Booker’s Creeping Effect: Some Slowly Developing Good News on Sentencing and a New Milestone of Sorts

May 20, 2014
By Hanging Out with Carl Gunn


  • Less than half of sentences are now within the guidelines, with the vast majority of other sentences being below the guidelines.
  • The percentage of sentences within the guidelines in the Ninth Circuit is even lower.
  • Career offenders are being sentenced within the guideline range even less frequently, with only 30.2% being sentenced within the range in fiscal year 2013.


A couple of e-mails have come my way recently that carry some good news about slow, but hopefully steady, improvements in sentencing under the guidelines. More specifically, a greater number of sentences that aren’t “under” the guidelines at all. Because they’re not based on the guidelines. They’re completely outside the guideline range.

First, my reference in the title of this post to “a new milestone of sorts.” One of our attorneys here at the firm, Kevin Lahue, recently circulated an e-mail noting that the Sentencing Commission’s most recent quarterly report – for the first quarter of 2014 – reflects that for the first time judges imposed sentences within the guidelines in less than half the cases sentenced. This follows a gradual downward trend that’s reflected in a graph at page 10 of the report, which is linkedhere, and also available on the Sentencing Commission’s website, at Within guidelines sentences back in the first quarter of 2009, which is the first quarter shown in that graph, were close to 60% and they’re now down to less than 50%. And the vast majority of the sentences outside the range are below the range, not above it.

The report also breaks sentences down by circuit and district (as well as a number of other ways). In my first home district, the Central District of California, the percentage of within guidelines sentences is even lower, coming in at 24.2%. In my second home district, the Western District of Washington, the percentage is 24.4%. And the rest of the Ninth Circuit shouldn’t feel completely left out, because the percentage for the whole circuit is also lower, coming in at 35.7%. All in all, it seems thatBooker is slowly catching on, albeit perhaps not as quickly as we might like. (Not that I want to claim credit, but do you think the judges have been reading my blog? Maybe those posts on deconstruction some months back? Too much to hope for, I suppose, but one can dream.)

Then there was a second e-mail with some good news that came my way a couple of months ago, from the Federal Public Defender Sentencing Resource Counsel – on the career offender guideline. It referenced a Sentencing Commission “Quick Facts” release which had been posted on the Commission’s website, and which I’m also linking here for convenience. This release revealed two pieces of good news. First, it noted that “[t]he rate of within range sentences for career offenders has decreased over the last five years from 44.0% in fiscal year 2008 to 30.2% in fiscal year 2012.” Second, it suggested that even the government is seeing the injustice in these cases; it noted that the rate of “government sponsored” below range sentences for career offenders “has steadily increased from 32.8% in fiscal year 2008 to 41.1% in fiscal year 2012.” To sum up, we now have less than a third of career offenders being sentenced within the range and more than a third of the below range sentences being affirmatively recommended by the government. (With a good chunk of those being for reasons other than cooperation; see the release on that.)

This is more than just good news to make you feel a little better. Remember the posts on deconstruction of the guidelines back in November and December? (See the November 2013 and December 2013 links at the right.) Remember that one of the steps in deconstructing a guideline is pointing out implicit judicial criticism of the guideline in the form of judges more frequently departing or varying from it? (See “Deconstruction and Reconstruction of the Sentencing Guidelines Part 3: How Do We Do It?” in the December 2013 link.) And remember the suggestion that there was precisely such implicit judicial criticism in the form of departures and variances from the career offender guideline? (See “Deconstruction and Reconstruction of the Sentencing Guidelines Part 4: Some Examples of Deconstruction” in the December 2013 link.) You can use the statistics in this “Quick Facts” release to document that judges are in fact departing or varying from the career offender guideline even more than the average guideline.

So one little baby step at a time and that slow Booker creep; maybe things are improving just a little bit. Keep fighting to make them improve even more.