Federal Sentencing Explained

Statute in front of highest federal court, where sentencing goes by federal statutes and the US sentencing guidelines and is much different than sentencing in Arizona state courts

Criminal defendants don't always have a good defense.  In these cases, and even in some cases where there is a viable defense, defendants often decide to enter into a plea agreement with the government in order to get a better sentence than they would if they went to trial and lost.  In federal court, especially, defendants are much more likely to plead guilty than present their case to a jury.  According to the United States Attorney's Annual Statistical Report, only 3% of the federal criminal cases terminated in fiscal year 2013 went to trial.  Needless to say, a lot of the work criminal defense attorneys do in federal court revolves around sentencing.  Sentencing in federal court can be complicated, so here is a basic overview.

Overview of Federal Sentencing

When someone is convicted of a federal crime, whether by plea agreement or trial, the judge will consult both the statute of conviction and the Federal Sentencing Guidelines to determine the appropriate sentencing range.

Statutory Sentencing Provisions

There are many crimes that are based on statutes that provide for mandatory minimum sentences under certain circumstances.  If a defendant is convicted of one of these crimes, the judge has no choice but to impose the minimum sentence or more.  Some of the more common mandatory minimums we see in Arizona are:

  • 5, 10, and 20-year minimum prison sentences for certain drug offenses -- these usually apply when the quantity of drugs involved exceeds a certain amount or when the defendant has prior convictions for drug offenses.  Although less common, there are even several drug offenses that require a sentence of life in prison.
  • 5-year minimum prison sentence for using or possessing a firearm during a drug offense -- this sentence is in addition to any underlying sentence for the drug offense.  This minimum sentence increases to 7 years if the firearm is brandished, 10 years if the firearm is discharged, and 30 years if the firearm is a machine-gun or is equipped with a silencer.
  • 3-year minimum prison sentence for bringing an alien into the United States for profit -- this applies only when a defendant actually brings an alien into the United States and was going to get some type of payment in exchange.
  • 20-year minimum prison sentence for engaging in a continuing criminal enterprise.
  • 2 and 5-year minimum prison sentences for aggravated identity theft -- this sentence is in addition to any sentence for an underlying crime.
  • 5 and 15-year minimum prison sentences for interstate receipt, transportation, reproduction, solicitation or advertising of. selling or possessing with intent to sell child pornography (the 15 applies to offenders with prior child porn conviction).

Federal Sentencing Guidelines

Aside from any mandatory minimum sentence required by statute, a sentencing judge will consult the Federal Sentencing Guidelines.  This is a book containing sentencing policies and practices created by the United States Sentencing Commission.  The guidelines basically attempt to assess the seriousness of the crime, along with the offender's criminal history, and assign an appropriate sentencing range.  The guideline range used to be mandatory, but it is now just a suggested sentencing range.  The guideline range is, however, the starting point for most judges in determining the appropriate sentence.  In fact, most federal sentences do fall within the suggested guideline range.

Deciding which guideline range is appropriate is not always easy.  A good criminal defense attorney may be able to minimize a federal sentence by convincing the judge, and maybe even the prosecutor, to apply a lower range.  There are several steps to using the guidelines to arrive at the correct sentencing range:

Offense Level

The Federal Sentencing Guidelines provide for 43 offense levels.  Each type of crime is assigned a base offense level.  The more serious the crime, the higher the offense level.  The base offense level may then be increased or decreased depending on a number of specific offense characteristics.  For example, alien smuggling has a base offense level of 12.  One of the specific offense characteristics for alien smuggling is the number of aliens smuggled, so the offense level is increased by 3 if the offense involves 6-24 aliens, by 6 if the offense involves 25-99 aliens, and 9 if the offense involves over 100 aliens.


An offense level may then be adjusted upward or downward based on other factors set forth in the guidelines.  There are various types of adjustments, including the defendant's role in the offense, obstruction of justice, and victim-related adjustments.  If, for example, the defendant played only a minor role in the offense compared to others involved, the offense level may be adjusted downward.  If the defendant was a leader or organizer, the offense level may be adjusted upward.

Criminal History

The Federal Sentencing Guidelines also calculate each defendant's criminal history to determine which of six criminal history categories applies.  Criminal History Category I is the least serious category (first-time offenders or offenders with one minor conviction resulting in a sentence of less than 60 days) and Criminal History Category VI is the most serious.  These categories have a big influence on the recommended sentencing range.

The Sentencing Table

The final offense level and the criminal history category are then used to find the recommended sentencing range on a sentencing chart within the guidelines.  The criminal history categories are listed along the top of the chart and the offense levels are listed on the left of the chart.  The recommended range of imprisonment is located where the two intersect.

Departures and Variances

In addition to arguments that can be made in arriving at the applicable guideline sentencing range, there are various arguments that can be be made regarding why a judge should deviate from the guideline range.  These are called departures and variances.  The sentencing guidelines provide numerous grounds for departure from the guideline range (both upward and downward).  Even if a grounds for a recognized departure do not exist, mitigating factors may justify a variances from the guideline range.  This is why it is critical that a federal criminal defendant be represented by an experienced federal criminal defense attorney, even if that defendant intends to plead guilty.

* This blog is published by Tucson federal criminal defense attorney Nathan D. Leonardo. Nothing on this website is intended to create an attorney-client relationship. The information provided herein does not constitute legal advice, but is for general information purposes only. If you have a legal question, you can contact us online or call (520) 314-4125.

Leave a Comment