Federal Sentencing Guidelines: Mandatory or Not?

Federal judges have discretion over the sentences they impose, despite the Guidelines' mandatory appearance.

By , Attorney · Santa Clara University School of Law

Congress passed The Sentencing Reform Act of 1984 in response to concerns that federal judges' sentences tended to be too lenient and vary too much from one locale to another. The law created a Sentencing Commission, which produced a Guidelines Manual that specifies sentences for almost all federal crimes. The manual uses a points system that "awards" points according to type of offense, how it was committed, and an offender's background. An offender who grades out at only one point can be sentenced to no more than six months in jail, while an offender who grades out at the maximum 43 points receives a life sentence.

This article gives you an overview of the federal sentencing guidelines. For more details, see our article, Federal Sentencing Guidelines, which includes sentence ranges.

Mandatory, or Not?

Congress intended the Guidelines Manual to be mandatory. However, many judges complained that in practice it was often too harsh and too rigid. In the case of U.S. v. Booker (2005), the U.S. Supreme Court imposed two major limits on the Guidelines Manual's reach.

Advisory only

First, the sentences specified in the Guidelines Manual are advisory, not mandatory. That is, federal judges may consult the manual but they are not bound to impose the sentences it calls for. The upshot of Booker is that federal court trial judges often have considerable sentencing discretion, and appellate court judges can overturn trial judges' sentences only for an abuse of discretion (Gall v. U.S., U.S. Sup. Ct. 2007).

For example, if a federal trial judge believes that the recommended punishment for possession of crack cocaine is unduly harsh—as compared to the recommended punishment for powder cocaine—the trial judge has discretion to give a lesser sentence for possession of crack cocaine, and the judge's decision is final even if it is outside the guidelines' range, as long as it is reasonable (Kimbrough v. U.S., U.S. Sup. Ct. 2007). At the same time, sentences that are within the guidelines' range are presumed to be reasonable (Rita v. U.S., U.S. Sup. Ct. 2007).

Federal courts are in disagreement about whether a federal law that provides for lighter punishment for some minor drug offenses is mandatory. (For a decision ruling that this law is mandatory, see United States v. Cardenas-Juarez (9th Cir. 2006).)

Enhancements: They must be proved

Second, a judge cannot "enhance" a sentence unless an offender has either admitted to the facts giving rise to the enhancement or a jury has concluded that those facts are true. For example, a judge may consider increasing a sentence because an offender injured someone in the course of committing the crime. In order to stiffen the sentence for this reason, the offender either has to admit that the injury occurred, or, in response to evidence at trial, the jury would have to conclude that the offender caused the injury.

In 2006, a report issued by the U.S. Sentencing Commission concluded that despite the Booker decision, most judges hand down sentences that conform to the Guidelines Manual. Moreover, the average length of sentences has increased slightly since the decision.

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