C H A P T E R S 2 A N D 3 O F T H E G U I D E L I N E S

CALCULATING OFFENSE LEVELS

FOUR STEPS : § 1B1.1

1. Base Offense Level

2. Specific Offense Characteristics

3. Adjustments and Enhancements

4. Departures

WHAT GUIDELINE APPLIES?

EXCEPTIONS TO THE INDEX

Stipulation

Unlisted statutory offense

Conspiracy, attempt, solicitation, aiding and abetting, accessory after the fact, misprision = §

2X1.1

CHAPTER 2

Organized by types of crimes: • Part A – Offenses Against Persons • Part B – Economic Offenses • Part D – Drug Offenses • Part K – Public Safety • Part L – Immigration

BASE OFFENSE LEVEL

Starting point for determining the seriousness of a particular offense:

FIREARMS: § 2K2.1

DRUGS: § 2D1.1

SPECIFIC OFFENSE CHARACTERISTICS

Factors that vary from offense to offense.

Contained within the particular Guideline.

Court will look not only to the charge of conviction but also to relevant conduct.

FIREARMS: § 2K2.1

1. Number of firearms 2. Lawful sporting purpose 3. Destructive device 4. Stolen 5. Altered/obliterated serial number 6. Trafficking in firearms 7. Possessed while attempting to leave the US 8. Used or possessed any firearm or ammunition in

connection with another felony offense

HOW OFTEN DO THEY APPLY?

• Stolen Firearm – 1,360 (21.1%) • In Connection with Another Offense – 1,567 (24.3%) • > 2 Firearms – 1,588 (24.5%)

DRUGS: § 2D1.1

1. Possessed a dangerous weapon

2. Used violence or threats of violence

3. Aircraft/Submersible vessel used to import/export

4. Distributed in prison

5. Distributed through mass marketing

6. Bribed or attempted to bribe law enforcement

7. Maintained a premises to manufacture/distribute

DRUGS: § 2D1.1

Victim/offender specific offense characteristics

1. Received adjustment for aggravating role and used fear; a minor or vulnerable individual; engaged in witness tampering; was involved directly in the importation; or was engaged in conduct for livelihood.

2. Received adjustment for minimal participant and was motivated by familial relationship, received no monetary compensation, and had minimal knowledge.

3. Safety valve

HOW OFTEN DO THEY APPLY?

• Possessed a dangerous weapon • Maintained a premises to manufacture/distribute • Created risk of harm to people/minors/environs • Safety valve – 9,345 cases (39%)

CROSS REFERENCES

Requires you to use another Guideline

These will only put your client away for a longer period of time!

§ 922(G) EXAMPLE

2K2.1(c)(1)(A): Cross Reference If the defendant used or possessed . . . ammunition in connection with the commission or attempted commission of another offense . . . , apply— (A) §2X1.1 (Attempt, Solicitation, or Conspiracy) in respect to that other offense, if the resulting offense level is greater than that determined above . . .

Your client’s Guideline is now the attempted murder Guideline

ADJUSTMENTS: CHAPTER 3

1. Factors that can apply to any offense (victim related, role in the offense,

obstruction)

2. Multiple counts

3. Acceptance of responsibility

VICTIM RELATED: § 3A1.1 – 3A1.5

ROLE IN THE OFFENSE: § 3B1.1 – 3B1.5

1. Aggravating Role

2. Mitigating Role

3. Abuse of a Position of Trust

4. Using a Minor to Commit a Crime

5. Use of Body Armor

OBSTRUCTION: § 3C1.1-3C1.4

1. Obstruct/impede justice

2. Reckless endangerment during flight

3. Offending while on release

MULTIPLE-COUNT ADJUSTMENTS

WHAT DO I DO?

1. Conduct the grouping analysis

2. Analyze incremental increases

GROUPING BASICS

1. What is grouping? 2. How do I start grouping? 3. What is the practical effect?

“Convictions on multiple counts do not result in a sentence enhancement unless they represent additional conduct that is not otherwise accounted for by the Guideline.”

WHAT GROUPS TOGETHER?

3D1.2(a)

Same victim, same act

WHAT GROUPS TOGETHER?

3D1.2(b)

Same victim, multiple acts connected by a common criminal objective or part of common scheme or plan.

WHAT GROUPS TOGETHER?

3D1.2(c)

One count embodies conduct that is a specific offense characteristic or

adjustment to the Guideline applicable to another.

GROUPING UNDER (A)-(C)

1. Guideline for each Count.

2. Apply the highest offense level.

Count 1 Aggravated

Assault AOL 22

Count 2 Robbery AOL 25

Group offense level is 25

WHAT GROUPS TOGETHER?

3D1.2(d)

Counts where the offense Guideline is based on some measure of

aggregate harm.

• Drug trafficking

• Fraud, theft, & embezzlement

• Firearms

• Alien smuggling

• Trafficking/possession of CP

• Money laundering

• Tax violations

• Counterfeiting

• Bribery

GROUPING UNDER 3D1.2(D)

If Counts use the same/similar Guideline

and

If Guideline is included at §3D1.2(d):

Apply the Guideline as one Count

One Group. Offense level is determined by taking conduct as the whole

Do alien in possession of a firearm (2K2.1) and illegal

reentry group (2L1.2)?

WHAT DO I DO?

1. Conduct the grouping analysis

2. Analyze incremental increases

INCREMENTAL INCREASES

If you have more than one group:

1. Compare the offense levels

2. Determine the number of “units.”

WHAT ARE UNITS?

§ 3D1.4

Group with highest offense level = 1 unit

Group that is equally or 1-4 levels less serious = 1 unit

Group that is 5-8 levels less serious = ½ unit

Group that is 9 levels less serious = zero units

Illegal Reentry OL 20

Alien in possession of

a firearm OL 12

1 ½

Offense level 21

ACCEPTANCE OF RESPONSIBILITY

§3E1.1

• Acceptance of responsibility for the offense, then 2-level decrease

• If you accept responsibility and the offense

level is 16 or greater and upon motion of the Government for timely notification of intent to

plead, then 1-level decrease

HOW DO I REMEMBER ALL OF THIS?