    Federal Drug Offenses: Departures from Sentencing Guidelines and
    Mandatory Minimum Sentences, Fiscal Years 1999-2001 (24-OCT-03,
    GAO-04-105).

    Created in 1984, the United States Sentencing Commission (USSC)
    was charged with developing the federal sentencing guidelines to
    limit disparities in sentencing among offenders with similar
    criminal backgrounds found guilty of similar crimes. Judges
    determine a specific sentence based on an applicable sentencing
    guideline range, such as 57 to 71 months, provided in the
    guidelines. Judges may impose sentences that fall anywhere within
    the range, above it (upward departures), or below it (downward
    departures). For some offenses, Congress established mandatory
    minimum sentences. Judges may also sentence below the minimum in
    certain circumstances. We examined the differences in drug
    offense departures from sentencing guidelines and mandatory
    minimum sentences among federal courts and the documents the USSC
    used to record and analyze sentences.
    -------------------------Indexing Terms-------------------------
    REPORTNUM:   GAO-04-105
        ACCNO:   A08765
      TITLE:     Federal Drug Offenses: Departures from Sentencing
    Guidelines and Mandatory Minimum Sentences, Fiscal Years
    1999-2001
         DATE:   10/24/2003
      SUBJECT:   Courtroom proceedings
    	     Crimes or offenses
    	     Criminal procedure
    	     Criminals
    	     Drugs
    	     Federal courts
    	     Judges
    	     Comparative analysis
    	     Criminal sentencing

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    GAO-04-105

    United States General Accounting Office

    GAO

                           Report to Congressional Requesters

    October 2003

    FEDERAL DRUG OFFENSES

     Departures from Sentencing Guidelines and Mandatory Minimum Sentences, Fiscal
                                    Years 1999-2001

    GAO-04-105

    October 2003

    FEDERAL DRUG OFFENSES

    Departures from Sentencing Guidelines and Mandatory Minimum Sentences, Fiscal
    Years 1999-2001

    Generally, downward departures are defined as (1) substantial assistance
    departures, made at the prosecutor's request because the offender provided
    substantial assistance to the government; and (2) other downward
    departures made for other reasons, such as a plea agreement, a judge's
    consideration of mitigating factors, or early disposition, i.e., "fast
    track" programs initiated by prosecutors for low-level drug trafficking
    offenses.

    Of federal sentences for drug-related offenses in fiscal years 1999-2001,
    the majority (56 percent) was within applicable guideline ranges. Downward
    sentencing departures were more frequently due to prosecutors' substantial
    assistance motions (28 percent) than for any other reasons (16 percent).

    For federal drug sentences that carried a mandatory minimum term of
    imprisonment, more than half of the drug sentences imposed fell below a
    mandatory minimum. Of these, half fell below a minimum due to prosecutors'
    substantial assistance motions and half due to other reasons.

    After adjusting for differences in offense and offender characteristics
    among judicial circuits and districts, our analysis showed variations
    among certain circuits and districts in the likelihood an offender
    received a substantial assistance departure, other downward departure, or
    a sentence falling below a mandatory minimum. However, these variations
    did not necessarily indicate unwarranted sentencing departures or
    misapplication of the guidelines because data were not available to fully
    compare the offenders and offenses for which they were convicted.

    For drug sentences nationally, USSC receives 96 percent or more of the
    three key documents, including the statement of reasons (SOR), used to
    record sentence length and departures. For a small percentage of drug
    cases in USSC's database, information is missing, incomplete, or too
    difficult for USSC to interpret, principally affecting sentencing analyses
    in districts where the missing or incomplete data are most prevalent.

    Downward Departures for Federal Drug Sentences Imposed in FY 1999-2001

    Highlights of GAO-04-105, a report to congressional requesters

    Created in 1984, the United States Sentencing Commission (USSC) was
    charged with developing the federal sentencing guidelines to limit
    disparities in sentencing among offenders with similar criminal
    backgrounds found guilty of similar crimes. Judges determine a specific
    sentence based on an applicable sentencing guideline range, such as 57 to
    71 months, provided in the guidelines. Judges may impose sentences that
    fall anywhere within the range, above it (upward departures), or below it
    (downward departures). For some offenses, Congress established mandatory
    minimum sentences. Judges may also sentence below the minimum in certain
    circumstances.

    We examined the differences in drug offense departures from sentencing
    guidelines and mandatory minimum sentences among federal courts and the
    documents the USSC used to record and analyze sentences.

    We recommend that USSC and the Administrative Office of the U.S. Courts
    (AOUSC) continue to collaborate on education programs to encourage judges
    and other court officials to use AOUSC's standard statement of reasons
    form (SOR), to complete the SOR more effectively; and to revise the
    standard SOR to better meet the

                           data collection needs of the USSC.

                         www.gao.gov/cgi-bin/getrpt?GAO-04-105.

    To view the full product, including the scope
    and methodology, click on the link above.
    For more information, contact William O. Source: GAO analysis of USSC
    data.
    Jenkins at (202) 512-8757 or
    jenkinswo@gao.gov.

    Contents

      Letter

    Results in Brief
    Background
    Federal Drug Sentences Departed Downward More Often Due to

    Substantial Assistance than for Other Reasons
    More Than Half of Drug Sentences Fell below an Otherwise
    Applicable Mandatory Minimum Sentence
    Likelihood of Sentences Departing Downward or Falling below a
    Mandatory Minimum Varied by Judicial Circuits and Districts
    Opportunities Exist to Improve Sentencing Data Collection and

    Reporting
    Conclusions
    Recommendations
    Agency Comments

                                           1

                                          3 5

    11

    14

    19

    21 24 24 25

      Appendix I Objectives, Scope, and Methodology 28

    Objectives 28
    Scope 28
    Methodology 29

    Appendix II 	Percentage of Sentences Falling below an Applicable Guideline
    Range or An Otherwise Applicable Mandatory Minimum

    Appendix III 	Likelihood of Sentences Falling below a Guideline Range or
    an Otherwise Applicable Mandatory Minimum

      Appendix IV 	Data for Analyzing Departures and Mandatory
      Minimum Sentences at Circuit and District Court
      Levels Limited 61

    Documents USSC Requests from District Courts 61
    How USSC Uses Documents to Create Its Database 61
    USSC Receives Most of Requested Sentencing Documents 62
    USSC Takes Steps to Reduce Missing Document Rate 63

    Missing or Difficult to Interpret Information Can Affect Analysis of

    Departures 64 USSC Actions to Improve Coding 65 Multiple Reasons Cited for
    Missing Documentation and

    Information 65 Other Downward Departures Do Not Solely Reflect Judicial

    Discretion 67

    Appendix V Comments from U.S. Sentencing Commission

    Appendix VI 	Comments from the Judicial Conference Committee on Criminal
    Law

      Appendix VI GAO Contacts and Staff Acknowledgments 81

    GAO Contacts 81 Staff Acknowledgments 81

      Tables

    Table 1: Comparing Downward Departures Due to Substantial Assistance and
    Other Reasons for All Federal Sentences with Federal Drug Sentences,
    Fiscal Years 1999-2001 12

    Table 2: Numbers and Percents of Drug Cases Involving Different Types of
    Offenses or Offenders, and Percentages of Each Type Receiving Sentences
    Departing Downward from the Guidelines 29

    Table 3: Numbers and Percents of Drug Cases Involving Different Types of
    Offenses or Offenders, and Percentages of Each Type Receiving Sentences
    Departing Downward from the Guidelines 32

    Table 4: Hypothetical Example Showing Effect of Two Different Methods of
    Computing Percentages for "Other Downward Departures" 34

    Table 5: Percentages of Drug Cases between 1999 and 2001 Resulting in
    Upward Departures, Within Range Sentences, and Downward Departures, by
    Circuit 39

    Table 6: Percentages of Drug Cases between 1999 and 2001 Resulting in
    Upward Departures, Within Range Sentences, and Downward Departures, by
    District 40

    Table 7: Percentages of Mandatory Minimum Drug Cases between 1999 and 2001
    Resulting in Sentences at or above a Minimum, and below An Otherwise
    Applicable Minimum Due to Substantial Assistance or for Other Reasons, by
    Circuit 44

    Table 8: Percentages of Mandatory Minimum Drug Cases between 1999 and 2001
    Resulting in Sentences at or above the Minimum, and below An Otherwise
    Applicable Minimum Due to Substantial Assistance or For Other Reasons, by
    District 45

    Table 9: Odds on Substantial Assistance Departures and Other Downward
    Departures, and Odds Ratios Indicating the Differences between Circuits,
    before and after Adjusting for Offense and Offender Characteristics 50

    Table 10: Odds on Substantial Assistance Departures and Other Downward
    Departures, and Odds Ratios Indicating the Differences between Districts,
    before and after Adjusting for Offense and Offender Characteristics 51

    Table 11: Odds on Mandatory Minimum Sentences Falling below an Otherwise
    Applicable Mandatory Minimum for Substantial Assistance and for Other
    Reasons, and Odds Ratios Indicating the Differences between Circuits,
    before and after Adjusting for Offense and Offender Characteristics 56

    Table 12: Odds on Mandatory Minimum Sentences Falling below an Otherwise
    Applicable Mandatory Minimum for Substantial Assistance and for Other
    Reasons, and Odds Ratios Indicating the Differences between Districts,
    before and after Adjusting for Offense and Offender Characteristics 57

    Table 13: Percent of Missing Drug Sentencing Documents, by Circuit, as
    Shown in USSC's Database for Fiscal Years 1999-2001 63

    Table 14: Percent of Missing Drug Sentencing Information on Documents USSC
    Received, by Circuit, Fiscal Years 1999-2001 64

    Table 15: First Reason Provided by Judges for Other Downward Departure in
    Drug Sentences Nationwide, Fiscal Years 1999-2001 68

    Table 16: Second Reason Provided by Judges for Other Downward Departure in
    Drug Sentences Nationwide, Fiscal Years 1999-2001 72

    Table 17: Third Reason Provided by Judges for Other Downward Departure in
    Drug Sentences Nationwide, Fiscal Years 1999-2001 74

      Figures

    Figure 1: Sentences Departing from Guideline Ranges and Sentences Falling
    below a Mandatory Minimum 2 Figure 2: Geographical Boundaries of the 12
    Regional Circuit Courts of Appeals and 94 District Courts 6 Figure 3:
    Illustration of a Sentencing Guideline for an Offense of Conviction
    Carrying a Mandatory Minimum 8

    Figure 4: Percent of Substantial Assistance and Other Downward Departures
    for Drug Sentences, by Circuit, Fiscal Years 1999-2001 13

    Figure 5: Number of Districts by Percent of Drug Sentences Departing
    Downward Due to Substantial Assistance or for Other Reasons, Fiscal Years
    1999-2001 14

    Figure 6: Percent of Drug Sentences Meeting or below an Otherwise
    Applicable Mandatory Minimum, Fiscal Years 1999-2001 15

    Figure 7: Summary of Mandatory Minimum Drug Sentences below an Otherwise
    Applicable Mandatory Minimum and Departing Downward Compared with
    Sentences that Did Not Carry a Mandatory Minimum, Fiscal Years 1999-2001
    17

    Figure 8: Percent of Drug Sentences Falling below an Otherwise Applicable
    Mandatory Minimum due to Substantial Assistance or for Other Reasons,
    Fiscal Years 1999-2001 18

    Figure 9: Number of Districts by Percent of Sentences Falling below an
    Otherwise Applicable Mandatory Minimum Due to Substantial Assistance or
    Other Reasons, Fiscal Years 1999-2001 19

    Abbreviations

    AOUSC Administrative Office of the U.S. Courts
    J&C Judgment and Commitment Order

    PSR Presentence Report
    SOR Statement of Reasons
    USSC U.S. Sentencing Commission

    This is a work of the U.S. government and is not subject to copyright
    protection in the United States. It may be reproduced and distributed in
    its entirety without further permission from GAO. However, because this
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    separately.

    United States General Accounting Office Washington, DC 20548

    October 24, 2003

    The Honorable F. James Sensenbrenner
    Chairman
    Committee on the Judiciary
    House of Representatives

    The Honorable Howard Coble
    Chairman
    Subcommittee on Crime, Terrorism,

    and Homeland Security Committee on the Judiciary House of Representatives

    The Sentencing Reform Act of 19841 established the independent U.S.
    Sentencing Commission (USSC) and charged it with developing the Federal
    Sentencing Guidelines. The guidelines were intended to avoid unwarranted
    disparities in sentences among defendants with similar criminal records
    who were found guilty of similar criminal conduct without eliminating the
    thoughtful imposition of individualized sentences.2 To foster this goal,
    the guidelines specify sentencing guideline ranges-a range of time (in
    months)-that offenders should serve given the nature of their offense and
    other factors but also permit sentences to depart upward or downward from
    guideline ranges due to aggravating or mitigating circumstances. For
    certain types of offenses, including certain drug and weapons offenses,
    Congress has statutorily specified mandatory minimum sentences that
    supplant the otherwise applicable guidelines range (see fig. 1). Judges
    may impose sentences that depart downward from established guidelines or
    fall below a mandatory minimum at the request of the prosecution because
    the defendant has provided substantial assistance to the government. USSC
    designates sentences departing downward for this reason as substantial
    assistance departures. 3 A judge may also depart downward as a result of
    accepting a plea agreement or after considering characteristics of the
    offender or the offense not fully covered in the

    118 U.S.C. 3551 et seq., 28 U.S.C. 991-998. 228 U.S.C. 991(b)(1)(B); see
    also S. Rep. No. 98-225, p. 52 (1983). 3See 18 U.S.C. 3553(e).

    guidelines, such as extraordinary rehabilitation efforts after the offense
    but prior to sentencing. To distinguish such sentences from substantial
    assistance sentences, USSC designates them as "other downward departures"
    as part of its data gathering efforts.

    Figure 1: Sentences Departing from Guideline Ranges and Sentences Falling below
                                  a Mandatory Minimum

                    Sources: USSC 2002 guidelines and GAO analysis.

    As you requested, this report discusses downward departures for federal
    drug offenses. We identified the extent to which federal drug sentences
    departed downward from a guideline range determined by the court or fell
    below an applicable mandatory minimum in fiscal years 1999-2001. Our
    objectives were to (1) identify the percentage of federal sentences, and,
    specifically, those for drug-related offenses, departing downward due to
    substantial assistance motions or other reasons; (2) identify the
    percentage of federal drug sentences that fell below an applicable
    mandatory minimum due to substantial assistance motions or other reasons;
    (3) compare the likelihood across judicial circuits and districts that
    offenders received downward departing sentences or sentences below a
    mandatory minimum; and (4) identify limitations, if any, of USSC's
    sentencing data for drug offenses.

    To meet these objectives, we obtained USSC's sentencing database for
    fiscal years 1999 through 2001 and used its coding scheme to identify (1)
    sentences departing downward due to a prosecutor's substantial assistance
    motion (substantial assistance departures); (2) sentences that

    departed downward for other reasons (other downward departures); and (3)
    sentences that fell below an applicable mandatory minimum. We used the
    offender and offense characteristics in USSC's database to statistically
    control for major differences among circuits and districts in the types of
    offenders sentenced and the offenses for which they were sentenced.
    However, it is important to note that a variety of other variables, such
    as an offender's extraordinary rehabilitation efforts after the offense
    but prior to sentencing, could affect departure decisions, but data for
    these variables are not readily available.

    We also reviewed the types of documents USSC staff used to identify
    departures, the reasons for those departures, and the number of missing
    documents by circuit and district. We interviewed officials at USSC and
    the Administrative Office of the U.S. Courts (AOUSC), the administrative
    arm of the federal judiciary, and the Chair, Committee on Criminal Law of
    the Judicial Conference of the United States, the judiciary's principal
    policymaking body. We conducted our work between March and August 2003 in
    Washington, D.C., in accordance with generally accepted government
    auditing standards. Appendix I includes a more detailed description of our
    scope and methodology. Appendixes II and III provide more detailed
    descriptions of how we applied our methodology.

    Federal judges imposed 175,245 sentences subject to the federal sentencing
    guidelines in fiscal years 1999-2001. Of the 162,090 sentences for which
    complete departure information was available, the majority of all federal
    criminal sentences (64 percent) as well as drug sentences (56 percent)
    were within applicable guideline ranges. Of the federal sentences that
    departed downward, 18 percent departed downward due to prosecutors'
    substantial assistance motions and 17 percent departed downward due to
    other reasons. Federal drug sentences imposed during the same period
    departed downward more frequently due to prosecutors' substantial
    assistance motions (28 percent) than for other reasons (16 percent).4

    4Other reasons that sentences departed downward included early
    disposition, that is, "fast track," programs initiated by prosecutors;
    plea agreements; and judges' consideration of mitigating circumstances.
    See appendix IV for more information on the frequency of reasons cited for
    other downward departures.

      Results in Brief

    Of 68,670 federal drug sentences imposed during fiscal years 1999-2001
    with complete departure and sentence length information, 41,861 carried a
    mandatory minimum term of imprisonment. Of these, more than half (52
    percent) fell below an otherwise applicable mandatory minimum sentence. An
    equal proportion of sentences fell below an otherwise applicable mandatory
    minimum due to substantial assistance (26 percent) as for other reasons,
    such as the safety valve (26 percent).

    After taking into account differences in offender and offense
    characteristics across the 12 judicial circuits and 94 districts, our
    statistical analysis showed major variation among certain judicial
    circuits and districts in the likelihood of an offender receiving a
    substantial assistance departure, other downward departure, or a sentence
    falling below a mandatory minimum. For example, offenders sentenced in the
    Third Circuit during fiscal years 1999-2001 were over 3 times more likely
    to receive a substantial assistance departure at a prosecutor's initiative
    than offenders sentenced in the First Circuit. Further, the odds that an
    offender would be granted an "other downward departure" also varied
    substantially across circuits. For example, offenders sentenced in the
    Ninth Circuit were over 18 times more likely to have received an other
    downward departure than offenders sentenced in the Fourth Circuit. We
    analyzed the extent to which sentences departed below applicable
    guidelines on average nationally; however, we did not compare the degree
    to which the length of the departures varied across circuits and
    districts. Finally, it is important to note the departure differences
    among circuits and districts that we found may not, in and of themselves,
    indicate unwarranted sentencing departures or misapplication of the
    guidelines. Empirical data on all factors that could influence sentencing
    were not available, and so an analysis that could fully explain why
    sentences varied was not possible.

    USSC data were generally sufficient for our analyses of downward
    departures and mandatory minimum sentences across circuits and for the
    great majority of districts. USSC's sentencing data are based on
    information from five documents usually produced for each case during the
    sentencing process, but it principally relies on three of them-the
    Judgment and Commitment Order (J&C), Statement of Reasons (SOR), and
    Presentence Report (PSR)-to identify the length of sentences imposed,
    departures, and the reasons for departures. For drug sentences nationally,
    USSC receives 96 percent or more of these three key documents. For a small
    percentage of drug cases nationally, information regarding departures or
    the reasons for departures is lacking in USSC's database because documents
    are missing, incomplete, or too difficult for USSC to interpret.
    Opportunities for improving USSC data exist.

    In order to improve USSC's data on federal drug sentences, we are making
    recommendations that USSC and AOUSC collaborate to improve the collection
    and recording of sentencing information through education programs,
    further revision of the standard SOR, and notification of Chief Judges of
    unclear, incomplete or difficult to interpret information received from
    their districts. On October 10, 2003, we received official written
    comments on a draft of our report from USSC and the Chair of the Judicial
    Conference Committee on Criminal Law that generally agreed with our
    recommendations (see app. V). However, the Chair of the Criminal Law
    Committee noted that our report did not sufficiently distinguish downward
    departures that are due to judicial discretion from those that are due to
    prosecutorial discretion. As a result, according to the Committee, the
    category "other downward departures" invites confusion, and some may
    mistakenly attribute all such departures to judges. We state in our report
    that all other downward departures are not attributable to judicial
    discretion and that data were not available to fully distinguish sentences
    that are attributable to judicial discretion from those due to
    prosecutorial discretion. USSC, AOUSC, and Department of Justice also
    provided technical comments that we incorporated as appropriate.

    The United States is divided into 94 federal judicial districts, each
    containing the federal trial courts, where criminal and civil cases are
    tried. Congress placed each of the 94 districts in 1 of 12 regional
    circuits, each containing a court of appeals, to which district court
    decisions may be appealed. Figure 2 is a map of the United States showing
    the geographical boundaries of the 94 district courts and the 12 regional
    circuit courts of appeals (including 11 numbered circuits and the District
    of Columbia Circuit.). There is also a Court of Appeals for the Federal
    Circuit with nationwide jurisdiction for specific types of cases, such as
    patent appeals. This court does not hear cases involving the federal
    sentencing guidelines.

      Background

     Figure 2: Geographical Boundaries of the 12 Regional Circuit Courts of Appeals
                                 and 94 District Courts

    Sources: Administrative Office of the U.S. Courts and GAO (data);
    copyright (c) Corel Corp. All rights reserved (map).

    In 1984, to help ensure that similar crimes committed by similar criminals
    were punished with similar sentences, Congress, under the Sentencing
    Reform Act, established the U.S. Sentencing Commission (USSC) and directed
    that it develop a comprehensive sentencing scheme for federal crimes.5
    USSC established guideline ranges for the length of federal prison

    528 U.S.C. 994.

    sentences taking into account offender and offense characteristics to
    establish appropriate sentence terms. The sentencing guidelines cover more
    than 90 percent of all felony and Class A misdemeanor cases in the federal
    courts. The sentencing guidelines do not apply to Class B or C
    misdemeanors or infractions, offenses with a maximum prison exposure of 6
    months or less.6

    Applying USSC's guidance, federal district judges in the 94 federal
    district courts determine the appropriate sentencing guideline range for
    an offender based on various factors related to (1) the offense and (2)
    the offender. The offense is assigned an offense level, which for drug
    offenses is based on several factors such as the quantity and type of drug
    involved and whether the offense involved violence. The offender is also
    assigned a criminal history category based on the number of criminal
    history points. Criminal history points reflect the severity of an
    offender's prior criminal record. Taken in combination, the offense level
    and criminal history category correlate with a sentencing guideline range,
    which is expressed in months. In addition, for some drug offenses where a
    mandatory minimum sentence applies, the applicable mandatory minimum
    sentence supplants the lower end of the applicable guidelines sentencing
    range. For example, as shown in figure 3, a convicted offender whose
    offense of conviction is assigned an offense level of 25 and who has a
    "criminal history category I" should be sentenced between a maximum of 71
    months and a minimum of 57 months under the sentencing guidelines unless a
    mandatory minimum greater than 57 months (e.g., 60 months) is required. A
    sentence less than 60 months falls below the applicable mandatory minimum.

    6See USSC 2002 Guidelines, 1B1.9 and ch. 1, pt. A, intro. comment. 5.

    Figure 3: Illustration of a Sentencing Guideline for an Offense of
    Conviction Carrying a Mandatory Minimum

    The guidelines also permit sentences that fall above or below an
    applicable guidelines range, often called upward or downward departures,
    respectively, in certain circumstances. As illustrated in figure 3, a
    sentence of more than 71 months would depart upward from the applicable
    guideline range while a sentence of less than 57 months would depart
    downward, falling below the lower end of the guideline range.

    At the request of the prosecution, the judge may depart downward because
    the defendant has provided substantial assistance to the government-what
    USSC designates as substantial assistance departures. But the guidelines
    also provide that a judge may depart downward if the court finds certain
    mitigating circumstances exist that were not adequately taken into
    consideration by USSC in formulating the guidelines that should

    result in a sentence below the guideline range.7 To assist sentencing
    courts, the guidelines list both encouraged departure factors (such as
    coercion or duress, diminished capacity, or aberrant behavior of
    non-violent offenders) and discouraged though permissible departure
    factors (such as age, physical condition, family responsibilities, or
    prior good works).8 Judges may also consider other, unmentioned factors
    that were not adequately considered by the guidelines (such as
    extraordinary rehabilitation after the offense but prior to sentencing).
    USSC designates consideration of encouraged, discouraged, and unmentioned
    factors as "other departures." Judges are required to explain the reasons
    for departing from the guidelines. The recently enacted PROTECT Act of
    2003 makes clear that the reasons must be specific, written, and provided
    to USSC.9

    USSC maintains a database that records a variety of data on the offenders
    and offenses for which sentences are imposed. Judges must comply with
    USSC's data collection needs by furnishing a written report of the
    sentence, and the PROTECT Act makes clear that specific sentencing
    documents must accompany that report.10 Included in these data is
    information on whether the sentences imposed fell within or outside the
    applicable sentencing guidelines range as determined by the sentencing
    judge. Information on the incidence of sentencing outside of the guideline
    ranges is used by USSC to identify areas where the sentencing guidelines
    may need adjustment. Congress, under the PROTECT Act, directed USSC to
    review the grounds of downward departures that are authorized by its
    sentencing guidelines, policy statements, and official commentary, and to
    promulgate amendments to ensure that the incidence of downward departures
    is substantially reduced. The required amendments to the sentencing
    guidelines are due October 27, 2003.11

    As previously noted, various drug offenses carry a mandatory minimum.12
    For such offenses, the mandatory minimum precludes judges from

    7See 18 U.S.C. 3553(b); USSC 2002 Guidelines, ch. 5, pt. K, sec. 2.
    8See USSC 2002 Guidelines., 5K2.0 and ch. 5, pt. H, intro. comment.
    9See P.L. 108-21 (April 30, 2003), sec. 401(c), amending 18 U.S.C.
    3553(c).
    10See id., sec. 401(h), amending 28 U.S.C. 994(w).
    11See id., sec. 401(m)(1), (2)(A).
    12See 21 U.S.C. 841, 844, 846, 960, 963.

    sentencing at a lower guideline range minimum or from granting a downward
    departure that might otherwise be available, unless one of two statutory
    provisions applies. First, a judge may impose a sentence below the
    applicable mandatory minimum if the government (the federal prosecutor)
    files a motion with the court for such sentencing relief because of the
    defendant's "substantial assistance" in the investigation or prosecution
    of another person.13 The discretion to make such a motion rests solely
    with the prosecutor. Second, in the absence of a substantial assistance
    motion, the "safety valve" provision affords relief from any otherwise
    applicable mandatory minimum sentence for drug offenders who have minimal
    criminal history (i.e., no more than 1 criminal history point); were not
    violent, armed, or high-level participants; and provided the government
    with truthful information regarding the offense. In these cases, the court
    is directed by statute to impose a sentence pursuant to the sentencing
    guidelines without regard to a mandatory minimum.14

    As incorporated in USSC's sentencing guidelines, both the substantial
    assistance and the safety valve provision may affect sentencing for
    offenders whose offense of conviction does not carry a mandatory minimum
    sentence-that is, whose sentences are solely governed by the application
    of the sentencing guidelines. For such offenders, a substantial assistance
    motion permits the judge to depart downward from the applicable guidelines
    range.15 With respect to the safety valve, the sentencing guidelines
    provide offenders who are convicted of certain drug offenses and who meet
    the legislative safety valve requirements a 2-level decrease to their base
    offense level, for example, from level 25 to level 23.16

    13See 18 U.S.C. 3553(e).
    14See id. 3553(f).
    15See USSC 2002 Guidelines, sec. 5K1.1.
    16See id., secs. 2D1.1(b)(6); 2D2.1(b)(1).

      Federal Drug Sentences Departed Downward More Often Due to Substantial
      Assistance than for Other Reasons

    The majority of federal sentences fell within an applicable guideline
    range, but when sentences departed downward, or fell below a guideline
    range, they did so about as often due to substantial assistance as to
    other reasons. Of the 162,090 federal sentences from fiscal years
    1999-2001 for which complete sentencing information was available, most
    were within the guideline ranges determined by the court (64 percent), and
    about an equal proportion of sentences departed downward due to
    substantial assistance (18 percent) as for other reasons (17 percent).17

    Similar to federal sentences overall, of the 69,279 drug sentences for
    which complete departure information was available, we found that most
    sentences were within guideline ranges (56 percent). Unlike federal
    sentences overall, from fiscal years 1999 to 2001, federal drug sentences
    departed downward more frequently due to substantial assistance (28
    percent) than other reasons (16 percent), as shown in table 1. Other
    reasons that drug sentences departed downward included early disposition,
    that is, fast track, programs initiated by prosecutors; plea agreements;
    and judges' consideration of mitigating circumstances. See appendix IV for
    more information on the frequency of reasons cited for other downward
    departures.

    17Since circuits and districts may vary widely in the number of offenders
    and type of offenses for which they are convicted, analyses that identify
    the percent of cases that fell below an applicable guideline range or a
    mandatory minimum do not provide a fair basis for comparing sentencing
    practices across circuits and districts. For example, a greater proportion
    of offenders appearing before a district court who possessed and shared
    information of a crime that assisted the government in the investigation
    or prosecution of others or whose offenses were less serious may influence
    the frequency of sentences that fell below an applicable guideline range.
    Taking various offender and offense characteristics into account to
    identify the likelihood of a sentence falling below a guideline range or a
    mandatory minimum provides a more accurate picture of variation in
    sentencing across circuits and districts. We provide this statistical
    analysis later in the report. See appendix I for more information on the
    limitations of percentages as a basis for comparison.

    Table 1: Comparing Downward Departures Due to Substantial Assistance and
    Other Reasons for All Federal Sentences with Federal Drug Sentences,
    Fiscal Years 1999-2001

    All criminal sentencesa Number Percent Number Percent

    All drug sentences

                           Sentences imposed   175,245            72,283
                     Sentences with complete
                      sentencing information  162,090b    100    69,279b      100
                 Sentences within guidelines   104,389     64     39,138
                           Upward departures     980       c       143

                                  Downward departures

    Substantial assistance 29,247 18 19,107

    Other reasons 27,474 17 10,891

    Source: GAO analysis of USSC Data.

    aIncludes only offenders who were sentenced under the Federal Sentencing
    Guidelines.

    bThe USSC database lacked departure information on a total of 12,630 (7
    percent) of all federal sentences; of these, the USSC database lacked
    departure information on 3,004 (4 percent) federal drug sentences. An
    additional 525 sentences were missing offense type information.

    cLess than 1 percent.

    Prosecutors' substantial assistance motions resulted in downward departing
    sentences that were on average 49 percent of the average lowest sentence
    drug offenders otherwise would have received under the guidelines. Other
    downward departures resulted in sentences that were on average 57 percent
    of the average lowest sentence drug offenders otherwise would have
    received under the guidelines. See appendix I for more detailed
    information on sentence reductions.

    The percentage of drug sentences that departed downward due to
    prosecutors' substantial assistance motions or for other reasons varied
    across judicial circuits in fiscal years 1999-2001, as shown in figure 4.

    Figure 4: Percent of Substantial Assistance and Other Downward Departures
    for Drug Sentences, by Circuit, Fiscal Years 1999-2001

    The percentages of drug sentences departing downward differed notably
    across the 94 districts, even in some cases among districts within the
    same circuit. Figure 5 shows the 94 judicial districts grouped according
    to the percent of sentences imposed in districts that departed downward
    due to substantial assistance and for other reasons. In 55 districts, more
    than 30 percent of sentences departed downward due to substantial
    assistance, while in only 5 districts more than 30 percent of the
    sentences departed downward due to other reasons. However, these
    percentage differences do not take into account differences in offender
    and offense characteristics that may contribute to differences among
    circuits and districts.

    Figure 5: Number of Districts by Percent of Drug Sentences Departing
    Downward Due to Substantial Assistance or for Other Reasons, Fiscal Years
    1999-2001

    Number of districts

    71

    0 to 10% 11 to 20% 21 to 30% 31 to 40% 41 to 50% 51 to 60% Over 60%

    Substantial assistance departures Other downward departures

    Source: GAO analysis of USSC data.

    More Than Half of

      Drug Sentences Fell below an Otherwise Applicable Mandatory Minimum Sentence

    Of 41,861 federal drug sentences included in our analysis that carried a
    mandatory minimum term of imprisonment, more than half (52 percent) fell
    below an otherwise applicable mandatory minimum sentence. These sentences
    were split equally among those that fell below an otherwise applicable
    mandatory minimum sentence due to substantial assistance (26 percent) and
    those that fell below for other reasons, such as the safety valve (26
    percent).18 (See fig. 6.)

    18If a sentence fell below a mandatory minimum sentence and involved a
    substantial assistance motion, we described the sentence as a "substantial
    assistance sentence falling below." If a sentence otherwise fell below, we
    described that sentence as falling below because of "other reasons." The
    data indicated that most, but not all, of sentences falling below for
    other reasons involved the safety valve provision, which is the only
    mechanism by which a judge may disregard a mandatory minimum in the
    absence of a substantial assistance motion. Reasons for 681 drug sentences
    falling below a mandatory minimum were not clearly indicated on the
    sentencing documents, according to USSC officials. Our analysis included
    these sentences as falling below a mandatory minimum for other reasons.

    Figure 6: Percent of Drug Sentences Meeting or below an Otherwise
    Applicable Mandatory Minimum, Fiscal Years 1999-2001

    Below mandatory minimum because of substantial assistance

    Meeting mandatory minimum

    Below mandatory minimum for other reasons such as the safety valve Source:
    GAO analysis of USSC data.

    Nearly all of the mandatory minimum drug sentences carried either a 5-year
    (48 percent) mandatory minimum or a 10-year minimum (49 percent). On
    average, prosecutors' substantial assistance motions reduced drug
    offenders' 5-year mandatory minimum sentence by 33 months. Sentences
    lowered for other reasons, such as the safety valve, that would otherwise
    be subject to a 5-year mandatory minimum were reduced by an average of 26
    months. On average, prosecutors' substantial assistance motions reduced
    drug offenders' 10-year mandatory minimum sentences by 63 months, and
    sentences lowered for other reasons that would otherwise be subject to a
    10-year mandatory minimum were reduced by an average of 52 months. See
    appendix I for more detailed information on sentence reductions.

    Figure 7 provides a summary of the number and percent of federal drug
    sentences that fell below a mandatory minimum or guideline range compared
    with sentences that did not carry a mandatory minimum. Almost all of the
    sentences (99 percent) that fell below a mandatory minimum due to
    substantial assistance also departed downward from an applicable guideline
    range, whereas only a quarter of sentences that fell below an otherwise
    applicable mandatory minimum for other reasons also

    departed downward from an applicable guideline range. These percentage
    differences do not take into account offender and offense characteristics
    that may contribute to differences among circuits and districts.

    Figure 7: Summary of Mandatory Minimum Drug Sentences below an Otherwise
    Applicable Mandatory Minimum and Departing Downward Compared with
    Sentences that Did Not Carry a Mandatory Minimum, Fiscal Years 1999-2001

    Note: Of the 72,283 federal drug sentences imposed during fiscal years
    1999-2001, 3,004 lacked complete information on departure status and 609
    lacked sentence length information needed to identify sentences that fell
    below a mandatory minimum. These sentences were omitted from this
    analysis.

    In 7 of the 12 Circuits, more sentences fell below a mandatory minimum due
    to substantial assistance motions than for other reasons, as figure 8
    shows.

    Figure 8: Percent of Drug Sentences Falling below an Otherwise Applicable
    Mandatory Minimum due to Substantial Assistance or for Other Reasons,
    Fiscal Years 1999-2001

    Percentage

    50

    40

    40

    30

    20

    10

    0

    National DC First Second Third Fourth Fifth Sixth Seventh Eighth Ninth
    Tenth Eleventh Circuit Average

                         Substantial assistance sentences below

                           Sentences below for other reasons

    Source: GAO analysis of USSC data.

    In addition to these differences among the circuits, across the 94
    districts the percentage of sentences meeting or below an otherwise
    applicable mandatory minimum substantially varied. Figure 9 shows the 94
    judicial districts grouped according to the percent of sentences imposed
    that fell below an otherwise applicable mandatory minimum due to
    substantial assistance and for other reasons. In 40 districts, more than
    30 percent of sentences fell below an otherwise applicable mandatory
    minimum due to substantial assistance whereas in 16 districts more than 30
    percent fell below for other reasons. Appendix II has more details on our
    analysis of sentences for which the offense of conviction carried a
    mandatory minimum sentence.

    Figure 9: Number of Districts by Percent of Sentences Falling below an
    Otherwise Applicable Mandatory Minimum Due to Substantial Assistance or
    Other Reasons, Fiscal Years 1999-2001

    Number of districts

                                           45

    0 to 10% 11 to 20% 21 to 30% 31 to 40% 41 to 50% 51 to 60% Over 60%

    Sentences falling below a mandatory minimum due to substantial assistance
    Sentences falling below a mandatory minimum for other reasons

                           Source: GAO analysis of USSC data.

      Likelihood of Sentences Departing Downward or Falling below a Mandatory
      Minimum Varied by Judicial Circuits and Districts

    The percentage differences among circuits and districts suggest that
    variation existed in the way courts sentenced offenders; however, as
    discussed earlier, these percentages do not take into account factors such
    as the offender and offense characteristics that may affect sentencing
    within a circuit or district. For example, in addition to the number of
    deportable aliens potentially affecting the percent of other downward
    departures, some circuits and districts, when compared with others, could
    sentence a greater proportion of offenders who possessed and shared
    information of the crime that assisted the government in the investigation
    or prosecution of others. Therefore, a larger percent of offenders in
    those circuits and districts could have received a decrease in their
    sentence due to substantial assistance. Recognizing that judicial circuits
    and districts differed in the types of offenders sentenced and the
    offenses for which the offenders were sentenced, our analysis adjusted for
    differences such as race, gender, offense, criminal history, and offense
    severity (see appendix I for a complete list of variables included in our
    analysis). Although these

    are the major factors that could affect the likelihood of an offender
    receiving a departure, they are not all-inclusive.

    We used adjusted odds ratios to estimate how circuits and districts vary
    in sentencing practices. An adjusted odds ratio in this case indicates
    whether a departure is statistically less likely, as likely, or more
    likely to occur in one circuit as in another. We can describe how much
    more likely or less likely a substantial assistance departure was to occur
    in one jurisdiction versus another; for instance, we can estimate that a
    substantial assistance departure was 20 percent less likely to occur or
    3.6 times more likely to occur in one circuit compared with another. Our
    analysis focused on adjusted odds ratios since they provide us with our
    best estimates of differences across circuits and districts after taking
    into account the differences in drug cases handled across jurisdictions.

    Using adjusted odds ratios to estimate the likelihood of an offender
    receiving a substantial assistance departure, we can see that percentage
    differences can be misleading. In comparing percentages of substantial
    assistance sentences in the Eighth Circuit (37 percent) with other
    circuits, it appears that in 5 circuits -D.C. (30 percent), the Second (32
    percent), Fourth (33 percent), Seventh (31 percent), and Eleventh Circuits
    (30 percent)- fewer offenders received substantial assistance departures.
    But taking into account differences of offenders and offense
    characteristics, adjusted odds ratios show that in D.C., the Fourth and
    Eleventh circuits, offenders were actually as likely to receive a
    substantial assistance motion as in the Eighth Circuit. Although the
    Second Circuit's percentage of substantial assistance departures was lower
    than the Eighth Circuit's, after adjusting for offender and offense
    characteristics, offenders in the Second Circuit were 1.4 times more
    likely to be granted a substantial assistance departure than offenders in
    the Eighth Circuit. In another example, the First Circuit appears to grant
    more other downward departures (10 percent) than the Eighth (8 percent),
    but the adjusted odds ratios imply that offenders in the First Circuit are
    actually 22 percent less likely to be granted an other downward departure
    than similar offenders in the Eighth Circuit.

    After adjusting for differences in drug offenses and offender
    characteristics, the likelihood of an offender receiving a lower sentence
    due to either a prosecutor's substantial assistance motion or for other
    reasons varied substantially across the 12 U.S. circuits and the 94 U.S.
    district courts. For example, drug offenders sentenced in the Third
    Circuit from fiscal years 1999-2001 were over 3 times more likely to
    receive a substantial assistance departure at a prosecutor's initiative
    than drug

    offenders sentenced in the First Circuit during that same time period. The
    likelihood a drug offender would be granted an other downward departure
    also varied substantially. Adjusting for differences in offender and
    offense characteristics, drug offenders sentenced in the Ninth Circuit
    from fiscal years 1999-2001 were over 18 times more likely to have
    received an other downward departure than similar drug offenders sentenced
    in the Fourth Circuit during that same time period.

    The likelihood of courts to impose a sentence that fell below a mandatory
    minimum due to substantial assistance or other reasons also varied
    substantially across the 12 U.S. circuits and the 94 U.S. district courts,
    even after taking into account offense and offender characteristics for
    drug offenses. See appendix III for more details about the statistical
    likelihood of drug sentences departing downward or falling below a
    mandatory minimum and the variation in those likelihoods across all
    circuits and districts.

    Our analysis shows variation-in some cases substantial differences- among
    circuits and districts in the likelihood that offenders convicted of drug
    offenses would receive substantial assistance or other downward departures
    in fiscal years 1999-2001. However, these differences, in and of
    themselves, may not indicate unwarranted sentencing departures or
    misapplication of the sentencing guidelines. Empirical data on all factors
    that could influence sentencing were not available, and so an analysis
    that could fully explain why sentences varied was not possible.

      Opportunities Exist to Improve Sentencing Data Collection and Reporting

    USSC data were generally sufficient for our analyses of downward
    departures and mandatory minimum sentences across circuits and for most
    districts. USSC's sentencing data are based on information from five
    documents usually produced for each case during the sentencing process.
    USSC requires that district courts send them these documents for each
    sentence imposed but principally relies on three of them-the Judgment and
    Commitment Order (J&C), Statement of Reasons (SOR), and Presentence Report
    (PSR)-to identify the length of sentences imposed, departures, and the
    reasons for departures. Nationally for drug cases, USSC received 96
    percent or more of each of these documents from the district courts. The
    percentage of documents missing varied by circuit and districts within
    circuits. For example, among the circuits the percentage of missing SORs
    ranged from less than 1 percent to more than 7 percent. Among districts
    within the Ninth Circuit, the percentage of missing SORs ranged from less
    than 1 percent to more than 58 percent. Although USSC received most of the
    requested documents, some were missing key

    information or contained unclear information that was difficult to
    interpret. For instance, among the 12 circuits, departure data were
    missing for 1 percent to 7 percent of all drug sentences imposed in fiscal
    years 1999-2001. See appendix IV for more detailed information.

    In districts where the missing documents or information are concentrated
    analysis of departures could be affected. Missing or unclear data also
    limited our ability to determine when the safety valve was used as the
    basis for sentencing below a mandatory minimum. For example, in our
    preliminary analysis, we found that of the 11,256 federal drug sentences
    for which the offense of conviction carried a mandatory minimum and fell
    below that minimum, about 1,600 (14 percent) were coded by USSC as falling
    below the applicable mandatory minimum but not involving either the safety
    valve or substantial assistance. We discussed this issue with USSC. After
    reviewing the underlying documents used for coding these 1,600 sentences,
    USSC determined that over 900 sentences were miscoded. These miscoded
    sentences were recoded in a variety of ways, including some coded as
    involving the safety valve, some coded as involving substantial
    assistance, some coded as having a changed drug quantity that affected the
    applicable mandatory minimum, and some coded as missing safety valve
    information. USSC did not recode 681 sentences; these sentences remained
    coded as falling below a mandatory minimum but involving neither the
    safety valve nor substantial assistance. In addition, safety valve
    information was determined to be missing from 770 sentences for which the
    offense of conviction carried and fell below a mandatory minimum.

    AOUSC and USSC officials offered several explanations for missing
    documents and information or unclear information on documents that was
    difficult to interpret and code consistently. AOUSC officials noted that
    judges may not submit documents due to security concerns in cases where
    the record has been sealed or the offender placed in the witness
    protection program. Processing a high volume of drug cases could
    potentially affect document submission, they also noted. Of the four
    circuits with the highest volume of drug cases, two-the Fourth and the
    Ninth-also had the highest percentage of missing SORs, 7.4 percent and 6.6
    percent, respectively. Although AOUSC developed a standard SOR form for
    judges to use, USSC officials said that judges submit information to USSC
    using a variety of forms and formats. In USSC's view, this may contribute
    to missing information on documents (e.g., forms that do not prompt for an
    applicable mandatory minimum) or unclear information on the forms that is
    difficult to interpret.

    In addition to these explanations, USSC and AOUSC officials said no
    information had been provided to judges and other court officials on how
    sentencing documents are used by USSC to create its database or how to
    clearly and completely prepare forms such as the SOR to meet USSC's data
    collection needs. USSC relies almost exclusively on the SOR to determine
    whether the sentence imposed departed from the guidelines range, met a
    mandatory minimum, or involved substantial assistance. Thus, missing,
    incomplete, or difficult to interpret information on that form can affect
    the completeness and accuracy of the data in USSC's database.

    USSC has taken steps to reduce the number of missing documents and
    information, but opportunities for improvements exist. For instance, USSC
    sends an annual letter to the courts identifying those cases in which
    there appear to be missing documents. However, USSC officials said they do
    not inform courts of documents that, while received by USSC, contained
    missing or unclear information. In addition, USSC collaborates with the
    AOUSC and the Federal Judicial Center, the judiciary's research and
    education body, to educate judges and court officials on how to apply the
    sentencing guidelines, but they do not offer programs or workshops on how
    to complete forms such as the SOR and other documents used by USSC.

    Although the AOUSC has also taken steps to improve the quality of
    sentencing data captured on the SOR, opportunities for improvements
    remain. At its September 2003 meeting, the Judicial Conference of the
    United States, the federal judiciary's principal policymaking body,
    approved a new standard SOR form. The Conference designated the new form
    as the mechanism by which courts comply with the requirements of the
    PROTECT Act to report reasons for sentences to USSC. The form was revised
    in part because AOUSC officials and the Chair of the Judicial Conference's
    Committee on Criminal Law stated that the previous SOR provided an
    imprecise measure of judicial discretion. It did not collect information
    on other downward departures that are initiated by the prosecution. The
    form was revised in consultation with USSC to better meet its data
    collection needs. However, a USSC official said that the new SOR does not
    specifically prompt for information on the application of the safety valve
    or whether the offense of conviction carried a mandatory minimum. In
    addition, judges will not be required to use this form although USSC
    believes that the most effective step to improving the completeness of the
    data the district courts report is for all courts to use a single,
    standard SOR. AOUSC officials said that while the Judicial Conference has
    endorsed the new form, they do not believe that the

    Conference has the authority to require judges to use the new SOR.
    However, AOUSC officials stated that with additional education they
    believe judges will see the benefits of the new form and routinely use it.

      Conclusions

    Recommendations

    The judiciary provided and USSC collected and interpreted sentencing
    information for the vast majority of the 72,283 drug sentences imposed
    during fiscal years 1999-2001. The small percentage of documents and
    sentencing information for drug cases that were lacking in USSC's database
    did not affect the validity of our analyses at the national or circuit
    level or for the vast majority of districts. However, the missing data
    could limit analyses of sentencing practices in the few districts where
    missing data are most prevalent. Reducing missing, incomplete, or
    difficult to interpret information would improve USSC's data on departures
    and reasons sentences fell below an applicable mandatory minimum. Unless
    the judiciary's standard SOR is revised, judges are made aware of how to
    effectively complete the SOR, and data submitted more consistently to USSC
    by the courts, these data problems are likely to persist. More could be
    done to help reduce the number of documents that are missing, incomplete,
    or too difficult for USSC to interpret. Evaluating how USSC interprets
    sentencing data was beyond the scope of this work. However, we believe
    that without changes to the way USSC reports other downward departures,
    that is, distinguishing, rather than combining other downward departures
    initiated by the government with those initiated by judges, the benefits
    of improved data collection of sentencing practices may not be fully
    realized.

    As USSC and the AOUSC work together to collect and record information on
    federal sentences and provide additional education and information to
    judges, we recommend that both USSC and AOUSC continue to collaborate to

    o  	develop educational programs and information for judges and other
    officers of the court to encourage the use of AOUSC's standard SOR and
    more effective ways to complete the SOR and

    o  revise the standard SOR to better meet the data collection needs of
    USSC.

    We also recommend, resources permitting, that USSC, in addition to
    notifying courts of missing sentencing documents, notify the Chief Judge
    of each district of documents for drug cases that were received but

      Agency Comments

    contained information that was unclear, incomplete, or difficult to
    interpret.

    We requested comments on a draft of this report from USSC, the AOUSC, the
    Judicial Conference Committee on Criminal Law, and the Department of
    Justice (DOJ). We received written comments on October 10, 2003, from USSC
    and the Judicial Conference Committee on Criminal Law. Both generally
    agreed with our report and our recommendations, although the Criminal Law
    Committee was concerned that the variation among districts we found in the
    likelihood of other downward departures could mistakenly be attributed to
    judicial discretion. Their official comments are reproduced in Appendix V.
    We received oral technical comments from USSC and written technical
    comments from DOJ and the AOUSC that we incorporated where appropriate.
    DOJ, the Committee on Criminal Law, and USSC all noted that "fast-track"
    sentences-prosecutor-initiated programs to encourage early case
    disposition and reduce the burden on the courts-could account for some of
    the variation we found among districts in other downward departures. We
    have added new tables in appendix IV that show the reasons reported to
    USSC for other downward departures and the frequency with which each
    reason was cited.

    USSC 	USSC generally agreed with our report and our recommendations. USSC
    stated that it is already working to develop more detailed sentencing
    documentation, submission procedures, and educational outreach to courts
    and court personnel. USSC noted that while our recommendations are helpful
    and consistent with their own thinking, implementation of such measures
    may exceed their current resources given the increasing volume of
    sentences to be processed and more detailed information for each sentence
    required by the PROTECT Act.

        The Judicial Conference Committee on Criminal Law

    The Judicial Conference Committee on Criminal Law generally agreed with
    our report and our recommendations. The Committee noted that it has taken
    significant steps to help USSC improve its data collection by revising the
    standard Statement of Reasons form and endorsing the standard form as the
    way to comply with PROTECT Act requirements.

    The Committee commented that our report did not address the extent to
    which judges themselves, absent a prosecutor's request, have imposed
    sentences that fall below the sentencing guideline range. Further, the
    Committee noted that our report did not sufficiently distinguish downward

    departures that are due to judicial discretion from those that are due to
    prosecutorial discretion. As a result, according to the Committee, the
    category "other downward departures" invites confusion, and some may
    mistakenly attribute all such departures to judges. We state in our report
    on page 11 that other downward departures are attributable to prosecutors
    as well as judges. Additionally, data are not recorded, coded, or reported
    in ways that clearly delineate other downward departures due to judicial
    discretion from those due to prosecutorial discretion.

        Impact of Fast Track Sentences on Analysis of Other Downward Departures

    In addition, DOJ, USSC, and the Committee on Criminal Law stated that our
    report did not sufficiently discuss the impact of early disposition or
    "fast track" programs on rates of other downward departures in those
    circuits and districts where such programs were in place. Fast-track
    programs in the southwest border districts provide lower sentences
    initiated by prosecutors for low-level drug trafficking offenses. DOJ
    noted that these programs were developed in response to a dramatic rise in
    immigration cases handled by federal prosecutors in districts along the
    southwestern border and were designed to enhance public safety and
    minimize the burden on the court system by processing these cases as
    quickly as possible. All of the agencies took the position that some
    circuits and districts departed downward more than others due to the
    greater prevalence in some circuits and districts of cases involving fast
    track programs.

    It may ultimately be useful to distinguish fast track departures from
    other downward departures, in the same way that we have distinguished
    substantial assistance departures from other downward departures. However,
    as currently coded in USSC database, fast track cases can be identified
    only when a judge explicitly lists fast track as a reason for a downward
    departure. Sentences citing fast track as a reason for departing downward
    occurred almost entirely in one district--the Southern District of
    California in which 2,171 sentences (58 percent of other downward
    departures imposed in this district) were recorded by USSC as departing
    due to the government's fast track program. In all of the remaining 93
    districts combined, only 9 sentences were recorded as departing downward
    due to fast track programs. Moreover, when we eliminate from our analyses
    those other downward departures that list "fast track" as a reason for
    departing, we obtain very similar results to those published in our
    report; that is, a greater likelihood of other downward departures
    occurring in the Southern District of California than in most other
    districts. We do not include these results in detail in our report because
    of our concern that fast track cases are not always reported by judges as

    such or coded by USSC in their database. If fast track departures are to
    be distinguished from other departures, then changes will need to be made
    in how such cases are currently reported to USSC. USSC is completing a
    report on departures, pursuant to a Congressional directive in the PROTECT
    Act, and will address the impact of fast track programs on departures in
    greater detail.

    As agreed with your offices, unless you publicly announce its contents
    earlier, we plan no further distribution of this report until 2 days from
    the
    date of this report. At that time, we will send copies of this report to
    the
    AOUSC and Judicial Conference; DOJ; USSC; and the Federal Judicial
    Center. We will also make copies available to others upon request. In
    addition, the report will be available at no charge on GAO's Web site at
    http://www.gao.gov.

    If you or your staffs have any questions about this report, please contact
    David Alexander at (202) 512-8777 or at Alexanderd@gao.gov or me at
    (202) 512-8777 or at jenkinswo@gao.gov. Major contributors to this report
    are listed in appendix V.

    William O. Jenkins, Jr.
    Director, Homeland Security and Justice Issues

    Appendix I: Objectives, Scope, and Methodology

    Objectives 	Our objectives were to review and categorize all sentences
    imposed under the federal sentencing guidelines by federal district judges
    in fiscal years 1999 through 2001. Specifically, our objectives were to

    o  	identify the percentage of federal sentences, and specifically, those
    for drug-related offenses, departing downward from the applicable
    guidelines range as determined by the court due to substantial assistance
    motions or other reasons;

    o  	identify the percentage of federal drug sentences that fell below an
    applicable mandatory minimum due to substantial assistance motions or
    other reasons;

    o  	compare the likelihood across judicial circuits and districts that
    offenders received downward departing sentences or sentences below a
    mandatory minimum;

    o  	identify limitations, if any, of the U.S. Sentencing Commission's
    (USSC) sentencing data for drug offenses.

    Scope 	To meet these objectives, we obtained USSC sentencing data for
    fiscal years 1999 through 2001. During fiscal years 1999 through 2001,
    federal judges imposed sentences on 175,245 criminal offenders. Of this
    total, 11,584 sentences (6.6 percent) lacked information on whether there
    was a departure from the guidelines range, and for 1,046 sentences (0.6
    percent) the guidelines were not applicable. An additional 167 sentences
    (0.1 percent) lacked information on the type of offender sentenced (drug
    versus non-drug), and 358 sentences (0.2 percent) lacked information on
    both departure status and type of offender. For the remaining 162,090
    sentences (92.5 percent), table 2 shows the numbers and percents of
    departure and non-departure sentences for drug and non-drug sentences.

                     Appendix I: Objectives, Scope, and Methodology

    Table 2: Numbers and Percents of Drug Cases Involving Different Types of
    Offenses or Offenders, and Percentages of Each Type Receiving Sentences
    Departing Downward from the Guidelines

                                    Departure status

                                                 Substantial    Other
                            Upward            No  assistance   downward
        Type of sentence   departure  departure   departure   departure     Total
            Non-Drug              837   65,251      10,140      16,583     92,811
                                 0.9%   70.3%       10.9%       17.9%
              Drug                143   39,138      19,107      10,891     69,279
                                 0.2%   56.5%       27.6%       15.7%
             Total                980  104,389      29,247      27,474    162,090
                                 0.6%   64.4%       18.0%       16.9%

    Source: GAO analysis of USSC data.

    Of the total of 175,245 offenders sentenced, 72,283 offenders (41 percent)
    were convicted of drug offenses, and of those, 69,279 offenders had
    complete information on departure status. Roughly 11 percent of the
    non-drug offenders and 28 percent of the drug offenders received sentences
    below the guidelines range due to substantial assistance, while 18 percent
    of the non-drug offenders and 16 percent of the drug offenders received
    sentences that departed downward for other reasons. Of the 69,279 drug
    sentences that had valid information for USSC's departure variable, 42,145
    sentences (61 percent) carried a mandatory minimum. Our analyses of
    mandatory minimum sentences excluded 284 of these sentences (0.6 percent
    of all mandatory minimum sentences) that lacked the valid sentence length
    information necessary to determine whether the sentence fell below the
    minimum.

    Methodology 	We had extensive discussions with knowledgeable USSC staff
    about the definitions and use of the data elements in our analysis. USSC
    takes many steps to ensure the reliability and completeness of the data it
    receives from districts. We did not independently validate the data in
    USSC's database; however, we did assess the quality of USSC data in our
    analysis by testing and crosschecking selected data elements for internal
    consistency. We discussed any anomalies we found from these tests with
    knowledgeable USSC staff. On the basis of our tests and discussions with
    USSC officials, we determined that the data were sufficiently accurate for
    our reporting objectives.

    Appendix I: Objectives, Scope, and Methodology

    We defined sentences that fell above or below an applicable guideline
    range in accordance with USSC's definition of "departures"-sentences
    imposed that fall outside the sentencing guidelines range established by
    the court. In USSC's database sentences are coded into five categories: no
    departure, upward departure, downward departure, substantial assistance,
    and inapplicable. We distinguished sentences coded as "substantial
    assistance" as those that fell below sentencing guidelines due to
    "substantial assistance" or prosecutorial discretion. For sentences that
    fell below the guideline ranges for reasons other than substantial
    assistance, generally attributed to judicial discretion, we used those
    sentences coded as "downward departures." See appendix IV for a
    description of other reasons, which include the government's early
    disposition or "fast track" programs, cited by judges for downward
    departures. Sentences for which departure information was not available or
    coded "inapplicable" were deleted from our analysis.

    We defined sentences that fell below an applicable mandatory minimum using
    USSC's recorded information for sentence length. For convictions where a
    mandatory minimum was recorded, those sentences with recorded lengths that
    fell below the length of time stipulated by the mandatory minimum were
    defined as "falling below the mandatory minimum." We identified 41,861
    drug sentences that carried a mandatory minimum and had valid sentence
    length data. Of those sentences we designated as falling below an
    applicable mandatory minimum, we identified those sentences that involved
    a substantial assistance motion and those that fell below the mandatory
    minimum for other reasons, such as the safety valve. If a sentence fell
    below and involved a substantial assistance motion, we interpreted that
    sentence as a "substantial assistance sentence" that fell below a
    mandatory minimum due to prosecutorial discretion. If a sentence otherwise
    fell below, we interpreted it as falling below for "other reasons." Most
    of these sentences (9,384 or 87 percent of them) involved offenders that
    qualified for the safety valve provision allowing judges to grant
    sentences below the mandatory minimum. The data do not indicate that all
    of these sentences involve the safety valve, which may be the result of
    coding errors or insufficient available data.

    We also reviewed the types of documents USSC staff used to identify
    departures, the reasons for those departures, and the potential effect of
    missing or unclear documentation on the interpretation of the departure
    data in USSC's database by district. We also interviewed officials at USSC
    and the Administrative Office of the U.S. Courts (AOUSC), and the Chair of
    the Judicial Conference Committee on Criminal Law.

    Appendix I: Objectives, Scope, and Methodology

      Analyzing Numbers and Percents

    We analyzed sentencing data using both descriptive statistics and
    multivariate analytic methods. For fiscal years 1999-2001, we used USSC's
    data to identify for each circuit and district the total number and
    percent of sentences that fell above or within an applicable guideline
    range and below a guideline range for substantial assistance or for other
    reasons. We also identified all sentences that fell below an applicable
    mandatory minimum due to substantial assistance or for other reasons for
    each circuit and district. We provide these numbers and percentages in
    appendix II.

    The simple differences in the percentage of drug sentences that fall below
    the guidelines range or below the mandatory minimum may not, without some
    adjustment, provide an appropriate basis for making comparisons across
    circuits and districts. Characteristics of the offenses and offenders
    sentenced can vary from one circuit or district to the next, and these
    differences may affect the number or percent of sentences that fall below
    applicable guideline ranges or a mandatory minimum. Judges in some
    circuits or districts, for example, may sentence a greater proportion of
    offenders who possessed and shared information of the crime that assisted
    the government in the investigation or prosecution of others or whose
    offenses were less serious. Differences in these characteristics might
    produce differences in sentences that have little to do with the exercise
    of discretion. Therefore, the unadjusted differences in the percent of
    sentences below the guidelines range or mandatory minimum might result
    from judges sentencing different offenders, rather than from judges
    sentencing offenders differently. Table 3 shows the offense and offender
    characteristics we considered in the multivariate analyses we conducted to
    adjust for such differences and re-estimate differences across circuits
    and districts after taking them into account. It also provides the numbers
    and percentages of all drug offenders or drug offenses that possessed each
    of these characteristics.

    Appendix I: Objectives, Scope, and Methodology

    Table 3: Numbers and Percents of Drug Cases Involving Different Types of
    Offenses or Offenders, and Percentages of Each Type Receiving Sentences
    Departing Downward from the Guidelines

    Offense/offender Number of all Percent of all Percent substantial Percent other
     characteristics drug cases drug cases assistance departure downward departure
                                  Type of drug offense

                          Drug trafficking 66,616 96% 28% 16%

                    Drug: Communication facilities 1,212 2% 20% 12%

                         Drug: Simple possession 1,451 2% 4% 2%

    Drug type

                Cocaine              15,110         22%        31%            10%
                 Crack               14,562         22%        33%             8%
                Heroine              5,101          8%         23%            14%
           Marijuana/Hashish         21,699         32%        18%            28%
                 Other               11,208         17%        36%            10%

                       Severity of offense score Weapon involved

            Less than 17           14,700         21%         13%             29%
              17 to 22             13,822         20%         22%             19%
              23 to 28             18,453         27%         30%             10%
           Greater than 28         22,206         32%         38%              9%

                No enhancement             58,779       90%       27%         16%
             Enhancement applied           6,630        10%       35%          8%
              Mandatory minimum
             No minimum involved           27,133       39%       17%         24%
          Mandatory minimum involved       42,145       61%       34%         10%
                 Guilty plea
            No guilty plea entered         3,352        5%        2%          10%
             Guilty plea entered           65,824       95%       29%         16%
            Safety valve provision
           No safety valve applied         45,788       73%       28%         16%
             Safety valve applied          16,832       27%       30%         16%
                  Education
            Less than high school          34,197       51%       23%         18%
             High school graduate          21,502       32%       31%         12%
                 Some college              9,819        15%       34%         13%
               College graduate            1,708        3%        31%         15%

    Appendix I: Objectives, Scope, and Methodology

           Offense/offender Number of all Percent of all Percent substantial

    Percent other downward departurecharacteristics

                       drug cases drug cases assistance departure

    Race Sex

             White                  17,405     25%          38%               13%
             Black                  20,355     29%          32%                8%
            Hispanic                29,811     43%          18%               23%
             Other                   1,708      2%          32%               13%

                                Male 59,801 86% 27% 15%

                                Female 9,467 14% 33% 19%

    Citizenship

                            U.S. citizen 46,928 68% 33% 12%

                             Non-Citizen 22,351 32% 17% 24%

                               Criminal history category

                     38,798        56%               24%                      18%
                      8,343        12%               31%                      12%
                     10,010        14%               32%                      12%
                      4,550        7%                32%                      13%
                      2,185        3%                33%                      13%

    5,277 8% 35% 15%

    Source: GAO analysis of USSC data.

    Note: Severity Score is determined by the court. It ranges from 1 to 60
    for all crimes, but the highest score for a drug crime is 46.

    Our primary focus in this report involved understanding how departure
    sentences vary across circuits and districts. Some of this variability
    across circuits and districts in the percentages of substantial assistance
    departures and other downward departures in the sentencing of drug
    offenders results from differences in the characteristics of offenses and
    offenders sentenced across circuits and districts. Moreover, the
    prosecution has sole authority to initiate a downward departure for
    substantial assistance, and all offenders are potentially eligible for
    such consideration. If an offender receives a substantial assistance
    departure, USSC codes the case as a substantial assistance departure and
    does not reflect any other downward departures that the judge may have
    granted in that particular case. Because of this coding convention, the
    percentage of other downward departures is partly a function of the
    percentage of downward departures for substantial assistance, which result
    from prosecutorial motions. To understand how these percentages are
    derived, it is useful to consider the following two hypothetical districts
    and the numbers of sentences of each type in each district shown in table
    4.

                     Appendix I: Objectives, Scope, and Methodology

    Table 4: Hypothetical Example Showing Effect of Two Different Methods of
    Computing Percentages for "Other Downward Departures"

    Sentences above Substantial Other and within a assistance downward
    District guideline range departures departures Total

                              Number of sentences imposed

    A 40 20 40

    B 20 50 30

    Other downward departures as percent of total sentences imposed

                      A 40 (base 100) 20 (base 100) 40 (base 100)

                      B 20 (base 100) 50 (base 100) 30 (base 100)

    Other downward departures as percent of total sentences less substantial
    assistance departures

    A 40 (base 100) 20 (base 100) 50 (base 80)

    B 20 (base 100) 50 (base 100) 60 (base 50)

    Source: GAO example.

    The prosecution makes its selection for substantial assistance motions
    after screening the total universe of 100 offenders sentenced in each
    district. In our hypothetical example, the prosecutor offered and the
    court accepted substantial assistance motions for 20 percent of 100
    offenders in district A and 50 percent of 100 offenders in district B-or
    30 percent less in district A. Because USSC's coding convention
    distinguishes substantial assistance cases from other downward departures,
    the universe of offenders who could be coded as receiving other downward
    departures is equal to the number of offenders who did not receive
    substantial assistance departures. In district A this would be 80
    offenders (100 minus 20 substantial assistance departures) and in district
    B it would be 50 (100 minus 50 substantial assistance departures). Using
    this universe of offenders for our calculation, we would conclude that
    district A involves 10 percent fewer other departures than district B
    (40/80=50 percent versus 30/50=60 percent). While we offer percentages in
    some of the following tables that, following standard procedures, are
    based on the total number of offenders, we also use odds and odds ratios
    to describe the likelihoods of sentences departing. These odds and odds
    ratios have the advantage of utilizing the appropriate universe of
    offenders in making comparisons across circuits and districts.

    Appendix I: Objectives, Scope, and Methodology

      Estimating Departure Likelihoods

    In order to make a fair comparison of sentencing patterns across circuits
    and districts, we used logistic regression analysis to estimate the
    likelihood that sentences would fall below an applicable guideline range
    or a mandatory minimum, before and after adjusting for differences in
    offender and offense characteristics across circuits and districts. Our
    adjusted estimates of the differences in likelihoods across circuits and
    districts involved controlling for the following offender and offense
    characteristics:

    o  	Offender: gender, race, education, citizenship, and criminal history
    category score.

    o  	Offense: type of drug involved; type and severity of offense; whether
    the offense was eligible for mandatory minimum sentence; whether a gun was
    involved in commission of the offense; whether the defendant was convicted
    after trial or entered a guilty plea; and whether the safety valve was
    applied.

    Because they are somewhat more amenable to adjustment for offense and
    offender characteristics, we use odds and odds ratios, rather than
    percentages and percentage differences, to estimate the likelihood of
    sentences falling below a guideline range and the variability in those
    likelihoods across circuits and districts. We first calculated the odds on
    substantial assistance falling below a guideline range among all
    sentences, and then calculated the odds on other downward departures for
    those sentences that did not involve departures for substantial
    assistance. In both cases odds were compared across circuits and districts
    by taking their ratios. In our simple two district example above, the odds
    on substantial assistance departures in districts A and B would be
    20/80=0.25 and 50/50=1.0, respectively, and the odds ratio of 1.0/0.25=4.0
    indicates that the likelihood of substantial assistance departures were 4
    times as great in district B as in district A. The odds on other downward
    departures, excluding the substantial assistance departures, would be
    40/40 =1.0 in district A and 30/20=1.5 in district B, and the ratio of
    1.5/1.0=1.5 indicates that downward departures are 1.5 times as likely in
    district B as in district A.

    We conducted four regression analyses. First, we conducted two regression
    analyses that estimated the likelihoods that drug sentences fell below an
    applicable guideline range due to either prosecutors' substantial
    assistance motions or for other reasons before and after controlling for
    offense and offender characteristics. Second, we conducted two regression
    analyses that estimated the likelihoods that drug sentences that

    Appendix I: Objectives, Scope, and Methodology

    carried a mandatory minimum fell below an otherwise applicable mandatory
    minimum due to either substantial assistance or other reasons before and
    after controlling for offense or offender characteristics.

    Limitations

    Our work was limited to drug sentences imposed during fiscal years
    1999-2001, and excluded drug cases in that year that lacked information on
    whether the case departed from the guidelines (4 percent of all drug
    cases). We also excluded cases for which there was insufficient
    information to indicate whether the sentence involved was below a
    mandatory minimum (0.7 percent of all mandatory minimum drug cases), and
    were unable to identify whether 7 percent of the cases that fell below the
    mandatory minimum, and did not involve substantial assistance, involved
    the use of the safety valve provision. Further, our ability to control for
    differences in the likelihood of sentences departing from the guidelines,
    or falling below a mandatory minimum, was also restricted to a reasonably
    small number of characteristics for which we had data and was affected by
    the amount of missing data on those characteristics. Empirical data on all
    factors that could influence sentencing were not available, and so an
    analysis that could fully explain why sentences varied was not possible.

    Our analyses were also limited to determining whether sentences fell below
    a guideline range or a mandatory minimum, and we did not investigate
    whether there were differences across circuits or districts in how far
    below a guideline range minimum or a mandatory minimum the sentences fell.
    Nationwide, the average (mean) minimum sentence length, under the
    guidelines, for drug sentences that departed downward for substantial
    assistance reasons was 108 months (or about 9 years). Those sentences were
    reduced as a result of the substantial assistance motion, on average, by
    53 months, and the resulting sentence was, on average, 49 percent of the
    average lowest sentence drug offenders otherwise would have received under
    the guidelines.1 The average minimum sentence length under the guidelines
    for drug sentences that departed downward for reasons other than
    substantial assistance was 60 months (or 5 years). Those sentences were
    reduced, on average, by 22 months, and the resulting sentence was, on
    average, 57 percent of the average lowest

    1The average percentage sentence reduction was calculated by taking the
    percentage reductions for all sentences and averaging them. This average
    does not necessarily equal the ratio of the average reduced sentence (as a
    result of a departure) to the average expected sentence (the guidelines
    minimum or mandatory minimum sentence length).

    Appendix I: Objectives, Scope, and Methodology

    sentence drug offenders otherwise would have received under the
    guidelines.

    Nearly all of the mandatory minimum drug sentences were for 5 years (48
    percent) or 10 years (49 percent). The 5-year mandatory minimum sentences
    that were reduced for substantial assistance were reduced by an average of
    33 months, resulting in an average sentence that was 45 percent of the
    mandatory minimum. The sentences lowered for other reasons, (primarily the
    safety valve), that would otherwise be subject to a 5-year mandatory
    minimum were reduced by an average of 26 months, resulting in an average
    sentence that was 57 percent of the mandatory minimum. The 10-year
    mandatory minimum sentences that were reduced for substantial assistance
    were reduced by an average of 63 months, resulting in an average sentence
    that was 47 percent of the mandatory minimum. The sentences lowered for
    other reasons, (primarily the safety valve), that would otherwise be
    subject to a 10-year mandatory minimum were reduced for other reasons by
    an average of 52 months, resulting in an average sentence that was 57
    percent of the mandatory minimum.

    We also did not attempt to determine, for those sentences that fell within
    the guideline range, across circuits and districts whether sentences fell
    more frequently at the lower or higher end of the guideline range.
    However, overall, 72 percent of drug sentences that were within the
    guidelines range and did not depart were at the bottom of the range.

    Appendix II: Percentage of Sentences Falling below an Applicable Guideline Range
    or An Otherwise Applicable Mandatory Minimum

    This appendix provides information on the percent of federal drug
    sentences that fall below an applicable guideline range or an otherwise
    applicable mandatory minimum. We show in tables 5 and 6 the variability
    across circuits and districts in the percentages of drug sentences that
    were (1) above the guidelines range, (2) within the guidelines range, (3)
    below the range due to substantial assistance, and (4) below the range for
    other reasons. We then show in tables 7 and 8 the variability across
    circuits and districts in the percentages of mandatory minimum drug cases
    that resulted in sentences (1) at or above a mandatory minimum sentence,
    (2) below a mandatory minimum due to prosecutorial motions for substantial
    assistance, and (3) below the mandatory minimum for other reasons.

    Table 5 shows that the percentage of upward departures from the sentencing
    guidelines for drug cases in fiscal years 1999-2001 was similar and
    exceedingly small across all 12 circuits. However, the percentages of
    within range sentences and downward departures varied substantially across
    circuits. The percentage of all drug sentences that were within the
    guidelines range varied from 34 percent in the Ninth Circuit to 69 percent
    in the First and Fifth Circuits. The percentage of drug sentences that
    involved downward departures for substantial assistance varied from 18
    percent in the Ninth Circuit to 45 percent in the Third Circuit, and the
    percentage that resulted in downward departures for other reasons varied
    from 4 percent in the Fourth Circuit to 47 percent in the Ninth Circuit.
    The Ninth Circuit was the only circuit in which the percentage of
    departures for other reasons exceeded 20 percent and the only circuit in
    which departures for other reasons were more common than departures for
    substantial assistance.

    Appendix II: Percentage of Sentences Falling below an Applicable Guideline Range
                      or An Otherwise Applicable Mandatory Minimum

    Table 5: Percentages of Drug Cases between 1999 and 2001 Resulting in
    Upward Departures, Within Range Sentences, and Downward Departures, by
    Circuit

                               Sentenced     Substantial      Other
                     Upward           within  assistance  downward   Total number
        Circuit  departure  guideline range   departure   departure of drug cases
         D.C.          0.3%              53%          30%       16%
         First         0.3%              69%          21%       10%         2,166
        Second         0.3%              48%          32%       20%         5,166
         Third         0.2%              48%          45%        7%         2,750
        Fourth         0.2%              63%          33%        4%         6,302
         Fifth         0.1%              69%          20%       11%        15,102
         Sixth         0.1%              53%          42%        5%         5,067
        Seventh        0.3%              64%          31%        5%         3,017
        Eighth         0.2%              55%          37%        8%         5,255
         Ninth         0.3%              34%          18%       47%        12,116
         Tenth         0.2%              63%          22%       15%         3,500
    Eleventh        0.3%              64%          30%        5%         8,457

    Source: GAO analysis of USSC data.

    Note: 3,004 cases lacking information on departures were excluded.

    Table 6 reveals that the percentages of sentences within the guidelines
    range and the percentages of sentences departing downward from them
    notably differed across the 94 districts, even in some cases among
    districts within the same circuit.

    Appendix II: Percentage of Sentences Falling below an Applicable Guideline
    Range or An Otherwise Applicable Mandatory Minimum

    Table 6: Percentages of Drug Cases between 1999 and 2001 Resulting in
    Upward Departures, Within Range Sentences, and Downward Departures, by
    District

    Sentenced Substantial Other Upward within assistance downward Total number
    District departure guideline range departure departure of drug cases

    D.C. Circuit

    District of Columbia 0.3% 53% 30% 16%

    First Circuit Second Circuit Third Circuit

              Maine            0.0%        44%       52%       3%
          Massachusetts        0.6%        51%       30%       19%
          New Hampshire        0.5%        49%       43%       8%
           Puerto Rico         0.1%        87%       7%        5%           1,006
           Rhode Island        0.0%        80%       9%        11%

             Connecticut          0.8%       44%       24%      31%
          New York Eastern        0.3%       45%       24%      32%         1,961
          New York Northern       0.2%       24%       68%       8%
          New York Southern       0.2%       64%       24%      12%         1,642
          New York Western        0.6%       42%       52%       5%
               Vermont            0.0%       43%       37%      21%

                Delaware             0.0%      52%      41%       7%           71
               New Jersey            0.4%      60%      32%       8%          847
          Pennsylvania Eastern       0.2%      36%      57%       6%        1,028
           Pennsylvania Middle       0.0%      38%      56%       6%          392
          Pennsylvania Western       0.0%      55%      37%       9%          352
             Virgin Islands          0.0%      75%      17%       8%           60
             Fourth Circuit
                Maryland             0.2%      43%      43%      14%          517
         North Carolina Eastern      0.2%      56%      41%       3%          619
          North Carolina Middle      0.8%      63%      34%       2%          508
         North Carolina Western      0.0%      32%      62%       5%          970
             South Carolina          0.1%      60%      38%       2%          988
            Virginia Eastern         0.3%      89%       8%       3%        1,360
            Virginia Western         0.2%      56%      42%       2%          567
         West Virginia Northern      0.3%      89%       9%       2%          339
         West Virginia Southern      0.0%      81%      16%       3%          433

    Appendix II: Percentage of Sentences Falling below an Applicable Guideline
    Range or An Otherwise Applicable Mandatory Minimum

    Sentenced Substantial Other Upward within assistance downward Total number
    District departure guideline range departure departure of drug cases

    Fifth Circuit Sixth Circuit

           Louisiana Eastern        0.0%      74%      19%       6%
            Louisiana Middle        0.0%      39%      58%       3%
           Louisiana Western        0.0%      64%      32%       3%
          Mississippi Northern      0.0%      42%      49%       8%
          Mississippi Southern      0.0%      58%      39%       3%
             Texas Eastern          0.0%      80%      14%       6%
             Texas Northern         0.0%      65%      31%       4%
             Texas Southern         0.1%      66%      26%       8%         4,863
             Texas Western          0.1%      72%      12%      16%         6,750

                       Page 41 GAO-04-105 Federal Drug Sentences
    Kentucky 0.2% 57% 40% 2%  Kentucky 0.0% 81% 16% 3%  Michigan 0.0% 51% 43% 6%  Michigan 0.3% 49% 44% 6%    Ohio   0.3% 47% 44% 9%    Ohio   0.0% 38% 54% 7%  Tennessee 0.1% 57% 41% 2% 742 Tennessee 0.0% 53% 40% 7% 205 Tennessee 0.2% 56% 40% 4% 517 Seventh      Illinois 0.5% 38% 56% 5% 424 Illinois 0.1% 53% 38% 9% 687 Illinois 0.3% 90% 6% 4% 722 Indiana  0.2% 71% 25% 4% 455 Indiana  0.0% 39% 58% 3% 296 Wisconsin 0.4% 65% 32% 3% 280 Wisconsin 1.3% 79% 17% 3% 153 Eighth       Arkansas 0.0% 81% 16% 3% 321 Arkansas 0.0% 70% 27% 4% 168   Iowa   1.3% 52% 41% 6% 477   Iowa   0.1% 45% 44% 11% 692 Minnesota 0.2% 54% 31% 15% 590 Missouri 0.0% 59% 36% 5% 908 Missouri
    Eastern                   Western                   Eastern                   Western                   Northern                  Southern                   Eastern                       Middle                        Western                      Circuit      Central                      Northern                     Southern                    Northern                     Southern                      Eastern                       Western                      Circuit      Eastern                      Western                      Northern                     Southern                                                     Eastern                      Western  0.1% 37% 59% 3% 914

    Appendix II: Percentage of Sentences Falling below an Applicable Guideline
    Range or An Otherwise Applicable Mandatory Minimum

                                 Sentenced    Substantial     Other
                       Upward          within assistance  downward   Total number
         District   departure guideline range  departure  departure of drug cases
         Nebraska        0.0%             65%         25%       10%
    North Dakota      0.0%             53%         38%        8%
    South Dakota      0.5%             69%         19%       11%

                                     Ninth Circuit

                       Page 42 GAO-04-105 Federal Drug Sentences
                                                            California                   California                   California                   California                                                                                                                                                Northern                                           Washington                      Washington                       Tenth                                                                New                          Oklahoma                    Oklahoma                     Oklahoma                                                                           Eleventh      Alabama                     Alabama                      Alabama                      Florida                       Florida                      Florida
    Alaska 0.0% 69% 19% 11%  Arizona 0.6% 28% 13% 58% 2,560  Central   0.2% 72% 16% 12%   Eastern   0.0% 64% 26% 10%   Northern  1.5% 60% 15% 23%   Southern  0.1% 17% 13% 70% 5,312 Guam 1.2% 43% 54% 1%  Hawaii 0.4% 58% 32% 10%  Idaho 0.0% 33% 62% 5%  Montana 0.0% 54% 40% 5%  Nevada 0.3% 63% 18% 18%  Mariana  0.0% 29% 71% 0%  Oregon 0.3% 55% 33% 12%   Eastern   0.0% 62% 14% 24% 249  Western   0.2% 52% 33% 15% 544 Circuit      Colorado 0.0% 41% 52% 7% 420 Kansas 0.4% 63% 29% 7% 560 Mexico 0.1% 66% 13% 21% 1,672 Eastern  1.4% 54% 5% 39% 74 Northern 0.8% 73% 21% 5% 131 Western  0.9% 74% 22% 3% 229 Utah 0.0% 67% 12% 21% 199 Wyoming 0.0% 59% 34% 7% 217 Circuit       Middle  0.4% 38% 55% 6% 279 Northern 0.0% 49% 49% 2% 417 Southern 0.0% 44% 49% 6% 342 Middle  0.2% 57% 37% 6% 2,007 Northern 0.9% 60% 38% 1% 565 Southern 0.1% 78% 16% 6% 3,237 Georgia 1.1% 55% 39% 5% 558
                                                                                                                                                                                                                                                                                                             Islands                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                         Middle

    Appendix II: Percentage of Sentences Falling below an Applicable Guideline Range
                      or An Otherwise Applicable Mandatory Minimum

                                   Sentenced    Substantial     Other
                                         within assistance  downward        Total
                          Upward                                           number
          District     departure   guideline     departure  departure     of drug
                                     range                                  cases
           Georgia          0.3%            60%         30%       10%
          Northern
           Georgia          0.0%            63%         33%        4%
          Southern

    Source: GAO analysis of USSC data.

    Note: 3,004 cases lacking information on departures were excluded.

    There were 6 districts in which the percentage of sentences departing
    upward from the guidelines exceeded 1 percent of all cases-Wisconsin
    Western (1.3 percent), Iowa Northern (1.3 percent), California Northern
    (1.5 percent), Guam (1.2 percent), Oklahoma Eastern (1.4 percent), and
    Georgia Middle (1.1). The percentage of sentences within the guidelines
    range varied substantially, from 17 percent in the California Southern
    District to 90 percent in the Illinois Southern District. Fewer than 10
    percent of the sentences departed downward for substantial assistance in
    Puerto Rico (7 percent), Rhode Island (9 percent), Virginia Eastern (8
    percent), West Virginia Northern (9 percent), Illinois Southern (6
    percent), and Oklahoma Eastern (5 percent). At the same time, the
    percentage of cases departing downward for substantial assistance exceeded
    50 percent in 16 districts, and was highest in the North Mariana Islands
    (71 percent), New York Northern (68 percent), North Carolina Western (62
    percent), and Idaho (62 percent) Districts. Sentences departing downward
    for other reasons represented only 3 percent or less of all sentences in
    24 districts but over 20 percent of the sentences in 10 districts; these
    other downward departures were especially common in New York Eastern (32
    percent), Oklahoma Eastern (39 percent), Arizona (58 percent), and
    California Southern (70 percent) Districts. While the percentages of other
    downward departures were fairly similar and involved 10 percent or fewer
    of all cases in the various districts in the Sixth and Seventh Circuits,
    the range in the percentage of other downward departures were sizable
    across the districts in the Second Circuit (5 percent to 32 percent),
    Ninth Circuit (none to 70 percent), and Tenth Circuit (3 to 39 percent).

    Table 7 shows the differences across circuits in the percentages of
    mandatory minimum drug sentences between 1999 and 2001 that were at or
    above an applicable mandatory minimum, below an otherwise applicable
    mandatory minimum due to substantial assistance, and below an otherwise
    applicable mandatory minimum for other reasons. The percentage of
    mandatory minimum sentences that were at or above an applicable mandatory
    minimum sentence ranged from 35 percent in the Ninth Circuit to 64 percent
    in the Fourth Circuit. The percentage of sentences that fell below an
    otherwise applicable mandatory minimum

    Appendix II: Percentage of Sentences Falling below an Applicable Guideline
    Range or An Otherwise Applicable Mandatory Minimum

    due to substantial assistance motions ranged from 19 percent in the First
    Circuit to 40 percent in the Third Circuit. The percentage of mandatory
    minimum sentences that fell below an otherwise applicable mandatory
    minimum sentence for other reasons ranged from 12 percent in the Fourth
    Circuit to 38 percent in the Ninth Circuit.

    Table 7: Percentages of Mandatory Minimum Drug Cases between 1999 and 2001
    Resulting in Sentences at or above a Minimum, and below An Otherwise
    Applicable Minimum Due to Substantial Assistance or for Other Reasons, by
    Circuit

                              At or     Below a          Below a  Total number of
                            above a   minimum due to     minimum        mandatory
                          mandatory   substantial      for other          minimum
                Circuit     minimum    assistance        reasons       drug cases
                   D.C.         54%              30%         17%              236
                  First         51%              19%         30%            1,444
                 Second         37%              34%         29%            2,835
                  Third         37%              40%         22%            1,927
                 Fourth         64%              25%         12%            4,633
                  Fifth         46%              20%         34%            7,161
                  Sixth         49%              39%         13%            3,201
                Seventh         59%              24%         17%            2,279
                 Eighth         53%              31%         16%            4,062
                  Ninth         35%              27%         38%            5,381
                  Tenth         44%              22%         34%            2,065
               Eleventh         47%              23%         29%            6,637

    Source: GAO analysis of USSC data.

    Note: 41,861 sentences carried a mandatory minimum and had complete
    sentence length information; 284 sentences with a mandatory minimum lacked
    complete sentence length information.

    Table 8 provides these same percentages, classified by districts rather
    than circuits, and shows that variability in the sentencing of mandatory
    minimum offenders is considerable across the 94 districts. The percentage
    of sentences falling below an otherwise applicable mandatory minimum for
    substantial assistance reasons was very different across districts,
    ranging from less than 10 percent of all mandatory minimum sentences in 7
    districts to over 50 percent in 9 districts. The percentage of sentences
    falling below an otherwise applicable mandatory minimum for other reasons
    also varied greatly across districts, from less than 10 percent of all
    mandatory minimum sentences in 11 districts to 50 percent or more in 3
    districts.

    Appendix II: Percentage of Sentences Falling below an Applicable Guideline
    Range or An Otherwise Applicable Mandatory Minimum

    Table 8: Percentages of Mandatory Minimum Drug Cases between 1999 and 2001
    Resulting in Sentences at or above the Minimum, and below An Otherwise
    Applicable Minimum Due to Substantial Assistance or For Other Reasons, by
    District

                              At or above Below a minimum Below a Total number of
                     a mandatory due to substantial minimum for mandatory minimum
                             District minimum assistance other reasons drug cases

    D.C. Circuit

    District of Columbia 54% 30% 17%

    First Circuit Second Circuit Third Circuit

                 Maine                  31%             52%             17%
             Massachusetts              43%             33%             23%
             New Hampshire              37%             42%             21%
              Puerto Rico               58%             6%              36%
              Rhode Island              58%             7%              35%

              Connecticut            52%         22%         27%
           New York Eastern          34%         30%         36%
           New York Northern         17%         70%         13%
           New York Southern         43%         25%         33%            1,230
           New York Western          40%         46%         14%
                Vermont              31%         54%         15%

                  Delaware               53%        36%        11%             36
                 New Jersey              31%        30%        39%            577
            Pennsylvania Eastern         32%        52%        16%            828
            Pennsylvania Middle          53%        37%        11%            200
            Pennsylvania Western         52%        31%        17%            263
               Virgin Islands            52%        30%        17%             23
               Fourth Circuit
                  Maryland               61%        28%        10%            443
           North Carolina Eastern        70%        23%         7%            505
           North Carolina Middle         70%        21%         9%            458
           North Carolina Western        50%        41%         9%            822
               South Carolina            61%        28%        11%            685
              Virginia Eastern           76%         7%        17%            996
              Virginia Western           49%        39%        12%            456
           West Virginia Northern        82%         7%        12%             92
           West Virginia Southern        70%        12%        18%            174

    Appendix II: Percentage of Sentences Falling below an Applicable Guideline
    Range or An Otherwise Applicable Mandatory Minimum

                              At or above Below a minimum Below a Total number of
                     a mandatory due to substantial minimum for mandatory minimum
                             District minimum assistance other reasons drug cases

    Fifth Circuit Sixth Circuit

            Louisiana Eastern          55%        17%        29%
             Louisiana Middle          50%        40%        10%
            Louisiana Western          83%        12%         5%
           Mississippi Northern        61%        27%        12%
           Mississippi Southern        50%        32%        18%
              Texas Eastern            71%        11%        18%
              Texas Northern           57%        25%        18%
              Texas Southern           40%        21%        39%            2,702
              Texas Western            36%        18%        46%            2,124

                       Page 46 GAO-04-105 Federal Drug Sentences
    Kentucky 32% 52% 15%  Kentucky 71% 14% 15%  Michigan 46% 40% 14%  Michigan 57% 32% 11%    Ohio   45% 42% 13%    Ohio   44% 47% 9%  Tennessee 52% 35% 13% 472 Tennessee 49% 40% 12% 136 Tennessee 59% 31% 10% 367 Seventh     Illinois 60% 35% 5% 304 Illinois 44% 31% 26% 570 Illinois 79% 4% 17% 547 Indiana  60% 22% 18% 274 Indiana  43% 45% 12% 272 Wisconsin 60% 23% 17% 217 Wisconsin 79% 9% 12% 95 Eighth      Arkansas 68% 15% 17% 207 Arkansas 63% 18% 18% 119   Iowa   64% 26% 10% 388   Iowa   54% 30% 16% 629 Minnesota 49% 27% 24% 472 Missouri 53% 33% 15% 663 Missouri
    Eastern               Western               Eastern               Western               Northern              Southern              Eastern                   Middle                    Western                  Circuit     Central                 Northern                 Southern                Northern                 Southern                  Eastern                   Western                Circuit     Eastern                  Western                  Northern                 Southern                                           Eastern                  Western  38% 53% 9% 654

    Appendix II: Percentage of Sentences Falling below an Applicable Guideline
    Range or An Otherwise Applicable Mandatory Minimum

                    At or above  Below a minimum         Below a  Total number of
                                due to substantial   minimum for        mandatory
                    a mandatory                                           minimum
         District       minimum     assistance     other reasons       drug cases
         Nebraska           57%                22%           21%
    North Dakota         44%                45%           11%
    South Dakota         63%                23%           14%

                                     Ninth Circuit

                   Alaska                 59%        19%       22%
                   Arizona                18%        20%       62%          1,157
             California Central           52%        14%       34%
             California Eastern           57%        23%       20%
             California Northern          54%        16%       31%
             California Southern          19%        34%       47%          1,357
                    Guam                  28%        52%       19%
                   Hawaii                 44%        33%       23%
                    Idaho                 54%        37%       8%
                   Montana                50%        40%       10%
                   Nevada                 51%        18%       30%
          Northern Mariana Islands        22%        67%       11%
                   Oregon                 50%        27%       22%
             Washington Eastern           51%        16%       33%            128
             Washington Western           41%        35%       24%            381
                Tenth Circuit
                  Colorado                32%        52%       16%            251
                   Kansas                 63%        22%       15%            382
                 New Mexico               29%        16%       55%            874
              Oklahoma Eastern            57%        7%        37%             46
              Oklahoma Northern           65%        21%       14%             72
              Oklahoma Western            73%        17%       10%            151
                    Utah                  41%        16%       43%            107
                   Wyoming                54%        27%       19%            185

    Appendix II: Percentage of Sentences Falling below an Applicable Guideline Range
                      or An Otherwise Applicable Mandatory Minimum

                              At or above Below a minimum Below a Total number of
                     a mandatory due to substantial minimum for mandatory minimum
                             District minimum assistance other reasons drug cases

                                    Eleventh Circuit

            Alabama Middle          43%         48%         9%
           Alabama Northern         52%         37%         11%
           Alabama Southern         49%         41%         10%
            Florida Middle          53%         28%         19%             1,642
           Florida Northern         59%         33%         8%
           Florida Southern         35%         14%         50%             2,686
            Georgia Middle          65%         25%         10%
           Georgia Northern         57%         22%         21%
           Georgia Southern         75%         19%         7%

    Source: GAO analysis of USSC data.

    Note: 41,861 sentences carried a mandatory minimum and had complete
    sentence length information; 284 sentences with a mandatory minimum lacked
    complete sentence length information.

    Appendix III: Likelihood of Sentences Falling below a Guideline Range or an
    Otherwise Applicable Mandatory Minimum

    This appendix provides odds and odds ratios to describe the differences
    across circuits and districts in sentences falling below a guideline range
    or an otherwise applicable mandatory minimum for substantial assistance
    and other reasons, both before and after controlling for differences in
    offender and offense characteristics. In the left columns of tables 9 and
    10, we show the odds on substantial assistance departures across circuits
    and districts and ratios indicating differences across circuits and
    districts, before and after we adjust for characteristics of offenses and
    offenders. In the right columns of tables 9 and 10, we show the odds on
    other downward departures across circuits and districts and ratios
    indicating differences between them, before and after we adjust for
    characteristics of offenses and offenders. In the comparisons across
    circuits, we used the Eighth Circuit as the reference category, so the
    odds ratios reflect how much more or less likely other circuits were than
    that circuit to depart in sentencing offenders. In comparisons across
    districts, the Minnesota District was used as the reference category. The
    offense and offender characteristics we controlled for were described
    earlier in appendix I. The ratios that estimate differences before and
    after adjusting for these characteristics were derived from logistic
    regression models. We focus on adjusted ratios in the following
    discussion, since they provide us with our best estimates of differences
    across circuits and districts after taking into account the differences in
    the drug cases handled across jurisdictions.

    Table 9 shows that both the odds on substantial assistance departures and
    other downward departures varied substantially across circuits. After
    adjusting for differences across circuits in offense and offender
    characteristics, the odds on substantial assistance departures were
    significantly greater in three circuits than the Eighth Circuit. In the
    Third Circuit, for example, substantial assistance departures were 2.2
    times as likely as in the Eighth Circuit. Four circuits were not
    significantly different from the Eighth Circuit in terms of the likelihood
    of sentences departing for substantial assistance, and in the remaining 4
    circuits substantial assistance departures were significantly less likely.
    In the First Circuit, for example, substantial assistance departures were
    less likely by a factor of 0.64, or 36 percent less likely, than in the
    Eighth Circuit. The fact that some circuits are less likely than the
    Eighth Circuit while others are more likely than the Eighth Circuit to
    depart for substantial assistance implies that some differences between
    other circuits are larger than those explicitly indicated by these ratios.
    For example, these ratios imply that substantial assistance departures in
    the Third Circuit are 2.2/0.64=3.4 times as likely as in the First
    Circuit.

      Appendix III: Likelihood of Sentences Falling below a Guideline Range or an
                         Otherwise Applicable Mandatory Minimum

    Table 9: Odds on Substantial Assistance Departures and Other Downward
    Departures, and Odds Ratios Indicating the Differences between Circuits,
    before and after Adjusting for Offense and Offender Characteristics

                      Odds on                       Odds on
                 substantial                            other
                  assistance  Unadjusted  Adjusted  downward  Unadjusted Adjusted
        Circuit   departures    ratios      ratios departures   ratios     ratios
        Eighth           0.59                            0.14
         D.C.            0.44       0.75*     1.15       0.31      2.19*    2.16*
         First           0.26       0.44*    0.64*       0.14       1.02    0.78*
        Second           0.47       0.81*     1.4*       0.41      2.92*    2.39*
         Third           0.83       1.41*     2.2*       0.15       1.05
        Fourth           0.49       0.84*     1.01       0.06      0.43*    0.37*
         Fifth           0.25       0.43*    0.85*       0.16       1.11    0.55*
         Sixth           0.71       1.22*    1.68*       0.10      0.69*    0.57*
        Seventh          0.45       0.78*     0.91       0.08      0.55*    0.48*
         Ninth           0.22       0.38*    0.75*       1.38       9.9*    6.87*
         Tenth           0.29       0.49*    0.78*       0.23      1.67*     1.2*
    Eleventh          0.43       0.74*     0.98       0.09      0.61*     0.5*

    Source: GAO analysis of USSC data.

    Note: Odds on substantial assistance departures were calculated using all
    cases. Odds on other downward departures were calculated using only cases
    not involving downward departures for substantial assistance. Ratios were
    calculated using the Eighth Circuit as the referent category. Adjusted
    ratios are from logistic regression models that control for offense and
    offender characteristics.

    *Odds ratio coefficients that are significant at the 0.05 level.

    Table 9 also shows that for those sentences that do not involve
    substantial assistance departures, (and again after adjusting for offense
    and offender characteristics), other downward departures are significantly
    more likely in 4 circuits than in the Eighth Circuit, significantly less
    likely in 6 circuits than in the Eighth Circuit, and no different in the
    other one. The fact that other downward departures are 6.87 times more
    likely in the Ninth Circuit than in the Eighth Circuit, but less likely by
    a factor of 0.37 in the Fourth Circuit than in the Eighth Circuit, implies
    that such departures are 6.87/0.37 = 18.6 or 19 times as likely in the
    Ninth Circuit as in the Fourth Circuit.

    Table 10 shows that both the adjusted odds ratios on substantial
    assistance departures and other downward departures also varied
    substantially and significantly across districts. Substantial assistance
    departures were significantly more likely in 41 districts than in the
    Minnesota District. In the small Northern Mariana Islands District, for

    Appendix III: Likelihood of Sentences Falling below a Guideline Range or
    an Otherwise Applicable Mandatory Minimum

    example, substantial assistance departures were 10 times more likely than
    in the Minnesota District, and in the large New York Northern District,
    they were 5 times more likely. Twenty-three districts were not
    significantly different from the Minnesota District in terms of the
    likelihood of sentences departing for substantial assistance, and in the
    remaining 29 districts substantial assistance departures were
    significantly less likely. In the Illinois Southern District, for example,
    substantial assistance departures were less likely by a factor of 0.11,
    which implies that the likelihood of substantial assistance departures
    were 9 times higher in the Minnesota District than they were there. Other
    districts, these odds imply, were even more disparate from one another.
    For example, these ratios imply that substantial assistance departures in
    the New York Northern District were 5.5/0.11=49.5 or 50 times more likely
    than in the Illinois Southern District.

    Table 10: Odds on Substantial Assistance Departures and Other Downward
    Departures, and Odds Ratios Indicating the Differences between Districts,
    before and after Adjusting for Offense and Offender Characteristics

                       Odds on                      Odds on
                   substantial                          other
                    assistance Unadjusted Adjusted  downward  Unadjusted Adjusted
        District    departures     ratios   ratios departures     ratios   ratios
    Minnesota          0.45                           0.27

    D.C. Circuit

    District of Columbia 0.44 0.97 1.19 0.31 1.12

    First Circuit Second Circuit

             Maine         1.10     2.44*     2.79*     0.07     0.27*      0.28*
         Massachusetts     0.42     0.93      1.01      0.37     1.35
         New Hampshire     0.75     1.66*     2.23*     0.15     0.56       0.42*
          Puerto Rico      0.08     0.17*     0.17*     0.06     0.23*      0.19*
         Rhode Island      0.10     0.23*     0.28*     0.13     0.48*      0.42*

            Connecticut        0.32    0.71*    0.69*    0.69    2.56*      2.42*
         New York Eastern      0.31    0.68*     0.97    0.71    2.61*      2.48*
         New York Northern     2.13    4.75*    5.51*    0.34     1.23       0.95
         New York Southern     0.32     0.7*    0.78*    0.19    0.69*      0.66*
         New York Western      1.10    2.44*     4.5*    0.11     0.4*      0.49*
              Vermont          0.58     1.28    1.47*    0.48    1.78*      1.81*

    Appendix III: Likelihood of Sentences Falling below a Guideline Range or
    an Otherwise Applicable Mandatory Minimum

                      Odds on                       Odds on
                  substantial                           other
                   assistance Unadjusted  Adjusted  downward  Unadjusted Adjusted
    District    departures      ratios   ratios departures     ratios   ratios

                              Third Circuit Fourth Circuit

              Delaware         0.69     1.54    1.78*    0.14     0.50      0.37*
             New Jersey        0.47     1.04    1.29*    0.12    0.46*      0.45*
            Pennsylvania
              Eastern          1.33    2.96*    3.41*    0.17    0.62*       0.6*
        Pennsylvania Middle    1.25    2.79*    3.44*    0.17     0.62      0.56*
            Pennsylvania
              Western          0.59     1.30     1.25    0.16    0.57*      0.49*
           Virgin Islands      0.20    0.44*     1.00    0.11     0.41

              Maryland          0.75    1.66*    1.76*    0.33     1.20
           North Carolina
               Eastern          0.71    1.57*    1.37*    0.05    0.18*     0.15*
           North Carolina
               Middle           0.52     1.15     1.05    0.03    0.11*     0.09*
           North Carolina
               Western          1.66     3.7*    3.06*    0.16     0.6*     0.44*
           South Carolina       0.62    1.38*    1.35*    0.03    0.11*     0.09*
          Virginia Eastern      0.09     0.2*     0.2*    0.03    0.12*     0.12*
          Virginia Western      0.72    1.61*    1.43*    0.04    0.14*     0.11*
            West Virginia
              Northern          0.10    0.22*    0.24*    0.02    0.09*     0.06*
            West Virginia
              Southern          0.19    0.41*    0.46*    0.04    0.15*     0.12*
            Fifth Circuit
          Louisiana Eastern     0.24    0.52*    0.53*    0.09    0.32*     0.34*
          Louisiana Middle      1.36    3.02*    3.94*    0.08     0.28      0.32
          Louisiana Western     0.48     1.07     1.03    0.05    0.19*     0.16*
        Mississippi Northern    0.98    2.17*    2.02*    0.19     0.71      0.62
        Mississippi Southern    0.63    1.41*    1.42*    0.05    0.19*     0.18*
            Texas Eastern       0.16    0.37*    0.38*    0.07    0.28*     0.23*
           Texas Northern       0.44     0.98     0.97    0.07    0.25*     0.22*
           Texas Southern       0.36     0.8*    1.28*    0.11    0.42*     0.35*
            Texas Western       0.13     0.3*    0.55*    0.22     0.81      0.6*

    Appendix III: Likelihood of Sentences Falling below a Guideline Range or
    an Otherwise Applicable Mandatory Minimum

                      Odds on                       Odds on
                  substantial                           other
                   assistance Unadjusted  Adjusted  downward  Unadjusted Adjusted
    District    departures      ratios   ratios departures     ratios   ratios

                             Sixth Circuit Seventh Circuit

         Kentucky Eastern      0.68    1.51*    1.96*    0.04    0.16*      0.17*
         Kentucky Western      0.19    0.43*    0.47*    0.03    0.12*      0.14*
         Michigan Eastern      0.76    1.68*    2.02*    0.12    0.44*      0.43*
         Michigan Western      0.80    1.78*    1.91*    0.13    0.47*      0.42*
           Ohio Northern       0.77    1.72*     1.8*    0.20     0.74
           Ohio Southern       1.19    2.65*    3.18*    0.19     0.70
         Tennessee Eastern     0.69    1.54*    1.56*    0.04    0.14*      0.12*
         Tennessee Middle      0.65    1.45*    1.58*    0.14    0.51*
         Tennessee Western     0.68    1.51*     1.4*    0.07    0.26*      0.22*

                       Page 53 GAO-04-105 Federal Drug Sentences
    Illinois 1.27 2.82* 2.62* 0.14 0.52* 0.37* Illinois 0.60 1.34* 1.52* 0.17 0.62* 0.67* Illinois 0.06 0.14* 0.11* 0.04 0.15* 0.11* Indiana  0.34 0.76 0.97 0.05 0.18* 0.18* Indiana  1.39 3.08* 2.69* 0.09 0.32* 0.35* Wisconsin 0.47 1.05 0.96 0.04 0.14* 0.12* Wisconsin 0.20 0.46* 0.35* 0.03 0.12* 0.1* Eighth        Arkansas 0.19 0.43* 0.35* 0.04 0.14* 0.12* Arkansas 0.37 0.81 0.83 0.05 0.19* 0.18*   Iowa   0.69 1.54* 1.03 0.12 0.44* 0.41*   Iowa   0.79 1.76* 1.20 0.24 0.89 0.77 Missouri 0.57 1.26* 1.19 0.09 0.32* 0.31* Missouri 1.44 3.21* 2.63* 0.09 0.33* 0.3* Nebraska 0.33 0.73* 0.52* 0.16 0.58* 0.54* North  0.62 1.38 1.16 0.15 0.56 0.65 South  0.24 0.54* 0.57* 0.15 0.56* 0.58*  Ninth        Alaska 0.24 0.54* 0.61* 0.17 0.61 0.69 Arizona 0.15 0.34* 0.61* 1.98 7.3* 7.41* California 0.19 0.42* 0.55* 0.17 0.63* 0.69 California 0.35 0.78 0.86 0.15 0.55* 0.51* California 0.18 0.4* 0.48* 0.38 1.4* 1.68* California
    Central                                    Northern                                   Southern                                   Northern                                 Southern                                    Eastern                                   Western                                   Circuit       Eastern                                    Western                                  Northern                                  Southern                                Eastern                                   Western                                                                              Dakota                               Dakota                                   Circuit                                                                                        Central                                     Eastern                                    Northern                                   Southern  0.15 0.33* 0.65* 4.18 15.39* 14.69*

    Appendix III: Likelihood of Sentences Falling below a Guideline Range or
    an Otherwise Applicable Mandatory Minimum

                     Odds on                        Odds on
                   substantial                          other
                   assistance  Unadjusted Adjusted  downward  Unadjusted Adjusted
        District   departures    ratios     ratios departures     ratios   ratios
          Guam            1.18      2.63*    2.12*       0.03       0.1*    0.13*
         Hawaii           0.47       1.05     1.06       0.16       0.6*
          Idaho           1.62      3.61*    4.16*       0.16       0.57
         Montana          0.68       1.5*    1.76*       0.10      0.36*    0.41*
         Nevada           0.23       0.5*    0.55*       0.28       1.02
        Northern
         Mariana
         Islands          2.40      5.34*   10.08*       0.00       0.00
         Oregon           0.48       1.07     1.02       0.22       0.80    0.59*
    Washington         0.16      0.36*    0.44*       0.39       1.43
         Eastern
    Washington         0.50       1.11    1.34*       0.28       1.04
         Western

    Tenth Circuit

             Colorado          1.07    2.38*    3.82*    0.17     0.64
              Kansas           0.41     0.92     0.96    0.11     0.4*       0.4*
            New Mexico         0.15    0.34*    0.54*    0.31     1.14
         Oklahoma Eastern      0.06    0.13*    0.11*    0.71     2.6*      3.28*
         Oklahoma Northern     0.27     0.6*    0.55*    0.07    0.27*      0.26*
         Oklahoma Western      0.28    0.62*    0.52*    0.04    0.15*      0.11*
               Utah            0.14    0.31*     0.4*    0.31     1.13

             Wyoming          0.52     1.15      0.73    0.13    0.46*      0.43*
         Eleventh Circuit
          Alabama Middle      1.23     2.74*    3.84*    0.16     0.58
         Alabama Northern     0.96     2.13*    2.11*    0.04    0.14*      0.15*
         Alabama Southern     0.98     2.17*     2.1*    0.15    0.54*       0.5*
          Florida Middle      0.59     1.3*     1.28*    0.10    0.36*      0.31*
         Florida Northern     0.62     1.39*     1.25    0.02    0.06*      0.05*
         Florida Southern     0.19     0.42*    0.44*    0.07    0.26*      0.24*
          Georgia Middle      0.64     1.42*    1.88*    0.09    0.33*      0.31*
         Georgia Northern     0.43     0.96      0.89    0.16     0.6*      0.55*
         Georgia Southern     0.49     1.08      1.09    0.07    0.26*      0.22*

    Source: GAO analysis of USSC data.

    Note: Odds on substantial assistance departures were calculated using all
    cases. Odds on other downward departures were calculated using only cases
    not involving downward departures for substantial assistance. Ratios were
    calculated using the Minnesota district as the referent category. Adjusted
    ratios are from logistic regression models that control for offense and
    offender characteristics.

    *Odd ratio coefficients that are significant at the 0.05 level.

    Appendix III: Likelihood of Sentences Falling below a Guideline Range or
    an Otherwise Applicable Mandatory Minimum

    Table 10 also shows that for those sentences that do not involve
    substantial assistance departures, other downward departures are
    significantly more likely in 7 districts than in the Minnesota district,
    significantly less likely in 62 districts than in the Minnesota district,
    and no different in the remaining 23 districts.1 The fact that other
    downward departures are 15 times more likely in the California Southern
    District than in the Minnesota district, but less likely by a factor of
    0.09 in the South Carolina District than in the Minnesota District,
    implies that such departures are 15/0.09 = 167 times as likely in the
    California Southern District as in the South Carolina District.

    Tables 11 and 12 pertain to mandatory minimum sentences and show that
    substantial and often significant variation in the likelihood of sentences
    falling below an otherwise applicable mandatory minimum exists even after
    controls for differences in offense and offender characteristics across
    circuits and districts. If we focus on the adjusted ratios in table 11
    first, which estimate the differences among circuits after controls, we
    find that there were some circuits in which the odds on sentences falling
    below an otherwise applicable mandatory minimum due to substantial
    assistance were significantly higher than in the Eighth Circuit, and
    others in which those odds were significantly lower.

    1 As noted in table 10, USSC data contained no "other downward departure"
    sentences in drug cases in the Northern Mariana Islands District for
    fiscal years 1999 through 2001.

      Appendix III: Likelihood of Sentences Falling below a Guideline Range or an
                         Otherwise Applicable Mandatory Minimum

    Table 11: Odds on Mandatory Minimum Sentences Falling below an Otherwise
    Applicable Mandatory Minimum for Substantial Assistance and for Other
    Reasons, and Odds Ratios Indicating the Differences between Circuits,
    before and after Adjusting for Offense and Offender Characteristics

                        Odds on                      Odds on
                                                     falling
                 falling below                        below
                for substantial Unadjusted Adjusted for other Unadjusted Adjusted
    Circuit       assistance   ratios     ratios   reasons   ratios     ratios
        Eighth             0.44                          0.36
         D.C.              0.42       0.95    1.54*      0.33       0.91    2.55*
        First              0.23      0.53*    0.67*      0.64      1.78*
        Second             0.51      1.16*     1.7*      0.85      2.38*    1.53*
        Third              0.68      1.53*    2.29*      0.75      2.08*    1.54*
        Fourth             0.33      0.74*     0.99      0.23      0.64*
        Fifth              0.25      0.55*    0.71*      0.85      2.37*
        Sixth              0.63      1.43*    1.74*      0.33       0.93
    Seventh             0.31      0.71*    0.88*      0.33       0.93
        Ninth              0.37      0.83*     1.04      1.21      3.37*       2*
        Tenth              0.29      0.65*    0.78*      0.89      2.47*
    Eleventh            0.30      0.68*     0.9*      0.75      2.09*

    Source: GAO analysis of USSC data.

    Note: The odds on sentences falling below for substantial assistance were
    calculated using all cases. The odds on sentences falling below for other
    reasons were calculated using only cases that did not fall below for
    substantial assistance. Ratios were calculated using the Eighth Circuit as
    the referent category. Adjusted ratios are from logistic regression models
    that control for offense and offender characteristics.

    *Odds ratio coefficients that are significant at the 0.05 level.

    The same is true of the likelihood of sentences falling below an otherwise
    applicable mandatory minimum for reasons other than substantial
    assistance. The adjusted ratios in table 11 suggest that the biggest
    difference in the likelihood of mandatory minimum sentences falling below
    an otherwise applicable mandatory minimum due to substantial assistance
    involved the Third and First Circuits (such sentences were 2.29/0.67=3.4
    times more likely in the former circuit than in the latter), while the
    biggest difference in the likelihood of mandatory minimum sentences
    falling below an otherwise applicable mandatory minimum for reasons other
    reasons, such as the safety valve, involved the D.C. vs. the Fourth and
    Sixth Circuits (such sentences were 2.55/0.94=2.7 times more likely in the
    former circuit than in the latter two).

    Table 12 shows, similarly, that in many districts judges were much more
    likely than in the Minnesota district to issue sentences below a mandatory

      Appendix III: Likelihood of Sentences Falling below a Guideline Range or an
                         Otherwise Applicable Mandatory Minimum

    minimum to offenders facing a mandatory minimum, both for reasons of
    substantial assistance and for other reasons; and, at the same time,
    judges in many other districts were less likely to do so, overall.

    Table 12: Odds on Mandatory Minimum Sentences Falling below an Otherwise
    Applicable Mandatory Minimum for Substantial Assistance and for Other
    Reasons, and Odds Ratios Indicating the Differences between Districts,
    before and after Adjusting for Offense and Offender Characteristics D.C.
    Circuit

                        Odds on                       Odds on
                        falling
                      below for                       falling
                                                        below
                    substantial Unadjusted Adjusted for other Unadjusted Adjusted
    District      assistance   ratios    ratios    reasons   ratios     ratios
    Minnesota           0.37                          0.54

    Dist of Columbia 0.42 1.13 2.78 0.33 0.6*

    First Circuit Second Circuit

              Maine              1.08    2.91*       1.02       0.72      1.33
          Massachusetts          0.50    1.34*       2.55*      0.57      1.05
          New Hampshire          0.72    1.94*       0.69       0.82      1.50
           Puerto Rico           0.07    0.18*       0.27*      0.65      1.20
          Rhode Island           0.07    0.2*        0.31       0.63      1.16

                       Page 57 GAO-04-105 Federal Drug Sentences
                                                  New                              New York                             New York                               New                                                                      Third                                                New                                 Pennsylvania                                 Pennsylvania                                  Pennsylvania                               Virgin                            Fourth                                                  North                                   North                                      North
    Connecticut 0.28 0.75 3.69* 0.57 1.05 3.89*  York   0.43 1.17 3.5* 1.17 2.15*  Northern 2.33 6.26* 2.75* 0.98 1.8*  Southern 0.33 0.88 6.16* 0.80 1.48*   York   0.85 2.29* 1.02 0.43 0.80  Vermont 1.19 3.19* 6.71 0.53 0.97 3.95 Circuit       Delaware 0.57 1.52 0.43 0.29 0.53 1.50 Jersey 0.43 1.16 0.8 1.50 2.77* 0.87   Eastern    1.07 2.88* 2.33* 0.62 1.13 1.37    Middle    0.59 1.58* 0.32* 0.33 0.60 4.49*   Western    0.45 1.2 1.18 0.36 0.66* 0.92 Islands 0.44 1.18  0.33 0.61 0.34 Circuit       Maryland 0.40 1.07 0.44* 0.23 0.42* 1.87 Carolina 0.30 0.8 0.28* 0.15 0.27* 0.44 Carolina 0.27 0.72* 0.46* 0.15 0.28* 0.38* Carolina
                                                Eastern                                                                                                      Western                                                                                                                                                                                                                                                                                                                                                                                            Eastern                                  Middle                                    Western  0.70 1.88* 0.53* 0.36 0.66* 3.04*

    Appendix III: Likelihood of Sentences Falling below a Guideline Range or
    an Otherwise Applicable Mandatory Minimum

                          Odds on                     Odds on
                          falling
                        below for                     falling
                                                        below
                      substantial Unadjusted Adjusted     for Unadjusted Adjusted
                                                        other
          District     assistance   ratios    ratios  reasons   ratios     ratios
    South Carolina        0.39       1.05  0.39*      0.23      0.43*
          Virginia           0.08       0.2*   0.83      0.23      0.42*     0.5*
          Eastern
          Virginia           0.63      1.69*   1.92      0.29      0.54*
          Western
    West Virginia         0.07      0.19*             0.15      0.27*
          Northern
    West Virginia         0.14      0.37*   0.39      0.29      0.53*
          Southern

                              Fifth Circuit Sixth Circuit

          Louisiana Eastern       0.20  0.53*     0.57    0.58     1.07
          Louisiana Middle        0.68   1.83    0.23*    0.33     0.61
          Louisiana Western       0.14  0.37*    0.12*    0.08    0.14*     0.24*
        Mississippi Northern      0.37    1      0.36*    0.27    0.49*     2.88*
        Mississippi Southern      0.48   1.28    0.27*    0.45     0.83     0.34*
            Texas Eastern         0.12  0.33*    0.39*    0.28    0.52*
           Texas Northern         0.33   0.88    0.43*    0.40     0.74
           Texas Southern         0.27  0.72*     0.63    1.07    1.96*
            Texas Western         0.22  0.59*    0.45*    1.44    2.65*     1.76*

         Kentucky Eastern        1.10   2.97*    2.46*    0.52     0.96
         Kentucky Western        0.16   0.44*    0.16*    0.23    0.42*      0.4*
         Michigan Eastern        0.67   1.79*     0.85    0.38    0.71*      0.89
         Michigan Western        0.46   1.24     0.16*    0.32    0.58*      0.79
           Ohio Northern         0.73   1.96*     0.85    0.38     0.7*      1.37
           Ohio Southern         0.87   2.35*     0.6     0.29    0.54*      0.59
         Tennessee Eastern       0.54   1.44*    0.45*    0.32    0.59*      0.57
         Tennessee Middle        0.66   1.77*     1.4     0.30    0.54*      0.65
         Tennessee Western       0.46   1.23      0.69    0.22     0.4*      0.65
          Seventh Circuit
         Illinois Central        0.54   1.46*    0.38*    0.14    0.27*      0.37
         Illinois Northern       0.45    1.2      0.71    0.71     1.30      1.07
         Illinois Southern       0.04   0.11*     0.42    0.22     0.4*      0.78
         Indiana Northern        0.29   0.77      0.59    0.33     0.6*      0.85
         Indiana Southern        0.81   2.19*     0.55    0.39     0.71      1.49
          Wisconsin East         0.29   0.78      0.66    0.34    0.63*      0.77
          Wisconsin West         0.10   0.28*    0.09*    0.17    0.31*      0.1*

    Appendix III: Likelihood of Sentences Falling below a Guideline Range or
    an Otherwise Applicable Mandatory Minimum

                Odds on falling                       Odds on
                      below for                       falling
                                                        below
                    substantial Unadjusted Adjusted for other Unadjusted Adjusted
    District      assistance   ratios    ratios    reasons   ratios     ratios

                              Eighth Circuit Ninth Circuit

         Arkansas Eastern       0.18   0.47*     0.62    0.27     0.5*
         Arkansas Western       0.23   0.61     0.15*    0.35     0.64
          Iowa Northern         0.35   0.93     0.35*    0.21    0.39*
          Iowa Southern         0.43   1.15     0.33*    0.42     0.77
         Missouri Eastern       0.48   1.3*      0.6     0.33    0.61*
         Missouri Western       1.12   3.02*     1.29    0.29    0.54*
             Nebraska           0.27   0.74*     0.94    0.39    0.73*
           North Dakota         0.83   2.24*     1.98    0.27     0.50
           South Dakota         0.30   0.82      0.39    0.23    0.43*      0.16*

                       Page 59 GAO-04-105 Federal Drug Sentences
                                                                             California                            California                          California                           California                                                                                                                                                                                                                              Northern                                                                      Washington                                Washington                                 Tenth                                                                                        New                               Oklahoma                              Oklahoma                                Oklahoma
    Alaska 0.24 0.64 0.67 0.38 0.70  Arizona 0.26 0.69* 1.87 3.73 6.87* 7.5*  Central   0.16 0.42* 0.53 0.73 1.35   Eastern   0.30 0.8 0.77 0.42 0.77   Northern  0.19 0.5* 1.07 0.60 1.11   Southern  0.51 1.37* 2.27* 2.68 4.94* 2.61* Guam 1.09 2.94* 1.55 0.72 1.33 0.2* Hawaii 0.49 1.31 1.36 0.56 1.03 0.3* Idaho 0.59 1.6 0.34* 0.25 0.46 1.07 Montana 0.66 1.77* 0.89 0.22 0.41* 0.81 Nevada 0.23 0.61* 0.48 0.63 1.15 0.65 Mariana  2.00 5.37* 0.28 1.00 1.84 0.93 Oregon 0.37 1.01 0.27* 0.56 1.02 0.66  Eastern   0.20 0.53* 0.66 0.70 1.29 0.73  Western   0.54 1.44* 1.23 0.69 1.27 1.48 Circuit       Colorado 1.07 2.89* 0.68 0.73 1.34 1.57 Kansas 0.28 0.76 0.3* 0.28 0.51* 0.41* Mexico 0.19 0.5* 1 1.99 3.66* 0.86 Eastern  0.07 0.19*  0.65 1.20 10.79* Northern 0.26 0.71 0.53 0.24 0.45* 1.50 Western  0.21 0.56* 0.88 0.16 0.29* 0.22* Utah 0.19 0.51*  1.05 1.92* 2.50
                                                                                                                                                                                                                                                                                                                                                                                                                                    Islands                                                                                                                                                                                                                                                                                                                                                                                                                                                    Wyoming 0.37 1 0.18* 0.42 0.77 1.19

      Appendix III: Likelihood of Sentences Falling below a Guideline Range or an
                         Otherwise Applicable Mandatory Minimum

                Odds on falling                       Odds on
                      below for                       falling
                                                        below
                    substantial Unadjusted Adjusted for other Unadjusted Adjusted
    District      assistance   ratios    ratios    reasons   ratios     ratios

                                    Eleventh Circuit

          Alabama Middle        0.91   2.45*    0.46*    0.34     0.62
         Alabama Northern       0.59   1.59*     0.63    0.27    0.49*
         Alabama Southern       0.69   1.85*     0.75    0.27    0.49*       0.3*
          Florida Middle        0.38   1.03     0.46*    0.44     0.82
         Florida Northern       0.49   1.32      1.63    0.16     0.3*
         Florida Southern       0.17   0.44*     0.56    1.56    2.87*
          Georgia Middle        0.33   0.88      0.2*    0.21    0.39*      0.23*
         Georgia Northern       0.28   0.75*    0.26*    0.47     0.86
         Georgia Southern       0.23   0.62*    0.18*    0.12    0.21*      0.25*

    Source: GAO analysis of USSC data.

    Note: The odds on sentences falling below for substantial assistance were
    calculated using all cases. The odds on sentences falling below for other
    reasons were calculated using only cases that did not fall below for
    substantial assistance. Ratios were calculated using the Minnesota
    District as the referent category. Adjusted ratios are from logistic
    regression models that control for offense and offender characteristics.

    *Odd ratio coefficients that are significant at the 0.05 level.

    Appendix IV: Data for Analyzing Departures and Mandatory Minimum Sentences at
    Circuit and District Court Levels Limited

      Documents USSC Requests from District Courts

    o   o   o   o   o

      How USSC Uses Documents to Create Its Database

    Overall, the data the U.S. Sentencing Commission (USSC) has received
    from district courts and judges were generally sufficient for our analyses
    of downward departures and mandatory minimum sentences across
    circuits and for most districts. Missing data due to missing sentencing
    documents or information posed few limitations for our analysis.
    However, opportunities for improvement exist.

    Under the authority of the Sentencing Reform Act of 1984, USSC required
    courts to forward to it the following five sentencing documents in every
    guidelines case.1 The PROTECT Act of 2003 codifies this data collection
    requirement:

    the Judgment and Commitment Order (J&C);
    the Statement of Reasons (SOR);
    the Pre-sentence Report (PSR);
    any written plea agreements, if applicable; and
    all indictments or other charging documents.

    Under the PROTECT Act, courts are to send to USSC a "Report of
    Sentence" enclosing the required sentencing documents within 30 days of
    a judgment, and the Chief Judge in every district is to ensure that their
    courts do so.2

    Of the five sentencing documents submitted by district courts, USSC
    officials told us they rely primarily on the J&C, SOR, and PSR to obtain
    the
    sentencing information that USSC staff code into USSC database. From
    the J&C, USSC obtains data on the sentence, including the number of
    months of any imprisonment, the statute of conviction, and whether any
    mandatory minimum sentence applied. USSC officials also said that they
    rely almost exclusively on the SOR to obtain data on the basis for the
    sentence, such as whether the sentence imposed fell within or outside the
    applicable sentencing guidelines range as determined by the court, the
    reason(s) for any departure, and whether a substantial assistance motion
    or safety valve adjustment was used. If the SOR is missing, USSC coding

    128 U.S.C. 994(w), 995(a)(8). Courts are also to forward additional
    documentation related to actions taken after sentencing, such as
    revocations of probation or resentencing under Federal Rule of Criminal
    Procedure 35(b).

    2P.L. 108-21, sec. 401(h), amending 28 U.S.C. 994(w).

    Appendix IV: Data for Analyzing Departures and Mandatory Minimum Sentences
    at Circuit and District Court Levels Limited

    procedures have required document analysts to record the departure status
    as missing, although other documents, such as the plea agreement, may have
    information that indicate whether and why the sentence departed. USSC is
    initiating some changes in its coding procedures as discussed below. From
    the PSR, which is drafted by a district probation officer, USSC obtains
    demographic and other background information about offenders, an initial
    sentencing recommendation according to the guidelines, and other
    sentencing information such as whether the offense of conviction had a
    mandatory minimum (should this information not be noted in the J&C), and
    whether the safety valve could potentially be applied (in certain limited
    circumstances where this information has not been recorded in a SOR).

    Our analysis shows that district courts provided these five sentencing
    documents to USSC for the great majority of drug sentences imposed in
    fiscal years 1999-2001. Of 72,283 drug sentences imposed during this
    period, district courts submitted between 96 and 99 percent of the three
    key sentencing documents- the J&C (99 percent), SOR (96 percent), and PSR
    (98 percent)-from which USSC obtains sentencing data. According to USSC
    data, a lower percentage of plea agreements (89 percent) and indictments
    (87 percent) were submitted during this time period. During the period of
    our review, USSC did not primarily rely on these two documents for
    departure information. Table 13 shows, by circuit, the percentage of each
    type of sentencing document USSC did not receive in fiscal years
    1999-2001.

      USSC Receives Most of Requested Sentencing Documents

     Appendix IV: Data for Analyzing Departures and Mandatory Minimum Sentences at
                       Circuit and District Court Levels Limited

    Table 13: Percent of Missing Drug Sentencing Documents, by Circuit, as
    Shown in USSC's Database for Fiscal Years 1999-2001

    Sentencing  National
                                                           Sixth
        documents  average  D.C. First  Third Fourth Fifth Seventh Tenth Eleventh
                                 Second                    Eighth
                                                           Ninth
        Judgment
           and
    commitment
                                                           0.5%
          order        0.7% 2.0% 0.2%    1.1%  1.4%  0.5%  0.3%    0.4%      0.6%
                                 0.8%                      0.4%
                                                           1.0%
        Statement
           of
                                                           1.9%
         reasons       3.7% 0.5% 4.9%    1.4%  7.4%  1.6%  2.5%    4.5%      2.4%
                                 5%                        1.3%
                                                           6.6%
    Presentence
                                                           1.3%
         report        1.5% 1.3% 2.3%    1.8%  1.7%  1.2%  2.3%    1.8%      0.9%
                                 1.8%                      1.1%
                                                           1.6%
          Plea
        agreement       11% 33%  12%       5%     7%    9%   7% 8%    9%       9%
                                 50%                         5% 8%
                                                            3% 20%
    Indictment       13% 39%  3% 75%   32%  10%      5%   3% 5%    6%       7%

    Source: GAO analysis of UUSC data.

    Among the 12 circuits, the rate of missing SORs-the principal document
    used to determine the reason for a sentencing departure-ranged from less
    than 1 percent to about 7 percent. Two of the 4 circuits in which the
    highest number of drug sentences were imposed were also missing the
    highest percent of their SORs-the 9th Circuit at 6.6 percent and the
    Fourth Circuit at 7.4 percent. A circuit's average can mask wide
    differences among the districts within the circuit. For example, the
    percentages of missing SORs among districts in the Ninth Circuit ranged
    from less than 1 percent to 58 percent and in the Fourth Circuit from less
    than 1 percent to 20 percent.

      USSC Takes Steps to Reduce Missing Document Rate

    USSC reviews the documents it receives from the district courts and
    annually sends a letter to each district court identifying the cases in
    which documents appear to be missing. Additionally, in its annual report,
    USSC discloses the overall document submission rate for all criminal cases
    for the J&C, SOR, and PSR documents. USSC also attempts to identify
    guidelines cases for which the courts may not have submitted any
    sentencing documents. By linking data from a database maintained by AOUSC
    with the data on cases in its database, USSC develops a list of cases for
    which it has not yet received documentation. USSC sends this list of cases
    to the relevant district courts and asks them to review the list and
    forward any documents USSC should have received.

     Appendix IV: Data for Analyzing Departures and Mandatory Minimum Sentences at
                       Circuit and District Court Levels Limited

    Missing or Difficult to In addition to missing sentencing documents, the
    documents USSC

    received in fiscal years 1999-2001 had missing information or information
    Interpret Information that was difficult to interpret. As shown in table
    14, among the circuits Can Affect Analysis of departure data were missing
    for 1 percent to 7 percent of drug sentences

    imposed in fiscal years 1999-2001. In addition, for 4 percent to 15
    percentDepartures of sentences, information was missing on whether the
    safety value was used as the basis for sentencing below a mandatory
    minimum.

    Table 14: Percent of Missing Drug Sentencing Information on Documents USSC
                      Received, by Circuit, Fiscal Years 1999-2001

    Sentencing  National
    information average  D.C. First  Third Fourth Fifth Sixth   Eighth Tenth Eleventh
                              Second                    Seventh Ninth
     Departure
    information       4%  3%   5% 5%    2%     8%    2%   2% 3%  1% 7%    5%       3%
      Safety
    valve
                      8% 11%  10%      13%  15%      4%   5% 7% 6% 12%    7%       4%
      applied                 10%

    Source: GAO analysis of UUSC data.

    Nationally, of the 72,283 federal drug sentence imposed in fiscal years
    1999-2001, 3,004 (4 percent) were coded as missing information necessary
    to determine whether the sentence departed from an applicable guideline
    range. Of these, 2,118 sentences were missing information because the SOR
    had not been received, and for 570, the SOR was received but did not
    include departure information.

    Missing or unclear data also limited our ability to determine when the
    safety valve was used as the basis for sentencing below an otherwise
    applicable mandatory minimum. For example, in our preliminary analysis, we
    found that of the 11,256 federal drug sentences for which the offense of
    conviction carried a mandatory minimum and fell below that minimum, about
    1,600 (14 percent) were coded by USSC as falling below the applicable
    mandatory minimum but not involving either the safety valve or substantial
    assistance. We discussed this issue with USSC. After reviewing the
    underlying documents used for coding these 1,600 sentences, USSC
    determined that over 900 sentences were miscoded. These miscoded sentences
    were recoded in a variety of ways, including some coded as involving the
    safety valve, some coded as involving substantial assistance, some coded
    as having a changed drug quantity that affected the applicable mandatory
    minimum, and some coded as missing safety valve information. USSC did not
    recode 681 sentences; these sentences remained coded as falling below a
    mandatory minimum but involving neither the safety valve nor substantial
    assistance. In addition, safety valve information was determined to be
    missing from 770 sentences for which the offense of

    Appendix IV: Data for Analyzing Departures and Mandatory Minimum Sentences
    at Circuit and District Court Levels Limited

    conviction carried and fell below a mandatory minimum. A USSC official
    said that there is no specific prompt on the SOR asking for information on
    the application of the safety valve or whether the offense of conviction
    carried a mandatory minimum.

    On the basis of our analysis, missing or incomplete sentencing information
    is unlikely to affect analyses nationally or by circuit but could affect
    the analysis of departures in districts where the missing documents or
    information are concentrated. Missing or incomplete sentencing information
    may also affect USSC's records for individual judges and thus USSC's
    ability to provide accurate judge-specific sentencing analysis were
    Congress to request this information under the auspices of the PROTECT
    Act.

      USSC Actions to Improve Coding

    Multiple Reasons Cited for Missing Documentation and Information

    USSC officials told us that they have not generally followed-up with
    district courts to obtain information that is missing from submitted
    documents or is unclear (e.g., whether the safety valve provision was the
    basis for a sentence below an applicable mandatory minimum). USSC staff
    does not use information from one document to substitute for missing or
    unclear information in another document. As a result of coding issues we
    identified during this review, USSC plans to implement new quality control
    and review procedures for sentences where information on the SOR is
    missing, incomplete, or unclear. These include identifying common errors
    for coding staff, using technology to develop automatic edit checks for
    apparently contradictory coding information for a sentence (e.g., those
    below an applicable mandatory minimum whose reason for departure is not
    substantial assistance or the safety valve), and having a staff attorney
    review sentences in which the coding supervisor is unable to determine the
    appropriate coding.

    Officials from USSC, the AOUSC, and the Judicial Conference Committee on
    Criminal Law cited several reasons that sentencing documents or
    information on sentencing documents were missing. First, USSC and AOUSC
    officials told us that some judges do not provide all the documents, in
    part because judges may be unclear whether documents under court seal or
    that pertain to individuals in the federal witness protection program are
    to be forwarded to USSC.

    Second, USSC relies almost exclusively on the SOR to determine whether the
    sentence departed, met a mandatory minimum, or involved substantial
    assistance. If the SOR is missing, USSC's coding procedures require

    Appendix IV: Data for Analyzing Departures and Mandatory Minimum Sentences
    at Circuit and District Court Levels Limited

    document analysts to record the departure status as missing, even if other
    documents, such as the plea agreement, suggests that a departure may by
    recommended by the government. As a result, incomplete information
    prevents USSC from collecting some sentencing data, as illustrated below
    by two examples drawn from drug sentences imposed during fiscal years
    1999-2001:

    o  	In one case, the SOR did not indicate the reason the court sentenced
    the offender to 97 months-a sentence below the applicable 10-year (120
    month) mandatory minimum. Without this information on the SOR, under the
    coding conventions used, USSC document analysts could not record
    substantial assistance as the reason that the sentence of 97 months fell
    below a mandatory minimum even though the plea agreement (prepared by the
    parties) and the PSR (prepared by the probation officer) indicated that a
    substantial assistance motion was to have been made.

    o  	In another case, the SOR stated that the court was crediting the
    offender for time served but failed to state the specific amount of time
    being credited. Unable to determine the amount of time being credited, and
    thus the sentence length being imposed, USSC document analysts could not
    determine whether the sentence departed or met an applicable mandatory
    minimum.

    Third, judges report the information using different versions of the SOR
    forms that can make consistent interpretation more difficult. For example,
    some jurisdictions provide one-page, single-spaced narratives that report
    the sentence and, in rare cases, others provide a transcript of the
    sentencing hearing instead of an SOR. According to USSC officials,
    interpreting multiple forms that report sentencing information in
    different ways and in different locations complicates the process of
    coding sentencing data such as departure status and use of the safety
    valve and may lead to missing sentencing information. USSC officials
    stated the single most effective step towards improving the completeness
    of data the courts report and USSC's ability to code it would be the
    increased use of a standard SOR. The Judicial Conference at its September
    2003 meeting accepted revisions to the standard SOR. The Conference
    designated the revised form as the mechanism by which courts comply with
    the requirements of the PROTECT Act to report reasons for sentences to
    USSC. The Committee plans to encourage judges to use it through education
    about the benefits of its use, but the Chair of the Committee stated that
    the Committee does not believe it has the authority to require the use of
    the new SOR. Officials from AOUSC and the Committee said they believe that
    with additional education judges will routinely use the

    Appendix IV: Data for Analyzing Departures and Mandatory Minimum Sentences
    at Circuit and District Court Levels Limited

    new standard SOR, resulting in more useful and higher quality data
    reported to USSC.

    Last, according to officials from AOUSC and the Criminal Law Committee,
    judges and other court officials lack an awareness of how to complete the
    SORs with a level of detail that would allow USSC to collect sentencing
    information. The Committee official said that education for judges and
    other court officials is needed on how to properly complete the SOR. In
    addition, no feedback mechanism is in place to inform judges that
    information on the SOR was incomplete or unclear to USSC and, therefore,
    cases are coded as missing sentencing information. Although USSC contacts
    the courts to request missing sentencing documents be submitted, it does
    not provide a similar list of documents that contained information coded
    as missing. Without knowing which cases are coded as missing sentencing
    information, judges cannot clarify or complete information needed by USSC.

    While USSC and the Federal Judicial Center offer programs and workshops on
    application of the guidelines to judges and other court officials, no
    education programs are provided on how to complete the SOR in ways that
    provide clear, complete information. Officials from USSC, AOUSC, and
    Criminal Law Committee said that education on how to apply increasingly
    complex guidelines has been their focus, not educating judges and other
    officials to correctly complete the SOR. Officials also said that in the
    future it would be possible to provide programs at judicial workshops or
    through the Federal Judicial Center that educates judges and other court
    officials on how to provide clear, complete reports on sentencing.

    The category "other downward departures" generally thought to represent
    judicial discretion may also reflect downward departures resulting from
    prosecutorial discretion and initiative. In this report we classified
    departures as either "substantial assistance" or "other downward"
    departures. Substantial assistance departures can be viewed as a measure
    of prosecutorial discretion because only the prosecutor has the authority
    to initiate and recommend to the court that an offender be given a reduced
    sentence for substantial assistance to the prosecution. Neither the judge
    nor defense counsel may do so. The remaining departures, "other downward
    departures," are generally considered to be an indication of judicial
    discretion. AOUSC officials suggested, however, that the category "other
    downward departures" provides an imprecise measure of judicial discretion.
    For example, AOUSC officials noted that some departures classified in USSC
    database as other departures may actually arise from

      Other Downward Departures Do Not Solely Reflect Judicial Discretion

    Appendix IV: Data for Analyzing Departures and Mandatory Minimum Sentences
    at Circuit and District Court Levels Limited

    agreements, particularly plea bargains, that either were initiated or
    supported by the government. We did not confirm this statement with
    federal prosecutors. USSC documents in its database up to three reasons
    judges provide for an other downward departure. According to USSC database
    for drug sentences in fiscal years 1999-2001, the first reason provided
    for an other downward departure in 18 percent of the sentences was the
    government's fast track programs;3 in 16 percent, plea agreement; and in 4
    percent, deportation. Tables 15, 16, and 17 detail for drug sentences the
    number and percent of other downward departures associated with the first,
    second, and third reasons provided for those departures.

     Table 15: First Reason Provided by Judges for Other Downward Departure in Drug
                        Sentences Nationwide, Fiscal Years 1999-

                                              Number of other    Percent of other
                                                 downward     downward departures
                    First reason                departures     for drug sentences
                  No Reason given                          16                   *
    (5G1.3) Convictions on related counts               10                   *
                    (5H1.1) Age                            40                   *
         (5H1.2) Educational and vocational                 1                   *
                       skills
            (5H1.3) Mental and emotional                   55                  1%
                     conditions
             (5H1.4) Physical condition                   223                  2%
        (5H1.4) Drug dependence and alcohol
                       abuse                               21                   *
         (5H1.5) Previous employment record                 5                   *
              (5H1.6) Family ties and                     360                  3%
                  responsibilities
               (5H1.6) Community ties                      14                   *
         (5K1.1) Substantial assistance at                  1                   *
                       motion
        not 5K1.1 Cooperation without motion               30                   *
            Cooperation (motion unknown)                   34                   *
          (5K2.0) Several persons injured                   1                   *
              (5K2.2) Physical injury                       1                   *

    (5K2.3) Extreme psychological injury 1 *

    (5K2.6) Weapons and dangerous
    instrumentalities 1 *

    3 "Fast-track" or other early disposition programs in the southwest border
    districts provide lower sentences initiated by prosecutors for low-level
    drug trafficking offenses.

    Appendix IV: Data for Analyzing Departures and Mandatory Minimum Sentences
    at Circuit and District Court Levels Limited Appendix IV: Data for
    Analyzing Departures and Mandatory Minimum Sentences at Circuit and
    District Court Levels Limited Appendix IV: Data for Analyzing Departures
    and Mandatory Minimum Sentences at Circuit and District Court Levels
    Limited

                       Page 69 GAO-04-105 Federal Drug Sentences
                                                                                               (5K2.12)                                                                                                (2D1.1)        (2Q1.2,      (4A1.3)                 General     does not                 Significance                represents                                                    Other                                                                                                                   Guidelines                                     Put                                                                   Time or cost
     Number Percent                      First              for drug (5K2.10)     (5K2.11)     Coercion        (5K2.13)          Fast Track            (2A1.1) Death       (2A6.1)                    Unusually       2Q1.3)       Pattern     (4A1.3)     adequacy     reflect                      or          Criminal       the               Pursuant               Due to           plea        Mule/Role                            Local         Adequate     purposes                        Prey to       do not      of the        No prior       defendant's   defendant's.                                                 involved in      Acceptance of
    of        of  downward            reason departures sentences Victim's 2 *  Lesser  4 *   and    74 1% Diminished 207 2% -Immigration 1,969 18%  not caused   2 * Factors not    guideline 4 * high drug 16 *   Harm    1 *   of    2 * Pending 1 *    of      seriousness   history 7 *  similarity  6 * history    defendant's 1,169 11% to a plea 1,680 16% stipulations 10 * agreement 1 *  in the   89 1% Deportation 472 4% conditions 4 * punishment       of     82 1% Deterrence 36 *  other  3 * reflect the   offense 8 * record/first 6 * sentence in      Reduce    9 *          Lack of             defendant 5 *      the      3 * responsibility 91 1%               2 *
     other    other             downward                             conduct        harm        duress         capacity                                intentionally     incorporated                  amount        resulting     conduct      cases      criminal   of criminal                 of past        category   involvement           agreement                              reason        offense                                           to meet     sentencing                       inmates     seriousness                 offender        line with     disparity.      culpability/accountability                 investigation                          Limited/minor
                              departures                                                                                                                                      in                                     from risk                             history;                               conduct         over-                                                                                                                                    the                                                                                                   co-                                    of                                                                    prior record

                       Page 70 GAO-04-105 Federal Drug Sentences
                                                                                                                                                                                     Dollar                                                                                                  Not                                            Guidelines                                                                           Defendant                                                 Lower     chance to                                                                                                                                                             Source:
     Number Percent                      First              for drug                                                          Sufficient      Nature/seriousness       First         amount                  Currently      state or                                       Military     representative        Guidelines                        too                         (5K2.0)      mitigating              Other           is a law      or ex-law      Offense                    sentence       be a                   (5K2.16)      Lack of                                   Time        Child abuse                                                               GAO
    of        of  downward            reason departures sentences Rehabilitation 191 2% Restitution 2 * Incapacitation 4 * punishment 23 *   of the offense   5 *   felony   2 * involved   (general) 2 * receiving      federal    1 *   Defendant's     character 2 *  record  1 *     of the     93 1%     too        represented 2 * low/offense   represented 1 *   General     circumstance 1,671 15% (SPECIFY) 804 7% enforcement   enforcement 1 * behavior   incident 995 9%   gives     productive   society 1 * Voluntary  7 * youthful 2 *   Delay in     concerns 2 * served 28 *     (child       syndrome) 4 * Remorse 2 * Missing/indeterminable 191 2% analysis
     other    other             downward                                                                                                                             conviction     in crime                 punishment   jurisdiction        positive                                   "heartland"         high/offense                      level                      aggravating                                             officer       officer        was an                    defendant   member of                disclosure     guidance     prosecution;                            abuse/battered                                                           of USSC
                              departures                                                                                                                                                                       under                       background/good                                                   level over-                      under-                          or                                                                              isolated                       a                                                            evidentiary                                 child                                                                 data.

    Note: These percentages are based on 10,891 drug sentences imposed during
    fiscal years 1999-2001 for which departure information is available and
    the sentence was coded an other downward departure. USSC codes up to three
    reasons provided by judges as the bases for departing.

    *Less than 1percent.

    Appendix IV: Data for Analyzing Departures and Mandatory Minimum Sentences
    at Circuit and District Court Levels Limited

    Table 16: Second Reason Provided by Judges for Other Downward Departure in
    Drug Sentences Nationwide, Fiscal Years 1999-2001

                       Page 72 GAO-04-105 Federal Drug Sentences
                               (Second                                     (5H1.2)        (5H1.3)                         (5H1.4)                (5H1.5)                                              not 5K1.1                                   (5K2.12)                                            (2A6.1)                     (2D1.1)       (2D1.1)      Significance        Criminal                                                                         Other                                                       Adequate
    Second Number of   Percent Reason              No       (5H1.1)      Educational     Mental and       (5H1.4)           Drug                 Previous       (5H1.6) Family          (5H1.6)      Cooperation     Cooperation     (5K2.10)     Coercion       (5K2.13)        Fast Track         Factors not                  Unusually     Unusually          or              history           the           (4B1.1)      Pursuant           Due to          plea        Mule/role                         Local        punishment     purposes                     Charge/plea    seriousness
    reason   drug      of drug  field  8,986 82% reason 1 *   Age   20 *     and     2 * emotional  34 * Physical  71 1% dependence   abuse 7 * employment 4 *     ties and     105 1% Community 3 *   without   7 *   (motion   4 * Victim's 1 *   and    15 * Diminished 34 * -Immigration 206 2% incorporated  * guideline 1  high drug 1 * high drug 1 *  similarity  1 *    category       defendant's 72 1%  Career  1 * to a plea 61 1% stipulations 2 * agreement 1 *  in the   44 * Deportation 39 * conditions 3 *  to meet    *     of     9  Deterrence 13 *  does not    *   of the    1    No prior   7 *
           sentences sentences  left             given                   vocational      conditions      condition          and                   record       responsibilities          ties          motion         unknown)       conduct       duress        capacity                                in                       purity        amount         of past        over-represents   involvement       offender     agreement                         reason        offense                                          the        sentencing                    reflect the      offense      record/first
                               blank)                                      skills                                         alcohol                                                                                                                                                                                                                              conduct                                                                                                                                                                                                                                   offender

     Appendix IV: Data for Analyzing Departures and Mandatory Minimum Sentences at
                       Circuit and District Court Levels Limited

                   Second reason               Number of drug     Percent of drug
                                                  sentences             sentences
    Put defendant's sentence in line with                                    *
          codefendant's. Reduce disparity.                    4
    Lack of culpability/accountability of                                    *
                     defendant                                1
                 Lack of available                            1                 *
              facilities/overcrowding
            Time or cost involved in the                      2                 *
                   investigation
            Acceptance of responsibility                     18                 *
                   Rehabilitation                            46                 *
                   Incapacitation                             1                 *
               Sufficient punishment                         12                 *
              First felony conviction                         1                 *
        Defendant's positive background/good                                    *
                     character                                2
                  Military record                             1                 *
    Not representative of the "heartland"                 18                 *
           (5K2.0) General aggravating or
                     mitigating
                    circumstance                            282                3%
                  Other (SPECIFY)                           160                1%
                      Unknown                                 2                 *
          Offense behavior was an isolated                  567                5%
                      incident
           (5K2.16) Voluntary disclosure                      1                 *

    Lack of youthful guidance 6 *
    Time served 2 *
    Child abuse (child abuse/battered child *
    syndrome) 3
    Missing/indeterminable 4 *

    Source: GAO analysis of USSC data.

    Note: These percentages are based on 10,891 drug sentences imposed during
    fiscal years 1999-2001 for which departure information is available and
    the sentence was coded an other downward departure. USSC codes up to three
    reasons provided by judges as the bases for departing.

    *Less than 1percent.

    Appendix IV: Data for Analyzing Departures and Mandatory Minimum Sentences
    at Circuit and District Court Levels Limited

    Table 17: Third Reason Provided by Judges for Other Downward Departure in
    Drug Sentences Nationwide, Fiscal Years 1999-2001

                       Page 74 GAO-04-105 Federal Drug Sentences
                               (Third                          (5H1.2)        (5H1.3)                       (5H1.5)                                                          (5K2.12)                                      (2D1.1)         Criminal                                                                                                                      Put                                                                                      Defendant's            Not             (5K2.0)                                      Offense
    Third  Number of   Percent Reason            (5H1.1)     Educational     Mental and      (5H1.4)        Previous       (5H1.6) Family       Cooperation     (5K2.11)     Coercion      (5K2.13)       Fast Track      Unusually         history        defendant's    Pursuant      Mule/role                       Local                         No prior       defendant's    codefendant's.    Acceptance of                                                positive         representative       General                         Other        behavior
    reason   drug      of drug field  10,705 98%   Age   7 *     and     1 * emotional  4 * Physical  15 * employment 3 *     ties and     20 *   (motion   2 *  Lesser  1 *   and    3 * Diminished 6 * -Immigration 5 * high drug 1 *    category      * involvement 9  to a plea 6 *  in the   8 * Deportation 3 * conditions 1 * Deterrence 3 * record/first 3 * sentence in  *     Reduce     1  responsibility 3 * Rehabilitation 12 * Incapacitation 7 * background/good 1 *     of the     6 * aggravating  * circumstance 17  (SPECIFY) 13 *  was an  24 * Lack of  1 *
           sentences sentences  left                         vocational      conditions     condition        record       responsibilities       unknown)         harm        duress       capacity                        amount       over-represents                   agreement      offense                                                      offender        line with       disparity                                                                    character         "heartland"           or                                         isolated      youthful
                               blank)                          skills                                                                                                                                                                         the                                                                                                                                                                                                                                                      mitigating                                     incident      guidance

                           Source: GAO analysis of USSC data.

    Note: These percentages are based on 10,891 drug sentences imposed during
    fiscal years 1999-2001 for which departure information is available and
    the sentence was coded an other downward departure. USSC codes up to three
    reasons provided by judges as the bases for departing.

    *Less than 1percent.

                       Page 75 GAO-04-105 Federal Drug Sentences

    Appendix V: Comments from U.S. Sentencing Commission

    Appendix VI: Comments from the Judicial Conference Committee on Criminal Law

    Appendix VI: Comments from the Judicial Conference Committee on Criminal
    Law

      Appendix VI: Comments from the Judicial Conference Committee on Criminal Law

                           Copy of testimony is not included.

    Appendix VI: Comments from the Judicial Conference Committee on Criminal
    Law

    Appendix VI: GAO Contacts and Staff Acknowledgments

    GAO Contacts

      Staff Acknowledgments

    (440188)

    William O. Jenkins, Jr. (202) 512-8757 David Alexander (202) 512-4223

    In addition to the persons named above, the following persons made key
    contributions to this report: William W. Crocker, III, Christine Davis,
    Barbara Hills, David Makoto Hudson, E. Anne Laffoon, William Sabol, Doug
    Sloane, Wendy Turenne.

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