When building a strong criminal case, it is important for defendants to work with an experienced criminal defense attorney to highlight the aspects of their case which will go toward minimizing the penalties. This can include a variety of strategies, from challenging the sufficiency of the evidence to mounting procedural challenges.
In federal criminal cases, an important area to build a strong case is sentencing. This is particularly true for offenses which involve the federal sentencing guidelines. As readers may know, the federal sentencing guidelines establish the sentencing policy for those convicted of felony and Class A misdemeanors under federal law. The guidelines are not strictly mandatory, but judges are required to take them into consideration during sentencing.
Another change involves the issue of intended loss, which is to be distinguished from actual loss. Under the current scheme, actual loss is the most important factor in determining the offense seriousness level, but the commission proposes to put a greater emphasis on intended loss, which is the amount the defendant intended to obtain by means of the offense.
Another change proposed by the commission concerns the sophisticated means enhancement. Although the enhancement has typically been applies based on the nature of the defendant's conduct itself, the proposed change directs courts to look to whether the defendant intended to use sophisticated means to carry out the offense. This, again, is in line with the principle of giving greater weight to the defendant's subjective intent.
In our next post, we'll wrap up this discussion and offer some comments on how an experienced attorney can help criminal defendants navigate the sentencing guidelines.