The federal sentencing guidelines are rules federal judges have to consider at sentencing a convicted defendant. They are set up to give federal judges fair and consistent sentencing ranges when imposing a sentence.

The sentencing guidelines are based on the severity of the crime and the defendant's characteristics and criminal history. There are some mandatory minimum sentences. If a judge wants to impose a different sentence, either higher or lower, from the penalty calculated in the guidelines, they have to explain their decision.

Federal sentencing guidelines are written by the United States Sentencing Commission, which is part of the federal government's judicial branch.

The Sentencing Reform Act of 1984 set forth guidelines for federal sentences. By using these guidelines, Congress attempted to narrow the disparity in penalties imposed by judges for similar offenses committed by another person under similar circumstances.

The sentencing of defendants in federal criminal cases, either as the result of a negotiated plea agreement with the prosecutor or after being found guilty by a jury at trial, starts with the United States Sentencing Guidelines. 

The guidelines attempt to compare a defendant's illegal behavior with their criminal record and thereby produce a presumptive range of months for the defendant to be incarcerated. Our California criminal defense lawyers will review this topic in more detail below.

Can You Avoid a Mandatory Minimum Sentence?

Someone who is charged with a federal crime and is facing a mandatory minimum obviously will start to look for answers as to:

• what that means, number one; and
• number two, how they can avoid getting hit with the mandatory minimum.

Certain crimes – usually drug crimes – if a person gets convicted of them can trigger a mandatory minimum.

Regarding drug crimes, you're generally talking about a situation where the person has been arrested for moving drugs in some way; because of the amount and type of drugs, that person is facing a five- or 10-year mandatory minimum. 

What it means is, if you get convicted for that crime – let's take the drug situation, which is unfortunately common – where someone's facing a 10-year mandatory minimum, the minimum sentence the judge can give you is ten years in federal prison served at 85%.

That doesn't mean they can't give you more time; that means they can't give you less time; so sometimes a person can have no criminal record, and usually, their sentence would be five years, for example, or in the five-year range, but because of the mandatory minimum, the judge can't give him the five years that they would typically give; they must provide at least ten years.

So, the next question becomes, how do we avoid that 10-year mandatory minimum because we don't want it?  The way you do that is twofold: 

• safety valve,
• 5k departure.

A safety valve means you can meet specific criteria – mainly; they're going to look at:

• your criminal record,
• make sure that you're not a lead organizer,
• you don't have multiple drug convictions in the past,
• you didn't have a gun at the time,
• you can't have used any violence.

So, suppose you can meet specific criteria? In that case, you can get the safety valve, which allows the judge, under certain circumstances, to sentence you to less than ten years. You get two levels knocked off your sentence if you successfully get the safety valve.  That's one way to avoid a mandatory federal criminal minimum.

What is a 5k Departure?

Another way is what's called a 5K departure, which is where you agree to cooperate with the government.  You do what's called a proffer session and give them information. 

Now they decide you helped them catch other people, get drugs, guns – whatever the case may be – and they'll allow your sentence to go below the five or 10-year mandatory minimum. 

They will argue with the judge to allow you to go below the mandatory minimum.  If you're successful in cooperating, they'll take the next step and ask for levels off your sentence. 

Ultimately, the sentence will be up to the judge. Still, when it comes to cooperation in a federal criminal case and the mandatory minimum sentences if the government says you should get below the minimum.

They ask for levels off; the judges usually go along with it because they figure the government is in the best position to judge whether or not your cooperation was successful.

Departures from the Sentencing Guidelines

A federal judge has to decide whether there are aggravating or mitigating circumstances that the guidelines didn't sufficiently consider.

A judge determining that aggravating or mitigating circumstance exists could impose a sentence below or above the guideline range. Still, they must write their reasons if they decide to depart from the guidelines.

If they impose a sentence that is an upward departure, the defendant has the option to appeal the ruling. On the other side, a downward departure could be appealed by the government.  

A special type of downward departure request by the federal prosecutor is called “substantial assistance.” The judge could grant this in a situation where the defendant provided substantial assistance in the criminal investigation of another offender.

As noted, the sentencing guidelines calculation is just the first step in the federal sentencing process now that the guidelines have been rendered advisory. 

The sentencing judge examines other sources of authority, including the equitable factors in 18 U.S.C. § 3553(a), to determine the appropriate sentence to accomplish the sentencing goals, including punishment, deterrence, and rehabilitation. 

So, suppose you or a loved one is facing a mandatory minimum sentence? In that case, it could be in a drug case or a theft-related offense – there are all sorts of scenarios where these mandatory minimums come up—you need an experienced attorney who has handled cases just like yours. 

I've been doing this for 30 years now.  Pick up the phone now and ask for a meeting with Ron Hedding.  I stand at the ready to help you. The Los Angeles-based Hedding Law Firm offers a free case evaluation via phone or the contact form.