In the ninth component of our Straight-A Guide, we talk about the importance of celebrating achievement. Every person on our team at Prison Professors understand that working through a challenge requires a series of small, incremental accomplishments. Those little accomplishments open new opportunities. To stay motivated through the long and arduous journey of recalibration, we’ve got to celebrate the small achievements.
They can lead to collaborative relationships. We’ve got to build a series of accomplishments that will make it easier for other people to advocate on our behalf.
Think about the steps you can take today to help your lawyer obtain the best possible outcome for you at sentencing.
There are several ways to assist your lawyer in creating the best possible sentencing mitigation package. First, a person facing a sentencing hearing needs to understand how federal sentencing works.
Federal sentencing involves a multistep process. We offer more content on federal sentencing through our consulting menu at Prison Professors. Check out the following list of articles and explanatory videos:
- Topic: Sentencing
A sentencing judge’s discretion to impose a sentence is restricted by the statutory minimum and maximum penalties. Take mail fraud, for example, which prescribes a statutory minimum sentence of zero years and a statutory maximum of 20 years imprisonment. 18 U.S.C. § 1341. Under this statute, a judge can impose almost any sentence between no imprisonment and up to 20 years. The judge can’t impose a sentence beyond the statutory maximum of 20 years without it being an illegal sentence, which would likely be reversed on appeal.
Sometimes the federal statute contains a mandatory minimum sentence. If a person is convicted of possessing over 1 kilogram of heroin with the intent to distribute, then that person faces a mandatory minimum sentence of 10 years and up to life in prison. That means, absent the prosecutor filing a motion for a defendant’s cooperation under 18 U.S.C. § 3553(e), the sentencing judge must impose at least a 10-year sentence.
But is a judge’s discretion between the statutory minimum and maximum sentence unguided?
No, because in the federal system, the Court must also consider the advisory U.S. Sentencing Guideline range before imposing a sentence. The Sentencing Guidelines manual includes more than 500 pages, and it prescribes a method for determining what sentence the judge should impose.
How the Guidelines Work:
After a defendant is convicted, a federal probation officer conducts a presentence interview of the defendant. Counsel for the defendant must be given notice and the opportunity to attend the interview, and a defendant may invoke their constitutional right to remain silent during the interview, although failure to provide truthful information about the offense of conviction may result in denial of credit for acceptance of responsibility at sentencing.
If you’re working through course with expectations of facing a sentencing hearing, you should not go to this interview without first preparing for the interview with your lawyer, and many lawyers attend the interview with their clients.
At the presentence interview, the probation officer will ask you questions about your offense and any related uncharged criminal conduct, criminal history, personal history (including family history and substance abuse history), financial circumstances, and numerous other issues potentially related to the court’s sentencing decision.
Although it is incumbent on your lawyer to understand the presentence report interview, we often find that lawyers are unaware of how the Federal Bureau of Prisons (“FBOP”) operates and how the lawyer (or the individual) must present certain information to the Probation Office for inclusion in the presentence investigation report (“PSR”).
The primary example is the Residential Drug Abuse Program (RDAP). For those convicted of qualifying offenses, a prisoner taking RDAP can get up to a year off their sentence. But lawyers are not necessarily thinking about what happens after their client is sentenced, and their focus is often on getting the shortest sentence possible.
So many lawyers don’t realize how important it is that any history of drug or alcohol use is well documented in the PSR. When the FBOP decides which prisoners will get into the RDAP program, it often relies on the PSR.
After the Probation Office finishes the interview, an Officer prepares a PSR that provides the Sentencing Guidelines calculations, including the advisory Sentencing Guidelines range that is based on a detailed scoring chart of both offense characteristics and criminal history. The advisory Guidelines range is the starting point for any judge about to impose a sentence.
The PSR contains not only information about the offense and offender but also a calculation of the relevant Sentencing Guidelines Range, and any bases that may exist for imposing a sentence outside of the applicable range.
The probation department must provide the defense and prosecution with a copy of the PSR at least 35 days before sentencing and must submit objections within 14 days of the sentencing hearing. The PSR is a confidential document that may not be disclosed to the public and must be filed under seal. A Probation Officer also submits to the court a confidential sentencing recommendation.
The PSR will also play an influential role in the BOP’s prison classification, and in deciding eligibility for various programs, including the Residential Drug Abuse Program.
Prior to sentencing, both the prosecution and defense counsel are allowed to file sentencing memorandums. The defense usually argues for a downward variance from the advisory Guideline range. The prosecution usually argues for a guideline range sentence. In the federal system, both sides will ask for a sentence of a particular number of months.
The sentencing memorandum that a defense attorney provides may be the last document the judge and their clerks will read before the sentencing hearing. Our team at Prison Professors encourages people facing a sentencing hearing to insist upon reviewing the sentencing memorandum before the attorney files the document.
Although the memorandum will include case law, it will also include details about the defendant. Since the defendant will know much more than the attorney about his or her past, the defendant should collaborate, or offer input, that may help the attorney’s advocacy at sentencing.
If you’re facing a sentencing hearing, and the lawyer balks at a request for a copy of the sentencing memorandum, that could be a red flag. The lawyer might be waiting until the last minute to prepare the memorandum.
For this reason, we encourage people to request a copy of the memorandum early. Get an ETA from the lawyer, and then hold the lawyer accountable.
The sentencing hearing takes place in the courtroom. To get a better idea of what to expect, a person may want to visit a few sentencing hearings in advance. Or a person may read our reviews of sentencing hearings that we’ve attended. Those reviews are available on our website at Prison Professors.
Most sentencing hearings are rather formulaic in how they take place. First, the judge will resolve discrepancies that the prosecution and defense may have with the PSR. The defendant and counsel for both parties are allowed to provide input. The judge will make a finding on each point.
A judge may allow the parties to call witnesses and present evidence about disputed facts or other matters. Some lawyers also choose to prepare sentencing mitigation videos that are played before the judge.
The defendant may also speak (called allocution) before the judge imposes a sentence. Allocution is hugely important because the judge wants to hear from a person directly. Some factors to consider thinking about before allocution include:
What are your best accomplishments?
- In what ways do you identify with the victims of the crime?
- What have you learned from this experience?
- What steps have you taken to make things right?
- Why should the judge have assurance that you will not offend again?
- What are your best attributes?
- What are your short- and long-term goals?
- Why are you a better person now than when you committed the offense?
- How would leniency promote your and other people’s respect for the law?
- What is a just punishment for your offense and why?
- Will giving you leniency cause other people not to break the law as you did?
- Why will giving you leniency protect the public from further crimes by you?
- Do you need educational or vocational training?
- How would leniency provide you educational or vocational training?
- Do you need medical care and can the FBOP provide that care?
- How would leniency provide you with medical care?
- What if anything would you say to the victims of your offense?
- Why should the Judge give YOU a break?
In determining the proper sentence, Congress directed sentencing judges to consider a number of goals. Title 18 United States Code Section 3553(a) provides the goals of sentencing:
- Factors To Be Considered in Imposing a Sentence. — The court shall impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth in paragraph (2) of this subsection. The court, in determining the particular sentence to be imposed, shall consider—
- the nature and circumstances of the offense and the history and characteristics of the defendant;
- the need for the sentence imposed—
- to reflect the seriousness of the offense, to promote respect for the law, and 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;
- the kinds of sentences available;
- the kinds of sentence and the sentencing range established for—
- the applicable category of offense committed by the applicable category of defendant as set forth in the guidelines—
- in the case of a violation of probation or supervised release, the applicable guidelines or policy statements issued by the Sentencing Commission pursuant to section 994(a)(3) of title 28, United States Code, taking into account any amendments made to such guidelines or policy statements by act of Congress (regardless of whether such amendments have yet to be incorporated by the Sentencing Commission into amendments issued under section 994(p) of title 28);
- any pertinent policy statement—
- issued by the Sentencing Commission pursuant to section 994(a)(2) of title 28, United States Code, subject to any amendments made to such policy statement by act of Congress (regardless of whether such amendments have yet to be incorporated by the Sentencing Commission into amendments issued under section 994(p) of title 28); and
- that, except as provided in section 3742(g), is in effect on the date the defendant is sentenced.
- the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct; and
- the need to provide restitution to any victims of the offense.
- These § 3553(a) are the goalposts of sentencing and they provide a sentencing judge with wide discretion to fashion any kind of sentence whether within the Guideline range or a downward or upward variance from the Guideline range.
As you can see, the § 3553(a) sentencing factors are very broad, and you can assist your attorney in crafting the sentencing memorandum if you create a list of facts or witnesses who could write a letter or testify about the sentencing factors.
For example, even if your crime is one that carries significant penalties (such as possession of child pornography), you can still emphasize “the history and characteristics of the defendant.” 18 U.S.C. § 3553(a)(1). That means your history of good deeds or character witnesses, and things like childhood trauma, drug and alcohol addiction, divorce, or the death of a child.
Even if you don’t have any mitigating personal characteristics, you can also argue that your offense caused less harm the similarly situated offenders. And sometimes your lawyer can argue that the Guidelines are unduly harsh and therefore the judge should not use them as the benchmark in imposing a sentence.
Here are some other factors that could help your lawyer in presenting a mitigation case:
- Any developmental hardships such as alcohol fetal syndrome or ADHD
- Bad relationship with parents or siblings, or any abuse experienced as a child
- Exposure to toxins
- Early death of parents
- Medical or mental health issues (including the medications you take)
- Drug, alcohol, pornography, or gambling addiction
- Military history especially service in combat
- Physical injury
- Prior juvenile or adult criminal history; child support or bankruptcy proceedings
- Socioeconomic class
- Any volunteer or community work and charitable donations
- Type of employment
- Battered women syndrome
- Voluntary disclosure of crime and/or cooperation
Think about how your lawyer could prove any of these factors.
- Do physical documents or records prove socioeconomic class?
- Do you have factors, such as a mental health issues, that a doctor’s testimony could prove?
After the judge orally pronounces sentence, the judge must complete two documents:
- The Judgment Order, and
- The Statement of Reasons.
Those documents memorialize in writing what the judge orally pronounced in court. The judgment specifies the sentence, any term of supervised release and the release conditions, and the financial penalties. The judgment is a publicly accessible document.
The Statement of Reasons, however, is a sealed part of the record. It provides information about whether the judge’s sentence was within or outside of the applicable Guideline range and the specific reasons for a sentence imposed outside the range. This document can prove enormously helpful, and a defendant should work to influence what the judge writes in the Statement of Reasons. For example, if requesting a judge to recommend a specific prison, the judge may ask the BOP to let him know the reason if the BOP did recommend the specified prison. Or the judge may ask in the Statement of Reasons that the BOP admit the defendant into the RDAP program. Such statements can prove hugely beneficial.
The sentencing judge must also inform the defendant about appealing the sentence. A defendant must file a single page motion called a Notice of Appeal. The Notice of Appeal must be filed within 14 days from the day the judgment was entered. The Notice is a jurisdictional document, meaning that if it is not filed on time, the court of appeals has no jurisdiction to hear an appeal.
A defense attorney must file a Notice of Appeal if you request it. As a precaution, we encourage defendants to request that their lawyer file a Notice of Appeal in writing, in an email.
Some of the issues that can be raised on appeal are when a sentencing judge:
- Wrongly applies the Sentencing Guidelines calculations
- Wrongly imposed an upward departure or variance from the advisory Guideline range
- Did not consider a key mitigating factor that your lawyer presented
- Failed to properly explain the sentence it imposed
- Imposed a sentence that created an unwarranted disparity between similarly situated defendants
- Imposed an unreasonable sentence
Here are some questions that you may consider when preparing your sentence-mitigation package:
- Describe steps you’ve taken to show what you’ve learned from this offense.
- Describe your best attributes.
- Describe your short-term goals.
- Describe steps you’ve taken to show your commitment to achieving those short-term goals.
- Describe your long-term goals.
- Describe how your short-term goals relate to your long-term goals.
- In what ways did preparing for sentencing prepare you for the rest of your life?
- What steps did you take over the past 30 days to reconcile with the victims of your offense?
- Help us understand the influences that led to your changed perceptions.
- When your judge sees your mitigation package, what would you expect him to learn about you?