Transcript
Page 1: 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

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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

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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.

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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.

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CRIMINAL HISTORY

Under the Guidelines, a defendant’s 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.

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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:

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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 victim’s 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 Guideline’s framework to determine a defendant’s

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.

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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

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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

negotiations; patent licensing; civil litigation; breach-of-contract disputes; landlord/tenant litigation; and

obtaining, defending and asserting worldwide intellectual property rights.

Mahoney Criminal Defense Group

Suite 22, 545 Concord Avenue

Cambridge, MA 02138

Phone: 617-492-0055

Website: www.relentlessdefense.com


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