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Getting a Lower Sentence in a Federal Criminal Case by Using Proposed Amendments to the Federal Sentencing Guidelines

Kish Law LLC

Readers know that we handle lots of federal criminal cases, in Georgia, Florida, Alabama, and throughout the country.  I just finished a sentencing this afternoon in which we got a lower sentence by pointing the Judge to some proposed changes to the Federal Sentencing Guidelines.  Along with some other factors, these proposed changes led the Judge to decide that the Guidelines were too high, and he reduced my client’s sentence.  I always set my sights pretty high, and had hoped that the Judge would reduce my client’s sentence even more than he did, but the fact that we got a lower sentence at all shows how there are many ways to get the Court to impose something below what the Guidelines recommend.

Most people reading this blog know that there are two types of rules that govern a sentence that is imposed for a federal crime.  First, Congress passes statutes, which many people call the “laws.”  The “statute” generally sets out any minimum punishment, along with the maximum sentence that can be imposed.  Second, way back in the 1980’s Congress created a body called the United States Sentencing Commission.  This group publishes the Sentencing Guidelines.  These Guidelines recommend a sentence somewhere between the minimum and the maximum set out by the statutes.

The Sentencing Guidelines are not only wickedly complex, they also are amended on an almost-yearly basis.  Each year, the Sentencing Commission recommends changes, which Congress either approves of rejects.  The yearly proposed amendments tend to come out in January, and go into effect the following November. The trick for the experienced federal criminal defense lawyer is to pick out the upcoming changes that might help their client, point out that it is unfair for the client to not get the benefit of that change simply because the sentencing hearing will not take place after November 1, and then try to convince the Judge that a lower sentence is therefore appropriate.

We used this tactic in today’s hearing.  My client was being sentenced for a crime that impeded the Internal Revenue Service.  For economic crimes such as this, a variety of factors can cause the Guidelines to go higher, factors such as the amount of “loss”, and the number of “victims.”  We pointed out to the Judge that the “loss” and “victim” concepts are part of the proposed changes to the Guidelines, and that if my client had been sentenced after November 1 of this year, he likely would be facing a lower sentencing range.  It worked, just not as much as I had hoped.  Today’s case just reminds me that getting the best and lowest sentence for a client requires lots of work, creativity and sometimes, just a bit of good fortune.  The key is to not give up and keep trying to do the best we can for our clients.

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