Before imposing a sentence, federal courts are required to consult the Federal Sentencing Guidelines and to compute the applicable sentencing guideline. The court is required to give due weight to that guideline but is no longer required to follow the guideline.
Most judges impose a guideline sentence in most cases, but they can sometimes be persuaded to impose a more lenient sentence if the guideline sentence seems too harsh. That is particularly likely to happen in drug cases, given the severity of the sentencing guidelines.
The Federal Sentencing Guidelines Manual is revised each year. Courts usually use the edition that is in effect at the time of sentencing, although the court will rely on an earlier edition under some circumstances. The examples given here are from the 2013 edition.
When a court calculates the sentencing guideline, it follows a series of steps:
Step 1 — Select the Applicable Guideline
Chapter 2 of the Guidelines Manual (“Offense Conduct”) contains a guideline for nearly every federal crime. Part D of chapter 2 covers drug offenses. Section 2D1.1 is the guideline applicable to drug crimes involving the manufacture, distribution, or possession with intent to distribute a controlled substance, as well as a distribution conspiracy. It is the section of the Guidelines Manual that courts rely upon as the starting point for imposing a sentence in most drug cases.
Step 2 — Determine the Base Offense Level
Each guideline establishes one or more base offense levels for the crime covered by that guideline. The base offense level is later adjusted up or down based on other factors. The highest adjusted offense level is 43.
Drug quantity is the starting point for determining the offense level in section 2D1.1. For instance, a base offense level of 38 applies to crimes involving 150 KG or more of powder cocaine, 8.4 KG or more of crack, 15 KG or more of methamphetamine, and 30,000 KG or more of marijuana. Compare that to offense level 24, which applies to crimes involving at least 400 G but less than 500 G of powder cocaine, at least 22.4 G but less than 28 G of crack, at least 40 G but less than 50 G of methamphetamine, and at least 80 KG but less than 100 KG of marijuana.
Base offense levels determined by drug quantity range from level 38 to level 6. The level is increased by additional levels, however, if other factors are present, including (among many others):
- Death or injury resulted from use of the drug;
- A dangerous weapon was possessed or used in the commission of the offense;
- The defendant used or threatened violence;
- The defendant maintained a place for the purpose of storing or distributing the drugs;
- The drugs were mass-marketed using a computer;
- Hazardous wastes were released into the environment.
The guidelines tell the court to consider not only the crime (including drug quantity) that was proved at trial or to which the defendant admitted when pleading guilty, but all crimes (including related drug crimes) that are part of the same course of conduct. The court’s consideration of relevant conduct often results in a significant offense level increase. After all those factors are considered, the resulting offense level is the “base offense level.”
Step 3 — Adjust the Base Offense Level
Chapter 3 of the Guidelines Manual tells the court to adjust the base offense level if certain other factors exist. Those adjustments consider (among other factors):
- Characteristics of the victim (hate crimes and vulnerable victims, for instance, result in a base offense level increase).
- Role in the offense (the base offense level is increased if the defendant was a leader or manager of a group of individuals who committed the crime together, and is decreased if the defendant played a very minor role in the crime).
- Obstruction (if the defendant obstructed justice, including telling a lie to the court before sentencing, the base offense level is increased).
Step 4 — Adjustments for Other Crimes of Conviction
If the defendant is being sentenced for more than one crime, application of the guidelines becomes more complicated. If the crimes are similar (for instance, if they are all drug crimes), they are grouped together and treated as a single offense. If the crimes are of a different nature, a separate offense level must be computed for each, and the court applies a rule that determines the overall offense level.
Step 5 — Adjustment for Acceptance of Responsibility
As a general rule, the offense level as calculated through step 4 is decreased for a defendant who pleads guilty and does not deny any conduct that the court believes the government can prove.
Step 6 — Determine the Defendant’s Criminal History Category
The court examines a defendant’s past convictions, assigning a certain number of points for each conviction depending on the length of sentence imposed for that conviction. Based on the total number of criminal history points, the court places the defendant into a criminal history category ranging from the least serious (category I) to the most serious (category VI).
Step 7 — Find the Applicable Sentencing Range
The Guidelines Manual provides the court with a table of guideline sentences. Along the top are the criminal history categories, ranging from I to VI. Along the side are the offense levels ranging from 1 to 43. At the intersection of each offense level and criminal history category is a guideline range.
For instance, the guideline range for a defendant with an adjusted offense level 26 who falls within criminal history category III is 78 to 97 months. The court is required to give serious consideration to imposing a sentence within that range.