2005 Federal Sentencing Guidelines
Chapter 1 - PART A - AUTHORITY
§1A1.1. Authority
The guidelines, policy statements, and commentary set forth in this Guidelines
Manual, including amendments thereto, are promulgated by the United States
Sentencing Commission pursuant to: (1) section 994(a) of title 28, United States
Code; and (2) with respect to guidelines, policy statements, and commentary
promulgated or amended pursuant to specific congressional directive, pursuant
to the authority contained in that directive in addition to the authority under
section 994(a) of title 28, United States Code.
Commentary
Application Note:
1.Historical Review of Original Introduction.—Part A of Chapter
One originally was an introduction to the Guidelines Manual that explained
a number of policy decisions made by the Commission when it promulgated the
initial set of guidelines. This introduction was amended occasionally between
1987 and 2003. In 2003, as part of the Commission’s implementation
of the Prosecutorial Remedies and Other Tools to end the Exploitation of
Children Today Act of 2003 (the "PROTECT Act", Public Law 108–21),
the original introduction was transferred to the Editorial Note at the end
of this guideline. The Commission encourages the review of this material
for context and historical purposes.
Background: The Sentencing Reform Act of 1984 changed the course
of federal sentencing. Among other things, the Act created the United States
Sentencing Commission as an independent agency in the Judicial Branch, and
directed it to develop guidelines and policy statements for sentencing courts
to use when sentencing offenders convicted of federal crimes. Moreover, it
empowered the Commission with ongoing responsibilities to monitor the guidelines,
submit to Congress appropriate modifications of the guidelines and recommended
changes in criminal statutes, and establish education and research programs.
The mandate rested on Congressional awareness that sentencing was a dynamic
field that requires continuing review by an expert body to revise sentencing
policies, in light of application experience, as new criminal statutes are
enacted, and as more is learned about what motivates and controls criminal
behavior.
Historical Note: Effective November 1, 1987. Amended effective November
1, 1989 (see Appendix C, amendments 67 and 68); November 1, 1990 (see Appendix
C, amendment 307); November 1, 1992 (see Appendix C, amendment 466);
November 1, 1995 (see Appendix C, amendment 534); November 1, 1996
(see Appendix C, amendment 538); November 1, 2000 (see Appendix
C, amendments 602 and 603); October 27, 2003 (see Appendix C, amendment
651).
Editorial Note: Chapter One, Part A, as in effect on November 1, 1987,
read as follows:
"CHAPTER ONE - INTRODUCTION
AND GENERAL APPLICATION PRINCIPLES
PART A - INTRODUCTION
1. Authority
The United States Sentencing Commission (‘Commission’) is an
independent agency in the judicial branch composed of seven voting and two
non-voting, ex officio members. Its principal purpose is to establish sentencing
policies and practices for the federal criminal justice system that will assure
the ends of justice by promulgating detailed guidelines prescribing the appropriate
sentences for offenders convicted of federal crimes.
The guidelines and policy statements promulgated by the Commission are issued
pursuant to Section 994(a) of Title 28, United States Code.
2. The Statutory Mission
The Comprehensive Crime Control Act of 1984 foresees guidelines that will
further the basic purposes of criminal punishment, i.e., deterring crime,
incapacitating the offender, providing just punishment, and rehabilitating
the offender. It delegates to the Commission broad authority to review and
rationalize the federal sentencing process.
The statute contains many detailed instructions as to how this determination
should be made, but the most important of them instructs the Commission to
create categories of offense behavior and offender characteristics. An offense
behavior category might consist, for example, of ‘bank robbery/committed
with a gun/$2500 taken.’ An offender characteristic category might be ‘offender
with one prior conviction who was not sentenced to imprisonment.’
The Commission is required to prescribe guideline ranges that specify an appropriate
sentence for each class of convicted persons, to be determined by coordinating
the offense behavior categories with the offender characteristic categories.
The statute contemplates the guidelines will establish a range of sentences
for every coordination of categories. Where the guidelines call for imprisonment,
the range must be narrow: the maximum imprisonment cannot exceed the minimum
by more than the greater of 25 percent or six months. 28 U.S.C. § 994(b)(2).
The sentencing judge must select a sentence from within the guideline range.
If, however, a particular case presents atypical features, the Act allows the
judge to depart from the guidelines and sentence outside the range. In that
case, the judge must specify reasons for departure. 18 U.S.C. § 3553(b).
If the court sentences within the guideline range, an appellate court may review
the sentence to see if the guideline was correctly applied. If the judge departs
from the guideline range, an appellate court may review the reasonableness
of the departure. 18 U.S.C. § 3742. The Act requires the offender
to serve virtually all of any prison sentence imposed, for it abolishes parole
and substantially restructures good behavior adjustments.
The law requires the Commission to send its initial guidelines to Congress
by April 13, 1987, and under the present statute they take effect
automatically on November 1, 1987. Pub. L. No. 98-473, § 235, reprinted at
18 U.S.C. § 3551. The Commission may submit guideline amendments each
year to Congress between the beginning of a regular session and May 1. The
amendments will take effect automatically 180 days after submission unless
a law is enacted to the contrary. 28 U.S.C. § 994(p).
The Commission, with the aid of its legal and research staff, considerable
public testimony, and written commentary, has developed an initial set of guidelines
which it now transmits to Congress. The Commission emphasizes, however, that
it views the guideline-writing process as evolutionary. It expects, and the
governing statute anticipates, that continuing research, experience, and analysis
will result in modifications and revisions to the guidelines by submission
of amendments to Congress. To this end, the Commission is established as a
permanent agency to monitor sentencing practices in the federal courts throughout
the nation.
3. The Basic Approach (Policy Statement)
To understand these guidelines and the rationale that underlies them, one
must begin with the three objectives that Congress, in enacting the new sentencing
law, sought to achieve. Its basic objective was to enhance the ability of the
criminal justice system to reduce crime through an effective, fair sentencing
system. To achieve this objective, Congress first sought honesty in
sentencing. It sought to avoid the confusion and implicit deception that arises
out of the present sentencing system which requires a judge to impose an indeterminate
sentence that is automatically reduced in most cases by ‘good time’ credits.
In addition, the parole commission is permitted to determine how much of the
remainder of any prison sentence an offender actually will serve. This usually
results in a substantial reduction in the effective length of the sentence
imposed, with defendants often serving only about one-third of the sentence
handed down by the court.
Second, Congress sought uniformity in sentencing by narrowing the wide disparity
in sentences imposed by different federal courts for similar criminal conduct
by similar offenders. Third, Congress sought proportionality in sentencing
through a system that imposes appropriately different sentences for criminal
conduct of different severity.
Honesty is easy to achieve: The abolition of parole makes the sentence imposed
by the court the sentence the offender will serve. There is a tension, however,
between the mandate of uniformity (treat similar cases alike) and the
mandate of proportionality (treat different cases differently) which, like
the historical tension between law and equity, makes it difficult to achieve
both goals simultaneously. Perfect uniformity -- sentencing every offender
to five years -- destroys proportionality. Having only a few simple categories
of crimes would make the guidelines uniform and easy to administer, but might
lump together offenses that are different in important respects. For example,
a single category for robbery that lumps together armed and unarmed robberies,
robberies with and without injuries, robberies of a few dollars and robberies
of millions, is far too broad.
At the same time, a sentencing system tailored to fit every conceivable wrinkle
of each case can become unworkable and seriously compromise the certainty of
punishment and its deterrent effect. A bank robber with (or without) a gun,
which the robber kept hidden (or brandished), might have frightened (or merely
warned), injured seriously (or less seriously), tied up (or simply pushed)
a guard, a teller or a customer, at night (or at noon), for a bad (or arguably
less bad) motive, in an effort to obtain money for other crimes (or for other
purposes), in the company of a few (or many) other robbers, for the first (or
fourth) time that day, while sober (or under the influence of drugs or alcohol),
and so forth.
The list of potentially relevant features of criminal behavior is long; the
fact that they can occur in multiple combinations means that the list of possible
permutations of factors is virtually endless. The appropriate relationships
among these different factors are exceedingly difficult to establish, for they
are often context specific. Sentencing courts do not treat the occurrence of
a simple bruise identically in all cases, irrespective of whether that bruise
occurred in the context of a bank robbery or in the context of a breach of
peace. This is so, in part, because the risk that such a harm will occur differs
depending on the underlying offense with which it is connected (and therefore
may already be counted, to a different degree, in the punishment for the underlying
offense); and also because, in part, the relationship between punishment and
multiple harms is not simply additive. The relation varies, depending on how
much other harm has occurred. (Thus, one cannot easily assign points for each
kind of harm and simply add them up, irrespective of context and total amounts.)
The larger the number of subcategories, the greater the complexity that is
created and the less workable the system. Moreover, the subcategories themselves,
sometimes too broad and sometimes too narrow, will apply and interact in unforeseen
ways to unforeseen situations, thus failing to cure the unfairness of a simple,
broad category system. Finally, and perhaps most importantly, probation officers
and courts, in applying a complex system of subcategories, would have to make
a host of decisions about whether the underlying facts are sufficient to bring
the case within a particular subcategory. The greater the number of decisions
required and the greater their complexity, the greater the risk that different
judges will apply the guidelines differently to situations that, in fact, are
similar, thereby reintroducing the very disparity that the guidelines were
designed to eliminate.
In view of the arguments, it is tempting to retreat to the simple, broad-category
approach and to grant judges the discretion to select the proper point along
a broad sentencing range. Obviously, however, granting such broad discretion
risks correspondingly broad disparity in sentencing, for different courts may
exercise their discretionary powers in different ways. That is to say, such
an approach risks a return to the wide disparity that Congress established
the Commission to limit.
In the end, there is no completely satisfying solution to this practical
stalemate. The Commission has had to simply balance the comparative virtues
and vices of broad, simple categorization and detailed, complex subcategorization,
and within the constraints established by that balance, minimize the discretionary
powers of the sentencing court. Any ultimate system will, to a degree, enjoy
the benefits and suffer from the drawbacks of each approach.
A philosophical problem arose when the Commission attempted to reconcile
the differing perceptions of the purposes of criminal punishment. Most observers
of the criminal law agree that the ultimate aim of the law itself, and of punishment
in particular, is the control of crime. Beyond this point, however, the consensus
seems to break down. Some argue that appropriate punishment should be defined
primarily on the basis of the moral principle of ‘just deserts.’ Under
this principle, punishment should be scaled to the offender’s culpability
and the resulting harms. Thus, if a defendant is less culpable, the defendant
deserves less punishment. Others argue that punishment should be imposed primarily
on the basis of practical ‘crime control’
considerations. Defendants sentenced under this scheme should receive the punishment
that most effectively lessens the likelihood of future crime, either by deterring
others or incapacitating the defendant.
Adherents of these points of view have urged the Commission to choose between
them, to accord one primacy over the other. Such a choice would be profoundly
difficult. The relevant literature is vast, the arguments deep, and each point
of view has much to be said in its favor. A clear-cut Commission decision in
favor of one of these approaches would diminish the chance that the guidelines
would find the widespread acceptance they need for effective implementation.
As a practical matter, in most sentencing decisions both philosophies may prove
consistent with the same result.
For now, the Commission has sought to solve both the practical and philosophical
problems of developing a coherent sentencing system by taking an empirical
approach that uses data estimating the existing sentencing system as a starting
point. It has analyzed data drawn from 10,000 presentence investigations, crimes
as distinguished in substantive criminal statutes, the United States Parole
Commission’s guidelines and resulting statistics, and data from other
relevant sources, in order to determine which distinctions are important in
present practice. After examination, the Commission has accepted, modified,
or rationalized the more important of these distinctions.
This empirical approach has helped the Commission resolve its practical problem
by defining a list of relevant distinctions that, although of considerable
length, is short enough to create a manageable set of guidelines. Existing
categories are relatively broad and omit many distinctions that some may believe
important, yet they include most of the major distinctions that statutes and
presentence data suggest make a significant difference in sentencing decisions.
Important distinctions that are ignored in existing practice probably occur
rarely. A sentencing judge may take this unusual case into account by departing
from the guidelines.
The Commission’s empirical approach has also helped resolve its philosophical
dilemma. Those who adhere to a just deserts philosophy may concede that the
lack of moral consensus might make it difficult to say exactly what punishment
is deserved for a particular crime, specified in minute detail. Likewise, those
who subscribe to a philosophy of crime control may acknowledge that the lack
of sufficient, readily available data might make it difficult to say exactly
what punishment will best prevent that crime. Both groups might therefore recognize
the wisdom of looking to those distinctions that judges and legislators have,
in fact, made over the course of time. These established distinctions are ones
that the community believes, or has found over time, to be important from either
a moral or crime-control perspective.
The Commission has not simply copied estimates of existing practice as revealed
by the data (even though establishing offense values on this basis would help
eliminate disparity, for the data represent averages). Rather, it has departed
from the data at different points for various important reasons. Congressional
statutes, for example, may suggest or require departure, as in the case of
the new drug law that imposes increased and mandatory minimum sentences. In
addition, the data may reveal inconsistencies in treatment, such as punishing
economic crime less severely than other apparently equivalent behavior.
Despite these policy-oriented departures from present practice, the guidelines
represent an approach that begins with, and builds upon, empirical data. The
guidelines will not please those who wish the Commission to adopt a single
philosophical theory and then work deductively to establish a simple and perfect
set of categorizations and distinctions. The guidelines may prove acceptable,
however, to those who seek more modest, incremental improvements in the status
quo, who believe the best is often the enemy of the good, and who recognize
that these initial guidelines are but the first step in an evolutionary process.
After spending considerable time and resources exploring alternative approaches,
the Commission has developed these guidelines as a practical effort toward
the achievement of a more honest, uniform, equitable, and therefore effective,
sentencing system.
4. The Guidelines’ Resolution of Major Issues (Policy Statement)
The guideline-writing process has required the Commission to resolve a host
of important policy questions, typically involving rather evenly balanced sets
of competing considerations. As an aid to understanding the guidelines, this
introduction will briefly discuss several of those issues. Commentary in the
guidelines explains others.
(a) Real Offense vs. Charge Offense Sentencing.
One of the most important questions for the Commission to decide was whether
to base sentences upon the actual conduct in which the defendant engaged regardless
of the charges for which he was indicted or convicted (‘real offense’ sentencing),
or upon the conduct that constitutes the elements of the offense with which
the defendant was charged and of which he was convicted (‘charge offense’ sentencing).
A bank robber, for example, might have used a gun, frightened bystanders, taken
$50,000, injured a teller, refused to stop when ordered, and raced away damaging
property during escape. A pure real offense system would sentence on the basis
of all identifiable conduct. A pure charge offense system would overlook some
of the harms that did not constitute statutory elements of the offenses of
which the defendant was convicted.
The Commission initially sought to develop a real offense system. After all,
the present sentencing system is, in a sense, a real offense system. The sentencing
court (and the parole commission) take account of the conduct in which the
defendant actually engaged, as determined in a presentence report, at the sentencing
hearing, or before a parole commission hearing officer. The Commission’s
initial efforts in this direction, carried out in the spring and early summer
of 1986, proved unproductive mostly for practical reasons. To make such a system
work, even to formalize and rationalize the status quo, would have required
the Commission to decide precisely which harms to take into account, how to
add them up, and what kinds of procedures the courts should use to determine
the presence or absence of disputed factual elements. The Commission found
no practical way to combine and account for the large number of diverse harms
arising in different circumstances; nor did it find a practical way to reconcile
the need for a fair adjudicatory procedure with the need for a speedy sentencing
process, given the potential existence of hosts of adjudicated ‘real
harm’ facts in many typical cases. The effort proposed as a solution
to these problems required the use of, for example, quadratic roots and other
mathematical operations that the Commission considered too complex to be workable,
and, in the Commission’s view, risked return to wide disparity in practice.
The Commission therefore abandoned the effort to devise a ‘pure’
real offense system and instead experimented with a ‘modified real offense
system,’ which it published for public comment in a September 1986 preliminary
draft.
This version also foundered in several major respects on the rock of practicality.
It was highly complex and its mechanical rules for adding harms (e.g.,
bodily injury added the same punishment irrespective of context) threatened
to work considerable unfairness. Ultimately, the Commission decided that it
could not find a practical or fair and efficient way to implement either a
pure or modified real offense system of the sort it originally wanted, and
it abandoned that approach.
The Commission, in its January 1987 Revised Draft and the present guidelines,
has moved closer to a ‘charge offense’ system. The system is not,
however, pure; it has a number of real elements. For one thing, the hundreds
of overlapping and duplicative statutory provisions that make up the federal
criminal law have forced the Commission to write guidelines that are descriptive
of generic conduct rather than tracking purely statutory language. For another,
the guidelines, both through specific offense characteristics and adjustments,
take account of a number of important, commonly occurring real offense elements
such as role in the offense, the presence of a gun, or the amount of money
actually taken.
Finally, it is important not to overstate the difference in practice between
a real and a charge offense system. The federal criminal system, in practice,
deals mostly with drug offenses, bank robberies and white collar crimes (such
as fraud, embezzlement, and bribery). For the most part, the conduct that an
indictment charges approximates the real and relevant conduct in which the
offender actually engaged.
The Commission recognizes its system will not completely cure the problems
of a real offense system. It may still be necessary, for example, for a court
to determine some particular real facts that will make a difference to the
sentence. Yet, the Commission believes that the instances of controversial
facts will be far fewer; indeed, there will be few enough so that the court
system will be able to devise fair procedures for their determination. See United
States v. Fatico, 579 F.2d 707 (2d Cir. 1978) (permitting introduction of hearsay
evidence at sentencing hearing under certain conditions), on remand, 458 F.
Supp. 388 (E.D.N.Y. 1978), aff’d, 603 F.2d 1053 (2d Cir. 1979) (holding
that the government need not prove facts at sentencing hearing beyond a reasonable
doubt), cert. denied, 444 U.S. 1073 (1980).
The Commission also recognizes that a charge offense system has drawbacks
of its own. One of the most important is its potential to turn over to the
prosecutor the power to determine the sentence by increasing or decreasing
the number (or content) of the counts in an indictment. Of course, the defendant’s
actual conduct (that which the prosecutor can prove in court) imposes a natural
limit upon the prosecutor’s ability to increase a defendant’s sentence.
Moreover, the Commission has written its rules for the treatment of multicount
convictions with an eye toward eliminating unfair treatment that might flow
from count manipulation. For example, the guidelines treat a three-count indictment,
each count of which charges sale of 100 grams of heroin, or theft of $10,000,
the same as a single-count indictment charging sale of 300 grams of heroin
or theft of $30,000. Further, a sentencing court may control any inappropriate
manipulation of the indictment through use of its power to depart from the
specific guideline sentence. Finally, the Commission will closely monitor problems
arising out of count manipulation and will make appropriate adjustments should
they become necessary.
(b) Departures.
The new sentencing statute permits a court to depart from a guideline-specified
sentence only when it finds ‘an aggravating or mitigating circumstance
...that was not adequately taken into consideration by the Sentencing Commission
. . .’. 18 U.S.C. §
3553(b). Thus, in principle, the Commission, by specifying that it had adequately
considered a particular factor, could prevent a court from using it as grounds
for departure. In this initial set of guidelines, however, the Commission does
not so limit the courts’ departure powers. The Commission intends the
sentencing courts to treat each guideline as carving out a ‘heartland,’ a
set of typical cases embodying the conduct that each guideline describes. When
a court finds an atypical case, one to which a particular guideline linguistically
applies but where conduct significantly differs from the norm, the court may
consider whether a departure is warranted. Section 5H1.10 (Race, Sex, National
Origin, Creed, Religion, Socio-Economic Status), the third sentence of §5H1.4,
and the last sentence of §5K2.12, list a few factors that the court cannot
take into account as grounds for departure. With those specific exceptions,
however, the Commission does not intend to limit the kinds of factors (whether
or not mentioned anywhere else in the guidelines) that could constitute grounds
for departure in an unusual case.
The Commission has adopted this departure policy for two basic reasons. First
is the difficulty of foreseeing and capturing a single set of guidelines that
encompasses the vast range of human conduct potentially relevant to a sentencing
decision. The Commission also recognizes that in the initial set of guidelines
it need not do so. The Commission is a permanent body, empowered by law to
write and rewrite guidelines, with progressive changes, over many years. By
monitoring when courts depart from the guidelines and by analyzing their stated
reasons for doing so, the Commission, over time, will be able to create more
accurate guidelines that specify precisely where departures should and should
not be permitted.
Second, the Commission believes that despite the courts’ legal freedom
to depart from the guidelines, they will not do so very often. This is because
the guidelines, offense by offense, seek to take account of those factors that
the Commission’s sentencing data indicate make a significant difference
in sentencing at the present time. Thus, for example, where the presence of
actual physical injury currently makes an important difference in final sentences,
as in the case of robbery, assault, or arson, the guidelines specifically instruct
the judge to use this factor to augment the sentence. Where the guidelines
do not specify an augmentation or diminution, this is generally because the
sentencing data do not permit the Commission, at this time, to conclude that
the factor is empirically important in relation to the particular offense.
Of course, a factor (say physical injury) may nonetheless sometimes occur in
connection with a crime (such as fraud) where it does not often occur. If,
however, as the data indicate, such occurrences are rare, they are precisely
the type of events that the court’s departure powers were designed to
cover -- unusual cases outside the range of the more typical offenses for which
the guidelines were designed. Of course, the Commission recognizes that even
its collection and analysis of 10,000 presentence reports are an imperfect
source of data sentencing estimates. Rather than rely heavily at this time
upon impressionistic accounts, however, the Commission believes it wiser to
wait and collect additional data from our continuing monitoring process that
may demonstrate how the guidelines work in practice before further modification.
It is important to note that the guidelines refer to three different kinds
of departure. The first kind, which will most frequently be used, is in effect
an interpolation between two adjacent, numerically oriented guideline rules.
A specific offense characteristic, for example, might require an increase of
four levels for serious bodily injury but two levels for bodily injury. Rather
than requiring a court to force middle instances into either the ‘serious’ or
the ‘simple’ category, the guideline commentary suggests that the
court may interpolate and select a midpoint increase of three levels. The Commission
has decided to call such an interpolation a ‘departure’ in light
of the legal views that a guideline providing for a range of increases in offense
levels may violate the statute’s 25 percent rule (though others have
presented contrary legal arguments). Since interpolations are technically departures,
the courts will have to provide reasons for their selection, and it will be
subject to review for ‘reasonableness’ on appeal. The Commission
believes, however, that a simple reference by the court to the ‘mid-category’ nature
of the facts will typically provide sufficient reason. It does not foresee
serious practical problems arising out of the application of the appeal provisions
to this form of departure.
The second kind involves instances in which the guidelines provide specific
guidance for departure, by analogy or by other numerical or non-numerical suggestions.
For example, the commentary to §2G1.1 (Transportation for Prostitution),
recommends a downward adjustment of eight levels where commercial purpose was
not involved. The Commission intends such suggestions as policy guidance for
the courts. The Commission expects that most departures will reflect the suggestions,
and that the courts of appeals may prove more likely to find departures ‘unreasonable’ where
they fall outside suggested levels.
A third kind of departure will remain unguided. It may rest upon grounds
referred to in Chapter 5, Part H, or on grounds not mentioned in the guidelines.
While Chapter 5, Part H lists factors that the Commission believes may
constitute grounds for departure, those suggested grounds are not exhaustive.
The Commission recognizes that there may be other grounds for departure that
are not mentioned; it also believes there may be cases in which a departure
outside suggested levels is warranted. In its view, however, such cases will
be highly unusual.
(c) Plea Agreements.
Nearly ninety percent of all federal criminal cases involve guilty pleas,
and many of these cases involve some form of plea agreement. Some commentators
on early Commission guideline drafts have urged the Commission not to attempt
any major reforms of the agreement process, on the grounds that any set of
guidelines that threatens to radically change present practice also threatens
to make the federal system unmanageable. Others, starting with the same facts,
have argued that guidelines which fail to control and limit plea agreements
would leave untouched a
‘loophole’ large enough to undo the good that sentencing guidelines
may bring. Still other commentators make both sets of arguments.
The Commission has decided that these initial guidelines will not, in general,
make significant changes in current plea agreement practices. The court will
accept or reject any such agreements primarily in accordance with the rules
set forth in Fed.R.Crim.P. 11(e). The Commission will collect data on the courts’ plea
practices and will analyze this information to determine when and why the courts
accept or reject plea agreements. In light of this information and analysis,
the Commission will seek to further regulate the plea agreement process as
appropriate.
The Commission nonetheless expects the initial set of guidelines to have
a positive, rationalizing impact upon plea agreements for two reasons. First,
the guidelines create a clear, definite expectation in respect to the sentence
that a court will impose if a trial takes place. Insofar as a prosecutor and
defense attorney seek to agree about a likely sentence or range of sentences,
they will no longer work in the dark. This fact alone should help to reduce
irrationality in respect to actual sentencing outcomes. Second, the guidelines
create a norm to which judges will likely refer when they decide whether, under
Rule 11(e), to accept or to reject a plea agreement or recommendation. Since
they will have before them the norm, the relevant factors (as disclosed in
the plea agreement), and the reason for the agreement, they will find it easier
than at present to determine whether there is sufficient reason to accept a
plea agreement that departs from the norm.
(d) Probation and Split Sentences.
The statute provides that the guidelines are to ‘reflect the general
appropriateness of imposing a sentence other than imprisonment in cases in
which the defendant is a first offender who has not been convicted of a crime
of violence or an otherwise serious offense . . .’ 28 U.S.C. § 994(j).
Under present sentencing practice, courts sentence to probation an inappropriately
high percentage of offenders guilty of certain economic crimes, such as theft,
tax evasion, antitrust offenses, insider trading, fraud, and embezzlement,
that in the Commission’s view are ‘serious.’ If the guidelines
were to permit courts to impose probation instead of prison in many or all
such cases, the present sentences would continue to be ineffective.
The Commission’s solution to this problem has been to write guidelines
that classify as ‘serious’ (and therefore subject to mandatory
prison sentences) many offenses for which probation is now frequently given.
At the same time, the guidelines will permit the sentencing court to impose
short prison terms in many such cases. The Commission’s view is that
the definite prospect of prison, though the term is short, will act as a significant
deterrent to many of these crimes, particularly when compared with the status
quo where probation, not prison, is the norm.
More specifically, the guidelines work as follows in respect to a first offender.
For offense levels one through six, the sentencing court may elect to sentence
the offender to probation (with or without confinement conditions) or to a
prison term. For offense levels seven through ten, the court may substitute
probation for a prison term, but the probation must include confinement conditions
(community confinement or intermittent confinement). For offense levels eleven
and twelve, the court must impose at least one half the minimum confinement
sentence in the form of prison confinement, the remainder to be served on supervised
release with a condition of community confinement. The Commission, of course,
has not dealt with the single acts of aberrant behavior that still may justify
probation at higher offense levels through departures.
(e) Multi-Count Convictions.
The Commission, like other sentencing commissions, has found it particularly
difficult to develop rules for sentencing defendants convicted of multiple
violations of law, each of which makes up a separate count in an indictment.
The reason it is difficult is that when a defendant engages in conduct that
causes several harms, each additional harm, even if it increases the extent
to which punishment is warranted, does not necessarily warrant a proportionate
increase in punishment. A defendant who assaults others during a fight, for
example, may warrant more punishment if he injures ten people than if he injures
one, but his conduct does not necessarily warrant ten times the punishment.
If it did, many of the simplest offenses, for reasons that are often fortuitous,
would lead to life sentences of imprisonment--sentences that neither
‘just deserts’ nor ‘crime control’ theories of punishment
would find justified.
Several individual guidelines provide special instructions for increasing
punishment when the conduct that is the subject of that count involves multiple
occurrences or has caused several harms. The guidelines also provide general
rules for aggravating punishment in light of multiple harms charged separately
in separate counts. These rules may produce occasional anomalies, but normally
they will permit an appropriate degree of aggravation of punishment when multiple
offenses that are the subjects of separate counts take place.
These rules are set out in Chapter Three, Part D. They essentially provide:
(1) When the conduct involves fungible items, e.g., separate drug transactions
or thefts of money, the amounts are added and the guidelines apply to the total
amount. (2) When nonfungible harms are involved, the offense level for the
most serious count is increased (according to a somewhat diminishing scale)
to reflect the existence of other counts of conviction.
The rules have been written in order to minimize the possibility that an
arbitrary casting of a single transaction into several counts will produce
a longer sentence. In addition, the sentencing court will have adequate power
to prevent such a result through departures where necessary to produce a mitigated
sentence.
(f) Regulatory Offenses.
Regulatory statutes, though primarily civil in nature, sometimes contain
criminal provisions in respect to particularly harmful activity. Such criminal
provisions often describe not only substantive offenses, but also more technical,
administratively-related offenses such as failure to keep accurate records
or to provide requested information. These criminal statutes pose two problems.
First, which criminal regulatory provisions should the Commission initially
consider, and second, how should it treat technical or administratively-related
criminal violations?
In respect to the first problem, the Commission found that it cannot comprehensively
treat all regulatory violations in the initial set of guidelines. There are
hundreds of such provisions scattered throughout the United States Code. To
find all potential violations would involve examination of each individual
federal regulation. Because of this practical difficulty, the Commission has
sought to determine, with the assistance of the Department of Justice and several
regulatory agencies, which criminal regulatory offenses are particularly important
in light of the need for enforcement of the general regulatory scheme. The
Commission has sought to treat these offenses in these initial guidelines.
It will address the less common regulatory offenses in the future.
In respect to the second problem, the Commission has developed a system for
treating technical recordkeeping and reporting offenses, dividing them into
four categories.
First, in the simplest of cases, the offender may have failed to fill out
a form intentionally, but without knowledge or intent that substantive harm
would likely follow. He might fail, for example, to keep an accurate record
of toxic substance transport, but that failure may not lead, nor be likely
to lead, to the release or improper treatment of any toxic substance. Second,
the same failure may be accompanied by a significant likelihood that substantive
harm will occur; it may make a release of a toxic substance more likely. Third,
the same failure may have led to substantive harm. Fourth, the failure may
represent an effort to conceal a substantive harm that has occurred.
The structure of a typical guideline for a regulatory offense is as follows:
(1) The guideline provides a low base offense level (6) aimed at the first
type of recordkeeping or reporting offense. It gives the court the legal
authority to impose a punishment ranging from probation up to six months
of imprisonment.
(2) Specific offense characteristics designed to reflect substantive offenses
that do occur (in respect to some regulatory offenses), or that are likely
to occur, increase the offense level.
(3) A specific offense characteristic also provides that a recordkeeping
or reporting offense that conceals a substantive offense will be treated
like the substantive offense.
The Commission views this structure as an initial effort. It may revise its
approach in light of further experience and analysis of regulatory crimes.
(g) Sentencing Ranges.
In determining the appropriate sentencing ranges for each offense, the Commission
began by estimating the average sentences now being served within each category.
It also examined the sentence specified in congressional statutes, in the parole
guidelines, and in other relevant, analogous sources. The Commission’s
forthcoming detailed report will contain a comparison between estimates of
existing sentencing practices and sentences under the guidelines.
While the Commission has not considered itself bound by existing sentencing
practice, it has not tried to develop an entirely new system of sentencing
on the basis of theory alone. Guideline sentences in many instances will approximate
existing practice, but adherence to the guidelines will help to eliminate wide
disparity. For example, where a high percentage of persons now receive probation,
a guideline may include one or more specific offense characteristics in an
effort to distinguish those types of defendants who now receive probation from
those who receive more severe sentences. In some instances, short sentences
of incarceration for all offenders in a category have been substituted for
a current sentencing practice of very wide variability in which some defendants
receive probation while others receive several years in prison for the same
offense. Moreover, inasmuch as those who currently plead guilty often receive
lesser sentences, the guidelines also permit the court to impose lesser sentences
on those defendants who accept responsibility and those who cooperate with
the government.
The Commission has also examined its sentencing ranges in light of their
likely impact upon prison population. Specific legislation, such as the new
drug law and the career offender provisions of the sentencing law, require
the Commission to promulgate rules that will lead to substantial prison population
increases. These increases will occur irrespective of any guidelines. The guidelines
themselves, insofar as they reflect policy decisions made by the Commission
(rather than legislated mandatory minimum, or career offender, sentences),
will lead to an increase in prison population that computer models, produced
by the Commission and the Bureau of Prisons, estimate at approximately 10 percent,
over a period of ten years.
(h) The Sentencing Table.
The Commission has established a sentencing table. For technical and practical
reasons it has 43 levels. Each row in the table contains levels that overlap
with the levels in the preceding and succeeding rows. By overlapping the levels,
the table should discourage unnecessary litigation. Both prosecutor and defendant
will realize that the difference between one level and another will not necessarily
make a difference in the sentence that the judge imposes. Thus, little purpose
will be served in protracted litigation trying to determine, for example, whether
$10,000 or $11,000 was obtained as a result of a fraud. At the same time, the
rows work to increase a sentence proportionately. A change of 6 levels roughly
doubles the sentence irrespective of the level at which one starts. The Commission,
aware of the legal requirement that the maximum of any range cannot exceed
the minimum by more than the greater of 25 percent or six months, also
wishes to permit courts the greatest possible range for exercising discretion.
The table overlaps offense levels meaningfully, works proportionately, and
at the same time preserves the maximum degree of allowable discretion for the
judge within each level.
Similarly, many of the individual guidelines refer to tables that correlate
amounts of money with offense levels. These tables often have many, rather
than a few levels. Again, the reason is to minimize the likelihood of unnecessary
litigation. If a money table were to make only a few distinctions, each distinction
would become more important and litigation as to which category an offender
fell within would become more likely. Where a table has many smaller monetary
distinctions, it minimizes the likelihood of litigation, for the importance
of the precise amount of money involved is considerably less.
5. A Concluding Note
The Commission emphasizes that its approach in this initial set of guidelines
is one of caution. It has examined the many hundreds of criminal statutes in
the United States Code. It has begun with those that are the basis for a significant
number of prosecutions. It has sought to place them in a rational order. It
has developed additional distinctions relevant to the application of these
provisions, and it has applied sentencing ranges to each resulting category.
In doing so, it has relied upon estimates of existing sentencing practices
as revealed by its own statistical analyses, based on summary reports of some
40,000 convictions, a sample of 10,000 augmented presentence reports, the parole
guidelines and policy judgments.
The Commission recognizes that some will criticize this approach as overly
cautious, as representing too little a departure from existing practice. Yet,
it will cure wide disparity. The Commission is a permanent body that can amend
the guidelines each year. Although the data available to it, like all data,
are imperfect, experience with these guidelines will lead to additional information
and provide a firm empirical basis for revision.
Finally, the guidelines will apply to approximately 90 percent of all cases
in the federal courts. Because of time constraints and the nonexistence of
statistical information, some offenses that occur infrequently are not considered
in this initial set of guidelines. They will, however, be addressed in the
near future. Their exclusion from this initial submission does not reflect
any judgment about their seriousness. The Commission has also deferred promulgation
of guidelines pertaining to fines, probation and other sanctions for organizational
defendants, with the exception of antitrust violations. The Commission also
expects to address this area in the near future.".
Amendments
1989 Amendments
Amendment 67 amended Subpart 4(b) in the first sentence of the first paragraph
by striking "...that was" and inserting "of a kind, or to a degree,"; in
the second sentence of the last paragraph by striking "Part H" and inserting "Part
K (Departures)"; and in the third sentence of the last paragraph by striking "Part
H" and inserting "Part K".
Amendment 68 amended Subpart 4(b) in the first sentence of the fourth paragraph
by striking "three" and inserting "two"; in the fourth paragraph by striking
the second through eighth sentences as follows:
"The first kind, which will most frequently be used, is in effect
an interpolation between two adjacent, numerically oriented guideline rules.
A specific offense characteristic, for example, might require an increase
of four levels for serious bodily injury but two levels for bodily injury.
Rather than requiring a court to force middle instances into either the
‘serious’ or the ‘simple’ category, the guideline
commentary suggests that the court may interpolate and select a midpoint
increase of three levels. The Commission has decided to call such an interpolation
a ‘departure’ in light of the legal views that a guideline providing
for a range of increases in offense levels may violate the statute’s
25 percent rule (though other have presented contrary legal arguments). Since
interpolations are technically departures, the courts will have to provide
reasons for their selection, and it will be subject to review for
‘reasonableness’ on appeal. The Commission believes, however,
that a simple reference by the court to the ‘mid-category’ nature
of the facts will typically provide sufficient reason. It does not foresee
serious practical problems arising out of the application of the appeal provisions
to this form of departure.";
in the first sentence of the fifth paragraph by striking "second"
and inserting "first"; and in the first sentence of the sixth paragraph by
striking "third" and inserting "second".
1990 Amendment
Amendment 307 amended Subparts 2 through 5 to read as follows:
"2. The Statutory Mission
The Sentencing Reform Act of 1984 (Title II of the Comprehensive Crime
Control Act of 1984) provides for the development of guidelines that will
further the basic purposes of criminal punishment: deterrence, incapacitation,
just punishment, and rehabilitation. The Act delegates broad authority to
the Commission to review and rationalize the federal sentencing process.
The Act contains detailed instructions as to how this determination should
be made, the most important of which directs the Commission to create categories
of offense behavior and offender characteristics. An offense behavior category
might consist, for example, of ‘bank robbery/committed with a gun/$2500
taken.’ An offender characteristic category might be ‘offender
with one prior conviction not resulting in imprisonment.’ The Commission
is required to prescribe guideline ranges that specify an appropriate sentence
for each class of convicted persons determined by coordinating the offense
behavior categories with the offender characteristic categories. Where the
guidelines call for imprisonment, the range must be narrow: the maximum of
the range cannot exceed the minimum by more than the greater of 25 percent
or six months. 28 U.S.C. § 994(b)(2).
Pursuant to the Act, the sentencing court must select a sentence from within
the guideline range. If, however, a particular case presents atypical features,
the Act allows the court to depart from the guidelines and sentence outside
the prescribed range. In that case, the court must specify reasons for departure.
18 U.S.C. § 3553(b). If the court sentences within the guideline
range, an appellate court may review the sentence to determine whether the
guidelines were correctly applied. If the court departs from the guideline
range, an appellate court may review the reasonableness of the departure.
18 U.S.C. § 3742. The Act also abolishes parole, and substantially
reduces and restructures good behavior adjustments.
The Commission’s initial guidelines were submitted to Congress on
April 13, 1987. After the prescribed period of Congressional review, the
guidelines took effect on November 1, 1987, and apply to all offenses committed
on or after that date. The Commission has the authority to submit guideline
amendments each year to Congress between the beginning of a regular Congressional
session and May 1. Such amendments automatically take effect 180 days
after submission unless a law is enacted to the contrary. 28 U.S.C. § 994(p).
The initial sentencing guidelines and policy statements were developed
after extensive hearings, deliberation, and consideration of substantial
public comment. The Commission emphasizes, however, that it views the guideline-writing
process as evolutionary. It expects, and the governing statute anticipates,
that continuing research, experience, and analysis will result in modifications
and revisions to the guidelines through submission of amendments to Congress.
To this end, the Commission is established as a permanent agency to monitor
sentencing practices in the federal courts.
3.The Basic Approach (Policy Statement)
To understand the guidelines and their underlying rationale, it is important
to focus on the three objectives that Congress sought to achieve in enacting
the Sentencing Reform Act of 1984. The Act’s basic objective was to
enhance the ability of the criminal justice system to combat crime through
an effective, fair sentencing system. To achieve this end, Congress first
sought honesty in sentencing. It sought to avoid the confusion and implicit
deception that arose out of the pre-guidelines sentencing system which required
the court to impose an indeterminate sentence of imprisonment and empowered
the parole commission to determine how much of the sentence an offender actually
would serve in prison. This practice usually resulted in a substantial reduction
in the effective length of the sentence imposed, with defendants often serving
only about one-third of the sentence imposed by the court.
Second, Congress sought reasonable uniformity in sentencing by narrowing
the wide disparity in sentences imposed for similar criminal offenses committed
by similar offenders. Third, Congress sought proportionality in sentencing
through a system that imposes appropriately different sentences for criminal
conduct of differing severity.
Honesty is easy to achieve: the abolition of parole makes the sentence
imposed by the court the sentence the offender will serve, less approximately
fifteen percent for good behavior. There is a tension, however, between the
mandate of uniformity and the mandate of proportionality. Simple uniformity
-- sentencing every offender to five years -- destroys proportionality.
Having only a few simple categories of crimes would make the guidelines
uniform and easy to administer, but might lump together offenses that are
different in important respects. For example, a single category for robbery
that included armed and unarmed robberies, robberies with and without injuries,
robberies of a few dollars and robberies of millions, would be far too broad.
A sentencing system tailored to fit every conceivable wrinkle of each case
would quickly become unworkable and seriously compromise the certainty of
punishment and its deterrent effect. For example: a bank robber with (or
without) a gun, which the robber kept hidden (or brandished), might have
frightened (or merely warned), injured seriously (or less seriously), tied
up (or simply pushed) a guard, teller, or customer, at night (or at noon),
in an effort to obtain money for other crimes (or for other purposes), in
the company of a few (or many) other robbers, for the first (or fourth) time.
The list of potentially relevant features of criminal behavior is long;
the fact that they can occur in multiple combinations means that the list
of possible permutations of factors is virtually endless. The appropriate
relationships among these different factors are exceedingly difficult to
establish, for they are often context specific. Sentencing courts do not
treat the occurrence of a simple bruise identically in all cases, irrespective
of whether that bruise occurred in the context of a bank robbery or in the
context of a breach of peace. This is so, in part, because the risk that
such a harm will occur differs depending on the underlying offense with which
it is connected; and also because, in part, the relationship between punishment
and multiple harms is not simply additive. The relation varies depending
on how much other harm has occurred. Thus, it would not be proper to assign
points for each kind of harm and simply add them up, irrespective of context
and total amounts.
The larger the number of subcategories of offense and offender characteristics
included in the guidelines, the greater the complexity and the less workable
the system. Moreover, complex combinations of offense and offender characteristics
would apply and interact in unforeseen ways to unforeseen situations, thus
failing to cure the unfairness of a simple, broad category system. Finally,
and perhaps most importantly, probation officers and courts, in applying
a complex system having numerous subcategories, would be required to make
a host of decisions regarding whether the underlying facts were sufficient
to bring the case within a particular subcategory. The greater the number
of decisions required and the greater their complexity, the greater the risk
that different courts would apply the guidelines differently to situations
that, in fact, are similar, thereby reintroducing the very disparity that
the guidelines were designed to reduce.
In view of the arguments, it would have been tempting to retreat to the
simple, broad category approach and to grant courts the discretion to select
the proper point along a broad sentencing range. Granting such broad discretion,
however, would have risked correspondingly broad disparity in sentencing,
for different courts may exercise their discretionary powers in different
ways. Such an approach would have risked a return to the wide disparity that
Congress established the Commission to reduce and would have been contrary
to the Commission’s mandate set forth in the Sentencing Reform Act
of 1984.
In the end, there was no completely satisfying solution to this problem.
The Commission had to balance the comparative virtues and vices of broad,
simple categorization and detailed, complex subcategorization, and within
the constraints established by that balance, minimize the discretionary powers
of the sentencing court. Any system will, to a degree, enjoy the benefits
and suffer from the drawbacks of each approach.
A philosophical problem arose when the Commission attempted to reconcile
the differing perceptions of the purposes of criminal punishment. Most observers
of the criminal law agree that the ultimate aim of the law itself, and of
punishment in particular, is the control of crime. Beyond this point, however,
the consensus seems to break down. Some argue that appropriate punishment
should be defined primarily on the basis of the principle of ‘just
deserts.’ Under this principle, punishment should be scaled to the
offender’s culpability and the resulting harms. Others argue that punishment
should be imposed primarily on the basis of practical ‘crime control’ considerations.
This theory calls for sentences that most effectively lessen the likelihood
of future crime, either by deterring others or incapacitating the defendant.
Adherents of each of these points of view urged the Commission to choose
between them and accord one primacy over the other. As a practical matter,
however, this choice was unnecessary because in most sentencing decisions
the application of either philosophy will produce the same or similar results.
In its initial set of guidelines, the Commission sought to solve both the
practical and philosophical problems of developing a coherent sentencing
system by taking an empirical approach that used as a starting point data
estimating pre-guidelines sentencing practice. It analyzed data drawn from
10,000 presentence investigations, the differing elements of various crimes
as distinguished in substantive criminal statutes, the United States Parole
Commission’s guidelines and statistics, and data from other relevant
sources in order to determine which distinctions were important in pre-guidelines
practice. After consideration, the Commission accepted, modified, or rationalized
these distinctions.
This empirical approach helped the Commission resolve its practical problem
by defining a list of relevant distinctions that, although of considerable
length, was short enough to create a manageable set of guidelines. Existing
categories are relatively broad and omit distinctions that some may believe
important, yet they include most of the major distinctions that statutes
and data suggest made a significant difference in sentencing decisions. Relevant
distinctions not reflected in the guidelines probably will occur rarely and
sentencing courts may take such unusual cases into account by departing from
the guidelines.
The Commission’s empirical approach also helped resolve its philosophical
dilemma. Those who adhere to a just deserts philosophy may concede that the
lack of consensus might make it difficult to say exactly what punishment
is deserved for a particular crime. Likewise, those who subscribe to a philosophy
of crime control may acknowledge that the lack of sufficient data might make
it difficult to determine exactly the punishment that will best prevent that
crime. Both groups might therefore recognize the wisdom of looking to those
distinctions that judges and legislators have, in fact, made over the course
of time. These established distinctions are ones that the community believes,
or has found over time, to be important from either a just deserts or crime
control perspective.
The Commission did not simply copy estimates of pre-guidelines practice
as revealed by the data, even though establishing offense values on this
basis would help eliminate disparity because the data represent averages.
Rather, it departed from the data at different points for various important
reasons. Congressional statutes, for example, suggested or required departure,
as in the case of the Anti-Drug Abuse Act of 1986 that imposed increased
and mandatory minimum sentences. In addition, the data revealed inconsistencies
in treatment, such as punishing economic crime less severely than other apparently
equivalent behavior.
Despite these policy-oriented departures from pre-guidelines practice,
the guidelines represent an approach that begins with, and builds upon, empirical
data. The guidelines will not please those who wish the Commission to adopt
a single philosophical theory and then work deductively to establish a simple
and perfect set of categorizations and distinctions. The guidelines may prove
acceptable, however, to those who seek more modest, incremental improvements
in the status quo, who believe the best is often the enemy of the good, and
who recognize that these guidelines are, as the Act contemplates, but the
first step in an evolutionary process. After spending considerable time and
resources exploring alternative approaches, the Commission developed these
guidelines as a practical effort toward the achievement of a more honest,
uniform, equitable, proportional, and therefore effective sentencing system.
4. The Guidelines’ Resolution of Major Issues (Policy Statement)
The guideline-drafting process required the Commission to resolve a host
of important policy questions typically involving rather evenly balanced
sets of competing considerations. As an aid to understanding the guidelines,
this introduction briefly discusses several of those issues; commentary in
the guidelines explains others.
(a) Real Offense vs. Charge Offense Sentencing.
One of the most important questions for the Commission to decide was whether
to base sentences upon the actual conduct in which the defendant engaged
regardless of the charges for which he was indicted or convicted (‘real
offense’ sentencing), or upon the conduct that constitutes the elements
of the offense for which the defendant was charged and of which he was convicted
(‘charge offense’ sentencing). A bank robber, for example, might
have used a gun, frightened bystanders, taken $50,000, injured a teller,
refused to stop when ordered, and raced away damaging property during his
escape. A pure real offense system would sentence on the basis of all identifiable
conduct. A pure charge offense system would overlook some of the harms that
did not constitute statutory elements of the offenses of which the defendant
was convicted.
The Commission initially sought to develop a pure real offense system.
After all, the pre-guidelines sentencing system was, in a sense, this type
of system. The sentencing court and the parole commission took account of
the conduct in which the defendant actually engaged, as determined in a presentence
report, at the sentencing hearing, or before a parole commission hearing
officer. The Commission’s initial efforts in this direction, carried
out in the spring and early summer of 1986, proved unproductive, mostly for
practical reasons. To make such a system work, even to formalize and rationalize
the status quo, would have required the Commission to decide precisely which
harms to take into account, how to add them up, and what kinds of procedures
the courts should use to determine the presence or absence of disputed factual
elements. The Commission found no practical way to combine and account for
the large number of diverse harms arising in different circumstances; nor
did it find a practical way to reconcile the need for a fair adjudicatory
procedure with the need for a speedy sentencing process given the potential
existence of hosts of adjudicated ‘real harm’ facts in many typical
cases. The effort proposed as a solution to these problems required the use
of, for example, quadratic roots and other mathematical operations that the
Commission considered too complex to be workable. In the Commission’s
view, such a system risked return to wide disparity in sentencing practice.
In its initial set of guidelines submitted to Congress in April 1987, the
Commission moved closer to a charge offense system. This system, however,
does contain a significant number of real offense elements. For one thing,
the hundreds of overlapping and duplicative statutory provisions that make
up the federal criminal law forced the Commission to write guidelines that
are descriptive of generic conduct rather than guidelines that track purely
statutory language. For another, the guidelines take account of a number
of important, commonly occurring real offense elements such as role in the
offense, the presence of a gun, or the amount of money actually taken, through
alternative base offense levels, specific offense characteristics, cross
references, and adjustments.
The Commission recognized that a charge offense system has drawbacks of
its own. One of the most important is the potential it affords prosecutors
to influence sentences by increasing or decreasing the number of counts in
an indictment. Of course, the defendant’s actual conduct (that which
the prosecutor can prove in court) imposes a natural limit upon the prosecutor’s
ability to increase a defendant’s sentence. Moreover, the Commission
has written its rules for the treatment of multicount convictions with an
eye toward eliminating unfair treatment that might flow from count manipulation.
For example, the guidelines treat a three-count indictment, each count of
which charges sale of 100 grams of heroin or theft of $10,000, the same
as a single-count indictment charging sale of 300 grams of heroin or
theft of $30,000. Furthermore, a sentencing court may control any inappropriate
manipulation of the indictment through use of its departure power. Finally,
the Commission will closely monitor charging and plea agreement practices
and will make appropriate adjustments should they become necessary.
(b) Departures.
The sentencing statute permits a court to depart from a guideline-specified
sentence only when it finds ‘an aggravating or mitigating circumstance
of a kind, or to a degree, not adequately taken into consideration by the
Sentencing Commission in formulating the guidelines that should result in
a sentence different from that described.’ 18 U.S.C. § 3553(b).
The Commission intends the sentencing courts to treat each guideline as carving
out a ‘heartland,’ a set of typical cases embodying the conduct
that each guideline describes. When a court finds an atypical case, one to
which a particular guideline linguistically applies but where conduct significantly
differs from the norm, the court may consider whether a departure is warranted.
Section 5H1.10 (Race, Sex, National Origin, Creed, Religion, and Socio-Economic
Status), the third sentence of §5H1.4 (Physical Condition, Including
Drug or Alcohol Dependence or Abuse), and the last sentence of §5K2.12
(Coercion and Duress) list several factors that the court cannot take into
account as grounds for departure. With those specific exceptions, however,
the Commission does not intend to limit the kinds of factors, whether or
not mentioned anywhere else in the guidelines, that could constitute grounds
for departure in an unusual case.
The Commission has adopted this departure policy for two reasons. First,
it is difficult to prescribe a single set of guidelines that encompasses
the vast range of human conduct potentially relevant to a sentencing decision.
The Commission also recognizes that the initial set of guidelines need not
do so. The Commission is a permanent body, empowered by law to write and
rewrite guidelines, with progressive changes, over many years. By monitoring
when courts depart from the guidelines and by analyzing their stated reasons
for doing so and court decisions with references thereto, the Commission,
over time, will be able to refine the guidelines to specify more precisely
when departures should and should not be permitted.
Second, the Commission believes that despite the courts’ legal freedom
to depart from the guidelines, they will not do so very often. This is because
the guidelines, offense by offense, seek to take account of those factors
that the Commission’s data indicate made a significant difference in
pre-guidelines sentencing practice. Thus, for example, where the presence
of physical injury made an important difference in pre-guidelines sentencing
practice (as in the case of robbery or assault), the guidelines specifically
include this factor to enhance the sentence. Where the guidelines do not
specify an augmentation or diminution, this is generally because the sentencing
data did not permit the Commission to conclude that the factor was empirically
important in relation to the particular offense. Of course, an important
factor (e.g., physical injury) may infrequently occur in connection
with a particular crime (e.g., fraud). Such rare occurrences are precisely
the type of events that the courts’ departure powers were designed
to cover -- unusual cases outside the range of the more typical offenses
for which the guidelines were designed.
It is important to note that the guidelines refer to two different kinds
of departure. The first involves instances in which the guidelines provide
specific guidance for departure by analogy or by other numerical or non-numerical
suggestions. For example, the Commentary to §2G1.1 (Transportation for
the Purpose of Prostitution or Prohibited Sexual Conduct) recommends a downward
departure of eight levels where a commercial purpose was not involved. The
Commission intends such suggestions as policy guidance for the courts. The
Commission expects that most departures will reflect the suggestions and
that the courts of appeals may prove more likely to find departures ‘unreasonable’
where they fall outside suggested levels.
A second type of departure will remain unguided. It may rest upon grounds
referred to in Chapter Five, Part K (Departures) or on grounds not mentioned
in the guidelines. While Chapter Five, Part K lists factors that the
Commission believes may constitute grounds for departure, the list is not
exhaustive. The Commission recognizes that there may be other grounds for
departure that are not mentioned; it also believes there may be cases in
which a departure outside suggested levels is warranted. In its view, however,
such cases will be highly infrequent.
(c) Plea Agreements.
Nearly ninety percent of all federal criminal cases involve guilty pleas
and many of these cases involve some form of plea agreement. Some commentators
on early Commission guideline drafts urged the Commission not to attempt
any major reforms of the plea agreement process on the grounds that any set
of guidelines that threatened to change pre-guidelines practice radically
also threatened to make the federal system unmanageable. Others argued that
guidelines that failed to control and limit plea agreements would leave untouched
a
‘loophole’ large enough to undo the good that sentencing guidelines
would bring.
The Commission decided not to make major changes in plea agreement practices
in the initial guidelines, but rather to provide guidance by issuing general
policy statements concerning the acceptance of plea agreements in Chapter
Six, Part B (Plea Agreements). The rules set forth in Fed. R. Crim. P. 11(e)
govern the acceptance or rejection of such agreements. The Commission will
collect data on the courts’ plea practices and will analyze this information
to determine when and why the courts accept or reject plea agreements and
whether plea agreement practices are undermining the intent of the Sentencing
Reform Act. In light of this information and analysis, the Commission will
seek to further regulate the plea agreement process as appropriate. Importantly,
if the policy statements relating to plea agreements are followed, circumvention
of the Sentencing Reform Act and the guidelines should not occur.
The Commission expects the guidelines to have a positive, rationalizing
impact upon plea agreements for two reasons. First, the guidelines create
a clear, definite expectation in respect to the sentence that a court will
impose if a trial takes place. In the event a prosecutor and defense attorney
explore the possibility of a negotiated plea, they will no longer work in
the dark. This fact alone should help to reduce irrationality in respect
to actual sentencing outcomes. Second, the guidelines create a norm to which
courts will likely refer when they decide whether, under Rule 11(e), to accept
or to reject a plea agreement or recommendation.
(d) Probation and Split Sentences.
The statute provides that the guidelines are to ‘reflect the general
appropriateness of imposing a sentence other than imprisonment in cases in
which the defendant is a first offender who has not been convicted of a crime
of violence or an otherwise serious offense . . . .’ 28 U.S.C. § 994(j).
Under pre-guidelines sentencing practice, courts sentenced to probation an
inappropriately high percentage of offenders guilty of certain economic crimes,
such as theft, tax evasion, antitrust offenses, insider trading, fraud, and
embezzlement, that in the Commission’s view are ‘serious.’
The Commission’s solution to this problem has been to write guidelines
that classify as serious many offenses for which probation previously was
frequently given and provide for at least a short period of imprisonment
in such cases. The Commission concluded that the definite prospect of prison,
even though the term may be short, will serve as a significant deterrent,
particularly when compared with pre-guidelines practice where probation,
not prison, was the norm.
More specifically, the guidelines work as follows in respect to a first
offender. For offense levels one through six, the sentencing court may elect
to sentence the offender to probation (with or without confinement conditions)
or to a prison term. For offense levels seven through ten, the court may
substitute probation for a prison term, but the probation must include confinement
conditions (community confinement, intermittent confinement, or home detention).
For offense levels eleven and twelve, the court must impose at least one-half
the minimum confinement sentence in the form of prison confinement, the remainder
to be served on supervised release with a condition of community confinement
or home detention. The Commission, of course, has not dealt with the single
acts of aberrant behavior that still may justify probation at higher offense
levels through departures.
(e)Multi-Count Convictions.
The Commission, like several state sentencing commissions, has found it
particularly difficult to develop guidelines for sentencing defendants convicted
of multiple violations of law, each of which makes up a separate count in
an indictment. The difficulty is that when a defendant engages in conduct
that causes several harms, each additional harm, even if it increases the
extent to which punishment is warranted, does not necessarily warrant a proportionate
increase in punishment. A defendant who assaults others during a fight, for
example, may warrant more punishment if he injures ten people than if he
injures one, but his conduct does not necessarily warrant ten times the punishment.
If it did, many of the simplest offenses, for reasons that are often fortuitous,
would lead to sentences of life imprisonment -- sentences that neither just
deserts nor crime control theories of punishment would justify.
Several individual guidelines provide special instructions for increasing
punishment when the conduct that is the subject of that count involves multiple
occurrences or has caused several harms. The guidelines also provide general
rules for aggravating punishment in light of multiple harms charged separately
in separate counts. These rules may produce occasional anomalies, but normally
they will permit an appropriate degree of aggravation of punishment for multiple
offenses that are the subjects of separate counts.
These rules are set out in Chapter Three, Part D (Multiple Counts). They
essentially provide: (1) when the conduct involves fungible items (e.g.,
separate drug transactions or thefts of money), the amounts are added and
the guidelines apply to the total amount; (2) when nonfungible harms are
involved, the offense level for the most serious count is increased (according
to a diminishing scale) to reflect the existence of other counts of conviction.
The guidelines have been written in order to minimize the possibility that
an arbitrary casting of a single transaction into several counts will produce
a longer sentence. In addition, the sentencing court will have adequate power
to prevent such a result through departures.
(f) Regulatory Offenses.
Regulatory statutes, though primarily civil in nature, sometimes contain
criminal provisions in respect to particularly harmful activity. Such criminal
provisions often describe not only substantive offenses, but also more technical,
administratively-related offenses such as failure to keep accurate records
or to provide requested information. These statutes pose two problems: first,
which criminal regulatory provisions should the Commission initially consider,
and second, how should it treat technical or administratively-related criminal
violations?
In respect to the first problem, the Commission found that it could not
comprehensively treat all regulatory violations in the initial set of guidelines.
There are hundreds of such provisions scattered throughout the United States
Code. To find all potential violations would involve examination of each
individual federal regulation. Because of this practical difficulty, the
Commission sought to determine, with the assistance of the Department of
Justice and several regulatory agencies, which criminal regulatory offenses
were particularly important in light of the need for enforcement of the general
regulatory scheme. The Commission addressed these offenses in the initial
guidelines.
In respect to the second problem, the Commission has developed a system
for treating technical recordkeeping and reporting offenses that divides
them into four categories. First, in the simplest of cases, the offender
may have failed to fill out a form intentionally, but without knowledge or
intent that substantive harm would likely follow. He might fail, for example,
to keep an accurate record of toxic substance transport, but that failure
may not lead, nor be likely to lead, to the release or improper handling
of any toxic substance. Second, the same failure may be accompanied by a
significant likelihood that substantive harm will occur; it may make a release
of a toxic substance more likely. Third, the same failure may have led to
substantive harm. Fourth, the failure may represent an effort to conceal
a substantive harm that has occurred.
The structure of a typical guideline for a regulatory offense provides
a low base offense level (e.g., 6) aimed at the first type of recordkeeping
or reporting offense. Specific offense characteristics designed to reflect
substantive harms that do occur in respect to some regulatory offenses, or
that are likely to occur, increase the offense level. A specific offense
characteristic also provides that a recordkeeping or reporting offense that
conceals a substantive offense will have the same offense level as the substantive
offense.
(g) Sentencing Ranges.
In determining the appropriate sentencing ranges for each offense, the
Commission estimated the average sentences served within each category under
the pre-guidelines sentencing system. It also examined the sentences specified
in federal statutes, in the parole guidelines, and in other relevant, analogous
sources. The Commission’s Supplementary Report on the Initial Sentencing
Guidelines (1987) contains a comparison between estimates of pre-guidelines
sentencing practice and sentences under the guidelines.
While the Commission has not considered itself bound by pre-guidelines
sentencing practice, it has not attempted to develop an entirely new system
of sentencing on the basis of theory alone. Guideline sentences, in many
instances, will approximate average pre-guidelines practice and adherence
to the guidelines will help to eliminate wide disparity. For example, where
a high percentage of persons received probation under pre-guidelines practice,
a guideline may include one or more specific offense characteristics in an
effort to distinguish those types of defendants who received probation from
those who received more severe sentences. In some instances, short sentences
of incarceration for all offenders in a category have been substituted for
a pre-guidelines sentencing practice of very wide variability in which some
defendants received probation while others received several years in prison
for the same offense. Moreover, inasmuch as those who pleaded guilty under
pre-guidelines practice often received lesser sentences, the guidelines permit
the court to impose lesser sentences on those defendants who accept responsibility
for their misconduct. For defendants who provide substantial assistance to
the government in the investigation or prosecution of others, a downward
departure may be warranted.
The Commission has also examined its sentencing ranges in light of their
likely impact upon prison population. Specific legislation, such as the Anti-Drug
Abuse Act of 1986 and the career offender provisions of the Sentencing Reform
Act of 1984 (28 U.S.C. § 994(h)), required the Commission
to promulgate guidelines that will lead to substantial prison population
increases. These increases will occur irrespective of the guidelines. The
guidelines themselves, insofar as they reflect policy decisions made by the
Commission (rather than legislated mandatory minimum or career offender sentences),
are projected to lead to an increase in prison population that computer models,
produced by the Commission and the Bureau of Prisons in 1987, estimated at
approximately 10 percent over a period of ten years.
(h) The Sentencing Table.
The Commission has established a sentencing table that for technical and
practical reasons contains 43 levels. Each level in the table prescribes
ranges that overlap with the ranges in the preceding and succeeding levels.
By overlapping the ranges, the table should discourage unnecessary litigation.
Both prosecution and defense will realize that the difference between one
level and another will not necessarily make a difference in the sentence
that the court imposes. Thus, little purpose will be served in protracted
litigation trying to determine, for example, whether $10,000 or $11,000 was
obtained as a result of a fraud. At the same time, the levels work to increase
a sentence proportionately. A change of six levels roughly doubles the sentence
irrespective of the level at which one starts. The guidelines, in keeping
with the statutory requirement that the maximum of any range cannot exceed
the minimum by more than the greater of 25 percent or six months (28
U.S.C. § 994(b)(2)), permit courts to exercise the greatest permissible
range of sentencing discretion. The table overlaps offense levels meaningfully,
works proportionately, and at the same time preserves the maximum degree
of allowable discretion for the court within each level.
Similarly, many of the individual guidelines refer to tables that correlate
amounts of money with offense levels. These tables often have many rather
than a few levels. Again, the reason is to minimize the likelihood of unnecessary
litigation. If a money table were to make only a few distinctions, each distinction
would become more important and litigation over which category an offender
fell within would become more likely. Where a table has many small monetary
distinctions, it minimizes the likelihood of litigation because the precise
amount of money involved is of considerably less importance.
5. A Concluding Note
The Commission emphasizes that it drafted the initial guidelines with considerable
caution. It examined the many hundreds of criminal statutes in the United
States Code. It began with those that were the basis for a significant number
of prosecutions and sought to place them in a rational order. It developed
additional distinctions relevant to the application of these provisions and
it applied sentencing ranges to each resulting category. In doing so, it
relied upon pre-guidelines sentencing practice as revealed by its own statistical
analyses based on summary reports of some 40,000 convictions, a sample of
10,000 augmented presentence reports, the parole guidelines, and policy judgments.
The Commission recognizes that some will criticize this approach as overly
cautious, as representing too little a departure from pre-guidelines sentencing
practice. Yet, it will cure wide disparity. The Commission is a permanent
body that can amend the guidelines each year. Although the data available
to it, like all data, are imperfect, experience with the guidelines will
lead to additional information and provide a firm empirical basis for consideration
of revisions.
Finally, the guidelines will apply to more than 90 percent of all felony
and Class A misdemeanor cases in the federal courts. Because of time constraints
and the nonexistence of statistical information, some offenses that occur
infrequently are not considered in the guidelines. Their exclusion does not
reflect any judgment regarding their seriousness and they will be addressed
as the Commission refines the guidelines over time.".
1992 Amendment
Amendment 466 amended Subpart 4(b) in the first paragraph by inserting "§5H1.12
(Lack of Guidance as a Youth and Similar Circumstances)" after "§5H1.10
(Race, Sex, National Origin, Creed, Religion, and Socio-Economic Status)".
1995 Amendment
Amendment 534 amended Subpart 4(d) in the second sentence of the third paragraph
by striking "six" and inserting "eight"; and in the third sentence of the
third paragraph by striking "seven through" and inserting "nine and".
1996 Amendment
Amendment 538 amended Subpart 4(b) in the fourth paragraph by striking the
third sentence as follows:
"For example, the Commentary to §2G1.1 (Transportation for the Purpose
of Prostitution or Prohibited Sexual Conduct) recommends a downward departure
of eight levels where a commercial purpose was not involved.".
2000 Amendments
Amendment 602 amended Subpart 4(b) in the fifth sentence of the first paragraph
by striking "and" before "the last"; and by inserting ", and §5K2.19
(Post-Sentencing Rehabilitative Efforts)" after "(Coercion and Duress)".
Amendment 603 amended Subpart 4(d) by adding an asterisk at the end of the
last paragraph after the period; and by adding at the end the following footnote:
"*Note: Although the Commission had not addressed ‘single acts of
aberrant behavior’ at the time the Introduction to the Guidelines
Manual originally was written, it subsequently addressed the issue in
Amendment 603, effective November 1, 2000. (See Supplement to Appendix
C, Amendment 603.)".