In United States v. Booker,1 the U.S. Supreme Court held that the mandatory application of the U.S. Sentencing Guidelines was unconstitutional, and required sentencing courts to consider the guidelines range as just one of several factors identified by Congress as relevant in sentencing defendants. As a result, district judges are no longer required to slavishly follow the guidelines, but must also consider the nature and circumstances of the offense, the history and characteristics of the defendant, the need to afford adequate deterrence, and the need to avoid unwarranted sentence disparities among similarly situated defendants.2
Three years ago, this column considered the impact of Booker on sentencing in federal tax cases, noting that data released by the Sentencing Commission suggested that while defendants convicted of tax crimes in 2012 were more likely to be incarcerated than defendants sentenced pre-Booker, they fared far better than both the broader cohort of defendants convicted of all crimes and defendants convicted of other fraud offenses.3 This column considers the continuing trend toward below-guidelines sentences in tax cases generally and especially in cases arising out of undisclosed offshore accounts.
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