Federal Sentencing Guidelines – Part 1

We have previously reviewed how cases are commenced in federal court and discussed the unique laws particular to many of the common federal crimes. Today, we will begin a series of blogs focused on the sentencing process in federal court.

Specifically, this blog examines the basics of the United States Sentencing Guidelines or “USSG”. Later blogs will address nuances created within the USSG as it relates to certain offenses, crimes, and criminal histories. This blog will first look at the history and evolution of the USSG, before explaining the mechanics of its application.

History and Evolution of USSG. The USSG has been around since the early 1980s. In the first version enacted by Congress, courts were required to sentence defendants in accordance with the USSG. 18 USCS § 3551. The mandate from Congress to standardize sentences and sentencing procedures in the federal courts was the rule of law until the early-2000s. The effect of this policy was to prevent sentencing judges from utilizing unrestrained discretion to shorten and/or lengthen sentences. For example, before the USSG, a judge sentencing a defendant in Detroit, Michigan, could look at a different set of factors and sentence a defendant for a shorter period of time than a judge would sentence the same defendant for the same offense in Tulsa, Oklahoma. The goal of the USSG was to address vastly different sentences for the same crimes in different parts of the country. Whether the USSG was successful is a difficult question to answer — its beauty may be in the eyes of the beholder.

According to the United States Sentencing Commission — the government agency responsible for updating the USSG – there have been over 800 amendments since the guidelines went into effect in 1987. https://www.ussc.gov/policymaking. Among the many significant amendments adopted by the USSG over the years have been: 1) a 2014 reduction by two-levels for drug trafficking; 2) stiffening penalties for those convicted of possession of a firearm; and 3) studying how technology has increased the presence of child pornography. Id. The United States Sentencing Commission is constantly working to mold the USSG based on various factors, including but not necessarily limited to political sentiment and technological changes.

The USSG was created to avoid unwarranted sentencing disparities, and to maintain flexibility to permit individualized sentences when warranted. In doing so, the USSG created a standardized process for federal courts to use when sentencing defendants. The USSG looks at the nature of the offense, and indexes it with the defendant’s criminal history to help sentencing judges create an appropriate sentence range. 18 USCS § 3553(b)(1).

Congress initially required sentencing courts to consider and apply the USSG. Despite the efforts of the United States Sentencing Commission to keep up with the times, the most significant change to the USSG occurred based on an evolving view of the Sixth Amendment by the United States Supreme Court. In 2005, SCOTUS held that the Sixth Amendment right to a jury trial made the USSG advisory and not mandatory. United States v. Booker, 543 U.S. 220, 226, 125 S. Ct. 738, 746, 160 L. Ed. 2d 621 (2005). Booker held: “The United States district courts, while not bound to apply the United States Sentencing Guidelines, must consult those Guidelines and take them into account when sentencing.” Id.

Following Booker, the remainder of the USSG stand intact, and are relied on by the federal district courts to calculate sentences to this day.

Offense Conduct. The first-step in applying the USSG requires the sentencing court to evaluate the offense and criminal conduct of the defendant. This requires the sentencing court to look for the sentencing offense, such as murder or assault, on the USSG to find out the proper base-level of points to assess for a given defendant. For example, a conviction for first-degree murder has a base-level of 43 under the USSG. USSG §2A1.1. By contrast, an assault against a person where no weapon was involved would only have a base-level of 4 under the USSG. USSG §2A2.3. (A more exhaustive list of the offense conduct is contained in Parts II and III of this blog). Establishing the base-level of points is step one if calculating a guideline sentence.

Adjustments. There are a number of adjustments that sentencing judges can consider when fashioning a guideline sentence under the USSG. For example, some adjustments will increase a defendant’s base-level. Things such as a leadership role, use of a firearm, hate crimes, terrorism, holding a victim against his/her will, serious human rights related offenses, obstruction, multiple counts, and role in the offense, generally provide increases in the base-level points to be assessed for a defendant.

Likewise, certain adjustments can benefit a defendant by decreasing his base-level. For example, If the defendant clearly demonstrates acceptance of responsibility for his offense, then he would be entitled to have his offense level reduced by two levels. USSG §3E1.1. Other such downward adjustments include a minor role, cooperation, and other mitigating factors. While there are certainly few instances in the USSG where defendants can receive a downward adjustment, they are important tools that can help a defendant receive a lower guideline range.

Criminal History. A defendant’s criminal history forms the second calculation essential to determining a guideline sentence under the USSG. Criminal history, together with offense conduct, once scored allow the sentencing court to use the USSG Sentencing Table to establish a guideline range.

A full examination of the issues surrounding criminal history will be made in a later blog. For now the most important factor to remember is that SCOTUS in Booker did not affect a sentencing court’s ability to increase a defendant’s sentence based on the criminal history of the defendant. Thus, the requirement of the USSG for a sentencing court to look at a defendant’s criminal history remains an important part of the USSG. USSG 1B1.1(a)(1)(6).

Formulating the Sentence. After scoring the defendant’s offense conduct, including making the appropriate adjustments, and scoring his/her criminal history, the sentencing court then looks to the USSG Sentencing Table to compute a guideline range. The current Sentencing Table in effect under the USSG is available online at: https://www.ussc.gov/guidelines/2018-guidelines-manual/annotated-2018-chapter-5

Other factors. The aforementioned process is how the federal district courts create a guideline range in a given case. Still, there are a number of other factors a district court must consider before passing sentence, as listed in 18 U.S.C. § 3553(a). Because Booker made the USSG advisory, many of these factors may dramatically affect the number of years a defendant may be required to serve in prison. 18 U.S.C. § 3553(a) requires the Court to consider the following factors before imposing a sentence:

1. the nature and circumstances of the offense and the history and characteristics of the defendant;
2. the need for the sentence imposed—
   1. to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense;
   2. to afford adequate deterrence to criminal conduct;
   3. to protect the public from further crimes of the defendant; and
   4. 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—
   1. the applicable category of offense committed by the applicable category of defendant as set forth in the guidelines—
      1. 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
      2. that, except as provided in section 3742(g) [18 USCS § 3742(g)], are in effect on the date the defendant is sentenced; or
   2. 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—
   1. 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
   2. that, except as provided in section 3742(g) [18 USCS § 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.Each of the factors contained in 18 USCS § 3553(a) is a double-edged sword. A single factor can positively or negatively affect a sentence in a dramatic way. For example, if the offender was a repeat offender or terrorized his victim in a way not required to complete the crime, that could have dramatic negative consequences on the sentence imposed. Similarly, an offender who shows remorse, rehabilitation, or pays all restitution might benefit from some leniency during sentencing. The impact of 18 USCS § 3553(a) is critical to the sentence every offender ultimately receives.

Besides these specific categories, a court may also consider granting a variance based on 3553(a) factors, or even an upward or downward departure from a defendant’s guideline range as calculated under the USSG. The fact the USSG is advisory, and not mandatory, empowers defendants to seek a sentence below that which is recommended. (I will discuss variances in greater detail in a later blog).

The End Result. After a sentencing court goes through all of the considerations in the USSG, it can then impose a sentence. One important thing to remember is that the USSG — like most issues in the law — relies on the unique facts of every individual case. The facts of the crime, the facts of a defendant’s criminal history, and just about any other fact material to the defendant or his/her offense, will ultimately decide how severe a punishment might be in a particular case.

How the facts of your case are presented can have an extraordinary impact on the sentence you might receive. To this end, there is no substitute for expert legal counsel. Give yourself the best chance to get a fair sentence in federal court — call Mark A. Satawa today.