The United States Federal Sentencing Guidelines are not mandatory on sentencing courts. The Guidelines are also not presumed to be reasonable. That was the very clear and very recent message sent by the United States Supreme Court in Nelson v. United States, 129 S.Ct. 890 (2009). In so ruling , the Supreme Court made it very clear that the federal sentencing guidelines are NOT what they used to be!
The federal sentencing guidelines used to strike fear into the hearts of criminal defendants accused of federal offenses. Not only were the guidelines mandatory, but they were VERY harsh. Under the old sentencing guidelines scheme, even first time offenders with compelling personal circumstances were forced to serve large non-paroleable prison terms. Federal prison populations swelled with non-violent drug offenders incarcerated for long terms of incarceration. Judges who wished to vary from the guidelines were routinely reversed by federal circuit courts. Federal prosecutors, emboldened by the harsh mandatory guidelines, had no incentive to be reasonable. Under the mandatory guidelines system, prosecutors – not Judges –were the most powerful players in determining the fate of criminal defendants. By deciding which crimes to charge, the prosecutors could effectively dictate the result faced upon conviction. Even the most skilled defense attorneys were often powerless to stop unfairly harsh sentences. Judges were equally powerless.
The sentencing landscape has now changed dramatically. The guidelines are now just that – GUIDELINES – to be considered but not necessarily followed by federal district judges. The sea change began in United States v. Booker, 543 U.S. 220 (2005). Booker held that the then-mandatory U.S. Sentencing guidelines were unconstitutional. The only way to salvage the guidelines as a system was to make them advisory only. Even after the Court’s decision in Booker, federal appellate courts continued to treat the guidelines with reverence. For example, at least one federal appeals court had ruled that a district court judge was not free to disregard the guidelines except for “extraordinary circumstances.” Other courts held that judges could not disagree with the disparate treatment of offenses involving crack versus powder cocaine under the guidelines.
This thinking came crashing to a halt in Nelson v. United States, 129 S.Ct. 890 (2009), and Spears v. United States, 128 S.Ct. 840 (2009). In the Nelson case, the Court overruled the Fourth Circuit Court of Appeals and held that a federal district judge cannot presume that a sentence within the federal sentencing guidelines is reasonable. That is, the advisory federal sentencing guidelines are only one factor in a multi-part system of determining a sentence for a person convicted of a federal offense. http://www4.law.cornell.edu/uscode/18/3553.html A sentencing judge is free to sentence a defendant to whatever is reasonable, regardless of the sentenced called for under the sentencing guidelines.
In the Spears decision, the Court made clear that federal judges are also free to disregard Sentencing Commission policies in arriving at a fair and reasonable sentence. In that case, the Court upheld the decision of a federal judge to impose a sentence below the sentencing guidelines because the judge disagreed with the U.S. Sentencing Commission’s policy to treat crack cocaine offenses more harshly than those involving powder.
Not only can a district judge choose to not follow the guidelines, but a court can also impose a sentence that disregards U.S. Sentencing Commission policies.
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