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This article was published in South Texas Law Review in 2011.


If five similar-yet-unrelated criminals use minors to commit similar federal crimes at the same time in different states, justice dictates that the federal sentencing system would fairly apply a use-of-minor enhancement to sentence these similarly situated defendants. One would think. But not all similarly situated defendants who use minors to commit federal offenses will be treated fairly. Why the disparity in federal sentencing? The answer lies in a conflict between the U.S. Congress and the U.S. Sentencing Commission. Congress directed the Sentencing Commission to promulgate a use-of-minor enhancement that ensures that the defendant’s age is relevant by focusing on adult defendants at least twenty-one years old who corrupt minors by using them to commit federal offenses. The Sentencing Commission defied Congress’s directive, instead choosing to make a defendant’s age absolutely irrelevant when applying a use-of-minor enhancement such that every defendant — no matter how old or how young or how close in age to the minor used — must receive the same two-level use-of-minor enhancement. Currently, four federal circuit courts have sanctioned the Sentencing Commission’s expansive use-of-minor enhancement; one lone circuit court has decided that the Sentencing Commission exceeded its congressional authority such that the use-of-minor enhancement cannot be applied to defendants under the age of twenty-one.

Siding with the lone circuit, this Article takes a systematic and thorough approach to explain how the congressional directive’s plain language, legislative history, and context in which it was enacted require the conclusion that Congress intended the Sentencing Commission to retain age as a relevant factor in applying the use-of-minor enhancement. The Article then equips federal district courts with three options to adequately respond to the Sentencing Commission’s open defiance of congressional intent and unlawful expansion of its limited authority by ensuring that the use-of-minor enhancement is not used against defendants under the age of twenty-one. First, the Article outlines how district courts can adopt the No-Authority Option, which concludes that the Sentencing Commission exceeded its congressional authority when promulgating a use-of-minor enhancement with a defendant’s age being irrelevant. Second, the Article presents district courts with the Policy-Disagreement Option, which authorizes district courts to decide as a matter of policy that the use-of-minor enhancement should not be blindly applied to defendants under the age of twenty-one. Third, the Article offers district courts the Individualized-Assessment Option, which sanctions the use of their institutional strengths to impose a sentence based on the unique facts and circumstances of a single case that demonstrate that the application of a use-of-minor enhancement to a particular defendant under the age of twenty-one does not serve the purposes of federal sentencing. As long as this three-option, analytical framework is followed, district courts are well equipped to mete out punishment consistent with the purposes of federal sentencing while simultaneously ensuring that the Sentencing Commission continues to play a vital role in national sentencing policy within its congressionally sanctioned power.

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