Defense Mitigating Factors: Reducing Sentences in Federal Cases

Posted on November 11, 2024 by Michael Lowe.

Mitigation in Sentencing: October 2024 USSC Primer for Federal Criminal Defense

Our previous article focuses upon the importance of sentencing considerations in any federal criminal defense matter. Particularly, how it is critical for defendants and their loved ones to know that the prosecution will have a number of “aggravating factors” to argue as reasons to “enhance” punishment of the accused. Read, How Prosecutors Try to Maximize Punishment: Aggravating Factors in Federal Sentencing.

All too often in federal district courts throughout Texas, the real battleground in felony cases is not in pre-arrest investigations nor in any trial itself, but instead in the assessing of punishment at a federal sentencing hearing. Whether or not there has been a successful plea negotiation, the accused will have to come before the criminal court bench at a formal sentencing hearing where the judge will make the ultimate decision and ruling on punishment.

A key distinction here between the State of Texas and federal criminal justice systems is the use of the United States Sentencing Guidelines (“USSG”) promulgated by the United States Sentencing Commission (“USSC”) in federal matters. These are used by judges in federal sentencing hearings. They are not used in Texas criminal cases.

The goal in the “sentencing phase” of any federal case, accordingly, from the perspective of the defense lawyer is to find legal arguments and factual circumstances that argue for leniency or a lesser punishment than the AUSA is seeking. This must include references to the USSGs.

Victory here may be defined as anything from a deferment to a lower number of years imprisonment within the statutory range. It is all about balance and proportion. Overall, this is considered as the defense’s “mitigation strategy.” Experienced federal criminal defense lawyers can have great success here, even after there has been a conviction. See, e.g., Fort Worth Federal Judge John McBryde Child Porn Downward Departure Sentence.

Let the Punishment Fit the Crime

From Act II of Gilbert and Sullivan’s The Mikado comes the popular idiom “let the punishment fit the crime.” For Texas practitioners comes the guidance of the United States Court of Appeals for the Fifth Circuit in application of the USSG, quoting the comic opera in US v. Sullivan, 895 F.2d 1030 (5th Cir. 1990):

Developed from empirical research with the goal of making the punishment fit the crime, the Guidelines are a convincing objective indicator of proportionality.

How Does Mitigation Work?

Mitigation essentially involves avoiding any kind of cookie-cutter application of statutory sentencing ranges and personalizing the particular punishment with “individualized sentencing.” Read, Vartkessian, Elizabeth S.; Posel, Thea; Ginez, Anthony; and Hubbard, Lela (2023) “When Justice Depends on It: The Need for Professional Standards for Mitigation Development in All Criminal Cases,” University of Baltimore Law Review: Vol. 52: Iss. 3, Article 4.

Mitigation works within the Sentencing Tables of USSG to lessen the sentence by including specific circumstances and facts that if proven, suggest that justice is better served by lowering the punishment in the particular case.

For more detail on how the USSG work in actual application, particularly in the use of the Sentencing Tables in punishment calculations, see our earlier discussions (with examples) in:

Mitigation is complicated and comprehensive. In fact, there are respected professionals who are experts in mitigation, often with advanced degrees in law or psychology. These “mitigation practitioners” are commonly hired by legal counsel in death penalty defense or other extreme sentencing matters (e.g., life without parole). To learn more about this field, see details provided online by the National Alliance of Sentencing Advocates and Mitigation Specialists.

USSG §3B1.2: Mitigation Defined in the Sentencing Guidelines

Within the USSG, mitigation is explained in §3B1.2 and defined as the “Mitigating Role,” as follows:

Based on the defendant’s role in the offense, decrease the offense level as follows:

3B1.2(a)(a) If the defendant was a minimal participant in any criminal activity, decrease by 4 levels.

3B1.2(b)(b) If the defendant was a minor participant in any criminal activity, decrease by 2 levels.

In cases falling between (a) and (b), decrease by 3 levels.

Guidance in Application: the USSC Commentary

The Sentencing Commission provides commentary for the bench to this Guideline with a series of Application Notes published alongside it. Read them here in their entirety.

Criminal defense lawyers will painstakingly go through these notes in the preparation of their mitigation presentation at the sentencing hearing. Of note from the accused’s perspective are the following (quoting excerpts from the USSG Commentary):

Relevant Conduct

A defendant who is accountable under §1B1.3 (Relevant Conduct) only for the conduct in which the defendant personally was involved and who performs a limited function in the criminal activity may receive an adjustment under this guideline. For example, a defendant who is convicted of a drug trafficking offense, whose participation in that offense was limited to transporting or storing drugs and who is accountable under §1B1.3 only for the quantity of drugs the defendant personally transported or stored may receive an adjustment under this guideline.

Loss Greater than Personal Gain / Limited Knowledge

Likewise, a defendant who is accountable under §1B1.3 for a loss amount under §2B1.1 (Theft, Property Destruction, and Fraud) that greatly exceeds the defendant’s personal gain from a fraud offense or who had limited knowledge of the scope of the scheme may receive an adjustment under this guideline. For example, a defendant in a health care fraud scheme, whose participation in the scheme was limited to serving as a nominee owner and who received little personal gain relative to the loss amount, may receive an adjustment under this guideline.

Less Serious Offense Than Warranted by Actual Criminal Conduct

If a defendant has received a lower offense level by virtue of being convicted of an offense significantly less serious than warranted by his actual criminal conduct, a reduction for a mitigating role under this section ordinarily is not warranted because such defendant is not substantially less culpable than a defendant whose only conduct involved the less serious offense. For example, if a defendant whose actual conduct involved a minimal role in the distribution of 25 grams of cocaine (an offense having a Chapter Two offense level of level 12 under §2D1.1 (Unlawful Manufacturing, Importing, Exporting, or Trafficking (Including Possession with Intent to Commit These Offenses); Attempt or Conspiracy)) is convicted of simple possession of cocaine (an offense having a Chapter Two offense level of level 6 under §2D2.1 (Unlawful Possession; Attempt or Conspiracy)), no reduction for a mitigating role is warranted because the defendant is not substantially less culpable than a defendant whose only conduct involved the simple possession of cocaine.

Participation was Minimal or Minor

Subsection (a) applies to a defendant described in Application Note 3(A) who plays a minimal role in the criminal activity. It is intended to cover defendants who are plainly among the least culpable of those involved in the conduct of a group. Under this provision, the defendant’s lack of knowledge or understanding of the scope and structure of the enterprise and of the activities of others is indicative of a role as minimal participant. Subsection (b) applies to a defendant described in Application Note 3(A) who is less culpable than most other participants in the criminal activity, but whose role could not be described as minimal.

Guidance in Application: the October 2024 Primer from USSC General Counsel

This month, the Office of the General Counsel for the United States Sentencing Commission released a formal publication discussing federal sentencing and the use of both aggravating and mitigating factors. Read, Primer on Aggravating and Mitigating Role Adjustments (2024), published by the Office of the General Counsel for the United States Sentencing Commission (“Primer”).

Defense lawyers will be quick to consider the limited authority that comes with this release. The authors themselves point out that the Primer exists “…to assist in understanding and applying the sentencing guidelines… [and] should not be considered definitive or comprehensive…. does not necessarily represent the official position of the Commission on any particular issue or case, and it is not binding on the Commission, the courts, or the parties in any case.” Primer, page i, Disclaimer.

Nevertheless, the Primer is powerful. It will be read and studied by judges as well as AUSAs, mitigation specialists, and defense lawyers across the country. Some key points from the Primer:

1. Decreases Up to 4 Levels in the Sentencing Table Available In USSG §3B1.2

Section 3B1.2 provides for 2-, 3-, and 4-level decreases to the offense level if the defendant had a mitigating role in the offense.

2. Burden Upon the Defendant to Prove Mitigation Adjustment by a Preponderance of the Evidence

The defendant bears the burden of proving by a preponderance of the evidence that he or she is entitled to a mitigating role adjustment. Upon appeal, the trial court judge will be given great leeway in having been presumed to have made a proper determination of the facts in the case.

3. Substantially Less Culpable Than The Average Participant In The Criminal Activity

The defendant’s relative culpability is measured only in comparison to those persons who actually participated in the criminal activity, rather than against other individuals who commit similar crimes. The burden here is to “prove that he was less culpable than his cohorts” and “[m]erely not being more culpable than his cohorts falls short of meeting the standard.” (citations omitted) There must be at least one other participant, and there is no need to prove that the other participants were convicted for their role in the criminal activity to be considered as “participants.”

The Primer also points out that: (1) a defendant ordinarily should not receive a mitigating role adjustment if he or she benefitted from a reduced offense level by virtue of having been convicted of an offense that was “significantly less serious than warranted by his actual criminal conduct,” and that (2) courts also have declined to grant an adjustment in cases in which the defendant’s base offense level “does not reflect the conduct of the larger conspiracy, regardless of the offense of conviction”.

4. Minimal and Minor Participants

There are both “minimal” and “minor” participants. To achieve a 4-level reduction, the accused must be shown to be a minimal participant, with the mitigation “…intended to cover defendants who are plainly among the least culpable of those involved in the conduct of a group.” Minimal participants are those where the facts demonstrate “…the defendant’s lack of knowledge or understanding of the scope and structure of the enterprise and of the activities of others is indicative of a role as minimal participant.”

Minor participants are eligible for a 2-level reduction. These are defendants who are “less culpable than most other participants in the criminal activity, but whose role could not be described as minimal.”

Evidence is key here. The USSC Commentary has a list of factors for the court to consider not only in deciding if this mitigation factor applies in the case, but which level of participant applies, minimal or minor. It is not an exhaustive list, and the defense does have the opportunity to add other arguments to it. The provided Commentary list involves:

(i) the degree to which the defendant understood the scope and structure of the criminal activity;

(ii) the degree to which the defendant participated in planning or organizing the criminal activity;

(iii) the degree to which the defendant exercised decision-making authority or influenced the exercise of decision-making authority;

(iv) the nature and extent of the defendant’s participation in the commission of the criminal activity, including the acts the defendant performed and the responsibility and discretion the defendant had in performing those acts;

(v) the degree to which the defendant stood to benefit from the criminal activity.

Of importance, the Primer points out that the Note itself states that “the mere fact that a defendant performed an “essential or indispensable role in the criminal activity” is not conclusive in determining whether to apply a mitigating role adjustment and that such defendant, if otherwise eligible, may receive a mitigating role adjustment.”

What About Couriers and Mules?

Here in Texas, lots of drug arrests, especially large operations or stings, include a number of people who acted as couriers or mules for either the illegal drugs themselves or the cash profits from their sales. For more, read Money Mules: Fraud Victims Become Criminals Facing Arrest in Texas and Federal Sentencing for Drug Couriers and Drug Mules.

The Primer points to “a substantial body of case law” in how USSG §3B1.2 applies when the defendant has been charges as a courier or mule in a drug trafficking scheme. These citations come from various federal circuits, not just the Fifth Circuit which oversees our local district courts.

In sum, mules and couriers cannot assume they will get a mitigated sentence as a minor or minimal participant even if they were obviously at the low end of the organization’s totem-pole. See, US v. Perez-Solis, 709 F.3d 453, 471 (5th Cir. 2013): [N]o reduction is available under §3B1.2 unless the participant was ‘peripheral to the advancement of the criminal activity.’ The defense will have to prove up the individual’s particular situation to confirm they fit within the definition of a minimal or minor participant under the mitigation guideline.

From the Primer (footnotes omitted):

Courts uniformly have rejected the argument that a defendant is automatically entitled to a mitigating role adjustment based solely on their status as a courier or mule. However, couriers and mules “may receive” an adjustment under §3B1.2, even if they are held accountable for only the quantity of drugs they personally transported under relevant conduct principles. Ultimately, because the role of a courier or mule may vary from organization to organization, a defendant’s culpability and entitlement to a §3B1.2 reduction depends on the facts of the specific case at hand. Courts tend to deny reductions for couriers and mules upon finding that the defendant was more than a “mere” courier or mule because, for example, the defendant transported a significant quantity of drugs, acted as a courier or mule on multiple occasions, had a relationship with the organization’s leadership, or was well-compensated for transporting the drugs.

AUSA Sentencing Recommendations: the Purposes of Sentencing

Before entering the courtroom for a sentencing hearing, there will be unofficial talks as well as formal negotiations between the defense lawyer and the AUSA on the appropriate sentence. What punishment really fits the crime?

1. Justice Manual

In that regard, experienced federal criminal defense lawyers (especially those who have been prosecutors in their past lives) know full well that these government attorneys must sometimes be reminded of the need to rein in their personal emotions and follow the principals of federal prosecution as set forth in the “Justice Manual” promulgated by the Department of Justice. See U.S. Dep’t of Justice Manual §§§ 9-27.000, 9-27.730, 9-27.731.

The Justice Manual includes recognition that there will be times when the right thing to do is to recommend a sentence that is below the guidelines’ range. Why? Because of fairness. For instance, in drug cases, there will be times when the sentence before mitigation will “… not be proportional to the seriousness of the defendant’s conduct or achieve the purposes of criminal sentencing as articulated in 18 U.S.C. § 3553(a).” Justice Manual, §9-27.731.

2. 18 U.S.C. § 3553(a)

As provided by Congress in the statute entitled “imposition of a sentence,” 18 U.S.C. § 3553(a) states the factors to be considered as follows:

The court shall impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth in paragraph (2) of this subsection. The court, in determining the particular sentence to be imposed, shall consider—

(1) the nature and circumstances of the offense and the history and characteristics of the defendant;

(2) need for the sentence imposed—

(A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense;

(B) to afford adequate deterrence to criminal conduct;

(C) to protect the public from further crimes of the defendant; and

(D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner;

(3) the kinds of sentences available;

(4) the kinds of sentence and the sentencing range established for—

(A)the applicable category of offense committed by the applicable category of defendant as set forth in the guidelines—

(i) issued by the Sentencing Commission pursuant to section 994(a)(1) of title 28, United States Code, subject to any amendments made to such guidelines by act of Congress (regardless of whether such amendments have yet to be incorporated by the Sentencing Commission into amendments issued under section 994(p) of title 28); and

(ii) that, except as provided in section 3742(g), are in effect on the date the defendant is sentenced; or

(B) in the case of a violation of probation or supervised release, the applicable guidelines or policy statements issued by the Sentencing Commission pursuant to section 994(a)(3) of title 28, United States Code, taking into account any amendments made to such guidelines or policy statements by act of Congress (regardless of whether such amendments have yet to be incorporated by the Sentencing Commission into amendments issued under section 994(p) of title 28);

(5) any pertinent policy statement—

(A) issued by the Sentencing Commission pursuant to section 994(a)(2) of title 28, United States Code, subject to any amendments made to such policy statement by act of Congress (regardless of whether such amendments have yet to be incorporated by the Sentencing Commission into amendments issued under section 994(p) of title 28); and

(B) that, except as provided in section 3742(g), is in effect on the date the defendant is sentenced.

(6) the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct; and

(7) the need to provide restitution to any victims of the offense.

Defense Focus at the Sentencing Hearing: Minimizing Punishment

The federal system is very different from the criminal justice system defined by the laws of the State of Texas. Federal cases are usually more complex. To learn more on the federal criminal justice system process, read our two-part overview in How Arrests Happen: From Investigation to Arraignment, Being Charged for a Federal Crime and The Federal Criminal Justice System: After Arrest, From Arraignment to Sentencing.

Possible punishments may be harsher in a federal case than a state matter, due in part to the application of the United States Sentencing Guidelines and federal laws like those that impose a minimal sentence. Read, Mandatory Minimum Penalties in Federal Sentencing; Categorical Approach: Longer Federal Sentences With Past Convictions; and Less Time for Federal Drug Crimes: When Safety Valve Defense Circumvents Mandatory Minimum Sentences Under Federal Law.

Federal felonies may result in a dismissal after a defense hearing that gets essential evidence excluded for things like illegal search and search. Sometimes, defense lawyers are victorious in a courtroom after a full trial before a jury, and their client walks free.

However, for a majority of federal felony cases, there are defense victories that involve either a plea bargain or a hard-fought sentencing hearing where punishment is made to fit the crime of the case.

The power of the United States Sentencing Guideline designed to lower the punishment as calculated in the Sentencing Tables cannot be underestimated. The nuances of both the guideline itself as well as the USSC Commentary and the newly released Primer are important tools to minimizing sentencing for federal defendants.

Federal defense attorneys are also strategizing on other applicable statutes and guidelines, of course. Each sentencing matter will be unique and deserving of tremendous effort and dedication. For more, read:

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For more information, check out our web resources, read Michael Lowe’s Case Results, and read “The Early Part of a Texas Criminal Case in State or Federal Court.”

Posted on November 11, 2024 by Michael Lowe , on InDepth Articles, Sentencing

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