FEDERAL CRIMINAL DEFENSE Attorney – SENTENCING and the FEDERAL SENTENCING GUIDELINES
One of the most commonly asked questions for an individual facing Federal criminal
charges is “What am I facing if I am convicted of a Federal Criminal Offense?” That
is perhaps the single most important question a client can ask when facing criminal
charges in Federal Court. Like many things in Federal Court, the answer is complex.
Introduction to the Sentencing Guidelines
The Federal Sentencing Guidelines were created in 1987 for the purpose of making
Federal sentences more uniform across the United States. The Federal Sentencing
Guidelines dramatically affected the treatment of those accused of crimes in Federal
Court. The “Guidelines,” significantly limited the discretion of Federal Judges
in sentencing. Judges were bound by a series of rules that dictated the maximum
and minimum length of potential prison terms. The sentence range was determined
by a combination of the charges against the defendant and that individual’s past
criminal record. This formula produced a point score that translated into a sentencing
range. When the Guidelines were passed, the United States Sentencing Commission
noted “the difficulty of forseeing and capturing a single set of guidelines that
encompasses the vast range of human conduct potentially relevant to a sentencing
For many years, Federal Judges would rely on Pre-Sentence Investigation Reports prepared
by Federal Probation and Parole Officers to determine a Defendant’s prior Criminal
History, the severity of the crime of conviction, and any statutory ‘enhancements’
that may apply, based on the facts and circumstances of the offense.
Relying on that information, Federal Judges would then have to determine the “applicable
sentencing range” for the offense. The discretion of experienced and intelligent
Federal Judges was limited to selecting a number within the range of months provided
by the Federal Sentencing Grid as determined by application of the Federal Sentencing
Problems with Guideline Sentencing
Federal Criminal Defense Attorneys and Federal Judges recognized that the Guidelines
often produced harsh sentences that did not take into account the specific characteristics
of the individual Defendant. As a result, the Guidelines permitted a few “downward
departure” in exceptional circumstances.
The two primary types of downward departures are found under §§ 5K1.1 and 5K2.0 of
the Sentencing Guidelines. § 5K1.1 permits a court to depart downward due to a defendant’s
substantial assistance to the government and § 5K2.0 permits the court to depart
based on factors specifically listed in the guidelines or "unmentioned" factors which
are not adequately considered by the Guidelines.
§ 5K1.1 motions can only be filed by the prosecutor. The Court retains the discretion
to accept or deny government's motion. Providing substantial assistance, or what
is more commonly referred to as "cooperation," is encouraged in the guidelines. If
a court grants the government's § 5K1.1 motion, the court is free to depart from
a mandatory minimum sentence. In determining an appropriate sentence, the court
will evaluate (1) the significance and usefulness of the information, (2) the truthfulness
and reliability of the information, (3) the nature and extent of the defendant's
cooperation, (4) the risk to the defendant, and (5) the timeliness of the assistance.
Under § 5K2.0, a court may grant a motion for a downward departure if the case is
"unusual enough for it to fall outside the heartland of cases in the guidelines."
A departure may be warranted if the court finds that the defendant's behavior is
considered "aberrant conduct." The court may also depart downward if it finds that
the defendant has an excellent employment history.
Other grounds for downward departure include cases where the loss table overstates
amount of loss or seriousness of offense, age, situations where the sentence would
have an extraordinary effect on innocent family members, a defendant’s mental and
emotional condition, extraordinary military service and other similar factors.
Federal Guidelines No Longer Mandatory
In 2005, the United States Supreme Court restored some fairness in Federal Sentencing
when it declared that the Sentencing Guidelines were no longer mandatory. The court
“fixed” the problem by holding that the Guidelines were merely advisory and one of
many factors to consider when determing an appropriate sentence.
Federal Judges must now impose sentences that are “sufficient, but not greater than
necessary, to comply with the purposes set forth in paragraph (2) of this subsection.”
18 U.S.S.C. 3553. In making that determination, Federal Judges are required to
consider the nature and circumstances of the offense, the history and characteristics
of the defendant and “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.”
Federal Judges now have much more discretion to consider what qualifies as an appropriate
sentence in any given case. Most Federal Judges still require that the Defendant
present a substantial and compelling reason to impose a sentence below the Guideline
range. Many federal prosecutors attempt to limit a Defendant’s ability to ask for
a sentence below the Guideline range as a condition of any plea agreement.
It is crucial that your attorney be able to accurately calculate the applicable guideline
range early in the case.
Robert R. Kurtz is an experienced Federal Criminal Defense lawyer who is intimately
familiar with the Federal Sentencing Guidelines. Mr. Kurtz advises his Clients as
to the applicability of various potential sentence enhancements as well as how various
prior offenses may contribute to a client’s overall Criminal History Category. The
challenge for Federal defense attorneys, among others, is to uncover basis for downward
departures when they apply. Robert R. Kurtz has forged a reputation of being a skilled
and knowledgeable sentencing advocate.