The United States Federal Sentencing Guidelines became law as part of the Sentencing Reform Act of 1984. The purpose of the Guidelines was to make sentencing uniform throughout the United States for serious federal crimes. The intent was to prevent similarly situated defendants convicted of the same crime or crimes from receiving divergent sentences.
The Guidelines allocate to each specific federal offense a sentencing level. Then, there are specific aggravating or mitigating factors, which also have levels assigned. These factors serve to raise or lower the offense level from the original established for the crime. In addition to the offense level, the Guidelines require the determination of a criminal history for each defendant. The Guidelines allocate criminal history points for various prior crimes. This results in a sum reflecting a defendant’s criminal history score. This then translates into a defendant’s criminal history category. There are six such categories. Criminal history hategory I is the lowest and reflects zero or one criminal history point. There are cut-offsset for criminal history points for each succeeding category to the highest, which is criminal history category six.
Once the offense level and the criminal history category are determined, reference is made to the Federal Sentencing Guidelines Chart. The chart is a table with the offense levels represented on the vertical axis of the chart and the criminal history categories on the horizontal axis. The intersection of a defendant’s offense level and his or her criminal history level reveals the person’s Guidelines sentencing range as the Guidelines present all sentences as a range of months.
The probation office of the district court makes all offense and criminal history calculations. The office does so as part of its preparation of a presentence investigation report for the court and the parties. Both the government and the defendant have a right to contest the findings of the probation office. If such a challenge is successful, the guideline range changes to reflect the new offense level and/or criminal history category.
For the first 21 years of their existence the Guidelines were mandatory. Federal court judges had no discretion to sentence outside the applicable guideline range unless enumerated factors within the Guidelines themselves justified an upward or a downward departure from the applicable guideline range. In 2005, the United States Supreme Court in United States v. Booker, 543 U.S. 220 (2005), declared the mandatory nature of the Guidelines to be a violation of the U. S. Constitution’s Sixth Amendment right to a fair trial. That decision made the Guidelines advisory and once again placed sentencing largely in the hands of Article III district court judges. The decision required judges to consider the Guidelines but permitted the courts to fashion sentences appropriate to the defendants and cases before them within the sentencing range established by Congress for each criminal offense.
Now, in practice the parties have three avenues to arguing against a Guidelines range sentence presented in the presentence investigation report. The first is the traditional manner of objecting to the report’s calculation of the offense level or criminal history category. The second is the traditional manner of seeking a Guidelines departure through the enumerated categories in the Guidelines. The final avenue available since Booker is to seek a variance from the Guidelines by arguing factors that federal judges must consider in imposing a sentence. These factors are listed in 18 U.S.C. §3553(a).
Sentencing in the federal criminal context is extremely complex and technical. Someone facing potential federal incarceration needs the advocacy of an attorney very familiar with the Guidelines, their application, and who can calculate a likely sentence in analyzing how to defend a case. Of equal importance is the knowledge and applicability of the Section 3553 factors and how to successfully argue those factors to lower any potential sentence.