CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Monday, August 10, 2015

Harlow on Alternate Variance Sentences and the Federal Sentencing Guidelines

James Harlow has posted Does the Calculation Matter? The Federal Sentencing Guidelines and the Doctrine of Alternate Variance Sentences (South Carolina Law Review, Vol. 66, No. 4, 2015) on SSRN. Here is the abstract:

The Federal Sentencing Guidelines play a central role in the sentencing of federal criminal defendants. A decade ago, in United States v. Booker, the Supreme Court undercut the original purpose for the Guidelines — to bring binding structure to a previously discretionary sentencing scheme — by declaring that the Guidelines were advisory only.

Even though advisory, the Guidelines remain at the procedural heart of the sentencing process and provide “the framework for sentencing.” All sentencing proceedings in the district court begin with the proper calculation of the advisory Guidelines range. Similarly, on review, the courts of appeals initially determine whether the sentencing process was free of procedural errors, including whether the advisory Guidelines range was correctly calculated. 

However, the Guidelines are no longer the beginning and end of a sentencing hearing. A defendant’s advisory Guidelines range is but one of several important factors enumerated in 18 U.S.C. § 3553(a) that a sentencing court must consider. In a case when other, non-Guidelines considerations clearly steered the sentencing court’s discretion, should it matter whether the advisory Guidelines range was correctly calculated in the first place? 

This Article examines the Fourth Circuit’s emergent and evolving doctrine of alternate variance sentences. Under this doctrine, a sentence will not be vacated even if the sentencing court may have erred when calculating the advisory Guidelines range. If it is clear from the record that an advisory Guidelines issue did not influence the ultimate sentence, the appellate panel will assume any Guidelines errors are harmless and proceed to evaluate whether the sentence is substantively reasonable. The doctrine's increasingly frequent application has a significant impact on all actors in the federal criminal sentencing process — prosecutors, defense counsel, defendants, and judges. Moreover, the doctrine implicates important debates about the meaning and effect of the Guidelines after Booker, the distribution of power between district and appellate judges in sentencing, and judicial efficiency.

https://lawprofessors.typepad.com/crimprof_blog/2015/08/harlow-on-alternate-variance-sentences-and-the-federal-sentencing-guidelines.html

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