An Introduction toFederal Guideline SentencingEighth Edition

Lucien B. Campbell and Henry J. BemporadFor the Federal Public and Community Defenders

March 2004

Table of Contents

The Basic Statutory System 1

Imposition of Guideline Sentence; Departure 1

Guidelines and Policy Statements 2

Guidelines and Statutory Minimums 2

Drug cases 2

Firearms cases 2

Sentencing below a statutory minimum 3

Cooperation 3

Safety valve 3

No Parole; Restricted Good-Time Credit 3

Probation and Supervised Release 3

Probation 3

Supervised release 3

Conditions and revocation 4

Fines and Restitution 4

Review of a Sentence 4

Sentence Correction and Reduction 5

Petty Offenses; Juveniles 5

Statutory Amendments 5

The Guidelines Manual 5

Chapter One: Introduction and GeneralApplication Principles 5

Determining the applicable guideline 5

Relevant conduct 5

Chapter Two: Offense Conduct 6

Drug offenses 6

Economic offenses 7

Chapter Three: Adjustments 7

Role in the offense 7

Obstruction 7

Multiple counts 7

Acceptance of responsibility 8

Chapter Four: Criminal History and Criminal Livelihood 8

Criminal history departure 8

Career offender 8

Armed career criminal 8

Repeat child-sex offender 9

Chapter Five: Determining the Sentence; Departures 9

The sentencing table 9

Departures 9

Chapter Six: Sentencing Procedures and PleaAgreements 10

Chapter Seven: Violations of Probation and Supervised Release 11

Chapter Eight: Sentencing of Organizations 11

Appendices 11

Applying the Guidelines 11

Step-by-Step Application 11

Sentencing Hearing 12

Plea Bargaining Under the Guidelines 12

Charge Bargaining 12

Relevant conduct 12

Multiple-count grouping 12

Sentencing Recommendation; Specific Sentencing Agreement 13

Acceptance of Responsibility 13

Cooperation 13

Some Traps for the Unwary 14

Pretrial Services Interview 14

New Prosecution Policies 14

Filing charges and plea bargaining 14

Sentencing litigation and appeals 15

“Fast-track” disposition 15

Waiver of Sentencing Appeal 15

Presentence Investigation Report and Probation Officer’s Interview 16

Guideline Amendments 17

Validity of Guidelines 18

Telephone Support and Online Information 18

Bibliography 18

About This Publication 19

Appendices

Sentencing Worksheets

Sentencing Table

An Introduction to Federal Guideline Sentencing

For lawyers accustomed to discretionary sentencing practice, thefederal sentencing guidelines present an alien and dangerous terrain.Because of their complexity, the sentencing guidelines can be aminefield for the defense, increasing exponentially the effort requiredto provide effective representation. To succeed in this environment,defense counsel must become fully involved in a case at the earliestpossible time. In all defense efforts—from seeking pretrial release, toinvestigation, to discovery, to plea negotiations, to the trialitself—counsel must not only weigh traditional considerations, but alsotake into account the dangers and possibilities of the sentencingguidelines. The starting point is a thorough understanding of theguideline sentencing process.

Before the advent of the sentencing guidelines, federaltrial courts enjoyed broad discretion to sentencedefendants within the statutory limit. Sentences werelargely insulated from appellate judicial review,although the time in prison could be reduced by theParole Commission. The guidelines radically changedthis system. Under guideline sentencing, the court’sdiscretion to fix a sentence is cabined within a guidelinerange that may be a small fraction of the statutory limit.The guideline range results from the combination of twonumerical values, an offense level and a criminal historycategory. The two values form the axes of a grid, calledthe sentencing table; together, they specify a sentencingrange for each case. The guideline range fixes the limitsof the sentence, unless the court determines that aninadequately considered factor warrants imposition of asentence outside the range. Guideline sentences are notparolable, but they are subject to limited review onappeal.

This paper examines the statutory basis of guidelinesentencing and reviews the structure of the guidelinesthemselves. It describes the mechanics of applying theguidelines to a typical case, discusses plea bargaining,and warns of traps for the unwary. This treatment is notexhaustive; it provides an overview to facilitate gaininga working knowledge of guideline sentencing.

The Basic Statutory System

Guideline sentencing was established by the SentencingReform Act. The Act created determinate sentences: byeliminating parole and greatly restricting good time, itensured that defendants would serve nearly all thesentence that the court imposed. The responsibility forshaping these determinate sentences was delegated tothe United States Sentencing Commission, anindependent body within the judicial branch with amandate of providing “certainty and fairness” insentencing, while avoiding “unwarranted sentencingdisparities.” 28 U.S.C. § 991(b)(1)(B). Delegation tothe Commission did not end congressional activity,however. Over the years, Congress has mandatedparticular punishment for certain offenses or sentencingfactors, specifically directed the Commission topromulgate particular guideline amendments, and, in the2003 PROTECT Act,1 drafted guidelines itself.

Imposition of Guideline Sentence; Departure. Under the guideline regime, the district court’ssentencing authority is no longer limited only by thestatutory penalty range for the substantive offense. It isalso restricted by 18 U.S.C. § 3553. This section directsthe court to consider a broad variety of factors beforeimposing sentence. § 3553(a). It does not, however,

1. Prosecutorial Remedies and Other Tools to End theExploitation of Children Today Act of 2003, Pub. L. No. 108-21, 117 Stat. 650 (Apr. 30, 2003).

An Introduction to Federal Guideline Sentencing 2

grant an equally broad range of sentencing discretion.To the contrary, the section requires the court to imposea sentence of the kind, and within the range specified, inthe applicable guideline, absent a valid ground fordeparture. § 3553(b)(1), (b)(2). In most cases, adeparture is authorized only when “the court finds thatthere exists an aggravating or mitigating circumstanceof a kind, or to a degree, not adequately taken intoconsideration by the Sentencing Commission informulating the guidelines that should result in asentence different from that described.” § 3553(b)(1);cf. United States Sentencing Guideline (U.S.S.G.)1B1.1, comment. (n.1(E)) (defining “departure”). Underthe 2003 PROTECT Act, the authority to depart is evenmore limited in specified child and sex cases.2 See§ 3553(b)(2). The reasons for the particular sentenceimposed must be stated in open court; for a departuresentence, they must also be stated specifically in thewritten judgment. § 3553(c).

Guidelines and Policy Statements. TheSentencing Reform Act authorized the Commission topromulgate both sentencing “guidelines,” 28 U.S.C.§ 994(a)(1), and “general policy statements regardingapplication of the guidelines,” § 994(a)(2). Guidelinesare binding: they must be used to determine thesentence, absent a ground for departure. See 18 U.S.C.§ 3553(a)(4)(A), (b). Policy statements are intended toexplain how guidelines are to be applied. Although theymust be considered by the court, § 3553(a)(5), they arenot usually binding. When, however, “a policystatement prohibits a district court from taking aspecified action,” failure to follow it constitutesguideline misapplication. Williams v. United States, 503U.S. 193, 201 (1992) (departure barred when basis isprohibited by policy statement); cf. 3553(b)(2)(A)(ii)(2003 PROTECT Act amendment barring downwarddeparture in child or sex case except as specificallyauthorized by guideline or policy statement).3

Guidelines and Statutory Minimums. While theguidelines control sentencing discretion under the Act,they do not supersede the sentencing limits prescribedby statute. If the guidelines call for a sentence above thestatutory maximum, or below a statutory minimum, thestatutory limit controls. U.S.S.G. §5G1.1. A number offederal statutes include minimum prison sentences thatcan trump the otherwise applicable guideline range.4

Some, like the federal “three strikes” law, mandate lifeimprisonment. 18 U.S.C. § 3559(c).

Statutory minimum sentences regularly come into playin two common types of federal prosecutions: drugcases and firearms cases.

Drug cases. The federal drug statutes provide twotypes of commonly-applied mandatory minimumsentences. One is based on the amount of drugsinvolved; for certain drugs in certain quantities, 21U.S.C. §§ 841(b) and 960(b) provide minimumsentences of 5 or 10 years’ imprisonment. The circuitsare divided over whether drug amount must be allegedin the indictment and proved to the jury to trigger thestatute’s mandatory minimum sentences.5

The other type of mandatory minimum is based oncriminal history; for defendants who have previouslybeen convicted of drug offenses, the statutes establishincreasing minimum sentences, up to life imprisonment.The prior conviction need not be alleged in theindictment or proved at trial; however, the governmentmust follow the notice and hearing procedures of 21U.S.C. § 851 to obtain a recidivism-based enhancement.

Firearms cases. Title 18 U.S.C. § 924, which setsout the penalties for most common federal firearm-possession offenses, includes two subsections thatrequire significant minimum prison sentences. One is§ 924(c), which punishes firearm possession during adrug-trafficking or violent crime. It provides graduated

2. The specified offenses include kidnapping of a minor inviolation of 18 U.S.C. § 1201, sex trafficking in violation of18 U.S.C. § 1591, the obscenity offenses in Chapter 71, thesexual abuse offenses in Chapter 109A, the sexualexploitation and child pornography offenses in Chapter 110,and transportation for illegal sex offenses in Chapter 117.

3. In addition to guidelines and policy statements, theGuidelines Manual includes Sentencing Commission“commentary.” The Commission instructs that commentaryshould be treated as the legal equivalent of a policy statement,and that failure to follow it “could constitute an incorrectapplication of the guidelines.” U.S.S.G. §1B1.7; see alsoStinson v. United States, 508 U.S. 36, 38 (1993) (holding

Commission commentary authoritative unless it violatesConstitution or federal statute, or constitutes plainlyerroneous reading of guideline).

4. The 2003 PROTECT Act added, or increased, statutoryminimum sentences for a variety of child and sex offenses.See, e.g., Pub. L. No. 108-21, §§ 103, 104, 106, 506.

5. Compare United States v. Leachman, 309 F.3d 377,381–83 (6th Cir. 2002) (drug quantity setting statutoryminimum is a sentencing factor that need not be proved tojury beyond reasonable doubt) (citing Harris v. United States,122 S. Ct. 2406 (2002)), with United States v. Velasco-Heredia, 319 F.3d 1080, 1084–86 (9th Cir. 2003) (minimumdrug sentence inapplicable without proof to jury beyondreasonable doubt) (distinguishing Harris) and United Statesv. Martinez, 234 F. Supp. 2d 80 (D. Mass. 2002) (same).

An Introduction to Federal Guideline Sentencing 3

minimum sentences, starting at 5 years and increasing toa fixed sentence of life imprisonment, depending on thetype of firearm, how it was employed, and whether thedefendant has a prior § 924(c) conviction. The statuterequires that a sentence under § 924(c) run consecu-tively to any other sentence. A § 924(c) charge is often(but not always) accompanied by a charge on theunderlying substantive offense; the guidelines providespecial rules for determining the § 924(c) sentence,based on the number of counts, the mandatoryconsecutive nature of the penalty, and the defendant’scriminal history. U.S.S.G. §2K2.4, §4B1.1(c),§5G1.2(e).

The other mandatory minimum is 18 U.S.C. § 924(e),the Armed Career Criminal Act. It provides theapplicable penalty for certain defendants convicted ofunlawful firearm possession under § 922(g). Adefendant convicted under § 922(g) normally faces amaximum term of 10 years’ imprisonment. Section924(e)(1) increases this punishment range, to aminimum of 15 years and a maximum of lifeimprisonment, if a defendant has three prior convictionsfor violent felonies or serious drug offenses. “Violentfelony” and “serious drug offense” are defined bystatute. § 924(e)(2).

Sentencing below a statutory minimum. Federallaw authorizes a sentence below a statutory minimum inonly two circumstances: when a defendant cooperates,and when he meets the requirements of a limited “safetyvalve.”

Cooperation. The court, on motion by the government,may “impose a sentence below a level established bystatute as a minimum sentence so as to reflect adefendant’s substantial assistance in the investigation orprosecution of another person who has committed anoffense.” 18 U.S.C. § 3553(e); see also FED. R. CRIM.P. 35(b) (implementing § 3553(e)). The court isrequired to follow the guidelines and policy statementsin imposing the reduced sentence. Policy statement§5K1.1, discussed in more detail below, sets out thefactors to be considered in imposing sentence on agovernment substantial-assistance motion. A §5K1.1motion will not authorize a sentence below the statutoryminimum unless the government specifically requestssuch a sentence. Melendez v. United States, 518 U.S.120 (1996).

Safety valve. Under 18 U.S.C. § 3553(f), the statutoryminimum is removed for certain drug crimes that didnot result in death or serious injury, if the court findsthat the defendant has minimal criminal history; was notviolent, armed, or a high-level participant; and providedthe government with truthful, complete information

regarding the offense of conviction and related conduct.Unlike § 3553(e), the § 3553(f) “safety valve” does notrequire a government motion, but the government mustbe allowed to make a recommendation to the court.

The Sentencing Commission has promulgated a safety-valve guideline, §5C1.2, which mirrors the require-ments of § 3553(f), but may reduce the guidelinesentence even when no statutory minimum is in play.

No Parole; Restricted Good-Time Credit. Federal prisoners do not receive parole, and they canreceive only limited credit to reward satisfactorybehavior in prison. Credit is fixed at a maximum of 54days per year for a sentence greater than one year, butless than life. 18 U.S.C. § 3624(b). The Bureau ofPrisons may reduce the time to be served by up to anadditional year if a prisoner serving imprisonment for anonviolent offense completes a substance-abusetreatment program. § 3621(e)(2).

Probation and Supervised Release. While theguideline regime does not allow parole, it doesauthorize non-incarcerative sentences of two types:probation and supervised release.

Probation. Probation may be imposed in lieu ofimprisonment in very limited circumstances. Probationis prohibited by statute (1) for Class A or Class Bfelonies (offenses carrying maximum terms of 25 yearsor more, life, or death); (2) for offenses that expresslypreclude probation; and (3) for a defendant who issentenced at the same time to imprisonment for a non-petty offense. 18 U.S.C. § 3561(a). Even whenprobation is statutorily permitted, the guidelines barstraight probation unless the bottom of the guidelinerange is zero, or the court departs downward. SeeU.S.S.G. §5B1.1(a), §5C1.1(b). (See discussion ofChapter Five below, under “The Guidelines Manual.”)

Supervised release. Unlike probation, supervisedrelease is imposed in addition to an imprisonmentsentence. Some statutes mandate imposition ofsupervised release, and the pertinent guideline requiressupervised release following any imprisonment sentencegreater than 1 year. U.S.S.G. §5D1.1(a). Except asotherwise provided, the authorized maximum termsincrease with the grade of the offense, from 1 year, to 3years, to 5 years. 18 U.S.C. § 3583(b).6 Supervisedrelease begins on the day the defendant is released fromimprisonment and runs concurrently with any other term

6. The 2003 PROTECT Act increased the maximumrelease term to life for specified child and sex offenses. Pub.L. No. 108-21, § 101, codified as 18 U.S.C § 3583(k).

An Introduction to Federal Guideline Sentencing 4

of release, probation, or parole. § 3624(e); UnitedStates v. Johnson, 529 U.S. 53 (2000).

Conditions and revocation. The court hasdiscretion in imposing some conditions of probation andsupervised release. However, federal law makes anumber of conditions mandatory, including that thedefendant submit to DNA collection in some cases, andto drug testing in all cases. 18 U.S.C. §§ 3563(a)(5),(a)(9), 3583(d). The court may ameliorate or suspendthe drug-testing condition if the defendant presents alow risk of future substance abuse.

Probation or supervised release may be revoked uponviolation of any condition. Revocation is mandatory forpossessing a firearm or a controlled substance, refusingto comply with drug-testing conditions, or testingpositive for an illegal controlled substance more thanthree times over the course of a year. 18 U.S.C.§§ 3565(b), 3583(g). In accordance with SentencingCommission guidelines, the court must considerwhether the availability of treatment programs, or thedefendant’s participation in them, warrants an exceptionfrom mandatory revocation for failing a drug test.§§ 3563(e), 3583(d).

Upon revocation of probation, the court may imposeany sentence under the general sentencing provisionsavailable in 18 U.S.C. chapter 227, subchapter A.§ 3565(a)(2). Upon revocation of supervised release,the court may imprison the defendant up to themaximum terms listed in § 3583(e)(3), even if the listedsentence is longer than the term of supervised releaseoriginally imposed. If the court imposes less than themaximum prison term on revocation of supervisedrelease, it may impose another supervised release termto begin after imprisonment. § 3583(h).

The Sentencing Commission has promulgated non-binding policy statements for determining the proprietyof revocation and the sentence to be imposed. U.S.S.G.Ch.7. (See discussion of Chapter Seven below, under“The Guidelines Manual.”)

Fines and Restitution. Federal sentencing lawauthorizes both fines and restitution orders. In general,the maximum fine for an individual convicted of a Title18 offense is $250,000 for a felony, $100,000 for aClass A misdemeanor, and $5,000 for any lesseroffense. 18 U.S.C. § 3571(b). A higher maximum finemay be specified in the law setting forth the offense,§ 3571(b)(1), and an alternative fine based on gain orloss is possible, § 3571(d). Interest accrues on any fineof more than $2,500 that is not paid in full before thefifteenth day after judgment, and additional penaltiesapply to a delinquent or defaulted fine. § 3612(f)–(g).Restitution may be ordered for any Title 18 crime and

most common drug offenses. 18 U.S.C. § 3663(a)(1)(A). It is mandatory for crimes of violence,property crimes, and product tampering, § 3663A(c),and may be required by the statute setting out thesubstantive offense. Restitution and fines are generallyenforceable in the same manner, § 3664(m)(1)(A)(i),although interest does not automatically accrue onrestitution. A defendant who knowingly fails to pay adelinquent fine or restitution is subject to resentencing,and a defendant who willfully fails to pay may beprosecuted for criminal default. §§ 3614, 3615.

While the guidelines ordinarily make both fines andrestitution mandatory, a defendant’s inability to pay,now and in the future, may support nominal restitutionpayments. U.S.S.G. §5E1.1. It may also support a lesserfine, or alternatives such as community service. §5E1.2.

Review of a Sentence. Under 18 U.S.C. § 3742,either the defendant or the government may appeal asentence on the ground that it was (1) “imposed inviolation of law”; (2) “imposed as a result of anincorrect application of the sentencing guidelines”; or(3) “imposed for an offense for which there is nosentencing guideline and is plainly unreasonable.”§ 3742(a)–(b). Additionally, the defendant may appeal adeparture above the guideline range, and thegovernment may appeal a departure below it.§ 3742(a)(3), (b)(3). These appeal rights are limited if,pursuant to Federal Rule of Criminal Procedure11(c)(1)(C), the parties enter into a specific sentenceagreement. § 3742(c). They may also be limited by anappeal waiver of the type mentioned in Rule11(b)(1)(N). (See discussion of Rule 11(c)(1)(C) below,under “Plea Bargaining Under the Guidelines,” anddiscussion of appeal waivers below, under “Some Trapsfor the Unwary.”)

The 2003 PROTECT Act imposed special rules onappeal from a departure sentence, and on remand in allcases. In departure appeals, the reviewing court, whilegenerally required to give “due deference to the districtcourt’s application of the guidelines to the facts,” mustdetermine de novo (1) whether the district court madewritten findings as required by § 3553(c), and (2)whether the departure advances the objectives ofsentencing set out in § 3553(a)(2), complies with thelimitations on departure in § 3553(b), and is justified bythe facts of the case. 18 U.S.C. § 3742(e). On remandfor resentencing, the district court may not impose adeparture sentence except upon a ground that (1) “wasspecifically and affirmatively included in the writtenstatement of reasons” in connection with thedefendant’s previous sentencing, and (2) “was held bythe court of appeals, in remanding the case, to be apermissible ground of departure.” § 3742(g)(2).

An Introduction to Federal Guideline Sentencing 5

Sentence Correction and Reduction. Federal lawseverely limits the sentencing court’s authority tocorrect or reduce a sentence after it is imposed. UnderFederal Rule of Criminal Procedure 35(a) the court maycorrect “arithmetical, technical, or other clear error” inthe sentence within 7 days after sentencing.

Rule 35(b) authorizes the court to reduce the sentenceon motion of the government, to reflect a defendant’spost-sentence assistance in the investigation orprosecution of another person who has committed anoffense. With limited exceptions, the motion must bemade within one year after sentencing.

In two other circumstances, reduction is authorizedunder 18 U.S.C. § 3582(c): (1) on motion of theDirector of the Bureau of Prisons, if the court finds that“extraordinary and compelling reasons warrant such areduction”; and (2) for a defendant whose sentencingrange was later lowered by a guideline amendmentdesignated as retroactive by the SentencingCommission. (See discussion of guideline amendmentsbelow, under “Some Traps for the Unwary.”)

Petty Offenses; Juveniles. The sentencingguidelines do not apply to petty offenses (offensescarrying a maximum term of six months or less) or tojuvenile delinquency cases. U.S.S.G. §1B1.9, §1B1.12,p.s. But because the Juvenile Delinquency Act barscommitting a juvenile to official detention for longerthan a similarly-situated adult, the sentence imposed ona juvenile delinquent may not exceed that applicable toan adult under the guidelines, absent a ground fordeparture. See 18 U.S.C. § 5037(c)(1)(B); U.S.S.G.§1B1.12, p.s.; United States v. R.L.C., 503 U.S. 291(1992).

Statutory Amendments. Although the most notablerevisions to the Sentencing Reform Act’s provisionswere made in 2003, the Act has been amended onnumerous occasions in the 20 years since it became law.The Ex Post Facto Clause may bar the retrospectiveapplication of any harmful substantive amendment ofstatutory sentencing provisions. See Johnson v. UnitedStates, 529 U.S. 694, 699 –701 (2000) (discussingeffect of Ex Post Facto Clause on Act’s amendedprovisions regarding supervised-release revocation); cf.Lynce v. Mathis, 519 U.S. 433 (1997) (retroactiveamendment of state sentencing law awarding reducedjail credits violated Ex Post Facto).7

The Guidelines Manual

The Guidelines Manual contains all the guidelines,policy statements, and commentary promulgated by theSentencing Commission to determine the sentence to beimposed in a federal case. It comprises eight chaptersand three appendices. To undertake the defense of aguidelines case, counsel must have a thoroughunderstanding of Chapters One, Three, Four, Five, andSix, as well as all sections of Chapter Two, OffenseConduct, that may arguably apply to the case. Indefending a revocation of probation or supervisedrelease, counsel must study the policy statements inChapter Seven. If the defendant is an organization,Chapter Eight, Sentencing of Organizations, applies.

Chapter One: Introduction and GeneralApplication Principles. Chapter One provides ahistorical introduction to the guidelines and importantdefinitions that apply throughout the Manual. It alsosets the rules for determining the applicable guidelineand explains the all-important concept of “relevantconduct.”

Determining the applicable guideline. Theapplicable guideline section is usually determined byoffense of conviction—the conduct “charged in thecount of the indictment or information of which thedefendant was convicted.” U.S.S.G. §1B1.2(a). (Seefurther discussion of offense guidelines below, under“Chapter Two: Offense Conduct”). If two or moreguideline sections appear equally applicable, the courtmust use the section that results in the higher offenselevel. §1B1.1, comment. (n.5). Additionally, if a pleaagreement “contain[s] a stipulation that specificallyestablishes a more serious offense,” the court must usethe guideline applicable to the more serious stipulatedoffense. U.S.S.G. §1B1.2(a). For this exception toapply, the stipulation must establish every element ofthe more serious offense, Braxton v. United States, 500U.S. 344 (1991), and the parties must “explicitly agreethat the factual statement or stipulation is a stipulationfor such purposes.” §1B1.2, comment. (n.1).

Relevant conduct. Although the initial choice ofguideline section is tied to the offense of conviction,most important guideline determinations are made

7. While substantive amendments may not be appliedretroactively, amendments that are merely “procedural”present no Ex Post Facto concern. The line distinguishing“procedural” and “substantive” amendments to the Act can bedifficult to draw. Compare United States v. Mallon, 345 F.3d

943, 946–47 (7th Cir. 2003) (new standard of review fordepartures in 2003 PROTECT Act qualifies as a proceduralchange, applicable to pending cases without offending ex postfacto prohibition), with United States v. Coates, 295 F. Supp.2d 11, 17 (D.D.C. 2003) (PROTECT Act’s amendments to§ 3742(g) limiting departure on remand “would disadvantagethe defendant and therefore . . . violate the ex post factoclause”).

An Introduction to Federal Guideline Sentencing 6

according to the much broader concept of relevantconduct. The Commission developed the concept aspart of its effort to create a modified “real offense”sentencing system—a system under which the courtpunishes the defendant based on its determination of hisactual conduct, not the more limited conduct of whichhe may have been charged or convicted. See U.S.S.G.§1A1.1, editorial note, Pt.A(4)(a).

The relevant conduct guideline requires sentencingbased on “all acts and omissions committed, aided,abetted, counseled, commanded, induced, procured, orwillfully caused by the defendant . . . that occurredduring the commission of the offense of conviction, inpreparation for that offense, or in the course ofattempting to avoid detection or responsibility for thatoffense.” §1B1.3(a)(1)(A). When others were involved,the defendant’s guideline range will also reflect “allreasonably foreseeable acts and omissions of others infurtherance of the jointly undertaken criminal activity,”whether or not a conspiracy was charged. §1B1.3(a)(1)(B).8 For many offenses, such as drug crimes,relevant conduct extends even further, to “acts andomissions” that were not part of the offense ofconviction, but “were part of the same course ofconduct or common scheme or plan as the offense ofconviction.” §1B1.3(a)(2). Relevant conduct need notbe included in formal charges. §1B1.3, comment.(backg’d). It can include conduct underlying dismissedor even acquitted counts, provided the sentencing judgefinds the conduct was reliably established by apreponderance of the evidence. United States v. Watts,519 U.S. 148 (1997) (per curiam).

While relevant conduct affects every stage ofrepresentation, it is especially important in the contextof plea bargaining. (See discussion of relevant conductbelow, under “Plea Bargaining Under the Guidelines.”)

Chapter Two: Offense Conduct. Offense conductforms the vertical axis of the sentencing table. (Thetable is included as an appendix to this paper.) Offenseconduct guidelines are set out in Chapter Two. Thechapter has 18 parts; each part has multiple guidelines,linked to particular statutory offenses. A singleguideline may cover one statutory offense, or many.When no guideline has been promulgated for anoffense, §2X5.1 applies. Part X also provides theguidelines for certain conspiracies, attempts, and

solicitations, as well as aiding and abetting, accessoryafter the fact, and misprision of a felony.

Each guideline provides one or more base offense levelsfor a particular offense. A guideline may also havespecific offense characteristics that adjust the base levelup or down, and it may cross-reference other guidelinesthat invoke a higher offense level. The court willnormally look to relevant conduct in choosing amongmultiple base offense levels, determining offensecharacteristics, and applying cross-references.

For some offenses, Chapter Two includes commentaryencouraging departures from the prescribed offenselevel. See, e.g., §2B1.1, comment. (n.18) (encouragingupward or downward departures for some economicoffenses); §2D1.1, comment. (n.14) (downwarddeparture in certain reverse-sting drug cases); id. (n.16)(upward departure for very large scale drug offenses).

Drug offenses. In drug and drug-conspiracy cases,the offense level is generally determined by drug typeand quantity, as set out in the drug quantity table inguideline §2D1.1(c). The table includes a very widerange of offense levels, from a low of 6 to a high of 38;for defendants who played a mitigating role in theoffense, however, the offense level is capped at 30.U.S.S.G. §2D1.1(a)(3). (See discussion of role in theoffense below, under “Chapter Three: Adjustments.”)

Unless otherwise specified, the applicable offense levelis determined from “the entire weight of any mixture orsubstance containing a detectable amount of thecontrolled substance.” U.S.S.G. §2D1.1(c) (drugquantity table) note *(A). “Mixture or substance” doesnot include “materials that must be separated from thecontrolled substance” before it can be used. §2D1.1,comment. (n.1). When no drugs are seized or “theamount seized does not reflect the scale of the offense,”the court must “approximate the quantity.” Id.comment. (n.12). In conspiracy cases, and other casesinvolving agreements to sell a controlled substance, theagreed-upon quantity is used to determine the offenselevel, unless the completed transaction establishes adifferent quantity, or the defendant demonstrates that hedid not intend to produce the negotiated amount, or wasnot reasonably capable of producing it. Id. With theexception of methamphetamine, amphetamine, PCP, andoxycodone, drug purity is not a factor in determiningthe offense level. However, “unusually high purity maywarrant an upward departure.” Id. comment. (n.9).

The drug guidelines include provisions that raise theoffense level for specific aggravating factors, such asdeath, serious bodily injury, or possession of a firearm.Guideline §2D1.1(b)(6) provides a 2-level reduction ifthe defendant meets the criteria of the safety-valve

8. Relevant conduct, however, does not include theconduct of conspiracy members before the defendant joinedthe conspiracy, even if the defendant knows of that conduct.§1B1.3, comment. (n.2).

An Introduction to Federal Guideline Sentencing 7

guideline, §5C1.2. If the defendant is subject to astatutory minimum of 5 years, however, the guidelineestablishes a minimum offense level of 17. §5C1.2(b).

Economic offenses. For many economic offenses(including theft, fraud, and property destruction) theoffense level is determined under §2B1.1. The guidelineis similar in structure to the drug-offense guideline, inthat the offense level is generally driven by anamount—the amount of loss.9

The guideline broadly defines “loss” as the greater ofactual loss or the loss the defendant intended, even ifthe intended loss was “impossible or unlikely to occur.”§2B1.1, comment. (n.3(A)(ii)). In addition to its broaddefinition of loss, the guideline includes many specificoffense adjustments that can increase the offense level.

Chapter Three: Adjustments. Chapter Three setsout general offense level adjustments that apply inaddition to the offense-specific adjustments of ChapterTwo. Some of these adjustments relate to the offenseconduct: victim-related adjustments, adjustments forhate crimes or terrorism, adjustments for thedefendant’s role in the offense, and adjustments for thedefendant’s use of position, of special skills, of minors,and (in certain cases) of body armor. Other ChapterThree adjustments relate to post-offense conduct,including flight from authorities and obstruction ofjustice, as well as acceptance of responsibility for theoffense. Chapter Three also provides the rules fordetermining the guideline range when the defendant isconvicted of multiple counts.

Role in the offense. In any offense committed bymore than one participant, a defendant may receive anupward adjustment for aggravating role or a downwardadjustment for mitigating role. U.S.S.G. Ch.3, Pt.B,intro. comment. Aggravating-role adjustments rangefrom 2 to 4 levels, depending on the defendant’ssupervisory status and the number of participants in theoffense. §3B1.1. Mitigating-role adjustments likewiserange from 2 to 4 levels, depending on whether thedefendant’s role is characterized as minor, minimal, orfalling in between. §3B1.2. The determination of adefendant’s role is made on the basis of all relevantconduct, not just the offense of conviction. Accordingly,even when the defendant is the only person charged inthe indictment, he may face an upward adjustment (or

seek a downward adjustment) if more than one personparticipated. However, the fact that a defendant is notaccountable for the relevant conduct of others does notdisqualify him from receiving a reduced offense level.§3B1.2, comment. (n.3(A)).

Obstruction. A defendant who willfully obstructedthe administration of justice will receive a 2-levelupward adjustment. U.S.S.G. §3C1.1. Obstruction ofjustice can occur during the investigation, prosecution,or sentencing of the offense of conviction, of relevantconduct, or of a closely related offense. Conductwarranting the adjustment includes committing orsuborning perjury,10 destroying or concealing materialevidence, or “providing materially false information to aprobation officer in respect to a presentence or otherinvestigation for the court.” §3C1.1, comment. (n.4).Some uncooperative behavior or misleadinginformation, such as lying about drug use while onpretrial release, ordinarily does not justify an upwardadjustment. Id. comment. (n.5). While fleeing fromarrest does not ordinarily qualify as obstruction, id.,reckless endangerment of another during flight willsupport a separate upward adjustment under §3C1.2.

Multiple counts. When a defendant has beenconvicted of more than one count, the multiple-countguidelines of Chapter Three, Part D must be applied.These guidelines produce a single offense level bygrouping counts together, assigning an offense level tothe group, and, if there is more than one group,combining the group offense levels together.

The guidelines group counts together when they involve“substantially the same harm,” §3D1.2, unless a statuterequires imposition of a consecutive sentence.§3D1.1(b); see also § 5G1.2 (providing rules forsentencing on multiple counts, and for imposingstatutorily-required consecutive sentences). If theoffense level is based on aggregate harm (such as theamount of theft losses or the weight of controlledsubstances), the level for the group is determined by theaggregate for all the counts combined. §3D1.3(b).Otherwise, the offense level for the group is the levelfor the most serious offense. §3D1.3(a). When there ismore than one group of counts, §3D1.4 usually requiresan increase in the offense level to account for them. Thecombined offense level can be up to 5 levels higher thanthe level of any one group. Even when a defendant

9. An exception to this general rule was created by a recentamendment to the guideline, which increases the base offenselevel by 1 regardless of the amount of loss, if the offense ofconviction has a maximum imprisonment penalty of 20 ormore years. See U.S.S.G. App. C, amend. 653 (Nov. 1, 2003)(amending §2B1.1(a)).

10. To support an obstruction adjustment based on perjuryat trial, the court must “make independent findings necessaryto establish a willful impediment to or obstruction of justice,”or an attempt to do so, within the meaning of the federalperjury statute. United States v. Dunnigan, 507 U.S. 87, 95(1993).

An Introduction to Federal Guideline Sentencing 8

pleads guilty to a single count, grouping may increasethe offense level if the plea agreement stipulates to anadditional offense, or if the conviction is for conspiracyto commit more than one offense. §1B1.2(c)–(d) &comment. (n.4). (See discussion of grouping below,under “Plea Bargaining Under the Guidelines.”)

Acceptance of responsibility. Chapter Three, PartE provides a downward adjustment of 2 or, in certaincases, 3 offense levels for acceptance of responsibilityby the defendant. To qualify for the 2-level reduction, adefendant must “clearly demonstrate[ ] acceptance ofresponsibility for his offense.” §3E1.1(a). Pleadingguilty provides “significant evidence” of acceptance ofresponsibility, but does not win the adjustment as amatter of right. §3E1.1, comment. (n.3). On the otherhand, a defendant is not “automatically preclude[d]”from receiving the adjustment by going to trial. Id.comment. (n.2). A defendant who received an upwardadjustment for obstruction under §3C1.1, however, isnot ordinarily entitled to a downward adjustment foracceptance of responsibility. See §3E1.1, comment.(n.4).

The 2003 PROTECT Act tightened the requirements forthe 3-level reduction under §3E1.1. It also requires agovernment motion before the additional level can begranted by the court.11 (The adjustment for acceptanceis discussed more fully below, under “Plea BargainingUnder the Guidelines.”)

Chapter Four: Criminal History and CriminalLivelihood. The defendant’s criminal history formsthe horizontal axis of the sentencing table. The tableincludes six criminal history categories; the guidelinesin Chapter Four, Part A translate the defendant’s priorrecord into one of these categories by assigning pointsfor qualifying prior convictions and juvenileadjudications. The number of points scored for a priorconviction is based primarily on length of the sentenceimposed. U.S.S.G. §4A1.1. There is also a recencyfactor: points are added for committing the instantoffense within 2 years after release from imprisonmentfor certain prior convictions, or while under any form ofcriminal justice sentence. §4A1.1(d), (e).

No points are added if a prior conviction was sustainedfor conduct that was part of the instant offense. See§4A1.2(a)(1). Other criminal convictions or juvenileadjudications are not counted because of staleness, theirminor nature, or other reasons, such as constitutional

invalidity. §4A1.2(c)–(j).12 And sentences imposed in“related” cases are treated as one sentence for thecriminal history calculation. §4A1.2(a)(2) & comment.(n.3).

Criminal history departure. An important policystatement authorizes departures from the guidelinerange when a defendant’s criminal history category doesnot adequately reflect the seriousness of past criminalconduct or the likelihood that the defendant will commitother crimes. U.S.S.G. §4A1.3, p.s. This policystatement may support either an upward or a downwarddeparture. It does not, however, authorize a departurebelow criminal history category I or below the statutoryminimum. §4A1.3(b)(2).

A 2003 amendment to the policy statement prohibits orlimits downward departures for defendants who fall inone of the three classes of repeat offenders: careeroffenders, armed career criminals, and repeat child-sexoffenders. For these classes, Chapter Four, Part Brequires significant enhancements to both criminalhistory and offense level. Each is described below.

Career offender. The“career offender” guideline,§4B1.1, applies to a defendant convicted of a thirdoffense defined as either a crime of violence or acontrolled substance offense. In every case, guideline§4B1.1 places the defendant in the highest criminalhistory category, VI. The guideline simultaneouslyincreases the offense level to produce a guideline rangeapproximating the statutory maximum for the offense ofconviction. Chapter Four’s definitions and instructionsfor computing criminal history apply in determiningwhether a defendant qualifies as a career offender,§4B1.2, comment. (n.3); therefore, questions ofremoteness, invalidity, or whether prior convictionswere “related” may be of utmost importance.

Armed career criminal. Guideline §4B1.4 appliesto a person convicted under the Armed Career CriminalAct, 18 U.S.C. § 924(e); it frequently produces aguideline range above that statute’s mandatoryminimum 15-year term. Like the career offenderguideline, the armed career criminal guideline operateson both axes of the sentencing table. Unlike the careeroffender guideline, however, §4B1.4 is not limited byguideline §4A1.2’s rules for counting prior sentences.§4B1.4, comment. (n.1). And unlike a career offender,an armed career criminal is not automatically placed incriminal history category VI; nevertheless, an armed

11. The PROTECT Act was enacted on April 30, 2003. Onwhether its amendment to guideline §3E1.1 should applyretroactively, see infra note 24 and accompanying text.

12. The guidelines, however, “do not confer upon thedefendant any right to attack collaterally a prior conviction orsentence beyond any such rights otherwise recognized inlaw.” §4A1.2, comment. (n.6).

An Introduction to Federal Guideline Sentencing 9

career criminal cannot receive a score below categoryIV. §4B1.4(c).

Repeat child-sex offender. For repeat child-sexoffenders, guideline §4B1.5 works in concert with thecareer offender guideline to ensure long imprisonmentterms. The guideline sets the minimum criminal historycategory at V, and it reaches more defendants than§4B1.2, applying career offender offense levels to adefendant even if he has only one prior child-sexoffense. §4B1.5(a)(1). Even a defendant with no priorchild-sex conviction may be subject to a significantoffense level increase, if he “engaged in a pattern ofactivity involving prohibited sexual conduct.”§4B1.5(b).

While §4B1.5 covers a broad range of child-sexoffenses, it does not apply to trafficking in, receipt of,or possession of child pornography. §4B1.5, comment.(n.2).

Chapter Five: Determining the Sentence;Departures. Chapter Five provides detailed rules forimposing imprisonment, probation, fines, restitution,and supervised release. It sets out the sentencing tableof applicable guideline imprisonment ranges, and thepolicy statements controlling the propriety of adeparture from the range.

The sentencing table. The sentencing table in PartA is a grid of sentencing ranges produced by theintersection of offense levels and criminal historycategories. Most ranges are expressed in months,although some allow for, or even require, lifeimprisonment. The sentencing table’s grid is dividedinto four “zones.” These zones determine a defendant’seligibility for “straight” probation, or for a “split”sentence (probation or supervised release conditionedupon some confinement). Straight probation is availableif a defendant’s sentencing range is in Zone A (all theranges in Zone A are 0 to 6 months). §5B1.1(a)(1),§5C1.1(b). A split sentence is available if thesentencing range is in Zone B or C. A defendant inZone B can be sentenced to less than the bottom of theimprisonment range by substituting a term of probationor supervised release that requires intermittentconfinement, community confinement, or homedetention. §5B1.1(a)(2), §5C1.1(c). For sentencingranges in Zone C, at least half the minimum guidelineterm must be served in prison. §5C1.1(d). If adefendant’s sentencing range is in Zone D, theminimum term must be served in prison. §5C1.1(f).

Guideline §5G1.1 explains the interplay between theguideline ranges in the sentencing table and the penaltyranges set by statute. It allows sentence to be imposed atany point within the guideline range, so long as the

sentence is not outside statutory limits. See §5G1.1(c).When the entire range is above the statutory maximum,the maximum becomes the guideline sentence.§5G1.1(a). Similarly, the statutory minimum is theguideline sentence if it is greater than any sentence inthe guideline range. §5G1.1(b). Guidelines §5G1.2 and§5G1.3 provide rules for imposing sentence on multiplecounts, and for a defendant subject to an undischargedprison term. These provisions can require partially orfully consecutive sentences in certain circumstances.

Departures. Together, Parts H and K set out theCommission’s policies on the factors that may beconsidered in departing from, or fixing a sentencewithin, the guideline range. These parts weresubstantially rewritten in response to the 2003PROTECT Act; the new provisions should be carefullyreviewed even by lawyers familiar with past guidelinepractice.

Part H sets out policy statements on the relevance tosentencing of certain offender characteristics, includingage, education and vocational skills, employmentrecord, family ties and responsibilities, and communityties. The Commission’s policy is that thesecharacteristics are “not ordinarily relevant” indetermining the propriety of a departure. U.S.S.G. Ch.5,Pt.H, intro. comment. The operative word is“ordinarily”—in exceptional cases, one or more ofthose characteristics may support a departure. Even inthe ordinary case, those characteristics may be relevantto sentencing decisions other than departure, such aswhere to place the sentence within the guideline range.

Certain characteristics listed in Part H can never supporta departure, including role in the offense (§5H1.7, p.s.),drug or alcohol dependence and gambling addiction(§5H1.4, p.s.), and lack of guidance as a youth(§5H1.12, p.s.). While family and community ties isusually a potential departure ground in extraordinarycases, it can never be a basis for downward departure ina child or sex offense. §5H1.6, p.s. Other characteristicsare never relevant to the determination of any sentence:race, sex, national origin, creed, religion, and socio-economic status. §5H1.10, p.s.

Part K provides policy statements on departures. Itauthorizes a downward departure—on the government’smotion—if the defendant “has provided substantialassistance in the investigation or prosecution of anotherperson who has committed an offense.” §5K1.1, p.s.; cf.18 U.S.C. § 3553(b)(2)(A)(iii) (2003 PROTECT Actamendment allowing substantial assistance departures inchild and sex cases). (Cooperation is discussed below,under “Plea Bargaining Under the Guidelines.”)

An Introduction to Federal Guideline Sentencing 10

For a departure on a ground other than cooperation,policy statement §5K2.0 states general principles, andprovides special rules for downward departure in childand sex offenses. Generally, a departure may bewarranted when a case presents a circumstance that theCommission has identified as a potential departureground; it may also be warranted in an “exceptional”case, based on a circumstance the Commission has notidentified, on one it considers “not ordinarily relevant”under Part H, or on one that, although taken intoaccount in determining the guideline range, is present inan exceptionally great (or small) degree. §5K2.0(a)(2),(3), (4). A circumstance that would not alone make acase “exceptional” may do so in combination with othercircumstances, and thus justify a departure, but only ifeach circumstance is identified in the GuidelinesManual as a permissible departure ground. §5K2.0(c).

Like Part H, the policy statements of Part 5K prohibitcertain circumstances as departure grounds, including adefendant’s financial difficulties and post-offenserehabilitative efforts. §5K2.0(d), §5K2.12, §5K2.19.Other circumstances are identified as potential groundsfor departure, usually upward. Six listed circumstancesmay support a downward departure, however: (1)victim’s wrongful provocation, (2) commission of acrime to avoid a perceived greater harm, (3) coercionand duress, (4) diminished capacity, (5) voluntarydisclosure of the offense, and (6) aberrant behavior. Forchild and sex offenses, the grounds supportingdownward departure are far more limited. See§5K2.0(b), §5K2.22, p.s.

For exceptionally busy districts, the PROTECT Actamendments also added a specific provision allowingfor departures of up to 4 levels pursuant to aGovernment-authorized early-disposition program.§5K3.1, p.s., ; cf. Pub. L. No. 108-21, § 401(m)(2)(B)(directing Commission to provide for early-dispositiondepartures).

Chapter Six: Sentencing Procedures and PleaAgreements. Chapter Six sets forth procedures fordetermining facts relevant to sentencing. It providespolicy statements for preparing and disclosing thepresentence report, resolving disputed sentencingissues, and considering plea agreements andstipulations.

In resolving factual disputes, the court is not bound bythe rules of evidence, but may consider any informationthat “has sufficient indicia of reliability to support itsprobable accuracy.” U.S.S.G. §6A1.3(a), p.s. TheCommission suggests that the standard of proof forsentencing factors is a preponderance of the evidence,

id. comment. para. 4,13 and the burden of ultimatepersuasion rests on the party seeking to adjust thesentence—upward or downward. While “[w]rittenstatements of counsel or affidavits of witnesses” mayoften provide an adequate basis for sentencing findings,“[a]n evidentiary hearing may sometimes be the onlyreliable way to resolve disputed issues.” §6A1.3, p.s.,comment. para. 2.

If the court intends to depart from the guideline rangeon a ground not identified in the presentence report or apre-hearing submission, Chapter Six requires that itmust “provide reasonable notice that it is contemplatingsuch ruling, specifically identifying the grounds for thedeparture.” U.S.S.G. §6A1.2, p.s., comment. (n.1); seealso FED. R. CRIM. P. 32(h) (same)

Chapter Six, Part B sets out the Guideline Manual’sprocedures and standards for accepting pleaagreements. The standards vary with the type ofagreement. See FED. R. CRIM. P. 11(c)(1). While theparties may stipulate to facts as part of a pleaagreement, “[t]he court is not bound by the stipulation,but may with the aid of the presentence report,determine the facts relevant to sentencing.” §6B1.4(d),p.s. Before entry of a dispositive plea, prosecutors areencouraged, but not required, to disclose to thedefendant “the facts and circumstances of the offenseand offender characteristics, then known to theprosecuting attorney, that are relevant to the applicationof the sentencing guidelines.” §6B1.2, p.s., comment.para. 5. (Plea agreements are discussed below, under“Plea Bargaining Under the Guidelines.”)

Chapter Seven: Violations of Probation andSupervised Release. Chapter Seven sets out policystatements applicable to revocation of probation andsupervised release. The policy statements classify

13. Certain guidelines may require a higher standard ofproof in specific contexts. See, e.g., U.S.S.G. §3A1.1(a) (toincrease offense level for hate-crime motivation, court mustfind supporting facts beyond a reasonable doubt). Dueprocess may likewise require a higher standard for certainguideline applications, and departures. See, e.g., United Statesv. Kikumura, 918 F.2d 1084, 1103 (3d Cir. 1990) (when thecourt “departs upwards dramatically,” due process requiresthat “factual findings must be supported by clear andconvincing evidence, and hearsay statements cannot beconsidered unless other evidence indicates that they arereasonably trustworthy”) (footnote omitted); United States v.Jordan, 256 F.3d 922, 927–30 (9th Cir. 2001) (applying six-factor test to determine whether guideline application has“disproportionate effect” that requires application of clear andconvincing evidence standard); cf. United States v. Watts, 519U.S. 148, 156–57 & n.2 (1997) (noting possibleconstitutional challenge to preponderance standard forrelevant conduct).

An Introduction to Federal Guideline Sentencing 11

violations of conditions, guide probation officers inreporting those violations to the court, and proposedispositions for them. For violations leading torevocation, policy statement §7B1.4 provides animprisonment table similar in format to the sentencingtable. Unlike the ranges in the sentencing table, theranges in the revocation table are not binding, but thecourt is required by statute to consider them. See 18U.S.C. § 3553(a)(4)(B).

Chapter Eight: Sentencing of Organizations. When a convicted defendant is an organization ratherthan an individual, sentencing is governed by ChapterEight.

Appendices. The official Guidelines Manualincludes three appendices. Appendix A is an indexspecifying the offense conduct guideline or guidelinesthat apply to a conviction under a particular statute.Appendix B sets forth selected sentencing statutes. Thetwo-volume Appendix C comprises the amendments tothe Guidelines Manual since its initial publication in1987.

Applying the Guidelines

Step-by-Step Application. Step-by-stepinstructions for using the guidelines are prescribed inguideline §1B1.1. Worksheets implementing these stepshave been published by the Commission; theworksheets for individuals are appended to this paper.The following description follows the worksheets,which may assist newcomers to the guidelines.

• Prepare a separate Worksheet A (Offense Level) foreach count of conviction. Determine the applicableguideline by reference to guideline §1B1.2 andAppendix A – Statutory Index. A conviction forconspiracy to commit more than one offense is treatedas if the defendant were convicted on a separateconspiracy count for each offense. §1B1.2(d). If thedefendant has entered into a plea agreement stipulatingto having committed an additional offense, thestipulated offense must be treated as an additional countof conviction. §1B1.2(c).

• From the offense conduct guideline in Chapter Two,determine the base offense level and any applicablespecific offense characteristics. Offense conduct isusually determined by reference to the relevant-conductguideline, which frequently includes conduct fromdismissed or acquitted counts, or even unchargedoffenses. See §1B1.3, comment. (backg’d). Do notoverlook any cross-reference to another offenseguideline.

• Make all applicable adjustments from Chapter Three,Parts A, B, and C: victim-related adjustments, role inthe offense, and obstruction. Unless otherwise specified,these adjustments are based upon all relevant conduct asdefined in guideline §1B1.3(a).

• If more than one count is being scored, use WorksheetB to apply Chapter Three, Part D (Multiple Counts), togroup the counts and adjust the offense level if required.

• Consider the anticipated adjustment, if any, for accep-tance of responsibility under Chapter Three, Part E.

• Referring to Chapter Four, Part A, use Worksheet Cto determine the criminal history category. Take care toexamine any issues of exclusion, staleness, relatedness,or invalidity of prior convictions.

• Proceeding to Worksheet D, check carefully whetherthe terrorism guideline §3A1.4, the career offenderguideline, §4B1.1, or the criminal livelihood guideline,§4B1.3, applies. In an armed career criminal case, applyguideline §4B1.4. In a case of sex offense against aminor, check whether guideline §4B1.5 applies.Remember that these guidelines can dramaticallyincrease the applicable range.

• Using the total offense level and the criminal historycategory, determine the applicable guideline range fromthe sentencing table, Chapter Five, Part A. From thisrange, determine all applicable sentencing requirementsand options from Chapter Five, Parts B through G. Foreach count of conviction, consider whether the statutorymaximum or minimum sentence affects the guidelinerange. §5G1.1. In a drug case, consider whether thedefendant qualifies for relief from a statutory minimumunder the “safety valve” guideline, §5C1.2. If thedefendant faces multiple counts, or is subject to anundischarged term of imprisonment, consider the effectof §5G1.2 and §5G1.3.

• Consider any possible grounds for departure, upwardor downward. Take note of any specific suggestions fordeparture contained in commentary to the offenseconduct guidelines in Chapter Two. Review the totalcriminal history—not just countable convictions—forpossible departure in light of policy statement §4A1.3,Adequacy of Criminal History Category. Study thepolicy statements in Chapter Five, Part H (SpecificOffender Characteristics); and in Chapter Five, Part K(Departures). Keep in mind that, except in child and sexoffenses, departure grounds are not limited to thosediscussed by the Commission, and identified groundsnot justifying departure individually may combine tosupport a departure in a particular case. See§5K2.0(a)(2)(B), p.s.; §5K2.0(c), p.s. A major part ofsentencing advocacy on behalf of the defendant is

An Introduction to Federal Guideline Sentencing 12

resisting an upward departure and seeking a downwarddeparture.

Sentencing Hearing. Preparing for the sentencinghearing requires familiarity with the procedures fordisclosing the presentence report and objecting to it,and for resolving disputes both before and during thehearing. These procedures are set out in Federal Rule ofCriminal Procedure 32 and Chapter Six, Part A of theGuidelines Manual, and they may also be governed bylocal court rules or practices. At the sentencing hearing,counsel must scrupulously observe traditional rules onpreservation of error to protect issues for possibleappeal under 18 U.S.C. § 3742.

Plea Bargaining Under theGuidelines

Federal Rule of Criminal Procedure 11(c)(1) and policystatement §6B1.2 describe three forms of pleaagreement: charge bargain, sentence recommendation,and specific, agreed sentence.14 While other forms ofplea agreement are possible, these are the mostcommon, and each has important consequences underguideline sentencing. A charge bargain must becarefully analyzed to determine whether its supposedbenefit is real or illusory, once the effect of relevantconduct and multiple-count grouping have beenconsidered. Other, equally important considerationsaffect the possible benefits of sentence-recommendationand sentence-agreement bargains. In all cases, thepotential value of an acceptance-of-responsibilityadjustment must be carefully considered. And becausecooperation by the defendant is a common element of aplea bargain, the statutory and guideline provisions thataffect cooperating defendants can be of paramountimportance. Each of these subjects is discussed below.(They are also discussed in connection with prosecutionpolicies announced in 2003. See below, under “SomeTraps for the Unwary.”)

Charge Bargaining. Policy statement §6B1.2(a)authorizes the court to accept a defendant’s plea to oneor more charges under Rule 11(c)(1)(A), in exchangefor the dismissal of others, if “the remaining chargesadequately reflect the seriousness of the actual offensebehavior” and “accepting the agreement will notundermine the statutory purposes of sentencing or thesentencing guidelines.” Federal plea bargaining has

typically involved this form of agreement, under whicha defendant has the right to withdraw his plea to thebargained charges if the other charges are notdismissed. Charge bargains, however, will often havelittle effect on the guideline range. This is because ofthe dramatic impact of two related guideline concepts:relevant conduct and multiple-count grouping.

Relevant conduct. The common plea agreementcalling for dismissal of counts will not reduce theoffense level if the subject matter of the dismissedcounts is “relevant conduct” for purposes ofdetermining the guideline range. See U.S.S.G. §1B1.3.For example, a defendant charged with multiple countsof distributing controlled substances who pleads guiltyto only one count will usually have a base offense leveldetermined from the total amount of drugs involved inall counts.

Despite the effect of the relevant conduct, chargebargaining can confer important benefits at sentencing.When one of the counts is governed by a Chapter Twoguideline with a lower offense level, a plea to that countmay produce a lower guideline range.15 Even if a countdoes not have a lower guideline range, it may carry alower statutory maximum. Because statutes “trump”guidelines, a given count may cap the maximumsentence below the probable guideline range for thecase, see §5G1.1(a), or avoid a statutory minimum thatwould raise a sentence above the otherwise-applicableguideline range, see §5G1.1(b). Even when theestimated guideline range falls within the statutorysentencing range, a charge bargain to a count with alower statutory maximum can limit the extent of anupward departure.

Multiple-count grouping. A corollary to therelevant-conduct rule, guideline §3D1.2 requiresgrouping of counts in many common prosecutions inwhich separate charges involve substantially the sameharm. When counts are grouped, a single offenselevel—the highest of the counts in the group—appliesto those counts of conviction. §3D1.3(a). In such cases,the offense level will not be adjusted upward even if adefendant is convicted of multiple counts. However, inthe case of offenses that the guidelines do notgroup—such as robberies—Chapter Three, Part D mayrequire an upward adjustment for multiple convictions.Dismissing counts will avoid this adjustment, providedthe defendant does not stipulate to all the elements ofthe dismissed offenses as part of a plea bargain.

14. Policy statement §6B1.2 and other provisions of the2003 Guidelines Manual refer to the Federal Rules ofCriminal Procedure as they were numbered before theiramendment effective December 1, 2002. Before that date, theprovisions of Rule 11(c) were found in subdivision (e).

15. However, dismissed charges not considered indetermining the guideline range can provide grounds forupward departure. §5K2.21, p.s.

An Introduction to Federal Guideline Sentencing 13

Regardless of the grouping rules, some statutes—mostnotably 18 U.S.C. § 924(c)—require a consecutivesentence.

Sentencing Recommendation; SpecificSentencing Agreement. In addition to chargebargains, Federal Rule of Criminal Procedure 11authorizes the prosecutor to make nonbindingrecommendations, and binding agreements, with regardto the sentence to be imposed. Rule 11(c)(1)(B)authorizes the prosecutor to recommend, or agree not tooppose, a particular sentence or sentencing range, or theapplication of a particular guideline or policy statement.A court may accept such a recommendation only if theproposed sentence is within the applicable guidelinerange or departs from the range for justifiable reasons.U.S.S.G. §6B1.2(b), p.s. Sentence recommendationsunder Rule 11(c)(1)(B) are non-binding: A defendantwho agrees to such a recommendation must understandthat if the court rejects it, he is not entitled to withdrawhis plea. FED. R. CRIM. P. 11(c)(3)(B).

Rule 11(c)(1)(C) authorizes a plea agreement thatrequires imposition of a specific sentence, a sentencewithin an agreed guideline range, or the application of aparticular guideline or policy statement. As withsentence recommendations, these agreements may beapproved if the agreed sentence is within the calculatedguideline range or is a justified departure. U.S.S.G.§6B1.2(c), p.s. But unlike sentence-recommendationagreements, Rule 11(c)(1)(C) agreements are binding: Ifthe court rejects the proposed sentence, the defendant isentitled to withdraw the plea.

Because a Rule 11(c)(1)(C) sentence bargain severelylimits sentencing discretion, counsel seeking one mayencounter resistance or categorical rejection from theprosecutor or the judge. If an agreement to a specificsentence cannot be obtained, or if court rejection isfeared, counsel should consider the less-restrictiveforms authorized by the rule, which can still afford thedefendant a measure of protection. For example, theparties might agree under Rule 11(c)(1)(C) that asentence not exceed a certain guideline range, that aparticular adjustment apply, or that the court not depart.If the court does not follow the parties’ agreement on aparticular sentence component, the defendant canwithdraw the plea.

Acceptance of Responsibility. Sometimes, theonly perceived guideline-range benefit for a plea ofguilty will be the adjustment for acceptance ofresponsibility. Pleading guilty does not ensure theadjustment, but it provides a basis for it. Demandingtrial does not automatically preclude the adjustment, butusually renders it a remote possibility. The court’s

determination of acceptance of responsibility “isentitled to great deference on review.” U.S.S.G. §3E1.1,comment. (n.5). Commentary explains that theadjustment for acceptance of responsibility is to bedetermined by reference to the offense of conviction;the defendant need not admit relevant conduct.16

Nevertheless, while “[a] defendant may remain silent”about relevant conduct, “a defendant who falselydenies, or frivolously contests, relevant conduct that thecourt determines to be true has acted in a mannerinconsistent with acceptance of responsibility.” Id.(n.1(a)).

In evaluating the prospects for an acceptance-of-responsibility adjustment, counsel must guard againstgiving up a valuable right to trial, solely in pursuit of anadjustment that may already be lost. Scrutinize allpertinent facts that may bear upon this determination,paying special attention to the possibility of anadjustment for obstruction of justice under guideline§3C1.1. See U.S.S.G. §3E1.1, comment. (n.4). When itis certain that a defendant will not receive theadjustment for acceptance of responsibility even upon aplea of guilty, and the plea confers no other benefit,then the plea will not improve the guideline range. Evenso, a guilty plea may benefit the defendant—bydiminishing the risk of an upward departure, improvingthe possibility or extent of a downward departure, orinducing the court to impose a lower sentence within therange.

Even when the acceptance adjustment is not in doubt,counsel should consider whether plea bargaining couldhelp obtain a Government motion for a third level ofreduction under §3E1.1(b), as required by the 2003PROTECT Act. Note, however, that the plain languageof the amended guideline does not require entry into aplea agreement, but only “timely notifi[cation]” of an“intention to enter a plea of guilty.” Id.

Cooperation. Congress directed the Commission toensure that the guidelines reflect the generalappropriateness of imposing a lower sentence “to takeinto account a defendant’s substantial assistance in theinvestigation or prosecution of another person who has

16. In contrast, the “safety valve” specifically requires that,before a defendant can be sentenced below a statutoryminimum, he must provide the government with allinformation and evidence concerning not only the offense, butalso “offenses that were part of the same course of conduct orof a common scheme or plan.” 18 U.S.C. § 3553(f)(5); seealso U.S.S.G. §5C1.2(a)(5) (same).

An Introduction to Federal Guideline Sentencing 14

committed an offense.” 28 U.S.C. § 994(n).17 TheCommission responded to this directive bypromulgating policy statement §5K1.1. The policystatement requires a motion by the government beforethe court can depart for substantial assistance. While§5K1.1 is a policy statement, not a guideline, thegovernment’s motion is “the condition limiting thecourt’s authority” to reduce sentence. Wade v. UnitedStates, 504 U.S. 181, 185 (1992) (dictum). A departurebelow a statutory minimum on the basis of substantialassistance similarly requires a motion by thegovernment. 18 U.S.C. § 3553(e). When the courtconsiders a cooperation motion, it should give“[s]ubstantial weight” to “the government’s evaluationof the extent of the defendant’s assistance”; however,the ultimate determination of the value of thedefendant’s assistance is for the court to make.§5K1.1(a)(1), p.s. & comment. (n.3). Even without agovernment departure motion, cooperation can benefitthe defendant at sentencing, as the court can consider itin placing the sentence within the guideline range, or indetermining the extent of a departure based on othergrounds. By contrast, “[a] defendant’s refusal to assistauthorities . . . may not be considered as an aggravatingsentencing factor.” §5K1.2, p.s.

A defendant contemplating cooperation should alwaysseek the protection of Federal Rule of Evidence 410 andguideline §1B1.8. With limited exceptions, Rule 410renders inadmissible, in any civil or criminalproceeding, any statement made in the course of pleadiscussions with an attorney for the government, even ifthe discussions do not ultimately result in a guiltyplea.18 See also FED. R. CRIM. P. 11(f). Guideline§1B1.8 permits the parties to agree that informationprovided by a cooperating defendant will not be used toincrease the applicable guideline range.

Guideline §1B1.8 has limited effect. The informationcan still be used if it was previously known to thegovernment; if it relates to criminal history; if thedefendant is prosecuted for perjury or false statement;or if the defendant breaches the cooperation agreement.Moreover, §1B1.8 protects the defendant only indetermining the guideline range, not from fixing thesentence higher within the range or departing upward.While it is the “policy of the Commission” thatinformation “shall not be used” for an upward

departure, §1B1.8, comment. (n.1), counsel should seekan agreement that expressly precludes using theinformation as a basis for any increase in sentence.

Some Traps for the Unwary

Pretrial Services Interview. In most courts, apretrial services officer (or a probation officerdesignated to perform pretrial services) will seek tointerview arrested persons before their initialappearance, to gather information pertinent to therelease decision. The information will be madeavailable to the court, the prosecutor, and defensecounsel, and later to the probation officer preparing anypresentence report. 18 U.S.C. § 3153(c)(1), (c)(2)(C).Absent specified exceptions, however, informationobtained during pretrial services functions “is notadmissible on the issue of guilt in a criminal judicialproceeding.” § 3153(c)(3). Certain informationpertinent to the release decision—including criminalhistory (especially juvenile adjudications and tribalcourt convictions that might otherwise be unavailable),earnings history, and possession of a special skill—canraise the guideline range, provide a basis for upwarddeparture, or affect the decision to impose a fine orrestitution. Whenever possible, counsel should advisethe defendant of these considerations before theinterview, with scrupulous care that any informationprovided be truthful. A finding that the defendantprovided false information can lead to denial ofacceptance of responsibility, an upward adjustment forobstruction, or the filing of additional charges. Becauseof these dangers, counsel who enters a case after thereport is prepared must learn what information wasacquired by the officer to be aware of its possible effect.

New Prosecution Policies. In response to the 2003PROTECT Act, the Department of Justice hasannounced important new policies on filing charges,plea bargaining, sentencing litigation, and appeal. Thepolicies are set out in memoranda from AttorneyGeneral John Ashcroft and amendments to the U.S.Attorney’s Manual. Copies of the memoranda areavailable from the Defender Services Division TrainingBranch Website, at http://www.fd.org. Because theyplace significant limits on prosecutorial discretion, thenew policies should be carefully reviewed by anylawyer defending a federal criminal case. In certaindistricts, a new policy on “fast-track” early dispositionprograms may be of prime importance.

Filing charges and plea bargaining. The newcharging policy builds upon long-standing Departmentguidelines. It requires that the prosecutor charge the“most serious, readily provable offense or offenses thatare supported by the facts of the case.” Attorney

17. For cooperation departures in child and sex offenses,see also 18 U.S.C. § 3553(b)(2)(A)(iii).

18. A defendant may waive the protections of Rule 410 aspart of a plea agreement. United States v. Mezzanatto, 513U.S. 196 (1995).

An Introduction to Federal Guideline Sentencing 15

General Memorandum Entitled “Department PolicyConcerning Charging Criminal Offenses, Disposition ofCharges, and Sentencing” (Charging Memorandum) at 2(Sept. 22, 2003). The “most serious” offense or offensesare those that trigger the longest required sentence,under either the guidelines or an applicable statutoryminimum. Id. “Readily provable” is defined negatively:“A charge is not ‘readily provable’ if the prosecutor hasa good faith doubt, for legal or evidentiary reasons, asto the Government’s ability readily to prove a charge attrial.” Id. Once charges are filed, they may not bedismissed by plea agreement except under limitedcircumstances. If the dismissal would affect theguideline range, or remove a controlling statutoryminimum or consecutive term, then documentedsupervisory approval of the agreement is required. Id. at3–5. (The only exception to the documented-approvalrequirement is for “fast-track” dispositions, describedbelow.)19

Defense counsel must be prepared to negotiate in lightof these new policies. If possible, counsel shouldattempt to avoid charges before they are brought. Thekey is challenging what the prosecutor perceives as“readily provable”; counsel should attempt todemonstrate that legal or evidentiary hurdles make acharge or charges difficult to prove at trial. If chargeshave already been brought, counsel may have to litigateto raise good faith doubts that may allow charges to bedismissed. Vigorous defense is often the most effectivetool of negotiation.

Sentencing litigation and appeals. The conceptof ready provability also plays a key role in theDepartment of Justice’s new policies on sentencinglitigation and appeal. Under the new policies,prosecutors must bring all readily provable facts beforethe sentencing court; they cannot stand silent, but mustactively oppose any adjustment or departure notsupported by the facts and the law. See ChargingMemorandum at 5–6; Attorney General MemorandumEntitled Department Policies and ProceduresConcerning Sentencing Recommendations andSentencing Appeals (Sentencing Memorandum), at 2–3(July 28, 2003). And in the case of any “adverse”sentencing decision, the prosecutor must file notice ofappeal and notify the appropriate division of theDepartment of Justice in Washington. SentencingMemorandum at 4.

“Adverse sentencing decision” is defined in anamendment to the U.S. Attorneys’ Manual § 9-2.170(B). See Sentencing Memorandum, App. Theamended section sets out categories of sentencingdeterminations that the government must oppose andappeal. Any sentence illegally below a statutoryminimum is included, as is the award of a third level offfor acceptance of responsibility without a governmentmotion. The rest of the specified adverse decisions aredownward departures. Not all departures areautomatically considered “adverse,” however; someneed not be challenged, depending on the grounds fordeparture, the size and effect of the sentence reduction,and whether the departure was made over governmentobjection.

Counsel should carefully review the amended section,particularly its requirements for litigating and appealingdownward departures. In light of those requirements,counsel may consider tailoring departure requests toobtain government agreement or non-opposition,thereby avoiding sentencing-court litigation or possiblereversal on appeal.

“Fast-track” disposition. Although the 2003PROTECT Act was intended to reduce the number ofdownward departures, Congress made special provisionfor “fast-track” programs—programs that allowdownward departures of up to 4 levels in exchange forearly disposition of some cases. See Pub. L. No. 108-21, § 401(m)(2)(B); see also U.S.S.G. §5K3.1, p.s. ADepartment of Justice memorandum sets out therequired criteria for such programs, which must beapproved by both the Attorney General and the localU.S. Attorney. See Attorney General MemorandumEntitled “Department Principles for Implementing anExpedited Disposition or ‘Fast-Track’ ProsecutionProgram in a District” (July 28, 2003). At a minimum, afast-track program must require that the defendant agreeto the factual basis and waive the rights to file pretrialmotions, to appeal, and to seek collateral relief (exceptfor ineffective assistance). Id. at 2–3. (Waivers arefurther discussed below, under “Waiver of SentencingAppeal.”)

In districts with a large volume of a particular categoryof cases, defense counsel should determine whether afast-track program is in place; if so, counsel mustconsider whether it would benefit the defendant toparticipate, in light of the important rights that theprogram may require the defendant to relinquish.

Waiver of Sentencing Appeal. One of the mostimportant safeguards put in place by the SentencingReform Act was the right of appellate review ofguideline sentences and departures. See 18 U.S.C.

19. Similar constraints apply to the decision to seek orforego a statutory sentence enhancement, such as those thatmay be sought under 21 U.S.C. § 851 for defendants withprior drug convictions. Id. at 4.

An Introduction to Federal Guideline Sentencing 16

§ 3742. Sentencing Commission statistics for 2001indicate that more than 1 out of 7 sentencing appealsresulted in complete or partial reversal.

In many districts, prosecutors attempt to insulatesentences from review under § 3742 by requiring thedefendant to waive the right to appeal the sentence aspart of a plea agreement. The Supreme Court has neversanctioned these appeal waivers, and a number ofdistrict judges have refused to accept them as part of aplea bargain.20 However, they have been approved byevery court of appeals that has considered them (withsome limitations).21 Federal Rule of Criminal Procedure11(b)(1)(N) requires the district court to advise thedefendant of the terms of any bargained sentencing-appeal waiver as part of the plea colloquy.

Unthinking acceptance of an appeal waiver can havedisastrous results for the client. The waiver is usuallyaccepted before the presentence report is prepared; atthat time, the defendant cannot know what possibleerrors the probation officer, or the court, will make indetermining the guideline range or the propriety of adeparture. Counsel can defend against this danger byrefusing to agree to a waiver, or by demandingconcessions in exchange for it (e.g., that the prosecutoragree to a binding sentence or guideline range, or aprovision that the court not depart). If the prosecutorinsists on the waiver, and refuses to give valuable

concessions in exchange for it, defense counsel shouldcarefully consider with the defendant whether to pleadwithout an agreement, or go to trial. Counsel shouldalso resist any proposed waiver that does not exceptappeals or collateral attacks based on ineffectiveassistance or prosecutorial misconduct; without theseexceptions, the waiver presents the serious ethicalproblem of lawyers bargaining to protect themselvesfrom possible future liability.22

Presentence Investigation Report andProbation Officer’s Interview. In most cases, aprobation officer will provide a presentenceinvestigation report to the court before imposition ofsentence. 18 U.S.C. § 3552(a); FED. R. CRIM. P. 32(c).The importance of the report cannot be overstated. In it,the probation officer will recommend fact findings,guideline calculations, and potential grounds fordeparture, recommendations that often have adeterminative effect on the sentence ultimately imposed.After sentencing, the report may affect the Bureau ofPrisons’ placement decision, conditions of confinement,and eligibility for prison programs; it can also affect theconditions of probation or supervised release. Andunder the 2003 PROTECT Act, the report must bedisclosed not only to the Sentencing Commission, butalso to Congress when requested. Pub. L. No. 108-21, §401(h) (amending 28 U.S.C. § 994(w)).

Many presentence report recommendations, whilenominally objective, have significant subjectivecomponents. The probation officer’s attitude toward thecase or the client may substantially influence thesentence recommendations, which enjoy considerabledeference from both the judge at sentencing and thereviewing court on appeal. For these reasons, theeffective advocate will independently review allelements of the probation officer’s report to make anynecessary objections and affirmatively present thedefense case for a favorable sentence. Counsel shouldnever assume that the probation officer has arrived at afavorable recommendation, or even a correct one.

The probation officer’s presentence investigation willusually include an interview of the defendant. Broaderthan the interview conducted by pretrial services, this

20. See, e.g., United States v. Johnson, 992 F. Supp. 437(D.D.C. 1997) (refusing to accept plea bargain containingappeal waiver provision); United States v. Raynor, 989F. Supp. 43 (D.D.C. 1997) (same); see also United States v.Melancon, 972 F.2d 566, 570–80 (5th Cir. 1992) (Parker, J.,concurring) (expressing serious misgivings about legality andwisdom of appeal waivers).

21. See, e.g., United States v. Khattak, 273 F.3d 557, 563(3d Cir. 2001) (appeal waiver not binding when sentencingerror would work a miscarriage of justice); United States v.Teeter, 257 F.3d 14, 25–26 (1st Cir. 2001) (same); UnitedStates v. Brown, 232 F.3d 399, 403 (4th Cir. 2000) (appealwaiver does not bar appeal if sentence exceeded maximumauthorized penalty or was based on constitutionallyimpermissible factor); United States v. Black, 201 F.3d 1296,1301 (10th Cir. 2000) (appeal waivers, like other contracts,subject to public policy constraints); United States v.Goodman, 165 F.3d 169, 175 (2d Cir. 1999) (refusing toenforce a broad waiver that would expose the defendant to “avirtually unbounded risk of error or abuse by the sentencingcourt”); United States v. Jacobson, 15 F.3d 19, 23 (2d Cir.1994) (waiver not binding if sentence imposed on basis ofethnic bias); United States v. Marin, 961 F.2d 493, 496 (4thCir. 1992) (waiver cannot subject defendant to sentencing atwhim of district court); United States v. Navarro-Botello, 912F.2d 318, 321 (9th Cir. 1990) (waiver does not prevent appealif sentence imposed is not in accordance with negotiatedagreement).

22. See Ohio Advisory Ethics Op. 2001-6 (2001);Tennessee Advisory Ethics Op. 94-A-549 (1994); NorthCarolina Ethics Op. 129 (1993). In his memorandum on “fast-track” programs, Attorney General Ashcroft discusses appealwaivers that except ineffective assistance claims; however, hemakes no mention of prosecutorial misconduct. See AttorneyGeneral Memorandum Entitled “Department Principles forImplementing an Expedited Disposition or ‘Fast-Track’Prosecution Program in a District,” at 3 (July 28, 2003).

An Introduction to Federal Guideline Sentencing 17

interview has even greater potential to increase asentence in specific, foreseeable ways. Disclosingundetected relevant conduct may, by operation ofguideline §1B1.3, increase the offense level.Information first revealed during the presentenceinterview may affect Chapter Three adjustments, suchas obstruction of justice and acceptance ofresponsibility. Revelations of undiscovered criminalhistory may increase the criminal history score orprovide a ground for departure. Other revelations, suchas drug use and criminal associations, may result in anunfavorable adjustment or upward departure, or supporta higher sentence within the guideline range.

Because the presentence interview holds many perils,the defendant must fully understand its function andimportance, and defense counsel should attend theinterview. See FED. R. CRIM. P. 32(c)(2) (requiring thatprobation officer give counsel notice and reasonableopportunity to attend interview). In some cases, counselmay decide to limit the scope of the presentenceinterview. While the privilege against self-incriminationapplies to sentencing issues, Mitchell v. United States,526 U.S. 314 (1999), refusal to submit to anunrestricted presentence interview is often hazardous. Itcan jeopardize the adjustment for acceptance ofresponsibility or adversely affect other incidents of thesentence, including the placement of the sentence withinthe guideline range. There is no fixed solution to thisdilemma; counsel must make an informed decision as tothe best course in the context of the particular case.

Guideline Amendments. Title 28 U.S.C. § 994(p)authorizes the Commission to submit guidelineamendments to Congress by May 1 of each year. Absentcongressional modification or disapproval, the amend-ments ordinarily take effect November 1. Congress canalso amend guidelines itself or direct the Commission topromulgate amendments outside the regular amendmentcycle. See, e.g., Pub. L. No. 108-21, §§ 401(b), 401(g),401(j) (PROTECT Act amendments to GuidelinesManual ); id., §401(m) (directing Commission to amenddeparture guidelines and policy statements). Since theguidelines were first promulgated in 1987, they havebeen amended 662 times; many of these amendmentschanged multiple guideline provisions. All theamendments, along with explanatory notes, arecontained in Appendix C to the Guidelines Manual.

Normally, the guidelines in effect on the date ofsentencing apply. U.S.S.G. §1B1.11(a).23 But if a

detrimental guideline amendment takes effect betweenthe commission of the offense and the date ofsentencing, the Ex Post Facto Clause bars itsapplication. See United States v. Seacott, 15 F.3d 1380,1384 (7th Cir. 1994) (noting circuits’ agreement onissue); cf. Miller v. Florida, 482 U.S. 423 (1987)(Clause bars retrospective application of harmfulamendment to state sentencing guideline). Eachguideline includes a historical note, which facilitatesdetermining whether the guideline has been amendedsince the offense was committed. If ex post factoprinciples require use of an earlier guideline, theCommission requires that “[t]he Guidelines Manual ineffect on a particular date shall be applied in itsentirety.” U.S.S.G. §1B1.11(b)(2).24

Counsel should become familiar with each new round ofsubmitted amendments as soon as they are published bythe Commission, paying particular attention toamendments that the Commission denominates“clarifying.” Clarifying amendments are intended toexplain the meaning of previously-promulgatedguidelines, and the Ex Post Facto Clause may not bartheir application to offenses committed before theireffective date. If a proposed clarifying guidelineamendment benefits the client, counsel should seek itsapplication even before the effective date, arguing thatit provides authoritative guidance as to the meaning ofthe current guideline.25 On the other hand, if a proposedamendment is harmful, counsel should not automaticallyaccede to its retroactive application, simply because theCommission characterized it as “clarifying.” A numberof courts have held that when a harmful “clarifying”amendment changes circuit precedent, it may not be

23. The 2003 PROTECT Act provides an exception to thisrule in the case of a resentencing on remand after appeal. Insuch a case, the sentencing range is determined by application

of the guidelines in effect on the date of the previoussentencing. 18 U.S.C. § 3742(g)(1).

24. The 2003 PROTECT Act requires that anycongressional guideline amendments in place at the time ofsentencing be applied “regardless of whether suchamendments have yet to be incorporated” into the GuidelinesManual. 18 U.S.C. § 3553(a)(4)(A)(i); see also § 3553(a)(5)(A) (same, policy statements). But congressional guidelineamendments, like any others, are subject to ex post factoprohibitions. See, e.g., United States v. Briceno, No. 01CR.943 LTS, 2003 WL 22025870, at *6 n.6 (S.D.N.Y. Aug.23, 2003) (declining to apply PROTECT Act amendment to§3E1.1 in sentencing for 2001 offense); United States v.Lester, 268 F. Supp. 2d 514 , 515 n.2. (E.D. Penn. 2003)(government agrees that PROTECT statutory and guidelineamendments are inapplicable to sex offense that occurredbefore statute was enacted).

25. Even if a beneficial amendment is not deemed“clarifying,” it may support a request for downward departurebefore its effective date.

An Introduction to Federal Guideline Sentencing 18

retroactively applied. See, e.g., United States v. Capers,61 F.3d 1100, 1110–12 (4th Cir. 1995).

Some amendments may benefit a defendant who isalready serving an imprisonment term. If theCommission expressly provides that a beneficialamendment has retroactive effect, and the amendmentwould reduce the defendant’s guideline range, the courtmay reduce the sentence. 18 U.S.C. § 3582(c)(2);U.S.S.G. §1B1.10, p.s.

Validity of Guidelines. In keeping with expressstatutory language and with general principles ofdelegation, the Sentencing Commission’s guidelines,policy statements, and commentary must be consistentwith all pertinent statutory provisions. 28 U.S.C.§ 994(a). They must also, of course, conform to therequirements of the Constitution. See Mistretta v.United States, 488 U.S. 361 (1989) (consideringconstitutional challenges to guideline sentencing); cf.Apprendi v. New Jersey, 530 U.S. 466, 543– 45 (2000)(O’Connor, J., dissenting) (questioning the continuingvalidity of guideline enhancements in light of principleannounced by majority); Blakely v. Washington, 124S. Ct. 429 (2003) (granting certiorari to consider theconstitutionality of state guideline system in light ofApprendi). Counsel must scrutinize all pertinentprovisions for both statutory and constitutional validity,with special attention to recent amendments. See, e.g.,United States v. LaBonte, 520 U.S. 751 (1997)(invalidating guideline amendment as contrary tocongressional directive in 28 U.S.C. § 994).

Telephone Support and OnlineInformation

The Defender Services Division Training Branch,Administrative Office of the U.S. Courts, provides atoll-free hotline for federal defender organizations andprivate attorneys providing defense services under theCriminal Justice Act. The number is 800-788-9908. TheSentencing Commission also offers telephone supporton the guidelines, at 202-502-4545.

Information on guideline sentencing is also available onthe Internet. Some of the most useful sites follow.

• The U.S. Sentencing Commission Website, whichcontains a wealth of well-organized material,http://www.ussc.gov.

• Defender Services Division Training Branch Website,which includes numerous federal sentencing documentsand commentary, http://www.fd.org.

• The Federal Judicial Center Website, which includesa variety of sentencing information, including Guideline

Sentencing: An Outline of Appellate Case Law onSelected Issues (2002), http://www.fjc.gov.

• The Department of Justice Website, which includesnumerous publications and documents, including theU.S. Attorney’s Manual, http://www.usdoj.gov.

Bibliography

Primary Materials

SENTENCING REFORM ACT OF 1984, Pub. L. No. 98-473, tit. II, ch. II, 98 Stat. 1987 (Oct. 12, 1984), asamended.

U.S. SENATE, Senate Report No. 98-225 (1983),reprinted in 1984 U.S.C.C.A.N. 3182. The principallegislative history of the Sentencing Reform Act.

PROSECUTORIAL REMEDIES AND OTHER TOOLS TO END

THE EXPLOITATION OF CHILDREN TODAY ACT OF 2003,Pub. L. No. 108-21, 117 Stat. 650 (Apr. 30, 2003). Themost significant general sentencing legislation since theSentencing Reform Act.

U.S. SENTENCING COMMISSION, Guidelines Manual(Nov. 2003). The official manual in three volumes isavailable for sale from the Government Printing Office.A single-volume reprint from West Group includesadditional useful material. The manual is also availablefor download from the Commission’s Website athttp://www.ussc.gov.

———, Supreme Court Cases on Sentencing Issues(Oct. 2002), available at http://www.ussc.gov/training/supreme2002.pdf.

———, 2001 Annual Report. Available athttp://www.ussc.gov/annrpt/2001/ar01toc.htm.

———, 2001 Sourcebook of Federal SentencingStatistics. Contains descriptive statistics on theapplication of the federal sentencing guidelines andprovides selected district, circuit, and nationalsentencing data. Available at http://www.ussc.gov/annrpt/2001/sbtoc01.htm.

U.S. DEPARTMENT OF JUSTICE, “Principles of FederalProsecution,” 9 U.S. Attorney’s Manual § 9-27.000,reprinted at 3 THE DEPARTMENT OF JUSTICE MANUAL,9-218 to 9-255 (Aspen Publishers, Inc., 2d ed. 2004).Includes policy for federal prosecutors on a number ofguidelines-related issues, including charging decisions,plea bargaining, cooperation, and participation in thesentencing hearing. Available at http://www.usdoj.gov/usao/eousa/foia_reading_room/ usam/title9/27mcrm.htm.

An Introduction to Federal Guideline Sentencing 19

Manuals, Treatises, and Periodicals

PHYLIS S. BAMBERGER & DAVID J. GOTTLIEB, EDS.,Practice Under the Federal Sentencing Guidelines(Aspen Publishers, Inc., 4th ed. 2001 & Supp. 2004-1).An explication of the guidelines and strategies fromboth the prosecution and the defense perspective;includes historical and background material.

FEDERAL DEFENDERS OF SAN DIEGO, INC., Defending aFederal Criminal Case (2001). A comprehensivemanual on all aspects of federal criminal practice, withan extensive chapter on guideline sentencing. Forordering information, see http://www.fdsdi.com.

ROGER W. HAINES JR. ET AL., Federal SentencingGuidelines Handbook (West Group 2003). Anannotated version of the Guidelines Manual, withauthors’ notes and extensive case citations.

THOMAS W. HUTCHISON ET AL., Federal SentencingLaw and Practice (West Group 2003). A guidelinesmanual with extensive annotations and additionalmaterials.

UNIVERSITY OF CALIFORNIA PRESS (for the VeraInstitute of Justice), Federal Sentencing Reporter.Includes case reports and commentary on federalsentencing issues. For subscription information, seehttp://www.ucpress.edu/journals/fsr.

About This PublicationPublisher

Administrative Office of the U.S. Courts

Washington, D.C. 20544

AuthorsLucien B. Campbell and Henry J. Bemporad

Office of the Federal Public Defender

Western District of Texas

727 E. Durango Boulevard, B-207

San Antonio, Texas 78206-1278

Telephone: 210-472-6700

E-Mail: IntroFGS@fd.org

Publication of this paper was sponsored by the Administrative Office of the U.S. Courts infurtherance of the Criminal Justice Act’s authorization to support continuing education and trainingfor persons providing representational services under the Act. None of the information in this paperis intended as, or should be taken as, legal advice. The views expressed are those of the authors andnot necessarily those of the Administrative Office. Comments or suggestions on this publication arewelcome.

U.S. Sentencing CommissionDecember 17, 2001H:\TAS\TRAINING\Worksheets\worksheets.DECEMBER2001.wpd

Worksheet A (Offense Level)Defendant ______________________________ District/Office ________________________________

Docket Number (Year-Sequence-Defendant No.) ____ ____-____ ____ ____ ____ ____-____ ____

Count Number(s) ________ U.S. Code Title & Section _________: _____________________________

_________: _____________________________

Guidelines Manual Edition Used: 20___ (NOTE: worksheets keyed to the Manual effective November 1, 2001)

Instructions:

For each count of conviction (or stipulated offense), complete a separate Worksheet A. Exception: Use only a single WorksheetA where the offense level for a group of closely related counts is based primarily on aggregate value or quantity (see §3D1.2(d))or where a count of conspiracy, solicitation, or attempt is grouped with a substantive count that was the sole object of theconspiracy, solicitation, or attempt (see §3D1.2(a) and (b)).

1. Offense Level (See Chapter Two)Enter the applicable base offense level and any specific offense characteristics from Chapter Two and explain the bases forthese determinations. Enter the sum in the box provided.

Guideline Description Level

Sum

2. Victim-Related Adjustments (See Chapter Three, Part A)Enter the applicable section and adjustment. If more than one section is applicable,list each section and enter the combined adjustment. If no adjustment is applicable, enter "0." §

3. Role in the Offense Adjustments (See Chapter Three, Part B)

Enter the applicable section and adjustment. If more than one section is applicable, list each section and enter the combined adjustment. If the adjustment reduces theoffense level, enter a minus (-) sign in front of the adjustment. If no adjustment is applicable, enter "0." §

4. Obstruction Adjustments (See Chapter Three, Part C)

Enter the applicable section and adjustment. If more than one section is applicable,list each section and enter the combined adjustment. If no adjustment is applicable, enter "0." §

5. Adjusted Offense LevelEnter the sum of Items 1-4. If this worksheet does not cover all counts of conviction or stipulated offenses, complete Worksheet B. Otherwise, enter this result on Worksheet D, Item 1.

Check if the defendant is convicted of a single count. In such case, Worksheet B need not be completed.

If the defendant has no criminal history, enter criminal history "I" here and on Item 4, Worksheet D. In such case,Worksheet C need not be completed.

U.S. Sentencing CommissionDecember 17, 2001H:\TAS\TRAINING\Worksheets\worksheets.DECEMBER2001.wpd

(unit)

(unit)

(unit)

(unit)

(unit)

(total units)

Worksheet B(Multiple Counts or Stipulation to Additional Offenses)

Defendant ______________________________________ Docket Number __________________________________

InstructionsStep 1: Determine if any of the counts group. (Note: All, some, or none of the counts may group. Some of the counts may have already beengrouped in the application under Worksheet A, specifically, (1) counts grouped under §3D1.2(d), or (2) a count charging conspiracy,solicitation, or attempt that is grouped with the substantive count of confiction (see §3D1.2(a)). Explain the reasons for grouping:

Step 2: Using the box(es) provided below, for each group of closely related counts, enter the highest adjusted offense level from thevarious “A” Worksheets (Item 5) that comprise the group (see §3D1.3). (Note: A “group” may consist of a single count that has notgrouped with any other count. In those instances, the offense level for the group will be the adjusted offense level for the single count.)

Step 3: Enter the number of units to be assigned to each group (see §3D1.4) as follows:

• One unit (1) for the group of closely related counts with the highest offense level• An additional unit (1) for each group that is equally serious or 1 to 4 levels less serious• An additional half unit (1/2) for each group that is 5 to 8 levels less serious• No increase in units for groups that are 9 or more levels less serious

1. Adjusted Offense Level for the First Group of Closely Related CountsCount number(s):______________

2. Adjusted Offense Level for the Second Group of Closely Related CountsCount number(s):______________

3. Adjusted Offense Level for the Third Group of Closely Related CountsCount number(s):______________

4. Adjusted Offense Level for the Fourth Group of Closely Related CountsCount number(s):______________

5. Adjusted Offense Level for the Fifth Group of Closely Related CountsCount number(s):______________

6. Total Units

7. Increase in Offense Level Based on Total Units (See §3D1.4)

1 unit: no increase 2 1/2 - 3 units: add 3 levels1 1/2 units: add 1 level 3 1/2 - 5 units: add 4 levels2 units: add 2 levels More than 5 units: add 5 levels

8. Highest of the Adjusted Offense Levels from Items 1-5 Above

9. Combined Adjusted Offense Level (See §3D1.4)Enter the sum of Items 7 and 8 here and on Worksheet D, Item 1.

U.S. Sentencing CommissionDecember 17, 2001H:\TAS\TRAINING\Worksheets\worksheets.DECEMBER2001.wpd

Worksheet C (Criminal History)Defendant ______________________________________ Docket Number __________________________________

Enter the Date Defendant Commenced Participation in Instant Offense (Earliest Date of Relevant Conduct)____________________

1. 3 Points for each prior ADULT sentence of imprisonment EXCEEDING ONE YEAR AND ONE MONTH imposed within 15 YEARS ofthe defendant's commencement of the instant offense OR resulting in incarceration during any part of that 15-YEAR period. (See§§4A1.1(a) and 4A1.2.)

2. 2 Points for each prior sentence of imprisonment of AT LEAST 60 DAYS resulting from an offense committed ON OR AFTER thedefendant's 18th birthday not counted under §4A1.1(a) imposed within 10 YEARS of the instant offense; and

2 Points for each prior sentence of imprisonment of AT LEAST 60 DAYS resulting from an offense committed BEFORE thedefendant's 18th birthday not counted under §4A1.1(a) from which the defendant was released from confinement within 5 YEARS ofthe instant offense. (See §§4A1.1(b) and 4A1.2.)

3. 1 Point for each prior sentence resulting from an offense committed ON OR AFTER the defendant's 18th birthday not counted under§4A1.1(a) or §4A1.1(b) imposed within 10 YEARS of the instant offense; and

1 Point for each prior sentence resulting from an offense committed BEFORE the defendant's 18th birthday not counted under§4A1.1(a) or §4A1.1(b) imposed within 5 YEARS of the instant offense. (See §§4A1.1(c) and 4A1.2.)

NOTE: A maximum sum of 4 Points may be given for the prior sentences in Item 3.

Date of Offense Sentence Release Guideline CriminalImposition Date** Section History Pts.

* Indicate with an asterisk those offenses where defendant was sentenced as a juvenile.

** A release date is required in only three instances:

a. When a sentence covered under §4A1.1(a) was imposed more than 15 years prior to the commencement of theinstant offense but release from incarceration occurred within such 15-year period;

b. When a sentence counted under §4A1.1(b) was imposed for an offense committed prior to age 18 and morethan 5 years prior to the commencement of the instant offense, but release from incarceration occurred withinsuch 5-year period; and

c. When §4A1.1(e) applies because the defendant was released from custody on a sentence counted under4A1.1(a) or 4A1.1 (b) within 2 years of the instant offense or was still in custody on such a sentence at the timeof the instant offense (see Item 6).

4. Sum of Criminal History Points for prior sentences under §§4A1.1(a), 4A1.1(b), and 4A1.1(c) (Items 1,2,3).

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Worksheet C Page 2Defendant ______________________________________ Docket Number ______________________________

5. 2 Points if the defendant committed the instant offense while under any criminal justice sentence (e.g., probation,parole, supervised release, imprisonment, work release, escape status). (See §§4A1.1(d) and 4A1.2.) List the typeof control and identify the sentence from which control resulted. Otherwise, enter 0 Points.

6. 2 Points if the defendant committed the instant offense LESS THAN 2 YEARS after release from imprisonment ona sentence counted under §4A1.1(a) or (b), or while in imprisonment or escape status on such a sentence.However, enter only 1 Point for this item if 2 points were added at Item 5 under §4A1.1(d). (See §§4A1.1(e) and4A1.2.) List the date of release and identify the sentence from which release resulted. Otherwise, enter 0 Points.

7. 1 Point for each prior sentence resulting from a conviction of a crime of violence that did not receive any po in t sunder §4A1.1(a), (b), or (c) because such sentence was considered related to another sentence resulting from aconviction of a crime of violence. Provided, that this item does not apply where the sentences are consideredrelated because the offenses occurred on the same occasion. (See §§4A1.1(f) and 4A1.2.) Identify the crimes ofviolence and briefly explain why the cases are considered related. Otherwise, enter 0 Points.

Note: A maximum sum of 3 Points may be given for Item 7.

8. Total Criminal History Points (Sum of Items 4-7)

9. Criminal History Category (Enter here and on Worksheet D, Item 4)

Total Points Criminal History Category

0-1 I

2-3 II

4-6 III

7-9 IV

10-12 V

13 or more VI

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Months

Months

Worksheet D (Guideline Worksheet)Defendant _________________________________________ District _____________________________________

Docket Number ______________________________________

1. Adjusted Offense Level (From Worksheet A or B)If Worksheet B is required, enter the result from Worksheet B, Item 9.Otherwise, enter the result from Worksheet A, Item 5.

2. Acceptance of Responsibility (See Chapter Three, Part E)Enter the applicable reduction of 2 or 3 levels. If no adjustment isapplicable, enter “0".

3. Offense Level Total (Item 1 less Item 2)

4. Criminal History Category (From Worksheet C)Enter the result from Worksheet C, Item 9.

5. Terrorism/Career Offender/Criminal Livelihood/ArmedCareer Criminal/Repeat and Dangerous Sex Offender (see Chapter Three, Part A, and Chapter Four, Part B)

a. Offense Level Total

If the provision for Career Offender (§4B1.1), Criminal Livelihood(§4B1.3), Armed Career Criminal (§4B1.4), or Repeat and DangerousSex Offender (§4B1.5) results in an offense level total higher thanItem 3, enter the offense level total. Otherwise, enter "N/A."

b. Criminal History Category

If the provision for Terrorism (§3A1.4), Career Offender (§4B1.1),Armed Career Criminal (§4B1.4), or Repeat and Dangerous SexOffender (§4B1.5) results in a criminal history category higher thanItem 4, enter the applicable criminal history category. Otherwise,enter "N/A."

6. Guideline Range from Sentencing TableEnter the applicable guideline range from Chapter Five, Part A.

7. Restricted Guideline Range (See Chapter Five, Part G)If the statutorily authorized maximum sentence or the statutorilyrequired minimum sentence restricts the guideline range (Item 6) (see§§5G1.1 and 5G1.2), enter either the restricted guideline range or anystatutory maximum or minimum penalty that would modify the guidelinerange. Otherwise, enter "N/A."

Check this box if §5C1.2 (Limitation on Applicability of Statutory Minimum Penalties in Certain Cases) is applicable.

8. Undischarged Term of Imprisonment (See §5G1.3)

If the defendant is subject to an undischarged term of imprisonment, check this box and list theundischarged term(s) below.

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Worksheet D Page 2Defendant ______________________________________ Docket Number __________________________________

9. Sentencing Options (Check the applicable box that corresponds to the Guideline Range entered in Item 6.)(See Chapter Five, Sentencing Table)

Zone A If checked, the following options are available (see §5B1.1):

• Fine (See §5E1.2(a))

• "Straight" Probation

• Imprisonment

Zone B If checked, the minimum term may be satisfied by:

• Imprisonment

• Imprisonment of at least one month plus supervised release with a condition that substitutes community confinement or home detention for imprisonment (see §5C1.1(c)(2))

• Probation with a condition that substitutes intermittent confinement, community confinement,or home detention for imprisonment (see §5B1.1(a)(2) and §5C1.1(c)(3))

Zone C If checked, the minimum term may be satisfied by:

• Imprisonment

• Imprisonment of at least one-half of the minimum term plus supervised release with a condition that substitutes community confinement or home detention for imprisonment (see §5C1.1(d)(2))

Zone D If checked, the minimum term shall be satisfied by a sentence of imprisonment (see §5C1.1(f))

10. Length of a Term of Probation (See §5B1.2)

If probation is authorized, the guideline for the length of such term of probation is: (Check applicable box)

At least one year, but not more than five years if the offense level total is 6 or more

No more than three years if the offense level total is 5 or less

11. Conditions of Probation (See §5B1.3)

List any mandatory conditions ((a)(1)-(9)), standard conditions ((c)(1)-(14)), and any other special conditions that may be applicable:

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Worksheet D Page 3Defendant ______________________________________ Docket Number _______________________

12. Supervised Release (See §§5D1.1 and 5D1.2)

a. A term of supervised release is: (Check applicable box)

Required because a term of imprisonment of more than one year is to be imposed or if required by statute

Authorized but not required because a term of imprisonment of one year or less is to be imposed

b. Length of Term (Guideline Range of Supervised Release) (Check applicable box)

Class A or B Felony: Three to Five Year Term

Class C or D Felony: Two to Three Year Term

Class E Felony or Class A Misdemeanor: One Year Term

c. Restricted Guideline Range of Supervision Release

If a statutorily required term of supervised release impacts the guideline range, check this box and enter the required term. _______________________________________________________________________________________

13. Conditions of Supervised Release (See §5D1.3)List any mandatory conditions ((a)(1)-(7)), standard conditions ((c)(1)-(15)), and any other special conditions that may be applicable:

14. Restitution (See §5E1.1)

a. If restitution is applicable, enter the amount. Otherwise enter “N/A” and the reason:

b. Enter whether restitution is statutorily mandatory or discretionary:

c. Enter whether restitution is by an order of restitution or solely as a condition of supervision. Enter the authorizing statute:

15. Fines (Guideline Range of Fines for Individual Defendants) (See §5E1.2)

a. Special fine provisions Minimum MaximumCheck box if any of the counts of conviction isfor a statute with a special fine provision. (Thisdoes not include the general fine provisions of18 USC § 3571(b)(2), (d))

Enter the sum of statutory maximum fines for all such counts $______________

b. Fine Table (§5E1.2(c)(3))Enter the minimum and maximum fines $_______________ $_______________

c. Guideline Range of Fines: $_______________ $_______________(determined by the minimum of the fine table (Item 15(b))and the greater maximum above (Item 15(a) or 15(b)))

d. Ability to Pay

Check this box if the defendant does not have an ability to pay.

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Worksheet D Page 4Defendant ______________________________________ Docket Number _______________________________

16. Special Assessments (See §5E1.3)

Enter the total amount of special assessments required for all counts of conviction:

• $25 for each misdemeanor count of conviction

• Not less than $100 for each felony count of conviction

$____________

17. Additional Factors

List any additional applicable guidelines, policy statements, and statutory provisions. Also list any applicable aggravating andmitigating factors that may warrant a sentence at a particular point either within or outside the applicable guideline range.Attach additional sheets as required.

Completed by _______________________________________________ Date ___________________________________

-363- November 1, 2003

SENTENCING TABLE(in months of imprisonment)

Criminal History Category (Criminal History Points)OffenseLevel

I(0 or 1)

II(2 or 3)

III(4, 5, 6)

IV(7, 8, 9)

V(10, 11, 12)

VI(13 or more)

Zone A

1 0-6 0-6 0-6 0-6 0-6 0-62 0-6 0-6 0-6 0-6 0-6 1-73 0-6 0-6 0-6 0-6 2-8 3-9

4 0-6 0-6 0-6 2-8 4-10 6-125 0-6 0-6 1-7 4-10 6-12 9-156 0-6 1-7 2-8 6-12 9-15 12-18

7 0-6 2-8 4-10 8-14 12-18 15-218 0-6 4-10 6-12 10-16 15-21 18-24

Zone B9 4-10 6-12 8-14 12-18 18-24 21-27

10 6-12 8-14 10-16 15-21 21-27 24-30Zone C 11 8-14 10-16 12-18 18-24 24-30 27-33

12 10-16 12-18 15-21 21-27 27-33 30-37

Zone D

13 12-18 15-21 18-24 24-30 30-37 33-4114 15-21 18-24 21-27 27-33 33-41 37-4615 18-24 21-27 24-30 30-37 37-46 41-51

16 21-27 24-30 27-33 33-41 41-51 46-5717 24-30 27-33 30-37 37-46 46-57 51-6318 27-33 30-37 33-41 41-51 51-63 57-71

19 30-37 33-41 37-46 46-57 57-71 63-7820 33-41 37-46 41-51 51-63 63-78 70-8721 37-46 41-51 46-57 57-71 70-87 77-96

22 41-51 46-57 51-63 63-78 77-96 84-10523 46-57 51-63 57-71 70-87 84-105 92-11524 51-63 57-71 63-78 77-96 92-115 100-125

25 57-71 63-78 70-87 84-105 100-125 110-13726 63-78 70-87 78-97 92-115 110-137 120-15027 70-87 78-97 87-108 100-125 120-150 130-162

28 78-97 87-108 97-121 110-137 130-162 140-17529 87-108 97-121 108-135 121-151 140-175 151-18830 97-121 108-135 121-151 135-168 151-188 168-210

31 108-135 121-151 135-168 151-188 168-210 188-23532 121-151 135-168 151-188 168-210 188-235 210-26233 135-168 151-188 168-210 188-235 210-262 235-293

34 151-188 168-210 188-235 210-262 235-293 262-32735 168-210 188-235 210-262 235-293 262-327 292-36536 188-235 210-262 235-293 262-327 292-365 324-405

37 210-262 235-293 262-327 292-365 324-405 360-life38 235-293 262-327 292-365 324-405 360-life 360-life39 262-327 292-365 324-405 360-life 360-life 360-life

40 292-365 324-405 360-life 360-life 360-life 360-life41 324-405 360-life 360-life 360-life 360-life 360-life42 360-life 360-life 360-life 360-life 360-life 360-life

43 life life life life life life