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Sentencing in Federal Court: United States Sentencing Guidelines

In response to perceived sentencing disparities across the county, Congress enacted the Sentencing Reform Act of 1984 (“SRA”), which establishes a new sentencing scheme based on “guidelines.” These guidelines are found in the Guidelines Manual. The SRA created the United States Sentencing Commission, which is tasked with creating and regularly amending the guidelines and issuing reports to Congress recommending changes in federal legislation related to federal sentencing. This blog provides a broad overview of the sentencing process and gives a brief summary of the guidelines and their application in federal criminal cases. 

Overview of Sentencing Process

Of course, sentencing does not occur unless and until a defendant either pleads guilty or is found guilty at trial. At a plea hearing, the Court must advise the defendant of the potential sentence under the relevant statute(s), as well as the Court’s obligation to calculate the applicable sentencing guideline range (discussed in more detail below) and to consider any possible departures or variances from that range, as well as the sentencing factors under proscribed by 18 U.S.C. § 3553(a). 

I.  Presentence Interview and Report

After a conviction or guilty plea, a federal probation officer will conduct a Presentence Interview of the defendant. Defense counsel has a right to be present during the interview. Following the interview, the probation officer will provide a Presentence Report, which generally contains background information about the defendant and the crime(s), but also contains the statutory range of punishment and a calculation of the sentencing guidelines. 

II.  Timing of Report and Ability to Object to Findings

The probation officer must provide the Presentence Report at least 35 days before sentencing. See Fed. R. Crim. P. 32(e)(2). Defense counsel then has 14 days from receipt to make any objections to the findings in the report (usually by way of a sentencing memorandum filed with the Court). See Fed. R. Crim. P. 32(f)(1). 

III.  Sentencing Hearing

A Court must give a defendant an opportunity to provide input before a sentence is ultimately imposed. This generally happens during the “Sentencing Hearing.” These hearings are relatively informal and are not confined by the Federal Rules of Evidence or the various constitutional protections a defendant has at a jury trial (i.e. right to confront witnesses). The Court has significant discretion on how the Sentencing Hearing will be handled, and may allow the parties to present witnesses or proffer any other witness it deems relevant to the issue of sentencing. 

United States Sentencing Guidelines: Applying the Guidelines

As discussed above, the Presentence Report will include a calculation of the sentencing guidelines and the applicable sentencing range. However, this range is advisory – the Court does not have to sentence a defendant within the relevant range unless there is a statutory mandatory minimum sentence in play. 

I.  Determining a Defendant’s “Offense Level” 

Base Offense Level

The first step in applying the guideline is determining which offense guideline applies to the case at issue. This is determined by reviewing Chapter Two of the Guidelines Manual.  Within the Manual, each offense is given a “base offense level” or a BOL. 

Specific Offense Characteristics  

Chapter Two also provides with each offense a set of “specific offense characteristics.” These are a series of mitigating of aggravating factors that a probation officer will consider. Each “factor” can either result in an increase or decrease to the underlying BOL. 


Next, the probation officer will determine whether there are any additional “adjustments” that apply. These adjustments are found in Chapter Three of the Manual and apply across all offenses) as opposed to the individual specific offense characteristics discussed above). These adjustments can either be upward or downward, depending on the circumstances. One of the most common reductions we see is a 2 (or 3) point reduction when a defendant “accepts responsibility” for the underlying offense by pleading guilty in a timely manner. 

These three steps will result in an overall calculated “Offense Level.”

II.   Determining a Defendant’s Criminal History Category

The probation officer will then turn to determine the defendant’s criminal history points, which will in turn determine the defendant’s “Criminal History Category.” This is generally calculated by taking into account a defendant’s prior convictions and whether the instant offense while on probation or parole. There are limits, however, to which crimes will be accounted for in the calculation (i.e. how long it has been since the prior conviction took place).  

III.   Application of the Guidelines

Using the above “Offense Level” and “Criminal History Category” the probation officer will then consult the Sentencing Table contained in the Manual (below). For example, if a defendant has an Offense Level of 22 and a Criminal History Category of I, he or she would fall within the range of 41 to 51 months. However, as discussed above, the Court is not bound by the guideline range and may depart or vary from the guidelines in a variety of different circumstances. These potential “departures” and “variances” will be addressed in later blogs. 

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