“What will happen to me if I am convicted of a Federal Criminal Offense? ” That is perhaps the single most frequent — and possibly most important — question a client can ask when facing criminal charges in Federal Court. As an experienced federal criminal defense attorney, I have the answers you need to the critical questions you have. Contact me at my Kansas City law firm to discuss your situation.
For many years, the answer to the sentencing question was determined by essentially ‘mechanical’ adherence to the Federal Sentencing Guidelines. 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 refer to the Federal Sentencing Grid to determine the “applicable sentencing range” for the offense. Federal Judges’ discretion with regard to the ultimate sentence to be imposed was largely 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.
In theory, this highly mechanical, presumptive method of sentence determination at the Federal Level was intended to prevent wide disparity between the sentences imposed upon defendants convicted of the same or similar offenses in different jurisdictions. Specifically, Courts were trying to avoid situations wherein a defendant convicted of possessing a specific amount of drugs in one Federal Jurisdiction might receive a sentence of five years in prison. Yet, a defendant convicted of the same federal drug offense in a different Federal Jurisdiction might receive a sentence of only one to two years in prison, or even house arrest and probation
I practice in the Western District of Missouri, the District of Kansas and the District of Nebraska. I represent clients in Olathe, Lenexa, Merriam, Leawood, Mission, Shawnee and Johnson County, Kansas.
Problems with Guideline Sentencing
Over time, criminal defense lawyers argued and Federal Judges realized that strict adherence to pre-determined sentencing ranges often produced unusually harsh sentences that did not take into account the specific characteristics of the individual Defendant. In United States v. Harrington, 947 F.2d 956, 964 (D.C. Cir. 1991), the Court noted that the USSG “often produce harsh results that are patently unfair because they fail to take account of individual circumstances… ”
Similarly, in United States v. Molina, 963 F. Supp. 213, 215 (E.D.N.Y., 1997) the Court specifically mentioned “[t]he all-too-familiar harshness required by rigid federal Guidelines.” In United States v. Jaber, 362 F.Supp. 2d 365 (D.Mass. 2005) the Court noted that the Federal Sentencing Commission “simply took the average national sentences for a given offense and then increased them, without explanation, much less scientific studies… ” and further noted that “the Commission made no effort to implement the statutory purposes of sentencing.”
Federal Guidelines No Longer Mandatory
These concerns culminated in the pivotal decision in the Booker/FanFan cases. On January 12, 2005, in a 5-4 decision, the United States Supreme Court ruled that the Federal Sentencing Guidelines are in part unconstitutional because they direct Judges to increase sentences based on facts not found by a jury. The court “fixed” the problem by removing the part of the law that tells judges they must use the guidelines to impose sentences.
The courts must now consider, but are no longer required to impose, a sentence according to the guidelines. The sentencing guidelines are now “advisory.” However, the only exception to this rule involves Statutory Mandatory Minimum Sentences. Where the United States Congress has established a Mandatory Minimum Sentence upon conviction of a given offense, Federal Judges do not have the discretion to order a sentence below or less than the Statutory Mandatory Minimum.
Federal Sentencing Post-Booker
Pursuant to 18 U.S.C. §3553, Federal Judges are now required to impose a sentence that is “sufficient, but not greater than necessary, to comply with the purposes set forth in paragraph (2) of this subsection.” 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.”
This provides far greater discretion for a Federal Judge to consider whether or not a strict Guideline Sentence is appropriate in any given case. However, most Federal Judges view the Federal Sentencing Guidelines as providing a presumptively valid sentencing range. Generally, Federal Judges will require that the Defendant present some substantial and compelling reason to impose a sentence below the range provided by the Sentencing Guidelines. Moreover, in order to limit a Defendant’s ability to ask for a sentence below the Guideline range, many Federal Prosecutor’s will require a stipulation to application of the Guidelines by the Defendant as a condition of any plea agreement.
For these reasons, it is imperative that Defense Counsel be able to accurately calculate the applicable guideline range for their client prior to initiating plea negotiations with the U.S. Attorney in any federal criminal case.
“The Importance of Aggressive Federal Criminal Defense”.
How the Federal Sentencing Guidelines Work
The Federal Sentencing Grid works in much the same way as the Kansas Sentencing Grid. Though similar, the Federal Grid is divided into 43 distinct Offense Levels and 6 Criminal History Categories. The Severity Level of the crime of conviction is determined based on the nature of the offense and any applicable “enhancements” as defined by the Federal Sentencing Guidelines. For example, use of a weapon during the commission of an offense will result in an enhancement of additional points to the standard or “Base Level” for the offense.
The Defendant’s Criminal History is classified by Roman Numerals I-VI according to the Defendant’s Criminal History “Points.” The point on the Federal Sentencing Grid where the given Criminal History column and Offense Level row intersect provides a range of months that the Sentencing Judge may select from in imposing the final sentence.
Sample Sentence Calculation
As an example, consider client John Doe. John has been convicted of Possession of marijuana with intent to distribute. He was found to be in possession of exactly 6 kilograms of the drug at the time of his arrest. According to U.S.S.G. §2D1.1, the Base Offense Level for that quantity of marijuana is 14. Because John was found to be in possession of a firearm at the time of the arrest, he is subject to an enhancement of 2 levels, resulting in Level 16. John is no stranger to the Criminal Justice System and has 5 Criminal History Points placing him in Criminal History Category III. Offense Level 16 and Criminal History Category III intersect at a point on the Federal Sentencing Grid that provides for a sentencing range of 27-33 months in prison.
Now, imagine John was found to be in possession of 50 kilograms of marijuana. This increased quantity of marijuana provides for a Base Offense Level 20. Let’s assume John did not have a firearm in his possession at the time of the arrest, so there is no 2-point enhancement for possession of a weapon in connection with the offense. However, John had so much marijuana to sell, that he resorted to use of the internet to engage in what the Federal Government defines a “mass marketing via electronic means” to find buyers for the drug pursuant to 2D1.1(b)(6).
The enhancement for that type of marketing is 2 levels resulting in a Calculated Offense Level 22. For purposes of this example, let’s say that John has been very careful in the past and has no prior arrests or convictions of any kind, resulting in assignment to Criminal History Category I. Offense Level 22 and Criminal History Category I intersect at a point on the Federal Sentencing Grid that provides for a sentencing range of 41-51 months in prison.
Because the Federal Sentencing Guidelines are still deemed to be presumptively valid and because many U.S. Attorneys will require stipulation to a Guideline Sentence as a prerequisite to plea negotiations, Federal Criminal Defense Lawyers must be intimately familiar with the Federal Sentencing Guidelines. The best Federal Criminal Defense Lawyers must be able to advise their 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. When choosing a lawyer to represent you in a Federal Criminal Case, be sure you discuss the Federal Sentencing Guidelines in detail with him and be sure that he is both knowledgeable and experienced in Federal Criminal Defense.