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Federal Sentencing Guidelines

The Federal Sentencing Guidelines are used by federal judges in the determination of sentences for convictions of federal crimes. In the past, the federal sentencing guidelines severely restricted the sentences that judges could mete out to defendants in their courtrooms. Now the federal sentencing guidelines are no longer mandatory, but they are always calculated as part of the sentencing process and judges frequently observe the guideline sentence ranges.

I have conducted in-depth research on many topics related to the federal sentencing guidelines, and I have successfully argued against the U.S. Attorney and United States Probation Office to obtain positive results regarding the interpretation and application of the federal sentencing guidelines. The guidelines are complicated, and their application is even more complicated when looked at very closely. United States Probation Officers frequently make it look like an application is straightforward, when really it can be quite complicated and the results not entirely clear.

Ultimately, it is the interpretation of the federal judges that matters, not the interpretation of the U.S. Attorneys or Probation Officers. Before the judge has made a sentencing decision, a federal criminal defense attorney can analyze how your case fits into the guidelines and argue against the government’s position.

What is the criminal history score? How is the criminal history score calculated?

The criminal history score is a number of “points” that are tallied to determine the applicable criminal history category in the Sentencing Table of the federal sentencing guidelines for any person convicted of a federal offense (the “instant offense”). The higher the number of points, the higher the criminal history category. Higher criminal history categories result in greater punishments for any given offense.

The general starting point in determining a criminal history score is to add three points for “each prior sentence of imprisonment exceeding one year and one month.” Then you add two points for each prior sentence of imprisonment of at least sixty days. Then you add one point, to a maximum of four points, for any other conviction. Additionally, add two points if the offense was committed while under any “criminal justice sentence.” Finally, add one point, up to a total of 3 points, for each prior sentence resulting from a conviction of a “crime of violence” that did not receive any points because it was counted as a single sentence.

However, there are a number of exceptions, limitations and other enhancements to consider in determining this number. Some of these are discussed in this article.

When are convictions too old to be counted against you in your criminal history score?

The guidelines specify a few circumstances under which a conviction is too old to be counted against you in determining your criminal history score. These limitations are important to be read in the context of the notes describing the sentencing guidelines and the federal case law interpreting them. No prior sentence imposed “within fifteen years of the defendant’s commencement of the instant offense” is counted unless the sentence exceeded 13 months and “resulted in the defendant being incarcerated” during any time in the fifteen years prior to the commencement of the instant offense.

Any other prior sentence that was imposed ten years before to the “commencement of the instant offense is not counted against you. Section 4A1.2(d)(2) of the guidelines specifies the applicable time period for certain sentences resulting from juvenile (before age 18) offenses.

How do you determine the applicable time period?

The Fifth Circuit clearly stated its rule for determining the applicable time period in United States v. Arnold:

For the purposes of determining the applicable time period, use the following:   (i) in the case of an adult term of imprisonment totaling more than one year and one month, the date of last release from incarceration on such sentence (see § 4A1.2(e)(1)  );   (ii) in the case of any other confinement sentence for an offense committed prior to the defendant’s eighteenth birthday, the date of the defendant’s last release from confinement on such sentence (see § 4A1.2(d)(2)(A));   and (iii) in any other case, the date of the original sentence (see § 4A1.2(d)(2)(B) and (e)(2)).

What convictions are never counted in your criminal history score?

Convictions for the offenses below are never counted:

  • Fish and game violations
  • Hitchhiking
  • Juvenile status offenses and truancy
  • Local ordinance violations (except those violations that are also violations under state criminal law)
  • Loitering
  • Minor traffic infractions (e.g., speeding or running a stop sign)
  • Public intoxication
  • Vagrancy

When is the “commencement of the instant offense“?

The Fourth Circuit Court of Appeals explained the definition what the “commencement of the instant offense” means for purposes of the federal sentencing guidelines:

…the Guidelines explicitly provide that, in determining the date of the “commencement of the instant offense” for purposes of calculating the 15-year time period, the sentencing court should consider “any relevant conduct.” U.S.S.G. Sec. 4A1.2, Commentary (n.8). “Relevant conduct,” in turn, includes “all acts … committed [or] aided … by the defendant” and, in the case of a conspiracy, “all reasonably foreseeable acts and omissions of others in furtherance of the [conspiracy]” that occurred “in preparation for that offense.” U.S.S.G. Sec. 1B1.3(a)(1) (emphasis added). This broad concept of “relevant conduct” includes activities that occurred before the date identified by the indictment as the starting date of the offense. See U.S.S.G. Sec. 1B1.3, Commentary (background) (providing that “[c]onduct that is not formally charged or is not an element of the offense of conviction may enter into the [sentencing] determination”); United States v. Strachan, 968 F.2d 1161, 1163 (11th Cir.1992) (stating that relevant conduct includes “that conduct which is not formally charged or adjudicated”). Therefore, courts are not restricted to the allegations in the indictment in determining the date of the “commencement of the instant offense” under Sec. 4A1.2(e); rather, sentencing courts may consider preindictment activity to establish the starting date of the offense, and then use that date to calculate the time period for which prior sentences are counted. See United States v. Harris, 932 F.2d 1529, 1538 (5th Cir.1991) (holding that “pre-indictment activities may properly be considered when determining the applicability of section 4A1.1(d) or (e)”); United States v. Eske, 925 F.2d 205, 207-08 (7th Cir.1991) (holding that the sentencing court properly used a date preceding the starting date alleged in the indictment to determine the applicable prior sentence time period); see also United States v. Kayfez, 957 F.2d 677, 678 (9th Cir.1992) (per curiam) (holding that the district court was not bound by the starting date of the offense alleged in the indictment for purposes of calculating criminal history points).

Where can I find the Federal Sentencing Guideline Manual?

The Federal Sentencing Guideline Manual is available on the United States Sentencing Commission’s website.

What is a downward departure?

A downward departure is federal sentence imposed after a conviction where the federal judge departs from the guidelines and gives a sentence that is otherwise less than the guideline sentence. This only happens pursuant to a government motion under §5K1.1 (Substantial Assistance to Authorities) of the guidelines.

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