Sweeping Up Guideline Floors: The Misguided Policy of Amendment 767 to the U.S. Sentencing Guidelines Manual

60 UCLA Law Review Discourse 60 (2013)

14 Pages Posted: 19 Sep 2013 Last revised: 17 Oct 2013

See all articles by Kevin Bennardo

Kevin Bennardo

University of North Carolina School of Law

Date Written: November 8, 2012


Amendment 767 to the U.S. Sentencing Guidelines Manual, effective November 1, 2012, significantly modified the calculation of Guidelines ranges for federal defendants convicted of multiple counts where at least one of the counts is subject to a mandatory minimum sentence. The amendment, which altered section 5G1.2 of the Guidelines and its commentary, provides that the minimum statutory sentence for any count in a multicount conviction raises the floor of the Guidelines range for all counts.

The U.S. Sentencing Commission set forth two reasons for Amendment 767: to resolve a circuit split and to make it easier for district courts to calculate departures and variances by reducing the likelihood of arriving at multiple Guidelines ranges. The first reason is unsupportable because, as communicated to the Commission in the comments to the proposed amendment, no circuit split actually existed. Moreover, the circuits that had resolved the issue all rejected the position adopted by the amendment. Although the Commission is correct that Amendment 767 will lead to some administrative benefits for district courts by reducing the likelihood that a defendant will have multiple Guidelines ranges, those minimal benefits are strongly outweighed by Amendment 767’s negative consequences.

By linking the Guidelines range to a statutory minimum sentence applicable to a different count of conviction, Amendment 767 divorces the punishment determination from the underlying conviction. Such decoupling is counter to both the moral underpinnings of sentencing — an offender’s punishment should not exceed her just deserts — and the statutory directive that district courts should impose a sentence that is no greater than necessary to achieve the goals of sentencing and fix a just punishment. Furthermore, Amendment 767 places additional administrative burdens on the criminal justice system by increasing the need to resentence defendants upon the vacation of a single count of conviction and by incentivizing prisoners to challenge more sentences and convictions through habeas petitions. Therefore, the changes wrought by Amendment 767 are not good sentencing policy and district courts would be well advised to vary from Guidelines ranges calculated through amended section 5G1.2.

Keywords: Criminal sentencing, U.S. Sentencing Guidelines Manual

Suggested Citation

Bennardo, Kevin, Sweeping Up Guideline Floors: The Misguided Policy of Amendment 767 to the U.S. Sentencing Guidelines Manual (November 8, 2012). 60 UCLA Law Review Discourse 60 (2013). Available at SSRN: https://ssrn.com/abstract=2327066

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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