'Misprision of a Felony'

Much has been written about the inflexibility of the Sentencing Guidelines, which attempt to impose consistency in sentencing by assigning numeric values to factors such as the charges against the defendant and the monetary value of the victims' loss, and then slotting those values into a formula to determine the 'recommended' minimum and maximum sentences for the charged offense. The degree to which courts feel bound to impose a sentence within the guidelines range varies among the circuits. However, since U.S. v. Booker, 543 U.S. 220 (2005) was issued on Jan. 12, 2005, effectively making the guidelines 'advisory,' statistics compiled by the U.S. Sentencing Commission show that the courts have generally imposed sentences within the established Guidelines ranges.

The concern that the Guidelines constrain judicial discretion takes on heightened urgency because the statutory crimes to which they apply cast such a wide net. Chief among these is 18 U.S.C. ' 371 ' the federal conspiracy statute, whose scope enables the Department of Justice (DOJ) to target even peripheral participants who may be exposed to punishment approaching that of their principal co-conspirators. For example, the total loss amount generated by the conspiracy may be attributed to the defendant even if he is personally responsible for only a negligible amount and otherwise played a small role in the scheme. Moreover, the loss amount is but one factor that the guidelines take into account. After calculating other adjustments, the recommended sentence may quickly reach the outer limits of the statutory maximum even for a peripheral participant who committed a single fraudulent act.