U.S. Sentencing Guidelines National Summary

(Data for the six-month period ending March 31, 2007)


The National Post-Booker Picture:
Do The Numbers Truly Show "Advisory" Sentencing Guidelines?

What are the odds of a federal defendant being sentenced within (or outside) the calculated U.S. Sentencing Guidelines range? When considering a trial or disposition, consider that early reliable data from the U.S. Sentencing Commission show:

Nationally, of every 100 federal sentencings in the six months ending March 31, 2007, federal judges stayed within the guideline range in 61.5% of the sentences, went below the Guidelines 37.1% of the time, and departed above the guidelines for just 1.5% sentencings (32,567 total sentences reported).

For those assessing the national sentencing climate, a closer look at that 37.1% block of below-Guideline sentences reveals these two important statistics:

  1. 25.1% of below-Guideline sentences were government sponsored departures (14.5% for substantial assistance under §5K1.1; 7.2% for fast track under §5K3.1; and 3.4% for "other" reasons) (8,150 total sentences) and
  2. 12.0% of below-Guideline sentences were not sponsored by the government. (3,910 sentences).

The nebulous category of "other" below-Guideline sentences (3.4% or 1,091 sentences) is troublesome. Commission staff define "government sponsored" generously. Regardless what the judicial officer's "Statement of Reasons" may actually provide, Commission staff will code the data and show government sponsorship if staff find the record shows; there were savings to the government; an early plea; deportation; waiver of indictment and/or appeal; a global disposition; another government motion; stipulations, or the disposition facilitated early release of material witness, among other reasons. Thus up to 3.4% of what Commission staff characterize as government-"sponsored" departures may not involve government action at all, reducing to 21.7% the government-sponsored motions, and increasing to 15.1% below Guideline sentences that the government did not support.

For those assessing how they might fare requesting a below-Guidelines sentence (without the government's help through an "officially" sponsored motion), the Commission staff makes sure statistical information difficult to develop. Of the 12.0% of below-Guideline sentences (3,910 cases) not sponsored by the U.S.:

  1. The Sentencing Commission used an "other" category or stated the information was unavailable in 2540 cases (64.9% of the 3,910 sentencings).
  2. The government did not object to a defense motion in 748 sentencings (19.1% of the sentencings), and
  3. The government's objection was not sustained in 892 sentencings (22.8%).

In other words, on a national basis, for that 12% of cases where the defense successfully requested a below-Guidelines sentence, the request was successful over a government objection at least about 23% of the time (and likely more frequently because complete data are hidden in the "other" category). Also, at least one in four times (again for that 12% of sentences) the government did not object on the record to the request for a below-Guidelines sentence. The data do not capture the percentage of instances in which the plea agreement permitted a defense request for departure, nor the percentage of instances where the request was made unsuccessfully.

iPreliminary Quarterly Data Report Through March 31, 2007, U.S. Sentencing Commission, Table 1. Statistics based on submission of 97.5 % of requested documents submitted to U.S. Sentencing Commission (Judgment, Statement of Reasons, Plea Agreement, charging instrument and PSR), see Table 26, QDR.

iiAppendix A, Description of Variables, PQDR.

iiiTable 5, PQDR.