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Decoupling Federal Offense Guidelines from Statutory Limits on Sentencing

35 Pages Posted: 9 Jan 2013 Last revised: 12 Jun 2014

Kevin Bennardo

University of North Carolina School of Law

Date Written: January 27, 2014


When incorporating statutorily-mandated minimum and maximum sentences into offense guidelines, the United States Sentencing Commission must strike a delicate balance between promulgating guidelines that are consistent with federal law and carrying out its characteristic institutional role of advising sentencing courts of proper punishment based on empirical data and national experience. This article recommends that, in general, when a statutory limit on sentencing deviates from what the Commission deems to be fair punishment, the Commission should incorporate the statutory limit into the offense guideline to the least extent possible. Although this approach may lead to cliffs and plateaus in the guideline’s sentencing ranges and thereby diminish relative fairness between similarly-situated offenders, this approach maximizes the imposition of actually fair sentences (as viewed by the Commission) within the confines of the statutory scheme. Controlled substance offenses, however, are an exception. In some instances, drug offenders are relieved from the application of an otherwise-applicable mandatory minimum sentence through the operation of the statutory “safety valve” or through the government's failure to charge or adequately prove triggering drug quantities. To achieve actual fairness for these offenders, the Commission should promulgate a drug distribution offense guideline that takes no account of statutory limits on sentencing.

Keywords: Criminal sentencing, punishment, sentencing guidelines, sentencing commission

Suggested Citation

Bennardo, Kevin, Decoupling Federal Offense Guidelines from Statutory Limits on Sentencing (January 27, 2014). 78 Missouri Law Review 683 (2013). Available at SSRN: or

Kevin Bennardo (Contact Author)

University of North Carolina School of Law ( email )

Van Hecke-Wettach Hall, 160 Ridge Road
CB #3380
Chapel Hill, NC 27599-3380
United States

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