Federal criminal law features sentencing guidelines. These guidelines have been drafted by the United States Sentencing Commission. These guidelines are not mandatory, and a federal district judge has the authority to depart upward or downward from the guidelines upon appropriate findings.
However, the guidelines are the most important tool courts and lawyers have in determining the ultimate sentence for someone convicted of a federal crime.
The guidelines first determine the base offense level. There are 43 base offense lives, the higher the level, the more serious the crime.
Second, the guidelines provide for a large number of “specific offense characteristics.” These are characteristics that are associated with the crime that can either increase, or decrease the base offense level. For instance, if a robbery included the display of a firearm, there may be a 5 level increase from the initial base offense level of 20, making the offense level 25.
Third, the guidelines provide for adjustments, which again can either increase or decrease the offense level. For instance, if the person was a minimal participant, the offense level can be decreased by 4 levels.
Fourth, the sentencing guidelines provide for Multiple Count Adjustments. The most serious offense serves as a starting point, and if there are multiple counts, the other counts help determine whether and by how much the offense level will be increased.
Fifth, the sentencing guidelines provide for Acceptance of Responsibility. A judge may determine whether the person made restitution, pled guilty, and accepted responsibility for the crime prior to sentencing. If so, the person may be eligible for a 2 level reduction, plus an additional 1 level reduction if the offense level was above 15 and the government motion indicates that the person pled guilty in a timely fashion.
The person’s sentence will be determined, in large part, by calculating the person’s offense level as described above, and then using the person’s prior criminal record to determine where he falls on the grid.
Many crimes – including drug crimes – include mandatory minimums. These statutory minimums mean that even if the person achieves an offense level which would have him serve less time than the statutory minimum states, he will serve the statutory minimum. In other words, the statutory minimums are floors.
There are limited ways to go below the statutory minimum which I will discuss at a later time.
In addition, a judge is permitted to depart from the guidelines altogether, although departure from the guidelines may limit the judge in terms of going below an offense’s statutory minimum.