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Concepcion Law

The United States Federal Sentencing Guidelines are rules that set out a uniform policy for sentencing 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 or infractions.

Although the Guidelines were initially styled as mandatory, the US Supreme Court’s 2005 decision in United States v. Booker held that the Guidelines, as originally constituted, violated the Sixth Amendment right to trial by jury, and the remedy chosen was to excise those provisions of the law establishing the Guidelines as mandatory. After Booker and other Supreme Court cases, such as Blakely v. Washington (2004), the Guidelines are now considered advisory only. Federal judges (state judges are not affected by the Guidelines) must calculate the guidelines and consider them when determining a sentence but are not required to issue sentences within the guidelines.

The Guidelines determine sentences based primarily on two factors:

  1. the conduct associated with the offense (the offense conduct, which produces the offense level)
  2. 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.

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.

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 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 15 months. Zone C consists of sentencing ranges above Zone B but whose maximum 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, 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 U.S.S.G. § 5C1.1(c)(3) (2012), 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.

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 in the investigation or prosecution of another person who has committed an offense. 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.

The Federal Rules of Criminal 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.”

Some defendants attempt to provide substantial assistance, but their assistance is ultimately deemed not to be substantial, which prevents them from getting the departure even if they made incriminating statements.

If you or a loved one is facing potential federal charges, contact the team at Concepcion Law today by calling (305) 901-3348 to schedule your appointment.

Leonardo E. Concepcion, Esq.

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(305) 901-3348

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