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Q. “How do they figure my sentencing in federal court?” A. “This is just a glimpse, below, of how they do it,” explains Ft. Lauderdale federal criminal lawyer John M. Castellano

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Re: federal sentencing guidelines:

“The Federal Judge wants to know what kind of person is standing before the bench, and there are “points” assigned to every prior criminal conviction of the individual’s life, and there are so many “points” assigned to the actual charges to which the individual is pleading guilty at this time, and all of those points are added together for an aggregate total, and the total number of points corresponds with a total number of “months” in the Bureau of Prison (BOP) pursuant to the Federal Sentencing Guidelines.” — Florida federal criminal defense attorney John Castellano

“Also according to the Federal Sentencing Guidelines, an individual’s “base offense level” can be “adjusted” up or down, depending upon the “role” played by the individual in the offense. For example, if an individual is a “minor participant,” the individual can receive a two level downward adjustment under the Guidelines; however, if the individual is a “minimal participant” (and the question is begged, what is the difference between “minor” and “minimal”?), then the individual receives a four level downward adjustment under the Federal Sentencing Guidelines.” — Ft. Lauderdale criminal defense lawyer John Castellano

“As another example, if an individual is an organizer or leader or has a managerial role, the individual can face a four level upward adjustment under the Federal Sentencing Guidelines, and if the person uses a “special skill” in the commission of the offense, then the individual faces a two level enhancement or adjustment under the Federal Sentencing Guidelines.” — Florida federal criminal lawyer John Castellano

“Keep in mind that for every couple of levels under the Guidelines, you are talking about a couple of years in prison! If an individual’s base offense level (that level assigned to the particular crime in question) is increased by two levels, his or her sentence is increased by a couple of years, and in the same way, if the individual’s base offense level is adjusted downward by a two level downward adjustment for a minor role, for example, then the individual just saved a couple of years on the sentence, potentially getting out a couple of years earlier.” — Ft. Lauderdale criminal defense attorney John Castellano

“We are talking here about “adjustments” for role and for “special skills”, and there are other adjustments, which apply under the Guidelines. I tell you of these things now so that you are not shocked when US Probation computes some of these adjustments … when the Probation Officer authors the Pre-Sentence Investigative Report (PSIR).

My advice to federal clients who opt to enter a plea of guilty, rather than go to trial:

“You are wise to secure letters from various individuals who have known you over the course of your life, informing the Court of your decent character and other achievements to date, with particular reference to some kind and selfless things you have done for other people, etc. I do appreciate any efforts to help in gathering dozens of letters of support from individuals who have known of your character over the years. Please inform those individuals to send the letters to my office and not directly to the Federal Judge. Again, the letters need to be addressed to the Federal Judge, and they can begin with, “Your Honor,” or “Dear Judge ____”, but they must be mailed first to my attention at my office, Law Offices of John M. Castellano & Associates, P.A., 1112 SE 3rd Ave. Fort Lauderdale, FL 33316.”

“Please suggest to the individual authors that they should begin their letter by letting the Judge know that they are aware of the fact that is coming before the Court soon for sentencing. Their letter should then continue with how they know you, possibly in the second paragraph, continuing in the third paragraph, for example, with some specific examples of generous or kind or giving things which you have done for them or their loved ones or friends, or specific examples of your good character or accomplishments, and the letter can end with a specific request by the author for benevolence or mercy.” Florida criminal defense lawyer John Castellano

“In addition to “adjustments” under the Federal Sentencing Guidelines, there are “departures” under those same Guidelines. There are “upward departures” and “downward departures” under the Federal Sentencing Guidelines, and there are a whole array of upward and downward departures depending upon the circumstances of the offense and the circumstances of the individual’s life. Now, they even have what they call ‘variances’ in addition to ‘adjustments’ and ‘departures’ under these federal sentencing guidelines.”

“For example, if one were to substantially assist the Government in the arrest and prosecution of other individuals in connection with the crimes, one can receive a “downward departure” pursuant to Section 5K1.1 of the Federal Sentencing Guidelines, allowing the Court to depart downward as low as the Court feels is appropriate upon the Motion of the Assigned Federal Prosecutor; or, if the individual were to have a history of tremendous medical problems and current afflictions, then the individual might potentially be eligible to receive a “downward departure” based upon medical reasons pursuant to Section 5H of the Federal Sentencing Guidelines.”

“On a different note, if the individual were to pay all of the restitution back in a fraud case, for example, and the amount of restitution were extraordinary, then the individual might be eligible to receive a “downward departure” based upon “extraordinary restitution or extraordinary acceptance of responsibility”; or, if the individual were to be very young or very old, then the individual might be eligible to receive a “downward departure” base upon “age”, and there are a host of other upward departures and downward departures which might be arguably applicable under any given case. It is up to your lawyer to research and find whatever appropriate downward departures might exist as applied to your life and the offenses to which you are entering a guilty plea, and we are already working toward finding some otherwise applicable downward departures in your case.”

“The bottom line: you could be looking at significant prison time or a very high “number of months” and a significantly-increased, adjusted base offense level, once the figure is computed under the Federal Sentencing Guidelines and once your base offense level is “adjusted” to an “adjusted base offense level” under the Guidelines.” — Broward County federal criminal attorney John Castellano

“Keep in mind that the “adjusted base offense level” will then be “readjusted” to calculate for the “role” in the offense as previously described, with another adjustment upward for “special skills”, were the Court to believe that you exercised some sort of “special skills” in how you conducted whatever methodology you employed in the criminal episode, etc.; and, lastly, these adjustments are all separate and distinct from the “departures,” as previously mentioned.” — Broward federal criminal defense lawyer John Castellano

“An individual’s sentence after being adjusted and readjusted can then be increased by way of an “upward departure”, or hopefully, it will then be decreased by virtue of receiving one or more downward departures” under the Federal Sentencing Guidelines. Lastly, the good news is that you can receive a three level “downward adjustment” for extraordinary acceptance of responsibility, if you enter a guilty plea early in the equation, as opposed to forcing the Government to prove your guilt through Trial, etc. I want you to know how punishing the Guidelines can really be, so I will tell you of one more two level upward adjustment which can really appear frightening, to wit: if an individual goes to trial and takes the stand in his or her own defense, and if the Jury, for whatever reasons, finds the testimony not to be credible, and convicts the individual, the Court will often impose a two level upward adjustment for what is commonly referred to as “obstruction of justice.”

You might say: “That does not make any sense because it seems to penalize someone for exercising their Constitutional right to testify,” and I would agree with you, but the Courts will often make the quantum leap of assuming that your testimony was perjurious if discredited by a Jury, and if the Court finds from all the other evidence that your testimony was not credible, the Court will make a factual finding that you “obstructed justice”, and impose a two level upward adjustment for “obstruction of justice.”

Please feel free to call me @ the office @ 954 766 8810 and I will answer any questions you may have in this entire federal arena, or address any of your legal questions or concerns. I am,

Always there for you and your family,

John Castellano

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About the Author:

John M. Castellano is a Fort Lauderdale criminal defense attorney who has helped thousands of clients throughout Florida. While building a reputation as a premiere Fort Lauderdale DUI attorney, Mr. Castellano has worked tirelessly to develop strategies to best protect the rights of those arrested for DUI in Broward, Dade and West Palm. However, Mr. Castellano is not just a drunk driving lawyer. He has been a successful domestic violence attorney, drug trafficking attorney, as well as all other Felony and Misdemeanor cases.

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