Federal Sentencing Arguments

Judges in federal courts throughout the United States currently sentence over 65,000 convicted felons each year. It’s a staggering number. How do these judges manage it?

Better yet, how will a federal judge determine your sentence?

No matter where they are in the U.S., these judges all consult the same U.S. Federal Sentencing Guidelines – an advisory set of recommendations which assist in determining the severity and duration of all 65,000 sentences.

This is important: These recommendations are advisory – not hard-and-fast rules – for determining sentencing.

What are these Guidelines?
Established in 1987, the U.S. Federal Sentencing Guidelines originally were mandatory rules. These rules described a uniform sentencing policy for felons (individuals or organizations) found guilty of serious federal felony crimes throughout the U.S. federal judicial system.

How were the Guidelines used?
The Guidelines determined sentencing based primarily on two components:
• The type and seriousness of the crime (with 43 offense levels)
• A defendant’s criminal history (with 6 categories – and each category with its own range of criminal history points))
Based on the level (the higher the level, the more serious the crime) and the category (and number of points), a federal judge simply checked the Guidelines tables. He then put his finger on the appropriate sentence – with its recommended minimum and maximum terms – and issued his determination.

What changed?
Doesn’t that sentencing formula sound just a little like an insurance adjuster consulting an actuarial table? Critics thought so. They argued that it was an all-too-simple process. It was blind to “mitigating factors.” It was just an equation – an equation which left out you, the defendant.
And The Supreme Court agreed. In 2005 it ruled the Guidelines, as originally constituted, violated The Constitution’s 6th Amendment. With that, the Guidelines were no longer mandatory. And the human element – the you – was back in place.

What does that mean for you?
Just a reminder: The U.S. Federal Sentencing Guidelines are not off the table – they’re still very much a part of the conversation – but now they are a reference. Judges use them, yes, but now these judges are in a position to listen.
Remember those “mitigating factors”? It’s what has been rightfully brought back into the sentencing process: Your own story.

What can happen?
First of all, you should know: If he wants to, a federal judge can sentence any defendant below or above the suggested guideline range. This decision is called a departure. When his sentence goes outside the recommended minimum and maximum terms, it has departed the recommended guideline.
A downward departure occurs when a court sentence is passed which is less than the federal minimum. (For example, a judge can issue a “no jail time” or “time served” sentence when the guideline recommends time.)

Why a departure?
It’s those mitigating factors. Your story. When circumstances surrounding a crime are considered mitigating by the judge, a departure may be in order.
A downward departure may be appropriate when the circumstances are unusual, unique or a poor fit for the situations established in the sentencing guidelines. Those situations are just models – not flesh-and-blood.

What should you do?
You may have taken a plea, but it’s still not too late. You still have time to engage a criminal defense attorney before the actual sentencing.
Your criminal defense attorney will learn your story and present a Sentencing Memorandum on your behalf. He will be your voice, your argument. At your sentencing, he can make all the difference in the world.

For more information, please view our Federal Crimes and Sentencing Hearing pages.