How do the Federal sentencing guidelines work?

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Posted in On August 24, 2023

If you or someone you know has been charged with a federal crime, you are probably concerned about the potential for a lengthy sentence.  Some federal offenses, such as Brandishing a Firearm During and in Relation to a Crime of Violence, carry statutory mandatory minimum sentence.  For the Brandishing offense, Congress has imposed a mandatory minimum sentence of seven (7) years.  The maximum sentence is life.  Other federal offenses, such as Wire Fraud, carry no minimum but have a maximum sentence.  For Wire Fraud, Congress has imposed a penalty ranging from zero (0) to twenty (20) years.  So how does a Judge determine what sentence to impose within these broad ranges?  This is where the federal sentencing guidelines come in. 

The Sentencing Reform Act of 1984 provided for the development of the sentencing guidelines.  The guidelines are intended to “further the basic purposes of criminal punishment: deterrence, incapacitation, just punishment, and rehabilitation.”  The guidelines are developed and updated by the United States Sentencing Commission, which is an independent judicial branch agency.  Since their introduction, the United States Supreme Court has held that the sentencing guidelines are advisory rather than mandatory.  This means that a Judge should use the guidelines in determining a sentence, but is not bound to impose a sentence within the applicable guideline range.  Still, the sentencing guidelines are helpful in evaluating a defendant’s potential exposure and in negotiating a plea agreement with the United States Attorney’s Office. 

So how do the guidelines work?  The simple answer is that the guidelines are something of a math problem.  Every federal offense has a base offense level, or starting point.  From there, points are added or subtracted for various circumstances relating to the offense(s).  After these additions and subtractions are made, a Total Offense Level is reached.  Offense levels can range from one (1) to forty-three (43), with forty-three (43) being the highest.  As the Total Offense Level increases, so too does the guideline range for the offense.

A defendant’s criminal history similarly adds up to a number between zero (0) and thirteen (13) or more.  These numbers then translate to a Criminal History Category between I and VI, where I is the lowest category and VI is the highest.  As with the Total Offense Level, a higher Criminal History Category corresponds to a higher guideline range.

Once the Total Offense Level and Criminal History Category are determined, one needs only to refer to the Sentencing Table, part of the Guidelines Manual, to determine a defendant’s guideline range.  This Sentencing Table contains offense levels on the vertical axis, and criminal history category on the horizontal axis.  By matching up the offense level and criminal history category, one is able to determine the guideline range.

So how might this look in practice?  Let’s take a look at an example of how the guidelines might work for someone charged with Wire Fraud.  The base offense level for Wire Fraud, 18 U.S.C. § 1343, is seven (7).  Let’s assume the loss amount in this case was more than $550,000 but less than $1,500,000.  This loss amount would correspond to a significant fourteen (14) point increase.  Our subtotal is now twenty-one (21).  But this defendant intends to plead guilty, leading to a two (2) point reduction for acceptance of responsibility and a one (1) point reduction for assisting authorities in the investigation or prosecution of the defendant’s own misconduct by timely notifying authorities of the intention to enter a plea of guilty.  Thus, we reach a total offense level of eighteen (18). 

As for criminal history, let’s assume this defendant has two previous convictions which each resulted in a two (2) year sentence.  Each of these convictions, because they exceed one (1) year and one (1) month, incur three (3) points.  This defendant will incur another two (2) points because he was on probation when the Wire Fraud offense was committed.  We therefore end with eight (8) criminal history points, placing this defendant in Criminal History Category IV.

In consulting the Sentencing Table, we see that a Total Offense Level of eighteen (18) and a Criminal History Category of IV yield a guideline range of forty-one (41) to fifty-one (51) months.  But can some or all of this time be served on probation, or in a less-restrictive setting than the Bureau of Prisons? 

The sentencing guidelines also answer this question.  The Sentencing Table is divided into Zones, from A to D.  Zone A allows for the least restrictive placement, while Zone D requires the most restrictive placement.  What follows is an explanation of what each Zone permits. 

If the guideline range falls within Zone A, a sentence of imprisonment is not required unless certain other circumstances exist. 

If the guideline range falls within Zone B, the minimum term may be satisfied by imprisonment; a sentence of imprisonment that includes a term of supervised release with a condition which substitutes community confinement or home detention, so long as at least one (1) month is served as imprisonment; or a sentence of probation which includes a condition or combination of conditions that substitute intermittent confinement, community confinement, or home detention. 

If the guideline range falls within Zone C, the minimum term may be satisfied by a sentence of imprisonment or a sentence of imprisonment that includes a term of supervised release with a condition that substitutes community confinement or home detention, provided that at least half of the minimum term is served as imprisonment.

And finally, if an offense falls within Zone D, the guidelines call for the minimum term to be served as imprisonment.  While the guidelines do not permit a sentence of anything other than imprisonment for Zone D guideline ranges, Judges have the ability to grant variances which may ultimately place a defendant in a Zone which may permit an alternative placement for some portion of the sentence. 

Sentencing guideline computations can be challenging and complex, and the example above is fairly simple.  The stakes are high in any federal case, and it is important to retain an experienced federal criminal defense attorney.  If you or someone you know is facing federal charges, contact the attorneys at Banks & Brower at (317) 870-0019 for a free consultation.