« Coasean Positioning System | Main | What I Want to Read, but Can't »

Wednesday, February 15, 2012

Sentencing Guidelines: Discretion or Bias?

Last week I took my 1L students on a field trip to the Federal District Court. The students met with a judge, who briefly discussed an imminent sentencing hearing and how the Federal Sentencing Guidelines limited his ability to give the defendant a longer sentence. We stayed to watch the sentencing hearing and what transpired was the following: Government requested 97 months, where the range for the offense was 97-120 months. Defense counsel agreed to Government's request for 97 months. Defendant made elocution, wherein he noted his very sad personal story and apologized to victims. Judge then acknowledged the parties agreement on the sentence, noted he read the pre-sentencing report, and sentenced the defendant to 120 months. I have limited personal experience with the federal sentencing guidelines. In the case of my own federal appeal as a CJA, the Government and defense counsel requested a mid-range sentence and the judge agreed to and entered the sentence. So my query is this: is it typical for the judge to enter a sentence in excess of the term agreed upon by the parties and to max out the Guidelines? In this case for an additional two years? I was a little surprised, but am curious if this is the norm.

Posted by DBorman on February 15, 2012 at 10:32 AM | Permalink


TrackBack URL for this entry:

Listed below are links to weblogs that reference Sentencing Guidelines: Discretion or Bias?:


Brad, thank you for your thorough potentially accurate theory of the case and for explaining the intricacies of the Guidelines and adjustments to the range. There are many things we, as observers, do not and would not know just from watching the hearing and you provide one viable explanation.

Posted by: Debbie Borman | Feb 17, 2012 10:33:07 AM

Some speculation on what might've been going on here . . .

The statutory maximum had to have been 10 years. Here's why: A range of 97 to 120 months doesn't exist in the Guidelines' Sentencing Table, but that could nevertheless be the range if the charge of conviction carried a statutory maximum of 10 years. Under the Guidelines, if the top of the calculated range is greater than the statutory maximum, then the statutory maximum becomes the top of the Guidelines range. So if the calculated range in this case worked out to 97 to 121 months (a range found in the Sentencing Table), a statutory maximum of 10 years would reduce that range to 97 to 120 months. And because the Sentencing Guidelines are only advisory, the judge had to have been limited to 120 months by the statute, not the Guidelines.

As for why the judge might have imposed the 120-month sentence in the face of both parties' recommendation/request for 97 months, I suspect that there was some charge bargaining that went on here that the judge felt understated the defendant's conduct/culpability. You described it as a file-sharing case, which could have been charged as receipt/distribution, an offense carrying a 5- to 20-year statutory range. Simple possession of the images is a 0- to 10-year offense. So what could have happened is that the defendant was initially charged with receipt/distribution, and that was bargained down to possession for whatever reason. In that case, the plea agreement may very well have included a provision requiring the Government to request a sentence at the low end of the Guidelines range, which would explain the prosecutor's recommendation. If the case in fact involved distribution, rather than just possession, then the judge may have felt that the maximum sentence was warranted.

Posted by: Brad Bogan | Feb 16, 2012 4:18:14 PM


Was there any mention in court of the substance of the Pre-Sentencing Report, which was prepared by the Probation Department, as well as Probation's recommendation? Occasionally, the Probation Department disagrees with the attorneys on how they calculated the GL range and will consequently recommend a different GL range. In addition, Probation's report sometimes reveals some piece of information that the Court finds particularly relevant (e.g., the defendant's attitude during his/her interview with Probation).

In response to Dan: Yes, AUSAs may be repeat players, but so are the Federal Defenders and a number of well-known defense attorneys who do repeat business in the district. Ironically, some of the defendants who are much worse off are the ones who fire the Federal Defender after the first appearance, and then pay a lot of $$ for a private attorney who knows fairly little about federal criminal practice.


Posted by: miriam baer | Feb 16, 2012 11:20:58 AM

Dan, you are probably right about the complexity. This judge didn't hesitate to tell a classroom of students his opinion on the nature of the crime before the hearing. From my vantage point, defense counsel looked very seasoned and the AUSA looked a little more than green and was not aggressive, at least in this hearing. All hard to say without the details, but still troubling, as Nx commented.

Posted by: Debbie Borman | Feb 16, 2012 10:58:44 AM

I don't know the details of this case, obviously, but I suspect that the story is a bit more complex. For example, I imagine that experienced lawyers in the jurisdiction have some knowledge of this judge's sentencing behavior. Perhaps the AUSA made the lowball offer precisely to induce a plea deal, knowing well that the judge might be inclined to go above the recommendation. In this way, information asymmetry between a repeat player AUSA and an inexperienced or uninformed defense attorney creates severe disadvantages for a defendant. On the other hand, perhaps this was a rare occurrence for this judge - one triggered by broader social anxiety about child pornography. (But that too is predictable - and for all we know, the defense attorney counseled defendant around just this risk.)

Posted by: Dan Filler | Feb 16, 2012 10:36:52 AM

I found this judge's comments troubling. As several commenters have noted, except where there's a mandatory minimum, the judge has discretion to go below the Guidelines, and, except where the statutory maximum comes into play, the judge has discretion to go above them as well.

In my experience, contrary to the comment of one of the prosecutor above, no, it is not routine for federal judges to go above the parties' agreement. That said, certain specific judges who do so as a matter of course. As others have noted, judges are free to do so, as stated expressly in the plea agreement and plea colloquy. There are, however, systemic costs to doing so, specifically, those judges dramatically increase the likelihood that defendants assigned to them will not take any government offer because those defendants know in advance that they will not see the benefit of their bargain. (Of course, you might see the whole plea bargaining system as a bad idea in the first place, in which case those judges are simply doing their part in ensuring that defendants won't participate in it.)

Posted by: Nx | Feb 16, 2012 1:06:49 AM

Based on my 7-year experience as a federal prosecutor, judges generally go along with the government. Variations can come from the fact that government prosecutors are all over the map in terms of what they charge, especially in terms of tacking on multiple 844s or 924cs vs. letting the defendant plea to a low-time charge. The variations both up and down can be huge, there can be socio-economic/racial bias, and not infrequently the variations result in manifest injustice. Here the fact that the defendants apologized to his child pornography victims suggests (plural) suggests that the underlying facts may have been exceptionally serious. Of course,it also is possible that the judge just really, really hates the purveyors of child pornography. The variations are the reasons for guidelines.

My own opinion is that time over 18 months makes sense only if you just want to keep someone out of circulation - warehouse them - until they are no longer a likely problem.

Posted by: jt | Feb 15, 2012 10:17:30 PM

All the more reason why a plea agreement should not be deemed entered into "knowingly and intelligently" if the defendant gives up rights BEFORE the defendant really knows what he/she will get in return. But, of course, recognizing that rather obvious problem would mean compromising such a great scheme of "efficiency" that helps minimize judicial(and government attorney) workload. And, of course, we can't do that.

Posted by: Edward Cantu | Feb 15, 2012 6:33:37 PM

Prosecutors already have the lion's share of the discretionary authority in the justice system.

I'm not at all troubled that a judge would exercise one of the few tools at his disposal.

Posted by: Brad | Feb 15, 2012 4:20:07 PM

As Stew said, the judge is never bound by the plea agreement, and rarely by the Sentencing Guidelines since Booker. That said, it's typical for judges to abide the parties' agreement as a practical matter, since it would be very hard to negotiate pleas if defendants are advised that they won't get the benefit of the bargain.

It sounds like this judge, if he said what you relate, missed judge school. I've never heard a judge complain that he's constrained to limit his sentence by the guidelines, and imposing 120 months where both sides ask for 97 is, well, nuts, and very troubling policy. If you take law students again, perhaps you should find another judge.

Posted by: shg | Feb 15, 2012 1:26:28 PM

Thanks, Stew. The charge was child pornography file sharing. To me it seems that if the Government has assessed the nature of the crime and the appropriate punishment that the judge might tend to be mindful of that assessment. I could see if the Government requested 120 and defense argued for 97, that the judge would go with the Government's recommendation, but if this scenario is not atypical then there it is.

Posted by: Debbie Borman | Feb 15, 2012 12:58:41 PM


I'm not sure about typical, but the sentencing guidelines not being mandatory anymore means that judges have a lot more discretion to do what they want. Given that the guidelines sound like they were 97-120 months, the judge can still depart outside the guidelines, but can't depart outside the statutory maximum (Apprendi). So, if the stat max was 20 years, he is limited by that, but these guidelines themselves really didn't limit him unless the stat max was 10 years. (What was the charge? If drugs, it is likely the stat max was 20 years, at least.)

As an AUSA, I would often agree with the defense on a recommended sentence, but the plea agreement is very clear that the judge may not give the recommended sentence and can give up to the stat max instead. During the plea colloquy, this is also stressed as well. Although not that common, it does happen some, and isn't that atypical.

Posted by: Stew Young | Feb 15, 2012 11:24:31 AM

The comments to this entry are closed.