Title 18 United States Code Section 3553(a)

Prior to the Booker and FanFan decisions detailed above, the federal sentencing guidelines were mandatory, not advisory. After those earth-shattering decisions made them merely advisory, power transferred from prosecutors back to the judges in many respects. Outside of cases involving statutory mandatory minimum sentences, judges are now obligated to sentence a federal defendant to a reasonable but not greater than necessary sentence. The factors below set forth are equal to the advisory federal sentencing guidelines. Thus one may see how a skilled attorney may achieve a lessor sentence than one previously thought possible with a little hard work and ingenuity at sentencing.

The Title 18 United States Code Section 3553(a) factors that a sentencing judge must take into consideration are as follows:

1. The nature and circumstances of the offense and the history and characteristics of the defendant; 18 U.S.C. Section 3553(a)(1)

2. The need for the sentence imposed; 18 U.S.C. Section 3553(a)(2)

  1. to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense.
  2. to afford adequate deterrence to criminal conduct.
  3. to protect the public from further crimes of the defendant.
  4. to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner.

3. The kinds of sentences available; 18 U.S.C. Section 3553(a)(3).

4. The need to avoid unwarranted disparity among defendants with similar records and similar crimes; 18 U.S.C. Section 3553(a)(6).

5. The need to provide restitution to any victims of the offense. 18 U.S.C. Section 3553(a)(7).

  1. Despite the United States Supreme Court in Booker and Gall (and numerous other cases) reminding all federal district court judges that sentencing requires individualized attention to each defendant, there has been no dramatic or drastic change in sentencing. As United States Supreme Court Justice Stevens, in his concurring opinion in Rita, stated:"I am not blind to the fact that, as a practical matter, many federal judges continue to treat the Guidelines as virtually mandatory after our decision in Booker." Rita v. United States, 551 U.S. 338 at 336 (2007).

The Supreme Court did not stop with the above critique however and, in a later decision, Nelson v. United States, 2009 WL 160585 (Jan. 26, 2009), it reversed the Fourth Circuit for affirming a within-guidelines sentence because of the district court's statements at the sentencing hearing that "the guidelines are considered presumptively reasonable" and that "unless there's a good reason in the 3553(a) factors . . . the guideline sentence is the reasonable sentence." The United States Supreme Court scolded the lower court:

"The Guidelines are not only not mandatory on sentencing courts; they are also not to be presumed reasonable. We think it plain from the comments of the sentencing judge that he did apply a presumption of reasonableness to Nelson's Guideline range. Under our recent precedents, that constitutes error."

Thus, a judge should take special care in analyzing the presentence investigation report and the sentencing memorandum the defense has put forth prior to this sentencing so that a full and complete understanding of a defendant's life and crime may be put in the proper perspective and, given the totality of the circumstances, a reasonable but not greater than necessary sentence may be handed down. To do otherwise, would cause concern that an individualized sentencing is not occurring with respect to a defendant and instead a predisposed rendering of the sentencing guidelines as mandatory is playing out as it did for so many years before the United States Supreme Court decision of Booker. As Sixth Circuit Court of Appeal Judge Martin wrote in United States v. Wilson, 614 F.3d 219 (6 th Cir. 2010):

"When a judge takes the bench with an opinion in hand, the obvious conclusion is that his mind is already made up, that nothing the defendant or his attorney say will make any difference, and that sentencing is just another step in a largely automated, impersonal process."

Whether a district court judge comes into a sentencing hearing with an advisory federal guideline sentence already decided in his mind or an advisory federal guideline sentence already decided in his hand (in the form of an pre-written sentencing opinion) is of no distinction, as the sentencing hearing itself should be the most important day of a defendant's life in criminal court. The integrity and fairness of a federal sentencing hearing must be kept firmly in place by the district court thereby allowing for a full and fair evaluation of a defendant's life, including any mitigating circumstances, as well as his criminal conduct. As District Court Judge Gleeson persuasively opined about the occurrence of below guideline sentences (in response to the Department of Justice's Annual Letter to the Sentencing Commission (dated June 28, 2010) complaining about past judicial reductions to the advisory federal sentencing guidelines since Booker, in United States v. Ovid, No. 09-CR-216 (E.D.N.Y. October 1, 2010):

"There is nothing surprising or disturbing about the fact that once judgment is allowed to play a role in sentencing, it will be exercised differently by different people. It is the natural consequence of permitting judges to judge — to fashion a just sentence based on all relevant facts in each particular case. The faithful discharge of the obligation to consider all the Section 3553(a) factors will produce a range of reasonable outcomes because there are so many relevant considerations that are so difficult to weigh individually and in combination."