Understanding Federal Sentencing
What are the Sentences for Federal Charges?
Federal sentences vary based on the type of offense, severity of the offense, and prior criminal history of the defendant. Some federal sentences carry a mandatory minimum while others require the judge to determine the sentence based off of the federal sentencing guidelines and the characteristics of the defendant using the factors outlined in 18 U.S.C. 3553. Generally, federal sentences are much higher than sentences for corresponding state law violations. Determining how much time a federal defendant will receive in jail requires the judge and probation to make a complex determination using the federal sentencing guidelines and their policy as well as understanding the seriousness of the offense and history and characteristics of a defendant.
Unfortunately, most federal defendants who plead guilty face jail time and about 26.6% of federal defendants who plead guilty receive 3 to 5 years in prison. This is why a federal defendant should think very carefully about pleading guilty and beware of promises made by counsel that the defendant will not receive any jail time. This is a promise that cannot be made even if there is a plea agreement stating that the government agrees to request no jail time.
What are The Average Federal Sentences for Federal Defendants
Here is a table with the average sentences for federal defendants. (Click here to see the complete table)
0 to 1 year* 2,592 1.8%
> 1 year to < 3 years 13,403 9.1%
3 years to < 5 years 14,597 9.9%
5 years to < 10 years 39,017 26.6%
10 years to < 15 years 33,211 22.6%
15 years to < 20 years 18,279 12.5%
20 years or more but < Life 21,741 14.8%
Life 3,865 2.6%
How does a Federal Judge Determine a Sentence?
At sentencing the judge will review a Pre-Sentence Report created by the United States Probation office. This report is generated after an investigation by the U.S. Probation Office and details the severity of the offense, federal guidelines calculation, biographical information about the defendant, and any mandatory sentences that must be imposed. The judge will also review the plea agreement in the case - if there is one - and determine the agreement by the parties including any agreements regarding jail time. Then the Court will ask for argument by the parties regarding the applicability of any sentencing guidelines disputes (detailed more fully below) and what each side recommends as the applicable sentence in the case. The judge will then review the sentencing factors outlined in 18 U.S.C. 3553(a) which are described below. Here are the steps that are taken before a federal sentence is determined:
Plea Agreement
97% of federal defendants plead. Many do so without a full understanding of what they are pleading guilty to and many because of unfair pressures exerted by the federal government during their investigation. When federal defendants plead many do so by entering into a plea agreement. This is commonly called a Rule 11 in federal court because its contents are governed by Rule 11 of the federal rules of criminal procedure. The plea agreement’s purpose is to outline the promises by the federal government and the defendant. A plea agreement is not required to be accepted by a federal judge which means that even if the parties agree to a sentence the judge could still reject the plea agreement if the defendant does not understand its contents or the judge does not think it encompases the correct sentence for the offense. The judge will analyze the plea agreement and determine if the defendant understands its contents and that it fairly covers Rule 11 of the federal rules of criminal procedure.
Plea agreements contain many promises. Most are one sided and many federal prosecutors offices have standard terms listed in the plea agreement. These terms may include cooperation during further government investigations, a requirement that the defendant not appeal the sentence, a requirement that the defendant provide funds to be seized for forfeiture or restitution. Plea agreements must be read carefully and the defendant can always consider an “open plea” if the defendant wishes to plead guilty but does not like the promises and requirements of the federal government’s plea agreement.
Pre-Sentence Report Interview
Once the plea agreement is signed and the defendant enters a plea of guilty before a federal judge, the defendant will be sent for a pre-sentence interview with the United States Probation Office. This interview is exhaustive and usually includes a background investigation into the defendant, their financial and family history, as well as an investigation into the offense. This investigation is commonly one sided and largely includes information given by the prosecution to probation that aggravates the circumstances of the offense. The defendant may also submit information to Probation to mitigate the offense, a practice that is largely ignored by many federal criminal defense attorneys but should be done.
Probation will determine the relevant sentencing guidelines applicable to the offense by using the United States Sentencing Commission’s manual to calculate the guidelines and any enhancements to the guidelines. More on this below. Probation will also make a recommendation regarding the applicable sentence to be imposed. It is imperative that a federal defendant review the pre-sentence report with their counsel to ensure that it is accurate and contains all information they wish to put before a federal judge prior to sentencing.
At the sentencing hearing the judge will ensure that the defendant has read and understand the report because it is a vital aspect of federal sentencing.
Sentencing Memorandum
Each side gets to submit a memorandum to the court arguing for a particular sentence. Some defense attorneys skip this step and it’s a terrible mistake. A sentencing memorandum must be submitted in all federal criminal cases in order to educate the judge on the applicability of sentencing factors and the federal sentencing guidelines. The government, even in the face of a plea agreement, will generally provide the most aggravating description of the offense and the defendant and the sentencing memorandum is the only counterbalance to these claims. Its also a great opportunity to provide mitigating information about the defendant and the offense. Many choose to include letters from family, friends, or prominent members of the community to give the sentencing judge a full picture of the person standing before them ready to receive a sentence. Sentencing memorandums are usually do one to two weeks before the sentencing date and in my experience most judges are diligent about reviewing the memorandum prior to issuing a sentence. Its also important to note that many judges outline the sentence before the sentencing hearing while in chambers and while their mind may not be made up, they have a good idea of what they will do. Failing to submit a sentencing memorandum or failing to submit an exhaustive description of the defendant,the offense, and powerful mitigating factors will result in the defendant’s voice not being heard.
Sentencing Hearing
The sentencing hearing is the final stage of sentencing. This is where the federal judge will determine the sentence. It typically lasts an hour in a less complex case with a plea agreement but could last days where the defendant or the government wishes to offer the sentencing court evidence to lower the sentencing guideline range. At the sentencing hearing the court will analyze the factors listed below to issue an appropriate sentence. The sentencing hearing will be conducted in the presence of the federal judge, the prosecutor, defense attorney, defendant, a representative from the United States Probation office and any witnesses called by the Government or the Defendant. The judge will start by asking if there are any objections to the pre-sentence report. These objections must be filed by counsel after the pre-sentence report is issued and the judge will hear the objections to the report and to the guidelines recommendation made by probation. Next the judge will ask for argument from the defense counsel and the government about the appropriate sentence to be given. Then the court will ask to hear from the defendant. This is a vital stage in sentencing and is the only opportunity for the defendant to address the court and express remorse. This is not an opportunity for a defendant to argue that they are not guilty or attempt to mitigate the offense with self-serving statements, that is better left up to counsel. This is an opportunity to address the court and provide the court understanding as to why the offense occurred and the defendant’s remorse for the conduct. I typically also provide a statement to the court from the defendant in the sentencing memorandum prior to sentencing that acts as a preview to this statement given that many federal judges appear at sentencing with an idea of what sentence they will give.
Issuing the Sentence
Once the judge has analyzed the appropriate guidelines, determined if a departure from the guidelines applies and analyzed the 3553(a) factors (outlined below) the judge will issue the sentence and their reasons for the sentence. A just must state their reasons for the sentence on the record and failure to do so may result in a successful appeal of the sentence. This process can be difficult for a defendant facing jail time because it results in a lengthy discussion of sentencing factors prior to the judge stating the actual sentence - an agonizing wait ensues. When the sentence is issued, if it involves prison time, the defendant may be taken into custody if the government argues that the defendant is a risk of flight or danger to the community. However, most federal defendants who are not already in custody and facing non-violent crimes will receive a report date from the U.S. Bureau of Prisons detailing where they should report to prison - typically this letter is issued in 30 days but this may vary based on the capacity of federal prisons and BOP processing timelines.
Appeal of the Sentence
A federal sentence may be appealed within the limits of the plea agreement. Unfortunately, many plea agreements contain a clause preventing the defendant from appealing the sentence on any grounds other than ineffective assistance of counsel. Some plea agreements permit the government to appeal a sentence if its lower than the guidelines calculation in the plea agreement and permit a defendant to appeal a sentence if its higher than the guidelines. However, if the defendant executes an “appellate waiver” this right is lost - the defendant cannot appeal the sentence on any grounds other than ineffective assistance of counsel. If the defendant wishes to appeal a sentence it must be appealed within 14 days of the judgment which is usually issued a few days after the sentencing hearing.
If the defendant has executed an appeal waiver its still a good idea to file a notice of appeal of the sentence to preserve the appeal and permit the appellate counsel time to investigate the appellate waiver to see if there is a way to attack it. An appeal waiver can be overturned under limited circumstances such as if the defendant entered into the plea agreement unknowingly or if the federal government violated the terms of the plea agreement.
What is the Minimum Sentence for a Federal Crime?
Many federal sentences carry mandatory minimums. A mandatory minimum sentence is one that must be imposed by operation of statute. While the judge can give a higher sentence when sentencing a defendant facing a mandatory minimum, they cannot go lower. Like most rules, there is an exception that is outlined below. Here are some examples of federal mandatory minimums that impact most federal defendants:
Drug Offenses - For heroin, crack, PCP, meth, LSD and marijuana federal law imposes mandatory minimums range from 10 years to life depending on weight of the drug and the the number of certain prior drug crimes (10 for first offense and life for third offense) and whether the distribution resulted in death or serious bodily injury (20 year minimum). This is outlined in: 21 USC §§ 841(a), 841(b)(1)(A) and § 2D1.1
Firearm Offenses - Federal law imposes mandatory minimums for firearm offenses ranging from 5 years to life depending on whether the firearm was used during a drug offense or a crime of violence. This is outlined in: 18 USC § 924(c)(1)(A)(i) and § 2K2.4
Immigration Offenses - Federal law imposes mandatory minimums for immigration offenses ranging from 3 years to 10 years depending on the number of prior offenses and severity of the offense. This is outlined in: 8 USC § 1324(a)(2)(B)(i); § 2L1.1
Aggravated Identity Theft- This is one of the most common mandatory minimums used by prosecutors as a bargaining chip or to impose a drastically higher sentence on a defendant. When a person uses the identity of another in commission of an offense the court must impose a mandatory two year prison term. That term can also be 5 years if the identity was used during the commission of a federal crime of terrorism. This is outlined in: 18 USC § 1028A(a)(1) and § 2B1.6
Sex Offenses and Child Pornography- Federal law mandates a varying range of mandatory minimum sentences for offenses involving the production of pornography and production/possession of child pornography. This is outlined in: 18 USC § 1591(b)(1), 1591, 2251 and §§ 2G1.1, 2D2.1, 2G1.3.
First Degree Murder- First degree murder carries a mandatory sentence of death or life in prison.
What are the 3553(a) Sentencing Factors?
In addition to the mandatory minimum sentences applicable for the particular crime, and the sentencing guidelines calculation, the judge must review the 18 U.S.C. 3553(a) sentencing factors. These factors must be analyzed by the judge to determine if the judge should sentence a federal defendant lower or higher than the applicable guidelines. The 3553(a) factors require the judge to analyze the following:
The Nature of the offense: The judge will analyze the severity of the offense, who was harmed and factors that make the crime less severe or more severe than other offenses of this category. For instance, a bank robbery where people were harmed and significant amounts were stolen during a violent act will net a much higher sentence than a similar offense where no one was harmed. The judge will also determine any motivating factors surrounding the defense such as necessity or duress that didn’t amount to a legal defense.
The Defendant’s Personal Characteristics and History: The defense attorney has a lot of latitude under this factor to show that the defendant is generally a good upstanding citizen but for this offense. Perhaps the defendant has done a lot of good in his or her life and this is an isolated offense. The court will also weigh the education level of the defendant and his or her background to understand if lack of education or opportunity motivated the defense or made the defendant more susceptible to the pressures of other co-defendants. We see this a lot in complex healthcare fraud schemes where low level employees participated in the offense and were pressured to plead guilty. While they may be factually guilty and participated in the fraudulent scheme they may not have had the knowledge or education to fully understand the gravity of the offense or the illegality of the conduct they participated in.
Avoiding Unwanted Disparity Among Sentences: This factor is perhaps the most misunderstood factor. Many federal defendants and federal defense attorneys believe that this factor is used to analyze the sentences of other defendants in the case (if there are multiple defendants) but this is incorrect. This factor was included by congress to ensure that federal defendants across the board receive similar sentences for similar conduct. It is to make sure that a judge does not sentence a case well beyond the “heartland” of federal sentences imposed and sentence a defendant to a much higher or lower sentence based on his or her personal beliefs. While the sentences of other co-defendants may play a role, its not by itself, dispositive under this factor.
The Societal Need for the Sentence Imposed: Here the judge will determine if the sentence meets the sentencing objectives outlined in the United States Sentencing Commission and Congress’s guidance. These factors include respect for the law, punishment, rehabilitation and deterrence. Judges will give higher sentences for crimes that require the judge to send a message to the community that a certain type of offense such as healthcare fraud or drug trafficking must be punished severely but will also factor in whether rehabilitation is a better option for the defendant given the nature of the offense.
The Importance of Providing Restitution to Any Victims if Applicable: Restitution is mandatory for most federal offenses. Where a victim is financially harmed the judge will order that the victim be compensated by the defendant at sentencing. In a bank fraud case, restitution to the financial institution is required and will be imposed as a condition of the sentence.
The federal sentencing guidelines are not mandatory, they are advisory, and a judge providing a sentence lower than the guidelines must justify their position utilizing the factors outlined in 18 U.S.C. 3553(a). At sentencing defense counsel must argue that these factors are mitigating and should result in a lower sentence than the federal guidelines require.
How do the Federal Sentencing Guidelines Work?
The federal sentencing guidelines are complex and require intricate knowledge of their operation. While the federal sentencing guidelines were made advisory in 2005 in United States v. Booker, they are still a very important factor in any sentencing case because the judge will use them as a starting point for issuing a sentence. If the guidelines impose a 20 year sentence in a drug trafficking case, the judge is unlikely to give a probation sentence. Because sentencing guidelines are so complicated there is a lot of room for advocacy at every stage of a defense case. Guidelines are calculated by determining the conduct at issue and the offenses for which the defendant has plead guilty. Most federal guidelines are determined first and foremost by the conduct at issue. For instance, in a federal wire fraud case, the driving factor behind the guidelines is the amount of money stolen from the institution. In a drug trafficking case the guidelines are determined based on the weight of drugs possessed, manufactured, or distributed.
The calculation of the guidelines begins with a base level offense number. This is a number assigned to each federal crime. The base level will be enhanced by certain offense characteristics such as if death or serious bodily harm resulted. The base level will be further enhanced, for example in a drug offense, by the weight of drugs involved. Once this is calculated other enhancements will be applied such as an enhancement for leader or organizer of a criminal offense, use of a special skill to engage in the crime. This level can be reduced by acceptance of responsibility or cooperation with the government. The final output is the offense level. This offense level is then applied to a sentencing table to determine the appropriate range of months a federal defendant should be sentence to. An example is located here. A defendant with an offense level of 42 faces a possible prison term of 360 months to life in prison.
As you can see, federal sentences are largely driven by conduct and the best way to get a lower federal sentence is to narrow the conduct. Here’s how this is done…
How to Get a Lower Federal Sentence
Narrow the conduct at issue:
The first and most important aspect of a sentencing case is narrowing the conduct at issue during plea negotiations. Or if there is no plea agreement, narrowing the conduct before the judge at the sentencing hearing. In a case with a plea agreement the conduct at issue during sentencing is located in the “relevant conduct” portion of the plea agreement. This is the most vital portion of the agreement because it details the conduct used by probation and the judge to determine the sentence. If it includes a wide range of conduct it will necessarily net a higher sentence. If this paragraph is narrowed through negotiation prior to a plea agreement the defendant may face a lower sentence. Entering into a plea agreement without an agreement as to the scope of conduct is a dangerous endeavor because the defendant will generally loose appeal rights (see appeal waiver above) and face an uphill battle appealing an incorrect sentencing determination by the judge. A plea agreement is best only entered into when both sides agree on the specific conduct that will drive the sentencing guidelines calculation.
A defendant always has the option of entering a plea of guilty of her or she does not agree with the government’s assessment of the offense conduct and can provide evidence at sentencing that the government’s assessment of conduct is not supported by the evidence.
In a sentencing case after a trial conviction or where the is no plea agreement, the defendant can offer evidence to the sentencing judge to narrow the scope of conduct (drug weight or financial impact for example). A defendant can call witnesses, introduce documentary evidence and prove that the government and probation’s calculation of the conduct is inappropriate.
Humanize the Defendant:
Judges are people too and they are less likely to sentence a federal defendant to an egregious amount of jail time if they have sympathy for the defendant. Judges recognize that people make mistakes and that even those who have committed a federal offense may otherwise be good people less likely to re-offend. In my extensive practice before federal judges I have realized that most judges during the sentencing phase seek understanding. Defense counsel must give the judge a clear picture of why the defendant committed the offense and the driving factors behind commission of the offense. Simply saying that the defendant is a good person and made a mistake is not enough. Counsel must dive deep into the decision to commit the offense and provide the judge a clear understanding of the motivating factors. For instance, perhaps a low level stock analyst facing financial difficulties and trying to compete in the fast paced life as a Wall Street analyst decided to solicit inside information about a stock. Perhaps the analyst had a new baby on the way, a lifestyle that was difficult to maintain in an expensive city, medical bills or debt incurred may be mounting from a sick parent. A deep understanding of the decision and motivating factors to take that leap from a lawful life to unlawful conduct must be provided to the judge. Maybe they grew to realize that in their career unless they engaged in such behaviors their career would be impacted or perhaps they may face termination for lack of productivity. This would surley cause a great impact not only on the defendant but their spouse and their children.
While these facts are certainly not an excuse for an offense they do provide context to the judge and help the judge understand the mind of the defendant. Facing loss of their ability to work in the financial industry because of the conviction and learning the error of their ways through the difficult criminal justice process a defendant like this simply cannot re-offend and perhaps jail time for an isolated error in calculation of judgment is unnecessary to meet sentencing factors.
Express Remorse: Expressing remorse is difficult.
This is especially so for the thousands of federal defendants who plead to crimes that fall squarely in the grey area of federal statutes or crimes that do not have a corresponding intent requirement. While many won’t acknowledge this fact, I will - many defendants who plead guilty do not actually believe they are guilty. This is why I do not permit a client of mine to plead guilty unless they tell me they are guilty and exactly why they believe they are guilty. But many plead guilty for other reasons than their actual guilt. Federal sentences are excruciatingly high. Prosecutors often engage in extortion by threatening friends or family members with indictment. Often they threaten the defendant with more serious charges. Trials are expensive and acquittal rates are very low. This is detailed thoroughly in my book. And while a federal judge requires a defendant to express their guilt to a federal offense openly in court, many lie at this critical stage just to get the bleeding to stop. But doing so creates a big problem. A federal defendant who believes he is not guilty but pleads guilty will not be able to express the required remorse at the sentencing stage and may receive an unnecessarily high sentence if he or she tries to mitigate their guilt. This is why a federal defendant should only plead guilty if they are legally and factually guilty and can express remorse openly in court for their conduct.
To do so the defendant should express remorse in a letter to the judge attached to the sentencing memorandum as well as openly in court. This letter should be carefully crafted to ensure that the judge fully understands the motivations for engaging in the offense.
For more information about federal criminal defense purchase the Amazon Bestseller Fight the Feds: Unraveling Federal Criminal Investigations, review our blog, or subscribe to our monthly newsletter that provides helpful updates on federal criminal defense topics.
ABOUT THE AUTHOR
Ron Chapman has spent his career defending federal defendants in high-profile federal criminal cases. He is also the author of the Amazon best selling book Fight the Feds: Unraveling Federal Criminal Investigations. During his career he has learned that many federal defendants facing the power of the federal government lack resources and understanding of this complex field of law. The book and this companion website and guide were designed to close the informational gap between the federal government and federal criminal defendants by providing tactics and tips learned during my career fighting the federal government and its immense power. If you haven’t already, go to the beginning of this guide and review sections that are relevant to you and consider purchasing Fight the Feds to grow your knowledge of federal criminal law and investigations.