How Do Federal Judges Fashion a Sentence According to the Federal Sentencing Guidelines?
Federal Sentence Calculations Using the Federal Sentencing Guidelines in 18 U.S.C. § 3553(a)
Before a federal judge can fashion a sentence for a defendant, the federal judge must first consider the Federal Sentencing Guidelines. The Federal Sentencing Guidelines create a formula that advises judges on how to fashion a sentence. Federal judges are not required to use the sentence that the guidelines recommend, but they are required to take the sentence calculation into consideration.Schedule a Free Consultation Now
How are Federal Sentences Calculated?
Within chapter 5 of the Federal Sentencing Guidelines is the Federal Sentencing Table which is a complex and formulaic matrix that calculates a sentence based on the offense level for a crime and the defendant’s criminal history.
Before a defendant’s offense level and criminal history is determined, the defendant must attend a federal sentencing hearing which is when the court decides what an appropriate sentence is for the defendant. At this “mini-trial”, a federal defense attorney can use mitigation strategies that may lead to a reduction in the defendant’s total offense level or criminal history. For example, factors that can reduce a defendant’s total point level are how cooperative the defendant is with law enforcement, how much responsibility the defendant takes, and other considerations.
The upward and downward point changes made to a defendant’s total offense level calculation are called “adjustments”. These adjustments are added or subtracted from the defendant’s initial score.
Sentencing Ranges Under the Federal Sentencing Guidelines
Calculating the total offense level based on the adjustments made at a federal sentencing hearing is a very complicated and intricate process. For instance, a large determinant of offense level in white-collar crimes is the “loss amount”. The Federal Sentencing Guidelines have over 100 pages dedicated to calculating adjustments based on loss amount alone. The amount of loss incurred from a certain crime determines the number of points added in the calculation adjustment.
A federal defense attorney is able to negotiate how the federal judge considers the defendant’s criminal history on the Federal Sentencing Table. This can take place during the plea stage of the federal case. If the federal prosecutor and the federal defense attorney are able to come to a plea deal together during negotiations, then they can offer a “join recommendation” to the court. A joint recommendation is a prosecutor and defense attorney’s agreed recommendation of a certain imposition of a particular sentence or guideline range to the court.
Once a defendant’s score is determined, the defendant is placed in a sentencing range on the Federal Sentencing Table of the guidelines. On the x-axis of the Federal Sentencing Table is the defendant’s criminal history and on the y-axis is the offense level for the crime. The offense level also determines which of the four zones the defendant is placed in within the Federal Sentencing Table.
The Four Zones of the Federal Sentencing Table
- Zone A starts at offense level 1 and ends at offense level 9. At this zone, there is not a need for the defendant to be incarcerated. A federal judge can sentence the defendant to probation or some other non-confining punishment.
- Zone B starts at offense level 2 and ends at offense level 11. At this zone, the judge is advised to give the defendant some form of confinement. At the lowest range of offense level 2, the judge is advised to sentence the defendant to at least 1 month of confinement. The defendant’s confinement does not necessarily have to be incarceration but it may also be home confinement or some other alternative.
- Zone C starts at offense level 6 and ends at offense level 13. At this zone, the advisory ranges require that a defendant spends some of his or her sentence incarcerated. The federal judge can still give the defendant a split sentence where a fraction is spent in home confinement and the other part incarcerated but the defendant must spend a portion of the sentence in a penitentiary.
- Zone D, the final zone, starts at level 7 and ends at level 43. At this zone, the Federal Sentencing Guidelines advise federal judges that any sentence that is not fully spent in incarceration in the Bureau of Prisons is inappropriate for the defendant.
A Federal Judge’s Role in Federal Sentencing
As mentioned previously, the Federal Sentencing Guidelines are advisory. A judge can decide to depart from the guidelines by fashioning a sentence that is either higher or lower than what is advised by the guidelines. These deviations are referred to as “departures” or “variances” of the guidelines. If a federal judge decides to depart from the advisory guidelines when fashioning a sentence, he or she must consider the maximum penalties allowed under the U.S. Code as well as the 7 Sentencing Factors of 18 U.S.C. § 3553(a). The 7 Sentencing Factors are:
- The nature and circumstances of the offense and the history and characteristics of the defendant
- The need for the sentence imposed to reflect the four primary purposes of sentencing (retribution, deterrence, incapacitation, and rehabilitation)
- The kinds of sentences available
- The sentencing range established through the application of the guidelines and the types of sentences available under the guidelines
- Any relevant "policy statements" promulgated by the Commission
- The need to avoid unwarranted sentencing disparities among defendants with similar records who have been found guilty of similar conduct
- The need to provide restitution to any victims of the offense
An experienced federal defense attorney can petition the judge and the court to consider a factor that would result in a downward variance of the advisory sentence. Although the federal judge has the ultimate discretion in fashioning a federal sentence, a federal defense attorney who has intimate knowledge of the intricacies of the Federal Sentencing Guidelines is best suited to petition the court to come to a sentence that is in the best interest of the defendant.Schedule a Free Consultation Now
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