How Federal Criminal Lawyers Prepare Sentencing Submissions

How Federal Criminal Lawyers Prepare Sentencing Submissions

When a federal criminal case reaches the sentencing phase, the defense lawyer’s job is to advocate for the lowest possible sentence for their client. This involves extensive preparation and strategic planning to present persuasive arguments to the judge. I talked with several experienced federal criminal defense attorneys to get insight into how they approach sentencing advocacy.

Understanding the Federal Sentencing Process

The first step is understanding the overall federal sentencing process and guidelines. After a conviction through plea bargain or trial, a probation officer will conduct a presentence investigation and prepare a report for the judge. This presentence report (PSR) contains information on the defendant’s background, criminal history, and other factors relevant to sentencing. It also calculates an advisory sentencing range under the U.S. Sentencing Guidelines – although judges have discretion to depart from the guidelines.

Defense lawyers review the PSR for accuracy and object to any erroneous facts or guideline calculations. According to attorney James Felman, “The sentencing process really begins with the drafting of the presentence report.” Fixing errors at this stage can significantly impact the final sentence.

In most federal cases, both the prosecution and defense submit sentencing memorandums to argue their positions on an appropriate sentence. They also file responses countering the other side’s arguments. At the sentencing hearing itself, both sides present oral arguments, call witnesses if needed, and the defendant has a right to make a statement.

Crafting a Persuasive Sentencing Memorandum

The sentencing memo is the defense lawyer’s key opportunity to influence the judge’s sentencing decision. Veteran federal criminal defense attorney Gerald Shargel explains, “An effective sentencing memorandum must not only be persuasive, but it must also appeal to the judge’s discretionary authority to fashion a reasonable sentence based on the unique facts and circumstances of the case and the history and characteristics of the defendant.”

There are several key elements in an effective sentencing memo:

• Detail the defendant’s positive background, work history, family circumstances, charitable deeds, health issues, or other mitigating factors.
• Note specific assistance provided during the prosecution, such as early acceptance of responsibility.
• Argue for a below-guidelines sentence and explain why it would be sufficient punishment.
• Compare and distinguish relevant precedent cases with higher and lower sentences.
• Offer alternatives to incarceration like home confinement or community service.

At the same time, the memo should acknowledge the seriousness of the offense and show respect for the law. As attorney Daniel Burnham advises, “Adopting an aggressive or dismissive tone is not likely to persuade most judges.”

Using Sentencing Experts

Given the complexities of federal sentencing guidelines and practices, defense lawyers often engage sentencing experts to assist them. These consultants analyze the guidelines, conduct case research, draft sections of the sentencing memo, and help formulate strategy.

According to attorney James Felman, “An experienced sentencing consultant can often find persuasive arguments that an attorney new to federal practice might overlook.” He says sentencing specialists help “level the playing field” against seasoned prosecutors.

The Importance of Client and Family Letters

Another key element of a sentencing memo are letters from the defendant, family, friends, employers, clergy, and other supporters. These help humanize the defendant and provide firsthand accounts of positive attributes and deeds. Experienced federal defense lawyer Daniel Burnham says such letters are “often very effective in persuading the court.”

The defense lawyer provides guidance on the most helpful content and themes for such letters. They are included as exhibits to the sentencing memo. However, the letters should use the writers’ own words and not appear scripted. According to attorney Gerald Shargel, “The most persuasive letters are always personal, sincere, and highlight aspects of the defendant’s life unknown to the court.”

Addressing the Victim Impact Statement

Where there are identifiable victims in the case, they have a right to submit a victim impact statement to the court. This describes how the crime affected them financially, physically, and psychologically. The defense sentencing memo must acknowledge the harm done and show empathy. However, as attorney James Felman advises, it should also “note any circumstances indicating the defendant did not directly intend to cause harm.”

Sentencing Hearing Arguments

In their oral arguments at the sentencing hearing, defense lawyers summarize key points from the sentencing memo. But they also respond to new issues raised in the prosecution’s memo and presentation. Attorney Daniel Burnham notes, “It is important to listen carefully to the prosecutor’s sentencing argument and rebut any points that are overstated or incorrect.”

If the judge indicates concern about particular issues, the defense lawyer highlights mitigating factors and precedent cases related to those issues. They also remind the judge about their discretion to depart from the guidelines. Experienced federal sentencing attorney Gerald Shargel says, “Even if the Sentencing Guidelines call for a harsh sentence, it is always worth arguing for leniency and a below-Guidelines sentence.”

The Defendant’s Allocution

At sentencing, the defendant has a right to make a personal statement to the judge called an allocution. The lawyer prepares them for this critical opportunity. Gerald Shargel advises defendants “to show sincere remorse and responsibility, apologize directly to any victims, and ask for mercy.” He says an allocution given from the heart can sometimes influence a judge when legal arguments alone do not.

Creative and Tenacious Advocacy

Preparing an effective sentencing strategy requires creativity as well as tenacity. Mr. Shargel says, “You have to dig deep to find persuasive arguments, and never stop looking for ways to show the judge that your client is more than just the crime they committed.” While the prosecution emphasizes punitive factors, the defense must highlight any glimmers of humanity that could lead to a more lenient sentence.

Experienced federal criminal lawyers combine deep knowledge of the sentencing process with persuasive writing, thorough preparation, and compassionate advocacy. By humanizing clients and presenting mitigating factors in the most compelling light possible, they seek to obtain the most favorable outcome at sentencing.

References

The New York Times

Burnham & Gorokhov PLLC

Prison Professors

Page Pate Law Firm

Compliance Mitigation

The Federal Criminal Attorneys

Nebraska Criminal Defense Attorneys