Last Updated on: 20th October 2023, 09:49 am

How Do Federal Criminal History Points Work? Understanding Your Criminal Record Score

The federal criminal justice system uses a point system to determine a defendant’s criminal history category, which is then used along with the offense level to determine the sentencing guidelines range. This system can be complex, but understanding how it works is critical for anyone facing federal charges.

How Points Are Calculated

The starting point for calculating criminal history points is Section 4A1.1 of the Federal Sentencing Guidelines[1]. This section provides:

• 3 points for each prior sentence of imprisonment exceeding one year and one month
• 2 points for each prior sentence of imprisonment of at least sixty days not counted above
• 1 point for each prior sentence not counted above, up to 4 points
• 2 points if the offense was committed while under any criminal justice sentence
• 1 point for prior sentences for crimes of violence, up to 3 points

There is no limit on points under the first two sections. The 4-point limit in the third section can be exceeded by up to 3 more points under the last section for crimes of violence[1].

Some key aspects of calculating criminal history points:

• A “prior sentence” includes any sentence imposed before the defendant committed the instant offense, even if sentenced after[2].
• Sentences imposed in related cases are treated as one sentence if they were consolidated for sentencing[3].
• Sentences for misdemeanors and petty offenses are generally counted, with some exceptions like hitchhiking and fish and game violations[4].
• Juvenile sentences are counted if the defendant was convicted as an adult or the offense required imprisonment exceeding one year for an adult[5].
• Tribal court convictions are counted if they were for offenses punishable by over one year imprisonment.
• Foreign convictions are counted if the offense is punishable under U.S. federal or state law.
• Expunged convictions are still counted unless expunged under the Federal First Offender Act or equivalent state law.

Impact on Sentencing

The criminal history category is combined with the offense level on the Sentencing Table to determine the sentencing guidelines range. The category dictates the vertical axis on the table while the offense level sets the horizontal axis. Where the two intersect gives the range in months of imprisonment.

For instance, a defendant with an offense level of 20 and a criminal history category of I would have a range of 33-41 months. But a defendant with the same offense level and a category V criminal history would face 70-87 months, showing the significant impact of criminal history on the final sentence.

While judges have discretion to depart from the guidelines, they are still an important benchmark. Understanding how criminal history points work is essential for federal defendants to assess their situation accurately. Consulting with an experienced federal criminal defense attorney is highly recommended.

When Convictions Are Not Counted

Not all prior convictions impact the criminal history score. Convictions that are never counted include[4]:

• Fish and game violations
• Hitchhiking
• Juvenile status offenses and truancy
• Local ordinance violations (unless also a state violation)
• Loitering
• Minor traffic infractions

There are also time limitations on counting convictions, generally 10 or 15 years depending on length of the sentence and other factors. Convictions outside the time limit are not counted unless the defendant’s subsequent conduct shows they are evidence of similar misconduct.

Downward Departures

In some cases, judges can apply a downward departure and sentence below the guidelines range if they find the criminal history category over-represents the defendant’s actual history. This may occur if:

• The prior offenses are minor or dissimilar to the instant offense
• The defendant was very young when the priors occurred
• The priors are outdated and defendant has shown subsequent law-abiding conduct

To obtain a downward departure, the defense must file a motion identifying reasons the criminal history score over-represents the defendant’s background. Evidence such as character references, proof of rehabilitation, and expert testimony may be presented.

Conclusion

Calculating federal criminal history points involves tallying up prior sentences based on their length and nature. The total determines the criminal history category, which along with the offense level produces the sentencing guidelines range. While complex, understanding this system is important for federal defendants to know what they are facing. Consulting with an experienced attorney is highly recommended when facing federal charges.