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Chapter 6:
Sentencing Guidelines


How to Demonstrate Average Sentencing Variance


EXAMPLE ONE: Eastern District of Virginia

Navigate to the district’s Case Management/Electronic Case Files (CM/ECF) system: ecf.vaed.uscourts.gov.

Login Page for Eastern District of Virginia Pacer

Click on the “Eastern District of Virginia – – Document Filing System” Link.

Eastern District of Virginia PACER Login Page

Log into PACER using your credentials. Accept the Redaction Responsibility notice.

Eastern District of Virginia Court filing system login notice.

Using the menu at the top of the page, navigate to Reports → Criminal Reports → Criminal Cases

How to select criminal cases page on EDVA Pacer.

Arrive at the following landing page:

EDVA Criminal Cases Report Landing Page.

Make the following adjustments:

    1. Select the office you wish to investigate (for example, Alexandria).
    2. Select the citation you wish to investigate (for example, 18:2252A.F).
    3. Next to “Count Status,” check the boxes next to “Pending” and “Disposed.”
    4. Next to “Filed,” select the date range you are interested in (for example, the past five years).
    5. Check the boxes next to “Pending defendants” and “Terminated defendants.”

EDVA Criminal Cases Report Selections

Select “Run Report.”

List of EDVA Cases 2018-2023.

Determine which information would be most useful for your case. This could include all of the Court’s sentencing orders for the relevant statute in the last five years, the Court’s last few sentencing orders for the relevant statute, or a specific Judge’s sentencing orders for the relevant statute. For this example, we will look at all of the 18 U.S.C. 2252A cases that Judge T.S. Ellis has presided over for in the last five years (12/1/2018-12/1/2023).

List of EDVA criminal cases with "Presider: T.S. Ellis, III" highlighted.

Select the Case Number you are interested in (for example, 1:18-cr-00360-TSE).

Docket Sheet for USA v. Wilson.

Select “Run Report.”

EDVA Criminal Docket for Wilson case.

Scroll down and locate the Restitution Order. In this example, it is number 49. Click on the number.

Judgment highlighted on US v. Wilson docket.

 Select “View Document.”

Transaction receipt for viewing Wilson judgment.

EDVA Wilson judgment in a criminal case.

Scroll down to locate the “Imprisonment” section of the judgment.

Imprisonment section of Wilson judgment, sentencing defendant to 60 months.

In this case, Judge Ellis sentenced the defendant to 60 months.

Scroll down to locate the “Statement of Reasons” section of the judgment. Locate “III Court determination of advisory guideline range (before departures).”

EDVA Wilson Court Determination of Advisory Guideline Range

In this case, the sentencing guidelines range was 97-121 months. Judge Ellis departed 37 months below the low end of the sentencing guidelines.

Note: For qualitative reasons for the variance, locate the section on “Court Determination for Sentence Outside the Advisory Guideline System.” This provides useful information on the facts of the cases leading to variance, and whether the case is relevant to yours.

Qualitative statement of reasons for sentencing outside the advisory guidelines.

Using the spreadsheet program of your choice, create a chart and insert the following information:

Spreadsheet with Wilson case sentencing guidelines information

Repeat steps #9 – #15 until you have collected all of the information you need (Eliminate the cases that are missing information). Calculate the average variance.

EDVA sentencing guidelines and variance spreadsheet.

You can now see that in the Alexandria court in the Eastern District of Virginia, in a five-year time span, for the cases that we found information for, Justice Ellis has varied by roughly half below the low end of the sentencing guidelines across their cases.

Note: You can make the case to exclude cases in which the court varies upward from the low end of the guidelines range based on extraordinary facts.

EXAMPLE TWO: Southern District of New York

Navigate to the district’s Case Management/Electronic Case Files (CM/ECF) system: ecf.nysd.uscourts.gov.

SDNY PACER Landing page.

Click on the “Southern District of New York – Document Filing System” Link.

New York Southern District Court PACER Login page.

Log into PACER using your credentials. Accept the Redaction Responsibility notice.

Southern District of New York official court electronic document filing system landing page.

Using the menu at the top of the page, navigate to Reports → Criminal Reports → Criminal Cases

Navigating to Criminal Cases from the SDNY Pacer menu.

Arrive at the following landing page:

SDNY Criminal Cases Report selection menu.

Make the following adjustments:

    1. Select the office you wish to investigate (for example, White Plains).
    2. Select the citation you wish to investigate (for example, 18:2252A.F).
    3. Next to “Count Status,” check the boxes next to “Pending” and “Disposed.”
    4. Next to “Filed,” select the date range you are interested in (for example, the past five years).
    5. Check the boxes next to “Pending defendants” and “Terminated defendants.”

SDNY Criminal report menu page with selections made.

Select “Run Report.”

List of SDNY Cases.

Determine which information would be most useful for your case. This could include all of the Court’s sentencing orders for the relevant statute in the last five years, the Court’s last few sentencing orders for the relevant statute, or a specific Judge’s sentencing orders for the relevant statute. For this example, we will look at all of the 18 U.S.C. 2252A cases that Judge Seibel has presided over in the last five years (12/1/2018-12/1/2023).

SDNY Cases with "Presider: Cathy Seibel" Highlighted

Select the Case Number you are interested in (for example, 1:19-cr-00682-CS).

Query page for USA v. Ostrander

Select “History/Documents…”

Ostrander history/documents menu page.

Scroll down and locate the Judgment. In this example, it is number 31. Click on the number.

Case menu page with "judgment" highlighted.

 Select “View Document.”

SDNY PACER Service Center Transaction Receipt.

US v. Ostrander judgment in a criminal case document.

Scroll down to locate the “Imprisonment” section of the judgment.

US v. Ostrander Imprisonment page.

In this case, Judge Seibel sentenced the defendant to 120 months.

Locate the Sentencing Submission. In this example, it is number 30. Click on the number and select View Document.

Ostrander menu page with "sentencing submission" highlighted.

Ostrander Sentencing Submission

Locate the section on the guidelines range.

Guidelines range section highlighted on Ostrander sentencing document.

In this case, the sentencing guidelines range was 120-135 months. Judge Seibel imposed the low end of the sentencing guidelines.

Using the spreadsheet program of your choice, create a chart and insert the following information:

Spreadsheet with US v. Ostrander sentencing information.

Repeat steps #9 – #16 until you have collected all of the information you need (Eliminate the cases that are missing information). Calculate the average variance.

Spreadsheet with SDNY cases sentencing information and average variance.

You can now see that in the White Plains court in the Southern District of New York, in a five-year time span, for the cases that we found information for, Justice Seibel has varied by roughly half below the low end of the sentencing guidelines across their cases.

Note: You can make the case to exclude cases in which the court varies upward from the low end of the guidelines range based on extraordinary facts.

EXAMPLE THREE: Northern District of Georgia

Navigate to the district’s Case Management/Electronic Case Files (CM/ECF) system: ecf.gand.uscourts.gov.

Northern District of Georgia PACER landing page.

Click on the “Northern District of Georgia – Document Filing System” Link.

NDGA Official Court Electronic Document Filing System

Using the menu at the top of the page, navigate to GAND External Rpts → Criminal Cases

EDGA PACER menu navigating to criminal cases.

Arrive at the following page:

Criminal Cases Report menu page.

Make the following adjustments:

    1. Select the office you wish to investigate (for example, Atlanta).
    2. Select the citation you wish to investigate (for example, 18:2252A.F).
    3. Next to “Filed,” select the date range you are interested in (for example, the past month).
    4. Select “All Defendants”

GAND Public Criminal Cases Report Selections

Note: In this district, the report date range can be no longer than 31 days. If you enter a date range longer than this the following message will appear:

Error message reading "Report date range can be no longer than 31 days."

Select “Submit.”

GAND Cases for Filed Report Period 1/1/2023-2/1/2023. One case listed: USA v. Gautreaux.

Select the case number you are interested in (ex. 1:23-cr-00001-JPB)

Docket Sheet selection page for US v. Gautreaux

Select “Run Report.”

Criminal docket for US v. Gautreaux

Locate the judgment. In this example, it is number 12. Click the number.

Menu for US v. Gautreaux with "judgment and commitment" highlighted.

Select “View Document.”

PACER Service Center Transaction Receipt

Gautreaux Judgment in a criminal case.

Scroll down to locate the “Imprisonment” section of the judgment.

Document sentencing defendant to 120 months imprisonment.

In this example, the defendant was sentenced to 120 months.

Enter the information into a spreadsheet to calculate the average sentence that a judge has ordered for the relevant charge(s). There is not always a way to determine the recommended sentencing guidelines range. However, information from the actual sentences may still be useful for your case.

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