences with its own research, expertise, and judgment. In such a situation, the Commission has three choices: (1) calibrate its offense guideline by proportionately extrapolating the statutory limitation across the guideline; (2) incorporate the statutory limit into the offense guideline to the least extent possible, often resulting in anomalous cliffs and plateaus within the offense guideline; or (3) not incorporate the statutory limit into the offense guideline but permit the statutory provision to limit an offender's ultimate Guidelines range through the operation of Chapter Five of the manual.

   This Article discusses the sensibility of each of these three options. Part II sets forth a hypothetical controlled substance offense to better illustrate the choices faced by the Commission. Part III recounts approaches that the Commission has actually adopted in incorporating statutory limits into the Guidelines. Part IV addresses the goals of guideline sentencing and concludes that the Guidelines' structure should be primarily driven by actual fairness concerns. Applying actual fairness as the overriding concern, Part V concludes that statutory limits should not be incorporated into an offense guideline when some offenders subject to the guideline will not be subject to the statutory limit. In particular, the drug distribution guideline should be decoupled from Congress's mandatory minimum sentences and revised to reflect the Commission's purest sentencing recommendations because defendants can avoid mandatory minimum sentences either through the operation of the statutory "safety valve" or through the government's failure to charge or adequately prove triggering drug quantities. The current drug distribution guideline, which is extrapolated from statutorily-imposed mandatory minimum sentences, works actual unfairness when applied to defendants who are not subject to those mandatory minimums.

2. A HYPOTHETICAL COMMISSION AND THE BETEL NUT GUIDELINE

   In order to conceptualize the issue at hand, it is perhaps easiest to take a step back from the reality of the United States' current federal sentencing scheme and enter a hypothetical parallel sentencing universe. Envision a fresh sentencing commission with the wisdom, research, and expertise to promulgate "pure" offense guidelines. For the purposes of this section, pure offense guidelines are guidelines that are correct from the commission's point of view in the absence of any external legislative directives. Pure offense guidelines are the commission's best effort to independently develop guidelines based on data and experience that produce proper ranges of imprisonment based on the seriousness of the offense conduct and the characteristics of the offender. (3) If the commission were king, the pure guidelines would be the sentencing scheme of the kingdom.

   Enter the hypothetical legislature. The hypothetical legislature identifies a new substance to control: the betel nut. (4) The commission is therefore faced with creating an offense guideline for betel nut distribution. Based on its wisdom and expertise, the commission finds that the ideal measure of offense seriousness is the quantity of betel nut distributed by the offender. (5) Thus, in its pure offense guideline, the commission correlates the offense level with the quantity of nuts distributed. Figure 1 displays the commission's pure betel nut offense guideline: (6)

   [FIGURE 1 OMITTED]

   The x-axis represents the quantity of nuts distributed. The y-axis represents the mean number of months within the guidelines range for an offender with no prior criminal history. (7)

   Influenced by "political considerations," the hypothetical legislature places statutory limitations on sentencing betel nut distributers that are out of alignment with the commission's pure guidelines. Specifically, the legislature sets a statutory minimum sentence of five years' imprisonment for the distribution of 10,000 nuts and a statutory minimum sentence of ten years' imprisonment for the distribution 400,000 nuts. Under the commission's pure offense guidelines, the distribution of 10,000 nuts should yield a range of 21 to 27 months' imprisonment for a defendant in criminal history category I. The distribution of 400,000 nuts should yield a range of 78 to 97 months' imprisonment for a defendant with the same minimal criminal history.

   With statutory minimums higher than the commission's judgment of the proper punishment for the distribution of betel nuts, the commission must elect from three options: (1) elevate the entire betel nut offense guideline by proportionately extrapolating the legislatively-sanctioned punishment levels; (2) incorporate the statutory limits into the guideline as "cliffs," but otherwise keep the guideline as close to the pure guideline as possible; or (3) make no changes to the pure offense guideline but allow another guideline provision to ensure that a defendant's ultimate guidelines range of imprisonment conforms to the statutory limits on sentencing.

   The first option, the "wholesale extrapolation approach," would produce a guideline similar to Figure 2 for offenders with no prior criminal history. (8)

   [FIGURE 2 OMITTED]

   Under the wholesale extrapolation approach, the curve of incremental punishment for incremental additional quantity is retained; however, the quantities necessary to trigger greater punishments are significantly lower than the quantities necessary to trigger identical punishments under the pure guideline. Such ballooning is necessary to incorporate the statutory minimums and maintain a relatively gentle slope. For example, under the pure guideline, a distribution of 5,000 nuts was necessary to receive a guidelines range of 15 to 21 months' incarceration, but under the wholesale extrapolation approach a distribution of only 750 nuts will land an offender in the same guidelines range. (9) On the high end, the pure guideline required a distribution of at least 30,000,000 nuts to reach the maximum offense level. Under the wholesale extrapolation approach, a significantly smaller distribution 3,000,000 nuts--will place an offender at the top of the graph.

   Rather than extrapolate the statutory minimums wholesale across every distribution quantity, under the second option, referred to as the "cliffs approach," the commission could opt to incorporate the statutory minimums into the pure offense guideline as anomalous cliffs. Each cliff is followed by a similarly anomalous plateau until the gradual curve of the pure guideline catches up to the level of the cliff. (10) This approach, set forth in Figure 3, keeps as true to the pure guideline as possible while incorporating the mandatory minimums into the offense guideline. (11)

   [FIGURE 3 OMITTED]

   For a better sense of the relative effects of the wholesale extrapolation and cliffs approaches, Figure 4 overlays both graphs with the pure offense guideline: (12)

   [FIGURE 4 OMITTED]

   The commission's final option is simply to retain its pure betel nut offense guideline. To ensure that a defendant's ultimate guidelines range comports with the mandatory minimum provisions, however, a separate guideline would be necessary that confines a defendant's guidelines range to the applicable statutory range. (13)

3. THE COMMISSION'S APPROACH TO MANDATORY MINIMUMS

   Return, at least for a moment, from the hypothetical black-and-white land of pure guidelines and meddling legislatures to our more nuanced federal system. With roots reaching back to the founding of the nation, (14) Congress has embedded nearly 200 mandatory minimum sentencing provisions into the current criminal code. (15)

   The Commission has openly recognized that mandatory minimums are, in "numerous" respects, "both structurally and functionally at odds with sentencing guidelines and the goals the guidelines seek to achieve." (16) In its 1991 Report to Congress on Mandatory Minimums, the Commission identified three aspects of mandatory minimum sentences that "starkly conflict" with sentencing guidelines: (1) by focusing on a single indicator of offense seriousness, mandatory minimums impose a "tariff effect" that inhibits individualized tailoring of sentences based on offender characteristics and offense conduct; (2) mandatory minimums create a "cliff effect" by sharply increasing the punishment based upon small differences in offense conduct or criminal record; and (3) mandatory minimums are a form of charge-offense sentencing because they are generally effective only when the relevant information is included in the charging document, whereas the Guidelines operate under a modified real-offense approach to sentencing. (17) The Commission concluded in its 1991 Mandatory Minimum Report, "[A]ll of the intended purposes of mandatory minimums can be equally or better served by guidelines, without compromising the crime control goals to which Congress has evidenced its commitment." (18) Clearly, the Commission feels that external limits constrain its ability to set the Guidelines in accordance with its own best judgment. (19)

   The tariff effect of mandatory minimum sentences creates unwarranted uniformity by focusing on a single characteristic of the offense or offender to the exclusion of all other characteristics. (20) Thus, dissimilar offenders are treated similarly--or, in many...