Most federal district court judges are accustomed—even in this age of “advisory” U.S. Sentencing Guidelines (Guidelines or U.S.S.G.)—to sentencing a criminal defendant by first calculating the applicable “Offense Level,” which provides for a range of months of imprisonment, in the “Sentencing Table” of the Guidelines. It is then second nature for many judges to grant departures and/or variances from that initial Offense Level by calculating a specified number of levels downward or upward and then sentencing the defendant within the range of months corresponding to the resulting Offense Level.
But when a statutory maximum or mandatory minimum sentence conflicts with the otherwise applicable Offense Level—and, obviously, the statute controls—most judges, at least on the surface, completely abandon their usual method of sentencing and grant departures and/or variances by a seemingly arbitrary number of months, with no overt reference to departing or varying by any number of Offense Levels.
With judges so habituated to perceiving their sentencing decisions in terms of Offense Levels, however, they may in fact be following their usual sentencing practice, albeit perhaps subliminally, by assigning to a determinate maximum or minimum sentence a corresponding Offense Level and calculating downward or upward by a specific number of levels, as usual, even though they ultimately announce the result as a departure or variance by a number of months.
The problem with this sub rosa reference to an Offense Level is that a statutory maximum or mandatory minimum sentence may fall into a number of different Offense Levels. For example, a statutory maximum sentence of 24 months could fall within one of threepossible Offense Levels: Level 15, 18–24 months; Level 16, 21–27 months; or Level 17, 24–30 months.
The Guidelines themselves are of no help. They simply provide that a statutory maximum or mandatory minimum sentence itself becomes “the guideline sentence” if it conflicts with the otherwise applicable Offense Level. U.S.S.G. § 5G1.1. The Guidelines nowhere mention a corresponding Offense Level in the Sentencing Table. Obviously, however, if a judge follows, consciously or not, a deep-rooted habit of starting a sentencing decision with a particular Guidelines Offense Level, there will be a very different result depending on whether the judge decides to apply the highest or the lowest possible Offense Level that corresponds with the statutory maximum or mandatory minimum sentence.