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THE U.S. SENTENCING GUIDELINES: WHAT ARE THEY AND HOW DO THEY WORK?

In most Federal Criminal cases, if a person is convicted, the sentence will be determined by using the United States Sentencing Guidelines.  The Guidelines were created by the U.S. Congress in the 1980s.  The Guidelines were created with the goal of achieving uniformity in Federal criminal sentences across the United States.

In other words, if you are convicted and sentenced for participating in a Federal drug conspiracy case in the Eastern District of Texas, your sentence should be substantially like that of a similarly situated person in another part of the country.

The Guidelines are formulaic and they operate to calcuate a prison term using several criteria.  Broadly speaking, these can be broken down into several categories.

1.  The nature of the crime

2.  The accused person’s criminal history

3. Certain aggravating or mitigating factors that may or may not be present in a particular case.

NATURE OF THE OFFENSE

The place to begin the analysis is the “base offense level”, which may be found in Chapter 2 of the United States Sentencing Guidelines Manual.  Each particular crime is assigned a base offense level.  In drug conspiracy cases for example, the base offense level increases with the amount of drugs for which the accused person is responsible. 

CRIMINAL HISTORY

The base offense level is only the first step.  In order to properly analyze a likely Guidelines sentence, one must also determine the so called Criminal History Category of the accused.  This may be found in Chapter 4 of the U.S. Sentencing Guidelines.  There are several categories of Criminal History.  At the bottom, Category I is for persons with no record or little record.  Each qualifying conviction earns a set number of points, which in turn corresponds with a particular criminal history category. The more points, the higher the Criminal History Category.  The highest Criminal History Category is Category VI.

 The range of sentence prescribed for a particular base offense level under the Guidelines increases with a corresponding increase in one’s Criminal History Category. Let me offer and example to illustrate the point.  If I have a case involving a Base offense Level of 15, I will be in the Guideline range of 18-24 months in prison if I am a Criminal History Category I.  Imagine instead that I have the very same case, but I am a Criminal History Category VI.  At this Criminal History Category the Guideline range for the same offense is 41-51 months.  The upper end of the Guideline range is literally more than doubled for the same exact crime. 

  For this reason, a proper and careful  assessment of one’s potential Criminal History Category is extremely important.  A misinterpretation of the Guidelines regarding Criminal History category, or the failure to fully and honestly discuss all of one’s criminal history can significantly impact the potential Guidelines sentence.

ADJUSTMENTS: 

Once the base offense level is determined, it is important to assess whether there are any role related, victim related, or acceptance of responsibility adjustments that may affect the base offense level.  The adjustments may be found in Chapter 3 of the U.S. Sentencing Guidelines Manual.

There are numerous adjustments that may impact the base offense level. Just a few are:

Organizer, manager, supervisor –  This is a frequently recurring role related adjustment that provides a 2 or 4 point enhancment, depending upon one’s alleged role in a criminal organization.

Obstruction of justice

Protected location

There are also some victim related adjustments that may increase the base offense level in a victim related cae.

Additionally, there are acceptance of responsibility adjustments for- as it sounds- acceptance of responsibility of one’s crime and role in the offense.  Typically the acceptance of responsibility adjustments may drive down the base offense level by as much as three points.  There also exists a “safety valve” in some cases which has the affect of further reducing the base offense level.  I will write about the function and operation of the safety valve in a future post.

One thing to bear in mind throughout the process in assessing the applicable Guideline sentence, is that the U.S. Sentencing Guidelines are now advisory and not mandatory.  Since 2005 when the U.S. Supreme Court decided U.S. v. Booker   the Guidelines are now advisory but not mandatory.  This means that the Court may impose a non guidelines sentence in certain situtations, so long as the sentence is “reasonable” and supported by the record.