Some More Ammo for Deconstructing the Career Offender Guideline.

September 13, 2016
By Hanging Out with Carl Gunn


  • A recent Sentencing Commission report on the career offender guideline supports an argument that the guideline is not a product of Sentencing Commission research and expertise, and so not deserving of any deference for that reason.
  • The report (a) confirms the guideline is solely the product of a Congressional directive; (b) has the greatest impact on drug offenders who are the least likely to recidivate; and (c) is being less and less frequently applied by both courts and the government.
  • The report then recommends that Congress amend the statutory directive to require at least one crime of violence conviction.



You may recall (or may not) a series of posts I put up, going on three years ago now, about attacking particular guidelines by “deconstructing” them, or breaking them down and exposing them for what they really are – or aren’t.  Among the examples of “deconstruction” I discussed was an attack on the career offender guideline, which included among other things a citation to the Sentencing Commission’s own studies questioning the guideline and statistics and opinions suggesting that sentencing courts shared those doubts.  (See “Deconstruction and Reconstruction of the Sentencing Guidelines Part 4: Some Examples of Deconstruction” in the December 2013 link at the right.)

Back in July, the Sentencing Commission issued a report which beefs up this attack.  It both summarizes findings raising doubt about the guideline, at least as applied to drug defendants, and recommends that Congress amend the statutory provision on which the guideline is based – 28 U.S.C. § 994(h).  The full report is attached here, but I thought I’d summarize some of the key points that back up the deconstruction arguments suggested in the 2013 deconstruction post.

First, the report makes clear that the basic career offender guideline is not the product of the Commission’s own study.  The report confirms that the guideline is the product of the statutory directive I pointed to in the deconstruction post – 28 U.S.C. § 994(h).  (See pages 12-14 of the report.)  The report then goes even further; it expresses the Commission’s view that the statutory directive required it to create the career offender guideline and major modifications would require Congressional action.  As expressed by the Commission at page 13 of the report:

Congress created the Commission “to establish sentencing policies and practices for the federal criminal justice system” that implement the purposes of sentencing enumerated at 18 U.S.C. § 3553(a)(2).  Pursuant to this directive, Congress delegated to the Commission “significant discretion in formulating guidelines.”  The Commission’s authority and discretion in this area is nevertheless limited in some ways.  Congress retains, for example, the authority to influence federal sentencing policy by enacting directives to the Commission, including the career offender directive at section 994(h).

(Footnotes omitted.)

Second, the Commission report raises further doubts about the wisdom of the guideline.  It notes that three-quarters of career offenders are drug defendants, and the guideline has the greatest impact on those defendants’ sentences, while the guideline’s purpose seems least applicable to those offenders.  (See pages 2-3 of the Executive Summary in the report, as well as the more detailed discussion in later pages.)  The guideline has the greatest impact on those defendants because (a) drug offenses tend to carry higher statutory maximums which in turn produce higher career offender offense levels under § 4B1.1 (see pages 3 and 31-32 of the report) and (b) drug defendants are less likely to already have the criminal history category of VI which the career offender guideline requires (see page 32 of the report).  Recidivism studies show that drug trafficking career offenders are the least likely to recidivate, however; indeed, their recidivism rate is comparable to that of non-career offenders.  (See pages 2-3 and 40 of the report.)  This is a particularly significant consideration in evaluating the career offender guideline, because its main purpose is to incapacitate those who are likely to re-offend.  As expressed by Senator Kennedy, who proposed the bill that led to the underlying statutory directive in 28 U.S.C. § 994(h), “[s]hrinking law enforcement resources must be targeted on incapacitating the tiny minority of criminals responsible for the overwhelming majority of violent crimes.”  128 Cong. Rec. 26518 (1982) (remarks of Sen. Kennedy).  See also United States v. Lawrence, 916 F.2d 553, 554 n.4 (9th Cir. 1990) (quoting portion of same comments and describing Senator Kennedy as sponsor of statutory provision).

Third, the report establishes that sentencing courts are “voting with their feet,” or at least voting with their judgments and commitments, even more strongly as time goes on.  The percentage of career offenders sentenced within the career offender guideline range has decreased from 43.3 percent in 2005 to just 27.5 percent in 2014.  (See pages 2 and 22 of the report.)  And it’s not only the courts; government-sponsored below guideline sentences, for reasons other than cooperation, have increased from 33.9 percent to 45.6 percent over the same period.  (See the same pages of the report.)  This rejection of the guideline is particularly dramatic for career offenders with only drug trafficking offenses; those defendants receive, on average, sentences which are almost identical to the guideline range which would apply without the career offender guideline.  (See pages 3 and 27 of the report.)

The Commission then joins in our attack on the guideline – by affirmatively recommending Congress amend the statutory directive in § 994(h).  While it doesn’t recommend complete elimination of the directive, it does recommend that it be limited to just those defendants who have at least one crime of violence conviction.  (See pages 3, 4, and 44 of the report.)  Defendants who qualify as career offenders based solely on drug offenses should be completely removed from the directive in the Commission’s view.

The Commission may need Congress, but we and the courts don’t.  Run with this report.  It establishes about as clearly as possible that the career offender guideline is not the product of “empirical data and national expertise,” Kimbrough v. United States, 552 U.S. 85, 109 (2007) (quoting United States v. Pruitt, 502 F.3d 1154, 1171 (10th Cir. 2007) (McConnell, J., concurring)), that guidelines were intended to be.  Kimbrough and its progeny make clear that courts aren’t bound by the statutory directive even if the Commission is.