How Prosecutors Try to Maximize Punishment: Aggravating Factors in Federal Sentencing

Posted on October 21, 2024 by Michael Lowe.

October 2024 USSC Primer Provides Guidance on Application of USSG §3B1.1

It’s all about the trial if you watch movies, TV shows, or YouTube true crime podcasts. But that’s not reality for those facing federal felony charges. Evidentiary sentencing hearings are a huge battleground for most federal defendants.

Criminal lawyers defending people who are being investigated or charged for federal crimes often have to explain that in real life their biggest fight may not be the determination of guilt or innocence (the “trial phase”) but instead the assessing of punishment. This happens at the federal courthouse in formal sentencing hearings where the judge hears evidence and arguments from both sides before making a ruling.

In this article, we will discuss the aggravating factors that the AUSA may bring against the defendant to argue for a greater punishment. In our next article, we will consider the various mitigating factors (and other strategies) that the defense can use to try and minimize federal sentencing for the accused.

Complex Federal Investigations: Evidence and Criminal Charges

For Texas criminal defense attorneys practicing in federal court, we find that many of our accused clients are arrested, charged, and indicted after a considerable amount of time and expense has been invested by federal law enforcement. Federal prosecutions are often the result of weeks, months, or even years of coordinated efforts between one or more agencies at the state and federal level. Sometimes, local police officers or deputy sheriffs are also involved.

Consider, for instance, that the Federal Bureau of Investigation (“FBI”) reports operating the following four joint violent gang task forces just in Dallas alone: (1) Dallas Violent Gang Safe Streets Task Force; (2) East Texas Safe Streets Task Force; (3) West Texas Anti-Gang Team Safe Streets Task Force; and (4) Tarrant County Safe Streets Task Force. And there are lots of other examples of these coordinated efforts, such as the North Texas Organized Crime Drug Enforcement Task Forces (OCDETF) Strike Force and the Joint Task Force Alpha (JTFA) for human smuggling.

The point: most federal arrests come after significant investigation. Ergo, the AUSA prosecution case files are usually big. They are filled with all sorts of evidence (such as witness statements, documentary evidence, digital files). Defense lawyers, as a general rule, will find them to be more voluminous and complicated than the generally less intensive efforts of the local district attorney’s office for state law crimes.

For the accused, this means a coordinated defense strategy must analyze each and every item in the government’s file very carefully. Were there constitutional violations amounting to illegal search and seizure? Are the elements of each charge independently established with admissible evidence beyond a reasonable doubt?

The defense will also undertake an independent effort to build defenses under precedent or statute, like the absence of intent in a felony drug conspiracy with intent to distribute case, or proving up an alibi in an identity theft charge. It is a tremendous undertaking. For more, see Federal Drug Conspiracy Possession With Intent to Distribute: Safety Valve at Sentencing – New Video and Aggravated Identity Theft: Federal Crimes and Mandatory Punishments.

What does this mean for the accused, in practical terms? The defense success can be a formal dismissal of all charges. And yes, there are times when cases are dropped by the AUSA. But all too often the defense victory is during sentencing.

For most people who are indicted on federal felony charges, there will be sentencing by a federal judge to a certain punishment as defined by law. And while the defense is focused upon minimizing that sentence, the government will be fervently at work to make the punishment as punitive as possible. Their biggest tool: defined “aggravating factors” provided in the law.

Enhancing the Sentence: Ranges of Punishment, Aggravating Factors

The accused and their loved ones may assume that a conviction for a certain crime corresponds to a specific, set punishment in terms of years behind bars or monetary fines. This is not true. Punishments can be “increased.”

As the Supreme Court of the United States (“SCOTUS”) explains in Apprendi v. New Jersey, 530 U.S. 466, 500-501, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000):

… [A] “crime” includes every fact that is by law a basis for imposing or increasing punishment (in contrast with a fact that mitigates punishment). Thus, if the legislature defines some core crime and then provides for increasing the punishment of that crime upon a finding of some aggravating fact—of whatever sort, including the fact of a prior conviction—the core crime and the aggravating fact together constitute an aggravated crime, just as much as grand larceny is an aggravated form of petit larceny. The aggravating fact is an element of the aggravated crime. Similarly, if the legislature, rather than creating grades of crimes, has provided for setting the punishment of a crime based on some fact—such as a fine that is proportional to the value of stolen goods—that fact is also an element…. One need only look to the kind, degree, or range of punishment to which the prosecution is by law entitled for a given set of facts. Each fact necessary for that entitlement is an element.

Federal Offenses and Their Punishments Defined by Statute

Simply put, federal felonies are acts that have been deemed illegal by Congress, and defined as criminal offenses in statutes that have been enacted into law. These statutes not only detail each element of the federal crime, but each aspect of its corresponding punishment. The laws will give a range, from minimum to maximum sentences (which can be life imprisonment or even death). For more, read Felony Charges under Texas and Federal Law: Criminal Defense Overview.

There will be specific circumstances that, if proven by the AUSA, will impact where the defendant lies within that sentence range. These are aggravating factors. (Mitigating factors, contrarily, will show facts that lead to a reduced sentence. More on these in our next article.)

Sentencing Hearing: Evidence of Range Factors and USSG

In federal court, the judge will usually decide punishment at the sentencing hearing. There are exceptions here: in a death penalty case, for instance, a jury must decide on whether or not to impose death, not the judge. Ring v. Arizona, 536 U.S. 584, 122 S. Ct. 2428, 153 L. Ed. 2d 556 (2002).

The judge has a great deal of power, obviously, and is allowed a great deal of discretion or leeway in making this decision. The judge will hear the legal arguments of the AUSA and the defense lawyer. The judge will also review all the evidence presented by both sides that impact sentencing.

And, the federal judge will also consider the formal United States Sentencing Guidelines (“USSG”) as propounded by the United States Sentencing Commission (“USSC”) in determining the appropriate sentence. For more on the USSG, including examples of how the Sentencing Tables are used in punishment calculations, read our earlier discussions in:

To sway the judge’s decision, the federal prosecutors will want to introduce evidence and arguments about as many aggravating factors as can be established in the case. The AUSA’s goal? To convince the court to give the toughest possible sentence within the punishment range.

October 2024 USSC Guidance: The Aggravating Factors Available to the AUSA

Each federal felony statute has been enacted by Congress with the goal of fairness: the intent of providing a range of punishment in a criminal law is to help the court fit the punishment to the crime. The AUSA will have specific things to prove up that will increase punishment, with the burden of proof being at the lower standard of showing the “aggravating factors” by a preponderance of the evidence.

Of course, this gets complicated quickly. Both prosecutors and federal defense attorneys need to know that in October 2024, the Office of the General Counsel for the United States Sentencing Commission published official guidance regarding sentencing and the use of both aggravating and mitigating factors. Read the twenty-two page Primer on Aggravating and Mitigating Role Adjustments (2024), published by the Office of the General Counsel for the United States Sentencing Commission (“Primer”).

This does not carry statutory weight, of course. It is to be used “…to assist in understanding and applying the sentencing guidelines. The information in this document should not be considered definitive or comprehensive…. [and] 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.

Sentencing Guideline for Aggravating Factors: USSG §3B1.1

The United States Sentencing Manual contains a general overview of the aggravating factors available to the AUSA in USSG §3B1.1 entitled “Aggravating Role.” This guideline provides as follows:

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

3B1.1(a)(a) If the defendant was an organizer or leader of a criminal activity that involved five or more participants or was otherwise extensive, increase by 4 levels.

3B1.1(b)(b) If the defendant was a manager or supervisor (but not an organizer or leader) and the criminal activity involved five or more participants or was otherwise extensive, increase by 3 levels.

3B1.1(c)(c) If the defendant was an organizer, leader, manager, or supervisor in any criminal activity other than described in (a) or (b), increase by 2 levels.

The USSC also provides the following assistance in application in its notes:

A “participant” is a person who is criminally responsible for the commission of the offense, but need not have been convicted. A person who is not criminally responsible for the commission of the offense (e.g., an undercover law enforcement officer) is not a participant.

3B1.1 Application Note (2)2. To qualify for an adjustment under this section, the defendant must have been the organizer, leader, manager, or supervisor of one or more other participants. An upward departure may be warranted, however, in the case of a defendant who did not organize, lead, manage, or supervise another participant, but who nevertheless exercised management responsibility over the property, assets, or activities of a criminal organization.

3B1.1 Application Note (3)3. In assessing whether an organization is “otherwise extensive,” all persons involved during the course of the entire offense are to be considered. Thus, a fraud that involved only three participants but used the unknowing services of many outsiders could be considered extensive.

3B1.1 Application Note (4)4. In distinguishing a leadership and organizational role from one of mere management or supervision, titles such as “kingpin” or “boss” are not controlling. Factors the court should consider include the exercise of decision-making authority, the nature of participation in the commission of the offense, the recruitment of accomplices, the claimed right to a larger share of the fruits of the crime, the degree of participation in planning or organizing the offense, the nature and scope of the illegal activity, and the degree of control and authority exercised over others. There can, of course, be more than one person who qualifies as a leader or organizer of a criminal association or conspiracy. This adjustment does not apply to a defendant who merely suggests committing the offense.

Section 3B1.1 provides for 2-, 3-, and 4-level increases to the offense level if the defendant had an aggravating role in the offense, as follows: (a) If the defendant was an organizer or leader of a criminal activity that involved five or more participants or was otherwise extensive, increase by 4 levels. (b) If the defendant was a manager or supervisor (but not an organizer or leader) and the criminal activity involved five or more participants or was otherwise extensive, increase by 3 levels. (c) If the defendant was an organizer, leader, manager, or supervisor in any criminal activity other than described in (a) or (b), increase by 2 levels.1

Read, U.S. SENT’G COMM’N, GUIDELINES MANUAL §3B1.1 (Nov. 2023).

From the October 2024 Primer comes even more help in how these aggravating factors are to be used in punishment. The Primer explains (footnotes omitted):

Applying these adjustments turns, first, on the size and scope of the criminal activity (“five or more participants or was otherwise extensive”), and, second, on the defendant’s particular role in that activity (defendant was an “organizer or leader” or a “manager or supervisor”). In addition, if the defendant exercised management responsibility over property, assets, or activities in the criminal activity, instead of over one or more other participants, an upward departure may be warranted.

The government bears the burden of proving by a preponderance of the evidence that the defendant should receive an aggravating role adjustment. Upon finding that the government has met its burden of proof, the district court must apply the appropriate adjustment. Because the determination of a defendant’s role in an offense is a factual question, appellate courts review it for clear error.“ [A]bsent a mistake of law, battles over a defendant’s status . . . will almost always be won or lost in the district court.”

Primer, pages 1-2.

The Key Points of USSG §3B1.1

The defense will have its own turn to argue for where the defendant should fall within the range of punishment at a federal sentencing hearing. However, before these are brought before the judge, the AUSA will have the presented the government’s case for punishment. Federal criminal defense attorneys will consider the following:

At the get-go, the defense lawyer must deal with the prosecutorial advantage that in the sentencing hearing the evidentiary burden for these aggravating factors is lower than in the trial phase. Now, the AUSA must provide authenticated and admissible evidence that need only meet the lower burden of a “preponderance” and not the trial burden of “beyond a reasonable doubt.”
The next consideration: how involved was the defendant shown to be in the criminal activities in this case. Was the accused a kingpin? Were there lots of people involved? Of importance, the tally here expands to include not only those who have been charged but anyone shown to be a “participant,” who is shown to have been criminally culpable for the crime but not necessarily convicted of the offense.
Another aggravating factor: what has the AUSA been able to show insofar as the defendant’s involvement in the criminal activity? Was this a Big Kahuna or merely a shill or pawn (like a mule in a drug case)? See, e.g., Federal Sentencing for Drug Couriers and Drug Mules.
If the AUSA can prove that the defendant was in a management role over any assets or property, or oversaw any activities of the group, then another aggravating factor has been established to boost the punishment.
Finally, the criminal defense lawyer must remember the standard of review here. These are factual matters. The United States Court of Appeals for the Fifth Circuit, which will hear appeals of any sentencing decision by a federal district court in Texas, will review that judicial decision only for clear error. This means the trial judge has lots of power here, and the defense’s likelihood of success on appeal must have support within the sentencing hearing record of an obvious abuse of discretion within the evidence presented.

Prosecution Focus at the Sentencing Hearing: Maximizing Punishment

For all federal defendants, the defense strategy must consistently recognize the two independent battlefields of trial and sentencing. The federal criminal defense lawyer and the accused will first focus on arguments of guilt or innocence in the trial and preparation for it. Maybe there is a courtroom trial; maybe there is a plea deal.

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.

After the trial or the plea bargain, there will be the sentencing hearing fight. Even if the accused agrees to a plea deal and circumvents trial, the sentencing hearing will still take place. The plea bargain with the AUSA does not stand alone: it must still be reviewed and approved by the court.

Under the law, absent a deal, the federal judge will hold a formal hearing in court where arguments and evidence are presented by both sides. The judge will then rule on punishment according to judicial discretion, statutory authority, court case precedent, and the United States Sentencing Guidelines promulgated by the United States Sentencing Commission.

The AUSA will present its arguments for where the defendant should be placed within the punishment range of the criminal statutes for which there has been a conviction. The defense attorney will argue for mitigating circumstances that should reduce the punishment for the defendant.

Within these considerations will be things like the impact of statutory mandatory minimum sentences, the impact of other federal statutes, and complexities in the application of the Sentencing Guidelines. For more, read:

Most people entering into the federal criminal justice system will focus upon the trial, and escaping conviction. Their defense lawyer will fight hard for their freedom. However, given the intensity of federal criminal investigations, many who are arrested by federal agents will ultimately need another complicated and detailed defense strategy which will culminate before the judge at their Sentencing Hearing.

Having an experienced Texas federal criminal defense lawyer advocating on your behalf in these matters as soon as possible is prudent, and can be crucial to maximizing victory in a case.

To learn 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 October 21, 2024 by Michael Lowe , on Federal Government Watch, InDepth Articles, Sentencing

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