SHOT CALLER: THE WEIGHT OF THE UNITED STATES SENTENCING GUIDELINES

Authors

• Max Birmingham

Abstract

The Federal Sentencing Guidelines have drawn ire, from attorneys to judges to scholars to commentators. The concern below is the deference afforded by courts to the United States Sentencing Commission, which consists of unelected officials. In United States v. Lewis, the First Circuit discerned that the Sentencing Commission is under the umbrella of the Judicial Branch. In turn, some judges are relinquishing their interpretive authority to the Sentencing Commission. Because they are viewed as part of the fabric of the judiciary, jurists may have a proclivity for adopting wholesale the Sentencing Commission’s ideas.

The Sentencing Commission has opined—i.e., “commentary”—that “conspiracy” and “attempt” extend to drug distribution. Yet neither are listed in the text they are attached to. Further, these are both separate crimes. This invites the question of how can unelected officials—as a part of the Judicial Branch, not the Legislative Branch—make law. A remedy is needed.

Recommended Citation

Max Birmingham, SHOT CALLER: THE WEIGHT OF THE UNITED STATES SENTENCING GUIDELINES, 48 W. New Eng. L. Rev. 301 (2026), https://digitalcommons.wne.edu/lawreview/vol48/iss2/4