• An Introduction to Federal Sentencing (Tenth Edition) (March 2008)
  by Henry J. Bemporad, Federal Public Defender, Western District of Texas

• After Irizarry: (1) Notice of All Facts Must Still Be Given in the PSR (2) Object and Seek a Continuance if Any Unnoticed Facts Arise (3) Argue that the Reason is a "Departure" (August 11, 2008)
  by Amy Baron-Evans, National Federal Defender Sentencing Resource Counsel
  In Irizarry v. United States, 553 U.S. __, 128 S. Ct. 2198 (2008), the Supreme Court held that the notice requirement of Federal Rule of Criminal Procedure 32(h) does not extend to a "variance" from the recommended guidelines range. This article emphasizes the distinction between notice of a judge's contemplation of a variance, and notice of all facts relevant to sentencing, and argues that the latter is still required even after Irizarry.
  

• Four Steps Towards Better Advocacy: How to Approach Your Client’s Sentencing After (August 1, 2008)
  by Molly L. Roth, Assistant Federal Public Defender, W.D. TX
  When preparing for sentencing post-Booker, attorneys should be well-versed in all the factors listed in 18 U.S.C. § 3553(a), have a working understanding of the federal sentencing guidelines, and be prepared to investigate mitigation facts for creative presentation to the sentencing court. This brief guide offers four steps for lawyers to take as they analyze their cases in preparation for sentencing. It also links to in-depth resources that thoroughly discuss recent Supreme Court case law, explain the history and functioning of the guidelines, and offer attorneys concrete investigation tips.
  
  
• Rita, Gall and Kimbrough: A Chance for Real Sentencing Improvements (May 11, 2008)
  by Amy Baron-Evans, National Federal Defender Sentencing Resource Counsel
  Part I of this article gives an overview of how recent Supreme Court cases clarify that Section 3553(a) is the controlling law and the guidelines are merely advisory. Part II outlines the procedural nuts and bolts set forth by these cases, and presents arguments for improved procedural safeguards. Part III describes the as-applied Sixth Amendment challenge invited by Justice Scalia in Rita and Gall. Part IV describes the Court’s invitation to use empirical and policy critiques of the guidelines as sword and shield, and offers suggestions for how to do so.
  
  For additional discussion of the Supreme Court's post-Booker caselaw and tips for effective sentencing advocacy in light of this caselaw, see What is Lovely (and Not So Lovely) About Rita – Implications for Gall, Kimbrough and Future Cases (September 12, 2007). (To access briefs and data referenced in the Rita article, please click here .) For resources demonstrating that particular guidelines are not based on empirical evidence, do not advance sentencing purposes, and do not avoid unwarranted disparities or unwarranted similarities, see The Continuing Struggle for Just, Effective and Constitutional Sentencing After United States v. Booker (August 2006).
  
  
• Notable Cases Applying Gall and Kimbrough from December 10, 2007 to February 12, 2008
  by Jennifer Coffin, National Federal Defender Sentencing Resource Counsel, Research and Writing Specialist
  This memorandum provides an outline and analysis of circuit court decisions applying Gall and Kimbrough.
  
  
• Letter Stating the Government's Position on the Career Offender Guideline, Docketed March 17, 2008 in United States v. Funk, No. 05-3708, 3709 (6th Cir.)
  In this letter from a U.S. Attorneys' Office to the Sixth Circuit Court of Appeals in a pending case, the stated "position of the United States" is that the career offender guideline is not mandatory, and that "Kimbrough's reference to [§ 994(h)] reflected the conclusion that Congress intended the Guidelines to reflect the policy stated in Section 994(h), not that the guideline implementing that policy binds federal courts." (Emphasis in original.)
  
  
• Preserving the Sixth Amendment Claim for Proof of Prior Convictions (February 12, 2008)
  In a number of federal prosecutions -- including immigration, firearms, and child pornography cases -- a client's sentence may be increased on the basis of prior convictions. This may violate the Sixth Amendment's jury trial and reasonable doubt requirements. In this article from the Ninth Circuit Blog, Steve Sady (Chief Deputy Federal Public Defender, D. OR) argues that practitioners should continue to make and preserve the Sixth Amendment claim that the fact of a prior conviction must be found by the jury.
  
  
• Brief on Challenging the Use of Acquitted Conduct as a Basis for Enhancement Under the Sentencing Guidelines
  Appellant's Supplemental Brief in United States v. White (No. 05-6596, 6th Cir. Jan. 2008)
  
  
• Federal Public Defender’s Office Sentencing Resource Manual: Using Statistics and Studies to Redefine the Purposes of Sentencing (last updated September 2008)
  Edited by Jennifer Coffin, Research & Writing Specialist, Federal Public Defender's Office, M.D. TN;
  Sarah Gannett, Research & Writing Specialist, Federal Public Defender's Office, D. MD; Molly Roth, Assistant Federal Public Defender, W.D. TX
  A compilation of useful resources that federal defense attorneys can consult when drafting sentencing memoranda and making oral arguments for sentences below the advisory guideline range.
  
  
• The Supreme Court, the Senators and DOJ All Agree: Judges Must Be Free to Disagree with the Sentencing Commission as a Matter of Policy in Order to Avoid a Sixth Amendment Violation (April 2007)
  by Amy Baron-Evans, National Federal Defender Sentencing Resource Counsel
  
  
• Sentencing Post-Booker (April 10, 2006)
  by Amy Baron-Evans, National Federal Defender Sentencing Resource Counsel
  
  
• Section 3553(a)(2) and the USSC's newly released reports on recidivism (January 2006)
  by Amy Baron-Evans, National Federal Defender Sentencing Resource Counsel
  This article explores the use of the U.S. Sentencing Commission's own recidivism studies to argue that the criminal history rules yield a longer sentence than that required under 18 U.S.C. § 3553(a).
  
  
• Supplementary Report on the Initial Sentencing Guidelines and Policy Statements (1987)
  United States Sentencing Commission
  This publication was issued by the Commission in 1987, shortly after the first edition of the guidelines was submitted to Congress. It is a primary source for "legislative history" of the guidelines. It supplements and further explains the guidelines, policy statements and commentary, and includes the results of the Commission's "past practice study" mentioned by Justice Breyer in Rita v. United States, 127 S. Ct. 2456, 2464 (2007).
  
  
• An Analysis of Non-Violent Drug Offenders with Minimal Criminal Histories: Part I & Part II (February 4, 1994)
  (U.S. Department of Justice) (finding that a substantial number of minor role drug offenders with minimal criminal histories "are much less likely than high-level defendants to re-offend" and "a short prison sentence is just as likely to deter them from future offending as a long prison sentence.")
  
  
• The Truth About Fast Track
  
  
• Testimony from Joint Economic Committee Hearing on Negative Impacts of Mass Incarceration
  On October 4, 2007, the joint House and Senate Economic Committee held a hearing to "examine why the United States has such a disproportionate share of the world's prison population, as well as ways to address this issue that responsibly balance public safety and the high social and economic costs of imprisonment." The testimony and data from this hearing provide valuable information that may help you create or support sentencing arguments.

Deconstructing the Guidelines is a special project undertaken by National Federal Defender Sentencing Resource Counsel. The papers in this section critically examine the history and basis of the most frequently encountered provisions of the U.S. Sentencing Guidelines. Judges are now invited to consider arguments that the guideline itself fails properly to reflect § 3553(a) considerations, reflects an unsound judgment, does not treat defendant characteristics in the proper way, or that a different sentence is appropriate regardless. Rita v. United States , 127 S. Ct. 2456, 2465, 2468 (2007). Judges "may vary [from Guidelines ranges] based solely on policy considerations, including disagreements with the Guidelines," Kimbrough v. United States, 128 S. Ct. 558, 570 (2007) (internal quotation marks omitted), and when they do, the courts of appeals may not "grant greater factfinding leeway to [the Commission] than to [the] district judge." Rita , 127 S. Ct. at 2463. Whatever respect a guideline may deserve depends on whether the Commission acted in "the exercise of its characteristic institutional role." Kimbrough, 128 S. Ct. at 575. This role has two basic components: (1) reliance on empirical evidence of pre-guidelines sentencing practice, and (2) review and revision in light of judicial decisions, sentencing data, and comments from participants and experts in the field. Rita, 127 S. Ct. at 2464-65. "Notably, not all of the Guidelines are tied to this empirical evidence." Gall v. United States, 128 S. Ct. 586, 594 n.2 (2007). When a guideline is not the product of "empirical data and national experience," it is not an abuse of discretion to conclude that it fails to achieve the § 3553(a)'s purposes, even in "a mine-run case." Kimbrough, 128 S. Ct. at 575.

In addition to the papers linked below, National Federal Defender Resource Counsel is working on papers deconstructing other guidelines. Look for these papers in the upcoming months. In the meantime, see The Continuing Struggle for Just, Effective and Constitutional Sentencing After United States v. Booker (August 2006) for evidence and resources supporting the argument that other guidelines are not based on empirical evidence, do not advance sentencing purposes, and do not avoid unwarranted disparities or unwarranted similarities.

• Deconstructing the Myth of Careful Study: A Primer on the Flawed Progression of the Child Pornography Guidelines (revised July 3, 2008) and Table of Amendments
  by Troy Stabenow, Assistant Federal Public Defender, W.D. MO
  
  
• Deconstructing the Career Offender Guideline (August 29, 2008)
  by Amy Baron-Evans, Jennifer Coffin, & Sara Noonan, National Federal Defender Sentencing Resource Counsel
  
  
• Deconstructing the Relevant Conduct Guideline: Challenging the Use of Uncharged and Acquitted Offenses in Sentencing (Revised August 11, 2008)
  by Amy Baron-Evans & Jennifer Niles Coffin, National Federal Defender Sentencing Resource Counsel
  
  
• Amicus Brief, United States v. Tomko
  National Association of Criminal Defense Lawyers; Third Circuit Federal Public & Community Defenders
  (In the context of a particular case, this brief deconstructs the tax guidelines as well as the guidelines' failure to provide for probation.)
  
  
• Senate Report on the Sentencing Reform Act of 1984
  (a source of legislative history for the Deconstructing the Guidelines project)

• Developing mitigation evidence
  
  
• Persuasive writing/effective hearing
  
  
• Model documents

Even post-Booker, practitioners must understand how to correctly apply the advisory sentencing guidelines. This section will contain select articles addressing the application of a particular guideline or set of guidelines. For a comprehensive review of the law regarding guideline application issues, see Federal Sentencing Law and Practice (Thomas W. Hutchison, et al. eds., 2007), available at most law libraries and bookstores.

• Crack Cocaine Guideline Page
  
  
• Endangering Human Life & the Environment - A Sentencing Hearing Potential
  by Gene Gietzen, Forensic Scientist, Forensic Consulting Associates, Springfield, MO
  (describing usefulness of expert testimony in combating the endangering human life and the environment enhancement in meth lab cases)
  
  
• "Annotated" USSG § 2K2.1 & Commentary
  by Brent E. Newton, Assistant Federal Public Defender, S.D. TX
  (providing step-by-step instruction in applying § 2K2.1, the firearms guideline)
  
  
• Challenging the Upward Bumps: The Categorical Approach and Other Sentencing Strategies for Illegal Re-Entry (8 U.S.C. §1326) Cases
  by Francisco Morales, Assistant Federal Public Defender, W.D. TX



• Begay and Beyond: Chipping Away at "Crimes of Violence"
  by Timothy Crooks, Supervisory Assistant Federal Public Defender, S.D. TX; and Margaret Katze, Assistant Federal Public Defender, D. NM

Sentencing Commission Announces its Proposed Policy Priorities for 2009: The USSC has given notice of its proposed policy priorities for the 2009 guideline amendment cycle. These include: work on federal sentencing policy in light of Booker and its progeny, including recommending legislation concerning federal sentencing policy and studying mandatory minimum penalties; consideration of alternatives to incarceration; implementation of recently enacted crime legislation, including the Court Security Improvement Act of 2007; consideration of miscellaneous guideline application issues, such as commission of an offense while on release (§3C1.3); resolution of circuit conflicts; work on cocaine sentencing policy regarding the crack-powder disparity; and study of the definition of "crime of violence". The period for public comment concluded on September 8, 2008. Click here for the federal defender community's response to these priorities.

2008 Amendments: The USSC has voted to amend a number of sentencing guidelines, commentary and policy statements. Two, which relate to crack cocaine offenses, are effective as of May 1, 2008. The remaining amendments were sent to Congress on May 1, 2008 and, assuming Congressional approval, will take effect on November 1, 2008.

Text of all amendments can be found here. Analysis of the more significant amendments is below.

• Introduction to Chapter One (effective date: November 1, 2008)
  In this amendment, the Commission characterizes the role of the guidelines, their evolution, and their relevance in light of recent Supreme Court rulings in Booker, Rita, Gall, and Kimbrough. Practitioners should be aware that the Commission’s perception regarding both its role and the import of recent Supreme Court decisions is controversial, and should be prepared to address these concerns when challenging the validity of a guideline provision or the weight that should be afforded to guideline sentencing recommendations.
  
• Immigration Guideline (USSG §2L1.2) (effective date: November 1, 2008)
  This amendment alters the definitions of “crime of violence” and “drug-trafficking offense” as used in §2L1.2. The amended definition of crimes of violence added an explanatory parenthetical to the definition of forcible sex offenses which reads “including where consent to the conduct is not given or is not legally valid, such as where consent to the conduct is involuntary, incompetent, or coerced.” The amendment adds to the definition of drug-trafficking an "offer to sell." Both changes contradict some circuit case law. This amendment also includes a departure provision for situations where the guideline offense level overstates or understates the seriousness of the enhancing prior conviction. Practitioners should note how this amendment will increase advisory guideline sentencing ranges for certain clients starting November 1, and should also look for appropriate cases in which to raise the downward departure provision even prior to November 1.
  
  
• Disaster Fraud (amending USSG §2B1.1) (effective date: November 1, 2008)
  This amendment is a repromulgation of the temporary, emergency amendment that became effective on February 6. The amendment makes several changes to §2B1.1 as it relates to fraud offenses involving disaster relief or emergency benefits, and adds a downward departure provision where a defendant is also a victim of a major disaster or emergency. Practitioners should look for appropriate cases in which to raise the downward departure provision prior to November 1. Click here for an in-depth analysis of this amendment.
  
  
• New Crack-Marijuana Equivalency Table (commentary to USSG §2D1.1 and §1B1.10) (effective date: May 1, 2008)
  The amendment to §2D1.1's commentary remedies a major portion of the mathematical anomalies created by Amendment 706. Specifically, it proposes a change to the drug equivalency table to provide (as it did prior to Amendment 706) that 1 gram of crack cocaine is equal to 20 kilograms of marijuana, and then calls for a two-level decrease in the resulting offense level. The corresponding amendment to §1B1.10 proposes that this change be retroactive. Practitioners should note that this amendment does not resolve the within-range anomalies and the differing ratios between crack and powder cocaine in the drug quantity table. Click here for more on the mathematical anomalies.
  
  
• Other Proposed Guideline Amendments (effective date: November 1, 2008)
  The Commission proposed five amendments in addition to the five discussed above:
  • It voted to reference offenses under the new 18 U.S.C. § 227 (part of the Honest Leadership and Open Government Act of 2007) to §2C1.1.
  • It implemented the Animal Fighting Prohibition Enforcement Act of 2007 (which creates a new offense and increases penalties for existing offenses) by creating an additional offense level and setting forth a new ground for upward departure in §2E3.1.
  • It implemented the Court Security Improvement Act (which creates two new offenses) by adding enhancement provisions to §2A6.1 and §2H3.1. It also adds upward departure and cross-reference provisions to §2A6.1, and cross-reference and definitional instructions to §2H3.1.
  • It created in §2N2.1 an enhancement applicable when a defendant has a prior conviction for an offense under either the Federal Food, Drug, and Cosmetic Act or the Prescription Drug Marketing Act. It also amended this guideline provision to recommend an upward departure where the offense “created a substantial risk of bodily injury or death.”
  • It proposed a number of technical corrections to various guidelines.
    

Defender Recommendations to Sentencing Commission: The Federal Defender community frequently submits written comments to the USSC on a variety of matters, including proposed amendments to the guidelines. These submissions, which may provide ideas for challenging guideline sentences, can be accessed on our Defender Recommendations to Sentencing Commission page.

• The Presentence Investigation Report
  Publication 107 of the Office of Probation and Pretrial Services (March 2006)
  (a guide for U.S. probation officers in the preparation of presentence reports)

Occasionally counsel may represent a client who receives a sentence of probation. More often, clients will be sentenced to a term of imprisonment which will be followed by a term of supervised release. Supervised release is similar to probation in that it involves supervision by a federal probation officer, and requires adherence to conditions set by the court at the original sentencing hearing. Whether the client faces the prospect of a sentence to probation, or a sentence of imprisonment to be followed by a term of supervised release, counsel should be familiar with the law and mechanics of these modes of supervision so that, among other things, counsel may argue for appropriate conditions, advise the client of the ramifications of violating those conditions, and prepare the client for the rigors of federal supervision.

Further, from time to time counsel may be appointed to represent a client who has allegedly violated the conditions of probation or supervised release, and thus faces the potential consequences of revocation and incarceration. Effective advocacy in a revocation case includes an understanding of the process due a client in a revocation proceeding, a familiarity with the applicable statutes and sentencing guidelines, and, if a violation is conceded or proved, the thorough preparation and presentation of mitigating evidence.

Please visit our Probation/Supervised Release page for further information.