In January 2020, the United States Sentencing Commission (USSC) released the Inter-District Differences in Federal Sentencing Patterns, which examines sentencing practices across districts in the post-Booker era, between 2005 and 2017. The report can be found at https://www.ussc.gov/sites/default/files/pdf/research-and-publications/research-publications/2020/20200122_Inter-District-Report.pdf.
The USSC’s analysis found that consistent with the Commission’s 2012 Booker Report, sentencing outcomes continue to depend in part upon the district in which a defendant is sentenced. Below are the key findings from the report.
• Variations in sentencing practices increased post-Booker.
• Sentencing differences increased for each of the four major offense types analyzed (fraud, drug trafficking, firearms and illegal reentry).
• Guideline amendments intended to promote uniformity have had an inconsistent impact on inter-district disparity.
• Certain districts have consistently sentenced more – or less – severely compared to the guideline minimums than other districts, both over time and offense type.
For defendants sentenced under the fraud guideline, § 2B1.1, the Northern District of Texas has consistently been in the top ten for sentences above the overall average sentence. However, when comparing the post-Booker, post-Gall and later post-2012 period, it has moved from number six to first. This means that the sentences in Northern District of Texas after 2012 for defendants sentenced under § 2B1.1 are the furthest above the national sentencing average. The Southern District of Texas was the number 7 district with fraud sentences furthest above the overall average, post-2012.
Practitioner Takeaways
Disparity with similar offenders is one of the sentencing factors under 18 U.S.C. § 3553(a). In districts that are above the average sentence, and particularly those significantly above the national average, there is a good chance that the PSR recommended sentence is significantly above the average. A good resource with data to support that the PSR recommendation is high and results in a disparate sentence is the United States Sentencing Commission’s Sourcebook of Federal Sentencing Statistics. This resource contains sentencing statistics based on various criteria including circuits, districts, primary offense and offender characteristics. The 2019 data was recently published and can be found at https://www.ussc.gov/research/sourcebook-2019.