The Presentence Report and Its Weight at Sentencing.

# What Is a Presentence Report (PSR) and Why Does It Matter? ### What Is a Federal Presentence Report? A federal presentence report (PSR) is a document that is prepared after a defendant has been found or pleaded guilty, but prior to sentencing. A United States Probation Officer writes the report at the federal court’s order, and it often includes offense- and background-related facts as well as information provided by the defendant. ### Why Does the Presentence Report Matter? Due to its implications for sentencing, the presentence report can significantly affect a defendant’s life and future. The report helps the judge apply the Federal Sentencing Guidelines, and it can also serve to preserve important mitigation evidence, allowing it to be taken into account when deciding a defendant’s sentence. However, an inaccurate federal PSR can have serious negative effects; for example, it can lead to an overly harsh sentence, placement in a high-security prison, or denial of a relevant rehabilitative program. ### Who Has Access to a Federal Presentence Report? A federal presentence report generally remains confidential. Unlike the criminal defendant’s sentencing judgment, which becomes part of the public record, the federal PSR is accessible primarily to the judge, the U.S. Attorney’s Office, and the defendant’s counsel. Third-party access is very strictly limited and governed by controlling court procedures, and access by third parties typically requires the judge’s approval. ### Can Defendants Do Anything if Their Federal PSR Is Inaccurate or Incomplete? Yes, defendants can (and should) correct inaccuracies in their PSRs. Because the probation officer’s account is generally presumed to be correct in the absence of correction, prompt intervention is necessary. At Spodek Law Group, we have experience working with our clients’ prior counsel, with probation offices, and with sentencing judges to ensure that the PSR accurately reflects all pertinent facts. ## Does Every Criminal Case Require a Presentence Report? ### Do All State Cases Require Presentence Reports? Depending on the jurisdiction, certain state cases may not require a presentence investigation or report. To evaluate your chances of avoiding a presentence investigation or report, you should reach out to a state-level criminal defense attorney in your area. Due to the wide range of terminology, contents, disclosure rights, and deadlines, it is also important to know what information to provide to your defense lawyer. ### Are Federal Presentence Reports Required? Generally, federal courts are required to order presentence investigations and the preparation of presentence reports. Under Rule 32(c)(1)(A) of the Federal Rules of Criminal Procedure, “the court must instruct the probation officer to prepare a presentence investigation report” before sentencing. While there are instances where the court can dispense with the requirement to prepare a presentence report under Rule 32(c)(1)(A)(ii), it must make a finding that the PSR is unnecessary and explain its reasoning. ### Are Federal Presentence Investigations Required for Felony Crimes? Absent the imposition of a presentence investigation or report by the court, federal criminal defendants generally cannot demand one. Federal presentence investigations are not limited to felony cases; regardless of the nature of the offense and the nature of the defendant’s prior record, federal courts have the authority to investigate presentence matters in all cases. ### Are Federal Presentence Reports Permitted in Any Stage Other than Sentencing? In federal courts, presentence investigations and reports are generally only permitted after the defendant has been found or pleaded guilty. Under Rule 32(e)(1) of the Federal Rules of Criminal Procedure, absent the written consent of the defendant, it is prohibited to submit a presentence investigation report before a defendant’s guilt is established by plea or verdict. ## What Information Matters Most in a Federal PSR? ### Part A: Offense Part A commonly covers offense conduct and includes pertinent information to support sentencing calculations in federal court. While the offense section can include allegations and facts from the defendant’s indictment, guilty plea, or verdict, it can also include any “relevant conduct” that is related to the offense, even if the defendant was not charged or convicted of a separate crime. ### Part B: Criminal History Part B is commonly dedicated to the defendant’s criminal history. Its contents typically include: - A discussion of the defendant’s prior arrests, citations, and convictions (if any); and

• A discussion regarding criminal-history scoring under the F.S.G. ### Part C: Background Part C is commonly used to describe the defendant’s personal and family background. ### Part D: Sentencing Part D generally addresses the federal sentencing guidelines. It typically states the guideline range as well as the statutory penalties. ### Offense Conduct and Criminal History Are Most Important Due to their impact on sentencing, the defendant’s offense conduct and criminal history are generally the most critical aspects of a PSR. Even when the probation officer’s report contains little to no inaccuracies in a defendant’s background section, inaccuracies in the PSR’s discussion of offense conduct and criminal history can lead to an unwarranted sentence. ### The Guidelines Calculation The calculations in the PSR regarding a defendant’s federal offense level and criminal-history category together produce a guideline range. Under the F.S.G., this guideline range (if one applies) is highly influential for the presiding judge when determining a defendant’s sentence, and it can also limit a judge’s ability to consider various forms of leniency. ### Offense Conduct May Include Conduct Not Imputed to Criminal Guilt In addition to addressing the offenses for which the defendant has been found guilty, the PSR can also address “relevant conduct.” Under the F.S.G., “relevant conduct” can include conduct that, although not charged or proven beyond a reasonable doubt, is “relevant to the sentencing guidelines calculations.” Because a defendant’s federal offense level and criminal-history category calculations both rely on relevant conduct, this can have significant implications for the overall calculated guideline range. ## How should I prepare for the probation interview? ### What Information Will the Probation Officer Collect During My PSR Interview? During your presentence report interview, the probation officer will gather information regarding several different aspects of your life, including: - Your personal and family history;
• Your history of substance use;
• Your educational background;
• Any mental health conditions or other diagnoses;
• Your present financial status;
• The nature and circumstances of your employment, and,
• The nature and extent of your criminal conduct. ### What Steps Can I Take to Prepare for My PSR Interview? Prior to your PSR interview, you and your defense counsel can work together to identify and prepare all relevant documentation. This includes your financial records, educational and professional credentials, and medical and psychiatric records, if any. Preparing and organizing these documents beforehand can inform the factual record in your presentence report and potentially reduce the possibility of factual inaccuracies during the interview. ### Can My Defense Counsel Attend the Interview? Yes, your defense counsel can attend the interview. Under Rule 32(c)(2) of the Federal Rules of Criminal Procedure, the probation officer must notify your attorney of the interview date and, upon request, must allow the attorney a “reasonable opportunity to attend.” At Spodek Law Group, we believe that having defense counsel present at your PSR interview is vitally important to ensure that your interview is properly conducted. ### Can I Try to Minimize the Extent of My Conduct During My PSR Interview? No, attempts to minimize the extent of your conduct during your PSR interview can have adverse effects. It can potentially jeopardize an acceptance-of-responsibility credit under USSG §3E1.1, and materially false statements can support a two-level obstruction-of-justice enhancement under USSG §3C1.1. Even though the interview does not occur in open court, what you tell the probation officer goes into the report and can be relied on by the judge at sentencing. ### Does Giving False Information to a Probation Officer Constitute Obstruction of Justice? Giving false information to a probation officer can constitute obstruction of justice, but not necessarily in all circumstances. Under USSG §3C1.1, this requires willful misconduct, and the law specifically notes that accidental omissions or incorrect statements are not “willful obstructions.” ### Does a Defendant Need to Make a False Statement for it to Count as Obstruction of Justice? Yes, but it also needs to be a false statement that has a material effect on the probation officer’s report. False information that is material, i.e., that would change how the report addresses a defendant’s offense or criminal history, is necessary to support an enhancement under USSG §3C1.1. ### Can Giving False Information to a Probation Officer Support an Obstruction Charge? Yes, depending on the circumstances. The commentary to USSG §3C1.1 lists “providing materially false information to a probation officer in respect to a presentence or other investigation for the court” as an example of conduct constituting obstruction of justice. ## When and how can I object to PSR errors? ### When Do I Need to Respond to Inaccuracies in a Presentence Report? Defendants need to respond to inaccuracies and errors in their PSRs as soon as possible. The longer you wait, the more likely it is that a mistake will be ignored or overlooked. It is also much easier to correct errors in the initial PSR than it is to have them corrected after the initial presentence investigation process has concluded. ### When Will I Receive My Presentence Report? Defendants who have been found guilty under Rule 32 receive their draft PSR at least 35 days before sentencing. At the sentencing hearing, the federal criminal defendant will have been previously advised about the facts presented in the report by the judge and the defense lawyer. ### How Long Do Defendants Have to Object to PSR Errors? Once a defendant receives a draft PSR from the probation office, the Rule 32(f) time for the defendant to object to the PSR’s factual content and application of the Federal Sentencing Guidelines begins to run. Under Rule 32(f), the defendant has 14 days from receipt to request correction. The probation officer is not obligated to correct an inaccurate or incomplete statement that a defendant presents outside the timeframe for filing objections. ### What Is the Difference Between PSR Objections and PSR Supplements? A PSR objection attacks the content of a presentence report; a PSR supplement adds content. While the defense lawyer can file objections to a PSR, the defense lawyer can also present supplements to a PSR, and these two different requests are usually presented within the same motion to the court. ### What Can Be Challenged in a Presentence Report? Everything that is presented in a PSR is subject to challenge. Defendants and their defense counsel can challenge factual content, applications of the Federal Sentencing Guidelines, and applications of applicable policy statements.

In many federal cases, an inaccurate PSR can create a lot of issues that are otherwise easy to resolve without the need for additional litigation. Nevertheless, defendants must be careful not to object to matters that are not relevant, because the risk of having a ruling against the defendant will outweigh the benefits of addressing immaterial and irrelevant errors. ### Are Courts Required to Address Disputes Concerning Factual Content, Sentencing Guidelines Calculations, or Sentencing Policy Applications? Yes, Rule 32(i)(3)(B) requires courts to address disputes related to presentence investigations in certain criminal matters before proceeding with sentencing. When a PSR is filed after a trial, the sentencing judge is required to make findings of fact on any dispute raised by the defendant that is based on evidence. ### When Will I Receive the Final PSR and Final PSR Addendum? Under Rule 32(g), the probation officer must submit the final PSR and an addendum containing any unresolved objections to the court and to the parties at least seven days before sentencing. ### Can Federal Courts Disregard PSR Disputes? Yes, under Rule 32, the court can disregard issues that will not change a PSR’s calculation. ### Will the Final PSR Include an Assessment of PSR Objections? Yes. Under Rule 32(i)(3)(C) of the Federal Rules of Criminal Procedure, the court must append a copy of its determinations on the disputed portions of the presentence report to any copy of the report that is made available to the Bureau of Prisons. ## Who Decides Disputed PSR Facts? The sentencing judge resolves any unresolved presentence report objections during a defendant’s sentencing hearing. The sentencing judge will make factual findings based on a totality of the circumstances, taking into account both the evidence on the defendant’s record and anything else the defendant presents, and the government also presents evidence that are sufficient to make a well-informed determination. ### Who Decides the Final Sentence? Only the judge has the power to decide the defendant’s final sentence. While probation officers prepare PSRs, they do not have the authority to determine sentences. U.S. judges alone decide the final sentencing. ### Are Federal Guidelines Binding on Sentencing Judges? No, federal sentencing guidelines are advisory. In the Supreme Court’s decision in United States v. Booker, 2006, judges were granted authority to deviate from sentencing guidelines as they see fit. Consequently, while a sentencing judge can take the guideline range into account, she or he can consider anything else that is relevant when deciding the defendant’s final sentence. ### Do Sentencing Courts Need to Consider Hearsay? Sentencing courts can consider hearsay, and USSG §6A1.3(a) requires sentencing courts to admit hearsay, which they can find acceptable for sentencing purposes if they believe the hearsay evidence is sufficiently reliable. ### What Are the Evidentiary Standards for Sentencing Facts? In general, the evidentiary standard for sentencing facts is the preponderance of the evidence (i.e., the evidence shows that it is more likely than not that the fact asserted is true). However, sentencing judges will typically require proof at the trial level before sentencing a defendant. ### Who Bears the Burden of Proof in Sentencing Proceedings? The government bears the burden of proof for proving sentencing enhancements under the Federal Sentencing Guidelines. Conversely, the defendant generally bears the burden of proving sentencing reductions and mitigations under the Federal Sentencing Guidelines. ### What Factors Are Sentencing Courts Obligated to Consider? Along with considering the guidance provided by the Federal Sentencing Guidelines, sentencing courts must take into account any other factor that is relevant pursuant to U.S.C. § 3553(a) for sentencing determinations. ### Who Decides the Disputed-Fact and Calculation Matters of the Presentence Investigation Report? The sentencing judge decides disputed-fact and calculation matters. Generally, these will be addressed during a presentence report conference, during a PSR hearing, or at the sentencing itself. When facing disputes about sentencing calculations that cannot be decided with the evidence presented, the presiding judge can conduct an evidentiary hearing on sentencing. ## How Does the Bureau of Prisons Use the PSR? Once a defendant is sentenced, the federal presentence report is sent to the Bureau of Prisons. Here, the Bureau of Prisons uses the presentence report to determine your placement, security, and custody level. ### How Does the Bureau of Prisons Determine Initial Prison Placement? Once the Bureau of Prisons receives a copy of the final presentence report, it uses the report as the primary basis for its initial prison placement decision. This includes everything from your security and custody level to your appropriate medical and educational facility. ### What Is the Importance of the Defendant’s Assigned Security and Custody Classification? The security and custody level assigned by the Bureau of Prisons determines the location and number of facilities where a defendant can be placed. For instance, if your federal presentence report leads to an assignment of a high-security designation, you will be placed at a high-security prison. If a low-security designation is assigned, you will be placed at a low-security prison. ### How Does the Bureau of Prisons Assign Security and Custody Classifications? The Bureau of Prisons relies on a variety of factors when assigning security and custody classifications for federal convicts. However, it primarily relies on information found in the federal presentence report. Unlike judges and prosecutors who rely on the presentence report but can also investigate and make decisions, the Bureau of Prisons generally relies solely on the facts contained in the presentence report. ### Can Past Substance Abuse Affect a Defendant’s Eligibility for a Prison Treatment Program? Yes, substance-abuse history, a topic that the presentence report covers in depth, can significantly affect a defendant’s eligibility for specific drug and alcohol treatment programs. ### How Does a Defendant’s Prior Criminal History Affect Initial Prison Placement? A defendant’s prior criminal history is an extremely important factor in determining his or her initial prison placement. If a defendant’s record shows a history of weapon use, violence, or sexual conduct, this is known as a “Public Safety Factor.” When a federal prisoner has a “Public Safety Factor” as a result of prior criminal record, they are ineligible for a low-security facility assignment. In addition to the “Public Safety Factor” which requires placement at a minimum-security facility, any other relevant factors in the presentence report can make a federal conviction eligible for maximum-security placement. ### How Will a Judge’s Recommendation Affect the Federal Prisoner’s Prison Placement? A judge’s recommendation will only affect the federal prisoner’s placement if there are no other pertinent facts in the presentence report that may dictate a higher-security placement. In summary, any relevant information in the federal presentence report will dictate whether a defendant qualifies for a low-security prison placement. ### How Does the Bureau of Prisons Determine Prison Medical Classifications? Along with the information found in the federal presentence report, the Bureau of Prisons also evaluates the prisoner’s medical and psychiatric records when assigning medical designations. ## Can I Correct a Presentence Report After Sentencing? Generally, it is much harder to correct inaccuracies and errors that appear in a sentencing report after sentencing. While a defendant can object to a presentence report before sentencing, generally, once a judge sentences a defendant based upon the sentencing report, the opportunity to object is closed.

Defendants can file an amendment for clerical mistakes under Rule 36, and a defendant can seek to file administrative remedies for certain medical and mental healthcare needs under the BOP’s administrative remedy procedure. However, the Administrative Remedies process does not amend a presentence report, and Rule 36 does not address disputes over a judge’s determination of facts and application of the Federal Sentencing Guidelines in a presentence report.

When a presentence report remains with a convicted federal prisoner, it can have several long-term implications:

If a defendant is sentenced to supervised release and/or will be required to participate in drug treatment or alcohol treatment programs, the information in the presentence report will guide your conditions for supervised release and determine what treatment program you need to attend.

As mentioned, the presentence report should be available to U.S. Citizenship and Immigration Services for use in immigration proceedings. If U.S. prosecutors conduct additional criminal proceedings against you in the future, the federal presentence report may be available in those proceedings as well.

Finally, the presentence report can affect a defendant’s criminal-history category in the event of a future prosecution.

As a result, correcting a presentence report prior to sentencing is paramount. Even if a sentencing judge corrects some, but not all, of a presentence report’s inaccuracies or errors, the presentence report can still serve as a dangerous record that negatively impacts a convict’s life. ### Can My Sentenced Judge Correct an Incorrect Sentencing Calculation in My Presentence Report? Yes, pursuant to Rule 35(a), the judge can fix an “obvious error” within 14 days of the sentencing.

Get Advice on Your Situation

If you want someone to look at the specifics of your case, Spodek Law Group handles federal criminal defense nationwide from New York and Los Angeles. The firm has been practicing since 1976 and its motto is simple: we owe loyalty to only you. Call 212-300-5196.