Federal Crimes Blog

Are The Federal Sentencing Guidelines Mandatory or Advisory?

Posted by Ronald D. Hedding | Oct 14, 2022

This is an important question and what it means is when a judge looks at the federal sentencing guidelines in determining what they are going to sentence a criminal defendant to, do they have to go along with precisely what the guidelines say, or can they go outside the guidelines? 

The answer is that they can go outside the guidelines.  They could either go below the guidelines, at the guidelines or above.  They have to justify it and consult the guidelines as a starting point for a federal judge when figuring out what a sentence will be.

Are The Federal Sentencing Guidelines Mandatory or Advisory?

The federal sentencing guidelines are basic rules federal judges have to consider when sentencing a defendant convicted of a federal crime.  

These guidelines are primarily designed to provide federal judges with fair and consistent sentencing ranges to consider when imposing a sentence. They are based on the crime's severity and the defendant's criminal history.

As noted, they are not mandatory. Any federal judge who wants to impose a different sentence, either higher or lower than the calculated sentence, must explain their decision in writing.

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 created guidelines for federal sentences.  Congress attempted to narrow the disparity in sentences imposed for similar offenses committed by someone in similar circumstances.

The sentencing in federal criminal cases, either based on a negotiated plea deal with the government or after being found guilty at trial by a jury, starts with the United States Sentencing Guidelines. 

They are a detailed series of provisions that compare a defendant's unlawful conduct with their prior criminal history. Thus, they arrive at a presumptive range of months for which a defendant should be incarcerated. Our federal criminal defense lawyers will review this topic further below.

Initial Strategy Meeting

That is when you need to sit down with a federal criminal defense attorney if you or a loved one has a case to figure out how things work in the federal court system

Some people come into my office, and they've had state cases before but never a federal case, and they think that it works just like in the state, which could not be further from the truth.  You don't want to be under a misconception in a federal case:

  • as it relates to bail,
  • as it relates to sentencing,
  • as it relates to how the process works.

That's why you want to sit down with an attorney with experience if you have a federal criminal case.

I've been doing this now for nearly 30 years, representing people at both the state and federal levels, so I have a good idea about the differences between both, and I also have a good idea about how you can put yourself in the best position when it relates to a federal case. 

Negotiating with the Federal Prosecutor

If you have decided to hire an attorney, you've decided that the government has evidence against you, and you need your attorney to negotiate with them and try to figure out the best sentence for you and the best course of action; pick up the phone now.  Make the call.  Ask for a meeting with Ron Hedding.  Let me put my 30 years of experience to work for you.

Negotiating with the Federal Prosecutor

I started working for the prosecutors in 1992, and in 1993, I worked for a judge as his research attorney.  Finally, in 1994, I opened up my criminal defense practice representing people like you.

So, if you need the best, you or your loved one has a federal criminal case and are trying to figure out what a judge might sentence you to, come and sit down with me. 

We'll go over everything.  We'll talk about the case.  We'll look at the federal sentencing guidelines.  I'll explain to you how they work, how we look at the criminal history and your offense level, and then how the judges decide what type of sentence they'll give a person.

A judge who decides that aggravating or mitigating circumstance exists can impose a sentence below or above the guideline range. But, if they choose to depart from the guidelines, they must state their reason in writing.

The defendant can appeal the sentence if it's an upward departure. The government can appeal the decision if it's a downward departure.

A special type of downward departure request by the federal prosecutor is called “substantial assistance.” This could be granted by the federal judge when a defendant provided substantial cooperation in the criminal investigation of another offender.

What is the Booker Case?

If I touch on it a little bit here, you've got to realize that it is essential in federal sentencing.

Federal Criminal Defense Lawyer

Your attorney gets to submit your position and character letters, the government lawyers get to submit their position and whatever other information they have related to the case, and there's a probation department that weighs in on it, interviews a defendant in the case, and writes a report for the judge.

So, the judge gets those three things before deciding. Then, the judge has to consult the sentencing guidelines about the potential sentence for crimes like yours that put you in a specific category. Then the judge, under what's called the Booker case, which is a case that came out by our Supreme Court, says that the judge gets to decide what the sentence is; they have to consult with the federal sentencing guidelines.

So, hopefully, what I've put here has given you some insight into how things work.  It's a complex system, so to get all the answers to your questions and figure out if you want to hire me as your attorney, you must pick up the phone and call for the meeting.  I stand ready to help you.

The Hedding Law Firm is located in Los Angeles, California. We provide legal representation across the United States on federal criminal matters. You can contact us for a free case consultation by phone or using the contact form.

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About the Author

Ronald D. Hedding

What Makes Ronald Hedding Uniquely Qualified To Represent You? I've been practicing criminal defense for almost 30 years and have handled thousands of cases, including all types of state and federal sex crime cases. All consultations are discreet and confidential.

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Hedding Law Firm is committed to answering your questions about Federal Criminal Defense issues in Los Angeles and Encino California. We'll gladly discuss your case with you at your convenience. Contact us today to schedule an appointment.