Following the Supreme Court’s landmark 2005 decision in United States v. Booker, 543 U.S. 220 (2005), which transformed the U.S. Sentencing Guidelines from mandatory to advisory, the question of how sentencing judges would exercise their restored discretion has been a matter of great interest. In 2012 the Sentencing Commission issued to Congress a comprehensive “Report on the Continuing Impact of United States v. Booker on Federal Sentencing,” which undertook analyses of approximately six years of sentencing data following the Booker ruling and presented various findings related to the ruling’s impact. Now that another six years of post-Booker sentencing statistics have become available with the commission’s recent issuance of its Sentencing Databook for fiscal year 2017, the time is ripe to reexamine the data, both nationally and specific to the U.S. Court of Appeals for the Second Circuit, focusing on insights of particular interest to white-collar practitioners.

The broad takeaways include that, during the post-Booker period, a substantial portion of all federal defendants nationwide—reaching 46 percent in 2017—are receiving below guidelines-range sentences. Focusing on the all-important category of nongovernment-sponsored reductions, the proportion of such sentences nationwide has shown a gradually increasing trend over the post-Booker period, from 12.1 percent in 2006 to 17.4 percent in 2011 to 20.1 percent in 2017, with some leveling off in more recent years. Notably, of all categories of crime nationwide in the post-Booker period, fraud cases—where the guidelines calculation is driven by the much-criticized loss tables—consistently have been at or near the top for the proportion of nongovernment sponsored below range sentences. (Because much of the sentencing data that segregates crimes into categories uses the category “fraud,” which embraces a fairly broad group of economic crimes sentenced under guidelines Section 2B1.1, the fraud category provides a useful proxy for white-collar crimes generally).