Federal Sentencing Guidelines
Encyclopedia
The Federal Sentencing Guidelines are rules that set out a uniform sentencing
policy for individuals and organizations convicted of felonies and serious (Class A) misdemeanors
in the United States federal courts
system. The Guidelines do not apply to less serious misdemeanors.
, which was created by the Sentencing Reform Act
of 1984. The Guidelines' primary goal was to alleviate sentencing disparities that research had indicated was prevalent in the existing sentencing system, and the guidelines reform was specifically intended to provide for determinate sentencing. This refers to sentencing whose actual limits are determined at the time the sentence is imposed, as opposed to indeterminate sentencing
, in which a sentence with a maximum (and, perhaps, a minimum) is pronounced but the actual sentence is determined by a parole commission or similar administrative body after the person has started serving his or her sentence. As part of the guidelines reform, parole was abolished.
The federal effort followed guidelines projects in several states, initially funded by the United States Department of Justice
, and led by Jack Kress and his research team during the late 1970s. The first sentencing guidelines jurisdictions were countywide, in Denver (Colorado
), Newark, New Jersey
, Chicago
(Illinois
) and Philadelphia (Pennsylvania
). Statewide guidelines systems were next established in Utah
, Minnesota
, Pennsylvania
, Maryland
, Michigan
, Washington, and Delaware
, before the federal sentencing guidelines were formally adopted in 1987. Given that the vast majority of criminal sentencing is done at the state level, the American Law Institute
and the American Bar Association
have each recommended such systems for all the states, and nearly half the states presently have such systems, although significant variations exist among them. For example, Minnesota's Sentencing Guidelines Commission initially sought consciously not to increase prison capacity through guidelines. That is, Minnesota assumed that the legislature should determine how much would be spent on prisons and that the sentencing commission's job was to allocate those prison beds in as rational a way as possible. The federal effort took the opposite approach. It determined how many prisons would be needed and Congress was then essentially required to fund those beds.
s, the differing elements of various crimes as distinguished in substantive criminal statutes, the United States Parole Commission’s guidelines and statistics, and data from other sources in order to determine which distinctions were important in pre-guidelines practice. Sentencing criteria already in use by judges was thus codified as guidelines. The Commission essentially codified existing practice. Future modifications often reflected Congressional mandates, as in the case of the Anti-Drug Abuse Act of 1986 that imposed increased and mandatory minimum sentences.
In 2003, Congress considered the Feeney Amendment to the PROTECT Act. This amendment would have totally rewritten the guidelines. Among other changes, the original amendment would have eliminated all unenumerated downward departures and all downward departures for family ties, diminished capacity, aberrant behavior, educational or vocational skills, mental or emotional conditions, employment record, good works, or overstated criminal history. Defense lawyers, law professors, current and former Sentencing Commissioners, the President of the American Bar Association, Chief Justice Rehnquist, and others wrote to Congress opposing the amendment. The enacted bill limited the changes described above to crimes involving pornography, sexual abuse, child sex, and child kidnapping and trafficking. It also raised penalties for child pornography and child sex abuse. It also greatly increased prosecutorial discretion and influence by limiting judges' power to depart from the guidelines and granting prosecutors greater power over departures. For instance, it made a prosecutorial motion a prerequisite for a three-level reduction for acceptance of responsibility. It also instructed the Sentencing Commission to authorize four-level "fast-track" downward departures in illegal-reentry immigration cases upon motion of the prosecutor.
found that the Guidelines, as originally constituted, violated the Sixth Amendment
right to trial by jury, and the remedy chosen was excision of those provisions of the law establishing the Guidelines as mandatory. In the aftermath of Booker and other Supreme Court cases, such as Blakely v. Washington
(2004), Guidelines are now considered advisory only, on both the federal and the state levels. Judges must calculate the guidelines and consider them when determining a sentence but are not required to issue sentences within the guidelines. Those sentences are still, however, subject to appellate review. Above-Guidelines-range sentences are imposed at a rate double that of the rate before Booker.
The Sentencing Table in the Guidelines Manual shows the relationship between these two factors; for each pairing of offense level and criminal history category, the Table specifies a sentencing range, in months, within which the court may sentence a defendant. For example, for a defendant convicted on an offense with a total offense level of 22 and a criminal history category of I, the Guidelines recommend a sentence of 41–51 months, considering the year of the offense to be the same as the year of the guidelines. If, however, a person with an extensive criminal history (Category VI) committed the same offense in the same manner in the same modern timeline and not during the older guideline periods, the Guidelines would recommend a sentence of 84–105 months.
The guidelines require "counting prior adult diversionary dispositions if they involved a judicial determination of guilt or an admission of guilt
in open court. This reflects a policy that defendants who receive the benefit of a rehabilitative sentence and continue to commit crimes should not be treated with further leniency."
A defendant in Zone A is eligible for Federal Probation
, and no term of imprisonment is required. Probation is also authorized if the applicable guideline range is in Zone B of the Sentencing Table and the court imposes a condition or combination of conditions requiring intermittent confinement, community confinement, or home detention as provided in , but at least one month of the sentence must be satisfied by imprisonment. A split sentence
is authorized for defendants in Zone C. That is, Zone C defendants must serve at least half of their sentence in prison.
In 2010, the U.S. Sentencing Commission proposed expanding Zones B and C, in recognition of the fact that many offenders are sentenced to 12 months and 1 day in order to receive the benefit of good time under U.S. federal law.
and U.S. Sentencing Guidelines require that the prosecution file a motion allowing the reduction. The court is not required to grant the reduction, and may decline to do so if it deems the information provided by the defendant to be untruthful, incomplete, unreliable, insignificant, not useful, or untimely. The Guidelines provide, "Substantial weight should be given to the government’s evaluation of the extent of the defendant’s assistance, particularly where the extent and value of the assistance are difficult to ascertain."
motivation or vulnerable victims; official victim
s; restraint of victims; and terrorism. Adjustments can apply depending on the offender's role in the offense, which can include an aggravating role, a mitigating role. Enhancements apply for abuse of a position of trust or use of a special skill, using a minor to commit a crime, and use of body armor in drug trafficking crimes and crimes of violence.
In addition, there are enhancements related to obstruction of justice
, including obstructing or impeding the administration of justice, reckless endangerment
during flight, commission of an offense while on release, and false registration of a domain name
.
Adjustments also apply in cases involving multiple counts.
A 2- or 3-level offense level decrease is typically granted for acceptance of responsibility
if the defendant accepts a plea bargain. However, the decrease will not apply if the defendant demonstrates behavior, such as continued criminal activity, that is inconsistent with acceptance of responsibility.
Departures are allowed in cases involving substantial assistance to authorities. Indeed, the Sentencing Reform Act even allows a departure below the applicable statutory mandatory minimum in such cases. There is no penalty for refusal to assist authorities.
Other grounds for departure:
offenders have also come under fire. Many judges are refusing to apply the Guidelines in these cases.
It has been argued that the Sentencing Guidelines actually increase unwarranted sentencing disparities. Joseph S. Hall writes, "Factors such as whether or not the defendant can afford a skilled attorney capable of making innovative legal arguments or performing detailed factual investigations have a profound influence on a defendant's sentence. The prosecutor's power to extract guilty pleas, previously held in check by judges, is now counterbalanced only by the diligence of the defense attorney." Stuntz claims that "when necessary, the litigants simply bargain about what facts will (and won't) form the basis for sentencing. It seems to be an iron rule: guidelines sentencing empowers prosecutors, even where the guidelines' authors try to fight that tendency...In short, plea bargains outside the law's shadow depend on prosecutors' ability to make credible threats of severe post-trial sentences. Sentencing guidelines make it easy to issue those threats."
The federal guilty plea rate has risen from 83% in 1983 to 96% in 2009, a rise attributed largely to the Sentencing Guidelines.
The Offense Level (1-43) forms the vertical axis of the Sentencing Table. The Criminal History Category (I-VI) forms the horizontal axis of the Table. The intersection of the Offense Level and Criminal History Category displays the Guideline Range in months of imprisonment. "Life" means life imprisonment. For example, the guideline range applicable to a defendant with an Offense Level of 15 and a Criminal History Category of III is 24–30 months of imprisonment.
The Guidelines state that the court can impose a fine above the maximum set out in the table if the defendant is convicted under a statute authorizing a maximum fine greater than $250,000, or a fine for each day of violation. The court can waive the fine if the defendant is unlikely to be able to pay or if the fine would unduly burden the defendant's dependents; however, the Guidelines state that the court must still impose a total combined sanction that is punitive.
Sentence (law)
In law, a sentence forms the final explicit act of a judge-ruled process, and also the symbolic principal act connected to his function. The sentence can generally involve a decree of imprisonment, a fine and/or other punishments against a defendant convicted of a crime...
policy for individuals and organizations convicted of felonies and serious (Class A) misdemeanors
Classes of offenses under United States federal law
The classes of offenses under United States federal law are as follows:References-See also:*Special assessment on convicted persons*Supervised release*Probation and supervised release under United States federal law...
in the United States federal courts
United States federal courts
The United States federal courts make up the judiciary branch of federal government of the United States organized under the United States Constitution and laws of the federal government.-Categories:...
system. The Guidelines do not apply to less serious misdemeanors.
Enabling legislation
The Guidelines are the product of the United States Sentencing CommissionUnited States Sentencing Commission
The United States Sentencing Commission is an independent agency of the judicial branch of the federal government of the United States. It is responsible for articulating the sentencing guidelines for the United States federal courts...
, which was created by the Sentencing Reform Act
Sentencing Reform Act
The Sentencing Reform Act, part of the Comprehensive Crime Control Act of 1984, was a U.S. federal statute intended to increase consistency in United States federal sentencing. It established the United States Sentencing Commission. It also abolished federal parole.The act was passed by large...
of 1984. The Guidelines' primary goal was to alleviate sentencing disparities that research had indicated was prevalent in the existing sentencing system, and the guidelines reform was specifically intended to provide for determinate sentencing. This refers to sentencing whose actual limits are determined at the time the sentence is imposed, as opposed to indeterminate sentencing
Indefinite imprisonment
Indefinite imprisonment or indeterminate imprisonment is the imposition of a sentence by imprisonment with no definite period of time set during sentencing. Its length, rather, is determined during imprisonment based on the inmate's conduct...
, in which a sentence with a maximum (and, perhaps, a minimum) is pronounced but the actual sentence is determined by a parole commission or similar administrative body after the person has started serving his or her sentence. As part of the guidelines reform, parole was abolished.
The federal effort followed guidelines projects in several states, initially funded by the United States Department of Justice
United States Department of Justice
The United States Department of Justice , is the United States federal executive department responsible for the enforcement of the law and administration of justice, equivalent to the justice or interior ministries of other countries.The Department is led by the Attorney General, who is nominated...
, and led by Jack Kress and his research team during the late 1970s. The first sentencing guidelines jurisdictions were countywide, in Denver (Colorado
Colorado
Colorado is a U.S. state that encompasses much of the Rocky Mountains as well as the northeastern portion of the Colorado Plateau and the western edge of the Great Plains...
), Newark, New Jersey
Newark, New Jersey
Newark is the largest city in the American state of New Jersey, and the seat of Essex County. As of the 2010 United States Census, Newark had a population of 277,140, maintaining its status as the largest municipality in New Jersey. It is the 68th largest city in the U.S...
, Chicago
Chicago
Chicago is the largest city in the US state of Illinois. With nearly 2.7 million residents, it is the most populous city in the Midwestern United States and the third most populous in the US, after New York City and Los Angeles...
(Illinois
Illinois
Illinois is the fifth-most populous state of the United States of America, and is often noted for being a microcosm of the entire country. With Chicago in the northeast, small industrial cities and great agricultural productivity in central and northern Illinois, and natural resources like coal,...
) and Philadelphia (Pennsylvania
Pennsylvania
The Commonwealth of Pennsylvania is a U.S. state that is located in the Northeastern and Mid-Atlantic regions of the United States. The state borders Delaware and Maryland to the south, West Virginia to the southwest, Ohio to the west, New York and Ontario, Canada, to the north, and New Jersey to...
). Statewide guidelines systems were next established in Utah
Utah
Utah is a state in the Western United States. It was the 45th state to join the Union, on January 4, 1896. Approximately 80% of Utah's 2,763,885 people live along the Wasatch Front, centering on Salt Lake City. This leaves vast expanses of the state nearly uninhabited, making the population the...
, Minnesota
Minnesota
Minnesota is a U.S. state located in the Midwestern United States. The twelfth largest state of the U.S., it is the twenty-first most populous, with 5.3 million residents. Minnesota was carved out of the eastern half of the Minnesota Territory and admitted to the Union as the thirty-second state...
, Pennsylvania
Pennsylvania
The Commonwealth of Pennsylvania is a U.S. state that is located in the Northeastern and Mid-Atlantic regions of the United States. The state borders Delaware and Maryland to the south, West Virginia to the southwest, Ohio to the west, New York and Ontario, Canada, to the north, and New Jersey to...
, Maryland
Maryland
Maryland is a U.S. state located in the Mid Atlantic region of the United States, bordering Virginia, West Virginia, and the District of Columbia to its south and west; Pennsylvania to its north; and Delaware to its east...
, Michigan
Michigan
Michigan is a U.S. state located in the Great Lakes Region of the United States of America. The name Michigan is the French form of the Ojibwa word mishigamaa, meaning "large water" or "large lake"....
, Washington, and Delaware
Delaware
Delaware is a U.S. state located on the Atlantic Coast in the Mid-Atlantic region of the United States. It is bordered to the south and west by Maryland, and to the north by Pennsylvania...
, before the federal sentencing guidelines were formally adopted in 1987. Given that the vast majority of criminal sentencing is done at the state level, the American Law Institute
American Law Institute
The American Law Institute was established in 1923 to promote the clarification and simplification of American common law and its adaptation to changing social needs. The ALI drafts, approves, and publishes Restatements of the Law, Principles of the Law, model codes, and other proposals for law...
and the American Bar Association
American Bar Association
The American Bar Association , founded August 21, 1878, is a voluntary bar association of lawyers and law students, which is not specific to any jurisdiction in the United States. The ABA's most important stated activities are the setting of academic standards for law schools, and the formulation...
have each recommended such systems for all the states, and nearly half the states presently have such systems, although significant variations exist among them. For example, Minnesota's Sentencing Guidelines Commission initially sought consciously not to increase prison capacity through guidelines. That is, Minnesota assumed that the legislature should determine how much would be spent on prisons and that the sentencing commission's job was to allocate those prison beds in as rational a way as possible. The federal effort took the opposite approach. It determined how many prisons would be needed and Congress was then essentially required to fund those beds.
Promulgation and modification
In drafting the first set of guidelines, the Commission used data drawn from 10,000 presentence investigationPresentence Investigation
A presentence investigation report is a legal term referring to the investigation into the history of person convicted of a crime before sentencing to determine if there are extenuating circumstances which should ameliorate the sentence or a history of criminal behavior to increase the harshness...
s, the differing elements of various crimes as distinguished in substantive criminal statutes, the United States Parole Commission’s guidelines and statistics, and data from other sources in order to determine which distinctions were important in pre-guidelines practice. Sentencing criteria already in use by judges was thus codified as guidelines. The Commission essentially codified existing practice. Future modifications often reflected Congressional mandates, as in the case of the Anti-Drug Abuse Act of 1986 that imposed increased and mandatory minimum sentences.
In 2003, Congress considered the Feeney Amendment to the PROTECT Act. This amendment would have totally rewritten the guidelines. Among other changes, the original amendment would have eliminated all unenumerated downward departures and all downward departures for family ties, diminished capacity, aberrant behavior, educational or vocational skills, mental or emotional conditions, employment record, good works, or overstated criminal history. Defense lawyers, law professors, current and former Sentencing Commissioners, the President of the American Bar Association, Chief Justice Rehnquist, and others wrote to Congress opposing the amendment. The enacted bill limited the changes described above to crimes involving pornography, sexual abuse, child sex, and child kidnapping and trafficking. It also raised penalties for child pornography and child sex abuse. It also greatly increased prosecutorial discretion and influence by limiting judges' power to depart from the guidelines and granting prosecutors greater power over departures. For instance, it made a prosecutorial motion a prerequisite for a three-level reduction for acceptance of responsibility. It also instructed the Sentencing Commission to authorize four-level "fast-track" downward departures in illegal-reentry immigration cases upon motion of the prosecutor.
United States v. Booker
Though the Federal Sentencing Guidelines were styled as mandatory, the Supreme Court's 2005 decision in United States v. BookerUnited States v. Booker
United States v. Booker, , was a United States Supreme Court decision concerning criminal sentencing. The Court ruled that the Sixth Amendment right to jury trial requires that, other than a prior conviction, only facts admitted by a defendant or proved beyond a reasonable doubt to a jury may be...
found that the Guidelines, as originally constituted, violated the Sixth Amendment
Sixth Amendment to the United States Constitution
The Sixth Amendment to the United States Constitution is the part of the United States Bill of Rights which sets forth rights related to criminal prosecutions...
right to trial by jury, and the remedy chosen was excision of those provisions of the law establishing the Guidelines as mandatory. In the aftermath of Booker and other Supreme Court cases, such as Blakely v. Washington
Blakely v. Washington
Blakely v. Washington, 542 U.S. 296 , held that, in the context of mandatory sentencing guidelines under state law, the Sixth Amendment right to a jury trial prohibited judges from enhancing criminal sentences based on facts other than those decided by the jury or admitted by the defendant...
(2004), Guidelines are now considered advisory only, on both the federal and the state levels. Judges must calculate the guidelines and consider them when determining a sentence but are not required to issue sentences within the guidelines. Those sentences are still, however, subject to appellate review. Above-Guidelines-range sentences are imposed at a rate double that of the rate before Booker.
Guidelines basics
The Guidelines determine sentences based primarily on two factors:- the conduct associated with the offense (the offense conduct, which produces the offense level)
- the defendant's criminal history (the criminal history category)
The Sentencing Table in the Guidelines Manual shows the relationship between these two factors; for each pairing of offense level and criminal history category, the Table specifies a sentencing range, in months, within which the court may sentence a defendant. For example, for a defendant convicted on an offense with a total offense level of 22 and a criminal history category of I, the Guidelines recommend a sentence of 41–51 months, considering the year of the offense to be the same as the year of the guidelines. If, however, a person with an extensive criminal history (Category VI) committed the same offense in the same manner in the same modern timeline and not during the older guideline periods, the Guidelines would recommend a sentence of 84–105 months.
Offense level
There are 43 offense levels. The offense level of a defendant is determined by looking up the offense in Chapter 2 and applying any applicable adjustments. The original proposed sentencing guidelines had 360 levels, and there are proposals to substantially reduce the current number of offense levels.Criminal history
There are six criminal history categories. Each category is associated with a range of criminal history points. Thus, for example, a defendant with 0 or 1 criminal history points would be in Criminal History Category I, while a defendant with 13 or more criminal history points would be in Criminal History Category VI. The criminal history points are calculated by adding 3 points for each prior sentence of imprisonment exceeding one year and one month; adding 2 points for each prior sentence of imprisonment of at least sixty days but not more than 13 months; adding 1 point for each prior sentence of less than sixty days; adding 2 points if the defendant committed the instant offense while under any criminal justice sentence, including probation, parole, supervised release, imprisonment, work release, or escape status; adding 2 points if the defendant committed the instant offense less than two years after release from imprisonment on a sentence of sixty days or more or while in imprisonment or escape status on such a sentence, except that if 2 points are added committing the offense while under a criminal justice sentence, adding only 1 point for this item; and adding 1 point for each prior sentence resulting from a conviction of a crime of violence that did not receive any points because such sentence was counted as a single sentence, up to a total of 3 points for this item.The guidelines require "counting prior adult diversionary dispositions if they involved a judicial determination of guilt or an admission of guilt
Admission (law)
An admission in the law of evidence is a prior statement by an adverse party which can be admitted into evidence over a hearsay objection. In general, admissions are admissible in criminal and civil cases.At common law, admissions were admissible...
in open court. This reflects a policy that defendants who receive the benefit of a rehabilitative sentence and continue to commit crimes should not be treated with further leniency."
Zones
There are four sentencing zones: A, B, C, and D. Zone A consists of sentencing ranges of 0–6 months. Zone B consists of sentencing ranges above Zone A but with a maximum penalty of no more than 12 months. Zone C consists of sentencing ranges above Zone B but whose minimum penalty is less than 12 months. Zone D consists of sentencing ranges above Zone C.A defendant in Zone A is eligible for Federal Probation
Federal Probation
The Federal Probation Service or United States Probation Service is part of the Federal Judiciary and serves the United States district courts in all 94 judicial federal districts nationwide and constitutes the community corrections arm of the Federal Judiciary...
, and no term of imprisonment is required. Probation is also authorized if the applicable guideline range is in Zone B of the Sentencing Table and the court imposes a condition or combination of conditions requiring intermittent confinement, community confinement, or home detention as provided in , but at least one month of the sentence must be satisfied by imprisonment. A split sentence
Split sentence
A "split sentence" is a sentence which the defendant serves up to half of his term of imprisonment outside of prison. Martha Stewart received a split sentence...
is authorized for defendants in Zone C. That is, Zone C defendants must serve at least half of their sentence in prison.
In 2010, the U.S. Sentencing Commission proposed expanding Zones B and C, in recognition of the fact that many offenders are sentenced to 12 months and 1 day in order to receive the benefit of good time under U.S. federal law.
Reductions in time to be served
There can be substantial assistance that can be grounds for significant reductions in federal criminal justice sentences in the United States. The Federal Rules of Criminal ProcedureFederal Rules of Criminal Procedure
The Federal Rules of Criminal Procedure are the procedural rules that govern how federal criminal prosecutions are conducted in United States district courts, the general trial courts of the U.S. government. As such, they are the companion to the Federal Rules of Civil Procedure...
and U.S. Sentencing Guidelines require that the prosecution file a motion allowing the reduction. The court is not required to grant the reduction, and may decline to do so if it deems the information provided by the defendant to be untruthful, incomplete, unreliable, insignificant, not useful, or untimely. The Guidelines provide, "Substantial weight should be given to the government’s evaluation of the extent of the defendant’s assistance, particularly where the extent and value of the assistance are difficult to ascertain."
Increase in time to be served
There are victim-related adjustments for hate crimeHate crime
In crime and law, hate crimes occur when a perpetrator targets a victim because of his or her perceived membership in a certain social group, usually defined by racial group, religion, sexual orientation, disability, class, ethnicity, nationality, age, gender, gender identity, social status or...
motivation or vulnerable victims; official victim
Official victim
The official victim enhancement is a 3- or 6-level increase under the U.S. Sentencing Guidelines that applies when a person knowingly commits a crime against a government official and is motivated by that person's status...
s; restraint of victims; and terrorism. Adjustments can apply depending on the offender's role in the offense, which can include an aggravating role, a mitigating role. Enhancements apply for abuse of a position of trust or use of a special skill, using a minor to commit a crime, and use of body armor in drug trafficking crimes and crimes of violence.
In addition, there are enhancements related to obstruction of justice
Obstruction of justice
The crime of obstruction of justice, in United States jurisdictions, refers to the crime of interfering with the work of police, investigators, regulatory agencies, prosecutors, or other officials...
, including obstructing or impeding the administration of justice, reckless endangerment
Endangerment
In US law, endangerment comprises several types of crimes involving conduct that is wrongful and reckless or wanton, and likely to produce death or grievous bodily harm to another person....
during flight, commission of an offense while on release, and false registration of a domain name
Domain name
A domain name is an identification string that defines a realm of administrative autonomy, authority, or control in the Internet. Domain names are formed by the rules and procedures of the Domain Name System ....
.
Adjustments also apply in cases involving multiple counts.
A 2- or 3-level offense level decrease is typically granted for acceptance of responsibility
Acceptance of responsibility
Acceptance of responsibility is a provision in the U.S. Sentencing Guidelines providing for a decrease by 2 or 3 levels in offenders' offense level for admitting guilt and otherwise demonstrating behavior consistent with acceptance of responsibility, such as ending criminal conduct and...
if the defendant accepts a plea bargain. However, the decrease will not apply if the defendant demonstrates behavior, such as continued criminal activity, that is inconsistent with acceptance of responsibility.
Departures
Departures upward or downward from the guideline range are appropriate for cases that deviate from the heartland of cases.Departures are allowed in cases involving substantial assistance to authorities. Indeed, the Sentencing Reform Act even allows a departure below the applicable statutory mandatory minimum in such cases. There is no penalty for refusal to assist authorities.
Other grounds for departure:
- Death (§5K2.1)
- Physical injury (§5K2.2)
- Extreme psychological injury (§5K2.3)
- Abduction or unlawful restraint (§5K2.4)
- Property damage or loss (§5K2.5)
- Weapons and dangerous instrumentalities (§5K2.6)
- Disruption of governmental function (§5K2.7)
- Extreme conduct (§5K2.8)
- Criminal purpose (§5K2.9)
- Victim's conduct (§5K2.10)
- Lesser harms (§5K2.11)
- Coercion and duress (§5K2.12)
- Diminished capacityDiminished capacity in United States lawDiminished capacity in United States law provides for reduced penalties for certain offenders with mental illness. The U.S. Sentencing Guidelines provide, "A downward departure may be warranted if the defendant committed the offense while suffering from a significantly reduced mental capacity; and...
(§5K2.13)
- Public welfare (§5K2.14)
- Voluntary disclosure of offense (§5K2.16)
- Semiautomatic firearms capable of accepting large capacity magazines (§5K2.17)
- Violent street gangs (§5K2.18)
- Post-sentencing rehabilitative efforts (§5K2.19)
- Aberrant behavior (§5K2.20)
- Dismissed and uncharged conduct (§5K2.21)
- Specific offender characteristics as grounds for downward departure in child crimes and sexual offenses (§5K2.22)
- Discharged terms of imprisonment (§5K2.23)
- Commission of offense while wearing or displaying unauthorized or counterfeit insignia or uniform (§5K2.24)
Controversies
Among the controversial aspects of the Sentencing Guidelines have been the 100:1 disparity between treatment of crack and cocaine (which has been amended to 18:1 by the Fair Sentencing Act of 2010) and the immigration guidelines which call for hefty enhancements for illegal re-entrants with prior felony records, despite the prior offenses already being taken into account via the Criminal History Category. Heavy penalties for child pornographyChild pornography
Child pornography refers to images or films and, in some cases, writings depicting sexually explicit activities involving a child...
offenders have also come under fire. Many judges are refusing to apply the Guidelines in these cases.
It has been argued that the Sentencing Guidelines actually increase unwarranted sentencing disparities. Joseph S. Hall writes, "Factors such as whether or not the defendant can afford a skilled attorney capable of making innovative legal arguments or performing detailed factual investigations have a profound influence on a defendant's sentence. The prosecutor's power to extract guilty pleas, previously held in check by judges, is now counterbalanced only by the diligence of the defense attorney." Stuntz claims that "when necessary, the litigants simply bargain about what facts will (and won't) form the basis for sentencing. It seems to be an iron rule: guidelines sentencing empowers prosecutors, even where the guidelines' authors try to fight that tendency...In short, plea bargains outside the law's shadow depend on prosecutors' ability to make credible threats of severe post-trial sentences. Sentencing guidelines make it easy to issue those threats."
The federal guilty plea rate has risen from 83% in 1983 to 96% in 2009, a rise attributed largely to the Sentencing Guidelines.
Sentencing table
The sentencing table is an integral part of the U.S. Sentencing Guidelines.The Offense Level (1-43) forms the vertical axis of the Sentencing Table. The Criminal History Category (I-VI) forms the horizontal axis of the Table. The intersection of the Offense Level and Criminal History Category displays the Guideline Range in months of imprisonment. "Life" means life imprisonment. For example, the guideline range applicable to a defendant with an Offense Level of 15 and a Criminal History Category of III is 24–30 months of imprisonment.
| Offense level | Criminal History Category (Criminal History Points) | ||||||
|---|---|---|---|---|---|---|---|
| I (0 or 1) | II (2 or 3) | III (4,5,6) | IV (7,8,9) | V (10,11,12) | VI (13 or more) |
||
| Zone A | 1 | 0-6 | 0-6 | 0-6 | 0-6 | 0-6 | 0-6 |
| 2 | 0-6 | 0-6 | 0-6 | 0-6 | 0-6 | 1-7 | |
| 3 | 0-6 | 0-6 | 0-6 | 0-6 | 2-8 | 3-9 | |
| 4 | 0-6 | 0-6 | 0-6 | 2-8 | 4-10 | 6-12 | |
| 5 | 0-6 | 0-6 | 1-7 | 4-10 | 6-12 | 9-15 | |
| 6 | 0-6 | 1-7 | 2-8 | 6-12 | 9-15 | 12-18 | |
| 7 | 0-6 | 2-8 | 4-10 | 8-14 | 12-18 | 15-21 | |
| 8 | 0-6 | 4-10 | 6-12 | 10-16 | 15-21 | 18-24 | |
| Zone B | 9 | 4-10 | 6-12 | 8-14 | 12-18 | 18-24 | 21-27 |
| 10 | 6-12 | 8-14 | 10-16 | 15-21 | 21-27 | 24-30 | |
| Zone C | 11 | 8-14 | 10-16 | 12-18 | 18-24 | 24-30 | 27-33 |
| 12 | 10-16 | 12-18 | 15-21 | 21-27 | 27-33 | 30-37 | |
| Zone D | 13 | 12-18 | 15-21 | 18-24 | 24-30 | 30-37 | 33-41 |
| 14 | 15-21 | 18-24 | 21-27 | 27-33 | 33-41 | 37-46 | |
| 15 | 18-24 | 21-27 | 24-30 | 30-37 | 37-46 | 41-51 | |
| 16 | 21-27 | 24-30 | 27-33 | 33-41 | 41-51 | 46-57 | |
| 17 | 24-30 | 27-33 | 30-37 | 37-46 | 46-57 | 51-63 | |
| 18 | 27-33 | 30-37 | 33-41 | 41-51 | 51-63 | 57-71 | |
| 19 | 30-37 | 33-41 | 37-46 | 46-57 | 57-71 | 63-78 | |
| 20 | 33-41 | 37-46 | 41-51 | 51-63 | 63-78 | 70-87 | |
| 21 | 37-46 | 41-51 | 46-57 | 57-71 | 70-87 | 77-96 | |
| 22 | 41-51 | 46-57 | 51-63 | 63-78 | 77-96 | 84-105 | |
| 23 | 46-57 | 51-63 | 57-71 | 70-87 | 84-105 | 92-115 | |
| 24 | 51-63 | 57-71 | 63-78 | 77-96 | 92-115 | 100-125 | |
| 25 | 57-71 | 63-78 | 70-87 | 84-105 | 100-125 | 110-137 | |
| 26 | 63-78 | 70-87 | 78-97 | 92-115 | 110-137 | 120-150 | |
| 27 | 70-87 | 78-97 | 87-108 | 100-125 | 120-150 | 130-162 | |
| 28 | 78-97 | 87-108 | 97-121 | 110-137 | 130-162 | 140-175 | |
| 29 | 87-108 | 97-121 | 108-135 | 121-151 | 140-175 | 151-188 | |
| 30 | 97-121 | 108-135 | 121-151 | 135-168 | 151-188 | 168-210 | |
| 31 | 108-135 | 121-151 | 135-168 | 151-188 | 168-210 | 188-235 | |
| 32 | 121-151 | 135-168 | 151-188 | 168-210 | 188-235 | 210-262 | |
| 33 | 135-168 | 151-188 | 168-210 | 188-235 | 210-262 | 235-293 | |
| 34 | 151-188 | 168-210 | 188-235 | 210-262 | 235-293 | 262-327 | |
| 35 | 168-210 | 188-235 | 210-262 | 235-293 | 262-327 | 292-365 | |
| 36 | 188-235 | 210-262 | 235-293 | 262-327 | 292-365 | 324-405 | |
| 37 | 210-262 | 235-293 | 262-327 | 292-365 | 324-405 | 360-life | |
| 38 | 235-293 | 262-327 | 292-365 | 324-405 | 360-life | 360-life | |
| 39 | 262-327 | 292-365 | 324-405 | 360-life | 360-life | 360-life | |
| 40 | 292-365 | 324-405 | 360-life | 360-life | 360-life | 360-life | |
| 41 | 324-405 | 360-life | 360-life | 360-life | 360-life | 360-life | |
| 42 | 360-life | 360-life | 360-life | 360-life | 360-life | 360-life | |
| 43 | life | life | life | life | life | life |
Fines
For individuals, the fine table is as follows:| Offense level | Minimum | Maximum |
|---|---|---|
| 3 and below | $100.00 | $5,000.00 |
| 4-5 | $250.00 | $5,000.00 |
| 6-7 | $500.00 | $5,000.00 |
| 8-9 | $1,000.00 | $10,000.00 |
| 10-11 | $2,000.00 | $20,000.00 |
| 12-13 | $3,000.00 | $30,000.00 |
| 14-15 | $4,000.00 | $40,000.00 |
| 16-17 | $5,000.00 | $50,000.00 |
| 18-19 | $6,000.00 | $60,000.00 |
| 20-22 | $7,500.00 | $75,000.00 |
| 23-25 | $10,000.00 | $100,000.00 |
| 26-28 | $12,500.00 | $125,000.00 |
| 29-31 | $15,000.00 | $150,000.00 |
| 32-34 | $17,500.00 | $175,000.00 |
| 35-37 | $20,000.00 | $200,000.00 |
| 38 and above | $25,000.00 | $250,000.00 |
The Guidelines state that the court can impose a fine above the maximum set out in the table if the defendant is convicted under a statute authorizing a maximum fine greater than $250,000, or a fine for each day of violation. The court can waive the fine if the defendant is unlikely to be able to pay or if the fine would unduly burden the defendant's dependents; however, the Guidelines state that the court must still impose a total combined sanction that is punitive.
Probation and supervised release
The Guidelines state that the term of probation shall be at least one year but not more than five years if the offense level is 6 or greater, and no more than three years in any other case. The Guidelines provide that the term of supervised release under U.S. federal law shall be at least three years but not more than five years for a defendant convicted of a Class A or B felony; at least two years but not more than three years for a defendant convicted of a Class C or D felony; and one year for a defendant convicted of a Class E felony or a Class A misdemeanor. However, a life term of supervised release may be imposed for any offense listed in , the commission of which resulted in, or created a foreseeable risk of, death or serious bodily injury to another person; or a sex offense. Supervised release is recommended by the Guidelines for most offenders who are serving a prison sentence of more than a year.See also
- Apprendi v. New JerseyApprendi v. New JerseyApprendi v. New Jersey , , was a United States Supreme Court decision. The Court ruled that the Sixth Amendment right to a jury trial, incorporated against the states through the Fourteenth Amendment, prohibited judges from enhancing criminal sentences beyond statutory maximums based on facts...
- Fair Sentencing ActFair Sentencing ActThe Fair Sentencing Act of 2010 was an Act of Congress signed into law by U.S. President Barack Obama on August 3, 2010. Similar bills were introduced in several U.S. Congresses before its passage in 2010...
- Safety valve (law)Safety valve (law)The safety valve is a provision in the Sentencing Reform Act and the United States Federal Sentencing Guidelines that authorizes a sentence below the statutory minimum for certain nonviolent, non-managerial drug offenders with little or no criminal history....
- United States v. BinionUnited States v. BinionUnited States v. Binion, 132 F. App'x 89 , is a case in which the United States Court of Appeals for the Eighth Circuit applied two recent U.S. Supreme Court decisions United States v. Binion, 132 F. App'x 89 (8th Cir. 2005), is a case in which the United States Court of Appeals for the Eighth...