A lot of people get confused when it comes to these federal criminal cases. They don't realize that even though your attorney is going to argue for the lowest possible sentence, and the prosecutor sometimes will ask for the highest possible sentence, that the bottom line is, ultimately the judge will decide what your fate is as far as your sentence goes.
That's why a lot of times at the plea when someone is entering a guilty plea to the charges, the judge will specifically ask the defendant whether or not anyone has promised them anything.
Factors Considered By Federal Judge
If the answer is “no your honor, no one's promised me anything,” then the judge is typically not going to accept the plea. Because the bottom line is, the judge will decide what the sentence is after:
- they review a report from the probation department,
- receives written information from both the defense and prosecution, and
- considers everything related to the case.
Then and only then, will the judge decide what the sentence is.
Even though there are federal sentencing guidelines, the judge must review those as they relate to the case, but those are only considered advisory and the judge can go in the guideline range, below the guideline range or above the guideline range.
Type of Charges and Enhancements
So, you start to get the idea that in a federal criminal case, judges are vested with a lot of power and authority. The reality is, that when you want to talk about what you might get in a federal criminal case, you need to look at:
- what your charges are, and
- what base offense level those charges give you,
- then you look to see if there are any enhancements related to your case that give you additional points.
Then you'll get a total offense level and then you'll look to see where you fall in the sentencing chart.
Federal Sentencing Guidelines
The federal guidelines that the court has to look at and consider are important because they put you in a range. You're also going to have to look at what your criminal history is.
Hopefully, you have a criminal history of zero and then you'll be in the lowest possible category.
However, you have a criminal history, now you put your attorney in a position of having to argue that maybe your criminal history should be lower because the guidelines overstate your criminal history.
Once you get there, you're going to see you're in a range and other things you have to take in consideration is downward departures. Acceptance of responsibility of entering an early plea gets you three levels off.
Also, if you played a minor role, that could get you levels off. Also, if the government decides to give you a 5K departure, you can get levels off. That's where you cooperate with them and they take points off your sentence.
Defendant's Criminal History
So, there's a lot that goes into the calculations of these federal sentencings. But, I really think a lot of times, judges are going to look at you as an overall person.
They're going to look at what you did, who you impacted and then they're going to get an idea of what they think the sentence should be.
Then what I see is, all of these other factors are — I don't want to say manipulated, that's not the right word — but they're used to formulate the sentence.
In other words, they say, I think the guy should get this much in time — let's say it's two years.
So, then they're going to start moving things around so that your sentence is the equivalent of two years. That's what I see happening in these cases. It's not some magic formula.
It's your attorney making a powerful argument that you shouldn't go into custody for a long period of time in these sentencings, looking at your criminal record, looking at what you did and making a powerful argument on your behalf.
So, if you or a loved one has a federal criminal case, you've come to the right place. I've been doing this for over 27 years.
I've worked for the prosecutors early in my career, I've worked for a superior court judge for a period of time, but since 1994, I've been a federal criminal defense attorney fighting for people just like you to get you the best possible resolution in your federal case.