Federal Sentencing in Internet and Computer Crime Cases, Explained

At the time of this writing, federal sentencing in internet and computer crime cases generally follows a process set out in federal statutes, the Federal Rules of Criminal Procedure, and the U.S. Sentencing Guidelines. The Guidelines produce a recommended range, but they are advisory, and the judge must also consider a set of factors listed in 18 U.S.C. § 3553(a). Some offenses carry mandatory minimum sentences that limit the judge’s options. Because each part of this process depends on the specific charge and the specific person, federal sentencing is rarely as simple as looking up a number.

Attorney Ron Frey has practiced criminal defense since 2004 and is admitted in the Middle and Southern Districts of Florida, the Northern and Southern Districts of Ohio, and the Western and Eastern Districts of North Carolina. Drawing on his experience handling many federal internet and computer crime cases, he has found that preparation for sentencing often begins long before a sentencing hearing is scheduled. Because the Guidelines are amended regularly and federal law changes, anyone facing a federal case should talk with an attorney about how the current rules apply.

How Do the Federal Sentencing Guidelines Generally Work?

The U.S. Sentencing Commission publishes the Guidelines Manual and generally amends it every year, with changes typically taking effect each November. The Guidelines assign an offense level based on the charge and certain facts about the conduct, and a criminal history category based on a person’s prior record. Together, these produce an advisory range.

In internet and computer crime cases, the facts that affect the offense level can include things like the amount of loss claimed in a fraud or hacking case, the number of victims, the use of a computer, or the nature and number of images in a child exploitation case. How these facts are counted is often disputed, and those disputes can make a significant difference. The U.S. Supreme Court has held that the Guidelines are advisory rather than mandatory, although courts generally still begin with the Guidelines calculation.

The Role of the § 3553(a) Factors

After the Guidelines range is calculated, federal law generally directs the judge to impose a sentence “sufficient, but not greater than necessary” to serve the purposes of sentencing. The § 3553(a) factors include the nature and circumstances of the offense, the history and characteristics of the person, the need for the sentence to reflect the seriousness of the offense and deter future conduct, the kinds of sentences available, and the need to avoid unwarranted differences between similar cases. This is generally where a person’s background, health, family, work history, and efforts toward rehabilitation are considered.

The Presentence Investigation Report

In most federal cases, a U.S. Probation Officer prepares a presentence investigation report before sentencing. The report typically covers the offense, the person’s background, and a proposed Guidelines calculation. The defense generally has the opportunity to review the report and raise objections before the hearing. Because the judge often relies heavily on this report, the interview with probation and the objections process are important parts of preparing for sentencing.

Mandatory Minimums, Variances, and Departures

Some federal offenses that come up in internet crime cases, such as certain child exploitation, enticement, and aggravated identity theft charges, carry mandatory minimum sentences set by Congress. In those cases, the judge generally cannot go below the minimum unless a specific statutory exception applies.

Outside of mandatory minimums, judges generally have room to impose a sentence outside the Guidelines range. A sentence outside the range based on the § 3553(a) factors is typically called a variance. The Guidelines historically also listed specific “departures,” and recent amendments to the Guidelines Manual generally removed most of those provisions, so many of the same circumstances are now typically raised through the § 3553(a) factors. These rules continue to evolve.

Acceptance of Responsibility and Cooperation

The Guidelines generally provide a reduction in the offense level for a person who clearly accepts responsibility, which typically comes up when a person pleads guilty. Separately, federal law and the Guidelines allow the government to ask the court for a reduced sentence when a person has provided substantial assistance in the investigation or prosecution of others. Whether either applies, and what it means for a particular person, depends heavily on the facts and on decisions made by prosecutors, so these are issues to discuss carefully with an attorney.

How Attorney Ron Frey Approaches Sentencing Preparation

Every case is different, but drawing on his experience handling many federal cases, Attorney Ron Frey generally focuses on:

• The person’s background. Education, work, family responsibilities, health, and the circumstances that led to the case.
• Treatment and evaluations. Where appropriate, counseling, treatment, and professional evaluations, often begun early in the case.
• Letters of support. Letters from family, employers, and community members that show who the person is beyond the charge.
• First-offender history. Many people charged with internet and computer crimes have never been arrested before, and that history can matter. See our guide to a first-offense internet crime charge.
• The Guidelines calculation. Careful review of the presentence report and the facts that drive the offense level.

What to Do If Contacted by Federal Agents

Many federal cases begin long before charges, with a target letter, a search warrant, or a visit from agents, and statements made early can affect the case later, including at sentencing. Attorney Ron Frey generally advises that a person who learns of a federal investigation exercise the right to remain silent and bring in an attorney before speaking with agents. See our guide to a federal target letter.

See our page on Federal Pretrial Release and Detention in Internet Crime Cases, Explained.

The Laws Involved

In the federal system, sentencing is generally governed by 18 U.S.C. § 3553 (imposition of a sentence), including the § 3553(a) factors, and by the U.S. Sentencing Guidelines Manual published by the U.S. Sentencing Commission. The presentence investigation report is addressed in Rule 32 of the Federal Rules of Criminal Procedure (sentencing and judgment), and appeals of a sentence are addressed under 18 U.S.C. § 3742 (review of a sentence). As always, laws and the Guidelines are subject to change and revision, and the Guidelines are amended regularly, so contact Attorney Ron Frey to discuss the details of your case and the current status of the law.

Why Talk With an Attorney About the Details?

A website can only offer a general picture. The Guidelines are amended regularly, Congress changes sentencing statutes, and courts continue to interpret both. It is important to discuss the details of any specific situation with an attorney at the time it arises.

Talk With Attorney Ron Frey About Federal Sentencing

If you or someone close to you is facing federal charges or a federal sentencing hearing in an internet or computer crime case, contact Attorney Ron Frey of The Frey Law Firm, LLC. You can also read about federal enticement charges and Computer Fraud and Abuse Act charges.

This page is for general information only. It is not legal advice, and reading it or contacting us does not create an attorney-client relationship. Laws change, and how they apply depends on the facts of each case.