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Whether you pled guilty or went to trial, you will need a federal sentencing attorney to help guide you through the sentencing process.
Sentencing is the phase of a criminal case in which a judge decides on the appropriate punishment for a person who has been convicted of a crime. In virtually all criminal cases, it is the judge’s, not the jury’s, job to decide on the appropriate sentence to impose. A criminal sentence can include any of the following punishments:
With regard to the factors a judge considers when deciding on a criminal sentence, the judge will typically begin with the recommended sentence provided in the criminal statute related to the crime for which the defendant was found guilty. In many jurisdictions, there may be mandatory minimum sentencing guidelines that the judge needs to follow.
The judge will also consider a number of case-specific, and defendant-specific factors. Those factors that suggest that the defendant deserves a harsher sentence are called “aggravating factors,” and those factors that suggest that the defendant deserves a lighter sentence are called “mitigating factors.” A few of those aggravating and mitigating factors include:
If you are in federal court, then the criminal sentencing process is dictated by Rule 32 of the Federal Rules of Criminal Procedure. This Rule lays out all of the steps that must be followed during the course of the criminal sentencing process. It serves as an important guide for prosecutors, defense attorneys, probation officials, defendants, and judges alike.
The discussion below covers all of the particulars with regard to sentencing in accordance with Rule 32, beginning with the “pre-sentence investigation.”
By law, once a person is found guilty of a crime, a probation officer in the Probation Department must conduct what is called a pre-sentence investigation. That investigation is a fairly extensive look at the facts and circumstances of the crime itself, as well as a detailed look into the defendant’s life, including the defendant’s criminal history, family life, upbringing, and economic circumstances.
The probation officer conducting the investigation will begin by reviewing records related to the case and the defendant, including court dockets, plea agreements, investigative reports, medical records, counseling and substance abuse treatment records, academic records, employment information, financial records, and more. In sum, the probation officer does a very careful evaluation of all aspects of the defendant’s life in a fairly in-depth review.
After reviewing all the necessary documents, the probation officer will interview the defendant. This interview is largely focused on the defendant’s history and circumstances. There will be inquiry about the defendant’s family, developmental history, familial and marital relationships, education, employment, health, substance abuse history, and financial situation. Also, the probation officer will inquire as to defendant’s feeling about the crime and will try to gauge the defendant’s level of remorse, if any.
The probation officer may also reach out to the prosecutor to gather additional information about the crime, the victim’s loss, and any other relevant documents related to the offense. The probation officer may also have additional interviews with victims, family members, employers, counselors, and others.
Once the probation officer completes the investigation, then he or she must compile a “pre-sentence investigation report.” The report is commonly referred to as the “PSI.” The PSI is a form document that typically runs about 10 to 30 pages in length. It is meant to capture all of the relevant information about the defendant and the crime so that the judge can make an informed decision on the proper sentence. In sum, the PSI is the main document on which the judge and the parties rely when it comes to sentencing. That is why both the defense attorney and the prosecutor have the opportunity to object to things in the report that they believe are inaccurate or should be corrected (discussed below).
There are five main sections to the PSI, as follows:
In federal court, the probation officer who prepared the PSI must give it to the defendant, the defense attorney, and the prosecutor at least 35 days before the sentencing hearing unless the defendant waives that minimum period (the time for a PSI may differ in state courts). Then, those parties all have an opportunity to object and ask for corrections to the report.
Under Rule 32, the parties have to state their objections within 14 days of receiving the PSI. Those objections can be to any part of the report, including factual information, Sentencing Guidelines ranges, and any policy statements in, or that should have been included in, the PSI.
After receiving the parties’ objections, the probation officer makes revisions as appropriate and must submit the revised PSI to the court and the parties seven days before the sentencing hearing.
In addition to the PSI, the judge will normally allow the prosecutor and defense counsel to file a “sentencing memorandum” before the hearing. This written submission is a way to get sentencing arguments to the judge before the judge has made up his or her mind on sentencing.
While not mandatory, it is wise for both parties to submit a sentencing memorandum because it is a clear, organized way to make a powerful argument for a particular outcome. Oral arguments on the day of sentencing are not always as effective because the judge has typically made a decision on sentence by that point.
As noted above, the judge who must decide a person’s sentence must consider a number of factors, including the nature of the crime and the defendant’s circumstances. Specifically, federal statute provides the judge with a list of factors that he or she must consider at 18 U.S.C. § 3553(a).
Section 3553(a) mandates that a judge must impose a criminal sentence that is “sufficient, but not greater than necessary” to comply with the reasons we have criminal sentencing; namely (i) retribution, (ii) deterrence, (iii) incapacitation, and (iv) rehabilitation.
Accordingly, the 3553(a) factors are as follows:
Factors To Be Considered in Imposing a Sentence – The court shall impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth in paragraph (2) of this subsection. The court, in determining the particular sentence to be imposed, shall consider—
The judge must also consider certain other statutes that may apply to sentencing. For example, in cases involving federal drug trafficking offenders, a prosecutor may file a request under 21 U.S.C. § 851 for an enhanced (i.e., harsher) sentence. Thus, the judge will also need to factor in those statutory-based requests during sentencing.
The judge is also called upon to review any applicable departures from the Sentencing Guidelines, which are normally contained in “policy statements” related to the Sentencing Guidelines. There are many such departures – either downward or upward – from the base level guideline recommendation, which a defense attorney and prosecutor would be wise to include in a sentencing memorandum.
For example, defense counsel may want to ask for a downward departure from the recommended sentencing guideline because the defendant gave “substantial assistance to authorities,” under policy statement §5K1.1. As another example, a defense attorney may request use of the “safety valve” law that authorizes a sentence below the statutory minimum for certain non-violent, non-managerial drug offenders with little or no criminal history.
Finally, a defendant or his counsel can ask for a “variance,” in addition to a departure. The difference is that a departure is normally a change from the guideline range when examining the provisions related to the Sentencing Guidelines. A variance, by contrast, changes from the guideline range when examining the provisions of the 3553(a) factors discussed above.
The sentencing hearing is the proceeding in which the criminal sentence is officially imposed. At this point, all of the reports and sentencing memoranda have been filed. This is the time when the defendant stands before the judge to hear the sentence.
All sentencing hearings follow the same procedure. That procedure is as follows:
This article provides a comprehensive overview of the criminal sentencing process. While some elements may differ slightly depending upon your jurisdiction, this primer will help you know what to expect if you are pleading guilty or were found guilty at trial in a criminal case.
For more information about getting representation for your sentencing hearing, we invite you to contact the Law Offices of Jeremy Gordon. We will zealously represent you during the sentencing phase of your case. Call us at 1-844-ATTY-NOW, or fill out our online contact form below.
After you have gone through sentencing, you still have some recourse. The Law Office of Jeremy Gordon specializes in post conviction relief. Click here to learn more about your options.
On Thursday April 15, 2021, Director Michael Carvajal Testified to the United States Senate Judiciary Committee. Director Carvajal testified on several topics including the state of the pandemic inside the Federal Bureau of Prisons, home confinement under the CARES Act, the state of programming under the FIRST STEP Act, and overcrowding concerns in relation to President Biden’s Executive order regarding the use of private prisons.
In Maumau, the 10th Circuit Joined the 2nd, 4th, 6th and 7th Circuits in holding that incarcerated persons could seek a compassionate release.
The FIRST STEP Implementation Act retroactively applies the 924(c) and 851 relief and also makes changes to the Safety Valve.
The United States Senate has bought forth a bill that would prevent courts from sentencing accused persons with acquitted conduct.