Introduction

Amendment 767 to the U.S. Sentencing Guidelines Manual, effective November 1, 2012, significantly modified the calculation of Guidelines ranges for federal defendants convicted of multiple counts where at least one of the counts is subject to a statutorily mandated minimum sentence.  The amendment, which altered section 5G1.2 of the Guidelines and its commentary, provides that a minimum statutory sentence for any count in a multicount conviction raises the floor of the Guidelines range for all counts.¹  By linking the calculation of the Guidelines range to the mandatory minimum sentence applicable to a different count of con­vic­tion, Amendment 767 unhinges the punishment determination from each un­der­­ly­ing conviction.  Decoupling the offense from the punishment in this way creates serious moral, legal, and administrative implications for federal sentencing.

This Article first explains the effects of Amendment 767 by illustrating the op­eration of section 5G1.2 before and after the amendment.  Part II address­es the U.S. Sentencing Commission’s stated reasons for the amendment.  The Commission’s primary reason for promulgating Amendment 767 was the resolution of a circuit split in the application of section 5G1.2.  But this rationale falls flat because no circuit split existed.  Its secondary reason—reducing the likelihood that sentencing courts will need to calculate multiple Guidelines ranges—creates only min­imal administrative gains.  Part III identifies the negative consequences of Amendment 767.  As noted above, by divorcing the Guidelines calculation from the offense, Amendment 767 ignores the moral underpinnings of the sentencing process and invites sentencing courts to disregard the statutory mandate to impose just punishment.  Moreover, the amendment will lead to administrative burdens elsewhere in the judicial process that outweigh any efficiency it creates at sentencing.

I. Amendment 767’s Effect on Guidelines Ranges

Even though the Guidelines are now only advisory,² district courts are required to accurately calculate a defendant’s Guidelines range of imprisonment on the record at sentencing,³ and sentences imposed within that range often benefit from a presumption of reasonableness on appeal.⁴  When a defendant is sentenced on an individual count, a statutory limit on the sentence’s length sensibly restricts the Guidelines range of imprisonment.⁵  A statutory limit on a sentencing court’s discretion may take the form of either a mandatory minimum or maximum sentence.  If a defendant’s offense level and criminal history category yield a Guidelines range that is less, or partially less, than the statutorily mandated minimum sentence for the offense of conviction, the floor of the Guidelines range is raised to equal the statutory minimum.⁶  Similarly, when calculating the Guidelines range for a defendant convicted of an individual count, the ceiling of the Guidelines range is limited by an applicable statutory maximum sentence.⁷

When a defendant is sentenced on multiple counts, the Guidelines range is calculated with respect to the aggregated offense conduct so that each count of conviction has the same Guidelines range to the extent permissible by law.  Under a proper reading of pre-amendment section 5G1.2, a statutory minimum or maximum on an individual count only impacted the Guidelines range for that particular count.⁸  Now, however, Amendment 767 requires that the statutory minimum sentence for one offense constrain the Guidelines ranges for other counts in a defendant’s conviction.  Under the amendment, if any individual count has a statutory minimum that is greater than the floor of the Guidelines range applicable to the defendant’s other counts, the floor of the Guidelines range for all of the counts is increased to the higher statutory minimum.⁹  However, Amendment 767 did not open a two-way street; if any count has a statutory maximum that is below the ceiling of the otherwise properly calculated Guidelines range, the ceiling of the Guidelines range is lowered only for that individual count, not for all of the counts of conviction.¹⁰

Amendment 767 added an example to the Guidelines commentary that illustrates its effects.¹¹  A defendant with a combined offense level of nineteen and a criminal history category of I is to be sentenced on four counts.  Such an offense level and criminal history category would otherwise yield a Guidelines range of thirty to thirty-seven months.  Counts one, three, and four have statutory maximums of ten, twenty, and two years’ imprisonment, respectively.  Additionally, count two carries a mandatory minimum of ten years’ imprisonment and a statutory maximum of thirty years’ imprisonment.¹²

Under pre-amendment section 5G1.2, the Guidelines sentence for count two would have been 120 months because of the statutory minimum sentence on that count.¹³  The Guidelines sentence for count four would have been 24 months because of the statutory maximum sentence on that count.¹⁴  Neither the statutory minimum of count two nor the statutory maximum of count four, however, would have affected the Guidelines ranges of counts one and three.¹⁵  Therefore, counts one and three would have retained Guidelines ranges of 30 to 37 months.

Under amended section 5G1.2, however, the statutory minimum of count two rolls up the floor of the Guidelines range for all counts.¹⁶  Thus, the Guidelines sentence would be 120 months for counts one, two, and three.  The Guidelines sen­tence for count four would remain 24 months because of the statutory maximum on that count.

Under the pre-amendment scheme, a district court imposing the harshest within-Guidelines sentences would sentence the defendant to 37, 120, 37, and 24 months on the four counts of conviction.  But a district court adhering to the amend­ed Guidelines would impose sentences of 120, 120, 120, and 24 months.  Assuming that none of the offenses mandates a consecutive sentence, the sentences would run concurrently under either the unamended or the amended version of section 5G1.2.  Therefore, the amendment does not affect the length of time—here, 120 months—the defendant actually serves.  Rather, the amendment lengthens the concurrent sentences imposed on additional counts of conviction that would have otherwise been subsumed by a lengthier mandatory custodial sentence on an­oth­er count.

II. The Misguided Justifications for Amendment 767

A. The Commission’s Stated Reasons for Adopting Amendment 767

The Commission set forth two reasons for enacting Amendment 767.  First, the Commission intended the amendment to resolve what it perceived as a circuit split on the application of pre-amendment section 5G1.2.¹⁷  Second, the Commission intended the amendment to “ensure that sentencing courts resolve multiple-count cases in a straightforward, logical manner, with a single guideline range, a single set of findings and reasons, and a single set of departure and variance considerations.”¹⁸  As described below, the Commission’s reasons fail to justify the amendment because no circuit split existed and because the amendment will produce only a minimal administrative benefit.

B. The Circuits Did Not Split Over the Application of Section 5G1.2

Quite simply, no circuit split was present to warrant the Commission’s intervention.  In explaining its reasons for adopting Amendment 767, the Commission identified a split between the Fifth Circuit and the Ninth and D.C. Circuits.¹⁹  According to the Commission, the amendment to section 5G1.2 “adopts the approach followed by the Fifth Circuit”²⁰ in United States v. Salter.²¹  The Fifth Circuit’s opinion in Salter, however, did not set forth any approach with regard to the effect of statutory minimum sentences on the Guidelines ranges of other counts in a multicount conviction.  Thus, it could not have conflicted with the approach actually adopted by other circuits.²²  Nor could it be adopted by the Commission in any meaningful sense.

In Salter, the defendant was convicted of money laundering and conspiracy to possess with intent to distribute more than 100 kilograms of marijuana and sen­tenced to two concurrent terms of 130 months’ imprisonment.²³  The Fifth Circuit vacated the sentences because the district court erred in its calculation of the Guidelines range by not grouping the sentences under section 3D1.2 of the Guidelines.  Under the proper grouping, the Fifth Circuit calculated a Guidelines range of 87 to 108 months.²⁴  Because the drug count carried a statutory minimum sentence of 120 months, however, the Fifth Circuit stated that “the appropriate sen­tence herein is 120 months.”²⁵  The court went on to find that the criminal history category should also have been lowered, but that the change would have “no effective impact because the required sentence remain[ed] at 120 months.”²⁶

Importantly, the Fifth Circuit never stated in Salter that the Guidelines range for both counts was 120 months.  Rather, it found that the appropriate sentence was 120 months, which was undeniably true given the drug count’s 120-month statutory minimum sentence.  In recounting the Salter opinion in support of the Guidelines amendment, however, the Commission improperly stated that the “Fifth Circuit instructed the district court that the appropriate Guidelines sentence was 120 months on each of the three counts.”²⁷  Besides the Commission’s conspicuous misstatement that Salter involved three counts rather than two, such language is entirely absent from the court’s opinion.  The Fifth Circuit never instructed the district court on the appropriate Guidelines sentence for each count.  Rather, the Fifth Circuit simply stated that 120 months was the “appropriate sentence.”²⁸  The Commission’s account of the Fifth Circuit’s holding in Salter simply fails to comport with the court’s actual statements in the opinion.

Amendment 767 not only fails to adopt an actual holding of the Fifth Circuit, but it also effectively overrules actual holdings of other federal courts of appeals.  The Ninth Circuit in United States v. Evans-Martinez²⁹ explicitly held that a statutory minimum sentence for one count does not define the floor of the Guidelines range for other counts in a multicount sentencing.³⁰  As support for this conclusion, the Ninth Circuit cited the pre-amendment language of section 5G1.2 and also noted “the possibility that the conviction on the count carrying the mandatory minimum sentence could be vacated or reversed, putting in doubt any sentence based on it.”³¹  Similarly, the D.C. Circuit found that, under the unamended guideline, a single count’s statutory minimum did not affect the Guidelines range applicable to other counts.³²  Language in a Third Circuit opinion supported the same reading of pre-amendment section 5G1.2.³³

Thus, the Commission’s first proffered reason for Amendment 767—resolution of a circuit split—is simply unsupported by the case law.³⁴  No circuit split existed.  And in fact, the circuits that had addressed the issue had all effectively rejected the position adopted by the Commission in Amendment 767.

C. The Amendment Will Not Result in Substantial Administrative Benefits

The Commission’s second reason for adopting the amendment was to ease the administrative burden of sentencing on district courts by requiring only “a single guideline range, a single set of findings and reasons, and a single set of departure and variance considerations” in  multicount sentencings.³⁵  The Guidelines have long directed district courts to calculate the “total punishment” and then, “[e]xcept as otherwise required by law,” to impose that total punishment on each count of conviction.³⁶  Amendment 767 substantially alters the effect of the words “except as otherwise required by law” by using a mandatory minimum applicable to one count to increase the floor of the Guidelines range applicable to all counts.  According to the Commission, by setting identical Guidelines ranges for multiple counts, Amendment 767 reduces the need for district courts to calculate separate departures and variances from multiple different Guidelines ranges.³⁷

Because more counts in a multicount conviction will have identical Guidelines ranges under amended section 5G1.2, the amendment will make it easier to calculate departures and variances.  However, this incremental administrative benefit does not justify the amendment.  The Commission clearly does not deem this consideration terribly compelling—otherwise, the amendment would have required the same treatment of statutorily mandated maximum sentences as well.  But, as described above, when the sentence of a single count of conviction is restricted by a statutory maximum, the commentary added by the amendment specifically rejects this approach.  Rather, the statutory maximum only limits the ceiling of the Guidelines range for that particular count.³⁸  Thus, when statutory maximums are at play, district courts will still be required to calculate departures and variances from multiple Guidelines ranges.³⁹  District courts are quite capable of making these determinations and will continue to make them in multicount sentencings involving statutory maximums.  Eliminating the need for courts to make them in some instances is of only minimal administrative benefit.

III. Amendment 767’s Negative Consequences

The fact that the Commission erroneously conjured a circuit split and sided with a viewpoint that no circuit had actually adopted does not answer the question of whether Amendment 767 was a sound policy decision.  Certainly the Commission is free to amend the Guidelines to administratively overrule what it believes to be erroneous judicial applications of the Guidelines.⁴⁰  To answer the question of whether Amendment 767 was a positive enactment on its own terms, it is necessary to weigh its minimal administrative benefit against its other likely consequences.  Amendment 767’s negative consequences include weakening the moral and legal justification for the punishment by unhinging individual counts’ sentences from the underlying offense conduct, and adding to administrative costs in other areas of the criminal justice system by increasing the likelihood of resentencing defendants and by multiplying the number of sentences and convictions challenged in habeas petitions.

A. Amendment 767 Separates the Sentence From the Underlying Offense Conduct

The primary problem with Amendment 767 is that it totally divorces the sen­tences for individual counts from their underlying convictions.  Under the amendment, a statutory minimum sentence for one count of conviction can sharply increase the Guidelines range not only for that count, but for all counts in the mul­ticount conviction.  Return to the example added to the commentary by Amendment 767 discussed in Part I.⁴¹  Assuming that the sentencing court imposes Guidelines sentences, the defendant would receive concurrent terms of 120 months’ imprisonment on counts one, two, and three.  The seriousness of the offense conduct and the defendant’s recent past criminal history, however, yielded a Guidelines range of only 30 to 37 months’ imprisonment for counts one and three.  While the 120-month sentence is related to the offense for count two based on the legislative determination that 120 months is the appropriate minimum sentence for that offense, this sentence is completely unrelated to the conduct underlying the convictions for counts one and three.

The lack of relationship between the sentence and each underlying count of con­viction is both morally and legally troubling.  Morally speaking, a punishment should be limited by an offender’s just deserts.⁴²  In other words, the punishment should fit, or at least not exceed, the crime.  But Amendment 767 divorces the punishment determination from the offenses actually underlying the individual convictions.  By separating the punishment calculation from the underlying offense, Amendment 767 disregards the just-deserts limitation on punishment and will surely cause some offenders to receive lengthier sentences than they deserve for some individual counts.  To the extent that a criminal sentence is society’s measured condemnation of the offense conduct and rebalancing of the social order,⁴³ decoupling the sentence from the underlying conviction and pinning it to a statutory minimum applicable to a different count’s offense conduct eliminates moral proportionality from the imposition of the sentence.

For the same reason, the changes wrought by Amendment 767 call into question whether Guidelines sentences calculated under section 5G1.2 will comport with the statutory directive requiring district courts to impose sentences that are “sufficient, but not greater than necessary” to comply with the need for the sen­tence “to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense,” among other considerations.⁴⁴  The amendment undermines each of these three legislatively prescribed sentencing considerations.  By coupling the Guidelines range to a mandatory minimum applicable to a different offense, the amendment mandates a Guidelines range that reflects the statutory minimum sentence of a single count rather than the seriousness of each count of conviction.  In the same way that Amendment 767 may lead to sentences that exceed offenders’ just deserts, it similarly leads to sentences that fail to comport with the legislatively mandated concept of just punishment.

Furthermore, to the extent that district courts impose within-Guidelines sentences, Amendment 767 will result in an uptick in average sentence length, especially among relatively less serious offenses, because the amendment increases the floors of Guidelines ranges.  This data will be deceiving because the upward trend will not be the result of an independent determination by district courts that defendants deserve increased punishment on each count of conviction.  Thus, to the extent that future courts wish to impose a punishment that is consistent with general sentencing practices, those courts should bear in mind that the statistics may skew upward.  The Commission will lose the benefit of learning district court’s just punishment determinations as well, and therefore have less reliable data on which to base future Guidelines revisions.  Upon seeing longer sentences bearing less relation to the underlying offense conduct, the public may well lose respect for the law, which may ultimately lead to more crime.⁴⁵

B. Amendment 767 Increases Administrative Costs

Beyond its moral and legal shortcomings, Amendment 767 creates administrative drawbacks that offset the minimal administrative benefit gained by partially avoiding the need to calculate departures and variances from multiple Guidelines ranges.  Most notably, the amendment will require a district court to resentence a defendant on all remaining counts whenever a conviction on a count with a mandatory minimum is vacated.⁴⁶  Returning to the example discussed above,⁴⁷ vacating the defendant’s conviction on count two would require resentencing on counts one and three because under amended section 5G1.2 the mandatory minimum sen­tence of count two controlled the Guidelines sentences of counts one and three.⁴⁸  Before the amendment, the count two conviction would not necessarily have affected the Guidelines calculation on the other counts; thus, vacating count two would not necessarily require adjusting the other counts’ Guidelines ranges.⁴⁹  But after the amendment, vacating count two will require the district court to resentence the defendant on the other counts in every instance.  Each of those resentencings may require probation officers to generate revised presentence investigation reports, district courts to conduct fresh sentencing hearings, and appellate courts to open the door to new (or renewed) appeals.  In short, each resentencing creates significant administrative burden on the federal judicial system.⁵⁰

Finally, Amendment 767 is likely to increase the already high number of con­victions and sentences challenged through habeas petitions⁵¹ because it lengthens Guidelines sentences for relatively less serious counts of conviction rather than permitting the custodial portions of those sentences to expire.  Defendants are naturally more incentivized to challenge lengthier sentences and the convictions underlying lengthier sentences.  Upon the expiration of the custodial portion of a sentence, a defendant’s incentive to mount a habeas corpus challenge greatly decreases because the defendant no longer faces prison time.  Thus, by lengthening the custodial portion of Guidelines sentences, Amendment 767 creates a greater incentive for defendants to collaterally attack more sentences and the convictions underlying those sentences and prolongs the time period during which the defendant is most heavily incentivized to file habeas petitions.⁵²  This increase in a defendant’s likelihood to collaterally attack a sentence or conviction is not accompanied by an increased ability to do so successfully.⁵³  Most conspicuously, the one-year limitation on habeas petitions⁵⁴ will continue to render numerous petitions nonmeritorious.  And it is precisely this category of frivolous petitions that unnecessarily consume court resources and should be discouraged.  By lengthening custodial sentences for relatively less serious offenses, Amendment 767 incentivizes defendants to collaterally attack more sentences and the convictions underlying those sentences without having any positive effect on defendants’ abilities to succeed.  Such an increase in nonmeritorious habeas claims will be an administrative burden on the federal judiciary.

Conclusion

Neither of the Commission’s proffered justifications for Amendment 767 holds up to scrutiny.  First, no circuit split existed regarding the application of pre-amend­ment section 5G1.2 for the Commission to resolve.  Second, the negative con­sequences of Amendment 767, including added administrative burdens elsewhere in the criminal justice system, strongly outweigh its minimal administrative benefit at sentencing.  Most significantly, the amendment erodes the moral and legal relationship between the offense conduct and the resulting sentence by divorcing the sentence imposed on an individual count from the underlying count of conviction.  In short, Amendment 767 will work more wrongs than it rights.  District courts would be well advised to vary from Guidelines ranges calculated under amended section 5G1.2 in multicount sentencings involving a statutorily mandated minimum sentence.