by Danny S. Ashby and Frederick R. Petti[1]

            Before the Supreme Court’s decision in United States v. Booker,[2] clients facing federal criminal charges who insisted on trying their cases faced the specter on conviction of a mandatory sentence within the applicable range of the Federal Sentencing Guidelines.  The criminal trial was an arena that clients and defense attorneys were loath to enter unless they could be assured of winning a favorable verdict.

            In light of Booker and its progeny,[3] though, federal courts have been increasingly willing to impose sentences below the Guidelines range based on the facts and circumstances of a particular case or even on fundamental policy disagreements with the Guidelines.  In addition, in 2010, Attorney General Eric Holder issued a memorandum adjusting departmental policies to better comport with the current state of sentencing required by the Supreme Court and recent practices of sentencing courts.[4]  In view of these developments, defense attorneys and their clients may find themselves more willing to go to trial for the simple reason that advocacy, not the Guidelines, may be the touchstone for determining the final sentence in the event a guilty verdict is returned.[5]

Booker and Its Progeny

            For twenty-seven years, federal courts applied the Guidelines as if the Guidelines had the force of law, permitting departures only in specified circumstances.  Then, in 2005, the Supreme Court handed down its Booker opinion, in which it held that the Sentencing Guidelines were not mandatory, but merely one of several factors listed in 18 U.S.C. § 3553(a) that sentencing judges must consider when dispensing sentences.[6]  Thus, “advisory” became the word of the day.  However, “advisory” has taken time and additional involvement from the Supreme Court to infiltrate federal criminal court practice.  Despite the fundamental shift in the Guidelines’ integrity, courts initially continued to apply the Guidelines as they had always done.[7] Yet, participants in the federal criminal system may soon see a more dramatic shift in the sentencing landscape in light of post-Booker Supreme Court opinions.

            On December 10, 2007, the Supreme Court issued two significant decisions signaling district courts’ freedom to vary from the Guidelines.[8]  In Gall v. United States, the Supreme Court held that the sentencing judge’s rejection of the Guideline range of 30 to 37 months imprisonment in favor of probation was reasonable.[9]  While many reviewing courts had required an “extraordinary justification” to warrant a substantial variance from the Guideline range, the Supreme Court held this heightened standard of review of sentences outside the Guidelines range inconsistent with the applicable abuse-of-discretion standard.[10]  The sentencing court was not required to show how its case was unusual or outside the “heartland” of what the Commission contemplated in composing the Guidelines.[11]  It simply needed to explain its grounds for varying from the Guidelines range in order to permit meaningful appellate review.[12]

            On the same day the Supreme Court decided Gall, the Court in Kimbrough v. United States upheld the district court’s imposition of a 180 month prison sentence, though the applicable Guideline range was 228 to 270 months.[13]  The Supreme Court explained that the district court’s sentence was entirely reasonable in light of § 3553(a)’s factors and the overarching provision instructing district courts to “impose a sentence sufficient, but not greater than necessary” to accomplish the goals of sentencing.[14]

            Yet, despite the Supreme Court’s expansive 2007 opinions, sentencing courts and appellate courts continued to defer to the Guidelines, so the Supreme Court once again entered the scene in 2009 to bluntly emphasize that “advisory” means “advisory.”  The Supreme Court in Spears v. United States considered a case where the district courtcategorically replaced a Sentencing Guidelines’ ratio with its own ratio for purposes of calculating the offense level and sentencing range.[15]  The Supreme Court rejected the Eighth Circuit’s attempt to distinguish between “individualized, case-specific” consideration of the Guidelines’ ratio, which is how the Eighth Circuit perceivedKimbrough’s position, and categorical rejection and replacement of that ratio.[16]  Clarifying its Kimbrough holding, the Supreme Court explicitly stated, “[D]istrict courts are entitled to reject and vary categorically from the . . . Guidelines based on a policy disagreement with those Guidelines.”[17]  Going further, five days after deciding Spears, the Supreme Court stressed in Nelson v. United States that “[t]he Guidelines are not onlynot mandatory on sentencing courts; they are also not to be presumed reasonable.”[18]  As the Supreme Court explained, the only instance where a Guidelines sentence is entitled to a presumption of reasonableness is upon appellate review in accordance with Rita v. United States.[19]  Thus, if it was not clear before, it is clear after Spears and Nelson that district courts have extensive freedom to craft sentences in a given case, whether based on policy or the individual facts.

Sentencing Statistics in a Post-Booker World

            Consequently, the current state of sentencing law appears to stand for the proposition that district courts should be engaging in robust sentencing inquiries guided by the language in § 3553(a) and not rote application of the Guidelines.  This is a principle that the sentencing courts appear to have been slowly, but steadily adopting.  Indeed, sinceBooker, the percentage of sentences within Guidelines range has fallen by approximately fifteen percent over the past five years while the percentage of below Guidelines variances has steadily increased.[20]  Some offense categories, such as tax, bribery, and money laundering, have had particularly low percentages of cases falling within Guidelines ranges and very high percentages of below range variances[21]. In addition, where the sentencing court has awarded a below Guideline range variance in such cases, the median percent decrease from the Guideline minimum has been more than fifty percent, with some offenses hugging a median one hundred percent decrease.[22]

New Government Policy on Charging and Sentencing:  Individualized Assessments

            This past summer, federal sentencing experienced yet another development with Attorney General Eric Holder’s memorandum setting new policy for departmental charging and sentencing.[23]  While emphasizing the virtue of consistency in sentencing on the one hand, Attorney General Holder stressed that prosecutors should conduct an “individualized assessment of the facts and circumstances of each particular case” on the other hand.[24]  The more robotic formulation—outlined in the post-Booker 2005 James Comey Memorandum—of always charging the “most serious readily provable offenses” and advocating for a sentence as if the Guidelines were still mandatory appears no longer to be required.[25]  Only time will tell what consequences will ultimately result from the new policy, but it almost certainly bodes well for defense attorneys’ desire for greater consideration and flexibility respecting the individual facts of a case at sentencing.


            All signs point to movement away from strict application of the Guidelines.  That is an encouraging development for criminal defense attorneys who might have desired to take their clients’ cases to trial in the past but feared an automatic Guideline range sentence in the event of a guilty verdict.  Where previously the Guidelines were rigidly applied, there now are a number of variables that may be determinative in a particular case—from the prosecutor’s position on sentencing and courts’ categorical policy disagreements with Guideline sentences to the individualized facts and circumstances of a case that were not given much or any weight under the old regime.  Today, armed with the facts and policy to support a non-Guidelines range sentence, the gamble of a trial may be worth it.

[1] Danny Ashby is a partner in K&L Gates’ Dallas office, and his practice focuses on federal white collar crime, securities litigation and corporate compliance.  Frederick Petti is a partner in the Phoenix firm of Petti and Briones, and his practice focuses on federal white collar crime, regulatory defense and tribal law.

[2] United States v. Booker, 543 U.S. 220 (2005).

[3] See Nelson v. United States, 129 S.Ct. 890 (2009); Spears v. United States, 129 S.Ct. 840 (2009); Gall v. United States, 552 U.S. 38 (2007); Kimbrough v. United States, 522 U.S. 85 (2007); Rita v. United States, 551 U.S. 338 (2007); United States v. Booker, 543 U.S. 220 (2005).

[4] Memorandum from Eric H. Holder, Jr., Attorney General to All Federal Prosecutors (May 19, 2010), available at

[5] Lawrence S. Lustberg, Michael A. Baldassare & Joshua C. Gillette, Federal Sentencing:  U.S. Supreme Court Continues to Expand Opportunities for Zealous Advocacy, 197 N.J.L.J. 684 (2009).

[6] Booker, 543 U.S. at 259.

[7] Judge Nancy Gertner, Confronting the Costs of Incarceration, 3 Harv. L. & Pol’y Rev. 261, 270 (2009).

[8] Gall v. United States, 552 U.S. 38 (2007); Kimbrough v. United States, 522 U.S. 85 (2007).

[9] Gall, 552 U.S. at 56.

[10] Id. at 49-51.

[11] Id. at 49-50.

[12] Id. at 50.

[13] Kimbrough v. United States, 522 U.S. 85, 110-11 (2007).

[14] Id. at 110.

[15] Spears v. United States, 129 S.Ct. 840 (2009).

[16] Id. at 843-44.

[17] Id. at 844.

[18] Nelson v. United States, 129 S.Ct. 890, 892 (2009) (emphasis in original).

[19] Id. at 892 (citing Rita v. United States, 551 U.S. 338 (2007)).

[20] United States Sentencing Commission, U.S. Sentencing Commission Preliminary Quarterly Data Report: 2010 2nd Quarter 12 (2010).

[21] Id. at 8-9.

[22] Id. at 24-25.

[23] Memorandum from Eric H. Holder, Jr., Attorney General to All Federal Prosecutors (May 19, 2010), available at

[24] Id.

[25] Memorandum from James B. Comey, Deputy Attorney General to All Federal Prosecutors (Jan. 28, 2005), available at