How Do Federal Sentencing Guidelines Work? A Criminal Defense Lawyer Explains

The federal sentencing guidelines can seem complicated at first glance. As a criminal defense lawyer, I’m often asked to explain how they work. The guidelines were created in 1987 to bring more consistency and fairness to federal sentencing across the country. While they are no longer mandatory after a 2005 Supreme Court decision, judges still closely consider the guidelines when determining sentences.

In this article, I’ll walk through the key aspects of the federal sentencing guidelines and how they impact sentences today. My goal is to help anyone facing federal charges better understand what to expect at sentencing.

The Basics

The guidelines provide recommended sentencing ranges based on two main factors – the severity of the crime and the defendant’s criminal history[1].

• More serious crimes are assigned higher “offense levels” on a scale of 1 to 43. Things like the amount of financial loss or if a gun was involved can increase the offense level[2].
• A defendant’s criminal history is scored and assigned to one of six categories, with more extensive records in higher categories[3].

By plugging the final offense level and criminal history category into a sentencing table, you get a recommended sentencing range in months. While judges aren’t required to follow the guidelines, they must consider them and explain any departures[4].

Let’s walk through an example for a federal drug trafficking offense:

• Base offense level for drug amount: 26
• Weapon enhancement: +2
• Acceptance of responsibility reduction: -3
• Total offense level: 25
• Criminal history category: III
• Guideline range: 70-87 months

So in this case, the guidelines provide a starting point range of 70-87 months for the judge to consider. But this is just the beginning of the sentencing process.

Departures from the Guidelines

While judges must start with the guideline range, they have discretion to “depart” up or down from the range if certain factors are present. Upward departures can increase the sentence, while downward departures reduce it[5].

Some common reasons for departure include[1]:

• Victim impact
• Role in the offense
• Unusual circumstances
• Cooperation with prosecutors
• Health conditions
• Age
• Family ties

Depending on the case facts, either the defense or prosecution can request a departure. For example, substantial assistance to prosecutors in investigating or prosecuting others is a common reason for a downward departure. Or the extreme harm caused to victims could warrant an upward departure.

Departures can have a huge impact on the final sentence. Let’s say the judge departs downwards by 2 levels in our previous example and reduces the range to 57-71 months. That’s a minimum of 13 months less than the original guideline minimum.

Mandatory Minimums

Some federal offenses like drug trafficking, firearms violations, and child exploitation carry mandatory minimum sentences set by statute. This means judges cannot go below a certain sentence length regardless of the guideline range[5].

For example, distributing just 5 grams of meth triggers a 5-year mandatory minimum sentence. If the guidelines recommend a range below the mandatory minimum, the mandatory minimum overrides the guidelines.

However, there are a few exceptions where the mandatory minimum may not apply:

• Substantial assistance departure
• Safety valve provision for low-level drug offenders
• Binding plea agreement

Outside of these limited exceptions, mandatory minimums severely restrict a judge’s sentencing discretion. Many opponents argue they lead to excessive punishment and should be reformed or eliminated[6]. But as of now, they remain in effect for a number of federal offenses.

How Booker Impacted the Guidelines

When the Supreme Court decided United States v. Booker in 2005, it ruled that mandatory guideline sentencing violated the Sixth Amendment right to a jury trial[4]. This was because the guidelines allowed judges to increase sentences based on facts not specifically decided by the jury.

The remedy was to make the guidelines “advisory” rather than mandatory. However, Booker maintained that judges must still properly calculate and consider the guidelines before imposing a sentence.

Making the guidelines advisory gave judges much more flexibility. However, data shows judges still heavily rely on the guidelines in most cases. In fiscal year 2020, only 54% of sentences fell within the guideline range, down from 72% when the guidelines were mandatory. But overall, sentences tend to stay within a few years above or below the guidelines.

So while no longer bound by the guidelines, judges continue to closely follow them in practice. The guidelines remain the starting point and influential anchor for federal sentencing.

How Judges Determine Sentences

To recap, the typical sentencing process goes like this:

1. The presentence report calculates the guideline range.
2. The judge rules on any objections to the guideline calculation.
3. The judge considers any motions for departure from the guidelines.
4. The judge evaluates any mandatory minimums required by statute.
5. The judge weighs all the sentencing factors and arguments from both sides.
6. The judge pronounces a final sentence and explains their reasoning.

While the guidelines provide the framework, a lot of discretion remains in the judge’s hands. Defense lawyers will present mitigating factors and argue for leniency, while prosecutors advocate for tougher sentences. Common factors judges consider include:

• Guideline range
• Victim statements
• Defendant’s background
• Remorse and likelihood to re-offend
• Need to promote respect for the law and provide just punishment

Judges have wide latitude to balance these factors and impose a “sufficient but not greater than necessary” sentence in each case.

The Bottom Line

I hope this overview provides a better understanding of how federal sentencing works after the guidelines and Booker. While the guidelines remain influential, they are not destiny. An experienced defense lawyer can advocate for a fair sentence and educate the judge on all the mitigating circumstances in your case. So don’t lose hope if you’re facing serious federal charges. With the right legal strategy, you may still find justice in the end.