Kevin Bernardo


This Article discusses the sensibility of each of these three options. Part II sets forth a hypothetical controlled substance offense to better illustrate the choices faced by the Commission. Part III recounts approaches that the Commission has actually adopted in incorporating statutory limits into the Guidelines. Part IV addresses the goals of guideline sentencing and concludes that the Guidelines’ structure should be primarily driven by actual fairness concerns. Applying actual fairness as the overriding concern, Part V concludes that statutory limits should not be incorporated into an offense guideline when some offenders subject to the guideline will not be subject to the statutory limit. In particular, the drug distribution guideline should be decoupled from Congress’s mandatory minimum sentences and revised to reflect the Commission’s purest sentencing recommendations because defendants can avoid mandatory minimum sentences either through the operation of the statutory “safety valve” or through the government’s failure to charge or adequately prove triggering drug quantities. The current drug distribution guideline, which is extrapolated from statutorily-imposed mandatory minimum sentences, works actual unfairness when applied to defendants who are not subject to those mandatory minimums.

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