John Nix is a former District Attorney that knows the law
John Nix has obtained the rare distinction of an Appellate Acquittal in Scott vs. State
Defend your future
If you have been charged with a federal crime and/or are currently under investigation for the same, it is of utmost importance that you contact a competent, proactive, and aggressive lawyer like John Nix immediately. Federal crimes can carry devastating penalties. Our office locations fall under the jurisdiction of the United States District Court for the Eastern District of Texas.
We will work first to have the charges against you dropped
Accusations Put everything at Stake
Protecting Your Future is Our Business
We will work first to have the charges against you dropped. Furthermore, we will challenge all evidence against you and fight federal prosecutors to help obtain the best possible outcome.
Conviction of any federal crime could result in a permanent mark on your criminal record that will make it difficult to find future employment.
In addition, the seriousness of a federal conviction often negatively impacts families.
Focus and Attention
We understand that there are often very complex reasons behind people’s actions, The John Nix Law Office is here to aggressively challenge the evidence and charges against you.
Federal crimes carry severe outcomes and may include, but are not limited to, the following:
- Extended incarceration
- Excessive fines
- Loss of your driver’s license
- Decreased access to rental property
- Difficulty securing employment
Glossary of Federal Sentencing-Related Terms
The terms and descriptions below are current as of August 10, 2020 and are sourced directly from the United States Sentencing Commission.
Abuse of Trust
Section 3B1.3 enhances a defendant’s sentencing range if the defendant used his or her position of trust, or used a special skill, to facilitate committing or covering up the offense. A person who occupies a position of trust is often subject to less supervision than others and exercises a high degree of independence. Examples in the guideline include an attorney who embezzles the funds of a client and a bank executive who engaged in a fraudulent loan scheme.
Acceptance of Responsibility
The guideline at §3E1.1 directs that the sentencing judge reduce the defendant’s offense severity score by either two or three offense levels if the defendant accepts responsibility for the offense before sentencing. Often defendants receive this reduction if they plead guilty rather than go to trial. But, a plea is not required, and pleading guilty does not guarantee receipt of this reduction. The guideline lists factors for sentencing judges to consider in deciding whether to give the reduction for acceptance of responsibility.
Accessory After the Fact
A person who knows that a crime has been committed and who helps the offender escape arrest or punishment.
This term is used to describe the current legal status of the sentencing guidelines, as well as to distinguish the guidelines in effect after the Supreme Court’s decision in United States v. Booker, which made the guidelines advisory, from the guidelines before Booker, which are often referred to as “mandatory” or “presumptive” guidelines.
Aggravated Identity Theft
18 U.S.C. § 1028A provides a two-year consecutive statutory penalty if the defendant commits identity theft in relation to a felony or terrorism offense.
Aiding and Abetting
Aiding and abetting occurs when a person actively promotes the commission of a crime in some way, even if the person does not commit the criminal acts himself or herself. A person who aids and abets may be punished in the same way as the person who performed the criminal acts.
Alternative Base Offense Levels
Some guidelines have multiple alternative base offense levels that apply depending on whether the offense involves certain conduct, the defendant was convicted under a certain statute, or, the defendant has certain prior convictions. The general rule is to use the highest offense level among alternative base offense levels that applies to a defendant.
An amendment is a change to the Guidelines Manual. Amendments are adopted only after the Commission has proposed the change and the public has had a chance to comment on it. At least four Commissioners must vote, at a public meeting, to adopt an amendment. Congress then has 180 days to reject the amendment. If Congress does not enact legislation rejecting an amendment, the change becomes a part of the Guidelines Manual.
A non-hierarchical collective of hackers, Anonymous uses hacking (and cracking) techniques to register political protest in campaigns known as “#ops.” Best known for their distributed denial of services (DDoS) attacks, past activities have included attacks against the Church of Scientology, Visa, PayPal, and others.
Anticipated Term of Imprisonment
A term of imprisonment that a federal sentencing judge anticipates that a state court judge will impose after the federal sentence is imposed. In Setser v. United States, 566 U.S. 231 (2012), the Supreme Court held that a federal court has discretion to run the federal sentence concurrently or consecutively to the anticipated state sentence. However, USSG §5G1.3(c) requires that, if the anticipated term of imprisonment is for an conviction based on criminal conduct is relevant conduct in the federal case, the sentence for the federal conviction shall be imposed to run concurrently with the anticipated term of imprisonment.
This part of the Guidelines Manual contains a list of federal statutes, referencing each to a Chapter Two guideline (or multiple Chapter Two guidelines to choose from) that should be used to begin determining the guideline range.
This part of the Guidelines Manual contains selected statutes relevant to sentencing, such as those governing presentence reports, the factors to be considered in imposing a sentence, and appellate review of sentences, among others.
This part of the Guidelines Manual contains every amendment made to the guidelines. Each entry contains the amendment language as well as the Reason for Amendment and effective date of the amendment.
Application notes come after the text of most guidelines, and explain how to apply the guideline, sometimes using definitions or examples.
Armed Career Criminal
A statutory sentencing enhancement (See 18 U.S.C. § 924(e) and USSG §4B1.4) for a defendant convicted under 18 U.S.C. § 922(g) (prohibited person in possession of a firearm) who has at least three prior convictions for a “violent felony” or “serious drug offense” or both committed on occasions different from one another. A defendant sentenced as an Armed Career Criminal faces a mandatory minimum prison term of 180 months.
An effort to commit a crime without success. An attempt may be punished the same as if the defendant had succeeded at committing the crime.
Base Offense Level
The starting point for determination of the guideline range under the guidelines in Chapter Two. Each offense-specific guideline states a starting point on the severity scale. The final offense level may increase or decrease from the starting point, depending on additional factors.
Created in 2009, Bitcoin is a form of digital cryptocurrency that is distributed on a peer-to-peer basis. It has no central bank, and transactions are conducted directly between individuals with permanent, public records stored in a blockchain ledger. Bitcoin is arguably the most well-known cryptocurrency.
A payment processing company and software application that allows merchants such as eBay, Amazon, and other online shopping sites to accept bitcoin as payment for goods and services.
A digital file distributed to everyone participating in a cryptocurrency network. The blockchain acts as a kind of general ledger, keeping track of all the transactions that take place in the network. Everyone can look at the blockchain to see what transactions have taken place on the network, and the blockchain is sealed using cryptography so that no one can tamper with it.
A program that automates a simple action so that it can be done repeatedly at a much higher rate of speed and for a more sustained period than a human operator could. Bots are, in themselves, benign and used for many legitimate purposes, such as online content delivery. However, bots are often used in conjunction with cracking. For instance, bots may be used maliciously to make content calls that comprise denial of service attacks. “Bot” is also a term used to refer to the individual hijacked computers that make up a botnet.
A group of computers controlled without their owners’ knowledge and used to send spam or to make denial of service attacks. Malware is used to hijack the individual computers, also known as “zombies,” and to send them directions.
Bureau of Prisons
The federal agency that houses federal inmates. The BOP is part of the Department of Justice.
A defendant is a Career Offender if (1) he or she has been convicted in federal court of a felony crime of violence or drug-trafficking offense committed as an adult, and (2) has at least two prior felony convictions for either a crime of violence or drug trafficking offense or both that receive criminal history points under the guidelines. A Career Offender’s guidelines sentence ordinarily is required to be at or near the statutory maximum for his or her federal conviction.
The method for determining whether a defendant’s offense (usually a prior conviction) fits within a given definition, such as for a “crime of violence,” “violent felony,” “drug trafficking offense,” or other term describing a specific type of offense. The categorical approach requires the court to compare the elements of the prior offense to the relevant definition. The court is not permitted to look to the conduct underlying the prior conviction to determine the elements of the prior offense. Rather, the court must examine the elements of the relevant penal statute. Also see Modified Categorical Approach.
One Commissioner is appointed by the President and confirmed by the Senate as the Chair of the Commission and is responsible for presiding over Commission meetings and for seeking and spending congressional appropriations.
Chapter Three Adjustment
Adjustments such as Role in the Offense (Chapter Three, Part B), Obstruction of Justice (§3C1.1) and Acceptance of Responsibility (§3E1.1) that could apply to a defendant after application of the Chapter Two guidelines.
The power of the President in the federal system, or a Governor in the state system, to pardon a criminal or commute a sentence.
Clerk of Court
An officer of the court responsible for clerical and administrative matters, for example maintaining case files, making certified copies of documents for the public, etc. Each federal district has one Clerk of Court, who in turn has Deputy Clerks responsible for day to day court activities.
An individual who is appointed by the President and confirmed by the United States Senate to serve as a voting member on the United States Sentencing Commission. By statute, there also are two non-voting ex officio Commissioners (the Attorney General or his or her designee and the Chair of the United States Parole Commission).
Common Scheme or Plan
Offenses that are outside the offense of conviction but are Relevant Conduct because they are substantially connected to each other by at least one common factor, such as common victims, common accomplices, common purpose, or similar modus operandi. See USSG §1B1.3(a)(2) and Application Note 5(B).
Residence in a community treatment center, halfway house, mental health facility, or some other similar community facility. Community confinement may be imposed as a condition of probation or supervised release and also may be a substitute for some or all of the term imprisonment for guideline sentences in Zones B and C of the Sentencing Table. See USSG §5C1.1.
Service work in the community that may be ordered as a condition of probation or supervised release and generally should not be imposed in excess of 400 hours.See USSG §5F1.3.
18 U.S.C. § 3582(c)(1)A) allows the Bureau of Prisons, or a prisoner, to petition the court for a reduction in a term of imprisonment under limited circumstances. For example, the prisoner may be elderly, or may be facing a life-threatening illness or experiencing extenuating family circumstances. Candidates for compassionate release must have served a significant portion of their sentence and cannot be a danger to another person or to the community.
A sentence for a conviction that a court orders a defendant to serve simultaneously with the defendant’s sentence for a different conviction. A sentence may be fully or partially concurrent.
A sentence for a conviction that a court orders a defendant to serve only after he has discharged a sentence for a different conviction A sentence may be fully or partially consecutive.
An agreement by two or more people to commit an unlawful act. For many types of conspiracy one of more conspirators also must commit at least one “overt act” toward to the goal of the conspiracy for there to be criminal liability.
Controlled Substance Offense
Generally, an offense involving an illegal drug. However, in the specific context of the guidelines, a “controlled substance offense” is offense under federal or state law punishable by imprisonment exceeding one year that prohibits the manufacture, import, export, distribution or dispensing of a controlled substance or possession with intent to do so. See USSG §4B1.2(b).
The result of a criminal court proceeding which ends in a judgment that the defendant is guilty as charged.
Costs of Prosecution
Some statutes require the court to impose the costs of prosecution on a defendant.
Breaking into a secure computer system, frequently to do damage or for financial gain. However, cracking is also employed to protest government policies or to make social statements.
Crime of Violence
Any offense under federal or state law, generally punishable by imprisonment exceeding one year, that has as an element the use, attempted use, or threatened use of physical force against the person of another. Crime of violence also includes certain enumerated offenses such as murder, voluntary manslaughter and kidnapping. Different variations of the definition of crime of violence are found in federal statutes. The Guidelines’ definition is found at USSG §4B1.2.
Criminal History Category
The category assigned to the defendant based on the defendant’s prior criminal history. The criminal history category (sometimes referred to as “CHC”) is determined according to rules contained in Chapter Four of the Guidelines Manual. The criminal history category is reflected in the horizontal axis of the sentencing table. A higher criminal history category increases the guidelines range.
Criminal Justice Sentence
A sentence countable under §4A1.2 having a custodial or supervisory component, although for the latter active supervision is not required. Two points are assigned in the calculation of the defendant’s criminal history under §4A1.1(d) if he/she committed any part of the instant offense while under a criminal justice sentence.
A Chapter Four “override” that applies when the defendant commits an offense as part of a pattern of criminal conduct engaged in as a livelihood. See USSG §4B1.3 (Criminal Livelihood).
Fraud can affect critical infrastructures. Critical infrastructures are systems and assets vital to national defense, national security, economic security, public health or safety. Examples include gas and oil production, water supply systems, electrical power delivery systems and emergency services such as fire and rescue and police. See §2B1.1(b)(19) and App. Note 15(A). Section 2B1.1(b)(19) enhances a defendant’s sentencing range for certain types of fraud affecting critical infrastructures.
An instruction to apply another offense guideline. Cross references are found in several Chapter Two guidelines and often instruct that such a reference should be used only if it results in a greater offense level.
The broad name for digital currencies that use blockchain technology to work on a peer-to-peer basis. Cryptocurrencies don’t require a bank to carry out transactions between individuals. The nature of the blockchain means that individuals can conduct transactions even if they don’t trust or know each other. The cryptocurrency network keeps track of all transactions and ensures that no one reneges.
An instrument capable of inflicting death or serious bodily injury, or an object that closely resembles such an instrument. The definition of dangerous weapon in §1B1.1 also includes anything a defendant might use to give the impression of a dangerous weapon.
An individual who has been accused of a crime in a court proceeding. If a defendant is convicted of a crime, he or she may be referred to as an “offender”.
A lawyer who represents a defendant in a criminal proceeding.
Denial of Federal Benefits
The court has the statutory authority under 21 U.S.C. § 862 to deny the eligibility for certain federal benefits to any person convicted of distribution or possession of a controlled substance (§5F1.6).
Denial of Service Attack (DoS)
DoS is used against a website or computer network to make it temporarily unresponsive. This is often achieved by sending so many simultaneous content requests to the site that the server overloads. Content requests are the instructions sent, for instance, from your browser to a website that enables you to view content on that website. Some groups have used DoS attacks as a protest tool while others have used them for financial gain.
A sentence outside the guideline range in accordance with the Guidelines Manual. Chapter Five, Part K lists factors that may constitute grounds for departure, and other departures are located throughout the Guidelines Manual. However, there may be other grounds for departure that are not mentioned in the guidelines. Departures can be above or below the guideline range. The most commonly applied departure is the downward departure based on the defendant’s substantial assistance to the government in the investigation or prosecution of others. The substantial assistance departure is found at §5K1.1 of the Guidelines Manual.
The act of removing a non-citizen from the United States to another country.
An article specifically described by statute (26 U.S.C. § 5845(f)) that has an explosive or incendiary nature.
The guidelines provide for a downward departure if the defendant suffers from a significantly reduced mental capacity that contributed substantially to the commission of the offense (§5K2.13).
Discharged Term of Imprisonment
A term of imprisonment that has been completed.
The power of a judge to make an independent decision concerning an issue based on his or her opinion informed by general legal principles rather than based on fixed legal rules. Ordinarily, an appellate court will not reverse a lower court’s discretionary decisions, unless the judge clearly “abused” his or her discretion.
Non-mandatory conditions that the court may place on a defendant who is on probation or supervised release. The court may impose certain conditions based on the defendant’s background or the particular circumstances of the case.
Conduct constituting an offense that was originally charged in an indictment and later dismissed by the court. The guidelines allow the court to consider dismissed conduct at sentencing if the court finds by a preponderance of the evidence that the defendant committed the conduct.
A diversionary disposition allows the defendant to avoid receiving a criminal conviction if the defendant successfully completes certain conditions of pretrial or probationary supervision. Diversionary dispositions are not counted for criminal history unless there is a finding of guilt by the court (§4A1.2(f)).
The application of more than one specific offense characteristic or adjustment related to the same conduct. The Guidelines Manual provides specific instructions regarding when not to apply certain specific offense characteristics or adjustments if another guidelines provision already accounted for the conduct. The default rule is that it is permissible to apply more than one provision based on the same conduct unless the guidelines specifically say not to do so.
Drug Equivalency Tables
The Drug Equivalency Tables provide marijuana equivalents for various controlled substances not otherwise addressed in the guidelines’ Drug Quantity Table.
The guidelines provide for a downward departure if the defendant committed the offense because of serious threats, coercion, or pressure. (§5K2.12).
Early Disposition Program
Also known as “Fast Track” Programs, these programs allow for a downward departure of not more than four levels for an expedited guilty plea program authorized by the Attorney General of the United States and the United States Attorney in a specific district. (§5K3.1).
Theft of funds placed in one’s trust or belonging to one’s employer.
Ethics and Compliance Programs
Ethics and compliance programs are designed to prevent and detect criminal conduct in organizations. (§8B2.1).
Ex Post Facto Clause
The Ex Post Facto Clause in the U.S. Constitution forbids increasing a criminal penalty after a person has committed an offense, and also forbids making an act illegal after a person has performed that act. (See also “One Book Rule”.)
Ex Post Facto Law
A law that applies retroactively, especially in a way that negatively affects a person’s right, as by criminalizing an action that was legal when it was committed.
Expanded Relevant Conduct
A relevant conduct principle that allows the court to consider acts, often uncharged, that are part of the “same course of conduct, common scheme or plan” as the offense of conviction in application of Chapters Two and Three of the Guidelines Manual.
Convictions that have been expunged (removed from a person’s criminal record) are not counted in the determination of the defendant’s criminal history (§4A1.2(j)), but may be considered for an upward departure under Adequacy of Criminal History (§4A1.3).
An upward departure from the guidelines range may be appropriate if the defendant’s conduct was unusually heinous, cruel, brutal, or degrading to the victim (§5K2.8).
Extreme Psychological Injury
An upward departure from the guidelines range may be appropriate if a victim or victims suffered psychological injury much more serious than that normally resulting from commission of the offense (§5K2.3).
Failure to Report for Service of a Sentence
Failure to report for service of a sentence is treated as an escape from such sentence. Accordingly, the defendant will receive two criminal history points for the “status” of being under a “criminal justice” sentence (§4A1.1(d)).
Family Ties and Responsibilities
Family ties and responsibilities are not ordinarily relevant in determining whether a departure is warranted. In certain circumstance, the guidelines prohibit a departure for family ties and responsibilities entirely (§5H1.6).
“Fast Track” Programs
See “Early Disposition Program”.
An offense punishable by a term of imprisonment exceeding one year.
A killing that occurs during the commission of another inherently dangerous felony, such as kidnapping or robbery.
The court must impose a fine in all cases, unless the defendant can establish that he or she is unable to pay a fine and is not likely to become able to pay any fine. The court may also order a fine as a condition of probation or supervised release. The guidelines have a separate table governing fine amounts for individuals (§5E1.2) and organizations (§8C1.1.).
The fine range is established by the final offense level and guides the court in determining the appropriate fine. Fine ranges for individual defendants are found at §5E1.2 in the Guidelines Manual. Fines for criminal organizations are addressed in §8C1.1.
Any weapon (including a starter gun) which will or is designed to or may readily be converted to expel a projectile by the action of an explosive. The frame or receiver of any such weapon, a muffler or silencer or any destructive device also qualify as firearms. A “BB” or pellet gun in not considered a firearm. (See also “Dangerous Weapon”).
A system using hardware, software, or both to prevent unauthorized access to a network, computer system, or device.
Foreign Convictions and Sentences
A conviction that occurred in a country other than the United States. Foreign convictions and any sentences imposed for them are not counted for criminal history, but may be considered for a departure under Adequacy of Criminal History (§4A1.3).
Forfeiture provisions exist in various criminal statutes and permit the government to take certain private property if the property is associated with criminal conduct.
Good Time Credit
Refers to the reduction of up to 54 days per year a defendant may earn for good conduct in prison. The Bureau of Prisons awards the credit, which applies to sentences greater than 12 months. Also called “good conduct” credit.
Government Health Care Program
Fraud can affect government health care programs. Government health care programs include Medicare and TRICARE. Loss is these cases is the aggregate dollar amount of fraudulent bills submitted to the Government health care program unless rebutted. Section 2B1.1(b)(7) enhances a defendant’s sentencing range for certain types of fraud affecting government health care programs.
Grade A Violation
A Grade A violation occurs when a defendant breaks the rules of his or her supervision by engaging in conduct constituting a federal, state or local offense punishable by a term of imprisonment exceeding one year that is a crime of violence, a drug trafficking offense or involves the possession of certain firearms or any other federal, state or local offense punishable by a term of imprisonment exceeding twenty years.
Grade B Violation
A violation for conduct constituting any other federal, state of local offense punishable by a term of imprisonment exceeding one year.
Grade C Violation
A violation for conduct constituting a federal, state or local offense punishable by a term of imprisonment of one year or less or a violation of any other condition of supervision.
Grouping of Multiple Counts
Chapter Three, Part D of the Guidelines Manual provides rules for determining a single offense level for all the counts of which a defendant is convicted. For certain offenses, multiple counts are treated as one count of conviction when determining the guidelines range (for example drug-trafficking and fraud offenses). For other offenses, a separate guidelines range is calculated for each count of conviction (for example robbery, assault) and the grouping rules determine the incremental increase in punishment for each additional count.
The result of determining the final offense level and criminal history category for the defendant. The intersection of these determinations on the Sentencing Table provides the applicable guideline range.
The manipulation of code in the device or software for which the code was written. Some prefer the term “cracking” to describe hacking into a machine or program without permission.
Hate Crime Motivation
Chapter Three provides an enhancement if the court determines beyond a reasonable doubt that the defendant intentionally selected any victim because of the actual or perceived race, color, religion, national origin, ethnicity, gender, gender identity, disability or sexual orientation of that person (§3A1.1).
The Office of Education and Sentencing Practice at the Commission operates a helpline that provides guidance to stakeholders in the federal criminal justice field. Staffers provide guidance in matters related to guideline application.
A Historical Note, found at the end of each individual guideline, cites each time the guideline has been amended. The text of each amendment is located in Appendix C of the Guidelines Manual.
A program of confinement and supervision that restricts the defendant to his or her place of residence continuously, except for authorized absences. Home detention may be imposed as a condition of probation and supervised release.
Identity theft is the fraudulent acquisition and use of a person’s private identifying information, such as their name or social security number, usually for financial gain.
The act of entering a country with the intention of settling there permanently.
The act of confining a person in a penal institution such as a jail or prison for the purpose of serving a sentence imposed by a court.
Inadequacy of Criminal History
A departure provision in the Guidelines Manual providing authority to impose a sentence above or below the guideline range if the court determines that the defendant’s criminal history category substantially under-represents or over-represents the seriousness of the defendant’s criminal history or the likelihood the defendant will commit other crimes. See USSG §4A1.3.
A formal, written accusation of a crime made by a grand jury and presented to a court for prosecution of a person.
A formal, written accusation of a crime made by a prosecutor in those jurisdictions that do not use grand juries.
The term “instant” is used in connection with “offense” to distinguish crime for which the defendant is being currently sentenced from a prior or subsequent crime that the defendant committed.
A sentence consisting of periods of confinement interrupted by periods of freedom. See USSG §5F1.8, comment. (n.1). Intermittent confinement may be imposed a condition of probation or supervised release. See USSG §5F1.8.
Internet Protocol (IP) Address
A distinct numeric fingerprint assigned to each device connected to a network using Internet Protocol. Through an IP address, a computer’s activity can be tracked, its location discovered, and its user identified. Crackers can use an IP address to access a computer though one of its many ports, which regulate the flow of information to the computer.
A conviction that is no longer legally binding because it has been vacated or reversed by a court.
Investment fraud, also known as stock fraud or securities fraud, is a deceptive practice in the stock or commodities markets that induces investors to make purchase or sale decisions on the basis of false information, frequently resulting in losses, in violation of securities laws.
Jointly Undertaken Criminal Activity
A relevant conduct principle addressing conduct in concert with others that allows a defendant to be held accountable for the conduct of others under the guidelines (§1B1.3).
A public official appointed or elected to hear and decide legal matters. Federal district and circuit judges, as well as Supreme Court Justices, are appointed for life.
Judgment and Commitment Order
Often called the “judgment,” a written record of the defendant’s convictions and the sentence the court pronounces.
Juvenile Delinquency Act
The Juvenile Delinquency Act governs juveniles convicted of an offense in federal court. The guidelines do not directly apply to defendants sentenced under the Juvenile Delinquency Act. However, the sentence imposed on a juvenile defendant may not ordinarily be greater than the maximum of the guideline range that would apply to an adult defendant in similar circumstances. (§1B1.12).
If a person is abducted, taken hostage, or unlawfully restrained to facilitate the commission of an offense or to facilitate escape from the scene of a crime, an upward departure may be warranted (§5K2.4). If a person is convicted of a kidnapping offense, they may be sentenced under the kidnapping guideline, found at §2A4.1.
Lack of Guidance as a Youth
Lack of guidance as a youth cannot be a basis for departure from the guidelines range (§5H1.12).
A departure provision that, in some situations, allows a reduced sentence in a case in which a defendant commits a crime to avoid a perceived greater harm (§5K2.11).
Local Ordinance Violations
Local ordinance violations (except those that are also violations under state law) are excluded from criminal history calculations (§4A1.2(c)(2)).
Loss is the greater of “actual” or “intended” loss. Actual loss is the reasonably foreseeable pecuniary (monetary) harm resulting from the offense. Intended loss is the pecuniary harm that the defendant purposefully sought to inflict but which did not cause actual loss in the amount intended.
A table containing graduated increases to a defendant’s sentencing range accounting for the pecuniary loss caused by the defendant’s crime. See §2B1.1(b)(1) .
A software program designed to hijack, damage, or steal information from a device or system. Examples include spyware, adware, viruses, and many more. The software can be delivered in a number of ways, including decoy websites, spam, and infected USB drives.
Non-discretionary conditions required by statute for defendants placed on probation or supervised release.
A non-discretionary penalty required by statute. In federal law, many drug trafficking offenses carry mandatory minimum penalties. There are also mandatory minimums prescribed for some firearms offenses, as well as other types of offenses.
Means of Identification
Means of Identification is defined by statue at 18 U.S.C. §1028(d)(7) and has to be of an actual, not fictitious, individual. Means of identification includes any name or number that can be used alone or in conjunction with other information to identify a specific individual. Examples include a name, a social security number or date of birth.
A sentence pronounced by a military court. Only military sentences that are imposed by a general or special court-martial are counted for criminal history (§4A1.2(g)).
An offense punishable by one year of imprisonment or less.
Misprision of a Felony
A concealment and nondisclosure of a felony by a person who did not participate in the crime.
Modified Categorical Approach
Similar to the categorical approach, the modified categorical approach is used to determine whether an offense (usually a prior conviction) fits within a given definition, such as for “crime of violence,” ”drug trafficking offense,” or similar term. The court must compare the elements of the offense of conviction to the relevant definition. Under the modified approach, the court may use certain official court documents, such as a charging document or plea agreement from the prior case, to determine the elements of the offense of conviction.
Concealing illegally-obtained assets by transferring them to a legal business or investment for the purpose of disguising their illegal nature.
The national origin of a defendant is not relevant in the determination of a sentence (§5H1.10).
Negligent behavior is the failure to exercise the standard of care that a reasonably prudent person would have exercised in a similar situation.
Obstruction of Justice
The guidelines provide an enhancement if the defendant willfully obstructs or attempts to obstruct the administration of justice (§3C1.1).
Occupational restrictions may be imposed on a defendant as a condition of probation or supervised release.
Under the guidelines, the offense of conviction and all relevant conduct under §1B1.3. The term “instant” used in connection with “offense” may be used to distinguish a violation for which the defendant is being sentenced from a previous or subsequent offense that the defendant committed.
Offense of Conviction
The offense conduct charged in the indictment or information of which the defendant has been convicted.
The severity level of an offense, ordinarily determined in Chapters Two and Three of the Guidelines Manual, and reflected on the vertical axis of the Sentencing Table. In some cases (such as career offenders and repeat dangerous sex offenders against minors) the offense level is determined in Chapter Four.
One Book Rule
The “one book” rule requires the court to use the Guidelines Manual in effect on the date of sentencing unless the use of that manual would violate the Ex Post Facto Clause.
A written direction or command issued by a court or a judge.
Chapter Eight of the Guidelines Manual provides guidelines for the sentencing of organizations, including corporations. Prosecutions may involve both individual and organizational co-defendants.
A form of conditional early release from prison (before the full term of imprisonment expires). Upon violation of a parole condition, a parolee may be placed back in prison to complete the remainder of the sentence. In the federal system, parole was abolished with the passage of the Sentencing Reform Act of 1984 and does not apply to defendants sentenced for offenses committed on or after November 1, 1987.
Networked systems that work like an organized collective by allowing individuals to interact directly with others in the P2P environment. In the case of Bitcoin, the network is built in such a way that each user is broadcasting the transactions of other users.
Tricking someone into giving you their personal information, including login information and passwords, credit card numbers, and so on by imitating legitimate companies, organizations, or people online. Phishing is often done through fake emails or links to fraudulent websites.
An agreement whereby a defendant pleads guilty instead of proceeding to trial. The agreement contains promises that the prosecutor and defendant must each abide by. Each party to the plea agreement usually gains some benefit and gives up (or waives) a right in return for that benefit.
A statement, generally of guilty or not guilty, made formally by the defendant before the judge.
A form of fraud in which belief in the success of a nonexistent investment is fostered by the payment of quick purported returns to the first investors from money invested by later investors, which in turn encourages more victims to invest.
A prior conviction that is the basis of an increased sentence for the instant offense.
Presentence Report (“PSR”)
A report, filed under seal by a probation officer, which contains information about the offense and offender, the statutory range of punishment, and the guidelines calculation, as well as any bases for imposing a sentence above or below the guideline range.
A probation officer who conducts presentence investigations of defendants and writes presentence reports containing the guidelines determinations and other information relevant to sentencing.
Pretrial Services Officer
An officer of the court responsible for monitoring a person who has been charged with a federal offense and has been released on bond while that person awaits trial or sentencing.
A sentence for criminal conduct that is not part of Relevant Conduct that was imposed prior to sentencing on the instant offense. See USSG §4B1.2(a).
A sentencing option instead of a sentence of imprisonment, although probation may involve a condition of a short amount of incarceration (such as weekends in jail), confinement in a halfway house, or home detention. A person on probation is monitored by a probation officer and must follow certain rules announced by the judge at the time of sentencing and listed on the judgment form.
An officer of the court responsible for monitoring offenders on probation or supervised release. Probation officers also conduct presentence investigations on offenders and write presentence reports to determine the proper guideline range and to provide the judge with information about the defendant relevant to sentencing.
Representative of the Department of Justice (in federal court) responsible for bringing and prosecuting charges against a person or organization. The prosecutor represents the interests of society. Less formally referred to as “the government”.
The minimum number of members required to conduct business or take a vote. The Commission must have four voting members for a quorum.
Also known as RICO (Racketeer Influenced and Corrupt Organizations Act). A system of organized crime involving a pattern of illegal activity carried out as part of a larger criminal enterprise.
Real Offense Sentencing
An approach to sentencing that accounts for all of a defendant’s conduct in relation to the offense of conviction, not just the specific conduct of which the defendant has been convicted (which would be a “charged offense” approach). The Guidelines Manual does not take a pure “real offense” approach and, instead, takes a modified real offense approach that generally accounts for some but not all of the defendant’s real offense conduct. See USSG, Ch. 1, Pt. A.4.
The return to criminal behavior as reflected by re-arrest, re-conviction, or re-incarceration.
Conduct characterized by a substantial risk of harm to others by a conscious disregard or indifference to that risk. See, e.g., USSG §3C1.2 (Reckless Endangerment During Flight).
The guidelines provision located at §1B1.3 of the Guidelines Manual, which specifies the conduct for which a defendant may be held accountable in the determination of the offense-severity level. The court may find the facts constituting relevant conduct by a preponderance of the evidence standard; a jury trial is not required. Relevant conduct may include the defendant’s conduct as well as the conduct of other participants in a jointly undertaken criminal activity.
Money owed to a victim of an offense to compensate for damages caused by the defendant. Restitution may be ordered as a part of a sentence, and in some types of cases, is mandatory.
When the Commission has amended the Guidelines Manual to reduce guideline terms of imprisonment for some defendants, it is authorized (but not required) to make that amendment retroactive. If the defendant exercises its discretion to do so, eligible defendants may move their sentencing courts to be resentenced under the retroactively amended guideline. See USSG §1B1.10.
An annulment, cancellation or reversal of an act. With regard to probation or supervised release, the term generally refers to the judicial act of canceling the supervision in response to the offender violating the terms of supervision, and imposing a term of incarceration.
The table is found at Chapter Seven, Part B of the Guidelines Manual (§7B1.4). The table displays imprisonment ranges, stated in months, that apply to a case in which the defendant’s term of probation or supervised release has been revoked. To find the applicable imprisonment range, the judge must determine the Classification of the Violation and the defendant’s Criminal History Category from the original sentencing.
Role in the Offense
The defendant’s role in the offense, which can either be an aggravating factor (§3B1.1) or a mitigating factor (§3B1.2).
Codified at 18 U.S.C. § 3553(f), this provision allows the court to sentence a defendant without regard to an otherwise applicable mandatory minimum term of imprisonment for certain types of drug-trafficking offenses if the defendant satisfies the five criteria in the statute. A corresponding guidelines provision is USSG §5C1.2. In addition, §2D1.1(b)(17) provides for a 2-level decrease in the offense level for defendants who satisfy the safety valve criteria, regardless whether they are subject to a mandatory minimum.
An independent agency in the judicial branch of government created by the Sentencing Reform Act of 1984. Congress enacted the SRA in response to widespread disparity in federal sentencing, ushering in a new era of federal sentencing through the creation of the Commission and the promulgation of federal sentencing guidelines. Several states also have sentencing commissions that promulgate sentencing guidelines that apply to their state’s criminal offenses.
The choices that the court has once the court has properly determined the defendant’s sentencing range in the Sentencing Table. Depending on the Zone on the table in which a defendant’s range falls, sentencing options include probation (with or without a condition of home detention or community confinement), a split sentence, or a term of imprisonment. The Guidelines Manual addresses sentencing options at Chapter Five, Part F.
The procedural rules governing sentencing hearings and preparation leading up to it. Rules are found in the Guidelines Manual at Chapter Six. Sentencing procedures are also governed by statute and at Federal Rule of Criminal Procedure 32.
The table displays imprisonment ranges, stated in months, that apply to a case after the court as determined the offense severity level and the criminal history category of the defendant. The table is found at Chapter Five, Part A of the Guidelines Manual.
Serious Drug Offense
As defined at 18 U.S.C. § 924(e), an offense under the Controlled Substances Act and related federal statutes, or an offense under State law punishable by at least 10 years in prison, involving manufacturing, distributing or possessing with intent to manufacture or distribute a controlled substance.
Email or other internet mass marketing conduct used to contact a large number of potential victims.
A more focused type of phishing that targets smaller groups of victims ranging from a department within a company or organization to a single individual.
Special payments required by statute. A special assessment is required by statute for each count of conviction. One such statute is 18 U.S.C. § 3013.
Specific Offense Characteristic
Aggravating or mitigating factors in the guidelines in Chapter Two that, provided the court finds by a preponderance of evidence that they exist, either increase or decrease the offense severity level.
A sentence of imprisonment that includes a term of supervised release with a condition of community confinement or home detention as a substitute for a portion of the guideline minimum (§5C1.1(c)(2), (d)(2)). Split sentences are sentencing options in Zones B and C of the Sentencing Table.
Altering the header of an email so that it appears to come from a legitimate or reputable source. A hacker might alter his or her email header so it appears to come from the victim’s bank. Internet Protocol (IP) spoofing is the computer version in which a packet is sent to a computer with the IP altered to imitate a trusted host in the hope that the packet will be accepted and allow the sender access to the target machine.
A type of malware that is programmed to hide on a target computer or server and send back information to the master server. Data sought by spyware often include login and password credentials, bank account information, and credit card numbers.
Imposing consecutive sentences for multiple counts of conviction.
Statement of Reasons (“SOR”)
A form issued by the Judicial Conference of the United States Courts (Form AO245(b)), which is generally filed under seal, in which the federal defendant receives a sentence for a felony or Class A misdemeanor offense. The form contains various check boxes and spaces for judges to explain the reasons for imposing the sentence in the case. The Sentencing Commission collects this form as one of five sentencing documents that courts must send at the close of the case. See also 28 U.S.C. § 994(2)(1)(B) (requiring the Chief Judge to submit the form to the Commission, along with other sentencing documents, within 30 days of entry of the judgment).
A period of court supervision that often follows an offender’s service of a federal prison sentence. The primary purpose of supervised release is not to punish, but instead to facilitate the defendant’s reentry into the community. The court sets conditions of supervised release at the time of sentencing but may modify them later, or in the case of a violation, may revoke a defendant’s term of supervised release and return the defendant to prison to serve additional time.
Monitoring of an offender by a pretrial services officer or probation officer, whether while awaiting trial or sentencing, or after serving a prison sentence. An offender on probation or parole is also under supervision. Violation of the conditions of supervision can lead to a revocation of the supervision and incarceration of the offender.
An officer of the court responsible for monitoring an offender or an accused person’s behavior, generally for a set period of time. In the federal system, the supervision officer is a pretrial services officer or probation officer.
The act of assisting the government in its investigation and/or prosecution of another individual or an organization. The government has the option of filing a motion for a reduced sentence if it finds the defendant substantially assisted the government. A federal statute, 18 U.S.C. §3553(e), provides that a court may sentence a defendant below a mandatory minimum based on a defendant’s substantial assistance, and USSG §5K1.1 provides that a court may sentence below the minimum of the guideline range based on a defendant’s substantial assistance even if no statutory mandatory minimum applies. Both the statute and guideline require the government to file a motion requesting a downward departure before a court may depart.
The combined length of sentences determined by the court for multiple counts of conviction. Total punishment incorporates the combined offense level, the Criminal History Category, and the corresponding guideline range on the Sentencing Table. In some cases, the total punishment is determined by “stacking” a consecutive mandatory minimum statutory sentence on top of the guideline sentence for a different count of conviction.
Tribal Court Sentences
Sentences imposed by tribal (i.e., Native American or American Indian) courts. These sentences are not counted in criminal history, but may be considered under Adequacy of Criminal History as a basis for an upward departure (§4A1.3).
Undischarged Term of Imprisonment
A term of imprisonment imposed in connection with one conviction that has not yet been completed at the time a defendant is sentenced in connection with another conviction.
To make void. For instance, a court of appeals may vacate a sentence and remand back to the district court for resentencing based on some error at the original sentencing.
A conviction that a court has made void. A conviction and any corresponding sentence that have been vacated because of an error of law is not counted in criminal history.
A sentence outside the applicable guideline range (above or below) for any reason that is not in accordance with the guidelines or policy statements. A variance reflects the judge’s consideration of the factors at 18 U.S.C. § 3553(a).
An individual or organization harmed by a crime. The guidelines provide adjustments for certain cases involving victims such as official victims (§3A1.2) and vulnerable victims (§3A1.1). The guidelines also provide adjustments for cases involving the restraint of a victim (§3A1.3).
A fraud or theft defendant’s sentencing range can be enhanced depending on the number of victims and the extent of harm to the victims. See §2B1.1(b)(2).
Conduct that violates any judicial order imposing supervision of a defendant. Violations of probation and supervised release are addressed in Chapter Seven of the Guidelines Manual.
As defined at 18 U.S.C. § 924(e), any crime punishable by imprisonment exceeding one year or a juvenile delinquent act involving the use or carrying of a firearm, knife or destructive device, that has as an element the use, attempted use, or threatened use of physical force against the person of another, or certain enumerated offenses including, burglary, arson, extortion, and felony offenses involving the use of explosives.
Self-replicating malware that injects copies of itself into the infected machine. A virus can destroy a hard drive, steal information, log keystrokes, and perform many other malicious activities.
The guidelines provide an enhancement for cases involving victims who are unusually vulnerable to due age, physical or mental condition or who are otherwise particularly susceptible to the criminal conduct (§3A1.1).
To validly give up a right, such as a right to trial or right to remain silent. Waivers of rights can be oral or in writing.
An order by the court directing an official, such as police officer or probation officer, to act in some manner (such as arrest a person). A defendant who commits an offense while a warrant alleging a violation of a condition of probation, parole, or supervised release is outstanding will receive criminal history points for “status” for being under a “criminal justice sentence” (§4A1.2(m)).
The guidelines’ Sentencing Table is divided into Zones (A, B, C, and D) which provide different types of sentencing options. The zones are described at §5C1.1.
The guidelines allow the following types of sentences in Zone A of the Sentencing Table: a fine only, a sentence of probation (with or without a condition of community confinement or home detention), and a sentence of imprisonment.
The guidelines allow the following types of sentences in Zone B of the Sentencing Table: a sentence of probation with a condition of community confinement or home detention, a split sentence, and a sentence of imprisonment.
The guidelines allow the following types of sentences in Zone C of the Sentencing Table: a split sentence and a sentence of imprisonment.
The guidelines allow the following types of sentences in Zone D of the Sentencing Table: imprisonment.