Last Updated on: 20th October 2023, 09:56 am

How Do Federal Sentencing Guidelines Work? Understanding Your Potential Penalties

The federal sentencing guidelines are rules that judges follow when determining criminal sentences in federal court. They were created in 1984 to make sentencing more consistent across the country. Here’s a quick overview of how they work:

• Your sentence depends on your offense level and criminal history category. The offense level looks at the crime you committed. The criminal history category looks at your past record.
• The offense level starts at a base level and then points are added or subtracted based on specifics of the crime. For example, having a gun adds points. Accepting responsibility subtracts points. This gives you a total offense level.
• The criminal history category assigns points for past crimes. More serious and recent crimes get more points. The total points give you a criminal history category of I to VI.
• The judge looks up the offense level and criminal history category on a sentencing table. This gives a sentencing range in months. For example, offense level 12 and criminal history I gives 12-18 months.
• The judge chooses a sentence within that range. They can go outside the range if they explain why it’s justified. Since 2005 judges have more flexibility to go lower than the range.

There’s a lot more nuance to how the offense level and criminal history are calculated. But those are the basics of how the sentencing guidelines table works. Now let’s look at it in more detail…

Determining the Offense Level

The offense level always starts with a base level for the particular crime. Then levels are added or subtracted for specific offense characteristics.

For example, let’s say you’re convicted of wire fraud. The base offense level for wire fraud is 7.

Then levels can be added based on the amount of money involved. If the fraud was $15,000 then 2 levels would be added, making the offense level 9. If the fraud was $500,000 then 14 levels would be added, making the offense level 21.

The offense level can also go up or down based on other factors like:

• Causing physical injury or endangering public safety adds points
• Playing a minor role in the crime subtracts points
• Accepting responsibility subtracts points

All these adjustments result in a total offense level somewhere between 1 and 43. Higher offense levels mean longer recommended sentences.

Determining the Criminal History Category

The criminal history category is based on past sentences exceeding 1 year and 1 month. More recent and more severe crimes result in more points:

• Each prior sentence over 13 months adds 3 points
• Each prior sentence over 60 days adds 2 points
• Other sentences count for 1 point or 0 points

There are also points added for committing the current offense while on probation, parole, or supervised release. Or if the crime was committed less than two years after release from imprisonment.

The total criminal history points put defendants into one of six criminal history categories:

• 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

Higher categories mean a higher likelihood of recidivism. So the recommended sentence goes up.

The Sentencing Table

Once the offense level and criminal history category are determined, the judge consults the sentencing table. This table provides sentencing ranges in months:

For example, a level 12 offense and category I criminal history gives a range of 10-16 months. A level 25 offense and category VI criminal history gives a range of 110-137 months.

The judge is allowed to sentence within the range. Although they can also go outside the range if they feel it’s warranted and explain why.

Departures from the Guidelines

There are certain circumstances that allow the judge to give a sentence outside the guideline range. When they have a justified reason to “depart” from the range, either above or below. Some reasons for departure include:

• Substantial assistance to prosecutors – This requires a motion from the government. It’s how people get reduced sentences for cooperating.
• Overstated criminal history – If the category over-represents someone’s actual past crimes.
• Understated offense level – If the calculation doesn’t account for how severe the crime really was.
• Mental or emotional conditions – A downward departure may be warranted for certain conditions.
• Age – Downward departure for elderly defendants, upward for very young.
• Physical condition – Downward departure for serious illness or injury.

There are many other potential reasons for departures. But the judge has to explain why it’s justified. Departures were more common pre-2005 but are less needed today.

Variances from the Guidelines

After the 2005 Supreme Court decision in US v. Booker, the guidelines became advisory rather than mandatory. This gave judges much more flexibility to sentence outside the range without needing a specific departure reason.

These sentences diverging from the guidelines are called “variances.” The factors judges can consider include:

• Nature and circumstances of the offense
• History and characteristics of the defendant
• Seriousness of the crime
• Just punishment
• Deterrence
• Protection of the public

Defense attorneys argue these factors warrant a sentence below the guidelines. Common arguments are that the range is too high, the defendant’s role was minor, previous punishments were sufficient, or no prior record.

Judges have used their increased discretion to issue below-guideline sentences more frequently. In 2011, over 17% of sentences were below the range compared to 12% in 2006.

How Judges Determine the Sentence

While the guidelines provide a starting point, the judge has to consider other factors as well:

• Federal sentencing statutes – These define penalties for federal crimes with maximum prison terms. The sentence can’t legally exceed what the statute allows.
• Supreme Court decisions – Major cases like Booker increased flexibility in sentencing.
• Statutory sentencing factors – Federal law requires judges to think about things like public safety, deterrence, rehabilitation, proportionality, and consistency.
• Prosecutor’s recommendation – The prosecution will recommend a sentence, which can influence the judge.
• Defense arguments – The defense attorney will argue for the lowest end of the range, a departure, or variance. They’ll cite mitigating factors and may submit supporting letters.
• Defendant’s statement – The defendant has a right to directly address the judge and humanize themselves, express remorse, or provide explanations.
• Victim statements – Oral or written statements from victims can influence the judge’s perception of the defendant and crime.
• Sentencing memos – Both sides submit memos before sentencing advocating their position.
• Probation report – This investigates the defendant’s background and makes a sentencing recommendation.

The judge considers all these factors, the guidelines, arguments from both sides, and their discretion to determine an appropriate sentence.

How to Get the Lowest Sentence

If you’re facing federal charges, the prospect of federal prison is daunting. Here are some tips for getting the lowest possible sentence:

• Hire an experienced federal defense attorney – Their expertise with the guidelines, case law, and sentencing procedures can make a big difference.
• Plead guilty early – Accepting responsibility early helps get a reduction in the offense level.
• Provide substantial assistance – If you can cooperate against others, seek a section 5K1.1 departure motion.
• Present mitigating circumstances – Supply evidence, witnesses, and letters showing your best qualities and explaining the context of the crime.
• Make a sincere apology – Express genuine remorse and take responsibility when addressing the judge.
• Highlight sentences in similar cases – Argue your sentence shouldn’t exceed what others got for like crimes.
• Explain impact on family – Discuss how prison will affect innocent dependents.
• Request programs in prison – Ask the judge to recommend you for drug treatment, vocational training or other programs.

The federal sentencing guidelines are complicated, but understanding them is key to navigating the process. While the guidelines dictate a sentencing range, judges have discretion to go lower. An experienced lawyer along with a thoughtful mitigation strategy gives you the best chance at the lowest possible sentence.

References

https://alanellis.com/sentencing-tips/

https://www.ussc.gov/education/training-resources/federal-sentencing-basics

https://www.ussc.gov/education/training-resources/sentencing-practice-talk

https://federal-lawyer.com/ultimate-guide-to-the-federal-sentencing-guidelines/

https://prisonprofessors.com/basics-on-us-sentencing-guidelines/