Sentencing Issues to Consider in Federal Criminal Cases

Posted by William Bly | May 20, 2014 | 0 Comments

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Sentencing in federal court is an area that is fraught with danger and missteps by the unwary attorney abound.  Practice in federal court is a very specialized area of law due to the voluminous federal statutes and sentencing guidelines.  Therefore, it is important as a defendant to choose your attorney carefully because in all likelihood, the government "has the goods on you" and it is a matter of crafting a fair sentence.  This is where a skilled attorney can make all the difference in the world.

The Sentencing Guidelines have been ruled by the US Supreme Court as advisory only.  However, federal judges can't just dispense with them completely because your base offense level and criminal history category are two things that determine your base line sentence.  Both of these are determined by the Guidelines.

After the base sentence is calculated, enhancements are added on.  Was a gun used in the commission of the crime?  Add 2-4 points based on whether it was discharged and whether someone was injured.  Was the serial number on the pistol removed?  If so, add some more points.  Did you commit a crime using a computer?  Add 2 points.  Are you a career violent offender?  Now you're really in trouble because you're looking at 30 years to life.

So if the Guidelines are advisory, why are we using them to calculate a sentence and how does the attorney reduce the sentence?  The answer is part of the art of being an excellent advocate.  Getting into treatment if you have a substance abuse problem and or child pornography issues is key.  Conducting our own independent investigation and gathering letters of support from members of the community are important as well.

For as many enhancements that are applicable in a case, judges are pushing back on some of the draconian sentences that are being imposed for non-violent offenders.  For example, many judges across the country are imposing variant sentences for non-violent child pornography possession cases where there is no evidence of production or distribution.  Many of these variant sentences are 50% and greater less than the Guideline recommendations.  Some judges are even refusing to impose prison in certain special cases.

Getting the sentence down is one of the most important functions of the criminal defense attorney in a federal criminal case.  Oftentimes, the government has an airtight case against the client.  Maybe your co-defendants all "ratted" you out and are willing to testify.  Maybe the federal agents found a ton of child porn on your computer and you admitted to possessing it.  Maybe the government has a wire tap with you agreeing to execute a "contract" on a rival gang member.  Whatever the case, the feds normally only prosecute cases that they think they have a 95% chance or better of obtaining a conviction.  And they have the seemingly infinite resources of the government to ensure success.

So, if you fall into the 95% of all cases classification, your case is likely going to be a sentencing argument.  If that's the case, you need an attorney who is not only a skilled orator but who is also a persuasive writer and researcher of the law.  Everyone knows how to present an argument but not every attorney can perform both of those functions well.

About the Author

William Bly

William T. Bly, Esq. is a graduate of Rutgers College where he majored in Political Science with a minor in U.S. History. Attorney Bly attended and graduated the University of Maine School of Law. During his time in law school, Attorney Bly focused on criminal defense.

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