Dallas Federal Criminal Defense Lawyer Explains Does It Matter If It Is Your First Offense
John Helms In Federal Criminal Cases, Does It Matter If It Is Your First Offense
As a federal criminal defense lawyer in Dallas, I am often asked by clients and their families if it matters in a federal criminal case that the accused has never been convicted of a crime. The answer is that it does matter. This article will explain how.
Will The Prosecutor Dismiss The Case If The Accused Has No Prior Convictions?
Many people accused of a crime hope that their lawyer can persuade a federal prosecutor to dismiss the case because the accused has no criminal record. Unfortunately for them, this almost never happens. The reason is simple: You don’t get to commit one free federal crime.
Federal crimes are serious enough so that federal prosecutors generally only take cases that they think have enough of a federal interest to justify using the resources of the federal government on them. A federal criminal defense lawyer is more likely to convince a prosecutor not to pursue a case if the evidence is weak or if there is no real federal interest. The fact that it is the defendant’s first crime is almost never a reason for a prosecutor to dismiss a case.
Can A Clean Record Mean A Shorter Sentence?
The fact that the prosecutor will not dismiss your case does not mean that a clean record does not matter. It matters because it normally means a shorter sentence than if the accused has prior convictions. There are two main reasons.
First, a clean record is something that the Federal Sentencing Guidelines take into account in recommending to the judge a range of months for your sentence. In federal courts, only the judge can decide your sentence. The Federal Sentencing Guidelines make a recommendation to the judge of a range of months in which the judge should sentence you. The United States Supreme Court has held that federal judges must consider the Sentencing Guidelines, but they do not have to follow them. See U.S. v. Booker, 543 U.S. 220 (2005). This means that the judge always has to calculate the defendant’s recommended range, but the judge can still sentence the defendant above or below that range.
In arriving at the recommended range of months, the Sentencing Guidelines consider the seriousness of the crime and the defendant’s criminal history. The seriousness of the crime is reflected in the defendant’s Offense Level. This is a numeric score. The higher the Offense Level, the more serious the crime. The Offense Level considers the type of crime as well as the specific facts of the case.
The Criminal History Category is a number between one and six. Category One means the defendant has no prior criminal history or almost none, or that any past convictions happened too long ago to be counted.
To illustrate how a clean record helps you, let’s consider two examples and compare them. First, let’s consider Defendant A. He has committed a crime with an Offense Level of 20, and he has no criminal history. He will have a Criminal History Category of One. Now, let’s consider Defendant B. He also committed a crime with an Offense Level of 20, but he has a prior criminal conviction for which he served 15 months in jail. He will have a Criminal History Category of Two. Now, let’s look at their Sentencing Guideline ranges.
Defendant Offense Level Criminal History Category Recommended Sentence Range
A 20 I 33-41 months
B 20 II 37-46 months
As you can see, Defendant A has a lower recommended range of months than Defendant B, because he has a better Criminal History Category. This shows that a clean record does matter.
How much it matters depends on the Offense Level. As the Offense Level gets higher, the difference between the ranges in each Criminal History Category increases.
The second reason why a clean record matters is that, in my experience, judges are significantly more likely to sentence a defendant to the low end of the Guideline range, or to sentence below that range, if the defendant has no criminal history. So, in our example above, a judge might sentence Defendant A to the low end of the Guideline Range (33 months), and might sentence Defendant B to the middle of the range (41 months)—a difference of 8 months.
As this analysis shows, the fact that a person has no prior convictions matters, but it almost never mean that the prosecutor will just drop the case.
Can You Get Probation If You Have No Criminal History?
In federal criminal cases, whether you are eligible for probation, and whether you are likely to get it, usually depend more on the crime than the criminal history. For example, for convictions of some federal crimes, probation is not possible by law. Also, if your Offense Level is too high, the Sentencing Guidelines will recommend that a judge not consider probation.
Probation is rare in the federal criminal justice system, because federal crimes are usually serious. Nevertheless, it can happen. In a recent case in the Eastern District of Texas, I successfully argued for probation in a methamphetamine distribution case. My client had no criminal record, but the reason the judge gave her probation had much more to do with her unique personal history than her criminal history.
Even if you have never been convicted of a crime, a federal criminal charge is very serious. The fact that you have a clean record can definitely help you, but how much it will help depends on the facts of your case and the persuasiveness of your lawyer in arguing for a lower sentence.
If you or a loved one has been accused of a federal crime in Dallas, Fort Worth, Plano, Sherman, Laredo, or Del Rio, you should consult with an experienced federal criminal defense lawyer who can explain your options and the kind of sentence you may be facing if you are convicted. The Federal Sentencing Guidelines are complicated, and you should not rely on someone who does not have extensive experience with them.
Call 972-525-8822 to discuss your case.
John Helms is a Dallas federal criminal defense attorney with more than thirty years of experience, and he has represented some of the country’s largest corporations in federal white-collar crimes cases, including Microsoft, Bank of America, ACE Cash Express, and Philip Morris.