1. Basic Concepts of the Sentencing Guidelines
2018 Heart of America Conference
Kansas City, Kansas
April 26, 2018
April 19, 2018 – with answers

2. Office of Education & Sentencing Practice U.S. Sentencing Commission
Presenters
Ebise Bayisa
Senior Attorney
Rusty Burress
Principal Training Advisor
Office of Education & Sentencing Practice
U.S. Sentencing Commission

3. Selected Topics Overview of Guideline Application
The federal sentencing system
3-Step Approach
Guideline application basics
Relevant Conduct – discussion & exercises
Criminal History – discussion & exercises

4. Commission Resources and introducing…
helpline (202)
@theusscgov
and introducing…

5. USSC Online Guidelines Manual “App” for Mobile Devices, Laptops & Desktops
guidelines.ussc.gov
Complete current (Nov. 1, 2016) Guidelines Manual including Appendices A, B, & C
PLUS bells & whistles: 5 5 5

6. Guidelines Manual “App” Bells & Whistles
guidelines.ussc.gov
Quick-search, bookmarking, highlighting, note taking, content sharing
Drug quantity calculator
Drug, weight & unit of measurement = Base Offense Level
Drug equivalency calculator
Up to 3 different drug types & weights = Marijuana Equivalency
Guideline range calculator
Total Offense Level & Criminal History Category = Guideline Range
Links to earlier Guidelines Manuals 6 6 6

7. Survey Says… How to Participate in the Audience Polling
Use Google
Enter: response ware
Go to the first listing in the search results (which will be: ResponseWare from Turning technologies)
At that web page, enter the “Session ID” (which we will provide you), and click “Join Session”
Voilà

8. Who are you? CJA attorney Private attorney
Federal Public Defender’s Office
US Attorney’s Office
US Probation Office
Law clerk
Other

9. Your district?
District of Kansas
Western District of Missouri
Other

10. How many cases have you had using the federal sentencing guidelines?
None & did not complete the USSC basic e-Learning courses
None & did the e-Learning
1 to 10
11 to 25
More than 25
I’ve lost count!

11. Federal Sentencing System

12. Sentencing in the Advisory Guidelines System
U.S. v. Booker and Subsequent Cases
Sentences are to be based on the factors at
18 U.S.C. § 3553(a)(1)-(7)
Correct guideline application is the required starting point in sentencing
Sentences are reviewed for “reasonableness”

13. 3-Step Approach to Federal Sentencing
Correctly apply & consider the sentencing guidelines
Consider the Commission’s policy statements
These include policy re: various departures 13 13 13

14. 3-Step Approach to Federal Sentencing (cont.)
Consider § 3553(a) taken as a whole and determine if the appropriate sentence is:
One within the advisory guideline system
- a sentence in the guideline range, or
- a “departure”
One outside the advisory guideline system: a “variance” 14 14 14

15. Position of Sentences in Relation to Guideline Range FY2017 – National
Downward Variance – No Gov’t
17.8%
Downward Variance – Gov’t
6.0%
Sentences Under the Guidelines Manual 74.0%
Upward Variance
2.3%
Total Variances 26.0%
SOURCE: U.S. Sentencing Commission, FY2017 – based on 66,266 cases
R-4/18

16. Overview of the Sentencing Process
Plea/verdict of guilty (FY2017: 97.2% guilty pleas)
U.S. probation officer (USPO) does a presentence investigation (PSI) & presentence report (PSR)
Gathers facts
Applies guidelines
Provides PSR to parties

17. Overview of the Sentencing Process (cont.)
Parties review PSR; advise USPO of any disputes on the facts or the application
USPO resolves disputes as possible; submits amended PSR and addendum of unresolved disputes to the parties and the judge
At the sentencing hearing the judge will resolve disputes as necessary
A traditional function of fact finding and legal interpretation

18. Note: In addition to sentencing, the PSR is used by
The Bureau of Prisons in a variety of decisions, e.g.,
Security level classification
Designation to a specific correctional institution
Programming eligibility
Furlough and halfway house eligibility
The USPO in a variety of decisions regarding the supervision under probation or supervised release, e.g.,
Level of supervision
Travel authorization

19. Resolution of Disputed Issues
§6A1.3 (P.S.)
The sentencing judge resolves disputed issues
Standard of proof: preponderance
Burden of persuasion: falls on party seeking the adjustment 19 19 19

20. Resolution of Disputed Issues (cont.)
§6A1.3 (P.S.)
Rules of evidence do not apply (Fed. R. Evid. 1101(d)(3))
Evidence must have sufficient indicia of reliability to support probable accuracy (§6A1.3(a)) 20 20 20

21. Notice for Sentences Outside the Applicable Guideline Range
Notice is required for a departure
Burns v. U.S., 501 U.S. 129 (1991)
Fed. R. Crim. P. 32(h)
Can be satisfied if the ground is identified in the presentence report or in prehearing submissions
Notice is NOT required for a variance
Irizarry v. U.S., 553 U.S. 708 (2008)
Best practice
Give the parties an adequate opportunity to respond 21

22. The Nature of a Federal Sentence
The Sentencing Reform Act of 1984
Determinate sentences; no parole
Supervised release
Available for all felonies & Class A misdemeanors
Good time
Maximum 54 days per year
Not available for sentences of one year or less, or for a life sentence
Note: advantage of “a year & a day”

23. Overview of Basic Guideline Application23

24. Ex Post Facto 18 U.S.C. § 3553(a)(4)
Use guidelines in effect at sentencing
U.S. v. Peugh, 133 S. Ct (2013)
Ex post facto applies to the advisory federal sentencing guidelines
§1B1.11
“One Book Rule” 24 24 24

25. Primary Offense Types – National FY 2017
SOURCE: U.S. Sentencing Commission Preliminary FY2017 Datafile; 66,412 Offenders Sentenced

27. Guideline Application – Offense Level
Chapter Two (offense of conviction guideline)
Base Offense Level (BOL)
Specific Offense Characteristics (SOCs)
Cross References
Victim
Role
Obstruction
Multiple Counts
Acceptance
Chapter Three Adjustments (generic guidelines) 27

28. Determining the Applicable Chapter Two Guideline
§1B1.2(a)
Use the Chapter Two guideline applicable to the offense of conviction
i.e., the offense conduct charged in the count of the indictment or information of which the defendant was convicted
Refer to the Statutory Index (Appendix A) in this determination 28 28 28

29. Appendix A
Statute Guideline 18 U.S.C. § B U.S.C. § B U.S.C. § 2113(a) 2B1.1, 2B2.1, 2B3.1, 2B U.S.C. § 2113(b) 2B U.S.C. § 2113(c) 2B U.S.C. § 2113(d) 2B3.1 29 29 29

30. §2B1.1 Larceny, Embezzlement, Fraud and Forgery
§2B Burglary
§2B Robbery
§2B Extortion by Force or Threat of Injury or Serious Damage 30 30 30

31. Pointers about Chapters Two and Three Application
Offense levels are cumulative
Within sections, use greatest
No issue of “double counting” unless directed by guidelines
“Adjustments” are distinct from “departures” and “variances” 31 31 31

32. §2B3.1 Robbery Base Offense Level (BOL): 20
(b) Specific Offense Characteristics (SOCs) Levels
(1) financial institution or post office
(2) firearm, weapon, death threat to +7
(3) victim injury to +6
(max. of 11 offense levels from (b)(2) & (b)(3)) 32

33. (b) SOCs (cont.) Levels (4) abduction +4 restraint +2 (5) carjacking +2 (6) taking of a firearm, destructive device, or controlled substance +1 (7) loss of over $20,000 to over $9.5M +1 to +7 (c) Cross Reference (1) if victim murdered, apply the guideline for First Degree Murder (§2A1.1) 33

34. The Conduct to Be Considered in Applying the Guideline Factors: Relevant Conduct34

35. Single Count Application
Chapter Two (offense of conviction guideline)
Chapter Three Adjustments (generic guidelines)
Victim-Related
Role in the Offense
Obstruction
[Multiple Counts]
Acceptance of Responsibility 35

36. Role in the Offense Chapter Three, Part B Levels
§3B1.1 Aggravating Role ,+3 or +2
§3B1.2 Mitigating Role , -3 or -2
§3B1.3 Abuse of a Position of Trust
or Use of a Special Skill +2 36 36 36

37. Obstruction Chapter Three, Part C Levels
§3C1.1 Obstructing or Impeding +2
the Administration of Justice 37 37 37

38. Acceptance of Responsibility
Chapter Three, Part E
2-Level Reduction:
If defendant clearly demonstrates affirmative acceptance of responsibility for the offense
1-Level Additional Reduction Possible 38 38 38

39. Requirements for 1-Level Additional Reduction
§3E1.1(b)
Only if 2-level reduction applicable
Must be at least offense level 16
Government motion required
Must give timely notification of plea of guilty

40. Criminal History and “Overrides”
Chapter Four
Criminal History and “Overrides” 40 40 40

41. Criminal History Category (Criminal History Points)
11/8/2018
Sentencing Table
Criminal History Category
(Criminal History Points)
Offense I II III IV V VI Level (0 or 1) (2 or 3) (4, 5, 6) (7, 8, 9) (10, 11, 12) (13 or more) 1 2 3 4 5 6 7 8
0-6
0-6
1-7
2-8
4-10
0-6
1-7
2-8
4-10
6-12
0-6
2-8
4-10
6-12
8-14
10-16
0-6
2-8
4-10
6-12
9-15
12-18
15-21
0-6
1-7
3-9
6-12
9-15
12-18
15-21
18-24

42. Criminal History Points – §4A1.1(a)–(e)✓
“Prior Sentences” (1, 2, or 3 points each) “Status” (2 points only) (the prior sentence must also have counted) “Crime of Violence” Increase for Certain Prior Sentences (1 point, with a max total of 3) ✓ ✓

43. Chapter Three and Chapter Four “Overrides”
§3A1.4 Terrorism §§4B1.1 – 4B1.2 Career Offender §4B1.3 Criminal Livelihood §4B1.4 Armed Career Criminal §4B1.5 Repeat and Dangerous Sex Offender Against Minors

44. Chapter Five 44 44 44

46. Criminal History Category
11/8/2018
Sentencing Table
Criminal History Category
Offense I II III IV V VI Level (0 or 1) (2 or 3) (4,5,6) (7,8,9) (10,11,12) (13 or more) 1 2 3 4 5 6 7 8 9 10 11 12 13
0-6
4-10
6-12
8-14
10-16
12-18
0-6
1-7
2-8
4-10
6-12
8-14
10-16
12-18
15-21
0-6
1-7
2-8
4-10
6-12
8-14
10-16
12-18
15-21
18-24
0-6
2-8
4-10
6-12
8-14
10-16
12-18
15-21
18-24
21-27
24-30
0-6
2-8
4-10
6-12
9-15
12-18
15-21
18-24
21-27
27-30
27-33
30-37
0-6
1-7
3-9
6-12
9-15
12-18
15-21
18-24
21-27
24-30
27-33
30-37
33-41
Zone A
Zone B
Zone C
Zone D

47. Other Aspects of Sentence
Chapter Five
Probation (§5B)
Supervised release (§5D)
Restitution, fines, assessments, forfeitures (§5E)
Sentencing options (§5F)
Undischarged terms (consecutive/concurrent) (§5G1.3) 47 47 47

48. End of Session

49. Relevant Conduct Basics: Recurring Issues
KC 2018 RelCon
April 19, 2018 49 49 49

50. Synopsis of the Relevant Conduct Analysis
Defendant accountable for acts he/she did in furtherance of the offense of conviction
Defendant accountable for certain acts others did in furtherance of the offense of conviction 50

51. Synopsis of the Relevant Conduct Analysis (cont.)
For certain offenses, defendant also accountable for acts he/she did, and certain acts others did, in the same course of conduct or common scheme or plan as the offense of conviction 51

52. Relevant Conduct Analysis in a Nutshell
WHO:
Acts of the defendant
Certain acts of others (3-part analysis)
WHEN:
Offense of Conviction
Avoiding detection
In preparation
During
Outside the Offense of Conviction: Same course of conduct/ Common scheme or plan 52 52 52

53. Holding a Defendant Accountable for the Acts of Others Under Relevant Conduct

54. When the Defendant Is Accountable for the Acts of Others
3-Part Analysis of (a)(1)(B)
The scope of the defendant’s jointly undertaken criminal activity
If acts of others were in furtherance of the defendant’s undertaking, and
If acts of others were reasonably foreseeable in connection with the defendant’s undertaking 54 54 54 54

55. Determination of Scope of Undertaking
§1B1.3, Comment Note 2
Requires an individualized determination based on each defendant’s undertaking.
Each member of a conspiracy may have different scope of undertaken criminal activity, and therefore, may have different relevant conduct.
See United States v. Figueroa-Labrada, 720 F.3d (10th Cir. 2013)

56. Relevant Conduct: Jointly Undertaken Activity
United States v. Spotted Elk, 548 F.3d 641(8th Cir. 2008)
If a district court adopts the relevant-conduct findings of the PSR and makes no findings of its own, we review the information in the PSR “as if it were the findings of the district court.” 
When a PSR “has not made particularized findings to support relevant conduct,” however, “sentencing courts may not simply accept the drug quantity attributed in a PSR without making particularized findings.” 

57. Determining Scope in a Conspiracy
§1B1.3, App. Note 2
Scope of criminal activity jointly undertaken by a defendant is not necessarily the same as the scope of the entire conspiracy

58. Determination of Scope of Undertaking
See United States v. Spotted Elk, 548 F.3d 641 (8th Cir. 2008)
“a defendant’s conviction for conspiracy does not automatically mean that every conspirator has foreseen the total quantity of drugs involved in the entire conspiracy.”

59. Relevant Conduct: Jointly Undertaken Activity
United States v. Miller, 698 F.3d 699 (8th Cir. 2012)
“The government asserted [Defendant] was responsible for the entire [drug amount] simply because she ‘was convicted as part of the same conspiracy as Mr. Miller.’ This is contrary to well-established Eighth Circuit precedent.”

60. Determining Scope in a Conspiracy (cont.)
“Bright Line Rule”
of §1B1.3, App. Note 2
Relevant conduct does not include the conduct of members of a conspiracy prior to the defendant joining the conspiracy, even if the defendant knows of that conduct.   60 60 60 60

61. Relevant Conduct: “Jointly Undertaken”
U.S. v. Willis, 476 F.3d 1121 (10th Cir. 2007)
“[T]he fact that the defendant is aware of the scope of the overall operation is not enough [to establish the scope of the defendant's agreement] and therefore is not enough to hold him accountable for the activities of the whole operation” (internal quotations omitted).

62. Standard for “Reasonable Foreseeability”
§1B1.3, App. Note 2, Illustrations
Not based on the foreseeability of the specific defendant
Based on an objective person standard:
Would a reasonable person have foreseen that another person in the undertaking would commit such an act in furtherance of the undertaking?

63. #1

64. What is the loss amount for Sams?
$500,000

65. When the Defendant Is Accountable for the Acts of Others
3-Part Analysis of (a)(1)(B)
The scope of the defendant’s jointly undertaken criminal activity
If acts of others were in furtherance of the defendant’s undertaking, and
If acts of others were reasonably foreseeable in connection with the defendant’s undertaking 65 65 65 65

66. Use of Term “Defendant”
§1B1.3
The impact of the term “defendant” in a guideline factor –
Limits the application of that factor to acts of the defendant
committed, aided, abetted, counseled, commanded, induced, procured, or willfully caused (§1B1.3(a)(1)(A))
Precludes application of that factor based on the acts of others within the defendant’s jointly undertaken criminal activity, in furtherance of, and reasonably foreseeable (§1B1.3(a)(1)(B))

67. #2

68. Does the firearm enhancement apply for Guy?
Yes No

69. Is Guy precluded from getting the “safety valve specific offense characteristic” because of the firearm?
Yes No

70. “Expanded” Relevant Conduct
Holding a Defendant Accountable for Acts Outside the Offense of Conviction
§1B1.3(a)(2):
“Expanded” Relevant Conduct 70 70 70

71. Same course of conduct/ Common scheme or plan
Analysis of §1B1.3(a)(2)
WHO:
(a)(1)(A): Acts of the defendant
(a)(1)(B): Certain acts of others (3-part analysis)
Offense of Conviction
WHEN:
Same course of conduct/ Common scheme or plan
(a)(2):

72. Offenses for Which “Expanded” Relevant Conduct Applies
§1B1.3(a)(2) & “Rule (d)”
The applicable Chapter Two guideline must be one included in a list at §3D1.2(d) (or be of that type), which is the list used for “grouping” multiple counts of conviction of a certain type

73. Offenses Included at §3D1.2(d):

74. Examples of Chapter Two Guidelines on the Included List at §3D1.2(d)
“Expanded Relevant Conduct” at §1B1.3(a)(2)
Applies
Drug trafficking
Fraud, theft, & embezzlement
Firearms
Alien smuggling
Trafficking/possession of child
pornography
Money laundering
Tax violations
Counterfeiting
Bribery
Other similar offenses

75. “Common Scheme or Plan”
§1B1.3(a)(2); App. Note 9(A)
Offenses must be connected to each other by at least one common factor, such as:
Common victims
Common accomplices
Common purpose
Similar modus operandi

76. “Same Course of Conduct”
§1B1.3(a)(2); App. Note 9(B)
Similarity
Regularity (repetitions)
Temporal proximity

77. Same Course of Conduct v. Common Scheme or Plan
United States v. Damato, 672 F.3d 832 (10th Cir. 2012)
“We have repeatedly noted the distinction between the two relevant conduct prongs. Although ‘common scheme or plan may require some connection between the acts by common participants purpose or overall scheme, the analysis of same course of conduct focuses on whether there is a pattern of criminal activity.’” 77

78. Same Course of Conduct
United States v. Damato, 672 F.3d 832 (10th Cir. 2012)
“Course of conduct is therefore broader in the sense that it sometimes permits the inclusion of conduct less similar to the offense of conviction than does a common scheme or plan.” 78

79. Same Course of Conduct
United States v. Hamilton, 587 F.3d 1199(10th Cir. 2009)
“[Course of conduct] ‘looks to whether the defendant repeats the same type of criminal activity over time. It does not require that the acts be connected together by common participants or by an overall scheme.’” 79

80. #3

81. What quantity of crack will be used in Corn’s application?
28 gm
75 gm
300 gm

82. #4

83. What quantity of crack will be used in Corn’s application?
28 gm
75 gm
225 gm
300 gm

84. Relevant Conduct’s Limits on Conduct Associated with a Prior Sentence
§1B1.3, App. Note 5(C)
Offense conduct associated with a sentence imposed prior to the acts constituting the instant federal offense of conviction is not considered part of the same course of conduct or common scheme or plan as the offense of conviction under §1B1.3(a)(2)

85. #5

86. What quantity of crack will be used in Corn’s application?
28 gm
75 gm
225 gm
300 gm

87. Conduct Charged in the Instant Offense of Conviction and a Prior Sentence
§1B1.3, App. Note 5(C)
When conduct associated with a previously imposed sentence is expressly charged in the instant offense of conviction, it will be considered relevant conduct under §1B1.3(a)(1), unless otherwise provided 87 87 87

88. Offenses for Which “Expanded” Relevant Conduct Does Not Apply
§1B1.3(a)(2) & §3D1.2(d)
“Expanded” relevant conduct does not apply if the applicable Chapter Two guideline is on the “excluded list” at §3D1.2(d)

89. Examples of Chapter Two Guidelines in the Excluded List at §3D1.2(d)
“Expanded Relevant Conduct” at §1B1.3(a)(2) Does Not Apply
Production of child pornography
Extortion
Blackmail
Burglary
Other similar offenses
Robbery
Assault
Murder
Kidnapping
Criminal sexual abuse

90. §1B1.3(a)(1) & (a)(2): Analysis
WHO:
(a)(1)(A): Acts of the defendant
(a)(1)(B): Certain acts of others (3-part analysis)
WHEN:
Offense of Conviction
Avoiding detection
(a)(1):
In preparation
During
Same course of conduct/ Common scheme or plan
(a)(2): 90

91. #6

92. Does the firearm enhancement in the Robbery guideline apply?
Yes No

93. End of Session

94. Criminal History Basics: Recurring Issues
Chapter Four
KC 2018 CrimHist
April 19, 2018 94 94 94

95. Topics Criminal history and relevant conduct
Single-Separate determination regarding treatment of multiple prior sentences
Revocations of supervision

96. Criminal History Category (Criminal History Points)
11/8/2018
Sentencing Table
Criminal History Category
(Criminal History Points)
Offense I II III IV V VI Level (0 or 1) (2 or 3) (4, 5, 6) (7, 8, 9) (10, 11, 12) (13 or more) 1 2 3 4 5 6 7 8
0-6
0-6
1-7
2-8
4-10
0-6
1-7
2-8
4-10
6-12
0-6
2-8
4-10
6-12
8-14
10-16
0-6
2-8
4-10
6-12
9-15
12-18
15-21
0-6
1-7
3-9
6-12
9-15
12-18
15-21
18-24

97. Criminal History Points – §4A1.1(a)–(e)✓
“Prior Sentences” (1, 2, or 3 points each) “Status” (2 points only) (the prior sentence must also have counted) “Crime of Violence” Increase for Certain Prior Sentences (1 point, with a max total of 3) ✓ ✓

98. Criminal History Points Prior Offense Committed at 18 or Older
Time Frame
Points*
Sentence
(Earliest Date of Relevant Conduct)
13 months
60 days
All others**
Within 15 yrs. of prior sentence imposition or release
Within 10 yrs. of prior sentence imposition
Within 10 yrs. of prior sentence imposition
(max of 4)
* If otherwise countable
** Exceptions may apply

99. Criminal History Points Prior Offense Committed Before 18
Time Frame
Points*
Sentence
(Earliest Date of Relevant Conduct)
Only if convicted as an adult and 13 months
 60 days
All others**
Within 15 yrs. of prior sentence imposition or release
Within 5 yrs. of prior sentence imposition or release
Within 5 yrs. of prior sentence imposition
(max of 4)
* If otherwise countable
** Exceptions may apply

100. Earliest Date of Relevant Conduct of the Instant Federal Offense
The Interplay Between Criminal History Time Frames and Relevant Conduct
15 years
10 years
11/1/17
4/1/18
Today
5 years
1/1/14
Date Instant Federal Offense of Conviction Committed
Earliest Date of Relevant Conduct of the Instant Federal Offense
Date of Plea /Verdict
Date of Sentencing

101. Time Frames and Relevant Conduct in a Broad Conspiracy
15 years
10 years
4/1/18
Today
5 years
5/1/16
Defendant Entered the Conspiracy:
“Bright Line”
Date of Plea /Verdict
Date of Sentencing

102. Previous Sentence: Criminal History or Relevant Conduct?
102
102
102

103. “Prior Sentence” §4A1.2(a)(1) & App. Note 1
Conduct that is part of the
relevant conduct of the instant offense
will not be a “prior sentence”
for criminal history

104. “Prior Sentence” (cont.)
§4A1.2(a)(1) & App. Note 1
Exceptions to the Rule:
e.g., determining the BOLs for §2K2.1 (Felon in Possession) and SOCs for §2L1.2 (Illegal Reentry)
Court may not give credit for undischarged terms covered under subsection (c) , although departure is warranted in an extraordinary case.

105. #1

106. #1 - How many criminal history points are assigned as a result of the Penn. state sentence?
No points
1 point
3 points

107. #2

108. #2 - How many criminal history points are assigned as a result of the state court sentence?
No points
2 points
4 points

109. Treatment of Multiple Prior Sentences:
Counted as a Single Sentence or Separately?

110. Threshold Determination: Intervening Arrest
§4A1.2(a)(2)
Multiple prior sentences for offenses separated by an intervening arrest are counted separately
110

111. Separated by Intervening Arrest
Examples:
Separated by Intervening Arrest
offense
arrested
offense
arrested
Intervening Arrest
Not an Intervening Arrest

112. “Intervening Arrest”
“i.e., the defendant is arrested for the first offense prior to committing the second offense”
Theft 1 offense
Arrested Theft 1
Theft 2 offense
Arrested Theft 2
Theft 1 offense
Arrested DUI
Theft 2 offense
Arrested Thefts 1 & 2
Intervening Arrest for Thefts 1 & 2
Not an Intervening Arrest for Thefts 1 & 2

113. Single Sentence Criteria
§4A1.2(a)(2)
Multiple prior sentences will be treated as a “single sentence” if
Prior sentences are for offenses NOT separated by an intervening arrest
The offenses either
Were named in the same charging document, or
Resulted in sentences imposed on the same day
AND
113

114. Impact of a “Single Sentence”
§4A1.2(a)(2)
Rather than add points for each prior sentence:
If concurrent sentences
Use the longest sentence
If consecutive sentences
Use the aggregate length of the sentences
114

115. { Example: Point Assignments and “Single” Sentences Length
Counted Separately
1 mo mos. consec mos. consec.
1 pt. 2 pts. 2 pts. {
14 mos.
3 pts.
5 pts.

116. { Example: Point Assignments and “Single” Sentences Length
Counted Separately
1 mo mos. concur mos. concur.
1 pt. 2 pts. 2 pts. {
9 mos.
2 pts.
5 pts.

117. #3

118. Criminal History Exercise #3
Arrest Date
02/07/03
(Age 18)
Charge/Docket #
Burglary, Montgomery County District Ct.
Dayton, OH, Case#2003-CR-411
Dayton, OH, Case#2003-CR-805
Date/Sent. Imposed
04/07/03: 4 to 15 yrs. imprisonment consecutive to Case#2003-CR-805
04/07/03: 4 to 15 yrs. imprisonment consecutive to Case# 2003-CR-411

119. #3a - Are these sentences counted separately or as a single sentence?

120. #3b - How many criminal history points result?
No points
3 points
4 points
6 points

121. When Two or More Sentences for a Crime of Violence Are Treated as a “Single Sentence”
§4A1.1(e) & App. Note 5
In a “single sentence” containing more than one crime of violence sentence:
For each additional crime of violence sentence that did not increase the criminal history points assigned to the “single sentence” (i.e., raising it from 1 point to 2 points, or from 2 points to 3 points (§4A1.1(a), (b), or (c)),
121

122. When Two or More Sentences for Crimes of Violence Are Treated as a “Single Sentence” (cont.)
§4A1.1(e) & App. Note 5
1 criminal history point is added under §4A1.1(e) (in addition to the criminal history points given for the “single sentence” under §4A1.1(a), (b), or (c))
However, a total of no more than 3 criminal history points under §4A1.1(e) can be used to establish the Criminal History Category
122

123. #4

124. Criminal History Exercise #4
Arrest Date:
05/06/09
(Age 20)
Charge/Docket #
Aggravated Robbery (Case# ); Rutherford County Criminal Court, Murfreesboro, TN
Aggravated Robbery (Case# ); Rutherford County Criminal Court, Murfreesboro, TN
Date/Sent. Imposed
06/26/09: 1 year custody, consecutive to Case #
06/26/09: 9 months’ custody, consecutive to Case #

125. #4a - Are these sentences counted separately or as a single sentence?

126. #4b - How many criminal history points result?
No points 2 3 4 5 6

127. Revocations of Supervision
§4A1.2(k) & App. Note 11

128. General Approach in Handling Revocations:
Add time imposed at original sentencing with time imposed upon revocation
Revocation may affect the time period under which some sentences are counted

129. General Approach in Handling Revocations:
Original sentence 3 yrs. imprisonment, suspended upon service of 1 yr. w/ 5 yrs. probation to follow
Probation revoked; 6 mos. imposed
1 yr. original sentence
+ 6 mos. revocation sentence
1 yr. 6 mos.
= 3 points

130. Revocation May Affect Time Frame
§4A1.2(k)(2)
For the purposes of determining the applicable time period, use the following:
An ADULT TERM of imprisonment totaling MORE THAN 13 MONTHS – the date of last release from incarceration
A CONFINEMENT SENTENCE for an offense COMMITTED PRIOR TO THE DEFENDANT’S 18TH BIRTHDAY – the date of last release from confinement
IN ANY OTHER CASE – the date of the original sentence

131. Note the Impact of a Prior Revocation
§4A1.2(k)(2)
A prior revocation can impact:
The number of criminal history points assigned for the sentence
E.g., a 1-point sentence can become a 3-point sentence
The applicable time frame for being counted
E.g., a 2-point sentence has a 10-year time frame to the date of the prior sentence; a 3-point sentence has a 15-year time frame – and date of prior sentence does not have to be in the time frame, just the last date of incarceration on that prior sentence

132. Note the Impact of a Prior Revocation
§4A1.2(k)(2)
A prior revocation can impact:
Whether the date of the last release from incarceration falls within the applicable time frame
E.g., the original sentence and the original date of parole (release from incarceration) were both outside the 15-year time frame for a 3-point sentence, but the prior parole revocation resulted in the defendant being incarcerated within the 15-year time frame

133. #5

134. Criminal History Exercise #5
Arrest Date
12/05/11
(Age 21)
Charge/Docket#
Consp. to commit possession of CDS (Cocaine)
Second Judicial District Court
Albuquerque, New Mexico
Date/Sent. Imposed
11/07/11: Guilty
2 years’ deferred adjudication, probation with drug treatment
09/06/12: probation revoked; guilty and resentenced to 180 days’ custody

135. #5 - How many criminal history points result?
No points
1 point
2 points
3 points

136. #6

137. Criminal History Exercise #6
Arrest Date
03/05/06
(Age 22)
Charge/Docket#
Burglary – 1st Degree
Charles County Circuit Court
La Plata, Maryland
Date/Sent. Imposed
06/28/06: 2 years’ probation
08/10/08:
probation violation warrant issued
11/29/08: probation revoked; 12-month sentence imposed

138. #6 - How many criminal history points result?
No points
1 point
2 points
3 points

139. §4A1.2, Application Note 11
Where a revocation applies to multiple sentences, and such sentences are counted separately, add the term of imprisonment imposed upon revocation to the sentence that will result in the greatest increase in criminal history points.

140. #7

141. #7 - How many criminal history points result?
No points
3 points
5 points
6 points
9 points

142. Please submit an evaluation
Thank You!
Please submit an evaluation