Federal Sentencing Guidelines | Kenneth Padowitz | Broward

Federal Sentencing Guidelines

Sentencing under federal law follows a set of rules. The Federal Sentencing Guidelines manual encapsulates these rules. Often, these rules are strict. However, the guidelines may in a few instances allow the courts to dole out sentencing as it deems fit, albeit under already specified limits. In this article, we delve into the intricacies of federal sentencing guidelines. We discuss what it entails as well as the strengths, and perceived weaknesses of the guidelines.


In all ramifications, the federal sentencing guidelines are expansive. Even so, it has been the subject of controversies. In this section, we discuss the three most common aspects causing controversy.

  1. The wide disparity between how the guidelines treat crack and how it treats cocaine. The initial ratio was 100:1. The Fair Sentencing Act of 2010 has since reduced the ratio to 18:1.
  2. Strong sentencing for convicted child pornography offenders
  3. Under the immigration guidelines, illegal re-entrants with prior felony records are liable to receive heavy enhancements (increments in sentencing). The controversy with this arrangement stems from the fact that such offenders will have their past offenses entered into their individual record of criminal history. Some quarters perceive the criminal history record as enough punishment, thus viewing the heavy enhancements as unnecessary.

Nonetheless, in recent times, many judges have refused to apply the Guidelines in scenarios where these controversies apply.

Apparently, the controversy does not end with referencing parts of the guidelines. Some critics maintain that a holistic view of the guidelines will show that they “actually increase unwarranted sentencing disparities.” Two major voices in this regard are Joseph S. Hall and William J. Stuntz.

Hall makes a clear-cut observation, stating that the ability of a defendant to afford a skilled attorney has a profound influence on the sentence received. Furthermore, he argues that only the diligence of the defense attorney may counterbalance the power of the prosecutor to extract guilty pleas. Previously, in addition to the defense attorney’s diligence, the judges held the power of the prosecutor in check.

Furthermore, according to Stuntz, the sentencing guidelines provide an easy cover for litigants to make credible threats of severe post-trial sentences to source for plea bargains from defendants. Even where, he continues, “the guidelines’ authors try to fight that tendency.” So much that, prosecutors may when necessary simply bargain about what facts will (and will not) form the basis of sentencing.

It follows that these viewpoints may well be right, as the federal guilty plea rate has risen from 83% to 96% between 1983 and 2009.

The Basics

Under the Federal Sentencing Guideline, two factors influence sentences. These are:

  1. The Offense Level
  2. The Criminal History Category

The Guidelines Manual evaluates the relationship between both factors, specifically in the Sentencing Table. Accordingly, the Table specifies a sentencing range, in months, for each pairing of an offense level and criminal history category.

To put it plainly, let us consider two sentences picked from the table. A conviction for an offense with Offense Level of 22 and Criminal History Category I will result in a sentence of 41-51 months. In comparison, a conviction for an offense at the same Offense Level of 22, but at Criminal History Category VI will result in a sentence of 84-105 months.

Offense Levels

The severity of an offense determines the offense level it occupies. Chapter 2 of the Guidelines Manual stipulates the offense levels of offenses. The court may then apply any applicable adjustments.

Initially, the proposed number of offense levels for the sentencing guidelines was 360. In its final current form, there are 43 offense levels. There are ongoing proposals to reduce the number even further. Offense levels are designated with standard numbers, 0 through 43.

Criminal History Categories

The number of criminal history categories in the Federal Sentencing Guidelines is six. They are designated with Roman numeral, I through VI. Furthermore, each criminal history category is tied to a specific range of “criminal history points.” For example, 0 to 1 points point to Category I, while 13 or more point to Category VI.

How Are Criminal History Points Calculated?

History Prison Time Number of Points Added
One prior sentence 1
60 days to 13 months 2
>13 months 3

In addition to the method illustrated in the table, a slightly more complicated method of computing points is used.

  1. If the defendant perpetrated the instant offense while under any criminal justice sentence, including parole, supervised release, probation, escape status, work release, or imprisonment, 2 points are added
  2. If the defendant perpetrated the instant offense within a 2-year period after being released from imprisonment of a sentence of sixty days or more; or while on escape status or imprisonment on such a sentence (of sixty or more); 2 points are added
  3. 2 points will not be added in scenario B(I) discussed above if 2 points are added committing the offense while under a criminal justice sentence; in this case only 1 point is added
  4. For each prior sentence meted on the defendant resulting from a conviction of a crime of violence that did not receive any points because such sentence was counted as a single sentence, 1 point will be added; up to a maximum of 3 points

According to the guidelines, if a defendant had received an “adult diversionary disposition” like a rehabilitative sentence for an unrelated criminal offense, in the past, and afterwards commits the crime for which he or she is currently being convicted, he or she may not be treated with further leniency.


Under the Federal Sentencing Guidelines, sentencing ranges may be ascribed to one of four zones. Zones are depicted with capitalized alphabets, A through D. The table below describes the sentencing ranges.

Sentencing Range Zone
0 to 6 months A
Above Zone A + Maximum sentence of 12 months B
Above Zone B + Minimum sentence ofC
Above Zone C D

Zone A

A defendant in this zone is not required to receive any term of imprisonment. He or she is also eligible for Federal Probation.

Zone B

Where the applicable sentencing guideline for a defendant falls within the range of this zone, the defendant is eligible for Federal Probation; as long as the court imposes a condition or a combination of conditions requiring community confinement, intermittent confinement, or home detention. Nonetheless, the defendant must be reprimanded in prison for at least one month before the onset of probation.

Zone C

A defendant in this zone may receive a split sentence. Nonetheless, he or she must be reprimanded in prison for at least half of their sentence.


Reductions in Prison Term Length

If a defendant were to provide substantial assistance, then he or she may be eligible to receive significant reductions in federal criminal sentences. For the court to consider such reduction, the prosecution has to file a motion allowing the reduction.

Nevertheless, the court is not required to grant the reduction, even after prosecution’s filing. The court may decline to grant the reduction if it considers the information or assistance provided by the defendant to be insignificant, incomplete, not useful, untimely, or untruthful.

Aside assistance, a defendant is likely to receive a reduction if he or she accepts responsibility in the form of accepting a plea bargain. This reduction is typically a 2- or 3-level offense level decrease. However, if the defendant demonstrates behavior inconsistent with acceptance of responsibility, such as continued criminal activity, he or she may not be liable to receive a reduction.

Increment In Prison Time

While providing certain assistance like delivering the names of inner-cell members of a criminal organization may qualify as grounds for significant reduction in federal criminal sentences, there are certain criminal intents that qualify as grounds for increments or enhancements of federal criminal sentences.

Victim-related Enhancements

A defendant may receive enhancements in sentencing if he or she is convicted for;

  • A crime with hate crime motivation
  • A crime against vulnerable victims
  • A crime against official victims
  • A crime involving restraint of victims
  • A crime involving an act of terrorism

Offender’s Role Enhancements

A defendant may also receive enhancements in sentencing based on his or her role in the offense: usually an aggravating role. If the defendant were to have a mitigating role in the offense, then by all means, he or she may have a downward adjustment in his or her sentencing.

Aside this, an offender’s role may also be questioned if he or she abused a position of trust or use of a special skill when perpetrating a crime. For example, coercing a minor to perpetrate a crime in his or her stead and use of body armor when perpetrating crimes of violence or drug trafficking. In these and similar cases, the defendant will most likely receive an enhancement in sentencing.

Obstruction of Justice Enhancements

A defendant may also receive enhancements in sentencing based on if he or she perpetrated an act or conduct related to obstruction of justice. These acts include but are not limited to:

  • Impeding or obstructing the administration of justice
  • Reckless endangerment during fight
  • Perpetrate a crime while on release
  • Falsely registering a domain name

Multiple Count Enhancements

A defendant typically receives enhancements in sentencing in cases involving multiple counts.


Departures are different from adjustments in that they are firm departures from the guideline range in either direction (upward or downward). In general, departures apply to cases that also deviate from the heartland of appropriate cases whose guideline ranges are referenced.

The typical use of departures is in cases involving substantial assistance to authorities in the investigation or prosecution of another suspect who has perpetrated a crime. The Sentencing Reform Act sanctions departures, in that it permits a departure below applicable statutory mandatory minimum in such cases.

A defendant may knowingly opt not to assist the authorities. In this case, there is no penalty for his or her refusal to cooperate.

Reasons that may necessitate a departure include, but are not limited to:

  1. Death
  2. Abduction or Unlawful Restraint
  3. Physical Injury
  4. Extreme Psychological Injury


In general, loss of life does not automatically suggest that there should be a departure from the guideline range of the accompanying crime or offense. After all, it is for this reason that a range was established. Nonetheless, peculiar cases may be grounds for departure, including but not limited to:

  • The state of mind of the defendant is far off from the average
  • The degree of preparation or planning is far off from the average
  • Multiple loss of life ensued
  • The means of causing death is far off from the average

If a sentencing judge establishes that a defendant deserves a departure, the extent of the increase would depend on the following factors:

  • How dangerous the defendant conduct was
  • The extent to which serious injury or death was knowingly risked or intended
  • The extent to which the defendant perpetrated the crime in qualitative terms: the other Chapter Two guidelines typically help the sentencing judge make out the qualitative measurement (sometimes the offense level) of the crime

For example, if a defendant perpetrated a crime that ordinarily do not reflect an allowance for the risk of personal injury (say fraud), but in the defendant’s peculiar case death ensued as a result of knowing risk or intention, then the sentencing judge may appropriately consider an upward departure in sentencing.

Abduction or Unlawful Restraint

The court may make an upward departure in sentencing if the defendant abducts, take hostage, or illegally restrain a person for either of two reasons:

  • To facilitate perpetration of the crime; or
  • To facilitate escape from the scene of the crime

Physical Injury

The court may make an upward departure in sentencing if the defendant in the course of perpetrating the crime inflicts significant physical injury on a person. The extent to which the upward departure may reach depends on three factors:

  • Extent of the injury
  • How permanent the injury may prove to be
  • Extent to which the defendant knowingly risked or intended to inflict the injury

In light of the three factors, the extent of the upward departure may be substantial or less substantial.

Substantial Less Substantial
Victim suffers major, permanent disability Victim suffers less serious injury
Defendant inflicted injury intentionally Defendant inflicted injury without knowingly creating the risk of harm

The court may apply the same considerations to physical injury as is applied to Death.

Extreme Psychological Injury

For the court to make an upward departure in sentencing based on psychological injury, then such injury must be more serious than the form of injury normally resulting from being the victim of an offense. Such more serious form is evident:

  • By a substantial impairment of the emotional, intellectual, behavioral, or psychological functioning of the victim
  • By an extended or continuous duration of the impairment
  • When the manifestations of the impairment include psychological or physical symptoms or changes in behavior patterns

The extent to which the upward departure may reach depends on two factors:

  • Severity of the psychological injury
  • Extent to which the defendant knowingly risked or intended to inflict the injury
  • Extent to which the injury was likely to be inflicted, given the nature of the defendant’s conduct

Broward Criminal Lawyer Kenneth Padowitz

Federal criminal defense attorney, Kenneth Padowitz, provides strategic representation to those accused of crimes in both State and Federal courts. Many criminal acts are considered offenses of both state and federal law; in this situation the state and federal prosecutors must both decide whether the individual should be tried in Federal District Court or (Florida) State Court. If you believe you may be charged with a state or federal crime, an aggressive federal criminal defense attorney on your side is indispensable. A good criminal defense begins before prosecutors have even had a chance to file charges against you.