Tax Crime Sentencing

In determining balance and fairness to a criminal’s sentence, the federal courts apply the United States Federal Sentencing Guidelines and the statute of conviction.

The statute of conviction sets out the maximum sentence for each crime. For criminal tax crimes, a defendant could be subject to subject to five years imprisonment for each conviction, and could be convicted of a separate crime for each year that incorrect tax filings remained uncorrected.

The United States Federal Sentencing Guidelines are sentencing provisions, which sets out a uniform sentencing policy for use in federal courts. While intended to alleviate the wide array of sentences being handed down for identical crimes in different federal circuits, the act also provided for much harsher sentencing in cases of tax fraud and tax evasion.

United States Federal Sentencing Guidelines

The Federal Sentencing Guidelines are used to determine the proper sentencing range, usually in months, for any defendant convicted of a tax crime.

The court is given the discretion to deviate outside of this recommended range. However, any ‘Departure’ from the Guideline’s range may be subject to appeal by either the defendant or the federal government.

The Federal Sentencing Guidelines determine sentences based on two primary factors: the offense level and the defendant’s criminal history. Adjustments to sentencing are possible when a defendant displays good conduct or accepts a plea bargain. After these are determined, the court looks to the offense table, which specifies a sentence based on the two factors.


After the court determines the recommended sentence based on the defendant’s offense level, criminal history, and any applicable adjustments, a federal judge or jury still has the discretion to depart from the Guidelines based on aggravating or mitigating circumstances.

The Federal Sentencing Guidelines provide a non-exhaustive list of factors, which the court may consider in enhancing or reducing a defendant’s sentence.  It also provides the court with the authority to depart based on any factors that it deems relevant not otherwise addressed in the Guidelines.

A lawyer that is experienced in these types of proceedings will provide a criminal defendant with the best chance of avoiding imprisonment by way of sentencing departure.

Sixth Amendment Rights and United States v. Booker

In 2005 the Supreme Court handed down a landmark decision in United States v. Booker, which drastically altered sentencing options in federal cases. From 1987 when the Federal Sentencing Guidelines were enacted until 2005, the sentence calculations set out in the guidelines were considered mandatory and judges had no authority to deviate from them.

In Booker, the court held that mandatory sentencing provisions were a violation of the defendant’s Sixth Amendment Right to a trial by jury. As a result, the Federal Sentencing Guidelines became only an advisory tool for calculating sentence range. Judges are still required to consult the Guidelines but are now given the discretion to impose sentences outside of the Guidelines.

While Booker provides a defendant with an opportunity to escape mandatory sentencing, it also gives federal judges the authority to hand down sentences more severe than the Guideline recommends. In fact, since 2005, the ratio of sentences above the prescribed range is double that of the rate before the decision in United States v. Booker.

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