Using the federal Sentencing Guidelines
The author
Jeffrey W. Jensen is a Milwaukee, Wisconsin lawyer with offices located on Wisconsin Avenue. Attorney Jensen has practiced criminal defense for twenty-three years and is recognized as a leading Wisconsin attorney- having handled some of the most high profile criminal cases in recent history. He practices extensively in the federal courts at both the trial court level and before the United States Court of Appeals in Chicago. His office, the Law Offices of Jeffrey W. Jensen, also operates this web site which provides access to free legal materials, free legal forms, free examples of criminal motions and briefs, and an extensive library of free, downloadable, criminal appeals briefs
The history of the guidelines
If you are charged with a federal crime, perhaps the most important document to you will be the Federal Sentencing Guidelines. These guidelines were created by the United States Sentencing Commission in the 1990's. They purported to be a statistical compilation of sentences imposed in the federal courts throughout the nation for a given crime and where given sentencing factors were present. The purpose was to establish a degree of uniformity in sentences throughout the nation.
From the beginning federal judges and defense attorneys loathed the guidelines- but for different reasons. The United States attorneys in every federal district loved the guidelines. Judges disliked the guidelines because they felt it was an unconstitutional restriction on their sentencing discretion. Defense attorneys hated the guidelines because they believed it resulted in unfairly harsh crimes for some offenses and it put all of the negotiating power in the hands of the federal prosecutors. The prosecutors, of course, loved the guidelines because they were able extract guilty pleas from many defendants by agreeing to not recommend that certain guideline factors applied. Such a recommendation by the prosecutor usually had a profound effect on the defendant's sentence.
For many years, the Sentencing Guidelines were, for all intents and purposes, binding on the federal judges. They were under constant attack, though, and finally, in 2006, the United States Supreme Court declared that the guidelines were partially unconstitutional. The Supreme Court remedied the situation by declaring that the guidelines were advisory rather than mandatory on the judges.
The calculation
What follows below is a nutshell explanation of how to calculate a guideline range. Please remember, this is for illustrative purposes only and it is not intended to be a guarantee that you will be sentenced in any particular way. Your ultimate sentence depends upon the sentencing factors, as found by the court, and also upon the judge's discretion. With this caveat in mind, let us begin.
The offense conduct
Chapter two of the guidelines sets forth the "base offense level" for the crime with which you are convicted. For example, let us assume that you are a felon who has been (or will be) convicted of possessing body armor. Therefore, your base offense level is set forth in §2K2.6. Possessing, Purchasing, or Owning Body Armor by Violent Felons. (p. 253)
base offense level 10
Offense related adjustments
Next you move on to Chapter Three. There you will see a number of offense-related adjustments. Let us say, for example, that when you were stopped by the police you lied about your status as a felon. §3C1.1. Obstructing or Impeding the Administration of Justice requires that two additional points be added to your offense level.
The most important offense-related adjustment, though, is "acceptance of responsibility"- that is, you pleaded guilty right away. When defendant pleads guilty §3E1.1. Acceptance of Responsibility provides a reduction of two or three points (depending on your base offense level) Here, you would get two points.
obstruction +2
acceptance -2
Criminal history category
The next step is to determine your criminal history category. This is a fairly complicated process and is not susceptible to summarization. The bottom line is that you determine all of your previous convictions and sentences. As a general rule, you assess one to three criminal history point (which is different than a guideline point) for each prior conviction depending upon the length of the conviction. You then consult the criminal history table. It provides as follows:
Catetory Points
I (0 or 1)
II (2 or 3)
III (4, 5, 6)
IV (7, 8, 9)
V (10, 11, 12)
VI (13 or more)
The sentencing table
Page 392 of the guideline manual contains the sentencing table. You determine your "adusted offense level" by adding or substracting the offense-related adjustments to the base offense level. You then determine your criminal history category. Using the table you will then be able to determine your sentencing guideline range.
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