Since the United States Supreme Court decided United States v. Booker, 543 U.S. 220 (2005), judges in the federal trial courts have had discretion as to whether to impose the harsh sentences that are sometimes called for by the United States Sentencing Guidelines.
Although Booker still requires District Court judges to consider the guidelines in imposing sentences, the judges are no longer bound by the guidelines. Put another way, the guidelines are now considered advisory rather than mandatory.
In light of Booker, it was interesting to see the sentencing statistics for the judges in the Northern District of Texas for 2009. In 1007 cases sentenced in 2009 in this district, the judges followed the sentencing guidelines in 65% of the cases. In a large majority of the cases in which the judges gave a sentence below the guidelines it was because of a defendant’s cooperation. Yet in these “cooperation cases,” the defendants would have been eligible for these below guideline sentences even before Booker. Indeed, the judges only used their discretion under Booker to give a lesser sentence in 114 (11 percent) of the cases. Moreover, they used their discretion under Booker to give a higher sentence in 46 (5 percent) of the cases.
In sum, it does not appear that the judges in the Northern District of Texas are varying as much from the sentencing guidelines as judges in other districts or as much as was hoped by defense attorneys when Booker was first announced five years ago.
Of course, when a defendant is charged with a criminal offense in federal court, it is imperative that he or she retain a lawyer that practices regularly in federal court and is skilled in the application of the United States Sentencing Guidelines. It is also important that lawyers present a comprehensive sentencing memorandum prior to a client’s sentencing and make a full presentation at the time of sentencing along with character witnesses in an attempt to persuade judges to use the discretion that Booker has given them. It is disappointing that only 11 percent of the cases in 2009 in the Northern District of Texas resulted in a lower sentence as a result of a “Booker variance.”