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Ultimate Guide to the Federal Sentencing Guidelines

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In federal criminal cases, sentences are imposed in accordance with the Federal Sentencing Guidelines. If you are facing criminal charges in federal district court, understanding the Federal Sentencing Guidelines – and how and when they apply – is crucial to making informed decisions about your defense.

As a general rule, federal crimes carry greater penalties than crimes prosecuted at the state level. Federal crimes tend to be more severe in nature, and the U.S. Department of Justice, the Federal Bureau of Federal Investigation (FBI), and other federal law enforcement authorities generally reserve their resources for cases that involve substantial harm to the public, corporate entities, or the federal government.

The United States Code establishes numerous federal criminal offenses. Each year, tens of thousands of criminal cases are filed in federal district courts across the country. In order to ensure (or try to ensure) that all federal criminal defendants are punished according to uniform standards, federal district judges adhere to the Federal Sentencing Guidelines established by the U.S. Sentencing Commission (USSC).

3 Important General Facts about the Federal Sentencing Guidelines

Making sense of the Federal Sentencing Guidelines is not easy. The USSC’s Guidelines Manual is over 600 pages long, and the information in the Guidelines Manual is complex, dense, and hard to follow. This Ultimate Guide to the Federal Sentencing Guidelines is intended to provide an introduction to the key information that federal criminal defendants and their attorneys need to know.

We’ll start with three important general facts about the Federal Sentencing Guidelines. These facts will set the stage for the following discussion of how the Federal Sentencing Guidelines work, when they apply, and what federal criminal defendants can do to mitigate their punishment if convicted in federal district court:

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Dr. Nick Oberheiden
Dr. Nick Oberheiden



John W. Sellers
John W. Sellers

Former Senior Trial Attorney
U.S. Department of Justice

Local Counsel

Joanne Fine DeLena
Joanne Fine DeLena

Former Assistant U.S. Attorney

Local Counsel

Joe Brown
Joe Brown

Former U.S. Attorney & Former District Attorney

Local Trial & Defense Counsel

Amanda Marshall
Amanda Marshall

Former U.S. Attorney

Local Counsel

Aaron L. Wiley
Aaron L. Wiley

Former Federal Prosecutor

Local Counsel

Roger Bach
Roger Bach

Former Special Agent (OIG)

Michael Koslow
Michael Koslow

Former Supervisory Special Agent (FBI)

Chris Quick
Chris Quick

Former Special Agent (FBI & IRS-CI)

Kevin M. Sheridan
Kevin M. Sheridan

Former Special Agent (FBI)

Ray Yuen
Ray Yuen

Former Supervisory Special Agent (FBI)

Dennis A. Wichern
Dennis A. Wichern

Former Special Agent-in-Charge (DEA)

1. Application of the Federal Sentencing Guidelines is Not Mandatory

First, application of the Federal Sentencing Guidelines in criminal cases is not mandatory. It used to be mandatory, but in 2005 the U.S. Supreme Court held that mandatory application of the Federal Sentencing Guidelines risked violating defendants’ Sixth Amendment rights, and that therefore the guidelines should inform judges’ sentencing decisions with deviations being permitted when necessary.

If a federal judge imposes a sentence in accordance with the Federal Sentencing Guidelines, the sentence is entitled to a presumption of reasonableness. As summarized by the Legal Information Institute (LII), “When a Court of Appeals reviews a sentence imposed through a proper application the Guidelines, it may presume the sentence is reasonable. Rita v. United States, 127 S.Ct. 2456 (2007).”

2. The Federal Sentencing Guidelines are Long and Complicated

Second, as mentioned above, the USSC’s Guidelines Manual is long. The Federal Sentencing Guidelines are also extremely complicated, particularly for the uninitiated. For example, the Sentencing Table, which specifies the ranges for terms of federal incarceration, has 43 rows and seven columns, and understanding each cell in the table first requires you to understand multiple other sections of the Guidelines Manual.

This is why resources like this Ultimate Guide to the Federal Sentencing Guidelines are important. The Federal Sentencing Guidelines can be comprehensively understood, but digesting the Guidelines Manual simply isn’t practical for most people – most federal defense attorneys included.

3. The Federal Sentencing Guidelines are Not the Only Source of Authority for Establishing Penalties in Federal Criminal Cases

Third, the Federal Sentencing Guidelines are not the exclusive source of authority for establishing penalties in federal criminal cases. The Sentencing Table establishes terms of incarceration only, and federal crimes can carry fines and various other penalties in addition to federal imprisonment. Many federal criminal statutes impose maximum sentences, including maximum terms of imprisonment; and, for the crimes established by these statutes, understanding the potential sentences requires a review of the Federal Sentencing Guidelines, the criminal statute itself, and potentially other sources of legal authority as well.

10 Key Aspects of the Federal Sentencing Guidelines

With this background in mind, we can take a look how the Federal Sentencing Guidelines work and how they apply at the sentencing stage of federal criminal prosecutions. Here are 10 key aspects that need to be understood in order to determine the possible sentencing range in a federal criminal case:

1. Base Offense Level

The first key aspect is the base offense level. This is, “the starting point for determining the seriousness of a particular offense.” The Federal Sentencing Guidelines have 43 base offense levels, with low-level offenses (such as trespassing) having lower numbers and more-serious offenses (such as terrorism) having higher numbers. Many white-collar federal offenses, including most forms of fraud, have base offense levels in the middle of the range.

2. Specific Offense Characteristics

Once a crime’s base offense level has been determined, then it is necessary to determine if any “special offense characteristics” may apply and alter the base offense level. Continuing with the fraud example, the dollar value of the gain realized as a result of the fraud can increase the base offense level—potentially significantly. For example, fraud schemes involving $50,000 or more are subject to a six-level increase, and fraud offenses involving significantly more can climb much higher up the federal sentencing range.

3. Zones

The base offense levels under the Federal Sentencing Guidelines are divided into four “Zones” (labeled A, B, C, and D). The Zones, “determine confinement options for each sentencing range,” as follows:

  • Zone A: Probation only (zero months of confinement)
  • Zone B: Probation that serves as a substitute for confinement, home detention, or imprisonment
  • Zone C: Imprisonment followed by a term of supervised release (probation)
  • Zone D: Imprisonment only

4. Multiple Count Adjustments

In many cases, federal prosecutors will pursue multiple counts of multiple federal crimes. If a defendant is convicted on multiple counts, the Federal Sentencing Guidelines instruct the judge to determine an appropriate “combined offense level” that takes into account the rules for incremental punishment for multiple offenses. The most-serious offense of which the defendant is convicted is used as the starting point for establishing the base offense level, and then the less-serious counts are used to adjust the defendant’s total sentence upward.

5. Acceptance of Responsibility and Other Adjustments

In addition to multiple count adjustments, the Federal Sentencing Guidelines require consideration of various other adjustments in appropriate cases as well. These adjustments can either increase or decrease the defendant’s overall sentence. Examples include:

  • Acceptance of Responsibility – “The judge may decrease the offense level by two levels if, in the judge’s opinion, the offender accepted responsibility for his [or her] offense.”
  • Minimal Participant – “If the offender was a minimal participant in the offense, the offense level is decreased by 4 levels.”
  • Knowledge of Vulnerability – “If the offender knew that the victim was unusually vulnerable due to age or physical or mental condition, the offense level is increased by 2 levels.”
  • Obstruction of Justice – “If the offender obstructed justice, the offense level is increased by 2 levels.”

6. Criminal History

Criminal history is also a key component of establishing a defendant’s sentence under the Federal Sentencing Guidelines. The guidelines establish six “Categories” of criminal histories, with each increase in Category number corresponding to a higher sentencing range.

7. Sentencing Factors

When deciding (i) whether to apply the Federal Sentencing Guidelines, and (ii) what sentence to impose with the range that the guidelines specify (based on the six considerations discussed above), federal judges are required to consider seven specific factors. As outlined in 18 U.S.C. Section 3553, these factors are:

  • “[T]he nature and circumstances of the offense and the history and characteristics of the defendant;”
  • “[T]he 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;”
  • “[T]he kinds of sentences available;”
  • “[T]he kinds of sentence and the sentencing range established for . . . the applicable category of offense committed by the applicable category of defendant as set forth in the guidelines . . . .;”
  • “[A]ny pertinent policy statement . . . issued by the [USSC] . . . .;”
  • “[T]he need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct; and”
  • “[T]he need to provide restitution to any victims of the offense.”

8. Sentencing Table

All of the above considerations go into determining what sentence is appropriate under the federal Sentencing Table. Once the base offense level, Zone, Category, specific offense characteristics, and relevant adjustments have all been determined, then the sentencing range can be identified according to the Sentencing Table and the above-listed factors can be applied to determine the defendant’s punishment.

9. Sentencing “Departures”

As discussed above, application of the Federal Sentencing Guidelines in federal criminal cases is no longer mandatory. Upon giving due consideration to all pertinent factors, the presiding judge must determine whether applying the Federal Sentencing Guidelines is appropriate, or whether it is more appropriate to “depart” from the guidelines and impose an alternate sentence.

10. Mitigating Your Federal Criminal Sentence

When facing federal criminal charges, in addition to defending against the charges themselves, it is necessary to execute a sentencing defense strategy as well. With the help of experienced federal defense counsel, federal criminal defendants can use the guidelines and other pertinent federal statutes and court decisions to successfully argue for a sentence below what the guidelines recommend.

Speak with a Federal Criminal Defense Lawyer at Oberheiden P.C.

Are you facing federal criminal charges? If so, we encourage you to contact us to discuss your case in confidence. To speak with a senior federal criminal defense lawyer at Oberheiden P.C., call 888-680-1745 or request a free consultation online now.

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Nick Oberheiden is the absolute best federal litigation attorney. Nick gives you the immediate comfort of feeling 100% protected. He is polite, respectful— and extremely compelling. His legal strategy turned out to be brilliant.

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