Federal Sentencing Guidelines

(The content below was transcribed from an interview done with Acacia Law. We think you'll find it much easier
and more enjoyable to read this way.)

It makes for the possibility of trial by surprise. The other big difference in federal cases is that in federal court they follow what are called "the federal sentencing guidelines", which were put together by a federal sentencing guidelines commission.

Federal Judges Are Required to Adhere to a Point System When Determining Sentencing

It is basically a point system that applies when somebody is convicted of a certain offense. Obviously, the more serious the offense, the more points they accrue. They also look at a person's criminal history. If they have no criminal history, that's good. If they have criminal history, they get points added on for that. The federal judges are pretty much locked into this federal sentencing scheme and it can be truly draconian.

Under This Points System, You May Face a Long Prison Sentence for a Non-Violent Crime

The most common examples we see in Arizona are people who have been deported from the country once and then come back into the United States. That is considered a felony. You can be sentenced for to 2.5 years for that offense and that's without harming anybody, without smuggling any drugs, anything along those lines, 2.5 years. Period.

Does the Federal Government Prosecute Few Cases Than the State Government?

Interviewer: I don't know if this is true or not but I've heard that the federal government will tend to not prosecute people until they believe that there's so much evidence against them that they're almost certain to win the case. This is versus a state government that'll prosecute cases more frequently, through a lower standard. Is that true?

Acacia Law: I think that's probably hard to generalize. It used to be that the Department of Justice and the US Attorney's Office had a reputation for being squeaky clean, for only taking cases where they had a really strong case, but I'm not convinced that that is the case anymore.

There have been a number of prosecutions where the US Attorney's Office has withheld evidence and done pretty horrible things so I think certainly over the last decade, that is no longer the case.

Defense Attorney’s Do Not Try to Have Federal Cases Transferred to the State

Interviewer: When someone contacts you and they're being accused of a federal crime, is it your inclination and job to always try to get the case transferred to the state versus the federal court?  Is that even a viable strategy?

Acacia Law: No, no, that's not even a strategy you want to put on the table because if the state doesn't know about it and they're not excited about it, you certainly don't want anybody else to say, "Oh, gee whiz, we'd love to pile on this guy."

Interviewer: Yes, that makes sense.

Acacia Law: So if you've got a case where the feds are involved and it's going federal, then that's the hand you're dealt and that's where you want to deal with it.

Are Federal Law Enforcement Officials a Big Presence in the Tucson area?

Interviewer: Well, from just being around town, the local police and the state seems to have a pretty big presence. Are the federal law enforcement officials more under cover and out of sight or they just have the same presence as the regular police?

Acacia Law: No, they definitely don't but it depends on where you are. If you were to go down to the border, for example, within the first 10 miles of the border, you would see a federal presence like you wouldn't believe.

Federal Agents Are a Notable Presence in Border Areas

The federal population includes both US Border Patrol Agents and Homeland Security, and the area is blanketed. If you try to drive east/west along the Arizona border within that 10-mile area or that 20-mile area, you'd probably hit half a dozen checkpoints at least. So there is a huge federal presence close to the border.

Now, for example, in Tucson, I'm not seeing Immigration and Customs walking around downtown in uniform looking for people and you probably don't see much of that in Phoenix. But if I drive between Tucson and Phoenix, I'm going to see Border Patrol vehicles parked in the median watching traffic.

If you drive from Phoenix to San Diego, you're going to see Border Patrol vehicles parked in the median watching people.

Federal Agents in Border Areas Are Monitoring Human and Drug Smuggling

Interviewer: What kind of crimes are they looking for if they're in those particular places?

Acacia Law: The federal law enforcement officials are looking for smuggling activities, either humans or drugs.

Federal Court Cases Most Often Entail Harsher Penalties than State Court Cases

Interviewer: You're saying the federal system can be harsher than the state system. If we compare the same crime, let's say a home invasion, would it be prosecuted more strenuously in federal court versus state?

Acacia Law: I think that's where the sentencing guidelines are a factor. If you sit down and you start adding up all these various factors that are contained in the guidelines and seeing these numbers pile up, you are in a situation where the judge has very little discretion.

So, if you go to trial and lose, your client's getting a harsh sentence and the judge's hands are pretty much tied on that. So that puts a lot of power in the hands of the US Attorney's Office.

State Court Judges Have More Sentencing Discretion than do Federal Court Judges

In the state system, we have a similar sentencing scheme but it's not as draconian as the federal sentencing guidelines. So that takes some of the power away from the prosecutor's office and it gives the state court judges more discretion. That puts you in a better position of potentially taking a case to trial.