Federal Sentencing: Criminal History Category

Calculating Criminal History Weight

The final piece to sentencing calculations takes into consideration criminal history. Everything from misdemeanor driving crimes (like driving with a suspended license) to prior major felonies, the PSI/R considers the entirety of a defendant’s criminal history.

With no criminal history at all, zero points are assigned. Every other instance of past criminality is scored in the following categories:

  1. Juvenile Adjudication(s);
  2. Adult Criminal Conviction(s);
  3. Other Minor Conviction(s);

Then the totality of a defendant’s criminal history is scored with the points assigned by each entry in the above categories.

  • Three points are added for each prior convictions that carried an actual sentence more than 1 year and 1 day;
  • Two points are added for each prior conviction carrying an actual sentence of at least 60 days of detention;
  • One point is added for each prior sentence for a criminal conviction that didn’t qualify for the first two (e.g. criminal sentences with only probation or less than 60 days of detention);
  • Two points are added if the current charge occurred while the defendant was under any current sentence for another criminal case;
  • One point is added for each prior violent crimes that weren’t scored in the above categories (usually because they were combined sentences).

*Update: The U.S. Supreme Court decision in Sessions v. Dimaya has changed what federal courts can classify as a violent crime.1

Criminal History Category

Now that we know how criminal history is scored, the second part to this calculation is what category each score falls into. There are six categories, and each one carries longer sentences than the last.

Refer back to the sentencing table found in the Guidelines Manual for a visual representation of what this category does to sentences.

  • Category I: 0-1 criminal history points. This is the lowest category;
  • Category II: 2-3 criminal history points;
  • Category III: 4-6 criminal history points;
  • Category IV: 7-9 criminal history points;
  • Category V: 10-12 criminal history points;
  • Category VI: 13 or more criminal history points;

Calculating the Final Sentence

Okay, so from the base offense level we get our starting point. Then that score is increased and decreased by the enhancement and mitigating factors we talked about in the last section. Then we get the criminal history category.

Now we have all the information that goes into the federal sentencing table (link above) that is used to figure out what sentence the Guidelines Manual recommends for a specific defendant. Looking at the sentencing table, the Offense Level is in the left hand column from top to bottom. The Criminal History Category is in the top row from left to right.

This Criminal History Category can make a big difference in sentences. A defendant with an Offense Level of 22 with no criminal history gets a recommended sentence range of 41-51 months, while a defendant with a Criminal History Category of VI gets a recommended range of more than double that: 84-105 months.

This means that doing a “deep dive” with a criminal defense attorney about each and every point scored on a PSI/R to determine Criminal History Category is vitally important. If any of these points can be successfully objected to and challenged, a defendant may save 7-19 months of their life at final sentencing.

Summary

Although this whole process can seem very complicated, it is very important to pay close attention. If a defense attorney isn’t paying close attention, MAKE THEM. From challenging the calculation of the base offense level, to challenging the applicability of enhancements, to attacking the age or application of criminal history points, each step of this process can change a sentence, and experienced eyes can make years disappear from a defendant’s sentence.

It is a documented fact that a vast majority of defendants who are charged with a crime by the federal government will be convicted and face a sentencing hearing. The days between a plea hearing (or trial) and sentencing can be the most important in a defendant’s life. Don’t skip this part!

How PCR Consultants Can Help

We are consultants and not attorneys. When an attorney is working on a case, the state Bar Association prohibits any other attorney from offering their opinion on the case. You literally cannot get a second opinion as you would if considering other life-changing decisions like major surgery.

PCR Consultants offer experienced and independent eyes that can see the case as a whole and make a difference where the most good can come of it. In this case, an analysis of sentence computations. If you’d like to talk to us more and get a totally free consultation regarding a pending sentencing hearing, give us a call or e-mail.

Phone: (480) 382-9287

Email: info@pcr-consultants.com

Or visit out Contact Us page.

Back to

Primer | Base Offense Levels | Offense Level Adjustments

  1. Importantly, the Supreme Court decided that residual clauses of 18 U.S.C. §16 and  §924(e) are unconstitutionally vague and cannot be used to define a “Crime of Violence” because they ask judges to consider the potential of a crime to turn violent, even if no violence existed in the criminal conduct. []

What happens after sentencing?

Post-Sentencing in a Federal Criminal Case

Now what?

Now a defendant can feel like they are blowing in the wind without an advocate to guide them through this difficult period. Many prison consultants make a lot of money just telling people what to expect when they get to prison. We do that, too, but more importantly there is a need for somebody to help make the transition from defendant to inmate.

This transition starts well before the sentencing hearing. At sentencing, a defendant’s lawyer asks the judge to recommend a specific prison for “placement” of the defendant within the Bureau of Prisons. If that recommendation is appropriate, the BOP rarely goes against a judicial recommendation. If not, the BOP can send an incoming inmate wherever it wishes. The lawyer’s request is rarely based on a working knowledge of the Bureau of Prisons (BOP) or how the defendant will actually be seen by it. Usually it’s a gut feeling. A prediction that the lawyer has based on prior clients and their criminal history.

More information about recommendations is available at the bottom of this page.

Bad move. The BOP has a dozen different reasons why an inmate will qualify for a security level that is one-higher than (s)he would normally go. It’s a minefield that takes knowledge, practice, patience, and a knack for bureaucratic red-tape to navigate.

That’s us! We can accurately predict the security level a defendant will be classified as, show a list of prisons within the surrounding states which house that security level, and then make an APPROPRIATE recommendation for our client based on proximity, treatment needs, and programs offered. These factors are constantly changing from year to year, which is why this specialty is necessary.

For additional facts about pretrial, see a primer article about it here.

Contact Us for a Free Consultation

Find out how we can help by calling us for a free consultation at (480) 382-9287.

For more ways to contact us, visit our contact us page for contact form and e-mail addresses.

Place of Incarceration

If you take a plea bargain, the main concern of the pre-incarcerated is the location they will spend their time. What institution is better than the rest? Which is closest to home? These questions are the most basic and most frequently asked. Your sentencing judge can make a recommendation to the BOP for your placement. However, many times this recommendation is not followed. Why?

The BOP has its own policy of classifying each inmate to a specific institution and level of security. The problem is that most lawyers and judges make no effort to determine exactly what yours should be. They have a very good idea, but are often wrong.

If your judge recommends you to an institution that does not fit their criteria, the BOP will then assign you to wherever it sees fit, no matter the distance from home. However, according to BOP statistics, if a judge makes a valid recommendation, it is followed over 80% of the time. PCR Consultants can do a BOP compliant work-up on each client, match that work-up with BOP institutions that fit your needs, and give your attorney and sentencing judge the proper institution for you.

Various institutions have programs that can take up to a year off sentence time if completed plus six months to a year in a half-way house. Finding the right institution for you can mean 18-24 less months spent in prison. Up to 2 YEARS off!

Contact PCR Consultants as early as possible to affect as much of this process as you can.

Federal Sentencing: Enhancements and Mitigations

The Pre-Sentence Investigation Report

This document, written by the local Probation Department, is usually abbreviated as the PSI or PSR. Either way you hear it said, it is referring to the same document. We will pick PSI and use that for the purposes of this write-up.

The PSI is always sealed and only available to the Court, the Prosecutor’s office, the Defendant, and the Defendant’s attorney. There are lots of reasons for this, but mainly because the document has VERY personal information including the defendant’s social security number (SSN), current and past addresses, and all family relations.

About halfway through the document, the probation department takes the time to calculate everything that factors into a federal sentence recommendation. Sentence recommendations are just that, advisory. These are based on the Sentencing Guidelines Manual (U.S.S.G) discussed in the primer. Since the famous Booker case, U.S.S.G. recommended sentencing ranges are not binding and can’t be considered mandatory by judges.

In this calculation, the base offense level of the offense is stated first. If more than one conviction is present (either by guilty plea or jury verdict), the base offense levels will be grouped together and only the highest one will be used. They don’t add them together, which is a good thing.

Next the report looks at any factors that the Guidelines Manual specifies regarding base offense level. For example a drug conspiracy charge for 65 kilograms of marijuana will have a base offense level 20. For reference, at 81 kilograms the base offense level would be two points higher: 22.

Enhncements

Now the calculations take a slightly more complicated turn. Enhancements are any element to the specific crime category section that makes things more serious. In our above-drug conspiracy a few examples of this are:

  • If a dangerous weapon was possessed during the commission of the crime, add 2 points;
  • If the defendant used violence or made a credible threat, add 2 points;
  • If the intention of the drug conspiracy was to bring drugs into a jail or prison, add 2 points.

…and so on. A good example of where this can get more complicated is when multiple charges are grouped. In one financial case, a defendant was convicted of (among other things) obstruction of justice for destroying documents that were incriminating. He was still given 2 more points for an obstruction of justice enhancement because the base offense level for other grouped-convicted-counts were higher, and thus obstruction didn’t really factor into his sentence without this enhancement.

Was this legal? It’s dubious, but we’ll find out when his appeal sorts out.

Mitigations

In the same way enhancements are calculated (added points), so are mitigations (subtracted points). There are far fewer of these, but they still exist and are used in most cases.

The most common reasons to subtract points is for pleading guilty (acceptance of responsibility: minus 2 points), pleading guilty quickly (saving government resources: minus 1 point), and having a very minor role in the overall offense scheme in relation to other co-defendants (up to a 4-level reduction).

The Most Good

A good defense attorney knows that well over 90% of defendants in federal criminal cases will plead guilty. Therefore, the sentencing phase is where he can do the most good for his clients. A very thorough investigation of the PSI, elements of criminal conduct, enhancements, and mitigating factors are vitally important.

As a defendant, always double check these sections. Always make sure a defense attorney has reviewed each and every added point, and pursued each and every point-deduction possible. A brief look at the Sentencing Table where the final sentencing range will fall shows that even 2 points one way or another can mean more than a year of a defendant’s life.

In part three of this series, we’ll conclude this tutorial with a discussion of criminal history categories and how that relates to final sentence recommendations.

Go to the the Intro/Primer | Go To Part 1 | Go to Part 3

About PCR Consultants

PCR Consultants started 8 years ago as a small consulting and document preparation firm specializing in federal criminal cases. Specifically, we started helping clients who couldn’t afford, or didn’t want, a private defense attorney to help them apply for early release from federal probation.

Today we help clients in all phases of federal prosecution, from arrest to probation. We even do pardon applications. For a free consultation about federal sentencing questions, e-mail us at info@pcr-consultants.com or give us a call at (480) 382-9287.

Federal Sentencing: The Base Offense level

Part 1: Base Offense Levels

The first part of this series will focus on the foundation of a federal sentence. It is referred to as the “Base Offense Level” and is where the calculations of a federal sentence recommendation starts. This is, by a wide margin, the most simple piece to federal sentencing. All federal crimes come with a base-number that starts the calculations for a basic sentencing recommendation.

Different crimes have different minimum standards that must be met before a crime is able to be prosecuted. For example, a Wire Fraud prosecution must have elements of deceit, use of electronic payment transfers, and a few other elements of interstate commerce before it can be considered a federal crime.

The Base Offense Level considers what, at a minimum, a punishment should be if a conviction is secured against a defendant for that specific crime. Therefore, the base offense level is the starting point. The point at which the prosecutor can start building a higher sentence upon.

For most offenses, a Base Offense Level will start with a single-digit number. For Wire Fraud and many other financial crimes, the base offense level is either 6, or 7 (if the specific crime carries a possible maximum sentence of 20 years or more).

Sound confusing yet? It gets very complex the further into the subject you get. But, for base offense levels, there is usually a mid-single-digit number that is associated with the crime category (financial, drug, immigration, etc.) that starts the sentence computation.

In Part 2 of this series, the adjustments to the base offense level are explored in detail.

 

Go to the the Intro/Primer 
Go to Part 2: Offense Level Adjustments 
Go to Part 3: Criminal History Category

About PCR Consultants

PCR Consultants started 8 years ago as a small consulting and document preparation firm specializing in federal criminal cases. Specifically, we started helping clients who couldn’t afford, or didn’t want, a private defense attorney to help them apply for early release from federal probation.

Today we help clients in all phases of federal prosecution, from arrest to probation. We even do pardon applications. For a free consultation about federal sentencing questions, e-mail us at info@pcr-consultants.com or give us a call at (480) 382-9287.

Federal Sentencing Explained in Plain English

Federal Sentencing Primer

After a plea deal is signed, which happens in well over 90% of federal criminal prosecutions, the next phase in a case is sentencing. Most first-time offenders really don’t know exactly how this sentencing is done or considered by federal courts, prosecutors, and judges.

While defense attorney’s are supposed to do a thorough job explaining this process, and most do their best, the process is still mystical in the minds of most defendants. This 3-part series is going to dive into the meat of what is held in the Sentencing Guidelines Manual, and how sentences are handed down in federal criminal court.

The Sentencing Guidelines Manual

What is the Sentencing Guidelines Manual? It is a great big book that explains in excruciating detail every possible crime and factor that can be associated with all those crimes when contemplating a sentence.

To explain a little better, say a defendant pleaded guilty to a drug dealing crime. That right there is 8 points. Then the quantity of the drug adds more points. Then a firearm that was carried during the drug deal adds more points. Then the prior convictions of the defendant get factored in and, voila, a range of 110-128 months is the final outcome.

The purpose of this series is to explain just how all of this works. From the simple to the complex, after reading all three parts to this series, the basic process will be easy to follow and, hopefully, take some of the mystery and fear away from a few defendants and their families out there in America.

Part 1: The Base Offense Level
Part 2: Offense Level Adjustments
Part 3: Criminal History Category

********************

About PCR Consultants

PCR Consultants started 8 years ago as a small consulting and document preparation firm specializing in federal criminal cases. Specifically, we started helping clients who couldn’t afford, or didn’t want, a private defense attorney to help them apply for early release from federal probation.

Today we help clients in all phases of federal prosecution, from arrest to probation. We even do pardon applications. For a free consultation about federal sentencing questions, e-mail us at info@pcr-consultants.com or give us a call at (480) 382-9287.

Prosecutorial Misconduct Taken to A Whole New Level

Orange County, CA – Its no secret that many felons, defense attorney’s, and inmates believe that the office of the prosecutor fights unfairly and plays dirty. The reality is, there isn’t much oversight to keep prosecutors from doing so. Making matters worse, there is nearly no mechanism used to punish prosecutors who do.

Charge bargaining (plea extortion), trial penalties, and Brady violations are all common forms of prosecutorial misconduct. They are very easy to suspect, but often very hard to prove.

Hard to prove, that is, until a story like this comes out. A judge in Orange County has disqualified any prosecutors from the county District Attorney’s office from participating in a specific criminal case because of rampant corruption and civil rights violations against defendants. Shaun King over at the Daily Kos exhaustively goes over the allegations and the events leading up to the disqualification of prosecutors. His piece gets started this way:

Between San Diego and Los Angeles is Orange County, California. With more than 3 million residents, it’s larger than 21 states. If Orange County were a separate country, its economy would be the 45th largest in the world. Now known for Disneyland, the county may soon be known for having one of the most corrupt justice systems in the world. The width and depth and duration of the corruption truly boggles the mind. A case that should’ve been open and shut has blown the lid off some deep secrets.

On October 12, 2011, Orange County experienced the deadliest mass killing in its modern history. Scott Dekraai killed 8 people, including his ex-wife, in a Seal Beach beauty salon. He was arrested wearing full body armor just a few blocks away. Without a doubt, Dekraai was the perpetrator. A dozen surviving witnesses saw him. He admitted to the shooting early on. Yet, nearly four years later, the case against him has all but fallen apart.

It turns out that prosecutors and police officers committed an egregious violation of Dekraai’s rights—so much so that Superior Court Judge Thomas Goethals shocked everyone and removed the Orange County District Attorney’s Office, and all 250 prosecutors, from having anything more to do with the case.

The entire piece is worth a full read, and will make your blood boil.

Learn from the Small Cases

In a new article from The Crime Report, taken from a NY Times article, small cases involving first-time offenders give big lessons to learn. The article is long, but has some great tidbits that all American’s can learn from. It get started this way:

Anthony, a 28 year-old African-American school bus driver with no criminal record, is in the passenger seat of a friend’s car when the police pull it over for a burned-out brake light. The cops search the car, and they find a pipe with marijuana residue in the console. In New York, simple possession of marijuana leads only to a civil violation, but the police describe this pipe as being “open to public view”— so they arrest both men and bump the charges up to misdemeanors.

Because of that charge, Anthony is automatically and immediately suspended from the job he has held for seven years, pending the disposition of the case.

And later it goes on to discuss why the prosecutor maintained the criminal charge, versus deflating it to a civil penalty. One year free and clear of crime was the first offer the prosecutor put forward in order to drop the misdemeanor charge. Anthony balked, and that was taken down to 90 days. That’s still three months without a paycheck. Anthony balked again and the case was rescheduled for hearing in another month. Anthony is unemployed until then.

The article continues:

We tend to think that the job of a conscientious justice professional is to protect a presumptively safe system from dishonest, lazy, or incompetent fellow humans. But in Anthony’s case none of the humans violated the rules. No one likes the outcome, but everyone did his or her individual job as they’d been taught to do it.

Does that mean no one is responsible? Safety experts in aviation, medicine, and other fields would say everyone is responsible.

The cops made the stop and wrote the “public view” application; the prosecutors “papered” the case and refused to throw out the misdemeanor; the defense failed to find a way to make the questionable basis for the charge count for something; the judge took the path of least resistance and gave the thing a new date.

All the while Anthony is out of a job, on the unemployment lines, and absorbing resources from the system rather than adding to them. First-time offenders often don’t do what is required to make situations like this better for them because the system just rolls over them in a cacophony of lethargy and apathy. Learn how to avoid mistakes first timers make to avoid looking at the unemployment line or worse.

Visit the First-Time-Offender website and read up on protecting yourself from becoming just another story.

Prosecutors and Bullying

The title of this post comes from the new essay, “Threats and Bullying by Prosecutors” by Bennett L. Gershman, a law professor at Pace University. The essay, available for free right here, is definitely worth a full read at only 19 pages, but below I will take a moment to highlight some of the sections and ways Professor Gershman deconstructs the ways prosecutors bully and threaten defendants. It starts out this way:

[Prosecutors] have been described as “virtuous,” “prudent,” “ethical,” “good,” “unique,” and “gamesmen.” But there is one persona that seems to have eluded characterization and commentary: the prosecutor as a bully. In fact, one of the most prominent features of U.S. prosecutors is their ability to threaten, intimidate, and embarrass anyone – defendants, witnesses, lawyers – without any accountability or apology. This is the conduct of a bully.

On Intimidating Grand Jury Witnesses

A state senator’s chief of staff is called in to testify against his boss. He doesn’t want to testify, but is granted immunity and told his refusal to testify can be punished with contempt, and lying is perjury. The witness says he can’t remember a meeting between his boss and a wealthy real estate developer…

The prosecutor, in an extremely agitated tone of voice exclaims: “You know you are lying. Don’t insult this grand jury. You’ll be in jail in a heartbeat unless you tell the truth. You’ll be finished. You will never work again.”
Are the prosecutor’s threats a legitimate exercise of prosecutorial power? Do these threats enhance or degrade the prosecutor’s ethical duty to serve justice?

More Highlights

Gershman goes on to highlight prosecutorial conduct in coercing guilty pleas, attacking defense experts, bullying defense witnesses (and even their own prosecution witnesses), compelling waiver of civil rights claims, retaliation, demagoguery, shaming, and coercing corporate cooperation.

Look for future posts highlighting more sections of this important essay. Any first-time offender will learn quickly how true this information is. He or she will feel bullied and coerced by the prosecuting attorney and wonder how this is part of the legal system they’ve been taught to trust. A fantastic guide for all first time offenders can be found at the first-time-offender website, which hosts the ultimate resource for anybody facing their first charge.

Appeal Waivers and Supervised Release

Federal Plea Agreements

The Devil is in the Details

Over 95% of federal defendants plead guilty, according the the Bureau of Justice Statistics. Because of Bill Otis, Law Professor and contributor to Crime and Consequences, most plea agreements now come with appeal waivers: a waiver of the defendant’s right to appeal.

On the surface, at least to this blogger, the waiver of appeal would bar any appeal of conviction and sentence (except for maybe the habeas writ from 18 U.S.C. §2255). What about the imposed terms or conditions of Supervised Release? Are you barred from appealing or moving to change these?

This is one of those times that it really matters where you are convicted.

The Fifth Circuit – Out of Luck

From US. v. Scallon and Findlaw’s 5th Circuit Blog:

Unlike Cooley v. United States, in which the Fifth Circuit ruled that a waiver of appeal didn’t bar a defendant from appealing if he was “sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission,” there were no altered guidelines for supervised release in Scallon’s case.

Signing a plea agreement and waiver of appeal may get your client out of jail faster — or help him avoid jail altogether — but it also means he waives his right to appeal. Make sure your plea-bargaining clients understand that “waiver of appeal” is more than just terminology; in the Fifth Circuit Court of Appeals, it’s binding on both the sentence and the supervised release terms.

The Third Circuit – Have at It

From U.S. v. Wilson and Findlaw’s 3rd Circuit Blog we get the opposite answer:

When a criminal defendant waives his right to appeal, the courts take him at his word that he is, in fact, waiving appeals.

A lot of the defendants don’t think that “waiving appeal” means what the courts think it means (Inconceivable!) and they appeal anyway. It usually doesn’t work. But a Third Circuit concluded this week that a waiver of appeal did not bar an appeal of an order modifying the terms and conditions of supervised release.

So there it is, a circuit split that helps some but not others. If you’re surprised at the 5th Circuit’s conservative reading of appeal waivers, then you must be new to the game. Anybody willing to take bets on the 9th?

Prosecutorial Misconduct

Today we have a couple of stories from around the country that will interest those searching for some sanity in American criminal justice.

To start, we have a story from the Federal Criminal Appeals Blog. It turns out that the government believes riding in a car with drugs, even if a defendant had no idea drugs were present, is still a crime worth many years in federal prison. The story goes like this: a construction worker (Mr. Tavera) was riding to Tennessee to do a roofing job.

Prosecutor Hides Evidence of Innocence

Tavera’s driver had lots of construction equipment in the back of the truck, including a bucket of nails and a large quantity of methamphetamine below those nails.

The US Attorney for the case was told by the truck driver that Tavera had no idea the Meth was there, but forgot to mention that at Tavera’s trial which ended up netting him over 15 years in prison.

From the story:

AUSA Taylor never told Mr. Tavera’s lawyer that Mr. Mendoza said Mr. Tavera isn’t guilty.

And, as a result, the jury never heard that the only other guy in the car told the prosecutor that Mr. Tavera didn’t know about the drugs.

As the Sixth Circuit said, “Mendoza’s statements to Taylor were plainly exculpatory.”

The Supreme Court has said that the government has to hand over all information that is exculpatory and that if it fails to do that, the prosecution is fundamentally unfair.

Yet, despite that the law is crystal clear on this, the Sixth Circuit notes that “nondisclosure of Brady1 material is still a perennial problem, as multiple scholarly accounts attest.”

The prosecutor, as the Sixth Circuit explained, figured it was Tavera’s fault for not doing a good enough job on defense. However, US Supreme Court history is very explicit that it is the prosecutors job to be forthcoming with any such evidence to ensure a fair trial.

With the deck already stacked so squarely in favor of the prosecution in federal cases, do they really need to act this poorly? The Sixth Circuit decided that this was so clearly unfair, that it ordered a new trial.

How long will this new trial even last with this evidence on the record for a jury to see? My guess: not long.

  1. Any evidence of innocence possessed by the prosecution, known as exculpatory evidence, is required to be turned over to the defense before trial. Brady material refers to evidence of innocence, from Brady v. Maryland, 373 U.S. 83 (1963) []