United States v. Robertson: The Fifth Circuit Affirms the Mandatory Nature of the Statutory Index in Guideline Selection

1. Introduction

The Fifth Circuit’s decision in United States v. Robertson addresses a recurrent post-Booker question: if the Federal Sentencing Guidelines are “advisory,” how far does that advisability reach? Specifically, does it allow a sentencing judge to bypass the guideline listed in Appendix A’s Statutory Index when the judge believes another guideline better describes the conduct?

Answering with an emphatic “no,” the court holds that, while judges may vary from the range recommended by the Guidelines, they may not disregard the Index-driven procedure the Sentencing Commission created for selecting the proper guideline section. This pronouncement reinforces uniformity in federal sentencing and clarifies lingering ambiguity left by earlier statements in Fifth Circuit precedent.

2. Summary of the Judgment

Robertson pled guilty to violating 18 U.S.C. § 111(a)(1) after physically attacking a mail carrier in Louisiana. The sentencing dispute revolved around which Chapter Two guideline applied:

• § 2A2.2 – Aggravated Assault (base offense level 14)
• § 2A2.3 – Simple Assault (base offense level 7)
• § 2A2.4 – Obstructing or Impeding Officers (base offense level 10)

Appendix A listed only §§ 2A2.2 and 2A2.4 for convictions under § 111(a). The district court chose § 2A2.4 as “most applicable,” calculated a guideline range of 18-24 months, and imposed 21 months. On appeal, Robertson argued that because the Guidelines are advisory, the court could have opted for § 2A2.3 (simple assault) to better fit the facts.

The Fifth Circuit rejected the argument, holding:

1. The advisory nature of the Guidelines (post-Booker) relaxes only the duty to sentence within the calculated range, not the obligation to correctly identify the applicable guideline via the Statutory Index.
2. Amendment 591 and § 1B1.2(a) unequivocally require courts to apply a guideline listed in the Index for the statute of conviction, except in narrow “stipulation” cases not present here.
3. Because § 2A2.4 is listed in the Index for § 111(a)(1) and captures interference with a federal employee’s performance of official duties, its application was proper.

3. Analysis

3.1 Precedents Cited and Their Influence

• United States v. Booker, 543 U.S. 220 (2005)
  Rendered the Guidelines advisory by excising § 3553(b). The Fifth Circuit emphasizes that Booker did not disturb the methodology for selecting an applicable guideline, only the obligation to stay within the eventual range.
• Gall v. United States, 552 U.S. 38 (2007)
  Reinforces that district courts must “correctly calculate the applicable Guidelines range” before considering variances—underscoring that range-calculation steps remain mandatory.
• Peugh v. United States, 569 U.S. 530 (2013)
  Describes the Guidelines as the “lodestar” of federal sentencing: even after Booker, they anchor the process and guard against unwarranted disparities.
• Mistretta v. United States, 488 U.S. 361 (1989)
  Explained the congressional objective of eliminating sentencing disparities— an objective the Fifth Circuit feared would be undermined if judges could freely bypass the Index.
• Fifth Circuit Cases
  Principe (2000) – contained language that guideline selection begins “generally” with the Index.
  Grant (2017) and Stanford (2018) – reaffirmed the mandatory Index-first approach, effectively reading any equivocal language in Principe as non-controlling.
• Guideline Authority
  U.S.S.G. Amendment 591 – clarifies that the sentencing court “must apply the offense guideline referenced in the Statutory Index.”

3.2 Legal Reasoning

The panel’s reasoning proceeds in two logical stages:

1. Textual Commitment to the Index
   Section 1B1.2(a) directs courts to “refer to the Statutory Index to determine the Chapter Two offense guideline” for the statute of conviction. The Index is therefore the first—and normally last—word on guideline selection.
2. Scope of Booker’s Advisory Holding
   Post-Booker discretion concerns variance from a guideline range after it has been properly calculated—not discretion to jumble the architecture of the Guidelines Manual. Allowing judges to pick any guideline they deem “closer” to the facts would resurrect the indeterminacy Congress and the Sentencing Commission sought to cure.

Applied to Robertson’s assault on a mail carrier, § 2A2.4 captures “obstructing or impeding” an officer because the victim was attacked during the performance of her official duties—i.e., delivering mail. The offense therefore involved interference with a governmental function, satisfying the textual scope of § 2A2.4.

3.3 Likely Impact

• Clarifies Existing Ambiguity – Defense counsel in the Fifth Circuit—citing ambiguous language in Principe—have occasionally argued for guideline hopping. Robertson forecloses that strategy unless the “stipulation” exception of § 1B1.2(a) is genuinely met.
• Uniformity Reinforced – By cementing the Index as mandatory, the decision limits divergence among district courts and between circuits on the same statute of conviction.
• Potential National Significance – Other circuits (e.g., the Second and Ninth) sometimes allow limited departures from Index listings in atypical cases. If certiorari is sought, Robertson could contribute to resolving inter-circuit tension.
• Amendment 591 Spotlight – The decision revives attention to Amendment 591, reminding practitioners that many “creative” guideline arguments are foreclosed unless the Commission itself amends Appendix A.

4. Complex Concepts Simplified

Below are brief explanations of key technical terms referenced in the judgment:

• Statutory Index (Appendix A): A cross-reference table in the Guidelines Manual that pairs each federal statute with one or more guideline sections.
• Guideline “Section” vs. “Range”: The section (e.g., § 2A2.4) provides the formula for calculating an offense level. The range (e.g., 18-24 months) emerges after combining the offense level with the defendant’s criminal-history category.
• Presentence Report (PSR): A detailed report, prepared by probation, that supplies factual findings and recommended calculations for sentencing.
• Variance vs. Departure: A “departure” is a change made within the Guidelines framework; a “variance” is a judge’s decision to impose a sentence outside the recommended range using 18 U.S.C. § 3553(a) factors. Post-Booker, variances are common, departures are rarer.
• Amendment 591: A 2000 amendment clarifying that courts must use the guideline referenced in Appendix A for the statute of conviction—unless the parties stipulate to a more serious offense as part of the plea.

5. Conclusion

United States v. Robertson delivers a crisp message: the Federal Sentencing Guidelines remain “advisory” only in their outcome, not in their architecture. District courts must follow the Statutory Index when choosing the applicable guideline; their discretion begins after that point, when deciding whether to depart or vary from the range. By reaffirming this boundary, the Fifth Circuit strengthens sentencing uniformity and curtails attempts to manipulate guideline selection under the banner of advisory flexibility. Going forward, practitioners in the Fifth Circuit—and likely beyond—must anchor their arguments within the guideline(s) the Index supplies, reserving policy-based pleas for variance, not guideline substitution.