Curtailing Judicial Discretion – Federal Sentencing (Part One)

Brian T. Hobson

For decades, district court judges had full discretion to sentence criminal defendants in federal court.  This practice led to sentence disparities for defendants charged with similar offenses.  To combat this problem, the United States Congress passed the Sentencing Guidelines in 1987.  The sentencing guidelines use the crime of conviction and the defendant’s criminal history to recommend a prison sentence in a range of months.  Originally, the range given by the guidelines was mandatory.  Put differently, a federal district court judge could not sentence a defendant outside the guideline range.  However, the Supreme Court removed the mandatory nature of the guidelines in Booker. The guideline range is now advisory.  Most sentences are still ordered within the guideline range, but some courts will deviate from the recommendation for good cause.

There are multiple high-profile federal prosecutions taking place in the United States.  These include the prosecution of Michael Cohen, Paul Manafort, and other high-level officials associated with Donald Trump’s campaign.  These prosecutions have placed the federal criminal system at the forefront of American debate.  Some of the sentences discussed in the news seem harsh to some spectators, notably Paul Manafort’s ability to obtain a life sentence if convicted on all charges.

This post will provide a general overview of how the sentencing guidelines work on a criminal case, using tax evasion and child pornography as examples.

The Guideline Chart

Table 1 of the Sentencing Guideline Manual dictates the recommended sentence in a particular case.  The vertical axis contains the offense level for the crime of conviction.  The horizontal axis values the criminal history of the defendant.  Where these two lines intersect, there is a range of months recommended to the sentencing court. There are multiple steps to figure out the accurate offense level and criminal history category.  Those steps are generally, finding the base offense level, applying specific offense characteristics, adjusting the offense level for statutory aggravating and mitigating circumstances, and determining the criminal history category of the defendant.

Base Offense Level

The base offense level (BOL) is the starting point for determining the guideline sentence.  Using a combination of the criminal statute, and the guideline manual, attorneys can locate the base offense level for a crime.

In tax cases, this is done almost exclusively by using the tax loss table found is United States Sentencing Guidelines (USSG) § 2T4.1.  In this chart, the base offense level is dictated by the tax loss.  Tax loss is the amount of money the defendant would have paid in taxes had they filed their return or reported their income accurately.

You can see the offense level jumps as the tax loss crosses certain thresholds.  If a defendant has a tax loss calculation of $500,000, the base offense level is 18.  This will be the starting point for calculating the defendant’s sentence in court.  The use of the tax loss table for every criminal tax conviction makes it important for attorneys to calculate an accurate tax loss prior to sentencing.  This issue will be discussed at length in a subsequent post.

For possession of child pornography, the base offense level is 18 or 22 depending on which statutory section forms the basis for the conviction.  USSG §2G2.2.

The base offense level is the starting point for all guideline calculations.

Changing the Offense Level

Once the BOL has been determined, the probation department, and defense counsel, must consider the other sections of the USSG to determine the true offense level for sentencing.  Not all crimes are created equal, and the sentencing commission lays out certain mitigating and aggravating factors which can move the offense level up or down from the BOL.  There are numerous factors which can move the guideline range, but a few major areas include: 1) acceptance of responsibility, 2) modifications for role in the crime, 3) modifications for obstruction, and 4) offense specific characteristics.

  1. Acceptance of Responsibility

The federal system incentivizes guilty pleas.  If a criminal defendant foregoes his right to a jury trial, the government spends less resources on prosecution and the defendant is more likely to become a cooperating witness.  Under USSG §3E1.1, a defendant will receive a 2 level reduction if they accept responsibility for their actions.  Though the reduction can be obtained following trial, it is commonly reserved for those defendants who accept their role in the crime and forego their right to trial.  In addition, if a criminal defendant pleads guilty early in the prosecution, they may be eligible for an additional 1 level reduction.  This extra level is provided when the government was not forced to waste time preparing for trial and the defendant has been forthcoming with his role in the criminal activity.

These reductions for pleading guilty can greatly impact a sentence.  If a defendant has an offense level of 16, and criminal history category of I, they are looking at 21-27 months in federal prison.  With the 3 level reduction, the range is reduced to 12-18 months.  The defendant could save himself over a year in prison by simply admitting his actions early in the process.

  1. Role Adjustment

The USSG looks at the defendant’s role in the criminal activity when assessing the appropriate guideline range.  Under USSG §3B1.2, a defendant will receive a 4 level decrease if they were a minimal participant in any criminal activity, and a 2 level decrease if the defendant was a minor participant.  On the other hand, if a criminal defendant is an organizer or leader of criminal activity their offense level will increase by 4 levels.  A manager will increase by 3 levels.

The guidelines try to distinguish the low-level actors from the leaders.  It makes sense that a low-level actor would have a different guideline range than the leader of the enterprise.  Under federal conspiracy law, minor actors can be charged with criminal activity which was foreseeable.  A person who does one cocaine sale for the cartel can be indicted for all of the cocaine trafficked by the organization.  One way the guidelines try to address this issue is through adjustments for role.

  1. Modifications for Obstruction

Even if a defendant has not been formally charged with obstruction of justice, the guidelines can account for any obstructive actions by increasing the offense level.  Under USSG §3C1.1, if the defendant willfully obstructed, or attempted to obstruct, the investigation, prosecution or sentencing of the crime of conviction, the offense level increases by 2 levels.

Many actions can be considered obstruction. However, there are two main ways this adjustment arises: giving a false statement to investigators and destroying or concealing documents.  In criminal tax cases, the concealment or destruction of documents is a common outlet for this adjustment.

  1. Offense Specific Adjustments

Acceptance of responsibility, role adjustments, and obstruction adjustments are relevant to every federal sentencing.  However, many of the aggravating and mitigating factors for adjustment are offense specific.  The USSG has carved out statutory factors which are specific to the offense of conviction.  We will look at the offense specific factors for tax crimes and child pornography.

Tax Crimes

There are two main areas of offense specific considerations in a criminal tax case: 1) failure to report the source of income and 2) sophisticated offense conduct.

For tax evasion and fraud, USSG §2T1.1(b)(1) states that if a defendant failed to report the source of income exceeding $10,000 in any year of criminal activity, the offense level increases by 2.  If the BOL is under 10, then the offense level increases to 12.

In addition, if the offense involved sophisticated means, the offense level increases by 2.  USSG §2T1.1(b)(2). The sentencing commission defines sophisticated means as especially complex or intricate offense conduct pertaining to concealment of the offense, including hiding assets in fictitious corporations or moving money offshore.

Child Pornography

Child pornography is a growing area of criminal prosecution in the United States.  The federal government has special task forces to track those who possess and distribute child pornography.  This increase in focus has been accompanied by the addition of multiple specific offense characteristics in the United States sentencing guidelines:

  1. If charged under 18 U.S.C. §2252A(a)(2), defendant’s conduct was limited to the receipt or solicitation of material involving the sexual exploitation of a minor, and the defendant did not intend to traffic in, or distribute, such material, decrease by 2 levels. USSG §2G2.2(b)(1).
  2. If the material involved a prepubescent minor or a minor who had not attained the age of 12 years, increase by 2 levels. USSG §2G2.2(b)(2).
  3. Apply the Greatest of:
    • If the offense involved distribution for pecuniary gain, increase by amount of gain in the theft table under §2B1.1. The increase shall not be less than 5 levels.
    • If the defendant distributed material in exchange for any valuable consideration, outside of pecuniary gain, increase by 5 levels.
    • If the offense involved distribution to a minor, increase by 5 levels.
    • If the offense involved distribution to a minor that was intended to persuade, induce, entice or coerce the minor to engage in any illegal activity, increase by 6 levels.
    • If the offense involved distribution to a minor that was intended to persuade, induce, entice or coerce the minor to engage in prohibited sexual conduct, increase 7 levels. USSG §2G2.2(b)(3).
  1. If the offense involved material that portrayed sadistic or masochistic conduct or violence; or sexual abuse or exploitation of an infant or toddler, increase 4 levels. USSG §2G2.2(b)(4).
  2. If the defendant engaged in a pattern of activity involving the sexual abuse or exploitation of a minor, increase 5 levels. USSG §2G2.2(b)(5).
  3. If the offense involved the use of a computer or an interactive computer service for the possession of the material, increase by 2 levels. USSG §2G2.2(b)(6).
  4. If the offense involved:
    • 10-150 images, increase 2 levels;
    • 150-300 images, increase 3 levels;
    • 300-600 images, increase 4 levels;
    • 600 or more images, increase 5 levels.

The vast aggravating factors associated with child pornography make these cases particularly dangerous.  Even if the BOL is low, a defendant can quickly move up the guideline chart depending on the specific characteristics of the offense.

For example, let’s assume a defendant starts at a level 18 for possession of child pornography.  If the defendant possesses a photo of a child under 12, has a photo with sadistic conduct, traded photos online, used a computer, and obtained 700 images overall, the new offense level is 36.  The starting guideline range was 27-33 months with no criminal history.  The new guideline range is 188-235 months.  This is a difference of 13-15 years in federal prison.  These offense specific characteristics can sky rocket a sentence if a defendant’s activity falls within the aggravating factors.

In part two, we will look at the criminal history component of sentencing, calculate the final numbers, and discuss the factors which can bring a defendant’s sentence under the guideline range.

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