Order Code RL32766
CRS Report for Congress
Received through the CRS Web
Federal Sentencing Guidelines: Background,
Legal Analysis, and Policy Options
Updated April 4, 2005
Lisa M. Seghetti
Analyst in Social Legislation
Domestic Social Policy Division
Alison M. Smith
Legislative Attorney
American Law Division
Congressional Research Service ˜ The Library of Congress

Federal Sentencing Guidelines: Background, Legal
Analysis, and Policy Options
Summary
In United States v. Booker (Booker), an unusual two-part opinion transformed
federal criminal sentencing by restoring to judges much of the discretion that
Congress took away when it put mandatory sentencing guidelines in place. In the
first opinion, the Court held that the current mandatory sentencing guidelines violated
defendants’ Sixth Amendment right to trial by jury by giving judges the power to
make factual findings that increased sentences beyond the maximum that the jury’s
finding alone would support. In the second part, a different majority concluded that
the constitutional deficiency could be remedied if the guidelines were treated as
discretionary or advisory rather than mandatory. As a result of the decisions, the
Court struck down a provision in law that made the federal sentencing guidelines
mandatory as well as a provision that permitted appellate review of departures from
the guidelines. In essence, the high Court’s ruling gives federal judges discretion in
sentencing offenders by not requiring them to adhere to the guidelines; rather, the
guidelines can be used by judges on an advisory basis.
Historically, the way in which convicted offenders are sentenced falls under one
of two penal policies — indeterminate and determinate sentences. Indeterminate
sentencing practices were predominant for several decades, leading up to the major
reform efforts undertaken by many states and the federal government in the mid-to
late 1970s and early 1980s. The perceived failure of the indeterminate system to
“cure” the criminal, coupled with renewed concern about the rising crime rate
throughout the nation in the mid-1970s, resulted in wide experimentation with
sentencing systems by many states and the creation of sentencing guidelines at the
federal level. Congress passed a sentencing reform measure, which abolished
indeterminate sentencing at the federal level and created a determinate sentencing
structure through the federal sentencing guidelines. The Sentencing Reform Act
reformed the federal sentencing system by (1) dropping rehabilitation as one of the
goals of punishment; (2) creating the U.S. Sentencing Commission and charging it
with establishing sentencing guidelines; (3) making all federal sentences determinate;
and (4) authorizing appellate review of sentences.
In light of the Court ruling in Booker, the issue for Congress is whether or not
to amend current law to require federal judges to follow guided sentences, or permit
federal judges to use their discretion in sentencing under certain circumstances.
Congressional options include (1) maintain the sentencing guidelines by placing
limits on a judge’s ability to depart from the guidelines, by establishing escalating
mandatory minimums and increasing the top of each guideline range to the statutory
maximum for the offense; (2) require jury trial or defendant waiver for any
enhancement factor that would increase the sentence for which the defendant did not
waive his rights; or (3) take no action, thus permitting judicial discretion in
sentencing in cases where Congress has not specified mandatory sentences.

Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Supreme Court Cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
United States v. Booker . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Penal Policy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Indeterminate Sentencing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Determinate Sentencing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
The Sentencing Reform Act of 1984 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Sentencing Guidelines . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Presumptive Sentencing Guidelines . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Statutory Sentencing Guidelines . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Advisory or Voluntary Sentencing Guidelines . . . . . . . . . . . . . . . . . . 12
States’ Sentencing Guidelines . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Departures from the Guidelines . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Possible Policy Consideration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Maintain the Sentencing Guidelines . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Provide Jury Trials . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Permit Judicial Discretion in Sentencing . . . . . . . . . . . . . . . . . . . . . . . 15
List of Figures
Figure 1. Departures from Federal Sentencing Guidelines . . . . . . . . . . . . . . . . . 14

Federal Sentencing Guidelines:
Background, Legal Analysis, and Policy
Options
Introduction
On January 12, 2005, the U.S. Supreme Court ruled that the Sixth Amendment
right to a trial by jury requires that the current federal sentencing guidelines be
advisory, rather than mandatory.1 In doing so, the Court struck down a provision in
law that made the federal sentencing guidelines mandatory2 as well as a provision
that permitted appellate review of departures from the guidelines.3 In essence, the
Court’s ruling gives federal judges discretion in sentencing offenders by not requiring
them to adhere to the guidelines; rather the guidelines can be used by judges on an
advisory basis.4 As a result of the ruling, judges now have discretion in sentencing
defendants unless the offense carries a mandatory sentence (as specified in the law).
While some may view the ruling as an opportunity for federal judges to take into
consideration the circumstances unique to each individual offender, thus handing
down a sentence that better fits the offender, others may fear that federal sentencing
will give way to unwarranted disparity and inconsistencies across jurisdictions.5 In
light of the ruling, the issue for Congress is whether or not to amend current law to
require federal judges to follow guided sentences based on mandatory minimums or
jury determinations, or to permit federal judges to use their discretion in sentencing
under certain circumstances.
1 See U.S. v. Booker, ___ U.S. ___, 125 S.Ct. 738 (2005).
2 According to the ruling, a provision in current law makes the guidelines binding on all
judges. The provision, 18 U.S.C. §3553(b), requires courts to impose a sentence within the
applicable guidelines range.
3 See 18 U.S.C. §3742(e).
4 While the Court struck down a provision that made the federal sentencing guidelines
mandatory, the Court also noted that current law “... requires judges to take account of the
guidelines together with other sentencing goals.” See 18 U.S.C. §3553(a). The Court also
struck down a provision that permitted appellate review of sentences that were imposed as
a result of a judge’s departure from the guidelines. The Court noted, however, that current
law “... continues to provide for appeals from sentencing decisions (irrespective of whether
the trial judge sentences within or outside the guidelines range)”. See 18 U.S.C.
§3742(a),(b).
5 See for example, Erik Luna, “Misguided Guidelines: A Critique of Federal Sentencing,”
Policy Analysis, no. 458, Nov. 1, 2002.

CRS-2
The issue that brought the matter before the Court was a judge’s obligation to
move from one guideline maximum to a higher one based on the judge’s factual
determination. The Court examined “[w]hether the Sixth Amendment is violated by
the imposition of an enhanced sentence under the United States Sentencing
Guidelines based on the sentencing judge’s determination of a fact (other than a prior
conviction) that was not found by the jury or admitted by the defendant.”6
This report provides a legal analysis of the recent Court ruling as well as
background information on the federal sentencing guidelines. In doing so, the report
provides a summary of U.S. penal policy, paying particular attention to such policy
at the federal level. The report then discusses legislation enacted in 1984 that created
the current federal sentencing structure. Next, the different types of sentencing
guidelines, including the one that was approved by Congress that was the basis for
the recent U.S. Supreme Court decision, are discussed. The report then provides an
analysis of departures from the guidelines under the federal system. The report
concludes with an analysis of possible policy options the 109th Congress may wish
to consider if it chooses to address this issue.

Supreme Court Cases
In a series of cases, the U.S. Supreme Court has held that given the Sixth
Amendment right to trial by jury, judges cannot impose sentences beyond the
prescribed statutory maximum unless the facts supporting such an increase are found
by a jury beyond a reasonable doubt.7 In Apprendi v. New Jersey (Apprendi),8 the
Court held that except in the case of recidivists a judge could not sentence a criminal
defendant to a term of imprisonment greater than the statutory maximum assigned
to the crime for which he had been convicted by the jury. Most recently, in Blakely
v. Washington (Blakely),9 the Court held that Washington State’s sentencing
guidelines violated the Sixth Amendment’s guarantee of a trial by jury in criminal
cases. Washington State guidelines allowed judges, rather than juries, to make
certain findings of fact that increased an offender’s sentence. The Court found that
the “statutory maximum” for Apprendi purposes is the maximum sentence a judge
may impose solely on the basis of the facts reflected in the jury verdict or admitted
by the defendant. In other words, the relevant statutory maximum is not the
maximum sentence a judge may impose after finding additional facts, but the
maximum he may impose without any additional facts.10 After Blakely, federal
6 U.S. v. Booker, ___ U.S. ___, 125 S.Ct. 738 (2005).
7 See Ring v. Arizona, 536 U.S. 584 (2002)(holding that an aggravating circumstance that
makes a defendant eligible for a death sentence is the functional equivalent of an element
of an offense for purposes of the Sixth Amendment right to a jury trial and therefore must
be found by a jury).
8 520 U.S. 466 (2000).
9 124 S.Ct. 2531 (2004).
10 Ibid. at 2537.

CRS-3
courts were immediately faced with arguments that the USSG also violated the Sixth
Amendment. The courts were divided sharply on this issue.11
United States v. Booker
The Court spoke to the application of Blakely to the federal sentencing
guidelines in United States v. Booker (Booker). In Booker, the defendants were each
convicted of controlled substances offenses. In both cases, application of the USSG
would require sentencing within ranges beyond those supported by the verdict alone:
in Booker’s case 30 years to life rather than 17 to 21 years and in Fanfan’s case 15
to 16 years rather than five to six years. The Court unanimously agreed on the notion
that discretionary sentencing guidelines would not implicate a defendant’s Sixth
Amendment right.12 Applying its decisions in Apprendi, and Blakely the Court13 held
that “[a]ny fact (other than a prior conviction) which is necessary to support a
sentence exceeding the maximum authorized by the facts established by a plea of
guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond
a reasonable doubt.” The Court reasoned that the sentencing guidelines direct a
judge in some instances to enhance sentences in a manner which violates this
principle. This violation occurs when a judge makes certain factual findings
supported by a preponderance of the evidence14 to enhance a sentence beyond the
range otherwise authorized by the jury’s verdict or the defendant’s admissions.
In rejecting the government’s arguments to Blakely’s applicability to the federal
sentencing guidelines (guidelines), the Court found the fact that the guidelines were
developed by the United States Sentencing Commission rather than by Congress
constitutionally insignificant.15 Moreover, the Court found that Blakely’s application
11 See, U.S. v. Fanfan, 2004 WL 1723117, *2 (D.Me. June 28, 2004)(holding that for
purposes of constitutional analysis the federal sentencing guidelines were indistinguishable
from those in Blakely); Compare, U.S. v. Koch, 2004 WL 1899930, *1-*6(en banc)(6th Cir.
Aug. 2, 2004); U.S. v. Pineiro, 377 F.3d 464, 468-73 (5th Cir. 2004); U.S. v. Reese, 2004 WL
1946076, *1-*4(11th Cir. Sept. 2, 2004); U.S. v. Ameline, 376 F. 3d 967, 984-87(9th Cir.
2004(Gould, J. dissenting), with U.S. v. Koch, 2004 WL 1899930, at *7-*13(Martin J.,
dissenting); U.S. v. Ameline, 376 F.3d at 972-978.
12 Booker at 749(stating that “everyone agrees that the constitutional issues presented by
these cases would have been avoided entirely if Congress had omitted from the SRA the
provisions that make the Guidelines binding on district judges ...”); Cf, Booker at 795-802
(Thomas, J., dissenting). The majority does not explain how changing the mandatory nature
of the guidelines to discretionary cures the constitutional deficiency.
13 This opinion of the Court, in part, was delivered by Justice Stevens, who was joined by
Justices Scalia, Souter, Thomas and Ginsburg.
14 A preponderance of the evidence is “the greater weight of the evidence; superior
evidentiary weight that, through not sufficient to free the mind wholly from all reasonable
doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather
than the other.” Bryan A. Garner, Editor, “Black’s Law Dictionary,” Second Edition, (St.
Paul, MN: West Group: 2001).
15 Booker at 753. The dissenters in part, Justice Breyer, Chief Justice Rehnquist, and
Justices O’Conner and Kennedy found that Blakely should not apply to the federal
(continued...)

CRS-4
to the guidelines was not precluded or contradicted by recent cases dealing with other
issues including perjury16 and the Double Jeopardy clause.17 Finally, the Court noted
that a separation of powers argument was precluded by its decision in Mistretta v.
United States.18
In the first opinion, the Court sought to restore the jury’s significance in its
finding of the underlying crime.19 However, in the remedial portion of the decision,
the majority gave judges more discretion in sentencing. With Justice Ginsburg
joining, the four dissenting judges from the first part (Justices Breyer, O’Connor,
Kennedy and Chief Justice Rehnquist) held unconstitutional two provisions of the
Sentencing Reform Act (SRA): 18 U.S.C. §3553(b)(1), which makes the guidelines
mandatory, and 18 U.S.C. §3742(e), which sets forth standards of review for appeals
of departures from the mandatory guidelines.20
To reach this conclusion, the majority evaluated the likely effect of the
constitutional requirement on the SRA’s language, history and basic purpose. In
other words, the Court answered the question of what “Congress would have
intended” in light of the Court’s constitutional holding. The Supreme Court based
its decision to delete the mandatory requirement of the guidelines on the supposition
that, given the choice, Congress would not have enacted a mandatory system
modified to accommodate Blakely.21 This majority considered three options: (1)
invalidating the act in its entirety; (2) engrafting the Sixth Amendment “jury trial”
15 (...continued)
sentencing guidelines as they are not statutes nor represent elements of a crime but rather
are sentencing facts.
16 United States v. Dunnigan, 507 U.S. 87 (1993)(holding that the provisions of the
guidelines that require a sentence enhancement if the judge determines that the defendant
committed perjury do not violate the privilege of the accused to testify on her own behalf).
17 See Witte v. United States, 515 U.S. 389 (1995)(holding that the Double Jeopardy Clause
did not bar a prosecution for conduct that had provided the basis for an enhancement of the
defendant’s sentence in a prior case.
18 488 U.S. 361 (1989)(concluding that even though the Commission performed political
rather than adjudicatory functions, Congress did not exceed its constitutional limitations in
creating the Commission).
19 Booker at 752 (stating that the “new sentencing practice forced the Court to address the
question of how the right of jury trial could be preserved, in a meaningful way guaranteeing
that the jury would still stand between the individual and the power of the government under
the new sentencing regime.”).
20 The solution urged by Justice Stevens with but three of his colleagues would be to avoid
constitutional infirmities by allowing juries to decide the facts that have guideline
consequences. The Court found that the remainder of the SRA is constitutional, can
function independently, and is consistent with Congress’ basic objectives in enacting the
SRA.
21 Booker at 759 (stating that “several considerations convince us that, were the Court’s
constitutional requirement added onto the Sentencing Act as currently written, the
requirement would so transform the scheme that Congress created that Congress likely
would not have intended the Act as so modified to stand.”).

CRS-5
requirement; and (3) severance and excision of the offending parts of the SRA. The
Breyer majority opined that Congress would have preferred “the total invalidation of
the Act to an Act with the Court’s Sixth Amendment requirement engrafted onto
it.”22 In addition, it concluded that Congress would have preferred the “excision of
some of the Act, namely the Act’s mandatory language to the invalidation of the
entire Act.”23 The Breyer majority noted that severance and excision was closer to
Congress’ intended system by “maintaining a strong connection between the sentence
imposed and the offender’s real conduct....”24 As such, the Court concluded that 18
U.S.C. §3553(b)(1) and 18 U.S.C. §3742(e) should be severed and excised to match
Congress’ intent of increased uniformity of sentencing. The Court called upon
Congress to decide whether its declaration of judicial discretion merits legislative
action.25
A possible issue arising under Booker involves the degree of deference the
advisory guidelines command. At one end of the spectrum is the view embodied in
United States v. Wilson (Wilson)26 in which the judge flatly decreed that he will
follow the guidelines and impose their prescribed sentence “in all but the most
exceptional cases.”27 At the opposite end is the view reflected in United States v.
Ranum (Ranum)28 where the judge elected to treat the guidelines as just one of a
number of sentencing factors spelled out in 18 U.S.C. §3553(a), including the
defendant’s history and characteristics.29 Applied to Ranum — a sympathetic
defendant with compelling personal qualities, appealing family circumstances and
strong proof in mitigation — this approach yielded a year and a day sentence where
22 Ibid. at 758.
23 Ibid. The dissenters opined that if the constitutional problem was a violation of the right
to trial by jury, the solution should also lay with the jury: to require prosecutors to make
more specific indictments and to present to the jury any fact that would increase a sentence
beyond the ordinary range. Justice Stevens said that in avoiding this solution and instead
changing the nature of the guidelines themselves, it was “clear that the court’s creative
remedy is an exercise of legislative, rather than judicial, power,” one that “violates the
tradition of judicial restraint.”
24 Ibid. at 761(stating that “uniformity does not consist simply of similar sentences for those
convicted of violations of the same statute ... It consists, more importantly, of similar
relations that Congress’ sentencing statutes helped to advance and that Justice Stevens’
approach would undermine.”).
25 Ibid. at 767 (stating that “ours, of course, is not the last word: The ball now lies in
Congress’ court.”).
26 350 F.Supp.2d 910 (D. Utah Jan. 13, 2005).
27 Id. at 925; see also, United States v. Peach, 327 F.Supp. 2d 1081(D. N.D. Feb. 15,
2005)(concluding that the court will continue to give consideration to the advisory
sentencing guidelines, which will be afforded substantial weight in sentencing hearings
because the federal sentencing guidelines, policy statements, and the sentencing tables and
ranges were created at the direction of Congress and the statutory purposes of sentencing,
as directed by Congress, are best reflected in the guidelines).
28 353 F.Supp.2d 984 (E.D. Wis. Jan. ___, 2005).
29 Id. at 986 (stating that “in every case, courts must now consider all of the §3553(a)
factors, not just the guidelines.”).

CRS-6
the guidelines called for 37 to 46 months.30 A third perspective comes from the
Northern District of Oklahoma in United States v. Barkley (Barkley).31 In a
somewhat ironic twist, the Barkley Court exercised its procedural discretion under
Booker to implement the remedy offered by the first Booker merits majority. As
such, in trial cases in this district, juries will find the facts necessary to support
relevant sentencing enhancements by proof beyond a reasonable doubt.32
In Booker’s aftermath, questions remain regarding the decision’s retroactivity.
It appears that the Booker Court did not intend that every case on appeal be remanded
for resentencing.33 Rather, appellate courts were directed “to apply ordinary
prudential doctrines, determining, for example, whether the issue was raised below
and whether it fails the ‘plain-error’ test.”34 Although the Supreme Court did not
address the issue of its retroactivity on collateral review,35 the Court’s decision in
Schriro v. Summerlin,36 may provide guidance on the point. Generally, the question
of retroactivity turns on whether the Court announced a new rule and whether the
new rule is substantive (in which case it may apply retroactively) or procedural (in
30 Ibid. at 13; accord United States v. Jones, 352 F.Supp.2d 22 (D. Me. Jan 21,
2005)(imposing discretionary probation term under §3553(a) where defendant, whose
guideline sentence was at least one year, did not qualify for downward departure); United
States
v. Revock, 353 F.Supp.2d 127 (D. Me. Jan. 28, 2005)(cutting defendant’s sentence
to eliminate disparity among codefendants, an impermissible departure ground under the
guidelines); United States v. Myers, 353 F. Supp. 2d 1026 (S.D. Iowa, Jan. 26,
2005)(sentencing defendant to three months probation instead of using the guideline range
of 20-30 months; finding Ranum persuasive); United States v. West, 2005 WL 180930
(S.D.N.Y., Jan. 27, 2005)(following Ranum, in that Guidelines are only one factor to
consider).
31 No. 04-CR-119-H (N.D. Okla. Jan. 24, 2005).
32 Ibid. slip op. at 16-17. In plea cases, the Court will find enhancing facts in accordance
with the Federal Rules of Evidence, also applying the reasonable doubt standard; see also,
United States v. Huerta-Rodriguez, No. 04-CR-365 (D. Neb. Feb. 1, 2005).
33 Booker at 769 (applying the Court’s holding to all cases pending on direct review).
34 Ibid. Some courts are requiring automatic resentencing where a Sixth Amendment claim
is preserved, either in explicit Apprendi/Blakely terms or by contesting a judicial
enhancement on other grounds. See, e.g., United States v. Coffey, 395 F.3d 856 (8th Cir. Jan
21, 2005); United States v. Davis, 397 F.3d 340 (6th Cir. Jan. 21, 2005)(unpublished); United
States
v. Reese, 397 F.3d 1337 (11th Cir. Jan. 27, 2005); United States v. Harrower, no. 04-
4853, 2005 WL 226164 (4th Cir. Jan. 31, 2005) (unpublished). Other courts have suggested
that even unpreserved Booker violations (i.e., imposing mandatory enhancements on judge-
found facts) always amount to plain error warranting a remand for resentencing. See, e.g.,
United States v. Hughes, 396 F.3d 374 (4th Cir. Jan. 24, 2005)(finding no plain error where
“overwhelming” evidence supported obstruction of justice enhancement); United States v.
Milan
, 398 F.3d 445 (6th Cir. Feb. 10, 2005).
35 Collateral review occurs after final judgment. For a discussion of retroactivity in criminal
law, see Standards for Retroactive Application Based Upon Groundbreaking Supreme Court
Decisions in Criminal law
, RL32613 (Sept. 28, 2004).
36 124 S. Ct. 2519 (2005) (applying Apprendi’s principles to a particular subject is not
retroactive on collateral review).

CRS-7
which case it would not apply retroactively unless it qualified as “watershed”).37 The
Summerlin Court concluded that its previous decision in Ring v. Arizona holding that
“any increase in a defendant’s authorized punishment contingent on the finding of
a fact, including eligibility for the death penalty must be found by a jury beyond a
reasonable doubt”38 cannot be treated as a new substantive rule, a rule that “alters the
range of conduct or the class of persons that the law punishes.”39 As such, the
Summerlin Court held that Ring is not retroactive on collateral review. In
McReynolds v. United States,40 a lower court found that Booker, like Apprendi and
Ring, must be treated as a procedural decision for purposes of retroactivity analysis.41
As such, the court concluded that Booker does not apply retroactively to criminal
cases that became final before its release on January 12, 2005.
Due to the severance of 18 U.S.C. §3553(b)(1) and 18 U.S.C. §3742(e)42
district courts are not bound to apply the guidelines. However, they must consult and
consider the guidelines when sentencing. In addition, the Court preserved a right to
appeal.43 A sentence that is outside the guidelines-determined range is subject to
reversal if it fails to meet a “reasonableness” standard, a term the Court did not
define. Some may contend that this lack of definition for “unreasonableness” may
signal a return to pre-guidelines. For example, Justice Scalia noted in his dissent
from the opinion’s second holding, “what I anticipate will happen is that
‘unreasonableness’ review will produce a discordant symphony of different
standards, varying from court to court and judge to judge.” Justice Breyer’s majority
felt that the “reasonableness” standard of review would not be a foreign concept to
appellate courts as they have experience in dealing with reviews of departures and
reviews of sentences imposed in the absence of applicable guidelines. As such, this
37 Ibid at 2522-23. A procedural decision may be applied retroactively if it establishes one
of those rare “watershed rules of criminal procedure implicating the fundamental fairness
and accuracy of the criminal proceeding.” Ibid. at 2522.
38 Ring v. Arizona, 536 U.S. 584, 602 (2002).
39 Ibid. at 2523.
40 397 F.3d 479 (7th Cir. Jan. 13, 2005)(concluding that Booker does not apply retroactively
to criminal cases that became final before its release on Jan. 12, 2005).
41 See also, Varela v. United States, 400 F.3d 864 (11th Cir. Feb. 17, 2005)(granting
certificate of appealability, but concluding that although neither 11th Circuit nor Supreme
Court have addressed retroactivity of Blakely and Booker; also stating that U.S. Supreme
Court case, Schiro v. Summerlin, “is essentially dispositive” of issue); Humphress v. United
States
, 398 F.3d 855 (6th Cir. Feb. 25, 2005) King v. Jeter, 2005 WL 195446 (N.D. Tex. Jan.
27, 2005)(stating that Booker, like Blakely, does not implicate petitioner’s conviction for a
substantive offense, and that Booker is not retroactive when first raised on collateral
review); Tuttamore v. United States, 2005 WL 234368 (N.D. Ohio Feb. 1, 2005); United
States v. Ceja
, 2005 WL 300415 (N.D. Ill. Feb. 7, 2005).
42 Severance of this section renders inapplicable §401(d)(1) of the Prosecutorial Remedies
and Other Tools to end the Exploitation of Children Today Act of 2003 (PROTECT Act),
P.L. 108-21, which added a de novo standard of review for departures from the sentencing
guidelines.
43 Justice Breyer noted that the body of federal sentencing appellate law decided since the
guidelines’ adoption remains in effect to guide federal courts.

CRS-8
majority feels that it is fair to assume that appellate judges will prove capable of
handling the task. Moreover, the U.S. Sentencing Commission will continue to
collect and study appellate court decision making.
Penal Policy
Historically, the way in which convicted offenders are sentenced falls under one
of two penal policies — indeterminate and determinate sentences. Indeterminate
sentencing practices were predominant for several decades, leading up to the major
reform efforts undertaken by many states and the federal government in the mid-to
late 1970s and early 1980s (see discussion in next section). Many states and the
federal government have variations of determinate sentencing, including sentencing
guidelines. Some states, however, continue to operate under indeterminate
sentencing.
Early penal policy in the United States served the goals of retribution and
punishment. Beginning in 1870, however, rehabilitation became the focus of
criminal sentencing, which led to the adoption of an indeterminate sentencing system
in the federal penal system. At the time, indeterminate sentencing was seen as the
preferred mechanism to rehabilitate offenders, which was the stated goal of
punishment. Under the federal indeterminate sentencing scheme, Congress
established the penalty range within which the judge imposed a sentence. Typically,
after one-third of the sentence was served, a parole board would determine if the
offender had been rehabilitated and could be released from prison.
In response to congressional concern over the rising crime rate, federal
sentencing policy was reexamined by Congress in the early 1970s. In 1973, a
proposal to revise the entire Federal Criminal Code was introduced, which ultimately
included a reform of the federal sentencing system.44 It wasn’t until 1984, however,
that Congress passed a sentencing reform measure, which abolished indeterminate
sentencing at the federal level and created a determinate sentencing structure through
the federal sentencing guidelines (see discussion below).
44 The Criminal Justice Codification, Revision and Reform Act (S. 1) was a product of the
movement to revise the Federal Criminal Code that began in 1952 with the drafting of a
Model Penal Code by the American Law Institute (Institute). That document was refined
during the following 10 years, and in 1962 the Institute published a “Proposed Official
Draft” of a Model Penal Code. In 1966, Congress created a National Commission on Reform
of Federal Criminal Laws (the Brown Commission) and mandated that it study and review
U.S. statutory and case law and make recommendations for its improvement. The Brown
Commission’s report was transmitted to Congress and the President in 1971 in the form of
a “work basis,” from which S.1 was derived. See U.S. Congress, Senate Committee on the
Judiciary, Criminal Code Reform Act of 1977, Report on S. 1437, 95th Cong., 1st sess.,
S.Rept. 95-605, part I (Washington: Govt. Print. Off., 1977) pp. 10-15.

CRS-9
Indeterminate Sentencing
As stated previously, federal sentencing was indeterminate throughout much of
the 20th century. Defendants sentenced under an indeterminate sentencing scheme
do not know the length of time they will serve. At the federal level, primary control
over sentencing rested with the district court. With few exceptions, Congress
provided only maximum terms of incarceration for federal crimes, while judges set
the minimum sentence in individual cases, and the U.S. Parole Board decided when
the offender was released. At the state level, a range of sentences for a particular
crime is established according to statute (e.g., 12 to 20 years) and a judge would
sentence the defendant to that range. The precise amount of time an offender serves,
however, is left to prison officials, usually a parole board. Sentences were
indeterminate because the actual length of time that would be served could not be
determined at the time of sentencing.
Indeterminate sentencing, once viewed as a major reform designed to
individualize the treatment of offenders and facilitate rehabilitation, came under
attack because it was perceived as promoting unwarranted disparity in sentences as
well as uncertainty of punishment. Critics contended that the unlimited judicial
discretion, without documented justification and review by an appellate court
produced sentencing disparities.45
The perceived failure of the indeterminate system to “cure” the criminal (usually
measured by recidivism rates), coupled with renewed concern about rising crime
rates throughout the nation in the mid-1970s, resulted in experimentation with
sentencing systems by several states and the creation of sentencing guidelines at the
federal level. Despite these developments, however, indeterminate sentencing
remains “the predominate sentencing structure for most states ... although these laws
are becoming increasingly determinate in structure ... by greater use of mandatory
minimums, truth in sentencing provisions, and reduction in the amount of good time
credits an inmate can earn while incarcerated.”46
Determinate Sentencing
Prior to many states and the federal government adopting sentencing guidelines
and other forms of sentencing policies, the only alternative to indeterminate
sentencing was determinate or “fixed” sentencing. As sentencing policy evolved, so
did the scope of determinate sentencing. For example, beginning in the 1970s and
continuing into the 1990s, Congress and many states passed legislation that revised
45 See for example, Marvin E. Frankel, Criminal Sentences: Law Without Order (New York:
Hill and Wang, 1973); Report of the Twentieth Century Fund, Task Force on Criminal
Sentencing, Fair and Certain Punishment (New York: McGraw-Hill Book Company, 1976);
and Andrew Von Hirsch, Doing Justice, The Choice of Punishments (New York: Hill and
Wang, 1976).
46 U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Assistance,
1996 National Survey of State Sentencing Structures, BJA Monograph, pp. xi and 18.
According to a 1996 DOJ BJA report, 36 states and the District of Columbia had at that time
an indeterminate sentencing structure.

CRS-10
sentencing laws and required, in many cases, the mandatory imprisonment of
offenders for committing certain types of crimes. In many instances, such legislation
required a mandatory minimum term of imprisonment. In addition to mandatory
minimum laws, Congress and several states passed legislation that created sentencing
commissions charged with establishing sentencing guidelines. Congress and some
states also passed “three-strikes” provisions, which usually required a life sentence
after the third strike and truth-in-sentencing measures, which required an offender to
serve a large percentage of his sentence.
Many of the current sentencing alternatives to indeterminate sentencing are
variations of determinate sentencing. There are usually explicit standards specifying
the amount of punishment and a set release date that is not subject to review by an
administrative body (i.e., a parole board). Under determinate sentencing, however,
time served can be reduced by good time or earned time.

Both indeterminate and determinate sentencing practices have been criticized
by many who believe that such practices lead to abuse by criminal justice officials
and unwarranted disparities in sentences. Critics of both penal policies contend that
such sentences give way to a nonuniform application of sentences across
jurisdictions. With respect to determinate sentences, for example, judges sentence
offenders to a fixed period based on statute, which some contend does not take into
consideration individual offender characteristics. Indeterminate sentencing practices,
on the other hand, lead to disparities due to the potential for “two defendants
committing the same crime under similar circumstances receiving very different
sentences depending on a particular judge’s sentencing idiosyncrasies.”47
The Sentencing Reform Act of 1984
In 1984, Congress passed legislation that led to the creation of federal
sentencing guidelines. The Sentencing Reform Act of 1984 (Chapter II of the
Comprehensive Crime Control Act of 1984; P.L. 98-473), in essence, eliminated
indeterminate sentencing at the federal level. The act created the United States
Sentencing Commission, an independent body within the judicial branch of the
federal government and charged it with promulgating guidelines for federal
sentencing. The purpose of the Commission was to examine unwarranted disparity
in federal sentencing policy, among other things.48 In establishing sentencing
guidelines for federal judges, the Commission took into consideration factors such
as (1) the nature and degree of harm caused by the offense; (2) the offender’s prior
record; (3) public views of the gravity of the offense; (4) the deterrent effect of a
47 American Bar Association, Justice Kennedy Commission, Report with Recommendations
to the ABA House of Delegates
, Aug. 2004, p. 14.
48 The Commission was also mandated to examine the effects of sentencing policy upon
prison resources (e.g., overcrowding) and the use of plea bargaining in the federal criminal
justice system.

CRS-11
particular sentence; and (5) aggravating or mitigating circumstances.49 In addition
to these factors, the Commission also considered characteristics of the offender, such
as age, education, vocational skills, and mental or emotional state, among other
things.50 Prior to the recent Supreme Court ruling, the guidelines were binding, and
they were also subjected to congressional directives and mandatory minimum
penalties for specific offenses set by Congress.51
In summary, the Sentencing Reform Act reformed the federal sentencing system
in the following ways:
! It abandoned one of the traditional goals of punishment,
rehabilitation, and asserted the following goals: retribution,
education, deterrence
and incapacitation.52
! It consolidated the power that had been exercised by judges and the
U.S. Parole Board to decide the type of punishment and its length by
abolishing paroles and creating the U.S. Sentencing Commission and
charging it with establishing sentencing guidelines.53
! It made all federal sentences determinate.54
! It authorized appellate review of sentences in which the judge
departed from the guidelines55 and review of other sentences under
certain circumstances.56
Sentencing Guidelines
Sentencing guidelines can be presumptive, statutory, advisory or voluntary. The
most notable of these are the presumptive sentencing guidelines, which had been in
place at the federal level at the time of the Supreme Court’s ruling in Booker.
Presumptive Sentencing Guidelines. Prior to the Court’s ruling in
Booker, the federal sentencing guidelines were characterized as being presumptive,
rather than statutory, advisory or voluntary. Presumptive sentencing guidelines are
49 See 18 U.S.C. §994(c).
50 See 18 U.S.C. §994(d).
51 Mandatory minimum sentencing laws are separate from the federal sentencing guidelines.
Over the years, Congress has directed the U.S. Sentencing Commission to integrate
mandatory minimum penalties it has passed into the federal sentencing guidelines.
Examples of federal mandatory minimum sentencing laws include the 1986 and 1988 Anti-
Drug Abuse Acts (P.L. 99-570 and P.L. 100-690). In addition to mandatory minimum
penalties for certain drug violations, Congress has passed mandatory minimum penalties for
certain gun violations and sex offenses.
52 See 28 U.S.C. §994(k) and 18 U.S.C. §3553(a)92).
53 See 28 U.S.C. §991, 994 and 995(a)91).
54 See 18 U.S.C. §3624(a), (b).
55 See 18 U.S.C. §3742(e).
56 See 18 U.S.C. §3742(a), (b).

CRS-12
contained in or based on legislation, which are adopted by a legislatively created
body, usually a sentencing commission. Presumptive sentencing guidelines set a
range of penalties for an offense that is based on the seriousness of the offense and
the defendant’s criminal history.57 “The guidelines are presumptive in the sense that
they set sentencing standards for individual cases that were presumed to be
appropriate and that judges were expected to follow” unless they documented the
reasons for departing.58 At the federal level, after the guidelines have been adopted
by the sentencing commission they are submitted to Congress and they become
effective, barring other congressional action. While judges were required to adhere
to the guidelines, they could depart from them. Departures under presumptive
sentencing guidelines, however, are subject to appellate review.
Statutory Sentencing Guidelines. Statutory sentencing guidelines are
created by a legislative body. Statutory sentencing guidelines are sometimes
confused with presumptive sentencing guidelines. While both types of guidelines are
ultimately authorized by a legislative body, statutory sentencing guidelines are
directly authorized by a legislative body, while presumptive sentencing guidelines
are established by a sentencing commission that is usually legislatively created.
Advisory or Voluntary Sentencing Guidelines. The Booker ruling now
makes the federal sentencing guidelines advisory. Under an advisory or voluntary
sentencing guideline scheme, judges are not required to follow the sentences set forth
in the guidelines but can use them as a reference.
States’ Sentencing Guidelines. According to the National Center for State
Courts, 23 states and the District of Columbia have implemented presumptive,
statutory, or voluntary/advisory sentencing guidelines.59 Some states, however, may
only have presumptive sentencing guidelines that are applicable to specific offenses
(e.g., certain felonies). Unlike the federal system, states that have adopted
57 At the federal level, an applicable sentencing guideline has been designated for each of
the more frequently prosecuted federal crimes. The guideline begins by assigning a base
offense level (there are 43 offense levels). For example, the guideline for a theft offense,
U.S.S.G. §2B1.1, has a base offense level of 6. Offense level adjustments are available to
accommodate aggravating and mitigating circumstances associated with a particular case.
The theft guideline has offense level increases for the amount of money involved, the
amount of planning that went into the offense, and the nature of the property taken, among
other things. The final offense level dictates a band of six sentence ranges, based on the
offender’s criminal history. The sentencing range for theft at the base offense level of 6 for
a first time offender is 0-6 months; that is, absent a departure, a sentencing court may
impose a sentence of imprisonment at any term up to six months or simply impose a fine.
The sentencing range for an offense level of 6 in the case of a repeat offender with more
than four prior felony convictions is 12-18 months; that is, absent a departure, a sentencing
court must impose a sentence between a year and a year-and-a-half.
58 Michael Torny and Kathleen Hatlestad, eds., Sentencing Reform in Overcrowded Times
(New York: Oxford University Press, 1997), pp. 7-8.
59 The 23 states include AK, AR, DE, IN, KA, LA, MD, MI, MN, MO, NC, NJ, OH, OR,
PA, RI, SC, TN, UT, VA, VT, WA and WI. See National Center for State Courts, Blakely
v. Washington: Implications for State Courts, July 16, 2004, Appendix E.

CRS-13
presumptive sentencing guidelines generally do not have enhancement factors built
into the guidelines’ structure.
Departures from the Guidelines
Departures from the sentencing guidelines in the federal system can take three
forms: substantial assistance departures, other downward departures and upward
departures
. Substantial assistance departures are a form of downward departures and
occur when a defendant provides substantial assistance to the prosecution. Of the
three types of departures, upward departures are used least often and substantial
assistance departures are used most often. While departures are available for judges,
the guidelines explicitly prescribe when a judge can depart from the guidelines. As
the Supreme Court asserted in the Booker ruling, “... departures are not available in
every case, and in fact are unavailable in most. In most cases, as a matter of law, the
Commission will have adequately taken all relevant factors into account, and no
departure will be legally permissible.”60
Those who argue against departures contend that they should be eliminated
because they produce unwarranted disparity. Unlike the structure that exists with the
prescribed sentencing ranges in the guidelines, departures provide an opportunity for
judges to sentence outside that range. Critics contend that permitting a judge to
sentence outside the specified range could be problematic because judges could
potentially increase or decrease a defendant’s sentence substantially, depending on
the circumstances. Departures, however, are not always viewed as a negative tool.
Some may view departures as a mechanism for judges to tailor a sentence that
reflects the totality of circumstances regarding an offender and the offense.
As Figure 1 shows, the majority of departures occur due to the defendant
providing substantial assistance to the prosecution or the judge finding mitigating
factors, which in both cases would necessitate a downward departure. In 2002,
federal judges departed from the sentencing guidelines 35% of the time, of which less
than 1% of the departures were upward departures. These figures have remained
relatively constant for several years.61 It is important to note that the Booker case
involved the rare upward departures.
60 U.S. v. Booker, 73 U.S.L.W. 3077 (2004), p. 10.
61 See United States Sentencing Commission, Sourcebook of Federal Sentencing Statistics,
(1999, 2000, 2001 and 2002), Table 26.

CRS-14
Figure 1. Departures from Federal Sentencing Guidelines
2002
Within Guideline
Range
Substantial
Assistance
Other Downward
Upward Departure
Source: CRS presentation of federal sentencing data.
Figure 1 shows the vast majority of departures are downward departures. While
proponents view downward departures as necessary in a structured system because
their use allows judges to individualize sentences, critics argue that the frequent use
of downward departures is a mechanism for judges to circumvent the limits imposed
on them through the sentencing guidelines. The issue of downward departures
received congressional attention in the 108th Congress when an amendment to the
PROTECT Act62 was passed that restricted the grounds upon which a federal judge
could apply a downward departure in sex offense cases. The amendment also
established various other mechanisms to ensure adherence to the sentencing ranges
dictated by the guidelines in sex offense cases.63
Possible Policy Consideration
In light of the Court’s ruling in Booker, the issue for Congress is whether to
amend current law to require federal judges to follow guided sentences or permit
federal judges to use their discretion in sentencing, under certain circumstances.
Following is a discussion and analysis of several selected options Congress could
consider.
Maintain the Sentencing Guidelines. One option Congress may wish to
consider would be to amend the sentencing ranges by increasing the top of each
guideline range to the statutory maximum of the offense, coupled with statutory or
guideline-based minimum sentences. In essence, this option would require any
62 Prosecutorial Remedies and Tools Against the Exploitation of Children Today
(PROTECT) Act of 2003 (P.L. 108-21).
63 Ibid. For a brief summary of the adjustments see CRS Report RL31917, The PROTECT
(Amber Alert) Act and the Sentencing Guidelines
, by Charles Doyle.

CRS-15
upward departures to coincide with the statutory maximum for the offense in
question, in which case a mandatory maximum would have to be specified. This
option was first presented to the U.S. Sentencing Commission shortly after the U.S.
Supreme Court decision in Blakely by Frank Bowman, who concluded with respect
to such an option:
The practical effect of such an amendment would be to preserve current federal
practice almost unchanged. Guidelines factors would not be elements. They
could still constitutionally be determined by post-conviction judicial findings of
fact ... The only theoretical difference would be that judges could sentence
defendants above the top of the current guideline ranges without the formality of
an upward departure....64
Provide Jury Trials. Congress consider consider a measure that has been
implemented in Kansas. Kansas had presumptive sentencing guidelines that were
invalidated by the state’s supreme court.65 In response to the court ruling, the state’s
legislature chose to retain the sentencing structure by incorporating jury fact-finding
as the basis for enhanced sentences.66 Under this scheme, for each enhancement that
would increase the sentence beyond the guideline maximum for which the defendant
did not waive his rights, the judge has the option of trying aggravating factors before
the jury, either during the main trial or in a separate, bifurcated proceeding. The jury
would have to find that the enhanced factors exist beyond a reasonable doubt in
order for the enhanced sentence to be applicable. While this option may satisfy
constitutional questions, it may prove to be an expensive and time-consuming option.

Permit Judicial Discretion in Sentencing. Congress may also allow
federal judges to exercise their discretion in sentencing in cases where Congress has
not specified a mandatory term of sentence. This option could possibly mirror the
indeterminate sentencing scheme that was in place prior to the sentencing reform
effort in 1984. While such an option would allow judges to individualize sentences
to the extent that Congress has not established a mandatory sentence for the offense,
it could also result in a lack of uniformity due to judges applying different sentences
across jurisdictions.
64 Frank Bowman, “A Proposal for Bringing the Federal Sentencing Guidelines Into
Conformity with Blakely v. Washington,” Federal Sentencing Reported, vol. 16, no. 364
(June 2004), p. 7.
65 State v. Gould, 23 P.3d 801 (Kan. 2001).
66 Kansas statute annotated §21-4718(b).