United States Justice Department statistics show that approximately 97 percent of all federal criminal defendants plead guilty. The single most important question asked by an individual convicted of a federal crime is this: How do I get the lowest possible sentence? The second most important question is: If I am going to federal prison, how can I get in the best facility that is the most geared to my particular needs? Finally, for those individuals who are going to have to serve time, they want to know how much time they will have to serve.
In this federal sentencing blog series, we will answer these three critical questions. As always, your particular case is different from anyone else’s. To have a more specific answer to these questions, an office consultation is required..
1. Negotiate the Most Favorable Plea Agreement and Limit the Charges to a Minimum
The first step in obtaining the best possible sentence on a federal criminal charge is to make the most favorable plea agreement that limits the charge(s) that has the lowest federal sentencing guidelines score. Even tough the federal sentencing guidelines are no longer mandatory (they are advisory) federal judges are required to consider the application of the sentencing guidelines, motions for departures under the guidelines, and the final guideline sentence range in determining the sentence. While the provisions of the Sentencing Reform Act ultimately control what sentence the court should impose, judges will consider the advisory guidelines sentence.
Very often, the underlying facts of the alleged crime will fit within the definition of more than one federal prohibition. The guideline “base offense level” for other potential crimes may be lower than the offense level for the crime under consideration by the Assistant US Attorney handling your case. If your federal criminal defense attorney can persuade the prosecutor to charge you with an offense with a lower base offense level, your total guideline score may be lower, making the advisory guideline sentencing range lower. In other words, you will already be starting from a lower sentence.
Can you argue for a downward adjustment based on mitigating factors in the relevant conduct considerations under the guidelines? The sentencing guidelines provide for upward and downward adjustments of the offense level. You may be entitled to a downward adjustment based on many mitigating factors that are explicitly recognized in the guidelines.
Are there any reasons for the court to recognize a “departure” from the advisory guidelines? There may be several reasons why you may qualify for a downward departure from the guidelines. The reasons are explicitly recognized in the guidelines. If you can persuade the prosecutor to agree to, or at last not oppose the court’s downward departure, you have another opportunity to reduce the final offense level under the guidelines. The lower the final offense level, the better. This translates to less jail time. If the final guideline score is 8 or less, then the advisory guidelines generally authorize a sentence of probation. Probation is also available under the guidelines if the final offense level is 11 or less, however, the court must impose some condition of intermittent confinement, such as home detention.
Obtaining a sentence that varies from the advisory guidelines (a “variance sentence”) will be discussed in our sentencing blog posts to follow.
The best way to obtain the optimal plea deal is for your attorney to meet with the Assistant United States Attorney handling your case. Your lawyer needs to establish a good relation ship with the person who is in charge of prosecuting you. This works to your benefit in terms of obtaining the sentence, and in innumerable ways through the conclusion of your case. The lawyer you retain has to bring energy and a positive approach to handling the case, and that positive approach has to carry forward up through the sentencing phase.
For further information, see our article on federal sentencing.
For individuals who are facing NJ federal criminal prosecution or sentencing in the United States District Court for the District of New Jersey, or state criminal prosecution or sentencing in the criminal courts of New Jersey, or who are appealing their criminal matters before the United States Court of Appeals for the Third Circuit, the New Jersey Appellate Division, or the Supreme Court of New Jersey, it is critical to have an experienced federal and state New Jersey criminal defense attorney represent you. The experienced criminal defense lawyers of Schwartz & Posnock appear in all Federal Courts of New Jersey, as well as the State and Municipal criminal courts in New Jersey, and have convenient locations in Monmouth County (Eatontown), Essex County (Livingston), Union County (Linden), and Middlesex County (East Brunswick). Call us at 732-544-1460 or email us at info@schwartzposnock.com to schedule an appointment, and make sure to visit our web page at www.schwartzposnock.com. We look forward to obtaining a positive outcome in your case.