Getting Ready for a Federal Sentencing Hearing.

Sentencing preparation should begin as early as possible, often months before the scheduled sentencing hearing. While sentencing typically occurs within months of a defendant’s guilty plea or trial conviction, this gives plenty of time to:

• Verify every material factual statement in the defendant’s Pre-Sentence Investigation Report (PSR);
• Develop and present an effective mitigation strategy; and
• Establish a strong record that gives the sentencing judge a compelling, independent reason to impose a more favorable sentence.

What Happens During Federal Sentencing?

As with the preceding steps, sentencing is just one more step in the larger federal sentencing process. In most cases, the process begins when a defendant signs a written plea agreement. A district judge then must accept the guilty plea, after which the defendant’s PSR is prepared by the Probation Office. Once the defendant is notified of the sentencing date, the hearing will be held in the presence of the prosecutor.

How Is My Federal Prison Facility Determined?

After sentencing is complete, the federal sentencing court hands off custody of the convicted defendant to the Federal Bureau of Prisons (BOP). Then, BOP staff assign the defendant to a particular prison facility. This facility designation depends on the defendant’s security level, the facility’s capacity, staffing levels, and other administrative needs. Defendants can (and should) request placement at facilities close to supportive family and friends.

How Should I Prepare for the Presentence Interview?

In most cases, the U.S. Probation Office will interview the defendant while preparing the defendant’s PSR. It is essential that defense counsel attend the defendant’s presentence interview, and that the defendant fully and accurately answer counsel’s comprehensive life-history questions. These are the critical steps to preparing for the presentence interview:

1. Preparing for the Presentence Interview

While reviewing all applicable law, the defendant’s counsel should review the likely presentence interview topics and any disputed conduct before the interview. This allows the defendant’s counsel to ask additional clarifying questions, prepare the defendant for the interview, and raise pertinent issues with the probation officer.

2. Verifying Financial Disclosures

Prior to the presentence interview, defense counsel should also verify the defendant’s financial disclosures against the defendant’s tax returns, bank records, debts, credit reports, property appraisals, ownership documents, and other related financial documentation. This is essential for ensuring the accuracy of the defendant’s PSR and avoiding additional scrutiny from federal prosecutors, federal judges, the Bureau of Prisons, and other federal authorities.

3. Responding to the Probation Officer’s Questions

During the defendant’s presentence interview, defense counsel needs to ensure that:

• The probation officer does not try to get the defendant to admit to irrelevant or immaterial conduct;
• The defendant avoids making unnecessary admissions that expand the defendant’s relevant conduct and further increase the defendant’s advisory range;
• The defendant does not answer the probation officer’s questions in a way that raises new issues that are not relevant to the case and could potentially lead to additional charges;
• The defendant does not answer the probation officer’s questions in a way that allows the prosecutor to argue for a more serious sentencing offense level; and
• The defendant does not make any materially false statements.

4. Asserting the Defendant’s 5th Amendment Right Against Self-Incrimination

As necessary, the defendant’s counsel must assert the defendant’s 5th Amendment right against self-incrimination, and other constitutional protections and defenses. This is especially critical in cases involving the alleged commission of a number of federal offenses where the defendant’s counsel may be able to avoid a sentence under the USSG by ensuring that the probation officer does not include the alleged criminal conduct in the defendant’s PSR.

What Are the Consequences of the Presentence Interview?

The presentence interview has consequences that reach far beyond the defendant’s PSR.

• Unnecessary Interview Admissions. As discussed above, making unnecessary admissions in the presentence interview can expand the defendant’s relevant conduct and result in a higher advisory range under the USSG.
• Materially False Interview Statements. Materially false statements made in the presentence interview can not only disqualify defendants for a sentencing reduction under USSG §3E1.1 based on an acceptance of responsibility for the offense, but these statements could also potentially lead to additional charges for making a materially false statement in connection with a federal offense.
• BOP Information. Finally, information gathered in the presentence interview is passed to the Bureau of Prisons. Once the defendant’s sentence is executed, the Bureau of Prisons will use this information for its security classification and program assignment decisions.

When Can I Challenge Mistakes in the Presentence Investigation Report (PSR)?

Before the sentencing hearing, the defendant’s counsel will receive a copy of the PSR from the Probation Office. Reviewing and challenging the PSR is a critical aspect of the sentencing process. These objections may challenge factual errors, incorrect calculations of the Sentencing Guidelines, and other material inaccuracies or omissions that require correction before the defendant’s sentencing hearing.

When Are Objections to the PSR Due?

Under Federal Rule of Criminal Procedure 32(i)(1), the probation officer must disclose the PSR to the defense at least 35 days before the defendant’s sentencing hearing unless the defendant waives this period. Under Federal Rule of Criminal Procedure 32(f)(1), the parties must state their written objections to the PSR within 14 days after receiving it. After filing these objections, probation has the opportunity to correct the PSR and provide the defendant’s counsel with an amended PSR.

When Must the Probation Office Submit the PSR and Addendum?

Under Federal Rule of Criminal Procedure 32(g), the probation officer must submit the PSR and an addendum containing any unresolved objections to the court and to the parties at least seven days before the sentencing hearing. The filing deadline for a defendant’s sentencing memorandum varies, and we recommend checking the local rules or the district judge’s scheduling order for the specific deadline.

When Will the Sentencing Judge Rule on PSR Objections?

Under Federal Rule of Criminal Procedure 32(i)(3)(B), the district judge is required to rule on any material dispute concerning the PSR or find that a ruling is unnecessary. The district judge’s ruling is the final word on any unresolved PSR objections. This is why it is so important to have the legal team at Spodek Law Group present and ready to make informed arguments at sentencing.

What If the District Judge Doesn’t Rule on My PSR Objections Before Sentencing?

If the district judge doesn’t rule on the defendant’s PSR objections prior to sentencing, our team at Spodek Law Group will argue our client’s position at the sentencing hearing, and we will ensure that the sentencing judge’s ruling is included in the judgment of conviction. We know the importance of challenging the PSR and ensuring a fair sentencing judgment.

How Is My Federal Guidelines Range Calculated?

The U.S. Sentencing Guidelines (USSG) provide formulas for sentencing judges to determine defendants’ presumptive federal sentencing ranges. While the USSG can be extremely complex, it generally involves four key steps:

• Step 1: Determine the applicable Sentencing Guidelines Manual;
• Step 2: Calculate the offense level;
• Step 3: Calculate the criminal history level; and
• Step 4: Determine the defendant’s Guidelines range.

Here is a brief overview of these steps:

1. Determining the Applicable Sentencing Guidelines Manual

Under USSG §1B1.11, “The Sentencing Guidelines Manual in effect on the date of sentencing generally applies. When application of the Sentencing Guidelines Manual in effect on the date of sentencing would present an ex post facto problem, the Sentencing Guidelines Manual in effect on the date the offense was committed applies.”

2. Calculating the Offense Level

Calculating the offense level under the USSG involves a variety of different factors. In general, this occurs in three stages:

• Determining the defendant’s offense guideline and applicable base offense level;
• Determining any modifications to the base offense level based on the defendant’s specific offense characteristics;
• Determining whether the defendant’s role in the alleged offense, victims’ sensitivity, and other factors warrant a downward adjustment.

3. Calculating the Criminal History Level

Under USSG Chapter Four, “A defendant’s criminal history is evaluated by calculating the defendant’s criminal history points and then determining the defendant’s criminal history category.”

4. Determining the Defendant’s Guidelines Range

Once the defendant’s offense level and criminal history level are both determined, the Sentencing Guidelines provide formulas for determining the defendant’s Guidelines range.

Which Guidelines Calculations Do I Need to Challenge in the PSR?

In a PSR, the probation officer will calculate the defendant’s offense level and criminal history points. The probation officer’s offense level calculation can be the source of the defendant’s federal prison sentence. If the probation officer improperly increases the offense level, this will significantly impact the Guidelines range. It is important to challenge all pertinent aspects of the offense level calculation and criminal history points calculation when challenging the PSR.

What Is a “Safe Harbor” Federal Sentencing Range?

If a defendant’s offense level and criminal history points both fall within a range that doesn’t expose the defendant to the possibility of federal imprisonment, then this range is referred to as the defendant’s “safe harbor” sentencing range. This can be a compelling and strong goal that the defense team at Spodek Law Group will seek to pursue on behalf of our clients, and we will aggressively pursue this goal by challenging any pertinent aspects of the PSR to argue for the lowest possible federal offense level and criminal history points.

Spodek Law Group, led by managing partner Todd Spodek, defends clients in federal criminal and white collar matters.

What Can Limit the District Judge’s Sentencing Options?

While a sentencing judge has broad discretion, there are factors that can limit a judge’s sentencing options. As a result, it is important for defendants in federal cases to work with their federal sentencing counsel at Spodek Law Group to ensure that the district judge understands the full extent of their sentencing options. These factors include:

1. Departures vs. Variances

When sentencing within the Guidelines, a judge’s deviation from the Guidelines range is known as a “departure.” Departures can be the result of either a downward or upward calculation under the USSG. When a judge sentences outside the Guidelines range, this is called a “variance.” Variances are based on the statutory factors listed in 18 U.S.C. §3553(a).

Sentencing under Rule 11(c)(1)(C) is similar to a variance in that the defendant’s sentence is not subject to the Sentencing Guidelines and the district judge does not have discretion to impose a sentence above the Guidelines range, if applicable. However, this is not technically referred to as a variance.

2. Mandatory Minimums and Statutory Maximums

Mandatory minimums and statutory maximums impose rigid boundaries on a sentencing judge’s ability to determine a fair and just sentence. Depending on the defendant’s circumstances, it is imperative to ensure that the district judge is aware of the applicable mandatory minimums and statutory maximums.

3. U.S.S.G. §5K1.1 and U.S.C. 18 U.S.C. §3553(e) Motions

A government motion for a sentence below the statutory minimum under USSG §5K1.1 does not on its own authorize a district judge to sentence a defendant below the statutory minimum. In order to authorize a sentence below the statutory minimum, the government must move for a sentence below the statutory minimum under 18 U.S.C. §3553(e).

4. 18 U.S.C. §3553(f) Safety Valve Relief

Section 3553(f) is commonly referred to as the “safety valve” in federal sentencing. This relief is available for defendants charged with certain drug offenses, provided that they meet certain eligibility requirements. If a defendant is eligible for safety valve relief, then the district judge has the authority to sentence the defendant below the applicable statutory minimum.

5. 18 U.S.C. §924(c) Consecutive Sentence Requirement

Defendants that receive a sentence of imprisonment under 18 U.S.C. §924(c) must receive a consecutive sentence. As a result, a defendant who is convicted of other federal offenses in addition to violating 18 U.S.C. §924(c) will be ineligible to run concurrent sentences for all offenses.

6. Rule 11(c)(1)(C) and Rule 11(c)(1)(B) Plea Agreements

If the defendant’s plea agreement is a Rule 11(c)(1)(C) plea agreement, and it is accepted by the district judge, this agreement binds the district judge and limits his sentencing options. A Rule 11(c)(1)(B) plea agreement does not bind the district judge.

How Do I Build a Convincing Mitigation Record in Federal Sentencing?

Building a convincing mitigation record is the most complex aspect of federal sentencing preparation. While it is a bit difficult to describe in detail, it is best done by engaging experienced federal sentencing counsel at Spodek Law Group These are some general examples of evidence that can be used to build a convincing mitigation record in federal sentencing:

• Interviewing Relatives, Employers, and Other Mitigation Witnesses. Many times, it is possible to identify individuals in the defendant’s life who can speak to the defendant’s character and the defendant’s commitment to leading a law-abiding life in the future. These mitigation witnesses will speak to the defendant’s positive character traits, their familial relationships, and the defendant’s ability to find productive employment.
• Documenting Mental Illness, Substance Misuse, and Childhood Abuse. Experts can document the defendant’s mental illness, the defendant’s history of substance misuse, or the defendant’s history of childhood abuse. Documenting the defendant’s life experiences and current circumstances are critical aspects of building an effective mitigation record.
• Developing Employment and Treatment Plans. Even if the defendant has limited work history, employment plans can be an effective way to demonstrate the defendant’s commitment to leading a productive, law-abiding life in the future. Similarly, a treatment plan can be used to demonstrate the defendant’s commitment to address any underlying medical, psychological, or addiction issues.
• Corroborating Mitigation Claims with Contemporaneous Records. As we explain in the mitigation section above, corroborating evidence plays a major role in ensuring a convincing record. Contemporaneous records can corroborate mitigation claims regarding the defendant’s medical treatment, employment, financial support, and other rehabilitation efforts.

How Will the Sentencing Judge Weigh the Mitigation Evidence I Present?

With a variety of mitigation evidence and a robust mitigation record in hand, federal sentencing counsel will then present a compelling argument for a favorable sentence based on the relevant mitigating factors. Our team at Spodek Law Group will ensure that the mitigation evidence we present is tied to the relevant mitigating factors under 18 U.S.C. §3553(a). This will ensure a convincing argument, and we will only present mitigation evidence that supports one or more of the factors listed in 18 U.S.C. §3553(a).

What Should Be Included in a Character Letter for Federal Sentencing?

While each letter should be unique, effective character letters generally have several key elements in common:

• Firsthand Examples. Useful character letters provide firsthand examples of the defendant’s positive character traits. Letters that contain unsupported praise or are primarily focused on demanding a favorable sentence in general, do not typically assist the defendant at sentencing.
• Awareness of the Conviction. The character writer should acknowledge awareness of the defendant’s conviction and the defendant’s involvement in the alleged criminal conduct. Character writers should not dispute the defendant’s guilt, as this may render their letter entirely moot in the eyes of the judge.
• Relevance. The letter should focus on providing insights that are relevant to the federal sentencing factors under 18 U.S.C. §3553(a).

What Should I Say to the Judge at My Federal Sentencing Hearing?

Along with your lawyer presenting the sentencing memorandum on your behalf, you may have an opportunity to address the judge directly before your federal sentencing hearing is finished. If you choose to say anything, you must decide with your lawyer what will be most effective to say. While the right to allocate is yours, you have the right to allocate in addition to having your federal sentencing lawyer present, but you are not required to say anything, if you feel uncomfortable or if you believe that anything you say is not to your benefit. This is generally referred to as your “allocution.” Examples of what some defendants choose to say during their allocution include:

• Expressions of Remorse for Their Offenses
• The Lessons They Have Learned
• Their Plans to Avoid Future Public Risks
• How They Will Address Any Underlying Health, Mental Health, Addiction, and/or Other Needs

What Should I Avoid Saying to the Judge at Sentencing?

While you and your lawyer should prepare what you want to say, it is equally important to determine what you should avoid saying as well. If you are planning to allocate, you will need to be careful to avoid saying:

• Anything that Contradicts Preserved Objections to Your PSR;
• Anything that Admits to the Disputed Relevant Conduct Discussed with Your Lawyer;
• Statements that Could Affect Your Case in Other Related Criminal, Civil, Immigration, Tax, Regulatory, or Other Proceedings;
• Statements That Could Be Considered Admission of New Criminal Conduct; and
• Information That Could potentially Be Considered Undermining Your Credibility in Later Proceedings.

How Does Remorse Affect Your Case?

A common question is how expressing remorse during sentencing impacts the defendant’s sentence. While expressing genuine remorse can be a positive for sentencing, by itself, this can never ensure a more favorable sentence for the defendant. Remorse is only one factor in the Sentencing Guidelines’ calculations for acceptance of responsibility under USSG §3E1.1. If you are interested in trying to express remorse at your sentencing hearing, discuss this with your federal sentencing lawyer.

Speak With a Federal Defense Lawyer

If you are dealing with any part of what this article describes, the next step is a conversation with a lawyer who handles these cases. Spodek Law Group is a second generation criminal defense firm practicing since 1976, representing clients nationwide from offices in New York, Brooklyn, Queens and Los Angeles. Call 212-300-5196 to speak with our team.