The Federal Rules of Criminal Procedure, Rule 32, prescribes the requirements and prohibitions of a federal sentencing hearing. The parameters of a federal hearing are specifically found in Rule 32 which covers many aspects of sentencing and judgment in a federal criminal court.
What is a “Criminal Sentence?”
Following a (1) criminal conviction, (2) “guilty plea,” or “guilty verdict” for a federal offense, a defendant is sentenced. A criminal sentence is a punishment enforced as retribution and deterrence related to a federal crime. It can be a prison term in federal prison, a criminal fine, or both.
How is Your Sentenced Determined?
When someone is convicted their sentence is determined by a separate hearing, naturally called a sentencing hearing. In most instances, the same federal judge that presided over a criminal trial will handle sentencing, but the basis for a sentencing decision is primarily based on the sentencing memorandums provided by both the defense attorney and prosecutor. For many defendants, the arguments stated in a sentencing memorandum are just as important and influential to the long-term outcome of a case. It is in the sentencing hearing that the impact of a guilty verdict or plea is actually determined.
When Does a Sentencing Hearing Happen?
According to Rule 32, the sentencing hearing should take place soon after a criminal trial. In the federal court system, it is typical for a sentencing hearing to take place within 90 days of a criminal conviction. However, this timeframe isn’t specifically mandated by any rule or regulation. The Federal Rules of Criminal Procedure simply state that a sentencing hearing should occur without “unnecessary delay.”
This broad timing requirement has allowed courts to consider other cases on the docket, the amount of cases on the docket, and the schedule of the presiding judge. All of these factors can shorten or lengthen the amount of time before a sentencing hearing is held.
What is a Pretense Report for Sentencing?
Prior to the sentencing hearing, the federal judge is given a pretense report, in addition to the sentencing memorandums provided by legal counsel. This report forms part of the basis for the judge’s sentencing determination. The other influential material for a federal judge are the sentencing memorandums that reposition the facts of the case, reason for imposing a more lenient sentence, or conversely, arguments for a more rigorous punishment.
Rule 32 requires that the pretense report contain:
- The guidelines and statements of the federal Sentencing Commission;
- The level of the defendant’s crime and criminal history;
- The appropriate sentences and sentencing range for the convicted crime;
- Any factors that are relevant to the particular sentence; and
- Any reasons why the judge should deviate or depart from the applicable sentence range.
The first piece of information in the pretense report, the guidelines for a sentence, is arguably the most important part of the document.
What Are the Sentencing Guidelines?
In addition to timing requirements, federal judges are required to follow the Federal Sentencing Guidelines when imposing either a term of incarceration or fine for a criminal conviction. These guidelines are advisory in nature, which means there is room for diverting from the standards given, but a federal judge must have an articulated reason for handing down a sentence outside the applicable range.
The Sentencing Guidelines allow a federal judge to determine the appropriate range for a criminal sentence. This range is determined by two factors. First, what level crime was committed by the defendant. The more serious the crime the longer the guidelines allow a sentence to be. Second, the criminal history category of the defendant, which is a points-based determination that looks at the defendant’s criminal history and what offenses were supposedly committed.
Why Do Sentencing Guidelines Matter to You?
The Sentencing Guidelines are important for courts, prosecutors, and defendants because they set uniform standards in any case. While there can be deviation, the guidelines can’t be ignored and impose accountability on a federal judge. There must be a clear reason for handing down a criminal sentence outside the applicable guidelines.
This limits abuse or rogue actions by a federal judge. It is an essential check on the power of the government and the court system when it comes to federal criminal matters.
Another check on the criminal justice system and power of the courts is your right to defense counsel at a sentencing hearing. You are given the right to legal counsel to prepare your sentencing memorandum, which is in support of a shorter sentence based on the facts of your case. You are also provided the right to a federal defense lawyer in the courtroom during a federal sentencing hearing.
Interview with CLG’s Junior Partner
What is a “Pre-Sentence Interview?”
A “pre-sentence interview” is one of the last things that happens on a federal case. After a client pleads guilty in open court the judge makes a referral to the office of probation in order for a presentence interview to be conducted. A pre–sentence interview is conducted by a probation officer who acts as the court’s eyes and ears.
What is the Purpose of the Pre-Sentence Interview?
The purpose of the pre-sentence interview is to obtain information about a client that otherwise may not be evident from the case or the plea allocution. The presentence interview is generally attended by the client and almost always the defense counsel.
Clients do not discuss the underlying crime as the defense attorney usually relies on the allocution that was done during the change of plea hearing. Instead the focus is on the client’s individual circumstances that brought him before the court.
What Do You Discuss in a Pre-Sentence Interview?
During a pre-sentence interview, a defendant will generally discuss their:
- how they were brought up;
- where they lived;
- their family structure;
- how involved their parents were during their childhood and currently in their life;
- their siblings and their relationship with their siblings;
- their spouses, children, and other things of that nature.
- Education and Work History
The probation interview also talks about someone’s educational and work background to determine if a person is in need of any sort of services that may be provided either in prison or during their probation period.
- Drug or Substance Abuse
The probation officer also inquiries about someone’s drug or substance abuse problems as well as gambling to determine if there is any programming that an individual also needs as part of their probation and reentry into society.
- Financial Status
The probation interview also focuses on someone’s financial status to determine if they will be able to pay any sort of forfeiture or restitution that may be court ordered as part of the case.
- Health and Other Issues
The probation interview also talks about any sort of medical or mental health issues the individual or any of their close family members are experiencing to determine if an incarcerated term will pose an undue hardship on an individual or their close family member.
For example, if an individual was the sole caretaker of his parent, who required a lot of medical care, that will certainly be something that the probation office, and then the judge, later takes into consideration in determining what is the appropriate sentence on the case.
What Happens After the Pre-Sentence Interview?
After the interview, the probation officer tries to obtain supporting documentation from:
the IRS to obtain the individual’s income from prior employers to confirm employment and also from schools to determine their attendance and the degrees that they received and also from any sort of hospital or medical facilities where an individual has received medical care for the purposes of confirming their ailments.
The probation officer also confirms a person’s prior convictions to determine what is the appropriate criminal category that they fall into– to determine if they are subject to an enhanced sentence due to their prior criminal convictions.
Generally speaking, when preparing for a presentence interview, we speak to our clients and walk them through the types of questions the probation officer will be asking. We have obtained a sample form of what the questions look like and what the order is from a very kind probation officer who was accommodating us during the coalbed 19 shut down.
How Do You Prepare for the Interview?
In preparation, we go through the general categories of things that the probation officer will be asking the client about.
For example, in some situations, we know the client’s story and where the client may forget to add a certain park to their answer it is helpful for the defense attorney to chime in and to add certain information to the interview to ensure that it appears in their report.
For example, if we are aware that a client has received extensive substance abuse counseling but the client doesn’t mention receiving inpatient treatment when asked about their substance abuse problems we add that information in order to make sure that the client qualifies for our DAP which is residential drug something treatment that may result in a reduced sentence.
When preparing for a pre-sentence interview, we tell the clients to tell the truth and not talk about the case.
What Materials Do You Rely On?
We rely on the allocution that was made before the judge or the magistrate that accepted the plea the reason for doing it this way is um an individual is entitled to receive credit in terms of a reduction for their federal sentencing guidelines for acceptance of responsibility.
Sometimes, if an individual minimizes their responsibility or doesn’t fully admit to their guilt or involvement the probation officer in their calculations of the appropriate sentencing guidelines may not include that particular reduction thereby putting the client in a worse situation then had they chosen not to speak about their case an rely on the allocution that was made before the change of plea judge.
What Happens After the Interview?
After the interview, the probation officer speaks to a few family members to get a better idea as to who the client is outside the case outside of what the conduct that their accused and half pled guilty to committing.
What Type of Information Does a Probation Officer Gather?
The probation officer also tries to get confirmation from other areas of what the client said. For example, their family structure who they live with their medical element’s things of that nature and then the probation officer starts to prepare what’s called a pre-sentence investigation report.
The first report that is created by the probation officer is called a draft after the draft is issued both the defense attorney and in consultation with their client and the prosecutor or the US attorney that’s been assigned to the case get to make objections to the sections of the probation report that they disagree with or that are not accurate.
The probation officer is able to calculate the federal sentencing guidelines an enhancement a bit differently than how the U.S. Attorney’s Office and defense counsel have calculated them to be. So, in some situations, an individual may be put in a higher guidelines range than what was agreed to by the plea agreement.
Can You Tell Us More About “Plea Calculations?”
Generally, the plea calculations are not binding on the court and the poor is able to do their own calculations after reviewing the presentence report prepared by the probation office so the defendant in consultation with their attorney and the prosecutor are able to make objections within 10 days of receiving this particular draft and after these objections are made from both sides feet probation officer goes back and tries to obtain additional information about things that were objected to or tries to reach some sort of compromise between the prosecution and the defense attorney in terms of what is the appropriate language to be included in the presentence report.
After the 10 days are complete the objections have to be within that 10day. Objections have to be made to the probation officer and if more than 10 days are needed special permission has to be sought by the judge explaining what the reason for the delay is in not being able to get the objections into the probation officer within that 10-day. What then happens is, at sentencing, the officer then issues what’s called a final presentence report.
What is A “Final Pre-Sentence Report?”
A final presentence report is based on the interview with the client as well as additional information received from supplemental sources including interviews with family and friends. There may also be “at-home visits” that the probation officer conducts to learn about the residents and the living conditions of the defendant.
In calculating the sentencing guidelines that applied to an individual’s case, the presentence report that is created by the probation officer is the very starting point that the judge uses in conducting their own calculations and if it is different from the plea agreement and the range that was calculated.
The judge ultimately has to explain whether they side with the probation officer or whether they side with the plea agreement. The judge also will ask at sentencing if there are any objections to the pre-sentence report that have not been factored in or have not been noted in the report to ensure that the document that the judge is relying on is as up-to-date as it can be an as accurate as it can be.
What is the Takeaway Regarding “Pre-Sentence Interviews?”
In preparation for these presentence interviews, it’s important to be very forthcoming about your family situation about your substance abuse problems about anything that you may have going on in your life especially if it can explain some of your conduct or at least put it in perspective for the judge.
“Federal Sentencing Guidelines”
Interview with CLG’s Chief Paralegal
What are the Factors that Are Considered When Imposing a Sentence in Federal Court?
A common but complex issue that the public generally doesn’t understand is federal sentencing. Federal sentencing guidelines often dictate how a defendant’s life will be going forward, but many defendants will not be aware of this information until it ends up being used against them.
What is the Difference Between State Sentencing and Federal Sentencing?
In state sentencing, generally, before a defendant enters a guilty plea, they will have a pre-arranged negotiated plea and all parties will understand what the person will and will not get.
Federal sentencing is an entirely different process.
In a federal plea, the individual defendant usually pleads to a “guideline range.”
That guideline range could be subjected to:
- an upward departure;
- a downward departure;
- an upward variance;
- or a downward variance.
This is based upon a number of factors that are laid out in the U.S. Federal Sentencing statute known as 18 U.S.C. Section 3553.
What is 18 U.S.C. Section 3553?
18 U.S.C. § 3553 is a statute that allows to judge to take into account a defendant’s:
- particular role in the offense (meaning where you a leader–organizer, did you influence other people to commit crime, did you have any traumatic experiences in your life that would weigh on your decision-making ability); and
Overall, the judge is able to decide what sentence would be best for the specific defendant in front of him that would be sufficient but not harsher than necessary while not undermining the nature and or severity of the crime.
Now that we’ve laid out the general premise of § 3553 we can talk about some of the things that can happen in federal sentencing like “downward departures” and “upward departures.”
What are “Downward Departures” and “Upward Departures?”
“Downward Departures” and “Upward Departures” are governed by the United States sentencing guidelines. The U.S. sentencing guidelines contain prohibitions against what may or may not be considered in reducing a defendant’s guideline range.
Under the guidelines for what is called a “downward departure” judges are prohibited from considering a defendant’s race, socioeconomic status, religion, lack of guidance as a youth, drug or alcohol dependence or coercion and/or duress.
So, if the controlling guidance for imposing a federal sentence was left solely up to the guidelines, a lot of the things that are considered by judges under § 3553 would be off the table (it would be prohibited) and, therefore, they will not be factors that a judge may take into account.
A downward departure is where you are arguing to a judge that the offense level that was assigned to the defendant – based upon the factors already taken into account – does not properly apply to your client. So, essentially, you’re asking a judge to reduce the actual offense guideline designation.
For example, the U.S. sentencing guideline clearly state that downward departures should be used very sparingly and that a judge should only grant a departure when defense counsel has made a persuasive case that the defendant’s conduct and/or background and history is outside of the heartland; meaning the conduct was not something that could have been envisioned by the United States sentencing Commission at the time that they enacted the sentencing guidelines.
Sentencing guidelines are used in conjunction with § 3553 to ultimately arrive at the sentence that the judge is going to impose upon the defendant.
When Does a Defendant in a Federal Criminal Case Learn What His Sentence Is?
No one knows what the defendant’s sentence will be until the actual day of sentencing when it is pronounced in the courtroom.
Can You Give Us an Example of a Guidelines Range?
For example, a defendant is charged with a crime and the crime is, let’s just say, drug related or some white–collar crime. The plea agreement contains an “offense level.” Each one of those offense levels is associated with a number that corresponds with the range of sentences that can be imposed.
A defendant who has a “guidelines range” of 10 and a “criminal offense category” of 1 means they basically have no real criminal history.
In this case, the plea agreement may say that this defendant should face a range of 12 to 16 months and that’s the recommended sentence by the pre–arranged guidelines calculations based upon the defendant’s conduct.
The goal of the defense attorney is to have the defendant sentenced to something below the recommended guideline range and we’ve been pretty successful over the years as a firm with obtaining sentences below that guideline range for almost every kind of federal case that we’ve handled.
How Does a Defendant Prove Their Character to the Court?
What is taken into account as far as character and history is that the defendant is given a chance to explain to the court their true character based upon, usually, letters from family members, clergy, community, and organizations they took part in. A defendant may also explain any charitable causes that they may have supported outside of the commission in crime.
You are also asking the court to take into account the statistics of the possibility of the defendant reoffending based upon the defendant’s age at the time of the commission of the crime.
Factors that are considered to lower the statistical number or statistical likelihood of a defendant re-offending are if the defendant:
- has no prior criminal history;
- has no history of drug abuse or alcohol abuse;
- was married and had a long history of employment.
After having covered the previously mentioned areas the next step is to addressed the offense and the conduct associated with the offense.
What About the Specific Conduct Associated with the Offense?
After having covered the previously mentioned areas the next step is to addressed the offense and the conduct associated with the offense.
What I mean by the “specific conduct associated with the offence” is:
- whether or not the defendant was a leader organizer;
- did the particular offense take a lot of planning;
- was violence or threats of violence used;
- was this the defendant’s first criminal offense; and
- what was the circumstances that sparked the particular offense.
So, what you’re trying to do is basically give a narrative – not an excuse, but a narrative – for the offense so the judge can better understand who the defendant actually is as a person because we know that one criminal act or instance does not define the entirety of who a person is.
In federal court, judges get there by considering the factors outlined in § 3553.
Are There Any Other Factors to Consider?
- Best Interest of the Public – The next factor that has to be taken into account is how would the public view a defended receiving a sentence of non-incarceration. For example, for a white collar offense or even a drug offense because one of the factors under § 3553 is not to diminish the seriousness of the crime so at that point the job of defense counsel becomes to persuade the judge that this crime when put in proper context is not as egregious as it may appear to be and this particular defendant based upon their background and circumstances does not deserve to be incarcerated.
- Academic Considerations – In considering whether a defendant needs to be incarcerated, the judge also takes into account if the defendant has a need for academic or vocational programs.
- Medical Needs – If the defendant has unmet medical needs if the defendant has a drug addiction and needs treatment programs that can be a point that also swings a sentence under § 3553.
What About “Acquitted and Uncharged Conduct?”
In a broader perspective, when dealing with § 3553, one of the things that is worth mentioning here that a lot of people are unaware of is that in assessing a defendant’s character and sentence a judge can take into account “acquitted” conduct and “uncharged conduct.” A reflection of the defendant’s character can take into account other conduct that’s proven by a preponderance of the evidence by the prosecution.
For example, a defendant was charged with possession of 10 kilos of cocaine and during the trial testimony was offered that the defendant also shot an individual but the defendant was never charged because the government couldn’t prove beyond a reasonable doubt that the defendant did in fact shoot the individual.
However, during the sentencing phase while the judge cannot sentence that individual for the shooting – which would most likely have netted them a life sentence – the judge can take the shooting into account, as a reflection of the defendant’s character, and then decide a sentence based upon him that’s not something that is listed in 3553 or the related United States Census and guidelines.
U.S. v. Watts, 519 U.S. 148 (1997).
The authorization to utilize criminal conduct that is uncharged or acquitted as a sentencing factor under § 3553 is authorized by a case called U.S. v. Watts, 519 U.S. 148 (1997). In Watts, the Supreme Court basically held that to use uncharged conduct or acquitted conduct is not unconstitutional when considering a defendant’s character for the purposes of sentencing.
What If You Refused to Cooperate with Authority Figures?
The other thing that can be taken into account when sentencing a defendant is the defendant’s refusal to cooperate with authority figures. So, while a judge on the § 3553 may say, “You know this defendant is a really nice guy it seems based upon the letters and representations which judges heavily relied upon when asked to cooperate with authority figures he or she refused
While a defendant does not receive an additional penalty for not cooperating, their penalty may be enhanced because the judge may believe the factors are a reflection of your character as it relates to your criminal conduct.
What If you have People Who Depend on You?
Finally, what a judge would also take into account under § 3553 is the number of dependents that rely on this defendant and what he or she provides to these individuals.
However, the simple fact that a defendant has a child is not a fact that would likely make a judge issue a variance on the § 3553 but the fact that the defendant is the sole caretaker of that child and the child may or may not have disabilities and that the defendants employment is the source of the child’s health care, after school and overall financial support is definitely something that a judge would take into account under § 3553.
How Has This Statute Played a Role in the Cases the Firm Has Handled?
The firm represented a defendant in a federal case out of the Eastern District of New York. The defendant was charged, along with a co-defendant, with importing 17 kilos of cocaine from Ecuador.
According to the government’s theory, the 17 kilos of cocaine that were imported into the United States from Ecuador belong to or were sold by a major international narcotics trafficker who the government allegedly knew of and had been trying to arrest for over a decade.
The facts of the case were as follows: our client flew in to the United States on separate flights from his codefendant. His codefendant had 17 kilos of cocaine in his luggage and was caught.
Our client’s co-defendant then decided to cooperate with the government and, in doing so, helped the government arrange a sting operation targeting our client. Our client picked up five of the kilos and was immediately arrested. Based upon that charge, our client faced a 10-year mandatory minimum and a maximum of life.
The transfer of the drugs was recorded by body wire and video cameras. Our firm was able to prepare a sentencing submission which asked the court for a variance on the § 3553 based upon our particular client, his background, history and familial circumstances.
The end result was we were able to obtain a 6-month sentence for our client in a halfway house an mitigate what could have been a 10–year sentence. So, by use of what we call a “safety valve” and § 3553, we were able to basically obtain a non–incarceratory sentence for our client.
Can You Explain a Little More About “Safety Valve?”
“Safety valve” is simply arguing that the defendant is willing to:
- accept responsibility for their conduct;
- was not a leader or organizer;
- has no prior history of violence or similar conduct; and
- did not use any threats of violence or actual violence in the commission of the offense.
Safety valve is not “cooperation.” Safety valve is the defendant going in to admit to his or her role. A defendant who participates in a safety valve proffer is not going to take the stand against anyone, they are not identifying others or the criminal conduct of others and they’re not pointing out pictures of others. They are simply speaking about matters regarding themselves and their particular criminal conduct in that instance.
Why is 18 U.S.C. § 3553 Important?
The reason why § 3553 is extremely important is because, under the United States sentencing guidelines, there are certain grounds that a judge should not or is not allowed to consider in attempting to impose a lower sentence. For example, “downward departures.”
What gave § 3553 more life in recent years is the United States Supreme Court decision in Booker v. Washington.
What Happened in Booker v. Washington?
Prior to Booker, there was an unresolved conflict between:
- the United States sentencing guidelines (which was created or promulgated by the United States Sentencing Commission); and
- the statute regarding sentencing that was enacted by the United States Congress – which was 18 U.S.C. § 3553.
In the past, courts had taken an approach that in regard to the sentencing guidelines and § 3553; the sentencing guidelines were mandatory. For example, when a person’s sentence or offense level was calculated and a correspondent guideline range was given, it was then believed by the court that the judges’ hands were tied by the sentencing guideline calculation – which in effect almost gave a version of a mandatory sentence to be imposed.
What is Wrong with Interpreting the Guidelines as Mandatory?
The reason why the previous interpretation of the guidelines (in relation to § 3553) was extremely troubling is that, on the one hand, § 3553 says that a judge should tailor a sentence that is not in excess of what’s required for the individual defendant. Being constrained to a mandatory minimum sentence for that defendant because of the pre–determined sentence that would be available (or sentencing range that would be available) to the judge to use his discretion with certain defendants because the mandatory minimum has already been calculated.
U.S. v. Booker, 543 U.S. 220 (2005).
Booker was a narcotic trafficking case we are defendant had been indicted for possession with the intent to distribute a certain number of kilos of narcotics. Booker went to trial and at his trial there was some testimony regarding an additional number of ounces of crack cocaine that Booker had not been indicted for.
At Booker’s sentencing hearing, the judge found by a preponderance of the evidence that Booker had, in fact, possessed the additional ounces of crack cocaine. Once that finding was made, this increased Booker’s guidelines and correspondent offense level – adding approximately 10–years to Booker’s ultimate sentence.
The judge, at that time, was constrained by the perceived mandatory nature of the U.S. sentencing guidelines and was forced to impose a sentence 10–years higher than the sentence that would’ve been imposed based upon the crimes that Booker had been convicted of.
The case ultimately found its way to the United States Supreme Court. Just one year prior, the Court had decided that any mandatory sentence that would be imposed upon a defendant had to be based upon a finding made by a jury – not by a trial judge. So, the Booker case, by the time it found its way to the United States Supreme Court, the issue was ripe. The United States Constitution’s Sixth Amendment allows for a judge to make a finding of guilt based upon a preponderance of the evidence and, therefore, impose a mandatory sentence.
The United States Supreme Court, in reviewing Booker, ultimately held that the United States Constitution did not allow for a judge to substitute their opinion based upon a much lower hanging fruit of the defendant’s guilt or innocence and impose a mandatory sentence.
Takeaway: The Court went on further to find that the United States sentencing guidelines could not be deemed to be mandatory and that the provision in § 3553 that mandated that a judge impose a guideline range sentence was in effect unconstitutional.
How Did Booker Ultimately Change the Landscape for Federal Sentencing?
When Booker was first decided, a lot of people felt that it would allow judges to impose much harsher sentences on particular classes of defendants.
There were also arguments that, on the flip-side, white collar defendants would receive much more lenient sentences because of the new level of judicial discretion that Booker paved the way for.
How Does Booker Help You as a Defense Attorneys?
Based upon our post-Booker experience – which covers the last 10 years – Booker has actually allowed judges to use their discretion in sentencing a defendant and what has actually resulted is defense attorneys being placed in a better position to argue that a defendant should be sentenced to less than guidelines.
In effect, Booker has allowed many defendants who would have otherwise received guidelines sentences that were well beyond the amount of jail time or supervision necessary to address the defendant’s criminal conduct.
Now, post-Booker, it is more common for a defendant who has defense counsel who takes the time to prepare a detailed sentencing submission to net the defendant a sentence below guidelines (and sometimes significantly below guidelines.)
In many instances, our firm has been able to obtain sentences of supervision or house arrest in lieu of imprisonment. This allowed these defendants to maintain major portions of their lives, their community contacts and their jobs while paying their debt to society.
What Does Booker Mean for Prosecutors?
Booker does not deny the government the opportunity to argue that criminal conduct should be considered by the judge as a reflection of the defendant’s character. It is the right of the prosecution to have the opportunity to seek this against a defendant based upon the individual defendant’s background and criminal conduct.
Learn more about federal sentencing hearings from a top-rated federal criminal defense attorney.