FEDERAL SENTENCING GUIDELINES

The practice of Federal criminal defense requires an intimate and comprehensive knowledge in the application of the Federal Sentencing Guidelines to any case.  The Federal Sentencing Guidelines were established as part of the Bail Reform Act of 1984.  Although authorized by Congress, the Guidelines themselves were written by the U.S. Sentencing Commission and not published until 1987.

In constructing the Federal Sentencing Guidelines, the Sentencing Commission characterized every Federal criminal offense, and assigned to it a Base Offense Level.  The offense level could be increased or decreased depending upon enumerated circumstances of each offense.  For example, a defendant who is found to have occupied a leadership role in a criminal conspiracy could have his or her offense level increased by 4 points if there were five or more participants in the offense of conviction.  Another example would be the 4-level decrease appropriate when a defendant occupies a minimal role in the case.  A thorough understanding of what constitutes “Relevant Conduct” is essential to understanding the offense level that will be applied to any particular defendant.  One of the important factors employed by the Federal Sentencing Guidelines to determine the offense level is, in the case of a theft or fraud offense, the “amount of loss”, and in a narcotics case, the amount of controlled substances.  These factors are by no means the only ones that will be considered by the Court, this information can start up the process.

Federal Sentencing Guidelines for Fraud

Federal Sentencing Guidelines for Drugs

Before imposing a sentence, the Court must calculate a defendant’s criminal history category.  Any prior conviction that has resulted in a sentence of between probation and 60 days in jail is assigned one (1) criminal history point.  If the defendant was sentenced to serve from 60 days to one year and one month, then two (2) points are added to his or her criminal history score.  If the defendant was sentenced to an excess of one year and one month, then three (3) points are added to his or her criminal history score.  This system applies to all felonies, and some misdemeanors.  The Court will add up the number of criminal history points and then look on the Sentencing Table to calculate the Criminal History Category.  There are six (6) Criminal History Categories determined by the number of Criminal History Points applicable to any particular defendant.  What follows is a list of the number of Criminal History Points for each Criminal History Category:

Criminal History Category I = 0 or 1 Criminal History Points

Criminal History Category II = 2 or 3 Criminal History Points

Criminal History Category III = 4, 5, or 6 Criminal History Points

Criminal History Category IV = 7, 8, or 9 Criminal History Points

Criminal History Category V = 10, 11, or 12 Criminal History Points

Criminal History Category VI = 13 or more Criminal History Points

Federal criminal defense attorneys must be mindful of the special provisions of the Federal Sentencing Guidelines that apply to defendants with more extensive criminal histories.  If a defendant has two prior convictions for “serious narcotics offenses” or two “crimes of violence”, or one of each, the Base Offense Level will not be determined by the statutory maximum for the offense of conviction pursuant to the Career Offender Table.  For instance, if the offense of conviction carries a life sentence, the base offense level would be 37.  In all career offender cases, the criminal history category is VI.  The only downward adjustment permitted would be for acceptance of responsibility.   The link below will show how the Base Offense Level for Career Offenders is calculated and based upon the maximum penalty is attached.

CAREER OFFENDERS AND CRIMINAL LIVELIHOOD

After the Base Offense Level has been adjusted, and the Criminal History Category has been calculated, the resulting numbers are plugged into a chart used to determine the Advisory Guideline Sentencing Range.  When the Sentencing Guidelines first came into effect, the Guidelines Sentencing Range was mandatory.  A downward or upward departure from the sentencing range would only be granted if there were circumstances relevant to sentencing that were unique and “outside the heartland” of cases that the Federal Sentencing Commission used to calculate either the Offense Level or the Criminal History Category.  In 2005, the United States Supreme Court decided the case of United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005) [link].  In Booker, the Court declared that since the various factual determinations that were used to determine the Offense Level were based upon a preponderance of the evidence according to the Federal Sentencing Guidelines, a defendant’s right to have those facts decided by a jury beyond a reasonable doubt was violated.  The remedy that was determined by the Supreme Court was to make the sentencing range advisory rather than mandatory.  A Federal judge at sentencing was still required to calculate the Advisory Guideline Sentencing Range, and justify any downward or upward variance or departure.  This ruling still makes the law interpreting the Federal Sentencing Guidelines to be crucial for effective representation at sentencing for violations of Federal criminal offenses.  Attached is the Sentencing Table used by all the Federal Courts throughout the United States.

[link – Sentencing Table]

For most Federal prosecutions, the Advisory Guideline Sentencing Range usually calls for a lengthy term of imprisonment even when the defendant has no prior convictions.  This is because the Offense Level was to determine the Advisory Sentencing Range.  For instance, first offenders in fraud cases where the loss or intended loss exceeds $1 million can frequently find the Advisory Sentencing Ranges starting from five (5) to ten (10) years or more depending upon the particular circumstances of the crime.  For drug cases, defendants who are ensnared in large-scale conspiracies can see their Advisory Sentencing Ranges usually exceeding ten (10) years, and sometimes twenty (20) years.  The Advisory Sentencing Range is a real number that is used by all Federal judges to set the parameters for sentencing.  An attorney unfamiliar with the Federal Sentencing Guidelines will not be likely to be able to use them for his client’s benefit.  This could result in a sentence much higher than desirable.

Charles G. White has been working with the Federal Sentencing Guideline system since it started back in 1987.  This knowledge has helped him negotiate favorable plea bargains for clients who do not want to risk all in a jury trial.  He has also successfully used his knowledge and understanding of the Federal Sentencing Guidelines to obtain lower sentences at the trial than what the U.S. Attorney was offering as a plea bargain before trial.  In addition, understanding the plea bargaining process in Federal Court, which is based on the Federal Sentencing Guidelines, makes Charles G. White more effective at trial in discrediting prosecution witnesses who have been the beneficiaries of favorable plea bargains to secure their testimony against his client.

Charles G. White has also successfully persuaded Federal judges to issue downward variances from the Advisory Sentencing Guideline Range for his clients.  His experience extends to presenting evidence to persuade Federal judges to consider the defendant’s totality of circumstances before imposing a sentence.  This work sometimes requires forensic mental health professionals and other experts whose opinions can be marshaled to demonstrate to the Federal judge that a lower sentence than provided by the Federal Sentencing Guidelines is an appropriate resolution of the case.

Obtain Legal Assistance.  If you or someone you know is facing Federal criminal cases at any stage of the proceedings whether it be before indictment, before trial, or even after an adverse jury verdict at trial, but before sentencing, it is imperative that you work with an attorney who understands the Federal Sentencing Guidelines.  Mr. White’s experience with the Federal Sentencing Guidelines extends back to their creation.  His knowledge and expertise give a person facing sentencing for Federal offenses the best chance of getting the lowest sentence possible.  Charles G. White.  He has 34 years of experience with the Federal Sentencing Guidelines and will defend you and your rights.