Abstract

Judicial discretion in sentencing has historically produced disparities in criminal sentencing outcomes. In an effort to address disparity at the federal level, in 1984, the U.S. Congress passed legislation that led to the creation of the U.S. Sentencing Commission and subsequently the adoption of federal sentencing guidelines. Studies show that even among similarly situated defendants (in terms of offense score and criminal history category) disparities have persisted regardless of the sentencing guidelines. An understudied source of disparity is the combined and interactive role of judges, prosecutors, and defense attorneys in the application of the guidelines and the statutory framework that informs sentencing. The current study examines sentencing for the federal offense of illegal reentry of removed aliens (8 U.S. Code §1326) in one division of a U.S. District Court. This study reports data from direct non-participant observation of sentencing hearings and publicly available court records. Findings reveal sources of sentencing disparity among similarly situated cases that are not readily illuminated by the yearly quantitative data provided by the U.S. Sentencing Commission. The findings suggest that disparity in the sentencing of similarly situated illegal reentry defendants is influenced by differential judicial interpretation of and use of the tools made available to them in the sentencing guidelines and the statutory sentencing authority.

Introduction

Disparities in federal criminal sentences prompted the U.S. Congress to pass legislation (the Sentencing Reform Act of the Comprehensive Crime Control Act of 1984) that led to the creation of the U.S. Sentencing Commission, and subsequently the Federal Sentencing Guidelines (implemented in November of 1987). Under the federal guideline system, before each defendant is sentenced, unless it is waived, a U.S. Probation Office prepares and presents to the court a presentence investigation report that includes a recommended sentence. The report contains an offense level score (based on specific behavioral aspects of offense conduct) and a criminal history category. The offense level score and criminal history category determinations are made after certain guideline-authorized adjustments are applied (factors which increase or decrease the offense conduct score). Offense score and criminal history category are used in conjunction with the federal sentencing table to determine the prescribed sentence guideline range in months that is advised by the U. S. Sentencing Commission. See the image below for a partial reproduction of the federal sentencing table.

Within this framework, a judge may decide to do an upward or downward sentence “departure” from the advisory guideline range. A departure may be used where a judge believes that certain factual circumstances present in the case, which are specifically established for consideration in the text of the guidelines, make the case distinct from the typical case (an average or normal case that is considered the “heartland”). When a judge affirmatively decides to depart, the judge has concluded that the defendant is worthy of a sentence that is either higher or lower than the prescribed guideline range (that is based on offense level and criminal history category) that is advised by the Sentencing Commission.

In addition, when informed by the broad statutory authority granted in 18 U.S.C.A. § 3553 (the federal statute titled “Imposition of a sentence”), a judge may also sentence upwardly or downwardly from the prescribed guideline range when the judge feels it is justified to do so to meet certain other sentencing objectives that are beyond the letter or scope of the specific sentencing guidelines (this use of judicial discretion is called a “variance”). Concerns that arise during sentencing that may justify an upward or downward judicial variance include offense seriousness; respect for law; just punishment; deterrence; public protection; needed educational, vocational, or medical treatment; or to avoid unwanted sentencing disparities between similarly situated defendants.

When initially developed and implemented, the understanding was that the federal sentencing guidelines were required; federal judges had no choice but to follow the guidelines. In 2005, the U.S. Supreme Court determined the federal sentencing guidelines to be advisory rather than mandatory (U.S. v. Booker, 2005) and reaffirmed the advisory nature of the guidelines two years later when the Court ruled that a federal district court judge may set any reasonable sentence as long as it is explained by the judge (Gall v. U.S., 2017). Through the determination in Booker and reinforcement of the principle in Gall—that the federal guidelines are advisory—judges are permitted to increase or decrease a sentence outside of the prescribed guideline range while being in compliance with Apprendi v. New Jersey (2000) and Blakely v. Washington (2004). Apprendi and Blakely had found constitutional violations where a judge increased the sentence past the maximum prescribed amount based on facts that were not determined by a jury.

Extant research on federal sentencing under the guideline manual and broad statutory sentencing authority has used the publicly-available data from the U.S. Sentencing Commission to explore the degree to which sentencing disparities are present and to identify the correlates of such disparities. This largely quantitative body of work has examined organizational court-based context (Johnson et al., 2008; Kautt, 2002; Ulmer, 2005), the social and cultural conditions in which the particular federal court is contextually situated (Johnson et al., 2008; Kautt, 2002), characteristics of the judge (Anderson & Spohn, 2010), characteristics of the defendant (Anderson & Spohn, 2010; Everett & Wojtkiewicz, 2002; Kautt & Spohn, 2002), case factors (Anderson & Spohn, 2010; Everett & Wojtkiewicz, 2002), and whether certain departures allowed by the guidelines are applied by the court (Anderson & Spohn, 2010; Everett & Wojtkiewicz, 2002).

An understudied but potentially salient factor in federal sentencing outcomes is how different judges interact with members of the legal community in court (primarily U.S. Attorneys and defense counsel) to interpret and apply the sentencing guidelines and statutory sentencing authority. Recent critiques of sentencing research (Lynch, 2019; Smith, 2020; Ulmer, 2019) note that an over reliance on large datasets such as that from the U. S. Sentencing Commission deemphasize and fail to capture the interactive processes that occur between members of the legal community that influence sentence outcomes.

The importance of variation in how individual judges interpret and apply the guidelines and the statutory sentencing authority has been noted in scholarly work. Anderson and Spohn (2010) wrote in their study of federal courts that “Judges arrive at decisions regarding the appropriate sentence in different ways, by attaching differential weights to several of the legally relevant case characteristics” (p. 362). Ulmer (2012) speculated that “It is likely that a substantial portion of the interesting variation in sentencing severity, the choice of sentencing options, and the effects of legally relevant, organizational, and extralegal factors on sentencing exists at the level of individual judges” (p. 27). Smith’s (2020) interview-based study of judges in a state court system that had implemented a sentencing guideline approach is also instructive. He quoted a judge on how, even in a sentencing guideline system, a particular judge is influenced by a distinct worldview, while a different judge just down the hallway may utilize a completely different philosophy to guide sentencing. Smith wrote that, “Many judges were quick to point out that within the same court, there were different worldviews on justice and distinct sentencing habits amongst counterparts in the same building” (p. 197). Smith wrote that one judge mentioned that there will be harsher sentences from some judges relative to others, and to explain the differences Smith alluded to a belief that some judges feel as if they are social workers while others do not assume such an orientation. Notably, one of the judges said, “What bothers me more though is how it’s totally luck of the draw which judge you land in front of” (p. 198). 

Sentencing guidelines are an attempt to invoke formal rationality on the sentencing endeavor by narrowing down the range of relevant factors that should influence the judge’s decision (Ulmer, 2005). The difficulty is that many who make these decisions view it (the sentence decision) as individualistic and driven by autonomous judgment. Legislative attempts to limit discretion and thereby reduce variability in criminal sentencing are often met with considerable resistance (Spohn, 2009; Tonry, 1993). Courts and individual judges, in a system designed to produce formal, rational outcomes will develop their own more substantive rationales for sentencing and will resist efforts to completely control their judicial discretion (Savelsberg, 1992; Ulmer, 2005). Judges, looking to advance their own substantive justifications for the sentences that emanate from their court will selectively utilize, make sense of, and apply the guidelines and their discretion within the guideline system to achieve their own desired outcomes. In writing about “the transformation of intentions,” Ulmer (2012) provides that, “It is actors’ discretion that transforms those intentions. This means that policies—such as sentencing guidelines, mandatory minimums, etc.—are at the mercy of those who implement them” (pp. 7-8). Perhaps Smith (2020) stated it most succinctly: “Although the problem of disparities is a complex one, at its core, it is simple: guidelines limit discretion, but they do not result in uniform outcomes” (p. 179). To take it a step further, perhaps sentencing guidelines are a reproduction of disparity that, with their advent, is placed in a more socially acceptable and legally justifiable form. The range of disparity may be lessened, but difference remains.

The current study advances the qualitative role that others have initiated (Smith, 2020; Ulmer, 2005; Ulmer & Johnson, 2017; Van Cleve, 2017) or advocated for (Lynch, 2019) in understanding criminal sentencing. Rather than interview judges, prosecutors, and other court participants, as prior qualitative efforts have done, the current study uses non-participant observation of courtroom dialogue and actions taken by members of the legal community in sentencing hearings. The focus of this study is on the differences between judges on the same court in the application of the federal guidelines. It is a study of how the judges on a particular court apply the federal sentencing guidelines and their statutory sentencing authority to defendants’ illegal reentry cases. While much of the prior empirical work on federal sentencing broadly examines sentencing for many types of federal crimes, the current study focuses on one crime. Federal sentencing guidelines are not the same for all crimes and are not necessarily applied in the same way by judges across all federal offenses. Limiting the analysis to one offense—and one that is relatively straightforward in its application—makes the comparison across cases and between judges more consistent and reliable than would an alternative consideration of sentencing processes for a mixture of federal offenses.

Judges, U.S. Attorneys, defense counsel and illegal reentry cases: An interactive community 

A court community perspective, applied to the sentencing of illegal reentry cases, views criminal courts as occupied by smaller communities of professionals (judges’ bench, the prosecutor’s office, and the defense bar) who operate within a shared work space and must interdependently work together in a complex sociopolitical environment to achieve outcomes (Eisenstein et al., 1988; Flemming et al., 1992; Ulmer, 2012). The aggregate court community develops a social order and local organizational culture (Ulmer, 2012). The court community, to function effectively, comes to value what Ulmer and Johnson (2017) refer to as “organizational conformity.” This conformity by courtroom participants takes three forms: expedience and cost-benefit rationality, normative obligation and expectation, and court professionals engagement in “sense making” of their work roles. In such a context, a premium is placed on quick resolution of these cases through plea bargaining or informal agreements that expedite cases to a resolution (Heumann, 1977).

Focal Concerns theory, while acknowledging that a legal community exists, much more narrowly addresses the decisions made by the sentencing judge. Focal Concerns conceives of plea bargaining by the prosecution and defense as a constraint on judicial discretion. Plea bargaining is a partial constraint on the judge because while the judge can reject a plea agreement, to reject it is to disrupt the norms of the local court community. In the illegal reentry cases in the court of interest to this study formal plea agreements are relatively rare. They are most often used to specify a move by the U.S. Attorney to designate a particular illegal reentry case as “fast-track”. The fast-track is an early disposition program that is sanctioned by the federal guidelines. The relevant statement in the guidelines provides that, “Upon motion of the Government, the court may depart downward not more than 4 levels [on the offense conduct score] pursuant to an early disposition program authorized by the Attorney General of the United States and the United States Attorney for the district in which the court resides” (U.S. Sentence Guidelines, § 5K3.1, 2018, bracketed information added for clarity.) The current qualitative study of illegal reentry sentencing, therefore, considers plea bargaining and the nature of it in the division of the district under consideration.

Standard provisions of plea agreements in the division of interest to the current study state that in exchange for a fast-track designation, the defendant will not litigate detention or file any pretrial motions and not request a sentence variance from the judge. There is also generally a stipulation for a two-point acceptance of responsibility reduction on the offense score and an agreement that the government will jointly recommend a sentence at the low-end of the guideline range. Such an agreement constrains but does not eliminate judicial sentencing discretion. A judge may decide not to follow a plea agreement, but often doesn’t oppose the agreement. An action by a judge to oppose the agreement disrupts the established work already done by the attorneys in the case. In a correlational, quantitative study of the U.S. Sentence Commission (USSC) data for 2008 by Hartley and Tillyer (2012) that examined all federal district courts, fast-track and other government-sponsored downward departure motions, respectively, had a significant effect in reduction of the sentence in illegal reentry cases. A problem with measures of fast-track and plea bargaining in the U.S. Sentencing Commission data is that the variable measurement only accounts for instances where the fast-track is accepted by the judge and applied. The current qualitative study is more expansive by addressing those situations where the government makes the request but the judge rejects the fast-track motion. These instances are a potential source of previously untapped sentencing disparity.  

Focal Concerns theory additionally conceptualizes legislatively-mandated sentencing as a constraint on judicial discretion. In all districts and divisions in the federal system, mandatory minimum and maximum sentences serve to eliminate the discretion of the sentencing judge. For offenses where there is a mandatory minimum or maximum sentence, federal judges face complete constraint on their judicial sentencing discretion once a defendant is convicted of an offense. For the federal offense of illegal reentry some defendants’ cases have a maximum penalty of 24 months while other defendants face a maximum penalty of 120 months. Hartley and Tillyer (2012) in their quantitative models of sentence length in illegal reentry cases did not account for the presence of mandatory maximum sentences as a constraint on the potential length of the sentence. The current study considers separately those cases where the judge’s sentencing authority was constrained by a mandatory maximum sentence and acknowledges this as a source of sentencing disparity.

Focal Concerns theory of criminal sentencing travels beyond the notion of factors that constrain a sentencing judge’s discretion and delves into factors—or primary concerns—that motivate a sentencing judge in sentencing decisions. It proposes that judges consider blameworthiness, criminal culpability, and community protection. Despite its common sense, practical qualities, and appeal, Lynch (2019) has levied substantive conceptual and methodological critique upon the Focal Concerns theory. Notably, she called for “diverse data and methods, including re-invigorating the tradition of court ethnographies that provided so many early insights into the processes that produce sentencing outcomes” (p. 1165). Similarly, Ulmer (2019) advanced a sentencing research agenda that focuses on courts as “inhabited institutions.” In this respect, judges, prosecutors, and defense counsel are all component parts of a legal community. Judges’ discretion may be constrained or enhanced by the actions of the other participants. All three professionals are involved in what Einstein and Jacob (1977) called “the courtroom workgroup.” Lynch (2019) summed up the consequences of continuing with sentencing research that is devoid of this a multiple-method approach: “When the predominant empirical method for examining criminal sentencing uses secondary case outcome data … courts are easily treated as uninhibited, missing out on the dynamic variegated life that happens within them” (p. 1165).

An important factor that is a component of the “dynamic variegated life” of courts is the degree and quality of advocacy by the prosecutor and defense attorney in a particular case. Judicial decision-making does not occur in a vacuum. A judge responds to and may be impacted by the advocacy offered from the U. S. Attorney and the defense counsel. Prior quantitative studies of federal sentencing outcomes generally do not account well for variation in prosecutor and defense attorney advocacy. Importantly, all advocacy is not created equally (Nardulli, 1986). Prosecutor advocacy in how an immigration case is handled often occurs behind closed doors, is not readily open to review, and involves selecting cases for prosecution based on who is dangerous and a threat to society (Wadhia, 2015). In a courtroom context, prosecutors enter the case with an advantage. They are frequently judged by observers to be more articulate, enthusiastic, and likable in the courtroom than are members of the defense (Linz et al., 1986).

An oft-used measure of defense attorney advocacy is whether the attorney is part of a public defender system (the attorney is often deeply embedded in the criminal courtroom workgroup) or is privately retained (the attorney is often less embedded in the criminal courtroom workgroup). Research consistently reveals mixed results in outcomes between the two types of defense counsel (Hartley et al., 2010). Attorney type has an impact only in certain contexts (Kelly, 1976; Sterling, 1983). With respect to federal sentencing, Ethenne (2004) argues that there is a “declining utility” of the right to an attorney due to the “diminishing role” of defense counsel. She concluded that defense attorneys have “increasingly taken on more technical, incremental roles: counseling their clients, guiding them through the criminal adjudication process, and combing the complex sentencing rules for exceptions that might apply to their clients” (p. 427). Indeed, in a guideline system the effective defense counsel will show an adeptness at interpreting and applying the provisions of the guidelines in the interests of the defendant (Hall, 1999). The U. S. Sentencing Commission dataset contains no measures of prosecutor or defense attorney advocacy or whether the attorneys presented the same or different sentence recommendations to the court. These circumstances are important because they require that the judge either make a decision between two competing recommendations, or go with a sentence that is different from both recommendations. Observational information can address this limitation of the U.S. Sentencing Commission data. In the current study the observations note differences in advocacy at the sentencing hearing and whether the attorney sentencing recommendations are the same or are different at the hearing.

Prior empirical research on federal sentencing has for the most part left between-judge differences out of the equation. This is not because theorists or empiricists see these differences as unimportant. Rather, limitations in the U.S. Sentencing Commission data and many other large datasets do not facilitate between-judge analyses. Indeed, the U.S. Sentencing Commission does not make the identity of the judge available in its publicly available data releases. There are some notable exceptions where some researchers have been given access to the identity of the judge (Anderson & Spohn, 2010; Hofer et al., 1999). Prior to the implementation of the federal guidelines, philosophical differences between judges were viewed as the most important source of unwanted sentence variation (Hofer et al., 1999). While between-judge differences were probably more pronounced in the pre-guideline era, this is still a salient source of sentencing disparity in the post-guideline era. Anderson and Spohn (2010), who only studied post-guideline outcomes, noted that “the between-district differences found by prior research may be masking significant within-district differences based on the judge to whom the case is assigned” (p. 390). The observational approach of the current study allows for the identity of the judge to be known and taken into account in the analysis.

Method

This is a study that focuses on how different judges within the same court use the federal sentencing guidelines to sanction illegal reentry offenders. Of particular interest in understanding sentence disparity in this context is variation in interpretation and application between judges in both the use of the guidelines and the use of statutory sentencing authority. Prior studies of federal sentencing decisions have relied on multivariate, quantitative analyses of large sentencing outcome datasets. Prior federal sentencing research also has used qualitative interviews of judges and other key court community professionals to identify salient court processes. A substantial body of quantitative studies provide a broad understanding of the factors that are statistically associated with criminal sentencing decisions. This approach lacks the nuanced and contextualized understanding of process. In addition, because the U.S. Sentencing Commission’s data do not include variables that identify the particular judge who sentenced the defendant, there are few studies that examine variation that exists in how different judges utilize the guidelines and the statutory framework. Recent research that is based on interviews of courtroom officials provides a window into the nuances of processes that impact outcomes in criminal cases, the detail of which is often in the form of generalized information (in contrast to case-specific information). Interview data are generally not grounded in the actual factual circumstances of particular cases. A largely untapped method of understanding federal criminal sentencing is direct non-participant observation of the courtroom actors at work in the processes that produce sentencing outcomes. The current study uses a combination of non-participant observation of sentencing hearings and data collected from court records to examine how individual federal judges make sentencing decisions in illegal reentry cases.

Data

In the spring of 2019 and 2020, as part of a broader qualitative data collection effort, information was collected on 179 federal cases (multiple case types). Fifty-three of these cases concern the federal crime of illegal reentry. These 53 cases were collected at a particular district and division within the federal system in a state that borders Mexico. Two sources were used to obtain information. Basic case data were identified from the PACER computerized filing and retrieval system in the District Court Clerk’s Office. From PACER, information was extracted from the criminal complaints filed by the federal agents, plea agreements, motions filed with the court, and other relevant PACER system entries.

A second source of information is direct observation of the sentencing hearings. The hearings of the 53 cases were attended and handwritten notes were recorded on the hearing process. This includes what was said by the U.S. Attorney, defense counsel, the defendant, the judge, and the probation officer. The total time spent in the hearings for the 53 illegal reentry cases was 11 hours and 42 minutes. This time included the sentencing hearing for all cases and (in rare instances) the arraignment hearings and revocation hearings for some of the cases (where the judge combined these other hearings together with the sentencing on the same date and at the same time). The sentencing portion of all of the hearings averaged 11.10 minutes in length with the shortest sentencing lasting 4.36 minutes and the longest lasting 24.10 minutes. These time periods are based on 52 cases, as the timing device malfunctioned during one of the sentencing hearings (ID 42). After each hearing and later in the day, the initial short version of the handwritten notes were read and additional detail and narrative was added to the notes based on immediate recollection of the hearing and on the information that was obtained from PACER.

To support some of the conclusions drawn, the analysis section provides some supplemental evaluation of observations that occurred outside of the sentencing hearing. These include events that happened in courthouse elevators, at the entrance of the courthouse, and in the courtrooms prior to the start of the sentencing hearings. No supplemental observations reported here involved a situation where the researcher engaged any of the participants in conversation or prompted verbal exchange between those involved. Rather, notes were taken on observations that were witnessed in the courthouse in public spaces and areas where the researcher was permitted to be located as a citizen. An example is when the researcher was on an elevator with the U.S. Attorney and defense counsel immediately after the sentencing hearing and they briefly discussed amongst themselves what had happened in the sentencing hearing. The Committee for the Protection of Human Subjects (IRB) at UH-Downtown acknowledged by correspondence (F.S. Allaire, Chair, Committee for the Protection of Human Subjects, personal communication, October 9, 2019) that there is no need to obtain IRB/human subjects approval for this project. The data collection activity does not meet the definition of involvement with “human subjects” because no interaction or intervention, as defined by the applicable regulation (Protection of Human Subjects, 2020), occurred.

Descriptive statistics

From the handwritten narratives of the non-participant observations and the data from PACER, several descriptive variables were generated. These are reported in Table 1. The 53 cases were sentenced by a total of 11 distinct U.S. District Court judges. The number of sentencing hearings per judge ranged from 14 cases to 1 case. Although not intended, the fact that 14 (26.4%) of the observations were handled by Judge 1 is of benefit to the study because this judge had a style and manner that separated the judge from other judges on the court. Ninety-eight percent (52 of 53) of the cases involved a male defendant. The largest portion of the defendants were from Mexico (n=23, 43.4%), followed by El Salvador (n=10, 18.8%). The majority of the defendants were represented by public defenders (n=43, 81.1%). Forty-two percent of the cases (22 of 53) involved a formal plea agreement, and in most of these twenty-two cases a fast-track was pursued as part of the plea deal (n=18, 81.8%). In six of the 18 cases (33.3%) the judge rejected the fast-track motion from the U.S. Attorney.

Among the 53 cases, there is an array of guideline ranges used by the judges as the final guideline range determination. There are 18 different guideline ranges represented. These are listed with descriptive statistics provided in Table 1. The guideline range for a case is determined by an offense score (between 1 and 43) and criminal history category (between I and VI). In most of the cases, the U.S. Attorney’s sentencing recommendation at the time of the sentencing hearing was the low-end of the court-established guideline range (n=21. 39.6%), followed by a high-end of the guideline recommendation (n=14, 26.4%). The high proportion of U.S. Attorney recommendations for a low-end guideline sentence is linked to the existence of a formal plea agreement. Most of the formal plea agreements required that the U.S. Attorney recommend a low-end sentence at the sentence hearing. Defense attorneys most often recommended a sentence at the low-end of the court-established guideline range (n=23, 43.4%) or asked for a downward departure or variance sentence (n=18, 33.7%).

Table 1. Descriptive statistics for qualitative observations

The actual sentences given by the judge in these cases most typically were within the court-established guideline range, either at the low-end (n=20, 37.7%), the middle of the range (n=11, 20.8%) or at the high-end of the range (n=6, 11.3%). Fifteen percent of the final sentences are upward deviations (n=8), and 11.2% (n=6) are downward deviations from the final guideline range that was established by the court. The remaining 3.8% (n=2) of cases are those where the final guideline range established by the court was higher than the statutory maximum sentence for the offense (see the discussion below in the findings section).

Plan (and organizational structure) for the analysis

Salient to the analysis are two basic assumptions. First, sentence guidelines (and sentencing ranges) as well as statutory sentencing provisions limit but do not eliminate sentencing disparities. Judges have and utilize variegated sentencing philosophies. A part of any particular judge’s approach to sentencing will be to interpret and apply the guidelines (including the guideline ranges) and statutory sentencing framework in a way that comports to that individualized philosophy. The manifestation of a judge’s philosophy to the application of the guidelines (including the sentencing ranges) and statutory sentencing framework will potentially be impacted by the professional advocacy provided by the U.S. Attorney and defense counsel at the sentencing stage of the process.   

Second, not all cases offer the sentencing judge the same real or perceived level of discretion to fully implement the judge’s particularized sentencing philosophy. In the illegal reentry cases, the judge’s discretion is constrained by at least three factors: whether the calculated guideline range for the defendant is above the maximum statutory sanction for the offense (“complete constraint”), whether there is a formal plea agreement in the case or (often in the absence of a formal plea agreement) the U.S. Attorney and defense counsel agree on a sentencing recommendation prior to or at the sentencing hearing (“partial constraint”). In instances of “complete constraint”, the U. S. Congress has set a maximum 24-month sentence in an illegal reentry case but the low-end of the calculated guideline range for the case is higher than 24 months. When this happens, the judge must set forth a sentence that is below the court-determined guideline range. In circumstances of “partial constraint,” where there is a formal plea agreement in place, the judge may reject the plea agreement. To do so, however, is a disruption of the norms of the local legal culture, and judges may be hesitant. A judge that sentences higher or lower than a joint and agreed upon recommendation from both attorneys disrupts the work product of the attorneys. A sentencing judge has “complete discretion” when there is no formal plea agreement nor a joint and similar sentencing recommendation from the attorneys. The disagreement by the attorneys in these cases as to the recommended sentence heightens the judge’s discretion.

Based on these two assumptions, the analysis proceeds by making the constraints on judicial discretion in these cases a primary consideration in the organization and thematic structure of the analysis. See Figure 1 for an overview of this organizational structure and for the number of cases that are within each relevant group.

Figure 1. Structure of the illegal reentry cases, by complete constraint, partial constraint, and complete discretion

The notes and the narratives from the sentencing hearings were content analyzed. Handwritten notes and the more extensive narratives were developed using an application called “Notability” on an iPad. The themes reported in the analysis were identified and managed using color-coding features of the application. In the analysis that follows, the term “departure” is used when it is made clear by the judge that a sentence that is higher or lower than the prescribed sentence guideline range is due to a specific guideline provision. Instances where a judge sentences a defendant to a term that is higher or lower than the prescribed range in the sentencing guidelines because of other broader statutory justifications are referred to as a “variance” in the analysis. It is not always clear from what is said at the sentencing hearing whether upward or downward movement from a court-determined sentencing range is due to a departure or a variance. In such instances, the action of the judge is referred to as an upward or a downward “deviation.” In the analysis and case summaries, the criminal history score is indicated by a number and the criminal history category by a Roman numeral (e.g. “6/IV” indicates a offense level score of six and a criminal history category of four). Table 2 below outlines the primary organizational and structural themes to emerge from the analysis.

Table 2. Themes from the qualitative analysis: Sources of disparity, illegal reentry

Results

Complete constraint: Lower-level range exceeds the maximum sentence

In two of the 53 total cases, the judge’s discretion was constrained by the statutory maximum sentence. In illegal reentry cases where the prior removal from the country was subsequent to either a felony conviction or three or more convictions for drug or person-based misdemeanors, the maximum sanction allowable is 120 months (8 U.S.C.A. § 1326 b). In cases that do not meet these prior conviction requirements, the maximum sentence is 24 months (8 U.S.C.A. § 1326 a). Table 3 provides a distribution, by judge, of the complete constraint cases.

Table 3. Descriptive statistics: Sentence outcome (by judge) for the complete constraint cases (maximum statutory sentence of 24 months)

In each of the two cases, the prescribed sentence guideline range was 41-51 months. One case (ID 44) was a guilty plea (Judge 7) and the other (ID 2) was a guilty verdict by trial. In the trial case (Judge 1) it could be strongly inferred from the sentencing proceeding that if the judge had the authority to exceed the maximum 24 month term the judge would’ve done so. This is perhaps because this judge generally assumed a punitive approach to sentencing, or because the defendant forced a trial in the case (what is known as a “trial penalty”). The two judges appeared to differentially experience the constraint on their sentencing authority. Judge 7 approached the hearing in a matter-of-fact way, whereas Judge 1 commented, albeit indirectly, on the constraint.

The defense attorneys’ sentencing recommendations in the two cases were different. The defense attorney whose client had the more extensive criminal and deportation history (ID 44) asked for a lighter sentence than the defense counsel for the other case (ID 2). Prior criminal history and prior deportation history appears to be an imperfect factor to understand what the defense counsel will advocate for in a particular case as a sentencing recommendation. This is not a finding that is unique to the complete constraint cases. Rather, its presence in the complete constraint cases, where it would be least expected, is noteworthy. These are summaries of the notes taken for the complete constraint cases.

Judge 7: ID 44, 15/VI, court-determined GL Range of 41-51 months, 7 prior convictions (assault, DUIs, and illegal entries), and 6 prior removals or deportations. The U.S. Attorney and the defense counsel asked for a 24 month sentence. Defendant chose not to speak. Defense counsel talked about the young age (in his 20s) of the defendant, that he has a 5-year-old son who is a U.S. citizen, and that his mother and half-sibling is in Mexico. The judge sentenced the defendant to 24 months without comment. There was a formal plea agreement in the case, but the only benefit the defendant received was the dismissal of a second illegal reentry charge. 

Judge 1: ID 2, 16/V, court-determined GL Range of 41-51 months, 4 prior convictions, and 5 prior removals or deportations. Defense counsel pointed out that the longest prior incarceration for the defendant was 9 months, so (because the current sentence will be higher) his sentence will have a deterrent effect, to support the request for a sentence below 24 months and credit for time in ICE custody. The defendant chose to not speak. The U.S. Attorney asked for the maximum sentence of 24 months, noting the prior removals and deportations, assault on a family member, 3 prior DUIs, and 4 uncharged illegal entries, and opposed credit for ICE custody. The judge denied credit for ICE custody and stated that “all I can do in this case” because “I can’t go any higher” is a sentence of 24 months. The judge (with an inflection in voice) warned the defendant that if he’s found in this district again the defendant will come before the same judge.         

Partial constraint: Plea agreement or the U.S. Attorney and defense counsel agreement on a sentence

Table 4 provides a distribution, by judge, of the cases that had a formal plea agreement in place at the time of the sentencing hearing.

Table 4. Descriptive statistics: Sentence outcome (by judge) across the cases with a formal plea agreement, n=21 (partial constraint)

For the 21 cases that had a formal plea agreement in place, the sentencing recommendations from the U.S. Attorney and defense counsel were the same in 16 of the cases. In these 16 cases, the final sentence from the judge followed the plea agreement in 10 cases (IDs 18, 20, 28, 31, 32, 39, 41, 42, 47, and 50). The judges’ sentences were higher than the plea agreement but within the guideline range in three cases (IDs 3, 11, and 23), and upwardly varied from the guideline range in three cases (IDs 6, 12, and 13). Eight of the 11 instances where the plea agreement sentence was not followed were sentenced by Judge 1. In 6 of these 8 Judge 1 cases, the judge upwardly varied from the prescribed guideline range. Relative to the practices of the other judges, in aggregation, Judge 1 had a tremendous impact on disparity; through the practice of rejecting plea agreements these cases were sentenced at higher guideline ranges than the cases would have been had they been assigned to a different judge.

The other five cases involved a situation where there was a formal plea agreement in place, but the sentence recommendation of the U.S. Attorney and defense counsel were different at the sentencing hearing (IDs 1, 5, 8, 27, and 33). In two of these five cases (IDs 1 and 33) there was no part of the plea agreement which stated that the U.S. Attorney would make a specific sentencing recommendation (these were not fast-track cases). In two other cases (IDs 5 and 8) there was a fast-track agreement in place which stated that the government would request a low-end guideline sentence and the defense would not request a downward variance. In these cases, it was clear from what was said by the judge at the sentence hearing (before receiving the U.S. Attorney and defense counsel sentencing recommendations) that the judge would deny the fast-track (plea agreement) request. This judicial action enabled the two parties to request different sentences. In the final case that had differing recommendations from the prosecutor and defense counsel, the U.S. Attorney appears to have interpreted the plea agreement to mean that the state could recommend a sentence that was two months higher than the number of months precisely at the low-end of the court-prescribed guideline range.    

The nine cases where the judge rejected the sentence recommendation portion of a plea agreement warrant the most consideration (IDs 3, 5, 6, 8, 11, 12, 13, 23, and 27). Although the 21 cases with a formal plea agreement were assigned to eight different judges, only two of the judges (Judges 1 and 3) exercised their judicial discretion to reject the plea agreement. There are also observed distinctions between the two judges who rejected plea agreements. Judge 1 appeared to be a “rogue loner” in rejecting plea agreements, particularly for cases with a relatively low sentencing guideline. There is some hesitancy to use the term “rogue” here, but this characterization is informed by general observations and comments that were made by others about this judge. For instance, in an elevator ride down in the federal courthouse following a case that was not illegal reentry, the probation officer and U.S. Attorney were engaged in a conversation about Judge 1’s use of the guidelines to increase the sentence in a case. The probation officer offered, “That doesn’t happen with any of the other judges.” On another occasion two U.S. Marshals at the point of the courthouse entry talked about a case where a defendant’s family member tried to bring in a razor blade to Judge 1’s courtroom. One said, “That’s the one judge where you don’t want to do that.” The perception that Judge 1 was different from other judges on the court, due to his punitive orientation, appeared to be fairly known and widespread.

In contrast, Judge 3 was opportunistic in the rejection of plea agreements, only acting when the U.S. Attorney did something to open the door. These are a few summaries of these cases to illustrate the distinct approaches of the two judges.

Judge 1: ID 3, 14/V, court-determined GL Range of 46-57 months, 8 prior convictions, 5 prior removals or deportations, not a fast-track case. The Plea agreement stipulated that the government would recommend a 46 month (low-end) sentence. The U.S. Attorney and defense counsel recommended a 46 month sentence, both asserting that a 46 month term would be 3 times greater than the last sentence that the defendant served. The Defendant stated that he came back to the USA for work and summarized his profession and his plan for life when he returns to his country of origin. The judge sentenced the defendant to a 52 month, mid-range term, and read the defendant’s criminal history out loud, and stated, “I don’t think he’s learning, at all.” 

Judge 1: ID 5, 10/IV, court-determined GL Range of 15-21 months, 4 prior convictions, and 4 prior removals or deportations. A fast-track was sought by the government, but the judge denied the motion. The U.S. Attorney recommended a low-end guideline sentence, and defense counsel asked for a downward variance sentence. The defense counsel presented statistics to the judge from the U.S. Sentencing Commission which showed that in a particular fiscal year, 78% of illegal reentry cases were sentenced within the guideline range, 20% were downward sentences, and only 9% were upward sentences (a strategy that the defense counsel discussed with the U.S. Attorney in the courtroom prior to the start of the hearing). The sentence given by the judge upwardly varied from the guideline range. The defendant’s sentence was 30 months, and the judge referenced the number of prior deportations and the extensive criminal history. 

Judge 3: ID 27, 8/IV (after a 2 level fast-track reduction), court-determined GL Range of 10-16 months, 5 prior convictions, and 3 prior removals or deportations. The judge accepted the fast-track motion, and the U.S. Attorney and defense counsel recommended a low-end guideline sentence. The U.S. Attorney referenced the defendant’s three DWIs and recommended a sentence from 10-12 months, while the defense counsel preferred 10 months. It appears that the U.S. Attorney loosely interpreted “low-end” in the plea agreement to include months that were closer to the mid-range but not at the mid-range. Defense counsel sought to reassert the terms of the plea agreement as “low-end” but the judge stated that is what he heard from the U.S. Attorney. The judge called the DWIs “troubling” because they represent “significant public safety concerns,” and the judge challenged the defense’s assertion that the DWIs are “distant,” and sentenced the defendant to 12 months and a day. The significance of the 12 months “and a day” is that a sentence that exceeds 12 months enables the defendant to qualify for good-time reduction of 54 days per year. Assuming that the defendant earns all good-time credit, the sentence will be 10 months and 10 days. 

These summaries illustrate the different approaches of the two judges in their rejections of the plea agreement. Judge 1 deviated upwardly from the guideline range in cases where the guideline range was relatively low to begin with (a low base point). In cases where the guideline range was higher, Judge 1 rejected the plea agreement (of a low-end sentence) but in issuing a higher sentence stayed within the guideline range. It appears that for Judge 1, there may be a tipping point in any apparent inclination to deviate from the recommendations of the attorneys when there is a plea agreement in place. Of the seven cases where a formal plea agreement that required a low-end recommendation from the U.S. Attorney, Judge 1 upwardly deviated from the guideline range on five occasions (court-established guideline ranges of 0-6, 0-6, 6-12, 15-21, and 18-24, respectively). This judge went higher than the sentencing recommendations of the U.S. Attorney and the defense counsel in two cases by imposing a within range sentence (both cases had a court-established guideline range of 46-57 months).

Judge 3, in contrast, opportunistically rejected the sentence recommendations that flowed from a formal plea agreement and the impact was more minimal (relative to Judge 1). In one case where the plea agreement was not followed, Judge 3 deviated from the sentence recommendation of the plea agreement by handing down a mid-range sentence when the parties had requested a low-range guideline term (ID 23). In the other, the final sentence given by the judge was less than an exact mid-range sentence but was more than a low-end term, and it was prompted by the U.S. Attorney. It is questionable whether in ID 23 the plea agreement was followed by the U.S. Attorney. The position taken here is that it was not followed because the recommendation for a sentence of 12 months when the guideline range is 10-16 is a more “mid-range” sentence and less a “low-end” term.

In both instances where there was an inclination of Judge 3 to not follow the normative understanding of the plea agreement, it was driven by DWIs (see above case, ID 27) or violence in the criminal history of the defendant. In the second instance for Judge 3 (ID 23), the judge noted the “serious criminal history” which “cannot and will not be ignored,” of which “most troubling” were weapons, aggravated assault, and deadly conduct” charges (8/IV, 10-16 month guideline range determined by the court). The approach of Judge 3 in these cases (IDs 23 and 27) is in contrast to how this judge handled a defendant with a plea agreement in ID 28 (8/II, court-determined GL Range 4-10 months, 1 prior felony and 1 prior misdemeanor conviction, 2 prior removals or deportations, low-end recommendation from the U.S. Attorney and defense counsel, and a low-end sentence from the judge). A difference in the cases where Judge 3 rejected the plea agreement (IDs 23 and 27) and where the judge followed the plea agreement (ID 28) was criminal history category (IV in IDs 23 and 27 and II in ID 28).

Ten cases remain where the judge accepted the sentence recommendation terms of the plea agreement. Nearly all of the sentences (9 of 10) were at the low-end of the guideline range. The one case where the guideline recommendation of the prosecution and the defense was mid-range (4 months), the sentence by the judge was a 4 month mid-range term for a defendant who had already served four months of pretrial confinement. Thus, this deviation from the low-end was pragmatic and practical. Since there is no meaningful variation in these cases between what the U.S. Attorney and defense counsel asked for and what the judge decided as a sentence, extensive analysis of these cases is not necessary here. It is notable, however, that these 10 cases are consistent with the organizational compliance notion in the extant literature on sentencing. Ten cases of 21, which is less than fifty percent, may at first glance appear to question this organizational compliance norm. It is important, though, to recall that 8 of the cases where the plea agreement was not followed are attributable to one judge. Removing these 8 cases, 77% (10 of 13) of the cases with a formal plea agreement ended with the judge following the specifics of the sentencing recommendation from the agreement.   

Cases where no formal plea agreement was in place but the attorneys agreed on a sentencing recommendation to present at the hearing may also place a sense of partial constraint on the sentencing judge. These cases are summarized, by judge, in Table 5.

Table 5. Descriptive statistics: Sentence outcome (by judge) across the cases with no formal plea agreement but the parties submitted the same sentencing recommendation, n=5 (partial constraint)

Five different judges are represented in five cases (ID 9, Judge 1; ID 24, Judge 3; ID 37, Judge 5; ID 45, Judge 7; ID 51, Judge 10). Those defendants with offense score/criminal history categories of 6/I (ID 37), 6/II (ID 45), and 10/III (ID 24) had a judge who followed the shared recommendation of the attorneys. The two cases that went higher than the shared recommendation had an offense score and criminal history category of 6/I (ID 51) and 16/II (ID 9), respectively. Offense score and criminal history category appears to be of limited importance in determining judicial use of discretion to go higher than the shared recommendation. Of the three cases with an offense score of 6, only in one instance did the judge go higher. In the two highest offense score cases only one had a sentence higher than the shared recommendation. The same can be said of criminal history category, as the two cases where the judge went higher had categories of I and II, respectively, and in the cases that followed the joint sentencing recommendation, the categories were I, II, and III, respectively. The variation appears to be more attributable to the particular judge deciding the case and not to offense score and criminal history.  

Below are the two case summaries with an identical offense score and criminal history category. These cases are also similar in that both defendants had only one prior deportation and both had all of their family members residing in the nation of origin (no clearly established ties to the U.S.). Judge 10, with a defendant whose only prior crime was a misdemeanor reentry offense, appears to have focused much attention on the small gap in time between the prior deportation and the reentry of interest. Whereas Judge 5, with a defendant with a very serious felony 13 years prior and only one previous deportation did not appear to allow the prior serious felony to impact the sentence, even though it was explicitly mentioned by the U.S. Attorney at the sentencing hearing. In addition, in the sentence handed down by Judge 10, the prosecutor’s recommendation overlapped with the defense’s request (the prosecutor request was for a mid- to high-range sentence, while the defense request was a mid-range term). Had the prosecutor just made a mid-level request the judge may have been inclined to stay at the middle of the range. Judge 5 had a reputation around the courthouse as giving more lenient sentences, whereas Judge 10 had a reputation for giving longer sentences. In this regard, the prosecutor may have tailored the request, knowing that the judge may consider a high-end sentence.      

Judge 10: ID 51, 6/I, court-determined guideline range of 0-6 months, 1 prior conviction (misdemeanor for illegal entry, 2 day sentence, 2 years ago), and 1 prior removal or deportation. Defense counsel asked for a mid-range sentence of 4 months (defendant had served 4 months in federal pretrial detention). Defense counsel emphasized that the entire family is in Guatemala; he has a wife and child and a father and brother who work in agriculture there. His attorney said he understands the consequences if he were to return. Defendant apologized and said the poverty and conditions in his country led him to reenter the U.S. The U.S. Attorney asked for a mid- to upper-range sentence because of the previous deportation. The judge spoke privately with the probation officer, then sentenced the defendant to 6 months, and stressed that the defendant had “extraordinary leniency” and a “free plane ride back to Guatemala in 2018.” The questions of just how long a term is needed so the defendant would not “disregard the laws of the U.S” and “Is your word good?” was mentioned by the judge. The judge told the defendant, “You understand that even though times are hard in Guatemala” that he cannot come back. 

Judge 5: ID 37, 6/I, court-determined guideline range 0-6, 1 prior conviction (felony, sexual assault of a child, 5 year sentence deferred adjudication, 13 years ago), and 1 prior deportation. Both the U.S. Attorney and the defense counsel asked for a mid-range sentence of 3 months (defendant had already served 3 months in pretrial detention). Neither attorney offered explanation or reasons for the recommendation. Defendant apologized to the court; all family was in the U.S. at the time of his reentry. Defendant stated that he wants to rebuild his life in El Salvador. The Judge stated that this is a “time served case” and sentenced the defendant to 3 months. 

The other three cases where the prosecutor and the defense attorney submitted a joint sentence recommendation are not directly comparable because of differences in offense scores and criminal history categories. Nonetheless one case is still instructive. In the second case where the judge went higher than the shared recommendation from the defense counsel and U.S. Attorney (ID 9, Judge 1, 16/II, court-determined 24-30 range, 2 prior deportations, just served time on state drug charges), the prosecutor asked “for at least 24 months” (24 was the low-end of the guideline). The U.S. Attorney emphasized the two prior deportations in the statement to the court. The judge appeared to be influenced by the recent drug charge, the defendant’s not fully accepting responsibility, and (similar to Judge 10 in ID 37) whether the judge could take the defendant’s word that he would not return. The judges with the reputations for handing down the longest sentences (Judge 1 and Judge 10), would inquire or pontificate directly on whether the word of the defendant is believable. This explicit focus on truthfulness from the defendant separated Judges 1 and 10 from the other judges on the court. Below is a partial segment of the written summary of the recorded notes on ID 9 (Judge 1).

During the defendant’s statement the judge interrupted when the defendant said he came here to help his sister. The judge said yes, but you come here and you were dealing drugs. Defendant responded, “No.” He indicated that the drug charge was something that he was “accused of doing.” The judge asked if he plead guilty and then inquired whether he was not truthful then or is not being truthful now … When the defendant said that he needs to stay in Mexico, the judge asked whether the defendant also told this to the immigration officials that threw him out of the U.S. on two other occasions.

Complete judicial discretion: No formal plea agreement or disagreement in attorney sentence recommendation

The 25 cases where the U. S. Attorney and the defense counsel made competing recommendations to the court provide the most comprehensive window into judicial discretion in the sentencing of these illegal reentry defendants. Below, in Table 6, these cases are summarized based on the judge and the sentencing decision.

Table 6. Summary of 25 U.S. Attorney/defense disagreement cases

In these cases, the low-end of the guideline (n=8, 32%) was the most frequent sentence, followed by a mid-range sentence (n=6, 24%), a downward deviation sentence that was less than the low-end of the guideline range (n=5, 20%), a high-end of the guideline range sentence (n=4, 16%), and a sentence that was an upward deviation (n=2, 8%). The low-end guideline range sentences were given by six different judges (Judges 2, 4, 5, 8, 9, and 10), the mid-range sentences by three judges (Judges 2, 3, and 4), the downward sentences by five judges (Judges 2, 5, 6, 7, and 11), the high-end sentences by three judges (Judges 1, 2, and 8), and the upward deviation sentences by only one judge (Judge 1).

Use and meaning of criminal history category

Rules and procedures in sentencing are differentially used by the judges. One illustration concerns criminal history. Guideline ranges, with respect to their low-end, mid-range, high-end, and upward and downward applications are not objective. In addition, the sentence guideline manual, in § 4A1.3, gives authority to a sentencing judge to upwardly or downwardly depart in an instance where the criminal history category is not an adequate reflection of a defendant’s criminal history. This rule, too, is laden with subjectivity in how it may be interpreted and whether it will be applied. Differential judicial emphasis on the meaning and importance of criminal history scoring appears to be a very important source of disparity in sentencing these cases.

Judge 1 frequently expressed a belief that criminal history category calculations are not always true reflections of defendants’ criminal backgrounds. Judge 1 used the available judicial discretion to correct what the judge perceived of as low criminal history scoring. While the narrative below comes from only one case (ID 7), the judge made similar statements and took similar actions in other cases (for instance, IDs 4 and 10). While several other judges (for instance, Judges 2, 3, and 10) made reference to criminal history during sentencing, Judge 1 is the only one to make it a judge-initiated, explicit focus of the analysis at the sentencing hearing. This judge made it a habit to read not only the criminal convictions into the record but also other arrests that were not prosecuted for one reason or another or where charges were dismissed by the court. Judge 1 went beyond the typical use of criminal history that occurred in other judges’ courtrooms during sentencing.  

ID 7, 6/III, 2-8 month guideline range, 4 prior criminal justice contacts (2 DUI, illegal entry, and continuous violence against the family), 2 prior removals or deportations, U.S. recommended a mid-range sentence, and defense counsel recommended a within the guideline range sentence. The defense attorney mentioned 1) the prior criminal justice contacts, 2) that the defendant did time on a two-year sentence, and 3) that the defense is not asking for credit for time incarcerated by the state toward the federal sentence. After deportation, the family will try to work it out and visit since the children are of an age that they can visit. The U.S. Attorney recommended a 6 month sentence since each time he has been deported the defendant returned to commit a crime. The judge pressed the U.S. Attorney on the reason for a mid-range sentence and not a high-end recommendation. The defense attorney was in mid-sentence explaining that there’s been no recent offenses that endangered the community since the DUI was from 6 years ago, when the judge interjected, “Isn’t that endangering the community?” The prosecutor responded that is the reason the recommendation is mid-range and not low-end. The judge read the criminal history into the record and went into detail on the family violence offense and that the complainant in the violence offense told the police that that the defendant had previously assaulted her many times and that she feared him. The judge announced the sentence as a 12-month upward variance.  

Other judges utilized the criminal history of the defendant much differently than Judge 1. Rather than use it as a justification to vary the sentence upward from the guideline range, other judges use it to counter defense attorney requests to make a sentence lower than the guideline range or to justify not significantly departing or varying downward (when asked by defense counsel) from the guideline range. One such case with Judge 4 (ID 30) was a high guideline range case (70-87 months) where the defense counsel asked for a downward deviation sentence and the U.S. Attorney sought a high-end 87 month sentence. When the judge was specifically pressed by the defense counsel to justify the 70 month sentence, the judge cited “the armed robberies.”

There are other illustrations. In six different cases Judge 2 countered defense requests to depart/vary downward from the guideline range where the U.S. Attorney sought a higher sentence than the defense requested. This judge went with the U.S. Attorney’s recommendation in two cases (IDs 16 and 21), the defense’s recommendation in one case (ID 15), and sentenced in between the two recommendations in three cases (IDs 17, 19, and 22). Below are summaries from a few of the Judge 2 cases to illustrate the judge’s use of criminal history.

ID 21, 17/V, 46-57 month guideline range, at least 9 prior convictions, 4 prior removals or deportations, U.S. recommended a within guideline sentence, and defense recommended a downward departure/variance (on basis of inflated criminal history category and credit for state custody). Defense counsel asked the judge to downward depart/vary partially because the criminal history category overrepresented the criminal history. The judge responded that “I’m troubled that this will be his fifth deportation,” and he has “completely flaunted the law.” The judge then noted there’s a lot of criminal history that didn’t count in the criminal history calculations: 2 assaults, 2 DUIs, and a failure to identify that did not count. The judge sentenced the defendant to 46 months (low-end). 

ID 19, 13/II, 15-21 month guideline range, several prior convictions, 4 prior deportations or removals, the U.S. recommended at least a mid-range sentence, and defense recommended a downward departure/variance of 12 months and 1 day. The defense asked the judge to downward depart/vary due to an inflated offense seriousness score and the length of time that the defendant served on a recent state charge. The judge interrupted, seemingly quite annoyed, and started with, “Here’s what doesn’t ring true on this.” The judge inquired about whether the defense attorney knew how many DUIs were not counted in the calculation, and mentioned DUI incidents in 1996, 2000, and 2004, a reentry in 2005, and a failure to identify that did not count toward criminal history points. The judge sentenced the defendant to 15 months (low-end). 

For Judge 3, the focus was more on the type of offenses that are included in the history of the defendant rather than on the overall quantity and the number of uncounted offenses. In one of two different cases where the U.S. Attorney requested a guideline sentence and the defense counsel asked for a specific sentence within the guideline range, Judge 3 seemed to differentially assess the importance of a domestic violence assault and a history of DUI offenses. There were other distinctions between the cases, but most notable about the two cases is the commentary from the judge in ID 26 concerning the DUI and the judge’s lack of attention to the domestic violence assault in ID 25. To be clear, this is not to say that Judge 3 did not take into consideration instances of violence (see the discussion of ID 23 from earlier in the article), rather, it is to point out this judge’s unique concern with DUI offenses. Here are summaries of two cases.

ID 26, 10/III, 10-16 month guideline range, 4 prior convictions (2 felonies, 2 misdemeanors), the U.S. recommended a within guideline range sentence, and defense counsel recommended a sentence no greater than low-end of guideline range. Defense counsel noted that the DUI offenses are separated in time by 10 years, and that the defendant was located because of a DUI offense, and not for “conduct such as drug dealing.” The judge said to the defendant that “I always look at DUI offenses” and the danger posed. The judge characterized the recent DUI as an indication that the defendant is not just here working to provide for a family but that he is engaged in dangerous behavior. Since this is something that the judge “picks up on” he said to the defendant, “is there anything you’d like to tell me” before the sentencing. All the defendant said about the DUI charge is that he shouldn’t be in the country much less driving. The judge sentenced the defendant to 12 months and 1 day (mid-range). 

ID 25, 6/II, 1-7 month guideline range, 1 prior misdemeanor conviction (assault of a family member), 2 prior removals/deportations (5-6 years prior), U.S. recommended a within guideline range sentence, and defense counsel recommended a sentence no greater than mid-range. Both the defense and the U.S. Attorney made a sentence recommendation with no explanation. The defendant chose not to address the court. The judge issued a 4 month (time served in federal custody) sentence (mid-range). 

For the judges who issued some of the more lenient sentences, criminal history did not appear to be an overriding or a disqualifying concern in their openness to a sentence that was below the prescribed guideline range. The guidelines allow judges to consider such factors as the remoteness of the criminal convictions, and judges with a lenient orientation are more likely to apply these to push the sentence downward. In a sentence given by Judge 5 (ID 38), the defendant had one prior removal or deportation thirteen years prior and a cocaine possession conviction fourteen years before the sentencing in the current offense. Defense counsel recommended a downward deviation sentence of 5 months, and the U.S. Attorney asked for a low-end sentence. Judge 5, noting the mitigating circumstances, used the guideline provisions to conclude that the criminal history of the defendant was overrepresented because of the age of the prior convictions and sentenced the defendant as if he were a 10/I (6-12 months, a downward departure) rather than a 10/II (8-14 months). Judge 5 didn’t stop there; the judge then downwardly varied the sentence to get the defendant to 5 months (which was the defense request of time served in federal custody).

Low guideline ranges: Variation in sentences

Most of the variation in sentence outcomes occurred at the lower guideline ranges. Two cases decided by Judges 1 and 7 reflect the different applications of the guidelines and statutory authority to similarly situated cases (in the context of the guideline range). In the first, Judge 7 sentenced a 6/IV defendant to time served in state custody. In the other, also a 6/IV case, Judge 1 used his statutory authority to enhance the punishment to an upward variance. In essence, in two cases with the same offense score and criminal history category, ID 4 received an 18 month sentence, and ID 43 received no time on the federal charge. Although the two cases are exact on the offense score and criminal history category, these two judges are generally quite different, one more stringent (Judge 1) and the other more lenient (Judge 7). There were potentially relevant distinctions in the nature of the criminal history and in the supplementary information presented to the judge at sentencing. This sort of variation in sentencing, based on the judge, appeared to be more prevalent when the prescribed guideline range was relatively low.  

Judge 1: ID 4, 6/IV, 6-12 month guideline range, extensive criminal history including a sexual assault of a child, and 3 prior removals or deportations, U.S. recommended a high-end of the guideline range, and defense recommended a low-end sentence. Defense counsel stressed that the defendant has served three years on a state charge, has been in federal custody already for 6 months, and that the defendant has a young child. The U.S. Attorney asked for a high-end sentence because it is a category IV criminal history case. The judge upwardly varied to an 18 month sentence after reading the criminal history into the record. 

Judge 7: ID 43, 6/IV, court-determined final guideline range 6-12, 4 convictions (3 DWIs and 1 theft), and 1 prior deportation. The U.S. Attorney recommended a mid-range sentence of 9 months arguing that since he has minor children in the U.S. there is a “pull” to return, the 3 DUI convictions in the past three years, and the recent deportation. Defense counsel recommended a time served sentence (from state court) arguing that the federal government could have brought the defendant into the federal system when he was in state custody, sentenced him, and had the convictions run concurrently. Defense counsel also spoke of extensive conversations with the defendant’s family and a plan the family has to come to Mexico upon his deportation. The judge granted the time served request, stating that while he is troubled by the defendant’s alcohol problem, the judge credits the wife’s statement (via a letter) that the defendant will remain in Mexico. 

Another set of comparisons that are illustrative is between IDs 25, 36, and 48 (each with a guideline range of 1-7 months) sentenced by Judges 3, 5, and 8, respectively. Judge 3 sentenced a defendant (6/II) that had 1 prior misdemeanor conviction (assault of a family member) and 2 prior removals or deportations (5-6 years prior) to 4 months of time served in federal custody (the U.S. recommendation was within guideline range, and the defense recommendation was no greater than mid-range). Judge 5 sentenced a defendant with two prior DUI convictions and an illegal reentry conviction (6/II, high-end U.S. Attorney recommendation, low-end defense recommendation) to 2 months of time served in federal custody. Judge 8’s defendant (6/II), with 4 months of time served in federal custody, received a sentence of 7 months at the high-end of the guideline (high-end recommendation from the government and mid-range recommendation from the defense). Similar to the earlier section on distinctions in how judges use criminal history, there is some indication that differences in sentences are attributable to prosecutor use of criminal history and the nature of the defense attorney advocacy. Here are relevant parts of two of the summaries.

Judge 5: U.S. Attorney recommended a 6 month high-end sentence, stating the defendant has had two prior DUIs and that this is the 2nd illegal immigration violation. Defense counsel asked for 2 months of time served, noting that the 2nd DUI conviction was 3-4 years prior and it was a wake-up call because the defendant has stopped drinking. 

Judge 8: The U.S. Attorney recommended a high-end sentence, while the defense counsel recommended a mid-range sentence. Defense counsel noted the last punishment was for 2 months on an illegal entry offense, that his parents and siblings are in Mexico, and made a very vague reference to a plan to remain outside the country. The prosecutor told the court that the defendant is eligible for an upward departure because of his underrepresented criminal history score, and referenced the defendant’s criminal history score. 

High guideline ranges: Low end sentence is normative

There appears to be a shared judicial philosophy that when a defendant has a high guideline range as a starting point, a low-end guideline range is the normative, preferred sentence. The four cases with the highest guideline ranges where the U.S. Attorney and defense counsel did not agree on a sentence recommendation resulted in a low-end term. Three examples are used as illustrations. In the first, sentenced by Judge 8 (ID 46), regardless of very strong advocacy from defense counsel at the sentencing hearing, the judge denied both a motion to downwardly deviate and a request to run the revocation sanction and the sentence concurrently.

Judge 8: ID 46, court-determined guideline range 77-96, 8 prior convictions (4 are felonies), and 4 prior deportations. The defendant was previously sentenced by Judge 5 to 19 months for an illegal reentry offense. The defendant was still on supervised release from that offense when he reentered the country (current offense). Before the sentencing hearing began, Judge 8 held a revocation proceeding on the earlier reentry charge and sentenced the defendant to 8 months. In the sentencing proceeding for the new offense, defense counsel asked for a downward departure, arguing that under the old guidelines (2016 rather than 2018) the sentence range for the current offense would be 24-30 months, rather than the 77-96 that he faces. Defense counsel characterized him as “not a defendant who is a danger.” He has a drinking problem and gets into bar fights and is kicked out by the bouncer. The defendant has no contact with the family and does not know how to reach them. He has served a long time on state charges and has been incarcerated for the past 14 months without money to enjoy minor indulgences like a Coca-Cola. A 24 month sentence with the 8 months on revocation would mean he would serve over a year more than he did on the last illegal reentry conviction. The U.S. Attorney challenged the defense counsel’s claim that the defendant would get a lighter sentence under the old guidelines, noting that under the old guidelines the defendant would be eligible for an enhancement of 60 months due to the aggravated felony provision. The defendant has an extensive criminal history, and has been previously deported; these are the cases the guidelines are meant to address. The judge sentenced the defendant to 77 months, and when asked to run the 77 months and 8 months concurrently rather than consecutively, replied, “No. I will not.” 

In a second case (ID 30), handled by Judge 4, the defense counsel sought to mitigate the harm of the high recommended guideline range by having the mother of the defendant testify in court. The mother spoke about the difficulties her son had endured when he went back to his native country following the initial deportation. While the judge did not follow the high-end recommendation of the U.S. Attorney, the judge did not grant the request for a downward departure/variance, and sentenced the defendant to the low-end of the guideline range.

Judge 4: ID 30, court-determined guideline range 70-87, 2 felony armed robberies, and at least 1 prior removal/deportation. The U.S. Attorney recommended a high-end 87 month term sentence because his prior sentences have not deterred his conduct, and noted that the defendant’s age puts him “in his prime” (for criminal conduct). Defense counsel requested a downward departure/variance sentence of 24 months and asked the court to take testimony from the defendant’s mother. She testified that her son dropped out of school in the 11^th grade to begin working for the family and shortly after that there was the first armed robbery. He was stabbed while in prison and suffered from the conditions of prison. When he was released he was deported to El Salvador. The defendant’s mother said she went there with him but he struggled because he has no memory of the place as a kid, only this adult experience. So he came back. The mother acknowledged the authority of the court and asked for a fair sentence. Defense counsel stressed that the defendant has done his time for the state crimes, noting that a lot of the offense and criminal history points for this offense are for crimes he has already served time for committing. The judge sentenced at the low-end of the guideline, 70 months. Defense counsel objected and stated that the judge did not give a reason for the sentence. The judge responded that the armed robberies are serious crimes and he did not give the high-end of the guideline based on the reasons the mother had stated in her testimony. 

In the third case, Judge 10 (ID 52), following a low-end guideline request from the U.S. Attorney and a downward deviation motion from the defense, sentenced the defendant at the low-end of the guideline. Most interesting about this case is the commentary from the judge that the decision represented “leniency” from the court. This may speak partially to the reason why cases with high guideline ranges are often sentenced at the low-end of the range. 

Judge 10: ID 52, offense score 23, criminal history category III, 57-71 month guideline range, 2 prior felonies, 1 prior deportation, the U.S. recommended a low-end sentence, and the defense recommended a downward deviation. The judge denied the request for a downward sentence on the basis of the length of time that has passed between the events that led to PTSD and the date of the crime. The judge informed the defendant that he sentenced him to the lowest level of the guidelines. He then said, “I hope you will not take this leniency as an invitation to commit more crimes against the United States.” The judge warned that, when deported, the defendant should stay in his country and earn the best, honest living possible, just like “millions of other Mexicans do” and not return because the sentences get longer at each return. The judge wished the defendant the best. 

Use of 12 month and 1 day sentences

There is some evidence that judges differentially use “12 month and a day” sentences toward varying objectives. The significance of the additional day in the federal system is that defendants must be incarcerated for more than 12 months to qualify for good time credit of 54 days per year. When a judge sentences a defendant to 12 months the defense attorney often requests an additional day because in such a situation the sentence becomes just over 10 months. Judge 1 generally does not use the added day and typically denies a request for an additional day on a 12 month sentence. To illustrate, Judge 1 gave a 12 month upward variation sentence in a case with a presumptive 2-8 month guideline range (ID 7). Defense counsel requested that the judge make the sentence 12 months and 1 day. Understanding that to do so would potentially reduce the additional 4 months of time (beyond the high-end of the guideline range) intended by the judge down to 10 months and 10 days (12 months minus 54 days), Judge 1 declined the option.

This is not an anomaly in how Judge 1 approaches these circumstances. In the entire dataset of 53 cases, Judge 1 also declined to add a day to the sentence in two other 12 month sentence cases (IDs 12 and 13). It is further noteworthy that in the entire dataset of 53 cases, four other judges in five different cases added a day to a 12 month sentence to make the defendant good time eligible (Judge 2, ID 20; Judge 3, IDs 26 and 27; Judge 6, ID 42, and Judge 9, ID 50). No other judge used the 12 month and 1 day sentence in the strategic way that Judge 1 used it, to make sentences more punitive. Judge 3 is also somewhat distinct in the use of 12 months and 1 day. In one 10-16 month guideline range case (ID 26), this judge had a “within the guidelines” recommendation from the U.S. Attorney and a low-end recommendation from the defense counsel. Judge 3 sentenced 12 months and 1 day knowing that the defendant would end up serving 10 months and 10 days (12 months minus 54 days), which is what the defense attorney asked from the judge. Judge 3’s use of 12 months and a day in this case appeared to enable the judge to get to the sentence recommendation of defense counsel while placing a requirement on the defendant that he show good behavior while incarcerated to get the effect of the defense counsel’s recommendation.

Unwanted sentence disparity for similarly situated defendants

A provision of the federal statute on imposing a sentence is the “need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct” (18 U.S.C.A. § 3553). In a 15-21 guideline range case (ID 16) that was sentenced by Judge 2, the defense counsel pointed out that the judge had applied the 2016 guidelines rather than the 2018 guidelines in a previously decided case to a similarly situated defendant. This meant that the applicable guideline range in the earlier case was lower. Having this pointed out by defense counsel, the judge in ID 16 (at the urging of defense counsel) deviated from the suggestion of the U.S. Probation Office to apply the 2018 guidelines and instead applied the lower guideline level from the 2016 guidelines. The summary of the written notes for the case is provided below.

ID 16, offense score 10, criminal history category 4, court-determined final guideline range 15-21, 2 prior convictions (1 felony and 1 misdemeanor), and 1 prior deportation. Defense counsel successfully convinced the court that the 2016 guidelines should be used rather than the more punitive 2018 guidelines. The court stated that it believes the U.S. Probation Office is correct in claiming that the 2018 guidelines should be used, but since the court used the 2016 guidelines in a similar prior case, that it would do so in this case. That reduced down the applicable guideline range in the case to 15-21. Defense counsel asked for a low-end sentence, citing the defendant’s significant ties to Honduras and that the defendant hoped to have his wife and daughter (in New York) move there. The judge expressed shock that the defendant has a daughter from a prior relationship and he does not know the name of that daughter. The defendant stated the reason he returned was to care for the mother of his child and his daughter, both in the U.S., who were experiencing hardship. The U.S. Attorney asked for a high-end of the guideline sentence and referenced extensive criminal history, one of which was an offense against a child. The judge gave a 21 month, high-end of the guideline sentence.   

Advocacy by the U.S. attorney and defense counsel and tailored arguments.

An undercurrent to the sentencing in partial constraint and complete discretion cases is the importance of advocacy and the tailoring of arguments to the judge. This is a subterranean theme because it is more implied from the observations than it is explicit. The feel from watching these attorneys in action is that through professional practice they get a sense of where they can go argumentation-wise with particular judges and how far they can push a line of thought in a case. Here are a few illustrations. In ID 5 it appeared as if the defense counsel presented Judge 1 with statistics to show that upward deviations are rare across all U.S. District Courts due to an anticipation that this particular judge would upwardly deviate. Defense attorneys, in particular, appeared to make arguments to Judge 2 because they believed the judge would listen and be inclined to at least give a little. Defense counsel also appeared to understand that they could ask more and expect more of certain of the more lenient judges.  

Discussion

Notions of disparity in criminal sentencing are predicated on the idea of similarly situated offenders. The basic idea is that offenders who commit the same crime, have similar offense circumstances, have the same offense score, and who have commonalities in criminal history scoring or category should be similarly sentenced. This qualitative examination of disparity in sentencing shows how the task of identifying similar offenders and cases is quite difficult. Similarity across cases cannot be reduced solely to factors such as offense score and criminal history. Two defendants who commit the same offense, have the same offense seriousness score and criminal history category, but one has a formal plea bargain in the case and the other does not cannot be said to be similarly situated heading into the sentencing hearing. Moreover, two defendants who commit the same crime and have the same offense score and criminal history category, but have defense attorneys who strategically decide to seek different sentencing recommendations cannot be said to be similarly situated. Case processing factors that result from how the courtroom participants interact with one another over the life of the case make circumstances different. For a sample of 53 cases, this study pursued a different approach to similarly situated cases. It grouped cases by the existence of a formal plea deal and whether there was different sentencing recommendations made by the U.S. Attorney and defense counsel. Even accounting for these case processing factors, there were differences in the sentence outcomes in these cases from different judges within the same courthouse.

Criminal history is not static and viewed and used by all judges in the same manner. These findings suggested that criminal history is much more important as a determining sentencing factor to some judges relative to other judges. When it is important as a punitive factor, the uses of criminal history varied; one judge thoroughly utilized criminal history as a method to vary sentences upwardly from the guideline, another used it to ward off arguments from defense counsel to get the judge to announce a lower sentence, and still another used it more selectively when certain types of offenses were in the record of the defendant. There were differences across judges in this study in the rejection of plea agreements and the implications of those rejections. Some judges strategically used 12 month and a day potential sentences to achieve what appeared to be judicial objectives in sentencing. There was one instance of a judge concerned with reducing sentencing disparity across similarly situated defendants who were part of different criminal actions. This appeared to be a special concern that did not show up with other sentencing judges. This study found qualitative evidence that individual judges disproportionately account for disparity in sentencing within the same courthouse. And a variety of processes accounted for this disparity in illegal reentry cases.

Implications 

This study has several implications for future sentencing research, whether qualitative or quantitative. First, it shed light on processes that are individualized to the behavior of specific judges as they apply the federal guidelines that contribute to disparities in sentencing. The specific offense score and criminal history category which leads to the court’s determination of the guideline range only appears to determine broadly the acceptable range of sentencing. Judges retain and use substantial discretion in sentencing. Criminal history and the use of it and its meaning to the sentencing outcome itself is not an objective endeavor. With respect to the crime of illegal reentry, it (criminal history) is a factor in not only in determining the criminal history category, but it also figures prominently in the offense score as well. The judges strategically utilize the data that they have on criminal history to arrive at an outcome. In the context of quantitative studies of federal sentencing, these process factors may help explain why criminal history is a less than perfect indicator of sentencing outcomes.

Second, it illuminated certain judicial functions and points of decision-making that are not necessarily linked specifically to the guidelines themselves but are nonetheless contributors to sentencing disparity across cases. Quantitative studies of sentencing do not do well at picking up on process-oriented and contextual elements that may increase sentence disparity. For one judge in this study, the rate at which the judge rejected the plea agreement and went above the high-end of the guideline was striking. And for another, there were instances of plea agreement rejection that marginally increased the sentence, relative to other defendants assigned to other judges. Since there was no indication that the remaining judges took these actions, similarly situated defendants (who had a plea agreement) not assigned to these two judges are likely given lower sentences. The use of the 12 months and a day sentence is also another illustration of potential sentencing discrepancies that quantitative research does not fully capture.

Third, the study suggests that, at least for the crime of illegal reentry in this particular division of a district, cases with higher court-determined guideline ranges have a normative “going rate” that is the low-end of the guideline range. It is at the lower court-determined guideline ranges that different judges take liberties within the guideline range and use the guidelines and the statutory sentencing authority to go above or below the low-end of the guideline range based on the judge’s view of the case. This was true even for the more punitive judges on the court. It appears that, in practice, judges feel that at the higher end of the guideline ranges there is little to no need to increase or decrease the sanction past the lower end of the guideline range. At the lower guideline ranges, the judges appear more willing to tailor the sentence based on the judge’s use of the facts of the case and what the judge feels is necessary for the defendant.

Future work to understand guideline sentencing, whether in the federal system or a state system, should incorporate qualitative observations of what actually happens in the courtroom. These techniques offer more contextualized results. An important limitation of this study is that some of the court documents for the cases were sealed from public view, and there was activity in the cases that occurred behind closed doors that may further explain sentencing. Future research should look to open the black box further by examining the strategic decisions that the prosecutor and defense counsel make to tailor arguments to specific judges.

References

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Cases cited

Apprendi v. New Jersey, 530 U.S. 466 (2000).

Blakely v. Washington, 542 U.S. 296 (2004).

Booker v. U.S., 543 U.S. 220 (2005).

Gall v. U.S., 552 U.S. 38 (2007).

Regulations cited

Protection of Human Subjects, 45 C.F.R. § 46 (2020).

Statutes cited

Imposition of a sentence, 18 U.S.C.A. § 3553 (2020).

Improper entry by an alien, 8 U.S.C.A. § 1325 (2020).

Reentry of removed aliens, 8 U.S.C.A. § 1326 (2020).

Sentencing Reform Act of the Comprehensive Crime Control Act, H.R. 5773 (1984).

Contributor

Kevin Buckler is a Professor of Criminal Justice in the Department of Criminal Justice and Social Work at the University of Houston-Downtown. He teaches in the areas of methods and statistics, law, and court systems and processes. His research focuses on understanding criminal justice outcomes from trial and appellate courts and media coverage of crime and criminal justice.

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