The Post-Booker Sentencing Framework

Federal sentencing was transformed on January 12, 2005, when the Supreme Court decided United States v. Booker, 543 U.S. 220 (2005). In a fractured set of opinions, the Court held that the mandatory Federal Sentencing Guidelines violated the Sixth Amendment right to a jury trial — because they permitted judges to find facts that increased a defendant’s sentence based on a preponderance standard rather than proof beyond a reasonable doubt. The remedy: the Guidelines became advisory, not mandatory.

The practical effect was to restore a measure of discretion to the district courts that Congress had removed with the Sentencing Reform Act of 1984. But the post-Booker world is not a return to the unstructured sentencing of the pre-Guidelines era. The Guidelines remain the starting point and the “initial benchmark” for every federal sentence. Gall v. United States, 552 U.S. 38 (2007).

The Section 3553(a) Factors

Congress has directed courts to consider seven categories of factors in imposing sentence: (1) the nature and circumstances of the offense and the history and characteristics of the defendant; (2) the need for the sentence to reflect the seriousness of the offense, promote respect for the law, provide just punishment, afford adequate deterrence, protect the public, and provide the defendant with needed training or treatment; (3) the kinds of sentences available; (4) the Guidelines range and pertinent policy statements; (5) the need to avoid unwarranted sentencing disparities; (6) the need to provide restitution to victims; and (7) the guidelines and policy statements of the Sentencing Commission. 18 U.S.C. § 3553(a).

A district court commits procedural error if it fails to calculate the Guidelines range, treats the Guidelines as mandatory, fails to consider the § 3553(a) factors, relies on clearly erroneous facts, or fails to adequately explain the chosen sentence. Gall, 552 U.S. at 51.

Departures and Variances: A Critical Distinction

A departure is a sentence outside the Guidelines range based on a specific Guideline provision that authorizes departure — for example, substantial assistance under § 5K1.1, or circumstances not adequately considered by the Commission under § 5K2.0. A variance is a sentence outside the Guidelines range based on the district court’s consideration of the § 3553(a) factors independent of the Guidelines’ departure provisions. After Booker, a court may vary from the Guidelines based on a policy disagreement with the relevant Guideline — for example, a disagreement with the crack-to-powder cocaine disparity. Kimbrough v. United States, 552 U.S. 85 (2007); Spears v. United States, 555 U.S. 261 (2009).

Acquitted Conduct at Sentencing

One of the most contested issues in contemporary federal sentencing is the use of acquitted conduct to enhance a sentence. Under the Guidelines, a judge may find by a preponderance of the evidence that the defendant committed conduct for which a jury acquitted him — and use that conduct to increase the Guidelines range. The Supreme Court has repeatedly declined to review this practice, though multiple Justices have signaled discomfort. See Jones v. United States, 574 U.S. 948 (2014) (Scalia, J., joined by Thomas and Ginsburg, JJ., dissenting from denial of certiorari). The use of acquitted conduct remains a live issue and a recurring ground for appellate challenge.

Appellate Review of Sentences

Sentences are reviewed for reasonableness under an abuse-of-discretion standard. Gall, 552 U.S. at 51. A sentence within the Guidelines range may be presumed reasonable on appellate review, but the presumption is not mandatory. Rita v. United States, 551 U.S. 338 (2007). The appellate standard is deferential — a district court’s decision to vary from the Guidelines is entitled to significant weight, and the court of appeals may not reverse simply because it would have imposed a different sentence. But a sentence that represents a clear error of judgment will be vacated as substantively unreasonable.