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United States Sentencing Commission Reprint Series United States Sentencing Commission Reprint Series Volume I June 1992 UNITED STATES SENTENCING COMMISSION WILLIAM Wi WILKINS. JR. Chairman - JULIE EL CARNBS - Comniilssioner "MICHAEL S. GELACAK Commissioner A. DAVId MAZZONE Comniissioner ILENE PI. NAGEL Comniissioner CAROL PAVILACK GETtY Ex-micro PAUL L. MALONEY ' Ex-djjicio CONTENTS 1. "Relevant Conduct: The Comerstone of the Federal Sentencing Guidelines,' W. W. Wilkins, Jr. and J.R. Steer (reprinted from South Carolina Law Review IDS?) 3 2. "The Federal Sentencing Guidelines and the Key Compromises Upon Which They Rest,' $. Breyer (reprinted from Hofstro Law Review 1988 . 43 3. "Plea Negotiations. Acceptance of Responsibility. Role of the Offender. and Departures: Policy Decisions in the Promulgetion of Federal Sentencing Guidelines,' W.W. Wilkins, Jr. (reprinted from Wake Forest Law Review, 1988) 95 4. "Plea Agreements Under the Federal Sentencing Guidelines.' DA. Purdy, Jr. and J. Lawrence (reprinted from Criminal Law Bulletin, ' 1990) 119 H 5. 'Stmcturing Sentencing Discretion: The New Federal Sentencing Guidelines." l.H. Nagel (reprinted from The Joumal hf Crimina in and Criminologg, 1990) . 147 6. "Equality Versus Discretion in Sentencing,' l.H. Nagel, S. Breyer, and T. Maccarthy - ireprinted from American Criminal Law Review I989) . 211 F.' 7. "Rights in Conflict: Fairness Issues in the Federal Semencing Guidelines," H.G. Corrothers (reprinted from Criminal Lew Bulletin, 1990) . 239 i 8. 'the Development of the Federal Sentencing Guideline for Dmg - Traflicking Offenses.?' ll.M. Scutkin (reprinted from Criminal law Bulletin, 1990) 253 1 RELEVANTVCONDUCT: THE CORNERSTONE OF THE FEDERAL SENTENCING GUIDELINES William W. Wilkins, Jr. John Ri Steer Reprinted from: South Carolina Law Review 41(3):495- 531 (1990) by permission of the authors. SOUTH CAROLINA LAW REVIEW VOLUME 41 SPBJNG 1990 NUMBER 3 RELEVANT CONDUCT: THE CORNERSTONE OF THE FEDERAL SENTENCING GUIDELINES WILLIAM W. WILKINS, JR? JOHN R. STEER" I. IN-moDUc'r1oN'** After more than a decade of deliberation, an overwhelming, bipar- tisan majority of Congress enacted landmark legislation in 1984 that has revolutionized sentencing in the federal criminal justice system. The Sentencing Reform Act of 1984' (Act) created the United States Sentencing Commission to promulgate binding sentencing guidelines for the federal courts." A major goal of the Act was to reduce disparity in sentencing through a new system in whichtdefendants with similar characteristics who committed similar crimes received similar sentences.? To accomplish this goal, Congress instructed the Commis- sion to develop a series of sentencing ranges in which the high point of each range did not exceed the low point by more than twenty-Eve per- ' Judge,,united States Court of Appeals for the Fourth Circuit, and Chairman, United States Sentencing Commission. " Genera] Counsel. United States Sentencing Commission. The views expressed herein are those of the authors and do not necessarily re- present the otlicial position of the United States. Sentencing Commission. 1. Pub. L. No. 98-473, Title II, 98 Stat. 1987 (1984) (codified at 18 U.S.C. 55 3551- 3559 (1988); 28 U.S.C. 55 991<998 (Supp. V 1987)). 2. 28 U.S.C. 5 994(a) (Supp. V 1987); 3. Id. € 991(b)(1)(B). 495 I31 1990] RELEVANT CONDUCT 497 II. IMPORTANCE oF THE OFFENSE oF CoNvic'r10N .A. The Analytical Basis [or} the Sentencing Guidelines Reflecting one of the fundamerital policy decisions underlying the federal sentencing guideline systeni, application of the guidelines be- - 'gins with consideration of the offense(s) resulting in conviction." In its deliberations, the Commission debated the merits of a system in which the guideline range would be determined almost entirely from the ac- tual oifense behavior." The Commission thenconsidered and sought public comment ona guidelines system in which the oifense(s) charged in the indictment would play a much more important role in determin- ing the guideline sentence."' The "Commission ultimately settled on a system that blends the constraints (if the offense of conviction with the reality of the defendants actual ofiense conduct in order to gauge the seriousness of that conduct for sentencing purposes." - X Under this scheme,ldetermining the guideline sentencing range ap plicable to a particular defendant begins with the olfense of conviction. At the conclusion of the application process,. the statutory provisions governing that odense may constrain the sentence otherwise called for' by the guidelines." The sentence may not exceed the statutory maxi- mum for the offense of which the defendant was convicted"' and may 13. As used in this article and,the sentencing guidelines, the term "ofense of convic- tion" generally means a criminal statutory;provision that a defendant is convicted' of violating. The' olfense of conviction may oi may not coincide with the "real oB'ense," which encompasses the actual criminal conduct associated with the ofense of conviction. - To illustrate, adefendant's olfense of conviction may be a violation of 21 U.S.C. 5 84305) (using a communication facility to arrange a controlled substance odenae. commonly known as a "telephone count"), whereas the actual odense conduct may have involved (see the sale within 1,000 feet of a school (see 21lU.S.C.$ 845a) of 1 kilogram of cocaine 21 U.S.C. 5 age of 21 (see 21 U.S.C. € 845). 841(a)(1)(l))(1),(B)) to a person lunder the ' L" 14. Um-ian S1-lvms SEN-rENCmG CoMMissioN. PnaiJmrmw SerrrnNclNG Guinaunzs 10-18 (September 1986) [hereiniafter Puunurumv Dmrr] . - - 15. Um laD S1 hes SrmrsNcmc CoMMissioN. REVISED DB/in SENTENCING GUlDaLmas - 3 (January 1987) [hereinafter REVISED D1m?r] . 16. For a thorough discussion of this and several other compromises involved in the development of the guidelines, see Breyer, The Federal Sentencing Guidelines and the Key Compromises Upon' Which They Rest; 17 Horsriu L. Rev. 1 (1988). 17. 28 U.S.C. 5 994(a).(supp. V 1987),(Commission to promulgate guidelines and policy statements that are "consistentwith all pertinent provisions of ' [title 28] and title 18, United States Code"). Theguidelines must be consistent with the authorized sentences as weu. as with the applicable statutory maximum and minimum penalties. See Mistretta v. United States, 109 S. Ct. 647 (1989); United States v. Donley, 878 F.Zd 735, 741 (3d Cir.), petition for cert. Ned, No. 896108 (U.S. Nov. 13, 1989). 18. U.S.S.G. 5 5G1.1(a) (guideline sentence "may not exceed statutorily authorised maximum sentence); see United States v. Lawrence, 708 F. Supp. 461, 463 (D.P.R. 1989) (guidelines provide that if the sentencing "range is greater than the statutory maximum [51 1990] RELEVANT CONDUCT 499 for bank robbery, not just in terms of the statutory maximum," but also with regard to the Chapter Two guideline that will apply at sen- tencing and the offense conduct that will be taken into account by that guideline," subject to possible further adjustments in Chapter Three. The Commissions decision to place some emphasis on the offense of conviction gives the prosecutor a limited role in shaping the guide- line sentencing range. Through plea negotiations, the defense attorney also can have some influence over the guideline sentence. Conse - quently, some have contended that the sentencing guidelines have shifted sentencing discretion from the court to the attorneys." This contention, however, is based on an incorrect imderstanding of the op- eration of the guidelines. Although comprehensive analysis of the interaction of guidelines and plea negotiation practices is beyond the scope of this Article," such aconclusive characterization is at worst a gross misunderstanding of the manner in which the criminal justice system has operated (both pre - and post-guidelines) and at best an oversimplification and exag- geration. For example, prosecutors have always possessed ultimate au- thority, subject to constitutional limits, to determine the charge, if any, that will be brought." It naturally follows that such decisions dictate the statutory parameters within which courts have had to make sen - tencing decisions. ,Although the sentencing guidelines have not changed lines Manual are determined under a Relevant Conduct standard and potentially may apply depending on the real offense conduct, regardless of which guideline in Chapter Two is dictated by the conduct in the count of conviction. See inlrn notes 58-64 and accompanying text. 25. Compare 18 U.S.C. 5 2113(b) (1988) (maximum sentence of 10 years for nonvioe lent bank theft) with I8 U.S.C. S 2113(a), (d) (1988) (maximum sentence of 20 years, or 25 years if a dangerous weapon is used, for bank theft involving force and violence). 26. Compare U.S.S.G. S 281.1 (base offense level for larceny is 4) with U.S.S.G. 5 283.1 (base oiense level for robbery is 20). 27. See, eng., United States v. Roberts, 726 F. Supp. 1359 (D.D.C. 1989); United States v. Bethancurt, 692 F. Supp. 1427 (D.D.C. 1988). In Bethimcurt and Roberts the district judge expressed a number of contradictory frustrations, most of which relate to inherent features of plea bargaining that are largely unaffected by the sentencing guide- lines. While on the one hand he decried any shift of discretion to the prosecutor, on the other he criticized the central feature of the guidelines ile., Relevant Conduct), which significantly reduces the impact of prosecutorial charge selection and plea bargaining by ensuring that the court will be able to consider the defendants real offense behavior in imposing a guideline sentence. 28. Acting at the Chairman's appointment, Commissioner Ilene H. Nagel, Professor Stephen Saltzburg (ex otficio member) and Professor Stephen Schulhofer have initiated a comprehensive study of the impact of plea practices on the operation of sentencing guidelines. 29. See United States v. Nixon, 418 U.S. 683, 698 (1974); United States v. Batchel- der, 442 U.S. 114, 124 - 25 (1979).
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