Federal Sentencing Guidelines

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The federal sentencing guidelines are rules that federal judges are required to consider when sentencing someone who has been convicted of a crime. Intended to give federal judges fair and consistent sentencing ranges to consult when they are handing down a sentence, the guidelines are based on both the seriousness of the crime and the particular offender’s characteristics and criminal record.

The guidelines are not mandatory. (United States v. Booker, 543 U.S. 20 (2005).) But a judge who wants to impose a sentence that is different—whether it’s harsher or more lenient—from the one calculated by using the guidelines must explain the decision.

The United States Sentencing Commission

Federal sentencing guidelines are written by an independent agency called the U.S. Sentencing Commission, which is part of the judicial branch of the federal government. In addition to promulgating the guidelines, the commission advises the other branches of government on criminal policy matters and collects and analyzes crime and sentencing data.

How the Sentencing Guidelines Work

The guidelines assign most federal crimes to one of 43 “offense levels.”  Each offender is assigned to one of six “criminal history categories,” based upon the extent and recency of past criminal activity.

The point at which the offense level and criminal history category intersect on the Commission’s sentencing table determines an offender’s guideline range.  To provide flexibility, the top of each guideline range exceeds the bottom by six months or 25 percent (whichever is greater).  Judges are advised to choose a sentence from within the guideline range unless they identify a factor that the Sentencing Commission failed to consider that should result in a different sentence.

Offense Levels: How Serious Was the Crime?

The sentencing guidelines provide 43 levels of offense seriousness. The more serious the crime, the higher the offense level. For example, first-degree (premeditated) murder has a base offense level of 43. Burglary of a residence has a base offense level of 17.

The final offense level is determined by taking the base offense level and then adding or subtracting from it any specific offense characteristics and adjustments that apply.

Specific Offense Characteristics: Raising the Offense Level

In addition to base offense levels, each offense type typically carries with it a number of specific offense characteristics. These are factors that can increase or decrease the base offense level and ultimately affect the sentence an offender receives. A couple of examples:

  • The offense level for a house burglary starts at 17 and goes up based on how much property was stolen. If the burglary resulted in a loss of more than $2,500, one level is added; for a loss of more than $800,000, five levels are added.
  • One of the specific offense characteristics for robbery, which has a base offense level of 20, involves use of a firearm. If a firearm was displayed during the robbery, there is a five-level increase, bringing the level to 25; if a firearm was discharged during the robbery, there is a seven-level increase.

Adjustments: Raising or Lowering the Offense Level

Adjustments are factors that can apply to any offense and increase or decrease the offense level. They are categorized as victim-related adjustments, the offender’s role in the offense, and obstruction of justice. Examples include:

  • If the offender was a minimal participant in the offense, the offense level decreases by four levels.
  • If the offender knew that the victim was unusually vulnerable due to age or physical or mental condition, the offense level is increased by two levels.
  • If the offender obstructed justice, the offense level goes up two levels.

Multiple Count Adjustments

When someone is convicted on multiple counts, the sentencing guidelines provide instructions on how to achieve a “combined offense level.” These rules provide incremental punishment for significant additional criminal conduct. The most serious offense is used as a starting point. The other counts determine whether to and how much to increase the offense level.

Acceptance of Responsibility Adjustments

The final step in determining an offender’s offense level involves the offender’s acceptance of responsibility. The judge may decrease the offense level by two levels if, in the judge’s opinion, the offender accepted responsibility for the offense. In deciding whether to grant this deduction, judges can consider such factors as whether or not the offender:

  • truthfully admitted a role in the crime
  • made restitution before there was a guilty verdict, or
  • pled guilty.

If the offense level is 16 or more, the judge may derease the offense level by one additional level if the government makes a motion stating that the defendant's early guilty plea avoided using government and court resources for trial.

Criminal History

The second big element in the guidelines is the offender’s criminal record. The guidelines assign each offender to one of six criminal history categories based upon the length of his sentences for past crimes and how recently these crimes took place. Criminal History Category I is for those with the least serious criminal records and includes many first-time offenders. Offenders with lengthy criminal records are assigned to Category VI.

Determining the Guideline Range

The point at which the final offense level and the criminal history category intersect on the commission’s sentencing table determines the defendant’s sentencing guideline range.

An excerpt from the sentencing table is shown below. As you can see, an offender with a Criminal History Category of I and a final offense level of 20 would have a guideline range sentence of 33 to 41 months.

SENTENCING TABLE
(excerpt )
(in months of imprisonment )

Criminal History Category

Offense
Level

I

II

III

IV

V

VI

..

...

...

...

...

....

19

30-37

33-41

37-46

46-57

57-71

63-78

2 0

33-41

37-46

41-51

51-63

63-78

70-87

2 1

37-46

41-51

46-57

57-71

70-87

77-96

..

...

...

...

...

....

Departures from the Guidelines

The final step in the process a judge must follow is to decide whether there are aggravating or mitigating circumstances that the Sentencing Commission, when it formulated the guidelines, didn’t take into account or didn't take into account sufficiently. (18 U.S.C. § 3553(b).) A judge who determines that such an aggravating or mitigating circumstance exists may impose a sentence above or below the guideline range. When departing from the guidelines, however, the judge must state the reason in writing.

If the sentence is an upward departure, the offender may appeal the sentence; if it is a downward departure, the government may appeal. One special kind of departure is the “substantial assistance” departure. This downward departure may be granted if the offender has provided substantial assistance in the investigation or prosecution of another offender. A request for a lower sentence for substantial assistance must be made by the prosecution, but the judge decides whether to grant it and, if so, to what extent.

Finally, the judge can vary from the guidelines where the circumstances of the offender or the offense indicate that it would be unreasonable for the judge to sentence following the guidelines. When imposing a sentence based on a variance from the guidelines, the judge must state his or her reasons in writing.

For more information, see:

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