Proving Sentencing Disparities Through the JSIN Platform
Defendants convicted of a federal violation are sentenced pursuant to the Federal Sentencing Guidelines. The guidelines consider various factors to determine a range of months that is sufficient to meet the goals of punishment. An in-depth review of the sentencing guidelines can be found in a prior blog here.
Once the guideline range has been established, the district court judge must consider factors under 18 U.S.C. § 3553(a) (and other guideline sections) to determine the final punishment. The district court may sentence the defendant within the guideline range, or for good cause, above or below the guideline recommendation.
We have previously taken a holistic view of the § 3553(a) factors, this post will focus on one particular factor – sentencing disparity. One goal of the sentencing guidelines is to create uniform sentences across jurisdictions. The federal government aims to avoid disparate treatment for criminal defendants across jurisdictional lines. A defendant’s sentence should not depend on whether the crime occurred in Texas or New York. Under § 3553(a), the district court should consider other sentences for similarly situated defendants and avoid unnecessary disparities.
This factor is normally argued in two ways: 1) comparing the defendant to co-defendants within the indictment or 2) comparing the defendant to other defendants in any jurisdiction. The first path is straight forward. Let’s assume two persons are charged with criminal tax fraud in the same indictment and their roles are similar. Additionally, let’s assume the defendants are similarly situated in life story and criminal history. If the first defendant receives a sentence of 24 months imprisonment, the second defendant has a valid argument that he/she should receive the same sentence regardless of the sentencing guideline range. Comparing intra-indictment sentences is a useful tool under § 3553(a). If other defendants are sentenced first, it is imperative the attorney review those sentences and use them to their client’s advantage.
Comparing sentences across jurisdictions is a much more difficult task. To show a sentencing disparity, the attorney must pull sentences for defendants across many jurisdictions and parse out the ones who are similarly situated (role, criminal history, and background). Normally, the attorney will have to show a trend in federal sentencing. Presenting one case where the defendant received a lenient punishment will be insufficient.
This scenario presents an almost insurmountable hurdle for defense attorneys. The amount of research needed to procure these numbers is lengthy. And there is no guarantee that research will bear fruit. Historically, effective use of sentencing disparities resulted from collaboration between many attorneys who individually uncover useful sentences in other jurisdictions.
This year that huge hurdle has been removed. In September of 2021, the United States Sentencing Commission launched an online platform that easily allows attorneys to scan federal sentences across the country for similarly situated defendants – Judiciary Sentencing Information (JSIN). The platform can be accessed using the following link: https://www.ussc.gov/guidelines/judiciary-sentencing-information.
This new platform is a game changer for judges and attorneys. A task that required hours of research is now simplified into minutes of review. The data has been compiled in an organized fashion and attorneys can easily filter results based on their client’s guideline recommendation.
After choosing the appropriate guideline section and recommendation, the system searches for similarly situated defendants across the country and displays the following metrics: 1) average and median sentences, 2) percentage of cases that receive upward or downward departures, 3) percentage of cases that receive probation, and 4) total number of sentences considered.
This information is very useful for making disparity arguments under § 3553(a). If judges are consistently departing downward from the range, it suggests the guidelines overstate the seriousness of the offense. The decisions of other judges can have a marked influence on the final determination. Especially, in a close case.
Below, we will walk through the JSIN statistics for offenses relevant to our firm’s practice, including criminal tax fraud, health care fraud, and distribution/possession of child pornography.
JSIN Platform in Practice
Our firm handles mostly white-collar criminal activity in the federal system. These offenses include criminal tax violations, health care fraud, and child pornography possession/distribution. The following is a break down of some common guideline ranges and their resulting statistics in the JSIN system.
Criminal Tax Violations
Defendants convicted of tax fraud or evasion are sentenced under § 2T1.1 of the Guideline Manual. The total offense level is based on the intended tax loss to the government under the table in § 2T4.1.
Let’s assume a criminal tax defendant is found guilty of tax fraud and the intended tax loss was between $100,000 and $250,000. The base offense level would be 18. If the taxpayer pleaded guilty, he/she would receive a three-point reduction from that base offense level. If no other aggravating factors are present, the final offense level would be 15. Most criminal tax defendants do not have a notable criminal history, so we will assume they fall in criminal history category I.
Based on an offense level of 15 and no criminal history, the sentencing guidelines would suggest a sentence of 18-24 months. The following sentencing statistics illuminate how the district courts are treating defendants under these facts:
Median Sentence: 12 months
Average Sentence: 11 months
Percentage of Cases with Imprisonment: 68%
Percentage of Cases with Probation: 32%
Percentage of Cases Below Range: 73%
Percentage of Cases Above Range: <1%
Percentage of Cases Within Range: 14%
The district courts are consistently providing lenient sentences for criminal tax defendants within this guideline range. One third of the defendants are receiving probation sentences with no imprisonment. Three-fourths of defendants are receiving sentences below the guideline range. This tells us that a criminal tax defendant with low intended tax loss has a great shot at a variance and/or probation at sentencing. These statistics should be presented to the district court in every criminal tax sentencing.
Health Care Fraud
Clients convicted of health care fraud are sentenced under § 2B1.1 of the sentencing guidelines. The base offense level is determined by the intended loss to the government under the fraud table in § 2B1.1(b)(1).
Let’s assume the following facts: 1) the defendant pleaded guilty to health care fraud, 2) the intended loss was greater than $550,000 and less than $1,500,000, 3) the defendant had no criminal history, and 4) the defendant had no other aggravating factors to raise the offense level.
Under those facts, the client would have a base offense level of 21. He/she would receive a three-point reduction for pleading guilty and accepting responsibility. The final offense level would be 18. The criminal history category would be I.
The sentencing guidelines would suggest a range of punishment from 27-33 months in federal prison. The following statistics provide insight into how the district courts are treating defendants under these assumptions:
Median Sentence: 24 months
Average Sentence: 22 months
Percentage of Cases with Imprisonment: 91%
Percentage of Cases with Probation: 9%
Percentage of Cases Below Range: 53%
Percentage of Cases Above Range: <1%
Percentage of Cases Within Range: 26%
Under these facts, the district court are more likely than not to depart downward from the guideline range. The district courts are leaving the range by an average of 5 months. Probation is used only sparingly and likely reserved for defendants with compelling mitigation. Health care fraud attorneys should take these statistics into consideration when honing their arguments for lenient sentences.
Possession/Distribution of Child Pornography
Clients convicted of possession, receipt, or distribution of child pornography are sentenced under § 2G2.2 of the sentencing guidelines. The base offense level is determined by the section of the criminal statute involved in the conviction.
Let’s assume the following facts: 1) the defendant pleaded guilty to receipt of child pornography, 2) the defendant engaged in distribution of the material, 3) the defendant used a computer to commit the offense, 4) the offense involved 600 or more images, and 5) the defendant had no criminal history.
Under those facts, the client would have a base offense level of 31. He would receive a three-point reduction for pleading guilty and accepting responsibility. The final offense level would be 28 and the criminal history category would be I.
The sentencing guidelines would call for a sentence from 78-97 months. The following statistics show how the district court’s have dealt with child pornography defendants in this guideline range:
Median Sentence: 51 months
Average Sentence: 52 months
Percentage of Cases with Imprisonment: 96%
Percentage of Cases with Probation: 4%
Percentage of Cases Below Range: 76%
Percentage of Cases Above Range: 2%
Percentage of Cases Within Range: 22%
During my research with the JSIN platform, child pornography sentencing provides the most shocking statistics. Regardless of the guideline range, district courts are consistently giving sentences far below the recommended range. Put differently, the courts are finding the recommendations from the sentencing commission far outweigh the seriousness of the offense.
This stance makes sense in light of the guidelines draconian stance on child pornography sentencing. Most child pornography cases will suffer from a litany of aggravating factors that drastically increase the recommended punishment. Though most child pornography recommendations will start with a base offense level of 18 or 22, it is nearly impossible to end with an offense level below 30. And many will be in the high 30’s with recommendations over 20 years.
Some of the more absurd aggravating factors are the two-point increase for “using a computer” (every single child pornography case involves the use of a computer in 2021) and the five-point increase for having over 600 images (each video is categorized as 75 images). It is highly unlikely a defendant will be arrested for these charges without these two aggravating factors, amongst others.
These aggravating factors result in exceptionally high guideline recommendations. This fact combined with the usual lack of criminal history from these defendants has led to the district courts leaving the guideline range in a vast majority of cases.
The sentencing commission has provided a useful tool for attorneys and judges to determine the potential sentencing disparities under § 3553(a). Every federal criminal defense attorney should review the data from the JSIN network prior to any sentencing. In most sentencing hearings, the attorney will be arguing for a sentence below the guideline range. Relying on other district court rulings to support arguments for downward departures or variances can be an invaluable tool. The JSIN database should become part of every federal defense attorney’s arsenal.