Federal Sentencing

BRIEF OVERVIEW OF FEDERAL SENTENCING

The section below details the history of the Sentencing Reform Act of 1984. As an historical prospective, it is left untouched from what was originally written. However, on January 11, 2005, the United States Supreme Court ruled in what has become known as the "Booker/Fanfan " decision that the sentencing guidelines were no longer mandatory but simply advisory in nature. Please see the link below for a more detail look at this decision. The decision was rendered in two parts. First, in a 5-4 decision (written by Justice Stevens for Scalia, Souter, Thomas and Ginsburg), it was determined that the current administration of the Guidelines violated the defendant's Sixth Amendment Rights. Specifically, the Court found that, pursuant to 18 U.S.C. 3553(b), the Guidelines were mandatory and created a statutory maximum pursuant to Apprendi v New Jersey , 530 U.S. 466 (2000). Applying this reasoning, the Court ruled that any fact (other than a prior conviction) which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to jury beyond a reasonable doubt. Since, it was ruled, that judges were finding those facts contrary to the law, the guidelines were ruled unconstitutional. 1 The second part of the Booker/Fanfan decision held that the Guidelines are advisory and sentences are reviewable for unreasonableness. The Court excised 18 U.S.C. 3553(b)(1) and 18 U.S.C. 3742(e) from the Sentencing Reform Act and declares the Guidelines are now advisory. District judges now need only to consider the guideline range, pursuant to 18 U.S.C. 3553(a), as one of the many factors, including the need for the sentence to provide just punishment for the offense (18 U.S.C. 3553(a)(2)(A)), to afford adequate deterrence to criminal conduct (18 U.S.C. 3553(a)(2)(B)), to protect the public from further crimes of the defendant (18 U.S.C. 3553(a)(2)(C)). The Sentencing Reform Act, minus the mandate of 18 U.S.C. 3553(b)(1), authorizes judges to apply his or her own perceptions of just punishment, deterrence and protection of the public even when those differ from the perceptions of the U.S. Sentencing Commission. However, the Sentencing Reform Act continues to provide for appeals from sentencing decisions (irrespective of whether the trial judge sentences within or outside the Guideline range) based on an Unreasonableness standard. 2 Whether this change in the law will result in disparity in sentencing, which as can seen below, was a major reason the Guidelines were fashioned begin with, remains to be seen. For additional information on the Booker/Fanfan decision, please see the following documents:
Post Booker (pdf)
Federal Sentencing After Booker (pdf)
The foundation of federal sentencing today was laid by the Sentencing Reform Act of 1984, which became law as Title II of the Comprehensive Crime Control Act of 1984. The latter altered the federal sentencing regime in the following major ways:
  1. It replaced the system of indeterminate sentencing with that of determinate sentencing.
  2. It established the U.S. Sentencing Commission, an independent agency within the Federal Judiciary, to promulgate sentencing guidelines which Federal judges would be obligated to follow unless a mitigating or aggravating circumstance was of such a kind or existed to such a degree as to justify a sentence outside the guideline range.
  3. Probation became a sentence in its own right, parole was abolished, and a new form of post-conviction supervision, supervised release, was established. 3
  4. Prison good time provisions were amended to 54 days per year after completion of the first year of imprisonment, meaning that an inmate would normally serve between 80% and 90% of the original term of imprisonment imposed, depending on the length of said term.
The provisions of the Sentencing Reform Act of 1984 have been incorporated into various sections of Titles 18 and 28 of the U.S. Criminal Code. 18 U.S.C. ' 3553(a) details the various factors the Court is to consider in imposing sentence, including the purposes of sentencing which were expressed as follows:
  1. to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense;
  2. to afford adequate deterrence to criminal conduct;
  3. to protect the public from further crimes of the defendant; and
  4. to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner; ...4
The U.S. Sentencing Commission promulgated its initial set of guidelines5 effective November 1, 1987. They apply to all cases where the offense was committed on or after said date. The Commission has since expanded or amended the guidelines in response to new legislation, particular directives from Congress, case law rulings (or to resolve circuit conflicts), or out of a perceived need to modify or clarify existing guidelines. The current Federal Sentencing Commission Guidelines Manual , the November 1, 2004 edition incorporating amendments effective November 1, 2004, is available at Sentencing Manual and Amendments. The Manual contains the following chapters: Introduction and General Application Principles (particularly useful in understanding the Congressional mandate to develop guidelines and the approach adopted by the Sentencing Commission in creating the guidelines and resolving major sentencing issues); Offense Conduct; Adjustments; Criminal History and Criminal Livelihood; Determining the Sentence; Sentencing Procedures and Plea Agreements; Violations of Probation and Supervised Release; and, Sentencing of Organizations. For nearly every federal criminal conviction, a presentence investigation is conducted and a report is prepared by the U.S. Probation Office for the Court.6 The primary purpose of the presentence investigation report is to assist the Court in imposing a just sentence under Federal law and the Sentencing Guidelines.7 The contents of the presentence investigation report and the sentencing process are governed by F.R.Cr.P. 32 and L.R.Cr.P. 32.1. The final report consists of the presentence investigation report itself, an addendum, and a recommendation. The presentence investigation report contains identifying data as well as separate sections on the Offense (including sentencing guideline calculations), Criminal History, Offender Characteristics, Sentencing Options, and Factors that May Warrant a Departure. The addendum addresses any objections raised either by the defendant through his or her counsel or the Government to the initial presentence investigative report and notes any other modifications made to the initial presentence investigation report made by the probation officer. The recommendation, confidential between the probation officer and the Court, contains a grid of the statutory and guideline provisions applicable in the case, a rationale for the specific recommendation made by the probation officer, and a text the Court may choose to use when imposing sentence. In the District of Rhode Island, sentencing is normally set for 13 weeks after conviction. The probation officer is expected to disclose the initial presentence investigation report to counsel (defense and government) five weeks before sentencing. Counsel have two weeks from the initial disclosure to file objections in writing with the probation officer. The probation officer has two weeks to investigate the objections filed by counsel, prepare an addendum which addresses each of counsel's objections, designating them either as resolved or unresolved, and modifying the presentence investigation report consistent with same. The probation officer then discloses the revised presentence investigation report and addendum to counsel. The original presentence investigation and addendum, along with our recommendation for sentencing, is then submitted to the Court one week prior to sentencing. At the sentencing hearing, the Court inquires of the defendant if he or she has had an opportunity to review the presentence investigation report and hears the defense and government out on any objections they have to the report. After hearing arguments, and, in some cases, testimony, the Court rules on the objections raised and makes findings of fact and guideline applications to arrive at a guideline range. The Court then hears arguments on any motions for departures for the guideline range and rules on same. Thereafter, the Court formally imposes sentence, following which the Court advises the defendant of his or her limited right to appeal the sentencing to the First Circuit Court of Appeals. When a defendant is ordered to serve a term of imprisonment to commence immediately, the U.S. Marshal takes custody of the defendant and houses him or her locally until a designation of institution for service of sentence is made by the Bureau of Prisons. In some cases, a defendant may be ordered to self-surrender to the institution designated by the Bureau of Prisons on a date specific, in which case the defendant usually remains free on the same conditions of release until he or she surrenders to the institution. In either circumstance, the Probation Office provides the Bureau of Prisons with a copy of the presentence investigation report to assist them in their designation/classification process. When a defendant is placed on probation, he or she meets immediately with a representative of the Probation Office to commence the term of supervision.

NOTES

1. From the Attorney General's memo to federal prosecutors on the effects of Booker/Fanfan 2. Ibid 3. Supervised release is distinguished from parole in that it is imposed at the time of sentence, the Court (rather than the U.S. Parole Commission) has jurisdiction of the case, and the term of supervised release is much like a suspended sentence which, upon revocation, could result in an additional term of imprisonment without credit for time having been spent on supervision. 4. Found at 18 U.S.C. 3553(a)(2). 5. The Court may waive the presentence investigation report only when it finds that there is sufficient information in the record for it to exercise its sentencing authority meaningfully under 18 U.S.C. 3553 and it explains this finding on the record. ( See F.R.Cr.P. 32(b)(1).) It is noted that guidelines do not exist for Class B or C misdemeanors and infractions and, therefore, the Court is free to impose any sentence available up to the maximum provided by law. 6. The three other purposes of the presentence investigation report are: 1.) to assist the Federal Bureau of Prisons in classifying the defendant, designating an appropriate institution, and developing a correctional plan while incarcerated; 2.) to assist the U.S. probation officer in developing his/her plan of supervision of the defendant; and, 3.) to be part of a sentencing database for research purposes of the U.S. Sentencing Commission. 7. Under L.Cr.R.P. 32.1(i), any such motion must be filed by a party to the case no later than four days prior to the scheduled sentencing date.