Federal Criminal Sentencing
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FEDERAL CRIMINAL SENTENCING
CANNON & ASSOCIATES is dedicated to Fierce Advocacy for those facing Federal Criminal Prosecution. It is crucial you contact an experienced Oklahoma Federal Criminal Defense Attorney, if you have been indicted with a federal crime. You need a Fierce Advocate to defend your rights, your property, and your freedom. This page is an overview of the federal criminal process and procedures between Indictment and Jury Trial.
Federal crimes are enumerated, listed, in United States Code, which contains all the statutory federal law in the United States. The majority of federal crimes are listed in Title 18 United States Code; however, almost every Title of the United States Code contains one or more criminal provisions. Part of the logic behind the creation of Federal Sentencing Guidelines is uniformity in punishment. The Federal Judiciary, particularly the U.S. Sentencing Commission (discussed in the next section) wanted to correct the injustice of a federal criminal defendant in one federal district receiving a punishment far longer or shorter than a federal criminal defendant charged with the same offense in another part of the county. Although, the system still has disparity between Federal Districts, a federal criminal offender in the Western District of Oklahoma will now face a punishment in the general area of a federal criminal offender in any other district, assuming all other considerations are the same.
Brief History of Federal Sentencing
At the time of enactment, the Federal Sentencing Guidelines were mandatory, meaning federal judges were required to follow the exact framework of the guidelines. However, in 2005 the United States Supreme Court decided United States v. Booker, 543 U.S. 220 (2005), which found the mandatory prong of the Guidelines was not Constitutional. Although no longer mandatory, federal judges must follow perform the calculations in the Federal Sentencing Guidelines and consider the result in determining a federal criminal defendant’s sentence. Additionally, federal judges will consider a Presentence Report, which paints a picture of the defendant and the charges.
How Federal Sentencing Guidelines Work
The Federal Sentencing Guidelines are just what they sound-like a guide to sentencing federal criminal offenders. Most, but not all, federal criminal offenses are listed in one of the forty-three (43) “Offense Levels.” Additionally, each federal criminal offender is assigned one of the six “Criminal History Categories.” The criminal history categories are based on the offender’s criminal history, specifically, the seriousness of their history and how recently the offense occurred. Imaged as a graph; the “Offense Level” is the Y-axis and the “Criminal History Category” is the X-axis. The overlap or intersection of the two axes (Offense level x Criminal History Category) determines the federal criminal offender’s range of punishment.
Federal Sentencing Guideline Table
|Offense Level ↓||Criminal History Category|
(0 or 1)
(2 or 3)
(4, 5, 6)
(7, 8, 9)
(10, 11, 12)
Each “Guideline Range” is separated by six (6) months incarceration or 25 percent (25%), whichever is greater. Judges are now advised, previously required as discussed above, to choose a sentence within the “Guideline Range,” unless a factor convinces the federal judge a different sentence is appropriate.
U.S. Sentencing Commission
The Federal sentencing guidelines are written and maintained by an independent federal agency called the United States Sentencing Commission. The federal agency is part of the federal judicial branch. The United States Sentencing Commission publishes the federal sentencing guidelines, analyzes criminal sentencing information, and consults other branches of government of policies that affect criminal issues.
Offense Levels: Seriousness of Federal Crime
In addition to the sentencing analysis discussed in the last section, forty-three (43) offense seriousness levels exist. You are correct in assuming, the higher the number the more serious the federal offense, i.e. First-Degree Murder has a base offense level of 43 (the highest level). The final offense level is set by taking the “Base Level,” explained in the last section and adding or subtracting based on the offense characteristics. This leads to the next issue; what raises or lowers federal criminal offense levels.
Offense Characteristics: Raising the Offense Level
Specific federal offenses usually carry a number of “Offense Characteristics.” The characteristics can increase or decrease the base offense level, which plays a role in the federal sentence received by an offender. The following are some of the most common level adjustments:
- Property loss greater than $2,500 – adds one level
- Property loss greater than $xx – adds two levels
- Property loss greater than $800,000 – adds five levels
- Displaying a firearm in a robbery – adds five levels
- Discharge of a firearm in a robbery – adds seven levels
- i.e. violence and/or great financial loss will increase levels
Now that you are familiar with some of the offense characteristics that increase the base offense level; the next section illustrates “Offense Characteristics” that decrease the base offense level.
Offense Characteristics: Lowering the Offense
Some “Offense Characteristics” lower the offense level. The following characteristics are the most common that lower the base level, decrease the base offense level:
- Substantial Assistance to authorities, discussed below
- Participation in an early disposition program
- Victim’s conduct that significantly contributes to the offense
- Lesser harm, discussed below
Federal Sentencing Adjustments
Adjustments are another factor in federal criminal sentencing. They potentially apply to any offense and will either increase or decrease the offense level. There are three categories of Adjustments: victim-related; offender role; and obstruction of justice. Minimal participation can decrease the base level by four levels. However, obstruction or a crime involving a vulnerable victim will increase the offense level.
- Multiple Count: a federal criminal defendant convicted on multiple counts, i.e. more than one federal offense, will receive one “Combined Offense Level” for all the crimes. The guidelines begin with the most serious offense and all other offenses with either increase or not affect the offense level.
- Acceptance of Responsibility: the judge may reduce the offense level by two levels for a federal criminal defendant taking or accepting responsibility for the offense. Upon a motion by the prosecution, stating the defendant’s early guilty plea avoided U.S. Attorney and court resources, the judge may decrease the offense level by an additional level, if the offense level is at sixteen (16) or higher. Although federal judges have discretion in applying the downward adjustment, the following factors should be considered:
- Criminal Defendant’s truthful admission of participation in crime;
- Restitution to the victim before a guilty verdict; and/or
- Entering a guilty plea.
- Criminal History: as in state criminal proceedings, the offender’s criminal record plays a large role in the guidelines. One of the Six (6) “Criminal History Categories” discussed above will be set based upon the length and how recent previous crimes occurred. Many first-time federal offenders are placed in Criminal History Category One, the lowest category, based on having minimal or no criminal record. Alternatively, criminal offenders with substantial criminal records will be assigned a higher Criminal History Category.
Departures from the Federal Guidelines
Understandably, the Federal Sentencing Guideline point federal defendants are most concerned with is downward departures. This final step in the sentencing analysis is required pursuant to 18 U.S.C. §3553(b). The federal judge must determine whether or not aggravating or mitigating, making the offense deserving a lesser punishment, exist that the U.S. Sentencing Commission failed to take into account or failed to give sufficient weight or importance. Federal judges may impose a sentence above or below the guidelines, if he or she determines an aggravating or mitigation circumstance exists and memorializes the reasoning in writing.
Fortunately, federal criminal defendants can appeal, if the federal judge imposes an upward departure. Unfortunately, the U.S. Attorney’s Office may appeal, if the federal judge grants a downward departure. The most famous departure is the “Substantial Assistance Departure.” In state court criminal proceedings cooperation with prosecutors or law enforcement may result in a benefit in your state court criminal proceedings. Likewise, in federal criminal proceedings this downward departure, reduction in prison sentence, may be applied for substantially assisting in the investigation and/or prosecution of another, usually more serious, federal criminal offender. Federal criminal defense attorneys may not request the “Substantial Assistance Departure,” only the federal prosecutor can. However, an experienced federal criminal defense attorney can solidify your receiving such a request by the prosecution, if you provide the proper assistance.
Finally, if your federal criminal defense attorney is able to convince the federal judge imposing sentence that following the guidelines would be unreasonable, the federal judge may grant a variance from the guidelines to your benefit. Again, the federal judge must state his or her basis for doing so in writing.
Downward Departure from the Guidelines
An artfully crafted argument by your federal criminal defense attorney may result in additional downward departure. The following are some of the most common downward departure factors:
- Victim’s Conduct (§5K2.10) – when a victim contributes to the significance of a federal criminal offense; a federal judge may depart downward on the sentence below the guidelines to reflect the aggravation by the victim. The federal sentencing judge should consider the following:
- The physical characteristics of the victim, in comparison with the defendant;
- The victim's conduct and efforts, if any by the defendant to prevent confrontation;
- The danger reasonably perceived by the defendant;
- The actual danger to the defendant by the victim;
- Any other conduct by the victim affecting the danger presented;
- The reasonableness of the defendant's response to the victim's conduct.
- Lesser Harm (§5k2.11) – when a federal criminal defendant commits a federal crime to avoid a believed greater harm; a federal judge may depart downward on the sentence, if the circumstances diminish the interest in punishing the conduct.
- Coercion or Duress (§5K2.12) – when a federal criminal defendant commits a federal crime under duress, fear, or blackmail, but it is not a complete defense; a federal judge may depart downward on the sentence.
- Diminished capacity (§5K2.13) – when a federal criminal defendant commits a federal crime with diminished mental capacity, which contributed to the commission of the offense; a federal judge may depart downward on the sentence. However, voluntary intoxication and other factors may negate this basis for a downward departure.
- Voluntary Disclosure (§5K2.16) – when a federal criminal defendant admits an offense, which would likely not have been discovered otherwise; a federal judge may depart downward on the sentence.
- Aberrant Behavior (§5K2.20) – when a federal criminal defendant commits a federal crime that did not involve planning, was of limited duration; and is a deviation from the defendant’s otherwise law-abiding life; a federal judge may depart downward on the sentence for policy reasons. However, this does not apply in the case of serious bodily injury; the use of a firearm; or serious drug trafficking.
There are four federal sentencing zones, which are set ranges of length of incarceration. A defendant in the lowest of the four zones is eligible for federal probation, i.e. no imprisonment. Further, pursuant to U.S.S.G. § 5C1.1(c)(3), a federal sentencing judge may create a combination of conditions, including, but not limited to home detention and community confinement. Federal defendants in the third highest zone may receive split sentences, i.e. serve only half of their sentence incarcerated. This topic leads to the consideration of Federal Criminal Probation.
Federal Criminal Probation
The Federal Sentencing Guidelines limit probation to specific circumstances. Probation without any confinement is limited to Zone A, sentencing ranges six months and below, as discussed above. Section 5B1.3 of the Sentencing Guidelines sets out statutorily required and discretionary conditions. The mandatory conditions include:
- Not commit any crimes, pretty obvious, including possessing illegal drugs
- Perform community service and make restitution in felonies
- Submit to drug testing, unless suspended by the federal judge
- Keep the court informed of any change in financial circumstances
- Comply with sex offender registration, if applicable
- Computer limitations by sex offenders, if applicable
- Submit to DNA testing
Forms of Confinement
The Federal Sentencing Guidelines list four (4) forms of confinement, which may be imposed as part of probation. 1) community confinement; 2) home detention; 3) shock incarceration; and 4) intermittent confinement. Community confinement includes circumstances such as a halfway house or rehabilitation center. Home detention, as implied, is supervision from home with the ability to go to work, school, community service work, or personal needs. Intermittent confinement is periods of being in custody and out of custody. Shock incarceration is a boot camp, which was discontinued years ago.
In order to facilitate re-entry to the community, federal courts impose supervised release after confinement. Unless statutorily required federal judges have discretion to waive supervised release. Chapter Seven (7) of the Federal Sentencing Guidelines lays out the penalty for violating the conditions of probation or supervised release, which may include incarceration.
Federal criminal sentencing and the Federal Sentencing Guidelines are a highly technical area of criminal law. Federal judges strictly enforce the fast paced and detailed procedures. Federal prosecutors are hard lined highly experienced trial attorneys. Your chosen federal criminal defense attorney must be experienced with federal criminal procedure and be a skilled advocate. In order to intelligently decide the multiple issues you will face during the course of your federal criminal prosecution, you need a Fierce Advocate. You should contact an experienced federal criminal defense attorney as early as possible in your federal criminal prosecution. It is my hope this page has educated you on major issues in Federal Sentencing Guidelines.
Experience matters when your freedom or the freedom of a loved one is on the line. It is important to know the attorney you hire is a Fierce Advocate and has experience defending serious criminal cases. John Cannon, owner of CANNON & ASSOCIATES, PLLC, will personally work along-side you during the entire process, including preparing for and presenting your case at sentencing.
John has been honored by being identified as a Top 40 under 40 in Criminal Defense by the National Trial Lawyers Association. John has the experience you need and will bring it to bear in your case. Additionally, he has an outstanding record of reaching the best possible outcome for hundreds of clients accused of the wide variety of criminal charges, evidenced by receiving the highest possible AVVO rating – 10 (superb). Contact CANNON & ASSOCIATES to protect your freedom and Fight your Case. You may send an email inquiry, complete the contact form on our website, or call at 1(405) 657-2323.