3. Calculation of a Sentence under the SGA

Under the SGA until it became advisory, it was possible to determine with some degree of precision what sentence a criminal defendant would likely obtain if convicted of all charges lodged against him. The criminal defendant, obviously, knew what his criminal offense history was and he would know precisely the evidence that the government would use against him at trial which could result in the applicability of specific offense characteristics to enhance his sentence.

For example, if a mail fraud defendant was charged with ten separate counts of mail fraud and was alleged to have obtained, pursuant to his scheme, in excess of $1,000,000.00 in ill-gotten gain, such a defendant should be able to predict what his sentence would be if convicted on all counts and if the Court does not depart upward from the applicable guideline range. With this computation in hand, the defendant could then begin to explore avenues of plea bargaining that might reduce his exposure. If such avenues were unavailable, obviously, there would be no inducement for the defendant to enter a plea of guilty, as his sentence would remain the same on either a guilty plea or after conviction of all counts. In recognition of the fact that inducements to plead guilty must exist if plea bargaining was still to remain as a viable cornerstone of the federal criminal system, the SGA contains certain provisions which serve as inducements to those interested in reducing their overall exposure to an increased sentence. In other words, it was still possible for a criminal defendant to reduce the sentence he might otherwise obtain it unsuccessful at a trial of his case. While plea bargaining under the Sentencing Guidelines was more difficult than it was before its enactment, a criminal defendant was still rewarded for a guilty plea in the typical federal case.

Computing a sentence for a convicted criminal defendant under the SGA is somewhat analogous to preparing a tax return. The SGA assigns an offense level for every federal offense, either directly or by analogy. The base offense level is then modified by multiple count rules, criminal history, participation level, and offense severity adjustments, in addition to a variety of other “sentencing facts”. All of this translates into numbers. These numbers are somewhat analogous to the “gross income” that a taxpayer might compute on his tax return. From the defendant’s standpoint, just like a taxpayer, what is important is not the gross income level, i.e. the base offense level, but rather the net income or the adjusted offense level after consideration of all mitigating circumstances.

The Federal Sentencing Guideline Manual contains a statutory index which connects virtually every federal criminal statute with an applicable guideline section. The guideline section provides a “base offense level” for a particular crime.  This base offense level is not subject to debate; however, it can be adjusted either upward or downward based upon certain specified factors (specific offense characteristics) and it is the “adjusted offense level”, coupled with the defendant’s “criminal history category”, which determines the number of months on the sentencing table. While the base offense level is dictated by the SGA, the specific offense characteristics and adjustments are not necessarily set in stone. In other words, there is room for both the government and the defendant to plea bargain with respect to those modifying factors which result in a final sentencing guideline range.

It is recognized that under the SGA, the standard deduction for a guilty plea is a level decrease, assuming the defendant is sincerely repentant for his wrongdoing.  Thus, the first inducement for a criminal defendant to plea bargain is the possibility of obtaining a decrease in the overall adjusted offense level applicable to his/her case. Whatever the adjusted offense level will be for a convicted criminal defendant after a trial, it will be less if he pleads guilty and if the court determines that there is a recognition and affirmative acceptance by the defendant of his personal responsibility for his criminal conduct.

Returning to our analogy of the federal taxpayer, the criminal defendant again is not interested in what his gross income or unadjusted offense level is. Rather, just like the taxpayer, he is interested in maximizing his deductions which will result in a lesser penalty to himself. If a defendant shows true acceptance of responsibility for his criminal acts, as we have seen, he can obtain a two-level adjustment to the offense level applicable to his conduct. A criminal defendant can also obtain other offense level deductions depending on the particular facts of his case. For example, the parties may be agreed to a dollar amount which would reduce the specific offense characteristics applicable to the base offense level. As we have seen, while the parties cannot agree to facts which are not true and correct so as to defeat the purposes of the SGA, where the facts are reasonably in dispute, it is possible for the parties to plea bargain upon a stipulation of facts which would reduce the defendant’s sentencing exposure by decreasing the impact of certain specific offense adjustments applicable to the base offense level in question. Moreover, by pleading to certain counts in the indictment, the criminal defendant may be able to avoid multiple count rule adjustments that could increase the final guideline range.

Through effective plea bargaining, a defendant may also be able to avoid victim related adjustments and role in the offense adjustments which could result in the event of a conviction after trial or by way of his plea. Again, while the parties cannot unfairly and improperly agree upon such matters if not supported by the facts, where the facts are reasonably in dispute, both the government and the defendant can agree upon stipulated facts which could result in less exposure to the criminal defendant. For example, if the government had some evidence to indicate that the criminal defendant had impeded or obstructed the investigation or prosecution of the case in question, the government could agree not to seek an enhancement of the defendant’s sentence based upon such alleged obstruction. While the government will not offer such inducement for a guilty plea if the facts will not support it, here again, if there is a reasonable disagreement as to the facts, the parties can stipulate to the facts which will reduce a defendant’s exposure.

Perhaps the most important plea bargaining provision in the Guidelines is that which specifically states that if the government receives such assistance from a defendant, the government can thereafter move to have that defendant’s sentence reduced below the applicable guidelines which would otherwise dictate what his sentence would be. In other words, if a defendant cooperates with the government, and the government is inclined to do so, the government may file a motion with the court seeking to have the defendant rewarded for his cooperation and to have the court depart from the guidelines otherwise applicable that defendant’s case. The SGA only provides for such a departure in the event the government specifically moves for such consideration for the defendant. Even if a defendant cooperates with the government, there is no guarantee that he/she will receive any reduction in his/her guideline offense level. Thus, it is apparent that any defendant who seeks to cooperate with the government will obviously have to seek some assurances from the government that a motion will be filed which may result in a departure from the Guidelines’ strict requirements. Just as was the case before November 1, 1987, however, a criminal defendant in federal court still has a substantial inducement to offer his assistance to the government in helping to apprehend others who have violated federal law.

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