 and welcome. This program provides an introduction to post-trial criminal proceedings. The focus of the program will be on sentencing. Two judges will assist us. Judge Frank J. Polozola, District Judge for the Middle District of Louisiana, will present an overview of the Sentencing Reform Act of 1984 and discuss mandatory minimum sentences. Judge William W. Wilkins Jr. of the U.S. Court of Appeals for the Fourth Circuit, who also serves as Chairman of the United States Sentencing Commission, will explain the approach used by the Commission in developing its guidelines. This program will also serve as an introduction to the more in-depth sentencing workshop that will follow. The workshop will build on the information we'll be covering to give you a better grasp of the Sentencing Reform Act and the intricacies of working with the guidelines. The Sentencing Reform Act, which we'll also refer to as the Act from now on, sets forth contemporary sentencing policy. The Act is codified largely in Titles 18 and 28 of the United States Code. Title 18 of the Code, which is concerned with crimes and criminal procedure, contains those provisions of the Act relating to sentences. Title 28 of the Code, which is concerned with the Judiciary and Judicial Procedure, contains provisions relating to the Sentencing Commission. The major components of the Sentencing Reform Act state the basic purposes of sentencing, establish the United States Sentencing Commission as an independent body within the Judicial Branch, establish a limited right to appeal criminal sentences, and abolish parole. Now Judge Polozola will explain these components of the Act in more detail. First, the Sentencing Reform Act states the fundamental purposes of sentencing, purposes that guide both the setting of sentencing policy and the Court's imposition of sentences in individual cases. Under the Act, the Court's sentence should reflect the seriousness of the offense, promoting respect for the law, and providing just punishment for the offense. It should also afford adequate deterrence to criminal conduct, protect the public from further crimes of the defendant, and provide the defendant with needed educational or vocational training, medical care, or other correctional treatment. To help achieve these purposes, the Act required the United States Sentencing Commission to develop a set of guidelines to be used by the courts in determining criminal sentences. The Commission's Enabling and Legislation includes a number of congressional directives concerning the content of the guidelines, directives that express the basic policy considerations underlying the Act. For example, the guidelines are intended to reduce unwarranted sentence and disparities among the defendants with similar records who have been found guilty of similar crimes. They're also intended to provide sufficient flexibility to permit individualized sentences when warranted by mitigating or aggravating factors present in a given case, but not taken into account in the establishment of general sentence and practices. The Act requires the Court to apply the Commission's guidelines and sentence and offenders unless the Court finds that there exists in a given case an aggravating or mitigating circumstance of a kind or to a degree not adequately taken into consideration by the Commission in formulating the guidelines. In that event, the Court may depart from the guidelines. That is, impose the sentence that differs from the sentence prescribed by the guidelines. Of course, in the event of a conflict between statutory and guideline authorized sentences for an offense, statues prevail. In other words, the sentence imposed by the Court for a given offense cannot be greater than a maximum sentence authorized by the governing stature, nor can it be less than the statutory minimum in those cases in which a statutory minimum applies. The Act also requires the Court to give reasons for each sentence it imposes and establishes a limited right of review of sentences on appeal. For example, the defendant may appeal a sentence that is above the guideline range, or the government may appeal a sentence below the range, and either the defendant or the government may appeal a sentence when grounds that it was imposed in violation of law are imposed as a result of the erroneous interpretation of law on incorrect application of the guidelines. The Sentence and Reform Act also abolishes parole. The Act continues the United States Parole Commission in existence for a limited time to administer O-Law cases, that is, crimes occurring before November 1, 1987, the effective date of the Act. Judge Wilkins will now discuss the statutory mandates that control the United States Sentencing Commission and the methods used by the Commission in developing its guidelines. As you know, the Sentencing Reform Act gave the United States Sentencing Commission responsibility for developing a set of uniform federal sentencing guidelines. The guidelines developed by the Commission are to assure that sentences are fair, fair to both the offender and to society. The guidelines are to assure that such fairness is reflected, not only in the individual case, but also in the overall pattern of sentences in all federal criminal cases. And they are to assure that the terms of the sentence and the reasons for it are clear to the offender, those charged with implementing the sentence, and the general public. In developing the guidelines, the Commission sought to achieve these goals and to solve the practical problems inherent in developing a coherent sentencing system by taking an empirical approach based in past sentencing practices. The Commission analyzed pre-guidelines sentencing practices by utilizing data gathered through a detailed analysis of 10,000 actual cases and pre-sentence investigations. So you see, as a starting point, we relied upon the decisions of hundreds of judges in thousands of cases. We also studied the differing elements of various crimes, the parole Commission's guidelines and statistics, and data from other sources. The Commission's purpose in doing this was to develop guidelines that contain historically important distinctions among offenders and among offenses. After analyzing these data, the Commission developed a list of relevant distinctions that, while of considerable length, was short enough to allow the creation of a manageable set of guidelines. While they may not include a distinction that someone may believe important, the guidelines do include all of the major distinctions that, according to the statutes and data we analyzed, made a meaningful difference in pre-guidelines sentencing decisions in a statistically significant number of cases. In a given case that includes a relevant distinction not reflected in the guidelines, the sentencing court should consider departing and increase or decrease the sentence as appropriate. As the statute directs, the Commission continues to review the operation of the guidelines. It also submits proposed guideline amendments to Congress each year. These amendments result from comments and data brought to the Commission's attention by the Judicial Conference, individual judges, probation officers, prosecutors, defense counsel, and other authorities in the field of criminal justice. In addition, the Commission relies heavily on the ongoing detailed analysis by the staff of the Commission of thousands of actual cases involving defendants, sentence pursuant to the guidelines. And let me stress that the Commission welcomes your comments and recommendations based on your experience in applying these guidelines. The guidelines reflect a belief shared by the drafters of the Sentencing Reform Act and the Commission that the development of the guidelines is an ongoing evolutionary process. Before we examine how sentencing actually works under the Sentencing Reform Act, let's define some of the terms we'll be using. At the outset, let's be clear what we mean by the term guidelines. Many people use the term guidelines informally to describe the entire product of the Commission's work under the Sentencing Reform Act. But the word also has a more technical meaning. One of the main purposes of the act is to direct the Commission to issue guidelines governing the sentencing process. So the Commission's guidelines may be defined more precisely as a body of legal rules issued pursuant to statutory directives that are to be applied in imposing particular sentences. The Sentencing Reform Act also directs the Commission to issue policy statements. Numbered like guidelines, but specifically designated as policy statements, these provide guidance on the application of the guidelines and the appropriate use of statutory sanctions. The act directs the court to consider any pertinent policy statement issued by the Commission in imposing sentence. In Williams versus United States, the Supreme Court held that where a policy statement prohibits a district court from taking a specified action, the statement is an authoritative guide to the meaning of the applicable guideline. The court also held in Williams that the district court's failure to follow such a policy statement resulted in an incorrect application of the Sentencing guidelines that should be set aside on appeal unless the error was harmless. The Commission's guidelines and policy statements are contained in this book, the United States Sentencing Commission guidelines manual. The manual also includes commentary, which serves as an interpretive aid to the guidelines. Commission commentary often includes application notes, defining terms used in guidelines or illustrating conduct governed by them. In Stinson versus United States, the Supreme Court held that commentary interpreting or explaining a guideline is binding on the court unless it is inconsistent with the guideline, violates the Constitution, or violates a federal statute. As both the Stinson decision and Commission guideline 1b1.7 recognize, failure to follow such commentary could constitute an incorrect application of the guidelines, subjecting a sentence to possible reversal on appeal. Of course, the Commission's guidelines, policy statements and commentary have all been developed to achieve the statutory purposes of sentencing as defined in the Sentencing Reform Act. So the wording of the Act itself should also be consulted in resolving questions of guideline application. Now let's talk about how to use the guidelines to determine sentences under the Act. We'll be referring to both the provisions of the Act and the Commission's guidelines manual as we do this. And we'll use a hypothetical bank robbery case to illustrate how the guidelines work. Chapter 1 of the manual describes the Commission's basic approach to the guidelines. It also contains guidelines that provide the ground rules for determining which conduct is relevant and the basic rules for applying the guidelines themselves. In Chapter 1, the Commission notes that two of the options it considered for a sentencing system are, first, real offense sentencing, in which the Court sentences the defendant on the basis of all harmful behavior associated with an offense, regardless of the precise charge on which the defendant is convicted, and second, charge offense sentencing, in which the sentence is based only on conduct relating to the precise charge on which the defendant has been convicted. Let's use our hypothetical case involving a defendant who robs a federally insured bank while armed with a pistol to illustrate these two approaches to sentencing. During the robbery, defendant Hanson brandishes the pistol, but does not fire the pistol or assault anyone with it. As Hanson leaves the bank, he is arrested by an off-duty police officer. $12,000 of the bank's money is found on Hanson's person during a search incident to his arrest. We'll say Hanson is charged only with bank robbery and is later found guilty of that offense. In charge offense sentencing, Hanson's sentence could be based on nothing more than his conviction for violating Title 18, Section 2113A, the bank robbery statute. The brandishing of the pistol and the amount of money taken would not necessarily be considered in determining his sentence. But with real offense sentencing, Hanson would be sentenced on the basis of all harmful conduct that occurred during the commission of the offense. So the brandishing of the pistol and the amount of money involved would be factored into the sentence. The commission describes the guidelines as basically a charge offense system with a number of real offense elements. This means that the guidelines first assign base offense levels to the specific crimes the defendant has been convicted of. The guidelines then call for the court to adjust the offense levels by factoring in certain frequently occurring real offense behavior, such as that occurring in our hypothetical case. To do that, the court must look at behavior other than that falling within the elements of the charge of conviction. As we'll see, introduction of these real offense elements creates the need for more fact finding at sentencing. Let's explore the sentencing commission's guidelines in more detail. We'll begin by examining how categories of offenses are established under the guidelines. Chapter two of the manual contains guidelines assigning numerical levels to specific offenses, such as drug trafficking, conspiracy to interfere with civil rights, or robbery. As mentioned earlier, these numerical levels are called base offense levels. The commission has assigned a base offense level to each offense in chapter two, about 170 offenses in all. As we've seen, the base offense level for robbery is 20. The base offense level is then subject to adjustments for specific offense characteristics, certain commonly occurring circumstances associated with the particular offense. Our hypothetical robbery case involved the following specific offense characteristics. A financial institution was robbed. This increases the base offense level by two levels. The defendant brandished a gun. This increases the base offense level by five levels. And more than $10,000, but less than $50,000 was taken. This increases the base offense level by one level. When the base offense level for robbery is adjusted to reflect these specific offense characteristics, it results in an adjusted offense level of 28. Chapter three of the guidelines manual then lists five more generic adjustments, categories of information relevant to any offense that may warrant further adjustments to the adjusted base offense level determined in chapter two. For example, an upward adjustment applies if the crime was knowingly committed against an unusually vulnerable victim. A downward adjustment applies if the defendant clearly accepts responsibility for committing the offense. If other offenders are involved, the defendant's offense level may be increased if he or she played an aggravating role in the offense or decreased if he or she played a mitigating role in the offense. Other adjustments apply if the case involves multiple counts or a defendant who obstructs justice. Whether or not a particular adjustment applies in a given case depends in the first instance upon the court's findings. For example, whether the defendant has clearly accepted responsibility is a determination that the sentencing judge is in a unique position to evaluate, as the commentary to guideline three E one point one recognizes. In making that evaluation, the judge exercises considerable discretion. In our hypothetical case, let's say defendant Hanson threatens a witness while his case is pending trial. The adjustment for obstructing justice applies and Hanson's offense level is increased by two. So Hanson's offense level, in other words, the category of the offense for sentencing purposes is now 30. Now let's discuss how the guidelines establish categories of offenders. Basically, the defendant's history of criminal conduct or lack thereof determines the offender category that applies to the case. Chapter four of the manual covers the offender's criminal history and criminal livelihood. It tells how to assign points to the offender's prior criminal convictions in order to assign the offender to one of six criminal history categories. The more serious and recent the conduct, the more points it gets. For example, in determining the defendant's criminal history category, three points are added for each prior sentence of imprisonment exceeding one year and one month. Two additional points are added if the defendant committed the instant offense while serving part of another criminal sentence or within two years of release from imprisonment on a prior sentence. Let's say defendant Hansen served 18 months in prison following a conviction for assault and he committed the bank robbery within two years of his release from imprisonment on the assault charge. Hansen has assigned three criminal history points on the assault conviction and two points for committing the bank robbery within two years of his release from imprisonment on that conviction. The total of five criminal history points places Hansen in criminal history category three. Chapter five of the manual, determining the sentence, includes the sentencing table and provides detailed guidelines for the use of all sentencing options permitted by the Act. The sentencing table is in the form of a grid with the fence levels on the vertical axis and criminal history categories on the horizontal axis. The table is also divided into four zones, A, B, C, and D. We'll discuss the significance of these zones later in the program. With the exception of a sentence of life imprisonment, most combinations of offense level and criminal history category on the table result in a sentencing range expressed in months of imprisonment. By statute, the maximum term in any range that includes imprisonment cannot exceed the minimum term by more than 25% or six months, whichever is greater. However, the court may substitute life imprisonment for maximum ranges of 30 years or more, so the maximum sentence for ranges at the highest part of the table is life imprisonment. Now let's calculate the guideline sentencing range for our hypothetical case. We do this by finding the intersection of offense level 30 and criminal history category 3 on the sentencing table. As you can see, the sentencing table yields a sentencing range of 121 to 151 months for that offense level and criminal history category. This is the applicable guideline range. Of course, calculating the guideline range is not the final step in determining a sentence. Decisions must still be made about which sentencing options apply to the case and about departures. Let's review the court's sentencing options first. Sentencing options available to the court under the act include probation, fines, restitution, and imprisonment. The commission's guidelines, policy statements, and commentary relating to these sentencing options are found in chapter 5 of the guidelines manual. Let's look at probation first. The act permits the court to sentence an offender to probation unless the offense is a class A or B felony, that is, a felony carrying a maximum term of 25 years to life and the defendant is an individual. Congress has specifically prohibited probation for the offense or the defendant is sentenced to a term of imprisonment at the same time. Also, the act requires that a sentence of probation for a felony offense include a fine, restitution, or community service as a condition, absent extraordinary circumstances. The commission, believing that even short confinement terms have a deterrent effect, imposed additional limits on probation. Where the minimum term of imprisonment specified in the sentencing table's guideline range is eight months or more, a sentence of probation is not a within guideline option, absent a departure. The Sentencing Reform Act also includes provisions for a period of supervised release following a term of imprisonment. Supervised release is not the same as probation. It is imposed in addition to, not in lieu of, a period of imprisonment. It involves a period of post-release supervision by a probation officer that helps enforce payment of fines, restitution orders, or other court-ordered conditions. The guidelines call for the court to impose a term of supervised release to follow imprisonment when a sentence of more than one year is imposed or when required by statute. The court may order a term of supervised release to follow imprisonment in any other case. Many Title 21 drug trafficking offenses require imposition of a specified term of supervised release. What about fines? Under the act defendants may be sentenced to pay a fine in addition to any other sentence imposed by the court. The guidelines say that the court shall impose a fine in every case, except where the defendant establishes an inability to pay or that payment would unduly burden dependence. Thus, under both the act and the guidelines, fines are not alternatives to imprisonment. Ordinarily, when a fine is imposed, it must be within the range specified by the fine table found in Chapter 5, Part E, of the guidelines manual. There are two exceptions to this requirement. First, when a fine in excess of two hundred and fifty thousand dollars is permitted by statute, the statute governs. And second, when the guideline applicable to the offense in Chapter 2 of the manual provides different criteria for imposing a fine, those criteria take precedence over the fine table. The fine table is composed of ranges of offense levels and corresponding ranges of fines. Thus, for example, offense levels from twenty to twenty-two require a fine falling within the seven thousand five hundred to seventy-five thousand dollar range established by the table. Guideline 5e1.2i requires the court to impose an additional fine on the defendant, that is, a fine sufficient to pay the costs of the defendant's imprisonment, probation, or supervised release. This additional fine may not be imposed if the defendant establishes an inability to pay or that payment would unduly burden his or her dependence. Moreover, the total fine imposed by the court cannot exceed the maximum fine specified by statute. The Sentencing Reform Act also requires the court to consider the need to provide restitution to any victims of the offense in determining the sentence to be imposed. By statute, restitution, payment of money, or services to the victim of a crime for losses suffered as a result of the offense, must be ordered as part of a sentence for certain offenses, or it may be imposed as a condition of probation or supervised release in any other case with an identifiable victim. Finally, what about imprisonment? The Sentencing Reform Act requires that in deciding whether to impose a term of imprisonment, or in cases where imprisonment is required in determining the length of the term, the court consider the nature and circumstances of the offense, the history and characteristics of the defendant, and the purposes of sentencing as stated in the Act itself. The Act also requires the court to recognize when considering the option of imprisonment that it is inappropriate to impose a sentence of imprisonment to promote the rehabilitation of the defendant, or to provide the defendant with other correctional treatment or training. What about alternatives to incarceration? The Sentencing Reform Act allows the court to provide as a condition of probation that a defendant reside in a community treatment or corrections facility, be placed in custody for intervals of time, or be placed in home detention during non-working hours. The guidelines permit these conditions to be used in fashioning alternatives to incarceration in certain cases. These alternatives are best examined by referring to the zones on the commission's sentencing table. If the applicable guideline range falls within zone A on the sentencing table, that is, when the minimum term of imprisonment specified in the applicable range is zero months, probation is always available as an alternative to incarceration. If the applicable sentencing range falls into zone B on the table, requiring a minimum term of imprisonment of from one to six months, the minimum term may be satisfied by straight incarceration or by one of two alternatives to straight incarceration. First, by probation, provided that the court also imposes a condition or combination of conditions requiring community confinement, home detention, or intermittent confinement for the entire minimum term. Second, by at least one month of imprisonment, followed by a term of supervised release with a condition of community confinement or home detention for at least as much as the balance of the minimum term. In effect, a split sentence. If the applicable guideline range falls within zone C of the table, requiring a minimum term of imprisonment of eight months or more, probation is not available as a sentencing option. There is only one alternative to imprisonment for the minimum term in zone C and it is again the functional equivalent of a split sentence. That is, a sentence of imprisonment for at least one half of the minimum term, followed by a term of supervised release with a condition requiring community confinement or home detention for at least as much as the balance of the minimum term. If the applicable guideline range is in zone D of the table, the minimum term must be satisfied by a sentence of imprisonment. While we're discussing sentencing options, we should also note that under the Sentencing Reform Act, organizations are sentenced pursuant to the same goals and purposes governing the sentencing of individuals. The act requires that an organization found guilty of an offense be sentenced to a term of probation, a fine, or both a fine and a term of probation. In addition, depending on the offense involved, an organization may be required to forfeit property, provide notice of its conviction to victims, and provide restitution to its victims. Chapter 8 of the Guidelines Manual contains guidelines and policy statements for the sentencing of organizations. Let's consider departures next. Departures are covered in Title 18 Section 3553b of the Code and chapters 1 and 5 of the Guidelines Manual. When is a departure permitted? Section 3553b directs the court to impose a sentence within the guideline range unless the court finds that there exists an aggravating or mitigating circumstance of a kind or to a degree not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described in the guidelines. The Commission says it wants judges to treat each guideline as carving out a heartland, a set of typical cases embodying the conduct that each guideline describes. But when the court finds an atypical case, one to which a particular guideline linguistically applies, but which contains conduct differing significantly from the norm, it may consider whether a departure is warranted. The Commission refers to Section 3553b departures, those based on aggravating or mitigating circumstances not adequately taken into consideration in formulating the guidelines as unguided departures. In Chapter 5, Part K of its Manual, the Commission has identified 17 aggravating and mitigating circumstances that it has not been able to take into account fully in formulating the guidelines and may thus provide the basis for a departure. These includes such circumstances as death resulting from the offense, disruption of a government function, the defendants diminished capacity, and terrorism. But what happens if a case involves an aggravating or mitigating circumstance other than one of the 17 identified by the Commission in Chapter 5, Part K, that may not have been adequately considered by the Commission. As the Commission recognizes, the very nature of unguided departures makes it impossible to develop a comprehensive list of them in advance. The Guidelines Manual states that any case may involve factors, that is, aggravating or mitigating circumstances, that have not been given adequate consideration by the Commission and may warrant departure in the discretion of the sentencing court. So whenever such circumstances are present in a case, a departure from the Guidelines may be warranted. The Commission also refers to guided departures, those resulting from suggestions for departures found in the Guidelines themselves. Commission policy statements and commentaries suggest a number of such departures. For example, policy statement 4A1.3 states that the court may consider an upward departure if the applicable criminal history category does not adequately reflect the seriousness of the offender's past criminal conduct. It then provides guidance for selecting the extent of the departure. The Act also requires the Commission to reflect the general inappropriateness of considering the education, vocational skills, employment record, family ties and responsibilities, and community ties of the defendant in recommending a sentence of imprisonment or the length of a term of imprisonment. The Commission's policy statements in Chapter 5, Part H, deem these specific offender characteristics along with age, drug use, mental and physical condition, military, civil or charitable public service, other prior good works, and lack of guidance as a youth, not ordinarily relevant in determining whether a sentence should depart from the guidelines. The policy statements also say that several other characteristics, including the defendant's race, sex, religion, and socioeconomic status may never be considered in fashioning sentences under the guidelines. This is a complex area and you will need to become familiar with the law in your circuit concerning the nature and extent of your discretion to depart. The Sentencing Reform Act directs the Commission to ensure that the guidelines reflect the general appropriateness of imposing a lower sentence on defendants who provide substantial assistance in the investigation or prosecution of another person who is committed an offense. Commission policy statement 5K 1.1 governs departures from the guidelines on the basis of a defendant's substantial assistance to the authorities. Like Section 3553 E of Title 18, the statutory provision allowing the court to impose a sentence below the mandatory minimum, policy statement 5K 1.1 permits the court to depart only after the government has filed a motion for such a departure on the ground that the defendant has provided it with substantial assistance. You are likely to encounter frequent requests for departures based on substantial assistance, so in reviewing the manual you should take a particularly close look at policy statement 5K 1.1 and the commentary following it. You should also look closely at the case law interpreting these provisions. In instances where the defendant has cooperated but the government has decided not to file a motion for a downward departure, the court may still consider the defendant's cooperation as a factor in choosing a sentence within the guideline range. The Supreme Court has held in United States versus Burns that the defendant is entitled to some form of notice before the court imposes a sentence that departs from the guidelines. The court held that before a district court can depart upward on a ground not identified as a ground for upward departure either in the pre-sentence report or in a pre-hearing submission by the government, Rule 32 requires that the district court give the parties reasonable notice that it is contemplating such a ruling. In a footnote the court in Burns indicated that under Rule 32 the government is entitled to similar notice of downward departures contemplated by the sentencing court. The court left the question of timing of the notice to the lower courts. Most appellate courts have held that the requirements of Rule 32 are met when the factors warranting departure are identified as such in the pre-sentence report or when the sentencing court advises the defendant before or at the sentencing hearing that it is considering departure. In either case the court must give the defendant an opportunity to comment on the proposed departure before imposing sentence. Departures play a critical role in guideline sentencing. If judges conscientiously exercise the power to depart in appropriate cases and give adequate reasons for departures they will serve the interests of justice in two ways. First they will sentence appropriately in cases where a particular guideline linguistically applies but where conduct significantly differs from the norm. And second they will identify possible imperfections in the guidelines and thus provide the commission with the feedback it needs to fulfill its statutory mandate to refine and improve them.