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Federal Sentencing Factors 18 U.S.C. § 3553(a)(6) The Need To Avoid Unwarranted Sentence Disparities

An Article By Federal Sentencing Alliance

What Is A Federal Sentence Disparity Factor?

“After this Court’s decision in United States v. Booker, 543 U.S. 220, 125 S. Ct. 738, 160 L.Ed.2d 621 (2005), the Guidelines are advisory only. But a district court still ‘‘must consult those Guidelines and take them into account when sentencing.’’ Id., at 264, 125 S. Ct. 738; see also 18 U.S.C. § 3553(a)(4). Courts must also consider various other sentencing factors listed in § 3553(a), including ‘‘the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct.’’ § 3553(a)(6).” Hughes v. United States, 138 S. Ct. 1765, 1772 (2018); see also 18 U.S.C. § 3553(a)(6)(the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct.)

Congress’s primary concern was with nationwide disparity United States v. Wogan, 938 F. 2d 1446, 1448 (1st Cir. 1991); however, in United States v. Wright, 211 F.3d 233, 238-39 (5th Cir. 2000) the court held that after the Supreme Court's decision in Koon v. United States, 518 U.S. 81, 109 (1996), that a co-defendant sentencing disparity could be basis for downward departure, which held that departure factors should not be ruled out on a categorical basis.

This Article addresses how to identify and document national federal sentencing data tailored to an offender sub category using raw Datafiles data obtained from the United States Sentencing Commission, in order to recalculate more meaningful national sentencing statistics and charts for the Court.

The clearest example of a sentencing disparity would be where the same defendant were sentenced for the same offense conduct, the same base offense level, the same level reductions, and the same criminal history category in two different United States' Circuits, where the sentences imposed were markedly different for no apparent reason other than locale. That would evidence a true sentence disparity, because it’s the same case with disparate results.

Since that hypothetical is factually impossibility, the next best thing is to find classes of similar cases from the United States Sentencing Commission (“Commission”), raw data collected over a period of years nationally, and from your specific Circuit, and then to analyze and reformat the data into a individualized chart or table, in order to form a compelling argument for sentencing hearing for any particular case.

How Could One Figure Out Whether A Sentencing Disparity Exists?

Pacer does not permit national searches of similar criminal cases in it’s search engine. Google searches are hit and miss for sporadically identifying limited published cases in various states. Neither of these tools are going to result in the in depth analysis that you need to make a compelling argument for the need to avoid unwarranted disparate sentences.

Where To Find National Statistics For Similar Cases?

This task has always been daunting to impossible for the average legal researcher, because it’s not easy to find meaningful historical statistics for any particular offense conduct, with the identical base offense level, identical level reductions, and for a similarly situated defendant that happens to have the same criminal history category, by hitting “enter” on your computer. Some serious due diligence is involved with gleaning the necessary data, extracting it, analyzing and segregating it, and then putting the data into a meaningful and compelling format for the court.

Federal Sentencing Alliance can assist you with these arduous tasks.

The United States Sentencing Commission publishes raw Datafiles available online:

However, the data is not easily extracted for analysis, because the user must first have an SAS program, available from Oracle, or an SPSS program available from IBM; both are software packages used for interactive, or batched, statistical analysis, can be quite costly, and are generally not cost effective for limited use. In short, the raw Datafiles are more useful in ongoing think tank operations and analysis of Commission data.

The Federal Public Defender uses raw Datafiles to generate a wide variety of tables and graphs beyond those published by the Commission, using the identical raw data used in the Commission’s annual Sourcebook of Federal Sentencing Statistics. Tailored reports are markedly different than Commission reports, because Commission reports are typically more broad in scope. Indeed various Federal Public Defender Offices employee data analysis experts to manipulate, massage, and reformat Commission data full time, to make the data meaningful for a particular client’s case.

Why Tailored Tables And Charts Highlight Meaningful Statistics:

Typically Commission reports are generated with broad offender categories batched into a single report, describing the number of offenders in each sub category, e.g. the total population of offenders, used to compute percentages for individual offender sub categories of offenders in the population..

Typical Commission Summary Report Categories:

Sentence Relative To The Guideline Range: 1.) Within range; 2.) Above range; 3.) § 5K1.1 Substantial assistance; 4.) All other government sponsored below range; and 5.) Non-government sponsored below range.

Sentence Length Months: 1.) All offenders; 2.) Within range; 3.) Above range; 4.) § 5K1.1 Substantial assistance; 5.) All other government sponsored below range; and 6.) Non-government sponsored below range.

The Mathematical Conundrum Presented By Commission Charts & Tables:

By increasing the base of irrelevant offenders for your particular case, the Commission’s broad reports reduce the overall percentages for each sub category of offenders. By tailoring the specific Datafiles sub category to your specific case, the relevant percentage applicable to any individual sub category will increase; simply by weeding out data related to the irrelevant sub categories of offenders.

Segregating Below Guideline Range Datafiles Data:

Where you are focusing on obtaining a blow guidelines sentence for your client, and want to make an argument for disparate treatment of offenders nationally, or in your particular circuit, the only meaningful data is obtained from all sub categories related to “below range”, regardless of whether the label is “other government sponsored below range” or “non-government sponsored below range”. By isolating the Datafiles data and reducing the overall denominator, or base for the fraction; and only including offender data tailored to that combined sub category, here “below range”, the percentage applicable to those sub categories will increase. The outcome is a more meaningful table or graph specific to the facts of your case, that is markedly different from the broad all inclusive table or chart prepared by the Commission.

Here Is An Illustrative Example Of This Analysis For Argument:

Consider this hypothetical example regarding isolating Datafiles data, considering a Commission Report titled:

“Selected Sentencing Information for Offenders Sentenced Under §2T1.1, With a Base Offense Level of 24, 3 Level Decrease for Acceptance of Responsibility, Final Offense Level of 21, and a Criminal History Category of I (fiscal years 2013-2017)”:

Sentence Relative To The Guideline Range:

# Offenders:

Above range 0

Within range 4

§ 5K1.1 Substantial 6

Other Gov sponsored below 2

Non Gov sponsored below 7

Total number of offenders: 19

Sentence: # Months:

Above range N/A

Within range 38

§ 5K1.1 Substantial 17

Other Gov sponsored below 19

Non Gov sponsored below 14

All offenders average 21

Broad Calculation In Commission Report [= Lower Percentage]:

This Commission Report calculates that 36.8% of Non Government Sponsored offenders received a below guidelines range sentence averaging 14 months. This calculation is as follows: 7/19 = 36.8%, based upon the increased denominator 19 that contains Datafiles data irrelevant sub category offender information to below guideline range offenders nationally.

The more meaningful table that could be prepared for the Court, using Datafiles data extracted for a period of years, and in some cases actual Commission tables itself, would be a chart specifically tailored to Non-Government Sponsored Offenders sentenced nationally. This process reduces the denominator by inclusion of only relevant offenders and raises the percentage applicable to any particular sub category. With that premise, this would then be the meaningful percentage computation for Non Government Sponsored offenders receiving a below guidelines sentence.

Calculation Specific To A Single Offender Sub Category [= Higher Percentage]:

7/11 = 63.6% of Non Government Sponsored Offenders received a below guideline range sentence averaging 14 months. That calculation is markedly different from the Commission’s calculation that only 36.8% of all offenders received a below guidelines range sentence averaging 14 months. This reformatted data can then be utilized to make a compelling argument that sentencing a particular offender above the national average in that sub category would create an unwarranted disparate sentence, pursuant to 18 U.S.C. § 3663(a)(6), based upon the Commission’s own data.

These are strictly mathematical calculations based upon isolated correct data, and are normally not subject to dispute either by the Court or the opposition. Math is math.

Consider Datafiles Tailored National Data Analysis For Use At Sentencing

Short of arguing national Datafiles data tailored to your particular case for purposes of 18 U.S.C. § 3663(a)(6), you are relegated to finding individual similar cases on Google and/or Pacer and then researching case any found files individually. The individual case search may give you an argument that your particular case is more akin to any other particular case at sentencing, but you will not have the benefit of arguing national Commission historical data for the purpose of meaningfully presenting the need to avoid unwarranted disparate sentences, to rebut arguments from your opponent that you have not proven anything statistically relevant at the sentencing hearing.

In the event your opposition pulls out one or two or three similar cases for the Court, as examples of how your client should be sentenced, you may want to consider being prepared to argue national relevant data and statistics to rebut individualized case file data relied upon by your opponent.

Federal Sentencing Alliance Assistance Available:

Federal Sentencing Alliance may be able to assist you obtain the necessary extracted historical data, analysis, charts, and tables, using Commission raw Datafiles data tailored to your particular case, in order to make a meaningful presentation to the Court relative to this factor the Court must consider, as delineated in 18 U.S.C. § 3553(a)(6). Please feel free to call or email FSA for a consultation regarding these issues.

This Article is for educational purposes only, to provoke critical thinking regarding the topical issues presented, and does not constitute legal advice. Please consult with an attorney to discuss the facts of your particular case.

© 2019 Federal Sentencing Alliance

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