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In this blog, I will discuss how the United States Sentencing Guidelines or “USSG” calculates a defendant’s criminal history. In previous blogs, I have concentrated on offense conduct. Now, I will look at the second axis of the Sentencing Table, which is criminal history.
The effect of a defendant’s criminal history can lead to longer sentences under the USSG, or can in some limited circumstances lead to a shorter prison sentence. Other factors affecting a given sentence are possible variance situations. This blog will examine the application of both.
Criminal History – In past blogs, I have summarized a few basic concepts with criminal history. Here, I will expand that discussion. The USSG Sentencing Table is comprised of two components: Offense Level and Criminal History Category.
https://www.ussc.gov/sites/default/files/pdf/training/primers/2021_Primer_Criminal_History.pdf. A defendant’s criminal history category, combined with the total offense level, determines the advisory guideline range. There are a number of trends that run through the USSG with respect to criminal history that we will explore.
Criminal history looks at a defendant’s prior criminal convictions. Under §4A1.2(a), a prior sentence is any sentence previously imposed upon adjudication of guilt, whether by guilty plea, trial, or plea of nolo contendere, for conduct not part of the instant offense. The term prior sentence “is not directed at the chronology of the conduct, but the chronology of the sentencing.” United States v. Lopez, 349 F.3d 39 (2nd Cir. 2003). Thus, a previously imposed sentence counts even if it was for conduct that occurred after the offense of conviction.
Any prior sentence does not include relevant conduct comprising any portion of the current offense conduct. A prior sentence is counted separately unless (A) the sentences resulted from offenses contained in the same charging instrument; or (B) the sentences were imposed on the same day.” USSG § 4A1.2(a)(2). Sentences for prior revocations of probation, parole, and/or supervised parole also count towards a prior sentence. USSG §4A1.2(k)(1).
A prior felony sentence is one that has a maximum penalty under either state or federal law of more than one year in prison. USSG §4A1.2(o). Generally, a prior misdemeanor sentence is not scored under the USSG unless a defendant was sentenced to a term of probation over one year, or thirty days in jail, or the prior offense was similar to the instant offense. USSG §4A1.2(c)(1).
A prior sentence is scored if the sentence was for more than 13 months and it occurred in the last fifteen years. If the offense was for less than 13 months then it is only counted if it occurred within the last ten years. USSG §§4A1.1(a), 4A1.2(e)(1). If a defendant is on probation or parole at the time of the sentencing offense, then an additional two points are assessed under the USSG. USSG §4A1.1(d). For an offense committed by the defendant that resulted in a prison sentence exceeding 13 months within the prior 15-year period, three criminal history points are added. USSG §4A1.2(d)(1). For an offense committed that resulted in a sentence to confinement of at least 60 days, two points are added if the defendant was released from that confinement within five years of the instant offense. USSG §4A1.2(d)(2)(A). Otherwise, one point is added for an offense imposed within five years of the instant offense. USSG §4A1.2(d)(2)(B).
The scoring for a defendant’s criminal history includes the following points for various prior convictions:
The addition of each point has the potential to change a defendant’s criminal history significantly, and therefore his/her guideline range on the USSG Sentencing Table. A careful examination of a defendant’s criminal history is critical to accurately calculating his/her potential sentence under the USSG.
Career Offender Status – The interplay between the career offender enhancement and 18 U.S.C. §§ 924(c) and 929(a) — offenses involving the use of firearms during an underlying crime of violence or controlled substance offense — warrants careful consideration. If the defendant is convicted only of the firearms offense, the guideline range is 360 months to life, although the reduction for acceptance of responsibility is still available and can reduce the range by two or three levels. If there are multiple counts of conviction, the applicable guideline range is the greater of (A) the mandatory minimum consecutive sentence required by 18 U.S.C. §§ 924(c) or 929(a) plus the guideline range for the underlying offense; or (B) the guideline range derived from the career offender table for section 924(c) or section 929(a) offenders in §4B1.1(c)(3). USSG §4B1.1(c)(2).
If the defendant is not a career offender but has multiple convictions pursuant to section 924(c), then the sentencing court can depart upward. USSG §2K2.4, comment. (n.2(B)). The sentencing court also can depart upward in the rare case that the defendant’s guideline range is actually lower than if he had not sustained a section 924(c) conviction. USSG §2K2.4, comment. (n.4).
Other USSG Considerations – There are other special circumstances that can raise a defendant’s guideline range under the USSG. Things such as inchoate crimes, crimes of violence, offenders who have a criminal livelihood, armed career criminal, and repeat and dangerous sex offender are all examples of situations where a defendant’s guideline sentence can be increased through scoring authorized by the USSG.
Inchoate and Incomplete Crimes: An inchoate crime is one where the offender took some affirmative step towards the commission of another crime. The vast majority of circuits to address the issue of inchoate crimes agree that the career offender guideline includes convictions for crimes such as aiding and abetting, conspiring, and attempting to commit a crime of violence and controlled substance offense USSG §4B1.2, comment. (n.1).
Crimes of Violence: Any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that has as an element the use, attempted use, or threatened use of physical force against the person of another is a “crime of violence.” USSG §4B1.2(a). The crime of violence definition is used to determine not only whether a defendant’s sentence is subject to the career offender enhancement in §4B1.1, but also whether a defendant’s sentence is subject to enhancement in other guidelines. USSG §§2K1.3(a)(1)–(2) & comment. (n.2).
Criminal Livelihood: If the defendant committed an offense as part of a pattern of criminal conduct engaged in as a livelihood, his offense level must be at least 13. USSG §4B1.3. A pattern of criminal conduct means defendant “planned criminal acts occurring over a substantial period of time.” USSG §4B1.3, comment. (n.1).
Armed Career Criminal: A defendant convicted of a violation of 18 U.S.C. § 922(g) — a firearms offense — who has three prior convictions for a violent felony or serious drug offense, or both, committed on occasions different from one another, is considered an armed career criminal. 18 U.S.C. § 924(e); USSG §4B1.4, comment. (n.1). Such a defendant is subject to an enhanced sentence under the ACCA (18 U.S.C. § 924(e)), and enhanced treatment under the USSG.
Repeat And Dangerous Sex Offender: If the defendant’s instant offense is a covered sex crime, and the defendant has a prior qualifying sex offense conviction, or has engaged in a pattern of activity involving prohibited sexual conduct, then the defendant is subject to the overrides set forth in §4B1.5. Thus, even though the defendant may be truly a first-time offender, the USSG treats a Repeat and Dangerous Sex Offender as a repeat-offender and contains a five-level increase in scoring. USSG §4B1.5(b).
Each of these other considerations represents a sentencing policy of Congress to treat certain crimes with a categorical approach that creates severe enhancements. The potential increase in a defendant’s guideline sentence posed by each of these considerations is enormous. Any one of these considerations can be the difference in the severity of a defendant’s sentence.
Departures – In addition to establishing the general rules to be used in calculating an individual’s criminal history category, the USSG provides guidance for potential upward and downward departures from the criminal history when it either overstates or understates the seriousness of the defendant’s criminal record or his or her risk of recidivism. USSG §4A1.3(a), (b). The list of departure factors to be considered include: prior sentence not used in criminal history score, prior sentence substantially longer than one year, similar misconduct established by an alternative proceeding, whether the defendant was pending trial or sentencing, prior conduct not resulting in a conviction, the nature of the prior conviction, previous lenient treatment, other relevant conduct, and prior arrests without a conviction.
While the USSG contemplates upward and downward departures, it limits a reduction in certain circumstances. For example, departing below the lower limit of the applicable guideline range for Criminal History Category I is prohibited. USSG §4A1.3(b)(2)(A). A downward departure under §4A1.3 for a career offender may not exceed one criminal history category. USSG §4A1.3(b)(3)(A). Downward departures for overrepresentation of criminal history are prohibited for defendants who are armed career criminals under §4B1.4 or who are repeat and dangerous sex offenders against minors within the meaning of §4B1.5.1.
The possibility of an upward or downward departure exists in every case. Defendants, and specifically their counsels, must address the probability of both scenarios. Proper analysis of a possible upward departure is essential to determining a defendant’s exposure. Likewise, properly evaluating the likelihood of a possible downward departure is equally necessary to understanding a potential guideline sentence.
Summary – There are a number of factors that make up a guideline sentence under the USSG. In past blogs, I have looked at the offense conduct. This blog concentrated on criminal history. Together, offense conduct and criminal history, form the principal elements necessary to calculate potential sentences under the USSG. While Congress intended the USSG to standardize sentencing procedure based on objective criteria, there remain many points for contention by defendants and the Government. The number of complicated considerations and nuances that may impact a defendant’s guideline sentence is unlimited. Each criminal case presents a different set of facts that must be evaluated by attorneys and judges.
To ensure your case is properly evaluated, you must consult with experienced counsel. Mark A. Satawa has experience and success in all types of federal cases. Don’t take a chance with your freedom — call Mark today!