Probation under the federal sentencing guidelines

The federal sentencing guidelines require a prison sentence in many circumstances. However, on occasion, the guidelines direct the court to sentence the defendant to a term of probation.

In cases where probation is available, it is usually because the defendant has no prior convictions or criminal background, and the case was the defendant’s first arrest.

Probation is generally not available as a sentence because the Sentencing Reform Act of 1984 almost eliminated it. The Sentencing Reform Act, which established the United States Sentencing Commission (USSC) and the federal sentencing guidelines, increased the penalties for federal offenses across the board.

The length of probation under federal law is controlled by statute. 18 USC 3561(c) provides that probation shall be as follows:

1. For a felony offense, 1-5 years.
2. On a misdemeanor charge, 5 years or less (which implies less than 1 year as well).

See 18 USC 3561(c).

Section 5B1.1 of the guidelines determines when a federal judge can sentence the defendant to probation. USSG 5B1.1(a) provides that probation can be ordered under these circumstances:

1. The sentencing range is 0-6 months. In these situations, the defendant can be sentenced to probation with no time in custody whatsoever.
2. The sentencing range is 6-12 months. Here, the court must sentence the defendant to probation combined with some time in custody through home confinement, community confinement, or intermittent incarceration.

Basically, the defendant’s sentencing range is determined by two factors: 1) the offense level; and 2) his criminal history category. The sentencing guidelines combine these two in a table to determine the sentencing range.

A sentencing range that is greater than 12 months disallows probation. In these circumstances, the court must sentence the offender to the Bureau of Prisons (BOP).

Regardless of the sentencing range, there are situations in which the defendant will be disqualified from consideration for probation because of the nature of the offense. In the following situations, the court has no authority to sentence the defendant to a term of probation:

1. The defendant is charged with a Class A felony. Under federal law, a Class A felony is defined as an offense for which the penalty is either life imprisonment or the death penalty. See 18 USC 3559(a)(1).
2. The charge is classified as a Class B felony. An offense is a Class B felony if the minimum sentence if 25 years. 18 USC 3559(a)(2).
3. The offense specifically says that probation is not available.
4. The defendant is sentenced to imprisonment on another offense simultaneously.

See USSG 5B1.1(b).

In any case, the possibility of probation must be thoroughly examined.