Federal Criminal Sentencing Outline
Sentencing Guidelines
Sentencing guidelines are computed using the United States Sentencing Commission Guidelines Manual (see PDF file below). Although these guidelines are advisory rather than mandatory, they serve as the starting point and primary benchmark throughout the federal sentencing procedure in every District Court nationwide. Over the past few decades, the average sentence imposed for all federal cases has closely tracked the average guideline range. Accordingly, it is crucial for lawyers specializing in federal criminal law to master the Sentencing Guidelines, just as it is for defendants facing criminal sentencing in any federal court.
Relevant Conduct
Relevant conduct is a defendant’s actual conduct— not simply the conduct for which he or she was convicted—that may be considered, along with the defendant’s conduct reflected in the count or counts of conviction, to calculate his or her sentencing guideline range. Thus, a much broader range of facts is considered at sentencing than a plea deal might lead one to believe. Real offense conduct — and certain types of conduct of coconspirators, whether or not charged as such — before, during, and after the commission of the offense or offenses of conviction is considered by federal courts. For most types of federal offenses, relevant conduct also includes other offenses committed as part of the same course of conduct or common scheme or plan.
The evidentiary standard in most courts for relevant conduct is rather low: preponderance of the evidence using information that has sufficient indicia of reliability. Such conduct need not necessarily have been formally charged, proved at a trial, nor admitted by the defendant in a guilty plea. This means that once a defendant is found guilty or pleads guilty to any federal offense, a federal court might increase the sentence for this defendant under the Guidelines for any related allegations that a US Attorney proves under a more likely than not standard or > 50% standard.
Moreover, federal law holds that a federal judge can consider any information concerning the background, character, and conduct of a person convicted of a federal offense in determining a sentence, without limitation.
There are constitutional arguments that good attorneys can make to dissuade judges from considering acquitted conduct or unindicted charges. Make sure to speak to your lawyer about defending from the use or consideration of certain “relevant conduct” at sentencing.
Aggravating and Mitigating Guidelines Factors
The sentencing guideline range may receive an aggravating enhancement or a mitigating decrease based on outlined factors. For example, a leadership role in a criminal conspiracy might quality for a 4-point increase, while minimal participation might qualify for a 4-point reduction. Acceptance of responsibility, meaning pleading guilty and letting the government avoid a trial, results in a 2-3 point decrease.
Sentence Range
The sentence range is derived from computing the base offense level, together with any relevant aggravating and mitigating adjustments, and cross referencing that with the appropriate criminal history range.
Federal Sentencing Considerations
Federal courts consider seven factors at sentencing:
(1) the nature and circumstances of the offense and the history and characteristics of the defendant;
(2) the need for the sentence imposed to reflect the four primary purposes of sentencing, i.e., retribution, deterrence, incapacitation, and rehabilitation;
(3) the kinds of sentences available (e.g., whether probation is prohibited or a mandatory minimum term of imprisonment is required by statute);
(4) the sentencing range established through application of the sentencing guidelines and the types of sentences available under the guidelines;
(5) any relevant “policy statements” promulgated by the Commission;
(6) the need to avoid unwarranted sentencing disparities among defendants with similar records who
have been found guilty of similar conduct; and
(7) the need to provide restitution to any victims of the offense.
The district court must impost a sentence that is “sufficient, but not greater than necessary” to accomplish the goals of sentencing.
Guidelines Departures and Variances
The courts consider a wide-range of personal characteristics of the defendant to determine whether a downward or upward departure is warranted. “In determining the type of sentence to impose, the sentencing judge should consider the nature and seriousness of the conduct, the statutory purposes of sentencing, and the pertinent offender characteristics.” A large variety of factors, from age to mental health to employment to criminal history, may be relevant. A defendant’s refusal to assist authorities in the investigation of other persons, however, may not be considered as an aggravating sentencing factor.
Federal Penalties
Federal penalties can include incarceration, supervised release, probation, restitution, fines, etc. Maximum penalties for each offense depend on the offense classification.
Sentencing classification of federal offenses
A federal offense that is not specifically classified by a letter grade in the section defining it, is classified if the maximum term of imprisonment authorized is—
(1) life imprisonment, or if the maximum penalty is death, as a Class A felony;
(2) twenty-five years or more, as a Class B felony;
(3) less than twenty-five years but ten or more years, as a Class C felony;
(4) less than ten years but five or more years, as a Class D felony;
(5) less than five years but more than one year, as a Class E felony;
(6) one year or less but more than six months, as a Class A misdemeanor;
(7) six months or less but more than thirty days, as a Class B misdemeanor;
(8) thirty days or less but more than five days, as a Class C misdemeanor; or
(9) five days or less, or if no imprisonment is authorized, as an infraction.
Term of Supervised Release
Except as otherwise provided, the authorized terms of supervised release are—
(1) for a Class A or Class B felony, not more than five years;
(2) for a Class C or Class D felony, not more than three years; and
(3) for a Class E felony, or for a misdemeanor (other than a petty offense), not more than one year.
Sentencing Guideline §5D1.1 – IMPOSITION OF A TERM OF SUPERVISED RELEASE
(a) The court shall order a term of supervised release to follow imprisonment—
(1) when required by statute (see 18 U.S.C. § 3583(a)); or
(2) except as provided in subsection (c), when a sentence of imprisonment of more than one year is imposed.
(b) The court may order a term of supervised release to follow imprisonment in any other case. See 18 U.S.C. § 3583(a).
(c) The court ordinarily should not impose a term of supervised release in a case in which supervised release is not required by statute and the defendant is a deportable alien who likely will be deported after imprisonment.
Commentary
Application Notes:
1. Application of Subsection (a).—Under subsection (a), the court is required to impose a term of supervised release to follow imprisonment when supervised release is required by statute or, except as provided in subsection (c), when a sentence of imprisonment of more than one year is imposed. The court may depart from this guideline and not impose a term of supervised release if supervised release is not required by statute and the court determines, after considering the factors set forth in Note 3, that supervised release is not necessary.
2. Application of Subsection (b).—Under subsection (b), the court may impose a term of supervised release to follow a term of imprisonment in any other case, after considering the factors set forth in Note 3.
3. Factors to Be Considered.—
(A) Statutory Factors.—In determining whether to impose a term of supervised release, the court is required by statute to consider, among other factors:
(i) the nature and circumstances of the offense and the history and characteristics of the defendant;
(ii) the need to afford adequate deterrence to criminal conduct, to protect the public from further crimes of the defendant, and to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner;
(iii) the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct; and
(iv) the need to provide restitution to any victims of the offense.
See 18 U.S.C. § 3583(c).
(B) Criminal History.—The court should give particular consideration to the defendant’s criminal history (which is one aspect of the “history and characteristics of the defendant” in subparagraph (A)(i), above). In general, the more serious the defendant’s criminal history, the greater the need for supervised release.
(C) Substance Abuse.—In a case in which a defendant sentenced to imprisonment is an abuser of controlled substances or alcohol, it is highly recommended that a term of supervised release also be imposed. See §5H1.4 (Physical Condition, Including Drug or Alcohol Dependence or Abuse; Gambling Addiction).
(D) Domestic Violence.—If the defendant is convicted for the first time of a domestic violence crime as defined in 18 U.S.C. § 3561(b), a term of supervised release is required by statute. See 18 U.S.C. § 3583(a). Such a defendant is also required by statute to attend an approved rehabilitation program, if available within a 50-mile radius of the legal residence of the defendant. See 18 U.S.C. § 3583(d); §5D1.3(a)(3). In any other case involving domestic violence or stalking in which the defendant is sentenced to imprisonment, it is highly recommended that a term of supervised release also be imposed.
4. Community Confinement or Home Detention Following Imprisonment.—A term of supervised release must be imposed if the court wishes to impose a “split sentence” under which the defendant serves a term of imprisonment followed by a period of community confinement or home detention pursuant to subsection (c)(2) or (d)(2) of §5C1.1 (Imposition of a Term of Imprisonment). In such a case, the period of community confinement or home detention is imposed as a condition of supervised release.
5. Application of Subsection (c).—In a case in which the defendant is a deportable alien specified in subsection (c) and supervised release is not required by statute, the court ordinarily should not impose a term of supervised release. Unless such a defendant legally returns to the United States, supervised release is unnecessary. If such a defendant illegally returns to the United States, the need to afford adequate deterrence and protect the public ordinarily is adequately served by a new prosecution. The court should, however, consider imposing a term of supervised release on such a defendant if the court determines it would provide an added measure of deterrence and protection based on the facts and circumstances of a particular case.
Maximum federal fines
An individual who has been found guilty of an offense may be fined not more than the greatest of—
(1) the amount specified in the law setting forth the offense;
(2) the applicable amount under subsection (d) of this section;
(3) for a felony, not more than $250,000;
(4) for a misdemeanor resulting in death, not more than $250,000;
(5) for a Class A misdemeanor that does not result in death, not more than $100,000;
(6) for a Class B or C misdemeanor that does not result in death, not more than $5,000; or
(7) for an infraction, not more than $5,000.
Sentence of federal probation
The authorized terms of probation for federal offenses are—
(1) for a felony, not less than one nor more than five years;
(2) for a misdemeanor, not more than five years; and
(3) for an infraction, not more than one year.
18 USC § 1355 – IMPOSITION OF A SENTENCE
A federal judge will consider the following factors in determining the appropriate penalty upon conviction of a federal criminal offense. All federal offenses are subject to review of these elements for determination of a sentence.
(a) FACTORS TO BE CONSIDERED IN IMPOSING A SENTENCE
The court shall impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth in paragraph (2) of this subsection. The court, in determining the particular sentence to be imposed, shall consider—
(1) the nature and circumstances of the offense and the history and characteristics of the defendant;
(2) the need for the sentence imposed—
(A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense;
(B) to afford adequate deterrence to criminal conduct;
(C) to protect the public from further crimes of the defendant; and
(D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner;
(3) the kinds of sentences available;
(4) the kinds of sentence and the sentencing range established for—
(A) the applicable category of offense committed by the applicable category of defendant as set forth in the guidelines—
(i) issued by the Sentencing Commission pursuant to section 994(a)(1) of title 28, United States Code, subject to any amendments made to such guidelines by act of Congress (regardless of whether such amendments have yet to be incorporated by the Sentencing Commission into amendments issued under section 994(p) of title 28); and
(ii) that, except as provided in section 3742(g), are in effect on the date the defendant is sentenced; or
(B) in the case of a violation of probation or supervised release, the applicable guidelines or policy statements issued by the Sentencing Commission pursuant to section 994(a)(3) of title 28, United States Code, taking into account any amendments made to such guidelines or policy statements by act of Congress (regardless of whether such amendments have yet to be incorporated by the Sentencing Commission into amendments issued under section 994(p) of title 28);
(5) any pertinent policy statement—
(A) issued by the Sentencing Commission pursuant to section 994(a)(2) of title 28, United States Code , subject to any amendments made to such policy statement by act of Congress (regardless of whether such amendments have yet to be incorporated by the Sentencing Commission into amendments issued under section 994(p) of title 28); and
(B) that, except as provided in section 3742(g), is in effect on the date the defendant is sentenced.
(6) the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct; and
(7) the need to provide restitution to any victims of the offense.
(b) APPLICATION OF GUIDELINES IN IMPOSING A SENTENCE
(1) IN GENERAL
Except as provided in paragraph (2), the court shall impose a sentence of the kind, and within the range, referred to in subsection (a)(4) unless the court finds that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described. In determining whether a circumstance was adequately taken into consideration, the court shall consider only the sentencing guidelines, policy statements, and official commentary of the Sentencing Commission. In the absence of an applicable sentencing guideline, the court shall impose an appropriate sentence, having due regard for the purposes set forth in subsection (a)(2). In the absence of an applicable sentencing guideline in the case of an offense other than a petty offense, the court shall also have due regard for the relationship of the sentence imposed to sentences prescribed by guidelines applicable to similar offenses and offenders, and to the applicable policy statements of the Sentencing Commission.
(2) CHILD CRIMES AND SEXUAL OFFENSES
(A) SENTENCING
In sentencing a defendant convicted of an offense under section 1201 involving a minor victim, an offense under section 1591, or an offense under chapter 71, 109A, 110, or 117, the court shall impose a sentence of the kind, and within the range, referred to in subsection (a)(4) unless—
(i) the court finds that there exists an aggravating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence greater than that described;
(ii) the court finds that there exists a mitigating circumstance of a kind or to a degree, that—
(I) has been affirmatively and specifically identified as a permissible ground of downward departure in the sentencing guidelines or policy statements issued under section 994(a) of title 28, taking account of any amendments to such sentencing guidelines or policy statements by Congress;
(II) has not been taken into consideration by the Sentencing Commission in formulating the guidelines; and
(III) should result in a sentence different from that described; or
(iii) the court finds, on motion of the Government, that the defendant has provided substantial assistance in the investigation or prosecution of another person who has committed an offense and that this assistance established a mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence lower than that described.
In determining whether a circumstance was adequately taken into consideration, the court shall consider only the sentencing guidelines, policy statements, and official commentary of the Sentencing Commission, together with any amendments thereto by act of Congress. In the absence of an applicable sentencing guideline, the court shall impose an appropriate sentence, having due regard for the purposes set forth in subsection (a)(2). In the absence of an applicable sentencing guideline in the case of an offense other than a petty offense, the court shall also have due regard for the relationship of the sentence imposed to sentences prescribed by guidelines applicable to similar offenses and offenders, and to the applicable policy statements of the Sentencing Commission, together with any amendments to such guidelines or policy statements by act of Congress.
(c) STATEMENT OF REASONS FOR IMPOSING A SENTENCE
The court, at the time of sentencing, shall state in open court the reasons for its imposition of the particular sentence, and, if the sentence—
(1) is of the kind, and within the range, described in subsection (a)(4), and that range exceeds 24 months, the reason for imposing a sentence at a particular point within the range; or
(2) is not of the kind, or is outside the range, described in subsection (a)(4), the specific reason for the imposition of a sentence different from that described, which reasons must also be stated with specificity in a statement of reasons form issued under section 994(w)(1)(B) of title 28, except to the extent that the court relies upon statements received in camera in accordance with Federal Rule of Criminal Procedure 32. In the event that the court relies upon statements received in camera in accordance with Federal Rule of Criminal Procedure 32 the court shall state that such statement were so received and that it relied upon the content of such statements.
If the court does not order restitution, or orders only partial restitution, the court shall include in the statement the reason therefor. The court shall provide a transcription or other appropriate public record of the court’s statement of reasons, together with the order of judgement and commitment, to the Probation System and to the Sentencing Commission,,1 and, if the sentence includes a term of imprisonment, to the Bureau of Prisons.
(d) PRESENTENCE PROCEDURE FOR AN ORDER OF NOTICE
Prior to imposing an order of notice pursuant to section 3555, the court shall give notice to the defendant and the Government that it is considering imposing such an order. Upon motion of the defendant or the Government, or on its own motion, the court shall—
(1) permit the defendant and the Government to submit affidavits and written memoranda addressing matters relevant to the imposition of such an order;
(2) afford counsel an opportunity in open court to address orally the appropriateness of the imposition of such an order; and
(3) include in its statement of reasons pursuant to subsection (c) specific reasons underlying its determinations regarding the nature of such an order.
Upon motion of the defendant or the Government, or on its own motion, the court may in its discretion employ any additional procedures that it concludes will not unduly complicate or prolong the sentencing process.
(e) LIMITED AUTHORITY TO IMPOSE A SENTENCE BELOW A STATUTORY MINIMUM
Upon motion of the Government, the court shall have the authority to impose a sentence below a level established by statute as a minimum sentence so as to reflect a defendant’s substantial assistance in the investigation or prosecution of another person who has committed an offense. Such sentence shall be imposed in accordance with the guidelines and policy statements issued by the Sentencing Commission pursuant to section 994 of title 28, United States Code.
(f) LIMITATION ON APPLICABILITY OF STATUTORY MINIMUMS IN CERTAIN CASES
Notwithstanding any other provision of law, in the case of an offense under section 401, 404, or 406 of the Controlled Substances Act (21 U.S.C. 841, 844, 846), section 1010 or 1013 of the Controlled Substances Import and Export Act (21 U.S.C. 960, 963), or section 70503 or 70506 of title 46, the court shall impose a sentence pursuant to guidelines promulgated by the United States Sentencing Commission under section 994 of title 28 without regard to any statutory minimum sentence, if the court finds at sentencing, after the Government has been afforded the opportunity to make a recommendation, that—
(1) the defendant does not have—
(A) more than 4 criminal history points, excluding any criminal history points resulting from a 1-point offense, as determined under the sentencing guidelines;
(B) a prior 3-point offense, as determined under the sentencing guidelines; and
(C) a prior 2-point violent offense, as determined under the sentencing guidelines;
(2) the defendant did not use violence or credible threats of violence or possess a firearm or other dangerous weapon (or induce another participant to do so) in connection with the offense;
(3) the offense did not result in death or serious bodily injury to any person;
(4) the defendant was not an organizer, leader, manager, or supervisor of others in the offense, as determined under the sentencing guidelines and was not engaged in a continuing criminal enterprise, as defined in section 408 of the Controlled Substances Act; and
(5) not later than the time of the sentencing hearing, the defendant has truthfully provided to the Government all information and evidence the defendant has concerning the offense or offenses that were part of the same course of conduct or of a common scheme or plan, but the fact that the defendant has no relevant or useful other information to provide or that the Government is already aware of the information shall not preclude a determination by the court that the defendant has complied with this requirement.
(g) DEFINITION OF VIOLENT OFFENSE
As used in this section, the term “violent offense” means a crime of violence, as defined in section 16, that is punishable by imprisonment.
