FEDERAL SENTENCING BASICS
Federal sentencing is complex and entirely different from state court sentencing. Federal judges will use the United States Sentencing Guidelines (USSG) to decide the sentence. Sentences are based off a USSG chart of offense level and resulting guideline range.
Each offense has a base offense level, depending on the offense, and specific offense characteristics. The offense level is then changed by adjustments and departures which changes the guideline range. At sentencing, the judge can apply a “variance” that decreases the sentencing range more, based on information about the defendant and the case. After the US Supreme Court’s decision in U.S. v. Booker 543 U.S. 220 (2005), the guideline range is “advisory,” not mandatory, so the judge can sentence below, and even well below, the guideline range.
It’s crucial to have a federal criminal defense lawyer who understands the United States Sentencing Guidelines, who can negotiate with the federal prosecutor to agree to favorable guidelines, and who can effectively argue before the judge to obtain all available favorable adjustments, departures, and variances.
Common Adjustments:
Aggravated Role (USSG 3B1.1)
If the defendant was an organizer, leader, manager or supervisor in the crime, increase by 2, 3, or 4 levels.
Mitigated Role, Minor Role (USSG 3B1.2)
Mitigated or minor role is often given to defendants who are “substantially less culpable than the average participant.” If the defendant was a minimal or minor participant, decrease by 2, 3, or 4 levels.
For example, a defendant who only stores or transports drugs for a drug dealer may enjoy a minor role adjustment.
Use of a Minor (USSG 3B1.4)
Using a minor to commit the offense or assist in avoiding detection of, or apprehension for, the offense, increase by 2 levels.
For example, a person brings their children with them to move illegal drugs into the USA to make it seem like they are on an innocent family trip so police don’t search their car at the border might get a use of a minor adjustment.
First Time Offender (“Zero Point Offender”) (USSG 4C1.1)
If the defendant has no criminal history, except for certain offenses, decrease by 2 levels.
Safety Valve (USSG 5C1.2) and mandatory minimum drug offenses
Certain drug offenses have FIVE or TEN YEAR mandatory minimum.
With safety valve, the defendant can see a sentence under the mandatory minimum, if
1.) criminal history is not disqualifying; 2.) no violence or weapons in the crime; 3.) no death or serious injury in the crime; 4.) not an organizer, leader, manager, or supervisor or engaged in a continuing criminal enterprise; 5.) the defendant truthfully provides the Government with all information and evidence concerning the offense or offenses that were part of the same course of conduct. (In 2024, the US Supreme Court significantly limited availability of safety valve in Pulsifer v. United States.)
The 5th prong, truthfully providing information, often involves an in person meeting between the defendant and their attorney with the federal prosecutor and a law enforcement agent. At the meeting, the defendant must truthfully explain the events of the offense. In some cases, the defendant and their attorney can write a letter instead of the in person meeting. Truthfully providing information is not the same as a 5K1.1 and is not “snitching.” The reality is, almost every federal drug defendant completes safety valve to get a sentence under the mandatory minimum.
On top of going under the mandatory minimum, safety valve also is a decrease by 2 guideline range levels. (USSG 2D1.1(b)(18).)
Substantial Assistance to Authorities “5k” (USSG 5K1.1)
If the defendant has provided substantial assistance to the Government in investigating or prosecuting another person, the federal prosecutor (not the defense) may file a motion asking the judge to order a downward departure.
The decision to provide substantial assistance is complicated, case specific, and involves risk, but can lead to significantly lower sentences.
Note – substantial assistance after sentencing can also result in a lowered sentence under Federal Rule of Criminal Procedure 35.