Most people have a basic understanding of the process involved to determine
a sentence for a person convicted of a crime. In most state courts, a
judge imposes a sentence based upon parameters set by the legislature.
As an example, in the State of Nebraska, a Class III felony is punishable
by a term of imprisonment between one (1) and twenty (20) years in prison.
For a person convicted of a Class III felony, a judge can impose a sentence
between those two numbers.
In federal court, the system is similar with one major difference.
Similar to state court, federal judges impose sentences based upon parameters
set by federal laws. The difference in federal court is judges consider
the United States Sentencing Guidelines before determining an appropriate
sentence. The Guidelines were created to promote unity across the United
States for the imposition of sentences. The idea was to ensure that a
person who was convicted of a federal crime in California would likely
receive a similar sentence to a person convicted of the sam crime in Nebraska.
In short, the Guidelines require the Court to start with a certain amount
of months of incarceration.
The more severe the crime, the higher the starting point.
The starting point for federal judges is called a base offense level.
For every federal crime, there is a corresponding base offense level. The
more serious the crime, the higher base offense level. Every base offense
level has a corresponding term of imprisonment. The United States Sentencing
Commission publishes a table of sentences, which you can
view here. The numbers appearing on the table represent the months of incarceration.
A defendant’s potential guideline range is based upon a combination
of a defendant’s criminal history category (across the top of the
table) and the offense level (down the left side of the table).
Offense levels are the levels which indicate a possible range of sentence
that a person will receive upon entry of plea or upon a conviction. The
offense level is noted on the left side of the sentencing chart included
with this letter. That offense level, when aligned with the correct criminal
history category, provides the possible range of sentencing guidelines.
If a person has no criminal history, the criminal history category (across
the top of the table) will be a I. The more criminal history a person
has, the longer the sentence to be imposed.
Let’s assume for example a person is charged with conspiracy to possesses
pseudoephedrine knowing it was going to be used to manufacture methamphetamine.
Let’s assume that a defendant purchased pseudoephedrine 10 times
in the past few years. There is approximately is 2.88 grams of pseudoephedrine
in 96 count box of Sudafed (or whatever drug was used). Ten (10) purchases
times 2.88 grams equals a total of 28 grams of pseudoephedrine.
According to the sentencing guidelines, a person who possession between
10 and 40 grams of pseudoephedrine knowing it will be used to manufacture
methamphetamine is subject to a base offense level of twenty-six (26).
Looking at the sentencing table, a person with no criminal history and
a base offense level of 26 is looking at a term of imprisonment between
63 and 78 months.
Enhancements and Reductions based upon the Facts associated with the Crime
There are ways a base offense level can be increased or decreased. In some
cases, the number can increased if there was violence involved with the
commission of the crime or a weapon was used. Conversely, the base offense
level can also decrease if a person was a minimal participant in the crime
or if the person enters a plea and saves the government the time and energy
associated with preparing for trial.
Another way a defendant can receive a reduction in his or her sentence
is by providing substantial assistance in helping investigators develop
and prosecute cases against other people who are involved in illegal activity.
After providing such assistance, and after a defendant is sentenced, the
Court is allowed to reduce the sentence if the government files a motion
within one year of the sentencing date showing that the defendant did
provide assistance. The Motion is called a Rule 35 motion, and once again
the motion is filed after the defendant is formally sentenced. Depending
upon the information and cooperation provided, I’ve seen defendants
receive a 50 percent reduction in their sentences. Furthermore, I have
seen reductions greater than 50 percent for Defendants who testify in court.
Of course, the government will only consider filing a motion for downward
departure of a sentence if a defendant cooperates before trial. This option
is not available for defendants who have a trial and require that the
government prepare for trial.
Parole or Probation
There is no such thing as parole in the federal system. In the federal
system, a person convicted of a crime and sentenced to prison will do
every day of that sentence minus 54 days per year for good time, if the
person retains his or her good time.
Probation is available for certain defendants, but most people who get
charged in federal court are charged with such serious crimes, probation
is not a realistic option.