Sentencing Law and Policy

Feds praised Caroline Ellison's cooperation while refusing to sugegst any specific sentence when federal guidelines recommend LWOP

In this recent post, I flagged the upcoming sentencing of Caroline Ellison as an interesting high-profile case in which the federal sentencing guidelines call for an LWOP sentence, but the presentencing report recommended only "time served with three years of supervised release."   Yesterday the feds weighed in without a specific sentencing recommendation, but signaling her cooperation called for quite a sentencing reward.  This New York Times piece provides these details:

Caroline Ellison, a close colleague of the disgraced cryptocurrency mogul Sam Bankman-Fried, provided “extraordinary cooperation” to the government, federal prosecutors said on Tuesday, signaling that she should receive a lenient sentence for her role in the sweeping fraud that led to the collapse of the FTX crypto exchange.

Ms. Ellison, 29, who was also Mr. Bankman-Fried’s on-and-off girlfriend, pleaded guilty to fraud shortly after FTX collapsed in November 2022, alongside two other members of his inner circle. In a court filing this month, Ms. Ellison’s defense lawyers asked the judge overseeing the case, Lewis A. Kaplan, to sentence her to three years of supervised release, with no prison time.

In the government’s filing on Tuesday, prosecutors did not recommend a specific sentence to the judge but pointed out that her cooperation was “not only substantial, but exemplary.” Ms. Ellison was the star witness at Mr. Bankman-Fried’s trial last fall in federal court, where she spent nearly three days on the stand.  She described an incriminating spreadsheet that Mr. Bankman-Fried had used to mislead business partners and recounted the final days of FTX, holding back tears as she delivered some of the trial’s most emotional testimony.

Mr. Bankman-Fried was convicted of a sophisticated fraud that siphoned $8 billion from customer accounts to finance venture investments, political donations and other spending. He was sentenced to 25 years in prison in March.  Judge Kaplan is set to decide Ms. Ellison’s sentence in federal court in Manhattan on Sept. 24.

“In her many meetings with the government, Ellison approached her cooperation with remarkable candor, remorse and seriousness,” the prosecutors wrote in their 14-page memo to Judge Kaplan.  “And she persevered despite harsh media and public scrutiny and Bankman-Fried’s efforts to publicly weaponize her personal writings to discredit and intimidate her.”...

In their sentencing memo, Ms. Ellison’s lawyers detailed the often-stormy romantic relationship between their client and Mr. Bankman-Fried.  For years, they wrote, Ms. Ellison was effectively in his thrall, living in a social “bubble” centered on Mr. Bankman-Fried. At his suggestion, Ms. Ellison started taking Adderall so that she could work longer hours, the memo said. Mr. Bankman-Fried initially “suggested their liaison would develop into a full relationship,” the lawyers wrote.  “But after a few weeks, he would ‘ghost’ Caroline without explanation.”...

Since pleading guilty, Ms. Ellison has struggled to find paying work, according to her lawyers’ memo. She was turned down for a job with a charity that promoted math education for young women.  At one point, she secured a position helping low-income families prepare tax returns; a couple of weeks later, she was asked to leave after the employer realized who she was, according to a letter from her aunt that was filed with the sentencing memo.

Ms. Ellison has volunteered for more than 700 hours with community organizations, teaching adult literacy classes and fostering rescue dogs, the memo said.  She is working with her parents, who both teach at the Massachusetts Institute of Technology, on a math enrichment textbook for advanced high school students, and has written a novella set in Edwardian England.

A few prior related posts:

• Lawyers for Sam Bankman-Fried in lengthy memo request "a sentence that returns Sam promptly to a productive role in society"
• Feds argue in sentencing memo that "legitimate purposes of punishment require a sentence of 40 to 50 years’ imprisonment" for Sam Bankman-Fried
• Sam Bankman-Fried sentenced to 25 years in federal prison for his FTX frauds
• For executive connected to FTX collapse (and Sam Bankman-Fried's girlfriend), federal guidelines call for LWOP, but probation office recommends time served

US Sentencing Commission releases some more updated "Quick Facts" publications

Regular readers are now used to my praise for the US Sentencing Commission for continuing to release new sets of its terrific "Quick Facts" publications.  But ir remains the case that I cannot praise the USSC enough for producing these convenient and informative short data documents, which are designed to "give readers basic facts about a single area of federal crime in an easy-to-read, two-page format."  IHere are the newest sets of postings by the USSC on the "Quick Facts" page from last week:

Offender Groups

• NEW Federally Sentenced Women (September 2024)

Sex Offenses

• NEW Child Pornography (September 2024)

Other Offenses

• NEW Robbery (September 2024)
• NEW National Defense (September 2024)

"Plea Agreements and Suspending Disbelief"

The title of this post is the title of this new essay authored by Sam Merchant and available via SSRN. Here is its abstract:

This Essay explores the traditional view that judges exercise broad discretion at sentencing after Booker.  Around 98% of cases are resolved through guilty pleas, and at least 71% of those cases involve binding or nonbinding plea agreements, many of which stipulate to an exact sentence, guideline, or range. Parties sometimes collaborate to ensure that sentences fit within confabulated guideline ranges, and when a sentence falls within a guideline range, the U.S. Sentencing Commission never systematically collects data on the judge's reasons for the sentence.  The absence of meaningful data on judges' reasons for two-thirds of federal sentences prevents thorough analysis of whether those sentences fulfill the intended purposes of punishment.

This Essay contributes new data on plea agreements for sentences within guideline ranges and suggests that parties drive more of federal sentencing than previously acknowledged.  Judges' apparent complicity, particularly post-Booker, gives those sentences the cathartic gloss of Article III, maintaining a peculiar but potentially necessary framework of fictions in federal sentencing.

For executive connected to FTX collapse (and Sam Bankman-Fried's girlfriend), federal guidelines call for LWOP, but probation office recommends time served

If anyone wants a good example of the federal sentencing guidelines not doing an effective job of guiding a federal sentencing judge, consider the specifics of the upcoming high-profile sentencing of Caroline Ellison.  This CNBC story about a sentencing filing provides some of the background, as well as helpful links to some key court documents:

Lawyers for Caroline Ellison, the star witness in the prosecution of FTX founder Sam Bankman-Fried, are recommending no prison time for their client’s role in the implosion of the crypto empire that was run by her former boss and ex-boyfriend.

In a court filing Tuesday night, the attorneys said that, at most, Ellison should be sentenced to time served and supervised release because of her swift return to the U.S. from FTX’s Bahamas headquarters in 2022 and her choice to voluntarily cooperate with the U.S. attorney’s office and financial regulators in helping them understand what went wrong at FTX and sister hedge fund Alameda Research. 

Judge Lewis Kaplan, who presided over Bankman-Fried’s case, cited Ellison’s testimony when he decided in March to sentence the FTX founder to 25 years behind bars.  Ellison, who ran Alameda Research, agreed to a plea deal in December 2022, a month after FTX spiraled into bankruptcy. Unlike Bankman-Fried, who was convicted of all seven criminal fraud charges against him, Ellison pleaded guilty to conspiracy and financial fraud charges, rather than go to trial.

The Tuesday filing also refers to the recommendation of the court’s Probation Department that Ellison be given a sentence of “time served with three years of supervised release” as a credit to her “extraordinary cooperation with the government” and “her otherwise unblemished record.”  Lawyers added that the department’s presentence report, which referenced numerous character testimonials speaking to Ellison’s ethics and integrity, also recommended that she not be fined.  “Caroline poses no risk of recidivism and presents no threat to public safety,” the filing says. “It would therefore promote respect for the law to grant leniency in recognition of Caroline’s early disclosure of the crimes, her unmitigated acceptance of responsibility for them, and — most importantly — her extensive cooperation with the government.”

In the filing, FTX CEO John Ray, who has been guiding the crypto firm through bankruptcy proceedings, describes Ellison’s cooperation as “valuable” in helping his team protect and preserve “hundreds of millions of dollars” in assets.  He added that she has worked with his advisors to provide information regarding private keys to cryptocurrency wallets that contain “estate assets, DeFi positions, FTX exchange internal account information, the use of third-party exchanges for pre-petition trading, and pre-petition auditing practices.”

The 67-page document describe large swaths of Ellison’s life, starting from her earliest days in Boston and stretching into her protracted and troubled romance with Bankman-Fried. In that time, she “moved around the globe at his direction, first to Hong Kong and later the Bahamas,” and “worked long, stressful, Adderall-fueled hours,” the filing says.  Bankman-Fried forced Ellison into a sort-of isolation, culminating in her moral compass being “warped,” the lawyers say. At his direction, Ellison helped “steal billions,” all while living “in dread, knowing that a disastrous collapse was likely, but fearing that disentangling herself would only hasten that collapse.”

“Bankman-Fried convinced her to stay, telling her she was essential to the survival of the business, and that he loved her,” all “while also perversely demonstrating that he considered her not good enough to be seen in public with him at high-profile events,” the filing says.

Though I have only had a chance to briefly scan Ellison's sentencing memorandum, I noticed it included no objection to the calculated guideline range, which produced "the Guidelines sentence of life imprisonment, reduced to the statutory maximum of 1,320 months" (110 years).  As guideline mavens know, the massive "loss" in this case drove Ellison’s guideline calculation to produce a recommended LWOP sentence; as federal sentencing mavens know, pleading guilty and providing "extraordinary cooperation with the government" is one critical way a defendant can seek to get a judge to ignore the guidelines at sentencing.

It will be interesting to see if the feds ask for any prison time here, but I am quite sure they will not be urging Judge Kaplan to follow the guidelines.  After all, the feds urged a sentence well below LWOP even for Sam Bankman-Fried even though his guideline calculation was literally "off the grid" and had the highest calculated offense level I had ever seen.  White-collar prosecutors and defense attorneys have long known, of course, that guideline calculations in high-dollar, white-collar cases often amount to a kind of Kabuki theater amounting to little of real substance.  That reality is surely on display, yet again, in the FTX sentencings.

Some prior related posts about SBF's sentencing

• You be the judge: what federal sentence for Sam Bankman-Fried after guilty verdict on seven criminal fraud counts? 
• Should a bounce in crypto markets mean a much lower federal sentence for Sam Bankman-Fried? 
• Lawyers for Sam Bankman-Fried in lengthy memo request "a sentence that returns Sam promptly to a productive role in society"
• Feds argue in sentencing memo that "legitimate purposes of punishment require a sentence of 40 to 50 years’ imprisonment" for Sam Bankman-Fried
• Sam Bankman-Fried sentenced to 25 years in federal prison for his FTX frauds

US Sentencing Commission releases FY 2024 third quarter sentencing data

The US Sentencing Commission last week released on its website its latest quarterly data report, this one labelled "3rd Quarter Release, Preliminary Fiscal Year 2024 Data Through June 30, 2024."  These new data with the latest accounting of federal sentencing trends helps to further define the new normal in federal sentencing patterns.  As I have noted before, and as reflected in Figure 2, the quarters just prior to the COVID pandemic averaged roughly 20,000 federal sentencings per quarter; the "new normal" over the past year is roughly 15,000 and 16,000 total federal cases sentenced each quarter (and Figure 2 shows that declines in immigration sentencings accounts for the decrease in overall cases sentenced).

As I have also noted before, the other big COVID-era trend of historically large numbers of below-guideline variances has persisted for years now (as detailed in Figures 3 and 4). I continue to suspect this trend is mostly a facet of the different caseload and case mixes.  Interestingly, in the most recent two quarters, the official data show a small but notable uptick in the percentage of all federal sentences that are imposed "Within Guideline Range."  But it remains the case that a majority of federal sentences are being imposed outside the guideline range (for a wide array of reasons) than are being imposed inside the calculated range.

As I have also flagged before, the modern USSC's data on drug sentencing reflected in Figures 11 and 12 remains fascinating. These figures show, for the last three quarters, that over 46% of all federal drug sentencings involved methamphetamine and the average sentence for all those meth cases is well over eight years in prison.  Also notable is how few marijuana (2.7%) and crack cocaine (4.0%) cases are being sentenced in federal courts.  

As always, there are more big and small stories to mine from the latest USSC data.  But the relative consistency of the system, even with lots of notable recent reforms by the Commission and talk of more, is my consistent take away from these valuable data runs. 

US Sentencing Commission releases more updated "Quick Facts" publications on more economic offenses

The US Sentencing Commission is continuing to release new sets of its "Quick Facts" publications with updates drawing on the USSC's full fiscal year 2023 data. I have flagged these new updated Quick Facts in recent posts  here and here, and the USSC just this week released these additional "Quick Facts"  on additional economic offenses:

• NEW Tax Fraud (August 2024)
• NEW Health Care Fraud (August 2024)
• NEW Government Benefits Fraud (August 2024)
• NEW Credit Card and Other Financial Instrument Fraud (August 2024)

Ninth Circuit panel continues using Kisor deference analysis for guideline commentary after Loper Bright

The Ninth Circuit handed down a notable little opinion late last week in US v. Trumbull, No. 23-912 (9th Cir. Aug. 22, 2024) (available here), discussing whether the federal sentencing guidelines' commentary regarding the "definition of 'large capacity magazine' Warrants Deference under Kisor." Hard-core sentencing fans should know what is meant by guidelines' commentary, and hard-core administative law fans should know what is meant by Kisor deference. The panel majority concludes its analysis this way:

Application Note 2’s interpretation of “large capacity magazine” in § 2K2.1 meets the extensive requirements for deference laid out in Kisor. Therefore, the district court did not err in applying § 2K2.1(a)(4)(B), as interpreted by Application Note 2, to Trumbull’s base offense level when calculating his Guidelines range.

Judge Bea concurred in the result, but he wrote at length to explain why he thought Kisor deference was not justified in this context. In so doing, Judge Bea suggested that the Supreme Court's recent Loper Bright ruling was relevant to the analysis:

The majority’s expansion of Kisor deference is particularly troubling considering the Supreme Court’s recent decision in Loper Bright.  Although I acknowledge that Loper Bright did not expressly overrule Kisor, the majority is mistaken to brush Loper Bright aside and treat it as irrelevant to the interpretation of regulatory language. Maj. Op. at 7 n.2. The Court in Loper Bright made clear that courts cannot merely “throw up their hands,” as the majority does today, when a term is difficult to apply.  See Loper Bright, 144 S. Ct. at 2266. Indeed, Loper Bright questioned whether ambiguity can even serve as a valid benchmark when it comes to a court’s interpretive role.

I have noted in a number of prior posts (some linked below) that there is on-going dispute in the circuit as to whether Kisor applied to the guidelines commentary, and I am not surprised to see Loper Bright adding a nuance to these matters of uncertainty.

A few prior related posts:

• Kisor role: how often is deference to the federal sentencing guidelines' commentary litigated?
• Sixth Circuit panel debates agency deference for guideline commentary defining images for child porn sentencing
• How Kisor rolls: Third Circuit rejects guideline commentary in child porn sentencing 
• Hoping admin law gurus will help us all understand what Loper Bright might mean for federal sentencing law 

Lots of notable front page sentencing issues in next week's sentencing of Backpage

I have not closely followed the legal sagas that have surrounded the website Backpage, which was the huge classified advertising website shut down and seized by federal law enforcement in April 2018.  But next week the Backpage saga has a federal sentencing stage, and this Law360 piece provides a flavor for just some of the issues raised:

Prosecutors asked an Arizona federal judge Monday to sentence two former executives of the defunct classifieds service Backpage.com and the site's co-founder to 20 years in prison after they were found guilty of several counts over an alleged $500 million prostitution scheme.

In a sentencing memorandum, prosecutors said the crimes former executives Scott Spear and John Brunst and Backpage co-founder Michael Lacey were convicted of caused extraordinary harm and amounted to "one of the internet's largest and longest-running criminal empires."

Prosecutors say the website facilitated prostitution through ads. Spear and Brunst were convicted of multiple counts after a 28-day trial in November while two other executives were acquitted. Lacey was found guilty of one count of money laundering; the jury was deadlocked on dozens of other charges against him. The mixed verdict ended a sprawling case that saw its first trial end in a mistrial in 2021....

In April, U.S. District Judge Diane J. Humetewa rejected some of the jury's findings, tossing nearly three dozen transactional money laundering charges, as well as Travel Act charges against Lacey, but kept the rest of the verdict intact. Sentencing is scheduled for Aug. 27 and 28. Prosecutors said Monday they were "unaware of any mitigating circumstances" for the purposes of sentencing. Spear, Brunst and Lacey showed no remorse following their convictions, prosecutors said.... The prosecutors argued that victim impact statements submitted to the court don't fully encapsulate the harm Backpage inflicted, saying some trafficking victims were killed by perpetrators who found them on the site.

Lacey, Spear and Brunst all requested probation in their own sentencing memorandums filed Monday, arguing that they never intentionally broke the law. Lacey claimed that his only felony conviction was for a "financial crime that he purportedly committed upon the idea and advice of two credentialed lawyers, wherein all reporting rules were followed."....

Spear similarly said in his memorandum that his actions were in line with a law-abiding life.... Brunst said he was never employed by Backpage, but rather worked for Village Voice Media Holdings starting in 1992 and later at Medalist Holdings, a successor entity after VVMH sold its newspapers.

Over at Reason, the arguments surrounding one defendant get extra attention in a piece here headlined "Feds Seek 20-Year Sentence for Backpage Co-Founder Michael Lacey; It's an insane ask for someone convicted of just one nonviolent offense." Here is an excerpt:

Lacey was charged — along with other former Backpage executives — of using Backpage to knowingly facilitate prostitution, in violation of the U.S. Travel Act.  Two of the defendants were acquitted of all such offenses and two of the defendants were found guilty of some of them. But the jury could not reach a conclusion when it came to Lacey. U.S. District Judge Diane Humetewa found there was insufficient evidence to sustain most of the remaining 84 counts against him.

Now, prosecutors want the judge to simply act, for sentencing purposes, as if those charges are all true. Federal prosecutors are also putting Lacey on trial for these charges again — which means that if he is eventually convicted, he could wind up being sentenced twice for the same conduct.

This case and these defendants have many more notable elements, and I found reviewing some of the sentencing memoranda fascinating — eg, the government's memo reports that the PSR recommended 1080 months (90 years) for Spear, who is 73 years old.  Here, thanks to Law360, are the sentencing submissions:

•  US Memo
•  Spear Memo
•  Lacey Memo
•  Brunst Memo

You be the federal judge: what sentence for former US Rep George Santos after his plea to fraud and identity theft?

The remearkable saga of former US Congressman George Santos closed one chapter in the same manner as many federal criminal prosecutions, namely with a guilty plea to a few of many charged counts.  But what sentence should shape the next chapter of the Santos saga?  This press release from the U.S. Attorney's Office in the Eastern District of New York, headed "Former Congressman George Santos Pleads Guilty to Wire Fraud and Aggravated Identity Theft," provides all sorts of details about Santos's misdeeds and starts with these basics:

Santos Admits He Filed Fraudulent FEC Reports, Embezzled Funds from Campaign Donors, Charged Credit Cards Without Authorization, Stole Identities, Obtained Unemployment Benefits Through Fraud, and Lied in Report to the House of Representatives

Earlier today, in federal court in Central Islip, former Congressman George Anthony Devolder Santos pleaded guilty to committing wire fraud and aggravated identity theft.  The proceeding was held before United States District Judge Joanna Seybert.   When sentenced, Santos faces a minimum sentence of two years’ imprisonment and a maximum sentence of 22 years’ imprisonment. As part of the plea Santos will pay restitution of $373,749.97 and forfeiture of $205,002.97.  Santos was initially charged in May 2023, and a superseding indictment charging Santos with additional crimes was returned in October 2023.

This USA Today article provides some context and more sentencing details:

Former Rep. George Santos, R-N.Y., who was expelled from the House of Representatives after being indicted on 23 federal counts including fraud and misusing campaign funds, pleaded guilty Monday in federal court to two of the charges.

The Long Island Republican faces a mandatory two-year minimum sentence after pleading guilty to wire fraud and aggravated identity theft.  But Judge Joanna Seybert estimated the term could range from six to eight years behind bars when he is sentenced on Feb. 7, 2025.  Santos also agreed to pay nearly $374,000 in restitution and to forfeit $205,000.

Santos had faced trial in September on charges including laundering campaign funds to pay for his personal expenses, charging donors' credit cards without their consent, and receiving unemployment benefits while he was employed. "I deeply regret my conduct and the harm it has caused and accept full responsibility for my actions," Santos said in a shaky voice in court.

Prosecutors said Santos told the truth about his criminal schemes for what seemed like the first time since campaigning for Congress. “He admitted to lying, stealing and conning people,” U.S. Attorney Breon Peace said in a statement. “His flagrant and disgraceful conduct has been exposed and will be punished."...

"Moving forward, I am dedicated to making amends for the wrongs I have committed," Santos told reporters outside the courthouse. "This plea is not just an admission of guilt, it is an acknowledgment that I need to be held accountable, like any other American that breaks the law."

So, dear readers, Santos himself says he needs "to be held accountable." How would you punish him to hold him accountable?

US Sentencing Commission continues releasing updated "Quick Facts" publications

I am pleased to see that the US Sentencing Commission is continuing to release new sets of its terrific "Quick Facts" publications with updates drawing on the USSC's full fiscal year 2023 data.  Long-time readers know I cannot praise the USSC enough for producing these convenient and informative short data documents, which are designed to "give readers basic facts about a single area of federal crime in an easy-to-read, two-page format."  I flagged an early set of updated Quick Facts here a few months ago, and here are the newest sets of postings by the USSC on the "Quick Facts" page from June July and August:

Offender Groups

• NEW Non-U.S. Citizens (July 2024)

Drugs

• NEW Powder Cocaine Trafficking (June 2024)
• NEW Crack Cocaine Trafficking (June 2024)
• NEW Marijuana Trafficking (June 2024)
• NEW Oxycodone Trafficking (June 2024)
• NEW Heroin Trafficking (July 2024)

Firearm Offenses

• NEW Section 924(c) (June 2024)
• NEW Section 922(g) (June 2024)

Immigration Offenses

• NEW Illegal Reentry (July 2024)
• NEW Alien Smuggling (July 2024)

Economic Offenses

• NEW Theft, Property Destruction, and Fraud (August 2024)
• NEW Aggravated Identity Theft (August 2024)
• NEW Bribery (August 2024)
• NEW Counterfeiting (August 2024)
• NEW Money Laundering (August 2024)

Intriguing action, but no formal vote, from US Sentencing Commission on retroactivity of 2024 guideline amendments

As noted in this post yesterday, this afternoon the US Sentencing Commission had a scheduled public meeting, and the big official agenda items were "Possible Vote on Final 2024–2025 Policy Priorities" and "Possible Vote on Retroactivity of Certain 2024 Amendments." And, as noted in this post from earlier today, the Commission did vote, and voted unanimously, for this official set of new policy priorities.  But, interestingly, the Commission did not vote on the issue of retroactivity of certain 2024 amendments.

When reaching the retroactivity issue in the agenda (starting at around the 13:45 minute mark of the meeting recording here), the matter failed "for lack of a motion."  The Commission Chair subsequently explained that "many have called for the Commission to identify clear principles that will guide its approach to retroactivity" and that, "after deep deliberation," the Commission decided to heed those calls and apparently defer any vote on retroactivity. 

Notably, my colleague at the Sentencing Matters Substack, Jonathan Wroblewski, wrote this thoughtful post on this topic titled "Is it Time for the U.S. Sentencing Commission to Issue a Detailed, Written, and Reasoned Opinion on When it Applies Guideline Amendments Retroactively?".   I surmise that the Commission has decided that it is time for a new approach to its retroactivity decision-making, but it is not yet clear just what that now means either for retroactivity decisions generally or for the retroactivity of certain 2024 amendments.  Stay tuned.

Prior recent related posts:

• US Sentencing Commission sets out broad, general request concerning proposed priorities for 2024 to 2025 amendment cycle
• US Sentencing Commission releases over 1200 pages of public comment on proposed priorities
• US Sentencing Commission ... conducting "Public Hearing on Retroactivity" for its proposed 2024 guideline amendments
• US Sentencing Commission votes to adopt priorities that "reflect calls to simplify sentencing, reduce the costs of unnecessary incarceration, and promote public safety"

US Sentencing Commission votes to adopt priorities that "reflect calls to simplify sentencing, reduce the costs of unnecessary incarceration, and promote public safety"

I received an email from the US Sentencing Commission, not long after after its short public meeting today, titled "Embracing the Public’s Ideas to Improve Sentencing, Commission Unanimously Adopts Policy Priorities."  And the title of this post captured the emails subtitle: "Priorities Reflect Calls to Simplify Sentencing, Reduce the Costs of Unnecessary Incarceration, and Promote Public Safety."  And here is the full text of the email, with links from the original:

Each year, the bipartisan U.S. Sentencing Commission votes to adopt priorities that will guide its annual policymaking process.  This summer, the Commission solicited priorities from the public, asking how the agency can improve federal sentencing.  In response, the Commission received more than 1,200 pages of insightful comments from judges, members of Congress, executive branch officials, probation officers, advisory groups, attorneys, professors, advocates, organizations, incarcerated individuals, and others.

Today, the Commission voted unanimously to commit to prioritize one or more of the clear themes that emerged from the comments it has received, which included:

• Simplifying the federal Sentencing Guidelines and clarifying their role in sentencing. This includes revision of the “categorical approach” for purposes of the career offender guideline and possibly amending the Guidelines Manual to address the three-step process and the use of departures and policy statements relating to specific personal characteristics;
• Reducing the costs of unnecessary incarceration;
• Promoting public safety;
• Improving community supervision;
• Expanding the Commission’s use of expertise, evidence, and best practices; and
• Promoting evidence-based approaches to offense and individual characteristics. Read the full list of priorities.

“Today’s vote proves one thing: when you speak to the Commission, you will be heard,” said Judge Carlton W. Reeves, Chair of the Commission. “Our final priorities will allow us to give each public comment the attention it deserves. This is the first step in translating the public’s priorities into policies that improve federal sentencing. As we move forward, we will continue to seek out and obtain guidance from the public and stakeholders across the criminal justice system.” Watch a recording of today's meeting.

A compilation of public comment can be reviewed here. Visit www.ussc.gov for more information about the amendment process. 

New US Sentencing Commission information resources just before USSC meeting to inform on new policy priorities and 2024 amendment retroactivity

I see from the US Sentencing Commission's website a couple of notable new resources:

• Selected Supreme Court Cases on Sentencing Issues (August 7): This document provides brief summaries of selected Supreme Court and appellate court cases that involve the guidelines and other aspects of federal sentencing.

• Sentencing Practice Talk Podcast Relaunch (August 7): In this highly anticipated return of Sentencing Practice Talk, Commission staff introduce listeners to the nuts and bolts of the HelpLine and share common guideline application questions.

These two helpful USSC resourses serve as a kind of a savory snack before the main Commission meal to be served up at the scheduled public hearing tomorrow afternoon with this official agenda:

• Report of the Chair
• Possible Vote to Adopt April 2024 Meeting Minutes
• Possible Vote on Final 2024–2025 Policy Priorities
• Possible Vote on Retroactivity of Certain 2024 Amendments
• Adjourn

Though there surely are many federal prisonsers, judges, prosecutors and defense attorneys quite eager to see the results of the expected vote on the retroactivity of certain 2024 guideline amendments, I am particularly eager to hear about the Commission's plans for its 2024–2025 policy priorities.  As I have noted in some prior posts, the the Commission, after two years of intricate work on a range of pressing issues, has sought comment and signalled its interest in taking a big-picture look at the full federal sentencing system and the Commission's own work therein.  The Commission received well over 1000 pages of comments, and I am wondering just how they plan to sort this all out.

Notably, over at the new Sentencing Matters Substack, former Justice Deparment and USSC ex-officio member Jonathan Wroblewski wrote this recent post on these matter titled "Reasoned Agency Decisionmaking and the Upcoming Announcement of the U.S. Sentencing Commission's Policy and Research Priorities for the 2024-25 Guideline Amendment Year."  I would recommend his post in full, and here is how it concludes:

I believe the Commission did a great thing in opening up the priority-setting process and soliciting such wide-ranging input.  It is an example of good government at work.

But as with most good deeds, this one will not go unpunished.  The Commission now owes it to those who took the time to answer its call, and also to Congress, the Executive Branch, and the public at large, to share with all of us, in some detail and reasoned explanation, its reaction to the recommendations and its choices on how it will proceed.  The Commission should, in light of everything it has now heard, set forth how — and why — it has charted a research and policy development course not just for the coming nine months, but for the next several years.  This is also part of good government and good agency practice — see, e.g., Motor Vehicle Mfrs. Assn. of United States, Inc. v. State Farm Mut. Automobile Ins. Co., 463 U.S. 29, 43 (1983) — and I hope it will be the written product of the Commission’s August 8th meeting.

Professors Berman, Chanenson, and I submitted our recommendations to the Commission too, which you can find immediately below.  We come down on the “broad systemic review” side of the recommendation spectrum, and we urge the Commission to engage in what the American Law Institute’s Model Penal Code: Sentencing refers to as an “omnibus review;” an examination of the Guidelines system, over the coming few years — and based on the experience of the last four decades — in order to forge a new era of federal sentencing policies and practices for the years ahead.

The Commission deserves credit for inviting us all in to be part of its research and policy making process.  But now, the Commission ought to transparently share with us what it thinks of all the ideas it has received and how it intends to shape the coming decades of federal sentencing research and policy.  This is part of what “reasoned decisionmaking” for an administrative agency is all about. Michigan v. EPA, 576 U.S. 743, 750 (2015).

Prior recent related posts:

• US Sentencing Commission sets out broad, general request concerning proposed priorities for 2024 to 2025 amendment cycle
• US Sentencing Commission releases over 1200 pages of public comment on proposed priorities

Second Circuit panel finds unreasonable 10-year prison sentence for federal prison guard who repeatedly raped inmate

I missed while on the road the notable Second Circuit panel ruling last week in US v. Martinez, No. 22-902-cr (2d Cir. July 30, 3034) (available here).  Though I do not keep up with all reasonableness rulings in circuit courts, I still believe it remains rare for federal circuits to find sentences unreasonable on appeal.  But Martinez is a case that lead to finding of both prosecural and substantive unreasonableness, and here is how the lengthy panel opinion starts:

Defendant-Appellant-Cross-Appellee Carlos Martinez, a former federal prison guard, was convicted after two jury trials in the United States District Court for the Eastern District of New York (Edward R. Korman, District Judge) of a number of charges stemming from his repeated rape of an inmate, whom the parties refer to as “Maria,” at the Metropolitan Detention Center (“MDC”) in Brooklyn, New York.  At both trials, Maria testified that Martinez raped her on five occasions while she was assigned to clean his office on weekends when that area was largely deserted. She testified that Martinez repeatedly sexually assaulted her by force (by physically holding her down) and threats and fear (by, for example, threatening to send her to a special housing unit (“SHU”) and warning her that fighting back would result in charges for assaulting an officer).

The jury at Martinez’s first trial found him guilty of five counts of sexual abuse of a ward, in violation of 18 U.S.C. § 2243(b) — one count for each rape. It also found him guilty of a number of other counts which were later vacated for reasons that are not at issue in the present appeal. At a second trial, Martinez was retried on fifteen counts arising out of the five rapes.  As to each rape, Martinez was charged with sexual abuse by threats or fear in violation of 18 U.S.C. § 2242(1); depriving Maria of her civil rights in violation of 18 U.S.C. § 242; and aggravated sexual abuse in violation of 18 U.S.C. § 2241(a)(1).  The jury convicted Martinez of five counts of sexual abuse by threats or fear, 18 U.S.C. § 2242(1).  The jury also convicted Martinez of depriving Maria of her civil rights, 18 U.S.C. § 242, and of aggravated sexual abuse, 18 U.S.C. § 2241(a)(1), but only as to the second of the five charged rapes; it acquitted him on those counts as to the other four incidents.

At sentencing, the district court expressed doubts about Maria’s testimony and later explained in its written statement of reasons that it disagreed with the second jury’s guilty verdicts on the five counts of sexual abuse through threats or fear — despite having previously denied Martinez’s motions for acquittal. The court also made several remarks suggesting that the second jury had not credited Maria’s testimony, even though the jury had returned guilty verdicts on at least one count relating to each of the five charged rapes.  It additionally described Martinez as “not a violent criminal,” Gov’t App’x 226, even though the jury had found beyond a reasonable doubt that, on one occasion, he had forcibly raped Maria.  At bottom, the court appeared to believe Martinez’s defense that he and Maria had engaged in consensual sex, a version of events necessarily foreclosed by the guilty verdicts.  The district court ultimately imposed a prison sentence of ten years, a dramatic variance below the advisory Guidelines range of life imprisonment.

Martinez now challenges the sufficiency of the evidence underlying his two convictions premised on using force to commit the second charged rape. We reject the insufficiency claim, because the jury was entitled to credit Maria’s testimony that Martinez physically restrained her to carry out that particular instance of sexual abuse. Martinez argues that his acquittals on some counts reveal that the jury must have completely rejected the victim’s testimony, but it is well established that a defendant cannot rely on inconsistent verdicts to impugn a conviction, and, in any event, the jury’s guilty verdicts decisively refute any contention that the jury entirely rejected that testimony.

The government cross-appeals Martinez’s ten-year sentence as procedurally and substantively unreasonable. We agree. The district court committed a number of procedural errors: It relied on certain 6 clearly erroneous factual findings that were foreclosed by the jury’s guilty verdicts, or that it mistakenly believed were dictated by the jury’s acquittals on other counts. It mistakenly treated Martinez’s convictions for committing sexual abuse through threats or fear as legally equivalent to committing sexual abuse of a ward, despite the fact that the former offense, unlike the latter, requires the sexual contact to have been without the victim’s consent. And it failed to effectively sentence him based on all of his convictions. The sentence was also substantively unreasonable because the district court gave dramatically insufficient weight to the seriousness of the full range of Martinez’s offenses, and impermissibly gave weight to its residual doubts about the jury’s guilty verdicts as a mitigating factor. We therefore AFFIRM the judgment of conviction and REMAND for resentencing consistent with this opinion.

Latest episode of "Drugs on the Docket" podcast features USSC Chair Carlton Reeves

In this post, I highlighted that the Drug Enforcement and Policy Center at The Ohio State University had been releasing episodes from Season Two of the "Drugs on the Docket" podcast.  (All of the first season's episodes are all still available via Apple Podcasts and YouTube, where you can also find all released Season 2 episodes as well.)   And now, as detailed on this podcast webpage, we just recently released the fifth episode of this new season. 

This exciting new episode captures an extended discussion with Judge Carlton Reeves, Chair of the U.S. Sentencing Commission.  This discussion took place back in March not long after Judge Reeves had delivered the 2024 Menard Family Lecture on Drug Policy and Criminal Justice at The Ohio State University Moritz College of Law (which can be watched here).  Though taped a few months ago, the release of this episode seems especially timely because the Commission has scheduled this big public meeting for this coming Thursday, August 8, 2024, to discuss, inter alia, its priorities for the coming year.  In the podcast Judge Reeves discusses at length how the Cmmission goes about setting its priorities and other aspects of the agency's work. 

From the this podcast webpage, here is this episode's description along with  show notes:

Season 2 Episode 5 – A Special Conversation with the Honorable Carlton W. Reeves, Chair of the U.S. Sentencing Commission

Host Hannah Miller and co-host Doug Berman, executive director of the Drug Enforcement and Policy Center, speak with the Honorable Judge Carlton W. Reeves, Chair of the United States Sentencing Commission and U.S. District Court Judge for the Southern District of Mississippi. Judge Reeves discusses his role as Chair of the Sentencing Commission and the recent activities of the Commission, including efforts taken to reform the U.S. Sentencing Guidelines.

Show notes:

• United States Sentencing Commission (USSC) website
• Learn about the additional two ex-officio members of the United States Sentencing Commission in addition to the members noted in the episode
• Dealing in Lives: Imposition of Federal Life Sentences for Drugs from 1990–2020
• Alternatives to Incarceration, Problem-Solving Courts, and other resources by topic (USSC)
• Statement from the White House: President Biden Nominates Bipartisan Slate for the United States Sentencing Commission
• Schoolhouse Rock! episode, “I’m Just a Bill”

US Sentencing Commission schedules big meeting for August 8, 2024 to vote on retroactivity and priorities

As detailed in this official announcement, two weeks from today is the scheduled date for a big official public meeting for the US Sentencing Commission to take big votes on two sets of important issues. Here is the full announcement:

Pursuant to Rule 3.2 of the Rules of Practice and Procedure of the United States Sentencing Commission, a public meeting of the Commission is scheduled for Thursday, August 8, 2024 at 3:00 p.m. (EDT) (tentative). The meeting will be held in the Commissioner’s Conference Room of Suite 2-500 in the Thurgood Marshall Federal Judiciary Building, One Columbus Circle, N.E. (South Lobby), Washington, D.C. The meeting will be streamed live. 

Agenda:

• Report of the Chair
• Possible Vote to Adopt April 2024 Meeting Minutes
• Possible Vote on Final 2024–2025 Policy Priorities
• Possible Vote on Retroactivity of Certain 2024 Amendments
• Adjourn

US Sentencing Commission releases over 1200 pages of public comment on proposed priorities

As noted in this post last month, the US Sentencing Commission recently released a "Federal Register Notice of Proposed 2024-2025 Priorities" which suggested that the USSC was eager in this coming guideline-amendment year to take a "big-picture" look at the full fedeal sentencing system and the Commission's own work therein.  Lots of folks rightly understood that the Commission was seeking lots of input, and many responded to its request for comment.  And now the USSC has published those public comments, which in full pdf compilation runs over 1200 pages, in an accessible manner at this webpage and explained this way:

The July 2024 Compilation of Public Comment uses bookmarks as its table of contents.  A bookmark is a navigation link that displays in the side panel within Adobe Acrobat (example).  Some browsers open the bookmarks panel by default within the browser window.  If you cannot access the bookmarks panel within the browser window, it is recommended that you save the PDF and reopen it in Adobe Acrobat for easier navigation.

The Commission reviews and catalogs all public comment submissions for future reference and official recordkeeping purposes. A representative sample of public comment is carefully selected, redacted, and posted online to provide the public with the kind of information considered by the Commissioners during their deliberations. 

User Tips for Mobile Devices: The Compilation of Public Comment is over 1,200 pages and more easily navigated on a desktop.  Hyperlinks below may not take mobile users to a specific letter and the bookmarks panel may not be accessible on mobile devices. 

I believe I am partially responsible for a few dozen of these many pages of comments, and I am hopeful in the coming weeks and months to flag a wide range of comments that seems especially interesting or perhaps surprising.  In the meantime, I will just say again that the Commission merits great credit for thinking big about federal sentencing and for encouraging the public to help in that endeavor.

Prior recent related post:

• US Sentencing Commission sets out broad, general request concerning proposed priorities for 2024 to 2025 amendment cycle

"Post-Chevron, Good Riddance To The Sentencing Guidelines"

The ttile of this post is the title of this notable new Law360 commentary authored by Mark Allenbaugh, Doug Passon and Alan Ellis. The extended piece covers a lot of ground at the intersection of administrative law and the guidelines, and here is a snippet from its first section:

The Supreme Court's decision in Loper Bright Enterprises v. Raimondo, overturning the Chevron doctrine, raises a critical and long overlooked question: What, if any, deference is now owed to the guidelines themselves?

Over the past few years, significant splits have developed among many federal district courts and appeals courts with respect to the deference courts should afford both to the guidelines proper, and to their commentary.

Loper Bright is certain to add to the disarray. Accordingly, it is imperative that the court step in quickly to resolve this building crisis.

We argue that, in their current form, the guidelines should not be afforded any deference for two primary reasons.  First, although the guidelines were originally designed to be binding, their binding nature has since been ruled unconstitutional. Yet the commission has not revised the guidelines to account for their now-advisory nature.

Second, in their current form, they actually promote the exact opposite of the various policy goals they were intended to achieve — namely, to provide certainty, proportionality and uniformity in sentencing, while taking into account the population capacity of the Federal Bureau of Prisons.

Prior related post:

• Hoping admin law gurus will help us all understand what Loper Bright might mean for federal sentencing law

Is Senator Bob Menendez now facing a de facto life sentence after being convicted by a jury on all 16 federal corruption counts?

The question in the title of this post is prompted by this news via Bloomberg Law: " US Senator Bob Menendez, the powerful New Jersey Democrat, was found guilty of corruption charges related to the FBI seizure of 13 gold bars, nearly $500,000 in cash and a Mercedes-Benz at his home.  Menendez was convicted on all 16 counts Tuesday after a two-month trial in New York, where prosecutors argued the lawmaker had sold his influence to protect businessmen and to promote Egypt’s interests."  Here is more: 

The government alleged Menendez’s wife, Nadine, was a go-between who collected bribes and set up meetings with the businessmen and Egyptian officials. She was also charged, but will face a later trial.

After the verdict was read out, one of Menendez’s lawyers patted the senator on the shoulder. The judge set a sentencing date for Oct. 29 for Menendez and his two co-defendants. Menendez is certain to appeal.

The three-term senator was the first member of Congress charged with being a public official acting as a foreign agent. In all, Menendez was convicted of charges including bribery, extortion, conspiracy, honest services wire fraud and obstruction of justice.

Menendez, the senior Hispanic lawmaker in Congress, saw his political support evaporate in Washington and New Jersey amid the publicity of the cash, gold and convertible seized by agents from his home in 2022. After his indictment, he resigned as chairman of the Senate Foreign Relations Committee. He could face expulsion from the Senate, where Democrats hold a 52-48 advantage.

The bribes began when Menendez, 70, started dating Nadine Arslanian in 2018, just after an earlier corruption trial against him ended in a hung jury, prosecutors said. They wed in 2020.  During the latest criminal trial, jurors held gold bars stashed in the Menendez house, heard about their tumultuous relationship, and watched a secret FBI video of the couple dining at a Morton’s steakhouse with an Egyptian intelligence official.

Menendez was tried with Fred Daibes, a real estate developer in Edgewater, New Jersey, and Wael Hana, who secured an Egyptian monopoly to certify US meat bound for Egypt as compliant with halal standards. Daibes and Hana also were convicted of bribery and wire fraud charges.  A third businessman, former insurance broker Jose Uribe, pleaded guilty and testified he bribed Arslanian with a Mercedes.

Prosecutors said Menendez corruptly helped Egypt secure US military aid and sensitive information; urged a US agriculture undersecretary to stop questioning Hana’s halal monopoly; weighed appointing a US attorney in New Jersey who would influence a 2018 fraud indictment of Daibes; contacted the New Jersey attorney general to disrupt New Jersey criminal probes of two people close to Uribe; and helped Daibes arrange financing from Qatari investment fund for a real estate project.

Menendez didn’t testify but denied wrongdoing. His lawyers said he took no bribes or official actions to advance any quid-pro-quo schemes. His attorney Adam Fee derided the US case as “painfully thin,” woven from “fantasy” speculation and misguided inferences.  “The prosecutors are going to continue to tell you, in excited tones, that Senator Menendez is a crook, is corrupt, took a bunch of bribes,” Fee said in his summation. “His actions were lawful, normal, and good for his constituents, and this country.”

Defense lawyers sought to defuse the explosive heart of the case — gold bars and cash stuffed in closets, boots, jackets, a safe and a shopping bag. Using fingerprints and DNA evidence, prosecutors traced $82,500 of cash-stuffed envelopes to Daibes.  Serial numbers on two one-kilogram gold bars, valued at about $60,000 each, matched those on a list Daibes kept. Daibes, who grew up in a Palestinian refugee camp, gave other kilogram bars to Nadine Menendez, who sold all but two before the FBI raid, the US said. Defense lawyers said she inherited gold bars from her Lebanese family, and there’s no proof the gold she sold came from Daibes.

Fee said Menendez’s Cuban immigrant parents hoarded cash, and that the senator routinely withdrew $400 for decades from a bank account. He also argued Daibes had been friends with Menendez for 30 years, and he gave gifts out of friendship, not corrupt intent.

Because I am not familiar with all the offense details, I am disinclined to guess the precise guideline range that Senator Menendez will be facing. But the basics suggest to me he might easily be looking at an offense level over 35, meaning a guideline range of perhaps at least 15-18 years. It will be quite interesting to see how this sentencing unfolds and whether the Senator gets bail pending the inevitable appeal.

"The Demand for Democracy in Sentencing"

The title of this post is the title of this new essay now available via SSRN authored by Con Reynolds and Judge Carlton Reeves (who are, as noted at SSRN, "currently employed by and/or appointed to lead the United States Sentencing Commission). Here is its abstract:

In making the federal sentencing guidelines advisory, Booker v. United States made the influence of those guidelines dependent on their perceived legitimacy.  This Article argues that, given the link between law's legitimacy and its democratic character, Booker should be read as a demand for democracy in sentencing. This demand echoes the one imbued in the U.S. Sentencing Commission's statutory charter, which gives the agency unique potential to create administrative governance that is of the people, for the people, and by the people.  In detailing past and present efforts to fulfill that potential, this Article invites readers to assist the Commission in its continuing pursuit of more democratic sentencing policy.

How Kisor rolls: Third Circuit rejects guideline commentary in child porn sentencing

I have blogged in the past about how the Supreme Court's ruling in Kisor v. Wilkie, which recast for federal courts the deference they give to agencies in construing agency regulations, has rippled in uneven and unpredictable ways through circuit decisions about how Guideline commentary can inform application of certain USSC Guidelines.  A helpful reader made sure I did not miss the he latest variation on these themes from a panel decision by the Third Circuit in US v. Haggerty, No. 23-2084 (3d Cir. July 9, 2024) (available here). Here is how it begins: 

In imposing a sentence on a defendant who has been found guilty of a child pornography-related offense, a district judge is required, under the United States Sentencing Guidelines, to enhance the applicable Guideline Sentencing range based on the number of “images” “involved” in the offense.  Specifically, under U.S.S.G. § 2G2.2(b)(7)’s graduated sentencing enhancement scheme, that defendant’s Guideline Sentencing range may be enhanced by up to five levels based on the number of images involved.

The calculus is a simple one where the pornographic matter consists only of “still” images. But what about when a moving image — that is, a video — is involved in an offense? The Guideline itself does not answer that question.  So may the judge look to the Commentary to the Guideline, which specifies that each video — no matter its length — constitutes 75 images for purposes of calculating the applicable sentencing enhancement? Whether we should defer to this commentary is the issue we now confront.

We hold that “image,” in the moving picture or video context, unambiguously means “frame.”  Deference to the Commentary’s 75-images rule is therefore unwarranted under Kisor v. Wilkie, 588 U.S. 558 (2019). Instead, the number of frames comprising a moving picture or video will determine the specific sentencing enhancement that a District Judge must apply.  Because the case before us involved videos with over 14,000 total frames, Haggerty probably possessed the requisite number of images to warrant a five-level enhancement under the Guideline.  But because the District Court did not use the frame-counting calculus we now hold is the correct one, we will vacate the District Court’s sentencing order and remand for resentencing in a manner consistent with our holding

A new (sub)space for more sentencing commentary from more voices

I am pleased to highlight today a new place and spece for sentencing discussions, Sentencing Matters Substack.  In this first posting at that location, I provide a bit of the origin story and vision for this new endeavor:

This is a new substack designed to be a new space for commentary about sentencing matters by a set of sentencing-interested academics.

I already have a blog, Sentencing Law and Policy, where I have been writing about sentencing matters for over two decades(!).  But in that space, I do a lot of posts that I might label “reporting” focused around sentencing news and cases and scholarship....  I feel I rarely make as much time as I would like for more and longer commentary posts at SL&P.  And, upon seeing a number of friends and colleagues use Substack for effective original commentary, I started to get a hankering for trying out this medium as one new way to prompt myself to make more time for more longer-form sentencing commentary.

As this idea germinated, a new catalyst for growth emerged: Jonathan Wroblewski, who had served for many years as the Director of the Office of Policy and Legislation in the Criminal Division of the US Department of Justice and also as DOJ’s ex officio respresententative on the US Sentencing Commission, told me he was working on a series of commentary pieces that he was hoping to have posted on Sentencing Law and Policy.  I said I would be honored to place these pieces on SL&P, but I added that I would be even more excited to start a sentencing Substack as a place for both of us (and perhaps others) to share all sorts of sentencing talk about all sorts of sentencing matters.

In addition, my long-time co-managing editor with the Federal Sentencing Reporter, Steven Chanenson, agreed to be another stacker(?) on this new Substack.  Among an array of virtues and contributions, Steve suggested the titled title “Sentencing Matters” for this effort and also got a blessing to use that great title from another legendary sentencing academic who came up with it first.

I am hopeful, though not at all confident, that this new Substack will compliment and enhance my work on this blog.  Indeed, I am already excited to be able to flag Jonahan Wroblewski's first Sentencing Matters Substack posting here, titled "Why I Still Believe in Sentencing Guidelines (Just Not the Current Federal Guidelines)."  Here is a closing section of his posting, which should be read in full:

The insights of these scholars [like Professors Daniel Kahneman and Barry Ruback] also reveal that while a structured and actuarial model of decision making will outperform most humans on consistency and along other dimensions, greater detail in the decision-making structure, like the federal Commission decided to incorporate in drafting the federal sentencing guidelines, does not necessarily bring with it greater validity across dimensions.  In fact, much research suggests that attempts at greater precision will often lead to lower validity.  This is the experience of the federal guidelines.  The guidelines were drafted to dictate precise sentencing outcomes, and many judges recoiled.  But more than that, the attempts at precision ran into psychological and constitutional limitations.  Especially now, 20 years after the Booker decision, it is time to revisit the guideline structure created by the first Commission.

The guidelines are a case study in a failed attempt to use brute force – and too much precision – to get to particular algorithmic outcomes.  Of course, there is another way to bring consistency and sound policy to sentencing decisions.  As Richard Thaler and Cass Sunstein suggested in their best-selling book, Nudge, which was also drawn from Kahneman’s work, policy makers can create a less dictatorial choice architecture to try to move decision makers, like sentencing judges, in a particular direction.  With psychological scholarship in mind, it is not difficult to imagine a simpler federal sentencing decision tree, one ironically with even greater richness than the current federal guidelines and yet simultaneously more understandable to all, including those being sentenced, the victims of crime, and the general public.  One need only look to guidelines system of many states and certain foreign countries that have learned from the U.S. federal system what not to do.  Most everyone familiar with the federal guidelines can agree upon this: they are not nuanced; they are not a nudge; and they are not a model.

Highlighting an era of federal sentencing with "hits" from the Federal Sentencing Reporter

The visionary work of founding editors Daniel J. Freed and Marc L. Miller launched the Federal Sentencing Reporter back in summer 1988 when the federal sentencing guidelines were just starting to be used in federal courts and when the very constitutionality of the Sentencing Reform Act coming under Supreme Court review.  Three dozen years later, the current FSR managing editors (Steve Chanenson and I) have wrapped up FSR's Volume 36 with a republishing of past FSR articles organized around a “greatest hits” theme in a super-sized issue titled "Four Decades of the Great American Sentencing Songbook." 

For both old and new followers of federal sentencing laws and practice, I am hopeful this collection can serve as an invogorating reminder of all the ideas and issues wrapped up in modern sentencing reform history.  And this issue also captures a transition moment in FSR history as Steve and I explain in our short introductory essay.  Here are excerpts from its start and end:

Sentencing is the soundtrack of the criminal law. Sometimes it garners all the attention, starting at the beginning of a criminal prosecution as lawyers and the general public consider what punishments are possible and likely based on alleged wrongdoing.  When other issues garner attention, sentencing concerns are always part of the backbeat — always humming in the minds of criminal justice actors, even if in the background — setting the atmosphere for action in and out of the courtroom.

With this issue closing out volume 36 of the Federal Sentencing Reporter, the managing editors are in the mood for reflection.  This reflective mood is inspired by a coming change in FSR operations.  Since its founding in 1988, the journal has been ably published by the University of California Press, primarily in partnership with the Vera Institute of Justice.  Now, starting with the next volume, FSR will have a new publisher as part of a new arrangement with The Ohio State University, which stepped into Vera’s shoes at the start of this calendar year.  Like all transitions, this presents an opportunity for taking stock.

This issue of FSR looks back — incompletely, by necessity — at the transformative decades of federal sentencing after the Sentencing Reform Act and three dozen years of FSR reporting on the broader landscape of sentencing and punishment....

We have organized the reprinted pieces that follow around a kind of FSR’s "greatest hits" theme, in part to connote and acknowledge that a wide range of people, seen and unseen, have contributed in myriad ways to the long-running Federal Sentencing Reporter band.  As the first reprinted pieces highlight, our show got off to an extraordinary start thanks to the visionary work of founding editors Daniel J. Freed and Marc L. Miller.  For more than a third of a century, our exceptional contributors have kept the FSR beat alive, and we are confident the journal will continue to thrive for decades to come.  We hope you enjoy this push of the replay button for the final FSR issue published by the wonderful producers of this sentencing experience at the University of California Press.

Hoping admin law gurus will help us all understand what Loper Bright might mean for federal sentencing law

More than 30 years ago, I had the great fortune to take administrative law in law school from then-Judge Stephen Breyer.  Though I am sure I learned a lot in that admin law course, what I most remember learning is that I did not want to practice admin law.  And yet, ironically I suppose, a good portion of my professional career has been devoted to considering (and sometimes criticizing) the work of the only federal administrative agency localed in the judicial branch, the US Sentencing Commission.  Moreover, especially since the First Step Act created all sorts of new provisions to be applied to federal prisoners, I have been giving ever more attention to the work of the administrative agency known as the Federal Bureau of Prisons (which is within the bigger administrative agency known as the US Department of Justice).  I am not sure it is surprising as much as it is intriguing that a whole lot of federal sentencing and correections law emerge from the actions of federal administrative agencies.

This post's preamble is meant to tee up the isssue flagged in the title, as the Supreme Court last week issued a significant administrative law ruling in Loper Bright Enterprises v. Raimondo, No. 22-451, (S. Ct. June 28, 2024) (available here), wherein the Court formally eliminated so-called Chevron deference in the consideration of challenges to actions by adminstrative agencies. Here is the key closing statement of the ruling in the case from Chief Judge Roberts' opinion for the Court:

Chevron is overruled.  Courts must exercise their independent judgment in deciding whether an agency has acted within its statutory authority, as the APA requires.  Careful attention to the judgment of the Executive Branch may help inform that inquiry.  And when a particular statute delegates authority to an agency consistent with constitutional limits, courts must respect the delegation, while ensuring that the agency acts within it.  But courts need not and under the APA may not defer to an agency interpretation of the law simply because a statute is ambiguous.

So how does this significant ruling impact actions by the US Sentencing Commission and the Bureau of Prisons?  Candidly, I do not know.  I have already received a number of emails from a number of folks wondering if Loper Bright might be a federal sentencing game-changer in some respect, and I am always inclined to think probably not.  But as flagged in a post here a couple years ago, the Supreme Court's ruling in Kisor v. Wilkie, 139 S. Ct. 2400 (2019), recast for federal courts "the deference they give to agencies ... in construing agency regulations" and that ruling has rippled in uneven and unpredictable ways through circuit decisions about how Guideline commentary can inform application of certain USSC Guidelines.  And, writing here in Forbes, Walter Pavlo notes on-going litigation over BOP's implementation of the First Step Act and concludes with this forecast: "The Chevron ruling will certainly prompt more lawsuits against the BOP in the coming months as prisoners will simply be asking for what Congress intended them to have ... less time in prison."

Adding to the intrigue, I suppose, is the fact that the Department of Justice (an agency) is currently arguing in courts nationwide that the US Sentencing Commission (an agency) misinterpreted the Sentencing Reform Act and the First Step Act when it recently amended USSG §1B1.13, Reduction in Term of Imprisonment Under 18 U.S.C. § 3582(c)(1)(A) (Policy Statement), to provide in subsection (b)(6) that, when "a defendant received an unusually long sentence and has served at least 10 years of the term of imprisonment, a change in the law ... may be considered in determining whether the defendant presents an extraordinary and compelling reason" to potentially permit a reduction in his imprisonment term.   Notably, the SRA expressly delegates to the USSC the responsibility to "describe what should be considered extraordinary and compelling reasons for sentence reduction," 28 USC § 994(t), and so I would think Loper Bright still supports courts showing "respect [to] the delegation."  But I have a feeling DOJ will not read Loper Bright to end its legal attack on the amended guideline.

There is on-going litigation before a number of circuits concerning this amended USSC's policy statement, and it will be interesting to see if circuit judges rely heavily or at all on Loper Bright as they sort through the claim by DOJ that the USSC actions were not kosher.  And if DOJ prevails and/or Loper Bright supports efforts to assail the US Sentencing Guidelines on statutory grounds, I wonder whether defendants and defense attorneys might be able to champion other statutory language in 28 USC § 994 to assail other Guidelines.  For example, I have long thought many Guidelines — and particularly key provisions of the fraud and drug guidelines — fail to comply with 994(j), wherein Congress provided that the "Commission shall insure that the guidelines reflect the general appropriateness of imposing a sentence other than imprisonment in cases in which the defendant is a first offender who has not been convicted of a crime of violence or an otherwise serious offense."  Could and should whole guidelines or particular subprovisions be attacked by defendants whenever in non-violent, low level cases these provisions do not recommend "imposing a sentence other than imprisonment"? 

My sense is that it will take quite a while before we fully understand the impacts of the Loper Bright ruling in awide array of legal arenas.  I am just starting early with my general call that the folks smart enough to really understand administrative law make sure not to forget to helping all of us working through the possible federal criminal law echoes.

US Sentencing Commission releases latest "compassionate release" data through March 2024

The US Sentencing Commission today updates some of its data on sentence reduction motions on this webpage, particularly though this new Compassionate Release Data Report running through the second quarter of USSC Fiscal Year 2024 (meaning through the end of March 2024).   Notably, the latest data run includes information for nearly six months after the Commission's new "sentence reduction" guideline became law, and nearly a year after the Commission submitted this guideline to Congress.

As I have noted before, the long-term data going back to the height of the COVID pandemic period reveals, unsurprisingly, that we now see many fewer sentence reduction motions filed or granted than in years past.  Though there are month-to-month variations, it would be roughly accurate to say recent months see, on average, a few dozen compassionate release motions granted and a couple hundred  motions denied nationwide.  And the number of motions resolved and the grant rates from various districts remain quite different within and among circuits.

There are all sorts of other interesting data points in this new report relating to both the crimes and backgrounds of defendants bringing these motions and getting sentence reductions.  Especially because there are so many elements to sentence reduction motions and so much discretion in the hands of district judges when considering these motions, I continue to find these data stories fascinating, and I am hopeful researchers (and the USSC) will keep exploring how this part of the First Step Act continue to function.

US Sentencing Commission releases big report on "Methamphetamine Trafficking Offenses in the Federal Criminal Justice System"

Via email, I received news of this big new report from the US Sentencing Commission titled "Methamphetamine Trafficking Offenses in the Federal Criminal Justice System."  This 66-page report provides lots of important facts and figure about the drug offense that is now the basis for the most and most severe federal drug sentences in recent years.  This USSC webpage has an overview and key findings from the report and this USSC news release provide a helpful summary:

A new U.S. Sentencing Commission study found substantial increases in both the prevalence of federal methamphetamine trafficking sentences, and the purity levels of methamphetamine trafficked in the United States.

Over the past 20 years, the number of individuals sentenced federally for methamphetamine trafficking has risen by 168 percent, with methamphetamine now accounting for nearly half (49%) of all federal drug trafficking cases.

The study also revealed that the methamphetamine tested in fiscal year 2022 was on average over 90% pure with a median purity of 98%.  Furthermore, the methamphetamine tested was uniformly highly pure regardless of whether it was sentenced as methamphetamine mixture (91% pure on average), methamphetamine actual (93%) or Ice (98%).  By comparison, in 2000, the Drug Enforcement Administration reported that methamphetamine purity ranged from 10% to 80% depending on location.

Methamphetamine is one of only five controlled substances where purity affects federal statutory and guideline penalties, resulting in higher penalties when purity levels are confirmed by laboratory testing.  By federal statute, it takes ten times as much mixture compared to actual methamphetamine to trigger mandatory minimum penalties.

Because methamphetamine penalties are based in part on purity, penalty exposure and sentencing outcomes are impacted by confirmed purity levels.  The Commission’s study found that testing practices varied across the nation and that testing rates across judicial circuits were inconsistent — ranging from under 60% to over 80% of the time.  Notably, methamphetamine seized in southwest border districts was more likely to undergo laboratory testing (85%) than in non-border districts (70%).

Methamphetamine trafficking sentences averaged 91 months in fiscal year 2022, the longest among the major federal drug trafficking offenses, including fentanyl (65 months) and heroin (66 months). In addition, methamphetamine trafficking offenses carried mandatory minimum penalties more often (74%) than all other drug trafficking offenses (57%).

Rounding up some early accounts of how Hunter Biden will be sentenced

I have already seen a handful of commentaries mapping out the dynamics of the federal sentencing of Hunter Biden following his conviction on three felonies.  This New York Times piece, headlined "Will Hunter Biden Go to Jail? Here’s What His Sentence Could Look Like," provides these useful particulars:

According to the most recent manual published by the United States Sentencing Commission, which sets recommended sentencing guidelines, someone in Mr. Biden’s position would typically face 15 to 21 months’ imprisonment for offenses related to the unlawful receipt, possession, or transportation of firearms.

From 2019 to 2023, just 52 defendants were sentenced in a similar category as Mr. Biden, and 92 percent were sentenced to serve prison time with a median prison term of 15 months, according to the commission’s data. Around 8 percent of people in that category received probation or a fine.

But judges frequently depart from the suggested guidelines when handing down a sentence and may reduce the time spent in prison in light of the particular circumstances unique to each case.

And here are a few other press pieces discussing some sentencing issues at some length:

From CBS News, "Is Hunter Biden going to prison? What to know about the possible sentence after his conviction"

From PBS News Hour, "What federal guidelines suggest for Hunter Biden’s sentencing"

From the New York Post, "Hunter Biden judge once gave stiff sentence in similar gun case"

From USA Today, "What's next for Hunter Biden? Sentencing, likely appeal and looming trial on tax charges"

"DPA Discounts"

The title of this post is the title of this new paper now available via SSRN authored by Todd Haugh and Mason McCartney. Here is its abstract:

There is a longstanding debate over the propriety of corporate deferred and nonprosecution agreements, those semi-private settlements entered into between prosecutors and companies under criminal investigation.  That debate is occurring in the shadow of the growing use of these DPAs and NPAs, a trend that recent DOJ policy changes suggest will only increase.  Regardless of where one stands on the debate, all agree that the fair, consistent, and transparent awarding and application of these agreements is paramount. 

Based on an empirical analysis of more than ten years of DPAs and NPAs used in Foreign Corrupt Practices Act cases, we find that the monetary penalties imposed on companies are consistently discounted below the low end of the fine range calculated pursuant to the Organizational Sentencing Guidelines, sometimes even below the monetary benefits companies received from their wrongdoing.  Further, the culpability score calculations made pursuant to the Guidelines, which are designed to calibrate a company's ultimate penalty with its level of wrongdoing, are not statistically significant in determining penalties.  Instead, it appears a hardened norm has developed at the DOJ of giving an almost uniform 25% discount off the low end of the fine range regardless of a company's culpability.  This norm is remarkably consistent despite wide variability in corporate behavior and the likely bargaining positions of prosecutors and corporate defendants.  These findings call into question the current oversight of DPAs and NPAs and, ultimately, their use in combatting corporate crime, thereby shedding new empirical light on what has become the primary means of holding our most high-profile corporate wrongdoers accountable.

US Sentencing Commission starts releasing latest "Quick Facts" publications

I noticed that the US Sentencing Commission has started releasing a new set of its terrific "Quick Facts" publications with updates drawing on the USSC's full fiscal year 2023 data.  Long-time readers have long heard me praise the USSC for producing these convenient and informative short data documents, which are designed to "give readers basic facts about a single area of federal crime in an easy-to-read, two-page format." Here are the newesr postings by the USSC on the "Quick Facts" page:

Offender Groups

• NEW Individuals in the Federal Bureau of Prisons (May 2024)
• NEW Career Offenders (May 2024)

Drugs

• NEW Drug Trafficking (May 2024)
• NEW Methamphetamine Trafficking (May 2024)
• NEW Fentanyl Trafficking (May 2024)
• NEW Fentanyl Analogue Trafficking (May 2024)

There are any number of interesting factual nuggets in these documents that are fascinating, but I continue to be struck by how much of the federal caseload (and federal prison population) is consumed by drug cases and especially methamphetamine and various opioid. Crack cocaine and marijuana cases, which have long garnered so much attention, are now just a tiny piece of an otherwise still large federal drug war reality.

US Sentencing Commission sets out broad, general request concerning proposed priorities for 2024 to 2025 amendment cycle

Last Friday, the US Sentencing Commission released this interesting document, its "Federal Register Notice of Proposed 2024-2025 Priorities."  I had been waiting to get an "official" email from the sentencing commission describing the document before blogging about it, and late yesterday that email came with this heading: "A Request from Judge Carlton W. Reeves, Chair, U.S. Sentencing Commission."  Here is the text of the email, which serves to summarize the gist of the Federal Register Notice:

I’m writing to ask you for a small favor. Most summers, the Sentencing Commission announces the work we plan to prioritize over the coming year.  This summer, to mark the 40th anniversary of the Commission’s creation (and twenty years post Booker), we’re doing something different. We’re asking people – including you – to tell us what to do this year and in the years to come.

My request is this: please take five minutes of your time to tell the Commission how we can create a fairer, more just sentencing system.  Tell us how to revise the Guidelines.  Tell us what issues to study or what data to collect.  Tell us what workshops to conduct, what hearings to hold, what advisory groups to convene, or what ways the Commission can better serve you.  Or even just tell us what big picture issues you’d like us to tackle – or what technical problems you’d like us to look into.

Trust me, I know how busy daily lives are, so we’ve made it easy to give us your thoughts.

You can type a paragraph (or even a sentence or two!) into our Public Comment Submission Portal at: https://comment.ussc.gov.  If you want to write a letter, you can submit it through the Portal, too, or via snail mail to United States Sentencing Commission, One Columbus Circle, N.E., Suite 2-500, Washington, D.C. 20002-8002, Attention: Public Affairs – Priorities Comment.

It doesn’t matter how you speak to us. And it doesn’t matter how short or long your comment is.  What matters is that you speak to us.  Please encourage your colleagues to do the same.

One comment can make the difference. Remember: when you speak to the Commission … you will be heard.

Sincerely,

Carlton W. Reeves

I am very pleased that the Commission, after two years of intricate work on a range of pressing issues, is now asking for help while seemingly being prepared to take a big picture look at the full sentencing system and the Commission's own work therein. Notably, the formal Federal Registar Notice frames this big picture inquiry in terms of key statutory provision of the Sentencing Reform Act. Here is how it substantively starts:

In light of the 40th anniversary of the Sentencing Reform Act of 1984, Pub. L. 98–473, 98 Stat. 1987 (1984), the Commission intends to focus on furthering the Commission’s statutory purposes and missions as set forth in the Sentencing Reform Act, including:

(1) Establishing “sentencing policies and practices for the Federal criminal justice system that . . . assure the meeting of the purposes of sentencing”—namely, rehabilitation, deterrence, just punishment, and incapacitation. 28 U.S.C. 991(b)(1)(A).

(2) Establishing “sentencing policies and practices for the Federal criminal justice system that . . . provide certainty and fairness in meeting the purposes of sentencing, avoiding unwarranted sentencing disparities.” 28 U.S.C. 991(b)(1)(B).

(3) Establishing “sentencing policies and practices for the Federal criminal justice system that . . . reflect, to the extent practicable, advancement of knowledge of human behavior as it relates to the criminal justice process.” 28 U.S.C. 991(b)(1)(C).

(4) “[M]easuring the degree to which the sentencing, penal, and correctional practices are effective in meeting the purposes of sentencing.” 28 U.S.C. 991(b)(2).

There is a lot more to the USSC's official notice (in pdf form here), but the message from the Commission seems pretty clear: it is prepared to, and is perhaps even eager to, start (re)considering any and all aspected of the federal sentencing system.  Kudos to the USSC for starting off its next cycle of work this way.

A last call for papers: Federal Sentencing Reporter issue on "Booker at 20"

In this prior post a couple of months ago, I set out the full call for papers for a forthcoming (early 2025) issue of the Federal Sentencing Reporter in which we will note (and celebrate? criticize?) the federal sentencing system's 20 years of functioning under the rules created by the Supreme Court's ruling in Booker.  As noted there and in subsequent posts, the "soft" deadline for receiving drafts for this FSR issue is this week (though we may have a bit of flexibility).  For full effect, here is a full reprint of the original call:

The US Supreme Court's January 2005 decision in United States v. Booker ushered in a new era for federal sentencing.  Through a dual set of dueling 5-4 opinions, Booker made the guidelines “effectively advisory,” rather than “mandatory,”  after the Court concluded that judicial fact-finding to increase mandatory guideline ranges violated the Fifth and Sixth Amendments.   The Court’s opinion essentially invited Congress to rework the federal sentencing system in the wake of this ruling, but the Booker advisory guideline system has proved remarkably durable: the mandatory guideline system was operational for 16 years, but we are now approaching the 20th anniversary of Booker and the advisory guideline system it created.

Though constitutionally and functionally a sea change, the Booker ruling has seemingly had a relatively limited effect on sentence severity and reliance on imprisonment in the federal system.  Data from the US Sentencing Commission reveal that in fiscal year 2003, the last full year of data before the disruptions of Booker and its predecessor ruling in Blakely v. Washington, just over 69,000 persons were sentenced in federal courts, with nearly 87% receiving a prison term and with the average prison term being 48 months.  Data from fiscal year 2023, the latest full year of federal sentencing data assembled by the Commission, indicate that just over 64,000 persons were sentenced in federal courts with nearly 93% receiving a prison term and with the average prison term being 52 months.  The relative consistency of federal sentencing outcomes in the Booker era is striking, especially given that Congress enacted two notable sentence-reducing statutes in this period through the Fair Sentencing Act of 2010 and the First Step Act of 2018.

Still, sentencing below guideline ranges has increased significantly in the Booker era, and lawyers and sentencing judges now place greater emphasis on the statutory sentencing factors of 18 USC § 3553(a) and relatively less emphasis on guideline particulars.  Data from FY 2023 indicate that only 42% of sentences are imposed within the guideline range, though the same Commission data reveal that the guidelines continue to exert a kind of gravitational pull on sentence lengths even though not regularly followed.  And, of course, Booker did not directly impact the force of statutory mandatory minimums, which still shape and cast shadows on plea bargaining and other aspects of the federal sentencing process. 

Nearly 20 years have passed since Booker, and the editors of the Federal Sentencing Reporter are eager to invite judges, lawyers, other sentencing practitioners, legal academics, and sentencing researchers, to share thoughts on “Booker at 20” for publication in an early 2025 FSR issue.  FSR commentaries for this issue could tackle foundational issues (such as the Court’s ruling in Booker and follow-up cases), discrete application issues (such as why certain advisory guidelines are more likely to be followed or ignored), institutional concerns (such as how Congress and the Commission and the Justice Department have responded to Booker), or any other topic of interest or concern to modern federal sentencing policy and practice.  FSR welcomes commentaries from all perspectives, including insights from sentencing experiences (with or without guidelines) in the states and other countries.  Everyone with an informed interest in sentencing law and practice is encouraged to submit a commentary.

FSR articles are typically brief — 2000 to 5000 words, though they can run longer — with relatively light use of citations.  The pieces are designed to be read by busy stakeholders, including lawyers, judges, scholars, and legislators (as well as, of course, members and staff of the US Sentencing Commission).  Priority will be given to drafts submitted by May 28, 2024, and later submissions will be considered as space permits.  Submissions should be sent electronically to [email protected] with a clear indication of the author and the author’s professional affiliation.

Notable (and notably unclear) accounting of possible impact of retroactive application of new guideline amendments

The US Sentencing Commission has sent to Congress a handful of new guideline amendments that reduce the guideline range for some individuals (details here).  That means the USSC is statutorily required to decide whether these amendments should be applied retroactively to persons currently incarcerated.  Before a vote on retroactivity, the USSC staff typically prepares a retroactivity impact analysis to aid the USSC's deliberation over retroactivity, and this past Friday the USSC made public this 21-page document titled "Analysis of the Impact of Certain 2024 Guideline Amendments if Made Retroactive" (hereinafter "retroactivity memo").

The highest-profile amendment to be considered for retroactivity is on acquitted conduct, which redefines relevant conduct to exclude conduct for which the defendant was criminally charged and acquitted in federal court.  The retroactivity memo notes that the USSC staff estimated "that 1,971 persons currently incarcerated in the BOP were acquitted of one or more of the charges against them."  (Notably, that's not much more than 1% of the current federal prison population.)  But, as the retroactivity memo further explains, USSC research staff were "unable to determine whether and to what extent the courts may have relied upon any of the offense conduct related to the charge or charges for which the individual was acquitted in determining the guideline range; therefore, staff cannot estimate what portion of approximately 1,971 persons might benefit from retroactive application of the amendment."

I suspect only a limited percentage of persons who were acquitted of some charge could show that their guideline ranges were enhanced based on acquitted conduct.  But this reality, in my view, should make the Commission all that much more willing to have its new acquitted conduct guideline applied retroactively.  Though acquitted conduct guideline enhancements are relatively rare, those now serving prison time based on acquitted conduct ought to have a chance to argue for a reduced sentence.

Interesting, the retroactivity memo also details at length that all the other guideline amendments that might be made retroactive this year also have all sorts of data uncertainty regarding the reach of retroactivity.  Here is a cursory accounting drawn from the retroactivity memo: (a) one amendment restricting a 4-level enhancement applicable when a firearm's serial number of a firearm has been “altered or obliterated” could apply to as many as 1,452 current federal prisoners, but the amendment functions so that USSC "staff cannot determine in which of the 1,452 cases" might be impacted by the amendment"; (b) another amendment concerning the grouping rules for firearm offenses could impact "102 cases that met the criteria" of the new guideline, but the fact-specific nature of the grouping rules [meant] staff cannot determine with precision the cases in which the grouping rules might have been applied in a manner inconsistent with the amendment"; (c) another amendment to restrict how the drug guidelines should be calculated could impact "538 of those persons [who] were sentenced using a Base Offense Level" a certain way, but "staff cannot determine in which of the 538 cases the court may have applied a BOL" this way.

Long story short, it is clear that not very many current federal prisoners could possibly be impacted by making new guidelines retroactive (likely less than 2% of the current BOP population), but it is actually quite unclear if any significant number of current prisoners would benefit.  Whether and how these small numbers and the data uncertainty might impact the Commission's retroactivity decision remains to be seen.

Notable (below-guideline) sentence for key anti-abortion activist after trial conviction

As reported in this Washington Post article, a "30-year-old antiabortion activist who kept fetuses in a Capitol Hill home was sentenced Tuesday to nearly five years in prison for illegally blockading and breaking into a reproductive health clinic in D.C." Here is more about a number of sentencings in this case:

Lauren Handy, of Alexandria, Va., received a 57-month term and became the first person to be sentenced for the combination of conspiring to violate reproductive health rights under a federal civil rights law and violating the Freedom of Access to Clinic Entrances Act, a 1994 law that prohibits threats to and obstruction of a person seeking reproductive health services or providers....

Handy, convicted by a jury last year, was charged along with nine others after the group launched an antiabortion blockade at the Washington Surgi-Clinic in 2020.  Handy’s was the first of four clinic-access cases pending trial or sentencing around the country in which the Justice Department under the Biden administration has charged defendants with obstructing clinic access in combination with a conspiracy against rights — a civil rights law passed after the Civil War that makes it punishable by up to 10 years in prison to “conspire to injure, oppress, threaten, or intimidate any person” exercising a constitutional or legal right. Violations of the 1994 clinic access law alone are punishable by up to a one-year prison term.

Handy gained additional notoriety when, on the same day a federal indictment was announced against the defendants, D.C. police discovered five fetuses in a Capitol Hill rowhouse basement where she had been staying. The criminal trial, however, had nothing to do with the fetuses that antiabortion activists say they collected from outside the same D.C. abortion clinic, and authorities have not charged anyone in that matter.

Handy and co-conspirators live-streamed a preplanned “lock-and-block” blockade that used force and physical obstructions to shut down the D.C. clinic on Oct. 22, 2020, Kollar-Kotelly said in summarizing trial evidence. Prosecutors said Handy was the leader of the group that orchestrated the blockade and recruited participants, arranged lodging and used a fake name to book an appointment. A nurse was injured and patients were traumatized in the incursion, including two women who begged to enter for treatment and one who suffered a medical emergency, the judge said.

“It was not peaceful, and it was not contemplated to be peaceful,” Assistant U.S. Attorney Sanjay Patel argued in a 90-minute sentencing hearing. The government sought a sentence at the high end of a 63- to 78-month range recommended by federal guidelines — up to 6½ years — based on Handy’s leadership role, obstructive conduct, the violence and victims in the case.

Prosecutors called her “an active antiabortion extremist” who has organized clinic blockades around the country, resulting in four convictions for which she was sentenced up to 45 days in jail, with all terms suspended or pending appeal. Patel also cited the need for deterrence, saying that without a stiffer punishment “the purpose of sentencing may be lost on this defendant.”

Also sentenced Tuesday with Handy were John Hinshaw, 69, of Levittown, N.Y., who received 21 months of incarceration; and William Goodman, 54, of the Bronx, who was sentenced to 27 months....

Defense attorney Martin A. Cannon cited more than nine letters of support for Handy and likened her actions to those of civil rights leaders such as Martin Luther King Jr. and Rosa Parks, saying she “did not act out of self-interest, but … at her own peril,” in good faith and out of conscience.  Cannon said Handy was a peaceful, kindhearted person with a history of philanthropic work in Haiti and on behalf of homeless people who was “trying to save babies from being killed.”  He continued, “Lauren did nothing on her own that was violent or forceful.  She did not, I submit, anticipate any of the force that resulted.”

Kollar-Kotelly said that to the contrary, the evidence showed that Handy and her co-plotters planned to push their way into the clinic, and fretted beforehand over possible use of violence.  She said the case was “not a referendum on abortion, but violation of civil rights” of patients and medical practitioners.

The judge concluded that while Handy and her co-conspirators were entitled to have “very strong views about abortion,” she found it disheartening that they “showed no compassion or empathy to women patients who were human beings in pain and seeking medical care.”

Handy and seven co-defendants, including Idoni and Geraghty, were found guilty on all counts in two federal jury trials in August and September.  Another was convicted at a bench trial before a judge in November, and one pleaded guilty. The man who pleaded guilty, Jay Smith, 32, of Freeport, N.Y., received 10 months last year after pushing a nurse who fell and suffered an ankle injury in the blockade.  The remaining six will be sentenced later this month.

Kollar-Kotelly noted that other civil rights conspiracy cases involving the Freedom of Access to Clinic Entrances Act are pending in Tennessee, Michigan and Florida. Because no one else has been sentenced under the laws in combination, she said she relied on federal sentencing guidelines for the alleged and convicted conduct.

I have not followed these cases closely, so I may not have the facts right, but this certainly seems to be another situation involving a trial penalty.  Handy, who seemngly did not directly commit any violence, gets almost 5 years in prison after exercising her tiral rights; Smith, who injured a nurse, is sentenced to only 10 months after pleading guilty.  Handy does seem to have some aggravating history and a leadership role, so the differential here may be the result of various other factors.  But still, based on the facts reported here, I am not sure other facts really full account for Handy getting a sentence nearly six times longer.

New US Sentencing Commission data on retroactive application of criminal history amendments

Last year, US Sentencing Commission voted for (delayed) retroactive application of its Guideline amendments relating to criminal history.  There were two major parts to these amendment that reduced the sentencing range for certain defendants with "status" points (Part A) and for other defendants who would now be deemed "zero-point" offenders (Part B).   And last week, the Commission release some new data on how retroactivity is playing out in district courts.  Here are links to the USSC's data reports:

NEW Retroactivity Data on Part A

NEW Retroactivity Data on Part B

There are lots of interesting little stories in these data runs, but I figured I might  here highlight the top-line numbers. Specifically, for the Part A "status point" amendment, a total of 2,988 defendants have received sentence reductions averaging 10 months.  For the Part B "zero point" amendment, a total of 2,143 defendants have receive sentence reductions averaging 13 months.

Adding this up, we get at total of 57,738 months of reduced federal prison time (which is a little over 4800 years of imprisonment for those not great at dividing by 12).  Given that the average annual cost of federal incarceration is over $42,000, we might reasonably calculate a savings of over $200 million to US taxpayers resulting from the Commission's decision to make its new criminal history guidelines retoractive.

I presume future retroactivity data runs will report in some more defendants getting reductions under the new guidelines, and I also expect other data will also show a significant number of newly sentenced defendants also benefiting from these new criminal history guidelines.  And especially since there were built on the USSC's copious revidivism data, I am hopeful that there reduction do not come at any real public safety costs. 

"A World Without Federal Sentencing Guidelines"

The title of this post is the title of this notable new article authored by Sam Merchant and now available via SSRN. Here is its abstract:

Most participants and observers of the criminal-justice system perceive the Federal Sentencing Guidelines as excessively harsh.  A foundational question has persisted since the creation of the Guidelines: is a guideline-based regime actually preferable, or should we embrace complete judicial discretion in sentencing?  For decades, analysts have resorted to hypothetical cases to explore this issue.  But a little-known world exists in which real federal sentences are imposed without any reference to sentencing guidelines: U.S. Sentencing Guideline §2X5.1.  This Article is the first to compare actual sentences imposed with and without guidelines for the same offenses and same types of offenders.

The analysis reveals that judges tend to impose harsher sentences in the world without sentencing guidelines. Variability is also more pronounced in sentences without guidelines: after a conviction for child endangerment, some parents received two years in prison and others received fifteen (even after adjusting for severity).  Two Black men convicted of a fourth and fifth non-accident DUI received ten years in prison while other offenders received probation (the median sentence is around twelve months’ imprisonment).  Recent Supreme Court cases affecting tribal jurisdiction, and the January 6, 2021, “Capitol Breach” cases, have led to an explosion in the number of these cases in many districts.

This Article argues that sentencing within a guideline framework, or within a data-based framework when guidelines are inapplicable, provides more certainty and minimizes unwarranted disparities.  The conclusions offer critical insights to states or other systems that do not currently have sentencing guidelines or do not meaningfully collect sentencing data.  Finally, this Article offers recommendations to courts, the United States Probation Office, and the Sentencing Commission to help advance a more just and efficient sentencing system.

US Sentencing Commission's new compassionate release data suggest (small) uptick in sentence reduction grants to close 2023

The US Sentencing Commission yesterday released this new compassionate release data report, which includes data on "the compassionate release motions filed with the courts and decided during the first quarter of fiscal year 2024."  (For the USSC, the first quarter of FY 2024 is actually the last three months of 2023.)   I noticed some interesting data points in this report comparing the sentence reduction grants and grant rates of the last three months of 2023 to prior months in 2023 and even earlier years.

Specifically, the months of October and December 2023 saw the highest grant rates for these motions (22.3% and 23% respectively) than for any month since the heart of the COVID pandemic in summer 2020.  Indeed, as Table 1 in the new USSC data shows, the only other month with a greater than 20% grant rate for these motions since August 2020 was in December 2022.  In addition, the total number of sentence reduction grants in Q1 of FY 2024 was also up as compared to recent prior quarters: there were 119 total grants in Q1 of 2024 compared to 81 in Q4 and 111 in Q3 and 114 in Q2 of FY 2023.

What explains the uptick in grants of compassionate release motions in Q1 of FY 2024?  I have two working hypotheses, one general and one 2023 specific: (1) maybe judges are slightly more likely in general to grant these sentence reductions toward the end of the year during the holiday season; and/or (2) maybe judges were influenced a bit by the new US Sentencing Commission policy statement governing compassionate release, § 1B1.13, which became formally effective on November 1, 2023.

Also, as I have noted before in this space, some other notable data points here come from the variations in grant rates from various circuits and districts.  Here is one example in this latest data: in the Second Circuit in this quarter, nine of 12 total resolved sentence reduction motions were granted; in the Third Circuitthis quarter only one of 23 motions were granted.

Critically, my eyeball assessment of these latest data (which reflect small numbers and lots of potential confounding factors) may just be an effort to encourage more systematic analysis of how federal district judges are continuing to use their sentence reduction authority.  Especially with COVID-based reasons likely no longer driving a large number of requests or grants for compassionate release, I hope we start to learn more about what facts and factors are providing most consequential in this form of federal judicial (re)sentencing decision-making.

Rounding up (modest) press coverage of US Sentencing Commission's unanimous vote to limit use of acquitted conduct in guideline calculations

As reported here, last week the the US Sentencing Commission voted unanimous to promulgate a number of notable new guideline amendments, including most notably an amendment to preclude the use of acquitted conduct in guideline calculations.  (The promulgated amendments passed by the Commission are posted here).  Perhaps because acquitted conduct sentencing reform is something I consider symbolically meaningful (and overdue), I view this unanimous guideline amendment to be a pretty big deal.  But, perhaps unsurprisingly, the USSC's vote has garnered only modest press coverage to date.  Still, I figured it was worth a quick round-up:

From Bloomberg Law, "US Sentencing Commission Votes for Major Guideline Amendments"

From Law360, "Sentencing Commission Limits Acquitted Conduct Sentencing"

From Reason, "U.S. Sentencing Commission Restricts Federal Judges' Ability To Use Acquitted Conduct at Sentencing: The little-known but outrageous practice allowed judges to enhance defendants' sentences using conduct a jury acquitted them of.

From Reuters, "US panel prohibits judges from sentencing for 'acquitted conduct'"

Also, a Senator's press release:  "Durbin Applauds Sentencing Commission's Unanimous Vote To Prohibit Acquitted Conduct From Being Used In Sentencing Guidelines: The Announcement Comes After Durbin, Grassley Reintroduced Their Prohibiting Punishment Of Acquitted Conduct Act"

Sharp-eyed readers may recognize that the Reuters heading is a bit inaccurate becayse the USSC did not (and perhaps feels it cannot) entirely prohibit sentencing on the basis of acquitted conduct given applicable sentencing statutes.  Rather, the Commission voted unanimously to prohibit courts from considering acquitted conduct when calculating the applicable guidelines.  As noted in the press release from Senator Burbin's office, it may be still necessary for Congress to enact the Prohibiting Punishment Of Acquitted Conduct Act in order to completely preclude judges at sentencing from ever considering acquitted conduct.

Prior recent related post:

• US Sentencing Commission votes to promulgate guideline amendment to limit use of acquitted conduct in guideline calculations 

Another call for papers: Federal Sentencing Reporter issue on "Booker at 20"

In this prior post last month, I set out the full call for papers for a forthcoming issue of the Federal Sentencing Reporter in which we plans to note (and celebrate? criticize?) the federal sentencing system's 20 years of functioning under the rules created in Booker.  I previously threatened to repost this call every few weeks until the deadline thoward the end of May, and this week's interesting guideline amendment actions by the US Sentencing Commission (basics here) has me eager to do so.  For this post, I will not give all the background about Booker and be content with these shortened specifics:

Nearly 20 years have passed since Booker, and the editors of the Federal Sentencing Reporter are eager to invite judges, lawyers, other sentencing practitioners, legal academics, and sentencing researchers, to share thoughts on “Booker at 20” for publication in an early 2025 FSR issue.  FSR commentaries for this issue could tackle foundational issues (such as the Court’s ruling in Booker and follow-up cases), discrete application issues (such as why certain advisory guidelines are more likely to be followed or ignored), institutional concerns (such as how Congress and the Commission and the Justice Department have responded to Booker), or any other topic of interest or concern to modern federal sentencing policy and practice.  FSR welcomes commentaries from all perspectives, including insights from sentencing experiences (with or without guidelines) in the states and other countries.  Everyone with an informed interest in sentencing law and practice is encouraged to submit a commentary.

FSR articles are typically brief — 2000 to 5000 words, though they can run longer — with relatively light use of citations.  The pieces are designed to be read by busy stakeholders, including lawyers, judges, scholars, and legislators (as well as, of course, members and staff of the US Sentencing Commission).  Priority will be given to drafts submitted by May 28, 2024, and later submissions will be considered as space permits.  Submissions should be sent electronically to [email protected] with a clear indication of the author and the author’s professional affiliation.

"The Relative Severity of Criminal Sentences in the January 6, 2021, Capitol Breach Cases"

The title of this post is the title of this new article authored by Sam Merchant which now has an abstract available up on SSRN.  I typically will not link to an SSRN posting unless and until the full draft article is available for download.  But this article's findings seem especially timely and notable; so here is its abstract:

Many observers claim that judges are imposing disproportionately lenient sentences on January 6, 2021, “Capitol Breach” offenders.  Some have even suggested a racial or political motivation for lighter sentences.  Comparative data on these sentences and offenders, presented here for the first time, refute this narrative. Individuals convicted of felonies related to the Capitol Breach appear to actually receive longer sentences than individuals convicted of the same crimes outside of the Capitol Breach context.

But sentences in Capitol Breach cases may indeed be “lenient” for a deeper, more structural reason — the current Federal Sentencing Guidelines do not adequately account for the severity of the conduct that occurred on January 6, 2021.  There is a qualitative difference between federal offenses and the same offenses committed in the context of the “treason spectrum.”  English and American legal traditions have historically viewed treason, rebellion, and subversive activities as “the worst crimes of all” because they are crimes against all citizens and threaten the constitutional order.  Yet no sentencing enhancement addresses the increased severity of conduct involving offenses that are on the treason spectrum.

Recognizing the increased seriousness of other conduct, Congress and the Sentencing Commission have enacted an array of enhancements to punish, incapacitate, and deter offenders whose conduct involves a dangerous weapon, body armor, or even use of a fake website during an offense.  This Article proposes a new sentencing enhancement in the Federal Sentencing Guidelines that properly accounts for the relative severity of conduct involving offenses on the treason spectrum.  To reaffirm a commitment to democratic values, to deter future subversive conduct, and ensure that the legal system is equipped to respond to the severity of subversive conduct, policymakers and judges should send clear signal that subversive activities are indeed among “the worst crimes of all.”

UPDATE: It now appears that the full paper is available for download at this SSRN link.

US Sentencing Commission votes to promulgate guideline amendment to limit use of acquitted conduct in guideline calculations

At a public meeting this afternoon, the US Sentencing Commission voted to promulgate a number of notable new guideline amendments, including perhaps most notably an amendment to preclude the consideration of acquitted conduct in guideline calculations.  The Commission's vote on this acquitted conduct amendment appeared to be unanimous, but then there seemed to be some dissention about whether to conduct a data analysis and seek public comment on whether to make this acquitted conduct amendment retroactive.  The retroactivity analysis for the acquitted conduct amendment did get majority support, and I will be very interested to see what the USSC's data shows as to how many persons are currently imprisoned as a result of acquitted conduct guideline enhancements.

A lot more got done by the USSC at its public meeting this afternoon, and I hope to update this post with some of the official announcements from the Commission about its work later this afternoon.

UPDATE:  Here is the full text of this press release that the US Sentencing Commission just posted to its website under the heading "Commission Votes Unanimously to Pass Package of Reforms
Including Limit on Use of Acquitted Conduct in Sentencing Guidelines":

The bipartisan United States Sentencing Commission voted unanimously today to prohibit conduct for which a person was acquitted in federal court from being used in calculating a sentence range under the federal guidelines. The Commission’s seven members also joined together to pass a range of additional reforms, including those that bring uniformity to sentencing for certain gun and financial crimes and provide a potential downward departure based on age. “The reforms passed today reflect a bipartisan commitment to creating a more effective and just sentencing system,” said Commission Chair Judge Carlton W. Reeves. Watch the public meeting.

“Not guilty means not guilty,” said Chair Reeves. “By enshrining this basic fact within the federal sentencing guidelines, the Commission is taking an important step to protect the credibility of our courts and criminal justice system.” This reform comes amid robust debate on acquitted conduct from across the country.  Last year, several Supreme Court Justices called for the Commission to address acquitted conduct, while a bipartisan group of legislators in Congress introduced a bill limiting the use of acquitted conduct in sentencing.

In addition to limiting the use of acquitted conduct, the Commission revised its policy statement on age, permitting judges to downward depart based on age if appropriate in light of today’s richer understanding of the science and data surrounding youthful individuals, including recognition that cognitive changes lasting into the mid-20s affect individual behavior, culpability and the age-crime curve.  The Commission also moved commentary regarding the definition of “loss” to the body of the fraud, theft, and property destruction guideline to ensure courts uniformly calculate loss amounts.  And the Commission addressed a circuit conflict over how to properly punish crimes involving weapons with altered or obliterated serial numbers.

These and all other amendments passed by the Commission today will be posted here.  The Commission will deliver amendments to Congress by May 1, 2024.  If Congress does not act to disapprove the changes, they will go into effect on November 1, 2024.

Senator Kennedy introduces "Consensus in Sentencing Act" to increase USSC votes needed for guideline amendments

A helpful colleague alerted me to this fascinating new press release from the office of US Senator John Kennedy discussing the introduction of some fascinating new proposed legislation.  Here are the details from the press release reprinted here in full:

WASHINGTON – Sen. John Kennedy (R-La.), a member of the Senate Judiciary Committee, today introduced the Consensus in Sentencing Act to require the U.S. Sentencing Commission to achieve bipartisan agreement to make major policy changes.

The legislation would amend 28 U.S.C. § 994(a) to require that amendments to the Sentencing Guidelines receive five votes from the Commission’s seven voting members. 

“The Sentencing Commission for decades strove to achieve bipartisan agreement when adopting amendments to the Sentencing Guidelines. In recent years, the Commission has lost its way and begun forcing through amendments on party-line votes. My bill would help the Sentencing Commission revive its consensus-building culture,” said Kennedy. 

Background: 

• The Sentencing Commission is made up of seven voting members. No more than four members can belong to the same political party. 

• In a sharp break from its traditional bipartisan practices, the Commission’s current leadership has forced through several major policy changes to federal sentencing law on a party-line basis.

• The Commission is currently considering several other major proposed changes.

Sens. Ted Cruz (R-Texas), John Cornyn (R-Texas), Tom Cotton (R-Ark.) and Marco Rubio (R-Fla.) cosponsored the legislation.

Full text of the Consensus in Sentencing Act is available here. 

I am pretty sure that recent US Sentencing Commission votes on a 4-3 basis were the adoption of the new sentence reduction (compassionate release) guidelines and the decision to make new criminal history rules retroactive. I believe all other actions by the current Commission have been unanimous, but I am not entirely sure about all vote tallies.

This bill has been introducted the day before the Commission is scheduled to conduct a public meeting with an agenda that includes "Vote to Promulgate Proposed Amendments."  The timing here cannot be pure coincidence, and I wonder if we should now expect some split votes (or not expect split votes) on some of these proposed amendment topics (eg, perhaps there is an proposed amendment on acquitted conduct that is driving controversy beyond the wall of the USSC building and all the way up to Capitol Hill).

I doubt that this bill to require five votes for guideline amendments will get enacted anytime soon, if ever.  But the bill's very introduction highlights that this active new Commission is garnering notable attention for its notable activity.

Call (again) for papers: Federal Sentencing Reporter issue on "Booker at 20"

In this prior post a couple of weeks ago, I set out a call for papers for a forthcoming issue of the Federal Sentencing Reporter to note (and celebrate? criticize?) the federal sentencing system's 20 years of functioning under the rules created in Booker.  I plan to repost this call every few weeks until the deadline thoward the end of May.  So:

The US Supreme Court's January 2005 decision in United States v. Booker ushered in a new era for federal sentencing.  Through a dual set of dueling 5-4 opinions, Booker made the guidelines “effectively advisory,” rather than “mandatory,”  after the Court concluded that judicial fact-finding to increase mandatory guideline ranges violated the Fifth and Sixth Amendments.  The Court’s opinion essentially invited Congress to rework the federal sentencing system in the wake of this ruling, but the Booker advisory guideline system has proved remarkably durable: the mandatory guideline system was operational for 16 years, but we are now approaching the 20th anniversary of Booker and the advisory guideline system it created.

Though constitutionally and functionally a sea change, the Booker ruling has seemingly had a relatively limited effect on sentence severity and reliance on imprisonment in the federal system.  Data from the US Sentencing Commission reveal that in fiscal year 2003, the last full year of data before the disruptions of Booker and its predecessor ruling in Blakely v. Washington, just over 69,000 persons were sentenced in federal courts, with nearly 87% receiving a prison term and with the average prison term being 48 months.  Data from fiscal year 2023, the latest full year of federal sentencing data assembled by the Commission, indicate that just over 64,000 persons were sentenced in federal courts with nearly 93% receiving a prison term and with the average prison term being 52 months.  The relative consistency of federal sentencing outcomes in the Booker era is striking, especially given that Congress enacted two notable sentence-reducing statutes in this period through the Fair Sentencing Act of 2010 and the First Step Act of 2018.

Still, sentencing below guideline ranges has increased significantly in the Booker era, and lawyers and sentencing judges now place greater emphasis on the statutory sentencing factors of 18 USC § 3553(a) and relatively less emphasis on guideline particulars.  Data from FY 2023 indicate that only 42% of sentences are imposed within the guideline range, though the same Commission data reveal that the guidelines continue to exert a kind of gravitational pull on sentence lengths even though not regularly followed.  And, of course, Booker did not directly impact the force of statutory mandatory minimums, which still shape and cast shadows on plea bargaining and other aspects of the federal sentencing process.  

Nearly 20 years have passed since Booker, and the editors of the Federal Sentencing Reporter are eager to invite judges, lawyers, other sentencing practitioners, legal academics, and sentencing researchers, to share thoughts on “Booker at 20” for publication in an early 2025 FSR issue.  FSR commentaries for this issue could tackle foundational issues (such as the Court’s ruling in Booker and follow-up cases), discrete application issues (such as why certain advisory guidelines are more likely to be followed or ignored), institutional concerns (such as how Congress and the Commission and the Justice Department have responded to Booker), or any other topic of interest or concern to modern federal sentencing policy and practice.  FSR welcomes commentaries from all perspectives, including insights from sentencing experiences (with or without guidelines) in the states and other countries.  Everyone with an informed interest in sentencing law and practice is encouraged to submit a commentary.

FSR articles are typically brief — 2000 to 5000 words, though they can run longer — with light use of citations in the form of endnotes.  The pieces are designed to be read by busy stakeholders, including lawyers, judges, scholars, and legislators (as well as, of course, members and staff of the US Sentencing Commission).  Priority will be given to drafts submitted by May 28, 2024, and later submissions will be considered as space permits.  Submissions should be sent electronically to [email protected] with a clear indication of the author and the author’s professional affiliation.

Lots of notable new items on the US Sentencing Commission's website including geographic FY 2023 sentencing data

Though we are still a week away from hearing from the US Sentencing Commission about possible new amendments to the US Sentencing Guidelines, I noted that the Commission has updated its website with a bunch of new items that seemed worth flagging.  These are drawn from the new items scroll from the USSC website homepage:

TRAINING SESSIONS ARCHIVE (April 8, 2024)

You can now explore an archive of the Commission's recorded training sessions. Use the filters within the archive to find the training session that meets your specific needs. Learn More

PROBLEM-SOLVING COURTS PODCAST MINISERIES (April 9, 2024)

In this podcast miniseries, Commission staff chat with the federal judges who lead the problem-solving court programs available around the country. Parts One through Seven are out now!  Listen Here

FY23 GEOGRAPHIC SENTENCING DATA (April 8, 2024)

These data reports compare fiscal year 2023 sentencing statistics for each federal circuit, district, and state to the nation as a whole. Learn More

BASICS OF CRIMINAL HISTORY (April 8, 2024)

This updated eLearning module uses real-world scenarios to illustrate the basics of the criminal history rules as amended in 2023. Learn More

I find all the USSC's materials and content interesting, but my data nerdiness really gets hit by the data reports page with fiscal year 2023 sentencing statistics for each federal circuit, district, and state.  That page includes a US map that allows you to see that the border district of Maine had only 116 federal sentencings in FY 2023, whereas the border district of the Western District of Texas had 7,539 federal sentencings in FY 2023.  And that the District Utah had more federal sentencings in FY 2023 sentencings (761) than did New Jersey (723), even though New Jersey has nearly three times the overall population as Utah.  

Lots of (little?) news and updates from the US Sentencing Commission

This morning I received an email from the US Sentencing Commission with some items that seemed blogworthy:

Meeting Rescheduled

Notice of Public Meeting

The Commission has rescheduled its last public meeting of the 2023-2024 amendment year for April 17 at 1:30 pm (ET).  At the meeting, Commissioners may vote to promulgate amendments to the federal sentencing guidelines. The meeting will be held in the Thurgood Marshall Federal Judiciary Building and will be streamed live.

New Data

IDA and JSIN Updates

The Commission has updated the Interactive Data Analyzer (IDA) and Judiciary Sentencing Information (JSIN). IDA now offers a brand new section presenting information on the prior convictions of individuals sentenced in the federal system. Visitors can also explore new data by the economic crime subtypes found under §2B1.1.

As previously noted in this post, the USSC had initially scheduled its concluding public meeting of the 2023-2024 amendment cycle, which includes "Vote to Promulgate Proposed Amendments," for April 10.  But now we have to wait another week to see if we get a vote on an acquitted conduct amendment and perhaps others from the Commission.

In the meantime, federal sentencing data junkies have the USSC's FY24 First Quarterly Data Report to check out, and this is a "preliminary data report [that] reflects information received on individuals sentenced through the first quarter of fiscal year 2024 (October 1, 2023 through December 31, 2023)."  My too-quick review of the data suggested that there are not big surprises (save perhaps a little dip in the total number of cases sentenced).

Call for Papers: Federal Sentencing Reporter issue on "Booker at 20"

The US Supreme Court's January 2005 decision in United States v. Booker ushered in a new era for federal sentencing.  Through a dual set of dueling 5-4 opinions, Booker made the guidelines “effectively advisory,” rather than “mandatory,”  after the Court concluded that judicial fact-finding to increase mandatory guideline ranges violated the Fifth and Sixth Amendments.   The Court’s opinion essentially invited Congress to rework the federal sentencing system in the wake of this ruling, but the Booker advisory guideline system has proved remarkably durable: the mandatory guideline system was operational for 16 years, but we are now approaching the 20th anniversary of Booker and the advisory guideline system it created.

Though constitutionally and functionally a sea change, the Booker ruling has seemingly had a relatively limited effect on sentence severity and reliance on imprisonment in the federal system.  Data from the US Sentencing Commission reveal that in fiscal year 2003, the last full year of data before the disruptions of Booker and its predecessor ruling in Blakely v. Washington, just over 69,000 persons were sentenced in federal courts, with nearly 87% receiving a prison term and with the average prison term being 48 months.  Data from fiscal year 2023, the latest full year of federal sentencing data assembled by the Commission, indicate that just over 64,000 persons were sentenced in federal courts with nearly 93% receiving a prison term and with the average prison term being 52 months.  The relative consistency of federal sentencing outcomes in the Booker era is striking, especially given that Congress enacted two notable sentence-reducing statutes in this period through the Fair Sentencing Act of 2010 and the First Step Act of 2018.

Still, sentencing below guideline ranges has increased significantly in the Booker era, and lawyers and sentencing judges now place greater emphasis on the statutory sentencing factors of 18 USC § 3553(a) and relatively less emphasis on guideline particulars.  Data from FY 2023 indicate that only 42% of sentences are imposed within the guideline range, though the same Commission data reveal that the guidelines continue to exert a kind of gravitational pull on sentence lengths even though not regularly followed.  And, of course, Booker did not directly impact the force of statutory mandatory minimums, which still shape and cast shadows on plea bargaining and other aspects of the federal sentencing process.  

Nearly 20 years have passed since Booker, and the editors of the Federal Sentencing Reporter are eager to invite judges, lawyers, other sentencing practitioners, legal academics, and sentencing researchers, to share thoughts on “Booker at 20” for publication in an early 2025 FSR issue.  FSR commentaries for this issue could tackle foundational issues (such as the Court’s ruling in Booker and follow-up cases), discrete application issues (such as why certain advisory guidelines are more likely to be followed or ignored), institutional concerns (such as how Congress and the Commission and the Justice Department have responded to Booker), or any other topic of interest or concern to modern federal sentencing policy and practice.  FSR welcomes commentaries from all perspectives, including insights from sentencing experiences (with or without guidelines) in the states and other countries.  Everyone with an informed interest in sentencing law and practice is encouraged to submit a commentary.

FSR articles are typically brief — 2000 to 5000 words, though they can run longer — with light use of citations in the form of endnotes.  The pieces are designed to be read by busy stakeholders, including lawyers, judges, scholars, and legislators (as well as, of course, members and staff of the US Sentencing Commission).  Priority will be given to drafts submitted by May 28, 2024, and later submissions will be considered as space permits.  Submissions should be sent electronically to [email protected] with a clear indication of the author and the author’s professional affiliation.

US Sentencing Commissions publishes 2023 Annual Report and new retroactivity data on 2023 criminal history amendments

This afternoon, the US Sentencing Commission sent out an email that flagged a bunch of notable new materials on the USSC's website.  Data fans will be especially interested in a lot of these new items, which I link below.  But everyone should mark their calendars for April 10, 2024; the USSC has now created a key date though this Public Meeting Notice.  This will be the last scheduled public meeting of the 2023-2024 amendment cycle for the Commission and on the agenda is "Vote to Promulgate Proposed Amendments."  I am hoping an acquitted conduct amendment will be among those getting a positive vote from the Commission, but we will need to tune in on April 10 to see.

In the meantime, USSC and federal sentencing data junkies have some new items to check out, and here is how the USSC's email reports on these new materials:

(Published March 25, 2024) - The 2023 Annual Report highlights the Commission’s major activities and accomplishments during fiscal year 2023.  The Annual Report also includes a new in-depth analysis of federal sentencing trends and noteworthy shifts in the caseload.

(Published March 25, 2024) - The Commission has published its first analysis of motions for a reduced sentence pursuant to retroactive application of Parts A and B of Amendment 821, relating to Criminal History (effective November 1, 2023).

• NEW Retroactivity Data Relating to Part A, "Status Points"
• NEW Retroactivity Data Relating to Part B, "Zero-Point Offenders"

(Published March 25, 2024) - The Commission continues to release additional fiscal year 2023 federal sentencing data following publication of the 2023 Sourcebook of Federal Sentencing Statistics earlier this month.

• Final FY23 Quarterly Data Report 

Rounding up a few sentencing speculations a few days before Sam Bankman-Fried's sentencing

Though we are still a few days from the high-profile sentencing of former FTX CEO Sam Bankman-Fried, I have already seen some lengthy press pieces discussing the sentencing filings and speculating about how US District Judge Lewis Kaplan with weigh competiting arguments.  Here is a round up:

From Business Insider, "FTX's victims may get all their money back. The judge sentencing Sam Bankman-Fried might not care."

From CoinDesk, "U.S. Government's Legal Precedents Don't Support Lengthy Prison Term, Bankman-Fried's Defense Argues"

From Inc., "Is Sam Bankman-Fried a 'Super-Villain' or Just a Bad Trader?"

From Unchained, "SBF’s Prison Sentencing Is Coming Up. How Many Years Will He Get?"

I remain inclined to put the over/under for an imprisonment term here at 25 years, in part because I ccan readily imagine the sentence being somewhat shorter or somewhat longer. 

Prior related posts:

• You be the judge: what federal sentence for Sam Bankman-Fried after guilty verdict on seven criminal fraud counts? 
• Some early chatter and speculation about Sam Bankman-Fried's coming federal sentencing 
• Should a bounce in crypto markets mean a much lower federal sentence for Sam Bankman-Fried? 
• Lawyers for Sam Bankman-Fried in lengthy memo request "a sentence that returns Sam promptly to a productive role in society"
• Some notable developments and commentary on Sam Bankman-Fried's coming sentencing
• Feds argue in sentencing memo that "legitimate purposes of punishment require a sentence of 40 to 50 years’ imprisonment" for Sam Bankman-Fried

"The Delinquent Guidelines: Calling on the U.S. Sentencing Commission to Stop Counting Defendants’ Prior Offenses Committed Before Age 18"

The title of this post is the title of this new article authored by Ian Marcus Amelkin and Nicholas Pugliese now available via SSRN. Here is its abstract:

The United States Sentencing Guidelines’ recidivism provisions recommend harsher punishment for defendants with a prior criminal record. The Guidelines authorize an accounting not only of a federal defendant’s criminal record as an adult, but also as a child. Prior offenses committed before age 18 enhance sentences for thousands of people each year, but the practice has not been widely explored in the academic literature. A federal defendant’s juvenile record can lead to a higher Guidelines range through a variety of mechanisms: it can increase a defendant’s criminal history category, increase the crime’s total offense level, qualify the individual for “career offender” status, and deny relief from mandatory minimum sentences.

The use of pre-18 priors to enhance later federal sentences is both constitutionally suspect and misguided public policy. First, the practice stands in tension with Supreme Court precedent recognizing “that children are constitutionally different from adults for purposes of sentencing” in a way that makes them “less deserving of the most severe punishments.” Second, it is unequitable to people of color, who are more likely to be prosecuted for their pre-18 conduct than their white counterparts who commit similar acts. Third, it generates unequal treatment between similarly-situated defendants, a result at odds with the Guidelines’ “primary goal” of fostering uniformity in sentencing. Finally, it raises problems of notice given that pre-18 offenders are not told that their juvenile or youthful offender cases, which are not “convictions” under most states’ laws, can later be used against them to enhance a future federal sentence.

Now that the Sentencing Commission is back in action following a three-and-a-half-year hiatus, this article recommends that the Commission amend the Guidelines to stop counting pre-18 prior offenses.

Intriguing spread in outcomes after Mississippi "Goon Squad" sentencings

I have not followed at all the ugly details involved in the so-called "Goon Squad" case from Mississippi, but a number of folks have flagged these cases for me this week as six police officers have been sentenced in federal court for abusing two men.  This new CBS News article provides some details under the headline "All 6 officers from Mississippi "Goon Squad" have been sentenced to prison for torturing 2 Black men."  Here are the basics:

Sentencing has concluded for the six white former officers in Mississippi who pleaded guilty to breaking into a home without a warrant and torturing two Black men.

High-ranking former deputy Brett McAlpin, 53, was the fifth former law enforcement officer sentenced this week by U.S. District Judge Tom Lee after pleading guilty to the attack, which involved beatings, repeated uses of stun guns and assaults with a sex toy before one of the victims was shot in the mouth. The final member of the group, 32-year-old former Richland police officer Joshua Hartfield, was given a sentence of about 10 years on Thursday afternoon....

Lee has also sentenced four other former law enforcement officers who were involved in the attack.  Christian Dedmon was sentenced to 40 years in prison for his role in that attack and another incident in December 2022.  Hunter Elward was sentenced to over 20 years in prison.  Two other officers, Jeffrey Middleton and Daniel Opdyke, were sentenced to 17.5 years in prison each.

For each of the deputies sentenced so far, Lee has handed down prison terms near the top of the sentencing guidelines. Lee has previously called the officers' actions "egregious and despicable." The attack involved beatings, repeated uses of stun guns and assaults with a sex toy before one of the victims was shot in the mouth in a mock execution gone awry.

Once inside, the officers mocked the victims with racial slurs and shocked them with stun guns. They handcuffed them and poured milk, alcohol and chocolate syrup over their faces. Dedmon and Opdyke assaulted them with a sex toy. They forced them to strip naked and shower together to conceal the mess, and Hartfield guarded the bathroom door to make sure the men didn't escape.

After Elward shot Jenkins in the mouth, lacerating his tongue and breaking his jaw, they devised a coverup. McAlpin pressured Parker to go along with it, asking him to keep quiet in exchange for his freedom. The deputies agreed to plant drugs, and false charges stood against Jenkins and Parker for months. McAlpin and Middleton, the oldest men of the group, threatened to kill the other officers if they spoke up....

Attorneys for several of the deputies said their clients became ensnared in a culture of corruption that was not only permitted, but encouraged by leaders within the sheriff's office.

Based on this article, I surmise the sentencing outcomes (and apparently the guideline calculations) for this joint criminal activity varied considerably because the roles of each defendant varied considerably (and it seems the one defendant who got the very longest sentence was being sentenced for two incidents).   I would be eager to hear in the comments from anyone who has followed these cases more closely about more of the sentencing details.

Feds argue in sentencing memo that "legitimate purposes of punishment require a sentence of 40 to 50 years’ imprisonment" for Sam Bankman-Fried

The federal court in the Southern District of New York is scheduled, in less than two week, to sentence Sam Bankman-Fried following his trial conviction on multiple fraud charnges.  A few weeks ago, as noted here, SBF's lawyers submitted a lengthy sentencing memo arguing that his advisory guideline range is 63-78 months that that "a sentence that returns Sam promptly to a productive role in society would be sufficient, but not greater than necessary, to comply with the purposes of sentencing."  

Unsurprisingly, federal prosecutors have a different sentencing perspective.  And, in the run-up to the March 28 sentencing, it has not filled this even longer sentencing memorandum.  The argue that SBF's guideline range is literally off the charts:

Based on the foregoing, the adjusted offense subtotal is 60.  Because any offense level in excess of 43 is treated as an offense level of 43, 43 is the total applicable offense level. (PSR ¶ 89).  The defendant’s criminal history score is zero, which puts him in Criminal History Category I. (PSR ¶ 92).  Based upon these calculations, Bankman-Fried’s advisory Guidelines imprisonment range is life. (PSR ¶ 129).  However, because the statutorily authorized maximum sentence is 110 years’ imprisonment, which is less than life imprisonment, the applicable Guidelines sentence is 110 years’ (1,320 months) imprisonment. U.S.S.G. §§ 5G1.1(a), 5G1.2(d)

Notably, though, federal prosecutors do not ultimately advocate for a sentence of imprisonment for 110 years for SBF.  As explained at the end of its preliminary statement, the feds think that less than half of this term will do the trick:

The scope, duration, nature, and sheer number of Bankman-Fried’s crimes, the resulting harm they have caused, the willful disregard of the rule of law, and the absence of countervailing mitigating circumstances render him exceptionally deserving of a sentence that is sufficiently severe to provide justice for the defendant’s crimes and to dissuade others from committing similar crimes, and that will permit the defendant to return to liberty only after society can be assured that he will not have the opportunity to turn back to fraud and deceit.  Although it is unlikely (but not impossible) that the defendant will work in finance again, and will likely forfeit all of his ill-gotten gains, justice requires that he receive a prison sentence commensurate with the extraordinary dimensions of his crimes.  For these reasons, the legitimate purposes of punishment require a sentence of 40 to 50 years’ imprisonment.

Because a "split the difference" approach often serves as a reasonable first guess for a contested sentencing outcome, I am tempted to put the over/under for an imprisonment term here at 25 years.  I am not familiar enough with Judge Lewis Kaplan's sentencing history to make a bolder prediction; folks in the comments are certainly welcome to do so.

Prior related posts:

• You be the judge: what federal sentence for Sam Bankman-Fried after guilty verdict on seven criminal fraud counts? 
• Some early chatter and speculation about Sam Bankman-Fried's coming federal sentencing 
• Should a bounce in crypto markets mean a much lower federal sentence for Sam Bankman-Fried? 
• Lawyers for Sam Bankman-Fried in lengthy memo request "a sentence that returns Sam promptly to a productive role in society"
• Some notable developments and commentary on Sam Bankman-Fried's coming sentencing