3
Sentencing Table (excerpt)
(in months of imprisonment)
Criminal History Category
Offense
Level
I II III IV V VI
… … … … … …
19 30-37 33-41 37-46 46-57 57-71 63-78
20 33-41 37-46 41-51 51-63 63-78 70-87
21 37-46 41-51 46-57 57-71 70-87 77-96
… … … … … …
Determining the Guideline Range
The final offense level is determined by
taking the base offense level and then adding or
subtracting from it any specific offense
characteristics and adjustments that apply. The
point at which the final offense level and the
criminal history category intersect on the
Commission’s sentencing table determines the
defendant’s sentencing guideline range. In the
following excerpt from the sentencing table, an
offender with a Criminal History Category of I and
a final offense level of 20 would have a guideline
range of 33 to 41 months.
Sentences Outside of the Guideline Range
After the guideline range is determined, if an atypical aggravating or mitigating
circumstance exists, the court may “depart” from the guideline range. That is, the judge may
sentence the offender above or below the range. When departing, the judge must state in writing
the reason for the departure.
In January 2005, the U.S. Supreme Court decided United States v. Booker, 543 U.S. 220
(2005). The Booker decision addressed the question left unresolved by the Court’s decision in
Blakely v. Washington, 542 U.S. 296 (2004): whether the Sixth Amendment right to jury trial
applies to the federal sentencing guidelines. In its substantive Booker opinion, the Court held that
the Sixth Amendment applies to the sentencing guidelines. In its remedial Booker opinion, the
Court severed and excised two statutory provisions, 18 U.S.C. § 3553(b)(1), which made the
federal guidelines mandatory, and 18 U.S.C. § 3742(e), an appeals provision.
Under the approach set forth by the Court, “district courts, while not bound to apply the
Guidelines, must consult those Guidelines and take them into account when sentencing,” subject to
review by the courts of appeal for “unreasonableness.” The subsequent Supreme Court decision in
Rita v. United States, 551 U.S. 338 (2007), held that courts of appeal may apply a presumption of
reasonableness when reviewing a sentence imposed within the guideline sentencing range.
The Supreme Court continued to stress the importance of the federal sentencing guidelines
in its most recent sentencing-related cases. See Gall v. United States, 128 S. Ct. 586 (2007) (“As a
matter of administration and to secure nationwide consistency, the Guidelines should be the starting
point and initial benchmark” at sentencing); Kimbrough v. United States, 128 S. Ct. 558 (2007)
(After Booker, “[a] district judge must include the Guidelines range in the array of factors warranting
consideration”).