When a defendant is found or pleads guilty, the next step is sentencing. In federal courts, the sentencing process involves several steps that take months. Judges have discretion in determining the sentence but must consider a host of factors under federal law. Defendants have an opportunity to argue for a lesser sentence, so it is essential to have skilled legal representation.
Pre-Sentencing Process
After guilt is determined, the judge will order the Federal Department of Probation to assign a probation officer to interview the defendant, witnesses, the federal agents on the case, the prosecutor, and other parties and prepare a Pre-Sentence Investigation Report (PSR). The PSR summarizes factors relevant to sentencing and provides recommendations for the sentencing range.
Defendants should be prepared for the interview questions by their attorney, who should also be present at the interview. Once the PSR is completed, the defendant’s attorney will also review the report and can make written objections and submit requests for a lower sentence, character letters, and other documents to reduce the sentence. The attorney will then prepare a sentencing memorandum outlining mitigating factors in the defendant’s life and related to the crime that might justify a lower sentence. For example, hardships the defendant has faced, history of substance abuse or mental illness, positive qualities, nonviolent nature of the crime, and other facts.
The next step is the sentencing hearing, which typically occurs at least 3 months after the guilty plea or verdict. At the hearing, the judge will address any objections, the attorneys will make final statements, and the defendant will have an opportunity to speak. After that, the judge will announce the sentence.
Federal Sentencing Law
The United States Code has a provision addressing federal sentencing in 18 USC 3553(a). It states, “The court shall impose a sentence sufficient, but not greater than necessary.” It then proceeds to list the relevant factors that judges should use in determining the sentence. These include the following:
“(1) the nature and circumstances of the offense and the history and characteristics of the defendant;
(2) the need for the sentence imposed–
(A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense;
(B) to afford adequate deterrence to criminal conduct;
(C) to protect the public from further crimes of the defendant; and
(D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner;
(3) the kinds of sentences available;
(4) the kinds of sentence and the sentencing range established for–
(A) the applicable category of offense committed by the applicable category of defendant as set forth in the guidelines–
(i) issued by the Sentencing Commission . . .
(5) any pertinent policy statement–
(A) issued by the Sentencing Commission pursuant to section 994(a)(2) of title 28, United States Code . . .
(6) the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct; and
(7) the need to provide restitution to any victims of the offense.”
Notably, some offenses carry a mandatory minimum sentence, so the judge may not go below that minimum.
Federal Sentencing Guidelines
As noted in 18 USC 3553(a), the guidelines issued by the Sentencing Commission are an important factor in determining a sentence. The Federal Sentencing Guidelines (FSG) are advisory rules; however, judges must consider them in sentencing, and they carry significant weight.
Under the FSG, a crime is assigned a base-level offense. Adjustments are then made based on the seriousness of the crime and the defendant’s prior criminal history. There are 43 levels of offense seriousness and six criminal history categories. Where a defendant falls within these categories determines the sentencing range.
If a judge does not follow the FSG, they must explain the reason in writing.
Legal Representation
Federal sentencing law allows the defendant’s circumstances to be taken into account. An experienced attorney is best equipped to present a persuasive case for a lower sentence to both the probation officer and the judge. If you are being investigated or have been arrested, contact us to learn how we can advocate for you.