Federal Sentencing Hearings

When your liberty is at stake in a federal sentencing hearing, it is essential to have skilled federal criminal defense attorneys fighting for you. Over the years, we have successfully handled hundreds of sentencing hearings in federal court. We stand ready to do the same for you. We pride ourselves on hard work, knowing federal criminal law, and advocating compassionately and zealously on behalf of our clients. If you have a matter that you would like to discuss with us, please contact us at (404) 658 – 9070.

After an individual has been convicted of a federal crime—either by entering a guilty plea, through a jury of her peers finding her guilty after a jury trial, or by a federal district court judge finding her guilty after a bench trial—the focus of the case shifts to punishment. That is, what punishment will the judge impose based upon the federal crimes for which the individual has been convicted? The judge answers that question after holding a sentencing hearing—a hearing during which federal prosecutors and the accused (or her counsel) have an opportunity to present evidence and make arguments about various legal issues relevant to the judge’s calculation of the appropriate sentence.

For experienced federal criminal defense attorneys, the sentencing hearing is the conclusion of days and weeks of preparation. Generally, skilled defense attorneys expend substantial time prior to the sentencing hearing preparing materials (discussed below) that are submitted to the judge in advance of the sentencing hearing. The purpose of these materials is to preview the key evidence and legal arguments that support the requested sentence—all of which should be emphasized again in the presentation at the sentencing hearing.

Presentence Report: The United States Probation Office prepares a presentence report (PSR) that it submits to the judge for purposes of helping the judge select an appropriate sentence. The PSR contains details of the underlying conduct of the offense and the accused’s criminal history, calculates the appropriate sentencing guidelines range, and provides a sentencing recommendation to the judge within the applicable guidelines range. To prepare the PSR, the Probation Office typically interviews the accused. Both the prosecution and the defense then have an opportunity to review the PSR and raise objections.

Having a skilled federal criminal defense lawyer to help you navigate the PSR process is essential.

Sentencing Memorandum: In many federal criminal cases, both federal prosecutors and the accused will submit sentencing memoranda. A skilled federal criminal defense attorney uses the sentencing memorandum to accomplish multiple purposes. First, the sentencing memorandum should introduce and humanize the client. With more than 95% of federal criminal defendants entering pleas before trial, sentencing judges typically do not know anything about the accused’s upbringing, family, and environment—in truth, the human being behind the charges—without the benefit of a thorough sentencing memorandum. A well-crafted sentencing memorandum can help fix this information deficit. Second, a sentencing memorandum should set out legal arguments concerning the appropriateness of the sentencing guidelines range. For example, as discussed in the next section, the sentencing memorandum should be used to raise arguments about the application of downward departures and variances. Third, a sentencing memorandum can contain expert reports, character letters, and other mitigating evidence.

Drafting compelling sentencing memoranda requires skill and judgment—exactly why it is so important to select experienced federal criminal defense lawyers to represent you in a federal sentencing hearing.

Sentencing Video: In certain cases, sentencing videos are another valuable tool to introduce and humanize an individual who has been convicted of a crime. Given that most federal judges have full dockets and substantial written legal filings to review, sentencing videos can provide an unique opportunity to grab the judge’s attention, appeal to her humanity and emotions, and memorably introduce the accused. Sentencing videos, which take different forms, often emphasize the accused’s background and life circumstances, show how those circumstances may have contributed to the offense at issue, and depict how the accused is making conscious efforts to change her ways and follow the law going forward.

Character Letters: Letters from a broad range of people who have known the accused throughout her life—from a spouse, to children, to extended family, friends, neighbors, employers, colleagues, coaches, and so forth—that highlight the accused’s positive character traits, accomplishments, charitable work, and so forth can help to humanize the accused and show she is more than the charges. One challenge for most individuals who have pled guilty without going to trial is to show the sentencing judge their positive attributes and accomplishments—that they are more than the allegations in the indictment. Character letters help to address this problem.

Arguments and Evidence at the Hearing: In most instances, skilled federal criminal defense lawyers will focus their sentencing hearing presentations on the grounds for a departure or variance from the sentencing guidelines, which are discussed in greater detail below.

Allocution by Accused: During the sentencing hearing, the judge will invite the accused to make a formal statement on the record, known as an “allocution,” prior to issuing the sentence. In most federal criminal cases, this is the accused’s only opportunity to talk directly to the sentencing judge. With the help of skilled federal criminal defense lawyers, an accused can make sure to capitalize on this important opportunity to address the judge before the sentence has been rendered.

Unless mandatory minimums apply, federal judges have substantial discretion in setting sentences for federal crimes. Of course, judges must at least consider the federal sentencing guidelines range before issuing a sentence. But in many cases the accused will have grounds to argue that the judge should grant downward departures and variances from the guidelines range.

Assuming the accused has argued for a downward departure in the sentencing memorandum, the judge will first take up those arguments at the sentencing hearing. There are numerous potential reasons for a judge to grant a downward departure from the guidelines range, but two of the most common are acceptance of responsibility and provision of substantial assistance to the government during the investigation or prosecution of others. Courts are also empowered to depart from the applicable guidelines range where there is a mitigating (or aggravating) circumstance “of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that . . . should result in a sentence different from that described.” An effective sentencing memorandum and presentation at a sentencing hearing should highlight and emphasize all applicable grounds for a downward departure.

After the judge has considered the arguments for a downward departure, she will move to any arguments for a downward variance from the sentencing guidelines range. The question of whether a variance is appropriate generally depends on several factors outlined in 18 U.S.C. § 3553(a): (i) “the nature and circumstances of the offense and the history and characteristics of the defendant;” (ii) “the need for the sentence imposedto reflect the seriousness of the offense, to promote respect for the law, to provide just punishment for the offense, to afford adequate deterrence to criminal conduct, to protect the public from further crimes of the defendant, and to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner;” (iii) “the kinds of sentences available;” (iv) “the need to avoid unwarranted sentence disparities” among similarly situated defendants; and (vi) “the need to provide restitution to any victims of the offense.” More generally, Section 3553(a) directs judges to impose sentences that are “sufficient, but not greater than necessary” to meet the established goals of sentencing. In sum, the 3553(a) factors underscore that federal judges have expansive discretion to consider almost anything about the offense at issue or the accused, as well as similar cases, in setting the sentence.

Notably, a court may grant a departure and a variance in calculating the sentence (e.g., the court may find the accused provided substantial assistance to the government meriting a downward departure and that the nature and circumstances of the offense are such that a downward variance is appropriate).

As should be clear, the ultimate sentence imposed depends, in part, on the applicable guidelines range. But the sentencing judge is not, as discussed, required to follow the guidelines range. Further, as described, the judge may grant downward departures and variances from the guidelines range. Nonetheless, the guidelines range is undisputedly a key factor in the court’s analysis during any sentencing hearing. Because guidelines ranges are directly impacted by the specific crimes charged (i.e., federal criminal statutes carry different criminal penalties), another potential way to reduce the length of the sentence imposed is to bargain with the government on the front end about the criminal statute to be applied to the accused’s conduct.

Generally, no. As discussed, federal judges have substantial discretion to impose a sentence they consider fair and just, though they must consider the guidelines range. In most federal criminal cases, the accused enters a guilty plea in which the federal prosecutor recommends a certain sentence. Though most federal judges will pay close attention to the government’s recommendation, they are free to disregard it.

If the individual wants more certainty as to the ultimate sentence, another option is to enter a binding plea under Rule 11(c)(1)(C) of the Federal Rules of Criminal Procedure. This type of plea codifies the agreement between the government and the accused on the sentence the accused will serve. The judge can accept the plea agreement or reject it but is not permitted to sentence the accused to a sentence different than that specified in the agreement. A binding plea is appealing to some individuals accused of crimes because it provides relative certainty as to the ultimate sentence and reduces the risk of the accused receiving an unexpected sentence.

Yes, the United States Sentencing Commission collects, analyzes, and publishes data online relating to sentencing practices in federal criminal cases. Indeed, the Commission collects information from United States district courts after each sentencing.

If you have a matter you would like to discuss with an experienced federal criminal defense lawyer, please contact us at (404) 658 – 9070.