Look up Your Criminal Charge in the Table of Contents
Look into the Table of Contents. Chapter 2 lists categories of crimes and groups them. For example, if you are charged with embezzlement your charge would be found in Chapter 2, Part B (Basic Economic Offenses) under Section 2B1.1
Determine Your Criminal Charge's Base USSG Level of Conduct Points
Every Charge has a base Conduct Point level. Embezzlement for example has a base Conduct Point level of 6 points under Chapter 2 Part B Section 2B1.1(a)(2).
Calculate Your Case's Sentencing Enhancements Based on the Specific Characteristics of Your Case
Many crimes have enhancements. The Table at Chapt. 2 Part B Section 2B1.1 (b) (1) is used to enhance all basic economic loss. Follow the directions in the table and add the appropriate point total to the base level as determined in Step 3 above.
Hence if you are charged with stealing Fifty Thousand ($50,000) Dollars from work, you would have a base level of 6 points (Step 3) and an enhancement of 6 points for a total of 12 Conduct Points.
Determine Whether There Are Any Aggravating Circumstances that Would Enhance the Point Total
Chapter 3 contains a list of adjustments that will increase point totals above. Aggravating factors include but are not limited to the age of the victim and the relationship between the accused and the victim, use of a minor to commit the crime etc. A list of factors can be found in Chapter 3 of the Manual.
If there are aggravating , then add points as instructed.
Using our Embezzlement example, if the accused is an accountant, and he used his position of trust to advance his scheme to embezzle, then there would be an aggravating increase of 2 points (See Chapter 3 part B Section 3B1.3).
Determine Whether There Are Any Mitigating Factors to Reduce the Sentence
Also found in Chapter 3 are statutory mitigating factors that the court can use to reduce the sentence or specifically the USSG Conduct totals. These factors include minimul or minor role in the planning or staging of the crime and Acceptance of Responsibility (such as entering a plea of guilty to a crime and not forcing the government to expend resources to prove their case.
f the accused took a plea of guilty early in the case and made full restitution within a reasonably quick time from apprehension (this should be worked out with the accused's lawyer and not done in any deal with the arresting authority alone) then there would be a 2 point reduction under Chapt. 3 Part E section 3E1.1(a).
In our case, the 2 point reduction for Acceptance of Responsiblility would cancel the point enhancment that the Client would face for misusing a position of trust.
Add and Subtract the Points as Instructed by the Guidelines. This Will Determine the Offense Level.
Add all the points together and subtract where appropriate. This will give you an Offense level. We will use this after we determine your Criminal History level
Determine your Criminal History level.
Chapter 4 Part A Section 4A1.1 describes how to determine one's Criminal History point total.
Note that the time that has elapsed from the time of a prior offense to the time of the present offense does not lead to a reduction. In fact all of your prior criminal conduct is included in the final total.
For our example, let us assume this is a first offense, so the Criminal History points are Zero (0).
Turn to the Chart in Chapter 5, Part A
There is a chart in Chapter 5 Part A of the Manual. The Criminal History Points are listed on the top of the chart. In our case we are in Criminal History Category 1 due to one or zero Criminal History points.
Along the Left hand side of the chart are the Conduct point totals. In our case the total is 12. This would lead to a USSG recommendation of 10-16 months. This sentence could be served in part under house arrest, and may not require imprisonment.
Not the Final Word
Sentencing in a complex (or to a lesser extent a simple) Federal criminal case is no easy task. The instructions above are meant only to give you a basic idea of where you stand at the start of the case. Actions you take, and that your attorney takes, can be critical in determining whether the guideline sentence will fall or stand.
Hiring the "right" lawyer is the most important thing you can do. A lawyer doesn't have to be the most expensive, but as with most things, you often get what you pay for. This is not the time to be bargain hunting. A lawyer must not only be good at massaging the USSG Manual, but also should be someone who can handle a trial in the case and keep an eye on the potential ups and downsides to handling a federal prosecution.
Since the Sentencing Guidelines were made discretionary by the US Supreme Court in 2006, knowing the rules of Sentencing is a key to a successful defense even if a trial is held.