U.S. Sentencing Commission Issues New Guidelines

by David Cosgrove

In September, the United States Sentencing Commission issued its most recent edition of the Guidelines Manual for the Federal Sentencing Guidelines. The Guidelines became effective last month. The Manual is comprised of almost 600 pages of “substantive, clarifying, and technical revisions.” Notably, the introduction to the new manual’s issuance provides a telephone number for a Helpline. You may very well need to use it. The commission did, however, include a redesigned general index in an effort to make it more “user-friendly.” The Guidelines have been amended over 40 times since 1988. Some of the more noteworthy revisions to the Guidelines include:

  1. The enhancement for certain trade secret offenses, including special enhancements for Copyright and Trademark offenses involving medical products and military goods.
  2. A clarification requiring the courts to account for certain deductions in estimating the tax loss to be considered when sentencing upon certain tax offenses.
  3. An amendment in response to a conflict within the circuits regarding the government withholding motions or the court denying them as to a defendant’s acceptance of responsibility.

The Manual is broken up in to 8 chapters:

  1. Introduction and application principles
  2. Offense conduct (with 18 substantive sub-parts)
  3. Adjustments
  4. Criminal history and livelihood
  5. Determining the sentence
  6. Sentencing procedures and crime victim’s rights
  7. Violations of probation and supervised release
  8. Sentencing of organizations

The United States Sentencing Commission is a child of The Sentencing Reform Act of 1984. The Act “provides for the development of guidelines that will further the basic purposes of criminal punishment: deterrence, incapacitation, just punishment, and rehabilitation.” The purpose of the Commission is “to establish sentencing policies and practices for the federal criminal justice system that will assure the ends of justice by promulgating detailed guidelines prescribing the appropriate sentences for offenders convicted of federal crimes.” Generally speaking, the federal court “must select a sentence from within the guidelines range” as calculated pursuant to the guidance provided by the Commission through the manual. The court may, however, deviate from the “range” produced by the guidance application if “a particular case presents atypical features.” Of course, if you have federal criminal defense work like I have–every case is “atypical” in one way or another. Regardless, the Commission makes that very observation with the following:

“A sentencing system tailored to fit every conceivable wrinkle of each case would quickly become unworkable and seriously compromise the certainty of punishment and its deterrent effect…The list of potentially relevant features of criminal behaviors is long…”

Any attorney defending a criminal defendant in federal court must be or become well versed in the guidelines, their application, and any and all facts of the client’s case. The goal, of course, is to achieve a just and proportionate sentence for your client by marshaling forth any facts, rather than wrinkles, that justify d”ownward departure” or positive “atypical” characterization.