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.

Intro to the Bureau of Prisons

The Bureau of Prisons

Most people who become a target of the Department of Justice, and are indicted, will be sentenced and given prison sentences. A vast majority of these people will, in fact, serve time. When faced with prison time, the only asset a defendant has in his or her possession is knowledge. Knowledge is the only the one can really take into prison.

So what is the Bureau of Prisons?

The Bureau of Prisons (BOP) is responsible for all federal defendants who are convicted and sentenced to any prison term. It is a gigantic, intimidating monolith to the untrained eye and is often regarded as a lawless agency that does whatever it wishes. This is officially and mostly untrue. Understanding how the Bureau of Prisons works is the first step in influencing it to your advantage. Below are a few key knowledge bits that will get you started in your path to figuring it out.

Regions : The BOP is divided into six separate regions. For sentences of less than 5 years, a newly classified inmate will normally be sent to (“designated” to) an institution within their region. The regions are: Western, North Central, South Central, North East, Mid-Atlantic, and Southeast The You can see a regional breakdown of the United States on the home page of the Bureau of Prisons on it’s homepage.

Security Levels There are four main security level designators for BOP institutions. They are Maximum, Medium, Low, and Minimum. To add a wrinkle to this simple list, the BOP calls its facilities which house these security levels by different names.

  • Maximum Security inmates are housed in United States Penitentiaries (USPs)
  • Medium Security inmates are housed in Federal Correctional Institutions (FCIs) or USPs
  • Low Security inmates are housed in FCIs
  • Minimum Security inmates are housed in Federal Prison Camps (FPC)

Now these are not the only types of institutions the BOP operates. There are facilities with special purposes like medical complexes and the ADX SuperMax in Florence, CO that houses the most dangerous federal inmates. You can read about all the different types of facilities owned by the BOP

What the BOP doesn’t mention on their page is that it contracts with multiple private-company prisons to house in-transit and overflow inmates. There are mixed reviews about these privately run prisons, but most are not favorable and the existence and use of these prisons isn’t widely publicized by the BOP.

Hierarchy

The BOP has a standard hierarchy that it uses to delegate command starting with the Attorney General of the United States, then he Director of the Bureau of Prisons. From there the Director of the Central Office oversees policy and the Directors of the Regional Offices. The Regional Office directors oversee the Institutional Wardens. Lastly there are normally two Assistant Wardens per institution (one is for programs, one is for operations), each cell-block-unit has a Unit Manager, who oversees the Unit Counselor and Unit Case Manager.

 

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