Welcome to Spodek Law Group. Our goal is to give you the reality of federal offense levels - not the sanitized version you find on government websites, not the oversimplified explanations competitors offer, but the actual truth about how the number that determines your sentence gets built. Because that number doesn't calculate itself. Someone calculates it. And understanding who controls that calculation changes everything about how you approach your case.
If you've been charged with a federal crime, you've probably seen references to "offense levels" and a sentencing table. You might have even found the United States Sentencing Commission guidelines online. The formula looks straightforward: start with a base offense level, add points for aggravating factors, subtract points for mitigating factors, cross-reference with your criminal history category, and you get a sentencing range. Mathematical. Neutral. Objective.
That perception is exactly what the system wants you to believe. The math is real. The neutrality is an illusion. And by the time most defendants understand what's actually happening, the inputs to that formula have already been locked in by decisions they never saw being made.
What Prosecutors Actually Control (And Dont Tell You)
OK so let me break this down more specificaly. Federal prosecutors have what courts call "broad discretion" in charging decisions. The Supreme Court has stated that as long as probable cause exists, "the decision whether or not to prosecute, and what charge to bring before a grand jury, generaly rests entirely in his discretion."
Think about what that means for your offense level. The prosecutor decides:
- Which statute to charge you under (determining your base level)
- How many counts to file (multiple counts can add levels through grouping rules)
- What loss amounts to allege in financial crimes (each threshold adds levels)
- What drug quantities to attribute to you (quantity drives everything in drug cases)
- Whether to allege you were a leader, organizer, manager, or supervisor (+2 to +4 levels)
- Whether to invoke mandatory minimums
- What "relevant conduct" to include - conduct you werent even charged with
That last one is critical. Under Section 1B1.3 of the guidelines, your offense level can include "relevant conduct" - acts that are part of the same course of conduct or common scheme, even if you were never charged with them, even if you were never convicted. Until November 2024, this could even include conduct a jury specificaly aquitted you of. Let that sink in.
The prosecutor doesnt just influence your offense level. The prosecutor constructs your offense level through the accumulation of discretionary decisions, each one adding or removing potential years from your life.
Heres were it gets even more troubling. Current DOJ policy directs prosecutors to charge "the most serious, readily provable offense" - including those with mandatory minimums and maximum guideline exposure. This isnt rogue prosecutors being harsh. Its official policy.
The 99% Trap: Why Almost Nobody Goes to Trial
Youve probly heard that federal conviction rates are high. But the number that matters is diferent. In the Eastern District of North Carolina, for example, 823 cases were sentenced in fiscal year 2024. Only 7 went to jury trial. Thats 99.2% resolved without trial.
This isnt becuase defendants are making free choices to plead guilty. Its becuase the offense level system creates overwhelming leverage for the government.
Heres how the trap works. Prosecutor charges you with multiple offenses, stacks enhancements, alleges maximum loss amounts or drug quantities. Your calculated offense level suggests 15-20 years. Then they offer you a plea. Plead to fewer counts. Accept a lower loss calculation. Agree to the "acceptance of responsibility" reduction (minus 3 levels for pleading guilty early). Now your looking at 5-7 years.
You didnt get a deal. You got managed. The 15-20 year exposure was never realistic - it was leverage to make 5-7 years look like mercy. As Todd Spodek explains to clients at Spodek Law Group, what feels like negotiation is often just the prosecutor adjusting the inputs they controlled from the start.
The statistics bear this out. The average sentence with a mandatory minimum is 144 months - thats 12 years. Without a mandatory minimum, its 29 months - about 2.5 years. Same crimes, vastly diferent sentences based on prosecutorial decisions about which charges to file.
Notice the pattern? The prosecutor decides wheather to trigger manditory minimums. The prosecutor decides wheather to drop enhancements in exchange for a plea. The prosecutor controls your exposure and your "discount." The trial penalty isnt a bug. Its how the system is designed to function.
Sentenced for Crimes You Were Aquitted Of
Now heres the part nobody talks about, at least not until very recently.
Daytona McClinton was 17 years old. He was charged with robbing an Indianapolis CVS - an offense carrying a guideline range of 57 to 71 months. He was also charged with murder. The jury found him guilty of the robbery. The jury found him NOT guilty of the murder.
The judge sentenced him to decades anyway.
How? Under the relevant conduct provisions, the murder - the crime he was legaly aquitted of - was still considered at sentencing. The judge stated the murder was "the driving force in this sentence." A jury said he didnt do it. The sentencing guidelines let the judge punish him for it anyway, based on a much lower standard of proof.
This wasnt an abberation. It was how the system worked for decades. The guidelines required judges to consider relevant conduct proven only by "preponderance of the evidence" - 50% plus a feather - even when a jury applying the "beyond reasonable doubt" standard had specificaly rejected that same conduct.
Think about that. You could go to trial, win an acquital on serious charges, and still have those aquitted charges increase your sentence on the counts you lost. This is why some defense attorneys advised clients NOT to go to trial even when they had strong defenses on some counts. Winning could still hurt you.
This finaly changed on November 1, 2024, when Amendment 826 took effect. The new guidelines prohibit using aquitted conduct to increase offense levels. But if you were sentenced before that date, you were sentenced under the old rules. And the amendment only applies to federal aquittals - state aquittals can still be considered.
For nearly 40 years, you could be sentenced for crimes a jury said you didnt commit. That wasnt a glitch. That was the system working as designed.
When Judges Quit: What They Know That You Dont
If your thinking this sounds unfair, your not alone. Some of the harshest critics of the federal offense level system are the judges required to apply it.
Judge Lawrence Irving, a Reagan appointee to the federal bench, resigned. His reason? He could not "in good conscience continue to mete out sentences that are unfair."
He wasnt speaking abstractly. He cited a specific case - a 19 year old drug offender sentenced before the guidelines took effect. That young man served six months in jail, then five years on probation. During probation, he stayed drug-free (verified by testing), completed his education, got married, had a child, and became a productive taxpaying citizen.
Under the guidelines that Judge Irving was required to apply? The same person, same offense, would have received 20 years in federal prison. No parole. No opportunity for redemption.
Around 50 federal judges have reportedly refused to handle drug cases because they beleive the guidelines produce unjust results. Judge Jack Weinstein of Brooklyn stopped taking drug cases after being forced to sentence a peasant woman from West Africa to 46 months for a smuggling offense.
These arent defense attorneys complaining. These are the judges - the people inside the system, appointed to administer justice - saying the offense level calculations produce unjust outcomes. They see the inputs. They see how the formula works. And some of them quit rather then continue participating.
The guidelines became "advisory" after the 2005 Booker decision, meaning judges can now depart from the calculated range. But statistics show judges still sentence within the guideline range about 45% of the time. The calculated range remains the anchor. And the prosecutor still controls what goes into that calculation.
One Level, One Year: Why Every Point Matters
At Spodek Law Group, weve seen clients not understand what offense levels actualy mean for their lives until we show them the table. Let me make this concrete.
The diferance between offense level 24 and offense level 21 can be 24 months of your life. Thats two years, based on 3 points. One incorrectly counted prior conviction. One enhancement that shouldnt apply. One failure to argue for a reduction. Two years.
Heres another example. Say your charged with fraud. Base level 7. Loss amount over $3.5 million adds 18 levels. More then 50 victims adds 4 more. "Sophisticated means" adds 2. Your already at level 31. Thats before criminal history.
Level 31, Criminal History Category I (no prior convictions) = 108-135 months. Thats 9 to 11 years.
But what if you contested the loss calculation and lost? No acceptance of responsibility, so no minus 3 levels. Prosecutor alleges you destroyed documents, adding 2 for obstruction. Now your at level 33.
Level 33, Criminal History Category I = 135-168 months. Thats 11 to 14 years. Fighting the loss calculation - even legitimately - could cost you 2+ additional years if you lose.
This is why every single enhancement matters. Every single point. The calculation looks like math but its built from discretionary decisions, and each decision has real conseqences measured in months and years of your actual life.
See the problem? The offense level isnt something that happens to you. Its something that gets constructed, piece by piece, through dozens of decisions about charging, enhancements, relevant conduct, and adjustments. By the time most defendants see the number, its already been built.
What This Means For Your Case
If your facing federal charges, understanding how offense levels actualy work changes how you should approach everything.
First, timing matters enormosly. The acceptance of responsibility reduction (-3 levels) requires early acceptance. Wait to long and you loose it. But accepting responsability too early, without understanding what your accepting, can lock in relevant conduct allegations that increase your level.
Second, every charging document matters. What the prosecutor decides to charge - and how they characterize the offense - shapes the entire calculation. Challenging charges isnt just about winning or loosing at trial. Its about controlling what inputs go into the formula.
Third, the presentence report is critical. This is where probation officers calculate your offense level based on prosecutor recommendations. Errors here can add years. Unchallenged enhancements become accepted facts. At Spodek Law Group, we review every line of every presentence report becuase the stakes are to high for assumptions.
Fourth, cooperation has to be strategic. Substantial assistance can lead to "5K1" departures below the guideline range, but only if the prosecutor files the motion. The prosecutor controls that too. Cooperation without leverage can mean admitting to relevant conduct that hurts you without getting the departure that helps you.
You are not a passive participant in this process. But you cant fight what you dont understand. The offense level calculation is where your sentence gets built - and its happening right now, wheather your paying attention or not.
The system has 43 levels. Your at one of them, or will be soon. The prosecutor has already started deciding where. The question is wheather you understand whats happening in time to affect it.
Thats the reality. Not the version in government pamphlets. Not the simplified explanation on competitor websites. The actual truth about how federal sentences get determined - by discretionary decisions dressed up as mathematical neutrality.
If this is your case, if your looking at this calculation being done with your life, call us at 212-300-5196. We understand how offense levels are actualy constructed. More importantly, we know were the leverage points are to affect them.
The math is real. The inputs are choices. And those choices are being made right now.
