Prosecutorial Discretion and Real-Offense Sentencing: An Analysis of Relevant Conduct under the Federal Sentencing Guidelines

The primary objective of the federal sentencing guidelines is to reduce judicial discretion and unwarranted disparity by prescribing like sentences for like defendants convicted of the same offense. The guidelines are based on real-offense sentencing, which links relevant conduct or actual offense behavior to the sentencing process. This study analyzes the indictment stage where the charging decisions by the federal prosecutor in conjunction with relevant conduct are first conceived. Our major finding is that the number of counts within the indictment has a statistically significant effect on the length of sentence, the magnitude of the discount for downward departures, and the ratio of the difference between the presumptive sentence and the sentence discount. The number of counts has no effect on the offender’s likelihood of receiving either a downward departure or a substantial assistance departure. This suggests that offenders convicted of the same crime do not necessarily receive the same sentence.