Federal Sentencing Guidelines

Unlike state court, where a sentence is most often negotiated before a guilty plea, sentences in federal court are only determined by the judge after the plea is entered.  The central element of the sentence determination is the recommended sentence range according to the Federal Sentencing Guidelines.


The Federal Sentencing Guidelines are rules that purport to set out a uniform sentencing policy for individuals convicted of crimes in the United States federal court system.  The Guidelines are the product of the United States Sentencing Commission and are part of an overall federal sentencing reform package that took effect in the mid-1980s. The Federal Sentencing Guidelines two purported goals are to alleviate sentencing disparities that extensive research had indicated was prevalent in the previous existing sentencing system, and to provide for determinate sentencing.

Determinate sentencing refers to a sentencing scheme whose actual limits are determined at the time the sentence is imposed.  An indeterminate sentencing scheme is one in which a sentence with a maximum (and, perhaps, a minimum) is pronounced but the actual sentence is determined by a parole commission or similar administrative body after the person has started serving their sentence. As part of the guidelines reform, the United States Parole Commission was abolished. In general, indeterminate sentences are believed to support the rehabilitation and specific deterrence models of sentencing while determinate sentences are believed to support the general deterrence and just deserts models of sentencing.

The federal effort followed guidelines projects in several states, initially funded by the United States Department of Justice, and led by Jack Kress and his research team during the late 1970s. The first sentencing guidelines jurisdictions were countywide, in Denver (Colorado), Newark (New Jersey), Chicago (Illinois) and Philadelphia (Pennsylvania). Statewide guidelines systems were next established in Utah, Minnesota, Pennsylvania, Maryland, Michigan, Washington, and Delaware, before the federal sentencing guidelines were formally adopted in 1987. Given that the vast majority of criminal sentencing is done at the state level, the American Law Institute and the American Bar Association have each recommended such systems for all the states.  Nearly half the states presently have such systems, although significant variations exist among them. For example, Minnesota‘s Sentencing Guidelines Commission initially sought consciously not to increase prison capacity through guidelines. That is, Minnesota assumed that the legislature should determine how much would be spent on prisons and that the sentencing commission’s job was to allocate those prison beds in as rational a way as possible. The federal effort took the opposite approach. It determined how many prisons would be needed and Congress was then essentially required to fund those beds.

Though the Federal Sentencing Guidelines were styled as mandatory, the Supreme Court’s 2005 decision in United States v. Booker found that the Guidelines, as originally constituted, violated the Sixth Amendment right to trial by jury, and the remedy chosen was excision of those provisions of the law establishing the Guidelines as mandatory. In the aftermath of Booker and other Supreme Court cases, such as Blakely v. Washington (2004), Guidelines are now considered advisory only, on both the federal and the state levels. Judges must calculate the guidelines and consider them when determining a sentence but are not required to issue sentences within the guidelines. Those sentences are still, however, subject to appellate review.


The Guidelines determine sentences based primarily on two factors: (1) the conduct associated with the offense (the offense conduct, which produces the “offense level”), and (2) the defendant’s criminal history (the “criminal history category”).

Numeric values are assigned to each factor according to the rules set forth in the Guidelines—rules that attempt to account for the unique circumstances of each offense.  These numeric values are then located on the Sentencing Table in the Guidelines Manual to arrive at a recommended sentence range in months.

For example, a conviction where the offense level is assigned a value of 22 results in a sentence range of 41-51 months when the “criminal history category” is I (assigned to an offender with little or no prior criminal record).  The same offense at a “criminal history category” of VI results in a Guidelines range of 84-105 months.

A wide body of case law has been developed regarding each detail and definition pertinent to assigning these numeric values.  For example, is the defendant a leader or organizer of the criminal transaction or did he play a minimal role?  Was his cooperation such that the Government should move the court to depart from the guidelines and asses a lower sentence?

For these reasons a federal defendant needs an attorney who is well-versed in sentencing procedures and the intricacies of the Sentencing Guidelines.  In states without a guidelines system, such as Texas, it is even more important to consult an attorney who understands the federal system.