A sentence enhancement is an additional form of punishment that can be added to the sentence in a criminal case because some fact justifies it. For example, in California, a sentence for a felony can be “enhanced” if the perpetrator of a crime had a gun or used a gun during the commission of a crime.
In the terminology of criminal sentencing, an “enhancement” is an additional punishment added to the base punishment for conviction of an offense. An enhancement makes the sentence for the underlying felony longer — in some cases, much longer.
Sentence enhancements are given for many reasons. Repeat offenders are often given enhanced sentences. A perpetrator who has already been convicted of a crime or has a criminal history is more likely to be given a more severe, enhanced, sentence by the judge.
Habitual offenders are people who commit crimes again and again, as if criminality has become a habit for them. They are often given sentence enhancements. Possessing or using a weapon during the commission of a crime, committing a crime near a specific location such as a church or school, or committing a crime against a minor are all factual circumstances that could lead to enhanced sentencing.
Are There Different Kinds of Sentence Enhancements?
There are different kinds of laws that prescribe a range of sentence enhancements. The laws regarding sentencing enhancement vary from state to state. In any state, the statute that applies in the sentencing of any given case depends on the nature of the crime, other circumstances surrounding the commission of the crime and the defendant’s criminal history. There are general enhancement statutes, which apply to people who have repeated the same crime or have a criminal history. Then there are specific enhancement statutes, which apply to specific crimes and the facts surrounding the specific instance of criminality.
There are certain crimes which are more likely to generate enhanced sentencing. If a person has been found guilty of multiple DUIs, for example, a judge is likely to add additional prison or jail time with each conviction. If certain conditions are present during the DUI offense, the sentence might also be extended.
For example, in California, an enhanced sentence is likely if there was a minor in the car at the time the driver was stopped for DUI. Or, if the driver refused a breathalyzer test, or if property was damaged during the DUI, the driver’s sentence can be enhanced. Enhanced sentences are also often given out for drug offense convictions.
An example comes from federal law. A person who is charged with a federal felony drug offense may face an enhanced sentence if they have been convicted of a felony drug offense before. The law authorizes federal prosecutors to use a defendant’s prior felony drug conviction as the basis for seeking an increased sentence in a current durg, firearm or immigration case.
Federal law requires federal prosecutors to give the defendant notice of the fact that they are going to seek an enhanced sentence in the defendant’s current case based on the defendant having a prior conviction. Defendants are given the opportunity to challenge the validity of the prior convictions before they are sentenced. Prosecutors have the burden of proving, beyond a reasonable doubt, any disputed fact about a prior conviction on which the government intends to rely for a sentence enhancement.
Again, in California and in many other states, the sentences for felonies are enhanced if guns played a role in the commission of the crime, such as:
- Being armed with a firearm in the commission of a felony;
- Possessing ammunition that can penetrate metal or armor;
- Having or making use of a firearm during the commission of certain sex offenses;
- Giving or attempting to give a firearm to another person for that person to use in the commission of a felony;
- Personally making use of firearms, assault weapons, machine guns, or .50 BMG rifles in the commission of a felony;
- Personally using a firearm in the commission of a serious felony; and
- Firing a gun or other firearm from a car in the commission of a felony.
In California, if the facts of a defendant’s case show that the conditions for enhancement are present, then the punishment for the crime is increased by a number of additional years in state prison or jail. Again, this extra period of time is additional to the time imposed for the base crime. Also, the time to which a perpetrator is sentenced for an enhancement must be served consecutively to the time served for the base crime.
In California, the extra time a perpetrator faces ranges from one year to life, depending on the following factors:
- The type of firearm or weapon used;
- Whether it was the perpetrator or another person involved with the crime who used the gun,
- Whether the perpetrator used the gun or simply had it in their possession;
- The nature of the underlying felony offense, and
- The person’s criminal history.
In California a person, however, even if not a gang member, who commits a felony for the benefit of a gang can get a mandatory prison sentence that is in addition to the sentence imposed for an underlying felony conviction.
A person’s criminal sentence may be enhanced if they are convicted of a crime in Texas under the following circumstances:
- If the person has have any prior convictions for either felonies or misdemeanors, this can justify enhancement of a sentence;
- If the person is a habitual offender, that is, they have two or more prior felony convictions, they are likely to receive an enhanced sentence;
- If the person used a weapon in the commission of the crime; in many cases, even the mere possession of a weapon can qualify the person for enhanced penalties;
- If the person committed drug crimes in certain locations, such as in a school zone or on a playground, this can result in an enhanced sentence;
- If the victim was a minor, primarily if the crime was violent or a sex crime, this can be the basis for enhancement.
How Can a Sentence Enhancement Be Challenged?
A sentence enhancement can be challenged at a defendant’s sentencing hearing or on appeal of the conviction In both cases, in order to challenge a sentence enhancement, a person must investigate the sentencing schedules for the crime with which they are charged. Schedules are legal outlines showing the sentences, or punishments, that are assigned to the various kinds of crimes. There are federal schedules for federal crimes and state schedules for state crimes. Each state has its own schedule. The schedules in some, but not all, states are based on federal schedules.
A defendant should be aware that if they plead guilty to a criminal charge on the basis of a plea agreement, they may in the agreement give up their right to appeal the charge and the sentence as well, so this is something a defendant and their attorney would want to consider at the time of agreeing to any plea deal offered by the prosecution..
When challenging a sentence on appeal, a person would need to obtain the sentencing minutes from the judge. Sometimes, when the judge imposes a specific sentence, the judge may have been unfamiliar with the sentencing provisions or may have misunderstood the sentencing law. This can result in either too much or too little time being assigned. If a crime did not involve violence, there may be an improved chance of having a sentence enhancement stricken from a sentence on appeal.
Having a lawyer represent a person at their sentencing hearing before the person is sentenced is always a good idea. An experienced criminal defense lawyer is aware of the possibility of sentencing enhancements and is prepared to defend against them. First of all, the lawyer should know what the possible sentence enhancement would be and what facts justify an enhancement for the crime with which their client is charged.
It might be possible to mount a defense against the facts that justify the enhancement, i.e. showing that the facts to justify an enhancement are not present in a particular case. And a lawyer can present arguments on a defendant’s behalf at their sentencing hearing. A lawyer might be able to argue facts that would justify a showing of leniency from the sentencing judge.
Do I Need a Criminal Defense Attorney?
Most people who have been charged with a crime may not be aware of the pitfalls of the sentencing process. A qualified criminal defense lawyer has the expertise and knowledge to be able to obtain the necessary documents and formulate the best possible arguments regarding preventing or reversing sentence enhancements.