CHAPTER FOUR - CRIMINAL HISTORY AND CRIMINAL LIVELIHOOD


PART A - CRIMINAL HISTORY


Introductory Commentary

The Comprehensive Crime Control Act sets forth four purposes of sentencing.  (See 18 U.S.C. § 3553(a)(2).)  A defendant's record of past criminal conduct is directly relevant to those purposes.  A defendant with a record of prior criminal behavior is more culpable than a first offender and thus deserving of greater punishment.  General deterrence of criminal conduct dictates that a clear message be sent to society that repeated criminal behavior will aggravate the need for punishment with each recurrence.  To protect the public from further crimes of the particular defendant, the likelihood of recidivism and future criminal behavior must be considered.  Repeated criminal behavior is an indicator of a limited likelihood of successful rehabilitation.

The specific factors included in §4A1.1 and §4A1.3 are consistent with the extant empirical research assessing correlates of recidivism and patterns of career criminal behavior.  While empirical research has shown that other factors are correlated highly with the likelihood of recidivism, e.g., age and drug abuse, for policy reasons they were not included here at this time.  The Commission has made no definitive judgment as to the reliability of the existing data.  However, the Commission will review additional data insofar as they become available in the future.

Historical Note:  Effective November 1, 1987.


§4A1.1.     Criminal History Category

The total points from subsections (a) through (e) determine the criminal history category in the Sentencing Table in Chapter Five, Part A.

(a)       Add 3 points for each prior sentence of imprisonment exceeding one year and one month.

(b)      Add 2 points for each prior sentence of imprisonment of at least sixty days not counted in (a).

(c)       Add 1 point for each prior sentence not counted in (a) or (b), up to a total of 4 points for this subsection.

(d)      Add 2 points if the defendant committed the instant offense while under any criminal justice sentence, including probation, parole, supervised release, imprisonment, work release, or escape status.

(e)       Add 1 point for each prior sentence resulting from a conviction of a crime of violence that did not receive any points under (a), (b), or (c) above because such sentence was counted as a single sentence, up to a total of 3 points for this subsection. 

 

Commentary

The total criminal history points from §4A1.1 determine the criminal history category (I-VI) in the Sentencing Table in Chapter Five, Part A.  The definitions and instructions in §4A1.2 govern the computation of the criminal history points.  Therefore, §§4A1.1 and 4A1.2 must be read together.  The following notes highlight the interaction of §§4A1.1 and 4A1.2.

Application Notes:

1.      §4A1.1(a).  Three points are added for each prior sentence of imprisonment exceeding one year and one month.  There is no limit to the number of points that may be counted under this subsection.  The term "prior sentence" is defined at §4A1.2(a).  The term "sentence of imprisonment" is defined at §4A1.2(b).  Where a prior sentence of imprisonment resulted from a revocation of probation, parole, or a similar form of release, see §4A1.2(k).

Certain prior sentences are not counted or are counted only under certain conditions:

A sentence imposed more than fifteen years prior to the defendant's commencement of the instant offense is not counted unless the defendant's incarceration extended into this fifteen-year period.  See §4A1.2(e). 

A sentence imposed for an offense committed prior to the defendant's eighteenth birthday is counted under this subsection only if it resulted from an adult conviction.  See §4A1.2(d).

A sentence for a foreign conviction, a conviction that has been expunged, or an invalid conviction is not counted.  See §4A1.2(h) and (j) and the Commentary to §4A1.2.

2.      §4A1.1(b).  Two points are added for each prior sentence of imprisonment of at least sixty days not counted in §4A1.1(a).  There is no limit to the number of points that may be counted under this subsection.  The term "prior sentence" is defined at §4A1.2(a).  The term "sentence of imprisonment" is defined at §4A1.2(b).  Where a prior sentence of imprisonment resulted from a revocation of probation, parole, or a similar form of release, see §4A1.2(k).

Certain prior sentences are not counted or are counted only under certain conditions:

A sentence imposed more than ten years prior to the defendant's commencement of the instant offense is not counted.  See §4A1.2(e).

An adult or juvenile sentence imposed for an offense committed prior to the defendant's  eighteenth birthday is counted only if confinement resulting from such sentence extended into the five-year period preceding the defendant's commencement of the instant offense.  See §4A1.2(d).

Sentences for certain specified non-felony offenses are never counted.  See §4A1.2(c)(2).

A sentence for a foreign conviction or a tribal court conviction, an expunged conviction, or an invalid conviction is not counted.  See §4A1.2(h), (i), (j), and the Commentary to §4A1.2.

A military sentence is counted only if imposed by a general or special court martial.  See §4A1.2(g).

3.      §4A1.1(c).  One point is added for each prior sentence not counted under §4A1.1(a) or (b).  A maximum of four points may be counted under this subsection.  The term "prior sentence" is defined at §4A1.2(a).

Certain prior sentences are not counted or are counted only under certain conditions:

A sentence imposed more than ten years prior to the defendant's commencement of the instant offense is not counted.  See §4A1.2(e).

An adult or juvenile sentence imposed for an offense committed prior to the defendant's eighteenth birthday is counted only if imposed within five years of the defendant's commencement of the current offense.  See §4A1.2(d).

Sentences for certain specified non-felony offenses are counted only if they meet certain requirements.  See §4A1.2(c)(1).

Sentences for certain specified non-felony offenses are never counted.  See §4A1.2(c)(2).

A diversionary disposition is counted only where there is a finding or admission of guilt in a judicial proceeding.  See §4A1.2(f).

A sentence for a foreign conviction, a tribal court conviction, an expunged conviction, or an invalid conviction, is not counted.  See §4A1.2(h), (i), (j), and the Commentary to §4A1.2.

A military sentence is counted only if imposed by a general or special court martial.  See §4A1.2(g).

4.      §4A1.1(d).  Two points are added if the defendant committed any part of the instant offense (i.e., any relevant conduct) while under any criminal justice sentence, including probation, parole, supervised release, imprisonment, work release, or escape status.  Failure to report for service of a sentence of imprisonment is to be treated as an escape from such sentence.  See §4A1.2(n).  For the purposes of this subsection, a "criminal justice sentence" means a sentence countable under §4A1.2 (Definitions and Instructions for Computing Criminal History) having a custodial or supervisory component, although active supervision is not required for this subsection to apply.  For example, a term of unsupervised probation would be included; but a sentence to pay a fine, by itself, would not be included.  A defendant who commits the instant offense while a violation warrant from a prior sentence is outstanding (e.g., a probation, parole, or supervised release violation warrant) shall be deemed to be under a criminal justice sentence for the purposes of this provision if that sentence is otherwise countable, even if that sentence would have expired absent such warrant.  See §4A1.2(m).

5.      §4A1.1(e).   In a case in which the defendant received two or more prior sentences as a result of convictions for crimes of violence that are counted as a single sentence (see §4A1.2(a)(2)), one point is added under §4A1.1(e) for each such sentence that did not result in any additional points under §4A1.1(a), (b), or (c).  A total of up to 3 points may be added under §4A1.1(e). 

For purposes of this guideline, "crime of violence" has the meaning given that term in §4B1.2(a).  See §4A1.2(p).

For example, a defendant's criminal history includes two robbery convictions for offenses committed on different occasions.  The sentences for these offenses were imposed on the same day and are counted as a single prior sentence.  See §4A1.2(a)(2).  If the defendant received a five-year sentence of imprisonment for one robbery and a four-year sentence of imprisonment for the other robbery (consecutively or concurrently), a total of 3 points is added under §4A1.1(a).  An additional point is added under §4A1.1(e) because the second sentence did not result in any additional point(s) (under §4A1.1(a), (b), or (c)).  In contrast, if the defendant received a one-year sentence of imprisonment for one robbery and a nine-month consecutive sentence of imprisonment for the other robbery, a total of 3 points also is added under §4A1.1(a) (a one-year sentence of imprisonment and a consecutive nine-month sentence of imprisonment are treated as a combined one-year-nine-month sentence of imprisonment).  But no additional point is added under §4A1.1(e) because the sentence for the second robbery already resulted in an additional point under §4A1.1(a).  Without the second sentence, the defendant would only have received two points under §4A1.1(b) for the one-year sentence of imprisonment.

Background:  Prior convictions may represent convictions in the federal system, fifty state systems, the District of Columbia, territories, and foreign, tribal, and military courts.  There are jurisdictional variations in offense definitions, sentencing structures, and manner of sentence pronouncement.  To minimize problems with imperfect measures of past crime seriousness, criminal history categories are based on the maximum term imposed in previous sentences rather than on other measures, such as whether the conviction was designated a felony or misdemeanor.  In recognition of the imperfection of this measure however, §4A1.3 authorizes the court to depart from the otherwise applicable criminal history category in certain circumstances.

Subsections (a), (b), and (c) of §4A1.1 distinguish confinement sentences longer than one year and one month, shorter confinement sentences of at least sixty days, and all other sentences, such as confinement sentences of less than sixty days, probation, fines, and residency in a halfway house. 

Section 4A1.1(d) adds two points if the defendant was under a criminal justice sentence during any part of the instant offense.

Historical Note:  Effective November 1, 1987.  Amended effective November 1, 1989 (see Appendix C, amendments 259-261); November 1, 1991 (see Appendix C, amendments 381 and 382); October 27, 2003 (see Appendix C, amendment 651); November 1, 2007 (see Appendix C, amendment 709); November 1, 2010 (see Appendix C, amendment 742).