Sentencing Guidelines

Congress Creates Unfair System 

In an attempt to make sentencing of persons convicted of federal crimes uniform throughout the United States, Congress established the U.S. Sentencing Commission in 1984. The Commission studied sentencing issues and created a standardized system for calculating federal sentences, commonly known the Federal Sentencing Guidelines.  The Guidelines were designed to reduce the discretion judges had over sentencing criminals, so that everyone who committed the same crime would receive approximately the same sentence (with few exceptions). (Unfortunately, it had the effect of giving important sentencing discretion to federal prosecutors, who could "work the system" based on their determination of what crimes would be charged in each case).

In November, 1987 the Guidelines went in to effect .  Judges were required to use the Guidelines when sentencing a defendant convicted of a crime committed on or after November 1, 1987.  Parole was abolished and most defendants served all of their sentences except for limited "good time" credits.

How the Guidelines Work

The sentencing process went as follows. First, the Judge was required to determine the defendant's offense level based on these (formerly) mandatory "Guidelines," which ranged from Offense Level 1 to Offense Level 43. The judge would start with the Base Offense Level which applied to the crime committed and then make any adjustments required by the Guidelines.

For example, in a drug case, the defendant might get an increase in his offense level because of the amount of the drugs involved or because he was a leader of a group of people who committed the crime or for various other reasons. Downward adjustments in the offense level are also available. An example might be a person in a large-scale narcotics investigation who was only involved in a small portion of the criminal enterprise and might therefore be awarded a downward adjustment for a minor role in the case.

After determining the Offense Level, the Judge then determined the extent and severity of the defendant's criminal history and assigned the defendant to a criminal history category from I to VI (one to six). If you look at the Sentencing Guidelines chart you will see that for each combination of offense level, from one to forty-three, and criminal history category, from I to VI, there will be two numbers in the box. Those numbers represent the range of months that the judge would ordinarily sentence defendant to serve.

For example, if a person had an Offense Level of 12 and a Criminal History Category II, his "guideline sentencing range" would be 12 to 18 months.  Remember that under the sentencing law which set up the Sentencing Guidelines, parole was abolished in the federal system, so a person would serve the time he was given with a possible reduction of 15% of the sentence for "good time" (for sentences of more than one year). There is no parole for cases committed after 1987.

All this would occur as part of the sentencing process. Well before sentencing, a probation officer prepares a Presentence Investigation Report which includes a proposed Guidelines computation. Both the prosecution and the defense have an opportunity to object and have a hearing on the objections, after which the Judge would decide any disputed issues.

At first, the Guidelines were fairly strictly followed. As time went on, there were judicial decisions giving more leeway to judges to fashion an appropriate sentence.

Supreme Court Limits Guidelines

In 2007, after a series of decisions that undermined the "mandatory" nature of the Guidelines, the Supreme Court concluded that the Guidelines, if mandatory, were unconstitutional.  In U.S. v. Gall and U.S. v. Kimbrough, the Court concluded that the Guidelines could only serve as one factor that the sentencing judge should consider in determining a defendant's sentence.

Sentencing courts are now required to consider the Guidelines but also to consider the factors in Title 18, United States Code Section 3553(a). That statute, or law, requires the Judge impose a sentence sufficient but not greater than necessary to satisfy the sentencing objectives set forth in the statute.

Although the Sentencing Guidelines are no longer Amandatory@ but rather Aadvisory,@ this change in the Guidelines' status has not eliminated the judge's = reliance on them to help them decide what sentence a particular defendant should receive (including whether the defendant should be placed on probation or sent to prison). Prosecutors regularly recommend that the court impose a "Guidelines" sentence.

Guideline Still Important

Because judges still heavily rely on the Sentencing Guidelines to determine the sentence and because the prosecutor on your case will likely recommend that the judge only consider the Sentencing Guidelines when determining your sentence, it is imperative that your attorney have experience dealing with the Guidelines themselves and that your attorney knows how to use the other statutory factors to persuade the Judge to impose a more favorable sentence.

As an example, Mr. Davis handled a case recently in which the government was seeking a sentence of 21 months in prison, based on the government's version of how the sentencing Guidelines came out. Mr. Davis persuaded the Court to impose, not 21 months in a federal prison, but rather 8 months of home incarceration with work release!