Federal Sentencing Guidelines

The federal sentencing guidelines are rules that federal judges are required to consider when sentencing someone who has been convicted of a federal 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 advisory, not mandatory. But a judge who wants to impose a sentence that differs from the guidelines sentence—whether it's harsher or more lenient—must explain the rationale for doing so. (United States v. Booker, 543 U.S. 220 (2005).)

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 an "offense level" between one and 43. The higher the offense level is, the more severe the crime is. An individual offender is also assigned to one of six "criminal history categories," based upon the extent and recency of past criminal activity.

The offense levels and criminal history categories are placed on a sentencing table—with the offense levels listed on the vertical axis and the criminal history categories listed on the horizontal axis. The point at which the offense level and criminal history category intersect on the table determines an offender's sentencing guideline range. (An excerpt from the table can be found below.)

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?

As discussed above, the sentencing guidelines provide 43 levels of offense seriousness. Each offense is assigned a base 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 base offense level, however, is just a starting point. The final offense level is determined by taking the base offense level and then adding or subtracting from it any specific offense characteristics and general adjustments that apply (discussed next).

Specific Offense Characteristics: Raising the Offense Level

For specific crimes, the guidelines may outline particular factors that can increase (or, in a few instances, decrease) the base offense level. Called "specific offense characteristics," these factors will ultimately affect the sentence an offender receives. A couple of examples:

• The offense level for a residential burglary starts at 17 and goes up based on how much property was stolen. If the burglary resulted in a loss of more than $5,000, one level is added; for a loss of more than $1,500,000, five levels are added.
• One of the specific offense characteristics for robbery, which has a base offense level of 20, involves the use of a firearm. If the offender brandished (displayed) a firearm during the robbery, a five-level increase applies, bringing the level to 25.

Adjustments: Raising or Lowering the Offense Level

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

• If the crime was motivated by hate, the offense level increases by three levels.
• 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.
• If the offender clearly accepts responsibility, the offense level goes down two levels.
• If the offender is convicted on multiple counts, the most serious offense is used as a starting point and other counts may increase the offense level.

Criminal History

The second big element in the guidelines is the offender's criminal record. The guidelines assign offenders to one of six criminal history categories based upon the length of their 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.

Departures and Variances from the Guidelines

Next, a judge must decide whether aggravating or mitigating circumstances exist 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 the reasons in writing, after considering all of the sentencing factors taken as a whole (called section 3553(a) factors).

Imposing the Sentence

As a final guiding principle, the law provides that the judge should impose a sentence that is "sufficient, but not greater than necessary" to accomplish the goals of sentencing. (18 U.S.C. § 3553(a).)

For more information, see:

• United States Sentencing Commission
• Federal Sentencing Guidelines Manual and Appendices