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Strategic Approaches for Staying Out of Federal Prison

Posted by Dmitry Gorin | Oct 08, 2019 | 0 Comments

At the criminal defense law firm of Eisner Gorin LLP, a large portion of our practice involves federal crimes, rather than California State, investigations, plea negotiations, and trials.

There are several aspects of federal criminal law practice similar to State practice, such as jury trials where the prosecutor has to prove the charges beyond a reasonable doubt, and a prefiling intervention to avoid formal filing of charges before court, and even negotiating with a prosecutor for a reduction of charges.

However, one primary area in federal law with a significant difference than state law is sentencing a defendant. For example, in a California State criminal court, a sentence pursuant to a negotiated plea deal with the prosecutor is almost always a sure thing.

This means the defendant's exact sentence is agreed upon before a Guilty or No Contest plea. The role of the judge is just to approve the deal – which happens is just about 100% of all cases.

Even in a situation where a defendant is found guilty at trial in a state criminal court, or if they enter a “open plea,” it's still easy to determine the likely sentence because the discretion by the judge is limited by California's determinate sentencing scheme.

For example, under the California Penal Code for most serious crimes, a judge is required to choose a sentence from a low, middle, or high term. sentence. This means a crime that listed as punishable as a “2, 3, 5,” has to be sentenced to either 2, 3, or 5 years in a California state prison. The judge has no discretion to decide a longer sentence, unless there are other charges or enhancements.

Sentencing in Federal Criminal Courts

In federal criminal courts, a sentencing judge has significant more discretion to impose an appropriate sentence. This means it's crucial for a defendant to have an experienced federal criminal lawyer for their sentencing hearing. More specifically, to craft an effective sentencing position memorandum to submit to the court before sentencing. This is critical to obtain the best possible outcome on their case.

Due to the fact a federal judge has substantial discretion, it means a conviction for the exact same federal offense could result in a significant different sentence, that could greatly depend on the defendant's defense attorney.

Federal sentencing starts with the United States Sentencing Guidelines. At a basic level, they match up offense conduct for which the defendant was found guilty, with their criminal history, which produces a guideline “range,” in the form of months of federal time in prison.

For example, a specific federal crime could be listed under the guidelines as offense level 18. If a defendant doesn't a criminal record, they would then fall under criminal history category I, meaning a sentencing guideline range of 27 to 33 months in federal prison.

However, a federal judge has the discretion to “depart” from sentencing guidelines if they are provided mitigating circumstances. It should be noted that the federal government's focus on criminal justice reform has resulted in Congress passing the First Step Act, which has made substantial changes to several aspects of federal criminal laws. The most notable change is the application of sentencing guidelines to federal offenses.

Federal Sentencing Guidelines Departures

An experienced federal criminal defense attorney can present a sentencing position for their client which will cover several provisions in the sentencing guidelines that allow a “departure,” from the guidelines range.

Every specific reason asserted for downward departure needs to be documented and supported with evidence in a sentencing memorandum. Common mitigating reasons for downward departures from federal sentencing guidelines include:

  • Defendant's early acceptance of responsibility for their conduct
  • Defendant's conduct was a minor role in the crime
  • Defendant gave substantial assistance to law enforcement authorities
  • Defendant took direct steps to rehabilitate
  • Defendant has history of military service or community contributions
  • Defendant's current physical, medical, or mental condition

Common departures include a two or three-level downward departure for defendant's early acceptance of responsibility for their behavior. In the example above, this means this departure would change the guidelines range to 18 to 24 months.

Playing a Minor Role in the Crime

A common departure is a two-level offense reduction when a defendant played a minor role in the federal crime. For example, perhaps our defendant's role in a large fraud scheme was substantially less that the other defendant's.

This two-level offense reduction would yield a federal sentencing guideline range of 12 to 18 months. Application of only two of the dozens of potential downward departures under the guidelines can cut a defendant's guidelines range in half.

It should be noted the guidelines are just the starting point in federal sentencing – they are considered advisory.  The federal sentencing judge could also vary from the guidelines range due to many other factors specifically related to the defendant, such as their history.

Lowest Possible Federal Sentence

Variances could result in a sentence below or even above the advisory guidelines range. This means you need an experienced federal defense lawyer to present a compelling mitigating case for the lowest possible sentence.

There are many mitigating factors, such as defendant's traumatic past, mental health, drug or alcohol abuse issues, positive efforts in the community, etc. Every potential factor needs to be effectively presented to convince the federal judge to exercise their discretion in varying downward from the guidelines range.

In cases where you can't secure a departure, you could be eligible for a variance – which is a sentence outside the guideline range. The federal judge could utilize a downward departure to determine an applicable sentencing range, as well as a variance below the guideline range to order a sentence. A variance could even result in probation.

Plea Bargaining in Federal Criminal Cases

Plea bargaining is crucial because it often limits the defendant's and prosecutor's ability to argue for specific departures.  Different from state courts, federal plea agreements are lengthy legal contracts that are executed and then filed with the court.

The documents are a factual basis for the plea. The prosecutor could seek the defendant's agreement that they will not argue for an offense level below a certain number. The prosecutor and defendant may commit to a certain loss amount attributable to their conduct, which affects the guidelines range and possible restitution obligations.

The details of the plea agreement will have material impacts on the available arguments at a federal sentencing hearing. This means you must have effective representation with a goal of achieving a minimum sentence from the beginning of the process.

As you can see, federal sentencing can be a complex process. You need to retain a federal criminal defense attorney at the early stages of your case to have the best chance of a favorable outcome. If you are under a federal criminal investigation, or already indicted, contact our law firm for a consultation.

Eisner Gorin LLP
1875 Century Park E #705
Los Angeles, CA 90067

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About the Author

Dmitry Gorin

Dmitry Gorin is a licensed attorney, who has been involved in criminal trial work and pretrial litigation since 1994. Before becoming partner in Eisner Gorin LLP, Mr. Gorin was a Senior Deputy District Attorney in Los Angeles Courts for more than ten years. As a criminal tri...


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