Document Type


Media Type



In this article we propose a solution to one of the more vexing problems in current federal sentencing jurisprudence: classification of prior offenses for the purpose of applying sentencing enhancements in immigration cases. The current system is unduly difficult to apply and leads to poor sentencing outcomes. We urge the United States Sentencing Commission to conduct systematic empirical surveys of crime definitions and prosecution practice, on both the interstate and intrastate level. The Commission should use those surveys to determine which specific statutes of conviction should trigger the relevant enhancements, instead of forcing the courts to decide on a statute-by-statute basis. On the interstate level, the surveys would allow the Commission to identify state codes that are out of sync with the national norm. On the intrastate level, the surveys would allow the Commission to determine whether a facially non-generic statute was actually being applied to non-generic predicate facts. The current system also lumps too many types of prior convictions into the same enhancement levels and largely ignores the length of sentence received for the prior convictions. We propose a graduated scale of enhancements based on empirical evaluation of the severity of predicate offenses as measured by federal sentencing practices.

First Page


Last Page


Publication Date









Northern Illinois University Law Review

Suggested Citation

Caleb E. Mason & Scott M. Lesowitz, A Rational Post-Booker Proposal for Reform of Federal Sentencing Enhancements for Prior Convictions, 31 N. Ill. U. L. Rev. 339 (2011).

Included in

Law Commons



To view the content in your browser, please download Adobe Reader or, alternately,
you may Download the file to your hard drive.

NOTE: The latest versions of Adobe Reader do not support viewing PDF files within Firefox on Mac OS and if you are using a modern (Intel) Mac, there is no official plugin for viewing PDF files within the browser window.