Federal Sentencing Guidelines - Andrea Wilson

• Publication year: 1995

Federal Sentencing Guidelinesby Andrea Wilson^*

I. Introduction

In 1984, Congress mandated the creation of the United States Sentencing Commission composed of presidential appointees to create guidelines for a comprehensive sentencing scheme.¹ As a result, the United States Sentencing Guidelines ("U.S.S.G.")² have been in effect since November 1, 1987, and apply to all federal criminal offenses committed since that date.

In principle, guideline sentencing should be simple. Courts should arrive at a sentencing range using calculations that first consider the criminal conduct being sentenced and then the criminal history of the offender. In practice, however, the guidelines are difficult to understand, impossible to apply evenhandedly, and frequently difficult to predict. Hundreds of changes have added to the confusion. As a result, sentencing guidelines appeals now comprise the bulk of the caseload of the Eleventh Circuit Court of Appeals.

The offense conduct side of the equation considers the defendant's actual criminal conduct along with adjustments based upon the defendant's role in the offense, acceptance of responsibility, and obstruction of justice. The most complicated concept is the consideration of conduct which is outside the charged offense, but still factored as

"relevant conduct."³ Despite several overhauls,⁴ U.S.S.G. section 1B1.3 is still impossible to apply consistently.

Criminal history calculations, though less complicated than those for offense conduct, remain difficult. Courts must weight prior convictions based on the prior sentence, recency, and other factors. Designations like Career Offender⁵ and Armed Career Criminal⁶ boost the sentence range to at or near the statutory maximum for the offense sentenced.⁷

Yearly amendments have resulted in over five hundred changes in sentencing law. Usually in May, the United States Sentencing Commission writes guideline amendments and submits them for congressional approval. Congress can reject amendments, alter them, or take no action. Historically, Congress takes the latter course and the amendments automatically become effective the following November 1.

In 1994, facing challenges to its quorum, the Commission passed only six material amendments during the ordinary amendment cycle (a record low).⁸ An emergency amendment prompted by the Violent Crime Control and Law Enforcement Act of 1994⁹ exempts first offenders from the application of mandatory minimum sentences.¹⁰

Two Supreme Court opinions affect guideline sentencing this term. In Nichols v. United States,¹¹ the Court held that uncounselled misdemeanors which did not result in sentences of incarceration can nevertheless be used to calculate criminal history.¹² In Custis v. United States¹³ the court held that there is no right to collaterally attack prior state convictions in federal sentencing proceedings under the Armed Career Criminal Act,¹⁴ except for prior convictions that were obtained in violation of the defendant's right to counsel.¹⁵ The Supreme Court hinted that defendants might attack the constitutionality of prior convictions on other grounds through habeas corpus actions.¹⁶

The Eleventh Circuit often takes a progovernment approach when resolving sentencing questions. For instance, the court has held that written waivers of the right to appeal can be enforced, even though a defendant could not have known what his sentence would be at the time he agreed to the waiver.¹⁷

II. 1994 Amendments

A. Section 1B1.3: Relevant Conduct

The concept of relevant conduct generates enormous discrepancy in federal sentencing, largely because the terms in the guideline are vague and difficult to apply. The Commission issued two revisions in 1994.¹⁸

1. Jointly Undertaken Activity. The Commission attempted to clarify the term "jointly undertaken activity" by adding that relevant conduct does not include the activity of members of a conspiracy occurring before the defendant joined (even if the defendant was aware of the conduct).¹⁹ However, the modification allows the inclusion of this conduct if "some unusual set of circumstances" warrants a departure.²⁰

2. Same Course of Conduct. The Commission revised Application Note 9 to U.S.S.G. section 1B1.3, which lists factors used to determine when multiple offenses constitute the "same course of conduct," and therefore, are included in relevant conduct, to permit the court to consider "the degree of similarity of the offenses, the regularity (repetitions) of the offense, and the time interval between the offenses."²¹ Incorporating language from a Ninth Circuit case,²² the amendment states that:

[w]hen one of the above factors is absent, a stronger presence of at least one of the other factors is required. For example, where the conduct alleged to be relevant is relatively remote to the offense of conviction, a stronger showing of similarity or regularity is necessary to compensate for the absence of temporal proximity.²³

B. Section 1B1.10 (policy statement): Retroactivity of Amended Guideline Range

When a court resentences a defendant because of a favorable change in the guidelines, it must recalculate only the amended guideline, leaving other calculations unchanged.²⁴ For example, a defendant resentenced because of the new method of calculating the weight of LSD²⁵ will not be able to benefit from the additional reduction for acceptance of responsibility.²⁶ The Eleventh Circuit previously adopted the "One Book Rule."²⁷ This amendment seems to overturn that rule.

C. Section 2D1.1: Drug Quantity Table

The amendment lowers the highest base offense level to thirty-eight instead of forty-two. A departure, however, is authorized if the quantity of drugs is at least ten times that required for level thirty-eight.²⁸

D. Section 4B1.1: Career Offenders

The amendment clarifies the term "offense statutory maximum," used to determine the base offense level to mean the statutory maximum before the application of any enhancements based on prior record.²⁹

E. Section 5G1.2: Sentencing on Multiple Counts

Multiple terms of supervised release run concurrently even though the statute may require the terms of incarceration to be served consecutive-ly.³⁰

F. Section SG2.0 (policy statement) and Section 5H: Grounds for Departure

The Commission has added a departure based on a combination of offender characteristics which by themselves would not ordinarily be relevant, if these factors are present in an unusual degree, but departures should be "extremely rare."³¹

III. The Violent Crime Control & Law Enforcement Act of

1994

The 1994 Crime Bill,³² effective since September, radically changed criminal law. It created nearly sixty new federal crimes punishable by the death penalty and increased the existing penalties for dozens of other offenses.³³ The Commission reacted immediately to a mandate in the bill by creating a guideline to address the "Safety Valve" provision.³⁴ The crime bill contains several major revisions particularly relevant to guideline sentencing.

A. Three Strikes, You're Out—Mandatory Life Sentences for Certain Violent Felons

A defendant convicted of a "serious violent felony" and who has sustained at least two previous violent felony convictions, or one serious violent felony conviction and one serious drug offense conviction (as long as each prior conviction was "committed after the defendant's conviction of the preceding"³⁵ offense) shall be sentenced to life imprisonment.³⁶

The term "serious violent felony" is predictably comprehensive. It includes carjacking, extortion, arson, and firearms use, as well as certain assaults and attempts or conspiracies to commit these offenses.³⁷ Also included are offenses punishable by ten years or more involving "the use, attempted use, or threatened use of physical force against the person of another or that, by [their] nature, [involve] a substantial risk that physical force against the person of another may be used in the course of committing the offense."³⁸ The law exempts some felonies including certain robberies and arson,³⁹ but the definitions are vague. For example, the term excludes arson "if the defendant establishes by clear and convincing evidence that. . . the offense posed no threat to human life____"⁴⁰

Three Strikes enhancement requires an information filed by the United States Attorney pursuant to Title 21, Section 51(a) of the United States Code ("U.S.C.").⁴¹ Otherwise, the guidelines apply without the mandatory life sentence (although virtually any offender who qualifies for this provision will be a career offender under U.S.S.G. section 4B1.1⁴² or an Armed Career Criminal under U.S.S.G. section 4B1.4^43).44 A predicate conviction overturned because of actual innocence requires resentencing without the enhancement.⁴⁵

B. Relief for Elderly Long-Term Inmates

The Bureau of Prisons can release any inmate who is at least seventy years old and who has served at least thirty years in prison for the current offense if the Bureau determines that the inmate is not a danger to any person or the community.⁴⁶ This change will not affect the sentencing guidelines but reflects the growing number of inmates serving mandatory life sentences and the long-term problems an aging prison population poses.

C. The Safety Valve: Relief for First-Time Offenders Facing Mandatory Minimum Sentences in Drug Cases

Mandatory drug sentences can be waived under certain circumstances for first offenders. The sentencing court must give the government an opportunity to make a recommendation and must make certain findings:⁴⁷

1. The defendant has no more than one criminal history point as calculated under the sentencing guidelines;⁴⁸

2. "The defendant did not use violence or credible threats of violence or possess a firearm or other dangerous weapon"⁴⁹ nor cause another defendant to do so;⁵⁰

3. The offense did not involve death or serious bodily injury;⁵¹

4. "The defendant was not an organizer, leader, manager, or supervisor"⁵² as...