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

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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.

Federal Probation Termination – Further Information


Educate yourself in three ways:

  1. Head to our blog section on federal probation here;
  2. Learn the in’s and out’s of filing for early release from federal probation by clicking here; and,
  3. Learn all about early termination (early release), from basics to filing procedures, by reading our e-book for free by clicking the button below!

 

Getting Started

Our Services Work!

You can see testimonials and court orders releasing some of our past clients at our testimonials page. While you’re at it, you can see what others are saying on our Yelp! page by clicking the button below.

Federal Pardon Application – Eligibility Requirements

What does it take to apply for a Federal Pardon?

As with all federal applications, the process seems very simple at first. The nuts and bolts of a federal pardon application, however, can get cumbersome, confusing, and downright daunting. This post is a first-step for anybody looking to apply for a federal pardon and clear their good name.

Only a few requirements exist to let a federal convict know they’re eligible to apply, and they are all found in § 28 C.F.R. 1.1 Here’s your easy checklist:

  1. You must have a federal crime you want pardoned;
  2. You must NOT be currently incarcerated;
  3. In fact, you must be free from confinement for at least 5 years;
  4. If incarceration wasn’t a part of your sentence, you have to have been sentenced to probation at least 5 years ago;
  5. You have been released from probation or supervised release, and are fully ‘free’ from the federal criminal justice system;
  6. BONUS: don’t have any more criminal convictions (local, state, or federal) since your federal conviction.

 What Does it REALLY Take??

So now that the preliminary requirements are out of the way, the real question becomes: what sets my application apart? There is no single answer to this question, but we’ll set out a few things that could really help you stand out, then add in some nuggets that we do that give it an extra push. Remember, an application like this should be treated more like a resume or college entrance application than a bland court motion or driver’s license application. Make it pop!

As anybody could imagine, there are hundreds of federal pardon applications submitted to the President every year. Whats worse, Obama has the worst pardon record of any modern president. However, with his presidency coming to a close, and more clemency/pardon grants this last 12 months than his previous 5 years, things are looking up.

Now seems to be the time to apply and get in line for his last days of office, where most past presidents have made the most pardons.

Staying Out of Trouble Isn’t Enough

While being crime/conviction free for at least five years is a good start, you’ll be one amongst many. The process for applying for a pardon is short, but designing your life and activities (think volunteerism and philanthropy) around the idea of applying for a pardon could take time.

If you don’t have any selfless acts to put on your application, it can seem a bit anemic. Volunteer to serve food at your local homeless shelter, or donate blankets. It doesn’t take much to become a part of something like this. Think of your local VFW, who are always looking for volunteers for some function or another.

Restitution order in your case? Make sure its paid off. Fines? Make sure they’re paid too unless you intend to apply for a pardon of just the financial sanction.

Find Three People to Vouch for you

Any group of people are just fine to write letters vouching for your character, but it takes more than that to make an impression. People who know you personally, and are in a position of power (privately or in government) are optimum choices for Character Reference Letters. You need three of these, as the title of this section states.

Try finding two close, personal relationships that would be more than willing to write a letter attesting to your spotless integrity. Then save the last letter for a big name. Contact your U.S. Congressman, your U.S. Senators, state governor, lieutenant governor, mayor, state legislators, or the head of your state democratic/republican parties (whichever way you lean)

Applicants to the military service academies are required to get letters like this to go there. Or at least they used to be required. Anyway, requests for letters like this are not uncommon at a congressperson’s office, and their staff will tell you just what you need to do to make the request, and maybe even get it. How would your pardon application look with a Senator’s name pushing it?

Be Creative

Your life, outside the criminal justice system, is uniquely yours. Crafting the application’s pages to make you as sympathetic and ‘human’ as possible goes a long way. Defense lawyers spend most of their energy at sentencing hearings ‘humanizing’ their client so the presiding judge remembers that the years behind bars he is about to pronounce actually affect a real, live person.

Your pardon application works in the same way. Make your self a real, live person to the first faceless bureaucrat who sees your application and you will be ahead of the game.

Put the Power of PCR Behind your Pardon Application!

Contact PCR Consultants for a free consultation on federal pardons.

e. Info@PCR-Consultants.com

p. (480) 382-9287

How to File – Writing The Motion

Previously, in this post, the filing procedures were discussed in detail to ensure any pro se  filers for early termination of federal supervision stay on the correct side of policy and procedure.

In this post, we’ll delve into the actual meat of the motion document. From answering questions like, “Why is a Motion important?” to discussing statutory factors in general, this post will be a road map for any and all comers who want off of their federal supervision early.

Why Is Motion Format Important?

Many federal probationers want to get off supervision (supervised release or probation) early. Inside prison walls, inmates are full of information about getting free before a probation sentence’s natural expiration. Most of this information is mis-informed. Do you have to do half of your time first? Sometimes, but not always. Can you file for yourself? Yes, if you know what you’re doing.

That is why you’re reading this tutorial, right?

Writing a letter to the judge can work. Sometimes. However, a simple letter to your sentencing judge leaves the door open to being ignored. A judge can ignore a letter. A just cannot legally ignore an official motion. Even if that motion is filed by the defendant, pro se.

So, for starters, doing it right means filing a real motion. Formatting, case number inclusion, and statutory citations included.

Getting Started – Heading and Title

Public Access to Court Electronic Records

Public Access to Court Electronic Records

Start with the basics. The top of the document needs to contain the court of record. If you were sentenced in the district court for the Central District of Ohio, then address it as such. Next is the party list: United States of America v. You. Then your case number. Find any filing from your attorney back during pretrial for an example of what this looks like and your case number.

Mouse-over for a pro tip! 

Now comes your document title, normally: Motion for Early Termination of Defendant’s Supervised Release Term, or something similar.

The First Paragraph(s)

After the administrative formalities are handled, your first paragraphs are still pretty standard. Start by telling the judge who you are, what you want, the law that allows him to give you what you want, and what you don’t want. Paraphrased, this goes like this:

“COMES NOW [your name in all caps], in pro se before this Court to respectfully petition for early release from federal supervised release as allowed by Title 18 of the United States Code §3583(e)(1). No hearing is sought in this matter per federal rules of criminal procedure 32.1(c)(2)(B).”

Those law and procedure citations are real, not filler. Copy that paragraph ver batim if you wish, it’ll work just fine as long as you insert your real name and don’t call yourself [your name in all caps].

Your next paragraph is a brief history of your case. Give a summary of the case so far, including sentencing district, sentencing date, sentence details, and supervision length. End it with the date your probation/supervision began.

The Arguments (the MEAT of the Motion)

After all the admin stuff is handled, start your arguments. Use policy factors including Sentencing Guidelines policy, and how those policies have changes for your crime (or crime category) since you were initially sentenced. If they’re reduced (and most of them are), argue that your sentence would have been shorter if you were sentenced today.

Find some studies that show how low risk you are to commit new crimes. Use statutory law from Title 18 §3553(a), the sentencing factors used to justify your original sentence, to argue that they no longer apply. Google some cases from your Circuit Court that specifically addresses circuit precedent on requests for early termination of supervision. Be creative.

Finally, show some progress. Court’s like nothing more that to feel like you’re fixed, and that it was the Court that fixed you. Did you complete drug treatment? Mention that. Have you had 3 jobs for the last 2 years and never missed a day? Mention that. Do you have a family that supports your new law-abiding life? Hammer on that.

Make the case, and do it well.

What We Do

Here at PCR Consultants, we know how to do it all. We do the heavy lifting so you don’t have to become an expert in all the things you just read about. If you choose to file a request to federal court yourself, you now have the tools to do it. That is, assuming, that you crafted a legally sound, well argued, correctly formatted motion that won’t get dismissed for a technical fault (like applying before the one-year point)

Our service is simple. We put together all the paperwork like any other document preparation service, except we don’t do Wills or Divorces. We do Federal Probation and Supervised Release. Get in contact today to find out how we can help.

 

Federal Probation Violation Escalates Quickly

It Stated With A Federal Probation Violation

White City, AL – A high-speed chase ended on Thursday, March 26th with the arrest of David Reynolds of Hanceville, Alabama. This, from a story posted by The Cullman Times before the weekend. Here’s how the story begins:

“A high-speed chase ended in a crash south of Hanceville and the capture of a man wanted for a federal parole violation.

Multiple local law enforcement agencies were involved in the chase after a Cullman Narcotics Enforcement Team member spotted David Jerry Reynolds, 34, driving on U.S. 31 South around 3 p.m. The officer attempted to stop Reynolds, who was driving a blue S-10 pickup, but the suspected continued south into Hanceville and eventually wrecked in the White City community, Cullman County Sheriff Matt Gentry said.”

Reynolds was wanted for a federal probation violation for possessing a firearm. Having, holding, or owning a gun is a big no-no on federal supervised release (or probation).1 A probation violation for possessing a firearm means a quick trip back to prison.

It Escalated Quickly

That Escalted Quickly

Reynolds, wanted for a probation violation, leads police on a high speed chase.

An officer spots Reynolds and attempts to pull him over. Instead of complying, he speeds away and leads law enforcement on a high speed chase that ended Reynolds wrecking his truck. What started with a possible routine traffic-stop-turned-arrest, turned into a very dangerous situation.

Reynolds may have been facing a few years inside prison walls for his probation violation. That’s a federal court issue. Instead of just pulling over when an officer spotted him in his truck, he ran away. This is (most likely) going to add Alabama’s version of the following charges: reckless driving, reckless endangerment, speeding, resisting arrest, and possibly even attempted vehicular assault.

Learn From His Mistakes

If, in the process of living life, you become wanted for a federal probation violation, nothing you can do can make that problem go away. It is possible, however, to make things much, much worse. Reynolds may have been facing a few years in federal prison for his violation (if the government could prove that Reynolds did, in fact, possess a gun when he wasn’t supposed to). After this high speed chase with local law enforcement, though, he is facing many more years in state prison to add to the federal time he still has to do.

Lesson #1: Don’t try to run away from law enforcement. It almost never works, and always makes things worse.

Lesson #2: Running away from a federal probation violation doesn’t make it go away.

Lesson #3: Don’t be like this guy. If you’re in trouble, get an attorney and face it head on. It may just save years of your life that would otherwise be wasted behind bars.

  1. Every federal defendant gets whats called a judgment and commitment order. On that order, standard and special conditions of release are applied after the defendant gets out of prison. The very first conditions always include a ban on possessing firearms. []

How Often Does Your Federal Probation Officer Visit?

How often your federal probation officer visits is an important question for all persons under the supervision of the United States Probation Office (USPO). This small piece of information is very helpful when considering a request for early release from federal probation (or federal supervised release).1

Levels of Supervision

Each federal district has a large amount of discretion over local USPO policy. For this reason, the treatment of probationers and supervisees can vary widely. However, because of the policy set forth in Monograph 109 (available here), much of how those under federal supervision are treated remains similar everywhere.

Generally, when an inmate of the federal Bureau of Prisons (BOP) is released from custody, that inmate goes to a halfway house. Once their time in the halfway house is finished, a term of supervised release begins. Initially the level of supervision on the outset is the highest it will be for the supervisee. This includes residential visits from the PO to approve housing, and a visit or two to the supervisee’s job site to verify employment.

Monthly in-person visits from a PO are common in the first months of supervision. After a year or so (maybe even sooner) those visits become more infrequent. This signifies a change in “Supervision Intensity” or some such phrase as used by the local USPO. A supervisee will rarely hear of the internal policy or paperwork involved in the levels of supervision, but the intensity by which the supervision occurs can be easily observed.

Different districts have different names and levels of supervision, but this observation is important! Read on to find out why…

Why You Should Care

There are a lot of reasons to want to get off of federal supervision as fast as possible, and those will be covered in a later post. How often you see your probation officer is discussed above and illuminates information that is important to this cause. Why, you ask?

This descending intensity of supervision is an indicator that the USPO is less interested in a supervisee. Less interest means they believe that there is less of a threat to society posed by the supervisee. That means the USPO is much less likely to stand in the way of a bid to get off of supervision early. If the USPO isn’t standing in the way, the judge is much more likely to grant the request.

This is a great thing! Paying attention to the amount of attention you are getting from your federal probation officer makes you better informed for your request for early termination. Early termination is freedom, and freedom is priceless!

  1. There is little difference between federal supervised release and federal probation. In short, if a federal defendant is sentenced to prison, they will enter a term of supervised release upon completion of that sentence. Conversely, if the defendant was sentenced to no prison time, they will be considered on probation. The supervising officers are the same for both and there is almost no difference, legally, between the two. []

Revoking Federal Supervised Release

This article is a bit old, but we dug it up out of the archives from the Kansas Federal Defender Blog. Sentences handed down after revoking federal supervised release and probation can be run consecutively, even if the court re-starts supervision post-release.

However, this isn’t necessary, as revocation sentences for supervised release and probation violations are not mandatory. Just like regular sentences after U.S. v. Booker, these guidelines in USSG §7B1.3(f) are advisory, and have been even before Booker.

Here is the meat of the article:

Here are a couple of points about supervised release revocations, some good and some bad:

Concurrent sentences are allowed. The ‘mandatory’ part: the violation report will say that a SRV sentence “shall be ordered to be served consecutively to any sentence of imprisonment that the defendant is serving,” whether or not related to the SRV, citing §7B1.3(f). Sounds kinda mandatory, doesn’t it? But not so.

The ‘advisory’ part: Even before Booker, the revocation guidelines were only advisory because the Commission issued only policy statements rather than actual guidelines (the SRV report usually notes this when advising that the Court that it can go ‘outside’ the range without notice, citing the upward departure case of Burdex). Still, the question often arises whether concurrent sentences are permissible. The Tenth Circuit says yes , the district court has discretion to impose concurrent sentences, not withstanding the advisory mandate of §7B1.3(f), as this is allowed by 18 USC §3584.

Timing is Everything. Nice published opinion from the 10th Cir this week in US v. Crisler , which rebuffed the Court/USPO’s attempt to revoke a defendant after supervision had expired, even though revocation proceedings were pending. Citing 18 U.S.C. § 3565(c),

“the court cannot revoke probation after the term of probation has expired unless (1) the delay in revocation was reasonably necessary and (2) a warrant or summons issued before the expiration date. Neither condition was met here. It is undisputed that the amended petition for revocation was filed after the probation term had expired. And even if the “amended” petition is deemed to relate back to the original petition of April 5, 2006, with respect to the alcohol-related allegation, it was not “reasonably necessary” to delay revocation until after expiration of the term of probation.”

The same language applies to SRV’s, per 18 USC §3583(e) and (i).

Not so nice. A recent guideline amendment, effective 11.1.2006, imposed or perhaps clarified, that three offense levels should be added when an offense was committed on PRETRIAL release, USSG §3C1.3. (Btw, to avoid confusion, USSG here refers to the guidelines, not the other USSG, United Skates School Group.) This attempts conformance with 18 USC §3147, usually referenced at the Rule 5 when released on bond. Remember, ‘appropriate sentencing notice’ must be provided before this three levels applies, but the Rule 5 advice may serve as notice, US v. Browning. 61 F3d 752 (10th Cir 1995).

This article is a bit more legally technical than the average blog post here at PCR Consultants, but the content is good and can be very important.

Avoiding violations is always best, but not always easy. E-mail us if you need some solid information regarding supervised release, and how to keep out of trouble.

Ending Federal Probation in the Age of Sequestration

Update: 4/21/14

It seems as though Sequestration changed the way many probation departments handled early release requests. For most of Summer/Fall 2013, probation officers were ending federal probation early for their supervisees on their own request. However, it seems that this trend is waning and there is a heightened need for do-it-yourself motions. E-mail us or give us a call to find out how to do this!

Ending Federal Probation Early – The New Game

The topic of the federal budget sequestration hasn’t arisen much in the news much since early Spring. However, it is important to know that these distasteful budget cuts are still in effect, and will seemingly remain in effect for the near future.

In a time where government budgets are stretched, nowhere is this more apparent than in the federal justice system. Dated August 13, 2013 a letter was sent to congress signed by 87 Chief District Judges that dealt specifically with the budget cuts the Sequestration has made to the federal judiciary.

Here’s the most interesting part for those seeking federal probation termination:

“As a result of sequestration, funding allocations sent out to court units were cut 10 percent below the fiscal year 2012 level. Clerks of court and probation and pretrial services offices will downsize by as many as 1,000 staff during fiscal year 2013 due to this reduction in funding. Staffing in these same offices has been reduced by nearly 2,100 staff between July 2011 and July 2013, representing a 10 percent staffing loss to the Judiciary over this two-year period. Our current staffing level is the lowest it has been since 1999 despite significant workload growth during this same period of time. In addition to downsizing, the courts have already incurred 4,500 furlough days as of June 2013, and an additional, 4,100 furlough days are projected by the end of the fiscal year.”

. . . and later:

“Funding cuts to the Judiciary have also put public safety at risk. The Judiciary employs nearly 6,000 law enforcement officers—probation and pretrial services officers—to supervise individuals in the community after they have been convicted of a crime and subsequently released from prison, as well as defendants awaiting trial. The number of convicted offenders under the supervision of federal probation officers hit a record 187,311 in 2012 and is on pace to reach 191,000 by 2014. At a time when the workload in our probation and pretrial offices continues to grow, budget cuts have reduced funding allocations to these offices by 10 percent. Staffing in probation and pretrial services offices is down nearly 600 (7 percent) since 2011.”

Hit ‘Em Where it Hurts

No matter the political leaning of a specific judge, the fact that 87 out of 94, or 92.5%, Chief judges signed this letter1 shows that budget problems have their attention.

The one place judges can agree, and where a probationer (or those on federal supervised release) can focus on, is the Court’s pocketbook. Want to hit ’em where it hurts? Try the wallet.

 

PCR Consultant’s Probation Termination service

This, like many other current issues that affect the federal courts, is used to its maximum effectiveness in each of our client’s services. When the goal is ending federal probation early, using as many arguments like this as possible only helps. If you want to get started on the road to terminating federal supervised release early, click here.

  1. When, as federal district judge Richard G. Kopf (NE) said in this article about the letter “As a former Chief District Judge, I know that you can almost never get 87 Chief District Judges to agree about when the sun comes up. The fact that 87 of them wrote the foregoing letter to Congress ought to make clear that the federal district courts are inches away from disaster. Congress is on the brink of intentionally wrecking the federal trial courts. Will sanity prevail?” []

What Happens After Federal Prison

Pre-Release

After federal prison, an inmate is either sent to a federal half-way house, or placed directly on Supervised Release (Federal Probation is reserved for those who never received a prison sentence). An inmate, while in the halfway house, is still under the custody of the federal Bureau of Prisons and can therefore be subject to release or relief in the same way they were while incarcerated (see Incarceration). Anything from home-confinement to early release is possible from a half-way house. PCR Consultants can help.

Post-Release, and Supervised Release

After full release from the BOP into the hands of the local United States Probation Office, a former federal inmate has years of probation((called Supervised Release)) to deal with. Supervised release comes with a host of general and specific rules that must be followed, or the supervisee faces more prison time. However, PCR Consultants can help you here too. From changing the terms of your release to better suit you to ending probation altogether, you can affect your own future and we can show you how.

Whether you need to modify (change or eliminate) a term of Supervised Release from your J & C Order, or motion to be released from Supervision altogether, PCR Consultants can put the right law and paperwork in your hands for a FRACTION of the cost of an attorney.

When on federal probation or supervised release (after federal prison time is served), the specific rules applied to each individual are unique. Most of the time these rules are lengthy and confusing so violations can occur accidentally by the probationer. Learn how to live on probation, how to be successful on probation, and how to structure actions to obtain your release sooner from supervision.

Get started today and be on your way to early termination in minutes!

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