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'Misprision of a Felony'

By Michael G. Considine and Doreen Klein

Notwithstanding the continuing reliance of federal courts on the Federal Sentencing Guidelines, they recognize that Congress did not intend to weaken the plea bargaining system when it enacted the Sentencing Reform Act. Given the formulaic nature of the guidelines, plea bargaining may be the best way to secure the most advantageous result for a client facing federal criminal charges. One bargaining tool is for defense counsel to suggest that his client plead to an alternative charge, such as misprision of a felony, 18 U.S.C. ' 4.

Much has been written about the inflexibility of the Sentencing Guidelines, which attempt to impose consistency in sentencing by assigning numeric values to factors such as the charges against the defendant and the monetary value of the victims' loss, and then slotting those values into a formula to determine the 'recommended' minimum and maximum sentences for the charged offense. The degree to which courts feel bound to impose a sentence within the guidelines range varies among the circuits. However, since U.S. v. Booker, 543 U.S. 220 (2005) was issued on Jan. 12, 2005, effectively making the guidelines 'advisory,' statistics compiled by the U.S. Sentencing Commission show that the courts have generally imposed sentences within the established Guidelines ranges.

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