Schwartz & Posnock, New Jersey Criminal Defense Lawyers: Sentencing on a Federal Criminal Charge – An Introduction to the Process

New Jersey Criminal Lawyers Schwartz Posnock

Individuals who are charged with a federal criminal offense are often unfamiliar with the federal sentencing process. Federal court sentencing bears very little resemblance to sentencing in State court. We offer this series of blogs to give potential clients some basic information about federal court sentencing.

In 2005, the Supreme Court ruled in United States v. Booker, that the Federal Sentencing Guidelines were advisory. Until the Supreme Court made the Booker ruling, the Federal Sentencing Guidelines were mandatory. The Guidelines controlled nearly every aspect of the individual’s sentence. Federal judges had very little discretion and often lamented that their role in sentencing was reduced to that of an actuary.

Even though the Guidelines are advisory, a sentencing judge must still consider the Guidelines in determining the appropriate sentence. In fact, consideration of the advisory Guideline sentence is the first step in the process of arriving at the appropritate sentence. Further, to illustrate the on-going vitality of the Guidelines, the Supreme Court has held that any sentence within the guideline range may be considered “presumptively reasonable.”

Thus, federal criminal defense attorneys must consider the sentencing guidelines calculation and the applicable guideline range in plea negotiations and, ultimately, the plea agreement.

Now, although federal judges must still consider the Guidelines, in determing the appropritate sentence, a court must also consider statutory concerns and objectives of the Sentencing Reform Act, which readers can find at 18 U.S.C. §3553(a).A federal court must consider the following factors:

  • The nature and circumstances of the offense and the history and characteristics of the defendant;
  • The need for the sentence imposed-
  • To reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense;
  • To afford adequate deterrence to criminal conduct;
  • To protect the public from further crimes of the defendant; and
  • To provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner;
  • The kinds of sentences available;
  • The need to avoid unwarranted sentence disparity, and
  • The need to provide restitution to any victims

In the era of mandatory guidelines, federal criminal defense attorneys advocated for a sentencing court to recognize a “departure” under the guidelines, which, in very limited circumstances, allowed judges to depart downward from the mandatory guideline sentence. Very often, the basis for a departure was the substantial cooperation of a defendant with federal law enforcement investigations. However, a departure on these grounds was only available if the prosecutor agreed to the departure, and if the prosecutor made a motion to the court for a departure at the time of sentencing.

Rather than ask the court for a departure, federal crimiinal lawyers may now advocate for what is deemed a “variance” from the guideline sentence.

As a result, the nature of plea negotiations and plea agreements has changed to reflect this new sentencing landscape.

If you would like to consult with us with regard to plea negotiations and sentencing in a federal criminal case, please call Schwartz & Posnock at our offices in Monmouth County (Eatontown); Middlesex County (East Brunswick); Union County (Linden), and Essex County (Livingston).

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