If you are charged with a federal crime like drug dealing, illegal firearms, financial fraud, or tax evasion, you are facing stiff penalties that may include years in federal prison. Whether you are convicted by trial (just 2% of cases in 2018) or choose to plead guilty (about 90% of cases in 2018), the Federal Sentencing Guidelines will bear great influence on your sentence.
If you are convicted of a federal offense, at some point, you will face a federal judge and have the opportunity to request leniency in your sentence. Hiring a lawyer who knows the Federal Sentencing Guidelines, how they intertwine with federal sentencing statutes, and has years of experience in federal sentencing advocacy may have a major impact on your sentence.
History of Sentencing Guidelines
Until 1987, federal sentencing judges had broad discretion to impose any sentence so long as the sentence was within the sentencing range set by the corresponding criminal statute. That meant, federal judges across the country imposed widely different sentences on offenders who were convicted of similar or even identical crimes.
It was President Nixon who officially declared a “War on Drugs” in 1971, but the “war” didn’t truly gain traction until the 1980s when President Reagan implemented zero-tolerance drug policies designed to deter drug use and heavily promoted “Just Say No” campaigns.
The combination of the two led to the Sentencing Reform Act of 1984. The SRA and a series of companion laws completely upended the federal sentencing landscape. The SRA created the US Sentencing Commission and tasked it with formulating a single set of sentencing guidelines, to be used by all federal judges, to guarantee that uniform federal sentences were imposed across the country. It also barred federal judges from considering a number of mitigating factors that had historically been relied on to impose lenient sentences, and required all federal judges to impose whatever sentence was dictated by the federal sentencing guidelines. In conjunction with the SRA, a number of sentencing laws imposing mandatory minimum prison sentences on drug and other federal offenders were enacted.
As a result, incarceration rates skyrocketed for non-violent drug law offenses. As of the early 1980s, about 50,000 people were put in jail each year for drug offenses. By the late 1990s, the number was over 400,000.
However, times have changed. In 2005, the US Supreme Court declared the federal guideline system unconstitutional and struck SRA provisions that made the guidelines “mandatory.” While the federal sentencing guidelines still exist, they are now only considered recommendations. So even though federal judges must still calculate the applicable guideline sentence, they no longer have to impose that sentence.
What Are the Federal Sentencing Guidelines Today?
The Federal Sentencing Guidelines dictate how recommended sentences for all federal crimes are calculated. Calculating a guideline-recommended sentence is a complex endeavor.
Essentially the guidelines are a mathematical point system that starts by assigning a point level to the offense of conviction (base offense level) and continues to add points to the base offense level to reflect the conduct used to commit the offense (specific offense characteristics). Next, points are added to reflect more general offense characteristics (adjustments) like the type or nature of the victim, obstruction of justice, or an offender’s particular role in the offense. The guidelines seldom subtract points. After the total offense level is calculated, a different sort of calculation is used to determine one’s total criminal history points (criminal history category). Once the total offense level and criminal history category are calculated, the two are matched on a sentencing table that reveals a recommended sentencing range.
Federal judges must calculate the correct guideline sentence, but they are no longer required by law to impose the sentence recommended by the federal sentencing guidelines. Many federal judges have embraced the freedom to consider a variety of mitigating circumstances and impose below guideline sentences (variances), but some still impose guideline sentences. A statutory list of factors that federal judges must consider when imposing a sentence, including the history and characteristics of the defendant and the nature and circumstances of the offense, can be found in Title 18 U.S.C §3553.
Why Is Federal Sentencing Advocacy Important?
These days, federal sentencing advocacy is one of the most important aspects of federal criminal defense. In 2018, the nationwide federal conviction rate, including both trials and guilty pleas, across all of the United States federal district courts was 83%.
The quality of a federal criminal defense lawyer’s sentencing advocacy can have a life-changing impact on your federal sentence. If you are facing a federal criminal sentence, you are probably concerned about three things:
- How much time you will have to serve
- Where you will serve your sentence
- How soon you will be able to go home
For years, those convicted of federal crimes were all but guaranteed federal guideline prison sentences. But now that discretion and flexibility have been returned to the federal judiciary it is more important than ever to use that advantage to obtain the best sentencing outcome possible.
Key Aspects of Federal Sentencing Guidelines
Base Offense Level
Every federal offense has a corresponding base offense level and at least one or additional specific offense characteristics that increase the base offense level. For example, the base offense levels for drug offenses include the amount of drugs involved, the number of prior drug-related convictions, and any physical harm resulting from the offense.
Those convicted of federal crimes are also assigned to one of six criminal history categories (Criminal History Category I through Criminal History Category VI). Which category you fall within depends on the number of points you receive for each prior conviction:
- 3 points for each prior sentence of imprisonment exceeding 1 year and 1 month;
- 2 points for each prior sentence of imprisonment of at least 60 days not yet counted;
- 1 point for each prior sentence not yet counted; and
- 1 point for each prior sentence for a crime of violence not yet counted.
Two more points are added if your federal offense was committed while you were on probation, parole, supervised release, imprisonment, work release, or escape status.
Sentencing Zones in the Federal Guideline Sentencing Table are broad categories based on Offense Level and Criminal History Category:
- Zone A: Prison is not usually required;
- Zone B: Prison may be served by combination of prison, alternative placement;
- Zone C: Prison may be served by combination of prison, alternative placement; and
- Zone D: Prison must be served in custody.
If you look at the table, you will see the majority of the guideline ranges fall within Zone D and thus call for mandatory imprisonment. To obtain the best sentence possible, you need a federal criminal defense lawyer who knows the federal sentencing guidelines and statutes, understands the wide range of possible penalties, and has experience in presenting sentencing mitigation, to advocate on your behalf.
Federal Sentencing Guideline Adjustments
Federal judges reviewing the Federal Sentencing Guidelines have to take multiple factors into consideration. While they do have flexibility, their decisions must be justified. Sentencing decisions are significant as they decide the future of an individual. This can come down to whether someone spends a few months or their entire lives in prison.
One of the most common ways for sentences to be increased is by the guideline general offense characteristics (adjustments) which include increases for:
- Vulnerable victims (elderly adults and persons with disabilities);
- Abusing a position of private or public trust;
- Using a minor to commit a crime;
- Committing the offense through sophisticated means;
- Supervising or leading the criminal activity;
- Committing the offense while on release for another federal offense; and
- Obstructing justice (impeding the investigation of the offense of conviction).
There are very few guideline-related sentencing reductions. The most common reduction is for accepting responsibility, meaning pleading guilty by plea agreement and truthfully admitting all conduct related to the offense. While a federal judge may, for one reason or another, reject a plea agreement, the majority of plea agreements are accepted without question.
Years ago when the Federal Sentencing Guidelines were mandatory, they could only depart below a guideline range under specific circumstances. For example, the guidelines allowed judges to give a lower sentence in consideration of:
- Substantial Assistance to Authorities;
- Voluntary Disclosure of the Offense;
- Aberrant Behavior;
- Current Mental or Medical Condition; and
- Extraordinary Family Circumstances.
Now that the federal sentencing guidelines have been reduced to recommendations, the door is open for you to present a wide variety of reasons for the judge to vary from the guidelines and impose a below-guideline sentence. Hiring an attorney with experience researching and writing sentencing memorandums, especially memorandums that humanize clients and set forth comprehensive mitigation arguments, gives you the best chance of obtaining a below-guideline sentence.
Federal Sentencing Guidelines - Case Examples
Judges consider the Federal Sentencing Guidelines when imposing a sentence, and there are a number of factors that trigger application of specific offense characteristics and enhancements to your guideline calculation. Examples include:
- Drug Crimes: There are certain mandatory minimums in place for drug crimes based on the amount of drugs involved in the crime. A judge will also consider if the crime had certain characteristics — like whether a firearm was present, and its relationship to the crime (possessed, brandished, discharged).
- White Collar Crimes: Non-violent first offenders have not historically received leniency. Federal judges almost always consider the amount of financial loss, whether the victims are elderly or otherwise vulnerable, and whether the offender held a position of trust with the victim (like a CPA or financial advisor).
- Child Pornography: A judge will consider the “big picture” of the crime, including the age of the minors, the number of images, whether images were shared or distributed, and other related conduct. Sentences for producing, creating, distributing, or even possessing child pornography are harsh. Most have mandatory minimum sentences of 5, 10, or 15 years, and most mandatory minimum sentences come with lifetime federal sex offender registration requirements and a lifetime term of supervised release.
At the end of the day, who you choose to be your lawyer can make a difference in obtaining the best possible outcome for your situation.
Could Having Prior Violent or Controlled Substance Convictions Impact My Sentence?
The answer is yes. Your federal sentence can be impacted by both sentencing guidelines and statutory enhancements which recommend greater punishments for repeat offenders or even mandate minimum sentences for certain offenders. For example, if the Career Offender (CO) sentencing guideline applies to your circumstances, you will be assigned the highest possible criminal history category, which then increases your recommended guideline sentence. Also, those who are deemed career criminals by the Armed Career Criminal Act (ACCA) cannot be sentenced to less than 15 years in prison.
- Career Offender (CO). The Career Offender sentencing guideline recommends that anyone found guilty of a “crime of violence” or “controlled substance offense” who has two or more prior convictions for a felony “crime of violence” or a “controlled substance offense” be punished severely. This is a guideline recommendation and federal judges, in their discretion, may impose a sentence that is below the Career Offender guideline recommendation.
- Armed Career Criminal (ACCA). The Armed Career Criminal Act is a statutory penalty that mandates a minimum 15-year prison sentence for anyone convicted of violating 18 U.S.C. §922(g) (felon in possession of a firearm) who already has three or more prior felony convictions for a “violent felony” or “serious drug offense.”.
How Indiana Federal Sentencing Lawyers at Stracci Law Group Can Help
If you are charged with a federal criminal offense, odds are you will someday stand before a federal judge hoping for as much leniency as possible. When that day comes, you need an experienced federal sentencing attorney to present well-developed arguments explaining why you deserve a below-guideline or mitigated sentence.
If your future is in the hands of the federal criminal justice system, we want you to be confident that Stracci Law Group is the best choice for you and your case. Contact us at (219) 525-1000 today to set up a free consultation with one of our experienced federal sentencing lawyers.