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Sentencing in Federal Court

by | Feb 17, 2022 | Criminal Law, Firm News, Frost & Kavanaugh Tips

How it works

Sentencing in federal court is largely driven by the United States Sentencing Guidelines (“USSG”). There are two important factors: the Judge uses a scoring system that gives points for (i) the nature of the crime (called the “offense level”) and (ii) assigns a Criminal History Category based on the defendant’s prior convictions, if any, some of which count and some of which do not count. The Judge then plugs these values into a chart called the Sentencing Table and arrives at a “presumptively reliable” time sentence. As an example, someone with an offense level of 19 and a criminal history category of III has a “presumptively reliable” sentencing range of 37-46 months. Under a Supreme Court case called United States v. Booker, the sentencing guidelines are no longer mandatory, and the sentencing Judge can use his or her discretion at sentencing. The sentencing Judge may give whatever sentence he or she believes is sufficient, but not excessive, to both punish and rehabilitate you. Remember, too, that some laws have a statutory minimum or maximum sentence that the judge must follow. In other words, if your “presumptively reliable” time under the Sentencing Table is less than the statutory minimum sentence, the judge must give you (at least) the minimum sentence, or if your “presumptively reliable” time under the Sentencing Table is more than your statutory maximum sentence, the judge may give you (at most) the maximum sentence.

Factor One: Offense level

Every federal misdemeanor or felony has a “base offense level,” to which levels can be added for aggravating factors or circumstances of the crime, or deducted for mitigating factors or circumstances of the crime. There are a total of 43 levels; level 1 is the lowest and could carry a sentence of probation, while 43 is the highest and could carry life in prison. For instance, Criminal Sexual Abuse typically has a base offense level of 30. To that, four levels are added if the victim is less than 12 years old, four more levels are added if the victim sustained permanent or life-threatening injuries, etc. The base offense level for sale, possession with intent to sell, or conspiracy to possess, any quantity of marijuana is 6, and cocaine, cocaine base (“crack” cocaine) or heroin is 12. But, as the quantity of drugs goes up, so does the base level: for 20 kilograms of marijuana, 20 grams of heroin, 100 grams of cocaine, or 5.6 grams of crack cocaine, the base level is 16.

After establishing the base offense level, the court will then add levels for “specific offense characteristics.” For instance, in a drug case, if you’re accused of possessing a dangerous weapon, add 2 levels. If you threatened violence, add 2 levels. If you distributed the drug to someone less than 18, add 2 levels. In a child pornography case, if you’re accused of using a computer to send or possess the pornography, add 2 levels. The list of specific offense characteristics is long and complicated, and varies for each crime. Your attorney should explain all of this to you.

From this new level (base offense plus specific offense characteristics), some levels can be deducted. For instance, if you played a minimum role in the offense in a drug case, deduct 4 levels. If you’ve accepted responsibility (usually by pleading guilty early in the process so the government doesn’t have to prepare for trial), deduct up to 3 points.

This whole process (base offense, plus specific offense characteristics, minus acceptance of responsibility and other reductions) gives you your “adjusted offense level” that the Judge will use to sentence you.

Factor Two: Criminal History Category

The next thing to calculate is your criminal history category. Points are added for different types of prior convictions. The general rule is that you get 3 points for each prior sentence that was more than one year and one month, 2 points for each prior sentence (that wasn’t already counted) that was at least 60 days, and one point for every other sentence that wasn’t already counted (but no more than 4 points here). Also, add 2 points if you committed your federal crime while on probation or parole. But, some convictions don’t count, like reckless driving, resisting arrest, trespassing, etc. And, some old convictions don’t count, like felonies that are more than 15 years old (excluding jail time), misdemeanors that are more than 10 years old, etc. Importantly, although a Youthful Offender adjudication in New York is not considered a “crime,” it still counts for federal purposes. Also, charges that are still pending against you don’t count toward your criminal history category, so oftentimes its best to refrain from pleading guilty to anything in state court until your federal matter is resolved. If you have 0-1 point, you’re a Category I; 2-3 points, you’re a Category II; 4-6 points, Category III; 7-9 points, Category IV; 10-12 points, Category V; and 13 or more points, Category VI. It’s tricky to work your way through the Criminal History Category calculations because of the number of prior convictions that don’t count. It gets especially tricky if you have prior violent or drug convictions, because some prior convictions will further enhance your sentence under the Armed Career Criminal Act. You should work with your attorney to accurately determine your Criminal History Category.

Special Cases: “safety valve” cases

Even if your crime of conviction has a minimum sentence involved, you may avoid it if you fall under the “safety valve” provision of the Sentencing Guidelines. To be safety valve eligible, you have to be convicted under certain statutes, and you have to be a Category I, not have used violence or possessed a weapon, have caused no injury, not be “an organizer, leader, manager or supervisor” of the criminal enterprise, and have sat down with the government and given them truthful evidence and information about anyone else involved in the crime. If you satisfy all of these elements, you will no longer receive the statutory minimum sentence. You are still subject to the Guidelines calculations above, however.

Should I plead guilty with, or without a plea agreement

If you’re going to plead guilty, you have the option of doing so with, or without, a plea agreement with the government. A plea agreement is a contract with the government, but unlike plea agreements in state court, the Judge is not a party to the contract. That means you can have an agreement with the US Attorney, but the Judge is not required to follow it, and you won’t know if the Judge is going to follow it until you get to sentencing.

Most times, we tell our clients that a plea agreement is not in their best interests, even if they want to plead guilty. In other words, if they want to plead guilty, they should “plead straight up,” meaning simply plead to charge without an agreement with the prosecutor. The reason is this: most times, if you have a plea agreement with the government, the prosecutor will put in the agreement that he or she recommends to the Judge that the Judge give you a guidelines sentence. And, if you plead guilty without a plea agreement, the government still will recommend to the Judge that the Judge give you a guidelines sentence anyway. In other words, you benefit not at all by having a plea agreement. But, you can suffer from it. Here’s why: if you have a plea agreement, the government will put a provision in the agreement that you cannot appeal your sentence if you get a sentence that is within the guidelines range. Most times, you want to advocate to the Judge that despite what the guidelines sentence says “presumptively reliable,” the judge should exercise discretion and give you something lower. While you can still do that with a plea agreement, if the Judge chooses not to, but instead gives you a guidelines sentence, you cannot appeal it to the Court of Appeals. But, without a plea agreement, you can appeal to the Court of Appeals if the Judge gives you a sentence you believe is excessive. In short, nine times out of 10, there is no benefit to having a plea agreement with the prosecutor, but you can injure yourself.

Sentencing interview with probation

After you plead guilty, or get found guilty after trial, you will have a conference with the probation department. Your attorney should attend this with you! If you pleaded guilty, you should answer all questions from probation (except if you have other charges still pending somewhere else, or if there is a dispute about your prior convictions – don’t answer those). If you went to trial and lost, you should not answer any questions about the crime itself, only about your life history. After meeting with you and your attorney, probation will write a report called the Presentence Investigation Report (“PSIR”) for the Judge to consider prior to sentencing you.

Sentencing memorandum

Prior to sentencing, your attorney should submit a sentencing memorandum to the Judge that addresses anything in the PSIR that is incorrect (such as the calculations on the offense level and/or your criminal history category), and also advocate on your behalf about what sentence you should receive. The attorney should stress things that would induce the judge to give you a lower sentence than probation or the US Attorney is asking for. That should include references to character letters your attorney submits for you.

Character letters

Sentencing letters should ask the Judge to consider who you are as a person, and not simply think of you as a defendant. These letters should come from your family, friends, and those in the community that know you best. You should submit as many character letters to the Judge as is possible. Twenty or thirty letters, or more, is not unreasonable.

Sentencing hearing

Your attorney should advocate for you at the sentencing hearing too, and raise any objections to the PSIR, to anything the US Attorney says, and to any conditions of supervised release that are inappropriate for you. Most important, however, is that you will get a chance to speak. You should prepare ahead of time and discuss what you want to say with your attorney. If you’re not comfortable speaking in public, it’s OK to write out what you want to say and read it to the Judge. One general tip: usually, you should not apologize to your family, or even to the Judge. Most judges think that sounds selfish. Instead, apologize to society, because it’s society that you harmed with your criminal conduct. Obviously, don’t do this if you went to trial and lost! If you went to trial and lost, you probably should not make a statement at sentencing.


At the sentencing hearing, the Judge will notify you of your right to appeal the sentence. You have to file a Notice of Appeal within 14 days of sentencing. In the Northern District of New York, that appeal will be filed with the Second Circuit Court of Appeals. Your attorney should have discussed this with you already. Under the local rules of the Northern District of New York, your attorney in District Court will be your attorney on the appeal. However, if part of your appeal is to raise an “ineffective assistance of counsel” claim, the Second Circuit should give you a new attorney. You’ll have to reach out to the Court to make sure that happens, however.