As a leading federal criminal lawyer, I am often asked by clients at initial consultations, and throughout the process of representation, about the significance of the Federal Sentencing Guidelines. This is an important question for any federal criminal defendant. For the client who intends to plead guilty, he or she wants to know “how much time am I looking at.” This inquiry is also often posed by clients who have more familiarity with the federal criminal process in the form of “what’s my Guidelines range?” Even with regard to defendants who have no intention of pleading guilty, and who have every intention of proceeding to trial, this is still an important question. Among other things, they too want to know the risks and consequences of their decision to proceed to trial.
In short, the Federal Sentencing Guidelines represent a series of “rules” to be applied by federal court judges when handing down a sentence to a criminal defendant who has either been found guilty by way of a plea of guilty or plea agreement, or who has been found guilty by a jury or judge after a trial. The purpose of the Federal Sentencing Guidelines, in general, is to attempt to promote uniformity in sentencing across the nation and across all defendants – particularly those who have been charged with the same federal criminal offense.
The Federal Sentencing Guidelines, however, are merely that – guidelines. Federal court judges are not required to sentence a defendant to a sentence that is within the suggested Guidelines range. That said, federal court judges are required to both calculate what they believe to be the appropriate range within the Guidelines, and to consider what the Guidelines suggest as a sentence for the defendant – as one factor in fashioning the sentence for the defendant.
The two most significant factors in establishing what the appropriate suggested range is within the Guidelines for a particular defendant who is being sentenced are: 1) the Offense Level, and 2) the defendant’s Criminal History. Each and every federal criminal offense has an initial Offense Level that is set forth in the Guidelines. For example, a defendant charged with a count of wire fraud will have an initial, or Base Offense Level, of 7. That Offense Level can then be increased based upon a number of other factors, including the “loss amount” – i.e., in simple terms, the monetary amount associated with the fraud. The Offense Level can also be increased, sometimes substantially, based upon a great number of other factors that are set forth in the Guidelines. This blog will not address all of the various factors that can serve to increase a defendant’s Offense Level under the Guidelines. For example, one defendant whose wire fraud resulted in a minimal monetary loss to another might see his Offense Level not increase at all. Conversely, another defendant who committed the same offense of wire fraud, might see his Offense Level increase by 14 levels because the monetary loss amount was hundreds of thousands or millions of dollars.
With regard to the defendant’s Criminal History, the defendant is placed in a Criminal History category utilizing a system that assigns points to the defendant based upon his or her prior criminal convictions. That too is often a somewhat complex calculation because some prior convictions “count” towards those points, while others do not. Which ones count for Criminal History calculation purposes is not the subject of this post.
Once the federal court judge has determined the Offense Level and the Criminal History, the Guidelines suggest a range, set forth in terms of months, that correlates to those two factors. For example, 48 to 60 months. The judge does not have to sentence the defendant to a term of incarceration within that Guidelines range. Thus, unless there is a “mandatory minimum” associated with the charged offense, the judge can sentence the defendant to a term of imprisonment that is higher, or greatly lower, than the suggested Guidelines range – including no term of incarceration at all. Indeed, it is quite common for a federal court judge to sentence the defendant to a sentence that is less, or far less, than the suggested Guidelines range.
As one who regularly tries federal criminal cases to verdict before juries, the Guidelines are always significant, and far too often given oversized consideration by federal court judges. It often seems that, although the Guidelines are merely suggestive, they become the floor from which an attorney must argue to “get below.” On the other hand, judges routinely hand out below Guidelines sentences. In upcoming posts, Leonard Trial Lawyers, will address specific, recurring Guidelines issue. These posts will include, among other things, posts and discussions regarding the all important “3553 factors” that allow federal attorneys to argue almost anything in mitigation – in other words, in support of a lower term of imprisonment, or no term of imprisonment at all.
Written by Michael Leonard
Leonard Trial Lawyers
November 7, 2022