Bookmark and Share  Print 

Friday May 16, 2014

posted by William Yesowitch
Tags: In the news 

Sentencing for criminal acts in violation of Federal Statutes is handled differently than that for state crimes.  In the federal system, under the Sentencing Reform Act of 1984, guidelines were implemented with the intended purpose to further the basic purpose of criminal punishment, deterrents, incapacitation and just punishment and rehabilitation.  The Act sought to provide uniform sentences across the United States for similar crimes arising in different jurisdictions.  The sentencing guidelines become effective on November 1, 1987 and applied to all criminal offenses committed on or after that date.  The Commission was granted the authority to submit guideline amendments each year to Congress before the beginning of the regular congressional sessions through May 1st.  Any and all amendments automatically take effect 180 days after the submission unless Congress enacts a law to the contrary.  (28 U.S.C. § 994(p)).

After a Court challenge, the guidelines which were initially mandatory have become discretionary (U.S. v. Booker), granting leeway for the courts to consider the guidelines but may depart for a variety of reasons if the reasons are clearly identified and stated.  On April 10, 2014, the United States Sentencing Commission voted, once again, to amend the Sentencing Guidelines.  The amendments will take effect on November 1, 2014, unless Congress passing legislation disapproving them.  None of these amendments are effective until November 1st and everyone should be cognizant of the fact that the modifications still may be requested by way of a variance.  The most significant change relates to drug trafficking cases where the offense levels, found at 2B1.1 of the Federal Guidelines and the precursor table found at 2D1.11, were reduced.  These levels will be reduced by two levels, but the top level will remain at 38 and certain drugs will retained at a minimum level of 12.  At the present time, it is unknown as to whether or not these guideline reductions will be applied retroactively, or if the Commission may place limits upon who is eligible for relief such as those who may have received a safety valve consideration or persons sentenced before the guidelines because discretionary.  This reduction is significant because at the higher offense levels, the guideline ranges increase significantly.  For example, a guideline level of 32, which constitutes a charge involving between 5 and 25 kilograms of cocaine carry with it a range of 121 months to 151 months.  A two level reduction represents a two year reduction at the low end almost a four year reduction at the high end, the corresponding range at level 30 being 97 month to 121 months.  Thus, it is imperative that a criminal defendant involved in cases involving large quantities of drugs should be aware that the guidelines will likely be changing as of November 1st of this year and should either seek to continue their sentencing beyond that date or at a minimum, request that the sentencing court consider the amendments in the form of a variance from the proposed sentencing range.