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  SENTENCING MITIGATION  

What are the Federal Sentencing Guidelines?

Prior to 1987, federal judges possessed virtually unlimited discretion in making sentencing determinations.  This discretion produced sentencing disparities - the notion that similarly situated individuals were not receiving similar sentences.  In addition, with parole, which previously existed for federal prisoners, an individual may have served substantially less time than dictated by the sentence imposed. 

 

Due to disparities and uncertainty, Congress created the U.S. Sentencing Commission, an independent agency within the federal judiciary, and assigned the Commission with the task to establish Federal Sentencing Guidelines, which are national norms that each federal judge must consult prior to imposing a sentence.  The Commission promulgated the first Guidelines Manual in 1987.  Moreover, Congress eliminated parole in the federal system in an effort to promote "truth in sentencing."  (Even with the abolishment of parole, an individual still may earn "good time" credits, which may reduce the time that must be served.)

What is the Federal Sentencing Process?

The federal sentencing process typically begins well before the formal imposition of a sentence.  It involves a lengthy adversarial process that revolves around the presentence report (PSR), which includes a proposed application of the sentencing guidelines.  After a defendant is convicted, whether by way of a guilty plea or a verdict at trial, a federal probation officer typically conducts a presentence interview of the defendant. At the presentence interview, the probation officer may ask questions about a wide variety of matters concerning the defendant’s offense or offenses of conviction and 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.

After conducting the presentence interview as well as an independent investigation of the offense and the defendant’s background, the probation officer prepares a PSR. The PSR contains not only information about the offense and defendant but also the statutory range of punishment and a calculation of the relevant sentencing guidelines (with a corresponding guideline sentencing range), as well as any bases that may exist for imposing a sentence outside of the applicable range. The defense and prosecution must be provided a copy of the PSR at least 35 days before sentencing and must submit any objections (factual or legal in nature) within 14 days and otherwise may respond to the PSR (typically in the form of a sentencing memorandum). Together with a PSR, a probation officer also submits to the court a confidential sentencing recommendation (which, unless the court wishes to do so, need not be disclosed to the parties).

A district court must allow the defendant and counsel for both parties—and, in appropriate cases, victims—to provide input at a sentencing hearing before a sentence is imposed.  Furthermore, at the court’s discretion, it may allow the parties to call witnesses and present evidence about disputed facts or other matters (e.g., mitigating or aggravating factors).  


What Must a Judge Consider at Sentencing? 

The Supreme Court has outlined a three-step process that a federal judge must follow at sentencing.  

First, the judge must calculate the correct sentencing range under the Guidelines.  To determine the proper range, a judge will calculate the offense conduct score (corresponding with what the individual was convicted of and how they specifically committed the offense), the defendant's criminal history score (corresponding with the defendant's past convictions), and then will find the intersection of these two inputs on a 258-box grid containing sentencing ranges.

Second, the judge will consider policy statements or commentary in the Guidelines Manual about departures from the guideline range ("departures" are reasons in the Guidelines Manual for a judge to not follow the applicable guidelines range);

 

Third, the judge will consider the statutory factors in 18 U.S.C. § 3553(a) in deciding what sentence to impose.  (A sentence that falls outside of the guidelines range, and that is justified by consideration of the Section 3553(a) factors and not an enumerated reasons in the guidelines, is called a "variance.")  Ultimately, a judge must impose a sentence that is "sufficient, but no greater than necessary," to further the factors listed in Section 3553(a), which include the four purposes of punishment: retribution, deterrence, incapacitation, and rehabilitation. 

What Happens Next?

After the court orally pronounces sentence, the court must complete two documents— the “Judgment in a Criminal Case” and the “Statement of Reasons” (SOR) (both of which are contained in AO Form 245B)—that memorialize what the judge orally pronounced in court. The judgment specifies the sentence (the term of probation or imprisonment, any term of supervision release following imprisonment and the conditions thereof, and any financial penalties). The judgment is entered into the record as a publicly accessible document.

 

At the conclusion of the sentencing hearing, the court must advise the defendant of his or her right to appeal, including the right to proceed in forma pauperis on appeal and the right to appointed appellate counsel in the event the defendant is indigent.A defendant may waive the right to appeal as part of a voluntary plea agreement.

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As indicated above, there are several opportunities for the defendant to provide mitigating information that may reduce a sentence, including in lodging objections to the PSR, in a sentencing memorandum submitted to a judge, and at a sentencing hearing. 

Adapted from "Federal Sentencing: The Basics," U.S. Sentencing Commission, Feb. 2018 [Link]
 

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