The United States Federal Sentencing Guidelines are rules that set out a uniform policy for sentencing individuals and organizations convicted of felonies and serious (Class A) misdemeanors in the United States federal courts system. The Guidelines do not apply to less serious misdemeanors.
United States v. Booker
Though the Federal Sentencing Guidelines were originally mandatory, after the Supreme Court’s 2005 decision in United States v. Booker, the Guidelines are now considered advisory only. That means federal judges, although must consider the guidelines, are not required to strictly adhere to the guidelines.
Guidelines basics
The Guidelines determine sentences based primarily on two factors:
The Offense Level – – – the conduct associated with the offense
The criminal history category – – – the defendant’s criminal history
Federal defense lawyers and judges use “The Sentencing Table in the Guidelines Manual” to find the relationship between these two factors. For each pairing of offense level and criminal history category, the Table specifies a sentencing range, in months, within which the court may sentence a defendant. For example, for a defendant convicted on an offense with a total offense level of 22 and a criminal history category of I, the Guidelines recommend a sentence of 41–51 months. If, however, a person with an extensive criminal history (Category VI) committed the same offense in the same manner in the same modern timeline and not during the older guideline periods, the Guidelines would recommend a sentence of 84–105 months.
Offense level
There are 43 offense levels. The offense level of a defendant is determined by looking up the offense in Chapter 2 and applying any applicable adjustments. The originally proposed sentencing guidelines had 360 levels, and there are proposals to substantially reduce the current number of offense levels.
Criminal history
There are six criminal history categories. Each category is associated with a range of criminal history points. Thus, for example, a defendant with 0 or 1 criminal history points would be in Criminal History Category I, while a defendant with 13 or more criminal history points would be in Criminal History Category VI. The criminal history points are calculated by adding 3 points for each prior sentence of imprisonment exceeding one year and one month; adding 2 points for each prior sentence of imprisonment of at least sixty days but not more than 13 months; adding 1 point for each prior sentence of less than sixty days; adding 2 points if the defendant committed the instant offense while under any criminal justice sentence, including probation, parole, supervised release, imprisonment, work release, or escape status; adding 2 points if the defendant committed the instant offense less than two years after release from imprisonment on a sentence of sixty days or more or while in imprisonment or escape status on such a sentence, except that if 2 points are added committing the offense while under a criminal justice sentence, adding only 1 point for this item; and adding 1 point for each prior sentence resulting from a conviction of a crime of violence that did not receive any points because such sentence was counted as a single sentence, up to a total of 3 points for this item.
The guidelines require “counting prior adult diversionary dispositions if they involved a judicial determination of guilt or an admission of guilt in open court. This reflects a policy that defendants who receive the benefit of a rehabilitative sentence and continue to commit crimes should not be treated with further leniency.”
Zones
There are four sentencing zones: A, B, C, and D. Zone A consists of sentencing ranges of 0–6 months. Zone B consists of sentencing ranges above Zone A but with a maximum penalty of no more than 15 months. Zone C consists of sentencing ranges above Zone B but whose minimum penalty is less than 12 months. Zone D consists of sentencing ranges above Zone C.
A defendant in Zone A is eligible for Federal Probation, and no term of imprisonment is required. Probation is also authorized if the applicable guideline range is in Zone B of the Sentencing Table and the court imposes a condition or combination of conditions requiring intermittent confinement, community confinement, or home detention as provided in U.S.S.G. § 5C1.1(c)(3) (2012), but at least one month of the sentence must be satisfied by imprisonment. A split sentence is authorized for defendants in Zone C. That is, Zone C defendants must serve at least half of their sentence in prison.
In 2010, the U.S. Sentencing Commission proposed expanding Zones B and C, in recognition of the fact that many offenders are sentenced to 12 months and 1 day in order to receive the benefit of good time under U.S. federal law.
Adjustments
Reductions in time to be served
A 2- or 3-level offense level decrease is typically granted for acceptance of responsibility if the defendant accepts a plea bargain. However, the decrease will not apply if the defendant demonstrates behavior, such as continued criminal activity, that is inconsistent with acceptance of responsibility.
Increase in time to be served
There are victim-related adjustments for hate crime motivation or vulnerable victims; official victims; restraint of victims; and terrorism. Adjustments can apply depending on the offender’s role in the offense, which can include an aggravating role, a mitigating role. Enhancements apply for abuse of a position of trust or use of a special skill, using a minor to commit a crime, and use of body armor or a firearm in drug trafficking crimes and crimes of violence.
In addition, there are enhancements related to obstruction of justice, including obstructing or impeding the administration of justice, reckless endangerment during flight, commission of an offense while on release, and false registration of a domain name.
Adjustments also apply in cases involving multiple counts.
Departures
Departures upward or downward from the guideline range are appropriate for cases that deviate from the heartland of cases.
Departures are allowed in cases involving substantial assistance to authorities in the investigation or prosecution of another person who has committed an offense. Indeed, the Sentencing Reform Act even allows a departure below the applicable statutory mandatory minimum in such cases. There is no penalty for refusal to assist authorities.
The Federal Rules of Criminal Procedure and U.S. Sentencing Guidelines require that the prosecution file a motion allowing the reduction. The court is not required to grant the reduction, and may decline to do so if it deems the information provided by the defendant to be untruthful, incomplete, unreliable, insignificant, not useful, or untimely. The Guidelines provide, “Substantial weight should be given to the government’s evaluation of the extent of the defendant’s assistance, particularly where the extent and value of the assistance are difficult to ascertain.”
Some defendants attempt to provide substantial assistance, but their assistance is ultimately deemed not to be substantial, which prevents them from getting the departure even if they made incriminating statements.
Other grounds for departure:
Death (§5K2.1)
If death resulted, the court may increase the sentence above the authorized guideline range. Loss of life does not automatically suggest a sentence at or near the statutory maximum. The sentencing judge must consider matters that would normally distinguish among levels of homicide, such as the defendant’s state of mind and the degree of planning or preparation. Other appropriate factors are whether multiple deaths resulted, and the means by which life was taken. The extent of the increase should depend on the dangerousness of the defendant’s conduct, the extent to which death or serious injury was intended or knowingly risked, and the extent to which the offense level for the offense of conviction, as determined by the other Chapter Two guidelines, already reflects the risk of personal injury. For example, a substantial increase may be appropriate if the death was intended or knowingly risked or if the underlying offense was one for which base offense levels do not reflect an allowance for the risk of personal injury, such as fraud.
Physical injury (§5K2.2)
If significant physical injury resulted, the court may increase the sentence above the authorized guideline range. The extent of the increase ordinarily should depend on the extent of the injury, the degree to which it may prove permanent, and the extent to which the injury was intended or knowingly risked. When the victim suffers a major, permanent disability and when such injury was intentionally inflicted, a substantial departure may be appropriate. If the injury is less serious or if the defendant (though criminally negligent) did not knowingly create the risk of harm, a less substantial departure would be indicated. In general, the same considerations apply as in §5K2.1.
Extreme psychological injury (§5K2.3)
If a victim or victims suffered psychological injury much more serious than that normally resulting from commission of the offense, the court may increase the sentence above the authorized guideline range. The extent of the increase ordinarily should depend on the severity of the psychological injury and the extent to which the injury was intended or knowingly risked. Normally, psychological injury would be sufficiently severe to warrant application of this adjustment only when there is a substantial impairment of the intellectual, psychological, emotional, or behavioral functioning of a victim, when the impairment is likely to be of an extended or continuous duration, and when the impairment manifests itself by physical or psychological symptoms or by changes in behavior patterns. The court should consider the extent to which such harm was likely, given the nature of the defendant’s conduct.
Abduction or unlawful restraint (§5K2.4)
If a person was abducted, taken hostage, or unlawfully restrained to facilitate commission of the offense or to facilitate the escape from the scene of the crime, the court may increase the sentence above the authorized guideline range.
Property damage or loss (§5K2.5)
If the offense caused property damage or loss does not considered within the guidelines, the court may increase the sentence above the authorized guideline range. The extent of the increase ordinarily should depend on the extent to which the harm was intended or knowingly risked and on the extent to which the harm to property is more serious than other harm caused or risked by the conduct relevant to the offense of conviction.
Weapons and dangerous instrumentalities (§5K2.6)
If a weapon or dangerous instrumentality was used or possessed in the commission of the offense the court may increase the sentence above the authorized guideline range. The extent of the increase ordinarily should depend on the dangerousness of the weapon, the manner in which it was used, and the extent to which its use endangered others. The discharge of a firearm might warrant a substantial sentence increase.
Disruption of governmental function (§5K2.7)
If the defendant’s conduct resulted in a significant disruption of a governmental function, the court may increase the sentence above the authorized guideline range to reflect the nature and extent of the disruption and the importance of the governmental function affected. Departure from the guidelines ordinarily would not be justified when the offense of conviction is an offense such as bribery or obstruction of justice; in such cases interference with a governmental function is inherent in the offense, and unless the circumstances are unusual the guidelines will reflect the appropriate punishment for such interference.
Extreme conduct (§5K2.8)
If the defendant’s conduct was unusually heinous, cruel, brutal, or degrading to the victim, the court may increase the sentence above the guideline range to reflect the nature of the conduct. Examples of extreme conduct include torture of a victim, gratuitous infliction of injury, or prolonging of pain or humiliation.
Criminal purpose (§5K2.9)
If the defendant committed the offense in order to facilitate or conceal the commission of another offense, the court may increase the sentence above the guideline range to reflect the actual seriousness of the defendant’s conduct.
Victim’s conduct (§5K2.10)
If the victim’s wrongful conduct contributed significantly to provoking the offense behavior, the court may reduce the sentence below the guideline range to reflect the nature and circumstances of the offense. In deciding whether a sentence reduction is warranted, and the extent of such reduction, the court should consider the following:
The size and strength of the victim, or other relevant physical characteristics, in comparison with those of the defendant.
The persistence of the victim’s conduct and any efforts by the defendant to prevent confrontation.
The danger reasonably perceived by the defendant, including the victim’s reputation for violence.
The danger actually presented to the defendant by the victim.
Any other relevant conduct by the victim that substantially contributed to the danger presented.
The proportionality and reasonableness of the defendant’s response to the victim’s provocation.
Victim misconduct ordinarily would not be sufficient to warrant application of this provision in the context of offenses under Chapter Two, Part A, Subpart 3 (Criminal Sexual Abuse). In addition, this provision usually would not be relevant in the context of non-violent offenses. There may, however, be unusual circumstances in which substantial victim misconduct would warrant a reduced penalty in the case of a non-violent offense. For example, an extended course of provocation and harassment might lead a defendant to steal or destroy property in retaliation.
Lesser harms (§5K2.11)
Sometimes, a defendant may commit a crime in order to avoid a perceived greater harm. In such instances, a reduced sentence may be appropriate, provided that the circumstances significantly diminish society’s interest in punishing the conduct, for example, in the case of a mercy killing. Where the interest in punishment or deterrence is not reduced, a reduction in sentence is not warranted. For example, providing defense secrets to a hostile power should receive no lesser punishment simply because the defendant believed that the government’s policies were misdirected. In other instances, conduct may not cause or threaten the harm or evil sought to be prevented by the law proscribing the offense at issue. For example, where a war veteran possessed a machine gun or grenade as a trophy, or a school teacher possessed controlled substances for display in a drug education program, a reduced sentence might be warranted.
Coercion and duress (§5K2.12
If the defendant committed the offense because of serious coercion, blackmail or duress, under circumstances not amounting to a complete defense, the court may depart downward. The extent of the decrease ordinarily should depend on the reasonableness of the defendant’s actions, on the proportionality of the defendant’s actions to the seriousness of coercion, blackmail, or duress involved, and on the extent to which the conduct would have been less harmful under the circumstances as the defendant believed them to be. Ordinarily coercion will be sufficiently serious to warrant departure only when it involves a threat of physical injury, substantial damage to property or similar injury resulting from the unlawful action of a third party or from a natural emergency. Notwithstanding this policy statement, personal financial difficulties and economic pressures upon a trade or business do not warrant a downward departure.
Diminished capacity (§5K2.13)
A downward departure may be warranted if (1) the defendant committed the offense while suffering from a significantly reduced mental capacity; and (2) the significantly reduced mental capacity contributed substantially to the commission of the offense. Similarly, if a departure is warranted under this policy statement, the extent of the departure should reflect the extent to which the reduced mental capacity contributed to the commission of the offense. However, the court may not depart below the applicable guideline range if (1) the significantly reduced mental capacity was caused by the voluntary use of drugs or other intoxicants; (2) the facts and circumstances of the defendant’s offense indicate a need to protect the public because the offense involved actual violence or a serious threat of violence; (3) the defendant’s criminal history indicates a need to incarcerate the defendant to protect the public; or (4) the defendant has been convicted of an offense under chapter 71, 109A, 110, or 117, of title 18, United States Code.
Public welfare (§5K2.14)
If national security, public health, or safety was significantly endangered, the court may depart upward to reflect the nature and circumstances of the offense.
Voluntary disclosure of offense (§5K2.16)
If the defendant voluntarily discloses to authorities the existence of, and accepts responsibility for, the offense prior to the discovery of such offense, and if such offense was unlikely to have been discovered otherwise, a downward departure may be warranted. For example, a downward departure under this section might be considered where a defendant, motivated by remorse, discloses an offense that otherwise would have remained undiscovered. This provision does not apply where the motivating factor is the defendant’s knowledge that discovery of the offense is likely or imminent, or where the defendant’s disclosure occurs in connection with the investigation or prosecution of the defendant for related conduct.
Semiautomatic firearms capable of accepting large capacity magazines (§5K2.17)
If the defendant possessed a semiautomatic firearm capable of accepting a large capacity magazine in connection with a crime of violence or controlled substance offense, an upward departure may be warranted. A semiautomatic firearm capable of accepting a large capacity magazine’ means a semiautomatic firearm that has the ability to fire many rounds without reloading because at the time of the offense (A) the firearm had attached to it a magazine or similar device that could accept more than 15 rounds of ammunition; or (B) a magazine or similar device that could accept more than 15 rounds of ammunition was in close proximity to the firearm. The extent of any increase should depend upon the degree to which the nature of the weapon increased the likelihood of death or injury in the circumstances of the particular case.
Violent street gangs (§5K2.18)
If the defendant is subject to an enhanced sentence under 18 U.S.C. § 521 (pertaining to criminal street gangs), an upward departure may be warranted. The purpose of this departure provision is to enhance the sentences of defendants who participate in groups, clubs, organizations, or associations that use violence to further their ends. It is to be noted that there may be cases in which 18 U.S.C. § 521 applies, but no violence is established. In such cases, it is expected that the guidelines will account adequately for the conduct and, consequently, this departure provision would not apply.
Source: wikipedia
