Ah yes, the federal sentencing guidelines or just ‘Guidelines’ (IYKYK) – the heart of every federal criminal case. What are they? How do they work? Why do they exist? WTF? I could write in legalese, “The federal sentencing guidelines were promulgated from the Sentencing Commission which was created as part of the Sentencing Reform Act of 1984…” I’m already asleep, and I’m writing this. Instead, my thought is to explain the Guidelines the same way I do to clients. Hopefully after reading this you will have a good working knowledge of the who, what, where and, most importantly, the why.

Suppose you are charged as a Felon in Possession of a Weapon (or “he had a gun on his person” as law enforcement would say). If you possessed the gun in San Fransisco, then the case likely would be filed there (United States District Court for the Northern District of California). Say you possessed the gun, instead, in Pensacola, Florida (United States District Court for the Northern District of Florida), it would be the same CHARGE in both places. Yet, before the late 1980s, there was not a concise, uniform method by which people with the same charge were sentenced similarly. Without question states each have their own laws and treat certain crimes very differently from each other. Heck, even states that are next to each other can be wildly different in how they punish and prosecute gun or drug cases. However, since we are talking about federal charges, the act of being a felon possessing a gun (let’s assume the gun in California and the one in Florida are the same) is exactly the same law violation. Not only that, but each case is prosecuted by United States Attorneys who are all governed by the Department of Justice (part of the Executive branch of our government). Without any rules governing sentencing, people with similar backgrounds who committed the exact same federal offense could get wildly different sentences based solely on the location in which they were charged. Even if you are someone who believes criminals with guns should be prosecuted harshly, I think we all can agree that they should also be punished equally. Recently the maximum punishment for being a felon in possession of a gun increased from ten to fifteen years. When the Guidelines were created, the maximum was ten. Just to make our example as simple as we can, let’s assume both of our defendants have one prior felony conviction for stealing and then each are caught with a loaded pistol. We would assume that if both plead guilty, barring something else that differentiated them, they should receive a somewhat similar sentence. Yet, before the Guidelines, it was not unheard of for the one in California to be looking at a sentence of probation to, say, 36 months (the feds always do everything in months) and the Pensacola defendant likely would get something closer to 86 months up to the maximum of 120.

While any judge or US Attorney reading this may disagree or think the disparity was never that great, it actually still exists today. Say someone gets indicted in the United States District Court for the Eastern District of Missouri (our court here in St. Louis, Missouri) but, by the time the indictment is returned, they now live in Arizona. Federal law requires someone arrested on a federal crime to be brought before a judge within a short period of time (it’s 72 hours, but I’m trying to avoid the technicalities). Let’s also assume that his family, upset that he is in jail, contacts and retains me to handle the case once he gets to St. Louis. Since there isn’t time to get him back here to see a judge, he will be taken before a judge in the district court closest to where he was arrested and his detention hearing (bond hearing) will be conducted in that court. So often judges along border states will view cases we in St. Louis consider to be very serious as not nearly so by comparison to what they normally see and, therefore, the client may be released from custody with an instruction to appear as required in St. Louis on the next scheduled court date. Yet, had that same person been arrested in St. Louis, the chance they would have been released on bond would be much less likely based on how severe the charge would be to judges and prosecutors in the Eastern District of Missouri. I’m not suggesting anyone is wrong here, just demonstrating that different regions of our country treat federal criminal matters wildly different from each other. Not only did it exist with sentencing, but it continues to exist with respect to bond, suppression hearings and other issues (topics for another day).

Returning to our gun example, in the 1980s Congress recognized the disparity between people who were similarly situated (another legal term that just means ‘basically the same’) and set out to fix it. They created the Sentencing Commission and tasked them with solving the problem. Their solution was to create the Federal Sentencing Guidelines. In a nutshell, the Guidelines seek to assign an ‘offense level’ to every type of federal crime and a ‘criminal history score’ to each federal defendant. Where those two numbers come together on a chart (yes, I said chart (see picture)), is the sentence the judge was REQUIRED to give if the person plead guilty or was found guilty after a trial.

When looking at the table you will notice numbers from one to 43 going down the left side of the page. These are known as the ‘base offense level’ and relate to the severity of the crime committed. For example, drug cases generally start around 12 and can go all the way down the page to 43 based on the type of drug and the quantity of it. There are some serious caveats and exceptions to all of this, but I’m trying to give a general idea of how it works. Going across the top from the left to the right is what we call the ‘Criminal History Score.’ This really can get complicated but, for now, just realize that the more times someone has been in trouble and convicted of a crime, this is the part that will make the sentence worse. Overall when sentencing someone, a judge will figure out the offense level and the criminal history score and then find where they meet. Those numbers are the range of available sentences (again, in months).

The Guidelines, believe it or not, were mandatory when they first were developed until around 2001. That means that during that period of time, a judge would find where someone fit on the chart and HAD TO give the person they were sentencing a sentence within that range. No cap! Finally, around 2001 and thereafter, the United States Supreme Court found the mandatory nature of the Guidelines unconstitutional. Their reason was that the Guidelines failed to take into consideration the personal characteristics of the person being sentenced (i.e. a drug addiction, a difficult childhood, etc.). A lot of litigation and appeals followed and now the law requires judges to find where a particular defendant fits within the chart as a starting point, but then the judge is supposed to consider personal issues relating to that person and explain the sentence they are giving based on how they considered all of the factors.

Presently, the law requires a sentencing judge to calculate the sentencing guideline range and take that into consideration. They then must look at the individual characteristics of the person they are sentencing (i.e. difficult childhood, history of abuse, drug/alcohol problems…) and create a sentence that is appropriate for that particular defendant. A lot of rules exist for judges in this situation; they must make sure the sentence they impose promotes respect for the law, treats similar people similarly, punishes, but is not too harsh, etc. If you are ever sentenced or if you go to watch a federal sentencing hearing, you will hear any judge in the United States explain the reason for the sentence they are handing down in great detail. The reason for this is, should the person attempt to appeal the sentence, if the judge did not explain everything that was taken into consideration when determining a sentence, it may provide grounds for the appeal to be successful…not likely but more possible.

It is important to note that a sentence within the Guidelines range is, in most instances, considered appropriate. That said, the advisory manner in which the Guidelines are applied these days allows for defense lawyers to detail specific events in their clients’ lives that would justify a better outcome. In other words, the Guidelines now form a starting point for a judge who then must tailor the final sentence to the specific person. A few years ago, I don’t think I’d have said the Guidelines were bussin’, but I’ve come to appreciate them. While absolutely basic these days, when mandatory, the Guidelines were completely sus. Now they truly help both sides (prosecutor and defense lawyer) to have a starting point for negotiations if the person charged wants to plead guilty.

Finally, I would be remiss if I didn’t address the elephant in the room. No, not a real elephant (it’s an expression – ask your grandparents). In this case, the elephant is that everyone with a pending case as well as their family are hyper focused on the Guidelines. The amount of times I have clients telling me what their total offense level is or their relative texting me that the Guidelines are unfair now that they’ve calculated the proper range, etc. Much like self-diagnosis of a malady via WebMD, absolute focus on the Guidelines and freaking out about them is extra. That’s because the lawyers can “change” the guideline range as part of their negotiation. Say a client gets charged in a drug conspiracy for distribution of kilogram quantities of methamphetamine (it happens). Federal law allows that person, should they proceed to trial and lose, to be held accountable for every gram everyone in the conspiracy distributed, not just their particular involvement (no cap). Clients tend to understand this situation and are crazy AF about it. However, during negotiations, the lawyers may (and often do) agree that, if the person decides to plead guilty, the parties will agree that only a fraction of the drugs were actually accountable to that particular person. Thus, while the initial guideline range may require a huge sentence or while the statutes (separate laws that can impose mandatory minimum sentences) could require a sentence of no less than 120 months, if the lawyers on the case agree, the charge may be amended such that the mandatory minimum goes lower or doesn’t apply at all. Not only that, but by agreement, the U.S. Attorney could change the charge to a ‘lesser included offense’ (fancy legal term) that alters the amount or type of drug the person will be responsible for having, therein lowering the guideline range. My point is that no one should be overly focused on the Sentencing Guidelines. When they were mandatory, yes, worrying about them was necessary. Now, however, they are just one part of what a judge must consider at sentencing and, quite often, just are used to form a starting point and nothing more.

Overall, not sure I’d call them bussin’ at this point, but they certainly should not make you cray cray either.

Jeffrey Goldfarb – 314Law.Com