Sentencing

• Pages: 839-1012

IV. SENTENCING

SENTENCING GUIDELINES

The Sentencing Reform Act of 1984

2158

created the United States Sentencing

Commission. The Commission was charged with promulgating Guidelines

(Guidelines) subject to statutory standards. The Guidelines were intended to imple-

ment the general purposes of sentencing, which are enumerated in 18 U.S.C. § 3553

(a)(2), and the specific directives of the Act.

2159

The Guidelines promulgated by the

Commission were detailed, binding, and subject to appellate review. Judges were

obligated to make specific findings of fact under Guidelines categories, which could

increase sentences higher than the range authorized by the jury’s verdict. However,

in Apprendi v. New Jersey, the Supreme Court found that the Sixth Amendment

requires a jury, not a judge, to make such factual findings (other than the fact of a

prior conviction).

2160

In United States v. Booker, the Court held the way to remedy

this constitutional defect of the Sentencing Reform Act was to treat the sentencing

range determined by the Guidelines as an “advisory”recommendation, not a manda-

tory range, thus giving the judge more discretion in sentencing.

2161

Although, after

Booker, the judge is not obligated to sentence within the Guidelines range, the court

must nevertheless accurately calculate that range.

2162

The judge may then vary from

IV. SENTENCING

2158. 18 U.S.C. §§ 3551-3586, 3601-3742 (excluding §§ 3553(b)(1), 3742(e), invalidated by U.S. v.

Booker, 543 U.S. 220, 245 (2005), excluding § 3742(g)(2), invalidated by Pepper v. U.S., 562 U.S. 476, 495

(2011), also excluding §§ 3651-3656); 28 U.S.C. §§ 991-998; see U.S. SENT’GGUIDELINES MANUAL § 2X5.1

(U.S. SENT’GCOMM’N2018), available at https://www.ussc.gov/guidelines/2018-guidelines-manual-annotated

[hereinafter SENTENCING GUIDELINES]. The Sentencing Reform Act fundamentally changed federal criminal

sentencing. See S. REP.NO. 98-225 (1984), as reprinted in 1984 U.S.C.C.A.N. 3182, 3222-32. The prior system

was criticized for creating disparities in sentences imposed on similarly situated defendants and uncertainty in

the length of time defendants actually served in prison. Id. In the Sentencing Reform Act, Congress attempted

to address these problems by abolishing the parole system and authorizing the creation of a more determinate

sentencing method. Id.

2159. See 28 U.S.C. § 994(b)-(n).

2160. See Apprendi v. N.J., 530 U.S. 466, 490 (2000) (holding that “[o]ther than the fact of a prior

conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be

submitted to a jury, and proved beyond a reasonable doubt.”); see also Mathis v. U.S., 136 S. Ct. 2243, 2252

(2016). The Court later clarified that the “statutory maximum”under Apprendi is the maximum sentence that a

court may issue based on the facts found by the jury, not the maximum sentence that could be imposed for the

base crime and any conceivable set of aggravating factors. See Blakely v. Wash., 542 U.S. 296, 303-04 (2004)

(remanding for new sentencing when trial judge imposed 90-month sentence for kidnapping because jury did

not find facts required for sentence to exceed 53-month statutory maximum). The Court further held that any

fact that increases the mandatory minimum sentence is an element that must be submitted to the jury and

proved beyond a reasonable doubt. See Alleyne v. U.S., 570 U.S. 99, 107-08 (2013); U.S. v. Haymond, 139 S.

Ct. 2369, 2378 (2019).

The Court has recognized an exception to the Apprendi requirement of jury factfinding: when the defendant

has been tried and convicted of multiple offenses, a sentencing court may make the findings of fact necessary to

impose consecutive, as opposed to concurrent, sentences. See Or. v. Ice, 555 U.S. 160, 167-68 (2009)

(upholding state statute allowing court, not jury, to make factual determinations required to impose consecutive

rather than concurrent sentences).

2161. U.S. v. Booker, 543 U.S. 220, 246-47 (2005) (severing provision making Guidelines mandatory and

holding that Guidelines are effectively advisory); see also Beckles v. U.S., 137 S. Ct. 886, 894 (2017)

(Guidelines cannot be challenged as unconstitutionally vague due to their advisory nature); Gall v. U.S., 552

U.S. 38, 49-50 (2007) (noting that court may not presume Guidelines range is reasonable, but must make

individualized assessment based on both Guidelines range and 3553(a) factors). But see Koons v. U.S., 138 S.

Ct. 1783, 1787 (2018) (holding defendant ineligible for sentence reduction where sentence “‘based on’ . . .

mandatory minimums”and defendant’s cooperation with government, not on sentencing ranges later lowered

by Commission).

2162. See Peugh v. U.S., 569 U.S. 530, 536-37 (2013).

51 Geo. L.J. Ann. Rev. Crim. Proc. (2022)839

the Guidelines on a wide variety of grounds, subject to appellate review.

2163

Most

judges, however, continue to follow the Guidelines, or make only minor adjustments

to the Guidelines range.

Sentencing statutes trump the Guidelines, including statutes that set the mandatory

minimum sentence. For further discussion, see APPELLATE REVIEW OF SENTENCES in

Part V.

The United States Sentencing Commission (Commission) promulgates the

Guidelines.

2164

The Guidelines contain a sentencing table that consists of forty-three

offense levels

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and six criminal history categories

2166

that, when considered to-

gether, provide the recommended sentencing range for any federal offense. The table

guides judges in identifying the recommended sentencing range and type of sentence

applicable to a defendant.

2167

The factors judges must consider in crafting a sentence are (1) the “nature and cir-

cumstances of the offense”and the defendant’s “history and characteristics”;

2168

(2)

IV. SENTENCING

2163. Sentencing decisions will be reviewed on appeal only for an abuse of discretion. See Gall, 552 U.S. at

51 (“The fact that the appellate court might reasonably have concluded that a different sentence was

appropriate is insufficient to justify reversal ....”); see, e.g., U.S. v. Severino-Pacheco, 911 F.3d 14, 21-22 (1st

Cir. 2018) (holding court did not abuse discretion by imposing above-Guidelines sentence because court

explicitly and properly considered sentencing factors); U.S. v. McCray, 7 F.4th 40, 49 (2d Cir. 2021) (holding

court did not abuse discretion by imposing above-Guidelines sentence because no mismatch between evidence

of culpability in victim’s death and upward departure); U.S. v. Seibert, 971 F.3d 396, 400-02 (3d Cir. 2020)

(holding court did not abuse discretion by applying 2 separate but related sentencing enhancements or by

refusing to grant downward variance regarding defendant’s claimed mitigating factors); U.S. v. Lester, 985

F.3d 377, 388 (4th Cir. 2021) (holding court did not abuse discretion by imposing maximum sentence because

context made clear judge considered defense argument before rejecting it); U.S. v. Navarro-Jusino, 993 F.3d

360, 362-63 (5th Cir. 2021) (holding court did not abuse discretion by imposing upward sentencing variance

where defendant defrauded victim of life savings and court explicitly explained rationale for deviation); U.S. v.

Small, 988 F.3d 241, 259-60 (6th Cir. 2021) (holding court did not abuse discretion by applying upward

variance because court detailed reasons for deviation, including history of convictions demonstrating disregard

for legal authority); U.S. v. Morgan, 987 F.3d 627, 632-33 (7th Cir. 2021) (holding court did not abuse

discretion by imposing upward variance because court adequately explained seriousness of offense and need

for deterrence); U.S. v. Comly, 998 F.3d 340, 344 (8th Cir. 2021) (holding court did not abuse discretion by

thoroughly considering but deciding mitigating factors were outweighed by seriousness of attempted murder

offense and extensive violent criminal history); U.S. v. Parlor, 2 F.4th 807, 814-15 (9th Cir. 2021) (holding

court did not abuse discretion by imposing sentencing enhancement for use or possession of firearm in

connection with felony because sufficient evidence supported enhancement); U.S. v. Williams, 994 F.3d 1176,

1180 (10th Cir. 2021) (holding court did not abuse discretion by imposing sentence more than doubling

recommended maximum where judge expressed concern that lighter sentence with no supervised release would

reward bad behavior); U.S. v. Castaneda, 997 F.3d 1318, 1332 (11th Cir. 2021) (holding court did not abuse

discretion by imposing upward variance and refusing to consider societal attitudes toward sex offenders where

defendant meticulously planned offenses and ultimate sentence was within Guidelines and under statutory

maximum); U.S. v. Mattea, 895 F.3d 762, 766-67 (D.C. Cir. 2018) (holding court did not abuse discretion by

applying computer-use sentencing enhancement for child pornography offense because court adequately

considered defense argument and offered “reasoned basis”for rejecting it).

2164. The Commission is an independent agency of the judicial branch. It consists of seven voting

members, at least three of whom must be federal judges, and one nonvoting member. See 28 U.S.C. § 991(a),

amended by Judicial Administration and Technical Amendments Act of 2008, Pub. L. No. 110-406, § 16, 122

Stat. 4291, 4295 (2008).

2165. See SENTENCING GUIDELINES,supra note 2158, § 5A.

2166. See id. § 4A1.1.

2167. See id. § 5A. But see 28 U.S.C. § 994(b)(2) (the maximum for a range established for a term of

imprisonment shall not exceed the minimum of that range by more than the greater of 25% or 6 months, but if

the minimum term of the range is 30 years or more, the maximum may be life imprisonment).

2168. 18 U.S.C. § 3553(a)(1), invalidated in part by U.S. v. Booker, 543 U.S. 220, 245-46 (2005) (holding

Guidelines advisory not mandatory). To comply with a defendant’s Sixth Amendment right to have a jury find

facts that could increase a sentence beyond the statutory maximum, facts concerning the nature of the offense

or the defendant’s history must be (1) established by a guilty plea; (2) admitted by the defendant; (3) proven to

84051 Geo. L.J. Ann. Rev. Crim. Proc. (2022)

the general purposes of the Sentencing Reform Act;

2169

(3) the “kinds of sentences

available”;

2170

(4) the “pertinent policy statement[s] issued by the [U.S.] Sentencing

Commission”;

2171

(5) the “need to avoid unwarranted sentence disparities”between

defendants convicted of similar conduct;

2172

(6) the “need to provide restitution to

IV. SENTENCING

a jury beyond a reasonable doubt; or (4) related to a prior conviction, which need not be proven again to the

present jury. See Booker, 543 U.S. at 244 (reaffirming Apprendi v. N.J., 530 U.S. 466, 466 (2000)).

2169. 18 U.S.C. § 3553(a)(2). The relevant purposes of the Sentencing Reform Act are “the need for the

sentence imposed—(A) to reflect the seriousness of the offense, to promote respect for the law, and to provide

just punishment for the offense; (B) to afford adequate deterrence to criminal conduct; (C) to protect the public

from further crimes of the defendant; and (D) to provide the defendant with needed educational or vocational

training, medical care, or other correctional treatment in the most effective manner.”Id.

2170. 18 U.S.C. § 3553(a)(3); see, e.g., U.S. v. Viloria-Sepulveda, 921 F.3d 5, 8-10 (1st Cir. 2019)

(affirming sentence based on sentencing judge’s ability to “custom-tailor an appropriate sentence”drawing on

familiarity with case and § 3553(a) factors (quoting U.S. v. Flores-Machiote, 706 F.3d 16, 20 (1st Cir. 2013))).

2171. 18 U.S.C. § 3553(a)(5)(A); see, e.g., U.S. v. Gordon, 852 F.3d 126, 133 (1st Cir. 2017) (affirming

sentence consistent with policy to calculate criminal income for sentencing as gross income, not net income);

U.S. v. Horton, 993 F.3d 370, 377 (5th Cir. 2021) (affirming district court’s refusal to allow 2 sentences to run

concurrently where relevant policy statement affords court discretion to make own determination). But see,

e.g., U.S. v. McMiller, 954 F.3d 670, 676 (4th Cir. 2020) (remanding for resentencing because, among other

reasons, district court failed to consider whether sentence consistent with relevant Commission policy

statements); U.S. v. Priester, 646 F.3d 950, 952-53 (6th Cir. 2011) (remanding for resentencing where district

court did not demonstrate awareness it could disagree with policy statements); U.S. v. Tate, 630 F.3d 194, 199-

200 (D.C. Cir. 2011) (affirming district court’s refusal to express policy disagreement in not granting

downward variance).

2172. 18 U.S.C. § 3553(a)(6); see, e.g., U.S. v. Galindo-Serrano, 925 F.3d 40, 52 (1st Cir. 2019) (finding no

sentencing disparity when codefendant pleaded guilty, had lower criminal history category, and was sentenced

to less serious offense); U.S. v. Sawyer, 907 F.3d 121, 125-26 (2d Cir. 2018) (finding no sentencing disparity

between imposed 25 year sentence and 15 year mandatory minimum for comparable offenses); U.S. v.

Friedman, 658 F.3d 342, 363 (3d Cir. 2011) (finding imposition of 34-month sentence when similar defendants

received 24 months or 3 years probation without sufficient explanation of disparity warranted remand for

resentencing); U.S. v. Freeman, 992 F.3d 268, 279-80 (4th Cir. 2021) (finding district court erred by imposing

sentence double the average for similar offenders and failing to explain disparity while ignoring significant

mitigating factors); U.S. v. Broussard, 669 F.3d 537, 555 (5th Cir. 2012) (finding district court erred by

imposing sentence 300% higher than Guidelines recommendation, improperly stressing defendant “sick in the

head,”and ignoring sentencing disparity); U.S. v. Perez-Rodriguez, 960 F.3d 748, 756-58 (6th Cir. 2020)

(finding district court erred by improperly relying on statutory minimum rather than similarly situated

defendants and desire to “send a message”to other offenders in imposing upward variance); U.S. v. Sanchez,

989 F.3d 523, 539-43 (7th Cir. 2021) (finding court correctly interpreted disparity factor by acknowledging

discretion to consider other sentences); U.S. v. Escalante, 946 F.3d 410, 413 (8th Cir. 2019) (finding district

court correctly applied downward variance to defendant’s sentence to avoid disparity with codefendants’

sentences); U.S. v. Ressam, 679 F.3d 1069, 1094-95 (9th Cir. 2012) (finding district court abused discretion by

improperly considering dissimilar cases to avoid unwarranted sentencing disparities); U.S. v. Sample, 901 F.3d

1196, 1201 (10th Cir. 2018) (finding district court abused discretion by giving probation to defendant where

similar defendants received average sentence of 39 months); U.S. v. Jayyousi, 657 F.3d 1085, 1117-18 (11th

Cir. 2011) (finding district court, to avoid sentencing disparity, improperly compared defendant’s

circumstances to other defendants who committed lesser offenses, had less extensive criminal histories, or

pleaded guilty). But see, e.g., U.S. v. Grullon, 996 F.3d 21, 35-36 (1st Cir. 2021) (finding district court not

required to weigh disparities in situations with “material differences between”codefendants); U.S. v. Bryant,

976 F.3d 165, 180 (2d Cir. 2020) (finding district court not required to weigh disparities between codefendants

and may consider other factors); U.S. v. Begin, 696 F.3d 405, 412 (3d Cir. 2012) (finding need to avoid

unwarranted disparities only between federal defendants, not between federal and state defendants); U.S. v.

Naidoo, 995 F.3d 367, 383 (5th Cir. 2021) (finding district court cannot rely on “[n]ational averages of

sentences”when weighing disparities but must rely on “details underlying . . . sentences”); U.S. v. Willis, 997

F.3d 685, 688 (6th Cir. 2021) (finding district court did not abuse discretion in denying sentence reduction

motion merely because defendant could provide examples of other defendants receiving different sentences);

U.S. v. Solomon, 892 F.3d 273, 279 (7th Cir. 2018) (finding district court may weigh degree of participation

among codefendants to justify imposing disparate sentences); U.S. v. Heim, 941 F.3d 338, 340-41 (8th Cir.

2019) (finding district court not required to adopt policy disagreements of other district judges to avoid

sentencing disparities); U.S. v. Osinger, 753 F.3d 939, 949 (9th Cir. 2014) (finding district court could impose

51 Geo. L.J. Ann. Rev. Crim. Proc. (2022)841