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 Sentencing Issues Defendants Should Consider 

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Michael Santos

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If you’ve been charged with a federal offense, whether you’re guilty or not, you will serve yourself well by preparing for the sentencing hearing. More than 90 percent of all people who are charged in federal court face a sentencing hearing. Each defendant should contemplate strategies that will position him or her for the lowest possible sentence.

Defendants may want to read a free ebook I offer to help them prepare their sentence-mitigation strategy.

To prepare for the sentencing hearing, contemplate the different stakeholders in the proceeding. Below are some obvious stakeholders:


  • Some crimes may not have an identifiable victim, but when crimes have a victim, or multiple victims, defendants should anticipate the influence a victim will have on the sentencing hearing. Victims can be extremely vocal and opinionated about an appropriate sentence. To the extent that a defendant can anticipate what the victim will say, the defendant may offer some type of response.


  • The judge will make the decision of what sentence to impose. Although the judge may consult sentencing guidelines for an appropriate sentence, those guidelines are only advisory. Defendants have an opportunity to influence the ultimate sentence imposed. To influence the sentence, defendants should anticipate the judge’s preconceived ideas. Then, contemplate an appropriate strategy to influence his perceptions in ways that will persuade a more lenient sentence.


  • Defendants should anticipate how the prosecutor defines success. Prosecutors frequently strive for the most punitive sentence possible. Prosecutors will justify their ask for a harsh sentence by portraying the defendant in the worst possible light. To the extent that a defendant anticipates the prosecutor’s position, the defendant can position himself to respond.

Probation Officer

  • The probation officer will prepare a presentence investigation report (PSI). To prepare that PSI, the probation officer will rely upon case notes and a memorandum from the prosecutor. Defendants should expect a prosecutorial bias from the probation officer. The defendant should educate himself on the presentence investigation and understand its significance not only on the sentencing hearing, but on the experience though prison. Bureau of Prisons officials will place enormous influence on the PSI report and the report will also influence time in the halfway house, as well as time on supervised release.

Defense attorney

  • The defense attorney, obviously, advocates on behalf of the defendant. As such, the defense attorney will argue for the lowest possible sentence within the scope of the law. To begin the process, the defense attorney will likely submit a comprehensive sentencing memorandum. The defense attorney should also make a passionate, persuasive case for leniency during the hearing. Yet the judge will know that the defense attorney is a paid advocate.

Character references

  • Those who support a defendant may submit letters or make an appearance on behalf of the defendant. If an appearance isn’t possible, those supporters may put together a video for the judge to consider. The purpose of the character references is not to argue innocence, but to show the defendant as being more than simply the criminal charge. Their letters should express community contributions, or any reasons they can offer that my mitigate the need for a severe sentence.

Perhaps the most important person in the sentencing hearing is the defendant. If an individual is charged with a crime, he should think carefully and strategically about investing the appropriate time and energy to make the most compelling case possible for leniency during the sentencing hearing. Defendants who recognize that they have the power within to influence leniency at sentencing take appropriate action steps.

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