Sentencing 101
A beginner’s guide to sentencing
in Federal Courts.
March 23, 2016
Michelle Nahon Moulder, Assistant Federal Public Defender
Purpose of this
presentation:
The basics.
What you can expect:
• Tools
• Facts
• Guidelines basics
• Resources
• Practice pointers
• Questions.
The Tools
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
SOUTHWESTERN DIVISION
UNITED STATES OF AMERICA,
COUNT 2
(Felon in Possession of Firearm and Ammunition)
18 U.S.C. § 922(g)(1) and 924(a)(2)
No. xx-xxxxx-xx-x-xxx
On or about April 24, 2015, in Jasper County, in the Western District of Missouri, the
COUNT 1
18 U.S.C. §§ 922(g)(1) and 924(a)(2)
NMT 10 Years Imprisonment
NMT $250,000 Fine
NLT 3 Years Supervised Release
Class C Felony
Plaintiff,
v.
John Doe
defendant, John Doe, having been convicted of a crime punishable by imprisonment for
a term exceeding one year, knowingly possessed, in and affecting interstate commerce,
firearms and ammunition, that is, a Hi-Point Model C9 9mm firearm with an assigned
serial number of P1671468 with 8 rounds of Luger 9mm caliber ammunition; all in violation
COUNT 2
18 U.S.C. §§ 922(g)(1) and 924(a)(2)
NMT 10 Years Imprisonment
NMT $250,000 Fine
NLT 3 Years Supervised Release
Class C Felony
Defendant.
The
Indictment
of Title 18, United States Code, Sections 922(g)(1) and 924(a)(2).
FORFEITURE ALLEGATION 1
18 U.S.C. § 924(d)(1)
The allegations contained in Counts 1 and 2, above, are hereby incorporated as though
FORFEITURE ALLEGATION 1
18 U.S.C. § 924(d)(1)
fully set forth herein for the purpose of charging criminal forfeiture to the United States of
$100 Special Assessment
America pursuant to Title 18, United States Code, Section 924(d)(1).
As a result of committing offenses in violation of Title 18, United States Code, Sections
INDICTMENT
922 and 924, as charged herein, defendant John Doe, shall forfeit to the United States all
THE GRAND JURY CHARGES THAT:
firearms and ammunition involved in the particular aforesaid offenses as set forth above,
COUNT 1
(Felon in Possession of Firearm and
Ammunition) 18 U.S.C. § 922(g)(1)
and 924(a)(2)
including but not limited to, a KHAR CM40 .40 caliber handgun, serial number JN9239, with
three rounds of .40 caliber ammunition; and a Hi-Point Model C9 9mm firearm with an
On or about February 3, 2015, in Jasper County, in the Western District of
assigned serial number of P1671468 with 8 rounds of Luger 9mm caliber ammunition, all seized
Missouri, the defendant,
John Doe,
having
been
convicted
of
a
crime
from John Doe in Jasper County, Missouri, on or about February 3, 2015, and April 24, 2015.
punishable by imprisonment for a term exceeding one year, knowingly possessed,
in and affecting interstate commerce, firearms and ammunition, that is, a KHAR
A TRUE BILL.
/s/
FOREPERSON OF THE GRAND JURY
CM40 .40 caliber handgun, serial number JN9239, with three rounds of .40 caliber
ammunition; all in violation of Title 18, United States Code, Sections 922(g)(1) and
924(a)(2).
Dated: 06/17/2013
/s/ AUSA
Assistant United States Attorney
18 U.S.C. Section 922(g)
Applicable
Statutes –
Crime Charged
(g)It shall be unlawful for any person—(1)who has been convicted in
any court of, a crime punishable by imprisonment for a term
exceeding one year;
Felon in possession
to ship or transport in interstate or foreign commerce, or possess in
or affecting commerce, any firearm or ammunition; or to receive
any firearm or ammunition which has been shipped or transported
in interstate or foreign commerce.
18 U.S.C. Section 922(g)
...
Applicable
Statutes -Penalties
Felon in possession
18 U.S.C. Section 924(a)(2)
Penalties: 18 U.S.C. Section 924(a)(2)
Whoever knowingly violates subsection (a)(6), (d), (g), (h), (i), (j), or
(o) of section 922 shall be fined as provided in this title, imprisoned
not more than 10 years, or both.
Armed Career Criminal Act. 18 U.S.C. Section 924(e) (e)(1)
Applicable
Statutes –
Potential
Statutory
Enhancements
Armed Career Criminal Act (ACCA)
18 U.S.C. 924(e)
In the case of a person who violates section 922(g) of this title and has three previous convictions
by any court referred to in section 922(g)(1) of this title for a violent felony or a serious drug
offense, or both, committed on occasions different from one another, such person shall be fined
under this title and imprisoned not less than fifteen years, and, notwithstanding any other
provision of law, the court shall not suspend the sentence of, or grant a probationary sentence to,
such person with respect to the conviction under section 922(g).
(2)As used in this subsection—(A)the term “serious drug offense” means—(i)an offense under the
Controlled Substances Act (21 U.S.C. 801 et seq.), the Controlled Substances Import and Export
Act (21 U.S.C. 951 et seq.), or chapter 705 of title 46 for which a maximum term of imprisonment
of ten years or more is prescribed by law; or
(ii)an offense under State law, involving manufacturing, distributing, or possessing with intent to
manufacture or distribute, a controlled substance (as defined in section 102 of the Controlled
Substances Act (21 U.S.C. 802)), for which a maximum term of imprisonment of ten years or more
is prescribed by law;
(B)the term “violent felony” means any crime punishable by imprisonment for a term exceeding
one year, or any act of juvenile delinquency involving the use or carrying of a firearm, knife, or
destructive device that would be punishable by imprisonment for such term if committed by an
adult, that—(i)has as an element the use, attempted use, or threatened use of physical force
against the person of another; or
(ii)is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that
presents a serious potential risk of physical injury to another; and
(C)the term “conviction” includes a finding that a person has committed an act of juvenile
delinquency involving a violent felony.
Applicable
Statutes
Resource
No Cost Resource: Cornell University Law School,
Legal Information Institute
www.law.cornell.edu
The United
States
Sentencing
Guidelines
The United
States
Sentencing
Guidelines
Where to find the Guidelines
Book form.
https://bookstore.gpo.gov/products/sku/052-070-07689-5
$69
http://legalsolutions.thomsonreuters.com/lawproducts/Treatises/Federal-Sentencing-Guidelines-Manual-2015ed/p/101309424 Regularly $76 -- 2015 on sale for $60.80.
Online.
http://www.ussc.gov/guidelines-manual/guidelines-manual
FREE!!!
United States
Sentencing
Guidelines
Guidelines Worksheets
United States
Sentencing
Guidelines
Sentencing Table
Model Jury
Instructions
Available at the Eighth Circuit website:
http://juryinstructions.ca8.uscourts.gov/criminal_instructions.htm
Model Jury
Instructions -Elements
Model Jury
Instructions -Elements
The Facts
Where to find the facts you need to calculate the potential
sentence.
The Facts
Sources
Information
 Client interview
 Criminal history
 Health/mental health
 Government’s Discovery
 Employment
 School
 Investigation
 Family
Calculating the
Potential Sentence
Penalties: 18 U.S.C. Section 924(a)(2)
Whoever knowingly violates subsection (a)(6), (d), (g), (h), (i), (j), or
(o) of section 922 shall be fined as provided in this title, imprisoned
not more than 10 years, or both
The Statute
Controls
Example: Felon in Possession
Armed Career Criminal Act. 18 U.S.C. Section 924(e) (e)(1)
In the case of a person who violates section 922(g) of this title and
has three previous convictions by any court referred to in section
922(g)(1) of this title for a violent felony or a serious drug offense, or
both, committed on occasions different from one another, such
person shall be fined under this title and imprisoned not less than
fifteen years, and, notwithstanding any other provision of law, the
court shall not suspend the sentence of, or grant a probationary
sentence to, such person with respect to the conviction under
section 922(g).
Calculating the
Guidelines
Find the
Applicable
Guideline
Appendix A – Statutory Index
18 U.S.C. Section 922(g)
Guideline Section 2K2.1
Calculating the
Offense Level
2K2.1
Calculating the
Offense Level
(cont.)
Calculating the
Offense Level
(cont.)
Calculating the
Offense Level
(cont.)
Calculating the
Offense Level
(cont.)
Chapter Three Adjustments
CHAPTER THREE – Adjustments
Part A-Victim-Related Adjustments
Part B-Role in the Offense
Part C-Obstruction and Related Adjustments
Part D-Multiple Counts
Part E-Acceptance of Responsibility
Calculating the
Offense Level
(cont.)
 Part D – Multiple Counts
 Determine whether the counts should be grouped (3D1.2).
 Offenses covered by Section 2K2.1 are to be grouped.
§3E1.1. Acceptance of Responsibility
(a) If the defendant clearly demonstrates acceptance of
responsibility for his offense, decrease the offense level by 2 levels.
Calculating the
Offense Level
(cont.)
(b) If the defendant qualifies for a decrease under subsection (a), the
offense level determined prior to the operation of subsection (a) is
level 16 or greater, and upon motion of the government stating that
the defendant has assisted authorities in the investigation or
prosecution of his own misconduct by timely notifying authorities of
his intention to enter a plea of guilty, thereby permitting the
government to avoid preparing for trial and permitting the
government and the court to allocate their resources efficiently,
decrease the offense level by 1 additional level.
Calculating the
Offense Level
(cont.)
Calculating
Criminal History
Chapter 4. Determining the
Criminal History
Calculating
Criminal History
(cont.)
Criminal History Points for offenses committed at 18 or older:
3
Calculating
Criminal History
>13 months. Must be within 15 years of prior
sentence imposition or release.
2
≥ 60 days. Must be within 10 years of prior sentence
imposition.
Points Summary
1
All others * Must be within 10 years of prior sentence
imposition.
* Maximum of 4.
If offense committed before 18, 2 points if within 5 years of prior
imposition or release and 1 point within 5 years of imposition.
Calculating
Criminal History
(cont.)
Criminal History
 The Client
Criminal
History
Resources
 Government’s Discovery
 Pretrial Services Report
 PACER
 CaseNet
 Prior Presentence Investigation Reports
 Obtain Copies
Statutory Penalties:
Summary:
Why it is
important to
know your
client’s
criminal
history.
18 U.S.C. Section 924(a)(2)
Whoever knowingly violates
subsection (a)(6), (d), (g), (h), (i), (j),
or (o) of section 922 shall be fined as
provided in this title, imprisoned not
more than 10 years, or both.
Armed Career Criminal Act. 18
U.S.C. Section 924(e) (e)(1)
In the case of a person who
violates section 922(g) of this
title and has three previous
convictions by any court referred to
in section 922(g)(1) of this title for a
violent felony or a serious drug
offense, or both, committed on
occasions different from one
another, such person shall be fined
under this title and imprisoned not
less than fifteen years,
Determining the Offense Level
Summary:
Why it is
important to
know your
client’s
criminal
history –
Chapter 4 Career Offender
and Criminal Livelihood.
Career Offender
Armed Career Criminal
At least eighteen years old at
the time he committed the
instant offense of conviction.
A defendant who is subject to
an enhanced sentence under
the provisions of 18 U.S.C. §
924(e) is an armed career
criminal.
The instant offense of
conviction is a felony that is
either a crime of violence or a
controlled substance offense.
At least two prior felony
convictions of either a crime of
violence or a controlled
substance offense.
Three previous convictions by
any court referred to in section
922(g)(1) of this title for a
violent felony or a serious drug
offense, or both, committed on
occasions different from one
another.
Determine the
Sentence
Chapter 5
Determine the
Sentence
(cont.)
Determine the
Sentence
(cont.)
Determine the
Sentence
(cont.)
Determine the
Sentence
(cont.)
Determine the
Sentence
(cont.)
Determine the
Sentence
(cont.)
Determine the
Sentence (cont.)
Other Chapter 5 considerations
5G1.3 Imposition of a Sentence on a Defendant Subject to an
Undischarged Term of Imprisonment or Anticipated State Term of
Imprisonment.
Determine the
Sentence
(cont.)
Determine the
Sentence
(cont.)
Determine the
Sentence
(cont.)
Determine the
Sentence (cont.)
Other Chapter 5 considerations
 Part H – Specific Offender Characteristics
 List of characteristics and whether they are relevant for
determining whether a departure is warranted.
 Part K – Departures
 5K1.1 Substantial Assistance
 5K2.0 through 5K2.24 Other Grounds
18 U.S.C.
Section 3553(a)
• 18 U.S.C. Section 3553(a) factors give the court wide discretion
within the statutory minimum and maximum.
Felon in Possession – maximum ten (10) years.
ACC -- minimum fifteen (15) years, maximum life.
Sentencing factors. 18 U.S.C. Section 3553(a).
(a)FACTORS TO BE CONSIDERED IN IMPOSING A SENTENCE.—The court shall impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth in paragraph (2) of this
subsection. The court, in determining the particular sentence to be imposed, shall consider—
(1)the nature and circumstances of the offense and the history and characteristics of the defendant;
(2)the need for the sentence imposed—
(A)to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense;
Applicable -Sentencing
Factors
(B)to afford adequate deterrence to criminal conduct;
(C)to protect the public from further crimes of the defendant; and
(D)to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective
manner;
(3)the kinds of sentences available;
(4)the kinds of sentence and the sentencing range established for—
A)the applicable category of offense committed by the applicable category of defendant as set forth in the guidelines—
(i)issued by the Sentencing Commission pursuant to section 994(a)(1) of title 28, United States Code, subject to any amendments made to such guidelines by act of
Congress (regardless of whether such amendments have yet to be incorporated by the Sentencing Commission into amendments issued under section 994(p) of title 28);
and
18 U.S.C. Section 3553(a)
(ii)that, except as provided in section 3742(g), are in effect on the date the defendant is sentenced; or
(B)in the case of a violation of probation or supervised release, the applicable guidelines or policy statements issued by the Sentencing Commission pursuant to section
994(a)(3) of title 28, United States Code, taking into account any amendments made to such guidelines or policy statements by act of Congress (regardless of whether
such amendments have yet to be incorporated by the Sentencing Commission into amendments issued under section 994(p) of title 28);
(5)any pertinent policy statement—
(A)issued by the Sentencing Commission pursuant to section 994(a)(2) of title 28, United States Code, subject to any amendments made to such policy statement by act
of Congress (regardless of whether such amendments have yet to be incorporated by the Sentencing Commission into amendments issued under section 994(p) of title
28); and
(B)that, except as provided in section 3742(g), is in effect on the date the defendant is sentenced.[1]
(6)the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct; and
(7)the need to provide restitution to any victims of the offense.
Important
Considerations
Plea
Agreements –
The Impact on
Sentencing
 Appeal waiver.
 The Factual basis.
 Agreed upon Guidelines.
The PSI
Interview
 Determine whether your client should interview.
 Prepare your client.
 Do NOT allow your client to attend without you.
 Expert
Sentencing
Mitigation
 Psychologist.
 Bureau of Prisons.
 Medical.
 Non-Expert




Friends and family.
Employers.
Letters to court.
Photographs.
Allocution
Allocution. (al-ə-kyoo-shən) n. (1858) Criminal procedure. 1. A trial
judge's formal address to a convicted defendant, asking whether
the defendant wishes to make a statement or to present
information in mitigation of the sentence to be imposed. • This
address is required under Fed. R. Crim. P. 32(c)(3)(C). 2. An unsworn
statement from a convicted defendant to the sentencing judge or
jury in which the defendant can ask for mercy, explain his or her
conduct, apologize for the crime, or say anything else in an effort to
lessen the impending sentence. • This statement is not subject to
cross-examination. 3. Criminal procedure. A defendant's admission
of guilt made directly to a judge, esp. in response to a series of
questions from the judge on whether the defendant understands
the charges, the right to a trial, the consequences of a guilty plea,
and the voluntary nature of the plea. Black’s Law Dictionary (10th ed.
2014), Bryan A. Garner, Editor in Chief.
Allocution
Letter from client.
Client address to the court.
Allocution article.
Non-citizen
defendants
 Treaty transfers.
 http://www.justice.gov/criminal-oeo/international-prisonertransfer-program
 Office of the Federal Public Defender
 Jefferson City: 573-636-8747
 Kansas City: 816-471-8282
 Springfield: 417-873-9022
Additional
Resources
 Defender Services Office Training Division: www.fd.org
 An Introduction to Federal sentencing, Bradford Bogan, Assistant
Federal Public Defender, Western District of Texas.
 United States Sentencing Commission
 www.ussc.gov
 Helpline: 202-502-4545
United States v. Booker, 543 U.S. 220 (2005)
Rita v. United States, 551 U.S. 338 (2007)
Kimbrough v. United States, 552 U.S. 85 (2007)
Additional
Resources
Gall v. United States, 552 U.S. 38 (2007)
Irzarry v. United States, 553 U.S. 708 (2008)
Spears v. United States, 555 U.S. 261 (2009)
Pepper v. United States, 131 S.Ct. 1229 (2011)
Peugh v. United States, 133 S.Ct. 2072 (2013)
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The End.