Below, a DC white-collar attorney answers some questions about federal sentencing.
Federal cases use the U.S. voluntary sentencing guidelines, which are drafted and revised every so often by the U.S. Sentencing Commission. They are more complicated than the criteria used to sentence defendants in state courts. They take into account many different factors, such as your criminal history, the severity of the offense, the dollar value of harm that has taken place, whether the individual has cooperated with the government, whether they’ve accepted responsibility, and whether they’ve shown remorse.
All of these factors are plugged into a formula and then there is a guideline range that is calculated on a grid. Based on the severity of the offense and all of the factors in that guideline range, a recommended sentence is made to the judge. The federal sentencing guidelines are voluntary, which means that the judges do not have to follow them. They are just advisory. However, the vast majority of federal judges in the United States follow the sentencing guidelines unless there’s an extraordinary reason to give a departure.
A departure occurs if the court is persuaded that because of unusual circumstances that the defendant is in or because of the exemplary amount of cooperation that the defendant has given to the government in prosecuting this case or other cases and that the person warrants a deviation from the standard.
Generally speaking, if a person cooperates with the government, there is an agreement between the government and the defense that they will jointly make a recommendation for a departure, or at least the government will not oppose this defense request. In this scenario, it is very important to have a good lawyer on your side because there are certain exceptions and limitations to that recommendation for a lighter sentence as a result of cooperation.
There are times when the government believes that, despite the defendant’s best efforts, they have failed to meet their obligation. That’s when you need an aggressive attorney who understands the process and has familiarity with the judges to make a credible argument for you that you have earned this departure and that the court should respectfully give it to you.
For anyone considering hiring an attorney to represent them in federal court, look for a lawyer withe experience handling federal cases at a high level and a large volume. The federal system is very different than the state system. It’s a lot more complex. The expectations of the judges are much higher in federal courts than in state courts.
There is a certain amount of leeway that is given to attorneys in state courts, and by no means are they easy to practice in, but the judges tend to be more understanding of scheduling conflicts and an attorney’s unfamiliarity with a particular procedural practice. There is a general expectation in federal court that you know what you’re doing. If your attorney does not know what they’re doing in federal court, the case will unravel very quickly.