Federal Sentencing Guidelines

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 What Are Federal Sentencing Guidelines?

Criminal trials can take place in either federal or state court. If the crime at issue is a violation of federal criminal law and a person is tried in federal court and found guilty, the federal judge who has presided over the trial has to impose a sentence in punishment of the offense. This punishment is determined largely by what are known as federal sentencing guidelines.

In 1984 Congress passed the law that authorized the drafting of federal sentencing guidelines, the “Sentencing Reform Act.” It set up the U.S. Sentencing Commission (USSC) as an independent agency in the judicial branch of the federal government to establish the sentencing policies and practices for the federal system of criminal justice. It is the job of the USSC to draft the guidelines which are supposed to prescribe the appropriate sentences for federal crimes.

A number of reasons motivated creation of the USSC and the federal sentencing guidelines. One was the perceived need for transparency in criminal sentencing. Another was to make sentencing more uniform. At the time of the creation of the USSC, widely differing sentences were likely to be imposed in criminal cases in which the crime and the offender were quite similar. This was seen as reflecting possible discrimination. So Congress sought to ensure reasonable uniformity, i.e. the same or similar punishment for comparable offenders and crimes.

Federal sentencing guidelines recommend to a sentencing judge a suggested range for sentencing. The sentence can consist of a term of imprisonment in federal prison, a fine, or both. The guidelines generally take two things into consideration. The first is the seriousness of the crime, and the second factor is the defendant’s prior criminal history. Based on consideration of these factors, the judge can determine a minimum and maximum terms of imprisonment and fine.

For example, the recommended sentence for someone with no criminal history who is convicted of a bank robbery without the use of a weapon is 33 to 41 months in federal prison and/or a fine of from $7,500 to $75,000. The judge must select a sentence that falls within the range indicated by the guidelines.

Both the attorney for the defense and the prosecution can argue that these guidelines should be ignored. The defense would argue for a lesser sentence and the prosecution for one that is more severe. However, in the majority of cases judges are going to impose a sentence that falls within the range suggested by the federal sentencing guidelines.

Still, the Guidelines are not mandatory. The reason for this is facts used to assess the Guidelines in a particular case may not have been proven beyond a reasonable doubt to a jury. Using unproven facts would violate the Sixth Amendment to the U.S. Constitution.

However, judges are required to consider the Guidelines when deciding on a criminal defendant’s sentence.

When a judge determines that they wish to depart from the Guidelines, as they may, the judge has to explain what factors justify the increased or decreased sentence. Also, a federal Court of Appeals is going to favor a sentence that comes within the Guidelines if a case is appealed. When it reviews a sentence determined after a proper application of the Guidelines, it may presume that the sentence is reasonable.

How Do the Guidelines Work?

Again, in 1984 Congress passed the law that authorizes the development of sentencing guidelines for the purpose of supporting the fundamental purposes of criminal punishment, which it sees as deterrence, incapacitation, fair punishment, and rehabilitation. The law gave authority to the USSC to review the then-existing federal sentencing process and improve it.

As a practical matter, the important point was the direction to the USSC to set up categories of behavior involved in criminal offenses and characteristics of offenders. For example, a category of offense behavior might consist of characteristics such as “bank robbery/committed with a gun/$2500 taken.”

A category for offender characteristics might be “offender with one prior conviction not resulting in imprisonment.” The Commission has established a system in which the offense behavior categories are coordinated with offender characteristic categories.

Guideline ranges then prescribe an appropriate sentence for each class of convicted offender that is determined by coordination of the offense behavior categories with the offender characteristic categories. If the guidelines call for a sentence of imprisonment, the law requires that the range of sentencing options be narrow. The maximum term of imprisonment in the range cannot be more than the minimum by an amount that is greater than 25 percent or six months.

A sentencing judge is required to select a sentence from within the guideline range, unless a specific case presents features that are not typical. If it does, the judge is allowed to depart from the guidelines and sentence outside the range. However, if the judge chooses to do this, they must state specific reasons for the departure.

If the court imposes a sentence that falls within the guideline range, an appellate court may review the sentence to determine whether the guidelines were applied in the correct manner. If the court departs from the guideline range and imposes a sentence that is not within the range, the defendant or the prosecution may appeal the sentence. An appellate court would then review the reasonableness of the departure.

The Sentencing Reform Act also abolishes parole in the federal criminal justice system, and substantially reduces and restructures adjustments to sentences for good behavior

There is a table, widely available online, that sets out the coordination of offenses and offenders and the range of sentences. This table tells judges what the appropriate sentencing range is for different crimes and different offenders.

Specifically, every federal crime that is a felony or a Class A misdemeanor is associated with an offense level. Lesser felonies are not addressed in the guidelines, which include 43 offense levels. The higher the level, the more severe the crime is and the longer the suggested prison sentence is.

For example, the guidelines suggest that a person who is found guilty of a Level 1 offense should receive a sentence of imprisonment for a term of between zero and six months. At the other end of the range, someone convicted of a Level 43 offense should receive a sentence of life in prison.

In addition to the base offense levels, every type of offense is assigned a certain number of offense characteristics. These factors can raise or lower the base offense level and, in turn, affect the sentences. Here are some examples:

  • A home burglary or theft offense begins at level 17. It goes up based upon the amount of property stolen. If the burglary led to the loss of property with a value of $2500 or more, an additional level is added. If the value of the property loss was more than $800,000, five levels are added;
  • Robbery has a base offense level of 20. There is an increase of five levels if a firearm was displayed in the robbery. This would raise the total level to 25. And if the firearm was fired in the course of the robbery, there is an increase of seven levels.

Yet another complication is the possibility that adjustments apply. Adjustments are factors that may apply to any offense, raising or lowering the offense level. There are victim related adjustments, the role of the offender in the offense, and obstruction. Some examples of adjustments are the following:

  • If the offender participated only to a minimal extent, e.g. they were the driver of the getaway car in a bank robbery, the offense level is decreased by four;
  • If the offender knew the victim was vulnerable because of their age or mental condition, the offense level goes up by two;
  • If the offender obstructed justice, the offense level also goes up by two.

If a person is convicted of several federal crimes, the Sentencing guidelines feature instructions on how the judge can reach a combined offense level for all of them. The most serious federal offense is the starting point. The other criminal counts charged then determine whether to boost the offense level and if so, by how much.

There is one more step in determining the offense level under the sentencing guidelines. If, in the opinion of the sentencing judge, the offender has accepted responsibility for their crime, the judge can decrease the offense level by two. To decide whether this deduction should reduce the sentence, judges may consider whether the offender admitted the crime; paid restitution before a guilty verdict was issued; or pled guilty.

Also, if an offender falls at an offense level of 16 or more, the judge can reduce the offense level by one, if the prosecution makes a motion that the offender’s guilty plea allows the government to use fewer resources prior to the trial.

The other main factor used in the guidelines is the history of the offender. The guidelines are based on the idea, common in criminal law, that repeat offenders should get longer prison sentences than people convicted of fewer prior criminal acts. In the guidelines system, points are awarded for every prior conviction.

Determining the number of points that should be awarded for each conviction is technical and complicated but examples are as follows:

  • One point is given to each prior conviction with a term of imprisonment of less than 60 days;.
  • Two points are given for each prior conviction with a term of imprisonment of between 60 days and 13 months;.
  • Three points are given for each prior conviction that resulted in a term of imprisonment of more than 13 months.

A sentencing judge adds up all the points and then uses the total to determine the Criminal History Category of the offender. There are six different criminal history categories in the guidelines, ranging from Category I with the fewest points to Category VI with the most points.

Do I Need the Help of an Attorney for My Sentencing in Federal Court?

If you have been charged with a federal crime, you definitely want to consult a criminal defense attorney for guidance. As can be seen, sentencing in federal criminal cases can be technical and complicated.

Your attorney will be able to identify any defenses to the crime that may be available to you. They will also be able to offer information about the possible sentence that can be imposed given the crime charged and your personal history. You want to have the best possible legal representation when you enter a federal courtroom to deal with a federal criminal offense.


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