In the United States an individual can be charged with a state crime, a federal crime, or both. The federal criminal justice system operates in much the same way as the individual state criminal justice systems; however, there are some noticeable differences. If you have been charged with a federal criminal offense, become familiar with the Federal Sentencing Guidelines.

1. UNDERSTANDING THE
FEDERAL SENTENCING
GUIDELINES
If You Have Been Charged with a Federal Criminal
Offense You Should Become Familiar with the Federal
Sentencing Guidelines as Your Sentence Will Be
Determined Using the Guidelines If You Are Convicted
Kevin J. Mahoney

2. In the United States an individual can
be charged with a state crime, a federal
crime, or both. The federal criminal
justice system operates in much the
same way as the individual state
criminal justice systems; however, there
are some noticeable differences. For
example, the federal system tends to be
much more formal than many state systems. One aspect of the federal system
that is not found in all state systems is the use of sentencing guidelines. If you
have been charged with a federal criminal offense, become familiar with the
Federal Sentencing Guidelines. As your case moves through the federal criminal
justice system, you will begin to understand how important these guidelines are
to the sentence imposed following a conviction or guilty plea. Because of the
complexity of the Guidelines, only a criminal defense attorney experienced in
defending those accused of federal crimes is capable of applying the guidelines
to the charges and allegations to provide a client with the likely sentencing range.
Nevertheless, the following general information explains the Guidelines and the
role they typically play in a sentence.
SENTENCING BEFORE THE GUIDELINES
Prior to the enactment of the Guidelines, sentencing in federal prosecutions
across the U.S. was far from consistent. At the federal level, there are 94 District
Courts, which serve as the trial courts. Before the Guidelines, judges from these
94 courts were sentencing those convicted of crimes as they saw fit. Since each
judge was applying his own sense of justice to individuals with varying degrees of

3. culpability and criminal histories, as well as unique factual scenarios, there were,
or appeared to be, considerable disparity in sentences. While there were also
sentencing disparities among courts located in different parts of the country,
there appeared to be a pattern among all the courts in the sentencing of white
and minority defendants. The goal, however, was not to simply create guidelines
that would eliminate the disparities in
sentencing; instead, it was to curtail
judicial discretion, ensuring that
“lenient” judges imposed sentences
commensurate with those of more
punitive judges. Adoption of the
Sentencing Guidelines not only put
an end to judicial mercy, it essentially shifted the power to sentence from judges
to Federal prosecutors.
THE CREATION OF THE GUIDELINES
The Sentencing Reform Act of 1984, or SRA, was the answer to growing
concerns about how defendants were sentenced throughout the United States.
The SRA created the United States Sentencing Commission, or USSC. It was
the USSC that actually created the original Guidelines in 1987. Although
attempts have been made to completely overhaul or even do away with the
Guidelines since they were introduced in 1987, none of those attempts have
been successful. Though they have been modified over the years, the Guidelines
remain largely intact.

4. THE GUIDELINES ARE NOT MANDATORY
The Guidelines were, originally, largely mandatory. In United States v. Booker,
543 U.S. 220 (2005) and United States v. Fanfan, 542 U.S. 956 (2004) the
Supreme Court ruled that the mandatory Guidelines created a system where
judges, in determining post-verdict sentences, decided facts or factors that the
juries had not been required to find when reaching their verdicts – a clear
violation of the Sixth Amendment right to a trial by jury. The Guidelines survived,
but returned to the judges sentencing
discretion. In practice, most federal
judges rely heavily on the Guidelines.
OFFENSE LEVELS
The Guidelines divide offenses into 43
levels. A Level one offense is the least
serious. All federal criminal offenses classified as A misdemeanors or higher are
given an offense level. Often, a crime has a starting level that can be increased
or decreased, depending on the circumstances or “factors.” For example, the
offense level for a drug trafficking crime could be increased by two levels if a
dangerous weapon was possessed by a participant during the commission of the
crime or reduced by four levels if the defendant was a “minimal participant” in the
overall operation. According to the Guidelines – and in actual practice – the
offense level of the crime is the most important factor in determining the
sentencing range.

5. CRIMINAL HISTORY
Under the Guidelines, a defendant’s criminal history, or lack thereof, is the
second factor referred to in determining a sentencing range. The Guidelines
provide for six criminal history classifications, with category VI being the most
severe. Classification is determined by calculating the number of “points”
accumulated by the individual defendant. Category I includes defendants with
zero or one point. Category VI is reserved for defendants with 13 or more points.
Points are calculated as follows:
(a) Add 3 points for each prior sentence of imprisonment exceeding one year
and one month.
(b) Add 2 points for each prior sentence of imprisonment of at least sixty days
not counted in (a).
(c) Add 1 point for each prior sentence not counted in (a) or (b), up to a total of
4 points for this subsection.
(d) Add 2 points if the defendant committed the instant offense while under any
criminal justice sentence, including probation, parole, supervised release,
imprisonment, work release, or escape status.
(e) Add 1 point for each prior sentence resulting from a conviction of a crime of
violence that did not receive any points under (a), (b), or (c) above because
such sentence was counted as a single sentence, up to a total of 3 points
for this subsection.

6. DETERMINING A SENTENCING RANGE
After determining the offense
level, together with criminal
history category classification,
one need only refer to the
Sentencing Table to assess
sentencing ranges, which are
given in months. Both the Level
of the offense and the criminal
history category affect the
sentencing ranges. For example, the Sentencing Table recommends different
sentencing ranges for individuals, with varying criminal history categories,
convicted of a Level 20 offense: 1) Category I = sentencing range of 33-41
months; 2) Category III = sentencing range of 41-51 months; and, 3) Category VI
= sentencing range of 70-87 months. Similarly, the offense levels increase or
decrease the sentencing ranges.
UPWARD AND DOWNWARD DEPARTURES
Both upward and downward departures are built in to the Guidelines. If certain
aggravating factors are present, a judge can justify an upward departure,
allowing him to sentence a defendant to a lengthier term of incarceration than
recommended by the Sentencing Guidelines. Common reasons for an upward
departure include:

7.  Death or physical injury resulting from the criminal conduct
 Extreme psychological injury
 Possession and/or use of a weapon during the commission of the crime
 Abduction or unlawful restraint of a victim
 Disruption of governmental function
 Participation in a gang
 Property loss not already accounted for in the sentence
Just as your sentence can be increased for particularly egregious conduct it can
also be reduced if there are mitigating circumstances that warrant a reduction.
Common reasons found in the Guidelines for a downward departure include:
 “Substantial assistance” to authorities in solving this or another crime
 Contributing conduct from victim – if the victim’s conduct significantly
provoked your conduct
 Coercion, duress, or diminished capacity
 Voluntarily disclosing or admitting to the commission of the crime
Though the Federal Sentencing Guidelines are advisory in nature, federal judges
almost always refer to the Guideline’s framework to determine a defendant’s
sentence. Given the importance of the Guidelines, an individual charged with a
federal offense needs an experienced federal criminal defense attorney to not
only evaluate the specific facts and circumstances of the case, but to argue
forcefully against upward departures or in favor of downward departures.

8. Cornell University Law School, Federal Sentencing Guidelines
United States Sentencing Commission, 2013 USSC Guidelines Manual
United States Sentencing Commission, Sentencing Table
Defender Services Office U.S. Courts, Federal Sentencing under the Advisory
Guidelines

9. About the Author
Kevin J. Mahoney
Kevin J. Mahoney is a Boston, Massachusetts criminal defense lawyer
recognized nationwide for his high-profile courtroom victories, bestselling
book on cross-examination, Relentless Criminal Cross-Examination,
novel insights into trial strategy, and numerous television appearances.
He is, perhaps, best known for overturning of the 1st-degree murder
conviction of Christina Martin, dubbed the “JELL-O Murderer” by the
national press and chronicled on television on Forensic Files (“A Dessert
Served Cold”). He has won 47 of his last 50 trials. The prestigious
National Trial Lawyers has named him one of “The Top 100 Trial
Lawyers” consistently since 2007. Avvo, the national lawyer rating
service, rates Attorney Mahoney a 10.0/10.0 for “superb.”
In addition to a thriving Massachusetts criminal defense practice, Mr. Mahoney has maintained a
steady and successful civil practice for almost two decades, handling complex international contract
negotiations; patent licensing; civil litigation; breach-of-contract disputes; landlord/tenant litigation; and
obtaining, defending and asserting worldwide intellectual property rights.
Mahoney Criminal Defense Group
Suite 22, 545 Concord Avenue
Cambridge, MA 02138
Phone: 617-492-0055
Website: www.relentlessdefense.com