Criminal History (CHC)

How a Criminal History Can Affect Federal Sentencing

Do you have a criminal history? If so then you need to read about how your Criminal History (CHC) can affect your federal sentence.

In federal criminal cases, a defendant’s criminal history can determine the severity of their sentence. Federal Judges follow Federal Sentencing Guidelines, but don’t have to adhere to them. A person’s criminal history can significantly affect the recommended range of punishments recommended for a crime.

Criminal History Category

The Federal Sentencing Guidelines assign defendants to one of six Criminal History Categories (CHCs) based on prior convictions. Category I represents the least serious offenders, usually those with little or no criminal history, while Category VI applies to individuals with extensive or violent pasts.

Points are awarded for each prior conviction, with factors such as the age of the offense, whether the sentence was served, and the type of crime affecting the total score. For example, someone who committed a minor offense years ago may receive fewer points than someone convicted of a serious, recent crime.

A higher criminal history score means a higher CHC, which leads to a higher recommended sentencing range. So, even if two people commit the same crime, the individual with a more extensive record could face a significantly longer sentence. For instance, someone in Category I might face 12-18 months, while someone in Category VI could face 30-37 months for the same crime.

The Guidelines also categorize different types of prior convictions differently. Violent offenses or drug-related crimes tend to score more heavily, meaning that those with a history of serious crimes are more likely to find themselves in the higher categories.

The Role of Criminal History in Departures and Variances

While the Federal Sentencing Guidelines provide a recommended range, judges have discretion to deviate from them, either through departures or variances. A departure happens when the court moves away from the Guidelines based on factors already included in the Guidelines themselves, such as a particularly egregious criminal history. A variance occurs when the judge moves outside the Guidelines based on reasons that fall outside the Guidelines.

How Criminal History Affects Departures

Criminal history can lead to what’s known as an “upward departure,” where a judge imposes a sentence that is harsher than guideline recommendations. This happens when it is revealed that the defendant’s criminal is under represented. For example, if someone repeatedly committed minor crimes that, on their own, didn’t score many points, a judge might still find that the overall pattern of behavior warrants a harsher sentence. Similarly, if a person has committed multiple violent offenses, a judge could impose an upward departure even if the calculated criminal history score doesn’t fully reflect the danger they pose to the public.

By contrast, a “downward departure” might occur when a person’s criminal history is less serious than the Guidelines suggest. For instance, if an individual has a prior conviction that unfairly inflated their criminal history score, or if there are mitigating circumstances around the prior conviction, a judge might depart downward and impose a lighter sentence than recommended by the Guidelines.

How Variances Affect Criminal History

Variances allow for more flexibility in sentence, as they are based on factors not mentioned in the Guidelines. For example, a judge might grant a downward variance if the defendant’s prior convictions were relatively minor or occurred many years ago. Conversely, a judge might impose an upward variance if they believe the Guidelines don’t adequately account for the seriousness of the defendant’s criminal past or if there are aggravating factors that suggest the person poses a greater threat to society than their criminal history category implies.

There are factors outlined 18 U.S.C. § 3553(a) that play a key role in variances. These include the need for the sentence to reflect the seriousness of the offense, promote respect for the law, provide just punishment, afford adequate deterrence, and protect the public from further crimes.

If a judge finds that a defendant’s criminal history indicates a heightened risk of recidivism (offending again), they may impose a longer sentence even if the Guidelines suggest a shorter term.

The Impact of Criminal History on Post-Sentencing Options

Criminal history also affects a defendant’s chances for early release or parole. Individuals with serious criminal records find it harder to qualify for early release programs, such as the First Step Act, which allows for reduced sentences for non-violent offenders who demonstrates good behavior or participate in rehabilitation programs.

How to Reduce Your CHC

It takes a very skilled federal defense lawyer such as Nate Crowley to appeal to the judge’s discretion to depart from or vary the sentence based on a person’s prior convictions. This is because while the Guidelines provide structure, the nuances of a defendant’s past can lead to significantly different outcomes, making criminal history a critical factor in the federal sentencing process.

Since CHC is based on prior convictions and their severity, the lower your CHC, the more favorable your range of sentencing is going to be. Although directly reducing the CHC is difficult, several strategies and legal avenues that a skilled federal defense layer can use to lower it.

1. Challenge the Validity of Prior Convictions

A direct way to reduce your CHC is to challenge the inclusion of prior convictions, as they are used to calculate sentencing. If you or your attorney believe that a previous conviction should not have been factored into your criminal history, you may be able to get it excluded.

• Unconstitutional convictions: If a prior conviction violated your constitutional rights (for example, you weren’t properly advised of your rights, or you didn’t have effective legal representation), it may be possible to have it removed from your record.
• Stale convictions: Some older convictions can be discounted if they exceed the time limits specified by the Sentencing Guidelines. Typically, sentences older than 10 or 15 years may not be factored into your CHC, depending on when they were committed and when your current crime was committed.

If these prior convictions can be successfully challenged or deemed invalid, your CHC may be reduced.

2. Seek Downward Departures

A downward departure from the Sentencing Guidelines is possible if your criminal history exaggerates your actual conduct. Judges have the discretion to impose a sentence that departs downward from the recommended range if they find that the CHC overstates the seriousness of your prior offenses.

Some grounds for a downward departure related to criminal history include:

• Minor or non-violent past offenses: If your prior convictions were for relatively minor, non-violent crimes (e.g., misdemeanors or infractions), a judge may consider reducing your CHC.
• Old, isolated offenses: If your past convictions occurred a long time ago and you have demonstrated a lengthy period of law-abiding behavior, a judge may find that the CHC overstates your risk of recidivism.
• Youthful or juvenile offenses: If you committed offenses when you were very young, and your life has since stabilized, a judge may reduce the weight of those convictions in your CHC calculation.

3. Seek a Downward Variance

Judges can grant a downward variance from the Guidelines based on factors not explicitly accounted for in the criminal history calculations. This is more flexibility than a departure and is guided by the sentencing factors under 18 U.S.C. § 3553(a). A variance is requested when there are mitigating circumstances that would make the recommended CHC-driven sentence too harsh.

Potential reasons for a downward variance include:

• Significant personal rehabilitation: If you can show that you’ve made substantial efforts to reform your life—such as completing rehabilitation programs, furthering your education, or maintaining stable employment—a judge may find that your criminal history doesn’t reflect who you are now.
• Family and community support: Demonstrating strong family ties, community support, and the role you play in taking care of dependents can sometimes help justify a variance.
• Circumstances surrounding past crimes: If your previous offenses were committed under extraordinary circumstances (such as extreme poverty, addiction, or coercion), the judge might consider this when determining your sentence.

4. Expunge or Seal Prior Convictions

Expunging or sealing a criminal record can prevent prior convictions from being counted in your CHC. While expungement is generally difficult at the federal level (since federal convictions usually can’t be expunged), it can be deployed for state-level offenses. If you have prior state convictions, consult with a lawyer to see if expungement or record sealing is an option.

If a prior state conviction is expunged or sealed, it may not be factored into the federal CHC calculation, thereby reducing your criminal history score. California federal attorney Nate Crowley can help with expungement and sealing records if the crime was a state offense.

5. Rehabilitation Programs and the First Step Act

The First Step Act, passed in 2018, allows for sentence reductions and early release for certain non-violent offenders who participate in rehabilitative programs. While the Act itself doesn’t directly reduce the CHC, demonstrating a commitment to rehabilitation through these programs can impact a judge’s decision on variances and departures.

Participation in programs designed for drug addiction treatment, vocational training, or mental health can also support arguments for a lower CHC or a reduced sentence through variances.

6. Post-Conviction Relief

In some cases, you may be able to reduce your CHC by seeking post-conviction relief for prior convictions. For example, if you can get a prior conviction, sometimes called priors, vacated through a successful appeal or post-conviction motion (like a habeas corpus petition), it can reduce your overall criminal history score.

While directly lowering your CHC may be challenging, several legal strategies—such as challenging prior convictions, seeking downward departures or variances, expunging records, or demonstrating rehabilitation—can help mitigate the impact of a high criminal history score. Working closely with knowledgeable attorney Nate Crowley is crucial in navigating these options and achieving the most favorable sentencing outcome.

Criminal History Affecting Sentencing? Call Nate Crowley, Criminal Federal Defense Attorney!

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