Federal Sentencing Guidelines

Judges take federal sentencing guidelines into consideration when they are determining an appropriate sentence for a person convicted of a federal crime. These federal sentencing guidelines take the severity of the crime as well as a person’s prior criminal history when calculating the sentencing range. Until about ten years ago, these sentencing “guidelines” were mandatory—the judge had no discretion to deviate from the guidelines.

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Historically, convicted offenders were sentenced either under indeterminate sentencing practices or determinate sentencing practices. Indeterminate sentencing practices specified a range of sentencing, such as “15 years to life.” Unfortunately, many judges, in their desire to “cure” criminal behavior, would sentence offenders to the maximum range, leading to extremely harsh sentences for even fairly low-level offenses.

In 1984, Congress passed sentencing reform abolishing indeterminate sentencing at the federal level. A “determinate” sentencing structure was implemented, along with authorization for appellate review of sentences, and dropping rehabilitation as one of the goals of punishment. There were problems with determinate sentencing as well, in that it failed to consider any extenuating circumstances.

United States v. Booker then transformed federal criminal sentencing a step further by allowing judges to have a certain level of discretion over “mandatory” sentencing. Once the Supreme Court held the guidelines were no longer set in stone, federal judges could go above or below those guidelines in cases where they felt the guidelines were not entirely reasonable, given the totality of the circumstances. Today, the “mandatory” federal sentencing guidelines are considered discretionary or advisory, rather than mandatory.

While, in theory, this would be the best option (allowing federal judges to consider the unique circumstances of the individual offender), it harkens back to indeterminate sentencing with some believing that allowing federal judges this level of discretion leads to significant inconsistencies across jurisdictions. In other words, some judges will be as tough as possible, without regard to circumstances, while others will be as lenient as possible, creating unwanted disparities between offenders who committed the same offense under similar circumstances.

Variations in Federal Sentencing

Courts are charged with imposing a “sufficient sentence not greater than necessary.” This means that judges may move beyond the range of penalties set by the federal government for a specific offense. Moving beyond the range of set penalties requires a variance or a departure. Once an individual is convicted of a federal criminal offense, the judge first looks at the federal sentencing guidelines. Then either party can ask for an upward or downward deviation. The government will generally ask for more prison time unless the defendant is a cooperator (snitch). The defendant will, of course, ask for less prison time. A variance is a deviation from the federal guidelines based on certain sentencing factors, such as:

The criminal history of the defendant
The nature of the criminal offense
The circumstances surrounding the criminal offense
The necessity of the sentence imposed, i.e., will the sentence afford adequate deterrence, protect the public from further crimes, properly reflect the seriousness of the crime, and provide the defendant with training, medical care or other treatment?
The level of sentences available
The types of sentences available
The sentencing range established
Whether there exist any pertinent policy statements
The necessity of avoiding disparities in sentencing
The necessity of providing restitution

The court is charged with weighing these factors during each and every federal sentencing; the goal for you, as a defendant, would be to have these factors weighed in your favor. So, the government can ask the federal judge to consider aggravating factors in making an upward variance, and the defense can ask the federal judge to consider any mitigating factor in making a downward variance.

A departure is a deviation based on a guideline policy, such as age or infirmity, or a physical condition, including alcohol or drug abuse. Any departure motion must cite a guideline policy statement, or the departure could be overturned on appeal or denied by the court. A variance is generally the better choice because it is open-ended, allowing the defendant’s attorney to bring in mitigating factors as a basis for sentencing.

These mitigating factors could include such things as a poor upbringing, poverty, molestation, substance abuse, and abusive partner, etc. Naturally, the prosecution will be making his or her own case for an upward departure from sentencing guidelines. A prosecutor might argue the crime was committed to conceal a new crime, or that the guidelines failed to account for the offender’s specific crimes, and that by not increasing the sentence, an injustice to society would occur.

How Does the Federal Sentencing Guideline Table Work?

The federal sentencing guideline table essentially has a vertical row on the left that details the offense level (from 1-43), while the horizontal row is for the criminal history “points” of the defendant. The criminal history points are as follows:

I= 0-1 criminal history points
II= 2-3 criminal history points
III= 4-6 criminal history points
IV= 7-9 criminal history points
V= 10-12 criminal history points
VI= 13 plus criminal history points

The forty-three offense levels in the federal guidelines started out at 360 offense levels; there are currently proposals to reduce the current level. Level forty-three is the most serious offense—premeditated murder. Burglary of a residence is a base offense level seventeen. The offense level for any defendant is determined by taking the base offense level, then adding or subtracting specific offense characteristics such as:

The offense level can be decreased by four levels when the offender was a minimal participant in the crime.
If the defendant was aware his or her victim was especially vulnerable due to mental or physical condition or age, the offense level is increased by two levels.
If it is determined the defender obstructed justice, the offense level is increased by two levels.

In the case of a burglary (which begins at level seventeen), the level may increase based on the level of property stolen—for more than $2,500, one level is added or for more than $800,000, five levels are added. If a firearm was displayed during a robbery (level twenty), then there is a five-level increase. If the firearm was actually displayed during the robbery, there is a seven-level increase.

The criminal history points are determined by adding three points for each prior sentence of imprisonment that exceeded a year and a month, adding two points for each prior sentence of imprisonment that exceeded at least sixty days, but not more than thirteen months, and adding one point for each prior sentence of fewer than sixty days. If the defendant committed the offense while he or she was under work release, escape status, imprisonment, supervised release, parole, or probation, two points will be added.

If the defendant committed the offense less than two years after he or she was released from prison (for a sentence of sixty days or more) then two points will be added. Each prior sentence that resulted from the conviction of a crime of violence that did not receive points because it was counted as a single sentence, adds one point, up to a total of three. Prior adult diversionary dispositions are also counted if they involved an admission of guilt in open court or a judicial determination of guilt.

Additionally, there are four sentencing “zones,” A-D. A defendant in Zone A is eligible for federal probation, with no prison term required. Probation is also authorized in Zone B, however, at least one month in prison is mandatory. Defendants in Zone C must serve at least half their sentence in prison.

Adjustments

The level of offense is generally decreased (by two-three levels) when the defendant takes responsibility for the offense. Hate crimes, crimes against the vulnerable, crimes against government officials, restraint of victims, or terrorism can all increase the offense level. If the defendant abused his or her position of trust, used a minor to commit a crime, used body armor or a firearm in any crime of violence or drug trafficking crime, or used a special skill, the offense level can be increased. Enhancements may also apply when obstruction of justice, reckless endangerment during flight, or commission of a crime while on release was at hand. Multiple counts of an offense can also increase the level of offense.

The most common grounds for an upward departure from a particular federal sentencing guideline include:

The death of a victim
Multiple deaths
The manner in which the deaths occurred (the dangerousness of the defendant’s conduct)
Significant physical injury to the victim or victims, including a permanent disability
Extreme psychological injury to a victim
Abduction or unlawful restraint of a victim
Extreme property damage or loss
The use of weapons or other dangerous instruments
Any disruption of a government function
Any extreme conduct on the part of the defendant (cruel, brutal, or degrading to the victim)
Commission of a crime to facilitate or conceal the commission of another crime
National security, public health, or public safety was significantly endangered
Semiautomatic firearms with large-capacity magazines were used in the commission of the crime
The defendant was a part of a violent street gang

The most common grounds for a downward departure from a particular federal sentencing guideline include:

Wrongful conduct of a victim that provoked the defendant’s behavior
Committing a crime in order to avoid perceived greater harm (i.e. mercy killing)
The defendant committed the crime under coercion, blackmail, threats or duress
The defendant suffers significantly reduced mental capacity
The defendant voluntarily discloses the offense and accepts responsibility

Many controversies remain regarding federal sentencing guidelines, however, defense attorneys must currently work within those guidelines.

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