Calculation of the appropriate federal sentencing guidelines advisory sentencing range is paramount to federal sentencing. In fact, it is the first step in federal sentencing prior to moving forward to the sentencing factors set forth in § 18 USC 3553a and consideration of any variance motions. Therefore, as the calculated advisory guideline range serves as the starting point prior to any downward (or upward) departures, its importance cannot be overstated.
§ 4B1.1 of the United States Sentencing Guidelines (USSG) establishes a special designation known as “career offender.” When a person is designated a “career offender” pursuant to USSG § 4B1.1, the applicable advisory guidelines range will almost always be much higher. USSG § 4B1.1 achieves this in two ways. First, it sets a minimum offense level that is usually far higher than what the defendant would have otherwise received based on the normal application of the guidelines. Second, it automatically places the defendant in criminal history category VI, regardless of his or her actual criminal history. The net result of these two adjustments is that the defendant’s recommended guidelines range will be near the maximum penalty for the crime of conviction.
WHO IS DESIGNATED A CAREER OFFENDER
In order to be designated a career offender, the person must:
- Be at least 18 years old at the time he or she committed the offense of conviction;
- be convicted of a felony drug crime or a felony crime of violence; and
- have two prior felony drug or crime of violence convictions.
CHALLENGING CAREER OFFENDER DESIGNATION
Although the criteria for being designated a career offender appears straight forward at first glance, exceptions, if applicable, can result in not being a career offender.
First, whether a particular prior offense qualifies as a predicate offense for purposes of career offender must be determined. The rules for determining which prior convictions count are complex and convoluted. For instance, prior convictions that are too far back in time are not counted for purposes of determining whether or not someone is a career offender.
Second, the United States Supreme Court has held that the definition of a crime of violence under the Armed Career Criminal Act (ACCA) is unconstitutionally vague.[1] As the definition of crime of violence under the sentencing guidelines is similar to the ACCA’s definition, there may be certain crimes that no longer qualify as crimes of violence.
Attorney Kirk Truslow's practice focuses solely on criminal defense in State and Federal Courts. In practice for thirty years, Truslow has successfully defended many cases in State and Federal Court, and has served as lead counsel in State and Federal Court jury trials. If you are being investigated or have been charged with a Federal Offense, contact attorney Kirk Truslow at 843.449.3304 or at kirk@attorneytruslow.com.
[1] Johnson v. U.S., 576 U.S. (2015)