 You're watching FJTN, the Federal Judicial Television Network. Washington DC, the Federal Judicial Center, and the U.S. Sentencing Commission present Sentencing and Guidelines, Basic Application. Here is your moderator for today's program, Nancy Filsouf. As you just heard, I'm Nancy Filsouf, and I'm a senior education specialist for the Federal Judicial Center. Welcome to this afternoon's broadcast on Sentencing and Guidelines, Basic Application. This is actually a third in the series of broadcasts on Sentencing and Guidelines that has been presented by the Federal Judicial Center in partnership with the United States Sentencing Commission. Let me tell you a little bit about this broadcast. We're going to be broadcasting for approximately two hours, and at that midpoint, we'll probably have a five-minute break. Now, let me tell you more about the broadcast. What we're going to do is a major portion of the broadcast, we are going to be showing a videotape of a training program that the United States Sentencing Commission presented in Clearwater, Florida, not too long ago on basic applications. So what we have done is we have divided this tape into four segments. And in between the segments, we have experts from the Sentencing Commission that we will introduce to you in a few minutes. And they will provide commentary on the segments and also they will answer your questions that you will be faxing in during the program broadcast. I'll give you the fax number in just a few minutes. Also, I wanted to show you that we have some information that you can find about the broadcast on the Federal Judicial Center DCN website. And there's a lot of very good information about the Sentencing Commission in here. So I really urge you to get this information if you haven't already done so. Also in this packet, you will notice that we have provided for your convenience a fax form that you can use when you are faxing in your questions to us. Now before I forget, let me give you the fax number. It's 1-800-488-0397. Also, this program has been approved for Continuing Legal Education Credit, or CLE. And you can find out how to apply for this credit also by going to the Federal Judicial Center DCN website. I believe I'm finished with my announcements. What I'd like to do is to introduce to you my colleagues from the Sentencing Commission. First of all, we have Rusty Burrows, who is a Principal Advisor in the Commission. And we also have Rachel Pierce, who is an Education and Sentencing Practice Specialist. And both are from the Office of the Education and Sentencing Practice. Well, Rusty and Rachel, welcome to the program. So glad you're here today. Thank you so much, Nancy. And I know that you do have some comments that you want to provide to us before we start the first segment. So, Rachel, why don't you start first? Thank you, Nancy. Good afternoon. On behalf of the Sentencing Commission, I'd like to welcome you to Sentencing and Guidelines Basic Application. Today on the pre-recorded videotape, you will be seeing instruction from Andy Purdy in the Office of General Counsel, Frank Larry in the Office of Education and Sentencing Practice, and Rusty Burrows. As Nancy mentioned earlier, this videotape was originally taped at the eighth annual National Seminar on Sentencing Guidelines, which occurred in Clearwater, Florida in 1999. Rusty, would you like to tell us a little bit more about how the broadcast is going to go today? I'd be glad to. As you know from the title of our program today, the focus is on basic guidelines application. And we're going to do that by breaking it down into four segments. In the first segment, we're going to look at some of the general application principles. We'll look at the chapter two guidelines for offenses. We'll also look at the chapter three adjustments. In our second segment, we'll look at criminal history determinations and also how to use the sentencing table and coming up with an appropriate guideline range. In the third segment, we'll look at relevant conduct. And then in the fourth segment, we'll look at multiple counts with just a brief look at departures. Now after segments one and three, Rachel, you and I will be coming back to just make a few comments. After segments two and four, we'll be coming back to take the questions that the viewers will be asking us. And in terms of the questions, you want to give them some further insight. Sure, Rusty. We would like to focus our questions today on questions that pertain to basic guideline application. However, if you have faxed in a question that we don't get to on our broadcast today, please feel free to call us on our helpline, which operates Monday through Friday from 8.30 a.m. to 5.00 p.m. The number for that is 202-502-4545. Let's go ahead and get started with the videotape and Frank Larry. Before we get started, I just wanted to make a couple of points about resources. You know, at the Sentencing Commission about some of the things that you can have access to. I know the probation officers know a lot about our helpline. We operate a helpline at the Sentencing Commission Monday through Friday from 8.30 p.m. to 5.00 p.m. Eastern Standard Time. And I can tell you, if you call us, we'll do as much as we can to answer your questions. The other resource I'm going to point out is our website, www.ussc.gov. On our website, we have a training and education section where we put up a lot of training materials, a lot of training documents. We do our best to keep it current. And we're always looking for ideas, too, about our website. I know a lot of you out there are Internet savvy. In which case, please, you know, call, you can call me because I'm sort of overseeing our guideline and education section on the Internet. But it's turned into a very popular spot for people to go to for information. In terms of all you're going to hear today about how to apply the guidelines and how the guidelines work, everything is going to be moving toward this sentencing table. Just as a snapshot, you have the offense level running down this axis, top to bottom, and the criminal history category goes the other way. It goes horizontally. Categories 1 through 6. So, when you end up with a defense level at, let's say, a 10 and a category 1 criminal history, basically no criminal history, we're at a guideline range of 6 to 12 months. And that's basically what the court has to use, absent a departure up or down. Now, before we actually get into the sort of the, I call it sort of the guideline crunching, you know, all the numbers and everything, let's talk about what we refer to as determining an appropriate sentence. And we talk about it in terms of a sort of like a two-step process. The first step being to determine the appropriate guideline range. And there's no substitute for that. You've got to go in, do the application, get the guideline range. But we're also going to ask you to do sort of a second step, and that is to make what we call this refined assessment. It could be that, you know, there's a factor maybe the guidelines didn't take into account that might distinguish this case, take it out sort of the heartland of cases to make this case a little bit different that might justify, you know, a downward departure or possibly an upward departure. We're asking you to sort of stand back. And so that an appropriate sentence may be a sentence within the guideline range or it may be a departure. Because departures are part of the guideline system. They were intended to be part of the guideline system. We're not out telling everybody to just keep departing all the time from the guidelines. That's not what we're saying. But what we're saying is where there's a bona fide reason for departure. We're encouraging you to be mindful of this. In 1984, the Sentencing Reform Act was placed into law. It made sweeping changes to the way federal sentencing was done. And what we went to was a system of determinant sentencing basically doing away with parole. And as you know, there's no parole on the federal system anymore. But instead of, you know, the parole, the court actually can impose periods of supervised release. It's similar to the parole, but under supervised release, if a person violates the supervised release term, that person goes back to the judge under the current law, under the Sentencing Reform Act, as opposed to going back to the parole commission under the way the previous law worked. So you do have these terms of supervised release which follow a person's imprisonment term. They do their prison term potentially then come out on a period of supervised release. You have probation officers who are responsible for supervising people. A significant reduction in good time under the Sentencing Reform Act. Under the old law, most prisoners were eligible for at least a third off. Usually they were eligible for parole after a third of their sentence. Under the Sentencing Reform Act, that was reduced to 54 days a year after the first year. Also, the Sentencing Reform Act specifically provided for appeal of a sentence under 3742 of Title 18. You know, I showed you that guideline range. If a judge says, no, I don't like that guideline range. I'm going to do an upward departure. And if that's the case, okay, and there's statutory room to do that upward departure, the defendant has the automatic right to appeal. If there's a downward departure from that guideline range, same thing with the government. The US Attorney has the right to appeal that sentence automatically. Of course, you can always appeal an incorrect application of the guidelines. It was just basically wrong from the beginning, and either party can make that appeal. Where there's no guideline and the sentence is plainly unreasonable can be a basis for an appeal as well. Well, we have about at least 80% or so of the federal criminal violations covered by the guidelines. There's a few out there that are not. You probably won't see many of those. But the plainly unreasonable would be the standard for appeal in that situation. And of course, if it was an out-and-out illegal sentence, which I dare say you very rarely see, but that's another right to an appeal. We have statistics from 1997 in case you're curious about what actually the courts are doing in terms of sentencing. If you look at 97, this is based on roughly 46,000 cases. Almost 68% of the time judges are sentencing within the guideline range. Above the guideline range, these departures upward from the guideline range, 97.8%. And below the guideline range, these downward departures in 97 at 12.1%. 1998, there's an increase to 13.6%. And below the guideline range for substantial assistance is 5k1.1, which you're going to talk a little bit about later, for substantial assistance. 97 number, 19.2%, the 98 number, 19.3%. So roughly the same. That's been holding pretty steady, the 5k1.1 rate over the past few years. And the 98 cases, based on more cases than 98, almost 48,000 cases than 98. You know, with single-count application, we're going to start off with single counts. Later we'll talk about multiple counts, but you don't understand single-count application. You will not understand multiple-count application. One thing to keep in mind for you folks that haven't had experience with this is that the statute always trumps the guidelines. So if you go through this process going down the table across the table and you come up with some range, and that range says 12 to 14 years, but the defendant's convicted of account with a maximum statutory penalty of 10 years, the statute's going to trump the guidelines. This guy cannot get any more than 10 years. That will be the sentence. Or if you calculate a guideline range, it says give the guy two to three years, but the individual's convicted of an offense with a mandatory minimum of five years, that defendant will get the mandatory minimum of five years. Again, the statute will have trumped the guidelines. So keep that in mind because it can be quite significant as to the count that has been pledged to, for instance, in a single-count application, because you may come in having the statute trumped what the guidelines have called for. In Chapter 2, as you're working your way down the table, you develop a base offense level, which is a starting point for coming down the table from the Chapter 2 guideline. You have specific offense characteristics that talk about certain aspects of this particular offense, and if those characteristics are applicable, they will send you further down, sometimes back up the table. And you have in some of the Chapter 2 guidelines what are called cross-references that basically say, okay, you've applied this Chapter 2 guideline, and you came up with a number here, but the cross-reference may say, well, go over to another Chapter 2 guideline, apply that, and see what that number is. And sometimes you're directed to use that other guideline if the number is higher, or you're directed to use that other guideline under certain circumstances, instead of the one with which you had begun. Having completed the Chapter 2 calculations coming down the table, then you move to what we refer to sort of as generic guidelines in Chapter 3, their adjustments that further affect this offense level, sending you further down or back up the table. These include victim-related adjustments, role in the offense adjustments, obstruction adjustments. Now, we're looking at single-can application, so at this point we're not concerned with multiple counts, but in the sequence of guideline application, next would be the consideration of multiple counts of conviction if you did have multiple counts. And then the final Chapter 3 adjustment is acceptance of responsibility. Of course, the question is, which Chapter 2 guideline do you begin with? You've got a whole section of the guidelines manual there, Chapter 2. In fact, it's the bulk of the guidelines manual pretty much that is Chapter 2. So how do you determine which particular guideline is going to be the Chapter 2 guideline you will use? Well, that's in Guideline 1b, 1.2. 1 means that you're in Chapter 1 of the guidelines manual. B means you're in Part B of Chapter 1, and then 1.2 is the specific guideline there. So obviously I'm now referring you back to Chapter 1. Well, Chapter 1 is probably the most important chapter in the book for correctly applying Chapters 2, 3, 4, and then ultimately Chapter 5. So there are a lot of things going on in Chapter 1 that we will be referring to, particularly this guideline and relevant conduct, which is also back in Chapter 1. When you're deciding which Chapter 2 guideline you're going to use, you use the one most applicable to the offense of conviction. And again, going back to some of the decisions early on, the Sentencing Commission made in writing guidelines, it was like, do we write these guidelines for an offense of conviction system? You know, it's what you're convicted of is going to dictate essentially what the sentence is going to be, or is it more of a real offense sentencing system? You look at what really went on out there, regardless as to what they're convicted of, and then the sentence would really be driven by that. And the Sentencing Commission really has come up with what we sort of see as a hybrid system. But that hybrid system begins as an offense of conviction system. What the defendant is convicted of will dictate which Chapter 2 guideline is going to be used. In your guidelines manual, back in Appendix A, we have what is called a statutory index. And the statutory index lists most of the codes that the Sentencing Commission sees being violated that result in convictions in the federal court. We have those codes listed. And then we list the Chapter 2 guideline that we think should be the applicable guideline for that offense of conviction. Now, in our scenario, what was our defendant convicted of? What statutory section of law? 2113. 2113. Okay. And what was the subsection? A&D. A&D. Okay. Now, if you go to the Appendix A, you'll see that under 2113A, we have four potential Chapter 2 guidelines listed. You know they're Chapter 2 guidelines because they all begin with the number 2. Now, under 2113D, you see there's just one guideline listed there. And there has to be a decision as to which guideline is the most applicable guideline for your offense of conviction. If you were to look up those guideline sections that are listed back there, those Chapter 2 guideline sections, you would see that they are the guidelines to be 1.1, the Larsonie guideline, the Berglary guideline, the Robbery guideline, and the Extortion guideline. Those are the four potential guidelines. The commission says one of these probably will be your applicable guideline for this offense of conviction that we have in our scenario. The reason we have more than one guideline listed under 2113A is that if you read that section of law, 2113A, it says it's against the law to commit Larsonie or Berglary or Robbery or Extortion involving a bank. We're not really sure what that guy is convicted of on our end. Now, it's not going to be that complicated for you folks because you'll have the charging instrument, the information or indictment that the individual has pled guilty to, and that will have the elements of the offense your defendant has pled guilty to. So in that case, you look and see what the defendant was convicted of. So regardless as to what the facts surrounding this offense may look like, your concern at this point is what was the defendant convicted of. And you say, well, the defendant was convicted of Larsonie. That's the offense of conviction. I'm reading the elements of 2113A is the offense of Larsonie. Now, it sure looked like a robbery, but that doesn't matter. In choosing the Chapter 2 guideline, you would go to the Larsonie guideline under that set of facts. Now, having discovered which guideline we're going to use, we go back to Chapter 2 to begin applying that Chapter 2 guideline. I think that you'll find the worksheets are a most helpful way for those of you that have never applied the guidelines before of making sure you don't miss a step in the application of the guidelines. It will send you through the correct sequential application of the guidelines keeping you from missing any of the appropriate guidelines or adjustments that need to be considered. Okay, the robbery guideline. The robbery guideline 2B3.1 is going to be our applicable guideline for this offense of conviction in this scenario. The robbery guideline is like, I would say, most of the guidelines in Chapter 2 in that it has a set base offense level. This defendant is going to start at an offense level 20. You've looked at your sentencing table. This guy is down to the number 20 in that left-hand column at this point of guidelines application. But that's not the end of the calculations in Chapter 2 because then you have these specific offense characteristics, characteristics that will send you further down the table or sometimes back up the table depending upon whether it's an aggravating or a mitigating characteristic. You'll see in the robbery guideline, if it's a financial institution or post office, you add two additional offense levels. Would that be applicable in our scenario here? Okay, so this guy's gone from a 20 to a 22. Firearm, weapon or threat of death, and that can be anywhere from two additional offense levels up to seven depends upon type of weapon and the use made of that weapon. Okay, so the guidelines would have you add five additional offense levels if you're looking in your guidelines manually. This guy's going to pick up five more levels for the possession of the firearm. How about victim injury? There was a victim injured. And what was the degree of injury? Bodily injury. Now, of course, bodily injury, you know, you say, well, what is bodily injury? We know that the person got pushed. They had this injury. What was the degree? Again, as you're applying these guidelines, the commission has, following the guideline itself, commentary that includes application notes. And there's a lot of definitions. A lot of definitions are contained there to include what are definitions of injury. We send you back to somewhere else in the book to locate those. But definitions of injury, of weapon, other things that you will be considering in the application of the guidelines, we have definitions for those things. Another just general point is you go through guidelines application, for instance, here in chapter two and elsewhere. The guideline application is cumulative. You started with a 20, and it was a bank. You added two levels, and there was the firearm possessed. You've added the five levels. In other words, it's a cumulative application as you go through. However, within a subset, for instance, we looked at weaponry while ago, where you may have the guy that goes in, you know, loaded for bear. He has the gun. He has the knife. He's discharging the gun. He's using the knife. And it's like, whoa, now did I give a seven, plus a five, plus a four, or whatever? I mean, you're adding all those up. It is not cumulative within a subset. Within a subset, if more than one is applicable, as would be that set of facts, you would give the highest of those that are applicable. If more than one is applicable, as would say always be the case, if you discharged a firearm, obviously you possessed it, if you discharged it, you're not going to give the five for the possession and the seven for the discharge. You just give the higher or highest as would be applicable if more than one could be applied. We have a definition of loss. This is the value of property taken, damaged, or destroyed. So depending upon what was taken, what was damaged, what was destroyed in this robbery, all that adds up and represents a lost figure. In our scenario at hand, we had loss of $18,000. That's more than $10,000 and picks up an additional offense level. And again, you'll notice that recovery doesn't make a difference. There was a guy, hey, I took $18,000. I'm going after the door. You got the die pack going off. This money is no good. I'm running. The defendant still has taken $18,000, even if recovered. Or if restitution had been paid, maybe they never recovered it, but the defendant's paid full restitution, still there was that amount that was taken under our definition of loss. The concern that we have here is on the cross-reference. Suddenly this defendant who was operating at offense level 32, if a victim was murdered in this robbery, then we would cross-reference you and say, well, that 32 number, we're not going to use that. We're going to cross-reference over to the guideline for first-degree murder. And the offense level we're going to use instead is going to be 43. So we've jumped the guy from a 32 to 43. Now, the jury hasn't come back to make any finding that this guy was convicted of murder because he's not convicted of murder. This guy is convicted of robbery. The maximum statutory penalty for armed robbery is 25 years. So the question is, is this going to be a guy whose sentence the commission feels is more appropriately down toward, say, one day of imprisonment or whose sentence more appropriately is up around 25 years of imprisonment? And to make that determination, the commission has you look at a number of factors as to what occurred in this offense. And again, not looking at it beyond a reasonable doubt, but once you're applying these guidelines, looking at it at a preponderance of evidence standard is just typically been used in sentencing. And the commission, by sending you on a cross-reference, even though we cross-reference you to the murder guideline and we're using the 43 if that cross-reference occurs, this defendant still is not looking at what the penalty would be for a murder, which is life. This defendant's still looking at a maximum of 25 years. Now, the 43 and the calculations, this guy's probably going to end up with a guideline range that's going to be in excess of 25 years, I dare say. But nonetheless, the maximum exposure of this defendant is 25 years. The statute will trump the guidelines. This is going to be one of the defendants who's going to get a sentence that's going to be right at 25 years. Now, the concern, of course, is does the commission think it's fair to bump this guy up closer to 25 years when he hasn't been convicted of the more serious offense of murder? And I would have to say that, yes, the commission obviously has taken those things into consideration in formulating the guidelines in this fashion. Okay. Now, having completed your chapter two calculations coming up with a number, you'll notice we're still on our worksheet A. On page 48, we're about halfway down that worksheet. We have a 32 from our chapter two calculations. But then we go to these generic guidelines in chapter three. Victim-related adjustments, role in the offense adjustments, obstruction adjustments, multiple counts, and acceptance of responsibility. These victim-related adjustments include hate crime motivation, for which three additional offense levels will be added, or vulnerable victim, for which two additional offense levels will be added, or if there are large numbers of multiple victims, it's two additional levels on top of that other two for a vulnerable victim. Official victim is a three additional offense level increase, and if you have someone somehow associated with this offense that was an official, or an official's family member or something, your antenna should go up. Restraint of the victim is a two offense level increase, and if it's a terrorism offense, we add 12 additional offense levels, and this guideline is somewhat unique, very unique for chapter three adjustment, and that is it sets a floor, a floor of 32. In other words, by adding 12 levels, if you haven't gotten to a floor of 32, by adding 12 levels, you drop on down to a 32 on the sentencing table. This one also has the uniqueness of affecting your criminal history category. We'll talk a little bit about that later. Now, these chapter three adjustments under part A for victim-related adjustments, some obviously are used more often than others. The ones I'll just sort of point out that you are much more likely to see are vulnerable victim. Vulnerable victim comes up in a lot of fraud cases where you have people that are being defrauded because of their vulnerability. The restraint of victim comes up in some robbery situations, but not terribly much, and I don't think that official victim or terrorism are used hardly at all. In our scenario, did we have restraint of victim? Yeah. Okay. Now, how many things just off the top of your head that you would add the additional two-offense level increase here? Your initial thinking should be, yep, I'm getting ready to add this. However, if the chapter two guideline you have gotten through using, and again, we don't know which chapter two guideline you started with, but if the one you did use has taken this factor into consideration, then do not add it a second time. It's an attempt by the commission to have you not what some refer to as double count. Basically, the commission's position has been unless we tell you to do otherwise, assume that as you go through guideline application, probably you're going to be giving these things. So if we didn't have the application note here saying don't give restraint of victim, if chapter two did it, you probably should make the assumption the commission intended for you to give it back there in chapter two and to give it again here. That has been the basic approach, although again, the case law is headed in a somewhat different direction. Chapter three, Part B, role in the offense. It has aggravating role, it can add four, three or two additional offense levels. Mitigating role, which can reduce the offense levels. Abusive position of trust or use of a skill, which can increase the offense level. Or using a minor to commit the offense adds additional offense levels as well. Okay, the obstruction adjustments in chapter three at Part C. There's one for obstructing or impeding the administration of justice. The other is for reckless endangerment during flight. Obstruction can be obstructing both the investigation, the prosecution and the sentencing. So there are a lot of things that could occur that would give us two offense level increase that occur after the offense is well over with. The defendant could be coming in giving some kind of material false information to the probation officer in some investigation for the court. And that could trigger that. Or the defendant could trial, essentially commit perjury in the court to make the determination there was obstruction occurring in that regard. So there are things that can happen beyond the offense itself that could trigger this obstruction increase. The reckless endangerment during flight, that characteristic occurs, I think most often in relation to immigration cases where people are coming across the border and there's these high speed chases and there's a reckless endangerment that occurs. Acceptance responsibility, chapter three, Part E. And that provides for a two offense level reduction if the defendant clearly demonstrates acceptance of responsibility for the offense. It does not require that an individual plead guilty to get acceptance of responsibility and get the two levels off. However, it can't be one of these last minute sort of conversions where the defendant says, oh now I'm convicted, I'd like to get two more levels off. The commission says it should be viewed from the position as to what has this defendant done up until the time of trial in terms of behavior that would manifest acceptance. If two levels are given and only if the two levels have been given then there's a potential third level off if you're at offense level 16 or higher. In other words, coming down this table, if you're 16 or further down on the table then it's potentially a third level off. That one requires a couple of different ways. The one that happens most often we find is that if the defendant early on will come in and save the government resources of preparing for trial, save the court the resources of docketing and what not for trial and the defendant comes in and says I'm going to plead guilty then the defendant having been given the two can get the third. Or the other way is for the defendant having received the two to come in give total complete information to the government regarding the offense and that also can provide a basis for the defendant to receive that increase or decrease it. Welcome back. Rusty, as we've seen the first segment has focused primarily on just getting started with basic application. What would you think is an important principle to remember when we're just getting started, especially with reference to Appendix A? Well, I think that Appendix A really does represent a principle that is going on in guidelines application and that is that the guidelines begin as an offensive conviction system. That truly is the way they operate. Policy decision by the commission when they first wrote these guidelines that they would begin as an offensive conviction system. We'll go back to the beginning of guidelines. An example would be that you have an individual who has committed what is referred to as a schoolhouse count by trafficking drugs in a protected location and he's convicted of the offense of 21.860. The applicable guideline for that offensive conviction is 2D1.2. Another individual is convicted of a drug trafficking offense but not the schoolhouse count rather the 21.841 violation. The applicable guideline for that offensive conviction is 2D1.1. So you go to two different guidelines even though the individual who was convicted of the 841 violation may have actually been selling those drugs in the protected location. So it's very definite as to the outcome based on the offensive conviction. Now the commission as you saw in the videotape and as if you've seen any of our training in the past we've always emphasized that it is an offensive conviction system. But we found that in some instances courts were trying to look more to the real offense conduct and trying to go to a guideline based on that real offense conduct rather than the offensive conviction. So this past fall in the most recent amendment cycle the commission amended 1D1.2 to further clarify and to reiterate that it is an offensive conviction system. Now I know that we want to make a couple of additional points about guideline application and I want to use my same scenario to do that. You have the individual who's convicted of 21.860 the schoolhouse count using guideline 2D1.2. You have the individual convicted of the offense of drug trafficking under 841 using guideline 2D1.1. In both of those instances the individual used a minor to commit the offense. What will you want to remember specifically when you get to your chapter 3 adjustments Rachel? Well Rusty one of the most important things to remember when you're applying the guidelines is that you need to read everything not only the entire guideline but also all of the application notes as well as the introductory commentary and any background commentary that's pertinent. For example in the case that you just gave us when you're applying the drug trafficking guideline at 2D1.1 and the facts suggest as ours do that the defendant used a minor to commit a crime when you come to chapter 3 adjustments you're going to want to have an enhancement to that defendant for using that minor at 3B1.4. However on the other hand when you're applying the guidelines for the defendant who's convicted of the schoolhouse count and you're at 2D1.2 when you get to chapter 3 and that using a minor to commit a crime adjustment we have a specific application note 2 which instructs you that if your chapter 2 guideline incorporates that behavior then you don't want to apply that adjustment. So there's a perfect example of how it's important that you make sure you read everything, all the application notes, the entire guideline, all of it so that you don't have a misapplication of the guidelines. So often on even help line calls when people call in to the sentencing commission we find that they just haven't actually read the commentary application notes that may have answered the question for them. Okay Rusty what are we going to see now? Well of course up to this point we've been looking at how you establish the offense level which brings you down the sentencing table. Now we're going to move to establishing the criminal history category which sends you across the sentencing table and then those two things in conjunction with each other give you the two XCs that give you your applicable guideline range and so that's what we're going to be looking at in our next segment and then when we come back from that segment we're going to start faxing those in to us. So now I guess we go to the video tape. One of the things about criminal history is there are a lot of rules. It does get pretty complicated pretty fast on you. There's rules and there's exceptions to the rules but you're always driving to the sentencing table as we talked before the criminal history category going one through six and those little numbers in perin zero or one, criminal history category one two or three and so forth are criminal history points they're not necessarily the number of convictions these are points that are accumulated via chapter four under the criminal history rules and you get these points based on prior sentences based on the defendant's status also this idea of recency. You just got out of prison fairly recently and you're sort of the defendant sort of back at it again we're saying you're going to get extra points the defense is going to get extra points under this idea of recency and you'll see some types of offenses that are never counted for example foreign sentences tribal court sentences court marshals even juvenile status offenses for example now under the guidelines juvenile convictions are countable potentially but not juvenile status offenses possession of alcohol by a minor would be an example of a juvenile status offense and it works like this you get three points if the sentence is greater than 13 months two points if it's greater than 60 days or equal to 60 days up to 13 months and one point for all others and you'll see this time period so if you have a three pointer you got a two year prison sentence it's a three pointer you have a time period has to be within 15 years of the sentence you'll see a notation imposition or release what that means you look at when that offense occurred and then count back 15 years and if that prior sentence occurred within that 15 years you're going to meet the requirements of that time period if that prior sentence occurs before that 15 year period and the defendant got a prison sentence and was released within that 15 year time period it's also countable these time periods are important to keep in mind so this is for prior offenses committed at 18 or older these are adult prior sentences and as I mentioned earlier you also count sentences that occurred before age 18 and it's a little bit different here you get a three pointer only if convicted as an adult and the sentence has to be greater than 13 months and it's the time period is within 15 years of the sentence imposition or release a two pointer for greater or equal to 60 days up to 13 months you have a time period there within 5 years and a one pointer for all others now there's some other important determinations you sort of have to be mindful of as you do the criminal history rules and we can't pull them all out for you but the key ones especially for you new folks the key ones to be looking at is the relationship of prior sentences and relevant conduct under 41.2a1 it says the term prior sentence means any sentence previously imposed upon adjudication of guilt for conduct not part of the instant offense if you had a drug case for example where you had relevant conduct from a prior sentence being included in the current offense conduct you're going to include that in the offense and not count it as a prior sentence it gets a little complicated but you know on that point but the basic rule is if it's part of the instant offense if you pulled that conduct out of a state sentence and put it into the current offense to do the guideline calculation you're going to include it as you're not going to include it as a prior sentence the other point is related prior cases related cases are treated as one sentence for purpose of the criminal history calculation on page 293 of the guidelines manual 41.2a2 says prior sentences imposed in unrelated cases are to be counted separately and prior sentences imposed in related cases are treated as one sentence one sentence for purposes of a 41.1 if the defendant comes in in a prior sentence and there's two or three cases all sentenced on the same day for example they could be sort of grouped together you know into one sentence and have one set of criminal history points for that prior sentence so you want to be mindful to take a look at related cases the other point you want to be mindful of are prior revocations of supervision sort of like the question well how did how did the guidelines treat a prior sentence where there was also a probation sentence where the probation got violated and the defendant got sentenced to an imprisonment term basically the rule is in general you sort of lump those two together pardons and set-asides will be counted under the guidelines but not expunge convictions and also various other rules throughout chapter 4 that you're going to want to be mindful of the two key ones we talked about under 4A1.1D two points are added if the defendant committed the instant offense while under any criminal justice sentence counted under A, B, or C that's the key one and then this recency factor is also one you're going to be mindful of and that is two points added if the defendant committed the instant offense less than two years after release but you'd only give one point for 4A1.1E and what we're talking about for overrides is you go through and do your criminal history calculation no matter what the criminal history points are it can potentially be overridden by a few of these special rules that nowhere in the book we call them overrides I don't think but us in the training department thought you know what you need a marker so we're calling them overrides and that is 3A1.4 for terrorism career fender and this is one that comes into play probably more than any of these overrides criminal livelihood in 4B1.3 that you're not going to see too much of and then in 4B1.4 this armed career criminal for the career offender we're talking about someone who's at least 18 at the time of the instant offense the instant offense is a felony crime of violence or controlled substance and the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense and what congress has basically said under the statute for those kinds of people these repeat, violent drug type offenders make sure you sentence those kind of folks toward the statutory maximum and hence that's why we have this career offender and also a fence level determined by a table based on the statutory maximum unless the offense level from chapters 2 and 3 is greater and so you have the special table involving the statutory maximum and the offense levels like in our robbery scenario if we had I think the statutory maximum would be 25 years for our robbery it's automatically going to be if you have a career offender an offense level of 34 less the acceptance of responsibility also you get that reduction before sentencing if acceptance applies you notice that on that table if you're a career offender we give you a set number and that number can be reduced if you gave acceptance of responsibility some people believe they say oh well then we also had say maybe a minor role or a minimal role can we subtract that from this as well well guideline application is sequential and we try and have the worksheets to emphasize that you start chapter 2 you work through 3 you're working your way through the book by the time you get to chapter 4 you've already passed all those adjustments in chapter 3 to include acceptance or responsibility but you've passed role and acceptance and all those other things when you get over to chapter 4 it is only because under the career offender guideline that we say this number can be reduced if you did give acceptance or responsibility back in chapter 3 it's only because the commission says that that authorizes those 3 levels to be taken off so even though you may have in your sequence of application you may have given say a minimal role reduction when you get over to career offender the individual cannot get those offence levels off at that point because you have worked past that only if the commission were to come in and change the career offender guideline saying oh you can also reduce it if you gave career offender back in chapter if you gave mitigating role back in chapter 3 also so keep that in mind once you've calculated down the table chapters 2 and 3 across the table chapter 4 the overrides in chapter 4 part B for the points Frank was talking about further down or further across then you have to put the table into effect and that is back in chapter 5 and we're going to look at the table the zones and some other aspects of that the sentencing table we have the zones A, B, C and D and those zones provide for certain things for the court to do still within the guidelines it's not a departure to do these things that are offered within a particular zone so let's talk about what these zones offer under zone A the minimum of any of those ranges the minimum of all those ranges is 0 and so what could be done to a defendant who comes in with a 0 to 6 range well within guideline sentence it would not be a departure just to give that defendant a fine that would be acceptable under the guidelines to have fined that defendant because the range calls from no imprisonment up to 6 months of imprisonment straight probation would be available you don't have to give any imprisonment because the range doesn't call for any imprisonment it's not acceptable or of course the defendant could get a term of imprisonment and within the guidelines without departing the court could give up to 6 months of imprisonment and still be within our guidelines zone B coming down the table you see the minimum of these ranges there's a number there, there's a positive number you could give probation but here since there was a number called for at the very minimum of a range the requirement is that in giving the probation there has to be a special condition of the probation and the condition of the probation is that while the defendant will not be going to prison for say the minimum of the range being 4 months he's not going to go to prison for 4 months still that defendant is going to lose certain liberties by way of a condition of either home detention, community confinement or intermittent confinement it's going to be actually a sort of a substitute for having given the guy 4 months of imprisonment you put him on probation, 4 months of home detention put him on probation, 4 months and a half way house put him on probation, 4 months in a residential drug treatment facility all those would be acceptable guideline sentences within that range another sentence that sometimes is referred to as sort of a shock incarceration sentence is where you use imprisonment even though the range in the range calls for imprisonment 4 to 10 for instance but you don't give the full minimum, you don't give the full 4 months rather under this option you have to give at least one month the range of 4 to 10 and the court could utilize the option of saying I'm giving you one month of imprisonment having given one month of imprisonment it looks like 3 are still owing in terms of the minimum of the range and to satisfy those other 3 months the court can't put this guy on probation now because the statute doesn't allow giving imprisonment and probation but having given imprisonment the court is authorized to give a term as Frank mentioned earlier supervised release to follow the term of imprisonment so the court says one month of imprisonment say 3 years of supervised release special condition of your supervised release while you're under the supervision these 3 months that are owing will be satisfied by a special condition of home detention or community confinement and that would satisfy the range as well zone C and as you see as you go down the table the guidelines are more restrictive in terms of these options these numbers at the minimum are much larger numbers as you see the measure of the options allows for what sometimes is referred to as a split sentence not to be confused with what years ago was called the old split sentence but this type of split sentence is you've got a range say 8 to 14 months well you can split that minimum term that 8 months of imprisonment and require just half of that of imprisonment so the court could give say 4 months of imprisonment again only 4 months have been given so apparently the other 4 have to be satisfied somehow that would be satisfied by supervised release to follow the imprisonment with a special condition of the supervised release that the remaining 4 months be a condition of home detention or community confinement again that would be within guideline range acceptable sentence or a term of imprisonment you've got a range of 8 to 14 months the court could give a term of imprisonment somewhere between 8 and 14 months you could choose a number in between we don't have a zone showing zone D there are no options available under zone D you have someone say under zone D and the court puts that person on probation or splits the sentence up or whatever that's going to be a departure the courts in some instances may decide to be creative and to depart and utilize that type of sentence but it would be a departure it's not something that the guidelines permit the commission envisions that zones under zone D those ranges defendant will receive a term of imprisonment within that range unless there is the reason to depart as far as other aspects of sentence probation you know when probation should be given when it could be given they talk about supervised release when it should be given, how much should be given the length of supervised release should be given restitution, fines, assessments and forfeitures all that is addressed likewise sentencing options you know what about the court if it wants to use a community service can that be utilized some of those things of that nature are discussed as well and undischarged in terms of imprisonment you may have a defendant coming in to be sentenced in federal court and you've calculated this guideline range and the court is getting ready to impose this sentence either within the guidelines or a departure but this defendant may also currently be serving say a state term of imprisonment or another federal sentence and the question is well is this federal sentence that we're getting ready to give going to be concurrent or consecutive to that sentence that is already being served and that's addressed back in chapter 5 as well the Congress when they had the Sentencing Reform Act I think initially the plan was that no statute no criminal violation would even have a term of imprisonment listed under a particular section rather it was just going to be classified like this is a class B felony or class C and then there would be a table somewhere saying this is how much imprisonment these people can get for this kind of violation it never sort of worked out that way rather what occurs is that based on what is the maximum statutory penalty for the offense that the defendant is convicted of in federal court it then translates into a class of offense so our armed bank robbers facing a maximum statutory penalty of 25 years because 25 years is the maximum statutory penalty that makes this a class B felony by this table once you determine the classification of your offense I think you'll find helpful in letting you know whether by statute probation is available or not and upon violation of the probation and subsequent revocation of the probation for instance this class B felon that we have our armed bank robber being a class B felon the authorized term of probation probation is not authorized by statute for a person who is an armed bank robber a class B felon you're not going to get that we have over there that may be a little confusing to you where we have the maximum statutory penalty for the offense is what's available upon revocation of probation you're saying well if you couldn't get probation how is it going to have some penalty available because he's going to get it to start with well there is always the possibility in I think this varies from circuit to circuit that may be through cooperation and Frank talked a little bit about that earlier substantial assistance with the government that the court somehow ends up giving a probation sentence that was otherwise be authorized by statute because of the cooperation based on the class of the felony there are set terms of supervised release allowed for instance our defendant was convicted of a class B felony and the class B felony by statute you can get it to five years of supervised release to follow this term of imprisonment the court is going to order upon violation and subsequent revocation of the supervised release the defendant could face potentially up to three years of imprisonment but say the court for whatever reason in the robbery case armed robbery gave 25 years of imprisonment the defendant would often served in every day of the 25 years of imprisonment the court could have also given at the time of sentencing in addition to the 25 years five year term of supervised release and having served the 25 when the guy comes out and is under supervision by some US probation officer that's not in this audience then that defendant is going to be on supervision and if violating will be taken back and potentially could face three more years of imprisonment so it's a total of 28 years it could result in custody from this conviction for this armed bank robbery just one of the point I want to make is about our fine table back in chapter 5 you've done the calculations in a particular case and you've decided based on the offense level you know in his category the guideline range also the offense level that is ultimately used in the calculation leads to a table that establishes the range of imprisonment our case at ham was what was the offense level for our robber 20 what? 29 29 so this table would say this defendant with assuming ability to pay would have a fine of between 15,000 and $150,000 hello there and welcome back you've seen the first two segments of our program and you're probably looking forward to a stretch break so what we'll do is give you a five minute stretch break which will provide good opportunity for you to fax in your questions for us I'm sure you have quite a few right now let me give you the fax number it's 1-800-488-0397 so we'll see you back in five minutes and then we'll have our question and answer period hey welcome back well I think we're ready to answer some of your questions Rachel are you ready? I'm ready Nancy do we have any questions? oh yes Westie we do have some questions and in fact I'm going to ask you the first question I'm ready I think under the sentencing reform act how much good time can an inmate receive towards service of a sentence good time good time is available only for sentences of over one year and it's not available for sentences of a year of life which means that if an individual gets a life sentence since we have no parole in our system it's a true life sentence now in terms of not being available for a sentence of a year or less if an individual were to receive a sentence of less than a year or a year that individual would not be eligible for any good time and so it's advantageous to the defendant to receive a sentence of say a year and a day instead of a one year sentence now the amount of good time that's available is up to 15% which translates roughly into 54 days for every year of good time that is served so you serve one year of good time 54 days comes off the back end so I wouldn't be happy if I received 11 months as far as a sentence you probably wouldn't be happy if you received anything Nancy that's true certainly if you weren't going to get your good time thank you and I do have a question for Rachel can an acceptance or responsibility adjustment be given to a defendant who goes to a trial yes Nancy an acceptance of responsibility adjustment can be given to a defendant who goes to trial although the guidelines do say that this will be a rare case for example if a defendant goes to trial for some reason say not related to factual guilt such as a constitutional challenge or something like that the adjustment can be given to that defendant what the court is going to need to do is look to the conduct of the defendant prior to the trial in order to determine whether or not that defendant is going to be eligible for that two level reduction okay very good Rusty next question do you have to apply a cross-reference yes cross-references are required assuming that the facts support the application of the cross-reference cross-reference operates just like anything else in the guidelines if the facts support it then it has to be given it's not something that's optional and in terms of what the commission is found in case reviews of certain kinds of cases on occasions it looks like that the facts would probably have supported the application of cross-reference and the courts are not giving those so it's very critical to remember that cross-reference is not something that's just optional okay thank you very much Rachel we do have another question we're obviously taking turns here how do you handle a defendant who violates his or her probation or supervised release okay violations and revocations Rusty actually did mention that briefly a classification of offenses and what sort of penalties are available for revocation in the broadcast however because that's such a heavy topic we're not really going to get into it much today I do want to direct the viewers if they have questions about that to chapter 7 of our guidelines manual which is where you're going to find the policy statements regarding violations and revocations and also to our website we do have a document on the website titled probation and supervised release violations there's a lot of helpful information in that document as well as some case law with pertinent issues for violations and revocations our website is www.usse.gov okay thank you very much Rachel and remember there is time for you to be faxing in your questions and again our fax number is 1-800-488-0397 we have time for one more question Rusty before we begin our next segment does the amount of time served have an impact on the number of criminal history points assigned to a sentence actually the time served does not the way our criminal history points operate is that you look to the sentence that was imposed in other words what did the judge articulate at the sentencing not how much time was actually served by the defendant so the judge may have said a five year sentence but the individual served less than a year it still is a five year sentence one thing to keep in mind however is that if the court suspended a portion of the sentence they gave five years upon service of one year that one year service that one year sentence it was suspended too even though even that four one year was not served would still be the sentence in that set of facts okay very good Rusty Rachel why don't you just tell us what's going to happen in the next segment sure Nancy the next segment of our broadcast is going to focus on the application of relevant conduct the videotape will begin with a brief discussion of the drug trafficking guideline which is probably one of the most frequently used guidelines then we are going to get into a more in-depth discussion on the application of relevant conduct let's go ahead and take a look at our next segment just to show you how the drug guideline works you have a base offense level it tells you to apply the greatest of three different things number one is a defendant is convicted under certain statutes of death serious injury from drug use occurs there is a similar prior conviction you can end up as a base offense level 43 number two defendant convicted under certain statutes and death or serious bodily injury result from the drug use you can be to 38 and I dare say most of all the cases that come through 2D 1.1 are down here at this base offense level from the drug quantity table and anybody's had a case I'm sure looked at this drug quantity table before it's kind of it's sort of like almost like a sliding scale depends on the amount of drugs involved in the case and that determines the base offense level you can see we have an example up here of drug quantity table base offense levels for powder cocaine 500 grams of powder cocaine is an offense level of 26 less than 25 grams of powder cocaine can be down to an offense level 12 if a firearm or a dangerous weapon was possessed you could end up with a two offense level increase if the defendant imported or exported drugs using an aircraft or it was a pilot captain so forth you could get a two level increase and if that occurs you also have a floor in 2D 1.1 of an offense level 26 distribution in prison can add two offense levels importation of methamphetamine or manufacture of methamphetamine from listed chemicals and if the defendant's role is not mitigating under 3B 1.2 then it can be a two offense level increase environmental hazards that could be a two level increase if the defendant meets the criteria for the safety valve and the offense level is a 26 or greater as you're doing 2D 1.1 you can the defendant can end up getting potentially two levels off and cross references C1 if the victim was murdered apply the guideline for first degree murder or if the defendant is convicted under 841B7 distribution with intent to commit a crime of violence apply the guideline for attempt for that offense if greater relevant conduct you really have to understand relevant conduct because that is really sort of the cornerstone of the guideline application I can't emphasize it so I've said the worksheets now I'm saying relevant conduct there may be one more but relevant conduct is extremely important to understand relevant conduct sets the limits of information to be used in guidelines application you have all this universe of information that can potentially come into play in terms of sentencing relevant conduct guidelines going to tell the judge and what's going to be considered how it's going to factor into the guidelines or how it may not be factored into the guidelines could be potentially excluded from the guidelines includes certain acts of the defendant what the defendant did and potentially what other people did in connection with this offense that occurred within certain time limitations relevant conduct is all about sentencing accountability what might be considered criminal liability and information that can be used at sentencing generally is all information under the statute 3661 you'll see that the guidelines at 1B1.4 and the supreme court even in these two cases the Witt case and the Watts case talk about that but the guidelines information that can be used in applying the guidelines that's spelled out by relevant conduct and has to fall within the limits set by relevant conduct relevant conduct is broken down as you will see if you're looking in your manual into subsection little a into subsection little b and subsection little a tells us what is going to be relevant for application of chapters 2 and 3 and you know this doesn't come as a shock to anyone when I say chapters 2 and 3 because we've looked at the chapter 2 guidelines the chapter 3 adjustments you know what we're talking about subsection b is what's going to be relevant for application of chapters 4 and 5 we're showing 1B1.3 sub little a sub little b little a is broken down into 1, 2, 3 and 4 sub b doesn't have any further breakdown under little a we don't really find a whole lot of issues arising a lot of calls, a lot of questions a lot of even case law that deals with subsections 3 and 4 if you have a question on subsection a3, a4 give us a call on the helpline we'll be glad to talk to you about it but it's not something that we feel we need to emphasize here a1 and a2 that's where the issues come up and that's I think the essence of when people talk about relevant conduct I think that's the essence of it so let's look at a1 and I think it's probably a little easier to look at it from the when to start with the when is like okay we know there's a universe of information and we know it goes from the beginning of time up to now but what are we going to get to look at for sentencing purposes well the when is like okay here's how far you can go looking at time in applying the guidelines first of all it's key to the offensive conviction what is your offensive conviction we had this morning was an armed bank robber that's our offensive conviction now we're going to look at the when the time component sometimes referred to as the temporal component commission says something occurred during and that seems to be pretty closely in nexus with the offensive conviction so that's going to be part of our temporal consideration but we're going to go a little broader than just those things that occurred during the offensive conviction we also will look at those things that occurred in preparation for the offensive conviction that's closely enough associated with the offensive conviction that if something was done in preparation even though it may have occurred before the offensive conviction that it's still going to be within our temporal consideration for relevant conduct and also we're going to consider those things that occurred in avoiding detection or responsibility for the offensive conviction those things may be occurring even after the offensive conviction but there's some attempt to avoid detection or responsibility still temporally it's expanded a little bit but there's still this nexus this connection with our offensive conviction now under A1 the who is going to be everything the defendant did we have a lot more legalistic type language we say if the defendant committed an act or if the defendant aided an act or abetted it or counseled it commanded it induced it procured it willfully caused it but basically it's like did the defendant do it but we're also going in some instances look at the acts of others now the acts of others we require a further analysis to occur we refer to it as our three part analysis first you have to determine the scope of the defendants jointly undertaking activity and then you have to make the determination well these acts of others were they in furtherance of this undertaking my defendant was engaged in would a reasonable person have foreseen that engaging in undertaking with other people that they may have done these kinds of acts in furtherance of this undertaking the defendant committed the robbery ok so now we're asking about the specific characteristics of chapter 2 consideration we know A1 covers chapter 2 considerations and the question is was a firearm possessed well the analysis says this act occurred during the offensive conviction he possessed a gun during the offensive conviction it was committed by the defendant the defendant did it during the offensive conviction it was relevant when the guidelines says give 5 offense level increase you have relevant conduct of a firearm being possessed by the defendant you give the 5 offense level increase but say our defendant did rob this bank with other no our defendant didn't carry the gun and the other guy carried the gun when offense level increase gave 5 levels if a firearm to get that or not, the three-step analysis. Was our defendant engaged in jointly undertaking activity with this other person? And what was that scope? Well, the undertaking that our defendant had was the robbery. Was this act of this other person, this act we're looking at, the carrying of the gun, was that in furtherance of this robbery? Hmm. He did point it at the television. They did seem to give him money a lot more quickly when he did so. Seems to have been in furtherance of the undertaking. And then finally, a reasonable person who has undertaken a robbery with someone else had foreseen that someone may have used a weapon during a crime of violence. And you have to answer that as well in the affirmative. If so, then even though it's an act of someone else, it is relevant conduct and being relevant conduct, the defendants held accountable for it. This defendant and that defendant, they robbed a bank together. Hmm. What was the scope of the conspiracy? Well, the scope of the conspiracy was to rob the bank. Sometimes the conspiracy and what the defendant has undertaken are mirror images of each other. They are one and the same. But that is not always the case. The scope of the criminal activity jointly undertaken by the defendant is not necessarily the same as the scope of the entire conspiracy. The examples would be, the defendant is convicted of a conspiracy count. And the conspiracy count has your defendant and 100 other people engaged in a conspiracy to import drugs on a hundred different occasions into the country. Well, your defendant is criminally responsible, criminally liable for this conspiracy, having been convicted of it. But for sentencing purposes, we say, well, what this defendant undertook may not be the same as this entire conspiracy. And you have to look at the facts and say, well, this defendant's undertaking actually was the importation of drugs on three occasions. Out of those hundreds of importations, this defendant was engaged in three of those. You have narrowed down from this entire conspiracy the undertaking of this particular defendant. Reason before seeable. We have that language about reason before seeable. Reason before seeable is the language in our three step analysis, three part analysis for holding the defendant accountable for the acts of others. As such, reason before seeability applies only to the conduct of others. It does not apply to the acts of the defendant. For instance, the defendant's convicted say of the conspiracy. And the act of the defendant the conspiracy was the defendant brought in the bag of drugs that contained two kilos of heroin. Well, turns out the defense says, gosh, I had no idea I was bringing heroin. I thought it was cocaine. And I didn't realize it was two kilos. It felt like about a kilo and a half to me, you know, and the question is, well, gee, would that have been reason before seeable to the defendant that he was carrying heroin instead of cocaine and it was two kilos instead of a half kilo. You don't even have to go there. Because if the defendant did it, and it occurred during the offense conviction, the defense responsible for that. So reason before seeability isn't something we're looking at in regard to the acts of the defendant. That's when we're looking at the acts of others. And as we look at the acts of others, keep in mind, it's only one part of the three part analysis of looking at the acts of others. For instance, the defendant out of these 100 importations with these hundreds of people over this long period of time undertook three of those importations. Well, he undertook three of the importations with some of those hundreds of people. And he did it maybe early on in this big conspiracy. Hey, probably should have been reason before seeable that some of those people might have gone on and imported drugs on other occasions in the conspiracy might have been known to him after his three importations that others went on and imported drugs again, they may have dropped message, boy, you need to come on out there help us import some more drugs here. You know, you did it three times. And sort of we haven't seen you around lately come on down. You know, maybe he knows about it. Starting reason before seeable is known. But that's not the analysis. Analysis is you say, what was the scope of the defendant's undertaking? The undertaking of the defendant out of this conspiracy was the three importations. So even if something is known to the defendant or reason before seeable, if it's not within the scope of the defendant's undertaking, it's not going to be relevant conduct. A two, we refer to as expanded relevant conduct. When we have this expanded relevant conduct under a two, we're not expanding the acts of the defendant because we know that we look at the who are the acts of the defendant, the acts of the others are the three part analysis. So we're not expanding the who we're expanding rather the wind, the temporal component. And what we're expanding is only for certain kinds of offenses, drug trafficking, fraud, theft, money laundering, firearms, offenses, counterfeiting, alien smuggling, tax violations, antitrust violations, a lot of offenses are listed back there. You're probably talking in excess of about 80% of all your cases are going to have expanded relevant conduct. So this is not something that happens infrequently. It's all those acts that were part of the same course of conduct, our common schema plan as the offense of conviction. My defendant came in play guilty to one count selling drugs on one street corner on one occasion. That's the offense of conviction. A one of relevant conduct kept us locked in to all those things occurred during that sale and preparation for that sale avoiding detection acts of the defendant and acts of others. But oh, this is one of those for which relevant conduct is expanded. Now I'm not looking just at that offensive conviction for my time frame, the when I'm looking at the course of conduct or common schema plan of which this offense of conviction is part. You say, gosh, the course of conduct was this defendant sold drugs on the street corner 52 weeks, a kilo at a time. So now you're looking at all that course of conduct, common schema plan, and saying, Okay, everything the defendant did during that course of conduct, common schema plan, or the acts of others under the three part analysis in that course of conduct, common schema plan, suddenly completing guilty to one count for which one kilo of drugs was involved, you're looking at 52 kilos, or having many kilos were involved in all these transactions. So relevant conduct has expanded tremendously for these kinds of offenses. There's a listing it also at 3d 1.2 d of offenses for which you will not use this expanded relevant conduct and included there are essentially offenses against the person that are more or less like the crimes of violence, robbery, assault, murder, kidnapping, criminal sexual assault, extortion and burglary, those kinds of offenses are listed. One final point, we know with the time frames, and they want to get too confused on terminology, but the time frames on criminal history, you know, you go back to five years, the 10 years, the 15 years to count the prior sentences when you're looking at a gas prior record. Well, you're going back five years, 10 years, 15 years from when from the earliest date of relevant conduct. And that can be quite critical in terms of prior criminal record getting counted against a defendant. Because you got the guy coming in for sentencing here today. And the offense, the defendant committed that was this one sale of drugs on one occasion that happened a year ago. But this guy had a course of conduct, a common scheme or plan of selling drugs once a week for the last five years. So six years ago is when he started this course of conduct, common scheme or plan, the earliest relevant conduct we looked at for this defendant was six years ago. Well, that being the case, when you're counting back five, 10, 15 years to see does this guy have any prior sentences that we're going to count? Are they too far out of our timeframe? You say, oh, gosh, well, he had one that was like 20 years ago. We're going to count that because six years ago, when the relevant conduct began counting back 15 years from the six years ago, we're going back 21 years. Yes, that 21 year to 20 year ago sentence gets counted against this defendant. So the defendant will be moving across the sentencing table in terms of the criminal history category for things that will get brought in there. Welcome back again. As we looked at the video there, it gave us a brief view of the drug trafficking guideline at 2d 1.1. You know, typically when you look at the drug trafficking guideline or begin discussing sentences under drug statutes, the issue will lead to the to the discussion of how do you determine statutory penalties for drug offenses, both mandatory, mandatory minimum penalties and statutory maximum penalties and certainly interest in those areas has been increased tremendously since the Apprendee versus New Jersey decision by the U.S. Supreme Court last year. There the U.S. Supreme Court talked about what is required in order to have an enhanced maximum statutory penalty. Because our video presentation today, however, is focusing on basic guidelines application, we will not be getting into the determination of statutory penalties or looking at recent case law developments. But for those of you that are interested in Apprendee, and I'm sure that virtually everyone is, the FJTN did an excellent broadcast just last month that looked at Apprendee. They did a great job. It had an expert panel that was involved in that to include one of our sentencing commissioners, Judge Joe Kendall from the Northern District of Texas. So we certainly commend you to watching that video. We think it's an excellent one. It will be rebroadcast on a couple of occasions upcoming on the FJTN network. The first will be on February the 14th. I assume that that's probably like some kind of FJTN Valentine's Day special. And then it'll be shown again on March the 14th on each of those dates. It'll be shown at both noon and then again at one o'clock. Thank you, Rusty. We're going to move on to our final segment in just a moment. But before we do that, Rusty, I just wanted to ask you, what do you think is one of the most important principles to remember when we're applying relevant conduct? Well, I think the main thing, and you probably gathered it from the video presentation, was that the relevant conduct has to be done on an individualized determination for each and every defendant that is being sentenced and for which the guidelines are being applied. You have to go through this analysis for each and every one. And that's true even if you have multiple defendants convicted of just the same count of conviction because that relevant conduct may be different for each of those defendants. And you don't know that until you have gone through that analysis and that application. Now I know that sometimes, if you've done it long enough, it starts seeming maybe a little bit intuitive as to the analysis. But I think always a person applying to guidelines would do well to go back to the analysis and be able to articulate where in the analysis they found the relevant conduct to apply or not to apply. Because if an issue is challenged, you have to be able to go back and to justify why you did or did not include something as part of your relevant conduct. Absolutely, very good point. Okay, it's time to move on to our fourth and final segment of the videotape. It's going to focus on multiple count application and we're also going to give you a brief discussion of departures. Remember, if you have any questions, please fax them into us now. Once again, our fax number is 1-800-488-0397. Let's go back to the videotape. Of course, as you're applying guidelines, you've got to use the sentencing table and you've got to come down the table to a certain point and across the table to a certain point to come up with your guideline range. And with multiple counts, of course, one of the practical aspects of it is, hey, well, if I've got multiple counts, what point do I use going down the table? If I've got multiple counts to have multiple points, you know, how do I, I've got to have one place that I come down so I can go across from that place to go out to find this one range. And the rationale for the multiple count rules, one is to determine the single offense level. By using these rules, you will be able to find that one point coming down the table that connects with that one point going across the table that gives you this one guideline range for your multiple counts and conviction. The commission in the multiple count rules is trying to keep from double counting, from punishing a defendant twice. The conduct really has already been punished under one of the counts conviction. We don't want to double punish. Also to provide incremental punishment. If someone, say, comes into court convicted of multiple offenses, oftentimes people will get multiple punishments for multiple offenses, but typically it isn't, it is an equal amounts of punishment. A guy convicted of five robberies probably doesn't get the, the, link the time under nine guidelines sentencing, five times the time that the guy who committed the one robbery, rather it's more of an incremental increase. And our guidelines work to give incremental increases. Yeah, you'll get more time for five robberies than for one, but you're not going to get five times the amount. You're going to get a little bit more for each of the additional, what we call harms. And to limit prosecutorial impact. If the guidelines said, oh, every time you get a count of conviction we're going to add so much more offense levels or so much more time or whatever. Prosecutors say, well in this case, you know, I can charge 20 counts of embezzlement. In this other case, I'll just charge one count of embezzlement. And boy, we came out with a whole lot of different sentence here, just based on purely the way I decided to charge this conduct. And the commission has tried to limit that somewhat in these multiple count rules. Now, the commission said, we know that when you have multiple counts of conviction, you have multiple violations of law. It's one and the same. You violated the law multiple times for the multiple counts of conviction. But you don't always have what we think are multiple harms in terms of guideline application purposes. Sometimes it is best to look at the multiple counts as really one composite harm. So sometimes we'll make the decision that even though you have multiple counts of violations, multiple counts of conviction, that you really just have one composite harm. It's best viewed as one composite harm. So that the approach to multiple counts is not to look so much at the counts, but to look at how many harms do we have really occurring here. And there are several ways which the determination is made as to whether you have a single harm or multiple harm. Now the grouping rules are the things that we look at to make the decision as to whether we have multiple harms or a single composite harm. You'll hear and even read in the case law. These were grouped under rule A. These were grouped under rule B. So they're referred to as rules even though it's just another guideline in the manual. Now the steps in multiple counts, I think basically you can be broken down to two steps and sometimes you don't even have to get to the second step. So I think it's really pretty easy in that regard. Step one is grouping. Grouping leads us to the determination as to whether we have one composite harm, even though we got multiple counts of conviction, one composite harm, or whether we have multiple harms. First you see grouping counts under rule D because we think that's the easiest rule to group under. And if you don't group them under rule D, how about rules A, B or C? Do they work toward grouping? And we'll go through this process. If you have made the determination that you have more than one harm, then just like the five robberies where we say well we're going to give some additional punishment, but we're not going to give five times the punishment that we would have for one robbery. The process the commission sends you through is called incremental increases in punishment. We refer to it as sort of a unit process where you have to assign what are called units. We'll talk about that. And then these units will translate into additional offense levels, the additional offense levels representing this increase in punishment for these multiple harms. So we've got the two steps and let me explain what the first step is, the process of grouping. If counts are grouped together, basically we want to treat them as one composite harm. Obviously in the alphabet D comes after A, B and C. But we have not found anything that somehow upsets the application of the guidelines when you get to the multiple counts section to use rule D first before you use rules A, B or C. The reason we suggest grouping under rule D first, if the counts can be grouped under rule D, is that more counts than any other type of count are going to fall under this type of rule. And that rule says that if counts use the same or similar guidelines, I got 50 counts of drug trafficking. They use the same guideline. Each count uses the 2D 1.1 drug trafficking guideline. And if that guideline is included at 3D 1.2D, always if you go into your guidelines manual to 3D 1.2 under section D and we list the guidelines that are covered there and drug trafficking is listed there, then you apply the guidelines as if for a single count application. Basically what you do, you add up the quantities of the drugs, you apply the guidelines one time. They have been grouped together. They're treated as a composite harm as such because what you've done, you've looked at the harm from each of the counts by aggregating the quantities. You're giving some consideration for all that harm when you apply the guidelines that one time. I got five counts of fraud. Hmm, each count of fraud is a look at the statutory violation and go to the appendix A. I'm sent to the guideline 2F 1.1 for each of these counts of conviction. So I know these counts of conviction are all using the same guideline in chapter 2. And I know from going to 3D 1.2D looking at the list that these got this guideline I'm using for all these counts is the one that's listed there. So the approach is I aggregate all the monies related to this fraud conduct, apply the fraud guideline one time. And the number I come up with, the offense level, that is a number that represents this composite harm. So that's the approach. And again, 80% of your cases, probably better in some districts, are going to be your money laundering, your drug trafficking, your thefts embezzlement, your frauds, your immigration offenses, counterfeiting, a variety of others are listed there. But these are the ones you're going to see most often. Now some offenses are excluded from grouping under Rule D. You've got multiple counts of robbery or assault or murder, kidnapping, all these kinds of violence that we talked about.