What are The Federal Criminal Sentencing Guidelines?

Judges in both the state and federal criminal justice systems have traditionally had great latitude in determining what a sentence should be in any criminal case. As with their state court compatriots, in a federal criminal case, the district court judge has an obligation to sentence a defendant to what is called an "individually appropriate" sentence. Maximum sentences are nearly always set forth in the criminal statutes, however.

For example, 18 U.S. Code § 2252A, which covers "certain activities relating to material constituting or containing child pornography," provides for a maximum sentence of up to 40 years. Depending on what section of this law the defendant has violated, there is also a minimum mandatory sentence of up to 15 years. Without considering the sentencing guidelines, a defendant found guilty of this crime could be sentenced anywhere from 15-40 years. This begs the question, how does a judge decide, within this range, what an individually appropriate sentence ought to be? This is where the sentencing guidelines come into play.

The Federal Sentencing Guidelines take many factors into consideration. In sum, they include three things: the crime charged, the offender's criminal history and background, and the specific facts and circumstances of the crime alleged. According to the case of Payne v. Tennessee, 501 U.S. 808, 820 (1991), these factors relate to the "subjective guilt" of the defendant and the harm caused by the defendant's criminal activity. Furthermore, they allow a "very precise calibration" of an appropriate sentence range.

For purposes of this discussion, suffice to say that sentencing practices can be divided into two practices, indeterminate and determinate sentences. Indeterminate sentencing practices have historically been problematic because under them defendants have no way of knowing how long they could be imprisoned. As indicated above, while the federal district court judges had wide latitude and discretion when setting the minimum sentence for the accused, the U.S. Parole Board had autonomy in determining when the defendant would be released.

On the other hand, with determinate sentencing much of this discretion on behalf of the district court judges was removed. This is because the U.S. Congress passed laws that often required mandatory terms of imprisonment for many crimes. As will be elaborated on below, current sentencing practices are essentially variations of determinate sentencing. With determinate sentencing, the federal criminal laws contain mandatory standards indicating the degree of punishment imposed. Determinate sentencing even sometimes provides that an individual cannot be released by the Parole Board prior to the minimum period set forth. This does not mean, however, that the total amount of time served cannot be reduced by good time or earned time.

Both determinate and indeterminate sentencing practices have been subjected to much criticism and debate. In 1984, Congress passed the Sentencing Reform Act which created the sentencing guidelines.

In summary way, the calculation of the sentencing guidelines begins with a determination of the base level assigned to Federal crime charged. From there, the factors discussed above serve to either increase or decrease this base level. This adjusted offense level is then used to calculate a guideline range.

Let us assume the person is charged with inciting a riot on Government property. Let us further assume the base level for this offense would be level 24 . In this hypothetical crime, the amount of property destroyed was $1,000,000.00 and the guidelines include a category where amount of damage increased the base level by 5 levels. There is an additional level increase of 3 for being the ringleader, and another 3 for obstruction of justice. Because this hypothetical individual cooperated and is pleading guilty, he is entitled to a level reduction of -3. Simple math means that the adjusted offense level is 29 (24 + 3 +5 -3 = 29) .

From there, the Guidelines are consulted. For this hypothetical case, the Guidelines provide for a sentence range of 59-84 months , with a maximum sentence defined by statute at 15 years. In this hypothetical case, the judge can sentence this defendant to a minimum sentence within the guidelines up to the 15-year max. The federal district court judge might therefore decide that the appropriate sentence might be at the low end of the guidelines, or 5-15 years.

One problem with the above guideline calculation is that the judge has decided that the offender gets a whopping 5-step increase based on the dollar amount of the damage sustained. But who decided this "fact?" In other words, who determined that there was in fact a million dollars' worth of damage? Presumably, this figure was contained in one of the investigator's reports. But what if it could be proved, during an adversarial hearing, that the true amount of damage was half that much? These kinds of possible factual disputes are why we empanel jurors. In the federal criminal justice system, jurors are factfinders. The point here is that if the judge independently makes this factual determination, without a hearing or without what the law calls due process, the judge inadvertently and seemingly has violated this defendant's 6^th Amendment right to a jury trial.

In recognition of this problem, the Federal Sentencing Guidelines are not mandatory, and the judge is not bound to follow them. They are not mandatory because, if they were, it could result in a sentence based on facts not proven beyond a reasonable doubt to a jury. The seminal case that created this change is United States v. Booker, 543 U.S. 20 (2005).

Even though the Federal Sentencing Guidelines are not mandatory, the law still provides that they must be considered by the judge when determining a Federal criminal defendant's sentence. Also, if and when a judge, as a part of their independent sentencing discretion, decides to depart from the Federal Sentencing Guidelines, the judge must place on the record statements explaining what factors caused them to determine it was proper to increase or decrease the sentence outside the Guidelines range.

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