United States Federal Sentencing Guidelines

In drafting the first set of guidelines, the Commission used 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 sources in order to determine which distinctions were important in pre-guidelines practice.

Future modifications often reflected Congressional mandates, as in the case of the Anti-Drug Abuse Act of 1986 that imposed increased and mandatory minimum sentences.

Among other changes, the original amendment would have eliminated all unenumerated downward departures and all downward departures for family ties, diminished capacity, aberrant behavior, educational or vocational skills, mental or emotional conditions, employment record, good works, or overstated criminal history.

Defense lawyers, law professors, current and former Sentencing Commissioners, the President of the American Bar Association, Chief Justice William Rehnquist, and others wrote to Congress opposing the amendment.

It also instructed the Sentencing Commission to authorize four-level "fast-track" downward departures in illegal-reentry immigration cases upon motion of the prosecutor.

The frequency in which sentences are imposed that exceed the range stated in the Guidelines has doubled in the years since the Booker decision.

This reflects a policy that defendants who previously received the benefit of a rehabilitative sentence and then commit further crimes should not be treated with further leniency.

However, the decrease will not apply if the defendant demonstrates behavior, such as continued criminal activity, that is inconsistent with acceptance of responsibility.

Departures are allowed in cases involving substantial assistance to authorities in the investigation or prosecution of another person who has committed an offense.

The court is not required to grant the reduction, and may decline to do so if it deems the information provided by the defendant to be untruthful, incomplete, unreliable, insignificant, not useful, or untimely.

The sentencing judge must give consideration to matters that would normally distinguish among levels of homicide, such as the defendant's state of mind and the degree of planning or preparation.

For example, a substantial increase may be appropriate if the death was intended or knowingly risked or if the underlying offense was one for which base offense levels do not reflect an allowance for the risk of personal injury, such as fraud.If significant physical injury resulted, the court may increase the sentence above the authorized guideline range.

The discharge of a firearm might warrant a substantial sentence increase.If the defendant's conduct resulted in a significant disruption of a governmental function, the court may increase the sentence above the authorized guideline range to reflect the nature and extent of the disruption and the importance of the governmental function affected.

Victim misconduct ordinarily would not be sufficient to warrant application of this provision in the context of offenses under Chapter Two, Part A, Subpart 3 (Criminal Sexual Abuse).

There may, however, be unusual circumstances in which substantial victim misconduct would warrant a reduced penalty in the case of a non-violent offense.

In such instances, a reduced sentence may be appropriate, provided that the circumstances significantly diminish society's interest in punishing the conduct, for example, in the case of a mercy killing.

For example, providing defense secrets to a hostile power should receive no lesser punishment simply because the defendant believed that the government's policies were misdirected.

In other instances, conduct may not cause or threaten the harm or evil sought to be prevented by the law proscribing the offense at issue.

For example, where a war veteran possessed a machine gun or grenade as a trophy, or a school teacher possessed controlled substances for display in a drug education program, a reduced sentence might be warranted.If the defendant committed the offense because of serious coercion, blackmail or duress, under circumstances not amounting to a complete defense, the court may depart downward.

Notwithstanding this policy statement, personal financial difficulties and economic pressures upon a trade or business do not warrant a downward departure.A downward departure may be warranted if (1) the defendant committed the offense while suffering from a significantly reduced mental capacity; and (2) the significantly reduced mental capacity contributed substantially to the commission of the offense.

For example, a downward departure under this section might be considered where a defendant, motivated by remorse, discloses an offense that otherwise would have remained undiscovered.

The purpose of this departure provision is to enhance the sentences of defendants who participate in groups, clubs, organizations, or associations that use violence to further their ends.

§ 716, an upward departure may be warranted.Among the controversial aspects of the Sentencing Guidelines have been the 100:1 disparity between treatment of crack and cocaine (which has been amended to 18:1 by the Fair Sentencing Act of 2010) and the immigration guidelines which call for hefty enhancements for illegal re-entrants with prior felony records, despite the prior offenses already being taken into account via the Criminal History Category.

The prosecutor's power to extract guilty pleas, previously held in check by judges, is now counterbalanced only by the diligence of the defense attorney.

"[23] William J. Stuntz claims that "when necessary, the litigants simply bargain about what facts will (and won't) form the basis for sentencing.

In short, plea bargains outside the law's shadow depend on prosecutors' ability to make credible threats of severe post-trial sentences.

The intersection of the Offense Level and Criminal History Category displays the Guideline Range in months of imprisonment.

For example, the guideline range applicable to a defendant with an Offense Level of 15 and a Criminal History Category of III is 24–30 months of imprisonment.

§ 2332b(g)(5)(B), the commission of which resulted in, or created a foreseeable risk of, death or serious bodily injury to another person; or a sex offense.