One of the most important factors in federal sentencing is the federal Sentencing Guidelines. The Guidelines apply to all federal criminal cases with the exception of some minor offenses that occurred after November 1, 1987. Between 1987 and January 2005, the sentencing guidelines were essentially the only determinative factor in federal sentencing, meaning that judges had no discretion in handing out sentences, as they were bound by the guidelines. No matter what the judge thought of the case, the sentence could not be changed. This would often lead to extreme and draconian punishments mandated by the mandatory sentencing system.

In January 2005 the Supreme Court ruled that the sentencing guidelines violated a defendant’s Sixth Amendment right to a trial by jury. The ruling held that while the sentencing guidelines must be consulted and trial judges must take them into account, they are advisory only. This allowed sentencing judges to use their discretion in deciding on a sentence. Today, federal court judges must consult the guidelines together with other factors and then may sentence the defendant within the guidelines as well as below or above the guidelines (downward and upward departures). The defendant may appeal the trial court’s sentence for reasonableness if the argument is that the judge incorrectly applied the guidelines.

Under the Sentencing Guidelines each criminal offenses is given a number of points known as the offense level. The number of points can increase due to numerous case specific factors. For example, in economic crimes cases, a minimum base amount is assigned by default, usually 6 or 7, and additional points are added based on the amount of loss caused by the offense. Additionally, more points are added regardless of the case facts if the defendant played a major role in the offense. Points could be deducted if the role was minimal.

In federal conspiracy cases, the offense level is often much higher than that assigned to the defendant’s own conduct, because federal law allows the defendant to be sentenced not only for his own actions, but also the actions of co-conspirators.

Another major consideration is the defendant’s criminal history score. Points will be added for prior convictions, for juvenile adjudications, and for being on parole or probation from a previous offense when the present crime occurred. There are 6 criminal history categories, 1 is the lightest one reserved for first time offenders and r is the harshest one reserved for repeat offenders.

So, the sentencing judge will first determine the offense level and then the defendant?s criminal history. Using a chart, the judge will determine what the guidelines sentence should be.

This overview is only a nutshell explanation. There are a huge number of additional concepts that will play important roles in sentencing. Of course, at the beginning of the case, the defense lawyer must be able to discuss the guidelines sentence with the client. Besides being a vital piece of information, the guidelines calculations should be used in determining whether to cooperate with the government or go to trial.

Federal criminal practice is drastically different from state criminal practice. This is why federal criminal cases and federal sentencing should be handled not just by any criminal lawyer but only by a criminal lawyer experienced in federal criminal defense. In fact, most criminal defense attorneys never have handled a federal case. In New York City, federal courts process the highest amount of federal cases each year. New York federal courts have a huge volume of case law that affects sentencing. A defense attorney not versed in federal sentencing law may not be equipped to provide effective representation to his or her client.

If you or someone you know have been accused of a federal crime in New York, call our New York City federal criminal lawyers at (212) 577 6677 today to set up an immediate confidential consultation.