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A federal sentencing date is, undoubtedly, a day no one looks forward to. This is the day when a judge announces a defendant’s prison sentence and how long he or she will be on supervised release after serving time. The judge will also order any fines or mandatory financial assessments at this time, as well as announce any assets that are being forfeited.
It is a difficult day, to be sure.
In this blog post, we will explain what happens at federal sentencing so that you and your loved ones know what to expect and can be prepared. It’s important to understand the process – even though this knowledge likely won’t soften the blow of what are typically very high federal sentences.
Please take a moment to watch this comprehensive video on the federal sentencing process by Board Certified Criminal Defense Attorney Benson Varghese:
By the time federal sentencing occurs, a number of things will have occurred to help the judge arrive at a decision. After a plea or finding of guilt, a probation officer would have met with the defendant and interviewed them. A good attorney will be present at that interview; a great attorney will have spent time preparing the defendant for how to best answer the probation officer’s questions.
The probation officer then prepares a Pre-Sentence Investigation Report (PSR), which is submitted to the judge upon completion. This report draws from the defendant’s answers, as well as answers from the prosecutor, the agent working the case, other defendants or witnesses, and a summary of a variety of case documents and records. In the PSR, the probation officer gives the judge a “recommended guideline range” for sentencing. This range is based upon the offense conduct, enhancements and reductions, and criminal history.
While this guideline range is not mandatory, many judges are “guideline judges.” In other words, they routine sentence within the recommended guidelines, particularly if they “grew up” as judges when the guidelines were mandatory.
Once the PSR is complete, the defendant’s defense attorney will be able to read it and make written objections. These are typically not factual objections, but rather, objections based on how the law was applied to the facts.
For example, it is not uncommon for an experienced federal defense attorney to argue that a specific enhancement added by the probation officer in the PSR is being incorrectly applied. However, it is generally not an argument to take issue with the statement of a witness, who is embellishing or being untruthful in the PSR. Why? The judge is allowed to consider uncorroborated, hearsay statements of co-conspirators. Relevant conduct doesn’t have to be proven by proof beyond a reasonable doubt – just a preponderance of evidence, which is just a tipping of the scales.
The defense attorney also has the opportunity to file other documents, including a downward variance (a sentence below the recommended guideline range); a departure (a guideline policy that calls for a lower sentence); a sentencing memorandum; and character letters on behalf of the defendant.
Our experienced federal defense attorneys use these motions, memorandums and letters to give the judge every reason possible to sentence below the recommended guidelines. We understand that judges tend to stay within the guidelines, so some of our arguments are about a departure, while others are about a variance.
Federal sentencing memorandums, also called sentencing memos, are written by the defendant’s criminal defense attorney in an effort to present a complete picture of the defendant in an effort to persuade the judge to consider lighter punishment. Sentencing memos, which are kept under the court’s seal, are often very compelling, detailing the defendant’s hardships and tough times, as well as good deeds and positive attributes. The sentencing memo will contain a description of the nature and circumstances of the offense – but unlike the PSR, it is framed in the light most favorable to the accused.
The memorandum will go into the biographical background of the defendant, explaining hardships and factors that may have led to poor decisions. This could include health problems, substance abuse, mental health issues, and dysfunctional family dynamics. The memorandum will also highlight all of the defendant’s good and redeeming qualities.
Although the sentencing guidelines limit much of what the judge may consider, the experienced federal attorneys our Varghese Summersett make every effort to give the judge any information we think will be helpful, including but not limited to:
The main goal of the sentencing memorandum is to persuade the judge that the lowest sentence possible is appropriate.
Before sentencing, the judge will have reviewed the PSR, the filings from both sides, as well as all the character letters.
At sentencing, the federal district judge will call the case and the parties will be identified. Specifically, the judge will read the case number and the prosecutor and defense attorney will be named for the record. The defendant will also be identified.
Afterward, the judge will go over the procedural history of the case, reciting the order of events, including the defendant was charged, when they pled, etc, The judge will then ask if both sides if they received the pre-sentence investigation report in a timely manner. The judge will then address any objections made to the pre- sentence report. There is generally no new evidence provided at this time. Again, this because the arguments are generally about the application of the law, not the facts. After the objections are addressed, the judge will announce the recommended guideline range as amended by any objections.
After this, the judge will acknowledge the receipt of filings by the prosecution and defense and will allow both sides to make any final, closing remarks. Experienced attorneys know what type of arguments resonate the most with a particular judge, but in general, federal court is much more subdued than what you see on television. This is because the judge’s decision is almost entirely based on written submissions. The judge will hear any arguments made, but the oral presentation is generally just to highlight what the judge already knows.
Finally, the judge will allow the defendant to speak. Our advice to clients is to speak sincerely, show remorse, express empathy for victims, have a plan for the future – and most importantly, accept responsibility.
After hearing all the arguments and presentations, the judge will pronounce the sentence. This will be the number of months the defendant is in custody, the number of years they will be on supervised release, and any fines or fees that are being imposed. The sentence is never an easy number to hear.
It’s important to understand that the number you hear at federal sentencing is really the worst-case scenario. In reality, the sentence will be less than that because most federal inmates earn seven days of credit for every five days they are in federal custody. That is up to 54 days of good time credit for every year of their imposed sentence. Of course, good time credit, of course, is not guaranteed and depends on a person being “good” while in custody.
The federal sentencing process itself is not lengthy. However, there may be a number of cases set on your sentencing date, so it is hard to predict how long you or your loved ones may wait in court. Even the most efficient judges routinely deviate from the scheduled order of events.
The First Step Act is an initiative that is still fairly new, but it gives inmates credit for working at a job or an approved class. For every 30 days of classes or work that you do in prison, you can earn up to 15 days of credit. However, be aware that this is a new program – not every facility has every class and the Bureau of Prisons is still behind on implementing systems to document the credit prisoners receive.
Generally speaking, to earn credits in prison, you cannot have disciplinary infractions. For First Step Act credits, the prisoner must come back as a minimum or low risk on the BOP Risk Assessment tool; must be in the country legally; and must not have committed a disqualifying offense. You also must be eligible for pre-release custody, such as halfway house or home confinement. Examples of programs that can results in credits through the First Step Act include:
Finally, it is reasonable to expect we will see future changes to the First Step Act. It comes as a surprise to some that the First Step Act was signed into law by President Trump. It is fair to say that as time goes on, there are more and more bipartisan efforts to reel in the unfair federal sentences that are handed down.
If you had been sentenced before 2018, you probably would have never imagined that something like the First Step Act would be passed. As you consider your sentence, keep in mind that future changes could be made that can decrease you or your loved one’s sentence.
One of the most important things a loved one can do during this trying time is to be supportive and a source of encouragement and hope. The winds of change – for the better – are slowly making their way through the federal system. Do not let the pronouncement of the sentence discourage you. This is a journey and you will get to the other side of it.