By Omar W. Rosales, J.D.
Readers of the Frank Report may have heard mention of Federal Sentencing Guidelines. How do they work? What crimes do they apply to? And how do Federal judges use the Guidelines to sentence criminals?
First off, not every crime is a Federal crime. That is, not all criminal activity is regulated or prohibited by the Feds. The Federal government, via Congress, has decreed that certain types of behaviors are considered Federal offenses. The bill that decrees a specific conduct is unlawful begins in Congress, gets passed by both houses, then goes to the President to be signed into law. Once signed into law, the language of the bill is published in the Federal Registry and becomes part of the United States Code, also known as the U.S.C. or USC.
Some examples of Federal crimes include wire fraud, bank fraud, murder-for-hire, importation of exotic animals without a license, and alien smuggling. When someone is indicted, the Federal indictment will also detail the exact portion of the USC where the law is codified.
For example, the smelly one is charged with Racketeering. This is a violation of 18 USC 1962(c). And if you do an internet search for 18 USC 1962(c), you can see the language of the text and the elements of the crime. Again 18 USC 1962(c) makes it a Federal crime “to conduct and participate, directly and indirectly, in the conduct of the affairs of such (criminal) enterprise through a pattern of racketeering activity.”
For every Federal crime, there is a corresponding punishment. The recommended length of punishment is found within the Federal Sentencing Guidelines. The guidelines are determined by the U.S. Sentencing Commission. The commission is composed of Federal Judges and others that serve for a term of six years.
The sentencing guidelines tell the offense level of the crime, and provide a recommended sentencing range according to the offense level and criminal history category of the person. Once you have the offense level, you go to the Federal Sentencing Table. The table is easy to read and use.
Sentencing Table, Guidelines Manual 2018
For instance, let’s use our example of Keith Raniere’s Racketeering charge. Racketeering has a base level offense of 19. To find this, we would go to the US Sentencing Guidelines Manual. Or for a faster search, go to https://guidelines.ussc.gov/. At the top of the search box, type in Racketeering.
Okay, after typing that, hit enter, and boom! The website provides us a list with the most relevant search result at the top – §2E1.1 UNLAWFUL CONDUCT RELATING TO RACKETEER INFLUENCED AND CORRUPT ORGANIZATIONS. Click on that. Boom!
Base Offense Level for Racketeering under 2E1.1
Looking up 2E1.1 gives us the offense level for Racketeering, a violation of Title 18 USC 1962(c) – Base offense level of 19. Okay, now we go back to the table. Go to the Offense Level on the far-left column. Find 19.
Now that we’ve found 19, go across. You will find six columns based on the criminal history category of the offender. The criminal history category (I, II, III, etc.,) is based on the offender’s criminal history. Crimes of violence and prior convictions give the offender a category of II, III, or higher. The more criminal history, the higher the recommended sentence.
Unfortunately for us, this is VanFraudster’s first run-in with the law. Thereby, he would have a criminal history category of I. So, Level 19, Criminal History Category of I shows us Keith’s recommended guideline range of 30-37 months. If VanSmelly had prior convictions, he could have received a guideline range of up to 63-78 months if he was in Criminal History Category VI.
Once again, the Guidelines are no longer mandatory but advisory. However, there is a presumption of reasonableness if the Judge imposes a sentence within the Guideline range. So, what is a VanCrook to do, if the smelly one only gets 30-37 months of jail time? Luckily for us, the general public, there is a solution. It’s called MANDATORY MINIMUMS.
Certain crimes shock the conscience and are easy marks for politicians to score points on. Have you ever heard a politician say, “Vote for me! I will be SOFT ON CRIME?” Of course not. That’s not our Western culture. We want an eye for an eye, a tooth for a tooth, a day of reckoning, a shootout at high noon. We desire a feeling of control over a seemingly random world. And we like to feel we are punishing crimes and deterring misconduct. We want Justice. So how do our politicians do this to get our votes and satisfy our reptilian brain stems? One way is mandatory minimums.
Congress has identified certain crimes as so heinous, so awful, so successful to get registered voters out to vote, that these crimes come with mandatory minimums. Now with a mandatory minimum, it does not matter the person’s criminal history category or base offense level. If the crime carries a mandatory minimum, boom! The person must serve the time (with certain exceptions for safety valve drug offenses and/or high level of cooperation with the government).
A good example is human trafficking. Let’s consider Albany Jesus, Keith Raniere’s predicament. In addition to racketeering, 18 USC §1962(c), he is charged with sex trafficking, 18 USC §1591(a)(1) and (a)(2). So, we look up 18 USC §1591(a) and we find the punishments for that particular crime. Now, the government alleges that Keith held a 15-year old girl against her will, to have sex with her. Okay, so if the victim was 15 when she was transported for Keith, Keith would be looking at a mandatory minimum of 10 years for this offense. Regardless of what the sentencing guidelines say.
18 USC §1962, Sex Trafficking, Mandatory Minimums noted in (b)(1) and (2).
If you look it up in the Sentencing Guidelines, the crime has a base offense level of 31 with a recommended range of 97-121 months. However, this is irrelevant, because with a mandatory minimum, Keith’s sentence would be 10 years. Now, the question of age is important. How old was the victim when she was transported to meet Keith? Not when the actual statutory rape occurred, but when was the victim moved to the snake’s lair?
If the victim was under 14, when she was transported, then the mandatory minimum would be 15 years for Vanguard. This is where the trial testimony is key, the Government will need to prove beyond a reasonable doubt – that the victim was transported to Colonie, New York to meet Keith at a certain age. This was a part of Keith’s modus operandi. That is why we are hearing days of testimony from Mark Vicente. Mark’s testimony shows a pattern of conduct from VanCrook. Meet women, take their money, have sex with them, and have more women brought in.
That is how the Sentencing Guidelines and Mandatory Minimums work. Again, not all crimes are Federal crimes. And a person can still be charged separately under Federal law and State law for the same offense (different sovereigns). For those crimes that are Federal offenses, beware of the mandatory minimums. They will definitely ruin a VanGoblin’s day.