When Someone Becomes a “Career Offender” under Federal Law
Posted on by Michael Lowe.
Al Capone is reported to have explained his activities during Prohibition as, “I am just a businessman, giving the people what they want,” but for many, there are few that better typify the career criminal than Al Capone, deemed “the most prominent figure of organized crime.” Read, Hipango Jr, Waata, Robert Smith, and Léo-Paul Dana. “Prohibition and the American Dream: an analysis of the entrepreneurial life and times of Al Capone.” International Journal of Entrepreneurship and Small Business 21.1 (2014): 1-15.
Of course, for criminal defense attorneys, being a career criminal is more than a study of historical events or actors in film classics (think The Godfather’s Vito Corleone and his dynasty; Goodfellas’ Henry Hill; or Breaking Bad’s Walter White). Having a client that is being labelled as a career criminal, or under legal terminology a “career offender,” has a tremendous impact on everything from their initial arrest to charges, prosecution, plea bargaining, conviction, and sentencing.
Getting labelled as a career criminal, or career offender, by federal law enforcement changes everything from a defense perspective.
What is a Criminal Offender Under Federal Law?
The United States Sentencing Commission (USSC) defines “career offender” as “someone who commits a crime of violence or a controlled substance offense after two prior felony convictions for those crimes.”
This is important, because under the federal sentencing guidelines someone considered as a “career offender” will be given greater punishment. They will be assigned to Criminal History Category VI and to offense levels at or near the statutory maximum penalty of the offense of conviction. Read, USSC 2022 Quick Facts: Career Offenders. (More on how this works later.)
Who are Federal Career Offenders?
According to USSC data, we know that career offenders in the federal system are:
- usually male (95.7% of career offenders are men);
- vary in age (average age is 40 years);
- usually citizens of the United States (97.5%);
- very likely sentenced to federal prison (99.7%); and
- their average sentence is twelve years (146 months).
Career offender labels under the United States Sentencing Guidelines (USSG) apply only to those who are facing federal charges in federal court. The United States Sentencing Manual and its Sentencing Guidelines do not apply and are not used in Texas state criminal court prosecutions.
However, in the federal system prior sentences under state law for felony offenses as defined by that state jurisdiction as well as sentences for misdemeanor and petty offenses (except where specifically excluded) can be counted as “prior sentences” under the USSG sentencing calculations. See USSG 4A1.2(2)(c), 2021 Guidelines Manual page 383.
United States Sentencing Guidelines and Career Offenders
In federal cases, punishment will be assessed with reference to the United States Sentencing Manual and the Sentencing Guidelines as overseen by the United States Sentencing Commission. For more on how this process works, including examples of the application of the Sentencing Table and the Sentencing Manual in determining a federal sentence, read our earlier discussions in:
- Money Laundering and Federal Sentencing Guidelines;
- Federal Sentencing Guidelines On Federal Child Pornography Cases;
- Federal Crimes and Sentencing Guidelines: Health Care Fraud;
- Methamphetamine Trafficking and Federal Sentencing; and
- Relevant Conduct In The Federal Sentencing Guidelines: Acquittals And Uncharged Conduct.
In sum, if the AUSA can fit the accused into the provisions that defines a “career offender,” then the prosecution can argue for increased offense levels and criminal history categories within the Sentencing Table.
The upshot here is the accused faces bigger penalty ranges upon conviction. Sometimes, these will involve mandatory sentences under the law. For more, read Mandatory Minimum Penalties in Federal Sentencing.
Qualifying as a Career Offender: USSG 4B1.1
Not everyone can be labelled a career criminal under federal law. The USSG categorize defendants as career offenders if:
(1) they are at least 18 years old at the time of the offense for which they are charged (the instant offense);
(2) the charge involves a felony crime of violence or a felony crime involving a controlled substance; and
(3) the defendant already has at least two prior felony convictions of either of these types of crimes.
Age is important here. As a general rule, they have to be a legal adult (over the age of 18 years) at the time of conviction (either by plea or after trial) for any conviction considered in the career offender determination. The exception to this rule: convictions of someone under the age of 18 years can be considered when the old conviction is classified as an adult conviction under the laws of the jurisdiction where they were convicted in the earlier matter.
The Offenses That Can Be Considered in Career Offender Determinations
In USSG 4B1.2, definitions are provided for (1) Crime of Violence, (2) Controlled Substance Offense, and (3) Two Prior Felony Convictions as referenced in the defining of a career offender in USSG 4B1.1(a). See, USSG 4B1.2, Guidelines Manual page 398.
Before the career offender “hat” can be placed on the defendant’s head, the AUSA has to show both the underlying offense and the established prior convictions are either (1) crimes of violence and/or (2) controlled substance offense(s). This, after first showing that the accused was legitimately convicted of the earlier felonies before they allegedly committed the pending federal offense.
Caveat: The USSG Commentaries point out that these definitions of “crime of violence” and “controlled substance offense” include the offenses of aiding and abetting; conspiring; and attempting to commit such offenses. USSG 4B1.2, Guidelines Manual page 399. From a defense lawyer’s perspective, these considerations usually have the judge mandating the AUSA show there was a proven element of intent to commit or to facilitate these crimes before they are thrown into the mix.
1. Crime of Violence
Under federal law, a “crime of violence” in these circumstances can be either a federal crime or a violation of state law where a punishment of imprisonment over one year is involved and:
(1) has as an element the use, attempted use, or threatened use of physical force against the person of another, or
(2) is murder, voluntary manslaughter, kidnapping, aggravated assault, a forcible sex offense, robbery, arson, extortion, or the use or unlawful possession of a firearm described in 26 U.S.C. § 5845(a) or explosive material as defined in 18 U.S.C. § 841(c).
2. Controlled Substance Offense
A controlled substance offense is defined by the Sentencing Guidelines as: “an offense under federal or state law, punishable by imprisonment for a term exceeding one year, that prohibits the manufacture, import, export, distribution, or dispensing of a controlled substance (or a counterfeit substance) or the possession of a controlled substance (or a counterfeit substance) with intent to manufacture, import, export, distribute, or dispense.”
An important distinction from a defense viewpoint: this does not apply to convictions involving possession of a controlled substance. It only comes into play if the offenses involve drug trafficking in some way.
3. Prior Felony Convictions
The USSG Commentary to USSG 4B1.2 explains that “prior felony conviction” in this guideline means:
a prior adult federal or state conviction for an offense punishable by death or imprisonment for a term exceeding one year, regardless of whether such offense is specifically designated as a felony and regardless of the actual sentence imposed. A conviction for an offense committed at age eighteen or older is an adult conviction. A conviction for an offense committed prior to age eighteen is an adult conviction if it is classified as an adult conviction under the laws of the jurisdiction in which the defendant was convicted (e.g., a federal conviction for an offense committed prior to the defendant’s eighteenth birthday is an adult conviction if the defendant was expressly proceeded against as an adult).
Pursuant to USSG 4B1.2, there must be two prior felony convictions in order for the defendant to be established as a “career offender,” which involves:
(1) the defendant committed the instant offense of conviction subsequent to sustaining at least two felony convictions of either a crime of violence or a controlled substance offense (i.e., two felony convictions of a crime of violence, two felony convictions of a controlled substance offense, or one felony conviction of a crime of violence and one felony conviction of a controlled substance offense), and
(2) the sentences for at least two of the aforementioned felony convictions are counted separately under the provisions of §4A1.1(a), (b), or (c).
The date that a defendant sustained a conviction shall be the date that the guilt of the defendant has been established, whether by guilty plea, trial, or plea of nolo contendere.
Defense Argument: Prior Sentences or Single Sentence
From the defense side, there must be a review of the AUSA’s position to make sure that there are two independent prior sentences that involve the appropriate offenses (violence or drugs). Were there separate proceedings? If not, then there can be an argument that these offenses really involve a single sentence if (1) they arise out of the same charging instrument; or (2) the two sentences happened (imposed) on the same day.
See USSG 4A1.2(a)(2), defining “prior sentence” under the Guidelines:
If the defendant has multiple prior sentences, determine whether those sentences are counted separately or treated as a single sentence. Prior sentences always are counted separately if the sentences were imposed for offenses that were separated by an intervening arrest (i.e., the defendant is arrested for the first offense prior to committing the second offense). If there is no intervening arrest, prior sentences are counted separately unless (A) the sentences resulted from offenses contained in the same charging instrument; or (B) the sentences were imposed on the same day. Treat any prior sentence covered by (A) or (B) as a single sentence. See also §4A1.1(e).
Oppressive Result of Career Offender Status in Federal Sentencing
If the AUSA can successfully label a defendant as a “career offender” for purposes of sentence calculation under the USSG, then the result can be devastating for the accused. The recommendation from the government prosecutor can be enhanced in two ways.
- The AUSA can increase the criminal history category to be used in the Sentencing Table (on its horizontal axis) to level VI. This is the highest of the criminal history categories (13 or more points).
- Afterwards, the AUSA can look to the vertical axis of the Sentencing Table, and increase the offense level as well. This will also boost the sentence recommendation that is given to the bench.
Another complication here: the possibility of mandatory minimum sentences under federal law. Most mandatory minimums involve long prison terms, like 20 years imprisonment based upon the charge itself. When this is combined with the “career offender” label, the potential sentence length becomes an even greater defense challenge.
See, Baron-Evans, Amy, Jennifer Coffin, and Sara Silva. “Deconstructing the Career Offender Guideline.” Charlotte L. Rev. 2 (2010): 39, where arguments are made that the dance between mandatory minimums and career offender guidelines result in shockingly harsh results when compared to sentences where the “career offender” label is not applied. Their examples (admittedly presented several years ago) include a distinction between a drug trafficking sentence of 27-33 months to that of 360 months to life.
2023-2024 USSC Career Offender Guideline Review: Federal Defense Bar Response
In August 2023, the Federal Defender Sentencing Guidelines Committee (FDSGC) published its take on the proposed changes under consideration by the United States Sentencing Commission, including sentencing guidelines for career offenders under federal law. See, USSC Proposed Priorities for Amendment Cycle, 88 Fed. Reg. 39907-01 (June 20, 2023).
The USSC Proposed Priorities for future USSG Amendments includes the following:
(5) Continued examination of the career offender guidelines, including (A) updating the data analyses and statutory recommendations set forth in the Commission’s 2016 report to Congress, titled Career Offender Sentencing Enhancements; (B) devising and conducting workshops to discuss the scope and impact of the career offender guidelines, including discussion of possible alternative approaches to the ‘‘categorical approach’’ in determining whether an offense is a ‘‘crime of violence’’ or a ‘‘controlled substance offense’’; and (C) possible consideration of amendments that might be appropriate.
The defense position was presented in a letter sent from the FDSGC to Honorable Carlton W. Reeves as chair of the USSC. See, Reeves, Carlton W., and Dear Judge Reeves. “FEDERAL DEFENDER SENTENCING GUIDELINES COMMITTEE.” (2023). From the defense bar comes the following considerations:
We welcome any narrowing of the directive. But years of data demonstrate the career offender guideline is overly punitive, lacks a principled basis, and exacerbates racial disparity in federal sentencing— whether triggered by “controlled substance offenses” or “crimes of violence”.…
[W]e encourage the Commission to update its 2016 Report by: (1) articulating the justification for the career offender guideline, (2) identifying the category of individuals, if any, for which a near maximum career-offender sentence would be the least punishment necessary under the articulated justification, and (3) striving toward a guideline that captures only individuals in the identified category.
If there is no principled justification for imposing near-maximum sentences based on criteria the career offender directive identifies, the Commission should say so….
We encourage the Commission to collaborate with other experts to explore a more comprehensive understanding of the interactions between incarceration and crime prevention.
As we expressed, the career offender guideline should be contracted, not further expanded, given its role in our federal criminal legal system as an unjustified driver of mass incarceration and racial disparity.
Defending Against Career Offender Status in Federal Sentencing
It is hoped that the needed changes to the imposition of “career offender” labelling in federal sentencing guidelines is amended within the next few years. Unfortunately, today the key to any federal criminal defense involving an AUSA seeking “career offender” status for the accused is to find arguments that the classification does not apply in the case. This can be done in several ways.
- First of all, there can be a thorough review of the federal analysis of past criminal history as compiled by the prosecution or the probation department. Do the facts jive with the government’s position or have things been exaggerated in some way? Is everything correct or are there errors in the report?
- Second, there will be a consideration of the current pending charge, as it involves drugs or violence. Drug offenses are often involved here. What is being charged here? Is it possession? What is the accurate amount involved here?
- Third, the defense will delve into the convictions being used to form the “career offender” label. Do these convictions meet the legal standard for separate convictions? Are they involving felonies covered by the Guidelines?
- Fourth, there must be an independent defense investigation and analysis of the case, along with the necessary legal research. Mitigating factors must be discovered. Arguments and issues that can be vital in plea negotiations must be found.
- Fifth, there must be a legal review of the prosecution’s case that includes consideration of practicalities like how evidence was obtained. Was there an illegal search or seizure? Was there a wiretap? What about digital evidence, how was it obtained? Anything offered by the prosecution to meet its burden that fails to meet constitutional standards can be excluded after an evidentiary hearing. This may remove the “career offender” consideration, limit or reduce the charges, or in some instances, even get the case dismissed.
For more, read:
- Federal Sentencing For Zero-Point Offenders: New USSG §4C1.1 Effective November 2023
- Ring Cameras And Police Surveillance: Growing Police Power Privacy Concerns
- Felony Charges Under Texas And Federal Law: Criminal Defense Overview
- Federal Sentencing for Drug Couriers and Drug Mules
- Plea Bargaining and Making Deals in Federal Felony Cases: Criminal Defense Overview
- Bail after Federal Arrest in Texas and The Bail Reform Act of 1984.
Career offenders face long terms of imprisonment under the current federal sentencing guidelines. An aggressive and experienced defense attorney can be extremely important in these cases.
For more information, check out our web resources, read Michael Lowe’s Case Results, and read his in-depth articles ”Pre-Arrest Criminal Investigations” and “Top 10 Things To Know When Defending Texas Charges Of Manufacture Or Delivery Of An Illegal Substance.”
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