Jeremy Gordon

After the PSI, the sentencing guidelines will dictate how the sentencing process begins.

federal sentencing, psi

Sentencing Memorandum

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 guideline suggestions and 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.

The Hearing

The judge officially imposes the criminal sentence at the sentencing hearing.  By this time, all parties have filed all necessary reports and sentencing memoranda. The judge will also have a clear idea of the applicable sentencing guidelines. During this time, the defendant stands before the judge to hear the sentence. 

The Procedure:

  • Arguments over the sentencing guideline range. The first part of the hearing focuses on the appropriate sentencing range based on the Sentencing Guidelines. Typically, prosecutors and defense attorneys discuss enhancements and downward departures that should apply.

  • The testimony of witnesses for both government and defense. In some cases, but not all, the judge will allow witnesses to testify on the impact of the crime. Witnesses can be victims of the crime, and/or their families. They could also include people vouching for the defendant’s character.

  • The argument over the appropriate sentence. After witnesses, if any, have testified, the attorneys give an argument about sentencing. Normally the defense attorney goes first, and then the prosecutor follows.

  • Allocution of the defendant. After the arguments of counsel, the judge gives the defendant the right to speak. During this time, the defendant can address the judge directly and talk about remorse for their actions. Importantly, the judge always has an interest in seeing whether a defendant shows remorse. In fact, remorse can significantly impact the sentence.

  • Imposing sentence. Following these events, the judge takes control of the hearing to announce the sentence. Typically, the judge will speak at some length about the reasons why they decided on the sentence, including background, suggestions, and sentencing guidelines.

  • Explaining appeal rights. Finally, after the judge announces the sentence, they conclude the hearing by informing the defendant of the right to appeal and the possible waiver of the right to appeal in certain circumstances.

Sentencing Considerations

§ 3553(a) Factors

As noted above, the judge who decides a person’s sentence must consider a number of factors. 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 guidelines; namely 

(i) retribution, 

(ii) deterrence, 

(iii) incapacitation, and 

(iv) rehabilitation.


Factors to be Considered

  1. the nature and circumstances of the offense and the history and characteristics of the defendant;

  2. the need for the sentence imposed—

    • A) to reflect the seriousness of the offense;

    • B) to deter criminal conduct;

    • C) to protect the public; and

    • D) to provide the defendant with needed correctional treatment in the most effective manner;

  3. the kinds of sentences available;

  4. the kinds of sentence and the sentencing range established for—

    • A) the applicable category of offense;

    • B) in the case of a violation of probation or supervised release, the applicable sentencing guidelines or policy statements . . . ;

  5. any pertinent policy statement;

  6. the need to avoid unwarranted sentence disparities among similar cases;

  7. the need to provide restitution to any victims.

Statutory Departures

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.

Additionally, the judge must review any applicable departures from the Sentencing Guidelines. Normally, these are contained in “policy statements” related to the Sentencing Guidelines. 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. 

Finally, a defendant or his counsel can ask for a “variance,” in addition to a departure. As opposed to a departure, a variance, changes from the guideline range when examining the provisions of the 3553(a) factors discussed above. These departures play an important role in the sentencing process.

After and during sentencing, certain factors can help you to mitigate your sentence. Click here to learn about Rule 35 cooperation during the sentencing process.