How the Federal Sentencing Guidelines Work: Two Examples

Congressional research reportApr 4, 2005

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Order Code RL32846

CRS Report for Congress

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How the Federal Sentencing

Guidelines Work: Two Examples

April 4, 2005

name redacted

Senior Specialist

American Law Division

Congressional Research Service ˜ The Library of Congress

How the Federal Sentencing

Guidelines Work: Two Examples

Summary

Until recently, the federal Sentencing Guidelines determine the sentences

imposed as punishment for most federal crimes. They are now only advisory, but

remain a major sentencing consideration. The guidelines system is essentially a

scorecard system. This is a discussion of how the system works using two relatively

simple examples – one involving a terrorism-related crime and the other involving

drug trafficking – and following this roadmap:

I. Identify the applicable guideline which sets the base offense level for the

crime(s) of conviction (i.e., the level assigned based on the nature of the

offense):

A. Add levels to account for the presence of any aggravating factors

indicated in the guideline.

B. Subtract levels to account for any mitigating factors designated in the

guideline.

II. Adjust (levels added and subtracted) for:

A. Victim-related

B. Role in the offense

C. Obstruction

D. Multiple counts

E. Acceptance of responsibility.

III. Find the criminal history category (assign points for criminal record).

IV. Consider career offender alternative (required in some cases).

V. Consider whether departures are appropriate.

VI. Convert using sentencing table (final offense level points/criminal history

points = sentencing range).

A. Imprisonment

B. Probation

C. Supervised release

D. Restitution

E. Fine

F. Forfeiture

G. Special assessments.

Abridged versions of portions of this report – without its footnotes, appendices,

or most of its quotations and citations to authority – are available as CRS Report

RS22104, Sentencing Under the Federal Sentencing Guidelines: An Abridged

Controlled Substance Example, and CRS Report RS22105, Sentencing Under the

Federal Sentencing Guidelines: An Abridged Terrorism Related Example.

Contents

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Terrorism . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Controlled Substance Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Other Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

Appendices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

Drug Quantity Table . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

Drug Equivalency Tables . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40

Selected Bibliography . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42

How the Federal Sentencing

Guidelines Work: Two Examples

Introduction

Until recently, the federal Sentencing Guidelines determined the sentences

meted out as punishment for most federal crimes. Then the Supreme Court declared

that as a matter of constitutional necessity the Guidelines must be viewed as advisory

rather than mandatory, United States v. Booker, 125 S.Ct. 738 (2005).1 The

Guidelines remain a major consideration nevertheless. The Guidelines system is

essentially a scorecard system. The purpose of this report is to give a bare bones

description of the score-keeping process with simple examples of how it works.

Congress created the United States Sentencing Commission and authorized it

to promulgate sentencing guidelines, 28 U.S.C. 991-998, in order to eliminate and

prevent “unwarranted sentencing disparity.”2 The statutes that define federal crimes

still identify the maximum penalties – and in some cases the minimum sentences –

that may be assessed. The Guidelines, however, provide the standards that most

often speak to how federal criminals will be punished within those boundaries.3 The

Mandatory application of the Guidelines raised constitutional concerns under the Sixth

Amendment’s jury trial clause and the Fifth Amendment due process clause, neither of

which undermine the basic constitutional validity of the Guidelines as a Congressional

delegation of authority, 125 S.Ct. at 754-55; Mistretta v. United States, 488 U.S. 361 (1989);

see generally, United States Sentencing Guidelines and the Supreme Court: Booker, Fanfan,

Blakely, Appendi, and Mistretta, CRS Rep. RL32573 (2005).

H.R.Rep.No. 1017, 98th Cong., 2d Sess. 34 (1984); S.Rep.No. 225, 98th Cong., 1st Sess. 41

(1983).

Although the Guidelines must ordinarily yield to a statutory mandatory minimum,

Congress has established a safety valve for certain first time, low level drug offenders under

which they escape the statutory mandatory minimum sanctions for sentencing under the

Guidelines: “Notwithstanding any other provision of law, in the case of an offense under

section 401, 404, or 406 of the Controlled Substances Act (21 U.S.C. 841, 844, 846) or

section 1010 or 1013 of the Controlled Substances Import and Export Act (21 U.S.C. 960,

963), the court shall impose a sentence pursuant to Guidelines promulgated by the United

States Sentencing Commission under section 994 of title 28 without regard to any statutory

minimum sentence, if the court finds at sentencing, after the Government has been afforded

the opportunity to make a recommendation, that –

(1) the defendant does not have more than 1 criminal history point, as determined

under the sentencing Guidelines;

(2) the defendant did not use violence or credible threats of violence or possess a

firearm or other dangerous weapon (or induce another participant to do so) in connection

with the offense;

(3) the offense did not result in death or serious bodily injury to any person;

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Commission’s mandate includes the power to amend the Guidelines or promulgate

new ones, 28 U.S.C. 994(p), (r). Commission amendments become effective unless

affirmatively modified or rejected by Act of Congress, 28 U.S.C. 944(p).

The Guidelines apply to sentences imposed by the federal courts for crimes

committed after November 1, 1987. The federal courts must impose a sentence after

consideration of the factors identified in 18 U.S.C. 3553(a) including the sentence

called for by operation of the Guidelines.4 The Guidelines themselves call for

deviation (departure) where the government moves for departure based upon the

(4) the defendant was not an organizer, leader, manager, or supervisor of others in the

offense, as determined under the sentencing Guidelines and was not engaged in a continuing

criminal enterprise, as defined in section 408 of the Controlled Substances Act; and

(5) not later than the time of the sentencing hearing, the defendant has truthfully

provided to the Government all information and evidence the defendant has concerning the

offense or offenses that were part of the same course of conduct or of a common scheme or

plan, but the fact that the defendant has no relevant or useful other information to provide

or that the Government is already aware of the information shall not preclude a

determination by the court that the defendant has complied with this requirement,” 18

U.S.C. 3553(f).

The court shall impose a sentence sufficient, but not greater than necessary, to comply

with the purposes set forth in paragraph (2) of this subsection. The court, in determining

the particular sentence to be imposed, shall consider – (1) the nature and circumstances of

the offense and the history and characteristics of the defendant; (2) the need for the sentence

imposed – (A) to reflect the seriousness of the offense, to promote respect for the law, and

to provide just punishment for the offense; (B) to afford adequate deterrence to criminal

conduct; (C) to protect the public from further crimes of the defendant; and (D) to provide

the defendant with needed educational or vocational training, medical care, or other

correctional treatment in the most effective manner; (3) the kinds of sentences available; (4)

the kinds of sentence and the sentencing range established for – (A) the applicable category

of offense committed by the applicable category of defendant as set forth in the Guidelines

– (i) issued by the Sentencing Commission pursuant to section 994(a)(1) of title 28, United

States Code, subject to any amendments made to such Guidelines by act of Congress

(regardless of whether such amendments have yet to be incorporated by the Sentencing

Commission into amendments issued under section 994(p) of title 28); and (ii) that except

as provide in section 3742(g)[relating to sentencing on remand], are in effect on the date

the defendant is sentenced; or (B) in the case of a violation of probation or supervised

release, the applicable Guidelines or policy statements issued by the Sentencing

Commission pursuant to section 994(a)(3) of title 28, United States Code, taking into

account any amendments made to such Guidelines or policy statements by act of Congress

(regardless of whether such amendments have yet to be incorporated by the Sentencing

Commission into amendments issued under section 994(p) of title 28); (5) any pertinent

policy statement – issued by the Sentencing Commission pursuant to section 994(a)(2) of

title 28, United States Code, subject to any amendment made to such policy statement by act

of Congress (regardless of whether such amendments have yet to be incorporated by the

Sentencing Commission into amendments issued under section 994(p) of title 28); and (B)

that, except as provided in section 3742(g), is in effect on the date the defendant is

sentenced; (6) the need to avoid unwarranted sentence disparities among defendants with

similar records who have been found guilty of similar conduct; and (7) the need to provide

restitution to any victims of the offense,” 18 U.S.C. 3553(a)(emphasis added).

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defendant’s cooperation with law enforcement authorities,5 or the court feels that the

Commission failed to adequately consider the kind of factors raised by a particular

case when it developed the otherwise applicable Guidelines.6

The Guidelines assign most federal crimes to one of forty-three “offense levels”

based on the severity of the offense. Every offender is assigned to one of six

“criminal history categories” based upon the extent of his or her past misconduct.

The combination of offense levels and criminal history categories governs the

severity of the penalties assessed under the Guidelines.

This is a walk through the Guidelines using as vehicles two reported cases,7

with the sentences calculated according to the Guidelines’ score-keeping procedure:

I. Find the applicable guideline which sets the base offense level for the crime(s)

of conviction (i.e., the level assigned based on the nature of the offense).

A. Add levels to account for the presence of any aggravating factors

indicated in the guideline

B. Subtract levels to account for any mitigating factors designated in the

guideline.

II. Adjust (levels added and subtracted) for:

A. Victim related

B. Role in the offense

C. Obstruction

D. Multiple counts

E. Acceptance of responsibility.

III. Find criminal history category (assign points for criminal record).

IV. Consider career offender alternative (required in some cases).

V. Consider whether departures are appropriate

“Upon motion of the Government, the court shall have the authority to impose a sentence

below a level established by statute as minimum sentence so as to reflect a defendant’s

substantial assistance in the investigation or prosecution of another person who has

committed an offense. Such sentence shall be imposed in accordance with the Guidelines

and policy statements issued by the Sentencing Commission pursuant to section 994 of title

28, United States Code,” 18 U.S.C. 3553(e); U.S.S.G. §5K1.1. (The Guidelines are issued

independently by the Sentencing Commission and appear in the various editions of the

Commission’s United States Sentencing Commission Guidelines Manual (Guidelines

Manual) and an appendix in the United States Code Annotated (18 U.S.C.A. App.) and the

United States Code Service (18 U.S.C.S. App.) but they are not carried in the United States

Code (U.S.C.).

E.g., U.S.S.G. §4A1.3 authorizing a sentence more severe than the Guidelines would

otherwise permit (a so-called “upward departure”) if, in the sentencing court’s view, the

guideline’s procedure for calibrating the weight to be given a defendant’s criminal record

“does not adequately reflect the seriousness of the defendant’s past criminal conduct or the

likelihood that the defendant will commit other crimes; and permitting a corresponding

“downward departure” based upon the court’s view that the Guidelines overrepresent the

seriousness of the defendant’s past conduct; U.S.S.G. ch.5K (departures).

United States v. Biheiri, 299 F.Supp.2d 590 (S.D.N.Y. 2003); and United States v.

Korakis, 325 F.Supp.2d 628 (E.D.Va. 2004).

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VI. Convert using sentencing table (final offense level points/criminal history

points = sentencing range).

A. Imprisonment

B. Probation

C. Supervised release

D. Restitution

E. Fine

F. Forfeiture

G. Special assessments.8

Terrorism

Biheiri was convicted of various immigration-related false statements in

violation of 18 U.S.C. 1015(a)9 and 18 U.S.C. 1425(a)10 which the government

The Guidelines themselves have a more specific, if somewhat more cryptic, outline at

U.S.S.G. §1B1.1: “Except as specifically directed, the provisions of this manual are to be

applied in the following order: (a) Determine, pursuant to § 1B1.2 (Applicable Guidelines),

the offense guideline section from Chapter Two (Offense Conduct) applicable to the offense

of conviction. See § 1B1.2.

“(b) Determine the base offense level and apply any appropriate specific offense

characteristics, cross references, and special instructions contained in the particular

guideline in Chapter Two in the order listed.

“(c) Apply the adjustments as appropriate related to victim, role, and obstruction of

justice from Parts A, B, and C of Chapter Three.

“(d) If there are multiple counts of conviction, repeat steps (a) through (c) for each

count. Apply Part D of Chapter Three to group the various counts and adjust the offense

level accordingly.

“(e) Apply the adjustment as appropriate for the defendant's acceptance of

responsibility from Part E of Chapter Three.

“(f) Determine the defendant's criminal history category as specified in Part A of

Chapter Four. Determine from Part B of Chapter Four any other applicable adjustments.

“(g) Determine the guideline range in Part A of Chapter Five that corresponds to the

offense level and criminal history category determined above.

“(h) For the particular guideline range, determine from Parts B through G of Chapter

Five the sentencing requirements and options related to probation, imprisonment,

supervision conditions, fines, and restitution.

“(i) Refer to Parts H and K of Chapter Five, Specific Offender Characteristics and

Departures, and to any other policy statements or commentary in the Guidelines that might

warrant consideration in imposing sentence.”

“Whoever knowingly makes any false statement under oath, in any case, proceeding, or

matter relating to, or under, or by virtue of any law of the United States relating to

naturalization, citizenship, or registry of aliens . . . shall be fined under this title or

imprisoned not more than five years, or both. . . . .” 18 U.S.C. 1015(a).

“(a) Whoever knowingly procures or attempts to procure, contrary to law, the

naturalization of any person, or documentary or other evidence of naturalization or of

citizenship . . . Shall be fined under this title or imprisoned not more than 25 years (if the

offense was committed to facilitate an act of international terrorism (as defined in section

2331 of this title), 20 years (if the offense was committed to facilitate a drug trafficking

crime (as defined in section 929(a) of this title, 10 years (in the case of a first or second such

offense, if the offense was not committed to facilitate such an act of international terrorism

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unsuccessfully asserted had facilitated the support of overseas terrorist activity, 299

F.Supp. 2d 590 (E.D.Va. 2004). He was sentenced to 12 months imprisonment, a

fine of $15,000, a $100 special assessment, and 3 years of supervised release, 299

F.Supp.2d at 611-12.11

I. Base offense level. The Statutory Index, U.S.S.G. App.A, identifies U.S.S.G.

§§2L2.1 and 2L2.212 as possibly applicable base offense level Guidelines for

violations of subsection 1425(a) (depending upon whether the offense related to the

status of the offender or of someone else); the Index identifies four possible

Guidelines applicable for violations of subsections 1015(a)-(e), U.S.S.G. §§2B1.1,

2J1.3, 2L2.1, 2L2.2.13 The court after a comparison of the language of the

indictment with the language of the perjury Guideline (2J1.3) and the immigration

false statement Guideline (2L2.2), concluded that Guideline section 2L2.2 applied

to both the 18 U.S.C. 1015(a) and the 18 U.S.C. 1425(a) violations. Section 2L2.2

carries a base offense level of 8 with the possibility of increases for aggravating

factors apparently not implicated in Biheiri’s case.14 The base offense level for each

violation (18 U.S.C. 1425 and 18 U.S.C. 1015) was: 8

II. Adjustments.

A. Victim-Related. The Guidelines allow for four so-called victim-related

offense level adjustments, one for hate crimes or vulnerable victims, U.S.S.G.

§3A1.1; another for official victims, U.S.S.G. §3A1.2; third for restrained victims,

U.S.S.G. §3A1.3; and a fourth for terrorism, U.S.S.G. §3A1.4. Although the

or a drug trafficking crime), or 15 years (in the case of any other offense), or both,” 18

U.S.C. 1425.

In a later proceeding, Biheiri pleaded guilty to additional immigration-related offenses

for which he was sentenced to 13 months and 1 day with credit for time served and a waiver

of the otherwise applicable fine in light of his financial circumstances, a special assessment

of $200, and instructed to cooperate with immigration officials to ensure his prompt removal

from this country upon his release from prison, United States v. Biheiri, 356 F.Supp.2d 589,

603 (E.D.Va. 2005).

Guideline section 2L2.1 is captioned “trafficking in a document to naturalization,

citizenship, or legal resident status, or a United States passport; false statement in respect

to the citizenship or immigration status of another; fraudulent marriage to assist alien to

evade immigration law.” Guideline section 2L2.2 is captioned “fraudulently acquiring

documents relating to naturalization, citizenship, or legal resident status for own use; false

personation or fraudulent marriage by alien to evade immigration law; fraudulently

acquiring or improperly using a U.S. passport.”

Section 2B1.1 is captioned “larceny, embezzlement, and other forms of theft; offenses

involving stolen property; property damage or destruction; fraud and deceit; forgery;

offenses involving altered or counterfeit instruments other than counterfeit bearer

obligations of the United States;” section 2J1.3 is captioned, “perjury or subordination of

perjury; bribery of witness.”

The section calls for an increase of 2 offense levels if the defendant has previously been

deported or convicted of an immigration felony or if the offense involves misuse of a U.S.

passport and an increase of 4 offense levels if the offender has two or more prior

immigration felony convictions.

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government sought an adjustment only under the terrorism Guideline in Biheiri, it

has sought additional victim-related adjustment in other terrorism cases.15

The terrorism adjustment Guideline assigns an additional 12 offense levels “if

the offense [or any related crime that constitutes relevant conduct] is a felony that

involved, or was intended to promote, a federal crime of terrorism,” establishes a

minimum offense level of 32 in such cases, and tops out the defendant’s criminal

history score at VI regardless of his or her prior criminal record, U.S.S.G. §3A1.4.

The section has obvious application when the offender has been convicted of a

federal crime of terrorism,16 but it may also apply when a crime of terrorism has the

necessary relationship to the crime of conviction to qualify under the Guideline and

constitute “relevant conduct” for purposes of the Guideline. The government

asserted that Biheiri had engaged in financial transactions with a designated terrorist,

who had connections to HAMAS, in violation of the International Emergency

Economic Powers Act (IEEPA), 50 U.S.C. 1705. The statute of limitations barred

prosecution of the IEEPA allegations directly, but the government asserted that

IEEPA violations might be used as the basis for an adjustment under section 3A1.4.

It failed first because it could not prove that the IEEPA violations were committed

in preparation for or in any other way “relevant” to the immigration violations that

constituted the crimes of conviction and second because it failed to prove that the

IEEPA violations constituted a “federal crime of terrorism,” 299 F.Supp.2d at 605608. When a crime is related to the obstruction of a terrorism investigation or

proceeding it may also warrant application of section 3A1.4, but the enhancement

was unavailable in Biheiri because the government could not show that the false

statements obstructed its investigation, id. at 606. Offense level adjustment 0 .

Adjusted offense level for each violation: 8 .

B. Role in the Offense. There are five role-in-the-offense adjustments: one for

leadership (increase 4 levels for organizer or leader of a crime with 5 or more

participants or that is otherwise extensive; increase 3 levels for a manager or

supervisor of such an extensive crime; increase of 2 levels for an organizer, leader,

manager or supervisor of any other criminal activity, U.S.S.G. §3B1.1); a second for

minor players (decrease by 4 levels for minimal participants; decrease by 2 levels for

minor participants, U.S.S.G. §3B1.2); a third for a crime involving an abuse of trust

or use of a special skill (increase 2 levels, U.S.S.G. §3B1.3); a fourth a Fagan

enhancement (increase 2 levels for the use of a minor to commit the offense,

U.S.S.G. §3B1.4); and a fifth to discourage the use of body armor (increase 4 levels

for the use of body armor during the preparation, commission, or flight from a drug

trafficking crime or a crime of violence; increase 2 levels for a drug trafficking or

violent crime involving the use of body armor, U.S.S.G. §3B1.5). The Biheiri court

refused to assess a 4 level role in the offense increase under the theory that Biheiri’s

activity involved the federal agencies and employees to whom the false statements

were made (thereby qualifying as the supervisor in a crime involving 5 or more

E.g., United States v. Salim, 287 F.Supp.2d 250, 355 (S.D.N.Y. 2003)(assessment of a

3 level official victim and 2 level restraint adjustment in the case of maiming a corrections

officer where the government unsuccessful sought a terrorist adjustment as well).

E.g., United States v. Hammoud, 381 F.3d 316, 355-56 (4th Cir. 2004); United States v.

Meskini, 319 F.3d 88, 90 (2d Cir. 2003).

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participants), but did conclude that a 2 level adjustment was appropriate in view of

Biheiri’s supervision of two other participants in his scheme, 299 F.Supp.2d at 608610.17 Offense level adjustment: +2

Adjusted offense level for each violation: 10

C. Obstruction. Obstruction of justice makes an increase of 2 levels

appropriate, U.S.S.G. §3C1.1, as does reckless endangerment during flight, U.S.S.G.

§3C1.2. No question of either obstruction of justice adjustment arose in Biheiri.18

Offense level adjustment 0 .

Adjusted offense level for each violation: 10 .

D. Multiple Counts. Nestled among the provisions that speak to how to account

for the particular aggravating and mitigating factors that attend the crime for which

the defendant has been convicted, are a series of adjustments that deal with cases in

which the defendant has been convicted of more than one crime, either the

defendant’s commission of the same crime on more than occasion, or his commission

of a series of crimes at the same time, or a series of crimes that have little other than

the defendant in common, U.S.S.G. §§3D1.1 to 3D1.

The Guidelines in this part reflect a compromise between concurrent and

consecutive punishment for crimes by the same defendant. They generally call for

more severe punishment than pure concurrent sentencing and more lenient than pure

consecutive sentencing. As long there are no statutory provisions that require

consecutive sentencing, e.g., 18 U.S.C. 924(c)(1)(D)(ii), the first step in the process

is to group similar offenses, U.S.S.G. §3D1.1. Offenses are grouped together which

(a) have the same victim and the act or transaction, (b) have the same victim and two

or more acts or transactions involving the same scheme or objective, (c) “when one

of the counts embodies conduct that is treated as a specific offense characteristic in,

or other adjustment to, the guideline applicable to another of the counts,” or (d) when

offense level is calculated on the base of harm, loss or quantity of substance

involved, U.S.S.G. §3D1.2.

Once the multiple crimes for which the defendant has been convicted have been

collected in closely related groups, the offense level applicable to each group must

be determined using the highest offense level attributable to the most serious crime

within the group (i.e., the crime with the highest offense level) – with one exception,

U.S.S.G. §3D1.3. For the crimes whose offense levels depend upon the amount of

money stolen, or the extent of damage caused, or the amount drugs manufactured or

dealt – the amounts are cumulated, id. The offense level for each group having been

In other terrorism cases, the courts have held that recruiting and directing another in the

underlying criminal activity is sufficient to justify a 2 level increase under U.S.S.G. §3A1.1,

United States v. Mandhai, 375 F.3d 1243, 1248 (11th Cir. 2004); United States v. Salim, 287

F.Supp.2d 250, 310-11 (S.D.N.Y. 2003).

The government raised the obstruction issue following Biheiri’s second conviction but

was unable to carry its burden, United States v. Biheiri, 356 F.Supp.2d at 600. The

adjustment has been assessed when a terrorist denies misconduct at trial in the face of

government evidence to the contrary, United States v. Hammoud, 381 F.3d 316, 357 (4th Cir.

2004).

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determined, the group with the highest offense level is assigned a “unit” as is any

group whose offense level is within 4 levels of the lead group (any group within 5 to

8 offense levels of that of the lead group is assigned a half unit; other groups are

disregarded), U.S.S.G. §3D1.4. The offense level for the lead group is then increased

by the total number of units (add 1 level for 1.5 units; 2 levels for 2 units; 3 levels for

2.5 or 3 units; 4 levels for 3.5 to 5 units; and 5 levels for more than 5 units), id. The

resulting total offense level of the lead group is the basis for the defendant’s final

sentencing, U.S.S.G. §3D1.5. Biheiri’s offenses were grouped together. No

adjustment for multiple groups was necessary and the offense levels for the two

violations were counted as one within the single group, 299 F.Supp.2d at 605. Had

the offense level for the violation of either 18 U.S.C. 1015 or 1425 been higher, it

would have been used. Since they were the same, that exercise was unnecessary.

Offense level adjustment 0 .

Adjusted offense level: 10 .

E. Accept Responsibility. The Guidelines permit an adjustment in cases where

the defendant accepts responsibility; a decrease of 2 levels as a general rule and a

decrease of 1 level in cases otherwise carrying an offense level of 16 or more where

the defendant signals his intent to plead guilty before the government has had to

invest major time and effort preparing for trial, U.S.S.G. §3E1.1. The adjustment

was not applicable in Biheiri.19 Offense level adjustment 0 .

Adjusted offense level: 10 .

III. Criminal History Category.

A. Generally. As a general rule an offender’s criminal record determines his or

her criminal history category (for each offense level there are six permissible

sentencing subcategories arranged according to the seriousness of the defendant’s

criminal history). Points are assessed for past convictions,20 for misconduct

committed while under judicial supervision such as bail or parole, and for crimes of

violence.21 Juvenile as well as general and special court martial convictions are

counted; convictions by a tribal court, the court of a foreign country, or a summary

court martial are not, U.S.S.G. §4A1.2. By operation of U.S.S.G. §3B1.4 a terrorism

adjustment results in the assignment to criminal history category VI, regardless of the

In other terrorism cases, the courts have held that the adjustment is not available simply

because the defendant pleads guilty on the eve of trial, United States v. Biheiri, 356

F.Supp.2d at 601-602; but is available to the defendant who consistently admits his guilty

and pleads guilty even if he offers shifting explanations as to his motive, United States v.

Salim, 287 F.Supp.2d 250, 315-16 (S.D.N.Y. 2003)

3 points for each past sentence of more than 1 year and 1 month; 2 points for each

sentence of imprisonment for 6 months but less than 1 year and 1 month; and 1 point for any

other past sentence (up to a total of 4 points), U.S.S.G. §4A1.1(a),(b),(c).

Two points when the crime for which sentence is being calculated occurred while the

defendant was “under any criminal justice sentence, including probation, parole, supervised

release, imprisonment, work release, or escape status;” 2 points when the offense under

sentence was committed less than 2 years after release from imprisonment for a term of 6

months or more, was committed while in prison, or was committed while the defendant was

an escaped prisoner; 1 point for each past conviction for a crime of violence not otherwise

related or counted (up to 3 points), U.S.S.G. §4A1.1(d),(e),(f).

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offender’s criminal record. Other than the inapplicability of the terrorism adjustment,

there was no discussion of Biheiri’s criminal history in Biheiri, but on the basis of

statements of the court when sentencing him later for his second conviction he would

appear to have had little if any criminal record of prior convictions at the time of his

first conviction.22

Adjusted offense level: 10

Criminal history category: I .

B. Recidivist Enhancements. There are past criminal activities which not only

determine a defendant’s criminal history category point total, but also provide the

basis for increasing a defendant’s offense level, as in the case of career criminals,

U.S.S.G. §4B1.1; professional criminals, U.S.S.G. §4B1.3; armed career criminals,

U.S.S.G. §4B1.4; and recidivist sex offenders, U.S.S.G. §4B1.5.23 None of these

applied in Biheiri

Adjusted offense level: 10

Criminal history category: I .

V. Departures. In the interest of uniformity, the Guidelines seek to limit the

circumstances under which a sentence outside of the ranges otherwise called for by

the Guidelines may be commended. The Guidelines countenance departure from the

sentence otherwise called for (1) upon the request of the government in recognition

of the defendant’s cooperation with authorities, 18 U.S.C. 3553(e),(f); U.S.S.G.

§§5C1.2, 5K1.1; (2) where the criminal history provisions do not adequately reflect

the seriousness of the defendant’s past criminal record, U.S.S.G. §4A1.3; (3) in cases

where “there exists an aggravating [or, in cases other than those involving child

crimes or sex offenses, a mitigating] circumstance of a kind, or to a degree, not

adequately taken into consideration by the Sentencing Commission in formulating

the Guidelines,” 18 U.S.C. 3553(b); U.S.S.G. §5K2.0.

There are two statutory based grounds for assistance departures. One the socalled “safety valve” is only available to low level, first time drug offenders, 18

U.S.C. 3553(f), U.S.S.G. §5C1.2. The other is limited only by the requirement that

the government petition for its application, 18 U.S.C. 3553(e), U.S.S.G. §5K1.1.

Neither applied in Biheiri and are examined in greater detail below in the discussion

of the drug case example.

Biheiri likewise did not involve a departure based on the inadequacy of criminal

history Guidelines to accurately reflect the extent or seriousness of the defendant’s

past criminal activities. When it applies, the corrective Guideline may address either

“[T]he parties did not dispute that Biheiri should be in criminal history category II as a

result of his twelve-month sentence for naturalization fraud,” United States v. Biheiri, 356

F.Supp.2d at 602. Since criminal history category II tops out at 3 points and 2 points would

have been assessed for Biheiri’s 12 month sentence following his first conviction, Biheiri

criminal history category at the time of his first conviction must have been category I (1

point or less).

Recidivist enhancements are discussed more extensive later in this report since at least

thus far they are more prevalent in drug cases than terrorism cases.

CRS-10

an inadequate assessment of the seriousness of defendant’s criminal activity either

to his benefit or to his detriment, U.S.S.G. §4A1.3.

Moving on to offense level inadequacies, the Guidelines note that the

circumstances that may warrant departure from the Guidelines based on want of

guideline consideration “will occur rarely and only in exceptional circumstances,”

U.S.S.G. §5K2.0, App.Notes 3(A)(ii), (B)(ii). The Guidelines, however, do contain

22 policy statements indicating specific conditions under which departure might be

merited or are forbidden, U.S.S.G. §§5K2.1 to 5K2.23.24

The government sought an upward departure in Biheiri, but the court decided

that “none of the circumstances or consequences of [Biheiri’s] offenses of conviction

appear to be atypical” so as to take the case out of the “heartland” of the applicable

Guideline, 299 F.Supp.2d at 611.

Adjusted offense level: 10

Criminal history category: I .

VI. Sentencing Table.

A. Imprisonment. The Guideline’s Sentencing Table (below) 25 indicates that

the permissible sentencing range for offense level 10, criminal history category I is

not less than 6 nor more than 12 months imprisonment. Although the Guideline

ranges must fall within the statutory maximum and any statutory minimum for the

crime of conviction, 28 U.S.C. 994(b)(1), the range in Biheiri was well within the

maximum for the statutes of conviction (18 U.S.C. 1015 carries a 5 year maximum;

18 U.S.C. 1425, a 10 year maximum). Biheiri was sentenced to 12 months

imprisonment, 299 F.Supp.2d at 611-12.

Beyond the general policy statement for departures in section 5K2.0, there are individual

policy statements relating to death (5K2.1), physical injury (5K2.2), extreme psychological

injury (5K2.3), abduction or unlawful restraint (5K2.4), property damage or loss (5K2.5),

weapons and dangerous instrumentalities (5K2.6), disruption of government function

(5K2.7), extreme conduct (5K2.8), criminal purpose (5K2.9), victim’s conduct (5K2.10),

lesser harm (5K2.11), coercion and duress (5K2.12), diminished capacity (5K2.13), public

welfare (5K2.14), voluntary disclosure of offense (5K2.16), high capacity, semiautomatic

firearms (5K2.17), violent street gangs (5K2.18), post-sentencing rehabilitative efforts

(5K2.19), aberrant behavior (5K2.20), dismissed and uncharged conduct (5K2.21), child

crimes and sex offenses (5K2.22), and discharged terms of imprisonment (5K2.23).

The Sentencing Table that follows has been replicated from the United States Sentencing

Commission’s Guidelines Manual, 376 (Nov. 2004). As will be seen the “Zones”mentioned

in the Table determine a defendant’s eligibility for probation and alternative forms of

incarceration.

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CRS-12

B. Probation. Probation eligibility under the Guidelines is very limited. It

extends only to defendants for whom the maximum permissible sentence of

imprisonment under the Guidelines is no more than 6 months (Zone A on the

Sentencing Table (no higher than offense level 8)) or to defendants whose maximum

is no more than 1 year, if the court imposes some form of incarceration rather than

imprisonment (i.e., weekend or nighttime imprisonment, home confinement, etc.)

(Zone B on the Sentencing Table (no higher than offense level 10)), U.S.S.G.

§5B1.1. The maximum permissible term of probation for a defendant with an

offense level 6 or higher is 5 years; below offense level 6, the maximum term of

probation is 3 years, U.S.S.G. §5B1.2. Defendants sentenced at offense level 19 or

above (Zones C and D) are ineligible for probation. With an offense level of 10,

Biheiri would have been eligible for probation coupled with some form of

incarceration other than imprisonment, but court elected to sentence him to

imprisonment at the top of the applicable range, 299 F.Supp.2d at 611-12.

C. Substitute Incarceration. In cases where the offense level carries a maximum

term of imprisonment of not more than 16 months (Zone B or C (no higher than

offense level 12)), the sentencing court may impose a term of substitute incarceration

(intermittent confinement, community confinement, or home detention), U.S.S.G.

§5C1.1. Again with an offense level of 10, the court might have sentenced Biheiri

to some form of substitute incarceration but elected not to, 299 F.Supp.2d at 611-12.

D. Supervised Release. Unless otherwise provided by statute, defendants

sentenced to imprisonment for more than a year must also be sentenced to a term of

supervised release to be served after they leave prison, U.S.S.G. §5D1.1(a). The

court may impose a term of supervised release upon defendants sentenced to

imprisonment for a year or less, U.S.S.G. §5D1.1(a). Maximum terms of supervised

release range from 1 to 5 years depending on the seriousness of their offense.26

Biheiri was sentenced to a 3 year term of supervised release, 299 F.Supp.2d at 61112.

E. Restitution. The court may also order defendants to make restitution; or

unless required by statute, the court may forego a restitution order if “(A) the number

of identifiable victims is so large as to make restitution impracticable; or (B)

determining complex issues of fact related to the cause or amount of the victim’s

losses would complicate or prolong the sentencing process to a degree that the need

to provide restitution to any victim is outweighed by the burden on the sentencing

process,” U.S.S.G. §5E1.1(b)(2). There was no evidence of a restitution order in

Biheiri, 299 F.Supp.2d at 611-12.

“The court shall order a term of supervised release to follow imprisonment when a

sentence of imprisonment of more than one year is imposed. . . .” U.S.S.G. §5D1.1. Class

A and B felonies (felonies with a maximum of life or 25 years or more) carry a supervised

release term of not less than 3 nor more than 5 years; class C and D felonies (felonies with

a maximum of 5 years or more) of not less than 2 nor more than 3; and class E felonies and

A misdemeanors a term of 1 year (crimes with a maximum of more than 6 months), U.S.S.G.

§5D1.2. A supervised release term of any term of years may be imposed in the case of the

federal crimes of terrorism as listed in 18 U.S.C. 2332b(g)(5)(B) occurring under

circumstances that result in or risk serious bodily injury, 18 U.S.C. 3583(j). Violations of

18 U.S.C. 1015 or 1425 are not among the federal crimes of terrorism.

CRS-13

F. Fine. The Guidelines establish a fine schedule according to offense level for

the crime of conviction.27 The court need not impose a fine where the defendant is

unable and unlikely to become able to pay any fine imposed, U.S.S.G. 5E1.2(a). If

the court does not impose or waives the fine imposed, it may impose alternative

sanctions.28 In Biheiri’s case, the Guidelines call for a fine of not less than $2,000

nor more than $20,000; the court imposed a fine of $15,000, 299 F.Supp.2d at 61112.

G. Special assessment. Federal courts must impose a special assessment of

$100 for felony violations of federal law and lesser amounts for misdemeanors, 18

U.S.C. 3013; U.S.S.G. §5E1.3. Biheiri was assessed a special assessment of $100,

299 F.Supp.2d at 611-12.

H. Forfeiture. Criminal forfeitures which become operable upon conviction for

certain offenses are announced as part of the sentencing process, 18 U.S.C. 3554;

U.S.S.G. §5E1.4. There were no criminal forfeiture provisions implicated in Biheiri.

I. Cost of Prosecution. Several tax statutes and a few others authorize the court

to assess the costs of prosecution against defendants convicted of violating their

commands, U.S.S.G. §5E1.5. The statutes under which Biheiri was convicted are not

among them.

J. Cost of Notification of Victims. Section 3555 of title 18 authorizes sentencing

courts to order a defendant to pay for the cost of victim notification up to a maximum

of $20,000; the Guidelines permit the court to set off the cost against any fine

imposed, U.S.S.G. §5F1.4. The issue does not appear to have arisen in Biheiri.

Fine Table

Offense

Level

3 and below

10-11

18-19

39 and above

U.S.S.C. §5E1.2(c)(3).

Minimum

$100

* *

$200

$6,000

* *

$25,000

Maximum

$5000

$20,000

$60,000

$250,000

“If the defendant establishes that (1) he is not able and, even with the use of a reasonable

installment schedule, is not likely to become able to pay all or part of the fine required by

the preceding provisions, or (2) imposition of a fine would unduly burden the defendant’s

dependents, the court may impose a lesser fine or waive the fine. In these circumstances,

the court shall consider alternative sanctions in lieu of all or a portion of the fine, and must

still impose a total combined sanction that is punitive. Although any additional sanction not

proscribed by the Guidelines is permissible, community service is the generally preferable

alternative in such instances,” U.S.S.G. §5E1.2(e).

CRS-14

Controlled Substance Case

Korakis, a drug courier in an ecstasy29 smuggling and marketing scheme,

pleaded guilty to conspiracy to possess ecstasy and marijuana with the intent to

distribute it in violation of 21 U.S.C. 841(a)(1), 846, United States v. Korakis, 325

F.Supp.2d 628, 631 (E.D.Va. 2004).30

I. Base offense level.

The Statutory Index, U.S.S.G. App.A, identifies U.S.S.G. §2D1.1 as the

Guideline section applicable to violations of the underlying 21 U.S.C. 841. There are

several possible base offense levels under section 2D1.1 depending upon whether the

offense has resulted in a death or serious injury and upon the type and amount of

substances involved. The most severe of these applies to repeat offenders where the

offenses involves distribution of a substantial amount of various drugs and where the

offense of conviction has resulted in a death or serious injury (base offense level 43;

base offense level 38 for first time offenders), 21 U.S.C. §2D1.1(a)(1),(2).

Otherwise, the Drug Quantity Table in subsection 2D1.1(c)(appended) sets the base

offense level according to the type and amount of the controlled substance involved.

The type and amount of controlled substances involved includes not only those

that form the basis for the offense of conviction, but also the types and amounts of

controlled substances in any related “relevant conduct.”31 Korakis transported two

packages of unmarked pills and delivered them to a second courier, who was later

arrested with what the Probation Service’s presentencing report determined to be

960.8 grams of a mixture of containing MDMA and methamphetamine in pill form

and 6,044 grams of hashish, 325 F.Supp.2d at 631. In order to provide a uniform

sentencing standard in cases involving more than one type of controlled substance,

section 2D1.1 includes Drug Equivalency Tables (appended) which allow conversion

into a uniform marijuana equivalency standard. When as here pills contain more than

one controlled substance, the higher equivalent is used, U.S.S.G. §2d1.1(c)(A).

Under the Drug Equivalency Tables, 1 gram of hashish is treated as the

equivalent of 5 grams of marijuana; 1 gram of MDMA is treated as 500 grams of

marijuana, but 1 gram of methamphetamine is treated as 2 kilograms (2000 grams)

of marijuana. Thus, Korakis’ base offense level is the base offense level for 1,951.82

kilograms (1, 951,820 grams) of marijuana (30220 grams for the hashish (5 x 6044

grams) plus 1,921,600 grams for the methamphetamine mix (2000 x 960.8). Under

2D1.1(c) the base offense level for 1,951.82 kilograms of marijuana is 32 (at least

1,000 KG but less than 3,000 KG of marijuana).

MDMA or 3,4 Methylenedioxymethamphetamine.

Under 21 U.S.C. 846 attempt or conspiracy to commit any controlled substance offense

is subject to the same penalties as the underlying offense.

“With respect to offenses involving contraband (including controlled substances), the

defendant is accountable for all quantities of contraband with which he was directly

involved and, in the case of a jointly undertaken criminal activity, all reasonably foreseeable

quantities of contraband that were within the scope of the criminal activity that he jointly

undertook,” U.S.S.G. §1B1.3, App.Note 2.

CRS-15

Base offense level: 32 .

Section 2D1.1 modifies the base offense level to account for several aggravating

and mitigating factors, some which are found in Korakis’ case and some which are

not. The factors inapplicable to Korakis include: a 2 level increase assessed for

possession of a firearm or other dangerous weapon, U.S.S.G. §2D1.1(b)(1);32 a 2

level increase (and a minimum base level of 26) for offenses involving smuggling

aboard commercial aircraft or where the offender operates or helps operate the

aircraft or other conveyance, U.S.S.G. §2D1.1(b)(2);33 a 2 level increase for

distribution in prison, U.S.S.G. §2D1.1(b)(3);34 a 2 level increase for distribution

involving Internet marketing, U.S.S.G. §2D1.1(b)(5);35 and various manufacturingrelated increases, U.S.S.G. §2D1.1(b)(6).36 For these, Korakis’ base offense level

remained unchanged.

Adjusted offense level: 32 .

The facts in Korakis, however, do implicate a few of the modifications

mentioned in section 2D1.1. Korakis argued that as a simple “mule” he was entitled

to the 2 level reduction which section 2D1.1(3) affords low level drug offenders with

Firearm possession enhancements are common in controlled trafficking cases; assessment

of the Guideline requires proof of a likely nexus between possession of the firearm and the

offense, United States v. Santiago, 384 F.3d 31, 33 (2d Cir. 2004); United States v. Dillard,

370 F.3d 800, 804 (8th Cir. 2004); it may be applied where the defendant should have

reasonably anticipated qualifying firearm possession by a coconspirator, United States v.

Thornton, 306 F.3d 1355, 1358 (3d Cir. 2002); or where “a law enforcement agent possesses

a weapon at the time he uses his official position to facilitate a drug offense,” United States

v. Partida, 385 F.3d 546, 562 (5th Cir. 2004).

E.g., United States v. Rendon, 354 F.3d 1320, 1329 (11th Cir. 2003)(captain of a “go-fast”

smuggling boat); United States v. Ray, 250 F.3d 596, 602 (8th Cir. 2001)(aiding and abetting

the use of a chartered aircraft in a smuggling conspiracy).

E.g., United States v. Lopez, 299 F.3d 84, 86-8 (1st Cir. 2002); United States v. Gallaway,

199 F.Supp.2d 605, 607 (E.D.Tex. 2002).

“(Apply the greater): If the defendant, or a person for whose conduct the defendant is

accountable under §1B1.3(Relevant Conduct), distribute a controlled substance through

mass-marketing by means of an interactive computer service, increase by 2 levels,” U.S.S.G.

§2D1.1(b)(5).

“(Apply the greater): (A) If the offense involved (i) an unlawful discharge, emission, or

release into the environment of a hazardous or toxic substance; or (ii) the unlawful

transportation, treatment, storage, or disposal of a hazardous waste, increase by 2 levels; (B)

If the offense (i) involved the manufacture of amphetamine or methamphetamine; and (ii)

created a substantial risk of harm to (I) human life other than a life described in subdivision

(C); or (II) the environment, increase by 3 levels. If the resulting offense level is less than

level 27, increase to level 27. (C) If the offense (i) involved the manufacture or

amphetamine or methamphetamine; and (ii) created a substantial risk of harm to the life of

a minor or an incompetent, increase by 6 levels. If the resulting offense level is less than

level 30, increase to level 30,” U.S.S.G. §2D1.1(b)(6); e.g., United States v. Florence, 333

F.3d 1290, 1292 (11th Cir. 2003)(fire resulting from a methamphetamine “cook” in a hotel

room which required evacuation of the hotel’s other guests including children); United

States v. Shamblin, 323 F.Supp.2d 757, 761-62 (S.D.W.Va. 2004)(operating a meth lab in

a house while a child was present).

CRS-16

a base offense level of 32.37 The reduction is predicated upon the defendant’s

eligibility for an adjustment under U.S.S.G. §3B1.2 relating to minimal or minor

participation in a large scale criminal enterprise. The court rejected Korakis’

argument on the basis of wiretap evidence which indicated more substantial

participation than that of a simple courier, 325 F.Supp.2d at 632. His offense level

remained the same.

Adjusted offense level: 32 .

The failure to qualify for the mitigation adjustment to which low level offenders

are entitled also cost Korakis a 2 level increase because his offense involved

methamphetamine smuggling.38

Adjusted offense level: 34 .

On the other hand, Korakis was given the 2 level reduction which section

2D1.1(c)(7) makes available for those low level, first time, cooperative offenders

who qualify for the “safety valve” under U.S.S.G. §5C1.2(a)39

Adjusted offense level: 32 .

II. Adjustments.

A. Victim Related. Controlled substance cases are less likely than terrorism

cases to implicate victim related adjustments, i.e., adjustments for hate crimes or

“(a) Base Offense Level . . . (3) the offense level specified in the Drug Quantity Table set

forth in subsection (c), except that if (A) the defendant receives an adjustment under §3B1.2

(Mitigating Role); and (B) the base offense level under subsection (c) is (i) level 32,

decrease by 2 levels; (ii) level 34 or level 36, decrease by 3 levels; or (iii) level 38, decrease

by 4 levels,” U.S.S.G. 2D1.1(a)(3).

“If (A) the offense involved the importation of amphetamine or methamphetamine or the

manufacture of amphetamine or methamphetamine form listed chemicals that the defendant

knew were imported unlawfully, and (B) the defendant is not subject to an adjustment under

§3B1.2 (Mitigating Role), increase by 2 levels,” U.S.S.G. §2D1.1(b)(4).

“Except as provided in subsection (b) [which establishes a minimum offense level at 17],

in the case of an offense under 21 U.S.C. 841, 844, 846, 960 or 963 [all relating to

controlled substance offenses with mandatory minimum sentences], the court shall impose

a sentence in accordance with the applicable Guidelines without regard to any statutory

minimum sentence, if the court finds that the defendant meets the criteria in 18 U.S.C.

3553(f)(1)-(5) set forth below: (1) the defendant does not have more than 1 criminal history

point, as determined under the sentencing Guidelines before application of subsection (b)

of §4A1.3 (Departures Based on Inadequacy of Criminal History Category); (2) the

defendant did not use violence or credible threats of violence or possess a firearm or other

dangerous weapon (or induce another participant to do so) in connection with the offense;

(3) the offense did not result in death or serious bodily injury to any person; (4) the

defendant was not an organizer, leader, manager, or supervisor of others in the offense, as

determined under the sentencing Guidelines and was not engaged in a continuing criminal

enterprise, as defined in 21 U.S.C,. 848; and (5) not later than the time of the sentencing

hearing, the defendant has truthfully provided to the Government all information and

evidence the defendant has concerning the offense or offenses that were part of the same

course of conduct or of a common scheme or play, but the fact that the defendant has no

relevant or useful other information to provide or that the Government is already aware of

the information shall not preclude a determination by the court that the defendant has

complied with this requirement,” U.S.S.G. §5C1.2(a).

CRS-17

vulnerable victims (U.S.S.G. §3A1.1), for official victims (U.S.S.G. §3A1.2), for

restraint of a victim (U.S.S.G. §3A1.3), or for terrorism, (U.S.S.G. §3A1.4).40 They

certainly did not arise in Korakis.

Adjusted offense level: 32 .

B. Role in the Offense. On the other hand, role in the offenses adjustments are

a common feature of controlled substance cases as the discussion of section 2D1.1

above makes clear. There are five role-in-the-offense adjustments:

- leadership (increase 4 levels for organizer or leader of a crime with 5 or more

participants or that is otherwise extensive; increase 3 levels for a manager or

supervisor of such an extensive crime; increase of 2 levels for an organizer,

leader, manager or supervisor of any other criminal activity, U.S.S.G. §3B1.1);41

- minor roles (decrease by 4 levels for minimal participants; decrease by 2 levels

for minor participants, U.S.S.G. §3B1.2);42

- a crime involving an abuse of trust or use of a special skill (increase 2 levels,

U.S.S.G. §3B1.3);43

But see, United States v. Graham, 327 F.3d 460, 461-62 (6th Cir. 2003)(U.S.S.G. §3A1.4

terrorism adjustment applied to a marijuana farmer who used the proceeds to fund

paramilitary activities); United States v. Bennett, 368 F.3d 1343, 1358 (11th Cir. 2004)

(U.S.S.G. §3A1.2 official victim adjustment applied to a drug trafficker who shot at federal

officers investigating his activities); United States v. Amedeo, 370 F.3d 1305, 1317-318 (11th

Cir. 2004) (U.S.S.G. §3A1.1 vulnerable victim adjustment applied to a drug trafficker who

supplied cocaine to an 18 year old student addict).

E.g., United States v. Mesner, 377 F.3d 849, 851-52 (8th Cir. 2004(supervisor); United

States v. Trujillo, 376 F.3d 593, 614-15 (6th Cir. 2004)(leader and organizer); United States

v. Dillard, 370 F.3d 800, 806 (8th Cir. 2004)(leader); United States v. Gutierrez, 367 F.3d

733, 737 (8th Cir. 2004)(leader and organizer); but see, United States v. Swanberg, 370 F.3d

622, 629 (6th Cir. 2004)(enhancement is not appropriate merely because the defendant

directs a one person operation with many customers).

Section 3B1.2 benefits are not easily claimed in controlled substance cases, see e.g.,

United States v. Awad, 371 F.3d 583, 591(9th Cir. 2004)(“the role adjustment for minimal

participation is a tool which should be used infrequently . . . and . . . any downward role

adjustment should be restricted to those cases presenting exceptional circumstances”);

United States v. Bertling, 370 F.3d 818, 821 (8th Cir. 2004)(defendant must be “substantially

less culpable than the average participant”); United States v. McKee, 389 F.3d 697, 700 (7th

Cir. 2004)(same).

E.g., United States v. Partida, 385 F.3d 546, 567 (5th Cir. 2004)(wayward police officer);

United States v. Flecha-Maldonado, 373 F.3d 170, 179-80 (1st Cir. 2004)(same); United

States v. Montero-Montero, 370 F.3d 121, 122-24 (1st Cir. 2004)(smugglers’ power boat

driver); United States v. Nelson-Rodriguez, 319 F.3d 12, (1st Cir. 2003)(boat captain and

radio operator); but see, United States v. Nuzzo, 385 F.3d 109, (2d Cir. 2004)(enhancement

for abuse of trust requires a nexus between the position of trust, its abuse, and the

commission, facilitation, or concealment of the offense).

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- a Fagan enhancement (increase 2 levels for the use of a minor to commit the

offense, U.S.S.G. §3B1.4);44 and

- the use of body armor (increase 4 levels for the use of body armor during the

preparation, commission, or flight from a drug trafficking crime or a crime of

violence; increase 2 levels for a drug trafficking or violent crime involving the

use of body armor, U.S.S.G. §3B1.5).

As noted earlier, had Korakis been able to claim the benefits of section 3B1.2

for reduced participation he would have been entitled to offense level reductions both

under that section and under 2D1.1 in the calculation of his initial sentencing level.

But he was not and the other role in the offense adjustments did not apply either.

Adjusted offense level: 32 .

C. Obstruction. Although obstruction of justice adjustments45 are fairly

common in controlled substance cases,46 the issue did not arise in Korakis under

either the general obstruction Guideline, U.S.S.G. §3C1.1, or the enhancement

Guideline for dangerous flight, U.S.S.G. §3C1.2.

Adjusted offense level: 32 .

D. Multiple Counts. Nestled among the provisions that speak to how to account

for the particular aggravating and mitigating factors that attend the crime for which

the defendant has been convicted, are a series of adjustments that deal with cases in

which the defendant has been convicted of more than one crime, either the

defendant’s commission of the same crime on more than occasion, or his commission

of a series of crimes at the same time, or a series of crimes that have little other than

the defendant in common, U.S.S.G. §§3D1.1 to 3D1.

The Guidelines in this part reflect a compromise between concurrent and

consecutive punishment for crimes by the same defendant. They generally call for

more severe punishment than pure concurrent sentencing and more lenient than pure

consecutive sentencing. As long there are no statutory provisions that require

consecutive sentencing, the first step in the process is to group similar offenses,

U.S.S.G. §3D1.1. Offenses are grouped together which (a) have the same victim and

E.g., United States v. Gaskins, 364 F.3d 438, 464-65 (2d Cir. 2004)(applies even if the

minor did not commit an offense or did not realize he was assisting the offender in the

commission of a crime); United States v. Nava-Sotelo, 354 F.3d 1202, 1206 (10th Cir. 2003)

(applies even if the offender did not know the individual used was a minor); United States

v. Blalock, 321 F.3d 686, 690 (7th Cir. 2003)(applies even if the offender himself was a

minor); United States v. Ceballos, 302 F.3d 679, 697 (7th Cir. 2002)(applies even if the

offender did not use the minor in order to shield himself from prosecution).

U.S.S.G. §§3C1.1(obstructing or impeding the administration of justice); 3C1.2 (reckless

endangerment during flight).

E.g., United States v. Peterson, 385 F.3d 127, 139-43 (2d Cir. 2004)(obstruction);

United States v. Williams, 374 F.3d 941, 947-48 (10th Cir. 2004)(same); United States v.

Amedeo, 370 F.3d 1305, 1318-319 (11th Cir. 2004)(same); United States v. Cook, 356 F.3d

913, 917 (8th Cir. 2004)(reckless flight); United States v. Chong, 285 F.3d 343, 344-46 (4th

Cir. 2002)(same); United States v. Moore, 242 F.3d 1080, 1082 (8th Cir. 2001)(same).

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the act or transaction, (b) have the same victim and two or more acts or transactions

involving the same scheme or objective, (c) “when one of the counts embodies

conduct that is treated as a specific offense characteristic in, or other adjustment to,

the guideline applicable to another of the counts,” or (d) when offense level is

calculated on the base of harm, loss or quantity of substance involved, U.S.S.G.

§3D1.2.

Once the multiple crimes for which the defendant has been convicted have been

collected in closely related groups the offense level applicable to each group must be

determined using the highest offense level attributable to the most serious crime

within the group (i.e., the crime with the highest offense level) – with one exception,

U.S.S.G. §3D1.3. For the crimes whose offense levels depend upon the amount of

money stolen, or the extent of damage caused, or the amount drugs – the amounts are

cumulated, id. The offense level for each group having been determined, the group

with the highest offense level is assigned a “unit” as is any group whose offense level

is within 4 levels of the lead group (any group within 5 to 8 offense levels of that of

the lead group is assigned a half unit; other groups are disregarded), U.S.S.G.

§3D1.4. The offense level for the lead group is then increased by the total number

of units (add 1 level for 1.5 units; 2 levels for 2 units; 3 levels for 2.5 or 3 units; 4

levels for 3.5 to 5 units; and 5 levels for more than 5 units), id. The resulting total

offense level of the lead group is the basis for the defendant’s final sentencing,

U.S.S.G. §3D1.5.

Korakis pleaded guilty to a one count indictment and thus his case did not

trigger the adjustments for cases involving multiple counts.

Adjusted offense level: 32 .

E. Acceptance of Responsibility. The Guideline for the acceptance of

responsibility awards a general 2 level reduction, U.S.S.G. §3E1.1(a), and an

additional 1 level reduction upon the motion of the government for trial preparation

time saved by a guilty plea in case where the offense level is 16 or more.47 Korakis

qualified for both, 325 F.Supp.2d at 631.

Adjusted offense level: 29 .

III. Criminal History Category.

A. Generally. As noted earlier, generally an offender’s criminal record

determines his or her criminal history category (for each offense level there are six

permissible sentencing subcategories arranged according to the seriousness of the

defendant’s criminal history). Points are assessed for past convictions,48 for

“If the defendant qualifies for a decrease under subsection a), the offense level

determined prior to the operation of subsection (a) is level 16 or greater, and upon motion

of the government stating that the defendant has assisted authorities in investigation or

prosecution of his own misconduct by timely notifying authorities of his intention to enter

a plea of guilty, thereby permitting the government to avoid preparing for trial and

permitting the government and the court to allocate their resources efficiently, decrease the

offense level by 1 additional level,” U.S.S.G. §3E1.1(b).

3 points for each past sentence of more than 1 year and 1 month; 2 points for each

sentence of imprisonment for 6 months but less than 1 year and 1 month; and 1 point for any

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misconduct committed while under judicial supervision such as bail or parole, and

for crimes of violence.49 Juvenile as well as general and special court martial

convictions are counted; convictions by a tribal court, the court of a foreign country,

or a summary court martial are not, U.S.S.G. §4A1.2. Korakis apparently had no

prior criminal record for he was found to have a criminal history category of I.

Adjusted offense level: 29

Criminal history category: I .

B. Career Offender. The career offender Guidelines, U.S.S.G. §§4B1.1, 4B1.2,

have special relevance for defendants convicted of controlled substance offenses.

They are essentially three strikes provisions although they do not call for an

automatic sentence of life imprisonment, but instead supply an alternative enhanced

penalty structure for the crime that constitutes the third strike. They cover any adult

offender50 convicted of a controlled substance crime51 or crime of violence52

following two prior convictions for similar offenses, U.S.S.G. §4B1.1(a). Offenders

who qualify are assigned a criminal history category of VI and the higher of (1) the

offense level that applies based on their present conviction or (2) U.S.S.G. §4B1.1

which except in the case of certain firearms offenses range from an offense level of

37 down to one of 12 based on the maximum penalty for the offense of their present

conviction.53 The firearms equation is a bit more complicated to account for the