# Amicus Curiae Brief — Rita v. United States

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0367%3A16

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2007
- **Citation:** 551 U.S. 338

## Text

4) | DEC 18 2005 |

No. 06-5754

In the
Supreme Court of the United States

VICTOR A. RITA, JR.,
PETITIONER,
Ve
UNITED STATES OF AMERICA,
RESPONDENT.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT
OF APPEALS FOR THE FOURTH CIRCUIT

BRIEF FOR THE NEW YORK COUNCIL OF
DEFENSE LAWYERS AS AMICUS CURIAE IN

SUPPORT OF PETITIONER
DOUGLAS A. BERMAN ALEXANDRA A.E. SHAPIRO
THE OHIO STATE Counsel of Record
UNIVERSITY LATHAM & WATKINS LLP
MORITZ COLLEGE OF LAW ~—s- 885 THIRD AVENUE
55 WEST 12TH AVENUE SUITE 1000
COLUMBUS, OH 43210 NEW YORK, NY 10022

(212) 906-1200

JONATHAN BACH
PAUL H. SCHWARTZ NATHAN H. SELTZER
ELLIOT F. KAYE LATHAM & WATKINS LLP
D. SEAN NATION 555 11TH STREET, N.W.
COOLEY GODWARD SUITE 1000
KRONISH LLP WASHINGTON, DC 20004
THE GRACE BUILDING
1114 AVENUE OF THE Counsel for Amicus Curiae
AMERICAS
46TH FLOOR

NEW YORK, NY 10036

a ——————————— —a—nXnX—X—n—n———s— ss

1.

i
QUESTIONS PRESENTED

Was the district court’s choice of within-Guidelines
sentence reasonable?

In making that determination, is it consistent with
United States v. Booker, 543 U.S. 220 (2005), to
accord a presumption of reasonableness to within-
Guidelines sentences?

. If so, can that presumption justify a sentence

imposed without an explicit analysis by the district
court of the 18 U.S.C. § 3553(a) factors and any other
factors that might justify a lesser sentence?

is

TABLE OF CONTENTS
Page
QUESTIONS PRESENTED...............s.sssssssssrsssssrerssorerereseneneness i
TATE Te Gr CRU ee i a vccccsccscenesccsesensscsctemassssesemenmmmmmanens ii
TABLES GE AUTRE Mii cecccccssesessscsssnssesnsscsenseqseessnnseonssntes iv
STATEMENT OF INTEREST. ..............ccsccscsssessssesersscssseserersese l
SUMMARY OF ARGUMENT. .............ccsssssssssssssssrssssssessesenrenees 2
IEE serccescttetiniccerserecretinnivatinenastanrpaiaiaiemmannienemnensl 4
I. THE EMPIRICAL DATA REVEAL NON-
PARSIMONIOUS PATTERNS IN THE
APPLICATION OF REASONABLENESS
INO sinecisnnscssnetstiantnsinnsiaginiaieniiisistanninigtmaiianmennaieii 5
II. INATTENTIVENESS TO THE TEXT OF
SECTION 3553(a) HAS SKEWED |
REASONABLENESS REVIEW...........ccccccccsssssssssessenees 9
A. Section 3553(a) Requires District Courts
To Consider Seven Factors And To
Impose A Sentence Sufficient But Not
Greater Than Necessary To Comply
With Congress’s Statement Of The
Purposes Of Sentencing...........sssssresessseseeeeeenesenees 9

B. A Presumption Of Reasonableness For
Within-Guidelines Sentences Is
Incompatible With The Text Of Section

ili |
Ill. THE SENTENCING COMMISSION’S OWN
ANALYSIS HIGHLIGHTS THE FLAWS OF

A PRESUMPTION OF REASONABLENESS
FOR WITHIN-GUIDELINES SENTENCEB........... 15

A. The Guidelines Do Not Take Into
Account All Of The Sentencing Factors
That Congress Requires District Courts
AREER ORE Db TTS oR MNOS 16

B. The Sentencing Commission Has Found
That The Guidelines Can Result In
Sentences That Do Not Effectively
Serve The Goals Of Section 3553(a) ......c.sccsseseeee 19

[V. A DISTRICT COURT MUST STATE ON THE
RECORD ITS REASONS FOR THE
oF: | eee 23

See a sciecicsinsehinccihisiconticanniosbiniiaieitadadedibaiaaaiaetanenedapitibas 24

iv

TABLE OF AUTHORITIES
Page(s)
CASES

Board of Pardons v. Allen,

Be es Se ee rctertieecttinnintininsnninninimmnneiinn 10
Campbell v. Acuff-Rose Music,

| eee 12, 13
Koon v. United States,

3 8 ft) 0) 4, 17, 25
Hughes Aircraft Co. v. Jacobson,

SD Te, Ge Ci iicccscrernecccntcstensiccsseseennecnnmnnsseniins i)
Jarecki v. G.D. Searle & Co.,

gE ee 12
Jones v. United States,

Be es tte cecnsiecenenieanvsnnetsnnenemanisinenvemennes 10
Lexecon v. Milberg Weiss Bershad Hynes & Lerach,

a a eG rcctescretnienneinmeinnmanne 10
Reiter v. Sonotone Corp.,

RE 12
United States v. Alonzo,

485 F.3d 551 (Gth Cir. 2O06).....crcorcccsrcscssceressescoseccesesees 11
United States v. Booker, :

8 passim

United States v. Boscarino,
— § eg . f. 4 | 22

United States v. Buchanan,

449 F.3d 731 (6th Cir. 2006)........ccccccccsccrssssscsseeserceseeees 13
United States v. Carey,

368 F. Supp. 2d 891 (E.D. Wis. 2005) .....cccccccscceeeeees 14
United States v. Charles,

ae Fa a a Ca Be cececscisescentitetisciieicciaiaeiaii 15
United States v. Cooper,

437 F Bd BB4 (Gd Clr, S006) .....cccccsccccsccccccecccesscsescccseseeses 8
United States v. Cunningham,

429 F’.3d 673 (7th Cir. 2O05)........eccccccccecessesescecescorseress 24
United States v. Davern,

970 F’. 2d 1490 (6th Cir. 1992) ..........ccsesscesees 17, 18, 20
United States v. Davis,

458 F'.3d 491 (Gth Cir. 2006)..........ccccccccocsscecescorsesecserere 15
United States v. Dorcely,

454 F.3d 366 (D.C. Cir, 2006)............ccccescescoccossorsorencees 11
United States v. Fernandez,

SED Fe FG Ga Be ceseccstnesesssccbcncnniprinniesinintlascicliniiad 8
United States v. Green,

436 F.3d 449 (4th Cir. 2006) ........ccccccccccesesesseeseeee 11,13

United States v. Griffin,
187 Fed. Appx. 13 (1st Cir. 2006)...........cccccsscceeesesesseees 6

United States v. Hernandez-Castillo,
44D F 3d 1187 (10th Cir. BODOG) ......cccccoscossccccecscecesceccsseee 7

United States v. Hunt,
459 F.3d 1180 (11th Cir, 2006)...............sccccccccsccsseseceees 13

vi

United States v. Jimenez-Beltre,

440 F.3d 514 (1st Cir. 2006) ............ccccercssseeseeeserees 14, 24
United States v. Kristl,

437 F.3d 1050 (10th Cir. 2006)............:-ccsessseseeeseseseees 11
United States v. Lincoln,

413 F.3d 716 (Sth Cir. 2005).......ccscccccecsersrsereesscsssssssees 11
United States v. Mykytiuk,

415 F.3d G06 (7th Cir. 2005)............sceccsccersesereereees 11,12
United States v. Pelletier,

2006 U.S. App. LEXIS 29214 (1st Cir. 2006)...........+ 8
United States v. Peyla,

2006 WL 3610013 (7th Cir. 2006) ...........cccceceeseeeeeeeeees 6
United States v. Ron Pair Enterprises, Inc.,

a iccsticnncncesutnceniastzancesnscssnesmnsemmnens ll
United States v. Talley,

431 F.3d 784 (11th Cir. 2005).............cscssccsrssssrssesseeees 8

United States v. Vonner,
452 F.3d 560 (6th Cir. 2006), vacated by 2006
U.S. App. LEXIS 27661 (6th Cir. 2006) ...........2::00+ 10

United States v. Williams,
436 F.3d TOS (Gthi Cir. S006) .cccccccccscccccccsccesccccsscccssccesees ll

United States v. Wurzinger,
467 F.3d 649 (7th Cir. 2006) .........cccccessseseeserereeeseseees 14

United States v. Yopp,
453 F.3d 770 (Gth Cir. 2006) ............ccsscsrssrcssssseseees ——

vii

United States v. Zavala,
443 F.3d 1165 (9th Cir. 2006), vacated by 462
Fe re I iensinristrcacersiaiiininiinaiiiaatineaaiiaiianaini 13
STATUTES
Bae itaietacetsnscstnthianhininiaibiiiatisiaaditiatatineaitiiins 1, 4, 9, 10, 24
re er a TS aT 18
OTHER AUTHORITY

Albert W. Alschuler, Disparity: The Normative and
Empirical Failure of the Federal Guidelines,
a i is SI I ccncecicncitcnenrntntnicsenintnensniiais 19, 22

Douglas A. Berman, Crack and sentencing and the
anti-parsimony pandemic, Sentencing Law
& Policy Weblog, available at
http://sentencing.typepad.com/
sentencing_law_and_policy/2006/06/crack_se
cic crsccestntnstarnsinnsticniciniainsiiiiatsiiiaaciinimstasassinnin 14

Richard S. Frase, Punishment Purposes, 58 Stan. L.
RINE AE LA See SRI cE Pe 14

Gerald W. Heaney, The Reality of Guidelines
Sentencing: No End to Disparity, 28 Am.
Se, ins, CRN I earrectteieensnctsiccieentenensccoenicsicniend 22

Justice Anthony M. Kennedy, Speech at the
American Bar Association Annual Meeting
kr nr re ee a OO eT IE 14

David L. McColgin & Brett G. Sweitzer, Grid &
Bear It, 29 Champion 50 (2005)...........cccsssesserssereseeees 14

Viii

United States v. Hartley,
CR No. 2:06-00017, Tr. 7:24-9:24, Aug. 10,
2006, available at www.fd.org/
HartleyTranscript8. 10.06 ..........ccsscsssssesssersseneesneneeeneeres 9

U.S. Sentencing Commission, Fifteen Years of
Guidelines Sentencing: An Assessment Of
How Well The Federal Criminal Justice
System Is Achieving The Goals Of
Sentencing Reform (2004) ..........0ssessesseeseeeseeres passim

U.S. Sentencing Commission, Downward
Departures from the Federal Sentencing
a 17

U.S. Sentencing Commission, Measuring
Recidivism: The Criminal History
Computation of the Federal Sentencing
Guidelines, a Component of the 15 Year

Beemer, CIB acces cece ccecessersessnssccccnscsznnsnisonsnsnsessnsssenssesss 18
U.S. Sentencing Commission, Preliminary Quarterly

Data Report, 4th Quarter Release,

Preliminary Fiscal Year 2006 Data Through

September BO, BO0G............c.scecccscsccsesscsvseseesceccecsconssneesees 8
U.S. Sentencing Guidelines, Ch. 1, Pt. A(3) (1988) ..............- 16

Webster’s New World Dictionary
(2d College Eod. 19B4)..........0.0-csscscsccecccscsvsccscscsoseseceseooes 10

STATEMENT OF INTEREST

The New York Council of Defense Lawyers (“NYCDL”)
is a not-for-profit professional association of approximately
200 lawyers (including many former federal prosecutors)
whose principal area of practice is the defense of criminal
cases in the federal courts of New York.! NYCDL’s mission
includes protecting and ensuring individual rights
guaranteed by the U.S. Constitution by rule of law through
education; supporting and advancing the criminal defense
function by enhancing the quality of defense representation;
taking positions on important defense issues; promoting
study and research in the criminal justice system; and
promoting the proper administration of criminal justice.

As amicus curiae, NYCDL offers the Court the
perspective of very experienced practitioners who regularly
handle some of the most complex and significant criminal
cases in the federal courts. NYCDL has an interest in this
case insofar as it will determine whether within-guidelines
sentences are presumptively reasonable and whether
federal criminal defendants receive the full benefit of the
individualized sentencing process required by Congress in
the Sentencing Reform Act and this Court in United States
v. Booker, 543 U.S. 220 (2005). We believe that it is
imperative to the protection of our clients’ rights and to the
establishment of a more just sentencing system that courts
of appeals consider all of the factors enumerated in 18
U.S.C. §3553(a) when reviewing’ sentences for
unreasonableness. Review of all of the statutory factors is
necessary to ensure that district courts give reasoned
consideration to each individual defendant’s circumstances
when “impos|ing] a sentence sufficient, but not greater than

1 Petitioner has filed a general consent for amicus briefs in this case,
and a letter of consent from Respondent has been submitted concurrently
with this filing. No counsel for a party authored this brief in whole or in
part, and no person other than the amici, their members, and their
counsel made a monetary contribution to the preparation or submission of
this brief. S. Ct. R. 37.6.

2

necessary” to comply with the statutory purposes of
sentencing.

To assist this Court, NYCDL has undertaken an
analysis of all post-Booker reasonableness review cases
captured by its search terms (described in the appendix
attached hereto (“App.”)), from January 1, 2006 through
November 16, 2006.2 The complete results of NYCDL’s
work should help this Court appreciate the ways in which
reasonableness review has been applied by the courts of
appeals. The data suggest that all the courts of appeals—
and especially those explicitly applying a presumption that
within-guidelines sentences are reasonable—have failed to
follow the parsimony command Congress set forth in Section
3553(a).8

SUMMARY OF ARGUMENT

In Booker, this Court developed a remedy for
constitutional problems with the operation of the Sentencing
Reform Act: It held that Section 3553(a) governs both
district courts’ sentencing decisions and appellate review of
those decisions. Congress has directed district courts to
consider all seven factors enumerated in Section 3553(a), not
just the guidelines. In Booker, this Court instructed the
circuits to review sentences for unreasonableness, guided by
all of the factors listed in the statute. 543 U.S. at 261
(appellate courts are to assess unreasonableness “with
regard to § 3553(a)”).

When Booker was decided, “no one kn{ew] ... how
advisory Guidelines and ‘unreasonableness’ review w(ould]
function in practice.” 5438 U.S. at 311 (Scalia, J., dissenting

2 The starting date was chosen to avoid the need to filter out the large
number of early post-Booker decisions that did not involve
unreasonableness review, but instead addressed issues such as whether a
pre-Booker sentence should be vacated and remanded for resentencing in
light of Booker. The end date is shortly after this Court granted
certiorari in this case. See App. at la n.l. NYCDL’s appendix is also
available at http://www.nycdl.org.

3 This brief focuses principally on the second question presented.

3

in part). In the almost two years since Booker, the courts of
appeals appear to have created their own distinctive de jure
and de facto standards of review, which find no basis in
Congress’s statutory text and are entirely inconsistent with
the parsimony provision of Section 3553(a). ———

NYCDL’s findings reveal that the courts of appeals are
universally affirming within-guidelines sentences. NYCDL
discovered that only one within-guidelines sentence has
been reversed as substantively unreasonable in at least
1,152 appeals. See App. at 3a. Sentences outside the
advisory-guidelines range, however, receive inconsistent
treatment in favor of higher sentences. The courts have
been deferential to above-guidelines sentences, but have
collectively disfavored below-guidelines sentences appealed
by the government. In those circuits formally applying a
presumption of reasonableness nearly every below-
guidelines sentence appealed by the government has been
reversed.

The results of reasonableness review are especially
telling in the Fourth Circuit, from which this case arises.4
For example, the court affirmed all 201 within-guidelines
sentences appealed. See App. at 3a-4a, 43a-7la. Nine of ten
above-guidelines sentences appealed by defendants were
affirmed as reasonable (including some sentences in which
the district court doubled and tripled the term of
imprisonment relative to the guidelines range). See App. at
4a, 39a-40a. Yet all of the nine below-guidelines sentences
appealed by the government were found unreasonable and
reversed (including some sentences only modestly below the
guidelines). See App. at 4a, 42a-43a.

These patterns, which strongly suggest that courts are
not applying review for unreasonableness in a manner
consistent with Section 3553(a), especially the parsimony
provision, likely result from two errors: (1) a general failure

4 The data from the Eighth Circuit are similar, as discussed in Brief of
New York Council of Defense Lawyers, as Amicus Curiae Supporting
Petitioner, Claiborne v. United States, No. 06-5618 (2006).

4

to attend to the words Congress used in Section 3553(a) and
(2) a mistaken assumption that the guidelines incorporate all
of the required Section 3553(a) considerations.

First, the plain language of Section 3553(a) requires a
district court to “impose a sentence sufficient, but not
greater than necessary to comply with the purposes of”
sentencing set forth in Section 3553(a)(2), while
“consider[ing]” seven specified factors, only one of which is
the guidelines range. Very few courts of appeals have even
mentioned this parsimony provision when reversing below-
guidelines sentences and when affirming above-guidelines
sentences. - Moreover, the plain language does not
contemplate—or leave room for—the extra-textual
presumption adopted by the courts of appeals to
consistently affirm within-guidelines sentences. Cf. Koon v.
United States, 518 U.S. 81, 108 (1996) (explaining that “[s]o
long as the overall sentence is ‘sufficient, but not greater
than necessary, to comply’ with the above-listed goals, the
statute is satisfied”) (quoting § 3553(a)).

Second, courts have wrongly assumed that the
guidelines account for all of the other Section 3553(a)
factors. But while the courts stress that the USS.
Sentencing Commission has studied and revised the
guidelines for eighteen years, they have ignored the
Commission’s own declaration following its comprehensive
study that “the reformed sentencing system has fallen short
of the] ideal in several respects” and has failed to fully
achieve “the goals of sentence reform.” U.S. Sentencing
Commission, Fifteen Years of Guidelines Sentencing: An
Assessment Of How Well The Federal Criminal Justice
System Is Achieving The Goals Of Sentencing Reform 144
(2004) (“USSC Assessment Report”). The Commission has
expressly and repeatedly found that, in many circumstances,
the guidelines are not parsimonious and do not serve the
goals set forth in Section 3553(a)(2).

ARGUMENT

The plain language of Section 3553(a) does not support a

presumption of reasonableness for within-guidelines

5

sentences and the Commission’s own analysis undermines

the basis for any presumption. Nevertheless, the data in our

empirical study reveal that the courts of appeals are
operating as if the guidelines fulfill the mandates of Section

3553(a). The consequences of these errors reinforce the

conclusion that the courts of appeals have raisunderstood

and misapplied this Court’s remedy in Booker, including its
directive that “Section 3553(a) ... sets forth numerous
factors that guide sentencing. Those factors in turn will
guide appellate courts ... in determining whether a sentence

is reasonable.” Jd. at 261.

I. THE EMPIRICAL DATA REVEAL NON-
PARSIMONIOUS PATTERNS IN THE
APPLICATION OF REASONABLENESS
REVIEW

The analysis conducted by NYCDL incorporated 1,152
within-guidelines sentences appealed by defendants. See
App. at 2a-3a. These sentences were affirmed in 1,136 cases
and vacated in only 16 cases. Jd. at 3. Moreover, 15 of the
sentences were vacated for procedural reasons—that is, the
court of appeals held that the district court did not
adequately explain its reasons for the sentence imposed and
therefore adequate appellate review was not possible. /d.
Only one sentence out of 1,152 within-guidelines sentences
challenged on appeal for reasonableness has been found to
be substantively unreasonable. /d. at 3a, 156a.

The Commission has in its reports, discussed infra,
repeatedly stated that sentences recommended by the
guidelines in many classes of cases are often greater than
necessary to achieve the sentencing purposes Congress
described in Section 3553(a)(2). The Commission’s findings
should prompt suspicion about an appellate pattern in which
less than .08% of appealed within-guidelines sentences are
reversed as substantively unreasonable.

Moreover, if the guidelines are truly viewed as a
benchmark of reasonableness by the courts of appeals, even
though the Commission itself does not espouse this view, see
generally USSC Assessment Report, one would expect

6

those courts to be equally concerned about variances above
the guidelines range and those that vary below the range.
But the pattern of appellate review tells a different story.

NYCDL’s_ study included 154 above-guidelines
sentences appealed by defendants arguing that the sentence
was unreasonable. Only seven of these sentences were
found to be unreasonable. See App. at 2a. But, the courts of
appeals have been far less deferential, and nearly intolerant,
when a district court exercises its discretion to impose a
below-guidelines sentence. The government has appealed
71 below-guidelines sentences and achieved 60 reversals.
Id.5

NYCDL’s study also reveals that the formal adoption of
a presumption of reasonableness for within-guidelines
sentences seems to affect the review of even those
sentences not within the guidelines. In the circuits that
have formally adopted this presumption, there were 51
below-guidelines sentences appealed by the government.
Forty-seven of these sentences were vacated as
unreasonable. Jd. at 3a. In those circuits not formally
invoking a presumption, the government has prevailed in 13
of its 20 appeals. /d.6

The reasonableness review outcomes are especially non-
parsimonious in some circuits. In the First, Fourth, and
Fifth Circuits, the government has been successful in all of

5 Although it is likely that the government is somewhat more selective

in its appeals, the stark difference between the findings for above- and
below-guidelines sentences suggests that selectivity cannot explain
everything.
6 Additionally, below-guidelines sentences have proved immune from
reversal when a defendant appeals (0 reversals despite 138 appeals, App.
at 2a), and some courts appear to have suggested that in these
circumstances, defendants have nothing legitimate to complain about.
See, e.g., United States v. Griffin, 187 Fed. Appx. 13, at *3 (1st Cir. 2006)
(rejecting defendant’s argument for a lower sentence because “a sentence
below the guideline range ... suggests mitigating factors are already at
work”); United States v. Peyla, 2006 WL 3610113, at *2 (7th Cir. 2006)
(finding “nothing unreasonable” about a sentence that was already one
month below the guidelines range).

7

its below-guidelines sentence appeals. Jd. at 5a-6a (First
Circuit, 4/4; Fourth Circuit, 9/9; Fifth Circuit, 5/5). In the
Second, Third, Seventh, Tenth, and Eleventh Circuits, no
defendant has successfully challenged an above-guidelines
sentence as unreasonable. Jd. at 5-6 (Second: 0/6; Third:
0/10; Seventh: 0/8; Tenth: 0/8; Eleventh: 0/23). The pattern
in the Eighth Circuit exemplifies how far the circuits have
strayed from the statute: there, only one of 22 above-
guidelines sentences appealed by defendants has been
reversed, in stark contrast to the 27 of 28 below-guidelines
sentences appealed by the government that have been
vacated as unreasonable. /d. at 4a, 132a-34a, 137a-4la.

The message that emerges from this pattern of appellate
review is one that discourages district courts from the
exercise of thoughtful discretion in service to the full range
of considerations Congress articulated in Section 3553(a).7
The influence of the circuits’ singular focus on the guidelines
is illustrated by cases like Mr. Rita’s where substantial
evidence is presented regarding the particular defendant’s
circumstances indicating that a sentence below the
guidelines range would be “sufficient, but not greater than
necessary,” to achieve congressionai sentencing purposes.
Mr. Rita was a decorated veteran who served in the
Vietnam and Gulf Wars; suffers from serious health
problems due to exposure to Agent Orange and an injury
suffered in military service; and made a strong showing that
he would likely be the target of prison violence due to his
lengthy civilian government service including as an
immigration officer and investigator for the Department of
Homeland Security. Petition for Writ of Certiorari, United

7 NYCDL’s findings may underestimate the non-parsimonious impact
of the courts of appeals reasonableness review. These numbers do not
capture those within-guidelines sentences that were not appealed, or the
significant number of appeals that continue to challenge only the
guidelines calculation. E.g., United States v. Hernandez-Castillo, 449
F.3d 1127, 1130 (10th Cir. 2006) (“Mr. Hernandez-Castillo does not
challenge the reasonableness of the sentence imposed by the district
court.”).

8

States v. Rita at 13-16, No. 06-5754 (2006). Surely these
facts provide a sound basis under Section 3553(a) for a
sentence below the nearly three-years’ imprisonment
suggested by the guidelines. But the district judge and
court of appeals, drawn to the anchors provided by the
guidelines, rotely opted for a guidelines sentence without
any clear justification other than that it was a guidelines
sentence.

A presumption in favor of guidelines sentencing, and the
actual results of that presumption, necessarily pressure
district courts—especially in close cases—toward imposing
within-guidelines sentences to avoid the risk of reversal. It
is therefore not surprising that the Commission’s latest data
show that, as the guideline-centric patterns and rulings have
emerged from the courts of appeals, district judges over the
last six months have less frequently sentenced outside of the
guidelines. U.S. Sentencing Commission, Preliminary
Quarterly Data Report, 4th Quarter Release, Preliminary
Fiscal Year 2006 Data Through September 30, 2006. The
message sent is clear when the courts of appeals affirm
nearly all within- and above-guidelines sentences and
reverse most below-guidelines sentences.® The signal is to
employ less discretion, except if imposing a higher
sentence—which is precisely the opposite of what the
parsimony provision of Section 3553(a) expressly requires.

8 The circuits not expressly adopting a presumption have still made
clear to district courts that sentences within the guidelines range will
ordinarily be affirmed. See, ¢.g., See United States v. Pelletier, 2006 U.S.
App. LEXIS 29214, at *26-27 (ist Cir. 2006) (“[A] defendant who
attempts to brand a within-the-range sentence as unreasonable must
carry a heavy burden.”); United States v. Fernandez, 443 F.3d 20, 27 (2d
Cir. 2006) (“We recognize that in the overwhelming majority of cases, a
Guidelines sentence will fall comfortably within the broad range of
sentences that would be reasonable in the particular circumstances.”);
United States v. Cooper, 437 F.3d 324, 331 (38d Cir. 2006) (“{A) within-
guidelines range sentence is more likely to be reasonable than one that
lies outside the advisory guidelines range ....”); United States v. Talley,
431 F.3d 784, 788 (11th Cir. 2005) (“{O}rdinarily we would expect a
sentence within the Guidelines range to be reasonable.”).

9

See, e.g., United States v. Hartley, CR No. 2:06-00017, Tr.

7:24-9:24, Aug. 10, 2006, available at www.fd.org/

HartleyTranscript8.10.06 (The Court: “(T]he Fourth Circuit

Court of Appeals ... has established a pretty rigid view that

the guidelines are not only presumptively reasonable, but

the requirement is that in order to sentence outside the
guidelines, you have to show that the guideline sentence is
in some fashion unreasonable it almost seems.”).

Il. INATTENTIVENESS TO THE TEXT OF
SECTION 3553(a) HAS SKEWED
REASONABLENESS REVIEW

This Court has instructed the courts of appeals to review
district courts’ compliance with Congress’s parsimony
statute for unreasonableness, “guid{ed]” by “Section

3553(a)[’s] ... numerous factors.” Booker, 543 U.S. at 261,

264.

A. Section 3553(a) Requires District Courts To
Consider Seven Factors And To Impose A
Sentence Sufficient But Not Greater Than
Necessary To Comply With Congress’s
Statement Of The Purposes Of Sentencing
“{IJn any case of statutory construction, [this Court’s]
analysis begins with ‘the language of the statute.’ And
where the statutory language provides a clear answer, it
ends there as well.” Hughes Aircraft Co. v. Jacobson, 525
U.S. 432, 438 (1999) (citations omitted). The language of
Section 3553(a) is plain: it instructs district courts to
“consider” a number of factors, but has only one mandate—
the “court shall impose a sentence sufficient, but not greater
than necessary, to comply with the purposes set forth in
paragraph (2).” 18 U.S.C. § 3553(a) (emphasis added).9

9 Previously, the parsimony provision had to be applied in conjunction
with the statute’s primary mandate—§ 3553(b)’s requirement that the
court shall impose a guidelines sentence unless there was a basis for a
guidelines departure. In Booker, however, this Court excised § 3553(b),
after concluding that “(t]he remainder of the Act ‘functions
independently,” 543 U.S. at 259 (citation omitted), leaving the parsimony

10

The words of Section 3553(a) should be given their
“ordinary meaning.” Jones v. United States, 529 U.S. 848,
855 (2000) (citation omitted). Here, the parsimony provision
uses “the mandatory [term] ‘shall,’ which normally creates
an obligation impervious to judicial discretion.” Lexecon v.
Milberg Weiss Bershad Hynes & Lerach, 523 U.S. 26, 35
(1998); Bd. of Pardons v. Allen, 482 U.S. 369, 374 (1987) (The
“use of the word shall” signifies “mandatory language.”);
United States v. Vonner, 452 F.3d 560, 565 (6th Cir. 2006)
(“Complying with Section 3553(a) is not optional.”), vacated
by 2006 U.S. App. LEXIS 27661 (6th Cir. 2006). This
Court’s opinion in Booker itself recognizes that “shall” binds
district judges. 548 U.S. at 249 (explaining that Section
3553(b), providing that courts “shall” follow the guidelines,
renders them “mandatory”).

In serving the statute’s parsimony mandate, a district
court “shall consider” seven specific sentencing factors in
determining the parsimonious sentence that the court shall
impose. 18 U.S.C. § 3553(a) (emphasis added).!0
“Consider,” of course, is commonly understood to mean, “to
think about,” Webster's New World Dictionary 303 (2d
College Ed. 1984), and it requires contemplation, but does

provision as the only direct statutory mandate that the district court
must follow. The purposes that Congress set forth in paragraph (2) are
“the need for the sentence imposed to reflect the seriousness of the
offense, to promote respect for the law, and to provide just punishment
for the offense; to afford adequate deterrence to criminal conduct; to
protect the public from further crimes of the defendant; and to provide
the defendant with needed educational or vocational training, medical
care, or other correctional treatment in the most effective manner.” 18
U.S.C. § 3553(a)(2)(A)-(D).

10 The factors (apart from the guidelines, see 18 U.S.C. § 3553(a)(4))
that a district court shall “consider” are: “the nature and circumstances of
the offense and the history and characteristics of the defendant,” the
sentencing policies set forth by Congress, “the kinds of sentences
available,” pertinent policy statements from the Commission, “the need to
avoid unwarranted sentence disparities among defendants with similar
records who have been found guilty of similar conduct,” and “the need to
provide restitution to any victims of the offense.” Jd. §§ 3553(a)(1)-(3),
(5)-(7).

ll

not go so far as to require action based on that
contemplation. The statute thus instructs district courts to
impose a “sentence sufficient, but not greater than
necessary to comply with the purposes of paragraph (2)” and
in the process of reaching that determination, the court
must think carefully about six additional factors, only one of
which is the advisory-guidelines range. “(Subsection (a) of
§ 3553 of the sentencing statute lists the Sentencing
Guidelines as one factor to be considered in imposing a
sentence.” Booker, 543 U.S. at 234. There is no hierarchy
among the factors a district court must “consider” and
nothing in the statutory language supports an interpretation
that Section 3553(a)(4)(A) is entitled to more weight than
other factors. As Justice Scalia observed, “[t]he statute
provides no order of priority among all those factors.” Jd. at
304-05 (dissenting in part). “Where, as here, the statute’s
language is plain, the sole function of the courts is to enforce
it according to its terms.” United States v. Ron Pair

Enters, Inc., 489 U.S. 235, 241 (1989) (citation omitted).
B. A Presumption Of Reasonableness For
Within-Guidelines Sentences Is Incompatible

With The Text Of Section 3553(a)

At least seven circuits have adopted an explicit
presumption of reasonableness and endorsed an approach to
sentencing that is less parsimonious and less individualized
than the statute unambiguously requires. This is true of at
least the Fourth, Fifth, Sixth, Seventh, Eighth, Tenth, and
D.C. Circuits,!! where a “defendant can rebut this
presumption only by demonstrating that his or her
[guidelines] sentence is unreasonable when measured

11 See United States v. Green, 436 F.3d 449 (4th Cir. 2006); United
Siates v. Alonzo, 435 F.3d 551 (5th Cir. 2006); United States v. Williams,
436 F.3d 706 (6th Cir, 2006); United States v. Mykytiuk, 415 F.3d 606 (7th
Cir. 2005); United States v. Lincoln, 413 F.3d 716 (8th Cir. 2005); United
States v. Kristl, 437 F.3d 1050 (10th Cir. 2006); United States v. Dorcely,
454 F.3d 366 (D.C. Cir. 2006).

12

against the factors set forth in § 3553(a).” Mykytiuk, 415
F.3d at 608 (emphasis added).

Because the guidelines had primacy and were legally
binding before Booker, it is perhaps not surprising that
circuit courts have elevated the guidelines above the other
factors enumerated in Section 3553(a) when conducting
reasonableness review. But an affinity for within-guidelines
sentences—whether through a formal presumption of
reasonableness or a pattern of affirmances—is inconsistent
with Section 3553(a) in two respects.

First, it endows the guidelines with a special, most-
favored status among Section 3553(a)’s factors that is
nowhere in the words of the statute enacted by Congress
(and left unchanged in two years since Booker) or this
Court’s opinion in Booker. Such a construction would
effectively read out of the statute and functionally nullify
Sections 3553(a)(1)-(3) and Sections 3553(5)-(7). Courts,
however, “are obliged to give effect, if possible, to every
word Congress used,” Reiter v. Sonotone Corp., 442 U.S.
330, 339 (1979), and where “{tJhe statute admits a reasonable
construction which gives effect to all of its provisions ...
[this Court] will not adopt a strained reading which renders
one part a mere redundancy,” Jarecki v. G.D. Searle & Co.,
367 U.S. 3038, 308 (1961).

This Court has invalidated other judicially created
presumptions based on the satisfaction of one factor where
Congress has enumerated a list of factors to be
“considered.” In Campbell v. Acuff-Rose Music, 510 U.S.
569, 594 (1994), the Court held that a presumption against
fair use based solely on the commercial nature of a parody
was incompatible with section 107 of the Copyright Act,
which lists four factors for courts to “consider{]” in
determining whether an artistic work is fair use. /d. at 577.
This Court explained: “The task is not to be simplified with
bright-line rules, for the statute, like the doctrine it
recognizes, calls for case-by-case analysis ..... Nor may the
four statutory factors be treated in isolation, one from
another. All are to be explored, and the results weighed

13

together, in light of the purposes of copyright.” Jd. at 577-78
(citations omitted).

The courts adopting a presumption of reasonableness for
within-guidelines sentences have effectively done what
Campbell prohibits—they have interpreted Section
3553(a)’s directive to “consider” the guidelines to mean
“follow unless,” by some undefined quantum of evidence, the
defendant can prove that a guidelines sentence is
inappropriate. The presumption “indicate[s] that the
Guideline range is to be used unless (by some evidentiary
standard) a party can prove to the contrary. That is much
more than a mere consult for advice, and the Guidelines are
to be no more than that.” United States v. Zavala, 443 F.3d
1165, 1169 (9th Cir.) (emphasis in original), vacated by 462
F.3d 1066 (9th Cir. 2006); accord United States v. Hunt, 459
F.3d 1180, 1185 (11th Cir. 2006). Because of heavy criminal
caseloads, it is perhaps understandable why circuits might
look for convenient “bright-line rules” like a presumption of
reasonableness to simplify their appellate task. But, as in
Campbell, this Court should make clear that, when the
statutory text demands a refined case-by-case analysis,
courts of appeals may not create extra-textual doctrines in
an effort to evade congressionally-imposed responsibilities.

Second, the “guidelines unless” approach promotes an
unthinking and reflexive adherence to the guidelines,
especially in close cases where, absent the presumption, a
below-guidelines sentence would be “sufficient, but not
greater than necessary” to meet the purposes of
sentencing.'2 The presumption, therefore, cannot be

12 Though the courts of appeals half-heartedly reject the suggestion
that the presumption says anything about sentences outside of the range,
Green, 436 F.3d at 457 (“A sentence falling outside of the properly
calculated Guidelines range is not ipso facto unreasonable.”), at the very
least, the presumption “cast(s) a discouraging shadow on trial judges who
otherwise would grant variances in exercising their independent
judgment.” United States v. Buchanan, 449 F 3d 731, 740 (6th Cir. 2006)
(Sutton, J., concurring).

14

reconciled with the parsimony provision established by
Congress as the primary directive in Section 3553(a).18

Confronted by text intolerant of that presumption, most
courts have simply chosen to ignore the parsimony
provision. See United States v. Jimenez-Beltre, 440 F.3d
514, 525 n.8 (1st Cir. 2006) (en banc) (Lipez, J., dissenting)
(noting that the parsimony provision has received “scant
attention”). Only a handful of the more than 1,500 decisions
examined in NYCDL’s study even mention the parsimony
provision. Cf. Douglas A. Berman, Crack sentencing and
the anti-parsimony pandemic, Sentencing Law & Policy
Weblog, available at http://sentencing.typepad.com/
sentencing_law_and_policy/2006/06/crack_sentencin.html
(noting that circuit courts reversing below-guidelines crack
sentences have consistently avoided any mention of the
parsimony provision).

Some courts applying the presumption of reasonableness
have all but acknowledged that the presumption is
inconsistent with parsimony. In United States v.
Wurzinger, 467 F.3d 649, 653 (7th Cir. 2006), for example,
the Seventh Circuit held that “(while we say nothing about
whether a lower sentence would have been equally
reasonable, age and illness do not, in the face of the
circumstances presented here, make Wurzinger’s sentence
unreasonable.” But, if the parsimony provision has any
meaning, then in the face of two equally sufficient sentences,
the court must impose the lower sentence. See, e.g., United
States v. Carey, 368 F. Supp. 2d 891, 895 n.4 (E.D. Wis. 2005)
(Adelman, J.) (“When two sufficient and reasonable
sentences are potentially applicable, the statute directs the

13 See, e.g., Richard S. Frase, Punishment Purposes, 58 Stan. L. Rev.
67, 83 (2005) (concluding that “the structure of section 3553(a), which
begins with the parsimony provision “sets overall limits on the crime-
control and other purposes which follow”); David L. McColgin & Brett G.
Sweitzer, Grid & Bear It, 29 Champion 50, 50 (2005) (stating that the
parsimony provision “is not just another ‘factor’ to be considered along
with others set forth in Section 3553(a) ... —it sets an independent limit
on the sentence a court may impose”).

15

court to choose the lesser one.”); United States v. Yopp, 453
F.3d 770, 774 (6th Cir. 2006) (finding that a higher sentence
imposed by the district court violated the parsimony
provision where the district court also articulated a lower
sentence that would satisfy the purposes of sentencing).
Some courts have even concluded that other statutory
factors to be “consider[ed]” can outweigh the mandate of the

parsimony provision. See, e.g., United States v. Davis, 458

F.3d 491, 495-96, 500 (6th Cir. 2006) (vacating below-

guidelines sentence and concluding that adherence to the

guidelines in order to avoid sentencing disparities
outweighed parsimony provision’s directive). More courts
have suggested that the guidelines sentences themselves
embody “sufficient” punishment—a conclusion supported by
the courts of appeals’ penchant for affirming all within-
guidelines sentences and finding below-guidelines sentences
unreasonable. See, e.g., United States v. Charles, 467 F.3d

828, 833 (8d Cir. 2006) (rejecting defendant’s challenge to a

high-end guidelines range sentence based on the parsimony

provision). That a sentence is “sufficient,” however, says
nothing about whether it is “greater than necessary.”

Ill. THE SENTENCING COMMISSION’S OWN
ANALYSIS HIGHLIGHTS THE FLAWS OF A
PRESUMPTION OF REASONABLENESS FOR
WITHIN-GUIDELINES SENTENCES

Several courts have presumed that within-guidelines
sentences are reasonable because they believe that the

guidelines take into account all of the other Section 3553(a)

factors and that they further all of the goals of sentencing.

Both beliefs are misguided. The guidelines were not

promulgated to comply with the parsimony provision, and

the Commission itself has found that the guidelines
sentencing system “has fallen short ... in several respects.”

USSC Assessment Report at 144.

16

A. The Guidelines Do Not Take Into Account All
Of The Sentencing Factors That Congress
Requires District Courts To Consider

Many courts have justified the presumption of
reasonableness on the theory that the guidelines already
take into account all of the other Section 3553(a) factors.
That is wrong as a textual matter. The statutory
instructions that Congress gave to the Commission do not
task it with deciphering Section 3553(a)’s command that
sentencing courts “impose a sentence sufficient, but not
greater than necessary, to comply with the purposes” of
punishment. Additionally, when developing and revising
the guidelines, the Commission has never fully explored—
nor even formally addressed—whether the guidelines serve
this mandate.

Further, the process by which the guidelines were
created, and the Commission’s own statements regarding
their deficiencies, undermine any claim that the guidelines
render the Section 3553(a) factors extraneous. Congress
directed the Commission to promulgate guidelines to
further the purposes of sentencing enumerated in Section
3553(a)(2)—just punishment, deterrence, protection of the
public, and effective education and treatment for offenders.
The Commission, however, was comprised of members with
wide-ranging beliefs on criminal justice. Consequently, the
guidelines represent “compromises and contradictions in
both the goals to be achieved by sentencing reform and in
the mechanisms created to achieve them.” USSC
Assessment Report at 3. Importantly, the original
Guidelines Manual] suggests that the Commission considered
only “just deserts” and “crime control,” rather than all of the
statutory purposes, when promulgating the guidelines. See
U.S. Sentencing Guidelines Ch. 1, Pt. A(3) (1988).

In addition, the Commission itself has recognized that it
could not “anticipate and describe in general guidelines
every possible circumstance relevant to sentencing in every
ease.” USSC Assessment Report at 32. The “difficulty of
foreseeing and capturing a single set of Guidelines that

17

encompasses the vast range of human conduct potentially
relevant to a sentencing decision” prompted the Commission
to permit departures from the guidelines, even under a
mandatory guidelines scheme. United States Sentencing
Commission, Downward Departures from the Federal
Sentencing Guidelines 3 (2003) (quoting U.S.S.G., Ch. 1, Pt.
A (4)(B) (Apr. 18, 1987)). The belief that the guidelines
account for all relevant sentencing factors is also
inconsistent with this Court’s decision in Koon. There, this
Court observed that “the Commission chose to prohibit
consideration of only a few factors, and not otherwise to
limit, as a categorical matter, the considerations that might
bear on the decision to depart.” 518 U.S. at 94.

At the same time, however, the Commission has added
additional, only marginally relevant, factors to be evaluated
in calculating a defendant’s offense level. This has led to
what the Commission has called “factor creep” in which
“{ajdjustments that appear necessary to achieve
proportional punishment may in actuality result in arbitrary
distinctions among offenders.” USSC Assessment Report at
137. According to the Commission, “(clomplex rules with
many adjustments may foster a perception of a precise
moral calculus but on closer inspection this precision proves
false.” Id. And, “as more and more adjustments are added
to the sentence rules, it is increasingly difficult to ensure
that the interactions among them, and their cumulative
effect, properly track offense seriousness.” Jd. “Factor
creep” has also been largely upward, while the Commission
has rejected consideration of significant mitigating factors
that bear upon personal culpability. See, e.g., United States
v. Davern, 970 F.2d 1490, 1503 (6th Cir. 1992) (en banc)
(Merritt, C.J., dissenting) (“The Commission has simply
ignored many of the provisions of the statute that weigh in
favor of leniency ... .”).

The Commission’s own series of reports on recidivism
also show that many factors affecting deterrence (a
statutory goal) are not captured by the guidelines. These
reports indicate that factors such as age, marital status,

18

employment history, and educational advancement affect
recidivism rates. See U.S. Sentencing Commission,
Measuring Recidivism: The Criminal History Computation
of the Federal Sentencing Guidelines, a Component of the 15
Year Report 29 (2004). Yet the guidelines’ policy
statements proclaim that these factors “are not ordinarily
relevant” to a district court’s sentencing decision. U.S.S.G.
§§ 5H1.1 (age), 5H1.2 (education), 5H1.5 (employment
record) 5H1.6 (family ties) (2006).

More specifically, Section 3553(a)(1) requires a district
court to “consider the nature and circumstances of the
offense and the history and characteristics of the
defendant.” See also 18 U.S.C. § 3661 (“No limitation shall
be placed on the information concerning the background,
character, and conduct of a person convicted of an offense
which a court of the United States may receive and consider
for the purpose of imposing an appropriate sentence.”). The
guidelines, of course, are generalizations and cannot possibly
take into account the history and characteristics of any
particular defendant. And, the guidelines specifically
prohibit consideration of many of a defendant’s personal
characteristics, including lack of guidance as a youth,
U.S.S.G. § 5H1.12, drug or alcohol dependence, id. § 5H1.4,
and post-sentencing rehabilitation, id. § 5K2.19. Other
discouraged factors include mental or emotional conditions,
id. § 5H1.3, physical condition, id. § 5H1.14, family
responsibilities, id. § 5H1.6, and public service or military
contributions, id. § 5H1.11. But, as Judge Merritt has
pointed out: “that the Commission has abdicated its duty to
consider the ‘purposes’ of sentencing and the personal
characteristics of defendants does not authorize a court to
abdicate its duty to impose a sentence ‘not greater than
necessary’ under § 3553(a).”. Davern, 970 F.2d at 1503
(dissent). Rather, as this Court held in Booker, sentencing
courts must “consider ‘the nature and circumstances of the
offense and the history and characteristics of the
defendant.” 543 U.S. at 249 (quoting § 3553(a)(1)).

19

B. The Sentencing Commission Has Found That
The Guidelines Can Result In Sentences That
Do Not Effectively Serve The Goals Of
Section 3553(a)

The courts of appeals have ignored the Commission’s
own findings that in some respects the guidelines are flawed
and have not “worked as intended.” USSC Assessment
Report at xvi.

The Commission Has Reported Disparity At The Pre-
Sentencing Stages

The Commission has reported that “a variety of
evidence developed through the guidelines era suggests that
the mechanisms and procedures designed to control
disparity arising at presentencing stages are not all working
as intended,” USSC Assessment Report at xii, 82, and that
“significant evidence suggests that presentencing stages
introduce disparity in sentencing,” id. at xvi. Charging
decisions and the non-uniform standards for the preparation
of pre-sentencing reports foster and perpetuate disparities
between similarly situated offenders. /d. at 82-86.
Statutory enhancements are unevenly charged by
prosecutors in different districts across the country. /d. at
90. Regional disparities, which “may have even increased
among drug trafficking offenses” under the guidelines, id. at
94, are also caused by prosecutors’ decisions with respect to
substantial assistance motions, id., and by “irregular and
inconsistent policies and practices among the various
districts,” id. at 104.14 In addition, many pre-sentencing
decisions ‘“disproportionately disadvantage minority
offenders.” Jd. at 91. Not only have the guidelines
mechanisms designed to address these disparities failed to
work as intended, they work badly “in one direction,” id. at
92 (emphasis added), by authorizing enhanced sentences

14 Commentators have found that regional disparity has “more than
tripled after implementation of the Guidelines.” Albert W. Alschuler,
Disparity: The Normative and Empirical Failure of the Federal
Guidelines, 58 Stan. L. Rev. 85, 101 (2005).

20

even for uncharged or dismissed conduct, but by providing
no comparable mechanism to reduce sentences for conduct
that was inflated by charging decisions, id.

A chief goal of the remedy this Court adopted in Booker
was to minimize the impact of prosecutorial charging and
bargaining choice at sentencing. 543 U.S. 257 (rejecting the
dissenters’ remedy in part because it would vest
prosecutors with discretionary power that properly resides
with judges). Moreover, as Justices of this Court and lower
court judges have recognized, “[m]ost of the sentencing
discretion should be with the judge, not the prosecutors”
and “a transfer of sentencing discretion from a judge to an
Assistant U.S. Attorney, often not much older than the
defendant, is misguided.” Justice Anthony M. Kennedy,
Speech at the American Bar Association Annual Meeting
(Aug. 9, 2003), available at http://www.supremecourtus.gov/
publicinfo/speeches/sp_08-09-03.html; see also Davern, 970
F.2d at 1508 (Merritt, C.J., dissenting) (stating that under
the mandatory guidelines, “(t]he prosecutors ... effectively
control both the charging and the sentencing system|] [aJnd
to an ever-increasing extent, the two are one and the
same”). Unfortunately, the Commission’s assessments have
revealed that, under rigid enforcement of the guidelines,
“discretionary decisions by law enforcement officers and
prosecutors at presentencing stages have greater influence
..., since later actors [that is, judges] have fewer
opportunities to ameliorate any effect of disparate
treatment prior to sentencing.” USSC Assessment Report
at 99. After Booker, however, the guidelines are only one of
seven factors for the judge to consider in fashioning a
sentence, and judges now have greater opportunity to
remedy disparate presentencing treatment through
reasoned decisions to move away from the guidelines’
recommendations in appropriate cases.

Problems With The Drug Guidelines

Drug offenses make up the largest portion of the federal
criminal docket, but “the guidelines’ Drug Quantity Tables[]
fail in some cases to reflect the relative harmfulness of

21

different drugs.” USSC Assessment Report at vii. The
guidelines’ quantity-based approach and relevant conduct
rules have “had the effect of increasing prison terms far
above what had been typical in past practice, and in many
cases above the level required by the literal terms of the
mandatory minimum statutes.” Jd. at 49. These tables, as a
result, greatly elevate the importance of quantity over other
offense characteristics. Jd. at 50. As the Commission has
found, quantity can be “a particularly poor proxy for the
culpability of low-level offenders, who may have contact
with significant amounts of drugs, but who do not share in
the profits or decision-making.” Jd. at 52. The
Commission’s findings point out that rigid adherence to all
of the drug trafficking guidelines can and will result in
sentences that are greater than necessary to comply with
the purposes of sentencing set forth by Congress. !5
Problems With The Career Offender Guideline

The Commission has also found that the career offender
guideline has a disproportionate impact on low-level and
minority drug offenders without serving any justifiable
purpose. The Commission’s evidence shows that
“recidivism rates of drug trafficking offenders sentenced
under the career offender guideline based on prior drug
convictions ... are much lower than [for] other offenders
who are assigned to criminal history category VI.” USSC
Assessment Report at 134. In fact, these offenders’
recidivism rates are more similar to those of offenders in
lower criminal history categories “in which they would be
placed under normal criminal history scoring rules” absent
the career offender guideline. Jd. at 134. The Commission
has concluded that “[t]he career offender guideline ... makes
the criminal history category a less perfect measure of

15 Although some of these problems result from the statutory
mandatory minimum, the guidelines themselves often dictate the actual
sentence, significantly increasing average sentence length by “{aJbout 25
percent, or eighteen months” above the mandatory minimums. /d. at 54
(Commission statistic for offenders sentenced in 2001).

22

recidivism than it would be without the inclusion of
offenders qualifying only because of prior drug offenses.”
Id. (emphasis in original).

Other Sources Of Unwarranted Guidelines Disparity

The guidelines have also increased _ sentencing
disparities based on race, USSC Assessment Report at 115,
and “have a greater adverse impact on Black offenders than
did the factors taken into account by judges in the
discretionary system in place immediately prior to
guidelines implementation.” Jd. at 137.16 The Commission
also reports that “unexplained differences in the sentencing
of women compared to men are greater than any
unexplained differences in the sentencing of different racial
and ethnic groups.” Jd. at 118. The Commission’s empirical
work indicates that a nine-month gender disparity in the
average sentence imposed before the guidelines has been
replaced by a 23-month gender disparity in the average
sentence imposed during the guidelines regime. Jd. at 127-
28 & fig. 4.9.

All of these findings have led the Commission to
conclude that “some of the gap may result from sentencing
rules that have a disproportionate impact on a particular
offender group but that serve no clear sentencing purpose.”
Id. at 131 (emphasis added). The courts of appeals’
assumption that “disparities are at their ebb when the
Guidelines are followed,” United States v. Boscarino, 437
F.3d 634, 638 (7th Cir. 2006), is thus contradicted by the
Commission’s own empirical evidence and statements.

aOR

In sum, the Sentencing Commission, after
comprehensive study and in-depth analysis of actual
sentencing data, has concluded that “[aJttention might
fruitfully be turned to asking whether [certain guideline]
policies are necessary to achieve any legitimate purpose of

16 See also Alschuler, Disparity, at 103; Gerald W. Heaney, The
Reality of Guidelines Sentencing: No End to Disparity, 28 Am. Crim. L.
Rev. 161 (1991).

23

sentencing,’ USSC Assessment Report at 135, and “the
reformed sentencing system has fallen short of th{e] ideal in
several respects,” id. at 143-44, by failing to fully achieve
“the goals of sentence reform,” id. at 144. The Commission’s
compelling evidence shows that many of the effects of the
guidelines are neither deliberate nor in furtherance of any
legitimate sentencing purpose, and that these flaws have led
to sentences that are greater than necessary to achieve the
goals of sentencing, thus contravening the parsimony
provision. As a result, sentences under the guidelines as
well as rates of imprisonment have increased dramatically
from pre-guidelines levels. Jd. at vi.!17 These facts
undermine the basis for the courts of appeals’ ill-conceived
presumption and slavish adherence to the suggested
sentencing ranges.

IV. A DISTRICT COURT MUST STATE ON THE
RECORD ITS REASONS FOR THE SENTENCE
IMPOSED

Although a detailed discussion of the third question
presented is beyond the scope of this brief, NYCDL does
believe that in order for the post-Booker sentencing system
to operate in a fair, just, and individualized manner, and to
allow for meaningful appellate reasonableness review,
district courts must state, on the record, the reasons for the
sentence imposed. Prior to the guidelines, “{j]udges were
not required to explain the reasons for their sentences, and
the sentences themselves were largely immune from
appeal.” USSC Assessment Report at xviii. The

Sentencing Reform Act and the guidelines were designed to

inject transparency into the sentencing system. As the

Commission has noted, “appellate courts cannot perform

their assigned functions without the cooperation of other

participants in the system. Appellate review depends on

17 “Between November 1987 and 1992, the average prison terms
served by federal felons more than doubled.” USSC Assessment Report
at vi; see also id. (“(FJederal offenders sentenced in 2002 will spend
almost twice as long in prison as did offenders sentenced in 1984.”).

24

clear fact findings and statements of reasons by the
sentencing courts to provide a sufficient record for review.”
Id. at 35; see also 18 U.S.C. §3553(c); United States v.
Cunningham, 429 F.3d 673, 679 (7th Cir. 2005) (Posner, J.)
(“[W]henever a district judge is required to make a
discretionary ruling that is subject to appellate review, we
have to satisfy ourselves, before we can conclude that the
judge did not abuse his discretion, that he exercised his
discretion, that is, that he considered the factors relevant to
that exercise. A rote statement that the judge considered
all relevant factors will not always suffice.”). The absence of
a requirement that district courts explain the reasons for
the sentence imposed (like the presumption) increases the
incentives for a “busy judge to impose the guidelines
sentence and be done with it, without wading into the vague
and prolix statutory factors.” Cunningham, 429 F.3d at 679.
This risk “cannot be ignored.” Jd.
CONCLUSION

A proper interpretation of Section 3553(a) and an
appreciation of the limitations of the guidelines is necessary
for courts to exercise reasoned judgment when “impos[ing]
sentences sufficient, but not greater than necessary to
comply with the purposes of paragraph (2).” “Although the
guidelines were legally complex ... the bottom-line
judgments were largely mechanical once the offense level
and the criminal history numbers were calculated. ... But
now the bottom-line judgments are not mechanical. They
must now be more nuanced judgments that reflect both the
guidelines analysis and the larger context of the sentencing
factors and purposes identified in section 3553.” Jimenez-
Beltre, 440 F.3d at 528 (Lipez, J., dissenting). The nuanced
approach mandated by Section 3553(a) “requires courts of
appeals to evaluate each sentence individually for
reasonableness.” Booker, 543 U.S. at 312 (Scalia, J.,
dissenting in part). Indeed, as this Court acknowledged in
its remedial opinion, because of the individualized review
required for each defendant, reasonableness review perhaps
may not provide the same degree of national uniformity for

25

groups of offenders that Congress originally sought to
secure. Id. at 263 (“We cannot and do not claim that use of a
‘reasonableness’ standard will provide the uniformity that
Congress originally sought to secure.”). If courts comply
with the text of Section 3553(a), however, sentencing
outcomes will be more reasoned and more consistent than
those produced by rigid, unthinking adherence to the
guidelines.

There is neither room in the text nor any basis for a
presumption that within-guidelines sentences are
reasonable applications of Section 3553(a) in light of the
Commission’s findings. The picture of appellate review that
has emerged since Booker, as reflected in the NYCDL data,
suggests that the courts of appeals are operating in a
strongly non-parsimonious fashion. This sends a powerfully
discouraging—if not flatly prohibitive—message about the
exercise of discretion to district courts. This message has
precisely the opposite effect that Booker contemplated.

Guidelines sentences should not be presumed
reasonable. Instead, “[{i]t has been uniform and constant in
the federal judicial tradition for the sentencing judge to
consider every convicted person as an individual and every
case as a unique study in the human failings that sometimes
mitigate, sometimes magnify, the crime and the punishment
to ensue.” Koon, 518 U.S. at 113. Section 3553(a) requires
nothing less.

DOUGLAS A. BERMAN

THE OHIO STATE UNIVERSITY
MORITZ COLLEGE OF LAW

55 WEST 12TH AVENUE
COLUMBUS, OH 43210

JONATHAN BACH

PAUL H. SCHWARTZ

ELLIOT F. KAYE

D. SEAN NATION

COOLEY GODWARD KRONISH
LLP

THE GRACE BUILDING

1114 AVENUE OF THE
AMERICAS

NEW YORK, NY 10036

Respectfully submitted,

ALEXANDRA A.E. SHAPIRO
Counsel of Record

LATHAM & WATKINS LLP

885 THIRD AVENUE

SUITE 1000

NEW YORK, NY 10022

(212) 906-1200

NATHAN H. SELTZER
LATHAM & WATKINS LLP
555 11TH STREET, N.W.
SUITE 1000

WASHINGTON, DC 20004

Counsel for Amicus Curiae

APPENDIX

la

SUMMARY OF FINDINGS

Nearly two years ago, this Court held in United States
v. Booker, 543 U.S. 220 (2005), that requiring judges to
impose sentences pursuant to the then-mandatory
sentencing guidelines was unconstitutional. To solve this
problem, the Court excised the provision making the
guidelines mandatory, 18 U.S.C. § 3553(b); deemed the
guidelines “effectively advisory”; directed district judges to
make sentencing decisions based upon all the factors in
Section 3553(a); and instructed the courts of appeals to
review sentences for “unreasonableness.”

When Booker was decided, “no one kn{ew] ... how
advisory Guidelines and ‘unreasonableness’ review w[ould]
function in practice.” 543 U.S. at 311 (Scalia, J., dissenting
in part). Now, however, a body of data revealing how courts
of appeals have applied Booker’s standard has emerged.
Amicus curiae New York Council of Defense Lawyers has
analyzed this information, conducting a survey of cases from
January 1, 2006 through November 16, 2006, in which the
courts of appeals engaged in reasonableness review. !

The survey was conducted using Westlaw. Two date-
restricted searches were used. The first, broader search,
was designed to capture all cases that cited this Court’s
decision in Booker. The terms used were: Booker &
Reasonab! Unreasonab!. This search returned
approximately 2,800 cases. The second search was crafted
to capture those cases (mostly unpublished dispositions) in
which the courts of appeals applied unreasonableness
review, but did not cite Booker. The terms used were:
Sentenc! /3 Guideline / 20 Reasonab! Unreasonab! (#Not /3
Reasonab!) & Da (Aft 12/31/2005) % Booker. This search
yielded approximately 250 cases.

1 The starting date was chosen to avoid the need to filter out the large
number of early post-Booker decisions that did not involve review for
reasonableness, but instead addressed issues such as whether a pre-
Booker sentence should be vacated and remanded for resentencing in
light of Booker.

2a

Counsel for the NYCDL reviewed the cases and
entered relevant information into a database. The
categories of information compiled included: (1) case name
and citation; (2) type of crime;2(3) advisory guideline range;
(4) sentence;? (5) whether the sentence was within, above, or
below the advisory range; (6) whether it was the
government or the defendant that appealed; (7) whether the
sentence was affirmed or reversed; (8) whether the
government or the defendant prevailed in the appeal; and
(9) if the sentence was vacated, whether the basis was
procedural or substantive.

Counsel excluded from the database all cases that
included the search terms but did not actually engage in
reasonableness review. For example, cases involving
appellate review of pre-Booker sentences for plain error
remands were not included. Likewise, cases in which the
court of appeals remanded solely because the advisory
guideline range was not calculated properly were excluded.
At the conclusion of the review, NYCDL’s database
included 1,515 cases. The database is included in this
appendix for the Court’s review.

+s

The results of NYCDL’s analysis of the 1,515 cases in
the database are briefly summarized below.

e 154 cases involved sentences above the guidelines

that were appealed by the defendants;

e Nearly all of these above-guidelines sentences were

affirmed; only 7 were vacated;

e 60 of 71 below-guidelines sentences appealed by the

Government were vacated as unreasonable;

e There were also 138 below-guidelines sentences

appealed by defendants, and zero were found to be

2 Crimes were grouped as follows: D = Drugs; 1 - Immigration; T =
Theft/F raud offenses; F = Firearms; 8S = Sex crimes; and O = Other.

3 The sentence refers to the number of months of imprisonment reflected
in the court of appeals’ opinion exclusive of any terms of supervised
release, home confinement, fines, or other sentencing terms.

3a

unreasonable;

e Of the remaining 1,152 within-guidelines sentences
appealed by defendants, 16 sentences were vacated;

e 15 of the reversals were for procedural reasons,
almost uniformly that the district court failed to
articulate its reasons for the sentence; and

e Only 1 within-guidelines sentence was found to be
substantively unreasonable.

NYCDL then broke down these findings by circuit,
according to whether the circuit has explicitly held that a
sentence imposed within a properly calculated advisory-
guidelines range is presumed to be reasonable. The Fourth,
Fifth, Sixth, Seventh, Eighth, Tenth, and D.C. Circuits have
explicitly adopted this presumption of reasonableness. In
these circuits:

e 93 were appeals by the defendant of an above-

guidelines sentence;

e 88 of these sentences were affirmed; only 5 were

vacated;

e There were 51 below-guidelines sentences that were

appealed by the Government;

e Nearly all of these sentences (47) were vacated; and

e Of the remaining 693 within-guidelines sentences

appealed by the defendants, only 7 were vacated.

In circuits that have not explicitly adopted a
presumption of reasonableness—the First, Second, Third,
Ninth, and Eleventh Circuits—the findings are as follows:

e 61 above-guidelines sentences were appealed by the

defendants;

e Virtually all of these sentences were affirmed; only 2

were vacated;

e 20 below-guidelines sentences were appealed by the

government and 13 were vacated; and

e Of the remaining 459 within-guidelines sentences

appealed by the defendants, 9 were vacated.

Mr. Rita’s case was appealed from the Fourth Circuit.
In that circuit, there were:

4a

e 201 within-guidelines sentences appealed by the
defendants;

e All 201 of these sentences were found to be
reasonable;

e There were 10 appeals by defendants of above-
guidelines sentences;

e Only 1 sentence was vacated;

e The government appealed 9 below-guidelines
sentences; and

e All 9 of these below-guidelines sentences were found
to be unreasonable.

Mr. Claiborne’s case was appealed from the Eighth
Circuit. The data from that circuit show the following:

e There were 118 within-guidelines sentences
appealed by the defendants;

e Only 2 of these sentences were vacated;

e 1 reversal was based on an inadequate explanation
by the district court, and the other remains the only
case in which a circuit court has found a within-
guidelines sentences to be _ substantively
unreasonable;

e There were 22 appeals by defendants of above-
guidelines sentences;

e Nearly all of these sentences were affirmed; only 1
was vacated;

e The government appealed 28 below-guidelines
sentences;

e Nearly all of these sentences were reversed; 27 of
these below-guidelines sentences were found to be
unreasonable; and

e In United States v. Burns, 488 F.3d 826 (8th Cir.
2006), a panel of the Eighth Circuit, affirmed a
below-guidelines sentence, notwithstanding the
government’s appeal. The full Eighth Circuit has
since vacated the panel decision and reheard the case
en banc. See 2006 U.S. App. LEXIS 12239 (8th Cir.
May 18, 2006).

RESULTS FOR CIRCUITS THAT HAVE EXPLICITLY ADOPTED A PRESUMPTION
OF REASONABLENESS FOR WITHIN-GUIDELINES SENTENCES

Cir. Above-guidelines sentences Within-guidelines sentences | Below-guidelines
_ appealed by defendants and appealed by defendants and sentences appealed by
vacated vacated the government and
vacated
4 1/10 0/201 9/9
5 1/28 0/86 5/5
6 2/17 1/91 1/2
7 0/8 1/86 4/6
8 1/22 2/118 27/28
10 0/8 3/108 1/1
DC 0 0/3 0/0
Total | 5/93 7/693 47/51

Bg

RESULTS FOR CIRCUITS THAT HAVE NOT EXPLICITLY ADOPTED A
PRESUMPTION OF REASONABLENESS FOR WITHIN-GUIDELINES SENTENCES

Cir. Above-guidelines sentences | Within-guidelines sentences Below-guidelines sentences
appealed by defendants and | appealed by defendants and appealed by the
vacated vacated government and vacated

1 1/3 0/30 4/4

2 0/6 1/60 2/3

3 | 0/10 1/71 1/1

) | 1/19 6/107 1/3

11 _| 0/28 1/191 5/9 a

Total | 2/61 9/459 13/20

FIRST CIRCUIT

Who If
Type | Guide- Within | App.: Won? | Rev'd:
of line Above | Goy’t | Rev’d | Goy’t/ | Procd/
Case Name/Citation Crime | Range | Sentence} Below | Deft | Aff'd | Deft | Subst
U.S. v. Abad-Reyes, 187
Fed. Appx. 6 I 1-7 24 A D A G
(1st Cir. 2006)
U.S. v. Scherrer, 444 F.3d °
91 (1st Cir. 2006) ' es - A » A G
US. v. Zapete-Garcia,
447 F.3d 57 (1st Cir.2006)| 9° | % ” A i Bcd Dnt .
U.S. v. Meran, 463 F.3d
47 (1st Cir. 2006) D 108-135 75 B D A G
U.S. v. Griffin, 187 Fed. ego
Appx. 13 (1st Cir. 2006) . =o lS . ° A .

ey

Who If
Type | Guide- Within | App.: Won? | Rev’d:
of line Above | Goy’t | Rev’d | Gov’t/ | Procd/
Case Name/Citation Crime | Range Sentencel Below | Deft | Affd ft | Subst
U.S. v. McGuire, 185 Fed. ;
Appx. 15 (1st Cir. 2006) D |u| we 5 » A G
U.S. v. Caraballo, 447
F.3d 26 (Ist Cir. 2006) > |e = . o>} 4;S
U.S. v. Thurston, 456 63-78
F.3d 211 (1st Cir. 2006) T (60 stat 3 B G R G S
max)
US. v. Smith, 445 F.3d 1
(Ist Cir. 2006) D 100-125 46 B G R G S
| U.S. v. Pho, 483 F.3d 53 ‘
(ist Cir, 2006) D | 87-108 | 64 B G R G S
U.S. v. Lewis, 433 F.3d 53 .
(ist Cir. 2006) D 235-293 188 B G R G S
U.S. v. Fanfan, 2006 WL
3217712 (1st Cir. 2006) D 210 W D A G

2555913 (1st Cir. 2006)

Who If
Type | Guide- Within | App.: Won? | Rev’d:
of line Above | Goy’t | Rev’d | Gov’t/ | Procd/
Case Name/Citation Crime | Range | Sentence] Below | Deft | Affd | Deft | Subst
U.S. v. Hernandez, 2006 180
WL 3041972 F (minim 188 W D A G
(1st Cir. 2006) um)
USS. v. Jahagirdar, 2006
WL 2988661 O 87 W D A G
(1st Cir. 2006)
US. v. Anziani, 2006 WL
2924936 (1st Cir. 2006) “ as bad ° a .
U.S. v. Santos-Martinez,
2006 WL 2709460 I 16 W D A G
(ist Cir, 2006)
U.S. v. Jones, 2006 WL
2673296 (1st Cir. 2006) > |= 7,9; 4 js
U.S. v. Rodriguez,2006
WL2673310(1st Cir. 2006) ° - aed ° “ .
US. v. Segalla, 2006 WL F 120 Ww D A G

Who If
Type | Guide- Within | App.: Won? | Rev'd:
of line Above | Gov’t | Rev’d | Gov’t/ | Procd/
Case Name/Citation Crime | Range | Sentence] Below | Deft d | Deft | Subst
U.S. v. Quirindongo-
Martinez, 2006 WL O 27-33 33 W D A G
2439968 (1st Cir. 2006)
USS. v. Peralta, 457 F.3d
"169 (Ist Cir. 2006) » ss bed >} 4; °&
U.S. v. Burks, 2006 WL
2130106 (Ist Cir. 2006) >, =i = bed >, 4} &
U.S. v. Morales-
Rodriguez, 2006 WL T 121 Ww D A G
2034694 (ist Cir. 2006)
USS. v. Trinidad-
Rodriguez, 2006 WL I 41-51 41 Ww D A G
3233767 (ist Cir. 2006)
U.S. v. Vazquez-Mieses,
2006 WL 2742550 I 46-57 46 W D A G
(Ist Cir. 2006)

BOI

Who If
Type | Guide- Within | App.: Won? | Rev'd:
of line Above | Gov’t | Rev’d | Gov’t/ | Procd/
Case Name/Citation Crime | Range | Sentence| Below | Deft d | Deft | Subst
U.S. v. Washington, 187
Fed. Appx. 3 D 168-210 168 W D A G
(ist Cir. 2006)
U.S. v. Feliz, 453 F.3d 33
(1st Cir, 2006) D 97-121 97 W D A G
U.S. v. Wilson, 185 Fed.
Appx. 6 (Ist Cir. 2006) D 330 bed » A G
U.S. v. Brown, 450 F.3d °
76 (1st Cir, 2006) ; |; = bid bed >| 4] &
U.S. v. Alvarez-Enciso,
181 Fed. Appx. 8 I 24-30 24 Ww D A G
(1st Cir. 2006)
U.S. v. Navedo-
Concepcion, 450 F.3d 54 D 121-151 151 W D A G
(1st Cir. 2006)
USS. v. Soto-Cruz, 449
F.3d 258 (1st Cir. 2006) . erdieneds Wiis bad » A .

ell

Who If
Type | Guide- Within | App.: Won? | Rev'd:
of line Above | Gov’t | Rev’d | Gov’t/ | Procd/
Case Name/Citation Crime | Range | Sentence] Below | Deft | Affd | Deft | Subst
U.S. v. Castro-Polanco,
182 Fed. Appx. 1 I 46-57 46 W D A G
(1st Cir. 2006)
U.S. v. Dixon, 449 F.3d
194 (1st Cir. 2006) O 92-115 115 W D A G
U.S. v. Rivera, 448 F.3d
82 (1st Cir. 2006) D,F | 188-235 188 W D A G
U.S. v. Sagendorf, 445 9
F.3d 515 (1st Cir. 2006) ° reall “ bed » A c
U.S. v. Alli, 444 F.3d 34
(1st Cir. 2006) . ate a - ” sa °
U.S. v. Saez, 444 F.3d 15 ; ‘
(1st Cir, 2006) D 130-7 130 W D A G
U.S. v. Jiminez-Beltre,
440 F.3d 514 I 46-57 46 W D A G

(Ist Cir. 2006)

ra |

Who If
Type | Guide- Within | App.: Won? | Rev'd:
of line Above | Gov’t | Rev’d | Goy’t/ | Procd/
Case Name/Citation Crime | Range | Sentence| Below | Deft | Affd | Deft | Subst
U.S. v. Montero-Diaz, 173
Fed. Appx. 7 I 57-71 57 W D A G
(1st Cir. 2006)
USS. v. Turbides-
Leonardo, --F .3d--, 2006
WL 3290937 D 48 W D A G

(1st Cir. 2006)

eel

SECOND CIRCUIT

Who If
Type | Guide- Within | App.: Won? | Rev’d:
of line Above | Gov’t | Rev’d | Goy’t/ | Procd/
Case Name/Citation Crime | Range | Sentence] Below | Deft | Affd | Deft | Subst
U.S. v. Pereira, 2006 WL a
2925642 (2d Cir. 2006) ' baie = “ a “ “
U.S. v. Nurse, 2006 WL
2382919 (2d Cir. 2006) . sient ” . ° a .
U.S. v. Singletary, 458 oe
F.3d 72 (2d Cir. 2006) a ellen - - ° a 2s
U.S. v. Fairclough, 439
F.3d 76 (2d Cir, 2006) , | seri, & A D|A G
U.S. v. Pettus, 2006 WL
328267 (2d Cir, 2006) o +s iS A D A G
U.S. v. Orlandez-Gamboa,
2006 WL 1668055 (2d Cir. D 325-405 480 A D A G

2006)

er

2006)

Who If
Type | Guide- Within | App.: Won? | Rev'd:
of line Above | Gov’t | Rev’d | Gov’t/ | Procd/
_Case Name/Citation Crime | Range | Sentence] Below | Deft | Affd | Deft | Subst
U.S. v. Santiago, 2006
WL 31473583 (2d Cir. S 70-87 63 B D A G
2006)
U.S. v. Giovanelli, 464
F.3d 346 (2d Cir. 2006) . |e. = ¥ a . .
U.S. v. Mejia, 461 F.3d
158 (2d Cir. 2006) I 46-57 37 B D A G
U.S. v. Ebbers, 458 F.3d 30
110 (2d Cir. 2006) F years | 25 years B D A G
to life
U.S. v. Kane, 452 F.3d ;
140 (2d Cir. 2006) . waned - 7 ° ” .
U.S. v. Florez, 447 F.3d 3 a
145 (2d Cir. 2006) D 262-327 210 B D A G
U.S. v. McFarlane, 2006
WL 2521649 (2d Cir. D 41 B D A G

Bgl

3026148 (2d Cir. 2006)

Who If
Type | Guide- Within | App.: Won? | Rev'd:
of line Above | Gov’t | Rev’d | Goy’t/ | Procd/
Case Name/Citation | Crime | Range | Sentence] Below | Deft | Affd | Deft | Subst
U.S. v. Earls, 2006 WL
3310814 (2d Cir. 2006) od = S >; A S
U.S. v. Jones, 460 F.3d
191 (2d Cir. 2006) D 30-37 15 B G A D
USS. v. Castillo, 460 F.3d
337 (2d Cir. 2006) D 135-168 87 B G R G S
U.S. v. Rattoballi, 452
| F.3d 127 (2d Cir. 2006) 7, oe) & “ a °
U.S. v. Maflahi, 2006 WL Stat
2672085 (2d Cir. 2006) ° =e © on i @ | 4 j ©
US. v. Riley, 452 F.3d ; ; Stat "
160 (2d Cir. 2006) F 188-235 120 max D A G
U.S. v. Stinson, 2006 WL .
2711988 (2d Cir. 2006) d - bed D A os
U.S. v. Morgan, 2006 WL , 74 Ww D A G

egl

1843520 (2d Cir. 2006)

Who If
Type | Guide- Within | App.: Won? | Rev’d:
of line Above | Gov’t | Rev’d | Gov’t/ | Procd/
Case Name/Citation Crime | Range | Sentence] Below | Deft | Affd | Deft | Subst
USS. v. Rivera, 2006 WL
2711988 (2d Cir. 2006) > |e) & bed >; 4;°&°
US. v. Santos, 2006 WL
2564390 (2d Cir. 2006) D ” bed >»; 4
U.S. v. Velasquez, 2006
WL 2990234 (2d Cir. I 41-51 41 W D A G
2006)
U.S. v. Park, 461 F.3d 245
(od Cir. 2006) D 151 w D A G
U.S. v. Bliss, 2006 WL
1975433 (2d Cir. 2006) ? opm; * af a °
U.S. v. Ramirez, 454 F.3d
380 (2d Cir. 2006) D 151-188 151 W D A G
U.S. v. Ortega, 2006 WL " - - " a ,

BLT

Who If
Type | Guide- Within | App.: Won? | Rev'd:
of line Above | Gov’t | Rev’d | Gov’t/ | Procd/
Case Name/Citation Crime | Range | Sentence] Below | Deft | Affd | Deft | Subst
U.S. v. Casteneda, 2006
WL 1737827 (2d Cir. D W D A G
2006)
U.S. v. Bello-Mosqueda,
2006 WL 1766703 (2d Cir. if 46-57 46 W D A G
2006)
U.S. v. Delarosa, 2006 .
WL 1763878 (2d Cir.2006) | = w D A w
U.S. v. Jimenez, 451 F.3d
97 (2d Cir. 2006) D 57-71 60 W D A G
U.S. v. Macias, 2006 WL
1594008 (2d Cir. 2006) » 106 bed >| 4 G
US. v. Elliot, 2006 WL ‘
1582689 (2d Cir. 2006) “ bed >; 4;
U.S. v. Forquet, 2006 WL D 151 W D A G

1582690 (2d Cir. 2006)

Bg

Who If
Type | Guide- Within | App.: Won? | Rev'd:
of line Above | Gov’t | Rev’d | Gov’t/ | Procd/
Case Name/Citation Crime | Range | Sentence] Below | Deft | Affd | Deft | Subst
U.S. v. Wu, 2006 WL
1423474 (2d Cir. 2006) o ° bed »}] 4] °&
U.S. v. Villanova, 2006
WL 1423482 (2d Cir. I 77 W D A G
2006)
US. v. Tavera, 2006 WL
1426824 (2d Cir. 2006) D a Ww >»; 4] &
USS. v. Martinez, 2006
WL 1359946 (2d Cir. D 135 W D A G
2006)
U.S. v. Caballero-Espinal,
2006 WL 1070941 (2d Cir. I 46 W D A G
2006)
U.S. v. Matrulli, 2006 WL es
1049108 (24 Cir, 2006) . |e | te ee Te
U.S. v. McDaniel, 2006 F 72 D A G

WL 917208 (2d Cir. 2006)

e61

482557 (2d Cir. 2006)

Who If
Type | Guide- Within | App.: Won? | Rev'd:
of line Above | Gov’t | Rev’d | Gov’t/ | Procd/
Case Name/Citation Crime | Range | Sentence| Below | Deft | Affd | Deft | Subst
U.S. v. Nicholas, 2006 WL
897860 (2d Cir. 2006) T ed bed D A G
U.S. v. Fernandez, 443
F.3d 19 (2d Cir, 2006) D> | sis) i al >; 4;
US. v. Tejada-Hilliano,
2006 WL 897767 (2d Cir. I 41-51 41 W D A G
2006)
US. v. Victoria, 2006 WL
760136 (2d Cir. 2006) D 1S bad D A G
USS. v. Folkes, 2006 WL
755955 (2d Cir. 2006) » 5S bed D A G
U.S. v. Beckett, 2006 WL
544487 (2d Cir. 2006) d on ” 7} * i];
U.S. v. Smith, 2006 WL os
522082 (2d Cir. 2006) : nd sed ° - .
J
U.S. v. Perez, 2006 WL D 999 W D A G

Who If
Type | Guide- Within | App.: Won? | Rev'd:
of line Above | Gov’t | Rev’d | Govy’t/ | Procd/
Case Name/Citation Crime | Range | Sentence} Below | Deft | Aff'd | Deft | Subst
USS. v. Harris, 2006 WL
374205 (2d Cir. 2006) t “ bed >»; 4i]°8&
U.S. v. Munroe, 2006 WL
354640 (2d Cir. 2006) 7 |e] & ” 7; 4; Ss
U.S. v. Collins, 2006 WL
231666 (2d Cir, 2006) ” wel sal » | 4 G
U.S. v. Claudillo-
Marquez, 2006 WL I 77 W D A G
224182 (2d Cir. 2006)
U.S. v. Emence, 2006 WL
189999 (2d Cir. 2006) ow. bed >»; 4] °&
U.S. v. Nash, 2006 WL
3147563 (2d Cir. 2006) » 16 bad 7; 8;
U.S. v. Wilson, 2006 WL
3026162 (2d Cir. 2006) » mate bed >} 4} &
U.S. v. Khan, 2006 WL I Ww D A G

268668 (2d. Cir. 2006)

BIZ

616314 (2d Cir. 2006)

Who If
Type | Guide- Within | App.: Won? | Rev'd:
of line Above | Gov’t | Rev’d | Gov’t/ | Procd/
Case Name/Citation Crime | Range | Sentence] Below | Def't d | Deft | Subst
U.S. v. Marshall, 2006
WL 1788492 (2d Cir. I 60 W D A G
2006)
U.S. v. Sow, 2006 WL
1318798 (2d Cir. 2006) ° |e) & ie Bade En Pin.
USS. v. Celaya-Romo,
2006 WL 1236329 (2d Cir. D 168 W D A G
2006)
U.S. v. Castro, 2006 WL
958290 (2d Cir. 2006) D 135-168 135 W D A G
US. v. Agnew, 2006 WL
707482 (2d Cir, 2006) ' - eA ade id >.
USS. v. Vargas, 2006 WL
700928 (2d Cir. 2006) Set ae vd ” - .
US. v. Rajotte, 2006 WL D 135 Ww D A G

_ 2006)

Who If
Type | Guide- Within | App.: Won? | Rev’d:
of line Above | Goy’t | Rev’d | Gov’t/ | Procd/
Case Name/Citation Crime | Range | Sentence] Below | Deft | Affd | Deft | Subst
U.S. v. Navarro, 2006 WL .
3263834 (2d Cir. 2006) T 57-71 57 W D A G
U.S. v. Dorney, 2006 WL
2919021 (2d Cir. 2006) / 89 bed D{|A|&G
US. v. Ellis, 2006 WL
2990202 (2d Cir, 2006) . « bed >; 4; @
U.S. v. Wusebio, 2006 WL
2973010 (2d Cir. 2006) : bed D}|A | G
U.S. v. Watson, 2006 WL
| 266527 (2d Cir. 2006) F,D 130 bed >| A G
U.S. v. Gamble, 2006 WL
3253087 (2d Cir. 2006) D 216 bed » | A G
U.S. v. Fernandez, 2006
WL 3298426 (2d Cir. I 46 W D A G

BES

| 542 (2d Cir. 2006)

Who If
Type | Guide- Within | App.: Won? | Rev’d:
of line Above | Goy’t | Rev’d | Gov’t/ | Procd/
Case Name/Citation Crime | Range | Sentence] Below | Deft d | Deft | Subst
U.S. v. Ventura-Mejia,
2006 WL 3308205 (2d Cir. I W D A G
2006)
U.S. v. Drayton, 2006 WL
3307754 (2d Cir. 2006) I 57-71 71 W D A G
U.S. v. Meija, 2006 WL
3326757 (2d Cir. 2006) a = 7 >} 4}
US. v. Capozzi, 2006 WL
3307631 (2d Cir. 2006) . ” bad ° A “
U.S. v. Toohey, 448 F.3d O 15-21 15 Ww D R D p

1

THIRD CIRCUIT

Who If
Type | Guide- Within | App.: Won? | Rev'd:
of line Above | Gov’t | Rev’d | Gov’t/ | Procd/
Case Name/Citation Crime | Range | Sentence| Below | Deft | Affd | Deft | Subst
U.S. v. Brown, 2006 WL T 70-87 90 A D A G
3090333 (3d Cir. 2006)
US. v. King, 2006 WL
2189683 (3d Cir. 2006) 5 | oe; @ A 7} 2;
U.S. v. Powell, 2006 WL
2135049 (3d Cir. 2006) . jo). = . it idl Ts
U.S. v. King, 454 F.3d 187 ;
(3d Cir. 2006) T 30-37 72 A D A G
U.S. v. Schweitzer, 454
F.3d 197 (3d Cir.2006). | 7 | 4697 | & A >; 4/]°8
U.S. v. Sparks, 184 Fed.
Appx. 185 (3d Cir. 2006) ad — - ” - “ .
U.S. v. Rose, 176 Fed. .
| Appx. 295 (3d Cir. 2006) ° ;| oe | ® A o>; 4} °°

Bc?

| Appx. 258 (3d Cir. 2006)

Who If
Type | Guide- Within | App.: Won? | Rev'd:
of line Above | Govy’t | Rev’d | Goy’t/ | Procd/
Case Name/Citation Crime | Range | Sentence| Below | Deft | Affd | Deft | Subst
U.S. v. Burke, 176 Fed.
Appx. 304 (3d Cir. 2006) ° nih vi . ” “ .
U.S. v. Robinson, 174
Fed. Appx. 72 (3d Cir. O 24-30 60 A D A G
2006)
U.S. v. Cropper, 168 Fed. . , .
Appx. 508 (3d Cir. 2006) , |= en “ ” " .
Nabried v. U.S., 2006 WL - "
2474026 (3d Cir. 2006) 2 eo as ” “ 7
U.S. v. Amos, 2006 WL om
2384927 (3d Cir. 2006) D 188-235 140 B D A G
US. v. Flores, 454 F.3d ,
149 (3d Cir. 2006) T 70-87 32 B D A G
U.S. v. Gordon, 185 Fed.
Appx. 192 (3d Cir. 2006) . eo = " a ” '
U.S. v. Brantley, 184 Fed. T 151-188 144 B D A G

B9G

a Who If
Type | Guide- Within | App.: Won? | Rev’d:
of line Above | Gov’t | Rev’d | Gov’t/ | Procd/
Case Name/Citation Crime | Range | Sentence} Below | Deft | Affd | Deft | Subst
U.S. v. Baskerville, 181
Fed. Appx. 199 (3d Cir. O 130-? 100 B D A G
2006)
U.S. v. Seaton, 178 Fed.
Appx. 172 (3d Cir, 2006) D | s2se7| «200 5 >»; 4] &
U.S. v. Tyson, 176 Fed.
Appx. 255 (3d Cir. 2006) ° saniened ans . ° . .
U.S. v. Cepeda, 181 Fed.
Appx. 177 (3d Cir. 2006) ad vaste - ° a . 7
U.S. v. Walker, 172 Fed.
| Appx. 460 (3d Cir. 2006) ° - . » A “
USS. v. Sargeant, 171
Fed. Appx. 954 (3d Cir. F 210-262 120 B D A G
2006)
U.S. v. Giaguinto, 441 . ,
F.3d 195 (3d Cir. 2006) i=) = 7 mie; %

BLS

Cir. 2006)

Who If
Type | Guide- Within | App.: Won? | Rev’d:
of line Above | Gov’t | Rev’d | Gov’t/ | Procd/
Case Name/Citation Crime | Range | Sentence| Below | Deft | Affd | Deft | Subst
U.S. v. Ricciotti, 170 Fed.
’ ?
Appx. 800 (3d Cir.2006) | D2 | 3 - . "is;
U.S. v. Nunez, 173 Fed.
Appx. 128 (3d Cir. 2006) D 235-293 216 B D A G
U.S. v. Jackson, 169 Fed.
Appx. 120 (3d Cir. 2006) O | 16 . . 7; 4;°s
U.S. v. Wilson, 2006 WL
| 3090125 (3d Cir. 2006) . i) = A Te ul Wes
U.S. v. Millard, 184 Fed. -.
"Appx. 226 (3d Cir,2006) | ? | 191-188] 130 le Cie Cao Che
U.S. v. Miles, 184 Fed.
Appx. 222 (ad Cir. 2006) D | 100-120} 87 B D A G
U.S. v. Hyung Pil Baek,
181 Fed. Appx. 165 (3d T 70-87 24 B G R G S

3247919 (3d Cir. 2006)

Who If
Type | Guide- Within | App.: Won? | Rev'd:
of line Above | Gov’t | Rev’d | Gov’t/ | Procd/
Case Name/Citation Crime | Range Sentence] Below Deft | Affd ft | Subst
U.S. v. Benjamin, 2006
WL 3227881 (3d Cir. T 39 W D A G
2006)
U.S. v. Hertzog, 186 Fed.
Appx. 314 (3d Cir. 2006) . ” 7 ° a .
U.S. v. Armstead, 185
Fed. Appx. 211 (3d Cir. D 120 WwW D A G
2006)
U.S. v. Barron, 181 Fed.
Appx. 269 (3d Cir, 2006) D 151-188 151 W D A G
USS. v. Skiba, 178 Fed. ‘
Appx. 159 (3d Cir. 2006) 0 — bed o A “
U.S. v. Thomas, 174 Fed.
Appx. 1 (3d Cir, 2006) BE Prices Ps: bad >; 4/;8
U.S. v. Jackson, 2006 WL 0 87-46 37 Ww D A G

| 3057558 (3d Cir. 2006)

Who If
Type | Guide- Within | App.: Won? | Rev’d:
of line Above | Gov’t | Rev’d | Gov’t/ | Procd/
Case Name/Citation Crime | Range | Sentence| Below | Deft | Affd | Deft | Subst
U.S. v. Charles, ---F.3d---,
2006 WL 3231396 (3d Cir. O 37-46 46 W D A G
2006)
U.S. v. Cooley, 2006 WL Ty
3227764 (3d Cir. 2006) D ?-Life Life W D A G
U.S. v. Dees, ---F.3d---,
2006 WL 3209989 (3d Cir. T 24-72 72 W D A G
2006)
U.S. v. Paz, 2006 WL
3201104 (3d Cir. 2006) J bed » A G
U.S. v. Fowers, 2006 WL -
3147204 (3d Cir. 2006) . _— ™ a “ °
U.S. v. Gavin, 2006 WL
’ > Or ‘
3079013 (3d Cir, 2006) 7 oi = vd >); 4); S&S
US. v. Lyons, 2006 WL D 70-87 7 | w D A C

BOS

2726500 (3d Cir. 2006)

Who If
Type | Guide- Within | App.: Won? | Rev’d:
of line Above | Gov’t | Rev’d | Gov’t/ | Procd/
Case Name/Citation Crime | Range | Sentence] Below | Deft | Affd | Deft | Subst
US. v. Tirado, 2006 WL
3024701 (3d Cir. 2006) , |= CU! bed >} 4] °&
US. v. Rodriguez-
Sanchez, 2006 WL D ?-Life 250 W D A G
2882078 (3d Cir. 2006)
US. v. Nesgoda, 2006
WL 2871273 (3d Cir. O 120 W D A G
2006)
U.S. v. Neary, 2006 WL
2871275 (3d Cir. 2006) T 151-188 170 W D A G
US. v. Henry, 2006 WL
2849651 (3d Cir. 2006) a, =a & bad 7; 4 ;Ss
U.S. v. Samuelsen, 2006
WL 2826730 (3d Cir. T 37-51 37 W D A G
2006)
US. v. Grasso, 2006 WL T 107 W D A G

BIs

Who If
Type | Guide- Within | App.: Won? | Rev'd:
of line Above | Gov’t | Rev’d | Gov’t/ | Procd/
Case Name/Citation Crime | Range | Sentence] Below | Deft | Aff'd | Deft | Subst
U.S. v. Outram, 2006 WL
2673288 (3d Cir. 2006) : " sad o>; 4; 8
U.S. v. Parker, 462 F.3d 349 (11
273 (3d Cir. 2006) D 360- credit Ww D A G
Life for time
served)
U.S. v. Hodge, 2006 WL
2400946 (3d Cir. 2006) D 151-188 166 W D A G
U.S. v. Muhammad, 2006
WL 2189798 (3d Cir. F 110-137 120 W D A G
2006)
U.S. v. Burtula, 2006 WL ; ;
2167586 (3d Cir. 2006) ¥ east nd a “ .
U.S. v. Purdie, 2006 WL 37-46 37 W D A CG

2092446 (3d Cir. 2006)

BE

Who If
Type | Guide- Within | App.: Won? | Rev'd:
of line Above | Gov’t | Rev’d | Gov’t/ | Procd/
Case Name/Citation Crime | Range | Sentence| Below | Deft | Affd | Deft | Subst
U.S. v. Melntyre, 186 |
Fed. Appx. 328 (3d Cir. T 57-71 63 W D A G
2006)
USS. v. Veneziale, 2006
WL 2076156 (3d Cir. O 108-135 120 W D A G
2006)
U.S. v. Felix, 2006 WL
2051677 (3d Cir. 2006) » oe w = 2 ee
U.S. v. Severino, 454 F.3d ,
206 (3d Cir. 2006) D 63-78 63 W D A G
U.S. v. Mornan, 186 Fed.
‘enemas | + |e) we] eee
USS. v. Sanders, 185 Fed.
Appx. 176 (3d Cir. 2006) | | iss bod o>; 4]{&
U.S. v. Taylor, 184 Fed. .
Appx. 146 (3d Cir. 2006) v 836 bad D A “

Who If
Type | Guide- Within | App.: Won? | Rev’d:
of line Above | Gov’t | Rev’d | Gov’t/ | Procd/
Case Name/Citation Crime | Range | Sentence} Below | Deft | Aff'd | Deft | Subst
U.S. v. Newman, 186 Fed.
Appx. 264 (3d Cir. 2006) S55-E08 =e bed » A G
U.S. v. Marshall, 186 Fed.
Appx. 246 (3d Cir.2006) | D | 151-188) 168 A Tele Pe iter
U.S. v. Shusterman, 184
Fed. Appx. 224 (3d Cir. T 51-63 51 W D A G
2006)
U.S. v. Jimenez-Calderon,
183 Fed. Appx. 274 (3d S 210 W D A G
Cir. 2006)
U.S. v. Long, 183 Fed.
Appx. 182 (3d Cir. 2006) t atts se bed » A G
U.S. v. Briscoe-Bey, 182
Fed. Appx. 68 (3d Cir. D 151-188 188 W D A G

2006)

Who If
Type | Guide- Within | App.: Won? | Rev'd:
of line Above | Goy’t | Rev’d | Goy’t/ | Procd/
Case Name/Citation Crime | Range | Sentence} Below | Deft | Affd | Deft | Subst
U.S. v. Bonilla Velasquez,
182 Fed. Appx. 120 (3d I 77-96 85 W D A G
Cir. 2006)
U.S. v. Clark, 182 Fed.
Appx. 117(3dCir.2006) | - | | % bad AM Pl Phe
US. v. Festus, 181 Fed.
Appx. 147 (3d Cir. 2006) ° -” sal de ae Tite
U.S. v. Kosek, 183 Fed.
Appx. 174 (3d Cir.2006e) | * | 87 | 2% ie Wack Dik hn:
US. v. Eiswerth, 181
Fed. Appx. 175 (3d Cir. D 46-57 46 W D A G
2006)
US. v. Efigenio, 183 Fed.
Appx. 165 (3d Cir. 2006) : 41-00 “ w D A G
U.S. v. Jarrett, 181 Fed. Fr 57-71 57 Ww D A G

Appx. 233 (3d Cir. 2006)

bce

Who If
Type | Guide- Within | App.: Won? | Rev’d:
of line Above | Goy’t | Rev’d | Goy’t/ | Procd/
Case Name/Citation Crime | Range | Sentence} Below ft | Affd | Deft | Subst
U.S. v. Able, 182 Fed.
Appx. 77 (3d Cir. 2006) 7 | Beel =U bed D | A G
U.S. v. Thomas, 181 Fed.
Appx. 188 (3d Cir, 2006) > |e « bed >; 4] &
U.S. v. Braun, 180 Fed.
Appx. 351 (3d Cir. 2006) rT | ee «CB bed D A G
U.S. v. Rene, 180 Fed.
Appx. 339 (3d Cir. 2006) rj, oo; bed >|] A G
U.S. v. Carroll, 179 Fed.
Appx. 128 (3d Cir. 2006) S 140-175 175 W D A G
US. v. Stewart, 179 Fed. 360-
Appx. 814 (3d Cir. 2006) D | uit | w >; A] &
U.S. v. Kossak, 178 Fed.
Appx. 183 (3d Cir. 2006) ; iwi & bed D;A4 | &
U.S. v. Pena, 177 Fed. D 57-71 60 W D A G

Appx. 257 (3d Cir. 2006)

Who If
Type | Guide- Within | App.: Won? | Rev’d:
of line Above | Gov’t | Rev'd | Gov’t/ | Procd/
Case Name/Citation Crime | Range | Sentence] Below ft | Affd t | Subst
USS. v. Scott, 178 Fed.
Appx. 140 (3d Cir, 2006) D 108-135 108 W D A G
USS. v. Gray, 176 Fed.
Appx. 315 (3d Cir. 2006) ° vetiems " bad » A °
U.S. v. Rackley, 175 Fed.
Appx. 564 (3d Cir.200e) | © | @97 | 9% bad al Geode has
U.S. v. McNeal, 175 Fed.
Appx. 546 (3d Cir. 2006) d oA bad D A G
U.S. v. Reed, 173 Fed.
Appx. 184 (3d Cir. 2006) y |es;| w-7; 2, ATS
U.S. v. Gomez-Fonseca,
171 Fed. Appx. 957 (3d I 77-96 77 Ww D A G
Cir. 2006)
U.S. v. Boyd, 173 Fed.
Appx. 139 (3d Cir. 2006) » mates ans bed D A e
U.S. v. Veshio, 174 Fed. T 151-188 170 W D A G

Appx. 63 (3d Cir. 2006)

BLE

Who If
Type | Guide- Within | App.: Won? | Rev'd:
of line Above | Goy’t | Rev’d | Gov’t/ | Procd/
Case Name/Citation Crime | Range | Sentence] Below | Def't d | Deft | Subst
US. v. Dair, 174 Fed.
Appx. 68 (3d Cir. 2006) D |S! © bed D}|A4 | &
U.S. v. Weaver, 175 Fed.
Appx. 506 (3d Cir. 2006) 0 80-37 36 bad D A G
U.S. v. Reyes, 169 Fed.
Appx. 115 (3d Cir. 2006) ° mathans = bad » A S
_US. v. Knighton, 171
_ Fed. Appx. 939 (3d Cir. T 70-87 70 W D A G
2006)
US. v. Cooper, 437 F.3d
394 (3d Cir. 2006) D 84-105 105 W D A G
U.S. v. Riddle, 174 Fed.
Appx. 662 (3d Cir. 2006) . os “. nad D A G
U.S. v. Gunter, 462 F.3d 535
237 (3d Cir. 2006) . endeens = bad D R » J
U.S. v. Webb, 2006 WL .
2974124 (3d Cir. 2006) ’ 7} }4;°8

FOURTH CIRCUIT

Who If
Type | Guide- Within | App.: Won? | Rev'd:
of line Above | Gov’t | Rev’d | Goy’t/ | Procd/
Case Name/Citation Crime | Range a Below | Deft | Affd | Deft | Subst
U.S. v. Carpenter, 2006
WL 2986548 (4th Cir. F 15-21 30 A D A G
2006)
U.S. v. Robinson, 2006
WL 2794398 (4th Cir. O 8-14 24 A D A G
2006)
US. v. Smiley, 2006 WL
2347625 (4th Cir, 2006) ' {oe & - Gl Tiedt en
U.S. v. Smith, 2006 WL
2347524 (4th Cir, 2006) ° as AES ch Gd Bhs
USS. v. Crudup, 461 F.3d .
433 (4th Cir. 2006) ° whet ” “ ” “ °
U.S. v. Spain, 2006 WL
1627248 (4th Cir. 2006) ° “ “ ” " as

2591917 (4th Cir. 2006)

Who If
Type | Guide- Within | App.: Won? | Rev'd:
of line Above | Gov’t | Rev’d | Gov’t/ | Procd/
Case Name/Citation Crime | Range | Sentence| Below | Deft | Affd | Deft | Subst
U.S. v. Hall, 2006 WL
1307881 (4th Cir. 2006) 7 | oe » A o>; 4; 8
U.S. v. Betanzos-Fiores,
2006 WL 392068 (4th Cir. I 21-27 30 A D A G
2006)
U.S. v. Ferguson, 2006 .
WL 786817 (4th Cir. 2006) | _? 1 A >; A] S&
U.S. v. Davenport, 445
F.3d 366 (4th Cir, 2006) 7 | eer] 6 A >; *® ji ® 5
U.S. v. Canady, 2006 WL ,
9686625 (4th Cir. 2006) » ais 5 >; 4] &
U.S. v. Canady, 2006 WL -
2688869 (4th Cir. 2006) 2 ae . » A S
US. v. Canady, 2006 WL
2620153 (4th Cir. 2006) oF a0 5 >»; 4]; °&
U.S. v. Marcum, 2006 WL T 63-78 60 R D A G

e0F

Who If
Type | Guide- Within | App.: Won? | Rev’d:
of line Above | Gov’t | Rev’d | Goy’t/ | Procd/
Case Name/Citation Crime | Range | Sentence; Below | Deft | Affd | Deft | Subst
U.S. v. Basurto, 2006 WL
2520317 (4th Cir. 2006) D 180 B dD} A G
U.S. v. Bonnie, 2006 WL
2492161 (4th Cir. 2006) D B D A G
US. v. McLean, 2006 WL
2140033 (4th Cir. 2006) ,
(defendant D. T 135-? 120 B D A G
Zimmerman)
US. v. Davis, 2006 WL
2076447 (4th Cir. 2006) D |20ce) 5 D A G
U.S. v. Guffey, 2006 WL .
1828012 (4th Cir. 2006) S | l2i-lbl) % B D A G
US. v. Katz, 2006 WL :
1636740 (4th Cir, 2006) [S| ®& B D A G
U.S. v. Wishon, 2006 WL ;
1443698 (4th Cir. 2006) F | 2t-180] = 100 B D A G

BIP

Who If
Type | Guide- Within | App.: Won? | Rev'd:
of line Above | Goy’t | Rev’d | Gov’t/ | Procd/
Case Name/Citation Crime | Range | Sentence] Below | Deft | Affd | Deft | Subst
U.S. v. Thompson, 2006
WL 1233245 (4th Cir. T 24-30 15 B D A G
2006)
U.S. v. Woods, 2006 WL '
538030 (4th Cir. 2006) o ved 5 AE a Pee
U.S. v. Santos, 2006 WL
476620 (4th Cir, 2006) J - . - 2 e |S
U.S. v. Hampton, 441
F.3d 284 (4th Cir. 2006) J witli a 5 G R G 5
U.S. v. Curry, 461 F.3d
452 (4th Cir. 2006) . sien ” . ° ” ?
U.S. v. Perez-Pena, 453
F.3d 236 (4th Cir. 2006) | ee le 5 .;*® is S
U.S. v. Kimbrough, 2006
WL 1233525 (4th Cir. D 168-210 120 B G R G S

2006)

BCP

Who If
Type | Guide- Within | App.: Won? | Rev'd:
of line | Above | Gov’t | Rev'd | Goy’t/ | Procd/
Case Name/Citation Crime | Range | Sentence} Below t | Affd | Deft | Subst
U.S. v. Eura, 440 F.3d 625
(4th Cir. 2006) D 78-97 60 B G R G S
U.S. v. Clark, 434 F.3d
684 (4th Cir. 2006) D 46-57 8 B G R G S
U.S. v. Williams, 2006
WL 3026266 (4th Cir. D 97-121 6 B G R D S
2006)
U.S. v. Khan, 461 F.3d
477 (4th Cir. 2006) O 97-121 52 B G R G S
U.S. v. Moreland, 437 ;
F.3d 424 (4th Cir. 2006) D 360-life 120 B G R G S
U.S. v. Shore, 2006 WL stat
241368 (4th Cir. 2006) A ented Gee ne ied Ee
U.S. v. McLean, 2006 WL
2140033 (4th Cir. 2006) 9 . stat .
(defendant P. T Ie! Ise max D A G

Zimmerman)

Cir. 2006)

Who If
Type | Guide- Within | App.: Won? | Rev'd:
, of line Above | Goy’t | Rev’d | Goy’t/ | Procd/
Case Name/Citation Crime | Range | Sentence} Below | Deft | Affd | Deft | Subst
US. v. Williams, 444 F.3d stat
250 (4th Cir. 2006) T 11-06 oe max D A G
U.S. v. Deberry, 2006 WL stat
871281 (4th Cir. 2006) d = | oe | 7 | 4} S
USS. v. Dowtin, 2006 WL
655079 (4th Cir. 2006) J “ bed >; 47S
US. v. Esposito, 2006
WL 3327804 (4th Cir. T W D A G
2006)
U.S. v. Owens, 2006 WL
3327588 (4th Cir. 2006) 2 es = bad ° A ° ?
U.S. v. Dumas, 2006 WL
| 3311504 (4th Cir. 2006) ° - bad as a °
U.S. v. Perez-Mendez,
2006 WL 3313359 (4th D 168 Ww D A G

: Who If
Type | Guide- Within | App.: Won? | Rev'd:
of line Above | Gov’t | Rev’d | Goy’t/ | Procd/
Case Name/Citation Crime | Range | Sentence} Below | Def't d | Deft | Subst
US. v. Davis, 2006 WL
3267349 (4th Cir. 2006) D 16 w AP int Bes
U.S. v. Stanback, 2006
WL 3253931 (4th Cir. D 420 W D A G
2006)
U.S. v. Phillips, 2006 WL
3207969 (4th Cir. 2006) d ae bad D A G
U.S. v. Phelps, 2006 WL
3147514 (4th Cir. 2006) D,F | meee) bed » A G
USS. v. Lutz, 2006 WL
3077440 (4th Cir, 2006) S aa bed » A G
U.S. v. Wimbush, 2006
WL 3055494 (4th Cir. D 360-life 360 W D A G
2006) 2
U.S. v. Hill, 2006 WL
3069471 (4th Cir. 2006) » 18s bad D;A4A] &

Who If
Type | Guide- Within | App.: Won? | Rev’d:
of line Above | Gov’t | Rev’d | Gov’t/ | Procd/
Case Name/Citation Crime | Range | Sentence} Below | Deft | Aff'd | Deft | Subst
USS. v. Shields, 2006 WL
3026305 (4th Cir. 2006) F 110-120 120 W D A G
U.S. v. Brown, 2006 WL
3025749 (4th Cir. 2006) 0, F se bed >| 4] &
U.S. v. Minter, 2006 WL
3018109 (4th Cir. 2006) D “ bed » A G
U.S. v. Brown, 2006 WL
3018104 (4th Cir. 2006) d sed a A ©
U.S. v. Barajas, 2006 WL ~
2974323 (4th Cir. 2006) » oA bed >; 4; ¢
U.S. v. Rutland, 2006 WL
2974333 (4th Cir. 2006) D S26-E06 = bed » A G
U.S. v. Naranjo, 2006 WL , .
2953366 (4th Cir. 2006) . wal & bed >; 4]; &
U.S. v. Plaismond, 2006
WL 2953400 (4th Cir. D 168-210 168 W D A G

_ 2006)

2817656 (4th Cir. 2006)

Who If
Type | Guide- Within | App.: Won? | Rev'd:
of line Above | Gov’t | Rev’d | Goy’t/ | Procd/
Case Name/Citation Crime | Range | Sentence| Below | Deft | Affd | Deft | Subst
U.S. v. Anthony, 2006
WL 2930145 (4th Cir. D 324 W D A G
2006)
U.S. v. Anthony, 2006
WL 2930145 (4th Cir. D 360 W D A G
2006) (defendant Scott)
US. v. Carter, 2006 WL
2930143 (4th Cir. 2006) d be bed » A °
USS. v. Lee, 2006 WL .
"2858975 (4th Cir. 2006) ME Dect We bad 7; 8) Ss
_U,S. v. Kafka-Banderas,
2006 WL, 2846458 (4th I 77 Ww D A G
Cir. 2006)
U.S. v. Plumber, 2006 WL
2846453 (4th Cir. 2006) 7; |e! & >»; 4] 8
U.S. v. Haynes, 2006 WL D 188-235 188 W D A G

eLY

2006)

Who If
Type | Guide- Within | App.: Won? | Rev’d:
of line Above | Gov’t | Rev’d | Gov’t/ | Procd/
Case Name/Citation Crime | Range | Sentence| Below | Deft | Affd | Deft | Subst
US. v. Malloy, 2006 WL
2817657 (4th Cir. 2006) . on bed » A G
U.S. v. Luck, 2006 WL
2711929 (4th Cir. 2006) ° — bad 7; a4; Ss
U.S. v. Johnson, 2006 WL
2711976 (4th Cir. 2006) d 61 bed » | 4 G
U.S. v. Dominguez-
Villegas, 2006 WL D 151 Ww D A G
2668682 (4th Cir. 2006)
_US. v. Garcia-Arzate,
2006 WL 2640242 (4th D 156 W D A G
Cir. 2006)
US. v. Stroupe, 2006 WL
2620209 (4th Cir. 2006) bd wd sed ° “ .
U.S. v. Patterson, 2006
WL 2620174 (4th Cir. D 262 W D A G

Cir. 2006)

Who If
Type | Guide- Within | App.: Won? | Rev’d:
of line Above | Gov’t | Rev’d | Gov’t/ | Procd/
Case Name/Citation Crime | Range | Sentence| Below | Deft | Affd | Deft | Subst
U.S. v. Andaya-Penalosa,
2006 WL 2562322 (4th D life W D A G
Cir. 2006)
U.S. v. Connor, 2006 WL
2547960 (4th Cir. 2006) ° endian - ” a A S
U.S. v. Little, 2006 WL
2527670 (4th Cir, 2006) d % bed » | 4} &
U.S. v. Moss, 2006 WL
2520299 (4th Cir. 2006) » om w » | A G
U.S. v. Sanders, 2006 WL
| 2520308 (4th Cir. 2006) D ae bed » A G
US. v. Myrick, 2006 WL
2465326 (4th Cir. 2006) ,9 |= = bed » A G
U.S. v. Plata-Oceguera,
2006 WL 2460860 (4th | 54 W D A G

e6P

Who If
Type | Guide- Within | App.: Won? | Rev'd:
of line Above | Gov’t | Rev’d | Gov’t/ | Procd/
Case Name/Citation Crime | Range | Sentence Below | Deft | Affd | Deft | Subst
US. v. Frost, 2006 WL
2433961 (4th Cir. 2006) D,F | 235-293 235 WwW D A G
U.S. v. Vasquez, 2006 WL
2460750 (4th Cir, 2006) 7, ll Md Ged Ms
U.S. v. Whitlock, 2006
WL 2433985 (4th Cir. O 7-13 13 W D A G
2006)
U.S. v. Epperson, 2006
WL 2457154 (4th Cir. F 33 W D A u
2006)
U.S. v. Pankey, 2006 WL
2457166 (4th Cir. 2006) af lies vid bad " m .
US. v. Craig, 2006 WL
2347648 (4th Cir. 2006) 2 =) = w |} P_ai Ss
U.S. v. Williams, 2006
WL 2347518 (4th Cir. D 78-97 97 WwW D A G

2006)

Who If
Type | Guide- Within | App.: Won? | Rev’d:
of line Above | Gov’t | Rev'd | Gov’t/ | Procd/
Case Name/Citation Crime | Range | Sentence} Below | Deft d | Deft | Subst
USS. v. Scott, 2006 WL
2335547 (4th Cir. 2006) D | 188-235} — 188 W D|-A G
US. v. Baker, 2006 WL
2277730 (4th Cir. 2006) F | 110-120} 110 W D A G
"US. v. Battles, 2006 WL
2141222 (4th Cir. 2006) T | 121) 97 Ww D | A G
U.S. v. McLean, 2006 WL
2140033 (4th Cir. 2006) T | 235-293) 252 Ww D A G
US. v. Gibbs, 2006 WL
2142076 (4th Cir. 2006) T W D A G
U.S. v. Fuller, 2006 WL .
2092537 (4th Cir. 2006) T,F 84/60 Ww D A G
U.S. v. Noe, 2006 WL
2076444 (4th Cir. 2006) T | BM) 8 W D| A | G
US. v. Roussos, 2006 WL
| 2076453 (4th Cir. 2006) D 360 Ww D A G

BIS

2044850 (4th Cir. 2006)

Who If
Guide- Within | App.: Won? | Rev’d:
line Above | Gov’t | Rev’d | Gov’t/ | Procd/
Case Name/Citation Range | Senten elow | Deft | Affd | Deft | Subst
US. v. Oglesby, 2006 WL
2076453 (4th Cir. 2006) = bed >»; 4] &
U.S. v. McDonald, 2006
WL 2076451 (4th Cir. 235 W D A G
2006)
U.S. v. Hayward, 2006
WL 2052073 (4th Cir. 38 W D A - G
2006)
U.S. v. King, 2006 WL
2044878 (4th Cir. 2006) en; ¢ bad >; 4/;°&6
US. v. Billingsley, 2006
WL 2044850 (4th Cir. 324 W D A G
2006)
USS. v. Price, 2006 WL 262 w D A G

Who If
Type | Guide- Within | App.: Won? | Rev’d:
of line | Above | Gov’t | Rev’d | Gov’t/ | Procd/
Case Name/Citation Crime | Range | Sentence] Below | Deft | Aff'd | Deft | Subst
U.S. v. Overstreet, 2006
WL 2010850 (4th Cir. F 63 W D A G
2006)
U.S. v. Shipman, 2006
WL 2010843 (4th Cir. D 360-life 360 W D A G
2006)
U.S. v. Dublin, 2006 WL ; ,
1956414 (4th Cir. 2006) D life life Ww D A G
US. v. Brooks, 2006 WL
1971628 (4th Cir. 2006) F id bed >»; A; &
US. v. Louis, 2006 WL
1971622 (4th Cir, 2006) D 108 w D A G
US. v. Hailey, 2006 WL
1920017 (4th Cir. 2006) F | 180-210) = 190 Ww D A G
USS. v. Statts, 2006 WL
1918956 (4th Cir. 2006) DF | SS) 8 w D A G

Who If
Type | Guide- Within | App.: Won? | Rev’d:
of line Above | Gov’t | Rev’d | Gov’t/ | Procd/
Case Name/Citation Crime | Range | Sentence] Below | Deft | Aff'd | Deft | Subst
U.S. v. Daniels, 2006 WL
1888823 (4th Cir. 2006) yt 360 W D | A G
U.S. v. Dailey, 2006 WL
1888880 (4th Cir. 2006) D,F 78 W D A G
US. v. Discua, 2006 WL
1888828 (4th Cir. 2006) T | 185-168] = 151 W D A G
U.S. v. Shull, 2006 WL
1880194 (4th Cir. 2006) T | 1521 21 W D A G
U.S. v. Sehen, 2006 WL
1867372 (4th Cir. 2006) » 121 W D A G
U.S. v. Marrs, 2006 WL
1868493 (4th Cir. 2006) D 41 Ww D A G
U.S. v. Gordy, 2006 WL
1877212 (4th Cir. 2006) » 135 W D A G
U.S. v. Goodline, 2006
WL 1877214 (4th Cir. F 77-96 92 W D A G

2006)

By¢

Who If
Type | Guide- Within | App.: Won? | Rev'd:
of line Above | Gov’t | Rev’d | Gov’t/ | Procd/
Case Name/Citation Crime | Range | Sentence} Below | Deft | Affd | Deft | Subst
U.S. v. Thomas, 2006 WL
1817100 (4th Cir. 2006) > |= = bed Ah Ga Bes
U.S. v. Washington, 2006
WL 1819026 (4th Cir. F 100-125 100 W D A G
2006)
U.S. v. Ollivierre, 2006
WL 1792739 (4th Cir. D 210-262 210 W D A G
2006)
U.S. v. Thomas, 2006 WL
1835942 (4th Cir. 2006) D 262-827 270 Ww. D A G
U.S. v. Young, 2006 WL
_1835971 (4th Cir. 2006) . — ” ” . " .
US. v. Adolphus, 2006
WL 1835948 (4th Cir. F 92-115 115 W D Ay G
2006)
!
U.S. v. Esparza, 2006 WL
- 1835964 (4th Cir. 2006) 7 i) 6 bad >}; 4] °¢

Who If
Type | Guide- Within | App.: Won? | Rev’d:
of line Above | Gov’t | Rev’d | Gov’t/ | Procd/
Case Name/Citation Crime | Range | Sentence] Below | Deft | Aff'd | Deft | Subst
US. v. Perry, 2006 WL
1835955 (4th Cir. 2006) ° ” ” ” A .
USS. v. Brown, 2006 WL
1766743 (4th Cir. 2006) bd sei 7 bad ° A .
U.S. v. Staine, 2006 WL
1766122 (4th Cir. 2006) D 262 WwW D A G
(defendant Joseph)
U.S. v. Benavides, 2006
WL 1766121 (4th Cir. I 33-41 33 W D A G
2006)
U.S. v. Florence, 2006
WL 1722492 (4th Cir. D 268 W D A G
2006)
U.S. v. Hodge, 2006 WL
1722496 (4th Cir. 2006) d ” nd >; 4; °%
U.S. v. Adams, 2006 WL F 92-115 115 W D A G

1667454 (4th Cir. 2006)

Who If
Type | Guide- Within | App.: Won? | Rev’d:
of line Above | Gov’t | Rev’d | Gov’t/ | Procd/
Case Name/Citation Crime | Range | Sentence} Below | Deft | Affd | Deft | Subst
U.S. v. Bustos-Serrano,
2006 WL 1676313 (4th D 168-210 175 W D A G
Cir. 2006)
USS. v. Nichols, 2006 WL
1676334 (4th Cir. 2006) OF | een) bed >»; 4; &
US. v. Briggs, 2006 WL
1642643 (4th Cir. 2006) 0 8 bed D>} A4 | &
U.S. v. De La Rosa, 2006
WL 1642630 (4th Cir. I 46-57 52 W D A G
2006)
U.S. v. Lowe, 2006 WL ‘
1642639 (4th Cir. 2006) » ® D}|A4 i} &
U.S. v. Barrett, 2006 WL a
1627266 (4th Cir. 2006) je 4 bed » A G
U.S. v. Timmons, 2006
WL 1627234 (4th Cir. D,F 235, 120 W D A G

2006)

BLS

1476922 (4th Cir. 2006)

Who If
Type | Guide- Within | App.: Won? | Rev’d:
of line Above | Gov’t | Rev’d | Gov’t/ | Procd/
Case Name/Citation Crime | Range | Sentence} Below | Deft | Affd | Deft | Subst
U.S. v. Manns, 2006 WL
1627271 (4th Cir. 2006) d e bed o>; 4) &
U.S. v. Christian, 2006
WL 1582706 (4th Cir. D 78 W D A G
_ 2006)
U.S. v. Hammonds, 2006
WL 1582710 (4th Cir. T 300 W D A G
2006)
U.S. v. Graves, 2006 WL
1541150 (4th Cir. 2006) o |e! & bed D | A G
U.S. v. Garcia-Uribe,
2006 WL 1476923 (4th D 135-168 160 W D A G
Cir. 2006)
U.S. v. Moore, 2006 WL .
1476890 (4th Cir. 2006) t ats bed >» | A G
US. v. Eaves, 2006 WL , 165 Ww D A G

1408323 (4th Cir. 2006)

Who If
Type | Guide- Within | App.: Won? | Rev’d:
of line Above | Gov’t | Rev’d | Gov’t/ | Procd/
Case Name/Citation Crime | Range | Sentence| Below | Deft | Affd | Deft | Subst
U.S. v. Owens, 2006 WL
1476915 (4th Cir. 2006) F 18 bad >| 8}
USS. v. Caldwell, 2006
WL 1476185 (4th Cir. F 78 W D A G
2006)
U.S. v. Billings, 2006 WL
1476872 (4th Cir. 2006) > | =o = bed >; 4;8S
US. v. Lepe-Rodriguez,
2006 WL 1476188 (4th I 63 W D A G
Cir. 2006)
USS. v. Fowler, 2006 WL
1476180 (4th Cir. 2006) . a bed ot Tico Wes
U.S. v. Harmer, 2006 WL
1444592 (4th Cir. 2006) D ate bed > }] 4] &
U.S. v. Dowell, 2006 WL D 188-235 210 W D A G

86S

Who If
Type | Guide- Within | App.: Won? | Rev'd:
of line Above | Gov’t | Rev’d | Gov’t/ | Procd/
Case Name/Citation Crime | Range | Sentence| Below eft | Affd | Deft | Subst
US. v. Thomas, 2006 WL
1373188 (4th Cir. 2006) Fo | Ste | OST Ww D A G
US. v. Bryant, 2006 WL
1328692 (4th Cir. 2006) DF es hed dD | A G
USS. v. Shatley, 448 F.3d
264 (4th Cir, 2006) 0 ss bad D A G
US. v. Miles, 2006 WL
1328690 (4th Cir. 2006) D | 25208) 25 Ww » A G
U.S. v. Harbin, 2006 WL
1308637 (4th Cir. 2006) » sadheen ned bed ° “ e
USS. v. Kirk, 2006 WL
1308640 (4th Cir, 2006) D ol bad D A G
U.S. v. Espinoza-Barreto,
2006 WL 1233935 (4th I 68 W D A G
Cir. 2006)

Who If
Type | Guide- Within | App.: Won? | Rev’d:
of line Above | Gov’t | Rev’d | Goy’t/ | Procd/
Case Name/Citation Crime | Range | Sentence} Below | Deft | Affd | Deft | Subst
U.S. v. Oglesbee, 2006
WL 1144512 (4th Cir. O life W D A G
2006)
U.S. v. Sanchez, 2006 WL
1144514 (4th Cir. 2006) a. orl & bed >»; A] &G
U.S. v. Wallace, 2006 WL ’
1144497 (4th Cir. 2006) D 262-327 262 W D A G
U.S. v. Navarette-
Beltran, 2006 WL I 57-71 71 WwW D A G
1144495 (4th Cir. 2006)
U.S. v. Wilfoung, 2006
WL 1144515 (4th Cir. D 210-262 210 W D A G
2006)
US. v. Rita, 2006 WL
- 1144508 (4th Cir, 2006) o ss bed >»; 4] &
US. v. Tyler, 2006 WL F 24-30 27 W D A G

1144520 (4th Cir. 2006)

B19

Who If
Type | Guide- Within | App.: Won? | Rev'd:
of line Above | Gov’t | Rev’d | Gov’t/ | Procd/
Case Name/Citation Crime | Range | Sentence| Below | Deft | Affd | Deft | Subst
US. v. Rivera-Magana,
2006 WL 1144511 (4th I 27-33 27 W D A G
Cir. 2006)
U.S. v.. Bowman, 2006
WL 1130901 (4th Cir. F 63 W D A G
2006)
USS. v. Leggett, 2006 WL
1130904 (4th Cir. 2006) v 1 bed D A G
U.S. v. Allen, 2006 WL
1114117 (4th Cir. 2006) F 108 bad D A G
U.S. v. Canady, 2006 WL
1112824 (4th Cir. 2006) D oan hed D | A G
U.S. v. Myers, 2006 WL ,
1068980 (4th Cir. 2006) 7 a) 7” a “ -
U.S. v. Allen, 2006 WL F 92-115 110 W D A C

1068979 (4th Cir. 2006)

Bc9

Who If
Type | Guide- Within | App.: Won? | Rev'd:
of line Above | Gov’t | Rev’d | Gov’t/ | Procd/
Case Name/Citation Crime | Range | Sentence} Below | Def't | Affd | Deft | Subst
U.S. v. Montes-Pineda,
445 F.3d 375 (4th Cir. I 46-57 46 W D A G
2006) 7
U.S. v. Belser, 2006 WL
1005011 (4th Cir. 2006) ° — ” ° a °
US. v. Burress, 2006 WL "
1005015 (4th Cir. 2006) d wend ” » A S
USS. v. Daniels, 2006 WL :
1005013 (4th Cir. 2006) ° - a a a .
U.S. v. Parker, 2006 WL
994442 (4th Cir. 2006) ar | -_ nd ” . °
U.S. v. Coaxum, 2006 WL
980796 (4th Cir. 2006) S 8 ad >; 4.; ©
U.S. v. Johnson, 445 F.3d
339 (4th Cir. 2006) D 97-121 97 W D A G
U.S. v. Divine, 2006 WL Fr 120 W D A G

908743 (4th Cir. 2006)

Who If
Type | Guide- Within | App.: Won? | Rev'd:
of line Above | Gov’t | Rev’d | Govy’t/ | Procd/
Case Name/Citation Crime | Range | Sentence! Below | Deft d | Deft | Subst
(4th Cir. 2006)(Apr. 6,
2006 4th Cir.) D aad bed » | A G
US. v. Fitch, 2006 WL
889580 (4th Cir. 2006) » « bed A G
U.S. v. Juarez-Huarte,
2006 WL 889470 (4th Cir. I 27-33 27 W D A G
_ 2006)
US. v. Battle, 2006 WL
889794 (4th Cir. 2006) O | 120-150) 150 bed D A G
U.S. v. Mason, 2006 WL
889573 (4th Cir. 2006) » 1s sad D A G
USS. v. Patton, 2006 WL ,
871290 (4th Cir. 2006) 7], er CS bed D A G
U.S. v. Monahan, 2006 ;
WL 870590 (4th Cir.2006)} * | 30-37 | 30 bed D A G
U.S. v. Moore, 2006 WL E 37 W D A G

871065 (4th Cir. 2006)

Bb9

Who If
Type | Guide- Within | App.: Won? | Rev’d:
of line Above | Goy’t | Rev’d | Gov’t/ | Procd/
Case Name/Citation Crime | Range | Sentence| Below | Deft | Affd | Deft | Subst
U.S. v. Dove, 2006 WL
870582 (4th Cir. 2006) D 84 W D A G
US. v. Green, 2006 WL
786816 (4th Cir. 2006) T 70 W D A G
US. v. Southern, 2006
WL 786812 (4th Cir.2006)| © 320 Ww D A G
U.S. v. Robinson, 2006
WL 775088 (4th Cir. 2006)] © 4 W D A G
U.S. v. Robinson, 2006
| WL 775088 (4th Cir.2006)| 18 W D A G
| U.S. v. Gutierrez-Piza,
2006 WL 751521 (4th Cir. I 30-37 37 W D A G
20006)
USS. v. Rivera-Cruz, 2006 ,
WL 694371 (4th Cir. 2006)} = 12 Ww D A
USS. v. Wallace, 2006 WL a
690967 (4th Cir. 2006) F 180 Ww D A G

Who If
Type | Guide- Within | App.: Won? | Rev’d:
of line Above | Gov’t | Rev’d | Gov’t/ | Procd/
Case Name/Citation Crime | Range | Sentence| Below | Deft | Affd | Deft | Subst
U.S. v. Rodriguez-Pineda,
2006 WL 678953 (4th Cir. I 71 W D A G
2006)
U.S. v. Lewis, 2006 WL
678932 (4th Cir. 2006) °o |= = bed >; 4 G
U.S. v. Keitt, 2006 WL 3
678946 (4th Cir. 2006) 0 bed D A G
U.S. v. MeNair, 2006 WL
678936 (4th Cir. 2006) F | Se] OS bed D A G
U.S. v. Gause, 2006 WL a
615908 (4th Cir. 2006) . id ° “ .
U.S. v. Bruton, 2006 WL
558990 (4th Cir. 2006) D,F bed D A G
U.S. v. Caldwell, 2006
WL 538097 (4th Cir. 2006) ° atoms - ” » . .
U.S. v. Smoot, 2006 WL D 121-151 136 Ww D A G

525496 (4th Cir, 2006)

Who If
Type | Guide- Within | App.: Won? | Rev'd:
of line Above | Gov’t | Rev’d | Gov’t/ | Procd/
Case Name/Citation Crime | Range | Sentence] Below | Deft | Aff'd | Deft | Subst
USS. v. Blythe, 2006 WL
487811 (4th Cir. 2006) 0 8 W D A | G
U.S. v. Williams, 2006
WL 487156 (4th Cir. 2006) F 48 W D A G
U.S. v. Krizanovic, 2006
WL 485515 (4th Cir. 2006)| © «“ bad D A | G
USS. v. Shultz, 2006 WL
435837 (4th Cir. 2006) 0 46 Ww D A G
U.S. v. Good, 2006 WL
448906 (4th Cir. 2006) F 235-293 252 W D A G
USS. v. Bennett, 2006 WL
372636 (4th Cir. 2006) F 30 Ww D A |; G
U.S. v. O’Briant, 2006 WL
372638 (4th Cir. 2006) t 27 bad dD; A&G
USS. v. Brown, 2006 WL
372639 (4th Cir. 2006) F l2 W D A | G

BLO

Who If
Type | Guide- Within | App.: Won? | Rev’d:
of line Above | Gov’t | Rev’d | Gov’t/ | Procd/
Case Name/Citation Crime | Range | Sentence} Below | Deft | Affd | Deft | Subst
U.S. v. Gaynor, 2006 WL
372622 (4th Cir. 2006) D | 410) % bad D A G
U.S. v. Haskins, 2006 WL
314465 (4th Cir. 2006) v,F a0 bed » A G
US. v. France, 2006 WL
285614 (4th Cir. 2006) » andes an bad D A G
U.S. v. Camara, 2006 WL
237092 (4th Cir, 2006) T | le 10 bed D A G
U.S. v. McDaniels, 2006
WL 2288717 (4th Cir. F 46 W D A G
2006)
U.S. v. Blanks, 2006 WL é
199479 (4th Cir. 2006) » = a a a
US. v. Haston, 2006 WL D 37 Ww D A G

177565 (4th Cir. 2006)

Who If
Type | Guide- Within | App.: Won? | Rev’d:
of line Above | Gov’t | Rev’d | Goy’t/ | Procd/
Case Name/Citation Crime | Range | Sentence] Below | Deft | Affd | Deft | Subst
U.S. v. Martinez-F lores,
2006 WL 189953 (4th Cir. F 24 W D A G
2006)
U.S. v. Guzman-
Balbuena, 2006 WL | 70 W D A G
172284 (4th Cir. 2006)
U.S. v. McClelland, 2006
WL 172250 (4th Cir. 2006) | 2 wi bed >; 4%
U.S. v. Cox, 2006 WL |
172289 (4th Cir. 2006) r |e; © ad >»; 4] &
U.S. v. Cunningham, 2006
WL 149066 (4th Cir. 2006) | © 186 bed »D;4]|&
U.S. v. Phillips, 2006 WL
26117 (4th Cir. 2006) D Ww D A G
(defendant Ziegler)
US. v. Fox, 2006 WL D 4] W D A ¢

15381 (4th Cir. 2006)

e69

Who If
Type | Guide- Within | App.: Won? | Rev’d:
of line Above | Gov’t | Rev’d | Gov’t/ | Procd/
Case Name/Citation Crime | Range | Sentence} Below | Deft | Affd | Deft | Subst
U.S. v. Dawkins, 2006
WL 10895 (4th Cir, 2006) | * “ bed D A G
USS. v. Barrett, 2006 WL
2992902 (4th Cir. 2006) F 120 Ww D A G
U.S. v. Dennis, 2006 WL
2918748 (4th Cir. 2006) D a6 bid af A G
U.S. v. Faulks, 2006 WL
2683300 (4th Cir. 2006) 0 vas ad » A G
U.S. v. Dinnall, 2006 WL :
1766122 (4th Cir. 2006) - = 7 ° . ”
U.S. v. Staine, 2006 WL :
1766122 (4th Cir. 2006) » life bed D A G
U.S. v. Hardnett, 2006
WL 1446284 (4th Cir. D 392 W D A G
2006)
U.S. v. Johnson, 2006 WL 0 30 W D A G

487329 (4th Cir. 2006)

BOL

Type | Guide- Within | App.: Won? | Rev'd:
of line Above | Gov’t | Rev’d | Gov’t/ | Procd/
Case Name/Citation Crime | Range Sentence Below | Deft | Affd | Deft | Subst
US. v. Dewalt, 2006 WL
149087 (4th Cir. 2006) ° ” wieris;s
U.S. v. Roy, 2006 WL
1307867 (4th Cir. 2006) ° - = ie} *.7 %

BIL

FIFTH CIRCUIT

Who If
Type | Guide- Within | App.: Won? | Rev’d:

| of line Above | Goy’t | Rev'd | Gov’t/ | Procd/
_Case Name/Citation Crime | Range | Sentence! Below | Deft | Affd | Deft | Subst

U.S. v. Corley, 2006 WL

3019195 (5th Cir. 2006) d A D>}; 4] &

U.S. v. Roach, 2006 WL

2861802 (5th Cir. 2006) od vedas ” a . A “

U.S. v. Angleton, 2006

WL 2828657 (5th Cir. T 60 A D A G

2006)

U.S. v. Day, 2006 WL
| 2692575 (5th Cir. 2006) T 120 A D A G

U.S. v. Weese, 2006 WL .

2590309 (Sth Cir. 2006) ° ” A le Bile Be

U.S. v. Shankin, 2006 WL :

2337947 (5th Cir. 2006) | ee © A D | A G

BOL

Who If
Type | Guide- Within | App.: Won? | Rev'd:
of line Above | Gov’t | Rev’d | Gov’t/ | Procd/
Case Name/Citation Crime | Range | Sentence| Below Pt d | Deft | Subst
US. v. Hoyos, 181
Fed. Appx. 479 (5th Cir.
2006) D 28 A D A G
U.S. v. Miranda-
Echartea, 188 Fed.Appx. D 70 A D A G
298 (5th Cir. 2006)
U.S. v. Rios-Joaquina, 188
Fed.Appx. 286 (5th Cir. I 60 A D A G
2006)
U.S. v. Collins, 188
Fed.Appx. 266 (5th Cir. F 51-63 72 A D A G
2006)
U.S. v. Clements, 188
Fed. Appx. 267 (5th Cir. T 57-71 84 A D A G

2006)

BEL

Who If
Type | Guide- Within | App.: Won? | Rev’d:
of line Above | Gov’t | Rev’d | Gov’t/ | Procd/
Case Name/Citation Crime | Range | Sentence] Below | Deft | Affd | Deft | Subst
U.S. v. Salinas, 187
Fed.Appx. 396 (5th Cir. D 135-168 240 A D A G
2006)
U.S. v. Jones, 182
Fed.Appx. 343 (5th Cir. O 24 A D A G
2006)
U.S. v. Howard, 179
Fed.Appx. 233 (5th Cir. F - -" 84 A D A G
2006)
U.S. v. Gentry, 178
Fed. Appx. 435 (5th Cir. T 151-188 240 A D A G
2006)
USS. v. Taylor, 179
Fed. Appx. 226 (5th Cir. F 77-96 120 A D A G

2006)

BPrL

Who If
Type | Guide- Within | App.: Won? | Rev'd:
of line Above | Gov’t | Rev’d | Gov’t/ | Procd/
Case Name/Citation Crime | Range | Sentence| Below | Deft | Affd | Deft | Subst
U.S. v. Thomas, 176
Fed.Appx. 625 (5th Cir. T 63-78 96 A D A G
2006)
U.S. v. Negron Cabrera,
174 Fed. Appx. 856 (5th O 114 \ D A G
_Cir, 2006)
U.S. v. Jones, 444 F.3d
430 (Sth Cir. 2006) S 46-57 120 A D A G
US. v. Reinhart, 442 F.3d : i
857 (5th Cir. 2006) S 121-151 235 A D A G
U.S. v. Smith, 440 F.3d .
_ 704 (5th Cir. 2006) J wast ” a ” a vs
U.S. v. Perez-Guzman,
2006 WL 3102582, 2006
WL 3102582 (5th Cir. I 49 A D A G
2006)

BGL

Who If
Type | Guide- Within | App.: Won? | Rev'd:
of line Above | Goy’t | Rev’d | Gov’t/ | Procd/
Case Name/Citation Crime | Range Sentence| Below Deft | Affd | Deft | Subst
| U.S. v. Guzman-Guzman,
2006 WL 3040637 (5th I 69 A D A G
Cir. 2006)
U.S. v. Verastegui, 2006
WL 2852399 (5th Cir. F,I 63-78 120 A D A G
2006)
USS. v. Satti, 179
Fed.Appx. 235 (5th Cir. F, I A D A G
2006)
US. v. Sterling, 180
Fed. Appx. 515 (5th Cir. F 120 A D ay G
2006)
U.S. v. Dean, 2006 WL
3005546 (5th Cir. 2006) 7 mat " ” . .
US. v. Delancey, 2006
WL 1996385 (5th Cir. F life A D R D P
2006)

BOL

572318 (5th Cir. 2006)

Who If
Type | Guide- Within | App.: Won? | Rev'd:
of line Above | Gov’t | Rev’d | Gov’t/ | Procd/
Case Name/Citation Crime | Range | Sentence| Below | Deft | Aff'd | Deft | Subst
U.S. v. Tzep-Majia, 461
F.3d 522 (5th Cir, 2006) ow) = 7 "i;
Unted States v. Johnson,
2006 WL 2277619 (5th D 151-188 144 B D A G
Cir. 2006)
U.S. v. Brasher, 2006 WL
2167708 (5th Cir. 2006) 7 1. os; © “ i 4;
U.S. v. McCuiston, 183
Fed. Appx. 474 (5th Cir. D B D A G
2006)
U.S. v. Daniel, 178 240)
| Fed.Appx. 345 (5th Cir. D amen 120 B D A G
2006)
ry max
U.S. v. Bell, 2006 WL D 120 B D A G

BLL

Who If
Type | Guide- Within | App.: Won? | Rev’d:
of line Above | Govy’t | Rev’d | Goy’t/ | Procd/
Case Name/Citation Crime | Range | Sentence| Below | Deft | Affd | Deft | Subst
US. v. Rodriguez-Ibarra,
180 Fed. Appx. 513 (5th I 41-51 36 B D A G
Cir. 2006)
U.S. v. Martinez, 178
Fed. Appx. 404 (5th Cir. D 78-98 68 B D A G
_ 2006)
USS. v. Roush, 466 F.3d
"380 (5th Cir, 2006) T 37-46 27 B D R G S
USS. v. Goldsmith, 2006
WL 2034468 (5th Cir. F 27-33 0.1 B G R G S
| 2006)
U.S. v. Armendariz, 451 60-71 60 plus
F.3d 352 (5th Cir. 2006) plus 3 z
S years | supervis| B G R G S
supervi a
sed
release
release

BBL

Who If
Type | Guide- Within | App.: Won? | Rev’d:
of line Above | Gov’t | Rev’d | Goy’t/ | Procd/
Case Name/Citation Crime | Range | Sente Below | Deft | Affd | Deft | Subst
U.S. v. Duhon, 440 F.3d ; probatio
711 (5th Cir. 2006) > |e; . =} *}% ’
US. v. Guidry, 462 F.3d
373 (Sth Cir. 2006) D 235-293 120 B G R G S
U.S. v. Johnson, 445 F.3d stat
793 (5th Cir. 2006) ; See = i a | 7 | 4 | CS
U.S. v. Ellis, 2006 WL
3102574 (5th Cir. 2006) d - bad ° . .
U.S. v. Watkins, 2006 WL
3311067 (5th Cir. 2006) a | Vw ie, * 2
U.S. v. Petisca, 2006 WL
3230274 (5th Cir. 2006) J bed ° A .
U.S. v. Horsting, 2006
WL 3193368 (5th Cir. O 100-125 100 W D AY G
2006)
U.S. v. Clark, 2006 WL S 5] Ww D A G

3102513 (Sth Cir. 2006)

C6L

Who If
Type | Guide- Within | App.: Won? | Rev'd:
of line Above | Gov’t | Rev’d | Gov’t/ | Procd/
Case Name/Citation Crime | Range | Sentence! Below | Deft | Affd | Deft | Subst
USS. v. Smith, 2006 WL
| 3068667 (5th Cir. 2006) D bed a A G
U.S. v. Washington, 2006
WL 2882703 (5th Cir.
2006) D, F 262 W D A G
U.S. v. Wishork, WL
2711968 (5th Cir. 2006) S 180 Ww D A G
U.S. v. Ibarra-Zelaya, 465
F.3d 5960 (5th Cir.2006) | ° bed D A G
U.S. v. Vanchaik-Molinar,
2006 WL 2474048 (5th I 51 W D A G
| Cir. 2006)
“US. v. Ray, 2006 WL
2482878 (5th Cir. 2006) D 136 Ww D A G
, US. v. Clark, 2006 WL F 120 Ww D A G

| 2418953 (5th Cir. 2006)

B08

Who If
Type | Guide- Within | App.: Won? | Rev’d:
of line Above | Gov’t | Rev’d | Gov’t/ | Procd/
Case Name/Citation Crime | Range | Sentence] Below | Deft | Aff'd | Deft | Subst
U.S. v. Underwood, 2006
WL 2460894 (5th Cir. D W D A G
2006)
USS. v. Aguirre-Villa, 460
F.3d 681 (5th Cir, 2006) EE Witeicnslt Wide bed »;4//;]°8
U.S. v. Jones, 2006 WL
2350166 (5th Cir. 2006) d es bed >; 47;{&
U.S. v. Larry, 2006 WL
2337543 (5th Cir. 2006) od ¥ >; 4;8
U.S. v. El-Kareh, 2006
WL 2311112 (5th Cir. T 48 W D A G
2006)
U.S. v. Llanas-Garcia,
2006 WL 209118 (5th Cir. O 51 W D A G

2006)

B18

Who If
Type | Guide- Within | App.: Won? | Rev’d:
of line Above | Gov’t | Rev’d | Gov’t/ | Procd/
Case Name/Citation Crime | Range | Sentence| Below | Deft d | Deft | Subst
U.S. v. Santoyo-Garcia,
2006 WL 2061833 (5th I 41 W D A G
Cir. 2006)
U.S. v. Robinson, 2006
WL 1983201 (5th Cir. F 262 W D A G
2006)
U.S. v. Poore, 188
Fed. Appx. 245 (5th Cir. D 262 W D A G
2006)
US. v. Bell, 187
Fed.Appx. 418 (5th Cir. D 240 W D A G
2006)
U.S. v. Candia, 454 F.3d , ‘
468 (5th Cir. 2006) ” on _ - » as .
U.S. v. Medina-Argueta,
454 F.3d 479 (5th Cir. I 30-37 37 W D A G

2006)

Who If
Type | Guide- Within | App.: Won? | Rev'd:
of line Above | Gov’t | Rev’d | Gov’t/ | Procd/
Case Name/Citation Crime | Range | Sentence} Below | Deft | Aff'd | Deft | Subst
USS. v. Ulloa, 187
Fed. Appx. 367 (5th Cir. D 125 W D A G
2006)
U.S. v. Lopez-Garces, 186
Fed. Appx. 454 (5th Cir.
2006) I 50 W D A G
U.S. v. Corona-Majatca,
186 Fed. Appx. 436 (5th I W D A G
Cir. 2006) .
U.S. v. Salazar, 183
Fed.Appx. 462 (5th Cir. D W D A G
2006)
U.S. v. Kirkham, 182 120, 87
Fed.Appx. 378 (5th Cir. (two
2006) t defenda WwW D A G
nts)

Cir. 2006)

Who If
Type | Guide- Within | App.: Won? | Rev'd:
of | line Above | Gov’t | Rev’d | Gov’t/ | Procd/
| Case Name/Citation Crime | Range | Sentence| Below | Deft | Aff'd | Deft | Subst
U.S. v. Luevano-Orozco,
182 Fed. Appx. 376 (5th
Cir. 2006) I 120 W D A G
U.S. v. Brown, 180
Fed.Appx. 545 (5th Cir. D WwW D A G
2006)
US. v. Aburto, 179
Fed. Appx. 915 (5th Cir. T W D A G
2006)
USS. v. Garcia, 173
Fed.Appx. 358 (5th Cir. D W D A G
2006)
U.S. v. Palacios-Mungia,
178 Fed. Appx. 347 (5th I 57-71 57 WwW D A G

ers

2006)

Who If
Type | Guide- Within | App.: Won? | Rev'd:
of line Above | Gov’t | Rev’d | Gov’t/ | Procd/
Case Name/Citation Crime | Range | Sentence| Below | Deft | Affd | Deft | Subst
USS. v. Caldwell, 448 F.3d
987 (5th Cir. 2006) , | eel & nd >} 4] &
U.S. v. Guzman-
Resendez, 2006 WL D 151 W D A G
1050511 (5th Cir. 2006)
U.S. v. Allison, 447 F.3d life term
402 (5th Cir. 2006) of
S supervis W D A G
ed
release
| U.S. v. Neal, 176
Fed.Appx. 542 (5th Cir. F 115 W D A G
2006)
U.S. v. Gant, 176
Fed. Appx. 520 (5th Cir. D W D A G

2006)

Who If
Type | Guide- Within | App.: Won? | Rev’d:
of line Above | Gov’t | Rev’d | Gov’t/ | Procd/
Case Name/Citation Crime | Range | Sentence| Below | Deft | Affd | Deft | Subst
U.S. v. Williams, 176
Fed.Appx. 449 (5th Cir. D 37 W D A G
2006)
U.S. v. McDonald, 176
Fed.Appx. 43 (5th Cir. T 37-46 37 W D A G
2006)
U.S. v. Hollins, 174
Fed. Appx. 855 (5th Cir. S WwW D A G
2006)
U.S. v. Reyes, 172
Fed.Appx. 626 (5th Cir. D 12 W D A G
2006)
US. v. Meraz, 174
Fed.Appx. 196 (5th Cir. I W D A G

Who If
Type | Guide- Within | App.: Won? | Rev'd:
of line Above | Gov’t | Rev’d | Gov’t/ | Procd/
Case Name/Citation Crim

[Text truncated at 120,000 characters. The full text is on the page linked above.]

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0367%3A16. Public record. Not legal advice.