1. Sentencing Commission Updates Southern District of Ohio
and Helpful Data
Southern District of Ohio
August 26, 2018

2. Office of Education & Sentencing Practice U.S. Sentencing Commission
Presenter
Ebise Bayisa
Senior Attorney
Office of Education & Sentencing Practice
U.S. Sentencing Commission

3. Topics
District Data
2018 Guideline Amendments and 2019 Policy Priorities
Recent Commission Reports
Departure and Variance Data
Other resources on Commission website

4. Commission Resources www.ussc.gov helpline (202) 502-4545 @theusscgov

5. Sentencing Statistics
Commission
Sentencing Statistics 5 5

6. Primary Offense Types National - FY 2017
SOURCE: 2017 Sourcebook of Federal Sentencing Statistics; 66,873 Offenders Sentenced

7. Southern District of Ohio FY 2017
Primary Offense Types
Southern District of Ohio FY 2017
SOURCE: 2017 Sourcebook of Federal Sentencing Statistics; 540 Offenders Sentenced

8. Sentences Relative to the Guideline Range Fiscal Year 2017
All Offenders
N = 66,266
SOURCE: U.S. Sentencing Commission 2017 Individual Data File, USSCFY17.

9. Sentences Relative to the Guideline Range Southern District of Ohio 2017
All Offenders
N = 540
SOURCE: U.S. Sentencing Commission 2017 Individual Data File, USSCFY17.

10. 2018 Amendments

11. 2018 Guideline Amendments, effective November 1,2018
Fentanyl and Synthetic Drugs
New definition of fentanyl analogue: effectively increasing guideline penalties
New increase for knowingly misrepresenting fentanyl or fentanyl analogue as another substance
Establishes drug ratios and minimum offense levels for synthetic drugs (cathinones and cannabinoids)

12. 2018 Guideline Amendments, effective November 1,2018
“Marijuana Equivalency” term will now be:
“Converted Drug Weight”
Bipartisan Budget Act:
Increase penalties for Social Security fraud offenses

13. 2018 Guideline Amendments, effective November 1,2018
§2L1.2 (Illegal Reentry):
Count revocation sentences
“Reversing” U.S. v. Franco-Galvan, 864 F.3d 338 (5th Cir. 2017) and U.S. v. Martinez, 870 F.3d 1163 (9th Cir. 2018)
(b)(2) will now say: “If before the defendant was ordered deported or ordered from the United States for the first time, the defendant engaged in criminal conduct that, at any time resulted in a conviction.”

14. 2018 Guideline Amendments, effective November 1,2018
Alternatives Sentences
Application Note for judges to consider alternative sentences for “nonviolent first offenders” in Zones A & B
Acceptance of Responsibility
“The fact that a defendant’s challenge is unsuccessful does not necessarily establish that it was either a false denial or frivolous”

15. 2018 Guideline Amendments, effective November 1,2018
Upward Departure for Tribal Court Convictions at §4A1.3
Non-exhaustive list of factors for the court to consider in determining whether, and to what extent, an upward departure based on a tribal court conviction is appropriate.

16. Priorities for the Current Amendment Cycle
Crimes of violence and the categorical approach
Circuit splits in light of SCOTUS case Koons v. United States
Criminal history and revocation
Mandatory minimums

17. Reports and Data You
Can Use at Sentencing

18. Commission Reports

19. Career Offender Report – August 2016

20. Career Offender Report
Career offenders are primarily convicted of drug trafficking offenses – nearly three-quarters (74.1%) of career offenders in FY 2014 were convicted of a drug trafficking offense and would have been sentenced pursuant to §2D1.1 (Drugs)
Career offenders are sentenced to long terms of incarceration, receiving an average sentence of more than 12 years (147 months).
As a result of these lengthy sentences, career offenders now account for more than 11 percent of the total BOP population.

21. Career Offender Report
During the past ten years, the proportion of career offenders sentenced within the applicable guideline range has decreased from 43.3 percent in fiscal year 2005 to percent in fiscal year 2014
Government sponsored departures have steadily increased from 33.9 percent to 45.6 percent.

22. Career Offender Report
The career offender directive should be amended to differentiate between career offenders with different types of criminal records, and is best focused on those offenders who have committed at least one “crime of violence.”

23. Career Offender Report
Drug trafficking only career offenders were most likely to receive a sentence below the guideline range (often at the request of the government), receiving an average sentence (134 months) that is nearly identical to the average guideline minimum (131 months) that would have applied to those offenders through the normal operation of the guidelines.

24. Career Offender Report
Drug trafficking only career offenders were most likely to receive a sentence below the guideline range (often at the request of the government).

25. Career Offender Report – Recidivism
Career offenders who have committed a violent instant offense or a violent prior offense generally have a more serious and extensive criminal history, recidivate at a higher rate than drug trafficking only career offenders, and are more likely to commit another violent offense in the future.
Drug Trafficking Only
Career Offenders
Mixed
Violent Only
Any Recidivism
54.4%
69.4%
69.0%
Median Time to Recidivism
26 Months
20 Months
14 Months
Median Number of Recidivism Events 2 3
Most Serious Post-Release Event (%)
Drug Trafficking (26.5%)
Assault (28.6%)
Robbery (35.3%)
SOURCE: U.S. Sentencing Commission’s 2005 Recidivism Release Cohort Datafile, SUMMARY_UPDT. Of the 1,988 cases within the Career Offender analysis, the Commission excluded cases from this analysis that were missing information necessary to perform analysis.

26. Recommended Change to § 994(h)
(h) The Commission shall assure that the guidelines specify a sentence to a term of imprisonment at or near the maximum term authorized for categories of defendants in which the defendant is eighteen years old or older and—
has been convicted of a felony that is a crime of violence, and has previously been convicted of two or more prior felonies, each of which is—
(A) a crime of violence; or
(B) a controlled substance offense OR
(2) has been convicted of a felony that is a controlled substance offense, and has previously been convicted of—
(A) a felony that is a crime of violence; and
(B) a second felony offense that is—
(i) a crime of violence; or
(ii) a controlled substance offense.
As used in this subsection—
the term “controlled substance offense” means an offense described in section 401 of the Controlled Substances Act (21 U.S.C. 841), sections 1002(a), 1005, and 1009 of the Controlled Substances Import and Export Act (21 U.S.C. 952(a), 955, and 959), and chapter 705 of title 46.
the term “crime of violence” means any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that—
has as an element the use, attempted use, or threatened use of physical force against the person of another; or
is murder, voluntary manslaughter, kidnapping, aggravated assault, a forcible sex offense, robbery, arson, extortion, or the use or unlawful possession of a firearm described in 26 U.S.C. § 5845(a) or explosive material as defined in 18 U.S.C. § 841(c).

28. Recidivism Report
Over an eight year follow-up period, almost one-half of federal offenders released in 2005 (49.3%) were rearrested for a new crime or rearrested for a violation of supervision conditions.
Of those offenders who recidivated, most did so within the first two years of the eight year follow-up period. The median time to rearrest was 21 months.

29. Recidivism Report
With the exception of very short sentences (less than 6 months), the rate of recidivism varies very little by length of prison sentence imposed (fluctuating between 50.8% for sentences between 6 months to 2 years, to a high of 55.5% for sentences between 5 to 9 years).

30. Recidivism Report
A federal offender’s criminal history was closely correlated with recidivism rates. Rearrest rates range from 30.2 percent for offenders with zero total criminal history points to percent of offenders in the highest Criminal History Category, VI.

31. Recidivism Report
A federal offender’s age at time of release was also closely associated with differences in recidivism rates. Offenders released prior to age 21 had the highest rearrest rate, percent, while offenders over sixty years old at the time of release had a recidivism rate of 16.0 percent

32. Recidivism Report – March 2017

33. Criminal History and Recidivism Report
The Commission also found differences in recidivism rates among offenders with zero criminal history points. Offenders with zero points and no prior contact with the criminal justice system have a lower recidivism rate (25.7%) than offenders with zero points but some prior contact with the criminal justice system (37.4%).

34. Convictions/Prior Contact
Rearrest Rates for Recidivism Study Offenders in Criminal History Category I
No Criminal History
Convictions/Prior Contact
One Point
Rearrest Rate
25.7%
37.4%
46.9%
Time to Rearrest
27 months
25 months
Most Serious Rearrest Event
Public order
(21.9%)
(21.4%)
Assault
(23.0%)
TOTAL
6,543
4,053
2,972
SOURCE: U.S. Sentencing Commission’s 2005 Recidivism Release Cohort Datafile, RECID05. Of the 25,431 cases in this study, the Commission excluded cases from this analysis that were missing information necessary to perform the analysis. – indicates insufficient number of cases.

35. Criminal History and Recidivism Report
Offenders who have less serious prior convictions (assigned one point) have a lower recidivism rate (53.4%) than offenders who have prior convictions assigned two or three points (71.3% for offenders with at least one two-point offense and 70.5% for offenders with at least one three-point offense).

36. Offenders with 2-Point Sentences, Offenders with 3-Point Sentences
Rearrest Rates for Recidivism Study Offenders by Point Types of Past Convictions
Offenders with Only
1-Point Sentences
Offenders with 2-Point Sentences,
No 3-Sentences
Offenders with 3-Point Sentences
Rearrest Rate
53.4%
71.3%
70.5%
Time to Rearrest
24 months
17 months
Most Serious Rearrest Event
Assault
(24.9%)
(26.8%)
(24.6 %)
TOTAL
6,574
2,793
5,386

38. Youthful Offenders Report Takeaways
“The contribution that neuroscience has made to the study of youthful offending is significant and continues to evolve In light of the science discussed above, there has been significant debate among policymakers regarding the age at which a person should be held responsible for their actions because of different stages of brain development and this debate has also played out in scientific literature. “

39. Youthful Offenders Report Takeaways
“However, there are a number of points on which researchers in this area generally agree:
First, researchers agree that the prefrontal cortex is not complete by the age of 18, which is the legal age of majority in most state jurisdictions and in the federal system.
Second, researchers agree that development continues into the 20s.
Third, most researchers reference 25 as the average age at which full development has taken place, but note there will be significant variation from person to person.

40. Commission Report to Congress: Federal Child Pornography Offenses

41. Child Pornography Report Highlights
A significant percentage of non-production child pornography offenders (31.4%) have known histories of sexually dangerous behavior
Known sexual recidivism was 7.4%
§2G2.2 is outdated and the guideline does not reflect the variations in offenders’ culpability and sexual dangerous

42. Report Takeaways
Three broad factors should be primary considerations in sentencing child pornography offenders:
1) content of collection
2) involvement in offender communities,
3) contact
The guidelines should be amended to address these factors, and Congress should authorize the Commission to amend guideline provisions that were promulgated pursuant to specific congressional directives or legislation 

43. “Policy Disagreement” or “Lack of Empirical Evidence” Argument in Child Porn Cases
Compare
U.S. v Dorvee, 616 F.3d 174 (2d Cir. 2010)
U.S. v. Grober, 624 F.3d 592 (3d Cir. 2010)
U.S. v. Henderson, 649 F.3d 955 (9th Cir. 2011)
With
U.S. v Bistline I, 665 F.3d 758 (6th Cir. 2012)
U.S. v. Miller, 665 F.3d 114 (5th Cir. 2011)
U.S. v. Pugh, 515 F.3d 1179 (11th Cir. 2008)

44. Revised Statement of Reasons Form

45. Use of Revised Form
90.8% of FY16 cases in which the sentence was imposed on or after November 1, 2015 use the revised form.
Compares to 94.9% of cases using the prior version of the form in FY15.
Using the revised form, there is an average of five reasons cited in cases where the sentence is a non-government sponsored below range sentence.
Compares to an average of four reasons cited for non-government sponsored below range sentences in FY15.
Non-government sponsored below range cases include cases sentenced with a departure below the guideline range and cases otherwise below the guideline range. See Table N in the 2016 Sourcebook
for more information. The average number of reasons analysis for FY16 is limited to cases sentenced on or after November 1, 2015 in which the revised SOR form was used by the court.
SOURCE: U.S. Sentencing Commission, FY15-FY16Datafiles, USSCFY15-USSCFY16.

46. Revised SOR Form- Departure Reasons

47. Prior SOR Form- Reasons for Variance

48. Revised SOR Form-Reasons for Variance

49. Reasons Given for Variances
In FY15, in 83.2% of all 12,410 variance cases the court cited the combined “nature and circumstances of the offense and the history and characteristics of the offender” reason.
In FY16, in 42.3% of all 10,138 variance cases the court cited “nature and circumstances of the offense” or one of its subordinate checkboxes as a reason for the sentence.
In FY16, in 74.2% of all 10,138 variance cases the court cited “history and characteristics of the defendant” or one of its subordinate checkboxes as a reason.
FY15 bullet is from the SB. There are 10,324 cases with the reason cited (see Table 25B). 10,324/12,410 (See Table N) = 83.2%

50. Reasons Given for Non-Government Outside the Range Guideline Sentences (SD Ohio)
FY17: Top 10 Below Guideline Reasons
1. Reflect seriousness of offense/promote respect for law.
2. Afford adequate deterrence to criminal conduct
3. Avoid unwarranted disparity
4. History and characteristics of the defendant (§ 3553(a)
5. Protect the public from further crimes
6. Provide correctional treatment
7. Nature and circumstance of the offense
8. Family ties and responsibilities (§5H1.6)
Acceptance of responsibility
10. Mental and emotional conditions
FY17: Top 10 Above Guideline Reasons
1. Reflect Seriousness/Promote Respect/Just Punish
2. Afford Deterrence
3. Protect public from further crimes
4. General aggravating circumstances (§5K2.20)
5. Dismissed and uncharged conduct (§5K2.21)
6. Nature and circumstance of the offense
7. History and characteristics of the defendant 8. Pursuant to the plea agreement
9. Avoid unwarranted disparity
10. Role in the offense
Reasons in red are ones that did not make it into the top 20 for FY 15

51. Reasons Given for Variances
Other variance reasons cited less often include:
Physical Condition – 659 cases (6.5% of all variance cases)
Community Ties – 628 cases
Charitable Service/Good Works – 415 cases
Cooperation Without Government Motion – 312 cases
Military Service – 184 cases
Policy Disagreement with the Guidelines – 155 cases (1.5% of all variance cases)
72 cases involved child pornography
40 cases involved drug trafficking

52. Other Resources on Commission’s Website

53. New Training Resources53 53

54. New Training Resources54 54

55. Updated Quick Facts Drugs Firearms Immigration Economic Crimes
Other Chapter Two Offenses
Offender Groups
Mandatory Minimum Penalties 55 55

56. Guidelines “App” Demo

57. Interactive Sourcebook Demo

58. https://goo.gl/images/1So7jw