Understanding Booker and Fanfan:
Federal sentencing guidelines are advisory,
but mandatory minimum sentences still stand
WHAT HAPPENED?
On January 12 in a 5-4 decision, the U.S. Supreme Court ruled that the federal sentencing
guidelines are in part unconstitutional because they direct judges to increase
sentences based on facts not found by a jury.
The court fixed the problem by removing the part of the law that tells judges they must
use the guidelines to impose sentences.
The courts must now consider, but are not bound to impose, a sentence according to the
guidelines. The sentencing guidelines are now advisory – but mandatory minimum
sentences are NOT affected by this ruling.
WHAT DID NOT HAPPEN?
The Supreme Court decisions do not affect mandatory minimum sentencing laws,
the laws that Congress passes requiring fixed sentences for certain federal offenses,
mainly involving drugs and weapons. Judges must still impose those mandatory
minimum sentences, which are usually 5, 10, 15, 20 or more years in length, and are
usually specified as a mandatory minimum in the defendant or prisoner’s pre-sentence
investigation report (PSR).
The Court’s decision only affects federal sentencing guidelines, giving judges
increased discretion. Unfortunately, mandatory minimum sentencing laws remain
untouched and could become even more attractive to members of Congress who want to
rein in judges. To learn the difference between mandatory minimum sentences and
sentencing guidelines, go to http://www.famm.org/si_federal_sentencing.htm.
CAUTIOUS OPTIMISM
Federal sentencing guidelines are now advisory, allowing judges to tailor sentences to the
defendant’s role in the offense. No longer will judges be forced to calculate penalties
under the sentencing guidelines grid and deliver a sentence they believe over-punishes
the defendant. Instead of punishing by the numbers, the guidelines have become
“guidance” for judges to use in considering what sentence is appropriate for each
defendant.
Justice Breyer’s opinion cites FAMM’s amicus brief for the principle that punishment
should return to the concept, embodied in law by Congress, that a sentence must be
“sufficient, but not greater than necessary” to comply with the purposes of sentencing.
With advisory guidelines, judges will be better able to breathe life into that principle.
Of course, these advisory guidelines are not ideal. For example, they continue the use of
acquitted and uncharged conduct to increase sentence length, and retain relaxed
evidentiary rules at sentencing that do not ensure accurate outcomes. That said, for now,
the advisory guidelines are a workable sentencing system that Congress, the judiciary,
and the public can live with while FAMM and others work with Congress to improve our
federal sentencing system.
WHAT IS FAMM DOING?
FAMM is evaluating the opinion to determine whom the opinion might benefit and how
prisoners can seek relief, if any is warranted.
We cannot yet answer your questions about whether the opinion can be applied
retroactively, that is to people whose sentences were finalized on appeal before the
decision was handed down. We are evaluating the opinion and will post information on
our website.
DEFENDANTS & PRISONERS – IF YOU:
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Are awaiting trial, plea proceeding or sentencing: consult your lawyer.
Have been sentenced but not yet appealed, or believe you cannot appeal:
consult your lawyer.
Have appealed and the appeal is pending: consult your lawyer.
If your appeal has been decided but you are considering an appeal to the
Supreme Court: consult your lawyer.
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If you are preparing a petition under 28 U.S.C. sec. 2255 (your first postconviction petition) and your deadline is approaching, you may have a Booker
claim. We are not in a position now to advise you on how to state that claim,
however, you should not delay past the deadline for your petition. We are
evaluating the decision and will try to have more information available shortly.
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If you have already submitted your first post-conviction petition under 28 U.S.C.
sec. 2255 and it is still pending, you may wish to supplement your petition with
a Booker claim. We are not in a position at this time to advise you on how to state
that claim.
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If you have filed and lost your 28 U.S.C. sec. 2255 claim, you may have some
time to determine whether you can revisit any Booker issues in your case. We
encourage you to wait until we can complete our evaluation. We will provide
information on our website and in print form.
FINDING AN ATTORNEY
FAMM is not a law firm and cannot provide lawyer referrals. If you are considering
hiring a lawyer, the National Association of Criminal Defense Lawyers (NACDL) has a
member directory of lawyers on their website, www.NACDL.org. NACDL does not do
referrals and can’t help with individual cases. You should know that the lawyer’s
membership in NACDL is not an endorsement. You should exercise your judgment and
research his or her ability and experience in federal post-conviction matters. Do not call
the NACDL looking for a lawyer.
The American Bar Association (ABA) also has a “lawyer locator” service that can be
accessed on their website,
http://www.abanet.org/legalservices/findlegalhelp/lawrefdirectory.html#. Again, you
should know that the lawyer’s membership in ABA is not an endorsement. You should
exercise your judgment and research his or her ability and experience in federal postconviction matters.
FOR MORE INFORMATION
You or a loved one should visit www.famm.org and read our information on the Booker
and Fanfan cases, and links to other excellent sources of legal information that we
provide there.
If you do not have Internet access, we will send you a packet of information as soon as it
is available. Please give us your name, address, telephone number and email address.
CONTACT FAMM
FAMM
1612 K St. NW
Suite 700
Washington, D.C. 20006
Tel: (202) 822-6700
Fax: (202) 822-6704
Email: famm@famm.org
Website: www.famm.org