Five years after the Supreme Court held that the federal sentencing guidelines are no longer binding but merely advisory, judges for the most part continue to follow them, though there is an ever-growing divergence, according to the most recent federal sentencing statistics.

But judges are still struggling to grasp the degree of discretion the Court handed back to them in U.S. v. Booker, 543 U.S. 220 (2005), which held that the guidelines violate the Sixth Amendment right to a jury because they required harsher sentences based on facts found by judges rather than jurors.