Sentencing - Federal Sentencing Guidelines

offense level sentence –life

The Sentencing Reform Act of 1984 is the federal approach to truth-in-sentencing, or determinate sentencing. In the U.S. Sentencing Commission's publication Fifteen Years of Guidelines Sentencing (Washington, DC, November 2004) are listed the goals of the Sentencing Reform Act:

  1. Elimination of unwarranted disparity
  2. Transparency, certainty, and fairness
  3. Proportionate punishment; and
  4. Crime control through deterrence, incapacitation, and the rehabilitation of offenders

These goals were aimed at eliminating the unregulated power of federal judges to impose sentences of indeterminate length. Such power resulted in persons convicted of the same crime but sentenced by different judges receiving wildly different terms of incarceration. The development of federal guidelines by the USCC was intended to give both a range of sentencing options to federal judges while guaranteeing minimum and maximum sentencing lengths.

The federal guidelines were originally developed by the USSC, which continues to update the guidelines as laws administered by the federal courts are changed or new laws are passed. The latest edition of the guidelines were published in 2004 (Federal Sentencing Guidelines Manual, November 2004, http://www.ussc.gov/2004guid/TABCON04.htm). Supplemental volumes are also issued by the USSC.

At the core of the guidelines are offenses as defined by federal statutes. The USSC assigns an "offense level" to each offense, known as the Base Offense Level. Levels are numbered from 1 to 43. The lowest actual offense for which the USSC has a level is Trespass. Trespass is level 4. First degree murder has a Base Offense Level of 43. Based on various circumstances associated with an offense, additional levels may be added or taken away until a particular offense has been precisely defined by level. Levels are abstract numbers. Their purpose is to enable the judge or prosecutor to find a particular sentence, in months of imprisonment, in the federal Sentencing Table.

An illustration is provided for kidnapping, abduction, and unlawful restraint. (See Table 9.1.) The table reproduces the USSC's guideline for this offense. The

TABLE 9.1
Federal sentencing guidelines on kidnapping
SOURCE: "§2A4.1. Kidnapping, Abduction, Unlawful Restraint," in 2004 Federal Sentencing Guidelines Manual, U.S. Sentencing Commission, November 2004, http://www.ussc.gov/2004guid/2a4_1.htm (accessed March 31, 2005)

§2A4.1. Kidnapping, abduction, unlawful restraint
  1. Base offense level: 32
  2. Specific offense characteristics
    1. If a ransom demand or a demand upon government was made, increase by 6 levels.
      1. If the victim sustained permanent or life-threatening bodily injury, increase by 4 levels;
      2. if the victim sustained serious bodily injury, increase by 2 levels; or
      3. if the degree of injury is between that specified in subdivisions (A) and (B), increase by 3 levels.
    2. If a dangerous weapon was used, increase by 2 levels.
      1. If the victim was not released before thirty days had elapsed, increase by 2 levels.
      2. If the victim was not released before seven days had elapsed, increase by 1 level.
    3. If the victim was sexually exploited, increase by 6 levels.
    4. If the victim is a minor and, in exchange for money or other consideration, was placed in the care or custody of another person who had no legal right to such care or custody of the victim, increase by 3 levels.
    5. If the victim was kidnapped, abducted, or unlawfully restrained during the commission of, or in connection with, another offense or escape therefrom; or if another offense was committed during the kidnapping, abduction, or unlawful restraint, increase to—
      1. the offense level from the chapter two offense guideline applicable to that other offense if such offense guideline includes an adjustment for kidnapping, abduction, or unlawful restraint, or otherwise takes such conduct into account; or
      2. 4 plus the offense level from the offense guideline applicable to that other offense, but in no event greater than level 43, in any other case,
      if the resulting offense level is greater than that determined above.

offense has a Base Offense Level of 32, but additional levels can be added. For instance, if the victim sustained serious bodily injury, the level is increased by four to 36. If the victim was also sexually exploited, the level is increased by six levels to 38. If the victim was not released before seven days had passed, the level is increased by one to 33.

In the USSC's Sentencing Table, presented as Table 9.2, level 28 points to six columns of sentence ranges indicating a minimum and a maximum sentence in each column. The first column, where the sentence range is seventy-eight to ninety-seven months, the offender either has no prior convictions or has one prior conviction. In the sixth column, where the sentence is 140 to 175 months, the offender has thirteen or more prior convictions. A single level thus provides six different levels of confinement, and, within each level, there is a range from minimum to maximum. Judges are not entirely deprived of discretion by determinate sentencing.

Level 28 falls into the Sentencing Table's Zone D. This means that the individual may not receive any probation and must serve at least the minimum sentence shown in the applicable column. A three-time offender would be minimally sentenced to eighty-seven months in prison and, under the USSC guidelines, could receive, maximally, fifty-four days off per year for good behavior and would therefore serve at least 85% of the minimum sentence. In the case illustrated earlier, where sexual exploitation is involved, the individual would also be charged for criminal sexual abuse (a Base Offense Level of 24) or for sexual abuse of a minor (Level 18 to 24 depending on whether the abuse was attempted or committed). Parole is not available in any of the guideline cases.

Property crimes are handled in the USSC guidelines in a similar manner. The base level is increased with the amount of property involved. With larceny, embezzlement, and other forms of theft, for instance, the Base Offense Level is 6 in cases where the loss to the victim is $5,000 or less. If the loss is greater than $5,000 but less than $10,000, the level rises to 8 and continues to rise as the amount of the loss rises. If the loss is more than $200,000 but less than $400,000, the level is 18. If the loss is greater than $100 million, the level is 32—which will result in a mandatory sentence of at least ten years in prison for a first-time offender. A person who earned the maximum days for good behavior could expect to be out in eight years and six months if he or she received the minimum sentence. Fines and restitution of stolen money or property would be required in addition.

"Departures" from the Guidelines

Application of the Federal Sentencing Guidelines has increased the likelihood of imprisonment and the average length of sentences, according to the USSC's Fifteen Years of Guidelines Sentencing. In 2002 some 86% of all federal offenders were sentenced to prison, an increase from 69% in 1987. The average sentence in 2002 was almost twice as long as in 1984, but there were yearly variations during this period. Based on data published in the Sourcebook of Criminal Justice Statistics, 2002 (Bureau of Justice Statistics, 2004), the average sentence imposed in 1990 was 59.2 months, excluding life sentences. The average length peaked at 66.4 months in 1995 and then declined to 46.9 months in 2002. This is

TABLE 9.2
Federal sentencing table, 2004
[In months of imprisonment]
SOURCE: "Sentencing Table," in 2004 Federal Sentencing Guidelines Manual, U.S. Sentencing Commission, November 2004, http://www.ussc.gov/2004guid/5a.htm (accessed March 31, 2005)

Criminal history category (criminal history points)
Offense level I (0 or 1) II (2 or 3) III (4, 5, 6) IV (7, 8, 9) V (10, 11, 12) VI (13 or more)
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
zone A 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
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
zone D 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
Note: Zones indicate whether or not the individual is eligible for probation. Terms that fall into Zone A are eligible for straight probation. Terms that fall into Zone B are eligible for a split sentence in which a portion of the sentence is served in prison, a portion under probation. The person may receive less than the minimum sentence but must serve the remaining time under probation, intermittent confinement, community confinement, or home detention. Terms that fall into Zone C are eligible for probation, but at least half of the guideline sentence must be served in prison. Terms that fall into Zone D require that the minimum term must be served in prison. The criminal history columns refer to prior offenses. Under Category II, for instance, the person to be sentenced has had 2 or 3 prior convictions. This note is not part of the official Sentencing Table; it has been adapted from Lucien B. Cambell and Henry J. Bemporad, An Introduction to Federal Guideline Sentencing, United States Sentencing Commission, Washington, DC, March 2003.

due, in part, to stipulations in the guidelines for so-called "departures" from the guidelines' own provisions. Departures may be "upward" for cases where special circumstances merit longer incarceration than the guideline provides for the maximum sentence; "downward" departures authorize lesser than guideline sentences either for extenuating circumstances or because the defendant provided "substantial assistance" to federal authorities, typically in the form of helping a broader investigation or providing testimony against other suspects.

The 2002 Sourcebook of Federal Sentencing Statistics (Washington, DC: U.S. Sentencing Commission, 2003) reported that in 2002 only 65% of sentences rendered by federal courts were within the range of the guidelines; 0.8% of sentences were upward departures and 34.2% were downward departures, slightly more than half of those for "substantial assistance." (See Table 9.3.)

Departures mean that the guidelines are applied to a majority but not to all persons charged with federal

TABLE 9.3
Sentences within and departing from U.S. Sentencing Commission guidelines, fiscal year 2002
[Prior to enactment of the Protect Act]
SOURCE: "Table 27. Offenders Receiving Departures in Each Primary Offense Category, Fiscal Year 2002," in 2002 Sourcebook of Federal Sentencing Statistics, U.S. Sentencing Commission, 2003, http://www.ussc.gov/ANNRPT/2002/table27.pdf (accessed March 31, 2005)

Sentenced within range Substantial assistance departure Other downward departure Upward departure
Primary offense Total Number Percent Number Percent Number Percent Number Percent
    Total 58,423 37,968 65.0 10,170 17.4 9,828 16.8 457 0.8
Murder 76 50 65.8 4 5.3 9 11.8 13 17.1
Manslaughter 57 37 64.9 1 1.8 6 10.5 13 22.8
Kidnapping/hostage-taking 57 33 57.9 4 7.0 12 21.1 8 14.0
Sexual abuse 195 142 72.8 2 1.0 37 19.0 14 7.2
Assault 445 347 78.0 12 2.7 70 15.7 16 3.6
Robbery 1,522 1,051 69.1 227 14.9 220 14.5 24 1.6
Arson 59 38 64.4 14 23.7 4 6.8 3 5.1
Drugs—trafficking 23,949 13,398 55.9 6,565 27.4 3,932 16.4 54 0.2
Drugs—communication facility 421 303 72.0 56 13.3 61 14.5 1 0.2
Drugs—simple possession 481 458 95.2 17 3.5 4 0.8 2 0.4
Firearms 4,765 3,511 73.7 581 12.2 602 12.6 71 1.5
Burglary/breaking and entering 42 30 71.4 5 11.9 4 9.5 3 7.1
Auto theft 151 93 61.6 41 27.2 14 9.3 3 2.0
Larceny 2,038 1,745 85.6 151 7.4 126 6.2 16 0.8
Fraud 6,378 4,539 71.2 1,135 17.8 633 9.9 71 1.1
Embezzlement 672 588 87.5 24 3.6 58 8.6 2 0.3
Forgery/counterfeiting 1,363 1,094 80.3 159 11.7 97 7.1 13 1.0
Bribery 148 87 58.8 41 27.7 20 13.5 0 0.0
Tax 557 352 63.2 107 19.2 95 17.1 3 0.5
Money laundering 852 496 58.2 245 28.8 101 11.9 10 1.2
Racketeering/extortion 744 474 63.7 178 23.9 75 10.1 17 2.3
Gambling/lottery 95 57 60.0 27 28.4 11 11.6 0 0.0
Civil rights 87 60 69.0 16 18.4 11 12.6 0 0.0
Immigration 10,399 6,861 66.0 248 2.4 3,236 31.1 54 0.5
Pornography/prostitution 613 442 72.1 34 5.5 117 19.1 20 3.3
Prison offenses 297 229 77.1 19 6.4 46 15.5 3 1.0
Administration of Justice offenses 1,010 719 71.2 144 14.3 134 13.3 13 1.3
Environmental/wildlife 121 76 62.8 25 20.7 20 16.5 0 0.0
National defense 9 6 66.7 1 11.1 2 22.2 0 0.0
Antitrust 16 5 31.3 9 56.3 2 12.5 0 0.0
Food & drug 77 55 71.4 10 13.0 11 14.3 1 1.3
Other miscellaneous offenses 727 592 81.4 68 9.4 58 8.0 9 1.2
Note: Of the 64,366 cases, 5,943 were excluded due to one or both of the following reasons: missing primary offense (393) or missing/inapplicable departure information (5,682).

offenses—and also variably by category of offense. In 2002 the two highest categories under guidelines were simple possession of drugs (95.2% under guideline) and embezzlement (87.5%). The lowest category by far was related to antitrust violations (31.3%). Those charged with antitrust violations were most likely to get lower sentences for cooperating with prosecutors; those charged with manslaughter were the most likely to get higher than guideline sentences for unusual violence.

Blakely v. Washington and United States v. Booker

U.S. Supreme Court decisions in 2004 and 2005 have modified sentencing guidelines. In 2004 the Supreme Court ruled in Blakely v. Washington that a state judge cannot impose a longer sentence when the basis for such an enhanced sentence was neither admitted to by the subject nor found by a jury. In the Blakely case the subject admitted to kidnapping his estranged wife. The maximum sentence for the crime was fifty-three months in prison, but the judge imposed a sentence of ninety months after determining that the subject had acted with deliberate cruelty, a factor that under existing statutes allowed a longer sentence. However, the charge of deliberate cruelty had not been part of the subject's plea, and it had not been determined by a jury. The Supreme Court found that the Sixth Amendment right to a trial by jury had thus been violated. The Blakely ruling means that only facts proved to a jury can justify an enhanced sentence.

A related ruling occurred in January 2005 with United States v. Booker. In this case the subject had been charged with possession with intent to distribute 50 grams of crack cocaine, a crime for which the federal sentencing guidelines set a twenty-one-year, ten-month sentence. But the judge later determined that the subject had possessed 92 grams of crack cocaine and had obstructed justice as well. Because of these additional offenses, the judge sentenced Booker to thirty years in prison. In language similar to the Blakely ruling, the U.S. Supreme Court ruled that federal judges cannot determine facts that are used to increase a defendant's punishment beyond what is authorized by a jury verdict or the defendant's own admissions. In addition, the court ruled that federal sentencing guidelines should be considered, but judges are not required to follow them. The legal impact of these two decisions is still being worked out in the courts.

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