Federal sentencing guidelines were established by Congress in 1987 to create uniform sentences for similar crimes across the country.  Unlike mandatory minimum sentencing laws which can eliminate judicial discretion, the guidelines require a sentencing judge to consider various facts about the specific crime and defendant to justify a sentence within the guidelines.  Judicial consideration of these facts lead to a "guideline range," for example: 18 to 24 months.  Mandatory minimums are "one-size-fits-all," but the guidelines allow for upward or downward departures in unusual cases.

Unfortunately, mandatory sentencing laws supersede or "trump" the sentencing guidelines, so judges first must determine if a defendant has been convicted of a crime which triggers a mandatory minimum penalty.  If so, the mandatory minimum sentence must be imposed regardless of the sentencing guidelines recommendation. Current federal sentencing guideline tables can be found at the U.S. Sentencing Commission's website.

There are only two ways to avoid a mandatory minimum sentence.  First, a defendant can provide "substantial assistance" to the government by turning in other defendants.  Second, a defendant in a drug case only can qualify as a "safety valve" defendant.  Congress created the “safety valve” in 1994 to address excessive sentences for nonviolent drug offenders.  Congress created the “safety valve” in 1994 to address excessive sentences for nonviolent drug offenders.  It is very difficult to qualify as a “safety valve” defendant, and thousands of nonviolent drug defendants are still sent to prison for decades under mandatory minimum sentencing laws.  But a low-level, nonviolent offender who qualifies for the “safety valve” can be sentenced at the judge’s discretion under the sentencing guidelines instead of mandatory minimum laws.  You qualify for a “safety valve” only if your “criminal history category” is a Category I under the sentencing guidelines, you did not threaten violence or possess a gun, your offense did not result in death or serious bodily injury; you were not a leader in the offense; and you agree to provide the prosecutor with all the information and evidence you have concerning the offense and related offenses.

You can estimate your “guideline range” under the sentencing guidelines but not with 100% certainty since you cannot know exactly how the law will apply to the facts of your case.  Finding your sentencing range requires computing both an “offense level” and a “criminal history category.”  Your “offense level” is based on the facts of your case gleaned from investigative reports by law enforcement and your own defense investigation.  Your “criminal history category” can be even more uncertain since information about prior criminal activity tends to be incomplete.  The official record or “rap sheet” is very often inaccurate or difficult to read, and defendants sometimes forget minor convictions or sentences, for example concurrent sentences, which affect criminal history calculations.

It used to be very likely that a sentence would fall within the sentencing guidelines range.  Departures from the guidelines were unusual.  In 2005 the United States Supreme Court decided that mandatory guidelines were unconstitutional and federal judges could only look to the guidelines for advise on sentencing.  Judges follow the guidelines in most cases, but some depart from guideline recommendations.

Mandatory minimum sentences passed by Congress are the one certainty in sentencing.  Laws mandating minimum sentences exist for most drug, child pornography, and child abuse offenses, and consecutive mandatory sentences are required for crimes like identity theft, the use of a gun during drug trafficking, assault, and bank robbery. 

There are two exceptions where a judge can avoid giving you the mandatory minimum sentence required by law.  The prosecutor can move the court for a lower sentence if you cooperate in a prosecution or investigation of someone else, or in a drug case only you can qualify as a "safety valve" defendant. 

Congress created the “safety valve” in 1994 to address excessive sentences for nonviolent drug offenders.  It is very difficult to qualify as a “safety valve” defendant, and thousands of nonviolent drug defendants are still sent to prison for decades under mandatory minimum sentencing laws.  But a low-level, nonviolent offender who qualifies for the “safety valve” can be sentenced at the judge’s discretion under the sentencing guidelines instead of mandatory minimum laws.  You qualify for a “safety valve” only if your “criminal history category” is a Category I under the sentencing guidelines, you did not threaten violence or possess a gun, your offense did not result in death or serious bodily injury; you were not a leader in the offense; and you agree to provide the prosecutor with all the information and evidence you have concerning the offense and related offenses.