In the U.S., individuals charged with federal crimes are subject to the United States Federal Sentencing Guidelines. Upon a conviction, whether by way of a plea agreement or a guilty verdict at trial, these guidelines will have a significant impact on the length of an imposed sentence. Their influence on sentencing is the same in all federal courts across the country, whether a case is handled in the U.S. District Court for the Northern District Court of Cleveland in Cleveland, OH’s Southern District Court in Cincinnati, or any other federal court in America.
A History of USSC Sentencing Guidelines
If you hear about federal sentencing guidelines in the news, it’s likely related to discussions over federal criminal justice reform. That’s because these sentencing policies, along with mandatory minimums and other harshly criticized policies, are infamously severe. However, that wasn’t always the case.
For many years, federal criminal law afforded federal judges with the discretion and power to sentence defendants convicted of federal crimes to nearly any term of imprisonment or punishment they felt was appropriate, provided that sentence fell within minimum and maximum sentences created by Congress.
Because this discretion created many disparities and sentences that could vary wildly for the same crimes, Congressional lawmakers passed the Sentencing Reform Act of 1984, a time when America’s Way on Drugs was approaching its peak. The Act created a new agency, the U.S. Sentencing Commission (USSC), and led to the implementation of the U.S. Sentencing Guidelines. The goal was to create more consistency in how federal judges handed down sentences.
While the Sentencing Guidelines were initially written as mandatory, rulings from the U.S. Supreme Court in cases such as U.S. v. Booker and Blakely v. Washington sided with arguments that they allowed the legislative branch of government to tell the judiciary how to do its job, and that they violated the Sixth Amendment right to trial by jury.
What Are Federal Sentencing Guidelines Like Today?
Today, the U.S. Sentencing Guidelines are considered “advisory” only. Federal judges still need to calculate sentences using the guidelines and consider them when determining an appropriate sentence, but they are not required by law to issue sentences that fall within them.
Though mandatory was changed to “advisory,” it is common for judges to generally follow the guidelines, but they can issue sentences which fall below or above the recommended range, and need to complete extra steps to provide their reasons when they do. Still, in the time since the Supreme Court ruled against the “mandatory” element of the guidelines in 2005, sentences exceeding the range recommended by the Guidelines have doubled.
While many federal defense lawyers and defendants may refer to a Federal Sentencing Guidelines chart or table when attempting to calculate guideline ranges, new Guidelines manuals are periodically updated and published by the USSC. For example, you can:
- Find the 2018 Guidelines Manual (effective November 1, 2018) here.
- View the Federal Sentencing Guidelines Table for 2018 here.
- See 2019 proposed amendments to Sentencing Guidelines here.
Basics of the Sentencing Guidelines
There are two main factors upon which sentences are determined under the Guidelines:
- Conduct related to the offense, which is used to calculate one of 43 offense levels; and
- Criminal history, of which there are 6 categories.
Generally, every federal crime has a base offense level. When there are circumstances that make the offense more serious, points can be added to increase the level and the recommended sentencing range. Points can also be deducted when there are reasons to decrease the offense level and the sentencing range.
Adjustments
Sentencing Enhancements
There are many ways offense levels and recommended sentences can be increased. The severity of any enhancement will largely depend on its nature and any adjustments based on other factors, such as the defendant’s role in the crime, or what type of firearm was involved and how it was used. Adjustments also apply in cases where defendants are charged with multiple counts, and can result in “stacking,” which can substantially increase sentences.
Examples of common federal sentencing enhancements include:
- Hate crimes or terrorism
- Offenses against vulnerable victims (i.e. elderly or disabled)
- Official victims (i.e. crimes against government officials)
- Abuse of positions of trust or special skills
- Using minors to commit the offense
- Use of a firearm or body armor (924c) in drug crimes and violent crimes
- Obstruction of justice
- Committing an offense while on release
Sentencing Reductions
Guideline ranges can also be reduced based on factors that warrant reductions. This includes accepting responsibility, which can result in a 2- or 3- level decrease when defendants accept plea agreements and do not exhibit continued criminal activity.
Departures
As mentioned above, federal judges have the ability to depart from recommended guideline ranges. Whether a departure is warranted in your case depends on many individual facts, as well as the prosecutor involved, who can file a motion to allow a reduction), and the presiding judge, who has the power to ultimately do what they see fit.
Common reasons for departures can include circumstances which may call for sentences both above and below guideline ranges, such as the death or significant physical injury of a victim or committing an offense because of coercion or duress, among others.
So What Do the Guidelines Mean in Your Case?
Federal Sentencing Guidelines are generally the guiding point for judges to determine sentences, which means individuals charged with any federal crime can face serious and significant terms of imprisonment, especially when there are certain factors involved, such as multiple charges, criminal history, and various enhancements. Here are just a few more specific examples:
- Drug Crimes – Drug offenses have base offense levels determined by the amount of the controlled substance involved. The greater the amount, the greater the chances of offense level increases and sentencing becomes longer. Having a firearm can also increase sentencing, and can result in mandatory minimum consecutive sentencing enhancements, such as 5 years for only possessing a firearm, and more depending on what the firearm was and / or how it was used (brandished, fired, etc.).
- White Collar Crimes – Financial loss is the main factor in determining base offense levels for white collar crimes and fraud charges. Similar to drug crimes, the greater the financial loss, the greater the changes of longer sentences. Offense level can also be increased when there are multiple victims, when victims are vulnerable or elderly, and when defendants abused a special skill or their position of trust (such as a financial advisor).
- Child Pornography – Child pornography offenses often have high base offense levels, as well as potential mandatory minimums. Sentencing enhancements for these charges may stem from higher numbers of images, age of depicted minors, the use of a computer, file sharing / distribution, and sadomasochistic conduct, among other factors.
Ultimately, the individual facts of your case will dictate what the recommended range may be for your sentence, and federal criminal defendants should understand that enhancements and sentences under the guidelines can quickly add up. For these reasons, it becomes critical to work with experienced attorneys who know the federal court system, the federal prosecutors and judges in local U.S. District Courts, and the strategies that can be explored to minimize the damage and potential for longer sentences.
Friedman Nemecek Long & Grant, L.L.C., L.L.C. Attorneys at Law is led by Attorney Ian N. Friedman, a nationally regarded criminal defense attorney with proven results in complex, high profile, and high stakes federal cases. If you have questions about your federal case, defense, and potential sentencing, our team is available to discuss your options during a free and confidential consultation. Contact us to get started.