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Federal Law: Sentencing and the Federal Sentencing Guidelines Manual.
In federal court, criminal sentencing is more formal and more restrictive than in state court for both felonies and misdemeanors. This is due in some measure to the Federal Sentencing Guidelines Manual.
Federal Sentencing Guidelines exist to insure that someone who is convicted of a federal crime in one part of the country will get a sentence that is fair in comparison to someone in a similar situation in another state, far away.
Federal Sentencing Guidelines Are Not Mandatory
Federal Sentencing Guidelines are not mandatory and federal judges are not required to follow them to the letter (in the past, FSG were mandatory, but this has been held to be unconstitutional as against the Sixth Amendment by the United States Supreme Court in United States v. Booker, 543 U.S. 20 (2005).)
Federal Sentencing Guidelines are very powerful, though. Federal judges and federal prosecutors are legally bound to review the Guidelines and consider them during federal sentencing. The judge can follow the guideline in a case, or not.
What the judge decides is best is within his or her discretion and a sentence can be whatever the judge decides is appropriate after hearing the arguments of both the prosecutor and the defense lawyer. (The judge will have to write down his or her reasons for not following what is set for the sentence in the Federal Guidelines, though, in case the sentence is appealed for review by a higher court.)
Federal Sentencing Guidelines Manual – Lengthy and Subject to Amendment
The Federal Sentencing Guidelines Manual itself is voluminous, literally over 2000 pages long. Additionally, there are federal cases that interpret the Guidelines themselves, as well as amendments and changes that are being made to them over time. Web sites exist to try and assist in plowing through the details of the FSGM (for example, http://www.sentencing.us/) and legal publications and scholarly articles are published every month delving into various aspects of the federal punishment guides.
The Guidelines themselves are organized by offense levels (there are over 40); criminal history categories (there are six); and sentencing zones (there are four). Sentences can be increased or decreased according to stated factors for increases in time to be served or reductions in time to be served.
Experienced federal criminal defense lawyers can successfully argue to federal judges (like Michael Lowe has done, see Case Results) that the particular case before the bench warrants a “departure” from the Sentencing Guidelines – reducing the sentence — on a wide range of bases including:
Victim’s conduct (§5K2.10)
“If the victim’s wrongful conduct contributed significantly to provoking the offense behavior, the court may reduce the sentence below the guideline range to reflect the nature and circumstances of the offense. In deciding whether a sentence reduction is warranted, and the extent of such reduction, the court should consider the following:
(1) The size and strength of the victim, or other relevant physical characteristics, in comparison with those of the defendant.
(2) The persistence of the victim’s conduct and any efforts by the defendant to prevent confrontation.
(3) The danger reasonably perceived by the defendant, including the victim’s reputation for violence.
(4) The danger actually presented to the defendant by the victim.
(5) Any other relevant conduct by the victim that substantially contributed to the danger presented.
(6) The proportionality and reasonableness of the defendant’s response to the victim’s provocation.
Victim misconduct ordinarily would not be sufficient to warrant application of this provision in the context of offenses under Chapter Two, Part A, Subpart 3 (Criminal Sexual Abuse). In addition, this provision usually would not be relevant in the context of non-violent offenses. There may, however, be unusual circumstances in which substantial victim misconduct would warrant a reduced penalty in the case of a non-violent offense. For example, an extended course of provocation and harassment might lead a defendant to steal or destroy property in retaliation.
Coercion and duress (§5K2.12)
“If the defendant committed the offense because of serious coercion, blackmail or duress, under circumstances not amounting to a complete defense, the court may depart downward. The extent of the decrease ordinarily should depend on the reasonableness of the defendant’s actions, on the proportionality of the defendant’s actions to the seriousness of coercion, blackmail, or duress involved, and on the extent to which the conduct would have been less harmful under the circumstances as the defendant believed them to be. Ordinarily coercion will be sufficiently serious to warrant departure only when it involves a threat of physical injury, substantial damage to property or similar injury resulting from the unlawful action of a third party or from a natural emergency. Notwithstanding this policy statement, personal financial difficulties and economic pressures upon a trade or business do not warrant a downward departure.
Diminished capacity (§5K2.13)
“A downward departure may be warranted if (1) the defendant committed the offense while suffering from a significantly reduced mental capacity; and (2) the significantly reduced mental capacity contributed substantially to the commission of the offense. Similarly, if a departure is warranted under this policy statement, the extent of the departure should reflect the extent to which the reduced mental capacity contributed to the commission of the offense.
“However, the court may not depart below the applicable guideline range if (1) the significantly reduced mental capacity was caused by the voluntary use of drugs or other intoxicants; (2) the facts and circumstances of the defendant’s offense indicate a need to protect the public because the offense involved actual violence or a serious threat of violence; (3) the defendant’s criminal history indicates a need to incarcerate the defendant to protect the public; or (4) the defendant has been convicted of an offense under chapter 71, 109A, 110, or 117, of title 18, United States Code.
As a former prosecutor turned criminal defense lawyer with over 150 jury trials defending clients against charges brought by district attorneys and U.S. federal prosecutors in Dallas County, Tarrant County, and elsewhere in the State of Texas, Board Certified Criminal Lawyer Michael Lowe not only brings his years of experience to each case, he also dedicates 100% of his law practice to the defense of those being accused of a crime under Texas or federal law.
With a streamlined law firm that coordinates its efforts to give each client the personal attention that they need and deserve when fighting against the government and the possibility of jail time, fines, permanent marks on public records, prison incarceration, loss of licensure, loss of jobs, absence from family events and everyday living, Michael Lowe maintains an efficient and excellent criminal trial practice that is ready to help you or your loved ones in your defense against criminal charges from pre-arrest investigation to post-trial appeals.
To discuss your case in a free and completely confidential consultation, please contact Dallas Board Certified Criminal Lawyer Michael Lowe today.