BY ZACHARY MARGULIS-OHNUMA
Since the Supreme Court made the federal Sentencing Guidelines advisory and not mandatory on courts in 2005 in U.S. v. Booker, judges have struggled with how much weight to give the Guidelines in particular cases. Different judges have reached different results in different circumstances. Some well-formulated Guidelines command respect, and are frequently followed. Others, not so much. The U.S. Sentencing Commission (which puts out the Guidelines and keeps track of federal sentencing data nationwide) just issued a report on the results of its study of federal sentences and the impact of the Booker decision. There is a lot to chew on in the 114-page tome, but the bottom line is that judges vary from the Guidelines more often in some kinds of cases — fraud and child pornography — than in others. Because judges do not slavishly follow the Guidelines in fraud and child pornography cases, advocacy at sentencing is even more important than in drug and immigration cases, which more frequently end up with Guidelines sentences. A good sentencing lawyer in a fraud case must explain to the judge why loss amounts and other enhancements are a poor proxy for the defendant’s culpability; in child pornography cases, the defense must help the court understand just how “eccentric” the Guidelines are while convincing the court that the defendant poses no risk to actual child victims, despite his or her possession of illegal material. Wider variances in fraud and child pornography cases also suggest that the judge you draw, and what district you are charged in, matter more in those cases than in other federal cases. Finally, there is no doubt that the U.S. Sentencing Guidelines remain relevant, even, frequently, dispositive. If Probation or the government calculates the Guideline too high, the defense must fight to reduce it to accurately reflect the crime and relevant conduct.