The Federal Sentencing Guidelines
Now, you may already be aware that a majority of cases “plea out” in the Federal system.
While that may be true, an experienced Federal practitioner can help you with the advisory Sentencing Guidelines and explore various objections to the presentence investigation report. You also may be in a position to request a “variance,” or a non-Guidelines sentence.
The Guidelines were enacted by Congress in 1987 with the goal of bringing some sort of uniformity to sentencing in the Federal system. Before, judges were free to fashion sentences any which way they wanted ― so long as those sentences were reasonable. What followed was a natural disparity, not only from circuit to circuit, but also from judge to judge. Invariably, defendants convicted of a crime in one judge’s court would often face a much shorter or longer prison sentence than people convicted of the same crime in another judge’s court.
The driving idea behind the Federal Sentencing Guidelines was uniformity, that is, that similar crimes committed under similar circumstances should all be punished similarly.
How the Guidelines Work
To understand how the Guidelines work, you’ve got to understand the Sentencing Table below:
The sentencing table lists sentences in four different zones: A, B, C, and D. Defendants who fall into Zone A can be given probation without having to serve any time in prison. Defendants who fall into Zone B must serve at least one month in prison, but are eligible to serve the remainder of their sentence in alternative confines, such as home detention. Defendants who fall into Zone C must serve at least half of their total sentence in prison, but can serve the other half in alternative confines.
Mainly, the Sentencing Table assists United States District Court judges in fashioning appropriate sentences for specific crimes.
It works two ways: vertically, taking into account the severity of the crime and, second, horizontally, taking into account the criminal history of the accused.
Let’s discuss the severity of the crime, or the Offense Level, first.
The Severity of the Crime
Every Federal crime, from possession of child pornography to bank robbery has “a base, offense level.” Child pornography, or the production, distribution, reception, and possession of an image of child pornography using or affecting any means or facility of interstate or foreign commerce (see 18 U.S.C. § 2251; 18 U.S.C. § 2252; 18 U.S.C. § 2252A), for example, generally has a base offense level offense level of 18.
By going to the Sentencing Table, therefore, you can see that a base offense level of 18 corresponds to an advisory imprisonment range of between 27 and 33 months. Assuming, of course, that the offender has no criminal history (a fancy term for no prior criminal record).
A basic rule of thumb is: the higher an offense level, the more severe the crime is considered to be and the longer the prison sentence suggested by the Guidelines is.
So what if this isn’t the defendant’s “first rodeo?”
Criminal History Category
The theory behind the horizontal, “Criminal History Category,” is that repeat offenders should get harsher treatment than someone who’s never been arrested. There’s a whole advisory Guideline section entitled Criminal History and Criminal Livelihood (§ 4A1.1) that ascribes “points” for past transgressions.
Here are some examples of how it works:
3 points are given for each prior conviction that resulted in a sentence greater than 13 months.
2 points are given for each prior conviction that resulted in a sentence between 60 days and 13 months.
1 point is given for each prior conviction that resulted in a sentence of less than 60 days.
2 points are added if the defendant committed the instant offense while on probation, parole, work release, or escape status.
Altogether, there are 6 Criminal History Categories in the Sentencing Table (going from left to right). When you add up criminal history points — and it can get very technical, as many prior sentences may be “time barred” and not count, while others, such as convictions for prostitution and trespass may not count at all — the total is used to determine your “CHC,” or Criminal History Category. For obvious reasons, you always want a Criminal History Category of 0-1.
Using the Sentencing Table
Once you’ve determined where on the Sentencing Table the base offense level (on the vertical column, far left) and the criminal history category (the horizontal column at the top of the Table) intersect you can figure out a Guideline range.
Let’s go back to the child pornography example. Recall that the base offense level is 18. Say that the defendant has a Criminal History Category of II. That results in an advisory Guideline imprisonment range of between 30 and 37 months.
But such a sentence and Guideline computation assumes the application of no “Adjustments” and that almost never happens.
Adjustments are point-based factors that may apply to any offense and can raise or lower the offense level. Typically, the “specific offense characteristics” result in the application of “victim-related” adjustments, and/ or “offender-related” adjustments.
Going back to our child pornography example, there may be several “victim related” related adjustments in play. For instance: if the pornographic material involved children younger than 12, the offense level is increased by 2 points. Moreover, if the offense involved the use of a computer, another 2 points are added. Finally, there’s an enhancement for the number of images. If the defendant had between 10 and 150 images of child pornography, there’s another 2 level “bump up.”
Suddenly, what started a base offense level of 18 is now at a base offense level of 24! With a CHC of II, the defendant is facing anywhere between 57 and 71 months.
But we’re not done.
Acceptance of Responsibility
Fortunately, you can also subtract points through acceptance of responsibility pursuant to the Guidelines § 3E.1. (a) and (b), that is to say, the judge can decrease the offense level by two if in his or her opinion, you have accepted responsibility for the crime.
You can also shave-off points another way: say you were involved in a drug smuggling venture at the behest and direction of “Mr. Big.” You may be entitled to a “minor role adjustment” if you were, for example, a simple courier, and may be entitled to anywhere from a 2 to 4 level downward reduction.
If you are indicted for more than one Federal crime, the sentencing Guidelines provide instruction on how the judge can reach a combined offense level. Usually, the most serious Federal offense will be the starting point, with the other counts determining whether, and how much, to boost the overall offense level.
Judges also have the discretion to impose greater or lesser prison sentences if the circumstances warrant a downward departure within the Guidelines framework.
Unless agreed to in plea negotiations, many specific offense characteristics that result in the addition of levels and an enhanced penalty have to be proven by the preponderance of the evidence by the United States Attorney. These specific offense characteristics may include loss amount, drug amount, role in the offense, and many more.
I’ve succeeded in motions for downward departure based on role and over-inflated loss and drug amounts.
Variances and Variant Sentences
Perhaps the best thing about the Sentencing Guidelines is that they are advisory. While the United States District Court judge has to calculate a Guideline range, he or she does not have to follow it and can “vary” downward (and sometimes upward). A motion for variant sentence is an effective tool in getting a sentencing judge to consider a reasonable, “outside of the Guidelines sentence.”
In fact, sentencing judges have to take the individual’s personal characteristics and history into account.
18 U.S.C. § 3553(a) Factors
These § 3553(a) factors direct the sentencing judge to consider the nature and circumstances of the offense, the history and characteristics of the defendant, and the need for the sentence imposed
“to reflect the seriousness of the offense, to promote respect for the law, to provide just punishment for the offense, to afford adequate deterrence to criminal conduct and, finally, to protect the public from further crimes of the defendant.”
The sentencing judge can also order that the defendant receive “needed educational or vocational training, medical care, or other correctional treatment in the most effective manner.”
Finally, 18 U.S.C. § 3553(a) directs judges to avoid (or resolve) unwarranted disparities in sentencing where similarly situated defendants receive different sentences for the same criminal activity.
Bureau of Prisons Issues
I can assist you by obtaining the lowest possible sentence, by working with Bureau of Prisons (BOP) to obtain your participation in various programs ― such as the Residential Drug Addiction Program (RDAP) ― that may result in an even lower sentence, and obtain your earliest possible release.
"I know these Guidelines like the back of my hand"
Call me. I'll be happy to sit down and work your advisory Guidelines with you. I'll give you an idea of what you're facing and what I can do for you. Call me at 305-461-1066 for a free, initial consultation.
I want to hear your side of the story.
State and Federal Criminal Defense Attorney
55 Merrick Way ~ Suite 212
Coral Gables, Florida 33134
305-461-1066 (24 Hours)