Sentencing in federal criminal cases is governed by the Sentencing Guidelines, which prescribe sentences for different offenses based on factors such as the quantity of drugs involved in narcotics cases or the financial loss caused by defendants charged with economic crimes. In United States v. Booker, 543 U.S. 220 (2005), the Supreme Court held that the mandatory application of the Sentencing Guidelines was unconstitutional and directed sentencing courts to consider the factors identified in 18 U.S.C. §3553(a) in fashioning an appropriate sentence for each defendant. As a result, in addition to the Guidelines, sentencing courts are now required to consider the specific offense conduct, the defendant's background and unique characteristics, general and specific deterrence, and sentencing parity.

Five years ago, this column considered the impact of Booker on sentencing in federal tax cases, noting that data released by the U.S. Sentencing Commission reflected a trend toward below-Guidelines sentences. See Jeremy H. Temkin, "Below-Guidelines Sentences for Tax Defendants," NYLJ (Sept. 15, 2015). In the past five years, that trend has continued, and judges have become increasingly likely to exercise their discretion under Booker to sentence defendants convicted of tax offenses below the applicable Guidelines. However, notwithstanding this increased leniency in relation to the Guidelines, defendants sentenced during fiscal 2019 were more likely to receive some period of incarceration (and the period of incarceration imposed was likely to be longer) than tax offenders sentenced before Booker as well as those sentenced five years ago.