Published on:

Do NOT be Afraid of the Federal Sentencing Guidelines!!!

The United States Federal Sentencing Guidelines are not mandatory on sentencing courts. The Guidelines are also not presumed to be reasonable. That was the very clear and very recent message sent by the United States Supreme Court in Nelson v. United States, 129 S.Ct. 890 (2009). In so ruling , the Supreme Court made it very clear that the federal sentencing guidelines are NOT what they used to be!

The federal sentencing guidelines used to strike fear into the hearts of criminal defendants accused of federal offenses. Not only were the guidelines mandatory, but they were VERY harsh. Under the old sentencing guidelines scheme, even first time offenders with compelling personal circumstances were forced to serve large non-paroleable prison terms. Federal prison populations swelled with non-violent drug offenders incarcerated for long terms of incarceration. Judges who wished to vary from the guidelines were routinely reversed by federal circuit courts. Federal prosecutors, emboldened by the harsh mandatory guidelines, had no incentive to be reasonable. Under the mandatory guidelines system, prosecutors – not Judges –were the most powerful players in determining the fate of criminal defendants. By deciding which crimes to charge, the prosecutors could effectively dictate the result faced upon conviction. Even the most skilled defense attorneys were often powerless to stop unfairly harsh sentences. Judges were equally powerless.

The sentencing landscape has now changed dramatically. The guidelines are now just that – GUIDELINES – to be considered but not necessarily followed by federal district judges. The sea change began in United States v. Booker, 543 U.S. 220 (2005). Booker held that the then-mandatory U.S. Sentencing guidelines were unconstitutional. The only way to salvage the guidelines as a system was to make them advisory only. Even after the Court’s decision in Booker, federal appellate courts continued to treat the guidelines with reverence. For example, at least one federal appeals court had ruled that a district court judge was not free to disregard the guidelines except for “extraordinary circumstances.” Other courts held that judges could not disagree with the disparate treatment of offenses involving crack versus powder cocaine under the guidelines.

This thinking came crashing to a halt in Nelson v. United States, 129 S.Ct. 890 (2009), and Spears v. United States, 128 S.Ct. 840 (2009). In the Nelson case, the Court overruled the Fourth Circuit Court of Appeals and held that a federal district judge cannot presume that a sentence within the federal sentencing guidelines is reasonable. That is, the advisory federal sentencing guidelines are only one factor in a multi-part system of determining a sentence for a person convicted of a federal offense. http://www4.law.cornell.edu/uscode/18/3553.html A sentencing judge is free to sentence a defendant to whatever is reasonable, regardless of the sentenced called for under the sentencing guidelines.

In the Spears decision, the Court made clear that federal judges are also free to disregard Sentencing Commission policies in arriving at a fair and reasonable sentence. In that case, the Court upheld the decision of a federal judge to impose a sentence below the sentencing guidelines because the judge disagreed with the U.S. Sentencing Commission’s policy to treat crack cocaine offenses more harshly than those involving powder.

Not only can a district judge choose to not follow the guidelines, but a court can also impose a sentence that disregards U.S. Sentencing Commission policies.

These decisions make clear that the playing field in federal sentencing is now more level than it has been since the inception of the federal sentencing guidelines in 1987. Prosecutors no longer control the sentencing process. Defense attorneys have more opportunity than ever before to have a meaningful impact in sentencing hearings because Judges set the sentences – not prosecutors.

These cases mean that federal criminal defense lawyers have a real opportunity to instill a sense of sanity into federal sentencing hearings. It is incumbent on federal criminal defense attorneys to bring out all positive aspects of their client’s background in an effort to fashion a reasonable sentence. This includes any and every positive aspect of their client’s lives including family support, community involvement, and employment history, to name a few. Federal criminal defense lawyers can also attack the facts of the particular case in an effort to win a favorable sentence. For example, I was able to convince a federal judge to ignore the sentencing guidelines and impose a very lenient sentence on a bank executive convicted of stealing over $1 million from his employer. Part of the successful argument was based on the notion that the bank’s internal controls were non-existent and that the client’s actions were the result of a corrupt corporate culture that permeated the bank’s hierarchy.

Likewise, I convinced a federal judge not to impose the severe sentence called for by the guidelines because my client had been a very significant medical researcher who had contributed to the fight against horrific diseases affecting the brain. Everything now comes down to the defense attorney’s ability to convince a sentencing judge that the proposed sentence is reasonable – for any reason!

In my experience, federal prosecutors still cling to the sentencing guidelines as if they were gospel. Most AUSAs simply argue in favor of the guidelines without paying any attention to the multiple sentencing factors used by Judges to determine a just sentence. Skilled federal defense attorneys can take advantage of this situation and neutralize prosecutors by bringing out all of their client’s positive characteristics and, at the same time, revealing the weaknesses in the prosecution’s case. As long as AUSAs continue to blindly argue for the application of the sentencing guidelines, defense lawyers will continue to be the only person at federal sentencing hearings who can make a difference.

I have convinced numerous federal district court judges to disregard the sentencing guidelines in fashioning an appropriate sentence for my clients. Regardless of the situation faced by a defendant, he/she can benefit in every case from the services of a skilled federal defense lawyer who can effectively use the federal sentencing laws to help the client’s cause. The skilled federal criminal defense lawyers at STSW have handled many hundreds of federal criminal cases. There is not a situation with which we are not familiar.

If you have any questions, you can contact me at STSW.