In addition to the sentencing provisions contained within the Federal Wire and Mail Fraud statutes, the Court is required to calculate a range of punishment by using the United States Federal Sentencing Guidelines. Only experienced federal criminal attorneys are capable of navigating the sentencing guidelines. In short, the guidelines were prepared by the sentencing commission in an attempt to remedy perceived sentencing disparities across the country and particularly in relation to white collar defendants.
While these guidelines are no longer mandatory, it is a requirement of a federal sentencing that the guidelines be properly calculated and considered by the sentencing judge. The sentence range is calculated by considering many factors of the crime for which the defendant was convicted. The most common questions that must be answered to properly calculate the guideline range are:
- How many mail or wire fraud victims were there?
- What was the total monetary loss to the victims of the fraud?
- Are there any special characteristics of the victim? (i.e. Were they elderly)
- What was the degree of participation of the Defendant in the mail fraud?
- Did the Defendant recruit others to commit the wire fraud with him?
- Was the wire fraud committed using a sophisticated means?
- Has the Defendant ever been in trouble before?
Only after answering these basic questions (and more) can the sentencing court calculate the range of punishment recommended within these guidelines for a wire fraud or mail fraud defendant. An experienced white collar criminal attorney is necessary to advocate on behalf of the defendant in convincing the Court why the guideline range should be as low as possible. The guidelines themselves allow the defense attorney to argue for what is known as a “downward departure” in the event that special circumstances exist as contemplated by the guidelines requiring the guidelines to be adjusted downward in favor of the Defendant. Such departures can be rare, emphasizing the need to have someone with a working knowledge of the guidelines providing you representation.
The need for an experienced federal criminal lawyer is even more evident when you consider that the guidelines are now only advisory, giving the sentencing judge the authority to sentence a defendant either above or below the recommended guideline range, even in the event a downward departure is not warranted. This is referred to as a “variance.”