In the United States an individual can be charged with a state crime, a federal crime, or both. The federal criminal justice system operates in much the same way as the individual state criminal justice systems; however, there are some noticeable differences. If you have been charged with a federal criminal offense, become familiar with the Federal Sentencing Guidelines.
Text of Understanding the Federal Sentencing Guidelines
UNDERSTANDING THE FEDERAL SENTENCING GUIDELINES If You Have Been Charged with a Federal Criminal Offense You Should Become Familiar with the Federal Sentencing Guidelines as Your Sentence Will Be Determined Using the Guidelines If You Are Convicted Kevin J. Mahoney
In the United States an individual can be charged with a state crime, a federal crime, or both. The federal criminal justice system operates in much the same way as the individual state criminal justice systems; however, there are some noticeable differences. For example, the federal system tends to be much more formal than many state systems. One aspect of the federal system that is not found in all state systems is the use of sentencing guidelines. If you have been charged with a federal criminal offense, become familiar with the Federal Sentencing Guidelines. As your case moves through the federal criminal justice system, you will begin to understand how important these guidelines are to the sentence imposed following a conviction or guilty plea. Because of the complexity of the Guidelines, only a criminal defense attorney experienced in defending those accused of federal crimes is capable of applying the guidelines to the charges and allegations to provide a client with the likely sentencing range. Nevertheless, the following general information explains the Guidelines and the role they typically play in a sentence. SENTENCING BEFORE THE GUIDELINES Prior to the enactment of the Guidelines, sentencing in federal prosecutions across the U.S. was far from consistent. At the federal level, there are 94 District Courts, which serve as the trial courts. Before the Guidelines, judges from these 94 courts were sentencing those convicted of crimes as they saw fit. Since each judge was applying his own sense of justice to individuals with varying degrees of
culpability and criminal histories, as well as unique factual scenarios, there were, or appeared to be, considerable disparity in sentences. While there were also sentencing disparities among courts located in different parts of the country, there appeared to be a pattern among all the courts in the sentencing of white and minority defendants. The goal, however, was not to simply create guidelines that would eliminate the disparities in sentencing; instead, it was to curtail judicial discretion, ensuring that lenient judges imposed sentences commensurate with those of more punitive judges. Adoption of the Sentencing Guidelines not only put an end to judicial mercy, it essentially shifted the power to sentence from judges to Federal prosecutors. THE CREATION OF THE GUIDELINES The Sentencing Reform Act of 1984, or SRA, was the answer to growing concerns about how defendants were sentenced throughout the United States. The SRA created the United States Sentencing Commission, or USSC. It was the USSC that actually created the original Guidelines in 1987. Although attempts have been made to completely overhaul or even do away with the Guidelines since they were introduced in 1987, none of those attempts have been successful. Though they have been modified over the years, the Guidelines remain largely intact.
THE GUIDELINES ARE NOT MANDATORY The Guidelines were, originally, largely mandatory. In United States v. Booker, 543 U.S. 220 (2005) and United States v. Fanfan, 542 U.S. 956 (2004) the Supreme Court ruled that the mandatory Guidelines created a system where judges, in determining post-verdict sentences, decided facts or factors that the juries had not been required to find when reaching their verdicts a clear violation of the Sixth Amendment right to a trial by jury. The Guidelines survived, but returned to the judges sentencing discretion. In practice, most federal judges rely heavily on the Guidelines. OFFENSE LEVELS The Guidelines divide offenses into 43 levels. A Level one offense is the least serious. All federal criminal offenses classified as A misdemeanors or higher are given an offense level. Often, a crime has a starting level that can be increased or decreased, depending on the circumstances or factors. For example, the offense level for a drug trafficking crime could be increased by two levels if a dangerous weapon was possessed by a participant during the commission of the crime or reduced by four levels if the defendant was a minimal participant in the overall operation. According to the Guidelines and in actual practice the offense level of the crime is the most important factor in determining the sentencing range.
CRIMINAL HISTORY Under the Guidelines, a defendants criminal history, or lack thereof, is the second factor referred to in determining a sentencing range. The Guidelines provide for six criminal history classifications, with category VI being the most severe. Classification is determined by calculating the number of points accumulated by the individual defendant. Category I includes defendants with zero or one point. Category VI is reserved for defendants with 13 or more points. Points are calculated as follows: (a) Add 3 points for each prior sentence of imprisonment exceeding one year and one month. (b) Add 2 points for each prior sentence of imprisonment of at least sixty days not counted in (a). (c) Add 1 point for each prior sentence not counted in (a) or (b), up to a total of 4 points for this subsection. (d) Add 2 points if the defendant committed the instant offense while under any criminal justice sentence, including probation, parole, supervised release, imprisonment, work release, or escape status. (e) Add 1 point for each prior sentence resulting from a conviction of a crime of violence that did not receive any points under (a), (b), or (c) above because such sentence was counted as a single sentence, up to a total of 3 points for this subsection.
DETERMINING A SENTENCING RANGE After determining the offense level, together with criminal history category classification, one need only refer to the Sentencing Table to assess sentencing ranges, which are given in months. Both the Level of the offense and the criminal history category affect the sentencing ranges. For example, the Sentencing Table recommends different sentencing ranges for individuals, with varying criminal history categories, convicted of a Level 20 offense: 1) Category I = sentencing range of 33-41 months; 2) Category III = sentencing range of 41-51 months; and, 3) Category VI = sentencing range of 70-87 months. Similarly, the offense levels increase or decrease the sentencing ranges. UPWARD AND DOWNWARD DEPARTURES Both upward and downward departures are built in to the Guidelines. If certain aggravating factors are present, a judge can justify an upward departure, allowing him to sentence a defendant to a lengthier term of incarceration than recommended by the Sentencing Guidelines. Common reasons for an upward departure include:
Death or physical injury resulting from the criminal conduct Extreme psychological injury Possession and/or use of a weapon during the commission of the crime Abduction or unlawful restraint of a victim Disruption of governmental function Participation in a gang Property loss not already accounted for in the sentence Just as your sentence can be increased for particularly egregious conduct it can also be reduced if there are mitigating circumstances that warrant a reduction. Common reasons found in the Guidelines for a downward departure include: Substantial assistance to authorities in solving this or another crime Contributing conduct from victim if the victims conduct significantly provoked your conduct Coercion, duress, or diminished capacity Voluntarily disclosing or admitting to the commission of the crime Though the Federal Sentencing Guidelines are advisory in nature, federal judges almost always refer to the Guidelines framework to determine a defendants sentence. Given the importance of the Guidelines, an individual charged with a federal offense needs an experienced federal criminal defense attorney to not only evaluate the specific facts and circumstances of the case, but to argue forcefully against upward departures or in favor of downward departures.
Cornell University Law School, Federal Sentencing Guidelines United States Sentencing Commission, 2013 USSC Guidelines Manual United States Sentencing Commission, Sentencing Table Defender Services Office U.S. Courts, Federal Sentencing under the Advisory Guidelines
About the Author Kevin J. Mahoney Kevin J. Mahoney is a Boston, Massachusetts criminal defense lawyer recognized nationwide for his high-profile courtroom victories, bestselling book on cross-examination, Relentless Criminal Cross-Examination, novel insights into trial strategy, and numerous television appearances. He is, perhaps, best known for overturning of the 1st-degree murder conviction of Christina Martin, dubbed the JELL-O Murderer by the national press and chronicled on television on Forensic Files (A Dessert Served Cold). He has won 47 of his last 50 trials. The prestigious National Trial Lawyers has named him one of The Top 100 Trial Lawyers consistently since 2007. Avvo, the national lawyer rating service, rates Attorney Mahoney a 10.0/10.0 for superb. In addition to a thriving Massachusetts criminal defense practice, Mr. Mahoney has maintained a steady and successful civil practice for almost two decades, handling complex international contract negotiatio