a.      Overview of the Federal Sentencing Guidelines

Sentencing issues are arguably the most important part of a federal criminal case.  When clients learn they are under criminal investigation, the first questions are often: “Can I go to jail for this?”  “If so, how long will I have to spend in jail?”  It is for this reason that it is essential to become proficient with the sentencing rules and procedures.

The Federal Sentencing Guidelines are used by judges, prosecutors, and defense attorneys to determine the possible sentence, or the range of a possible sentence, for any federal crime.  They are based on the premise that each type of offense should result in a sentence within a determined range – adjusted to the high or low end of the range – depending on certain known factors, including the defendant’s criminal history.  James R. Richards, Transnational Criminal Organizations, Cybercrime, and Money Laundering, CRC Press, 1999, at 147-51.

The United States Sentencing Guidelines were the result of a joint effort by Congress (in the Sentencing Reform Act of 1984) and the United States Sentencing Commission to provide more certainty and less disparity in federal sentences.  To achieve that end, the Commission sought to create a sentencing system that balanced uniformity in sentencing for similar offenses with proportionality in sentencing between different offenses.  Id.  The Commission created various offense categories, a uniform range of sentences within a category, and proportionality between categories.

The guidelines were enacted in April 1987 and were amended in 1997.  They are organized into seven chapters: (1) Introduction and General Principles; (2) Offense Conduct; (3) Adjustments; (4) Criminal History and Criminal Livelihood; (5) Determining the Sentence; (6) Sentencing Procedures and Plea Agreements; and (7) Violations of Probation and Supervised Release.

The law surrounding federal sentencing is in a stage of upheaval.  In 2005, the Supreme Court of the United States decided United States v. Booker, 543 U.S. 220 (2005), which overturned nearly twenty years of sentencing law.  That decision gave sentencing judges more discretion in their sentencing decisions.  Nevertheless, the United States Sentencing Guidelines are still advisory and remain important.

b.      How the Guidelines Work

The cornerstone of the guidelines is the sentencing table.  The table is essentially a grid containing 43 levels organized into four zones on the vertical axis, and six criminal history categories based on criminal history points on the horizontal axis.

The first step in calculating a sentence is to determine the “offense level.”  The offense level is essentially a numerical score, which translates into a range of months of imprisonment.  The higher the offense level, the longer the defendant’s sentence.  For example, an offense level of 10 would result in a sentence of between six and twelve months, while an offense level of 13 would result in a sentence twice that long.  Therefore, the goal of a defendant in plea negotiations or at a sentencing hearing is to obtain the lowest possible offense level.

Calculating the offense level is easier said than done.  Indeed, it is not as simple as referring to a chart and simply recording the offense level that corresponds to a specific crime.  Instead, several steps must be taken in between.  As an overview, it is first necessary to calculate the “base offense level.”  From there, points are added or subtracted from the base offense level to come up with a sentence or sentence range.

Specifically, the Guidelines require that four determinations be made: first, calculate the “base offense level;” second, apply any appropriate “specific offense characteristics” contained in the particular guidelines section; third, make any necessary adjustments or enhancements; and fourth, make any necessary departures.

The following is a step-by-step illustration.  One begins by selecting the applicable offense guideline section from Chapter 2 of the Guidelines that corresponds to the crime committed.  Chapter 2 is organized by the types of crimes, with specific subchapters dedicated to broad classes of crimes.  For example, drug offenses are in subchapter 2D, firearm offenses are in subchapter 2K, and espionage offenses are in subchapter 2M.  Once the applicable Guidelines provision is selected, the “base offense level” can be calculated.

Second, any appropriate “specific offense characteristics” contained in the particular guideline section must be applied.  Each Guidelines provision contains certain conduct that the Sentencing Commission believed made the conduct worse than the usual crime.  If the defendant’s conduct falls within one or more of these offense characteristics, the base offense level must be increased by the number of points corresponding to that particular characteristic.

Third, other adjustments applicable to all offenses – which are set forth in Chapter 3 of the Guidelines – must be applied.  Examples of two potential upward adjustments include a two-level enhancement for obstruction of justice (if the obstruction occurred during the investigation, prosecution, or sentencing) and a four-level enhancement “if the defendant was an organizer or leader of a criminal activity that involved five or more participants or was otherwise extensive.”  U.S.S.G. § 3B1.1(a).

The most important downward adjustment involves “acceptance of responsibility.”  Overwhelmingly, most indictments in federal court are resolved by way of plea rather than trial.  One of the principal factors persuading a defendant to plead guilty is the two or three-level downward adjustment resulting from acceptance of responsibility.  U.S.S.G. § 3E1.1.  The adjustment is two levels if the offense level prior to adjustment is 14 or lower.  But the adjustment is three levels if the level is 16 or greater and “upon motion of the government stating that the defendant has assisted authorities in the investigation or prosecution of his own misconduct by timely notifying authorities of his intention to enter a plea of guilty …”  Id.

Fourth, the court must make determinations as to upward or downward departures that are specifically enumerated in the Guidelines.  Until the Booker decision, the Guidelines were binding on the sentencing court, and the court had limited authority to impose a sentence outside the parameters of the applicable Guidelines range.  The discretion to deviate from the Guidelines is known as a departure.  The departure rules are contained in subparagraph 5K.

A sentencing judge may depart either “upward” from the Guidelines’ range or “downward.”  Upward departures can only be made if certain aggravating factors are present.  Conversely, downward departures can only be made if certain mitigating factors are present.  For example, a sentencing judge may depart downward if the defendant provided “substantial assistance” in the investigation or prosecution of another person who has committed an offense.  U.S.S.G. § 5K1.1.  Unlike the adjustment for acceptance of responsibility discussed above, the substantial assistance departure is for helping the government convict someone else.  Indeed, a defendant is not required to assist the government in order to qualify for the acceptance of responsibility adjustment.  Thus, the substantial assistance departure is designed to give the defendant an incentive to cooperate.

The Guidelines not only list grounds for departure, but they also list certain factors that cannot be the basis of a departure.  For example, Section 5K2.0 prohibits a sentencing judge from basing a departure on matters such as race, sex, national origin, creed, religion, and socioeconomic status; any circumstance that is specifically prohibited as a ground for departure, such as drug or alcohol dependence; or any ground that has already been considered under another portion of the Guidelines, such as acceptance of responsibility.

Calculation of the offense level is only one-half of the equation.  The length of a defendant’s sentence depends not only on the offense level (i.e., the vertical axis) but also the defendant’s criminal history (i.e., the horizontal axis).  Thus, the defendant’s criminal history category must be determined under Chapter Four of the Guidelines.  Generally speaking, the more prior convictions a defendant has, the higher his or her criminal history category.

Now for the moment that you have been waiting for.  After the final offense level and the criminal history categories have been calculated, the actual sentence from the Sentencing Table can finally be determined.  The guideline calculation will result in a range of months of imprisonment.  The Sentencing Table is divided into four zones: Zone A through Zone D.  These zones limit the discretion of the sentencing judge in imposing a sentence other than a sentence of imprisonment.

If the applicable guideline range is in Zone A, a term of imprisonment is not required, and any or all of the sentence could be served on supervised release or some form of alternative confinement.  See U.S.S.G. § 5C1.1.  It goes without saying that defense counsel’s primary objective in negotiating a plea deal is to get his client into Zone A.

If the applicable guideline range is in Zone B, the sentence may be a term of imprisonment or alternative confinement, as long as one month of the sentence is satisfied by imprisonment.  (The sentencing judge can, of course, impose a sentence of imprisonment for the entire guideline range.)  If the guideline range is in Zone C, at least one-half of the minimum term must be satisfied by imprisonment.  See U.S.S.G. § 5C1.1.  And if the range is in Zone D, all of the sentence must be satisfied by imprisonment.  Id.

c.      Fines and Restitution

Up until now, there has been no discussion about fines and restitution.  By no means does that suggest that they are unimportant.  Indeed, they can be staggering.  The sentencing judge must impose fines and restitution, as set forth in Chapter Five of the Guidelines.  The various criminal statutes provide maximum fines in addition to maximum periods of incarceration.  However, 18 U.S.C. section 3571 overrides these mandatory sentences by providing higher potential fines, including a fine of $ 250,000 for individuals convicted of a felony and $ 500,000 in the case of an organization.  18 U.S.C. § 3571.  The Guidelines then set forth the rules for imposing fines up to the maximum allowed.  Section 5E1.2 of the Guidelines provides a table, similar to the sentencing table, to determine the range of appropriate fines.

The Guidelines also permit judges, in certain cases, to order restitution.  Restitution is designed to reimburse the victim of a crime for any loss they sustained.  Generally speaking, restitution is only allowed when provided for by statute.  18 U.S.C. § 3572(b); U.S.S.G. § 5E1.1.  However, when restitution is authorized, it takes priority over fines.  Id.

Restitution may be imposed pursuant to two overlapping provisions: the general restitution provision, 18 U.S.C. § 3663, and the Mandatory Victim Restitution Act, 18 U.S.C. § 3663A.  These provisions allow restitution to the victim in convictions under Title 18 and certain specified offenses.

 d.       Third Circuit Sentencing Model

The following is the third circuit sentencing model.  District Court judges must engage in a three-step analysis when fashioning sentences.  First, the court must make necessary factual determinations to calculate the applicable guidelines.  United States v. Cooper, 437 F.3d 324 (3d Cir. 2006) (finding that the guidelines provide a natural starting point for the appropriate level of punishment).  Second, the court must make determinations as to traditional downward departures that are specifically enumerated in the Guidelines.  This will result in an advisory guidelines sentence range.  A sentence within the advisory guidelines range is not, however, presumptively reasonable.  United States v. Phelps, 366 F. Supp. 2d 580, 589 (E.D. Tenn. 2005) (recognizing that deeming the Guidelines range as per se reasonable or holding that sentences should fall within that range absent some exceptional circumstance “would result in a de facto mandatory Guidelines regime not readily distinguishable from that which the Supreme Court found violative of the Sixth Amendment in Booker”).

Finally, the court must make determinations as to variances from the guidelines based on the factors set forth in 18 U.S.C. § 3553.  See United States v. Gunter, 462 F.3d 237 (3d Cir. 2006); United States v. Cooper, 437 F.3d at 329 (finding that meaningful consideration must be given to § 3553 factors when imposing sentence on a defendant).  Using all the factors, the court must then fashion a sentence that is ultimately “sufficient but not greater than necessary” to achieve the purposes of § 3553 (a)(2).