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November 1, 2010

The new guidelines are here, new guidelines are here!

Among other exciting developments this November is the official effective date for both the newly amended sentencing guidelines put forth by the US Sentencing Commission back in May (discussed here) and the supplemental guidelines amendments implementing the Fair Sentencing Act's changes to crack sentencing (discussed here).  The USSC's website has all the now effective guidelines linked here and here.

This new Denver Post article, which is headlined "Federal sentencing guidelines change today for some drug crimes," takes local stock of the changes prompted by the FSA that become effective today:

New federal sentencing guidelines go into effect today, raising or reducing the time that drug offenders spend in prison depending on the quantity of drugs involved or the role the defendant played in the crime....

In Colorado, U.S. Attorney John Walsh says his prosecutors are still evaluating the new guidelines but that he doesn't expect to see notable changes in sentencing in drug cases. "The impact this will have on our cases as a group is less than it would be in those jurisdictions where they are bringing smaller crack cases," Walsh said. "Our focus has always been on major drug trafficking. While they have an impact, we don't think they are going to have a dramatic impact."...

Raymond Moore, Colorado's federal public defender, called the guideline changes a "political compromise" that doesn't go far enough to achieve fairness in sentencing.  "The effect of those additions may well offset the meager gains for the crack defendants and will undoubtedly increase the guideline range for a variety of noncrack defendants," he said.  "I am not Nostradamus, but my guess is that all the telling of the reduction in the guideline range will be more illusory than real and for some it will go up."

Some related posts on both sets of new guidelines:

UPDATE:  I am pleased to see that Jeralyn over at TalkLeft has this new post which spotlights one of the other big changes in the new, now-effective sentencing guidelines:

[T]here is one change that applies to all defendants that may be helpful. For the first time, those at Level 13 with a Category 1 criminal history (no more than 1 point), with a guideline range of 12-18 months, don't have to get a prison sentence.  That's because the Commission moved Level 13 from Zone D, where it's been since 1987 or whenever the zones were established, to Zone C.  All Zone D sentences must be to prison. In Zone C, alternative sentences are possible.

November 1, 2010 at 08:50 AM | Permalink


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It's hard to get worked up about new Guidelines when district courts may apply them or not, courtesy of Booker. This is a little like saying, "You could do what you want before, and -- here's the news -- you can still do what you want. Oh, and yes, we have some new suggestions you can also disregard."

Posted by: Bill Otis | Nov 1, 2010 1:43:48 PM

I wonder if Bill ever tries to get a grounding in reality before he spouts off these comments. Take a look at the data, figures C through H of the FY final quarterly updates. Sentencing lengths, even after Booker, are directly tied (almost mirror images) of the Guideline lengths. The guideline ranges, even after Booker, are driving sentences. Bill's post ignores this reality.

And let's look specifically at 2D1.1 (the subject of this post). In FY 09, there were 24,071 such cases. Of those, 20,144 were within GL or a GL-only departures; 3,927 involved some type of Booker variance (I've included in that total "variances" coupled with a GL departure and, just to be generous, non-GL sentences that were described as "other"). Accordingly, in about 6 of 7 drug cases, Booker has had no impact.

If one's observations are based in reality, then it is very easy to "get worked up" about guideline changes.

Posted by: DEJ | Nov 1, 2010 3:09:22 PM

DEJ --

1. I'm glad to know that Booker really said after all that judges are required to follow the guidelines. I had a different impression.

You follow this blog. Doug has put up one post after the next -- probably dozens at this point -- discussing cases where district courts granted sentences wildly outside the guidelines, specifically citing their Booker discretion. Did you miss that?

2. Your myopia serves you well. A very small majority of sentences (56%) are within the guidelines. It has slipped a bit each year after Booker, as you know. At the present rate of decline, within-range sentences will be a minority in three years.

3. The title of this post is, "The New Guidelines Are Here, The Guidelines Are Here!" That's GuidelineS, plural. If you prefer to carve out a sliver and represent that as the full picture, go ahead. But don't try to push aside everything but the sliver and then congratulate yourself for "observations [that] are based in reality."

If you want to get excited about the new set of Federal Sentencing Suggestions, feel free. But your feelings won't make 56% be something other than 56%.

Posted by: Bill Otis | Nov 1, 2010 5:22:41 PM

Personally, I just like the Professor's reference to Steve Martin's classic movie, The Jerk.

Posted by: Anon | Nov 2, 2010 9:52:18 AM

1. Where in my comment (or ever) have I said that "judges are required to follow the guidelines." I can cite a number of straw-man arguments you make, this one being the latest example.

Of course district court judges can and do impose variances after Booker. The reality of the situation, however, is that it is still the guidelines that are the most significant driver of sentences imposed. Your comments tend to ignore that reality, and that's my only point. Take a look at the Figures I pointed out and you'll see that GL ranges and sentences imposed have tracked each other like mirror images.

2. Your comment discusses how "courtesy of Booker" judges don't have to follow the guidelines. It is not my "myopia" to say that sentences imposed based on Guideline departures -- especially government sponsored ones -- were not "courtesy of Booker"; that's just reality, which is something, I regret to say, you ignore when it doesn't support your opinion. On the stats I quoted, Booker is responsible for 0% of non-GL departure-sentences. If you’re upset about departures, then your problem is not with Booker.

3. Re-look at the substance of this post and you will see that what is being discussed (or, in your words, getting worked up about) is the new drug GL and the amount of time "drug offenders spend in prison." 2D1.1 is not a "sliver" of drug offenses. It's just about all of them.

Finally, I'm not getting "excited" about anything. My only point is that the Guidelines -- including in drug cases -- are still HIGHLY relevant, and it’s important (not exciting) when changes are made. Your continuous suggestion that Booker made this not so is not based in reality.

Posted by: DEJ | Nov 2, 2010 11:53:23 AM

DEJ gets the better of Bill O. on this one - by a longshot.

Posted by: watcher | Nov 2, 2010 4:09:29 PM

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