"If you agree to cooperate and plead guilty, I think I can get you probation."
These words have been often spoken by well-intentioned and thoroughly competent criminal practitioners who have insufficient working knowledge of the Federal Sentencing Guidelines ("the Guidelines"). Unfortunately, such optimistic predictions all too frequently result in dashed expectations for the client and even embarrassing allegations of ineffective assistance against the lawyer. See, Risher v. United States, 992 F.2d 982 (9th Cir. 1993).
The Guidelines govern the sentences of individuals convicted of federal offenses occurring on or after November 1, 1987. On that date, the world of federal criminal practice changed dramatically. Gone are the days when federal judges were allowed unfettered discretion in sentencing. Defendants are no longer flesh and blood human beings; they are statistics on a grid. Without a thorough working knowledge of the Guidelines, a lawyer simply is not competent to represent a client in any federal criminal matter, whether it be a trial, a plea of guilty, or even an investigation.
Prior to implementation of the Guidelines, federal judges possessed broad discretion in sentencing defendants convicted of federal crimes. Unless the offense carried a statutorily mandated minimum sentence, and as long as the court relied on legally permissible factors in exercising its discretion, virtually any sentence within the applicable statutory maximum was possible. In short, the sentence was up to the judge. Under the Guidelines, the underlying offense conduct is quantified and the defendant’s criminal history categorized, resulting in a relatively narrow range of months within which a judge must impose sentence. Because the ultimate penalty can be substantially dependent upon the offense which the prosecutor chooses to charge, a cynic (like me) might observe that the Guidelines largely take sentencing discretion away from our highly qualified federal judges and place that discretion into the hands of the prosecutor.
Conceptually, the Guidelines’ approach is fairly straightforward. The beginning point is the conduct underlying the offense of conviction. Each type of offense has a "base offense level," usually accompanied by one or more "specific offense characteristics" that adjust the offense level, usually upward. For example, a fraud-related offense (whether it be bank, mail, wire, or securities fraud) has a base offense level of six. USSG § 2F1.1(a). Specific offense characteristics, such as magnitude of the intended loss and "more than minimal planning," frequently result in significant increases for the offense level. Thus, a mail fraud scheme involving an intended loss of $250,000 will have an offense level of sixteen (16)—six (6) for the base offense, eight (8) for the intended loss (taken from USSG § 2F1.1(b)(1)’s loss table), and two (2) for more than minimal planning. USSG § 2F1.1(b)(2). Why more than minimal planning? Because just about any offense executed with any degree of thought or sophistication qualifies for this enhancement. See, Application Note 1(f) following USSG § 1B1.1.
Following determination of the offense level, further adjustments are made if additional aggravating or mitigating circumstances are found to be present. If our hypothetical mail fraud example involved a scheme by five or more individuals to market a bogus cure to cancer sufferers and their families, increase the score for the scheme’s leader six (6) additional levels—two (2) for taking advantage of vulnerable victims, USSG § 3A1.1(b), and four (4) more for a leadership role in criminal activity involving five or more individuals. § 3B1.1(a).
If the defendant testified and was disbelieved at trial or a pretrial hearing, or was not honest with his probation officer, add another two (2) levels for obstructing the administration of justice. Even presentencing conduct unrelated to the charged offense may support an obstruction enhancement under appropriate circumstances. United States v. Thompson, 944 F.2d 1331 (7th Cir. 1991). Any attempt to impede "the administration of justice during the investigation, prosecution, or sentencing of the instant offense" qualifies for the two (2) level increase. USSG § 3C1.1. Too bad for our hypothetical defendant, who had the poor judgment to misidentify himself to the investigating agents when they attempted to interview him during the course of the investigation.
Did the defendant abuse a position of public or private trust or use a special skill in a manner that "significantly facilitated" the offense? The defendant in our hypothetical just happens to be the family physician for the patients to whom the phoney cure was sold. Tag him with another two (2) levels. USSG § 3B1.3. More adjustments are possible, but you’re probably starting to get the idea.
Dr. Defrauder has reached an adjusted offense level of twenty-six (26), but he’s not done yet. If there are multiple counts of conviction, calculations are performed for each offense, the offenses are thereafter "grouped," and the offense level is adjusted—upward, naturally. USSG § 3D1.1. Generally, similar offenses are grouped together, resulting in no increase. Thus, the difference between a conviction on two or twenty counts of mail fraud is usually immaterial, although the sentence can never exceed the maximum statutory penalty. (E.g., five (5) years is the statutory maximum sentence for a conviction on one count of mail fraud, ten (10) years for two counts, etc.) A conviction on different types of offenses, such as tax offenses and/or money laundering in addition to mail fraud, can result in increased penalties. Let’s give our hypothetical defendant a break and say he’s only gone down on mail fraud.
We’re now actually at a point where consideration is made for a two-level downward adjustment, should the defendant "accept responsibility" for his crimes. Technically, the two-level reduction for acceptance of responsibility is not simply for pleading guilty. It is theoretically possible in "rare situations" to go to trial and still qualify for the reduction, although the reduction "is not intended to apply to a defendant who puts the government to its burden of proof at trial by denying the essential elements of factual guilt . . .." USSG § 3E1.1, Application Note 2. Rare, indeed.
Pleading guilty, on the other hand, is no guarantee that the defendant will receive credit for acceptance of responsibility. For example, minimizing or denying guilt to the probation officer conducting the presentence investigation can, and frequently does, result in denial of this reduction. United States v. Beserra, 967 F.2d 254 (7th Cir. 1992). Should a defendant who qualifies for acceptance of responsibility, and whose offense level is sixteen (16) or greater before the adjustment, decide to plead guilty early enough to permit the government from having to prepare for trial, a further one-level reduction is appropriate. USSG § 3E1.1(b). Because our cancer cure con man had the bad foresight to go to trial, he can forget about credit for acceptance of responsibility. His offense level total is twenty-six (26).
We’re now closing in on a sentencing range, but first the defendant’s "criminal history category" must be determined. There are six such categories, resulting from a quantification of the defendant’s prior criminal record. The higher the criminal history category, the greater the corresponding offense level sentencing ranges. Points are given for prior convictions, sentences and their lengths, whether the instant offense was committed while the defendant was on probation or parole, and so forth. These rules are contained in a single Guideline, USSG § 4A1.1. Because nothing about the Guidelines is easy, the remainder of Chapter Four, Part A, contains several additional pages of fine print which set forth definitions, instructions, and other rules for applying USSG § 4A1.1. To take a simple example, a defendant with a single prior conviction which resulted in a two-year sentence served prior to commission of the present offense, would be placed in Criminal History Category II. Luckily, Dr. Defrauder has a previously unblemished record, so he’s in Criminal History Category I.
Now we’re ready to learn the applicable sentencing range. Chapter 5, Part A, is a "Sentencing Table," a simple grid comprised of six columns (one for each Criminal History Category) of 43 levels each. Under Criminal History Category I, Level 26, can be found the mandatory sentencing range for our cancer victim-defrauding, more-than-minimally-planning, group-leading, expertise-utilizing, justice-obstructing, quarter-million-dollar, patient-betraying physician: 63-78 months. It is within this applicable range which the court must sentence. Except . . .
Few opportunities are presented for a reduction in sentencing range. The Guidelines, billed as a "truth in sentencing" law, were designed to eliminate disparate sentences for similar offenses and offenders. The more exceptions, the greater the chance of disparity. There is, however, some limited opportunity for a sentence less than the prescribed range. Guidelines § 5K2.0 is a Policy Statement which recognizes:
Under 18 U.S.C. § 3553(b) the sentencing court may impose a sentence outside the range established by the applicable guideline, if the court finds "that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described."
An offender characteristic or other circumstance that is not ordinarily relevant in determining whether a sentence should be outside the applicable guideline range may be relevant to this determination if such characteristic or circumstance is present to an unusual degree and distinguishes the case from the ‘heartland’ cases covered by the guidelines in a way that is important to the statutory purposes of sentencing.
Unfortunately, such departures may be imposed upward, as well as down. See, United States v. Boula, 997 F.2d 263 (7th Cir. 1993). Moreover, offender characteristics and circumstances specifically delineated by the Guidelines as "not ordinarily relevant" to the question of departure are: age, education and vocational skills, mental and emotional conditions, physical conditions (including drug and alcohol dependency), employment record, family responsibilities and community ties. USSG § 5H1.1, et. seq. As noted in the Commentary to USSG § 5K2.0:
The Commission does not foreclose the possibility of an extraordinary case that, because of a combination of such characteristics or circumstances, differs significantly from the ‘heartland’ cases covered by the guidelines in a way that is important to the statutory purposes of sentencing, even though none of the characteristics or circumstances individually distinguishes the case. However, the Commission believes that such cases will be extremely rare.
Thus, an elderly defendant with a lifetime of supporting charitable causes might expect the court to exercise leniency at sentencing within the applicable range, but he is not necessarily entitled to a departure below that range.
In Koon v. United States, 116 S.Ct. 2035 (1996), the Supreme Court affirmed the district court’s downward departure in sentencing the defendants convicted of violating the civil rights of Rodney King, thereby rekindling some hope that federal district courts might actually possess more than token sentencing discretion. The Court held that a district court’s departure determination must be reviewed under an abuse of discretion standard. While hope springs eternal, Koon’s holding has already been limited here in the Seventh Circuit in United States v. Horton, 98 F.3d 313, 319 (7th Cir. 1996), which holds that while the deferential abuse of discretion standard applies to the sentencing court’s decision to depart, the district court must still "explain its reasons for assigning a departure of a particular magnitude in a manner susceptible to rational review."
The one big opportunity for a downward departure is found at USSG § 5K1.1, which authorizes a departure for "substantial assistance" to the authorities. Motions for application of this provision can only be made by the government. It’s not enough to simply cooperate, or even to cooperate completely. The Michael Jordan of squealers will not receive a downward departure for substantial assistance without the required government motion. In the absence of a government motion, not only does the court lack authority to grant a departure under USSG § 5K1.1, but the prosecutor’s refusal to so move is not even reviewable for arbitrariness or bad faith. United States v. Kelly, 14 F.3d 1169 (7th Cir. 1994).
What constitutes "substantial assistance?" Ask a federal prosecutor—it’s his/her prerogative. Either that, or make every effort to secure a commitment for a departure motion before the commencement of cooperation. It is not uncommon, however, to be contacted by a client only after a confession has been given and cooperation has begun. Under these circumstances, continuing down the path of cooperation in reliance upon the good faith of the prosecutor to make the necessary motion may be the only viable option. Maybe.
Practices concerning such motions vary substantially from one U.S. Attorney’s Office to another. In the Northern District of Illinois, for example, the government will typically make a motion for a fifty percent downward departure in return for an individual’s total commitment to do everything possible to make a case on his former partners in crime. Such prospective defendants should be prepared to "wear a wire" or engage in other proactive investigative activities. Simply agreeing to be debriefed and testify is usually not enough. Confession to one’s own activities is never enough.
What Does it Mean?
A thorough knowledge of the Guidelines, as well as their applicability to the facts at hand, are essential for competent advocacy at the sentencing of a federal defendant. But adequate representation begins long before a client walks into court to be sentenced. No important decision can be made without a careful analysis of all alternatives and their potential consequences. Few decisions in life are more important than whether to plead guilty to a criminal offense, or to "roll the dice" and go to trial. An intelligent and informed decision to cooperate or go to trial simply cannot be made without a careful analysis of likely and alternative Guidelines applications.
Subtle nuances can make a dramatic difference in the potential sentence. Even fundamental questions such as how to measure the intended loss, the career offender provisions, restitution, and important sentencing options which are available at the lower offense levels, are well beyond the scope of this introductory primer. We haven’t even discussed fines.
The message is simple: know the Guidelines, or don’t even attempt to take on a federal criminal matter.
David J. Stetler is a Principal of McDermott, Will & Emery, Chicago. He is a former Assistant U.S. Attorney for the Northern District of Illinois. He received his Undergraduate Degree in 1971 and his Law Degree in 1974 from Villanova University.