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.