Federal Sentencing Guidelines


SHORSTEIN, LASNETSKI, & GIHON
explains the Federal Sentencing Guidelines.


The Federal Sentencing Guidelines are extremely important in federal court.  Every citizen's federal sentence will be affected by the guidelines.  At the time of sentencing, the federal judge will determine what your guideline range is and then will determine whether to sentence you above, within, or below the guideline range.  Many federal judges adhere closely to that guideline range.  Many factors affect your determined guideline range.  An experienced attorney can often reduce your guidelines by challenging probation's determination of what they believe your guideline range to be.  If you have a federal criminal case, give us a call to discuss your guidelines. 

What are the Federal Sentencing Guidelines?

The Federal Sentencing Guideline Manual is maintained by the United States Sentencing Commission.  You can view and print out the guidelines at the USSG website.  The United States Sentencing Commission is an independent agency in the judicial branch with authority under 28 U.S.C. 994(a).  Although the guidelines are not binding on the court pursuant to Supreme Court decisions, they are advisory and most federal judges give them great weight.

How do the guidelines work?

Every criminal offense starts out with a specific offense level.  The more serious the charge, the higher the offense level.  That offense level can increase or decrease depending on certain factors.  For example, if you plead guilty, you will often get at least a 2 offense level reduction for acceptance of responsibility.  The offense level is listed on the Y axis of the Sentencing Table. 

Each defendant has a Criminal History Category.  The less your criminal history, the lower your criminal history category.  The Criminal History Category is listed on the X axis of the Sentencing Table. 

Example - You are charged with Document Fraud with an offense level of 6.  Because you pled guilty and accepted responsibility, you received a 2 level reduction and therefore are at an offense level of 4.  You have never been convicted of any offense before, so you are in a Criminal History Category of I.  On the sentencing table, your guideline range would be 0-6 months. 

You can view the Sentencing Table here

What is a base offense level?

Every federal offense has a corresponding base offense level.  To give you some context, the base offense level for First Degree Murder is 43.  A person charged with First Degree Murder who has no prior record would have a guideline sentence of life.  In contrast, a person charged with failure to appear as a material witness to a misdemeanor would have a base offense level of 4.  If that person had no prior criminal record and no other aggravating factors, the guideline sentence would be between 0 - 6 months.

The base offense level increases or decreases depending on certain factors.  For example, if a person "accepts responsibility" and enters a plea of guilty, they will typically get 2 or more levels down from the base offense level.  So, for example, in the failure to appear example above, the base offense level would decrease from 4 to 2. 

Where can I find my base offense level?

The base offense levels are listed throughout the Federal Sentencing Guideline Manual.  Appendix A of the manual lists each guideline that corresponds with the charged statute.  The base offense level will be listed under that particular guideline. 

What factors make a base offense level increase or decrease?

Each individual guideline has specific offense characteristics that will increase or decrease the base offense level.  You can find these specific offense characteristics in the specific guideline relating to the particular crime for which you are charged.

Example - Guideline 2B1.1 is a common guideline relating to theft and fraud offenses.  Specific offense characteristic increases in the base offense level relate to the amount of money taken, lost, damage, or intended to be taken lost, damaged, etc.  The typical base offense level is 6.  However, if the loss was more than $250,000 but equal to or less than $550,000, you would increase the base offense level by 10, making the adjusted offense level 16. 

What other adjustments are there to the base offense level?

After you determine the base offense level and apply specific offense characteristic adjustments, you then would apply further adjustments to the offense level.  Chapter 3 of the Federal Sentencing Guideline Manual deals with these adjustments.  Below are some of the more common adjustments:

Vulnerable Victim
    • Applies when an unusually vulnerable victim is the target of the criminal activity.
Hate Crime Motivation
    • Applies when the victim or property was targeted, including for disability or sexual orientation.
Official Victim
    • Applies if the victim is:
      • a government officer or employee, or
      • former government officer or employee, or
      • immediate family member of either, and
      • the offense of the conviction was motivated by such status.
Restraint of Victim
    • Applies if the victim was physically restrained in the course of the offense.
Role Enhancements
    • Organizers or leaders of criminal activity that involved 5 or more participants or was otherwise extensive
      • 4 level enhancement
    • Managers or supervisors and criminal activity involved 5 or more participants, or was otherwise extensive
      • 3 level enhancement
    • Organizer, leader, manager, or supervisor in any criminal activity other than described above
      • 2 level enhancement
    • Participant - any person who is criminally responsible for the commission of the offense, but need not be convicted
Mitigating Role Reductions
    • Minimal Participant
      • lack of knowledge or understanding of the scope and structure of the enterprise and of the activities of others is considered.
      • 4 level reduction
    • Minor Participant
      • any participant who is less culpable than most other participants, but whose role could not be described as minimal
      • 3 level reduction
Abuse of Position of Trust
    • Applies when the person abuses a position of trust in a manner that significantly facilitates the commission or concealment of an offense.
    • Examples
      • attorney embezzling client funds
      • bank executive fraudulent loan scheme
      • physician sexually abusing patient during exam
      • police officer using position to illegally acquire confidential information
      • postal worker who engages in theft or destruction of U.S. mail
Special Skill
    • Applies when the use of the special skill significantly facilitates the commission or concealment of the crime.
    • What is a special skill?
      • a skill not possessed by members of the general public, and
      • which usually requires substantial education, training, or licensing
      • examples - lawyers, accountants, pilots.
Using a Minor to Commit a Crime
    • Applies if the person uses or attempts to use a minor under the age of 18 to either commit or assist in avoiding detection or apprehension of an offense.
Obstruction of Justice
    • Applies when a person either:
      • willfully obstructs, impedes or attempts to obstruct or impede the administration of justice during the courses of an investigation, prosecution or sentencing of the instant offense, and
      • the obstructive conduct related to
        • the defendant's offense at conviction and any relevant conduct, or
        • a closely related offense. 
    • 2 level enhancement
Reckless Endangerment
    • Applies if the person recklessly creates a substantial risk of death or serious bodily harm to another person in the course of fleeing from a police officer.
Acceptance of Responsibility
    • Applies where the person clearly accepts responsibility
    • 2 level reduction
      • in some cases, a person will get a total 3 level reduction if the offense level is more than 16 and the person cooperated with authorities and timely entered a guilty plea. 
    • You will typically not get acceptance of responsibility reductions if you go to trial and are convicted.

How do I determine my Criminal History Category?

Once you determine your total offense level, the next step in the analysis is to determine your Criminal History Category.  Your Criminal History Category is determined by how many criminal history points you have.  Each prior criminal conviction is assessed a certain number of criminal history points. 

First - determine how many criminal history points you have:

Here are some general criminal history scoring rules*:
  • each prior sentence that exceeds one year and 1 month (13 months)
    • 3 criminal history points
  • each prior sentence of at least 60 days
    • 2 criminal history points
    • sentences imposed more than 10 years from start of instant offense not counted
  • each prior sentence not counted above
    • 1 criminal history point
    • can only receive a maximum of 4 criminal history points under this section
    • sentence more than 10 years from start of instant offense not counted
  • certain misdemeanor and criminal traffic convictions do not count in assessing points.
    • For a complete list, see Section4A1.2(c) of the Federal Sentencing Guidelines Manual
    • Some common examples are driving with suspended license, reckless driving, trespassing, disorderly conduct, prostitution, and leaving the scene of an accident. 

* The Federal Sentencing Guidelines are often amended, so these rules change periodically.  These are also simply general scoring rules to give you an idea of how the federal sentencing guidelines work.  There are other criminal sentences that will affect you scoring, so if you have any prior criminal history, consult with your lawyer about where you fall under the Criminal History Category Table and read Chapter Four of the Federal Sentencing Guideline Manual


Second - determine what Criminal History Category you are in.

Category I

0 -1 criminal history points

Category II

2 - 3 criminal history points

Category III

 4 -6 criminal history points

Category IV

7 - 9 criminal history points

Category V

10 - 12 criminal history points

Category VI

13 or more criminal history points


Now that I know my total offense level and criminal history category, what do I do now?

Once you have determined your total offense level and your criminal history category, you would consult the Sentencing Table.  The Offense Level is on the Y axis and the Criminal History Category is on the X axis.  The farther down the page and to the right you go, the higher the sentencing range.

Does the judge have to put me in jail or prison if my guidelines are higher than 0?

Not necessarily.  There are four zones on the Sentencing Table that relate to the possible sentences a judge can give.  Because the Sentencing Guidelines are advisory, the judge is not bound by these zones, but most judges adhere to them closely. 

Zone A - Zone A gives the judge the option to give you a fine, straight probation or imprisonment

Zone B - Zone B gives the judge the option to give you probation and home detention in lieu of imprisonment.

Zone C - gives the judge the option to substitute half of your term of imprisonment with home detention

Zone D - only option is imprisonment.

What if I have a minimum mandatory sentence?

If you have a minimum mandatory sentence in your case, the minimum mandatory sentence becomes the bottom of the guidelines. 

How does the judge determine what my sentencing guideline range is?

Although your attorney will compute the possible sentencing guideline range early in the case, your actual guideline range will not be determined until you are sentenced.  

The procedure for determining your guideline range starts with a probation officer completing a Presentence Investigation Report (PSR).  In addition to interviewing you, your family members and obtaining documentation to complete a narrative of your life and history, Probation will calculate what they believe the accurate guideline sentence should be and they will include it in the Presentence Investigation Report.  They will then provide that report to you, your attorney and the prosecutor.  If you object to their calculations (or anything else in the PSR), you would send them written objections.  If probation determines that you are right, they will change the guidelines.  If they stick to their determination, they will attach your objections and send a final PSR with your objections to the judge. 

At the sentencing hearing, the judge will ask if you have any objections to the PSR, or will note the written objections.  The government will have the burden of proving that an enhancement to the offense level applies.  The prosecutor and the defense attorney will argue about the appropriate guideline range. The judge will then make a final determination on the appropriate guideline range. 

Once the judge determines the guideline range, he or she is free to sentence you above, within, or below that guideline range.  However, they often give great deference to the guidelines.

If you have a pending or upcoming Federal Criminal case, and you want to discuss your possible Federal Sentencing Guidelines,

Call us now!

Shorstein, Lasnetski, & Gihon

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