Sentencing Error Correction.

All federal sentencing errors can (or should) be remedied in some way, but the nature and timing of the error’s discovery dictate which remedy is available. For example, Federal Rule of Criminal Procedure 35(a) permits correction within fourteen days after sentencing when the sentence resulted from arithmetical, technical, or other clear error.

Similar to Rule 35(a), federal appellate notices of appeal must generally be filed “In a criminal case, a defendant's notice of appeal must be filed in the district court within 14 days after the later of: (i) the entry of either the judgment or the order being appealed; or (ii) the filing of the government's notice of appeal.” A timely appeal may be required to preserve the ability to seek correction of most judicial sentencing errors.

A federal plea agreement may waive the right to appeal, though most plea agreements to the right to appeal are subject to limited, widely recognized exceptions.

Clerical errors may be corrected by the trial court at any time, and even by the sentencing court after the judgment has become final. Corrections are available when the existing record has failed to properly reflect the “actual” judgment imposed.

Judicial sentencing errors generally require an appeal. If the judgment has become final (meaning any appeal rights have been waived or the time to appeal has expired), then correction will generally require a collateral proceeding under 28 U.S.C. § 2255.

Rule 35(b) motions are unique because they are initiated by the government. With Rule 35(b), the government files a motion to reduce the sentence when, after sentencing, the defendant provides substantial assistance in investigating or prosecuting another person. Such motions are based on substantial assistance in investigating or prosecuting another person.

Ultimately, correcting any sentencing error requires choosing the appropriate remedy. The type of error, the date of sentencing, and whether the issue was raised (preserved) on appeal, as well as whether the error had a substantial effect on the trial court’s sentencing judgment (prejudice), are all factors that a federal appellate defense attorney must carefully evaluate.

How Can a Defendant Fix a Guidelines or Presentence-Report Mistake Before Sentence Is Imposed?

Before imposing sentence, federal judges must calculate the applicable Guidelines range and consider this range, among other factors. They must determine the relevant Guidelines calculations for the correct offense level and criminal history category, which together determine a “zone” or “range” of permissible sentencing punishment. Correct sentencing calculations require careful consideration of various Guidelines enhancements, reductions, and “relevant conduct,” which can include conduct charged beyond the offense(s) of conviction.

Are Presentence Reports Final?

Presentence reports are important, but they are not final and binding. Defendants have significant opportunities to challenge (or correct) perceived mistakes (i.e., “fact errors”). For example, under Federal Rule of Criminal Procedure 32, defendants are entitled to “The probation officer must give the presentence report to the defendant, the defendant's attorney, and an attorney for the government at least 35 days before sentencing unless the defendant waives this minimum period.” and “Within 14 days after receiving the presentence report, the parties must state in writing any objections, including objections to material information, sentencing guideline ranges, and policy statements contained in or omitted from the report.... At sentencing, the court... may, for good cause, allow a party to make a new objection at any time before sentence is imposed.” At sentencing, the court must rule on each disputed portion of the presentence report or determine that a ruling is unnecessary because the matter will not affect sentencing or will not be considered. Thus, before sentencing, defendants (and their counsel) must: (i) review the PSR for accuracy; (ii) state in writing any objections and provide them to opposing counsel and the probation officer; (iii) write the court which reductions or credits are being erroneously left off; and (iv) discuss any and all concerns with the government’s counsel. These preliminary steps are necessary to ensure the judge is in possession of all pertinent information before making final sentencing decisions.

What is the Proper Procedure for Remedying a Sentencing Error?

Correcting a federal sentencing error requires choosing the right remedy, including clerical correction, Rule 35(b) reduction, appeal, or collateral attack. The appropriate remedy is chosen based on the error type, the date of the error’s discovery, preservation issues, and prejudice.

When Does a Sentencing Error Justify Appellate Resentencing Rather Than Affirmance?

Appellate appeals involving federal sentencing claims can result in either affirmance or reversal. As in any other type of appeal, a reversal of a sentencing error may result in remand for further sentencing proceedings at the district-court level. Even though defendants may appeal their sentences without challenging their underlying convictions, they can still challenge any and all errors that they think result in an unlawful or unreasonable sentence. Sentencing appeals go from the district courts to the U.S. court of appeals in the relevant circuit.

The U.S. courts of appeals examine the procedural reasonableness and the substantive reasonableness of the sentencing judgment. Federal appellate review occurs under an “abuse-of-discretion” standard, and “abuse of discretion” has the meaning used in other contexts.

Errors that rise to the level of “abuse of discretion” for sentencing purposes include: (i) Errors that result in sentencing errors. A sentence above the Guidelines is not per se illegal or unreasonable. However, imposing an upward or downward variance is not an abuse of discretion merely because it is based on relevant factors; the sentence must be evaluated under the abuse-of-discretion standard, with due deference to the district court’s consideration of the § 3553(a) factors. While defendants may be entitled to a reduction, a court’s sentencing decisions may not necessarily warrant a remand for resentencing. Instead, the court of appeals may affirm the sentence while admonishing the district court regarding future sentencing errors.

An appeal may not necessarily lead to any substantive change in sentencing. Depending on the type of claim, errors can be subject to harmless-error review or a “plain error” standard, and remand only if the error prejudiced the defendant and affected the sentencing outcome.

While appellate review is often a worthwhile endeavor, many defendants may seek review by petitioning for a writ of certiorari to the U.S. Supreme Court if their case involves an important issue of federal law that is unsettled.

As we have discussed, the appropriate remedy for a federal sentencing error involves a range of considerations, including error type, timing, preservation, and prejudice. These considerations may lead to one of a few different remedies; and, in most cases, multiple factors will overlap.

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What Does Rule 35 Actually Change After a Federal Sentence Is Imposed?

Rule 35(a) is the procedural rule that applies to technical, mathematical, or other clear sentencing errors. But Rule 35(a) does not ordinarily reopen a sentence for the purpose of discretionary reconsideration or other similar reasons.

On the other hand, Rule 35(b) is a procedural rule that permits the government to request that the district court “reduce” (i.e., grant a downward departure from) a defendant’s sentence. Specifically, Rule 35(b) authorizes reductions when, after sentencing, the defendant has provided “substantial assistance” in investigating or prosecuting another person.

Usually, Rule 35(b) reductions occur within a year after sentencing. But a Rule 35(b) motion filed more than one year after sentencing is permitted only in the circumstances specified in Rule 35(b)(2), not merely because the defendant remained in federal custody during that year. This is common in cases involving a high number of defendants, as it can take years to prosecute all involved parties, and substantial assistance may not be fully “quantifiable” until the later prosecutions are resolved.

Rule 35(b) gives the district court authority to reduce the sentence, including below the minimum sentence established by statute. As a result, Rule 35(b) can be used to authorize reductions below otherwise applicable mandatory minimum sentences, federal sentencing guidelines (below the “relevant” range), or statutory minimum sentences.

Ultimately, identifying the correct remedy for a sentencing error involves considering a number of factors, including the type of error, the timing of the discovery, the issues of preservation, and the impact on the sentencing judgment. Determining how to correctly pursue these options is an important part of sentencing error correction and the broader sentencing appeal process.

What Can a § 2255 Motion Still Challenge After the Appeal Deadline?

We can pursue federal collateral sentencing challenges in cases sentenced in violation of the Constitution or laws of the United States. Many of these challenges proceed under 28 U.S.C. § 2255, which applies in cases that are “in custody in violation of the Constitution or laws of the United States.” As a result, a § 2255 motion can be filed in cases involving:

• Sentences that are unconstitutional
• Sentences that were imposed without jurisdiction
• Sentences that go beyond statutory limits (e.g., statutory maximum sentence or sentencing ranges)
• Sentences that are otherwise subject to collateral attack (e.g., a sentencing error that qualifies as a fundamental defect)

Many federal judges treat § 2255 motions as the only procedural mechanism for challenging sentences (or sentencing reductions) at the collateral level. While this is true for most cases, however, collateral appeals can also proceed under certain conditions under the All Writs Act, 28 U.S.C. § 1651. While not often used, federal courts have occasionally used the All Writs Act in the sentencing context.

As a point of clarification, it is important to note that most (if not all) federal plea agreements waive not only a defendant’s right to a direct appeal, but also a defendant’s right to pursue collateral attacks. However, this is subject to several widely recognized exceptions.

In most cases, if a defendant is sentenced to an unauthorized sentence, the proper procedure will be to file a motion to vacate the invalid portion of the sentence. After the court has vacated the invalid portion of the sentence, the court must promptly determine the appropriate sentencing range and impose a correct and authorized sentence.

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