The Florida Bar
www.floridabar.org
The Florida Bar Journal
January, 2017 Volume 91, No. 1
Booker: The First 10 Years in Florida

by Roger B. Handberg

Page 14



In 1984, the Sentencing Reform Act established the U.S. Sentencing Commission. One of the primary purposes of the commission was to develop sentencing policies and practices that would “provide certainty and fairness in meeting the purposes of sentencing” and that would “avoid[] unwarranted disparities among defendants with similar records who have been found guilty of similar criminal conduct while maintaining sufficient flexibility to permit individualized sentences[.]”1 To achieve those results, the commission was empowered to enact guidelines, and U.S. district courts were required, with limited exceptions, to impose sentences within the range determined by those guidelines. 2

All of that changed in 2005 with the decision by the U.S. Supreme Court in United States v. Booker, 543 U.S. 220 (2005). In that case, the Supreme Court held that the Sixth Amendment was “violated by the imposition of an enhanced sentence under the U.S. Sentencing Guidelines based on the sentencing judge’s determination of a fact (other than a prior conviction) that was not found by the jury or admitted by the defendant.”3 To remedy that situation, the Supreme Court severed and excised from the act the provisions that made the federal sentencing guidelines mandatory. By doing that, the sentencing guidelines became “effectively advisory.”4

Booker caused a sea change in federal criminal sentencings. Although district courts must determine the applicable guidelines range and consider that as a factor in sentencing, district courts now have substantial discretion to impose sentences that vary, either upward or downward, from the advisory guidelines range based on a consideration of several statutory factors. Those factors include the nature and circumstances of the offense; the history and characteristics of the defendant; the kinds of sentences available; pertinent policy statements of the Sentencing Commission; the need to provide restitution; the applicable sentencing guidelines range; the need to avoid unwarranted sentencing disparities; and the need for the sentence to reflect the seriousness of the offense, promote respect for the law and just punishment, deter criminal conduct, protect the public from further crimes, and provide the defendant with needed training, care, and treatment.5

Ten years have passed since Booker. In that time period, district courts in Florida have shown an increasing willingness to impose sentences that vary from the advisory guidelines range. This article provides an overview of the standards that apply to federal criminal sentencings and a statistical analysis of the sentences that have been imposed by Florida district courts post-Booker.

Overview of the Sentencing Guidelines
In a typical year, over 90 percent of federal defendants plead guilty or are convicted at trial.6 After one of those events occurs, the sentencing process begins. As part of that process, the U.S. Probation Office prepares a presentence investigation report (PSR).7 The PSR includes a summary of the defendant’s criminal conduct, as well as information about the defendant’s personal characteristics (i.e., family history, criminal history, employment, drug use, etc.).8 One purpose of the PSR is to determine the defendant’s advisory guidelines range. Two components are used to make that determination.

First, the PSR calculates the defendant’s offense level. The federal sentencing guidelines contain different sections that apply to different criminal violations. For example, there are separate guideline provisions that apply to drug, immigration, firearm, fraud, and child exploitation offenses.9 Each guideline specifies a base offense level, plus additional enhancements that, if applicable, increase a defendant’s offense level. Other portions of the sentencing guidelines set forth additional enhancements, such as leadership and abuse of a position of trust.10 The sentencing guidelines also provide for various downward adjustments, such as reductions for accepting responsibility or playing a minor role in an offense.11 Once all of the additions and subtractions are made, each defendant ends up with an offense level of somewhere between one and 43.

The second component that is used in determining a defendant’s advisory guidelines range is a defendant’s criminal history category. As part of the determination of a defendant’s criminal history category, the PSR sets forth each conviction and assesses a certain number of points for each qualifying conviction.12 Depending on the number of criminal history points, the PSR places a defendant into one of six criminal history categories (I through VI).

Once the offense level and criminal history category are determined, the defendant’s advisory guidelines range is calculated in accordance with a chart. The chart consists of a grid. On the left side, the chart lists offense levels from 1 to 43. On the top, the chart lists criminal history categories going from I to VI. In general, the greater the offense level or criminal history category, the greater a defendant’s advisory guidelines range.

Principles Applicable to Federal Criminal Sentencings
Prior to Booker, the act required a district court, with certain limited exceptions, to impose a sentence within the applicable guidelines range. This limited much of the advocacy at sentencing to presentations regarding application of possible sentencing guidelines enhancements or reductions. After those enhancements or reductions were decided, the resulting guidelines range provided a limited range (from six months at the lowest levels to 81 months at the highest levels) within which a district court was required to sentence a defendant.

Booker changed this focus. A defendant’s advisory guidelines range is still determined, but a district court is no longer required to sentence a defendant within that range. Instead, a district court may vary upward or downward based upon application of the factors set forth in 18 U.S.C. §3553. Those factors include the nature and circumstances of the offense, the defendant’s history and characteristics, the kinds of sentences available, the applicable sentencing guidelines range, pertinent policy statements of the Sentencing Commission, the need to provide restitution to any victims, and the need to avoid unwarranted sentencing disparities.13 To arrive at an appropriate sentence, a district court must consider all of the applicable §3553(a) factors14 and impose a sentence that will adequately “reflect the seriousness of the offense,” “promote respect for the law,” “provide just punishment,” “afford adequate deterrence,” “protect the public from further crimes of the defendant,” and provide the defendant with any needed training and treatment.15

Since Booker, district courts have used their discretion and imposed sentences above and below the advisory guidelines range. When challenged on appeal, the 11th Circuit Court of Appeals has largely upheld those sentences. In so doing, the 11th Circuit recognizes that district courts are afforded due deference when they make sentencing decisions, because “they have great advantages over appellate courts when it comes to sentencing.”16 In particular, district courts are in a “superior position to find facts and judge their import under §3553(a) in the individual case,” due to the fact that they “see[] and hear[] the evidence, make[] credibility determinations, ha[ve] full knowledge of the facts and gain[] insights not conveyed by the record.”17

For these reasons, the 11th Circuit has held that decisions about the assignment of weight given to each sentencing factor are “committed to the sound discretion of the district court.”18 The 11th Circuit has “not attempted to specify any particular weight that should be given to the guidelines range,”19 and has rejected “any across-the-board prescription regarding the appropriate deference to give the [g]uidelines.”20 A district court “is permitted to attach ‘great weight’ to one factor over others,”21 and the advisory guidelines range is but one of many considerations that a district court must take into account in exercising its sentencing discretion.22

The end result is that “district courts enjoy substantial discretion in sentencing regardless of whether they sentence above or below the guidelines.”23 “[I]f the sentence is outside the [g]uidelines range, the [reviewing] court may not apply a presumption of unreasonableness.”24 As the 11th Circuit explained, “[i]f we did presume an out-of-guidelines-range sentence was unreasonable, the advisory guidelines would not be advisory.”25 In its review, the 11th Circuit may “consider the extent of the deviation, but must give due deference to the district court’s decision that the §3553(a) factors, on a whole, justify the extent of the variance. The fact that the appellate court might reasonably have concluded that a different sentence was appropriate is insufficient to justify reversal of the district court.”26

Applying those principles, the 11th Circuit has upheld sentences of district courts that were below the advisory guideline range (Figure A). The 11th Circuit has also upheld sentences that were above the guidelines range (Figure B).

In sum, the discretion provided to a district court in sentencing is substantial. A district court abuses its discretion only when it “(1) fails to afford consideration to relevant factors that were due significant weight, (2) gives significant weight to an improper or irrelevant factor, or (3) commits a clear error of judgment in considering the proper factors.”34 Because that infrequently happens, “it is only the rare sentence that will be substantively unreasonable.”35

Setting a Baseline
The Sentencing Commission collects and publishes on its website sentencing statistics in a variety of formats.36 In some cases, the statistics are organized by judicial district. In others, they are compiled by offense. The commission collects the statistics on an annual basis, using a fiscal year that begins October 1 and ends September 30.

This article summarizes the statistics for the three federal districts in Florida post-Booker. To provide some context for those statistics, a baseline is useful.

Prior to Booker, the Supreme Court issued a decision in Blakely v. Washington, 542 U.S. 296 (2004), that raised the serious possibility that the federal sentencing guidelines violated the Sixth Amendment. Blakely was decided on June 24, 2004. Between the 2004 Blakely decision and the 2005 Booker decision, different courts reached different results as to the constitutionality of the federal sentencing guidelines. The charging practices of U.S. attorney’s offices also evidenced this period of uncertainty. In some cases, prosecutors sought to include sentencing enhancements in indictments, so that there would be no argument as to whether the indictment properly charged the enhancements.

The period of time selected to serve as the baseline for this article is the time period closest to the decision in Booker not impacted by Blakely — October 1, 2003, to June 24, 2004.

During the baseline time period, the three Florida district courts imposed guidelines sentences in the vast majority of cases. The Northern District of Florida imposed the lowest percentage of guidelines sentences at 64.8 percent, while the Southern District of Florida imposed the highest percent at 83.2 percent.37 The Middle District of Florida fell in between, with guidelines sentences in 71.4 percent of its cases.38

The most prevalent reason for a reduced sentence in the three federal districts was the filing of a substantial assistance motion. In general, the United States files a motion for substantial assistance to recognize a defendant’s cooperation with authorities that has aided in the criminal investigation or prosecution of another person.39 When such a motion is filed, a district court may grant the motion and impose a lower sentence than otherwise would be the case. In the baseline time period, the Northern District of Florida had the highest percentage of substantial assistance motions at 31.8 percent.40 The Middle District of Florida had such motions in 24 percent of its cases, while the Southern District of Florida had the lowest percentage of such filings at 13.9 percent.41

Combined, guidelines sentences and sentences that involved a substantial assistance motion accounted for more than 95 percent of the sentences in the baseline time period. Prior to Booker, it was a rare event for a defendant to receive any other type of sentence.

Statistical Review of All Cases
In the 10 years after Booker, the number of guidelines sentences in the Florida federal district courts decreased. This trend has two components.

First, in two of the districts, there was an immediate drop in the number of guidelines sentences from the baseline time period to the first full year when Booker was in effect, which was fiscal year 2006 (October 1, 2005, to September 30, 2006).42 The number of Middle District of Florida guidelines sentences decreased from 71.4 percent in the baseline time period to 64.8 percent in 2006, while the Southern District of Florida experienced an almost nine percentage point drop, from 83.2 percent in the baseline time period to 74.4 percent in 2006.43 By contrast, the number of guidelines sentences increased in the Northern District of Florida, from 64.8 percent in the baseline time period to 71 percent in 2006.44 This increase is probably best explained by the fact that there was a nine percentage point reduction in the number of cases involving the filing of a substantial assistance motion.

Second, after 2006, the number of guidelines sentences decreased in each of the three districts. From 2006 to 2015, each federal district experienced at least a 14 percentage point drop in the number of guidelines sentences. The Northern District of Florida had an almost 23 percentage point decrease, from 71 percent of its cases receiving guidelines sentences in 2006 to 48.6 percent in 2015.45 The Middle District of Florida experienced a similar drop of about 20 percentage points, from 64.8 percent in 2006 to 44.6 percent in 2015.46 The Southern District of Florida had the smallest drop of about 14 percentage points, from 74.4 percent in 2006 to 59.9 percent in 2015.47

The drop in the percentage of guidelines sentences is not limited to the three Florida federal districts. Nationwide, the percentage of guideline sentences decreased almost 25 percentage points, from 72.2 percent in the baseline time period to 47.3 percent in 2015.48 The trend is similar in other 11th Circuit districts, with a drop of over 20 percentage points from 74.7 percent in the baseline time period to 53.6 percent in 2015.49 The overall result is a nationwide downward trend in the number of guideline sentences. Figure 1 depicts the overall downward trend lines for the three Florida federal districts courts, as well as the national and 11th Circuit downward trend lines.

As the number of guidelines sentences decreased, the number of sentences where district courts have used their Booker discretion to vary below the guidelines increased. Prior to Booker, no below-guidelines variances existed. In the first full year after Booker (fiscal year 2006), the number of below-guidelines variances ranged from 4.1 percent in the Northern District of Florida, to 7.1 percent in the Southern District of Florida, with the Middle District of Florida at 6.5 percent.50 By 2015, the number of such variances increased in each district, with the Middle District at 28.4 percent, and the Southern District and Northern District at 24.3 percent and 26.9 percent, respectively.51

Similar to the downward trend in the number of guidelines sentences, the increase in the number of below-guidelines variances is not limited to the three Florida federal district courts. Nationwide, the percentage of below-guidelines variance increased from 6 percent in 2006 to 17.6 percent 2015.52 The trend is similar in the 11th Circuit districts, with an increase from 6.6 percent in 2006 to 22.7 percent in 2015.53 Figure 2 depicts the overall upward trend lines for the three federal districts, as well as the upward trend lines for the nation and the 11th Circuit.

The one area that remained more consistent is the percentage of cases when a district court imposed a sentence due to the filing of a substantial assistance motion. The Northern District of Florida experienced a drop in the number of such sentences from the baseline time period to 2006, from 31.8 percent to 22 percent.54 After that, the number of such sentences fluctuated less and dropped only to 18.4 percent in 2015. 55 By contrast, the other two districts did not experience the same immediate drop, but experienced a smaller overall decrease of approximately seven percentage points from the baseline time period to 2015.56 Figure 3 depicts the trend lines for the three Florida federal districts, as well as the nationwide and 11th Circuit trend lines.

Although Booker permits imposition of sentences above the advisory guidelines range, such above-guidelines variances occur infrequently. In the three Florida federal districts, the percentages of such sentences is typically 1.5 percent or less. In fact, on only six occasions was the percentage of above-guidelines sentences above that amount: 2014 and 2015 in the Northern District (1.6 percent and 2.0 percent, respectively); 2010, 2011, and 2015 in the Middle District (1.7 percent, 2.2 percent, and 1.7 percent, respectively); and 2015 in the Southern District (1.6 percent).57 Those percentages are similar to those seen across the nation (ranging from 0.6 percent to 1.5 percent) and in the 11th Circuit (ranging from 0.9 percent to 1.8 percent).

Statistical Review of Fraud, Drug Trafficking, and Firearms Cases
In addition to providing data on all of the cases within the three Florida federal districts, the commission’s data categorizes the cases by type of violation. Three of the most commonly prosecuted cases are fraud, drug trafficking, and firearms. This section reviews the data for those types of prosecutions in the three Florida federal district courts.

With respect to each type of prosecution, the overall trends are similar. Post-Booker, the total number of guidelines sentences for each type of prosecution decreased, while the number of below-guidelines variances increased. At least for fraud and drug trafficking cases, the number of cases that involved a substantial assistance motion remained more consistent.

Fraud cases experienced large drops in the number of guidelines sentences. In the baseline time period, the percentage of fraud cases receiving guidelines sentences was 75 percent in the Northern District, 69.7 percent in the Middle District, and 77.3 percent in the Southern District.58 By 2015, those percentages decreased 39 percentage points to 36 percent in the Northern District, nearly 33 percentage points to 36.9 percent in the Middle District, and more than 25 percentage points to 52.2 percent in the Southern District.59 These results mirrored those that were seen in district courts across the nation and in the 11th Circuit. Figure 4 depicts the overall downward trend lines.

As the number of guidelines sentences in fraud cases decreased, the number of below-guidelines variances was increasing. After Booker, the percentage of fraud cases receiving such sentences jumped from 0 percent in the baseline time period to the following percentages in 2006: 12.5 percent in the Northern District, 9.8 percent in the Middle District, and 6.9 percent in the Southern District.60 By 2015, those percentages increased almost 30 percentage points to 42 percent in the Northern District, more than 23 percentage points to 32.2 percent in the Middle District, and more than 20 percentage points to 31.7 percent in the Southern District.61 Again, this trend mirrored trends in district courts across the nation and in the 11th Circuit. Figure 5 depicts the overall upward trend lines.

With respect to the number of sentences in fraud cases that involve a substantial assistance motion, the three Florida federal districts experienced some fluctuations. In some years, the number of such sentences rises, while in other years they fall. The overall trend, however, is that there are still a significant number of sentences in fraud cases that involve the filing of a substantial assistance motion. Figure 6 depicts the overall trend lines.

The trends are similar with drug trafficking cases. In the baseline time period, the percentage of drug trafficking cases receiving guidelines sentences was 47.8 percent in the Northern District, 63.2 percent in the Middle District, and 80.6 percent in the Southern District.62 By 2015, those percentages had dropped more than 9 percentage points to 38.6 percent in the Northern District, almost 23 percentage points to 40.4 percent in the Middle District, and more than 32 percentage points to 48.2 percent in the Southern District.63 Federal district courts nationwide and the 11th Circuit experienced similar decreases. Figure 7 depicts the overall downward trend lines.

Like fraud prosecutions, there was a corresponding increase in the number of below-guidelines variances in drug trafficking cases. In 2006, the percentage of cases that received such sentences was 1.8 percent in the Northern District, 5.5 percent in the Middle District, and 6.7 percent in the Southern District.64 By 2015, those percentages increased to 17.5 percent in the Northern District, 22.8 percent in the Middle District, and 29.7 percent in the Southern District.65 Federal district courts nationwide and the 11th Circuit experienced similar increases. Figure 8 depicts the overall upward trend lines.

The number of sentences that involved a substantial assistance motion, however, remained fairly constant in each district, with the Northern District and Middle District routinely having over a third of its drug trafficking sentences involving such a motion. For those two districts, the number of drug trafficking cases that involved a substantial assistance motion was greater than the number of below-guidelines variances in each year from 2006 to 2015. Figure 9 depicts the overall trend lines.

Like fraud and drug trafficking cases, the percentage of firearms cases that received guidelines sentences dropped over the past 10 years. In the baseline time period, the percentage of firearms cases that received guidelines sentences was 81.1 percent in the Northern District, 80.2 percent in the Middle District, and 94.1 percent in the Southern District.66 By 2015, those percentages dropped over 22 percentage points in the Northern District to 58.9 percent, nearly 40 percentage points in the Middle District to 40.9 percent, and over 37 percentage points in the Southern District to 56.3 percent.67 These decreases are similar to those seen in district courts nationwide and in the 11th Circuit. Figure 10 depicts the overall downward trend lines.

The reduction in the percentage of guidelines sentences in firearms cases was coupled with an increase in the number of below-guidelines variances. In 2006, the number of below-guidelines variances was eight percent or less in each of the three Florida federal district courts.68 By 2015, the percentage of below-guidelines sentences increased to 19.6 percent in the Northern District, 35.1 percent in the Middle District, and 25.3 percent in the Southern District.69 District courts nationwide and the 11th Circuit experienced similar increases. Figure 11 depicts the overall upward trend lines.

As for the number of sentences that involve the filing of a substantial assistance motion, the Southern District noted a lower percentage of substantial assistance motions than the Northern District and Middle District. The trend lines for the Middle District and Southern District, however, fluctuated more than in fraud and drug trafficking cases (see Figure 12).

In terms of the percentages of above-guidelines variances, the rates of such sentences differed based on type of case, with drug trafficking cases having the lowest percentage of above-guidelines variances, and fraud and firearms cases having higher percentages. The percentages of such variances, however, are lower than the three other types of sentences discussed in this section (i.e., guidelines sentences, below-guidelines variances, and cases that involve substantial assistance motions). For drug trafficking cases, there were only two times when a federal district court in Florida had above-guidelines variances in more than 1 percent of its cases (1.6 percent in 2010 and 1.8 percent in 2015 for the Northern District).70 During that same time period, the percentages of such variances in fraud cases ranged from 0 percent to 6.3 percent in the Northern District, 0 percent to 3.4 percent in the Middle District, and 0.2 percent to 2.2 percent in the Southern District. Firearms cases saw similar ranges: 0 percent to 6.1 percent in the Northern District, 0 percent to 2.9 percent in the Middle District, and .6 percent to 5.7 percent in the Southern District.

Conclusion
In the 10 years after Booker, the number of guidelines sentences decreased, while the number of below-guideline variances increased. These trends are not limited to the three Florida federal districts, but are seen in the 11th Circuit and nationwide. The end result is that district courts still impose more guidelines sentences than any other type of sentence, but below-guidelines variances have increased to about a quarter of all sentences.

Criminal practitioners should take two points from these trends. First, the guidelines are still relevant in sentencing. In many cases, district courts sentence defendants within the applicable guidelines range. At a minimum, district courts have to consider the sentencing guidelines in fashioning a sentence.

Second, the specific facts of each case matter. The statistics discussed in this article only show the overall trends in sentencing. They do not answer the question of what the sentence should be in any particular case. Because of Booker and the cases that have followed it, district courts have the discretion to sentence defendants outside the applicable guidelines range by applying the statutory factors set forth in §3553(a). As shown in this article, district courts have demonstrated an increasing willingness to exercise that discretion and to sentence defendants to below-guidelines variances based on the specific facts of their cases.

Criminal practitioners should be mindful of the statistical trends discussed in this article and the need to address both the sentencing guidelines and the statutory factors in their sentencing presentations. Effective advocacy requires a focus on both of those aspects in any sentencing in federal court.


1 28 U.S.C. §991(b)(1).

2 18 U.S.C. §3553(b)(1); 28 U.S.C. §994(a)(1).

3 Booker, 543 U.S. at 245.

4 Id.

5 18 U.S.C. §3553(a)(1)-(7).

6 U.S. Sentencing Commission, 2015 Sourcebook of Federal Sentencing Statistics, Figure C (percentages of guilty pleas for fiscal year 2011 to fiscal year 2015 ranged from 96.9 percent to 97.1 percent).

7 18 U.S.C. §3552; Fed. R. Crim. P. 32.

8 Fed. R. Crim. P. 32(d).

9 See, e.g., U.S.S.G. §§2B1.1 (fraud), 2D1.1 (drugs), 2G2.1 (sexual exploitation of a minor), 2K2.1 (firearms), 2L1.1 (immigration).

10 See, e.g., U.S.S.G. §§3B1.1 (aggravating role), 3B1.3 (abuse of position of trust or use of special skill).

11 See, e.g., U.S.S.G. §§3B1.2 (mitigating role), 3E1.1 (acceptance of responsibility).

12 See, e.g., U.S.S.G. §§4A.1.1 (setting forth number of points per conviction), 4A1.2 (providing definitions and instructions for computing criminal history).

13 18 U.S.C. §3553(a).

14 United States v. Shaw, 560 F.3d 1230, 1237 (11th Cir. 2009).

15 18 U.S.C. §3553(a)(2).

16 United States v. Rosales-Bruno, 789 F.3d 1249, 1255 (11th Cir. 2015).

17 Id. (alterations and citations omitted).

18 United States v. Williams, 526 F.3d 1312, 1322 (11th Cir. 2008) (internal quotation marks omitted).

19 Id.

20 United States v. Hunt, 459 F.3d 1180, 1184 (11th Cir. 2006).

21 Shaw, 560 F.3d at 1237 (quoting Gall v. United States, 552 U.S. 38, 57 (2007)); see also United States v. Irey, 612 F.3d 1160, 1217 (11th Cir. 2010) (en banc) (internal quotation marks omitted) (“[S]ubject to review for reasonableness, sentencing courts may determine, on a case-by-case basis, the weight to give the [g]uidelines, so long as that determination is made with reference to the remaining section 3553(a) factors that the court must also consider in calculating the defendant’s sentence.”). I was not the prosecutor on this case for the original sentencing. I did handle the re-sentencing after the case was remanded. My role was limited to filing a response to the defendant’s request to present evidence of post-sentencing conduct at his re-sentencing.

22 See Irey, 612 F.3d at 1217.

23 See Rosales-Bruno, 789 F.3d at 1271.

24 Gall, 552 U.S. at 51.

25 Rosales-Bruno, 789 F.3d at 1253–54.

26 Gall, 552 U.S. at 51.

27 In Rosales-Bruno, the 11th Circuit included an appendix that compiled sentencing data on the number of upward variances vacated as being unreasonable (Appendix A) and a second appendix that identified the 12 cases in which the 11th Circuit vacated downward variances as being substantively unreasonable (Appendix B). Further details about those downward variances are set forth in endnotes 29 to 33. One of the cases (McQueen) had two defendants whose downward variances were reversed.

28 See, e.g., United States v. Hayes, 762 F.3d 1300 (11th Cir. 2014) (public corruption scheme); United States v. Hooper, 566 F. App’x 771 (11th Cir. 2014) (police officer who punched a handcuffed, unresisting arrestee); United States v. Kuhlman, 711 F.3d 1321 (11th Cir. 2013) ($3 million fraud); United States v. Livesay, 587 F.3d 1274 (11th Cir. 2009) (senior accounting manager involved in a nine-year fraud scheme that resulted in $1.4 billion in losses); United States v. Hendrick, 324 F. App’x 867 (11th Cir. 2009) (convictions for conspiracy, obstruction, and witness tampering); United States v. McVay, 294 F. App’x 488 (11th Cir. 2008) (treasurer involved in a nine-year fraud scheme that resulted in $1.4 billion in losses); United States v. Pugh, 515 F.3d 1179 (11th Cir. 2008) (distribution of child pornography).

29 United States v. Martin, 455 F.3d 1227 (11th Cir. 2006) (seven days in detention for a defendant involved in a nine-year fraud scheme that resulted in $1.4 billion in losses); United States v. Crisp, 454 F.3d 1285 (11th Cir. 2006) (five hours in custody for a defendant who defrauded a bank out of almost $500,000).

30 Irey, 612 F.3d at 1217.

31 United States v. Jayyousi, 657 F.3d 1085 (11th Cir. 2011) (defendant provided material support to Islamic terrorist organizations and was also convicted of conspiracy to murder persons overseas).

32 United States v. McQueen, 727 F.3d 1144 (11th Cir. 2013) (corrections officers who beat underage inmates and obstructed an investigation into their conduct).

33 See United States v. Valdes, 500 F.3d 1291, 1292 (11th Cir. 2007) (vacating a 108-month upward variance sentence for bank fraud where the guidelines range was 41 to 51 months); United States v. Lopez, 343 F. App’x 484, 485-86 (11th Cir. 2009) (vacating a 60-month upward variance sentence for smuggling unlawful aliens into the country where the guidelines range was 33 to 41 months); United States v. Gardner, 255 F. App’x 475, 476-77 (11th Cir. 2007) (vacating as unreasonable a sentence for misprision of a felony that was 36 months, where the guidelines range was 10 to 16 months).

34 Irey, 612 F.3d at 1189 (internal quotation marks omitted).

35 McQueen, 727 F.3d at 1156.

36 The statistics cited in this article are found on the website of the U.S. Sentencing Commission. For each fiscal year, the commission publishes a “Statistical Information Packet” for each court of appeals and federal district court. U.S. Sentencing Commission, Data Reports by Geography, http://www.ussc.gov/research/data-reports/geography (the packets used for this article). The statistics in this article are contained in the packets for the 11th Circuit and the Florida federal district courts for the baseline time period and fiscal years 2006 to 2015. Due to the number of packets that were used to generate each figure and chart in this article, citations will not be provided for the figures and charts. Citations will be provided, however, for the statistics included in the text of article. A shortened citation format will be used. For example, “U.S. Sentencing Commission, Statistical Information Packet, Fiscal Year 2006, Middle District of Florida” will be referred to as “SIP FY 2006, MDFL.”

37 SIP FY 2004, 11th Circuit at 15.

38 Id.

39 U.S.S.G. §5K1.1.

40 SIP FY 2004, 11th Circuit at 15.

41 Id.

42 All of the years referenced in this article are fiscal years. By way of example, a reference to 2015 covers the time period from October 1, 2014, to September 30, 2015.

43 SIP FY 2006, 11th Circuit at 16; SIP FY 2004, 11th Circuit at 15.

44 SIP FY 2006, 11th Circuit at 16; SIP FY 2004, 11th Circuit at 15.

45 SIP FY 2006, 11th Circuit at 16; SIP FY 2015, 11th Circuit at 16.

46 SIP FY 2015, 11th Circuit at 16; SIP FY 2006, 11th Circuit at 16.

47 SIP FY 2015, 11th Circuit at 16; SIP FY 2006, 11th Circuit at 16.

48 SIP FY 2015, 11th Circuit at 12; SIP FY 2004, 11th Circuit at 13.

49 SIP FY 2015, 11th Circuit at 16; SIP FY 2004, 11th Circuit at 15.

50 SIP FY 2006, 11th Circuit at 17.

51 SIP FY 2015, 11th Circuit at 17.

52 SIP FY 2015, 11th Circuit at 13; SIP FY 2006, 11th Circuit at 13.

53 SIP FY 2015, 11th Circuit at 17; SIP FY 2006, 11th Circuit at 17.

54 SIP FY 2006, 11th Circuit at 17; SIP FY 2004, 11th Circuit at 15.

55 SIP FY 2015, 11th Circuit at 17.

56 SIP FY 2015, 11th Circuit at 17; SIP FY 2004, 11th Circuit at 15.

57 SIP FY 2015, 11th Circuit at 16; SIP FY 2014, 11th Circuit at 16; SIP FY 2011, 11th Circuit at 16; SIP FY 2010, 11th Circuit at 16.

58 SIP FY 2004, MDFL at 16; SIP FY 2004, NDFL at 16; SIP FY 2004, SDFL at 16.

59 SIP FY 2015, MDFL at 19; SIP FY 2015, NDFL at 19; SIP FY 2015, SDFL at 19.

60 SIP FY 2006, MDFL at 19; SIP FY 2006, NDFL at 19; SIP FY 2006, SDFL at 19.

61 SIP FY 2015, MDFL at 19; SIP FY 2015, NDFL at 19; SIP FY 2015, SDFL at 19.

62 SIP FY 2004, MDFL at 16; SIP FY 2004, NDFL at 16; SIP FY 2004, SDFL at 16.

63 SIP FY 2015, MDFL at 19; SIP FY 2015, NDFL at 19; SIP FY 2015, SDFL at 19.

64 SIP FY 2006, MDFL at 19; SIP FY 2006, NDFL at 19; SIP FY 2006, SDFL at 19.

65 SIP FY 2015, MDFL at 19; SIP FY 2015, NDFL at 19; SIP FY 2015, SDFL at 19.

66 SIP FY 2004, MDFL at 16; SIP FY 2004, NDFL at 16; SIP FY 2004, SDFL at 16.

67 SIP FY 2015, MDFL at 19; SIP FY 2015, NDFL at 19; SIP FY 2015, SDFL at 19.

68 SIP FY 2006, MDFL at 19; SIP FY 2006, NDFL at 19; SIP FY 2006, SDFL at 19.

69 SIP FY 2015, MDFL at 19; SIP FY 2015, NDFL at 19; SIP FY 2015, SDFL at 19.

70 SIP FY 2015, NDFL at 18; SIP FY 2010, NDFL at 18.


Roger B. Handberg is the criminal chief (north) of the U.S. Attorney’s Office for the Middle District of Florida. The views expressed in this article are solely his own and do not reflect any position, policy, or opinion of the U.S. Attorney’s Office or the U.S. Department of Justice.

[Revised: 12-27-2016]