Legal Digest

Importance of Investigating Sentencing Enhancements

By Jason Cherry, J.D.

A stock image of a gavel.

The maxim “Let the punishment fit the crime” first was recorded by the Romans in approximately 51 B.C.E.1 Today, the concept of sentencing based upon the facts of the crime remains relevant to investigators, courts, and society. The issue is of such importance that federal legislators have prescribed sentencing guidelines to address sentencing disparity.2 As of 2016, more than half of all inmates in the federal criminal justice system were sentenced pursuant to sentencing guidelines.3

Many states also have enacted both mandatory and structured sentencing for a broad variety of crimes.4 Mandatory and structured sentencing guidelines can remove all or part of a judge’s discretion in determining an appropriate term of incarceration, amount of fines, and length of supervision.5 Opponents of mandatory and structured sentences often dispute the fundamental fairness of such guidelines or statutory schemes, stating that these restrictions prohibit the courts from reducing a sentence based upon mitigating factors.6

The proponents for judicial discretion in sentencing appear to presume that courts often will be inclined to reduce the severity of any punishment when confronted with the unique facts of each offense and offender.7 Yet, what restrictions are presented when the judge seeks to impose a more punitive sentence? The answer, along with its importance to investigators, was provided by the U.S. Supreme Court in Alleyne v. U.S., a case that limited a judge’s ability to increase a term of incarceration unless supported by evidence proven beyond a reasonable doubt.8

Jason Cherry

Supervisory Special Agent Cherry is a legal instructor at the FBI Academy.

Alleyne Synopsis

After committing an armed robbery, Allen Ryan Alleyne was convicted of “multiple federal offenses, including robbery affecting interstate commerce, 18 U.S.C. § 1951(a), and using or carrying a firearm in relation to a crime of violence, 18 U.S.C. § 924(c)(1)(A),....”9 At his sentencing, the judge found there was a preponderance of evidence that Alleyne “brandished” a firearm during the commission of the robbery and was subject to a 2-year enhancement of incarceration.10 In deciding the case, the majority opinion relied on a prior decision in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348 (2000).

In Apprendi, the Court reviewed a New Jersey case wherein the subject had fired several shots into the residence of a black family.11 The trial court sentenced the subject to an additional 2 years beyond the maximum prescribed sentence under the state’s Hate Crime sentencing enhancement statute.12 The Apprendi Court invalidated New Jersey’s sentencing enhancement as an unconstitutional violation of the subject’s Sixth Amendment “Right to an Impartial Jury.”13 The majority opinion held that “…[A]ny fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.”14 Following its prior holding in Apprendi, the Alleyne Court vacated the trial court’s imposition of a 2-year enhancement for “brandishing” a firearm, explaining that the jurors needed to find that fact beyond a reasonable doubt.15

Alleyne’s Impact on Investigators

The Alleyne decision merely clarified the Roman maxim, adding “Let the punishment fit all the facts of the crime.” This legal concept removes the power of judges to determine the level of proof for sentencing enhancements and places the burden of proof back on investigators, who must work with the prosecution team to establish not only the elements of the crime but also any facts applicable to the sentencing. Because the primary focus of investigations often is to collect evidence of the crime itself, many investigators may not be aware of important sentencing factors and lose or fail to document crucial evidence.

Best Practices

Investigators who work on reactive or patrol units, as well as law enforcement personnel who work in a specific area of crime (e.g., property crimes, homicides, financial fraud, cyber) may want to become familiar with common sentence enhancements or the criteria for mandatory sentences to ensure such evidence is properly collected. Three examples of common sentencing enhancements include—

  • quantity of drugs distributed or possessed;16
  • evidence of a conspiracy;17 and
  • discharge or brandishing of a firearm.18

In addition, there are a multitude of aggravating and mitigating factors that law enforcement personnel may want to consider when investigating either federal or state matters (e.g., in the federal system, the following evidence can affect sentencing recommendations: evidence of discrimination or prejudice against a protected class of citizens [“hate crime”], use of a minor, victim vulnerability, subject’s role in the offense, abuse of “position of trust,” and use of restraints).19

Beyond familiarization with common sentence enhancements and the criteria for mandatory sentences, the best practice is for investigators to work within the prosecutorial team to determine the collection plan for the elements of a crime and future sentencing. The statutory elements of criminal offenses often form the basic framework for an investigation. Investigators who pay attention to the applicable sentencing guidelines or mandatory terms of incarceration can ensure the court also has the ability to apply a fitting sentence.

Law enforcement officers of other than federal jurisdiction who are interested in this article should consult their legal advisers. Some police procedures ruled permissible under federal constitutional law are of questionable legality under state law or are not permitted at all.

“Investigators...may want to become familiar with common sentence enhancements or the criteria for mandatory sentences to ensure...evidence is properly collected.”

Supervisory Special Agent Cherry can be reached at


1 Aaron X. Fellmeth and Maurice Horwitz, Guide to Latin in International Law (New York, NY: Oxford University Press, 2009), 23.
2 U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Assistance, National Assessment of Structured Sentencing, James Austin et al. (Washington, D.C.: August 2004), 31-37, accessed June 18, 2020,
3 United States Courts, Mandatory Minimum Sentences Decline, Sentencing Commission Says, accessed June 18, 2020,
4 Alison Lawrence, Making Sense of Sentencing: States Systems and Policies (Washington, D.C.: National Conference of State Legislators, June 2015), xvii-xii, accessed June 18, 2020,
5 Id., xv.
6 See the following: Criminal Justice Policy Foundation,; James Cullen, “Sentencing Laws and How They Contribute to Mass Incarceration,” Brennan Center for Justice, October 5, 2018, accessed June 29, 2020,; “The History Behind Mandatory Minimums,” RED, accessed June 29, 2020,; and Nancy Gertner and Chiraag Bains, “Mandatory Minimums are Cruel and Ineffective. Sessions Wants Them Back,” Washington Post, May 15, 2017, accessed June 29, 2020,
7 Id.
8 Alleyne v. U.S., 570 U.S. 99, 133 S.Ct. 2151 (2013).
9 Id. at 102-104 (2013).
10 Ibid at 104. Referencing 18 U.S.C. § 1951 (1994) and 18 U.S.C. § 924 (c)(1)(A) (2018), “(ii) if the firearm is brandished, be sentenced to a term of imprisonment of not less than 7 years.”
11 Apprendi v. New Jersey, 530 U.S. 466, 469 (2000).
12 Id. at 471-472.
13 Id. at 476-478.
14 Id. at 555.
15 Alleyne v. U.S., 570 U.S. 99, 115 (2013).
16 See examples: United States v. Morris, 784 F.3d 870 (1st Cir. 2015); United States v. Etienne, 772 F.3d 907 (1st Cir. 2014); and United States v. Johnson, 878 F.3d 925 (10th Cir. 2017).
17 See examples: United States v. Long, 748 F.3d 322 (7th Cir. 2014); and Babb v. United States, No. ELH-04-0190, 2014 WL 2772761 (D.M.D. Jun. 17, 2014).
18 See examples: United States v. Mann, 786 F.3d 1244 (10th Cir. 2015), 2014 WL 2772761, No. ELH–04–0190.
19 United States Sentencing Commission, Guidelines Manual 2018, accessed June 29, 2020, 345-363,