If an individual or entity is charged with and convicted of a federal criminal offense, whether through a negotiated plea agreement, plea declaration, or after being found guilty after trial, a defendant will be sentenced according the “Federal Sentencing Guidelines.” These are a set of rules and procedures that are designed to assist federal judges and serve as a baseline for creating an advisory sentencing guideline range to consider when imposing sentence that are designed to promote consistency and fairness across the United States. The level is set forth in a range of months. This post is only meant to provide a very broad and general overview of the sentencing guidelines, as they can be quite complex with many nuances, so anyone who wants to be familiar with how these guidelines can apply in an individual case should contact an experienced federal criminal defense attorney who can guide them through their application.
History and Need for Clear Standards
In popular media, often when a high-profile individual is charged with a crime it is revealed that they may be facing “up to 20 years” or “a minimum of 10 years” if convicted of their crime. That is because crimes sometimes have mandatory minimum sentences associated with them, and all have maximum sentences prescribed by Congress, which means that a sentencing judge can sentence a defendant anywhere within the prescribed statutory range after considering the advisory guideline range that is calculated using various offense related factors as well as a defendant’s criminal history. Courts generally sentence defendants to periods of incarceration less than the statutory maximum and of course sentence some defendants to probation. Prior to the implementation of the Federal Sentencing Guidelines in the 1987, given the broad discretion judges have when imposing a sentence within statutory limits, it led to “indeterminate sentencing” meaning there were no clear standards for what Congress believed was a generally appropriate sentence upon commission of an offense and how much time an individual would serve. This lead to patently unfair results, as an individual convicted of a certain crime in one instance or area of the country could receive no prison time, whereas someone with an identical background who committed the same crime could receive a lengthy prison sentence in front of a different judge in another part of the country or even in the same federal district. In response, Congress passed the Sentencing Reform Act of 1984 which tasked the United States Sentencing Commission with making the system fairer and consistent.
United States Sentencing Commission/Table
The Sentencing Commission created what is known as the “Sentencing Table.” The Table is essentially a grid with two axes meant to be a sterilized and mathematical approach to providing an appropriate recommended advisory guideline range for a judge to consider at sentencing. One axis is an individual’s “Criminal History Category” (ranging from I to VI), which is calculated by looking at an individual past criminal history and receiving “points” for convictions depending on the severity of any prior sentences in an individual’s background, as well as when they occurred. The general idea is that individuals who have committed crimes in the past and been subject to the criminal justice system more often should be punished more severely for similar conduct based on their past experience(s) with law enforcement and/or their propensity to commit crimes. The other axis is more complicated, with a number reflecting the “Offense Level” (ranging from 1 to 43). The offense level is calculated by starting with what is called the “base offense level” and then adjusting either up or down for specific details surrounding the conviction which can greatly affect the resulting guideline range. For example, an individual convicted of fraud will usually start with a base offense level of 6 or 7 points, depending on the specific charge. Then offense levels generally increase based on the actual or intended monetary amount of the fraud. In addition, defendants can receive additional levels if they were a leader/organizer of a scheme or conspiracy, if violence was used in the commission of the offense, and many other varied factors can increase or decrease the resulting level. One factor that can have a massive effect on the ultimate level is an increase in offense level based on loss in the case of financial crime or the quantity of illegal drugs in drug cases. For example, someone convicted in a fraud case that leads to a loss or intended loss amount of between $6,500-$15,000 would only receive a 2-level increase on their guideline range, whereas an individual convicted of the exact same conduct but that led to a loss or intended loss of between $550,000-$1,500,000 would receive a 14-level increase. Without any other adjustments either up or down, if someone had a Criminal History Category of I and a base offense level of 6 would see their recommended guideline range go from 0-6 months to 33-41 months on that factor alone. Similarly, for someone convicted under the exact same conditions with no further adjustments but with a Criminal History Category of III would have a recommended guideline range of 10-16 months (for lower loss amount) or 41-51 months (for the higher loss amount). The ultimate guideline range then falls within a defined “Zone” (A to D) which has implications suggesting several different sentencing options, from whether or not a sentence of probation is encouraged under the guidelines to how much time should be spent in an actual prison versus home confinement/halfway houses (called Community Confinement at the federal level). It is worth noting that although the guideline range can be negotiated in a plea agreement, an ordinary plea agreement is non-binding on the Court and the U.S. Probation Office prepares their own calculation to ensure compliance with the guidelines that can reduce or increase their recommended guideline range that the sentencing judge is free to adopt or reject at the sentencing hearing.
Departing From the Guidelines
For many years after the adoption of the new system took effect, judges were largely bound to the resulting guideline range calculated prior to sentencing, other than allowing for strict departures from the calculated range, and had little ability to go above or below the guidelines unless certain special circumstances existed that were prescribed by the guidelines. However, in 2005 the United States Supreme Court ruled that the Guidelines are simply advisory, not mandatory, meaning that judges are free to depart from the Guidelines in individual cases. Although judges still run the calculation to determine a recommended advisory guideline range, it now operates as more of a base that judges are free to depart from in individual cases when considering the circumstances of the offense and what are called “3553(a) Factors.” These are very broad and encompassing factors which allow skilled defense attorneys to present a defendant in the best possible light and litigate for the lightest possible sufficient sentence that the sentencing judge can ultimately impose. Anyone charges and especially those convicted of a federal criminal offense should ensure that they have an experienced federal criminal defense attorney who can successfully navigate the complicated nuances prescribed by the federal sentencing guidelines to attempt to set the lowest guideline range as a benchmark to then advocate for the most lenient and appropriate sentence under the unique circumstances of an individual defendant’s case.
