Booker
In This Issue

Booker 101. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
By Ed Hagen
Septem ber
2006
Volume 54
Number 6
United States
Department of Justice
Executive Office for
United States Attorneys
Washington, DC
20530
Michael A. Battle
Director
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Responding to the Fast-Track Disparity Argument. . . . . . . . . . . . . . . . . . . 11
By Paul W. Hahn
Preparing for a Sentencing Hearing.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
By Lori A. Hendrickson
The Presumption of Reasonableness for Within-Guidelines Sentences. . . 27
By Elizabeth A. Olson
Guideline "Departures" at Sentencing. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
By Robert Don Gifford
Off The Beaten Path: A Case Study of Unusual Post-Booker Litigation In
United States v. Harper. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
By Traci L. Kenner

Booker 101
Ed Hagen
Assistant Director
Office of Legal Education
Executive Office for United States Attorneys

I. Introduction
efore 2004, the State of Washington
used a sentencing guidelines system that
mandated certain sentencing ranges.
These ranges were calculated using a grid that
accorded values to the severity of the offense and
the criminal history of the defendant. Some of the
findings necessary to determine the proper
sentencing ranges were made at sentencing
proceedings by sentencing judges. In Blakely v.
Washington, 542 U.S. 296, 301 (2004), the
United States Supreme Court decided that this
system violated the rule previously announced in
Apprendi v. New Jersey, 530 U.S. 466, 490
(1999): "Other than the fact of a prior conviction,
any fact that increases the penalty for a crime
beyond the prescribed statutory maximum must be
submitted to a jury, and proved beyond a
reasonable doubt."

B

The following year, in United States v.
Booker, 543 U.S. 220 (2005), the Court held that
the Sixth Amendment principles announced in
Apprendi and Blakely apply to the U.S.
Sentencing Guidelines. The Court, however, did
not take the further step of requiring that the
government plead and prove enhancements to a
jury. Instead, it held that the statute making the
Guidelines mandatory (18 U.S.C. § 3553(b)(1))
and the provision establishing standards of review
on appeal (18 U.S.C. § 3742(e)) were severable
from the statutory guidelines scheme. With those
statutes off the board, the Guidelines became
"effectively advisory." Booker, 543 U.S. at 245.
Sentencing judges must consider the guidelines
range, but are permitted to "tailor the sentence in
light of other statutory concerns" that include the
factors listed in 18 U.S.C. § 3553(a). Id. at
245-46. The resulting sentences can be reviewed
on appeal for "unreasonableness." Id. at 260-61.
The Keycite feature of Westlaw indicates that,
at this writing, more than 15,000 case decisions
have cited Booker. It is safe to say that nobody
has read them all. One might conclude from this
that a proper treatment of Booker, its sources, and
S EPTEM BER 2006

its progeny, would be better done in a book, or
series of books. However, a less ambitious
approach makes more sense. Consider a historic
parallel, the Supreme Court's decision in Miranda
v. Arizona, 384 U.S. 444 (1966). A book about the
Miranda decision written in 1967 would have
been close to useless within months of its
publication. However, a collection of articles in a
periodical would have helped clarify the issues.
That is the approach taken in this issue of the
United States Attorneys' Bulletin.
This article reflects the views of the author,
and is not a policy statement of the Department of
Justice. It will not dwell unnecessarily on what the
law was, it will not attempt to argue what the law
should be, and it will not forecast what the law
will be. It is instead intended to be a working
lawyer's survey of what the law is now. Lengthy
analysis of individual cases is avoided as it would
interfere with the goal of providing a practical
overview of the entire legal picture.

II. Indeterminate and determinate
sentencing
It was only after the American Revolution that
the incarceration of criminals as punishment
became common in this country. In colonial
times, misdemeanants were pilloried or flogged,
and felons were executed. See United States v.
Scroggins, 880 F.2d 1204, 1206-08 (11th Cir.
1989). In those days the idea of incarceration as a
punishment would have been considered an
"absurd expense." Apprendi, 530 U.S. at 480 n.7,
citing J.H. B AKER Criminal Courts and Procedure
at Common Law. Historical Essays 1550-1800,
C RIME IN E NGLAND 1550-1800 259 (1986).
A rapid rise in the population and increasingly
liberal sentiments about crime and punishment
caused Americans to look for alternatives to the
slaughter of felons. An Italian criminologist,
Cesare Beccaria, was particularly influential.
Beccaria recommended that:
(1) legislatures strictly define punishments for
various crimes and limit the power of judges
to arbitrarily modify them, (2) laws be clear
and public, (3) punishments be designed
solely to specifically deter any given offender
from further offense and to generally deter

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society from criminal acts, and (4)
punishments be the "least necessary" to
achieve deterrence.
Matthew W. Meskell, The History of Prisons in
the United States from 1777 to 1877, 51 S TAN . L.
R EV . 839, 844 (1999). State by state, legislatures
restricted the number of capital offenses, and
began to house convicted criminals in prisons. Id.
at 846-64. By the twentieth century, felons
typically received "indeterminate sentences."
Criminals were sentenced to a maximum sentence,
but the actual length of the sentence was
determined by parole boards, who would release
prisoners when they were "rehabilitated."
Scroggins, 880 F.2d at 1206-07.
Congress adopted a system of indeterminate
sentencing for federal offenses in the Act of June
25, 1910, ch. 387, 36 Stat. 819, 819-21 (Parole
Act), and the Act of May 13, 1930, ch. 255, 46
Stat. 272 (United States Board of Parole). Federal
sentencing under those Acts was not completely
indeterminate. Judges had the option under former
18 U.S.C. § 4205(a) to mandate that the defendant
serve one-third of the sentence before being
eligible for parole, and typically did so.
Scroggins, 880 F.2d at 1207 n.7.
Congress abandoned indeterminate sentencing
in 1984 after a Congressional study concluded
that "[w]e know too little about human behavior
to be able to rehabilitate individuals on a routine
basis or even to determine accurately whether or
when a particular prisoner has been rehabilitated."
S. R EP . N O . 225, at 40 (1984), as reprinted in
1984 U.S.C.C.A.N. 3182, 3223. It was replaced
by the Sentencing Reform Act of 1984, Pub. L.
No. 98-473, § 211, 98 Stat.1987 (codified as
amended in scattered sections of Titles 18 and 28
U.S.C.). Under this new system of "determinate
sentencing" the Board of Parole was abolished,
and defendants served their full term, minus a
provision for statutory "good time" credits and
prerelease custody. See 18 U.S.C. § 3624. The Act
established the United States Guidelines
Commission, which was tasked to create
sentencing guidelines to determine how long
sentences ought to be for "each category of
offense" and "each category of defendant." 28
U.S.C. § 994(b)(1).
Under the determinate sentencing regime in
force after the adoption of the U.S. Sentencing
Guidelines, a sentencing judge would calculate
the defendant's "guidelines range" from a
2

"sentencing grid," after making findings about the
defendant's personal background and the nature of
the offense.
The sentencing judge must select a sentence
from within the guideline range. If, however,
a particular case presents atypical features, the
Act allows the judge to depart from the
guidelines and sentence outside the range. In
that case, the judge must specify reasons for
departure. 18 U.S.C. § 3553(b). If the court
sentences within the guideline range, an
appellate court may review the sentence to see
if the guideline was correctly applied. If the
judge departs from the guideline range, an
appellate court may review the reasonableness
of the departure. 18 U.S.C. § 3742. The Act
requires the offender to serve virtually all of
any prison sentence imposed, for it abolishes
parole and substantially restructures good
behavior adjustments.
U.S. S ENTENCING G UIDELINES M ANUAL § 1A1.1,
cmt. n. 1. (2005).
This was the system that came crashing down
when Blakey and Booker were decided.

III. Sentencing enhancements based on
judicial findings at sentencing
In a parallel development, Congress, from
time to time, enacted statutes that required that
defendants serve mandatory minimum sentences,
or face higher maximum sentences, based on
findings by judges at sentencing proceedings.
Defense attorneys have challenged these judicial
findings on constitutional grounds, arguing that
they violate the Fifth Amendment right to an
indictment, Sixth Amendment right to a jury trial,
and the Fourteenth Amendment due process right
to proof beyond a reasonable doubt. These types
of findings resemble the findings required to place
a defendant in a sentencing grid and,
consequently, a review of these cases is essential
to understanding Booker.
In In re Winship, 397 U.S. 358, 364 (1970),
the United States Supreme Court held that "the
Due Process Clause protects the accused against
conviction except upon proof beyond a reasonable
doubt of every fact necessary to constitute the
crime with which he is charged." In Mullaney v.
Wilbur, 421 U.S. 684, 704 (1975), the Court held
that the Due Process Clause "requires the
prosecution to prove beyond a reasonable doubt

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S EPTEM BER 2006

the absence of the heat of passion on sudden
provocation when the issue is properly presented
in a homicide case."
However, in Patterson v. New York, 432 U.S.
197 (1977), the Court upheld a murder statute that
made homicide committed under extreme
emotional disturbance a lesser crime, and placed
the burden of proof on that issue on the defendant.
In McMillan v. Pennsylvania, 477 U.S. 79 (1986),
the Court upheld a Pennsylvania statute that
provided a five-year minimum sentence for some
felonies if the judge found, by a preponderance of
the evidence at the sentencing hearing, that the
defendant "visibly possessed a firearm" while
committing the felony. The rationale for Patterson
and McMillan was that only elements of the
offenses must be proven beyond a reasonable
doubt, and the "state legislature's definition of the
elements of the offense is usually dispositive." Id.
at 85.
The Pennsylvania Legislature did not change
the definition of any existing offense. It
simply took one factor that has always been
considered by sentencing courts to bear on
punishment—the instrumentality used in
committing a violent felony—and dictated the
precise weight to be given that factor if the
instrumentality is a firearm. Pennsylvania's
decision to do so has not transformed against
its will a sentencing factor into an "element"
of some hypothetical "offense."
Id. at 90-91.
The federal reentry after deportation/removal
statute, 18 U.S.C. § 1326, originally provided a
maximum penalty of two years in prison. In 1988,
Congress amended the statute to provide a twentyyear maximum sentence if the deportation came
after the commission of an aggravated felony.
Pub. L. No. 100-690, Title VII, § 7345(a), 102
Stat. 4471 (1988). The defendant in
Almendarez-Torres v. United States, 523 U.S. 224
(1998), argued that he could not receive more than
two years in prison because his prior aggravated
felonies had not been alleged in his indictment.
The sentencing judge decided otherwise, and
imposed an eighty-five-month sentence. The
Supreme Court noted that, within limits, Congress
determines whether a fact is an element of the
crime that must be proven beyond a reasonable
doubt, or simply a sentencing factor. Id. at 228.
Congressional intent was not extremely clear on
the aggravated felony provision, but the Court
S EPTEM BER 2006

concluded that it was intended to be a sentencing
factor. Id. at 235.
The defendant argued that, even if Congress
so intended, treating the aggravated felony
provision as a mere sentencing factor violated his
constitutional rights to have the factor alleged in
the indictment and proved beyond a reasonable
doubt before a jury. He further argued that
McMillen was distinguishable because the factor
in McMillen (possession of a firearm) did not alter
the maximum penalty for the crime. The Supreme
Court disagreed. Recidivism is traditionally a
sentencing factor. The Court was not persuaded
that hard minimums (McMillan) are less onerous
than permissive maximums (Almendares-Torres).
The aggravated felony provision did not "change a
pre-existing definition of a well-established
crime," and there is no reason "to think Congress
intended to 'evade' the Constitution, either by
'presuming' guilt or 'restructuring' the elements of
an offense." Id. at 246.
Things took a dramatic turn in Apprendi v.
New Jersey, 530 U.S. 466 (2000), where the
Supreme Court held unconstitutional a New
Jersey statute that increased the maximum
sentence for certain offenses from ten years to
twenty years if the sentencing judge found, by a
preponderance of the evidence, that the crime
involved racial intimidation. "Other than the fact
of a prior conviction, any fact that increases the
penalty for a crime beyond the prescribed
statutory maximum must be submitted to a jury,
and proved beyond a reasonable doubt." Id. at
490. It did not matter that the New Jersey
legislature intended it to be a "sentencing
enhancement," not an element. If a fact "is used to
describe an increase beyond the maximum
authorized statutory sentence, it is the functional
equivalent of an element of a greater offense than
the one covered by the jury's guilty verdict." Id. at
494 n.19.
Once again, McMillan was distinguished, not
overruled. "We limit its holding to cases that do
not involve the imposition of a sentence more
severe than the statutory maximum for the offense
established by the jury's verdict—a limitation
identified in the McMillan opinion itself." Id. at
487 n.13. Almendares-Torres was characterized as
"at best an exceptional departure from the historic
practice that we have described" and perhaps
"incorrectly decided." Id. at 487, 489.

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In Harris v. United States, 536 U.S. 545, 556
(2002), the Court determined that the enhanced
sentence under 18 U.S.C. § 924(c)(1)(A)(ii) for
brandishing a firearm was intended by Congress
to be a sentencing enhancement, not an element.
Under Apprendi, it is unconstitutional to craft
sentencing enhancements that increase the
maximum sentence. However, the enhancements
in § 924(c)(1)(A)(ii) increased the mandatory
minimum sentence, not the statutory maximum
sentence. This is permitted by McMillan, and per
Harris, McMillan survives Apprendi.
In Washington v. Recuenco, 2006 WL
1725561 (U.S. June 26, 2006), the state
sentencing judge had, pre-Blakely, used a firearms
finding not determined by the jury or admitted by
the defendant to enhance a sentence. This was
constitutional error, but not structural error, so a
harmless error test applied on review. The Court
emphasized that there was no practical or legal
distinction to be drawn between "elements" and
"sentencing factors." Id. at *5.
As noted above, the continuing validity of
Almendarez-Torres was called into question in
Apprendi. See also Shepard v. United States, 544
U.S. 13, 26 (2005) (Thomas, J., concurring)
("Almendarez-Torres . . . has been eroded by this
Court's subsequent Sixth Amendment
jurisprudence, and a majority of the Court now
recognizes that Almendarez-Torres was wrongly
decided."). Circuit courts have declined defense
invitations to ignore Almendarez-Torres. See, e.g.,
United States v. Cheek, 415 F.3d 349, 352-53 (4th
Cir. 2005) ("Even were we to agree with Cheek's
prognostication that it is only a matter of time
before the Supreme Court overrules AlmendarezTorres, we are not free to overrule or ignore the
Supreme Court's precedents.") The Supreme
Court seems unlikely to revisit the issue. Justice
Stevens issued this statement accompanying the
denial of petitions for certiorari raising the issue:
While I continue to believe that [AlmendarezTorres] was wrongly decided, that is not a
sufficient reason for revisiting the issue. The
denial of a jury trial on the narrow issues of
fact concerning a defendant's prior conviction
history . . . will seldom create any significant
risk of prejudice to the accused. Accordingly,
there is no special justification for overruling
Almendarez-Torres. Moreover, countless
judges in countless cases have relied on
Almendarez-Torres in making sentencing
determinations. The doctrine of stare decisis
4

provides a sufficient basis for the denial of
certiorari in these cases.
Rangel-Reyes v. Unites States, 2006 WL 1209141,
*1 (U.S. June 12, 2006).

IV. Sentencings after Booker
A. Required findings
Sentencing proceedings are governed by
Federal Criminal Procedure Rule 32. The Rule has
not been amended post-Booker, and nothing in it
seems to have been abrogated by the decision.
Paragraph (h) requires notice before imposing
a departure sentence. See United States v. Dozier,
2006 WL 864877 (10th Cir. Apr. 5, 2006). As
discussed in Section V.B. of this article, Booker
introduced the concept of sentences outside
guidelines ranges that are not technically
departures, and one circuit has held that the notice
provision in Rule 32(h) does not apply in those
cases. United States v. Egenberger, 424 F.3d 803,
805 (8th Cir. 2005).
Criminal Procedure Rule 32(i)(3)(B) calls on
judges to rule on factual disputes at sentencing,
but they need not "address every argument that a
defendant makes at the sentencing hearing."
United States v. Cunningham, 429 F.3d 673, 679
(7th Cir. 2005). Explicit fact-finding is required,
however, if "contested facts are material to the
judge's sentencing decision." United States v.
Dean, 414 F.3d 725, 730 (7th Cir. 2005).
Since judges are required to "consider" the
guidelines range, 18 U.S.C. § 3553(a)(4), it
logically follows that they are required to
calculate it. United States v. Crosby, 397 F.3d
103, 112 (2d Cir. 2005); United States v. Mares,
402 F.3d 511, 519 (5th Cir. 2005). A failure to do
so is generally reversible error. United States v.
Robinson, 435 F.3d 699, 702 (7th Cir. 2006);
United States v. Davila, 418 F.3d 906, 908 (8th
Cir. 2005) (sentence reversed where the
government suggested that the court use the
Guidelines as a reference, and the judge replied,
"I'm not actually going to make any guidelines
calculations whatsoever").
The judge should consider applicable 18
U.S.C. § 3553(a) factors. These need not be
discussed in "checklist fashion." United States v.
Moreland, 437 F.3d 424, 433 (4th Cir. 2006). "As
long as the judge is aware of both the statutory
requirements and the sentencing range or ranges

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that are arguably applicable, and nothing in the
record indicates misunderstanding about such
materials or misperception about their relevance,
we will accept that the requisite consideration has
occurred." United States v. Fleming, 397 F.3d 95,
100 (2d Cir. 2005).
Section 3553(a) requires a "sentence
sufficient, but not greater than necessary" to meet
the purposes of § 3553(a)(2). This has sometimes
been referred to as the "parsimony provision." It
does not appear to call for any special findings.
See United States v. Navedo-Concepcion, 2006
WL 1575573, *4 (1st Cir. June 9, 2006) ("[W]e
do not think that the 'not greater than necessary'
language requires as a general matter that a judge,
having explained why a sentence has been chosen,
also explain why some lighter sentence is
inadequate.")
Most sentences should fall within the
sentencing range. "[T]he guidelines cannot be
called just 'another factor' in the [§3553(a) list]
because they are the only integration of the
multiple factors and, with important exceptions,
their calculations were based upon the actual
sentences of many judges." United States v.
Jimenez-Beltre, 440 F.3d 514, 518 (1st Cir. 2006)
(citation omitted); accord United States v. Scott,
426 F.3d 1324, 1330 (11th Cir. 2005). The farther
a sentence strays from the range, the more
compelling the § 3553(a) based justification must
be. Dean, 413 F.3d at 729. A "dramatic variance"
from a guideline range "must be supported by
compelling justifications related to § 3553(a)
factors," and "excessive weight" may not be given
to any single factor. United States v. Hampton,
441 F.3d 284, 288 (4th Cir. 2006).
The imposition of a within-guidelines
sentence "does not relieve the sentencing court of
its obligation to explain to the parties and the
reviewing court its reasons for imposing a
particular sentence." United States v. Richardson,
437 F.3d 550, 554 (6th Cir. 2006).
To a defendant, the sentencing proceeding is
perhaps one of the most important and grave
life moments. It is the time that a person is
faced with the prospect of confinement for
many years in a federal prison, often followed
by an extended period of supervised release.
Given the Supreme Court's clarification of
what considerations should guide sentencing
decisions, we consider it a very small burden
upon the district court to explain its
S EPTEM BER 2006

consideration of the § 3553(a) factors and
their impact on the sentence imposed. It ought
not be the job of this court, nor the defendant,
to attempt to divine the motivation of the
district court at sentencing in the penumbra of
the record.
United States v. Engler, 422 F.3d 692, 697 (8th
Cir. 2005).
A judge must give a reason for a sentence, but
need not state a reason for denying a request for a
departure. United States v. Jones, 2006 WL
986958 (6th Cir. Apr. 17, 2006).

B. Rules of evidence and burden of proof
Title 18 U.S.C. § 3661 provides that "[n]o
limitation shall be placed on the information
concerning the background, character, and
conduct of a person convicted of an offense which
a court of the United States may receive and
consider for the purpose of imposing an
appropriate sentence."
Although confrontation is a fundamental
component of due process, the Supreme Court has
held that the use of hearsay at sentencing does not
violate a defendant's confrontation rights. See
Williams v. Oklahoma, 358 U.S. 576, 584 (1959);
Williams v. New York, 337 U.S. 241, 250-51
(1949) (citing with approval the "age-old practice
of seeking information from out-of-court sources
to guide [a court's] judgment toward a more
enlightened and just sentence."). Booker has no
effect on these time-honored rules. See, e.g.,
United States v. Martinez, 413 F.3d 239, 244 (2d
Cir. 2005) ("If consideration of hearsay testimony
during a sentence proceeding was not prohibited
under a mandatory Guidelines regime, there is no
logical basis for concluding that it is prohibited
under the system of advisory Guidelines
established by Booker.").
There are due process limits to this rule.
A sentencing court may consider any
information, (including hearsay), regardless of
its admissibility at trial, in determining
whether factors exist that would enhance a
defendant's sentence, provided that the
evidence has sufficient indicia of reliability,
the court makes explicit findings of fact as to
credibility, and the defendant has an
opportunity to rebut the evidence.
United States v. Baker, 432 F.3d 1189, 1253 (11th
Cir. 2005); Martinez, 413 F.3d at 244 (the hearsay

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5

must contain "some minimal indicia of
reliability").
The burden of proof for guidelines sentencing
facts, before and after Booker, is a preponderance
of the evidence. United States v. Cooper, 437 F.3d
324, 330 (3d Cir. 2006); United States v. Mares,
402 F.3d 511, 519 (5th Cir. 2005). See also
United States v. Gonzalez, 407 F.3d 118, 124 (2d
Cir. 2005) ("[T]he rule of lenity is not applicable
to a district court's fact-finding role at
sentencing.")
A judge can even consider conduct that the
defendant was acquitted of at trial, since the
burden of proof at sentencing is lower than at trial.
United States v. Watts, 519 U.S. 148 (1997);
United States v. Vaughn, 430 F.3d 518, 526 (2d
Cir. 2005) (Booker does not undermine the
continuing validity of Watts); United States v.
Price, 418 F.3d 771, 788 (7th Cir. 2005) (jury
acquitted the defendant on a conspiracy count, but
the district judge found that he was a member of
the conspiracy for sentencing purposes);
United States v. Magallanez, 408 F.3d 672, 684
(10th Cir. 2005) (Watts and § 3661 "remain[] in
full force" after Booker). See also United States v.
Phillips, 431 F.3d 86, 90-93 (2d Cir. 2005)
(unadjudicated juvenile conduct may be properly
considered under U.S. Sentencing Guidelines
Manual § 4B1.5(b)).

V. Appellate review
A. Reasonableness of Guidelines sentences
The United States has taken the threshold
position that appellate courts lack jurisdiction
under 18 U.S.C. § 3742 to review sentences that
are within a properly calculated guidelines range,
but every circuit considering this argument has
rejected it. "A majority of Justices said explicitly
in Booker that sentences would be reviewable for
reasonableness whether they fell within or without
the guidelines, and for us that is the end of the
matter." United States v. Jimenez-Beltre, 440 F.3d
at 517 (1st Cir. 2006) (en banc) (footnote
omitted)).
A reasonableness review will involve a review
of legal conclusions and findings of fact. It is
axiomatic that a sentencing court's legal
conclusions are reviewed de novo. See, e.g.,
Hampton, 441 F.3d at 287. This would include the
interpretation and application of the U.S.
Sentencing Guidelines. United States v. Bailey,

6

405 F.3d 102, 113 (1st Cir. 2005). It would also
include constitutional challenges. United States v.
Richardson, 437 F.3d 550, 555 (6th Cir. 2006).
Factual findings are reviewed for clear error.
Hampton, 441 F.3d at 287; United States v.
Creech, 408 F.3d 264, 270 n.2 (5th Cir. 2005).
Mixed questions of fact and law are reviewed
either "de novo or under the clearly erroneous
standard depending on whether the question is
predominantly legal or factual." United States v.
Selioutsky, 409 F.3d 114, 119 (2d Cir. 2005).
Reasonableness review is deferential.
United States v. Talley, 431 F.3d 784, 787 (11th
Cir. 2005). Trial judges are "in the best position to
determine the appropriate sentence in light of the
particular circumstances of the case." Cooper, 437
F.3d at 330; United States v. Ellis, 440 F.3d 434,
438 (7th Cir. 2006) ("While we would not
necessarily impose the same sentence as the
district court, our inquiry is bound by substantial
deference to it.") "We do not apply the
reasonableness standard to each individual
decision made during the sentencing process;
rather, we review the final sentence for
reasonableness." United States v. Winingear, 422
F.3d 1241, 1245 (11th Cir. 2005).
It is not surprising that most circuits accord a
presumption of reasonableness where a sentencing
judge has accurately computed the guideline
range, considered the § 3553(a) factors, and
exercised discretion to sentence within the
guidelines range. United States v. Kristl, 437 F.3d
1050, 1053 (10th Cir. 2006); United States v.
Williams, 436 F.3d 706, 708 (6th Cir. 2006);
United States v. Alonzo, 435 F.3d 551, 554 (5th
Cir. 2006); United States v. Cawthorn, 429 F.3d
793, 802 (8th Cir. 2005); United States v.
Mykytiuk, 415 F.3d 606, 608 (7th Cir. 2005). The
Fourth Circuit has termed this the "foremost"
principle in looking at the reasonableness of a
sentence. United States v. Johnson, No. 2006 WL
893594, *2 (4th Cir. Apr. 7, 2006).
This presumption is consistent with the
related rule, in several circuits, that "a sentencing
court's discretionary refusal to depart is
[generally] unreviewable." United States v.
Melendez-Torres, 420 F.3d 45, 50 (1st Cir. 2005);
Cooper, 437 F.3d at 333; United States v. Puckett,
422 F.3d 340, 345 (6th Cir. 2005); United States
v. Winingear, 422 F.3d 1241, 1245 (11th Cir.
2005); United States v. Frokjer, 415 F.3d 865,
875 (8th Cir. 2005); United States v.

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Sierra-Castillo, 405 F.3d 932, 936 n.2 (10th Cir.
2005).
There are circuits that hesitate to use the word
"presumption," but the difference seems to be
more a matter of semantics than substance. For
example, in United States v. Fernandez, No.
05-1596 (2d Cir. Apr. 3, 2006), the court rejected
the notion that there is a "presumption, rebuttable
or otherwise, that a Guidelines sentence is
reasonable." However, in the same decision, the
court noted that "[r]easonableness review does not
entail the substitution of our judgment for that of
the sentencing judge. Rather, the standard is akin
to review for abuse of discretion." The court also
"presume[d], in the absence of record evidence
suggesting otherwise, that a sentencing judge has
faithfully discharged her duty to consider the
statutory factors." Similarly, in United States v.
Jimenez-Beltre, 440 F.3d at 518, the court
declined to afford a presumption, but observed
that the Guidelines are more than just "another
§ 3553(a)] factor" because they are the only
integration of the multiple factors, and the
calculations are based on studies of actual
sentences by an "expert agency charged by
Congress."
Error in construing or applying the Guidelines
will result in the sentence being vacated as
unreasonable. United States v. Green, 436 F.3d
449, 460 (4th Cir. 2006) (incorrect application of
§ 4B1.1); United States v. Crawford, 407 F.3d
1174, 1179 (11th Cir. 2005) ("[A]s was the case
before Booker, the district court must calculate the
Guidelines range accurately."); United States v.
Mashek, 406 F.3d 1012, 1015 (8th Cir. 2005) ("If
the sentence was imposed as the result of an
incorrect application of the guidelines, we will
remand for resentencing as required by 18 U.S.C.
§ 3742(f)(1) without reaching the reasonableness
of the resulting sentence in light of § 3553(a).");
United States v. Cantrell, 433 F.3d 1269, 1279
(9th Cir. 2006) (case goes back unless the error is
harmless).
The key to understanding all of this is to
remember the different roles of sentencing and
appellate courts.
It is worth noting that a district court's job is
not to impose a "reasonable" sentence. Rather,
a district court's mandate is to impose "a
sentence sufficient, but not greater than
necessary, to comply with the purposes" of
section 3553(a)(2). Reasonableness is the
S EPTEM BER 2006

appellate standard of review in judging
whether a district court has accomplished its
task.
United States v. Foreman, 436 F.3d 638, 644 n.1
(6th Cir. 2006) (emphasis added). See also
United States v. Zavala, 2006 WL 914528 (9th
Cir. Apr. 11, 2006) (presumptions of
reasonableness may be permissible on the
appellate level, but sentencing judges commit
"legal error" if they presume that a Guidelines
sentence is reasonable).

B. Standard of review for sentences outside
the Guidelines range
Sentences outside of the Guidelines range
may be called various things, depending on the
circuit and legal context. The Fourth Circuit, for
example, uses the term "variance" to describe
discretionary non-guidelines sentences. The
"permissible factors justifying traditional
departures differ from—and are more limited
than—the factors a court may look to in order to
justify a post-Booker variance." Hampton, 441
F.3d at 288 n.2. The Fifth Circuit talks of a "third
option" in addition to a within-Guidelines or a
departure sentence, "a non-Guideline sentence—a
sentence either higher or lower than the relevant
Guideline sentence." United States v. Smith, 440
F.3d 704, 707 (5th Cir. 2006). The Seventh
Circuit considers the term "departure" "obsolete."
United States v. Johnson, 427 F.3d 423, 426 (7th
Cir. 2005). In the Eighth Circuit, a sentencing
judge calculates the sentencing range, and then
decides if a traditional departure is appropriate
under U.S. S ENTENCING G UIDELINES Part K or
U.S. S ENTENCING G UIDELINES § 4A1.3. This
results in a "guidelines sentence." The court
should then consider all the other § 3553(a)
factors "to determine whether to impose the
sentence under the guidelines or a non-guidelines
sentence." United States v. Haack, 403 F.3d 997,
1003 (8th Cir. 2005).
Prior to 2003, review of departure decisions
was for abuse of discretion pursuant to 18
U.S.C. § 3742(e). Section 401(d)(2) of the
Prosecutorial Remedies and Other Tools to end
the Exploitation of Children Today Act of 2003
(PROTECT Act), Pub. L. No. 108-066, 117 Stat.
650, (2003), required appellate courts to apply a
de novo standard of review to decisions to depart
downward. As noted in Section I of this article,
Booker excised § 3742(e), leaving the appellate
courts to review sentences for reasonableness. See

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United States v. Smith, 417 F.3d 483, 489-90 (5th
Cir. 2005). Consequently, the clock has been
rolled back to the pre-2003 standard of abuse of
discretion. United States v. Saldana, 427 F.3d
298, 308 (5th Cir. 2005); United States v. Dalton,
404 F.3d 1029, 1032 (8th Cir. 2005).
"Sentences that vary from the advisory
guidelines range are reasonable as long as the
district judge offers adequate justification
consistent with the sentencing factors in
§ 3553(a)." United States v. Jordan, 435 F.3d 693,
696 (7th Cir. 2006). "[T]here is no presumption of
unreasonableness that attaches to a sentence that
varies from the range." Id. at 698. If the decision
to depart is based on a factual determination, the
district court's decision is entitled to "substantial
deference." United States v. Wolfe, 435 F.3d 1289,
1295 (10th Cir. 2006). The farther the sentence
diverges from the advisory guideline range, the
more compelling the reasons for the divergence
must be. Dean, 414 F.3d at 729.
Some questionable sentences have been
approved under this standard. In United States v.
Menyweather, 431 F.3d 692 (9th Cir. 2005), a
United States Attorney's office employee stole
almost a half a million dollars, creating significant
hardships for victims. Her sentence was reduced
to a few weekends in jail because the defendant
persuaded the judge that her relatives were
unsuitable to care for her child if she went to
prison, but the crime involved stealing money to
take expensive trips while leaving the child
behind with the same relatives.
Were we reviewing de novo, we would
conclude that Defendant did not prove that
she provides care that is irreplaceable or that
could not feasibly be provided by another.
Under an abuse of discretion standard,
however, we hesitate to "second guess" the
district court's conclusion that Defendant's
relationship with her daughter, and the care
that Defendant provides, are unusual as
compared with the situation of other single
parents.
Id. at 700.
Errors in applying the law or reliance on
impermissible factors may result in vacatur of a
sentence. For example, in United States v. Duhon,
440 F.3d 711 (5th Cir. 2006), the sentencing judge
somehow concluded that Booker prevented the
use of facts not admitted by the defendant, even in
an advisory sentence. The judge calculated the
8

guidelines, and then stated that they would not be
followed because they were completely
discretionary, and gave the defendant straight
probation. This was an error because the sentence
must reflect the totality of the sentencing factors.
"Specifically, the sentence (1) does not adequately
take into account the Sentencing Guidelines, (2)
fails to sufficiently reflect the seriousness of
Duhon's offense, and (3) improperly gives weight
to the Guideline sentence of a differently-situated
codefendant. As a result, the sentence is
unreasonable." Id. at 715.
In United States v. Crawford, 407 F.3d 1174
(11th Cir. 2005), the defendant defrauded a
government infant nutrition program of almost a
half a million dollars in 100 transactions over a
period of five years. The district court somehow
found that the defendant did not engage in more
than minimal planning. This was a finding of fact,
so the standard of review was clear error, a burden
that was met in this case. The district court also
departed downward because the defendant's
restitution and remorse, lack of criminal
sophistication, substantial assistance to the
government, and loss to the government, which
the court thought overstated Crawford's
criminality, collectively took the defendant
outside of the "heartland" of similar cases. Id. at
1177. The standard of review for this is not
deferential; it is de novo. "Whether a factor is a
permissible ground for a downward departure
from the Sentencing Guidelines is a question of
law." Id. at 1178. Most of these grounds for the
departure were bogus, so the case was remanded
for resentencing. See also United States v.
Jackson, 408 F.3d 301, 305 (6th Cir. 2005)
(downward departure reversed where the "district
court's reasoning . . . did not include any reference
to the applicable Guidelines provisions");
Moreland, 437 F.3d at 437 ("To the extent that the
sentence imposed by the district court rests on a
rejection of congressional policy with respect to
repeat drug offenders, it is subject to reversal on
that basis alone."); United States v. Haack, 403
F.3d at 1001 (judge reduced a 180 month sentence
to sixty months because of his view that the
Guidelines sentences for marijuana were
"ridiculous").

C. Appellate waiver
Defendants sentenced before Booker, pursuant
to plea agreements waiving appeal rights, have
argued that Booker was a change in the law that
voided their agreements not to appeal. All of the

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circuits have rejected that argument. See, e.g.,
United States v. Sahlin, 399 F.3d 27, 31 (1st Cir.
2005) ("the possibility of a favorable change in
the law occurring after a plea is one of the normal
risks that accompany a guilty plea"); United States
v. Cortez-Arias, 425 F.3d 547, 548 (9th Cir.
2005), amended (July 14, 2005), amended again
(Sept. 30, 2005) ("a favorable change in the law
does not entitle a defendant to renege on a
knowing and voluntary guilty plea").

B. Fast-track disparities

These waivers should be tightly written as any
ambiguity in the language will be construed
against the government. See, e.g., United States v.
Speelman, No. 04-30067 (9th Cir. Dec. 16, 2005)
(waiving the "right to contest either the conviction
or the sentence or the application of the
sentencing guidelines in any post-conviction
proceeding including any proceeding under 28
U.S.C. § 2255" not sufficient to waive the right to
direct appeal).

Section 5K3.1 of the Sentencing Guidelines
provides for downward departures pursuant to
early disposition programs authorized by the
Attorney General. These are commonly
implemented for immigration law prosecutions in
districts on the Mexican border. Defendants
sentenced in districts that do not have these
programs have complained that their
unavailability leads to disparity that violates equal
protection. This objection has no merit because
there is no suspect classification involved, and the
program has a rational basis. United States v.
Melendez-Torres, 420 F.3d 45, 52 (1st Cir. 2005).
They do not violate 18 U.S.C. § 3553(a)(6)
because they are not an "unwarranted" disparity.
Jimenez-Beltre, 440 F.3d at 519. The lack of a
fast-track program "certainly permits disparities
but they are the result of a congressional choice
made for prudential reasons." Id.

D. Collateral review

C. Crack cocaine disparities

"Every court that has considered whether
Booker applies retroactively to cases on collateral
review has held that it does not." Selected
Post-Booker Decisions 49 (U.S. Sentencing
Commission, May 24, 2005), available at
http://www.ussc.gov/Blakely/Sel_PostBooker.pdf.
On June 5, 2006, in Burton v. Waddington, No.
05-9222, the Supreme Court accepted certiorari
on this issue.

The Anti-Drug Abuse Act of 1986, Pub. L.
No. 99-570, 100 Stat. 3207 (1986) (codified at 21
U.S.C. § 841(a)), established severe minimum
sentences for trafficking in relatively small
amounts of crack cocaine ("cocaine base"). Under
the scheme, one gram of crack cocaine is treated
the same as 100 grams of powder cocaine (the
"100:1 ratio"). Subsequently, in the Anti-Drug
Abuse Act of 1988, Pub. L. 100-690, 102 Stat.
4181 (1988) (codified at 21 U.S.C. § 844(a)),
Congress enacted a minimum five-year sentence
for simple possession of five grams or more of
cocaine base. The rationale and legislative history
is set out in the Special Report to the Congress:
Cocaine and Federal Sentencing Policy (U.S.
Sentencing Commission February 1995) at 6.C.,
available at http://www.ussc.gov/crack/exec.htm.

Defendants have had mixed success
attempting to circumvent this rule by labeling the
motion as a "motion to recall the mandate." See
United States v. Crawford, 422 F.3d 1145 (9th
Cir. 2005); United States v. Saikaly, 424 F.3d 514,
518 (6th Cir. 2005).

VI. Sentencing disparities
A. Codefendant disparities
Title 18 U.S.C. § 3553(a)(6) discourages
"unwarranted sentence disparities among
defendants with similar records who have been
found guilty of similar conduct." However, "a
sentencing difference is not a forbidden 'disparity'
if it is justified by legitimate considerations, such
as rewards for cooperation." United States v.
Boscarino, 437 F.3d 634, 637-38 (7th Cir. 2006).
See also United States v. Pisman, 2006 WL
890764 (7th Cir. Apr. 7, 2006) (more culpable
cooperating codefendant received lighter
sentence).
S EPTEM BER 2006

These minimum sentences have been
controversial. In 1994, Congress responded by
enacting a safety valve provision which lowers
minimum sentences for certain drug offenses, 18
U.S.C. § 3553(f), and directed the Sentencing
Commission to study the crack-to-powder ratio
and submit recommendations. See Violent Crime
Control and Law Enforcement Act of 1994, Pub.
L. No. 103-322, § 280006, 108 Stat. 1796, 2097
(1994). The Sentencing Guidelines Commission
issued a report the following year recommending
that the disparity be eliminated altogether. This
led to a Congressional hearing that concluded that
"the evidence overwhelmingly demonstrates

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significant distinctions between crack and powder
cocaine." H.R. R EP . N O . 104-272, at 3 (1995), as
reprinted in 1995 U.S.C.C.A.N. 335, 337. The
Sentencing Guidelines Commission
recommendations were rejected, and the
guidelines were left as they were. See Pub. L. No.
104-38, § 1, 109 Stat. 334, 334 (1995). Since
then, the Sentencing Commission has issued other
reports and recommendations, including a 2002
Report recommending that the ratio be changed to
20:1. Congress has considered, but not acted, on
these proposals. See United States v. Pho, 433
F.3d 53, 56-57 (1st Cir. 2006). The United States
Sentencing Commission failed to note them in its
Proposed 2006 Guideline Amendments, available
at http://www.ussc.gov/2006guid/proposed12506
.pdf.
Some district courts, especially post-Booker,
have expressly based departures on a
disagreement with the 100:1 ratio, and in other
cases defendants who have failed to persuade
judges to do so, have filed appeals. The leading
case is Pho, which involved two cases in which
the sentencing judge indicated agreement with
every aspect of the guidelines sentence except for
the 100:1 ratio. Stating that the Commission's
recommendation of a 20:1 ratio "makes sense"
and is "more appropriate," the sentencing judge
recalculated the guidelines sentence accordingly,
and imposed significantly lower sentences. These
sentences were reversed. Booker provides for a
reasonableness review for sentences, but
"regardless of length, a sentence based on an error
of law is per se unreasonable." Id. at 60-61. See
also United States v. Eura, No. 05-4437 (4th Cir.
Feb. 24, 2006) (varying from the sentencing range
based on a disagreement with the 100:1 ratio
violates the uniformity concerns of 18 U.S.C.
§ 3553(a)(6)).

D. Disparity with state sentences
Some defendants have argued for reduced
sentences because of lower sentences for similar
offenses in state courts. "The sole concern of
section 3553(a)(6) is with sentencing disparities
among federal defendants." United States v.
Clark, 438 F.3d 684, 685 (4th Cir. 2006).
Consideration of potential federal/state sentencing
disparities is "neither permitted nor required."
United States v. Jeremiah, No. 05-3164 (8th Cir.
May 3, 2006).

10

VII. Common issues
A. Excision of §§ 3553(b)(1) and (b)(2)
Booker excised 18 U.S.C. § 3553(b)(1), but
was silent concerning a parallel provision, 18
U.S.C. § 3553(b)(2), which covers child crimes
and sexual offenses. The only difference between
the two provisions is that § 3553(2) is more
restrictive than § 3553(1) when it comes to the
types of mitigating factors that would support a
departure. "There is no principled basis for
distinguishing subsection 3553(b)(1) from
3553(b)(2) with respect to the rationale of
Booker." United States v. Selioutsky, 409 F.3d
114, 117 (2d Cir. 2005). The court in Selioustsky
declined to excise the portion of subsection
3553(b)(2) that makes the application of the
relevant guideline range compulsory, but left
standing the limits on factors that may be
considered in making downward departures, once
again because such an approach was inconsistent
with Booker. Id. at 118. See also United States v.
Yazzie, 407 F.3d 1139, 1145 (10th Cir. 2005).

B. Ex post facto
Per Booker and Blakely, going higher than a
guidelines maximum without a jury finding under
mandatory guidelines violates the Sixth
Amendment. Defendants who committed their
crimes before Booker have argued that sentencing
them under advisory guidelines, based on postBooker judicial findings, violates the ex post facto
provision of Article I, § 10, of the Constitution,
because the Booker advisory approach to the
Sentencing Guidelines was not in place when the
crimes were committed. This argument has been
rejected in every circuit where it has been
considered. See, e.g., United States v. Jamison,
416 F.3d 538, 539 (7th Cir. 2005) ("Distributing
cocaine base was not made a crime by the Court's
decision in Booker. Jamison also had fair warning
that distributing cocaine base was punishable by a
prison term of up to twenty years, as spelled out in
the United States Code."); United States v. Dupas,
417 F.3d 1064, 1067-68 (9th Cir. 2005) (Booker
directed courts to apply the remedy to cases on
direct review; due process ex post facto
limitations only apply to substantive criminal
statutes, not sentencing enhancements; the
defendant had fair notice of the maximum
sentence); United States v. Mix, 2006 WL 802535,
*5 (9th Cir. Mar. 30, 2006) ("There is no ex post
facto problem here because § 3553(a) has been the
law of the land since 1984.")

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C. Booker does not apply to "safety valve"
findings
Defendants can escape the requirements of a
mandatory minimum sentence if they meet the
five requirements of the "safety valve" statute, 18
U.S.C. § 3553(f). Defendants have argued that,
consistent with Booker, courts should have the
discretion to apply the safety valve to defendants
who fail to meet one or more of the five
requirements. However, as noted in Section III of
this article, judicial fact-finding triggering a
statutory minimum sentence does not implicate
the Sixth Amendment. See Harris v.
United States, 536 U.S. 545, 558-60 (2002).
Consequently, there is no constitutional problem
that would require advisory safety valve
provisions. See United States v. Bermudez, 407
F.3d 536 (1st Cir. 2005); United States v. Barrero,
425 F.3d 154, 158 (2d Cir. 2005).

D. Restitution
Booker has no application to restitution. See,
e.g., United States v. Antonakopoulos, 399 F.3d
68, 83 (1st Cir. 2005) (restitution has no bearing
on the defendant's guideline range or term of

imprisonment); United States v. Sosebee, 419 F.3d
451, 462 (6th Cir. 2005) (restitution is authorized
by statute and is "distinct and separate" from the
Sentencing Guidelines; the Sixth Amendment
does not come into play because an order of
restitution does not exceed the statutory maximum
provided under the penalty statutes; also, the
Victim Witness Restitution Act and the
Mandatory Victim's Restitution Act specify that
victim losses be determined by the court);
United States v. Carruth, 418 F.3d 900, 904 (8th
Cir. 2005) ("[u]nder the MVRA there is no
specific or set upper limit for the amount of
restitution in contrast to criminal statutes which
provide maximum terms of imprisonment and fine
amounts").˜
ABOUT THE AUTHOR
‘Ed Hagen is an Assistant Director at the Office
of Legal Education. He has co-authored two legal
texts, T HE P ROSECUTION F UNCTION (Lexington
Books 1981) and T HE L AW OF C ONFESSIONS
(Thomas West 1994).a
This article was reviewed by Tamra Phipps,
Assistant United States Attorney, Middle District
of Florida, who made a number of helpful
corrections and suggestions.

Responding to the Fast-Track
Disparity Argument
Paul W. Hahn
Office of Counsel to the Director
Executive Office for United States Attorneys
Assistant United States Attorney
Eastern District of Missouri

Starting with Southern California, fast-track
programs for immigration offenses were
implemented in the Southwest border districts
during the mid-1990s, which enabled districts to
focus scarce prosecution resources on the most
dangerous criminal aliens.

I. Introduction

The federal government placed unprecedented
attention on immigration offenses occurring along
the Southwest border in 1994. "Operation
Gatekeeper" substantially increased the number of
federal agents, equipment, and other resources
along the Southwest border. The initiative more
than doubled the number of border patrol agents
in the Southern District of California. Operation
Gatekeeper also introduced the Automated

mmigration law reform is a topic of great
public interest, which is receiving
extraordinary media coverage and the
focus of Congress. Enforcement of existing
immigration laws is problematic, particularly with
apprehensions for immigration offenses exceeding
one million along the Southwest border annually.
The crisis along the Southwest border is not new.

I

S EPTEM BER 2006

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11

Biometric Identification System (IDENT), which
enabled the government to biometrically identify
every illegal alien apprehended while attempting
to cross the border. IDENT provided the
capability to identify aliens with criminal
histories, thus enabling federal prosecutors to
focus prosecutorial resources on those criminal
aliens who presented the greatest likelihood of
danger to the community. The success of
Operation Gatekeeper presented the United States
Attorneys' offices with an unprecedented number
of criminal alien cases to prosecute. Alan D.
Bersin and Judith S. Feigin, The Rule of Law at
the Margin: Reinventing Prosecution Policy in the
Southern District of California, 12 G EO . IMMIGR .
L.J. 285, 300 (1998).
The ability of U.S. Customs and Border
Protection to detect criminal aliens at the border
was substantially enhanced when it gained the
ability to quickly check the fingerprints of illegal
immigrants against the FBI's massive biometric
database, known as the Integrated Automated
Fingerprint Identification System (IAFIS). Access
to IAFIS became fully available to all 136 border
patrol stations in September 2005. While IDENT
compares two fingerprints to determine a match,
IAFIS compares an individual's ten fingerprints
with the FBI's database of 49,000,000 sets of
prints. As of December 27, 2005, Customs and
Border Protection officials reported that IAFIS
had returned "hits" on 118,557 criminal subjects
who were trying to enter this country illegally.
Using Technology to Catch Criminals,
Fingerprint Database "Hits" Felons at the
Border, FBI Headline Archives (Dec. 27, 2005),
available at http://www.fbi.gov/page2/dec05/
border_iafis122705.htm.
Data provided by the Sentencing Commission
indicates that the number of prosecuted federal
immigration offenses rose dramatically from
2,300 in fiscal year (FY) 1991 to 10,458 in FY
2001.
The increase in the number of immigration
offenses has put enormous caseload pressures
on the districts along the Southwest border.
The Southern District of California alone, for
example, sentences more defendants under the
guidelines (4,213) than do all of the district
courts in each of the First Circuit (1,645),
Second Circuit (4,147), Third Circuit (2,636),
Seventh Circuit (2,450), Eighth Circuit
(3,568), Tenth Circuit (3,415), and District of
Columbia Circuit (276).
12

U.S. S ENTENCING C OMM 'N , D OWNWARD
D EPARTURES FROM THE F EDERAL S ENTENCING
G UIDELINES 62 (Oct. 2003) , available at http://
www.ussc.gov/departrpt03/departrpt03.pdf
[hereinafter D EPARTURES R EPORT ].
Prior to United States v. Booker, 543 U.S. 220
(2005), those Courts of Appeals addressing the
issue ruled that the presence of fast-track
programs in some districts, for illegal reentry after
deportation offenses, was not a permissible basis
for departure under the Sentencing Guidelines in a
district lacking a fast-track program. See
United States v. Bonnet-Grullon, 212 F.3d 692
(2d Cir. 2000); United States v. BanuelosRodriguez, 215 F.3d 969 (9th Cir. 2000) (en
banc); United States v. Armenta-Castro, 227 F.3d
1255 (10th Cir. 2000).
After Booker held that the United States
Sentencing Guidelines were advisory, and no
longer binding, aliens charged with illegal reentry
offenses in violation of 8 U.S.C. § 1326 in nonfast-track districts were quick to claim that they
should receive the same sentencing concessions as
similarly situated defendants in fast-track districts.
The uncertainty created by Booker gave rebirth to
the previously settled fast-track disparity
argument.

II. Early fast-track programs
The initial fast-track programs enabled
United States Attorneys' offices to dispose of
cases against criminal aliens quickly and
efficiently. Within twenty-four hours after
arraignment, discovery was provided and a preindictment plea offer was made. Defendants
would generally be allowed to plead guilty to a
violation of 8 U.S.C. 1326(a) and receive the
statutory maximum sentence of twenty-four
months, as opposed to being prosecuted under 8
U.S.C. 1326(b), which provided a statutory
maximum sentence of twenty years.
In all but the most serious cases, the defendant
(who is potentially chargeable under 8 U.S.C.
§ 1326(b), carrying a maximum 20 year
penalty) was allowed to plead guilty to a
violation of 8 U.S.C. § 1326(a), which carries
a maximum term of two years. The conditions
for the reduced sentence were that the
defendant (1) waive indictment; (2) forego
motions; (3) waive a presentence report; (4)
stipulate to a particular sentence (usually 24
months); (5) submit to immediate sentencing;

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(6) waive all sentencing appeals; (7) consent
to the entry of an order, issued by an
Immigration Judge or officer, removing
defendant from the United States upon
conclusion of his or her prison term; and (8)
waive all appeals of the removal order.
Bersin and Feigin, supra at 301.
Following implementation of its fast-track
program in 1995, the United States Attorney's
Office for the Southern District of California filed
1,334 criminal alien cases charging a violation of
8 U.S.C. § 1326, in sharp contrast to 240 criminal
alien cases filed by the office in 1994. This fivefold increase was sustained in 1996 when 1,297
criminal alien cases were filed by the office. In
1997 the Southern District of California filed
1,606 criminal alien cases, nearly seven times the
number filed in 1993. Id. at 302.
Prosecution of felony immigration offenses by
United States Attorneys' offices increased
significantly in 1995. Felony immigration
offenses were filed against 4,634 persons in 1995,
representing a 66.4% increase over 1994. Alan D.
Bersin, Reinventing Immigration Law
Enforcement in the Southern District of
California, 8 F ED . S ENT . R EP . 254, 258 n.1 (citing
E XECUTIVE O FFICE FOR U.S. A TTORNEYS , U.S.
A TTORNEY 'S O FFICES , S TATISTICAL R EPORT ,
F ISCAL Y EAR 1995 23 (1996)).
The United States Court of Appeals for the
Ninth Circuit favorably discussed the fast-track
program in the Southern District of California in
United States v. Estrada-Plata, 57 F.3d 757 (9th
Cir. 1995).
In light of the overall crime problem in the
Southern District of California, the
government chose to allow §1326(b)
defendants the opportunity to plead to a lesser
offense, if done so at the earliest stage of the
case. Like the district court, we find
absolutely nothing wrong (and, quite frankly,
a great deal right) with such a practice. The
policy benefits the government and the court
system by relieving court congestion. But
more importantly, the policy benefits
§ 1326(b) defendants by offering them a
substantial sentence reduction. These
defendants have nothing to lose and much to
gain from the fast-track policy.
Id. at 761.

S EPTEM BER 2006

III. Formal recognition of fast-track
programs
A. PROTECT Act
Congress recognized the value of early
disposition programs authorized by the Attorney
General when it passed the Prosecutorial
Remedies and Other Tools to end the Exploitation
of Children Today (PROTECT) Act. Pub. L. No.
108-21, 117 Stat. 650 (2003). The PROTECT Act
directed the United States Sentencing
Commission to promulgate "a policy statement
authorizing a departure of not more than 4 levels
if the Government files a motion for such
departure pursuant to an early disposition program
authorized by the Attorney General and the
United States Attorney." Pub. L. No. 108-21,
§ 401(m), 117 Stat. at 675 (2003).

B. Fast-track programs authorized by the
Sentencing Commission
As directed by Congress, the United States
Sentencing Commission adopted U.S.
S ENTENCING G UIDELINES M ANUAL § 5K3.1
(2003) [hereinafter U.S.S.G.], entitled "Early
Disposition Programs (Policy Statement)," which
became effective on October 27, 2003 and
provides: "Upon motion of the Government, the
court may depart downward not more than 4
levels pursuant to an early disposition program
authorized by the Attorney General of the
United States and the United States Attorney for
the district in which the court resides."

C. Formal authorization of fast-track
programs by the Attorney General
Guidance for implementing a fast-track
program was issued by Attorney General John
Ashcroft on September 22, 2003. The Attorney
General recognized that "'fast-track' programs are
based on the premise that a defendant who
promptly agrees to participate in such a program
has saved the government significant and scarce
resources that can be used in prosecuting other
defendants and has demonstrated an acceptance of
responsibility above and beyond what is already
taken into account by the adjustments contained in
U.S.S.G. § 3E1.1." Memorandum from Attorney
Gen. John Ashcroft to All United States Attorneys
(Sept. 22, 2003) (on file with the Dep't of Justice
Library), available at http://10.173.2.12
/jmd/lib/memo3.pdf. reprinted in 16 F ED . S ENT .

U N ITED S TATES A TTO RN EY S ' B U LLETIN

13

R EP . 134 (2003) [hereinafter Ashcroft Fast-Track
Memorandum].
The Ashcroft Fast-Track Memorandum
requires fast-track programs to meet the following
four criteria to receive authorization:
•

The district faces an exceptionally large
number of a specific class of offenses and the
failure to handle such cases on an expedited
basis will "significantly strain prosecutorial
and judicial resources," (or the district can
show some other "exceptional local
circumstance").

•

Declination of such cases in favor of state
prosecution is unavailable or unwarranted.

•

The cases are highly repetitive and present
similar fact scenarios.

•

The cases do not involve a "crime of
violence."

In addition, any authorized fast-track program
must require that the defendant enter into a written
plea agreement; that he waive filing any pretrial
motions; that he waive any right to appeal; and
that he waive the opportunity to challenge his
conviction under 28 U.S.C. § 2255, except on the
issue of ineffective assistance of counsel. Id.

D. Fast-track programs authorized for FYs
2004 and 2005
The Attorney General delegated the authority
to authorize the fast-track programs to the Deputy
Attorney General, and on October 24, 2003,
Acting Deputy Attorney General Robert D.
McCallum, Jr., authorized twenty-seven fast-track
programs in fifteen different USAOs. That
authorization was effective through September 30,
2004, and was later extended to October 31, 2004.
Deputy Attorney General James B. Comey
authorized twenty-eight separate fast-track
programs in sixteen different USAOs on October
29, 2004, for FY 2005. Most fast-track programs
are for immigration offenses in violation of 8
U.S.C. §§ 1324, 1326.

IV. Authorized fast-track programs for
illegal reentry after deportation offenses
Fast-track programs for prosecution of illegal
reentry after deportation offenses in violation of 8
U.S.C. § 1326 were authorized for the five
Southwest border Districts of Arizona, Southern
California, New Mexico, Southern Texas and
14

Western Texas for FY 2005. The fast-track
criteria does not restrict fast-track programs to
border districts. Several interior districts are
experiencing significant growth in illegal
immigrant population. As noted by columnist
Ruth Marcus in a recent op-ed piece in the
Washington Post, "Nebraska illustrates the new
geographic reality of illegal immigration: They're
not just in Texas (or California or Florida)
anymore. In recent years the most rapid growth in
the population of undocumented migrants (as well
as legal immigrants) has taken place in states that
previously had only a handful of foreign-born
residents." Ruth Marcus, Editorial, Immigration's
Scrambled Politics, W ASH . P OST , Apr. 4, 2006, at
A23. The number of illegal immigrants in
Nebraska has increased because of the
opportunities the meat packing industry provides.
In 1990, there were approximately 6,000 illegal
immigrants in the state. In 2000, this number had
risen to 24,000, and in 2006 it may be as high as
40,000. Id. There were eight non-Southwest
border districts authorized for fast-track programs
for illegal reentry offenses for FY 2005—Central
California, Eastern California, Northern
California, Idaho, Nebraska, North Dakota,
Oregon, and Western Washington.
Disposition pursuant to the fast-track program
varies from district to district. Most fast-track
districts employ a departure-based program for
illegal reentry offenses. Consistent with the
PROTECT Act and U.S.S.G.§ 5K3.1, departures
do not exceed four levels. The amount of the
reduction depends on the defendant's criminal
history and may also depend on whether the
defendant was on supervised release at the time of
the offense. The departure typically ranges from
two to four levels under § 5K3.1. One district,
however, limits the reduction to one level. For
those districts employing a charge-bargain
program, the resulting sentence reduction
generally complies with the departure limitations
of § 5K3.1.
Typical fast-track dispositions for defendants
charged with illegal entry after deportation in
violation of 8 U.S.C. § 1326 for FY 2005 are
described by district in Appendix A, attached to a
responsive memorandum filed by the government
in compliance with an order issued by the
Southern District of New York in United States v.
Krukowski, No. 04 Cr. 1308(LWK) (S.D.N.Y.
June 10, 2005). The memorandum was a
collaborative effort filed by Reed Brodsky,

U N ITED S TATES A TTO RN EY S ' B U LLETIN

S EPTEM BER 2006

Assistant United States Attorney for the Southern
District of New York, in response to the fast-track
disparity argument. In preparing this article, the
author has drawn liberally from that memorandum
without further attribution.

V. Responding to the fast-track
disparity argument
As a consequence of Booker, federal
prosecutors, in the majority of districts lacking
approved fast-track programs for illegal reentry
offenses, have to grapple with the fast-track
disparity argument. District courts have been
encouraged to follow a three-step analysis in
determining sentences after Booker. The
Sentencing Reform Act, Pub. L. No. 98-473, 98
Stat. 1987 (1984), requires judges to consider the
factors listed in 18 U.S.C. § 3553(a) in
determining a sentence. United States v. Booker,
543 U.S. 220, 259-60 (2005). The district courts
must determine the advisory guideline sentencing
range, whether a departure is supported by the
Guidelines' policy statements, and if a variance (a
non-guideline sentence) is appropriate under 18
U.S.C. § 3553(a). Illegal reentry defendants argue
that 18 U.S.C. § 3553(a)(6) entitles them to a
"fast-track" reduction because the district court is
required to consider "the need to avoid
unwarranted sentence disparities among
defendants who have been found guilty of similar
conduct."
Some district courts have been sympathetic to
this argument and granted a reduction in sentence
based, at least in part, on perceived disparities
between defendants prosecuted for immigration
offenses in districts with an authorized fast-track
program and those prosecuted in districts lacking
an authorized program. See, e.g., United States v.
Medrano-Duran, 386 F.Supp.2d 943 (N.D. Ill.
2005); United States v. Ramirez-Ramirez, 365
F.Supp.2d 728, 732 (E.D. Va. 2005);
United States v. Galvez-Barrios, 355 F.Supp.2d
958 (E.D. Wis. 2005).
The absence of a fast-track program in the
Southern District of New York led some district
court judges to award illegal reentry defendants a
downward departure. They based the lesser
sentence on the fact that the existence of fast-track
programs in other districts created an unwarranted
sentencing disparity. Other district court judges in
the Southern District of New York have rejected
that argument. See cases collected in United States

S EPTEM BER 2006

v. Duran, 399 F.Supp.2d. 543, 544-45 (S.D.N.Y.
2005) and United States v. Constantine, 417
F.Supp.2d 337, 339 (S.D.N.Y. 2006) (both cases
rejected a sentence reduction based on fast-track
disparity). See also United States v. Santos, 406
F.Supp.2d 320 (S.D.N.Y. 2005); United States v.
Austin, No. 05 Cr. 744(RWS), 2006 WL 305462
(S.D.N.Y. Feb. 6, 2006) (fast-track disparity
supported a reduction in sentence); and
Krukowski, 04 Cr. 1309(LWK) (S.D.N.Y. July 25,
2005) (existence of fast-track programs in some
districts created an unwarranted disparity in an
illegal reentry § 1326 prosecution although a
guideline sentence was imposed after evaluating
all the factors in 18 U.S.C. § 3553(a)).

A. Eligibility of defendant for fast-track
consideration
Federal prosecutors must initially determine
whether the defendant would qualify for fast-track
disposition in a fast-track district when confronted
with the fast-track disparity argument. In many
cases, the disparity argument is unavailable to an
illegal reentry defendant because his criminal
history disqualifies him from fast-track
disposition, even if he was being prosecuted in a
fast-track district. See United States v. PenaCarrillo, No. 05-30362, 2006 WL 620728 (9th
Cir. Mar. 14, 2006) (unpublished) (existence of
fast-track programs in other districts is irrelevant
in determining defendant's sentence because his
prior felonies included sexual crimes against
children, which generally disqualifies a defendant
from fast-track consideration in fast-track
districts); United States v. Hernandez-Martinez,
154 Fed. Appx. 778 (11th Cir. 2005)
(unpublished) (reduction in sentence based on
fast-track disparity not warranted when defendant
had been deported twice before, had committed
robbery and a burglary, and committed the illegal
reentry offense while on supervised release and
within two years from his release from prison);
United States v. Emence, 154 Fed.Appx. 74 (2d
Cir. 2006) (unpublished) (guideline sentence was
not unreasonable, despite fast-track disparity
argument, because defendant's "persistently
violent criminal conduct" justified a sentence at
the low end of the guideline range).
Depending on the criteria used by the United
States Attorney's Office, defendants charged with
illegal reentry after deportation may be excluded
from fast-track consideration if they have been
convicted of crimes of violence, including the
following offenses:

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15

•

Murder.

H.R. R EP . N O . 108-48, at 4 (2003).

•

Kidnapping.

•

Voluntary manslaughter.

•

Forcible sex offenses.

•

Child-sex offenses.

•

Drug or firearms offenses.

•

Convictions which otherwise reflect a history
of serious violent crime resulting in injury to
others.

In one of the first district court opinions to
address the fast-track disparity issue, Judge Paul
G. Cassell in the District of Utah took particular
note of Congress' approval of fast-track programs
in finding that any disparity between illegal
reentry cases in Utah and those in districts with a
fast-track program was not unwarranted.
United States v. Perez-Chavez, 422 F.Supp.2d
1255 (D. Utah 2005). Judge Cassell noted:

Approved fast-track programs exclude any
offense designated by the Attorney General as a
"crime of violence" in 28 C.F.R. § 28.2.
Defendants may also be excluded if they have
ten or more criminal history points, four or more
prior deportations, a prior conviction for illegal
reentry under 8 U.S.C. § 1326, or a prior
immigration conviction for which the sentence
equaled or exceeded twenty-four months.
Defendants may also be excluded if they have
been sentenced to at least ten years imprisonment
for all crimes or were encountered as part of an
independent federal criminal investigation.

B. Fast-track programs do not create an
"unwarranted" disparity
In the legislative history for the PROTECT
Act, the House of Representatives addressed the
"unwarranted disparity" issue, and made clear that
properly authorized early disposition programs
did not create unwarranted sentence disparities.
Several districts, particularly on the
Southwest border, have early disposition
programs that allow them to process very
large numbers of cases with relatively limited
resources. Such programs are based on the
premise that a defendant who promptly agrees
to participate in such program has saved the
government significant and scarce resources
that can be used in prosecuting other
defendants and has demonstrated an
acceptance of responsibility above and
beyond what is already taken into account . . .
. This section preserves the authority to grant
limited departures pursuant to such programs.
In order to avoid unwarranted sentencing
disparities within a given district, any
departure under this section must be pursuant
to a formal program that is approved by the
United States Attorney and that applies
generally to a specified class of offenders.
16

The number of federal immigration offenses
has exploded from 2,300 in fiscal year 1991 to
10,458 in fiscal year 2001. Moreover, these
offenses are concentrated in various districts,
typically along the Mexican border. The
Southern District of California alone
prosecuted more immigration offenses (4,213)
than did the entire Tenth Circuit (3,415). It
stands to reason that some districts may need
to find ways to rapidly process immigration
cases. Fast-track programs also arguably
reduce disparity by allowing more violators to
be prosecuted. For example, the U.S. Attorney
for the Southern District of California has
reported that without a fast-track program, the
number of immigrant offenders that could be
prosecuted along the California-Mexico
border would significantly decrease. This
means that while fast-track programs do
create disparity between prosecuted offenders
from district to district; because they permit
more prosecutions, they may prevent the even
greater disparity that occurs when an offender
goes unprosecuted because of the lack of
prosecutorial resources in a district with a
large volume of immigration offenses.
In short, Congress has concluded that the
advantages stemming from fast-track
programs outweigh their disadvantages, and
that any disparity that results from fast-track
programs is not "unwarranted." This court's
sentencing task is to faithfully implement the
congressional will. . . . In this case, that means
applying the recommended Guidelines
sentence without varying to try and eliminate
the disparity caused by fast-track programs. If
Congress is willing to accept that disparity, so
must this court.
Id. at 1262-63 (footnotes omitted). To vary from a
Guidelines sentence on the basis that other
similarly situated defendants in fast-track districts
might receive less prison time "would . . . ignore

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S EPTEM BER 2006

the recent congressional directive, contained in
the PROTECT Act, that only the Attorney
General can authorize fast-track programs." Id. at
1256. Judge Cassell appropriately labeled
Congress' determination a "command" and a
statutory validation of the fast-track approach. Id.

VI. Courts of Appeals: fast-track
disparity not unwarranted
The Circuit Courts of Appeals addressing the
fast-track disparity argument, to date, have upheld
district court refusals to impose a more lenient
sentence based solely on the claim that an illegal
reentry offender would be entitled to a sentencing
reduction in a fast-track district.

A. First Circuit
The absence of a fast-track program in the
district of Maine gave rise to a claim by an illegal
reentry after deportation defendant that his equal
protection rights were violated. The First Circuit
disagreed, finding that any distinction between
aliens sentenced in fast-track versus non-fast-track
districts did not constitute a suspect classification
or involve fundamental rights. United States v.
Melendez-Torres, 420 F.3d 45 (1st Cir. 2005).
The court determined that the United States
Attorney General and the United States Attorney
for the District of Maine could rationally conclude
that the low volume of crimes involving illegal
aliens in Maine, as opposed to the high volume in
Southwestern states, the effect of greater
deterrence, and swifter adjudications, could justify
the absence of a fast-track program in the district
of Maine. Therefore, no equal protection violation
existed. Id. at 53.
On plain error review, the First Circuit
subsequently denied the claim of an illegal reentry
defendant, sentenced pre-Booker, that the district
court would have sentenced him to a lower
sentence because of fast-track disparity under
non-binding guidelines post-Booker. United States
v. Martinez-Flores, 428 F.3d 22, 29-30 (1st Cir.
2005). The defendant made no showing that the
district court would have sentenced him any
differently had it been operating under advisory
guidelines. In fact, the district court's comments at
sentencing indicated that it would not have
considered any fast-track disparity unwarranted.
In a footnote, the court indicated: "It is arguable
that even post-Booker, it would never be
reasonable to depart downward based on
disparities between fast-track and non-fast-track
S EPTEM BER 2006

jurisdictions given Congress' clear (if implied)
statement in the PROTECT Act provision that
such disparities are acceptable." Id. at 30 n.3
(citing Perez-Chavez, 422 F.Supp.2d at 1263).
The First Circuit in United States v. JimenezBeltre, 440 F.3d 514 (1st Cir. 2006) also upheld
the district court's denial of a below-Guidelines
sentence to an illegal reentry defendant.
Disparities created by fast-track programs
permitted in some districts, but not in others, were
authorized by Congress for prudential reasons.
"The impact is probably more modest than the
decision of a United States Attorney, in a district
with a heavy case load, to forgo entirely some
prosecutions that would routinely be brought in
other districts. Whether it would even be
permissible to give a lower sentence on the
ground sought is itself an open question." Id. at
519, citing Martinez-Flores, 428 F.3d at 30 n.3.

B. Second Circuit
In an unpublished opinion, the Second Circuit
referred to the fast-track disparity issue as "an
intriguing question ripe for resolution by this
Court," but upheld, on other grounds, a seventytwo month sentence imposed for an illegal reentry
offender that was five months less than the
minimum guideline sentence of seventy-seven
months. United States v. Urena, No. 05-2343-CR,
2006 WL 755962 (2d Cir. Mar. 22, 2006). It is not
clear from the record whether the district court
considered the impact of fast-track programs in
other districts in making its sentencing
determination. Id. at *1, n. 2. The court made
reference to four district court opinions in the
Southern District of New York expressing
divergent views on whether fast-track disparity
should be a relevant factor in determining an
individual defendant's sentence. Compare United
States v. Duran, 399 F.Supp.2d 543 (S.D.N.Y.
2005) (fast-track not a relevant consideration),
with United States v. Linval, [No. 05 Cr.
345(RWS),] 2005 WL 3215155 [(S.D.N.Y. Nov.
23, 2005)] (considering fast-track), and United
States v. Krukowski, No. 04-CR-1308 (S.D.N.Y.
July 28, 2005) (considering fast-track), and United
States v. Deans, 03-CR-387 (S.D.N.Y. Nov. 9,
2005) (considering fast-track). Id. See also United
States v. Emence, 164 Fed. Appx. 74 (2d Cir.
2006) (unpublished) (court found no merit in
claim by illegal reentry defendant that the district
court failed to consider the fast-track disparity
argument in imposing the minimum guideline
sentence of seventy-seven months); United States

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17

v. Constantine, 417 F.Supp. 2d. 357 (S.D.N.Y.
2006) (court imposed minimum guideline
sentence after determining that a fast-track
adjustment was not warranted).

C. Fourth Circuit
The Fourth Circuit upheld a guideline
sentence for an illegal reentry defendant who
claimed that the absence of a fast-track program in
the Eastern District of Virginia resulted in
unwarranted disparity. United States v. MontesPineda, 445 F.3d 375 (4th Cir. 2006). The
defendant, while demonstrating the existence of a
significant fast-track sentencing disparity, failed
to show that such disparity required the district
court to grant him a below-Guidelines sentence.
"It would be especially inappropriate to impose
such a general requirement on district courts in
non-'fast track' districts, given that Congress
seems to have endorsed at least some degree of
disparity by expressly authorizing larger
downward departures for defendants in 'fast track'
districts." Id. at 379-80. However, this does not
mean that a district court cannot consider the fasttrack disparity in determining an appropriate
sentence under 18 U.S.C. § 3553(a). The
defendant had been deported at least three times
prior to his present offense, including deportation
after being convicted for trafficking in cocaine,
which is an aggravated felony. The court
emphasized that it was not passing on the validity
of sentence reductions based on fast-track
disparity. "Rather, we hold that merely pointing
out the existence of such disparities, with no
reference to the characteristics of the particular
defendant, does not render a within-Guidelines
sentence unreasonable." Id. at 380.
The Fourth Circuit vacated a below-guidelines
sentence given to an illegal reentry after
deportation offender in United States v. PerezPena, 2006 WL 1791697 (4th Cir. June 30, 2006).
The court held that the sentencing disparities
between defendants receiving a fast-track
reduction pursuant to the PROTECT Act in a fasttrack district and those not receiving the reduction
in other districts were "warranted" as a matter of
law. Id. at *6. Avoiding such disparities did not
justify the imposition of a below-guidelines
sentence.

18

D. Sixth Circuit
The Sixth Circuit upheld the district court's
refusal to reduce an illegal reentry defendant's
sentence based on the absence of a fast-track
program in the Western District of Tennessee.
United States v. Hernandez-Cervantes, 161 Fed.
Appx. 508 (6th Cir. 2005) (unpublished). In the
PROTECT Act, Congress authorized the precise
disparities caused by the fast-track program.
Accordingly, to reduce a defendant's sentence
based on the absence of a fast-track program, the
court would have to override the legislative
judgment of Congress. Id. at 512. See also
United States v. Hernandez-Fierros, 2006 WL
1806477 (6th Cir. July 3, 2006) (guidelines
sentence not rendered unreasonable by fast-track
disparity in § 1326 prosecution since such
disparity is not unwarranted under 18 U.S.C.
§ 3553(a)(6)).

E. Seventh Circuit
The Seventh Circuit reached a similar
conclusion in United States v. Martinez-Martinez,
442 F.3d 539 (7th Cir. 2006). The district court
rejected an illegal reentry defendant's claim that
he was entitled to a reduction in his sentence
because the Southern District of Indiana did not
have an authorized fast-track program. The
defendant argued, post-Booker, that the district
court was required by 18 U.S.C.§3553(a)(6) to
avoid unwarranted sentence disparities. Congress,
however, explicitly recognized that fast-track
dispositions would create sentencing disparities.
In upholding the district court's guideline
sentence, the court noted that a guideline sentence
imposed for an illegal reentry offense is not
unreasonable simply because it was imposed in a
non-fast-track district. "Congress simply has
authorized prosecutorial authorities to weigh the
benefits of a longer sentence against the burdens
of delay and oppressive case management issues
and, in such situations, to determine that the
public good requires that the latter value be given
preference." Id. at 542.
After the Seventh Circuit decided MartinezMartinez, it issued an opinion in two consolidated
cases involving illegal reentry offenders raising
the fast-track disparity argument. United States v.
Galicia-Cardenas, 443 F.3d 553 (7th Cir. 2006).
In the first case, involving Galicia-Cardenas, the
district court determined the advisory guideline
for an illegal reentry offender to be forty-one to
fifty-one months. The Court then departed

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S EPTEM BER 2006

downward four levels and imposed a sentence of
twenty-seven months, after finding that the
absence of a fast-track program in the Eastern
District of Wisconsin created an unwarranted
disparity. In the second case, involving VegaLopez, the district court in the Western District of
Wisconsin declined to make a similar finding and
imposed a guideline sentence for an illegal reentry
offender. Citing Martinez-Martinez, decided the
preceding day, the Seventh Circuit indicated "we
cannot say that a sentence imposed after a
downward departure is by itself reasonable
because a district does not have a fast-track
program." Id. at 555. The guideline sentence for
Vega-Lopez was affirmed, and the non-guideline
sentence for Galicia-Cardenas was vacated. "Mr.
Galicia-Cardenas must be resentenced without a
credit for Wisconsin's lack of a fast-track
program. Whether he deserves a sentence below
the advisory guideline range based on other
factors is left to the discretion of the district
court." Id.

F. Eighth Circuit
In United States v. Sebastian, 436 F.3d 913
(8th Cir. 2006), the Eighth Circuit noted that
while early disposition programs create disparities
among defendants with similar criminal histories
based solely on geography,"[t]he command that
courts should consider the need to avoid
'unwarranted sentence disparities,' however,
emanates from a statute, and it is thus within the
province of the policymaking branches of
government to determine that certain disparities
are warranted, and thus need not be avoided." Id.
at 916. Congress and the President have
"concluded that the advantages stemming from
fast-track programs outweigh their disadvantages,
and that any disparity that results from fast-track
programs is not 'unwarranted.''' Id., quoting PerezChavez, 422 F.Supp.2d at 1263. Requiring district
courts to vary from the advisory Guidelines, based
solely on early disposition programs in other
districts, would conflict with Congress' decision to
limit fast-track programs to certain geographical
areas and would also conflict with the Attorney
General's exercise of prosecutorial discretion in
determining not to authorize an early disposition
program in the Eastern District of Missouri. The
Eighth Circuit concluded that the defendant's
sentence of forty-six months, representing the low
end of the advisory guideline range of forty-six to
fifty-seven months, was not unreasonable despite

S EPTEM BER 2006

the sentence disparities arising from fast-track
programs.

G. Ninth Circuit
The Ninth Circuit upheld guidelines sentences
given to three illegal reentry offenders, despite
their claim that the absence of a fast-track
program in the District of Montana created
unwarranted sentencing disparity. United States v.
Marcial-Santiago, 447 F.3d 715 (9th Cir. 2006).
The court recognized that, since Congress had
authorized fast-track programs in the PROTECT
Act, the disparity created by the absence of a fasttrack program was not unwarranted under 18
U.S.C. § 3553(a)(6). When Congress passed the
PROTECT Act, it did so with the knowledge that
§ 3553(a)(6) directed sentencing courts to avoid
unwarranted sentencing disparity. "By authorizing
fast-track programs without revising the terms of
§ 3553(a)(6), Congress was necessarily providing
that the sentencing disparities that result from
these programs are warranted and, as such, do not
violate § 3553(a)(6)." Id. at 718. The Ninth
Circuit held that the disparity created by the
sentences imposed on the illegal reentry offenders
in the District of Montana, and the sentences
imposed on similarly situated illegal reentry
offenders prosecuted in fast-track districts was not
unwarranted.

H. Tenth Circuit
In upholding the imposition of a guideline
sentence, the Tenth Circuit analyzed, but did not
decide whether sentencing disparities caused by
the existence of fast-track programs created an
unwarranted sentencing disparity under 18 U.S.C.
§ 3553(a)(6). United States v. Morales-Chaires,
430 F.3d 1124 (10th Cir. 2005). The directive in
§ 3553(a)(6) to avoid unwarranted sentencing
disparities is but one of the factors district courts
are to consider in determining a reasonable
sentence. In light of the other factors in § 3553(a)
considered by the district court, the court
concluded that the guideline sentence of seventyseven months was reasonable. See also
United States v. Gomez-Castillo, No. 05-4139,
2006 WL 1166119 (10th Cir. May 3, 2006)
(unpublished) (upheld imposition of a guideline
sentence for illegal reentry offender despite fasttrack disparity argument, where district court
found that the remaining sentencing factors under
§ 3553(a) supported imposition of a Guideline
sentence).

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19

I. Eleventh Circuit
In United States v. Castro, 2006 WL 1897209
(11th Cir. July 12, 2006), the Eleventh Circuit
upheld a guidelines sentence imposed for an
illegal reentry after deportation offender who
argued that he was entitled to a four-level
downward departure in a non-fast-track district.
The court held that any disparity created by
U.S.S.G. § 5K3.1 did not violate 18 U.S.C.
§ 3553(a)(6) because Congress had implicitly
determined that the fast-track disparity was
warranted. Id. at *3.

VII. Sentencing Commission findings
In its 2003 Departures Report to Congress
submitted prior to Booker, the Sentencing
Commission expressed the concern that
"sentencing courts in districts without early
disposition programs, particularly those in
districts that adjoin districts with such programs,
may feel pressured to employ other measures—
downward departures in particular—to reach
similar sentencing outcomes for similarly situated
defendants." Departures Report, supra at 67.
Although some district courts have approved
fast-track disparity departures, the effect of such
departures in non-fast-track districts has not been
dramatic.
One reason is that immigration cases account
for only a fraction of the cases sentenced in
the 78 districts that do not have early
disposition programs. In all, these districts
account for 3.6 percent (2,456 cases) of the
overall post-Booker caseload. Of these 78
districts, only four have sentenced greater
than 100 immigration cases post-Booker. The
District of Utah sentenced 204 immigration
cases (or 21.4% of its post-Booker caseload).
The Northern District of Texas sentenced 172
immigration cases (or 18.8% of its postBooker caseload). The Middle District of
Florida sentenced 162 immigration cases (or
10.3% of its post-Booker caseload). The
Southern District of New York sentenced 106
immigration cases (or 8.3% of its post-Booker
caseload).
With respect to these 4 districts, all but one,
the Southern District of New York, had rates
of imposition of non-government-sponsored,
below-range sentences using Booker in
immigration cases that were less than the
20

overall national average of 9.3 percent. In the
Middle District of Florida, the rate of
imposition of an otherwise below range
sentence is 7.4 percent. In the District of Utah,
the rate of imposition of an otherwise belowrange sentence is 6.9 percent. In the Northern
District of Texas, the rate of imposition of an
otherwise below-range sentence is 1.7
percent.
U.S. S ENTENCING C OMM 'N , F INAL R EPORT ON THE
IMPACT OF U NITED S TATES V . B OOKER ON
F EDERAL S ENTENCING 141-42 (2006), available
at http://www.ussc.gov/booker_report/Booker_
Report.pdf (footnotes omitted).

VIII. Conclusion
As uniformly recognized by the United States
Courts of Appeals that have addressed the issue,
any disparity between sentences imposed in fasttrack and non-fast-track districts for illegal reentry
after deportation offenses in violation of 8 U.S.C.
§ 1326 is not unwarranted under 18 U.S.C. §
3553(a)(6). The greatest disparity exists when
illegal reentry offenders escape prosecution
altogether because United States Attorneys'
offices lack resources to prosecute them. Fasttrack programs actually reduce disparity because
they enable United States Attorneys' offices to
prosecute more illegal reentry after deportation
offenders than would otherwise be feasible, absent
properly authorized fast-track programs. District
courts should not override the will of Congress by
granting fast-track reductions to illegal reentry
offenders in districts which lack authorized fasttrack programs. ˜
ABOUT THE AUTHOR
‘Paul W. Hahn joined the United States
Attorney's Office for the Eastern District of
Missouri in May 1997 as an Assistant
United States Attorney, and was detailed in 2003
to the Office of Counsel to the Director, Executive
Office for United States Attorneys. He has served
as the EOUSA liaison for several subcommittees
of the Attorney General's Advisory Committee,
including the Sentencing Guidelines
Subcommittee and the Border and Immigration
Subcommittee. Mr. Hahn regularly teaches a
session on "DOJ Policies and Guidance for
Sentencing After Blakely and Booker" at the

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National Advocacy Center's Criminal Federal
Practice Seminar for new federal prosecutors.a

Preparing for a Sentencing Hearing
Lori A. Hendrickson
Trial Attorney
Tax Division
Department of Justice

the defendant's participation in the conspiracy,
regardless of his minimal personal, direct
involvement. A detailed factual basis may also
support restitution amounts to specific victims.

I. Introduction/overview
his article is intended to be a practical
guide to assist prosecutors in preparing
for the most common sentencing issues.
Recognizing office procedures and local rules
may vary greatly district-to-district, there is no
need to inundate the reader with case citations.
Since the majority of federal criminal cases are
resolved through guilty pleas, the meticulous
drafting of the plea agreement may be the most
important step in preparing for the subsequent
sentencing hearing. Another crucial document is
the sentencing memorandum. Although it is not
necessary in every case, a persuasive sentencing
memorandum about targeted issues may make the
difference between the defendant serving a few
years in prison or remaining incarcerated until he
is eligible for Medicare.

T

Generally, the burden of proof for most
factual matters at sentencing is preponderance of
the evidence. A judge's discussion and adoption of
factual findings in the presentence report is the
usual method of meeting the burden of proof.
Since the probation officer uses the plea
agreement to begin drafting his presentence
report, the contents of that document will be
examined in detail.

II. Plea agreement
A. Counts of conviction/factual basis
When the defendant has been indicted for
dozens of counts of fraud, the actual counts of
conviction may be critical to determining the
proper restitution amount for individual victims
and the government. The loss for the duration of a
conspiracy may be ordered as restitution, based on

S EPTEM BER 2006

With a guilty plea, the defendant may agree to
any restitution amount, including losses attributed
to dismissed or acquitted counts. However, the
court cannot order restitution for all counts if the
defendant only pleads guilty to one count.
Therefore, prior to finalizing the plea agreement
in cases with multiple victims, the prosecutor
should consult the Financial Litigation Unit (FLU)
to ensure the plea language entitles the
government and victims to the maximum
allowable restitution.
Similarly, if the indictment includes forfeiture
language, or if there were seizures of forfeitable
assets during search warrants, a forfeiture unit
attorney should be consulted for the proper
language to insert in the plea agreement.

B. Guidelines offense calculation
Most districts do not include complete
Guidelines calculations in their plea agreements
since some decisions will not be made until the
sentencing hearing. To establish the Base Offense
Level, the plea agreement should state: "the
parties agree the Base Offense Level is 20, based
on a tax loss of $450,000, § 2T4.1(H);" See U.S.
S ENTENCING G UIDELINES M ANUAL § 2T4.1(H)
2005), or, "the parties agree the Base Offense
Level is 34, based on a quantity of 15-50
kilograms of cocaine hydrochloride,
§ 2D1.1(c)(3)." See U.S. S ENTENCING G UIDELINES
M ANUAL § 2D1.1(c)(3). By including the offense
level, the specific term which controls the offense
level (drug quantity or dollar amount of tax loss),
and the Guidelines section reference, there will be
no misunderstanding as to how the parties
determined the Base Offense Level. This
specificity also eliminates any potential
misunderstandings based on a typographical error.
Under basic contract principles, any errors will be

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construed against the government, the writer of
the plea agreement.
Applicable Guidelines Chapter Three
adjustments, such as role in the offense, victimrelated adjustments, and obstruction, should be set
forth with specificity in the plea agreement. If the
prosecutor wants to foreclose a potential minimal
role argument, he may insert the following
sentence in the plea agreement: "The parties agree
there are no applicable adjustments under Chapter
Three of the Guidelines." If there is an agreement
to disagree, put that in too—then the parameters
for the sentencing hearing are established. In this
situation, the probation officer will ask for more
information to make his own determination, and
the court will be alerted to the disputed issues well
in advance of the sentencing hearing.
A statement with respect to potential
departures under § 5K2 is an additional factor to
consider inserting in a plea agreement. We have
all experienced a sentencing hearing in which a
defense attorney suddenly raised his client's
previously undisclosed mental problems as a basis
for lenient treatment under the Guidelines. One
strategy to avoid this experience is to always
include a sentence in the plea agreement about
departures. For example, during plea negotiations
defense counsel asks for the right to argue for a
departure. His rambling statements about how his
client has never been in trouble, and just made this
one mistake, appear to be an argument for
aberrant behavior. In the plea agreement, the
prosecutor writes: "Defendant may argue for a
departure under § 5K2.20, aberrant behavior,
which the government will oppose. Defendant
may not seek any other departures which are not
specifically set forth in this plea agreement."
When the defendant's ten-page sentencing
memorandum arrives, the prosecutor need not
spend an afternoon responding to arguments about
departures under § 5K2.12, coercion and duress,
and § 5K2.13, diminished capacity. The response
will be concise: "The plea agreement permits
defendant to argue for a departure under
§ 5K2.20, and specifically precludes other
departures. See paragraph 10."
Another frequent post-Booker argument is
that the advisory Guidelines should not be applied
to sentence the defendant. Of course, the
sentencing judge must consider the Guidelines
and the factors set forth at 18 U.S.C. § 3553(a)
when imposing a sentence. It may be prudent to
include language similar to: "the parties agree the
22

Guidelines should apply, and agree that the
contemplated Guidelines range is a reasonable and
appropriate sentence." When there is a plea
agreement, the government should make every
effort to preclude, or at least limit, this sentencing
argument.

III. Presentence report
Immediately after the guilty plea hearing or
trial, the prosecutor should provide relevant
documents to the probation officer. If the
investigating agent obtained detailed criminal
history information to support an enhancement
under 21 U.S.C. § 851 or a career offender
designation, provide copies to the probation
officer. While the probation officer has access to
that information, she will appreciate efforts to
make her job easier. Perhaps the time she would
have spent on retrieving prior convictions can
now be devoted to an in-depth review of the facts
which the government argues support an
obstruction adjustment.
It is important to get the government's version
of the facts and potential adjustments in the first
draft of the presentence report for two reasons.
First, the original report's description of the facts
is rarely changed in the revised report. Second, the
prosecutor will get a preview of the defendant's
opposing arguments when he files his objections
to the presentence report. The prosecutor may
then take time to respond to defendant's
arguments in a sentencing memorandum, instead
of having to scramble to draft a quick response
when the defendant files his sentencing
memorandum the week before, or even the day
before, the sentencing hearing.

IV. Monetary penalties
In addition to terms of incarceration,
prosecutors should seek to require defendants to
pay fines, restitution, and forfeit property.
Financial penalties are very effective tools of both
specific and general deterrence. In plea
agreements, parties can agree to virtually
anything, per 18 U.S.C. § 3663(a)(1)(A), enabling
the prosecutor to craft an appropriate monetary
penalty to fit the facts of the case.
It is the defendant's burden to prove he has the
inability to pay a fine. The defendant must put
forth evidence of "the financial resources of the
defendant and financial needs of the defendant's
dependents." 18 U.S.C. § 3664(e). In other words,

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the defendant must prove that he or she can not
pay a fine. Additionally, the defendant's ability to
pay is also relevant to an order for discretionary
restitution, and in determining the manner of
payment of the fine or discretionary restitution.
The defendant's ability to pay is not relevant
for mandatory restitution.

A. Fines
To determine the applicable fine, the
prosecutor should first look to the statute of
conviction. If there is no fine listed, 18 U.S.C.
§ 3571 sets maximum fines based on the
particular category of crime. Next, Guidelines
§ 5E1.2(c) sets forth a range of fines based on the
defendant's Offense Level. If the statutory fine is
greater than $250,000, then that becomes the
maximum range under the Guidelines as well.
§ 5E1.2(c)(4).
Note that forfeiture of the defendant's assets
may affect his ability to pay a fine or discretionary
restitution, or the manner in which those penalties
are paid, since the defendant's ability to pay is a
consideration. Keep this in mind when
recommending the fine the defendant should be
ordered to pay.

B. Restitution
The Mandatory Victim Restitution Act, 18
U.S.C. § 3663(A), was enacted on April 24, 1996.
It sets forth categories of offenses for which
restitution is mandatory, including violent
offenses and property offenses. Additionally,
specific statutes for a wide range of offenses
mandate restitution, including: sexual abuse (18
U.S.C. § 2248); sexual exploitation of children
(18 U.S.C. § 2259); telemarketing fraud (18
U.S.C. § 2327); tax fraud (26 U.S.C. § 7201)
("costs of prosecution"); clandestine laboratory
site cleanup (21 U.S.C. § 853(q)); and maintaining
drug-involved premises (21 U.S.C. § 856(c))
("considered an offense against property for
purposes of Section 3663A(c)(1)(A)(ii) of Title
18").
In order to obtain a court order for restitution,
the government must establish a factual basis, by
a preponderance of the evidence, that a particular
victim suffered an actual loss of a specified dollar
amount, and should tie that loss to a specific count
of conviction. 18 U.S.C. § 3664(e). For crimes
with dozens of victims, this information should be
shared with the probation officer immediately.
The government is required to provide restitution
S EPTEM BER 2006

information to the probation officer "not later than
60 days prior to the date initially set for
sentencing." 18 U.S.C. § 3664(d)(1). If the loss
information is known when the plea agreement is
drafted, the prosecutor should include restitution
language and an attachment listing the names of
the victims and the amount of their loss. The
ability to put this information in the plea
agreement will depend on how long the case has
been pending, the stage of the proceeding at
which the plea was entered, and whether the loss
information is easily summarized.
In most cases, a sentencing memorandum
should be prepared outlining the facts of the
scheme and how the loss was calculated, with a
spreadsheet listing each victim's name and actual
loss amount. At the sentencing hearing, the
prosecutor should ask the court to adopt the
information contained within the government's
sentencing memorandum and make a factual
finding on the record that there is proof, by a
preponderance of evidence, as to each victim and
loss amount.
The court should order full restitution for each
victim's loss, regardless of the defendant's ability
to pay. 18 U.S.C. § 3664(f)(1)(A). The judgment
order should include the specific dollar loss per
victim, but the victim's address or other personal
information should be provided in a separate
document. It is important to make sure the court's
restitution order is accurate as to victim and to
count, as it can be very difficult to amend later. A
detailed sentencing memorandum exhibit which
can be attached to the judgment order minimizes
the risk of error. If the loss information is in the
plea agreement, the court may refer to the plea
agreement when ordering the restitution amount
(for example, as set forth on page five of the
judgment order under the heading "Criminal
Monetary Penalties").
In addition to actual loss, other amounts may
be ordered as restitution. For instance, in
telemarketing cases, it is proper to include interest
in loss amounts. Seek assistance from FLU
colleagues to make the proper calculation.

C. Financial information
Detailed financial information should be made
public at the sentencing hearing to allow for
immediate collection of fines and restitution. The
most common users of this financial information
will be the Probation Office, the FLU, and the
civil authorities of the Internal Revenue Service

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23

(IRS). Information that was obtained outside the
grand jury process may be easily shared, however,
financial information developed through the grand
jury must still be protected pursuant to Rule 6(e)
of the Federal Rules of Criminal Procedure. A
sentencing memorandum with exhibits may be the
most efficient method to put the defendant's
financial information in the public record. The
memorandum will serve two purposes.

office and to the IRS (or other agency) as a
condition of supervised release. This should be
discussed at the sentencing hearing so the
defendant knows that failure to comply with that
condition may result in revocation of his
supervised release and additional prison time.

•

To rebut the defendant's claimed inability to
pay a fine or restitution.

•

To disclose grand jury information.

If a fine or restitution is ordered, payment is
usually a standard condition of supervised release.
The liability to pay a fine or restitution lasts
twenty years from the date of judgment or twenty
years from date of release from incarceration,
whichever is later, or until the death of the
defendant.18 U.S.C. § 3613(b). These orders
generally may not be discharged in bankruptcy.

Prior to filing the memorandum, the prosecutor
should verify if his district requires a court order
to disclose grand jury information.
A sentencing memorandum with detailed
financial information may also be useful to
increase the defendant's prison term. The financial
exhibits may be used to support an argument that
other relevant conduct should be included in a
fraud case. For example, if the defendant prepared
an additional ten false income tax returns which
resulted in a $50,000 tax loss, that increase may
move him to the next higher base offense level.
The preparation of exhibits with financial
information to be attached to a sentencing
memorandum should begin immediately after the
trial or guilty plea hearing. The prosecutor should
ask the case agent to prepare spreadsheets
summarizing income figures, victim losses, and
the defendant's assets. The FLU may also use this
information to obtain lis pendens or temporary
restraining orders to prevent the defendant from
transferring assets to avoid paying fines or
restitution.
In white collar crime cases, the prosecutor
should include a clause in the plea agreement
which mandates providing financial information
to government agencies as a condition of
acceptance of responsibility. If the defendant fails
to provide the requested financial information
between the guilty plea hearing and the sentencing
hearing, the prosecutor can argue the defendant
should not get the third point (or any points,
depending on the egregiousness of the violation
and the realistic expectations of what a particular
judge will do).
Finally, the prosecutor on a fraud case should
also consider inserting a clause in the plea
agreement which requires the defendant to
provide financial information to the probation
24

D. Payment of fine or restitution as a
condition of supervised release

For tax fraud cases, the defendant may seek to
pay his income tax liability to avoid dealing with
the IRS when he gets out of prison. Tax Division
and IRS policies emphasize obtaining restitution
orders for proven tax losses. In cases where the
defendant agrees to pay money to a government
agency, the amount may be ordered as restitution
or collected directly by the agency. The
prosecutor should seek the agency's opinion as to
their preferred method and ask if the agency has
specific language to include in the plea agreement
or the restitution order. Substantial payments
toward this obligation should be a condition of
supervised release.

V. Sentencing memorandum
If the defendant files a sentencing
memorandum, the government should respond in
writing, even if the prosecutor does not have time
for a thorough analysis. A few judges, usually one
or two in each district, are likely to grant the
defendant's request for a downward adjustment or
departure if it is not precluded in the plea
agreement and the government fails to file a
written response.
A sentencing memorandum may also be
important if the factual basis in the plea
agreement, or the discussion during the plea
colloquy, were not detailed. If there are disputed
issues as to role adjustments or if a special skill
was used, it is best to set forth detailed reasons
why the government believes they apply. This
permits the court to review the issue, and perhaps
do its own research, instead of learning of the
arguments for the first time at the hearing. Many

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judges will not grant a motion for an adjustment
they have not thoroughly analyzed, as they want
to keep the record clean in the likely event of an
appeal.

VI. Sentencing hearing

One of the most important issues to be
resolved at sentencing is the defendant's criminal
history. This is critical when the defendant's prior
convictions make him eligible to be sentenced as a
career offender, under Guidelines § 4B1.1, or an
armed career criminal, pursuant to § 4B1.4.

•

Indictment or information.

•

Plea agreement.

•

Presentence report.

•

Objections to presentence report (government
and/or defense).

A sentencing memorandum may be of great
assistance to the court if the defendant's release
date is crucial to the determination of the
defendant's status as a career offender. See
§ 4A1.2. Additionally, if there is a dispute as to
whether a prior conviction is a "controlled
substance offense" or a "crime of violence" under
§ 4B1.1 or § 4B1.4, attach the prior indictment
and the certified entries of the guilty plea and
sentencing hearing as exhibits. See Shepard v.
United States, 544 U.S. 13 (2005) (holding that
the categorical approach permits the review of the
statute, the charging document, the plea
agreement, and factual findings by a sentencing
court to characterize a prior felony and determine
if the Armed Career Criminal Act applies).

•

Sentencing memoranda (government and/or
defense).

•

Federal criminal code book.

•

Guidelines Manual.

A sentencing memorandum is the
government's opportunity to supplement, or rebut,
the presentence report's conclusions. Written,
well-reasoned arguments about disputed issues
will be invaluable when the prosecutor is
appearing before a judge who usually does not ask
the government for recommendations during the
sentencing hearing. Indeed, the sentencing
memorandum may be the government's only
method to advocate its sentencing position.

For the hearing, the prosecutor should always
have the following materials.

In addition, the prosecutor should prepare a
one-page summary of the counts of conviction,
the material terms of the plea agreement, and the
anticipated sentencing issues. This summary
should note any motions the government intends
to make, including for the third point of
acceptance under § 3E1.1, for substantial
assistance under § 5K1.1, and to dismiss
remaining counts in the indictment. Procedures
for these motions vary from district to district.
The prosecutor should verify whether the court
expects a § 5K1.1 motion to be in letter format,
filed under seal, or simply made orally during the
hearing.
A checklist used by the author at a recent
sentencing hearing follows.

Sentencing Hearing- Frank Adams
Guilty plea hearing:
Counts of conviction:

November 14, 2005
Ct 1:

conspiracy to distribute and possess with intent to distribute > 5
kilo cocaine (21 U.S.C. §§ 846/841(b)(1)(A))

Ct 41:

money laundering, financial transaction of $9,500 used to
purchase vehicle in nominee name to conceal true ownership,
used proceeds from specified unlawful activity (21 U.S.C.
§§ 846/841(b)(1)(A)) (18 U.S.C. § 1956)

Presentence Report: Criminal History Category IV
Sentencing Guidelines Calculation:
Base Offense Level:

38 § 2D1.1(c)(1) (at least 150 KG cocaine)
+2 § 2S1.1(b)(2)(B) (18 U.S.C. § 1956 conviction)

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- 3 § 3E1.1(a) (Acceptance of Responsibility)
Adjusted Offense Level 37
Total Offense Level: 37, CHC IV

292-365 months

Plea Agreement terms:
Dismiss counts:

6 - 19, 21 - 28, 30 - 35

Gov't recommendation: 27 year binding sentence (324 months)
Supervised release:

21 U.S.C. § 841(b)(1)(A)/18 U.S.C. § 3583/§ 5D1.2

Special assessment: 18 U.S.C. § 3013, felony, 3013(a)(2)(A)- $100 individual
Fine:
Statute:

21 U.S.C. § 841(b)(1)(A) with prior conviction- $8 million

18 U.S.C. § 3571:
§ 5E1.2(c)(4):

N/A

statute > $250,000, therefore use $8 million

Restitution/Forfeiture:
For Judgment and Commitment Order, include language set forth in Preliminary Order of Forfeiture
(Docket #244)
Appeal: Right to appeal conviction and/or sentence as limited by plea agreement paragraph 24
Alternatively, a judgment form, AO 245B, is
an excellent tool for the prosecutor to use as a
checklist for items the court should discuss at each
sentencing hearing.
United States v. Booker, 543 U.S. 220 (2005),
has added a new dimension to some sentencing
issues, although it does not apply to restitution.
Every prosecutor should be familiar with postBooker decisions in their circuit which impact
sentencing. While generally the case law holds a
sentencing judge need not recite each and every
factor under 18 U.S.C. § 3553(a), how detailed
must the discussion be? Prosecutors should know
their circuit's rule so they are prepared to ask the
judge to review a factor which, if omitted, may
result in a remand for a new sentencing hearing.

VII. Conclusion
A thorough, detailed plea agreement which
anticipates the most common sentencing issues is
a great asset to the prosecutor. It is the template
from which a prosecutor may quickly respond to
the defendant's objections to the presentence
report or oppose departures not permitted by the
plea agreement. Moreover, a comprehensive
sentencing memorandum will ensure financially
able defendants, especially white collar criminals
and drug dealers, pay substantial monetary
26

penalties in addition to serving a significant term
in prison. After reading the carefully drafted plea
agreement and sentencing memorandum, the court
will be more apt to follow the government's
sentencing recommendations.˜
ABOUT THE AUTHOR
‘Lori A. Hendrickson has been prosecuting and
investigating federal criminal tax cases, money
laundering, and other white collar crimes for
nineteen years. She has been a trial attorney with
the Western Criminal Enforcement Section of the
Tax Division since May 1998, litigating cases
primarily in the western United States. She has
also prosecuted several Organized Crime Drug
Enforcement Task Force cases during her tenure
with the Tax Division. Prior to May 1998, she was
a special agent for eleven years with the Criminal
Investigation Division of the Internal Revenue
Service in Cleveland, Ohio. Ms. Hendrickson also
is licensed as a certified public accountant in the
state of Ohio. She has been a frequent instructor at
local, regional, and national seminars regarding
financial investigative techniques.a

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The Presumption of Reasonableness
for Within-Guidelines Sentences
Elizabeth A. Olson
Attorney
Criminal Division
Appellate Section

advocating for, and defending, a within-guidelines
sentence.

II. Presumption of reasonableness in the
courts of appeals

I. Introduction
n United States v. Booker, 543 U.S. 220
(2005), the Supreme Court held that
sentencing a defendant under a mandatory
sentencing guidelines scheme based on facts
found by a judge, rather than a jury, violated a
defendant's Sixth Amendment right to a jury trial.
Id. at 226-27. To remedy this problem, the Court
excised the provisions in the Sentencing Reform
Act, Pub. L. No. 98-473, 98 Stat.1987 (codified in
scattered sections of 18 U.S.C.) (1984), that made
the federal guidelines mandatory, thus rendering
them advisory. Booker, 543 U.S. at 245. The
Court in Booker stressed that "[w]ithout the
'mandatory' provision, the Act nonetheless
requires judges to take account of the Guidelines
together with other sentencing goals," id. at 259,
and that "[t]he district courts, while not bound to
apply the Guidelines, must consult those
Guidelines and take them into account when
sentencing." Id. at 264. The Court directed that
appellate courts review sentences for
"unreasonableness." Id. at 261.

I

In the fifteen months since Booker was
decided, the courts of appeals have begun to
develop a jurisprudence of "reasonableness"
review. Although development of the law in this
area is still in its infancy, some themes are
beginning to emerge. This article discusses one of
those themes: the extent to which a sentence
imposed within the applicable guidelines range
should be afforded a presumption of
reasonableness. Part II will survey appellate
decisions in which courts have adopted, or
declined to adopt, a presumption of
reasonableness for within-guidelines sentences.
Part III will address the distinct, but related,
question of whether the district court at sentencing
should presume that the appropriate sentence falls
within the (now-advisory) guidelines range.
Finally, Part IV will provide some practical
suggestions for AUSAs with respect to both
S EPTEM BER 2006

As of mid-April 2006, six courts of appeals
have held, on appellate review, that a sentence
imposed within a correctly calculated guidelines
range is entitled to a presumption of
reasonableness. See United States v. Green, 436
F.3d 449, 457 (4th Cir. 2006); United States v.
Alonzo, 435 F.3d 551, 554 (5th Cir. 2006);
United States v. Williams, 436 F.3d 706, 708 (6th
Cir. 2006); United States v. Mykytiuk, 415 F.3d
606, 608 (7th Cir. 2005); United States v. Lincoln,
413 F.3d 716, 717-18 (8th Cir. 2005);
United States v. Kristl, 437 F.3d 1050, 1054 (10th
Cir. 2005). These courts reasoned that "[t]he
Guidelines remain an essential tool in creating a
fair and uniform sentencing regime across the
country," Mykytiuk, 415 F.3d at 608, and that a
rebuttable presumption of reasonableness is
appropriate in light of "the purpose of the
Guidelines[:]. . .to promote uniformity in
sentencing so as to prevent vastly divergent
sentences for offenders with similar criminal
histories and offenses." Kristl, 437 F.3d at 1054.
While adopting a rebuttable presumption of
reasonableness, the courts declined to declare a
within-guidelines sentence reasonable per se. See,
e.g., Mykytiuk, 415 F.3d at 608. ("While we fully
expect that it will be a rare Guidelines sentence
that is unreasonable, the Court's charge that we
measure each defendant's sentence against the
factors set forth in § 3553(a) requires the door to
be left open for this possibility.")
The Fourth Circuit has taken this presumption
farther than the other circuits, holding that "[i]f a
sentence within the sentencing range serves the
factors set forth in § 3553(a), the court should
impose a sentence within that range," and that
only if "a sentence within the sentencing range
does not serve the § 3553(a) factors, the court may
impose a sentence outside of the sentencing
range," provided it gives an explanation "why a
sentence outside of the Sentencing Guideline
range better serves the relevant purposes set forth

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27

in § 3553(a)." United States v. Eura, 440 F.3d
625, 632 (4th Cir. 2006).
Other circuits have not articulated their
treatment of a within-guidelines sentence in terms
of a presumption, but have nevertheless taken a
similar approach. The Eleventh Circuit, for
example, has said that "ordinarily [it] would
expect a sentence within the Guidelines range to
be reasonable." United States v. Talley, 431 F.3d
784, 788 (11th Cir. 2005). Similarly, the Third
Circuit has found it "[un]necessary to adopt a
rebuttable presumption of reasonableness for
within-guidelines sentences," reasoning that
appellants "already bear the burden of proving the
unreasonableness of sentences on appeal."
United States v. Cooper, 437 F.3d 324, 331-32
(3d Cir. 2006). That court did say, however, that
"a within-guidelines range sentence is more likely
to be reasonable than one that lies outside the
advisory guidelines range." Id. at 331. Finally,
while the First Circuit declined to adopt a
presumption of reasonableness for
within-guidelines sentences, see United States v.
Jimenez-Beltre, 440 F.3d 514, 518 (1st Cir. 2006)
(en banc) ("We do not find it helpful to talk about
the guidelines as 'presumptively' controlling or a
guidelines sentence as 'per se reasonable. . .'"), it
made clear that "the guidelines cannot be called
just 'another factor' in the statutory list, 18 U.S.C.
§ 3553(a) (2000), because they are the only
integration of the multiple factors and, with
important exceptions, their calculations were
based upon the actual sentences of many judges."
Id.
The Second Circuit has also declined to adopt
a presumption of reasonableness for withinguidelines sentences. See United States v. Crosby,
397 F.3d 103, 115 (2d Cir. 2005). The Second
Circuit has identified two aspects of its
reasonableness review:
(1) procedural reasonableness, whereby [it]
consider[s] such factors as whether the district
court properly (a) identified the Guidelines
range supported by the facts found by the
court, (b) treated the Guidelines as advisory,
and (c) considered the Guidelines together
with the other factors outlined in 18 U.S.C.
§ 3553(a); and (2) substantive reasonableness,
whereby [it] consider[s] whether the length of
the sentence is reasonable in light of the
factors outlined in 18 U.S.C. § 3553(a).

United States v. Claudillo-Marquez, 2006 WL
224182, at *3 (2d Cir. Jan. 30, 2006)
(unpublished). So far, the Second Circuit has
affirmed as reasonable on appeal every sentence
imposed within a properly calculated advisory
guidelines range. Only the Ninth and D.C.
Circuits have yet to decide whether to adopt a
presumption of reasonableness for withinguidelines sentences.
Regardless of the terminology adopted or
rejected by the courts, however, the courts of
appeals have affirmed as reasonable withinguidelines sentences in the overwhelming
majority of cases. The exceptions are notable. In
United States v. Cunningham, 429 F.3d 673 (7th
Cir. 2005), the Seventh Circuit vacated and
remanded a within-guidelines sentence because it
concluded that the district court had failed to
provide an adequate explanation for the sentence
it imposed. Although the sentence was within the
guidelines range, and therefore had a presumption
of reasonableness under the Circuit's precedent,
the court was troubled that the district court had
failed to discuss the defendant's apparently strong
evidence of psychiatric problems and substance
abuse, which he argued warranted a downward
departure or variance. While refusing to say that a
district court "is obliged to address every
argument that a defendant makes at the sentencing
hearing," the court nevertheless found that it could
not "have much confidence in the judge's
considered attention to the factors in this case,
when he passed over in silence the principal
argument made by the defendant." Id. at 679.
In United States v. Lazenby, 439 F.3d 928
(8th Cir. 2006), defendants Lazenby and Goodwin
were convicted of conspiring to manufacture and
distribute methamphetamine. Goodwin's
Sentencing Guidelines range was calculated at 87108 months, and the district court imposed a
sentence of eighty-seven months. The court of
appeals vacated and remanded, despite the
sentence being within the applicable guidelines
range, given the "unusual circumstances." Id. at
934. The court noted that Goodwin was arguably
less culpable than her codefendant, who had been
sentenced by a different judge to twelve months.
The court of appeals noted that this disparity
"illustrates the virtue" of having coconspirators
sentenced by the same district judge, and
remanded the case for resentencing. Id.
Finally, the Ninth Circuit recently vacated a
below-guidelines sentence in United States v.

28

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Zavala, 2006 WL 914528 (9th Cir. Apr. 11,
2006). The court held that the district court erred
in concluding that the guideline range was the
"presumptive sentence," and in stating that the
defendant bore the burden of explaining any
justification for imposing a lower sentence.
Thus, while the overwhelming majority of
within-guidelines sentences are affirmed as
reasonable on appeal, the "presumption" of
reasonableness for such sentences is not absolute.
This is true both on appeal and in the district
courts.

III. Presumption of reasonableness in
the district courts
Although the cases above focus primarily on
the presumption of reasonableness as a matter of
appellate review of a within-guidelines sentence,
a related question focuses on the district court's
procedures at the initial sentencing. All the courts
of appeals have held, post-Booker, that the district
court is obligated, in most cases, to correctly
calculate the guidelines range and to "consider"
that range when determining the defendant's
sentence. See, e.g., Crosby, 397 F.3d at 111;
United States v. Crawford, 407 F.3d 1174,
1178-79 (11th Cir. 2005) ("This consultation
requirement [in § 3553(a) that survives Booker],
at a minimum, obliges the district court to
calculate correctly the sentencing range prescribed
by the Guidelines. . . . In other words, as was the
case before Booker, the district court must
calculate the Guidelines range accurately. A
misinterpretation of the Guidelines by a district
court effectively means that [the district court] has
not properly consulted the Guidelines." (quoting
United States v. Hazelwood, 398 F.3d 792, 801
(6th Cir. 2005)) (alteration in original);
Hazelwood, 398 F.3d at 801 ("[R]egardless of
whether the Guidelines are mandatory or merely
advisory, district courts are required by statute to
consult them. . . ." (citing 18 U.S.C. § 3553(a)).
The scope and limits of this "consultation,"
however, remain unclear. At least two circuits
have suggested that it is inappropriate for the
district court to begin and end with the guidelines
range, without considering the other § 3553(a)
factors as well. In Zavala, the defendant was
convicted of conspiracy to distribute or to possess
with intent to distribute methamphetamine and of
distribution of methamphetamine. See Zavala,
2006 WL 914528; 21 U.S.C. §§ 841(a)(1), 846.

S EPTEM BER 2006

The district court calculated the guidelines
"range" as life imprisonment, and announced at
the sentencing hearing that it assumed that the
calculated guideline range becomes a presumptive
sentence, and that it must then decide if the other
factors in 18 U.S.C. § 3553(a) "would justify the
Court in imposing a lesser sentence than that set
forth in the Guideline range." Zavala, 2006 WL
914528, at *1. The court later clarified that it
viewed the guidelines range as the "starting
point," and rejected the defendant's assertion that
the "starting point" should be the mandatory
minimum sentence. The district court then went
on to consider the factors in 18 U.S.C. § 3553(a),
and ultimately sentenced the defendant to thirty
years' imprisonment.
The Ninth Circuit vacated and remanded.
Although the court rejected the defendant's
assertion that the guidelines range should not be
used as the "starting point," it found that the
district court had gone too far in declaring the
guidelines range the "presumptive" sentence. By
doing so, the court held, the district court
improperly accorded the guidelines range greater
weight than it accorded the other § 3553(a)
factors. Id. 2006 WL 914528, at *5.
The Seventh Circuit also touched on this issue
in Cunningham. Although the court accepted the
district court's use of the guidelines range as a
starting point, it cautioned that "the sentencing
judge may not rest on the guidelines alone, but
must, if asked by either party, consider whether
the guidelines sentence actually conforms, in the
circumstances, to the statutory factors."
Cunningham, 429 F.3d at 676. The government
argued in Cunningham that the district court's
statement that it had considered "all of the factors
that [it has] to adhere to" sufficed to demonstrate
that the district court had exercised its discretion,
and that no further explanation for its withinguidelines sentencing decision was necessary. Id.
at 677. The court of appeals said that this might be
sufficient "if those circumstances made only a
weak case for a sentence below the guidelines
range," id. at 678, and that a district court need not
address every argument a defendant makes at
sentencing because the "failure to discuss an
immaterial or insubstantial dispute relating to the
proper sentence would be at worst a harmless
error." Id. at 679. The court cautioned, however,
that a "rote statement that the judge considered all
relevant factors will not always suffice" in a case
where a defendant brings forward a strong

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29

argument in support of a lower-than-guidelines
sentence. Id.
Thus, here too, prosecutors are well-advised
not to rest solely on the presumptive
reasonableness of the guidelines sentencing range.
Instead, the better practice is to take a step back,
and focus the district court's attention on the basis
for that presumption.

IV. Advocating for, and defending, the
within-guidelines sentence
In advocating for a within-guidelines sentence
in the district court, prosecutors should make clear
that the sentence is appropriate not only because it
falls within the applicable guidelines range, but
also because a sentence within that range
necessarily furthers several of the goals of
sentencing specified in 18 U.S.C. § 3553(a).
Because the guidelines reflect nationwide
sentencing practices—including identifying and
assigning weights to the factors, both aggravating
and mitigating, that judges traditionally used in
determining an appropriate sentence—a sentence
within the guidelines range reflects the federal
courts' collective sentencing expertise
accumulated over the past two decades. A
properly calculated guidelines range takes into
effect the nature and circumstances of the offense
and the history and characteristics of the offender.
See 18 U.S.C. § 3553(a)(1). It gives appropriate
weight to the need for the sentence imposed to
reflect the seriousness of the offense, to promote
respect for the law, and to provide just
punishment. See id. § 3553(a)(2)(A). It affords
adequate deterrence to criminal conduct and
protects the public from further crimes of the
defendant. See id. §§ 3553(a)(2)(B), (C).
Moreover, a guidelines sentence—and only a
guidelines sentence—provides a means for the
district court to avoid unwarranted sentencing
disparities among defendants with similar records
who have been found guilty of similar conduct.
See id. § 3553(a)(6). Prosecutors should focus on
these factors in their sentencing memoranda and at
sentencing hearings, and stress that, as the First
Circuit concluded, "the guidelines cannot be
called just 'another factor' in the statutory list,"
because they are instead "the only integration of
the multiple factors." Jimenez-Beltre, 440 F.3d at
518.
This is equally true on appeal. Noting the
presumptive reasonableness of a within-guidelines

30

sentence is a good starting point in those circuits
that have adopted the presumption. Even then,
however, it is best to reiterate the reasons for that
presumption. A guidelines sentence is not
reasonable merely because the Sentencing
Commission has deemed it so—rather, it is
reasonable because it takes into account almost all
of the factors that the court is statutorily obligated
to consider. In addition, it is the only factor that
allows the courts to avoid unwarranted sentencing
disparity among similarly situated defendants.
While a district court need not address every
argument a defendant makes in support of a
below-guidelines sentence, prosecutors will be
well-advised to consider whether any of the
defendant's arguments might appear, from a cold
record at the appellate stage, to be close calls. In
those cases, the better practice would be to
address these issues head-on in the district court,
and to ask the court to make clear on the record
that it has considered and rejected those claims.
Where the record is clear, the courts of appeals
will be deferential. See, e.g., United States v.
Williams, 425 F.3d 478, 480 (7th Cir. 2005) ("It is
enough that the record confirms that the judge has
given meaningful consideration to the section
3553(a) factors, and the record supplies us with
that assurance here.")
Although the majority of sentences are
imposed within the now-advisory guidelines, and
while the overwhelming majority of withinguidelines sentences are being affirmed as
reasonable on appeal, the exceptions are
instructive. They suggest that prosecutors still
need to assure that the record is clear, that the
district court has imposed sentence in light of the
statutory factors in § 3553(a), and that the court
has actually exercised its discretion at
sentencing.˜
ABOUT THE AUTHOR
‘Elizabeth A. Olson is an attorney in the
Appellate Section of the Criminal Division. She
joined the Department of Justice in 2003. She has
been actively involved with the government's
response to the Supreme Court's sentencing
decisions since the Court's decision in Blakely v.
Washington. Ms. Olson presented the
government's position at oral argument in
United States v. Booker in the Seventh Circuit,
and worked on the government's petition for cert

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S EPTEM BER 2006

and merits brief in that case. She continues her
work as a member of the Booker team, consulting
with, and advising government attorneys on
various aspects of post-Booker sentencing
procedures on a daily basis. Ms. Olson regularly
teaches a session on "DOJ Policies and Guidance
for Sentencing After Blakely and Booker" at the
National Advocacy Center's seminar for new
federal prosecutors, and frequently makes
presentations to attorneys and others about federal
sentencing and Booker.a

Guideline "Departures" at Sentencing
Robert Don Gifford
Assistant United States Attorney
District of Nevada
Not every defeat of authority is a gain for
individual freedom nor every judicial rescue of a
convict a victory for liberty.
-Chief Justice Robert H. Jackson

I. Introduction
ike "skinnin' a cat," there have always
been a variety of ways for a defendant to
obtain a "departure" from a federal
criminal sentence calculated under the U.S.
Sentencing Guidelines, e.g., "substantial
assistance," as well as those departures that fall
outside of the "heartland" of the guidelines. See
Koon v. United States, 518 U.S. 81, 98 (1996).
The Supreme Court altered the sentencing
landscape in Booker v. United States, 543 U.S.
220 (2005), declaring the Guidelines merely
advisory. Tenth Circuit Judge Michael McConnell
concisely summarized Booker's end-result with an
apt quote from the Disney movie Pirates of the
Caribbean, "The [Pirate] Code is more of what
you would call guidelines than actual rules." The
Booker Mess, 83 D ENV . U. L. R EV . 665, 665
(2006).

L

II. The Booker effect
After the 2003 PROTECT Act, sentences
within the Guidelines increased from 65% in FY
2002 to 72.2% in FY 2004. While the media and
S EPTEM BER 2006

the information being posted on the United States
Court's Web page still claim that "most" sentences
are within the Sentencing Guideline range, a
closer look at the statistics by the Sentencing
Commission demonstrates a growing disparity
between the circuit courts, and even district courts
within the same circuit. See http://www.uscourts.
gov/ttb/02-06/indepth/index.html. In his statement
to the Committee on the Judiciary for the U.S.
House of Representatives, United States Attorney
and Principal Associate Deputy Attorney General
William Mercer cited as an example of the
disparity of Booker departures between
neighboring districts, the 25.7% rate in the
District of Massachusetts versus the 8.9% rate in
Northern District of New York. It has also been
revealed that there is a growing increase in
downward departures in every circuit. Three
federal circuits seem to be hovering at or below
the sentencing guideline range.
•

The Ninth Circuit (48% of post-Booker
sentences within guideline range).

•

The Second Circuit (49.6% of post-Booker
sentences within guideline range).

•

The Third Circuit (51.9% of post-Booker
sentences within guideline range).

The federal district courts within the Fifth Circuit
appear to be the most likely to sentence within the
guideline range (71.6%). See Special Post Booker
Coding Project (Feb. 14, 2006),
http://www.ussc.gov/Blakely/postBooker_021406
.pdf. Senator Patrick Leahy, in Senate Hearings in
2004, referred to sentencing prior to the

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31

Sentencing Reform Act of 1984 as the "bad old
days of fully indeterminate sentencing when
improper factors such as race, geography and the
predilections of the sentencing judge could
drastically affect [a defendant's] sentence." See
http://judiciary.senate.gov/testimony.cfm?id=1260
&wit_id=2629.

III. Hair splitting–departures, variances
et al.
In essence, the Guidelines have placed federal
criminal practitioners, as former Central
Command's Commanding General Tommy Franks
would describe it, at a "crease in history," with
circuit-by-circuit interpretive differences for the
entire federal sentencing system. For example,
some districts will refer to any sentence outside
the guidelines as a "departure," while others
differentiate with terms such as "variance" or
"divergence." See e.g. United States v. Hawk
Wing, 433 F.3d 622, 631 (8th Cir. 2006) (district
courts must decide whether a "traditional
departure" is appropriate after calculating the
guideline range and before deciding whether to
impose a "variance" sentence). See also,
United States v. Hampton, 441 F.3d 284, 288 n.2
(4th Cir. 2006); United States v. Johnson, 427
F.3d 423, 426 (7th Cir. 2005). Muddying the
waters further, the Seventh Circuit recently
declared that "the concept of 'departures' has been
rendered obsolete . . .," United States v. Vaughn,
433 F.3d 917, 923 (7th Cir. 2006), however the
Fourth and Sixth Circuits stepped up to hold that
departures remain an important part of sentencing,
even after Booker. United States v. Moreland, 437
F.3d 424, 432 (4th Cir. 2006); United States v.
McBride, 434 F.3d 470, 474 (6th Cir. 2006). The
interaction between Booker, the guidelines, and
relevant statutory provisions concerning guideline
departures, continues to raise novel issues almost
daily at federal sentencing hearings in various
jurisdictions. See generally Professor Douglas A.
Berman, Sentencing Law and Policy, available at
http://www.sentencing.typepad.com.

IV. The basics–back to the future
It is in this new era that "baby steps" may be
required in taking a fresh look at how the
guidelines "advise" and how to proceed at
sentencing in the post-Booker era. Despite the fact
that the Sentencing Guidelines are now only
"advisory," the Booker decision still found them
to be a factor that the district court "must"
32

consider in fashioning a sentence that is
"sufficient but not greater than necessary." 18
U.S.C. § 3553(a)(4); United States v. Crosby, 397
F.3d 103, 108 n.5 (2d Cir. 2005). The guidelines
are not just "'another factor' in the [§ 3553(a) list]
because they are the only integration of the
multiple factors and, with important exceptions,
their calculations were based upon the actual
sentences of many judges." United States v.
Jimenez-Beltre, 440 F.3d 514, 518 (1st Cir. 2006).
The guidelines are "not presumptive," and should
serve only as a "starting point" for determining the
sentence and be given the same weight as other
§ 3553(a) factors. United States v. Zavala, 443
F.3d 1165, 1169 (9th Cir. 2006). In addition,
remember that federal criminal sentencing
proceedings are governed by Rule 32 of the
Federal Rules of Criminal Procedure, and nothing
in Booker altered its guidance. In arriving at an
appropriate disposition, the court must consider,
and make clear on the record, a number of factors
so that the sentence will accomplish the following
purposes.
•

Reflect the seriousness of the offense.

•

Promote respect for the law and provide just
punishment for the offense.

•

Provide adequate deterrence to criminal
conduct.

•

Protect the public.

•

Provide the defendant with . . . educational or
vocational training, medical care, or other
correctional treatment. . . .

See 18 U.S.C. § 3553(a)(2). Failure to calculate a
guideline sentence will generally be a reversible
error. United States v. Robinson, 435 F.3d 699,
702 (7th Cir. 2006).
Prior to Guideline sentencing, federal judges
were not required to explain their respective
rationales for imposing any particular sentence.
Post-Booker, sentencing judges must make the
record clearer, but judges need not engage in a
"ritualistic incantation" of statutory factors for a
sentence to be considered "reasonable."
United States v. Johnson, 403 F.3d 813, 816 (6th
Cir. 2005). While a judge must give a reason for a
sentence, it is not necessary to state a reason for
denying a request for a departure. United States v.
Jones, 445 F.3d 865 (6th Cir. 2006). Booker freed
the sentencing courts from the departure
methodology of the guidelines that were otherwise
previously prohibited. Courts should also be wary

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S EPTEM BER 2006

of making statements on the record that appear as
if too much weight was placed on the guidelines
by the sentencing judge.

V. Plea agreements and negotiations
While the defense bar may now view
"normal" plea agreements as having less value,
prosecutors should continue to draft plea
agreements that provide for defendants to be
sentenced within, and according to, the
Sentencing Guidelines, when possible. See David
L. McColgin and Brett G. Sweitzer, Grid and
Bear It: Post-Booker Sentencing Litigation
Strategies, Part 2, 29 T HE C HAMPION 42 (Dec.
2005). The traditional plea agreements may
otherwise protect the record by showing that a
defendant still has the right, in a post-Booker
sentencing, to "waive constitutional or statutory
rights then in existence, as well as those that
courts may recognize in the future . . . the change
in law does not suddenly make the plea
involuntary or unknowing or otherwise undo its
binding nature." United States v. Bradley, 400
F.3d 459, 463 (6th Cir. 2005).
Prosecutors should also be careful to protect
the record from any statements by the court that
violate 18 U.S.C. § 3582(a) and make it appear
that the imprisonment imposed by the court is the
only and most appropriate means of "promoting
correction and rehabilitation." Another statutory
provision that prosecutors must be aware of, and
be ready to invoke, is 18 U.S.C. § 3661, which
states "No limitation shall be placed on the
information concerning the background, character,
and conduct of a person convicted of an offense
which a court . . . may receive and consider for the
purpose of imposing an appropriate sentence." See
also Williams v. Oklahoma, 358 U.S. 576, 584
(1959) (hearsay admissible at sentencing);
United States v. Littlesun, 444 F.3d 1196 (9th Cir.
2006). Section 3661 is currently being viewed
favorably by the defense bar. On its face,
however, it is a potential double-edged sword.
While it forbids limitations in favor of the
defendant, it also frees up the court to consider
any negative information about the defendant.
This type of information would not have been
considered under pre-Booker case law.

S EPTEM BER 2006

VI. Before the judge pulls that
trigger . . .
If a court intends to depart from the guideline
range on a ground not identified in the
presentence report or a prehearing submission,
Rule 32(h) of the Federal Rules of Criminal
Procedure and § 6A1.4 of the Sentencing
Guidelines require reasonable notice, by the court,
stating that it is contemplating such a ruling and
specifically identifying the grounds for the
departure. See United States v. Evans-Martinez,
2006 WL 05-10280 (9th Cir. June 1, 2006) (notice
still required); United States v. Dozier, 444 F.3d
1215 (10th Cir. 2006) ("Nothing in the PSR or
any pre-hearing submission by the government
indicated the District Court might be considering
the victim impact statements as a basis for an
upward departure"). The Seventh and Eighth
Circuits, however, have stated that the
requirement for reasonable notice under Rule
32(h) no longer applies in cases in which a
sentence outside the guidelines is imposed due to
"variance," since it is not a "departure."
United States v. Walker, 2006 WL 1329923 (7th
Cir. May 17, 2006); United States v. Egenberger,
424 F.3d 803, 805 (8th Cir. 2005).
In circuits other than the Seventh and Eighth,
it is not clear what kind of "notice" is necessary
before a court, acting under the guidance of
§ 3553(a) and Booker, may go outside the
guideline range. See F ED . R. C RIM . P. 32(i)(1)(C)
(court must allow the parties' attorneys to
comment on "matters relating to an appropriate
sentence"); F ED . R. C RIM . P. 32(h) (Proposed
Draft Aug. 2005) (expanding notice requirement
to include grounds for both departures and other
non-guideline sentences); See generally Burns v.
United States, 501 U.S. 129, 138-39 (1991)
(considering Rule 32 required notice);
United States v. Calzada-Maravillas, 443 F.3d
1301, 1308 (10th Cir. 2006) (improper for
sentencing court to depart upwards sua sponte).

VII. Reasons to depart
Before Booker struck § 3553(b)(1) from the
Sentencing Reform Act, Pub. L. No. 98-473, 98
Stat. 1987 (codified as amended in scattered
sections of Title 18), the Sentencing Guidelines
placed strictures on a sentencing court's ability
and authority to sentence outside the guideline
range. Non-guideline sentences were available
only when a case presented a mitigating or

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33

aggravating circumstance "of a kind, or to a
degree, not adequately taken into consideration by
the Sentencing Commission in formulating the
guidelines." See U.S. S ENTENCING G UIDELINES
M ANUAL § 5K2.0(a) (2005). Excepting downward
departures requested by the government, federal
courts nationwide are now more likely to sentence
outside the sentencing guideline range based on
§ 3553(a) factors, rather than on the grounds listed
in Chapter Five. See U.S. S ENTENCING C OMM 'N ,
F INAL R EPORT ON THE IMPACT OF U NITED S TATES
V . B OOKER ON F EDERAL S ENTENCING 62, tbl. 1
(2005) [hereinafter Final Report) (courts
sentenced outside the range in 2,276 cases based
on departure grounds other than government
motions, and in 6,947 cases based on the factors
in 3553(a)). See www.ussc.gov/
booker_report/Booker_Report.pdf.
Chapter Five of the Sentencing Guidelines,
parts H and K, originally set out the policies on
factors that may be considered in departing from,
or fixing a sentence within, the guideline range.
While Booker has put much of that in flux, an
analysis of it should be done and presented to the
court. Part H of that chapter discusses the policy
that certain offender characteristics that are "not
ordinarily relevant" (e.g. age, education and
vocational skills, employment record, family
ties/responsibilities, and community ties) in
determining whether a departure would be proper.
See U.S. S ENTENCING G UIDELINES M ANUAL ch. 5,
pt. H, introductory cmt. (2005). In this new and
uncertain sentencing era, it appears that flexibility
may be found in the word "ordinarily." Arguably,
in the "exceptional" cases, one or more of these
listed characteristics may support some form of
departure. In the ordinary guideline-calculated
case, the characteristics may be relevant for courts
deciding where to sentence within the guideline
range, or whether to impose a sentence outside the
range under Booker and § 3553(a). See generally:
Booker Litigation Strategies Manual: A Reference
for Criminal Defense Attorneys (Apr. 20, 2005),
available at http://www.fd.org/pdf_lib/BookerLit
Strategies_MJMver03.pdf; Michael R. Levine,
128 Easy Mitigating Factors (Feb. 1, 2006), http://
www.fd.org/pdf_lib/128EasyMitigatingFactors
.pdf.
While advisory, the post-Booker version of
the guidelines still discuss certain characteristics
listed in Part H of Chapter Five that should never
support a departure, such as substance or
gambling addiction, role in the offense, or lack of
34

guidance as a youth. See U.S. S ENTENCING
C OMMISSION G UIDELINES M ANUAL §§ 5H1.4
5H1.7, 5H1.12 (2005), respectively. The PostBooker guidelines also state that family and
community ties can never be the sole basis for
downward departure in a child or sex offense,
even though they may be a potential departure
ground in the extraordinary case. Id. § 5H1.6. In
accordance with 28 U.S.C. § 994(d), race, sex,
national origin, creed, religion, and
socioeconomic status are never relevant to the
determination of the sentence. Id. § 5H1.10. As
with other sections of the Guidelines, there is
disagreement whether such characteristics are
otherwise relevant to sentencing pursuant to
§ 3553(a). See United States v. Long, 425 F.3d
482, 488 (7th Cir. 2005) (after Booker, district
court is free to consider factors outlined in
§ 3553(a), "including those that were specifically
prohibited by the guidelines. . . ."); see, supra,
e.g., Final Report 82-83, tbls. 8-9 (below
guideline sentences cite factors of drug/alcohol
addiction referenced seventy-two times).

VIII. Government motions to depart
downward
Another downward departure historically in
the province of government motion is found at
§ 5K1.1, if a defendant has "provided substantial
assistance in the investigation or prosecution of
another person who has committed an offense." cf.
18 U.S.C. § 3553(b)(2)(A)(iii), § 3553(e). Upon
such a government motion, as authorized under
§ 3553(e), the sentencing judge may only depart
on factors related to "substantial assistance," and
not continue further departure on other factors
discussed in § 3553(a). See United States v.
Pepper, 412 F.3d 995, 999 (8th Cir. 2005);
United States v. Auld, 321 F.3d 861, 867 (9th Cir.
2003).
For a departure on a ground other than
cooperation, § 5K2.0 provides special rules and
general principles for downward departures in
child and sex offenses. A departure may be
warranted when a case presents a circumstance
that the Sentencing Commission identified as a
potential departure ground. It may also be
warranted in the "exceptional" case, based on a
circumstance the Commission did not identify,
one it considers in Part H as "not ordinarily
relevant," or one that is present in an
exceptionally great degree. See § 5K2.0(a)(2), (3),
(4). A particular circumstance that, in and of

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itself, does not make a case "exceptional," may do
so with a mixture of other circumstances, and
therefore justify a departure. This is true,
however, only if each of the circumstances is
actually identified in the Guidelines as a
permissible departure ground. U.S. S ENTENCING
G UIDELINES M ANUAL § 5K2.0(c) (2005).
The § 5K departure policy statements, like
those found in Part H of the guidelines, limit
certain circumstances as grounds for departure,
such as financial difficulties and post-offense
efforts in rehabilitation. See §§ 5K2.0(d), 5K2.12,
5K2.19. Other circumstances are identified as
potential grounds for departure, usually upward.
Six listed circumstances may support a downward
departure: victim's wrongful provocation;
commission of the offense to avoid greater harm;
coercion/duress; diminished capacity; voluntary
disclosure of the crime; and aberrant behavior. For
child and sex offenses, grounds supporting
departure are much more limited. See
§§ 5K2.0(b), 5K2.22.
In addition, certain federal districts
(traditionally the southwest border districts),
utilize a provision in § 5K3.1 that allows for
departures of up to four levels, pursuant to a
government-authorized early disposition program
("fast-track" programs). For a number of years,
these high-volume federal districts have offered
the "fast-track" sentencing procedures in
immigration cases to defendants who met certain
qualifications. Both pre- and post-Booker case law
has found that those defendants sentenced in nonfast track districts do not have any valid objection.
United States v. Marcial-Santiago, 447 F.3d 715,
(9th Cir. 2006); United States v. Melendez-Torres,
420 F.3d 45, 52 (1st Cir. 2005). Such programs
are currently available in sixteen federal districts
and provide up to a four level downward
departure from the guideline range. These
programs can offer favorable charge bargains or
sentencing dispositions in exchange for an early
guilty plea. See PROTECT Act of 2003, Pub. L.
No. 108-21, 117 Stat. 650 (codified as amended in
Title 42); see also U NITED S TATES S ENTENCING
G UIDELINES M ANUAL § 5K3.1 (2005).

S EPTEM BER 2006

IX. Conclusion
The United States Supreme Court has spoken
on how sentencing is to be determined and that
the United States Sentencing Guidelines are no
longer mandatory. The factors of 18 U.S.C.
§ 3553(a) now provide guidance to the court, in
its discretion, for imposing sentences and
protecting the public. The one thing that is clear is
that the pre-guideline disparity in sentencing
exists once more. With over 1,000 federal
criminal sentencing hearings occurring every
week, uniformity is once again needed. One
positive view is that Booker is a two-way street
that has provided a rebirth in sentencing
advocacy. That is, however, still subject to much
debate and varying views by the circuit courts,
and even between district courts within the same
circuits. The Sixth Circuit in United States v.
McBride may have summed up the post-Booker
litigation most accurately as "[a]chieving
agreement between the circuit courts and within
each circuit on post-Booker issues has,
unfortunately, been like trying to herd bullfrogs
into a wheelbarrow." 434 F.3d 470, 474 (6th Cir.
2006).˜
ABOUT THE AUTHOR
‘Robert Don Gifford is an Assistant
United States Attorney with the District of
Nevada. Prior to joining the U.S. Attorney's
Office in 2001, Mr. Gifford served as an Assistant
District Attorney in Tulsa, OK and served on
active duty with the Army JAG Corps as defense
counsel in Bosnia and Fort Sill, OK, a prosecutor
at Fort Knox, and as a Special Assistant U.S.
Attorney in the Western District of Kentucky. He
is also currently Senior Defense Counsel in the
U.S. Army Reserves, 22d Legal Support
Organization.a

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Off The Beaten Path: A Case Study of
Unusual Post-Booker Litigation In
United States v. Harper
Traci L. Kenner
Assistant United States Attorney
Appellate Chief
Eastern District of Texas
I. Introduction
n the aftermath of United States v. Booker,
543 U.S. 220 (2005), confusion arose
regarding the evidentiary standard for
factual findings necessary for application of the
federal sentencing guidelines. Despite defense
arguments for "beyond a reasonable doubt," the
circuit courts generally settled the issue in favor of
"preponderance of the evidence," the historical
standard and the one endorsed by the guideline
commentary. See, e.g., United States v. Cooper,
437 F.3d 324, 330 (3d Cir. 2006); United States v.
Dean, 414 F.3d 725, 730 (7th Cir. 2005);
United States v. McKay, 431 F.3d 1085, 1094-95
(8th Cir. 2005); U.S. S ENTENCING G UIDELINES
M ANUAL § 6A1.3 cmt. (2005). Nevertheless,
some practitioners may have encountered a
published district court order from the Eastern
District of Texas, United States v. Harper, 360
F.Supp. 2d 833 (E.D. Tex. 2005), advancing the
novel theory that the Supreme Court's decision in
Shepard v. United States, 544 U.S. 13 (2005),
mandates proof beyond a reasonable doubt for
facts affecting guideline determinations. Although
vacated on appeal, the district court's order has
been incorrectly cited in other contexts.

I

II. What happened in Harper?
Richard Andrew Harper, an inmate at the
federal correctional facility in Beaumont, Texas,
stabbed one of his fellow inmates six times with a
six-inch meat thermometer. An indictment soon
followed, charging Harper with assault on a
federal inmate with a dangerous weapon in
violation of 18 U.S.C. § 113(a)(3) and possession
of a prohibited object while an inmate, in
violation of 18 U.S.C. § 1791(a)(2). Harper
subsequently reached a plea agreement with the

36

United States and entered a guilty plea to the
assault charge.
At sentencing, a dispute arose regarding the
degree of the victim's injuries. Because the victim
required treatment at a local hospital for a
collapsed lung, the presentence report
recommended a four-level increase in Harper's
offense level for the specific offense characteristic
of causing an injury that fell between "bodily
injury" and "serious bodily injury." See U.S.
S ENTENCING G UIDELINES M ANUAL § 2A2.2(b)(3)
(D) (2004) (hereinafter U.S.S.G.). Harper
objected, claiming that Blakely v. Washington,
542 U.S. 296 (2004), and Apprendi v. New Jersey,
530 U.S. 466 (2000), precluded factual findings
by the trial court in support of specific offense
characteristics or adjustments not admitted by the
defendant or proved to a jury beyond a reasonable
doubt.
By the time Harper was sentenced, the
Supreme Court had decided Booker, but the
United States Court of Appeals for the Fifth
Circuit had not yet released an opinion regarding
its application. The district court struggled with
Harper's objection as to the degree of bodily
injury because Harper did not specifically agree to
it in the plea agreement or during the guilty plea
hearing. Based on its interpretation of Booker, the
court believed it was required to make the factual
finding regarding degree of injury beyond a
reasonable doubt. "And that's the problem, is as I
understand Booker and Fanfan and Apprendi, we
have to either have a finding beyond a reasonable
doubt by a jury or an admission. . . ." Brief of the
United States at 8-9, United States v. Harper, No.
05-40500 (5th Cir. July 19, 2005) (quoting the
sentencing transcript). Although the court stated
that it could have found the victim's injuries to be
"serious" by a preponderance of the evidence, it
sustained Harper's objection because it could not
make the finding beyond a reasonable doubt. Id.
Instead, the court applied the three-level increase
authorized by U.S.S.G. § 2A2.2(b)(3)(A) when a
victim suffers "bodily injury" and sentenced
Harper to sixty months' imprisonment.

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Two days after Harper's sentencing, the Fifth
Circuit clarified that a sentencing judge is
"entitled to find by a preponderance of the
evidence all the facts relevant to the determination
of a guideline sentencing range. . . ." United States
v. Mares, 402 F.3d 511, 119 (5th Cir. 2005). The
government quickly moved for correction of
Harper's sentence pursuant to F ED . R. C RIM . P.
35(a), but the district court denied the motion in a
published order. 360 F.Supp. 2d 833. In the order,
the court reiterated that it could have made the
disputed finding by a preponderance of the
evidence. Nevertheless, it determined that the
Supreme Court's decision in Shepard, which was
released three days after Mares, precluded
application of "a sentence enhancement . . . based
upon the court's choice of which of two possible
inferences may be drawn, by a preponderance of
the evidence, from facts admitted by Defendant."
Harper, 360 F.Supp. 2d at 835-36. The court
reasoned that "[i]n spite of the Fifth Circuit's
recent decision in Mares, this court must
respectfully conclude that the even more recent
Supreme Court decision in Shepard, requires that
sentence enhancements under the guidelines
require more than inferences drawn from a
preponderance of the evidence." Id. at 836. The
United States appealed.

of the plea agreement or transcript of colloquy
between judge and defendant in which the factual
basis for the plea was confirmed by the defendant,
or to some comparable judicial record. . . ." Id. at
26. With this holding, the Court followed its prior
decision in Taylor v. United States, 495 U.S. 575
(1990), a case that presented essentially the same
question in the context of a prior jury conviction.
Id. at 17.

III. Harper on appeal

In its Harper order, the district court observed
that "[i]t seems clear that the Supreme Court has
ruled that sentencing enhancements must be based
upon jury findings, prior convictions, the court
documents and statutory definitions pertinent to
such convictions, and admissions by a defendant."
Harper, 360 F.Supp. 2d at 835-36. In reaching
this conclusion, the court blurred the line between
factual findings that affect a guideline sentence
within a statutory range and those that trigger an
enhancement, which raises the statutory range,
determining that there was no substantive
difference between the two. Id. In doing so, the
district court appeared to give weight to the
current, unfortunate practice of referring to the
U.S.S.G.'s Chapter 2 specific offense
characteristics and Chapter 3 adjustments as
"enhancements"—a term previously reserved for
statutory sentencing enhancements.

The crux of the United States' appellate
argument regarding the Harper order was that the
district court simply misconstrued the Supreme
Court's Shepard decision. Shepard involved a
question of statutory interpretation that
implicated, at most, the basic question addressed
in Apprendi: whether a fact that is used to raise a
particular statutory maximum must be proved
beyond a reasonable doubt. Shepard, 544 U.S. at
24. In Shepard, the Court considered the Armed
Career Criminal Act, 18 U.S.C. § 924(e), which
provides for a fifteen-year minimum sentence for
convicted felons who possess a firearm and who
have three previous convictions for "violent"
felonies. Specifically, the Court addressed the
narrow issue of the type of evidence that a
sentencing court may consider when determining
whether a previous conviction was for a "violent"
felony, if the defendant entered a guilty plea to the
earlier crime. Shepard, 544 U.S. at 16. The Court
held that, when a district court inquires into the
nature of a prior conviction for the purposes of the
Armed Career Criminal Act, the proof is limited
to the "terms of the charging document, the terms
S EPTEM BER 2006

The district court in Harper appeared to rely
on the third section of Shepard, which was joined
by only four members of the Court. Id. at 24-26
(Section III). That portion of Shepard discussed
the decision in light of Jones v. United States, 526
U.S. 227 (1999), Apprendi, and AlmendarezTorres v. United States, 523 U.S. 224 (1998)
(facts related to recidivism are sentencing factors
that need not be presented to a jury). The plurality
expressed concern that, if the rule of AlmendarezTorres did not apply, constitutional questions
under Apprendi would be presented if the Court
construed § 924(e) as permitting proof of the
violent nature of defendant's past felonies by less
than beyond reasonable doubt. Shepard, 544 U.S.
at 24-25. The Court avoided the constitutional
question, however, by limiting the nature of proof
available to a district court when determining
whether the prior felonies were violent. Id.

On appeal, the United States asserted that the
district court misconstrued the Court's discussion
in Section III. As noted above, the issue addressed
in Shepard implicated the fundamental question
addressed in Apprendi: whether a fact that is used
to raise a particular statutory maximum must be

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proved beyond a reasonable doubt. Shepard, 544
U.S. 24-26. Shepard did not address the question
of whether, post-Booker, a fact relevant to
determining a guideline sentencing range that
does not raise a statutory or other mandatory
maximum must be proved beyond a reasonable
doubt. That question, the government argued, is
controlled by Booker and the various post-Booker
circuit court decisions defining sentencing
procedure under the advisory guideline scheme.
The Fifth Circuit agreed, noting that "prior
precedent and the uniform position of the courts
of appeals" permit a district court to find facts
relevant to a defendant's guideline calculation by a
preponderance of the evidence. United States v.
Harper, 448 F.3d 732, 735 and n.2 (5th Cir.
2006)(collecting cases). After describing the
Supreme Court's decision in Shepard, the court
focused on the distinction between the mandatory
nature of the Armed Career Criminal Act and the
now-advisory sentencing guidelines.
Unlike in Shepard, the facts relevant to the
application of U.S.S.G. § 2A2.2(b)(3)(D) to
Harper do not subject him to a higher
potential sentence. In this case, Harper's guilty
plea by itself authorized a sentence of zero to
ten years imprisonment. 18 U.S.C.
§ 113(a)(3). Under an advisory Guidelines
system, a judicial finding with respect to the
degree of injury that Harper inflicted on [the
victim] no longer mandates a sentence within
any particular subset of the statutory range.
Application of the [Armed Career Criminal
Act], however, remains mandatory for all
defendants to whom it applies. See 18 U.S.C.
§ 924(e) (stating that a person convicted of
three prior violent felonies "shall be ...
imprisoned not less than 15 years"). It is this
mandatory increase in the upper limit of
Shepard's sentence that created a Sixth
Amendment right to have the facts supporting
the ACCA enhancement found by a jury
beyond a reasonable doubt. Because
application of U.S.S.G. § 2A2.2(b)(3)(D) has
no mandatory effect on Harper's sentence, the
district court erred in declining to find the
relevant facts by a preponderance of the
evidence.
Id. at 735-36 (footnote deleted).
The Fifth Circuit vacated Harper's sentence
and remanded the case for resentencing. On June
30, 2006, Harper was sentenced to sixty-three
38

months imprisonment, which was within the
correctly calculated guideline range.

IV. How Harper has been construed
Although not widely cited, the district court's
Harper order found its way into post-Booker
litigation, primarily in briefing by defense
counsel, before it was vacated by the Fifth Circuit.
Only one brief relies on the case as support for an
argument concerning the actual holding in
Harper—that guideline determinations must be
made beyond a reasonable doubt. Reply Brief of
Appellant Oswin Abraham at 17, United States v.
Abraham, No. 05-4704 (4th Cir. Dec. 7, 2005),
available at 2005 WL 3689116. Additionally,
Harper has been referred to, in conjunction with
other district court holdings, as being in favor of
giving the guidelines "considerable weight" in the
post-Booker sentencing analysis. Appellant's
Opening Brief at 14, United States v. Heredia, No.
05-50163 (9th Cir. July 6, 2005), available at
2005 WL 3134468.
Because of its reliance on Shepard, Harper
has also been used to support legal propositions
unrelated to its actual holding. Two appellate
briefs rely on Harper for the argument that the
Supreme Court implicitly overruled AlmendarezTorres in Shepard. See Brief of
Defendant/Appellant at 17, United States v.
Nelson, No. 04-6182 (10th Cir. June 9, 2005),
available at 2005 WL 2174533; Brief of
Defendant/Appellant at 17 n.4, United States v.
Kelly, No. 04-6187 (10th Cir. May 31, 2005),
available at 2005 WL 2105637 (subsequently
remanded on other grounds in an unpublished
opinion).
Similarly, the case has been cited as standing
for limiting the types of evidence that a district
court may consider for "all criminal history
determinations under the guidelines" to the
documents approved in Shepard. David L.
McColgin & Brett G. Sweitzer, Grid & Bear It:
Post-Booker Sentencing Litigation
Strategies—Part II, T HE C HAMPION , Dec. 2005, at
44, 46 n.26, available at http://www.fd.org/; see
also Appellant's Opening Brief (Amended) at 51;
United States V. Walker, No. 04-10616 (9th Cir.
Oct. 7, 2005), available at 2005 WL 3516838
(subsequently affirmed in an unpublished
opinion).
The arguments that stray from Harper's
holding appear to focus on the district court's

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conclusion that "[i]t seems clear that the Supreme
Court has ruled that sentencing enhancements
must be based upon jury findings, prior
convictions, the court documents and statutory
definitions pertinent to such convictions, and
admissions by a defendant." Harper, 360 F.Supp.
2d at 835-36. To date, no other court has agreed
with Harper's basic holding that all facts
necessary for application of the advisory
sentencing guidelines must be admitted by the
defendant or proved beyond a reasonable doubt. A
district court in Pennsylvania, however, recently
quoted Harper for the finding that "prior
convictions must be admitted or proved beyond
reasonable doubt," one of the theories for which
Harper has been incorrectly relied upon. See
Armstrong v. United States, 382 F.Supp. 2d 703,
710 (E.D. Pa. 2005).
When confronted with a defense argument
that Harper supports the idea that the Supreme
Court implicitly overruled Almendarez-Torres in
Shepard or that it limited the types of evidence
that a district court may consider for criminal
history determinations under the guidelines, the
standard responses regarding precedential value of
district court orders—particularly vacated orders
from other districts—obviously apply.
Substantively, the most cogent response is also the
simplest: the district court's statement that "the
Supreme Court has ruled that sentencing
enhancements must be based upon jury findings,
prior convictions, the court documents and
statutory definitions pertinent to such convictions,
and admissions by a defendant" misconstrues
Shepard. The Harper order failed to recognize the
difference between the Supreme Court's holdings
dealing with sentencing enhancements that
increase a statutory range, such as Apprendi and
Shepard, and those dealing with the operation of
the sentencing guidelines within the statutory
range, such as Booker.

the purposes of applying the Armed Career
Criminal Act, a statutory sentencing enhancement.
Nor did the factual dispute involve Harper's
criminal history. Dicta aside, Harper does not
support legal arguments beyond those concerning
the proper evidentiary standard for factual
findings necessary to calculate the advisory
sentencing guideline range.

V. Conclusion
The Fifth Circuit unequivocally determined
that Harper did not correctly state the law
concerning sentencing procedure. Nevertheless,
the district court's order may still be cited by
creative defendants. Therefore, practitioners who
encounter Harper-based arguments must
understand what the district court held—and,
more importantly, what it did not hold—in order
to respond to the varied, misguided uses to which
it has been put.˜
ABOUT THE AUTHOR
‘Traci L. Kenner became an Assistant
United States Attorney for the Eastern District of
Texas in 1992 and has served as the District's
Appellate Chief since 2004. In 2005, an article she
co-authored with former First Assistant
United States Attorney Becky Gregory, A New
Era In Federal Sentencing, was published in Vol.
68 of the Texas Bar Journal.a

Despite its reliance on Shepard, Harper
involved an entirely different issue. As noted
above, the Harper court struggled with the
applicable standard of proof–preponderance of the
evidence or beyond a reasonable doubt—for
factual decisions necessary to determine specific
offense characteristics or adjustments under the
sentencing guidelines. Harper did not involve a
sentencing enhancement at all, or address
Shepard's narrow issue of what types of evidence
a sentencing court may consider when
determining the nature of a prior conviction for
S EPTEM BER 2006

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Notes

40

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