The sentencing judge must consider all “relevant conduct” for certain offenses, mostly drug, theft, and fraud offenses where the “offense level” is based on quantity.  “Relevant conduct” is any conduct that has a common scheme or plan, including charges that were dismissed as part of a plea agreement.  For this reason, plea agreements are often less beneficial than they first seem.  The government still has to prove that you actually committed the crime dismissed in a prior plea agreement.

The sentencing judge must consider all “relevant conduct” for certain offenses, mostly drug, theft, and fraud offenses where the “offense level” is based on quantity.  “Relevant conduct” is any conduct that has a common scheme or plan, including charges for which you were “not guilty.”  When a jury finds you “not guilty,” they have only determined that the prosecution has not met its burden of proving you guilty of all elements of the crime beyond a reasonable doubt.  The jury has not made the determination that you did not commit the crime.  In a subsequent case a sentencing judge need only determine whether it is more likely than not that you engaged in the conduct previously charged against you.  Since it seems terribly unfair and is disrespectful of a jury’s verdict, some judges in some cases refuse to consider charges for which a person was found not guilty.

You will serve almost all of your sentence.  There is no such thing as parole in the federal system for all crimes committed after November 1, 1987.  If your sentence is longer than one year, you might qualify for a small reduction for “good time” which is earned at the rate of 54 days for every year of the sentence.  Although the statute that governs good conduct time, 18 U.S.C. § 3624(b), states that prisoners may earn up to 54 days per year, the Bureau of Prisons (BOP) awards a maximum of 47 days for each year of the sentence imposed.  The Federal Public Defender disagrees with the BOP’s calculation and has challenged this interpretation, but the challenges have not yet succeeded.

In addition, you may spend the last 10 % of your sentence, up to 6 months, in a community corrections center, or “half-way house.”  The recently passed Second Chance Act requires the BOP to issue regulations allowing prisoners to be placed in community corrections centers for up to twelve months, but the BOP has not yet issued such regulations.  Not all inmates are eligible for half-way house.  For example, those with immigration or other types of detainers are ineligible, as are sex offenders.

Because of the “good time” statute, you can actually serve less time on a sentence of a year and a day.  You can only earn “good time” or a reduction of approximately 47 days when your original sentence is longer than a year.  So a year is 365 days, but a year and a day can be 319.

Time calculation is complicated.  You will generally receive credit for every day you spend in “official detention” after the offense for which you were convicted as long as those days were not credited toward another sentence.  Unfortunately, the definition of “official detention” is not always clear.  For example, time in a halfway house or in home confinement is not counted.  The basic rule is in section 3585(b) of title 18 of the United States Code, but this is an important issue to discuss with your defense attorney because it is so complicated.  In some instances, an attorney may be able to persuade a court to adjust the federal sentence to account for any potential discrepancies between the credits that the Bureau of Prisons will count, on the one hand, and the time the judge thinks should count on the other.

If you were in state custody and were brought into federal custody pursuant to a “writ of habeas corpus ad prosequendum,” the federal Bureau of Prisons (BOP) will generally only give you credits against your federal sentence if you did not receive state custody credits.  But if you were in state custody and the state dropped charges in favor of a federal prosecution, you will probably receive credits against your federal sentence even for the time you spent in state custody before the federal charges were filed as long as that time in custody occurred after the offense for which you were convicted federally and as long as you did not receive credit in the state against another state sentence.

Time spent in immigration custody may or may not be considered “official detention.”  It is important to discuss this issue with your individual attorney so he or she may attempt to work out a resolution that will result in the time being credited.

The initial appearance in magistrate court is not, ultimately, determinative of how your time is counted.  What is important is the question whether you were in “official detention.”

Usually you will get credit for all of the time you have been in custody while facing a federal charge.  There is an exception when you are serving another sentence either in state or federal prison.  For example, if you were in state custody and were brought into federal custody pursuant to a “writ of habeas corpus ad prosequendum,” then the federal Bureau of Prisons (BOP) will generally only give you credits against your federal sentence if you did not receive state custody credits.  But if you were in state custody and the state dropped charges in favor of a federal prosecution, you will probably receive credits against your federal sentence even for the time you spent in state custody before the federal charges were filed as long as that time in custody occurred after the offense for which you were convicted federally and you did not receive credit in the state against another state sentence.  Because this issue is so complicated, it is important to discuss any possible credits issues with your attorney before you are sentenced.  In some instances, an attorney may be able to persuade a court to adjust the federal sentence to account for any potential discrepancies between the credits that the Bureau of Prisons will count, on the one hand, and the time the judge thinks should count on the other.

The new sentence will begin to run either at the time it is imposed or at the time the sentence you are already serving ends.  The judge imposing the new sentence can order that it run concurrently with the sentence you are already serving.  But if the judge does not specifically order the new sentence to run concurrently, the Bureau of Prisons will assume it runs consecutively and your new sentence will begin after you have served the sentence you are already serving.

It is a bad idea and a very dangerous thing to discuss your case with anybody outside of your attorney’s defense team.  Nobody else has access to the amount of information your present defense attorney has, and it is not realistically possible for you to summarize everything for us in a complete and objective way.  Facing something as frightening as a criminal conviction and possible prison time can make you lose perspective.  You may be desperate to hear good news or, occasionally, pessimistically expecting bad news.  It is common for criminal defendants to “hear what they want to hear.”   You may be incorrectly interpret what we your defense attorney has told you or what we might tell you.  As a result, we almost always decline to give second opinions to people who are represented by other attorneys.  In fact, attorneys are barred by the rules of ethics to give opinions to people who are already represented by other attorneys.

Unfortunately, it is not possible to get a federal conviction expunged.  The last federal expungement statute – the Federal Youth Corrections Act – was repealed in 1984, and even that statute applied only to offenders under the age of 26 if the judge chose to sentence them under the Act.  The only way a federal ex-offender can get a post-1984 conviction removed from his record is by getting a pardon from the president.  That process is discussed further below.