Federal sentencing is very different than sentencing in state court. In this video, Defense Attorney Benson Varghese take a deep dive into federal sentences.
One of the biggest differences between the state and federal criminal systems is how sentencing works. In the state system, at least in Texas, you have a right to a trial by jury and for a jury to assess punishment. You can also elect to go to the judge and the judge can do the sentencing. In the federal system, regardless of whether a judge accepted a plea, you went to trial, and the judge found you guilty, or a jury found you guilty, you will still be facing the judge and only the judge for sentencing. The only exception being death penalty cases in which a jury is required to pass on the imposition of the death penalty.
In this video, we’ll take a deep dive into how federal sentencing works, and the process a case follows to reach sentencing. From the court’s perspective, sentencing really begins when a U.S. probation officer interviews your client, or the person accused of a crime. That’s called a pre-sentence report interview. And the probation officer will gather a lot of background information. So, that could include things like the person’s biographical information, who are their parents, where did they grow up, are they married, do they have kids, what’s the family background look like? They’ll ask questions about medical histories, drug use, past criminal behavior, employment history, basically anything that the probation officer believes can be helpful to the judge in determining a sentence.
Now, generally, probation officers are going to follow a script. There’s a form that they’re following and they really don’t deviate from that form. So, the questions are generally predictable. This means that there’s a real opportunity to help a client and use this interview process that’s really designed to get potentially harmful information in front of the judge, to also get things in that might be mitigating or beneficial. For example, when the probation officer is asking about family history, they will ask about any disadvantages that a person might’ve had growing up. And if your client is not prepared for this question, they may not know, this is the opportunity to talk about things like abuse they endured, financial hardships, anything that made their life more difficult, whether or not that ultimately led to the commission of a crime.
Similarly, when they’re asking about drug behavior or any past experiences involving drugs, it’s important to understand that certain BOP programs, Bureau of Prison programs, are only available to people who have specific needs. So, if you have a history of drug use and you tell them that you’re interested in going to the RDAP, Residential Drug Treatment Program, then there’s a chance the judge will recommend that you go into the program, and you can have your sentence reduced as a result of participating in that program. As we’ll talk about, there’ll be an opportunity for the defense attorney to file a variety of things, including motions for downward variance/departure, sentencing memorandum, all intended to reduce a person’s sentence.
But remember that probation officer has the ear of the judge. If you can slip things in to the probation officer that ultimately gets included in the pre-sentence report, it’s really taken to be a credible, reliable source of information, which means those favorable nuggets of information could really do a lot of benefit, and the judge will see those materials perhaps before he sees any of the other materials related to the case.
The probation officer will have roughly six weeks to prepare the pre-sentence report that pre-sentence report will include materials from the interview. It will also include a summary of the alleged offense conduct. So, that means the probation officer is going to look through DEA-6 reports, other reports related to the case to try to come up with a summary for the judge. These pre-sentence reports are typically 25 pages to 40 or 50 pages long. So, they’re a summary of perhaps years of information that the probation officer called through, or based off of a summary that an agent provided them with.
It’s important for the attorney to go through that factual background information with a fine tooth comb, because if it’s in the pre-sentence report and not objected to, the judge is really going to accept that as the truth. So, if probation gets something wrong, you as the defense attorney have an opportunity to object, and that’s one of the filings that a defense attorney can make in response to the pre-sentence report. So the pre-sentence report has background information, information about the alleged offense, and then it’ll start getting into things that really are focused around how sentencing works in the federal system and the United States sentencing guidelines.
So, kind of as a backdrop, understand that Congress for every federal offense has created a floor and a ceiling for what that offense should be worth. For example, common drug statutory ranges are zero to 20 years, five to 40 years, or 10 years to life. So, there’s a statutory floor and ceiling for each potential level of offense. And that’s true for any offense you can think of. Within that very large statutory range, the United States sentencing guidelines gives the judge an idea of where a person’s sentence is recommended to, or at one time, required to fall.
So, when the United States sentencing guidelines were created, they were created to address a very specific problem. And that is everyone under the federal system should be treated roughly in the same manner. So, a person convicted of a drug charge in Texas should receive a federal sentence that is similar to a person who was charged with and convicted of the same charge in New York or California. So, the United States sentencing guidelines began as a mandatory system that the judges had to follow and it gave them a much smaller range within the statutory range of where the federal sentence needed to be.
In the United States v. Booker, the United States Supreme Court said, “That’s not right. A jury has not passed on the facts that the judge is relying on to set this very arcane, methodical sentence. So instead, these sentencing guidelines are merely advisory.” However, they must be calculated in every case, and you have to understand that many judges grew up using these guidelines when it was mandatory. So, they’re a very good predictor of at least what the starting point is for the judge. So, this pre-sentence report that probation has prepared really keys in with how the sentencing guidelines are going to work.
In any case there’s going to be a base offense level. So for instance, wire fraud, money laundering, a drug conspiracy. There’s going to be a related base offense level that’s found in the United States sentencing guidelines. That base offense level can then be increased or potentially decreased by a number of different factors. For instance, there are adjustments that are made for aggravating role in an offense, a mitigating role in an offense, whether a person took responsibility for their actions. So, whatever your base offense level was, you could potentially see three levels reduced by simply entering a plea of guilty. Two of those come from probation, acknowledging that you have entered a plea, you saved the government some work. And that last level of reduction comes from the government filing a motion saying, “Yes, you deserve a reduction in your sentence because you’ve entered a plea.”
In addition to the adjustments that are made to the base offense level, there could be certain specific offense characteristics that move the needle on the offense level. So for example, in a drug case, you might see an enhancement based on a premises of being used for drug activity. You might see an enhancement because a gun was used or possessed during the conspiracy. You might see an enhancement for a threat that was made during the course of the conspiracy. And cases involving fraud, examples include the amount of loss, so there is going to be an increase depending on whether the intended or actual loss amount was 10,000 or 10 million. There’s going to be an enhancement based on whether or not the fraud was completed using a sophisticated means. And certainly there are going to be arguments about whether or not a method used was sophisticated or not. You’re going to see enhancements based on the number of victims and the nature of those victims. All of these things can change the offense level as it’s calculated.
In addition to calculating the offense level, the probation officer will also go through a person’s criminal history to determine how many criminal history points should be attributed to a person. So not every past criminal conviction is going to result in a criminal history point. An overly simplified explanation of how criminal history points are calculated, three points are assessed for any sentence that is in excess of one year and one month. Two points are assessed for offenses that were between 61 days and a year and one month. One criminal history point is attributed to offenses where the federal sentence was up to 60 days, but not exceeding 60 days.
Remember that not every criminal case eviction or sentence will result in criminal history points. Some general guidelines are for the first category of offenses, that is a federal sentence that was a year and a month or longer, so 13 months or longer, that had to have been within the last 15 years. The time is calculated from the end of the last sentence. So, if a person was placed on probation for five years, that’s treated as a five year federal sentence, so exceeds the 13 months even though the person wasn’t in custody, and the person’s clock starts ticking at the end of that five-year period, when we’re looking at whether or not it was in the last 15 years.
For all other offenses, the sentence had to have been within the last 10 years. After the probation officer goes through the offense conduct, the relevant conduct related to the underlying offense, and the criminal history points, they will come up with a criminal history category. So, the categories are one through six, with zero to one points being under category one. Two to three points being under category two. Four, five, or six points being under category three, and so on. So ultimately, the probation officer will put together a total calculated offense level and a criminal history category.
And these are the two columns on the United States sentencing table. And when you look at the United States sentencing table, you will see that each criminal history category has a corresponding sentencing range for each offense level. For example, if a person has a criminal history category of one and an offense level of 30, the recommended guideline range is 97 months to 121 months. This will be the information that’s in front of the judge as, some would say, a starting point, it’s certainly a calculation that must be done in every case. But remember, it’s not mandatory, there are a number of relevant filings that both sides are going to make.
As a defense attorney, you’re certainly going to be looking at whether or not a sentencing memo should be filed. This gives you the opportunity to make the person, who’s charged with an offense, an actual human being who has a story to tell who got to whatever point they got to in life because of a number of things that happen in life, whether those were life events, poor decisions, or some combination thereof.
There’s certainly a difference between someone who is, for example, charged in a drug conspiracy who is doing nothing more than supporting a habit, versus someone who really lived the drug kingpin lifestyle. So through a sentencing memorandum, you can tell your story to the judge. You can think outside of the box, depending on what jurisdiction you’re in, it’s not unheard of to file sentencing videos to give the judge an idea of who this person is, what’s a day in the life of this person like, who depends on the person, what good things has this person done with their life up to this point?
Other motions or filings that you might see are a motion for downward variance, which is asking the judge to look at the sentencing factors and give a lower sentence than recommended based on specific sentencing factors that are laid out under 3553(A). you might see a motion for downward departure, which means, based on the policy guidelines that are laid out in the United States sentencing guidelines, there are valid policy arguments as to why the judge should give a reduced sentence.
The government has an opportunity to file motions. They can file for an upward departure or an upward variance based on what they believe the law allows for, and perhaps what they believe the facts justify. Ultimately, all of this information, the pre-sentence report, the filings of the parties, and any sentencing materials such as videos or character letters, all are submitted to the judge, and the judge has ample opportunity to review these materials before we get to sentencing.
In the federal system, most judges will allow for live witnesses at sentencing. In most cases, depending on what the live witness has to say, and depending on how well that can be articulated in writing, it may make more sense to file as much as you possibly can, so before the judge even walks into the room on the date of sentencing, you have given the judge some very good reasons for a lower sentence. And then you reserve the witnesses who will be speaking in court, who are often limited in number, to your most compelling storytellers, your most compelling loved ones, so that ultimately the judge has both the written work product, as well as a live presentation.
Finally, the judge will give the person accused an opportunity to say anything they want on their behalf from the standpoint of mitigation. So, it’s an opportunity to give the court some heartfelt remarks, particularly if you feel remorse, particularly if you can articulate that well. And certainly one of the things that we do as attorneys is help you create that statement, help you really dig deep to find the things that you want to say to the judge as he’s sitting there considering what the appropriate sentence should be.
Because the sentencing guidelines are not mandatory anymore, the judge has the ability to impose sentences such as probation, albeit rarely granted in federal court, it’s a possibility. The judge has the ability to confine a person at home with GPS home confinement. So there are a number of things that the judge can do, and you want to present the most compelling sentencing case possible when your date comes.
To recap, sentencing in the federal court system is very different than sentencing in the state system. It’s driven by the United States sentencing guidelines within the statutory range created by Congress. The parties, the person accused needs to understand how important the filings can be in federal sentencing. It’s very much driven by their written work product, as opposed to in state court where oral arguments can be more compelling. And certainly the testimony that is put forth in a sentencing case in the state system is incredibly different from, essentially, a person getting up and giving remarks to the judge in the federal sentencing system. That person’s not subject to cross examination, it’s a very different presentation than it would be in the state system.
Learn more: federal criminal defense.
If you or a loved one is facing a federal charge, understand both issues of guilt/innocence, and potentially sentencing will affect the rest of their life. We have gone down this road many times and we will be here for you. If you’re facing a federal charge, give us a call at (817) 203-2220 or contact us online. Feel free to check our website, versustexas.com, for more information. Want to learn more about our attorneys? Please visit our page Why Us and Our Team.