Here is a photo of one of the bookshelves of my Atlanta officer where I handle lots of federal criminal cases. IMG_0658 If you look closely you will see row after row of Federal Sentencing Guidelines Manuals, stretching from the current version back to the slim original 1987 Guidelines. I just got done ordering the newest version. Each year, like clockwork, the United States Sentencing Commission issues a new and amended version of the Guidelines. Each year, this annual version comes into effect on November 1. Just like the New Year celebrations make people take stock and consider their lives, the yearly issue of the Sentencing Guidelines caused me to reflect on this three-decade experiment in using “Guidelines” to impose a federal criminal sentence. I will write several posts about the Guidelines, their changes, and how all of this impacts lawyers and clients involved in a federal criminal case.
Let’s start by discussing the increased complexity of the Sentencing Guidelines. My original 1987 version was a slim 557-paged tome, while the most recent version is a two-volume set that exceeds 2100 pages total. One reason that the materials are more lengthy is that every year, the Sentencing Commission also publishes all the earlier amendments as part of the current year’s issue.
Many lawyers do not appreciate the importance of having all of the earlier amendments. I like to keep all of my old books just so that I can trace back the lineage of the current Guideline and its predecessors. Sometimes, researching the Guidelines is a bit of an archeological expedition, with the attorney peeling back layers of history in order to figure out the reasoning behind the current version of a particular rule.
Other times, lawyers do not appreciate that they must have older versions of the Guidelines in order to understand the interplay between the the venerable ex post facto prohibition found in our wonderful Constitution and the “one book rule” (found at USSG §1B.11(b)). The constitutional ex post facto rule basically says that punishment cannot be increased after the fact, meaning that the Sentencing Commission cannot jack up the penalty for a certain crime after it was committed. However, many federal crimes, such as white collar offenses, healthcare fraud, or long-term drug conspiracies, often span many years. Recall, the Guidelines change on a yearly basis, so the savvy reader ponders, “Which version is used?” The Guidelines themselves say at section 1B1.11(a) that a Judge must use the version in effect on the date of the sentencing hearing, but if that version increases punishment, the ex post facto rule requires that same Judge to go back to the version in effect prior to the amendment to the Guidelines. However, what if the old version has other rules that are less favorable to the client in other parts of the Guidelines? In this situation, the “one book rule” comes into play, requiring that the Judge pick all of the rules from a single version of the Guidelines. I know, I know, this is complicated.
This example of the interplay between the Constitution and the Guidelines one-book rule is a short example of how complex these rules are, in theory and in practice. Federal Sentencing is a speciality, no two ways about it. Many otherwise fine criminal defense lawyers are lost when they do not know enough about these wickedly complicated rules while handling a federal criminal sentencing hearing. One place they can start is to call someone like me, an oddball who keeps all the books going back to 1987 so that we can do the best job possible representing a current client facing a federal criminal sentencing hearing.