Federal Sentencing Guidelines Appeals

When most people think of a federal criminal appeal, they are thinking in terms of guilt or innocence – can I get my conviction overturned?

Many appeals, however, are not appeals of the verdict at all – they are federal sentencing guidelines appeals where our job is to correct mistakes that the court made during the sentencing hearing and, hopefully, get our client’s sentence reduced so they can get home to their family faster.

When can you appeal a sentence, as opposed to a verdict, in federal court? What are the federal sentencing guidelines and what part do they play in determining a federal inmate’s sentence?

Can I Appeal My Sentence in Federal Court?

If you have been convicted of a crime, you are entitled to a direct appeal to correct any errors of law that the judge made during your trial. But, if the court makes mistakes during your sentencing hearing, that can also be grounds for a federal sentencing guidelines appeal if the court’s mistake resulted in an unfair sentence.

What are Valid Grounds for Appeal in Federal Court?

Following a conviction in federal court, you can file a direct appeal to challenge mistakes that the court made that resulted in an unfair conviction. Grounds for a direct appeal usually involve errors of law made by the judge, while mistakes made by your attorney ordinarily must be addressed in a 2255 motion based on ineffective assistance of counsel.

When Can I File a Federal Sentencing Guidelines Appeal?

Just as errors of law made by the court can result in a reversal of your conviction and a new trial, errors of law made by the court during sentencing proceedings can result in reversal of your sentence and a new sentencing hearing, although the conviction will still stand.

If you are filing an appeal based on mistakes in your sentencing proceedings, the same rules apply – the error must be preserved by objection or motions made by your attorney, you have 14 days to file a notice of appeal, and then each side will file appellate briefs with the Circuit Court of Appeals.

What are the Federal Sentencing Guidelines?

The federal sentencing guidelines are complex – federal criminal defense lawyers attend regular training sessions on the guidelines, and, regardless of their familiarity with the guidelines and sentencing procedures, defense lawyers, prosecutors, probation agents, and judges make mistakes.

Your sentence is not controlled by the guidelines, but the guidelines are the main factor that the court must consider in every federal sentencing proceeding. The many moving parts of federal sentencing guidelines computations include your offense level, criminal history category, enhancements, and whether there are grounds for a downward departure or variance from the applicable guidelines range.

There is a chart that is used by defense lawyers, prosecutors, judges, and probation officers in federal court that contains a graph with offense levels 1-43 listed vertically on the left side of the page and criminal history categories I-VI listed horizontally along the top of the page.

Once you determine the offense level and criminal history category, you find the spot on the graph where the two meet. There you will find the “guidelines range” based on the offense, your criminal history, and the unique circumstances of your case that may call for a reduction or increase in offense level.

But how do you determine the offense level and the criminal history category?

Offense Level

The “base” offense level is determined by the offense that you are charged with. Once you have the base offense level, it will almost always be adjusted up or down based on the facts of your case. The offense level can be reduced downwards (for a lower sentencing range) as a result of:

• Downward departures based on a defendant’s cooperation;
• Reduction for acceptance of responsibility (which should be an automatic two-point reduction if the defendant is pleading guilty, accepting responsibility, and no longer engaging in criminal activity); or
• Successfully challenging enhancements to the offense level proposed by the prosecution or probation department.

The offense level can be adjusted up (resulting in a higher sentencing range) based on enhancements for:

• The “loss amount” – which could be the amount of money the government determines was defrauded or the total weight of drugs the government determines was involved in a drug conspiracy case;
• Being an organizer, manager, or supervisor;
• Abuse of a position of trust;
• Obstruction of justice;
• Use of a stash house; or
• Other enhancements found in the guidelines manual.

Criminal History Category

There are six criminal history categories. A defendant is assigned “criminal history points” based on their prior convictions, and the criminal history category is determined by the number of criminal history points assigned. For example, one criminal history point puts you in criminal history category one, while 13 or more criminal history points puts you in criminal history category IV.

The calculations to determine criminal history category include:

• Three points for each conviction that involved a sentence of 13 months or more;
• Two points for each conviction that involved a sentence of six months to 13 months;
• One point for each conviction that involved a sentence of fewer than 60 days;
• An additional two points if the current offense was committed while the defendant was already under a sentence, including if they were on probation or parole;
• An additional two points if the current offense was committed within two years of the completion of a prior sentence of 60 days or more – or – if the current offense was committed while imprisoned on a sentence of 60 days or more; except this will only be one point if the defendant is already receiving two points because the offense was committed while under sentence; and
• An additional one point (to a maximum of three points) for each conviction of a crime of violence, if that conviction was not already counted because there were multiple convictions resulting in a single sentence.

There are additional situations where a criminal conviction may not result in any criminal history points, such as an uncounseled conviction that resulted in jail time (which does not count because the conviction was unconstitutional in violation of the right to counsel).

Are the Federal Sentencing Guidelines Mandatory?

The federal sentencing guidelines are not mandatory, although the court must consider the guidelines range and the guidelines range that they consider must be calculated correctly.

Federal sentencing guidelines appeals can be based on mistakes in the calculation of a defendant’s offense level or criminal history category, and an above-guidelines range sentence can be appealed if the court did not articulate valid reasons for departing from the guidelines.

The court can go above the guidelines range if there is a valid reason for it and if the sentence does not exceed the statutory maximum for the offense.

The court can also go below the applicable guidelines range based on your attorney’s motion for a downward departure or a variance, although this is also appealable by the government if the court does not articulate a valid reason for their departure from the guidelines…

Federal Sentencing Guidelines Appeal Lawyer in Columbia, SC

Elizabeth Franklin-Best is a federal criminal defense and federal appellate lawyer in Columbia, SC who defends white-collar criminal cases.

For more information, call us at (803) 331-3421 or email us through our website to set up a consultation about your case.