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:
- Juvenile Adjudication(s);
- Adult Criminal Conviction(s);
- 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. 1Importantly, 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.
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.
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
Or visit out Contact Us page.
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.|
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