We have written before about federal sentencing issues. A recent US Supreme Court decision again focuses our attention on this important topic and, specifically, the central role that the advisory guidelines play in the federal sentencing process, and how sentencing mistakes can – and should – be corrected.
By way of background, sentencing in federal cases is governed largely by the the advisory sentencing guidelines promulgated by the United States Sentencing Commission. The concept underlying the advisory guidelines is relatively simple. They are designed to promote uniformity in sentencing. Thus, if two defendants with roughly similar backgrounds are convicted of the same offense and appear for sentencing before two different judges in two different jurisdictions, the advisory guidelines help ensure that the defendants will receive roughly the same sentence. In this respect, the guidelines restrict the discretion of the sentencing judge.
The central role of the advisory guidelines in federal sentencing cannot be overstated. As a general matter, current law does not require judges to impose the sentence that the guidelines contemplate for a particular offense, which is why defense attorneys (and some of the more intellectually honest US Attorneys) refer to them as “advisory”. There is a list of factors in the federal sentencing statute that district court judges are supposed to consider when fashioning a sentence in a particular case, and the guidelines is one of the items on that list. However, unless there is a good reason to “depart” or “vary” from a guidelines sentence, most judges will typically sentence a defendant within the guidelines range for the offense at issue. This is because a “within range” sentence is presumed reasonable, so the likelihood of reversal for a sentencing error is reduced. (In the simplest sense, “departures” and “variances” are reasons to sentence a defendant to something less that what the guidelines call for. They are not easily obtained, and are not available in every case.) Continue reading