U.S. Sentencing Guidelines Have a “Trial Tax”

The defense of Federal Criminal cases in the Western and Northern Districts of Texas requires a careful study of the Federal Sentencing Guidelines at the very beginning of the defense of a Federal case. Despite the U.S. Supreme Court’s decision in U.S. v. Booker which held that the U.S. Sentencing Guidelines were “advisory” in nature, the judges in the Western and Northern Districts still rely on the Guidelines for sentencing in the great majority of cases.

Because the guidelines are so crucial to the outcome of a Federal Criminal case in this area, I immediately look into the guidelines as soon as I am hired and go over the facts of the case with the client and compare them with the Indictment and then with the Federal Criminal Statutes. If at all possible, I want to have an idea of the best and worst case scenario before I attend the first preliminary hearing and prior to uttering a single word in defense of my new client.

For someone charged with a federal crime, the U.S. Sentencing Guidelines contain what I like to call “taxes”; that is, penalties for exercising constitutional rights most people take for granted. For example, if my client refuses to talk to the FBI or the DEA, such failure may later be penalized in the guidelines as “obstruction”. On the other hand, if an accused does give a statement to the government agents which later proves to be false, he can be subject to the same penalty by the addition of “levels”; the higher the level total, the higher the sentence.

In addition to the “taxes” found in the Federal Sentencing Guidelines, further ambushes await within the Federal Criminal Statutes in the form of statutory mandatory minimum sentences. The most common types of mandatory minimums exist in three types of federal prosecutions: drugs, firearms, and child-sex offenses.

In drug cases, these mandatory minimum sentences can be based on the amount of drugs involved, as well as on the criminal history of the defendant.

Firearms cases can have mandatory minimum sentences ranging from 5 years up to life imprisonment, depending on the type of firearm, how the firearm was used, and whether the defendant has other firearms-related convictions. The use of fire or explosives in the commission of an offense can raise the minimum penalty to 10 years.

Child and sex offense penalties can be among the most severe in the federal system, due to the Adam Walsh Child Protection and Safety Act of 2006, which added or increased both maximum and mandatory minimum penalties for sexual offenses involving children.

A single count in a multi-count federal indictment involving a mandatory minimum sentence can raise the stakes for the defendant so as to invoke the final “tax” in the federal system: the “Trial Tax”. That is, the mandatory minimum count can be used by the Assistant U.S. Attorney as a plea bargaining tool– the government offers to dismiss the count with the mandatory minimum in return for a guilty plea by the defendant to some or all of the other counts in the indictment. In most cases, the defendant would be “taxed” for exercising his right to a jury trial by the specter of a much heavier sentence with the addition of a lengthy mandatory minimum sentence should the defendant be found guilty by a jury.

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