An Interesting Case On Supervised Release

We’ve written a lot here about federal supervised release and the conditions that allow for a judge to release our clients early from their term of supervision. One of the places we get our information is from a policy document that guides federal probation departments.

Monograph 109

This document, called Monograph 109 which is a guidebook for probation departments. One of the sections in Monograph 109, namely §380.10(b), lays out a list of policy considerations that probation departments must consider for making recommendations for or against requests for early release from federal probation.

We did a review of all 9 of these factors in our post about it here.

The case that presented it’s conclusion this week, however, speaks to the outlier cases that these policy statements address.Factor #3 talks about aggravated offenses, factor #4 talks about a history of violence, and factors #8 & #9 talk about risks to victims and the public at large.

However, later in that same section it states that the existence of outstanding financial obligations per se does not adversely affect early termination eligibility (§§c), and failure to meet criteria listed should not automatically exclude an offender from further consideration (§§d), and there is a presumption in favor of recommending early termination for probationers and supervised releasees who have been supervised for at least 18 months and are not violent, drug, sex offenders, terrorists, present a risk to public or victims, and are free from any moderate or higher violations.

Armed Bank Robbery

The case that presented itself to us this week, with its conclusion, started way back in January of 2018. The case itself began with an armed bank robbery in 2006, and resulted in a 101 month prison sentence. The defendant, our client, reached out to see if he could use our help in applying for early termination of his supervised release.

He was given 5 years of supervised release and had already completed about 3.5 years of that term. He had less than $100k in restitution which stemmed from the money stolen from the bank robbery crime.1

Typically, an answer to a request for early termination is given by a judge within 2 months of the initial request being filed.  A majority of the requests are decided after about 5 weeks.

This case was different. The judge in this case wanted 3-4 separate briefs and a lot of documentations from the defendant/client and the probation officer in charge of his supervision. Usually this is a good sign, as a judge who is going to deny a request like this will deny it quickly. Normally, if it takes a judge longer than 8 weeks to publish an order, the chances of that order being positive for our clients goes up drastically.

However, this wasn’t the case here.

The Decision

The judge denied our client’s request here. The denial was given two separate parts. First, the judge cited the c0-defendants in the case. 18 U.S.C. §3553(a)(6) talks about a judge’s requirement to be fair and even-handed (read: consistent) between similar defendants with similar criminal conduct. In this case the judge decided that if he were to let  this defendant out of his supervision early, he would be compelled to do the same for his co-defendants that committed the same crimes.

While this is understandable, this doesn’t account for the conduct of each defendant after their release from prison, and only considers their criminal conduct. For statutory reasons, this is shaky legal ground because the “seriousness of the original offense”2 is not one of the factors from original sentencing that is allowed to be considered for an early termination request.

The second reason was restitution, and this is a big sticking point for many judges. Because this defendant had outstanding restitution, this judge (and many others) are timid to grant early release from supervision. This is because supervised release allows dire consequences if defendants just stop paying their restitution monthly payments.

You see, while on supervision, if a defendant stops paying he can be sent back to prison as this is a violation of his/her terms of supervision. However, after supervised release is over, outstanding restitution is converted to a civil judgment and has all the force and effect of a debt being in collections.

Basically, they can come after you and garnish your wages, but can’t send you to prison for non-payment of restitution.

Conclusion

It took six months of back-and-forth with the court for this case to come to a resolution. It wasn’t the order our client wanted, but at least it is over and he doesn’t need to wait for the decision with bated breath anymore.

We here at PCR Consultants like to publish and brag about the difficult cases that we are able to get free from supervision. However, we are open and honest with our clients that it doesn’t always go that way. This was one of those cases.

  1. for completeness’ sake, this client pleaded guilty and was a first-time offender with no criminal history points and a Criminal History Category of I []
  2. §3553(a)(2)(A) []

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. []

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

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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.