Attorney At Law Robert Kurtz is a Tennessee federal crimes defense lawyer who defends those that have been charged with criminal charges, as well as other Personal Injury DUI Defense cases, across the State of Tennessee. We serve the following cities and counties, including but not limited to: • Alcoa • Anderson County • Athens • Blount County • Bradley County • Campbell County • Chattanooga • Claiborne County • Cleveland • Clinton • Cocke County • Cookeville • Crossville • Cumberland County • Dandridge • Englewood • Etowah • Gatlinburg • Grainger County • Greene County • Greeneville • Hamblen County • Hamilton County • Hancock County • Harriman • Hawkins County • Jefferson City • Jefferson County • Johnson City • Knoxville • Knox County • Lenoir City • Loudon County • Madisonville • Marion County • Maryville • Maynardville • McMinn County • Meigs County • Monroe County• Morgan County • Morristown • New Market • Newport • New Tazewell • Oak Ridge • Oliver Springs • Overton County • Pigeon Forge • Polk County • Putnam County • Rhea County • Roane County • Rutledge • Scott County • Sequatchie County • Sevier County • Sevierville • Sullivan County • Sweetwater • Tazewell • Tellico Plains • Unicoi County • Union County • Vonore • Wartburg • Washington County
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The Law Office of Robert R. Kurtz © 2012 All rights reserved.
Robert R. Kurtz
Knoxville, TN Federal Criminal Defense Lawyer
Attorney At Law
(865) 522-
Your defense should be an investment and not a gamble!
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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 decision.”
For many years, Federal Judges would rely on Pre-
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 Guidelines.
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.
Summary
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.
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