How Is Sentencing Determined?
Interviewer: You keep mentioning federal sentencing guidelines. Does the judge have more or less discretion in federal cases regarding sentencing someone? How does that work?
Paul: Well, that is a chapter in itself. Several years ago, the guidelines were essentially mandatory. Depending on the severity level of your offense, what your criminal history was and how many prior criminal history points were assigned for your various charges and convictions; you would fall into into a zone or a section on the sentencing grid.
The judge was limited to sentencing within the time provided in that zone. If the range said 55 to 67 months, then the judge was not allowed to sentence less or more than that range.
Mandatory sentencing guidelines were ultimately found to be unconstitutional. The Federal Sentencing Guidelines are now deemed to be advisory. But I have seen that most judges deem the guidelines to be presumptively reasonable.
If you can come forward with substantial, compelling mitigating factors, only then will a federal judge sentence to a range less than that provided by the guidelines. Again, they are advisory. They are not binding or mandatory; but deemed to be presumptively reasonable.
Also, in order to enter into most plea negotiations the United States Attorney’s office will, as part of your plea agreement, ask the courts to apply the appropriate guideline range.
That prevents the U.S. Attorney from facing cases where defense counsel files a motion for downward departure following plea. They basically take that away from you if you want to engage in plea negotiations.
“The Importance of Aggressive Federal Criminal Defense”.
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