The Federal Sentencing Guidelines are guidelines that judges consider when determining an appropriate sentence for someone who has been convicted of a federal crime. The Guidelines use a combination of the severity of the crime and a person’s criminal history to calculate a suggested sentencing range.
In the past, federal judges were usually required to sentence a person somewhere within the range calculated by the Guidelines. Fortunately, over a decade ago, the Supreme Court held that the Guidelines are no longer mandatory. A federal judge now has the discretion to go below or above the guidelines if the judge thinks the guidelines are not reasonable in a particular case.
In the video above, Page Pate helps explain the Federal Sentencing Guidelines and how they might apply to a particular case. He also shows how we help our clients get a sentence that is substantially lower than the advisory guideline range in many cases.
Our firm has helped hundreds of clients obtain the lowest possible sentence in federal court. Although we are usually able to obtain the best results when we are involved in a case from the beginning, we have been able to step into a case after trial or a plea to help someone get a sentence that is significantly lower than the guideline range, and much better than their first lawyer told them to expect. We will work with the U.S. Probation Office to make sure the advisory sentencing guidelines are calculated in a way that benefits our client. We will then prepare for the sentencing hearing by finding witnesses and other evidence to support a departure or variance from the guideline range so that our client can receive the lowest possible sentence. At the sentencing hearing, we spend a lot of time educating the judge about our client’s background, family, work history and community involvement to show the judge that our client deserves a sentence that is below the Guideline range.
We have obtained probation for many of our clients in federal court, and have convinced judges to impose other alternatives to prison in the right case. We know that the Guidelines are incredibly important, but they are only the starting point to a fair and reasonable sentence.
Most of the work we do at this firm is representing people in serious federal criminal cases. So, in most of those cases, we have to address the Federal Sentencing Guidelines. And almost all of my clients and the families of those clients want to better understand the sentencing guidelines. They wanna know what sort of sentence they should expect in a federal criminal case.
Now, the sentencing guidelines are no longer mandatory. So, the judge does not have to follow the guidelines when imposing a sentence, but the judge does have to calculate those guidelines. And in many cases, whatever the guidelines say is pretty much what the sentence is going to be unless you can convince the judge to go below those guidelines and we’ve done that many times. But let’s talk a little bit about the Federal Sentencing Guidelines. Let’s talk about how they work.
Now, now to apply the guidelines to a particular case they’re basically two parts. The first part is the offense level, and that’s basically a number that’s assigned to the type of crime that’s involved in the case. And you go in the guidelines book and you look in Chapter 2, which has a list of all the different offenses under federal law. And for most of the offenses, there’s a specific guideline section assigned to it.
Drugs, for instance, that’s 2D 1.1. The 2 means Chapter 2. D is a subsection of that chapter. And, of course, 1 is a part of 2D. And you look under 2D 1.1 and you find a variety of different base offense levels. And mostly in a drug case, the base offense level is going to depend on the amount of drugs involved in the case. If it’s a fraud case, you’re looking at section 2B 1.1. And again, you’re gonna look at a number of different offense levels depending upon the seriousness of the case.
Drug case, it’s the amount of drugs, in a fraud case, it’s the amount of money. And that’s gonna determine what that offense level is. Now, after you determine the offense level, you have to consider whether specific adjustments apply to that offense level. Sometimes there’s an enhancement that goes up. Sometimes there’s a reduction that goes below that base offense level. A good example of this is if it’s a drug case and the person had a firearm, you’re going to increase the base offense level by two points.
Let’s say the person in a drug case it’s their first offense and they qualify for the safety valve treatment. Well, you’re gonna reduce the base offense level by two points. Similar situation if you have a leader in the criminal organization versus someone who played a minor role, you can increase the offense level or you can reduce it. But at the end of the day, you’re gonna come up with a number for the offense level for that particular crime.
The next thing you have to do in every federal criminal case is determine the criminal history category for the person being sentenced. Now, it’s easy if you have no prior criminal convictions, it’s a zero and you’re in category one, but there are numbers assigned to prior convictions based on the severity of that prior offense and also when it occurred.
So you could get one point, say for a simple misdemeanor that occurred several years ago, or you could get three points for a felony offense where the person had to serve time in custody. Whatever the crime is, you add up those numbers to come up with the criminal history category.
And once you have the offense level, you’ve considered specific adjustments, and you’ve determined the criminal history category, then you go to the chart to determine the sentencing guideline range. In determining the sentencing guideline range that’s going to apply in the case, you use the sentencing table that’s in the Federal Sentencing Guidelines manual. You can also find this table online by looking up the United States Sentencing Commission.
And the table is fairly easy to read. The top horizontal part describes the criminal history category. And you can see it ranges from Roman numeral I all the way to Roman numeral VI. And it’s based on the number of criminal history points a person has. If you have no prior convictions, you’re gonna have zero points and that’s gonna put you in category I. And then you count up the points for prior convictions all the way to someone who has 13 or more. And obviously, that’s a lengthy and serious criminal history and that would put that person in category VI.
Now, as you can see, there’s also a vertical column that lists the offense level. And that’s the first part of the calculations that we talked about earlier. What is the specific crime involved in the case and what enhancements or reductions did we apply? The base offense level, then you consider the adjustments, and you end up with the adjusted offense level and it’s gonna be that number in that left-hand vertical column. All the way from offense level 1, which would be the least serious offense possible to offense level 43, which would be the most serious sentence possible.
So let’s say we have a case where the offense level works out to be 15. So you would come down on the left-hand column till you get to number 15. And then we have to consider the person’s criminal history. Let’s say the person has say one prior felony case, which results in two criminal history points. And so we look at the top and that puts us in category, Roman numeral II.
So then you look down at 15 up at II, and you can see there’s a range of 21 to 27, and that’s months in custody. So that’s how you determine your sentencing range under the Federal Sentencing Guidelines. The judge is then advised by the guidelines to sentence that person to between 21 and 27 months in custody.
But you don’t stop at calculating the sentencing guidelines because they’re no longer mandatory in federal court. Once the judge has calculated those guidelines, that judge can still sentence that person to less time than the guidelines suggest by considering other sentencing factors. And there are a number of different things that the judge can consider and that your lawyer needs to make sure are presented to the court well in advance of the sentencing hearing.
These other sentencing factors include personal characteristics about the defendant. What’s the person’s background? What’s their character like? What have they done in the community? How have they helped their family? What’s their employment history? We wanna talk about the good things that this person has done, or the circumstances that may have led him or her into this criminal offense.
You gotta tell the judge the good stuff. And the judge is not gonna know about it from the presentence report, not gonna know about it from calculating the guidelines, it has to be presented prior to the sentencing hearing by the lawyer who’s representing the person.
Another sentencing factor the judge is gonna consider is how much deterrence do we need in this case? Is this a person that we need to sentence to a lengthy period of time in prison to send a message so that he or she won’t do it again? Or is this somebody who has accepted responsibility, tried to change their life, and is not someone who’s gonna need a lengthy prison sentence just to make sure they don’t commit another crime?
And, of course, the nature and circumstances of the offense itself, that matters a great deal too. The guidelines are just a number. We need to tell the judge about this particular case. The circumstances of how our client got involved. Why they may not have played a significant role. They may have been confused about the situation. There may have been economic emergencies or conditions that required some drastic action. We don’t know what it is obviously, it’s different in every case, but we need to explore the specific factors of that offense, and let the judge know how it may be different from the traditional case that’s considered in the guidelines.
Another way to get a sentence below the adjusted sentencing guideline range would be cooperation with the government. There is a provision both in the guidelines and in federal law, for the government to recommend to the judge, that you reduce the defendant’s sentence based on his substantial assistance to the government.
And that basically means cooperating in the investigation, telling the government what you know about this case, about other people who may be involved. And if you do it in a way that helps the government, they will reward you for that. And the judge can give you a sentence, or will almost certainly give you a sentence below what’s suggested by the guidelines.
Now, there are also possible alternatives to prison, even after the guidelines have been calculated. And let’s say the judge is looking at a recommended range of 21 to 27 months. The judge does not have to send that person to prison for 21 to 27 months. There are options of house arrest, community confinement, which is like a halfway house, probation. All of those options are available even if the guidelines say the person’s going to get 24, 26, 27 months in custody. That doesn’t necessarily mean prison time.
So the Federal Sentencing Guidelines can be complicated, but it really involves following just those two basic things, the offense level, the criminal history category. And once those are calculated, then trying to find a way to get a lower sentence based on the other sentencing factors.