Criminal Defense Lawyers

Criminal History Category Calculation

Criminal History Category Calculation: What Your Prior Convictions Mean for Your Federal Sentence

Your criminal history category could matter more then the actual crime you committed.

Look, here’s the deal—when you recieved your Pre-Sentence Report (PSR), you probly saw a number next to “Criminal History Category” ranging from I to VI. That number, based off your prior convictions, might add years to your sentence irregardless of the federal offense your facing now. This article explains exactly how federal courts calculate criminal history categories, what prior convictions count (and which ones don’t), the most common calculation errors probation officers make, and what you can do about it in the next 14 days before its to late.

You Just Got Your PSR – What That Criminal History Number Actually Means

The Pre-Sentence Report (PSR) is the document the probation office prepares after your guilty plea or conviction. Buried in their is a section called “Criminal History Computation” that lists every prior conviction the probation officer could find—and assigns points to each one. Add up those points, and you get your Criminal History Category from I (lowest) to VI (highest). Here’s the thing—this number isn’t just for show. Its the other half of the sentencing equation.

Federal sentencing works on a grid. The vertical axis is your offense level (based on the crime you committed). The horizontal axis is you’re criminal history category (based on prior convictions). Where they intersect on the sentencing table gives your guideline range in months.

So basically, even if two defendants committed the exact same federal crime wiht the same offense level, the one with prior convictions could recieve a sentence thats twice as long—or more.

I mean, seriously, consider this: A defendant with offense level 20 and Criminal History Category I faces 33-41 months. That same offense level 20 with Category III? 46-57 months. Category VI? 70-87 months. Same crime. Different past. Your looking at potential double or triple the prison time based off what you did years ago, maybe in a completly diffrent state.

Here’s what most defendants don’t understand untill its to late: probation officers over-count by default. This ain’t an accident. The system is set up so that when the probation office recieves your state rap sheets, they include questionable convictions and let you object later. Internal training materials for federal probation literally say “when in doubt, count it—defendant can object.” According to a 2024 Federal Defender survey, 42% of PSRs contain at least one criminal history calculation error favoring the goverment.

Not becuase probation officers are malicious, but because the default is to over-include.

This matters alot more then you think. Federal prosecutors know that criminal history is easier to enhance then offense level. To increase you’re offense level, they have to prove specific conduct elements at sentencing—which takes evidence, witnesses, argument. To increase your criminal history? They just submit certified copies of old state judgements. Two-hour process, maximum. Which means prosecutors use criminal history as leverage in plea negotiations. They’d rather give you a 2-level offense reduction then fight about whether your 2007 conviction should count. But you gotta know this to negotiate it.

You have 14 days from receiving the PSR to file objections. Not suggestions. Not questions. Formal written objections to the criminal history calculations, with legal basis and supporting documents. Miss that deadline, and the court treats the PSR as presumptively correct. Once your sentenced based on a wrong criminal history category, fixing it requires a 2255 habeas petition—which almost never succeeds on sentencing calculation errors.

The time to challenge is now. Not after sentencing.

What Your Prior Convictions Actually Count For – The Point System Explained

Federal sentencing guidelines assign points to prior convictions based off how much time you was sentenced to, not what the conviction was called or weather it was a felony or misdemeanor. This trips people up becuase there thinking state law labels matter federally.

They don’t. Only the sentence imposed matters.

Here’s the basic point system under Chapter 4 of the Sentencing Guidelines:

• 3 points: Each prior sentence of imprisonment exceeding one year and one month
• 2 points: Each prior sentence of imprisonment of at least sixty days but not more than thirteen months
• 1 point: Each prior sentence of less than sixty days (max 4 points total from these)
• 2 points: If you committed the federal offense while on probation, parole, supervised release, or any other criminal justice sentence

Add up the points, and they convert to categories like this: 0-1 points = Category I. 2-3 points = Category II. 4-6 points = Category III. 7-9 points = Category IV. 10-12 points = Category V. 13+ points = Category VI. Simple math, right?

Except the devil’s in the details, and them details is where probation gets it wrong.

First major trap: state misdemeanors can count as 3-point convictions if the sentence imposed was more then one year. Most defendants think “misdemeanor = doesn’t count federally.” Wrong. Dead wrong. The guidelines don’t care what the state called it. Only question: what sentence did the judge impose? Example: Iowa OWI 2nd offense is classified as a aggravated misdemeanor under state law. Maximum sentence is two years. If the Iowa judge sentenced you to 366 days or more, that misdemeanor conviction counts as 3 criminal history points federally. Same conviction, 365-day sentence? Zero points (counts as 1 point under the “less than 60 days” category, but with the 4-point cap).

One day diffrence = 3-point swing.

Here’s were it gets even more complicated. Say you got convicted of three seperate crimes in state court on March 15, 2018—burglary, theft, and assault. The state judge sentenced you on all three convictions the same day: burglary (2 years), theft (18 months), assault (1 year). Do those count as three seperate convictions (3+3+2=8 points), or do they get grouped together as “related cases” (3 points total for the most serious one)?

Answer: it depends on what federal circuit your in, and weather the state sentences was imposed to run concurrent or consecutive. This is the same-day sentence loophole, and it can create swings of 5-7 criminal history points. In the 9th Circuit, multiple convictions sentenced on the same day are presumptively “related” under §4A1.2(a)(2) and count as one conviction (the most serious one). In the 2nd Circuit, they count seperately unless you can prove they was part of a “single common scheme or plan.” According to the Federal Sentencing Reporter, this circuit split means defendants in California get 3 points for the same conduct that gets defendants in New York 8 points.

Your probation officer might not even know there’s a circuit split—they’ll just count them seperately by default.

Bottom line: if you got multiple state convictions sentenced on the same day, you need to pull the actual sentencing orders and minute sheets from state court to verify weather they should be grouped. Don’t rely on the probation officer to get this right.

They won’t.

Military convictions count too, which surprises alot of veterans. Court-martial convictions are treated just like state convictions—if the military sentence was confinement exceeding one year and one month, its 3 points. Problem is, probation offices don’t know how to read JAG records. Your DD-214 shows characterization of discharge (honorable, general, dishonorable) but doesn’t detail criminal history. The actual court-martial records show the sentence imposed vs. the sentence served. Many court-martials result in suspended sentences or time-served situations that shouldn’t count federally, but probation counts them anyways becuase they don’t understand military record-keeping.

If your a veteran with a court-martial in you’re past, you need to pull complete JAG records—not just the DD-214—to verify what sentence was actually imposed.

Prior Convictions That DON’T Count – Common Exclusions and Exceptions

Not every old conviction counts toward your criminal history. Their are specific exclusions in the guidelines, but probation officers don’t always apply them correctly.

Here’s what shouldn’t count—and what you need to prove to get them excluded.

The 15-year washout rule is the big one. Under §4A1.2(e)(2), prior sentences are not counted if the defendant was released from imprisonment more then 15 years before the current offense. Sounds simple.

Its not.

The 15-year clock starts from your release date, not your conviction date. And here’s the trap nobody tells you: the clock restarts if you was imprisoned on any other offense during that 15-year period.

Real-world example: You was convicted in 2005 (20 years ago) and released from prison in 2008 (17 years ago). You stayed clean untill 2018, when you caught a state probation violation and did 90 days in county jail. Released 2018, arrested on federal charges 2025. Does the 2005 conviction count? Most defendants would say no—its 20 years old. But the probation officer is gonna count it, becuase you was imprisoned (2018 probation violation) within 15 years of the current offense (2025). The 90-day jail stint in 2018 restarted the 15-year clock.

Now the 2005 conviction counts as if it just happened. This catches people off gaurd every time.

To challenge this, you need exact dates: conviction date, release date, and any subsequent imprisonments with exact start/end dates. State DOC records, not just court records. If you can prove you wasn’t imprisoned in the 15 years before the federal offense, the old conviction gets excluded. That could be 2-3 points right their.

Juvenile adjudications generally don’t count—except when they do. Under §4A1.2(d), juvenile convictions are counted only if: (1) the juvenile was adjudicated as an adult, or (2) the juvenile sentence was adult imprisonment exceeding one year and one month. Most juvenile cases don’t meet these criteria and shouldn’t be counted. But probation offices sometimes count juvenile adjudications anyways, especially if the state record isn’t clear about weather the defendant was tried as a juvenile or adult.

If your PSR lists a juvenile case, you need to pull the juvenile court records proving it was handled in juvenile system, not adult court.

Here’s one almost nobody knows: diversion programs you completed years ago might count if you later violated probation on something else. Under §4A1.2(f), “diversionary dispositions” don’t count—unless the defendant was imprisoned for more then 60 days on any other sentence. So if you successfully completed drug court diversion in 2010 (case dismissed, thought it was over), but then you violated probation in 2015 and did 90 days in jail, the 2010 diversion case now counts retroactively for your 2025 federal case.

Why? Because §4A1.2(f) says diversionary status is “revoked” by any subsequent imprisonment exceeding 60 days. The 2015 probation violation imprisonment retroactively converts the 2010 diversion into a countable conviction.

This is a mute point for most defendants becuase they don’t even remember old diversions—they was told the case was “dismissed” and thought that meant it disappeared. It didn’t. You need to ask yourself: did I ever complete a diversion, deferred prosecution, or pretrial intervention? If yes, did I later violate probation or get imprisoned on any other case for more then 60 days? If both answers are yes, that old diversion probably counts now. Probation might not catch it (becuase its coded as “dismissed” in state records), but if they do, you need proof of exactly how long you was imprisoned on the subsequent case.

Expunged convictions still count federally. State expungements, set-asides, and certificates of rehabilitation are ignored under §4A1.2(k)(1). I’ve seen defendants who paid thousands of dollars to expunge there state record, thinking it would help them in federal court.

It doesn’t. Federal sentencing guidelines explicitly say state expungements don’t matter. The conviction counts as if it was never expunged.

However—and this is important—pardons based on innocence DO exclude the conviction. Under §4A1.2(k)(2), if you recieved a governor’s pardon or presidential pardon explicitly based on a finding of innocence (not rehabilitation, not time served, but actual innocence), that conviction doesn’t count. Problem is, most pardons are based on rehabilitation, not innocence. You need the actual pardon documents showing the basis. If it just says “pardoned for good behavior,” it doesn’t help you federally. If it says “pardoned based on actual innocence” or “wrongful conviction,” then it should be excluded.

Tribal court convictions are the new battleground. Since August 2024, DOJ has been aggressively counting tribal court convictions under the theory that their “equivalent to state court convictions” for guideline purposes. Problem is, tribal courts operate under different procedural standards—many don’t provide right to counsel, don’t create written records, use traditional dispute resolution instead of adversarial process. In United States v. Keeps Eagle (D. Montana, Sept. 2024), defense challenged weather a tribal DUI conviction met federal due process standards required to count under §4A1.2.

Case is still pending, but it raises the question: if the tribal conviction didn’t guarantee rights equivalent to state court, should it count? For all intensive purposes, if you have tribal court convictions in your PSR, you should challenge weather they meet federal constitutional standards.

Probation offices don’t verify this—they just count them.

The Criminal History Category TRAP – How Old Convictions Come Back to Haunt You

Your sitting their reading your PSR and you see a conviction from 2009.

Sixteen years ago. You was 23 years old then. You did your time, stayed clean, built a life. And now—now—the goverment is using that ancient conviction to add three points to your criminal history, bumping you from Category I to Category III, adding two to four years to your federal sentence for something you did when Obama was president.

How is this even legal? How is it fair?

Here’s the thing—and I mean this ain’t gonna make you feel better, but you need to understand it—the federal system doesn’t care about fairness the way you think it should. The guidelines treat your past as predictive of your future. Your criminal history category ain’t punishment for old crimes. Its supposedly a measurement of your “likelihood of recidivism.” The goverment’s theory is that people with prior convictions are more likely to reoffend, so they deserve longer sentences irregardless of the current crime.

Whether that’s actually true (it probly isn’t, at least not the way they calculate it) doesn’t matter. That’s the system.

And here’s were it gets worse. Remember that 15-year washout rule we talked about? The one that’s supposed to exclude old convictions? It doesn’t work the way you think. The 15-year clock starts from your release date, not your conviction date. And it restarts—restarts—every time you was imprisoned on anything during that 15-year window.

Even a 90-day probation violation from ten years ago restarts the clock, pulling ancient convictions back into play.

Let me give you a real example I seen—becuase this happens alot, and defendants are blindsided every time. Guy gets convicted of burglary in 2006. Sentenced to three years, released in 2009. Stays clean for nine years. Then in 2018, he gets a DUI, violates his state probation (from a totally unrelated case), does 120 days in county. Released December 2018. Gets arrested on federal charges January 2025. The prosecutor—and the probation officer—count the 2006 burglary conviction in his criminal history.

Why?

Because he was imprisoned (the 2018 probation violation) within 15 years of the 2025 federal offense (2025 minus 2018 = 7 years, which is less then 15). The four-month jail stint in 2018 retroactively pulled the 2006 conviction (19 years old) back into play.

He thought that burglary was long gone. It wasn’t.

This feels like a trap becuase it is a trap. The guidelines are written to maximize criminal history points, not minimize them. When there’s ambiguity, probation counts the conviction. When there’s a close call, they include it. When there’s missing documentation, they assume it counts and make you prove otherwise.

This ain’t neutral. This ain’t fair. But its how the system works, and you gotta understand that to fight it.

State expungements don’t save you neither. I can’t tell you how many defendants thought they was in the clear becuase they got there state conviction expunged. Maybe they paid a lawyer $3,000 to file the expungement petition. Maybe the state judge granted it, and the state record now says “dismissed” or “expunged.”

Doesn’t matter. Federal sentencing guidelines under §4A1.2(k)(1) explicitly ignore state expungements. The conviction counts as if it was never expunged. Your walking into federal court thinking you got a clean slate, and the probation officer hits you with convictions you thought was erased.

That’s the moment defendants realize there past ain’t really past—its just been waiting.

And don’t even get me started on the diversions. You was told—probly by a public defender in state court 15 years ago—that if you completed drug court, the charges would be dismissed and “it’ll be like it never happened.” You did the program. You stayed clean. You jumped through every hoop. Case dismissed. You moved on.

Except now, in 2025, that dismissed diversion case is in your PSR as a 3-point conviction.

How? Becuase you violated probation on something else five years later, and that probation violation had 90 days jail time attached. Under §4A1.2(f), the 90-day imprisonment “revoked” your diversionary status retroactively. The case that was dismissed in 2010 now counts in 2025 becuase of what you did in 2015.

You didn’t know. The state court didn’t tell you. But the federal system don’t care.

Look, your facing—and I mean career-ending stuff—a situation were every mistake you ever made is being weaponized against you. (Trust me on this.) The goverment isn’t just prosecuting you for the current federal offense. There prosecuting you for your entire life. Every conviction, every sentence, every probation violation, every jail stint—it all gets added up and converted into criminal history points that could double or triple your sentence.

And the worst part? Most of this ain’t even about you. Its about the probation officer’s interpretation of incomplete state records, the prosecutor’s strategic decision to include borderline convictions, and a guideline system that’s rigged to over-count.

This is the emotional core of what your going through right now. You thought you payed your debt to society for them old convictions. You thought expungement meant clean slate. You thought 15 years meant 15 years. You thought diversion meant dismissed. And now you’re learning that none of that is true—at least not in federal court.

The rules are different here, and nobody told you untill it was to late to do anything about it.

Except its not to late. Not yet. You got 14 days to challenge this. But you gotta act now, and you gotta know what your challenging.

The reason is because once the court accepts the PSR at sentencing, fixing criminal history errors requires a 2255 motion, which has maybe a 2% success rate on sentencing calculation issues. (I’ve seen it happen.) The time to fight is before sentencing, not after. And the fight ain’t about fairness or justice or whether the system should count 15-year-old convictions.

The fight is about documentation, statutory interpretation, and catching the probation office’s errors before they become permanent.

How to Calculate Your Own Criminal History Score Before Probation Does

Don’t wait for the probation office to calculate your criminal history and hand you a PSR. By then, your in reactive mode—challenging there calculations instead of controling the narrative. If you calculate your own score first, you can identify problems early, address them strategically in plea negotiations, and avoid getting blindsided by a Category V designation when you expected Category II.

Here’s how to do it.

First, pull your complete criminal record from every state where you was ever convicted. Not just your rap sheet (which is often incomplete), but actual court records: judgements of conviction, sentencing orders, minute sheets, docket entries. You need the exact sentence imposed for each conviction, not just the charge. Many state convictions show “convicted of theft” but don’t specify weather the judge sentenced you to 6 months or 18 months—and that difference is the line between 1 point and 2 points federally.

For each prior conviction, ask these questions based on §4A1.1 of the guidelines:

1. What sentence was imposed? Not what you actually served—what the judge ordered. If the judge said “two years imprisonment, suspended after 90 days,” the sentence imposed was two years (3 points), not 90 days. If the judge said “one year county jail,” that’s one year (2 points), even if you got out in six months for good behavior. The guidelines look at sentence imposed, not time served.

2. Was it a sentence of imprisonment? Probation-only sentences don’t count (with exceptions). Fines don’t count. “Time served” at arraignment (usually 1-2 days) doesn’t count. But suspended sentences do count if the suspension came after a period of imprisonment was imposed.

3. Does the 15-year rule exclude it? Calculate from your release date, not conviction date. And check: was you imprisoned on anything else between your release and the current federal offense? If yes, the old conviction still counts.

4. Was it a juvenile adjudication? If you was under 18 and tried as a juvenile (not as an adult), it probly doesn’t count unless the sentence exceeded one year.

5. Were multiple convictions sentenced on the same day? Pull the sentencing documents. If the state judge sentenced you for three convictions on March 10, 2015, check: did the judge say they was related offenses, or part of a common scheme? Check your circuit’s caselaw on weather same-day sentences are grouped or counted seperately. This is huge—could be the difference between 3 points and 9 points.

6. Was you on probation, parole, or supervised release when you committed the current federal offense? If yes, that’s automatic 2 points under the status enhancement. But here’s the key: as of November 1, 2023, the status points only apply if the underlying sentence was for an offense punishable by more then one year. This changed under Amendment 821. If you was on probation for a misdemeanor punishable by less then one year when the federal offense occured, you don’t get status points.

Most probation officers still apply the old rule—this is a challangeable error.

Add up the points. Convert to category: 0-1 = I, 2-3 = II, 4-6 = III, 7-9 = IV, 10-12 = V, 13+ = VI. Compare your calculation to what you expect the probation office will say. If there’s a discrepency, you know were to focus your research and objections.

Here’s the strategic part: if your calcuation shows your on the bubble (say, 6 points, which is the top of Category III), you can negotiate with the prosecutor before the PSR is even filed. Offer to stipulate to a certain criminal history category in exchange for other concessions. Prosecutors would rather lock in a agreed-upon category then fight about weather your 2012 conviction should count.

But you can only negotiate from strength if you’ve done your own homework first. If you wait for the PSR, the probation officer’s calculation becomes the starting point, and your stuck arguing backwards.

Challenging Your PSR – The 14-Day Window and What to File

The PSR gets filed, and the clock starts. You have 14 days from the date of disclosure to file written objections. Not comments. Not questions. Formal objections with legal citations and supporting documents. This is laid out in Federal Rule of Criminal Procedure 32(f).

Miss the deadline, and the court can—and usually will—treat the PSR as accurate.

Here’s what most defendants don’t understand: the probation officer ain’t gonna fix errors just becuase you mention them in passing. The officer might make minor corrections (typos, wrong dates), but substantive challenges to criminal history calculations require formal objections filed with the court. Your attorney should file a written objection that specifically identifies each error, cites the guideline provision that’s being misapplied, and attaches supporting documentation.

Common objections to criminal history calculations:

1. Conviction falls outside the 15-year window. Attach state DOC records showing exact release date and proving no subsequent imprisonment restarted the clock. Cite §4A1.2(e)(2).

2. Same-day sentences should be grouped as related conduct. Attach state court sentencing orders showing all convictions was sentenced on the same day. Cite §4A1.2(a)(2) and circuit caselaw on same-day sentence treatment. Argue that consecutive sentences don’t automatically mean unrelated conduct—state judge might have imposed consecutive for administrative reasons.

3. State misdemeanor sentence was less then one year and one month. Attach sentencing order showing exact sentence imposed. If the state judge said “364 days county jail,” that’s 1 point (under the “less than 60 days” category, subject to 4-point cap), not 2 points. If probation counted it as 2 points, that’s an error.

4. Juvenile adjudication shouldn’t count. Attach juvenile court records proving defendant was adjudicated as a juvenile, not as an adult, and sentence didn’t exceed one year. Cite §4A1.2(d).

5. Diversion program was successfully completed and no subsequent imprisonment revoked diversionary status. Attach records showing diversion completion and arguing that §4A1.2(f) doesn’t apply becuase defendant was never imprisoned for more then 60 days on any other sentence.

6. Military court-martial sentence was suspended or didn’t involve actual confinement. Attach complete JAG records (not just DD-214) showing the sentence imposed vs. served. Many court-martials result in suspended sentences that shouldn’t count under §4A1.2.

7. Status points don’t apply under Amendment 821. If the underlying sentence (the one you was on probation for when you committed the federal offense) was for a crime punishable by less then one year, status points don’t apply as of November 1, 2023. Cite Application Note 5 to §4A1.1.

Plain and simple: gather your state court records now. Not tomorow. Today. You need certified copies of judgements, sentencing orders, minute sheets, and DOC records showing exact dates of confinement and release. Probation offices often work from incomplete rap sheets that show arrest dates but not sentences imposed. If your actual sentencing order says “6 months county jail” but the rap sheet just says “convicted 2015,” probation might assume the worst and assign 2 points.

You need the documents to prove otherwise.

If your a veteran, get your complete JAG records through a FOIA request or from your JAG office. Don’t assume probation will interpret your DD-214 correctly. If you got tribal court convictions, get the tribal court records (if they exist) showing what procedural protections was provided. For all intensive purposes, the burden is on you to prove the PSR is wrong, not on probation to prove its right.

One more thing: if you need more then 14 days to gather records (say, state courts are slow to respond, or you need JAG records from 20 years ago), file a motion for extension of time to object. Courts usually grant reasonable extensions if you show good cause. But don’t just let the deadline pass and hope the judge will overlook it.

You’ll loose your chance to challenge.

What This Means for Your Sentence – And What to Do Right Now

Your criminal history category ain’t just a number on a page. Its the difference between walking out in three years vs. seven. Its the difference between seeing your kids grow up vs. missing there childhood. Its the difference between a future and no future.

And right now—right this moment—your facing a system that’s gonna count every conviction, every sentence, every mistake you ever made, weather it should count or not.

Here’s what you need to do today. Not tomorow. Today.

Call every state court were you was ever convicted. Request certified copies of all judgements of conviction, sentencing orders, and minute sheets. You need exact sentences imposed, exact dates. If you did time in state prison, request DOC records showing intake and release dates. If your a veteran with a court-martial, file a FOIA request for complete JAG records. Get this documentation before the PSR is filed if possible, or within 14 days of recieving the PSR if its already been filed.

Calculate your own criminal history score using the method we outlined. Compare it to what the probation office is gonna say (or already said in the PSR). Identify discrepencies. Focus your challenge on the biggest point-value errors—fighting about 1 point vs. 2 points on a minor conviction matters less then fighting about weather a 3-point conviction should be excluded entirely under the 15-year rule.

Talk to your attorney about negotiating criminal history in your plea agreement. Prosecutors trade on this all the time. They’d rather stipulate to Category II and avoid the fight then have your attorney file 10 pages of objections and drag out the sentencing hearing. But you can only negotiate if you’ve done the homework and know what your challenging.

If the PSR is already filed, file objections before the 14-day deadline. In writing. With citations. With supporting documents. Don’t assume probation will fix errors on there own.

They won’t. The system defaults to over-counting, and the burden is on you to prove otherwise.

And if your past the 14-day window, or if your already sentenced based on a wrong criminal history calculation—its not completely over, but your options are limited. Post-sentencing relief under 2255 almost never works for sentencing calculation errors unless there was a constitutional violation or a clear misapplication of the guidelines.

The time to act is before sentencing, not after.

Call now. Right now. Your criminal history category is being calculated weather your paying attention or not. The probation office is pulling records, making assumptions, counting convictions. If you don’t challenge them, they’ll stick. And those points will turn into years.

Years you can’t get back.

We’re here. 24/7. We know how to challenge criminal history calculations, how to find the errors probation offices make, how to negotiate with prosecutors before the PSR becomes set in stone. But we can’t help if you wait untill after sentencing.

At that point, its to late. The time is now.