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CITE

    18 USC Sec. 3553                                            01/05/2009

EXPCITE

    TITLE 18 - CRIMES AND CRIMINAL PROCEDURE
    PART II - CRIMINAL PROCEDURE
    CHAPTER 227 - SENTENCES
    SUBCHAPTER A - GENERAL PROVISIONS

HEAD

    Sec. 3553. Imposition of a sentence

STATUTE

      (a) Factors To Be Considered in Imposing a Sentence. - The court
    shall impose a sentence sufficient, but not greater than necessary,
    to comply with the purposes set forth in paragraph (2) of this
    subsection. The court, in determining the particular sentence to be
    imposed, shall consider -
        (1) the nature and circumstances of the offense and the history
      and characteristics of the defendant;
        (2) the need for the sentence imposed -
          (A) to reflect the seriousness of the offense, to promote
        respect for the law, and to provide just punishment for the
        offense;
          (B) to afford adequate deterrence to criminal conduct;
          (C) to protect the public from further crimes of the
        defendant; and
          (D) to provide the defendant with needed educational or
        vocational training, medical care, or other correctional
        treatment in the most effective manner;
        (3) the kinds of sentences available;
        (4) the kinds of sentence and the sentencing range established
      for -
          (A) the applicable category of offense committed by the
        applicable category of defendant as set forth in the guidelines
        -
            (i) issued by the Sentencing Commission pursuant to section
          994(a)(1) of title 28, United States Code, subject to any
          amendments made to such guidelines by act of Congress
          (regardless of whether such amendments have yet to be
          incorporated by the Sentencing Commission into amendments
          issued under section 994(p) of title 28); and
            (ii) that, except as provided in section 3742(g), are in
          effect on the date the defendant is sentenced; or
          (B) in the case of a violation of probation or supervised
        release, the applicable guidelines or policy statements issued
        by the Sentencing Commission pursuant to section 994(a)(3) of
        title 28, United States Code, taking into account any
        amendments made to such guidelines or policy statements by act
        of Congress (regardless of whether such amendments have yet to
        be incorporated by the Sentencing Commission into amendments
        issued under section 994(p) of title 28);
        (5) any pertinent policy statement -
          (A) issued by the Sentencing Commission pursuant to section
        994(a)(2) of title 28, United States Code, subject to any
        amendments made to such policy statement by act of Congress
        (regardless of whether such amendments have yet to be
        incorporated by the Sentencing Commission into amendments
        issued under section 994(p) of title 28); and
          (B) that, except as provided in section 3742(g), is in effect
        on the date the defendant is sentenced.(!1)
        (6) the need to avoid unwarranted sentence disparities among
      defendants with similar records who have been found guilty of
      similar conduct; and
        (7) the need to provide restitution to any victims of the
      offense.
      (b) Application of Guidelines in Imposing a Sentence. -
        (1) In general. - Except as provided in paragraph (2), the
      court shall impose a sentence of the kind, and within the range,
      referred to in subsection (a)(4) unless the court finds that
      there exists an aggravating or mitigating circumstance of a kind,
      or to a degree, not adequately taken into consideration by the
      Sentencing Commission in formulating the guidelines that should
      result in a sentence different from that described. In
      determining whether a circumstance was adequately taken into
      consideration, the court shall consider only the sentencing
      guidelines, policy statements, and official commentary of the
      Sentencing Commission. In the absence of an applicable sentencing
      guideline, the court shall impose an appropriate sentence, having
      due regard for the purposes set forth in subsection (a)(2). In
      the absence of an applicable sentencing guideline in the case of
      an offense other than a petty offense, the court shall also have
      due regard for the relationship of the sentence imposed to
      sentences prescribed by guidelines applicable to similar offenses
      and offenders, and to the applicable policy statements of the
      Sentencing Commission.
        (2) Child crimes and sexual offenses. -
          (A) (!2) Sentencing. - In sentencing a defendant convicted of
        an offense under section 1201 involving a minor victim, an
        offense under section 1591, or an offense under chapter 71,
        109A, 110, or 117, the court shall impose a sentence of the
        kind, and within the range, referred to in subsection (a)(4)
        unless -
            (i) the court finds that there exists an aggravating
          circumstance of a kind, or to a degree, not adequately taken
          into consideration by the Sentencing Commission in
          formulating the guidelines that should result in a sentence
          greater than that described;
            (ii) the court finds that there exists a mitigating
          circumstance of a kind or to a degree, that -
              (I) has been affirmatively and specifically identified as
            a permissible ground of downward departure in the
            sentencing guidelines or policy statements issued under
            section 994(a) of title 28, taking account of any
            amendments to such sentencing guidelines or policy
            statements by Congress;
              (II) has not been taken into consideration by the
            Sentencing Commission in formulating the guidelines; and
              (III) should result in a sentence different from that
            described; or
            (iii) the court finds, on motion of the Government, that
          the defendant has provided substantial assistance in the
          investigation or prosecution of another person who has
          committed an offense and that this assistance established a
          mitigating circumstance of a kind, or to a degree, not
          adequately taken into consideration by the Sentencing
          Commission in formulating the guidelines that should result
          in a sentence lower than that described.
    In determining whether a circumstance was adequately taken into
    consideration, the court shall consider only the sentencing
    guidelines, policy statements, and official commentary of the
    Sentencing Commission, together with any amendments thereto by act
    of Congress. In the absence of an applicable sentencing guideline,
    the court shall impose an appropriate sentence, having due regard
    for the purposes set forth in subsection (a)(2). In the absence of
    an applicable sentencing guideline in the case of an offense other
    than a petty offense, the court shall also have due regard for the
    relationship of the sentence imposed to sentences prescribed by
    guidelines applicable to similar offenses and offenders, and to the
    applicable policy statements of the Sentencing Commission, together
    with any amendments to such guidelines or policy statements by act
    of Congress.
      (c) Statement of Reasons for Imposing a Sentence. - The court, at
    the time of sentencing, shall state in open court the reasons for
    its imposition of the particular sentence, and, if the sentence -
        (1) is of the kind, and within the range, described in
      subsection (a)(4), and that range exceeds 24 months, the reason
      for imposing a sentence at a particular point within the range;
      or
        (2) is not of the kind, or is outside the range, described in
      subsection (a)(4), the specific reason for the imposition of a
      sentence different from that described, which reasons must also
      be stated with specificity in the written order of judgment and
      commitment, except to the extent that the court relies upon
      statements received in camera in accordance with Federal Rule of
      Criminal Procedure 32. In the event that the court relies upon
      statements received in camera in accordance with Federal Rule of
      Criminal Procedure 32 the court shall state that such statements
      were so received and that it relied upon the content of such
      statements.
    If the court does not order restitution, or orders only partial
    restitution, the court shall include in the statement the reason
    therefor. The court shall provide a transcription or other
    appropriate public record of the court's statement of reasons,
    together with the order of judgment and commitment, to the
    Probation System and to the Sentencing Commission,,(!3) and, if the
    sentence includes a term of imprisonment, to the Bureau of Prisons.
      (d) Presentence Procedure for an Order of Notice. - Prior to
    imposing an order of notice pursuant to section 3555, the court
    shall give notice to the defendant and the Government that it is
    considering imposing such an order. Upon motion of the defendant or
    the Government, or on its own motion, the court shall -
        (1) permit the defendant and the Government to submit
      affidavits and written memoranda addressing matters relevant to
      the imposition of such an order;
        (2) afford counsel an opportunity in open court to address
      orally the appropriateness of the imposition of such an order;
      and
        (3) include in its statement of reasons pursuant to subsection
      (c) specific reasons underlying its determinations regarding the
      nature of such an order.
    Upon motion of the defendant or the Government, or on its own
    motion, the court may in its discretion employ any additional
    procedures that it concludes will not unduly complicate or prolong
    the sentencing process.
      (e) Limited Authority To Impose a Sentence Below a Statutory
    Minimum. - Upon motion of the Government, the court shall have the
    authority to impose a sentence below a level established by statute
    as a minimum sentence so as to reflect a defendant's substantial
    assistance in the investigation or prosecution of another person
    who has committed an offense. Such sentence shall be imposed in
    accordance with the guidelines and policy statements issued by the
    Sentencing Commission pursuant to section 994 of title 28, United
    States Code.
      (f) Limitation on Applicability of Statutory Minimums in Certain
    Cases. - Notwithstanding any other provision of law, in the case of
    an offense under section 401, 404, or 406 of the Controlled
    Substances Act (21 U.S.C. 841, 844, 846) or section 1010 or 1013 of
    the Controlled Substances Import and Export Act (21 U.S.C. 960,
    963), the court shall impose a sentence pursuant to guidelines
    promulgated by the United States Sentencing Commission under
    section 994 of title 28 without regard to any statutory minimum
    sentence, if the court finds at sentencing, after the Government
    has been afforded the opportunity to make a recommendation, that -
        (1) the defendant does not have more than 1 criminal history
      point, as determined under the sentencing guidelines;
        (2) the defendant did not use violence or credible threats of
      violence or possess a firearm or other dangerous weapon (or
      induce another participant to do so) in connection with the
      offense;
        (3) the offense did not result in death or serious bodily
      injury to any person;
        (4) the defendant was not an organizer, leader, manager, or
      supervisor of others in the offense, as determined under the
      sentencing guidelines and was not engaged in a continuing
      criminal enterprise, as defined in section 408 of the Controlled
      Substances Act; and
        (5) not later than the time of the sentencing hearing, the
      defendant has truthfully provided to the Government all
      information and evidence the defendant has concerning the offense
      or offenses that were part of the same course of conduct or of a
      common scheme or plan, but the fact that the defendant has no
      relevant or useful other information to provide or that the
      Government is already aware of the information shall not preclude
      a determination by the court that the defendant has complied with
      this requirement.

SOURCE

    (Added Pub. L. 98-473, title II, Sec. 212(a)(2), Oct. 12, 1984, 98
    Stat. 1989; amended Pub. L. 99-570, title I, Sec. 1007(a), Oct. 27,
    1986, 100 Stat. 3207-7; Pub. L. 99-646, Secs. 8(a), 9(a), 80(a),
    81(a), Nov. 10, 1986, 100 Stat. 3593, 3619; Pub. L. 100-182, Secs.
    3, 16(a), 17, Dec. 7, 1987, 101 Stat. 1266, 1269, 1270; Pub. L. 100-
    690, title VII, Sec. 7102, Nov. 18, 1988, 102 Stat. 4416; Pub. L.
    103-322, title VIII, Sec. 80001(a), title XXVIII, Sec. 280001,
    Sept. 13, 1994, 108 Stat. 1985, 2095; Pub. L. 104-294, title VI,
    Secs. 601(b)(5), (6), (h), Oct. 11, 1996, 110 Stat. 3499, 3500;
    Pub. L. 107-273, div. B, title IV, Sec. 4002(a)(8), Nov. 2, 2002,
    116 Stat. 1807; Pub. L. 108-21, title IV, Sec. 401(a), (c), (j)(5),
    Apr. 30, 2003, 117 Stat. 667, 669, 673.)

REFERENCES IN TEXT

      The Federal Rules of Criminal Procedure, referred to in subsec.
    (c)(2), are set out in the Appendix to this title.
      Section 408 of the Controlled Substances Act, referred to in
    subsec. (f)(4), is classified to section 848 of Title 21, Food and
    Drugs.

AMENDMENTS

      2003 - Subsec. (a)(4)(A). Pub. L. 108-21, Sec. 401(j)(5)(A),
    amended subpar. (A) generally. Prior to amendment, subpar. (A) read
    as follows: "the applicable category of offense committed by the
    applicable category of defendant as set forth in the guidelines
    issued by the Sentencing Commission pursuant to section 994(a)(1)
    of title 28, United States Code, and that are in effect on the date
    the defendant is sentenced; or".
      Subsec. (a)(4)(B). Pub. L. 108-21, Sec. 401(j)(5)(B), inserted
    before semicolon at end ", taking into account any amendments made
    to such guidelines or policy statements by act of Congress
    (regardless of whether such amendments have yet to be incorporated
    by the Sentencing Commission into amendments issued under section
    994(p) of title 28)".
      Subsec. (a)(5). Pub. L. 108-21, Sec. 401(j)(5)(C), amended par.
    (5) generally. Prior to amendment, par. (5) read as follows: "any
    pertinent policy statement issued by the Sentencing Commission
    pursuant to 28 U.S.C. 994(a)(2) that is in effect on the date the
    defendant is sentenced;".
      Subsec. (b). Pub. L. 108-21, Sec. 401(a), designated existing
    provisions as par. (1), inserted par. heading, substituted "Except
    as provided in paragraph (2), the court" for "The court", and added
    par. (2) and concluding provisions.
      Subsec. (c). Pub. L. 108-21, Sec. 401(c)(2), (3), in concluding
    provisions, inserted ", together with the order of judgment and
    commitment," after "the court's statement of reasons" and "and to
    the Sentencing Commission," after "to the Probation System".
      Subsec. (c)(2). Pub. L. 108-21, Sec. 401(c)(1), substituted
    "described, which reasons must also be stated with specificity in
    the written order of judgment and commitment, except to the extent
    that the court relies upon statements received in camera in
    accordance with Federal Rule of Criminal Procedure 32. In the event
    that the court relies upon statements received in camera in
    accordance with Federal Rule of Criminal Procedure 32 the court
    shall state that such statements were so received and that it
    relied upon the content of such statements" for "described".
      2002 - Subsec. (e). Pub. L. 107-273 inserted "a" before "minimum
    sentence".
      1996 - Subsec. (f). Pub. L. 104-294, Sec. 601(h), amended
    directory language of Pub. L. 103-322, Sec. 80001(a). See 1994
    Amendment note below.
      Pub. L. 104-294, Sec. 601(b)(5), in introductory provisions,
    substituted "section 1010 or 1013 of the Controlled Substances
    Import and Export Act (21 U.S.C. 960, 963)" for "section 1010 or
    1013 of the Controlled Substances Import and Export Act (21 U.S.C.
    961, 963)".
      Subsec. (f)(4). Pub. L. 104-294, Sec. 601(b)(6), substituted
    "section 408 of the Controlled Substances Act" for "21 U.S.C. 848".
      1994 - Subsec. (a)(4). Pub. L. 103-322, Sec. 280001, amended par.
    (4) generally. Prior to amendment, par. (4) read as follows: "the
    kinds of sentence and the sentencing range established for the
    applicable category of offense committed by the applicable category
    of defendant as set forth in the guidelines that are issued by the
    Sentencing Commission pursuant to 28 U.S.C. 994(a)(1) and that are
    in effect on the date the defendant is sentenced;".
      Subsec. (f). Pub. L. 103-322, Sec. 80001(a), as amended by Pub.
    L. 104-294, Sec. 601(h), added subsec. (f).
      1988 - Subsec. (c). Pub. L. 100-690 inserted "or other
    appropriate public record" after "transcription" in second sentence
    and struck out "clerk of the" before "court" in last sentence.
      1987 - Subsec. (b). Pub. L. 100-182, Sec. 3(1), (2), substituted
    "court finds that there exists an aggravating or mitigating
    circumstance of a kind, or to a degree, not adequately taken into
    consideration by the Sentencing Commission in formulating the
    guidelines that should result" for "court finds that an aggravating
    or mitigating circumstance exists that was not adequately taken
    into consideration by the Sentencing Commission in formulating the
    guidelines and that should result".
      Pub. L. 100-182, Sec. 3(3), inserted after first sentence "In
    determining whether a circumstance was adequately taken into
    consideration, the court shall consider only the sentencing
    guidelines, policy statements, and official commentary of the
    Sentencing Commission."
      Pub. L. 100-182, Sec. 16(a), substituted "In the absence of an
    applicable sentencing guideline, the court shall impose an
    appropriate sentence, having due regard for the purposes set forth
    in subsection (a)(2). In the absence of an applicable sentencing
    guideline in the case of an offense other than a petty offense, the
    court shall also have due regard for the relationship of the
    sentence imposed to sentences prescribed by guidelines applicable
    to similar offenses and offenders, and to the applicable policy
    statements of the Sentencing Commission." for "In the absence of an
    applicable sentencing guideline, the court shall impose an
    appropriate sentence, having due regard for the relationship of the
    sentence imposed to sentences prescribed by guidelines applicable
    to similar offenses and offenders, the applicable policy statements
    of the Sentencing Commission, and the purposes of sentencing set
    forth in subsection (a)(2)."
      Subsec. (c)(1). Pub. L. 100-182, Sec. 17, inserted "and that
    range exceeds 24 months,".
      1986 - Subsec. (a)(7). Pub. L. 99-646, Sec. 81(a), added par.
    (7).
      Subsec. (b). Pub. L. 99-646, Sec. 9(a), inserted provision
    relating to sentencing in the absence of applicable guidelines.
      Subsec. (c). Pub. L. 99-646, Sec. 8(a), substituted "If the court
    does not order restitution, or orders only partial restitution" for
    "If the sentence does not include an order of restitution".
      Subsec. (d). Pub. L. 99-646, Sec. 80(a), struck out "or
    restitution" after "notice" in heading, and struck out "or an order
    of restitution pursuant to section 3556," after "section 3555," in
    introductory text.
      Subsec. (e). Pub. L. 99-570 added subsec. (e).
                     EFFECTIVE DATE OF 1994 AMENDMENT
      Section 80001(c) of Pub. L. 103-322 provided that: "The amendment
    made by subsection (a) [amending this section] shall apply to all
    sentences imposed on or after the 10th day beginning after the date
    of enactment of this Act [Sept. 13, 1994]."
                     EFFECTIVE DATE OF 1987 AMENDMENT
      Amendment by Pub. L. 100-182 applicable with respect to offenses
    committed after Dec. 7, 1987, see section 26 of Pub. L. 100-182,
    set out as a note under section 3006A of this title.
                     EFFECTIVE DATE OF 1986 AMENDMENTS
      Section 8(c) of Pub. L. 99-646 provided that: "The amendments
    made by this section [amending this section and section 3663 of
    this title] shall take effect on the date of the taking effect of
    section 3553 of title 18, United States Code [Nov. 1, 1987]."
      Section 9(b) of Pub. L. 99-646 provided that: "The amendments
    made by this section [amending this section] shall take effect on
    the date of the taking effect of section 3553 of title 18, United
    States Code [Nov. 1, 1987]."
      Section 80(b) of Pub. L. 99-646 provided that: "The amendments
    made by this section [amending this section] shall take effect on
    the date of the taking effect of section 212(a)(2) of the
    Sentencing Reform Act of 1984 [section 212(a)(2) of Pub. L. 98-473,
    effective Nov. 1, 1987]."
      Section 81(b) of Pub. L. 99-646 provided that: "The amendments
    made by this section [amending this section] shall take effect on
    the date of the taking effect of section 212(a)(2) of the
    Sentencing Reform Act of 1984 [section 212(a)(2) of Pub. L. 98-473,
    effective Nov. 1, 1987]."
      Section 1007(b) of Pub. L. 99-570 provided that: "The amendment
    made by this section [amending this section] shall take effect on
    the date of the taking effect of section 3553 of title 18, United
    States Code [Nov. 1, 1987]."
                              EFFECTIVE DATE
      Section effective Nov. 1, 1987, and applicable only to offenses
    committed after the taking effect of this section, see section
    235(a)(1) of Pub. L. 98-473, set out as a note under section 3551
    of this title.
                        REPORT BY ATTORNEY GENERAL
      Pub. L. 108-21, title IV, Sec. 401(l), Apr. 30, 2003, 117 Stat.
    674, provided that:
      "(1) Defined term. - For purposes of this section [amending this
    section, section 3742 of this title, and section 994 of Title 28,
    Judiciary and Judicial Procedure, enacting provisions set out as a
    note under section 991 of Title 28, and enacting provisions listed
    in a table relating to sentencing guidelines set out under section
    994 of Title 28], the term 'report described in paragraph (3)'
    means a report, submitted by the Attorney General, which states in
    detail the policies and procedures that the Department of Justice
    has adopted subsequent to the enactment of this Act [Apr. 30, 2003]
    -
        "(A) to ensure that Department of Justice attorneys oppose
      sentencing adjustments, including downward departures, that are
      not supported by the facts and the law;
        "(B) to ensure that Department of Justice attorneys in such
      cases make a sufficient record so as to permit the possibility of
      an appeal;
        "(C) to delineate objective criteria, specified by the Attorney
      General, as to which such cases may warrant consideration of an
      appeal, either because of the nature or magnitude of the
      sentencing error, its prevalence in the district, or its
      prevalence with respect to a particular judge;
        "(D) to ensure that Department of Justice attorneys promptly
      notify the designated Department of Justice component in
      Washington concerning such adverse sentencing decisions; and
        "(E) to ensure the vigorous pursuit of appropriate and
      meritorious appeals of such adverse decisions.
      "(2) Report required. -
        "(A) In general. - Not later than 15 days after a district
      court's grant of a downward departure in any case, other than a
      case involving a downward departure for substantial assistance to
      authorities pursuant to section 5K1.1 of the United States
      Sentencing Guidelines, the Attorney General shall submit a report
      to the Committees on the Judiciary of the House of
      Representatives and the Senate containing the information
      described under subparagraph (B).
        "(B) Contents. - The report submitted pursuant to subparagraph
      (A) shall set forth -
          "(i) the case;
          "(ii) the facts involved;
          "(iii) the identity of the district court judge;
          "(iv) the district court's stated reasons, whether or not the
        court provided the United States with advance notice of its
        intention to depart; and
          "(v) the position of the parties with respect to the downward
        departure, whether or not the United States has filed, or
        intends to file, a motion for reconsideration.
        "(C) Appeal of the departure. - Not later than 5 days after a
      decision by the Solicitor General regarding the authorization of
      an appeal of the departure, the Attorney General shall submit a
      report to the Committees on the Judiciary of the House of
      Representatives and the Senate that describes the decision of the
      Solicitor General and the basis for such decision.
      "(3) Effective date. - Paragraph (2) shall take effect on the day
    that is 91 days after the date of enactment of this Act [Apr. 30,
    2003], except that such paragraph shall not take effect if not more
    than 90 days after the date of enactment of this Act the Attorney
    General has submitted to the Judiciary Committees of the House of
    Representatives and the Senate the report described in paragraph
    (3)."
       AUTHORITY TO LOWER A SENTENCE BELOW STATUTORY MINIMUM FOR OLD
                                 OFFENSES
      Section 24 of Pub. L. 100-182 provided that: "Notwithstanding
    section 235 of the Comprehensive Crime Control Act of 1984 [section
    235 of Pub. L. 98-473, set out as a note under section 3551 of this
    title] -
        "(1) section 3553(e) of title 18, United States Code;
        "(2) rule 35(b) of the Federal Rules of Criminal Procedure as
      amended by section 215(b) of such Act [set out in the Appendix to
      this title]; and
        "(3) rule 35(b) as in effect before the taking effect of the
      initial set of guidelines promulgated by the United States
      Sentencing Commission pursuant to chapter 58 of title 28, United
      States Code,
    shall apply in the case of an offense committed before the taking
    effect of such guidelines."

FOOTNOTE

    (!1) So in original. The period probably should be a semicolon.
    (!2) So in original. No subpar. (B) has been enacted.
    (!3) So in original.
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