Crimes and Criminal Procedure - 18 USC Section 3553

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01/19/04

Sec. 3553. Imposition of a sentence

(a) Factors To Be Considered in Imposing a Sentence. - The court
shall impose a sentence sufficient, but not greater than necessary,
to comply with the purposes set forth in paragraph (2) of this
subsection. The court, in determining the particular sentence to be
imposed, shall consider -

(1) the nature and circumstances of the offense and the history
and characteristics of the defendant;

(2) the need for the sentence imposed -

(A) to reflect the seriousness of the offense, to promote

respect for the law, and to provide just punishment for the

offense;

(B) to afford adequate deterrence to criminal conduct;

(C) to protect the public from further crimes of the

defendant; and

(D) to provide the defendant with needed educational or

vocational training, medical care, or other correctional

treatment in the most effective manner;

(3) the kinds of sentences available;

(4) the kinds of sentence and the sentencing range established
for -

(A) the applicable category of offense committed by the

applicable category of defendant as set forth in the guidelines

-

(i) issued by the Sentencing Commission pursuant to section

994(a)(1) of title 28, United States Code, subject to any

amendments made to such guidelines by act of Congress

(regardless of whether such amendments have yet to be

incorporated by the Sentencing Commission into amendments

issued under section 994(p) of title 28); and

(ii) that, except as provided in section 3742(g), are in

effect on the date the defendant is sentenced; or

(B) in the case of a violation of probation or supervised

release, the applicable guidelines or policy statements issued

by the Sentencing Commission pursuant to section 994(a)(3) of

title 28, United States Code, taking into account any

amendments made to such guidelines or policy statements by act

of Congress (regardless of whether such amendments have yet to

be incorporated by the Sentencing Commission into amendments

issued under section 994(p) of title 28);

(5) any pertinent policy statement -

(A) issued by the Sentencing Commission pursuant to section

994(a)(2) of title 28, United States Code, subject to any

amendments made to such policy statement by act of Congress

(regardless of whether such amendments have yet to be

incorporated by the Sentencing Commission into amendments

issued under section 994(p) of title 28); and

(B) that, except as provided in section 3742(g), is in effect

on the date the defendant is sentenced.(!1)

(6) the need to avoid unwarranted sentence disparities among
defendants with similar records who have been found guilty of
similar conduct; and

(7) the need to provide restitution to any victims of the
offense.
(b) Application of Guidelines in Imposing a Sentence. -
(1) In general

Except as provided in paragraph (2), the court shall impose a
sentence of the kind, and within the range, referred to in
subsection (a)(4) unless the court finds that there exists an
aggravating or mitigating circumstance of a kind, or to a degree,
not adequately taken into consideration by the Sentencing
Commission in formulating the guidelines that should result in a
sentence different from that described. In determining whether a
circumstance was adequately taken into consideration, the court
shall consider only the sentencing guidelines, policy statements,
and official commentary of the Sentencing Commission. In the
absence of an applicable sentencing guideline, the court shall
impose an appropriate sentence, having due regard for the
purposes set forth in subsection (a)(2). In the absence of an
applicable sentencing guideline in the case of an offense other
than a petty offense, the court shall also have due regard for
the relationship of the sentence imposed to sentences prescribed
by guidelines applicable to similar offenses and offenders, and
to the applicable policy statements of the Sentencing Commission.
(2) Child crimes and sexual offenses

(A) (!2) Sentencing

In sentencing a defendant convicted of an offense under

section 1201 involving a minor victim, an offense under section

1591, or an offense under chapter 71, 109A, 110, or 117, the

court shall impose a sentence of the kind, and within the

range, referred to in subsection (a)(4) unless -

(i) the court finds that there exists an aggravating

circumstance of a kind, or to a degree, not adequately taken

into consideration by the Sentencing Commission in

formulating the guidelines that should result in a sentence

greater than that described;

(ii) the court finds that there exists a mitigating

circumstance of a kind or to a degree, that -

(I) has been affirmatively and specifically identified as

a permissible ground of downward departure in the

sentencing guidelines or policy statements issued under

section 994(a) of title 28, taking account of any

amendments to such sentencing guidelines or policy

statements by Congress;

(II) has not been taken into consideration by the

Sentencing Commission in formulating the guidelines; and

(III) should result in a sentence different from that

described; or

(iii) the court finds, on motion of the Government, that

the defendant has provided substantial assistance in the

investigation or prosecution of another person who has

committed an offense and that this assistance established a

mitigating circumstance of a kind, or to a degree, not

adequately taken into consideration by the Sentencing

Commission in formulating the guidelines that should result

in a sentence lower than that described.
In determining whether a circumstance was adequately taken into
consideration, the court shall consider only the sentencing
guidelines, policy statements, and official commentary of the
Sentencing Commission, together with any amendments thereto by act
of Congress. In the absence of an applicable sentencing guideline,
the court shall impose an appropriate sentence, having due regard
for the purposes set forth in subsection (a)(2). In the absence of
an applicable sentencing guideline in the case of an offense other
than a petty offense, the court shall also have due regard for the
relationship of the sentence imposed to sentences prescribed by
guidelines applicable to similar offenses and offenders, and to the
applicable policy statements of the Sentencing Commission, together
with any amendments to such guidelines or policy statements by act
of Congress.
(c) Statement of Reasons for Imposing a Sentence. - The court, at
the time of sentencing, shall state in open court the reasons for
its imposition of the particular sentence, and, if the sentence -

(1) is of the kind, and within the range, described in
subsection (a)(4), and that range exceeds 24 months, the reason
for imposing a sentence at a particular point within the range;
or

(2) is not of the kind, or is outside the range, described in
subsection (a)(4), the specific reason for the imposition of a
sentence different from that described, which reasons must also
be stated with specificity in the written order of judgment and
commitment, except to the extent that the court relies upon
statements received in camera in accordance with Federal Rule of
Criminal Procedure 32. In the event that the court relies upon
statements received in camera in accordance with Federal Rule of
Criminal Procedure 32 the court shall state that such statements
were so received and that it relied upon the content of such
statements.
If the court does not order restitution, or orders only partial
restitution, the court shall include in the statement the reason
therefor. The court shall provide a transcription or other
appropriate public record of the court's statement of reasons,
together with the order of judgment and commitment, to the
Probation System and to the Sentencing Commission,,(!3) and, if the
sentence includes a term of imprisonment, to the Bureau of Prisons.
(d) Presentence Procedure for an Order of Notice. - Prior to
imposing an order of notice pursuant to section 3555, the court
shall give notice to the defendant and the Government that it is
considering imposing such an order. Upon motion of the defendant or
the Government, or on its own motion, the court shall -

(1) permit the defendant and the Government to submit
affidavits and written memoranda addressing matters relevant to
the imposition of such an order;

(2) afford counsel an opportunity in open court to address
orally the appropriateness of the imposition of such an order;
and

(3) include in its statement of reasons pursuant to subsection
(c) specific reasons underlying its determinations regarding the
nature of such an order.
Upon motion of the defendant or the Government, or on its own
motion, the court may in its discretion employ any additional
procedures that it concludes will not unduly complicate or prolong
the sentencing process.
(e) Limited Authority To Impose a Sentence Below a Statutory
Minimum. - Upon motion of the Government, the court shall have the
authority to impose a sentence below a level established by statute
as a minimum sentence so as to reflect a defendant's substantial
assistance in the investigation or prosecution of another person
who has committed an offense. Such sentence shall be imposed in
accordance with the guidelines and policy statements issued by the
Sentencing Commission pursuant to section 994 of title 28, United
States Code.
(f) Limitation on Applicability of Statutory Minimums in Certain
Cases. - Notwithstanding any other provision of law, in the case of
an offense under section 401, 404, or 406 of the Controlled
Substances Act (21 U.S.C. 841, 844, 846) or section 1010 or 1013 of
the Controlled Substances Import and Export Act (21 U.S.C. 960,
963), the court shall impose a sentence pursuant to guidelines
promulgated by the United States Sentencing Commission under
section 994 of title 28 without regard to any statutory minimum
sentence, if the court finds at sentencing, after the Government
has been afforded the opportunity to make a recommendation, that -

(1) the defendant does not have more than 1 criminal history
point, as determined under the sentencing guidelines;

(2) the defendant did not use violence or credible threats of
violence or possess a firearm or other dangerous weapon (or
induce another participant to do so) in connection with the
offense;

(3) the offense did not result in death or serious bodily
injury to any person;

(4) the defendant was not an organizer, leader, manager, or
supervisor of others in the offense, as determined under the
sentencing guidelines and was not engaged in a continuing
criminal enterprise, as defined in section 408 of the Controlled
Substances Act; and

(5) not later than the time of the sentencing hearing, the
defendant has truthfully provided to the Government all
information and evidence the defendant has concerning the offense
or offenses that were part of the same course of conduct or of a
common scheme or plan, but the fact that the defendant has no
relevant or useful other information to provide or that the
Government is already aware of the information shall not preclude
a determination by the court that the defendant has complied with
this requirement.

EFFECTIVE DATE OF 1994 AMENDMENT
Section 80001(c) of Pub. L. 103-322 provided that: "The amendment
made by subsection (a) [amending this section] shall apply to all
sentences imposed on or after the 10th day beginning after the date
of enactment of this Act [Sept. 13, 1994]."

EFFECTIVE DATE OF 1987 AMENDMENT
Amendment by Pub. L. 100-182 applicable with respect to offenses
committed after Dec. 7, 1987, see section 26 of Pub. L. 100-182,
set out as a note under section 3006A of this title.

EFFECTIVE DATE OF 1986 AMENDMENTS
Section 8(c) of Pub. L. 99-646 provided that: "The amendments
made by this section [amending this section and section 3663 of
this title] shall take effect on the date of the taking effect of
section 3553 of title 18, United States Code [Nov. 1, 1987]."
Section 9(b) of Pub. L. 99-646 provided that: "The amendments
made by this section [amending this section] shall take effect on
the date of the taking effect of section 3553 of title 18, United
States Code [Nov. 1, 1987]."
Section 80(b) of Pub. L. 99-646 provided that: "The amendments
made by this section [amending this section] shall take effect on
the date of the taking effect of section 212(a)(2) of the
Sentencing Reform Act of 1984 [section 212(a)(2) of Pub. L. 98-473,
effective Nov. 1, 1987]."
Section 81(b) of Pub. L. 99-646 provided that: "The amendments
made by this section [amending this section] shall take effect on
the date of the taking effect of section 212(a)(2) of the
Sentencing Reform Act of 1984 [section 212(a)(2) of Pub. L. 98-473,
effective Nov. 1, 1987]."
Section 1007(b) of Pub. L. 99-570 provided that: "The amendment
made by this section [amending this section] shall take effect on
the date of the taking effect of section 3553 of title 18, United
States Code [Nov. 1, 1987]."

EFFECTIVE DATE
Section effective Nov. 1, 1987, and applicable only to offenses
committed after the taking effect of this section, see section
235(a)(1) of Pub. L. 98-473, set out as a note under section 3551
of this title.

REPORT BY ATTORNEY GENERAL
Pub. L. 108-21, title IV, Sec. 401(l), Apr. 30, 2003, 117 Stat.
674, provided that:
"(1) Defined term. - For purposes of this section [amending this
section, section 3742 of this title, and section 994 of Title 28,
Judiciary and Judicial Procedure, enacting provisions set out as a
note under section 991 of Title 28, and enacting provisions listed
in a table of provisions for review, promulgation, or amendment of
Federal sentencing guidelines relating to specific offenses set out
under section 994 of Title 28], the term 'report described in
paragraph (3)' means a report, submitted by the Attorney General,
which states in detail the policies and procedures that the
Department of Justice has adopted subsequent to the enactment of
this Act [Apr. 30, 2003] -

"(A) to ensure that Department of Justice attorneys oppose
sentencing adjustments, including downward departures, that are
not supported by the facts and the law;

"(B) to ensure that Department of Justice attorneys in such
cases make a sufficient record so as to permit the possibility of
an appeal;

"(C) to delineate objective criteria, specified by the Attorney
General, as to which such cases may warrant consideration of an
appeal, either because of the nature or magnitude of the
sentencing error, its prevalence in the district, or its
prevalence with respect to a particular judge;

"(D) to ensure that Department of Justice attorneys promptly
notify the designated Department of Justice component in
Washington concerning such adverse sentencing decisions; and

"(E) to ensure the vigorous pursuit of appropriate and
meritorious appeals of such adverse decisions.
"(2) Report required. -

"(A) In general. - Not later than 15 days after a district
court's grant of a downward departure in any case, other than a
case involving a downward departure for substantial assistance to
authorities pursuant to section 5K1.1 of the United States
Sentencing Guidelines, the Attorney General shall submit a report
to the Committees on the Judiciary of the House of
Representatives and the Senate containing the information
described under subparagraph (B).

"(B) Contents. - The report submitted pursuant to subparagraph
(A) shall set forth -

"(i) the case;

"(ii) the facts involved;

"(iii) the identity of the district court judge;

"(iv) the district court's stated reasons, whether or not the

court provided the United States with advance notice of its

intention to depart; and

"(v) the position of the parties with respect to the downward

departure, whether or not the United States has filed, or

intends to file, a motion for reconsideration.

"(C) Appeal of the departure. - Not later than 5 days after a
decision by the Solicitor General regarding the authorization of
an appeal of the departure, the Attorney General shall submit a
report to the Committees on the Judiciary of the House of
Representatives and the Senate that describes the decision of the
Solicitor General and the basis for such decision.
"(3) Effective date. - Paragraph (2) shall take effect on the day
that is 91 days after the date of enactment of this Act [Apr. 30,
2003], except that such paragraph shall not take effect if not more
than 90 days after the date of enactment of this Act the Attorney
General has submitted to the Judiciary Committees of the House of
Representatives and the Senate the report described in paragraph
(3)."

AUTHORITY TO LOWER A SENTENCE BELOW STATUTORY MINIMUM FOR OLD

OFFENSES
Section 24 of Pub. L. 100-182 provided that: "Notwithstanding
section 235 of the Comprehensive Crime Control Act of 1984 [section
235 of Pub. L. 98-473, set out as a note under section 3551 of this
title] -

"(1) section 3553(e) of title 18, United States Code;

"(2) rule 35(b) of the Federal Rules of Criminal Procedure as
amended by section 215(b) of such Act [set out in the Appendix to
this title]; and

"(3) rule 35(b) as in effect before the taking effect of the
initial set of guidelines promulgated by the United States
Sentencing Commission pursuant to chapter 58 of title 28, United
States Code,
shall apply in the case of an offense committed before the taking
effect of such guidelines."

-FOOTNOTE-

(!1) So in original. The period probably should be a semicolon.
(!2) So in original. No subpar. (B) has been enacted.
(!3) So in original.

Last modified: April 13, 2006

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Crimes and Criminal Procedure - 18 USC Section 3553

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Sec. 3553. Imposition of a sentence