Sentence Enhancement and Mitigation

North Carolina law defines the purposes of sentencing as follows:

  1. Punishment proportionate to the injury caused
    1. Taking into account factors that might increase or decrease the offender’s culpability, or level of guilt
  2. Protecting the public by restraining the offender
  3. Assisting in the offender’s rehabilitation

The first purpose listed, punishment, is subject to certain federal and state regulation. For example, no punishment can violate the 8th Amendment’s prohibition of cruel and unusual punishment. In addition, both state and federal laws can either require or permit a court to consider factors that go towards an enhanced (increased) or mitigated (lessened) sentence.

Sentencing is an incredibly subjective analysis that leaves an enormous amount of discretion with the judge. Similarly, mitigating and aggravating factors are vast in number and highly subjective. In fact, claiming some factors without regard to their various implications can “cut both ways” and end up enhancing a person’s sentence when they intended to mitigate.


It is important to be aware of federal or state sentencing enhancements to be aware of your criminal liability whenever facing a criminal charge.

In North Carolina, the State must prove beyond a reasonable doubt to the court that aggravating circumstances outweigh mitigating ones in order to justify an enhanced sentence that is outside the presumptive range for a crime. Unless a defendant admits to an aggravating factor, whether or not the State proves its existence is up to the jury.

There are 19 specific aggravating factors laid out in North Carolina’s criminal code. These cover both certain aspects of the convicted crime, and circumstances attributable to the defendant. The list also includes a “catch-all” provision that says courts may also consider any other aggravating factor that is “reasonably related” to sentencing’s three purposes.

Aggravating factors that a North Carolina court can consider to enhance a convicted crime’s sentence include the following.

The offense:

  • Was especially atrocious, heinous or cruel
  • Involved a victim who was very young, very old, physically or mentally infirm, or handicapped
  • Left the victim with serious, permanent and debilitating injury
  • Involved delivering or selling a controlled substance to a minor
  • Was committed against a victim because of his or her race, nationality, religion or country of origin
  • Involves a charge of human trafficking with multiple victims or a victim with serious injury

The defendant:

  • Joined with more than one other person when committing the crime and was not charged with conspiracy
  • Induced others to participate or occupied position of leadership in committing the crime
  • Was hired or paid to commit the offense
  • Was armed with or used a deadly weapon in committing the crime
  • Was on pretrial release for another charge when the offense was committed
  • Does not support his or her family
  • Has committed a parole or probation violation within the last 10 years
  • Took advantage of a position of confidence/trust to commit the offense (this includes domestic partnership)

In the federal courts, the United States Sentencing Commission is responsible for establishing sentencing practices and policies. Federal courts are extremely deferential to the Commission because they want to promote uniform sentences. However, federal courts will consider certain aggravating and mitigating circumstances if they are particularly relevant to the nature or extent of the offenses. There are specific statutes enacted that address aggravating circumstances for certain crimes, including crimes involving violence, firearms or serious drug offenses. Aggravating circumstances federal courts take into account most often involve prior convictions for similar offenses. 18 U.S.C. 3592 also covers mitigating and aggravating circumstances for offenses in which the death penalty is a possibility.


In North Carolina, the defendant must prove to the court that mitigating factors more likely than not outweigh aggravating ones. This is a lower burden of proof than the one by which the prosecution has to prove aggravating circumstances.

The North Carolina code specifies 19 different factors that can mitigate a person’s sentence at the judge’s discretion. Like the aggravating factors, it also includes a “catch-all” provision that includes any other mitigating factor that is reasonably related to the purposes of sentences. Mitigating factors in North Carolina include whether the defendant:

  • Committed the offense under threat, coercion or duress that was insufficient to be able to claim it as a defense
  • Was a passive participant or minor player in the commission of the offense
  • Made substantial or total restitution to the victim
    • This is one example of a factor that can backfire and work against a defendant. Many poor defendants are not able to afford financial restitution and arguing this as a mitigating factor can set them up for a failed promise if this is argued as a factor. By contrast, a judge and jury could be reluctant to let a wealthy defendant “buy” his or her way out of trouble.
  • Reasonably believed that his or her conduct was legal
  • Acted under strong provocation
  • Has testified for the prosecution in the prosecution of someone else’s felony, or aided in their capture
  • Has been honorably discharged from the United States Armed Forces
  • Supports his or her family
  • Has a support system within the community
  • Is gainfully employed or has a positive employment history
  • Has accepted responsibility for the offense
  • Had significantly reduced culpability for the offense because of his or her age, immaturity or limited mental capacity

Federal courts will consider factors like a defendant’s age and mental and emotional condition in calculating mitigating factors for a sentence.

Courts can consider both aggravating and mitigating circumstances when making a sentencing determination—the final result just depends on whether the aggravating factors outweigh the mitigating, or vice versa.

If you are being charged with a crime it is important to enlist the help of an experienced criminal defense attorney. The dedicated criminal attorneys at Arnold & Smith, PLLC stand at the ready to defend your rights against state and/or federal charges. Please contact us today for a consultation.