Federal Sentencing Lawyer

Federal sentencing is one of the most complex and important parts of a federal criminal case. Our federal defense lawyers have obtained the lowest sentences possible in some of the toughest cases, even where our clients were facing stiff mandatory minimum sentences. If you have a question about sentencing, give us a call. We’ll be happy to explain the process and how we can help.

How does federal sentencing work?

Sentencing in federal court occurs after you have been convicted at a trial or enter a guilty plea. Sentencing usually takes place at least a couple of months after the conviction occurs and can take much longer depending on the circumstances of a particular case. As discussed in more detail below, the judge will determine your sentence based on a number of factors, including 1) the mandatory minimum and maximum sentence for the offense; 2) the Federal Sentencing Guidelines; and 3) specific characteristics about you and your case (known as 18 U.S.C. § 3553 factors).

What happens before a federal sentencing hearing?

In between the guilty plea or trial and the sentencing hearing, a couple of important steps take place. First, a federal probation officer will prepare a Presentence Investigation Report which the judge will use to determine your sentence. Second, your lawyer will file a sentencing memorandum which will argue why you should receive a particular sentence. Prior to sentencing, your judge will read both the PSR and the sentencing memorandum. 

What is a Presentence Investigative Report?

A Presentence Investigative Report (referred to as a “PSR” or “PSI) is a document prepared by your probation officer and is usually about 15 to 30 pages long. The PSR is broken down into paragraphs and contains the following facts: 1) the factual details of your case, 2) the base offense level and any enhancements that apply under the Federal Sentencing Guidelines, 3) your demographics and background. It is extremely important for you and your lawyer to review the initial PSR for accuracy. If something needs to corrected or objected to, your lawyer will file objections to the PSR. Failing to file proper objections can cause you to receive a significantly higher sentence.

• Factual details of your case. This section of your PSR can be quite short or very lengthy depending on the number of co-defendants, the type of offense, and how long the offense lasted. The details in this section will describe your role in the offense and support any enhancements that the probation office feels is appropriate in your case. This section is crucial as it supports the next section: your total offense level under the Federal Sentencing Guidelines.

• Total Offense Level. This section of your PSR will calculate the beginning offense level and then tack on additional levels for any aggravating conduct. For example, the base offense level for a wire fraud conviction is level 6 (which carries a Guidelines range of 6-10 months in prison). If there is a loss amount attributed to the wire fraud amount, additional levels are added which increase with the amount of loss. If the loss amount was $100,000, for example, an additional six levels are added for a total offense level of 12 (which carries a Guidelines range of 24-36 months). 

• Your background. Your PSR will also discuss your background. This section covers everything from your education, family, military experience, work history, medical issues, mental health issues, and any other matters which are unique to you. As discussed below, the judge will take into account more than just the Federal Sentencing Guidelines range, and therefore it is important to fully detail who you are as a person.

How to prepare for the Presentence Investigative Report

Before your probation officer prepares the initial PSR, he or she will schedule an interview with you and also send you various forms to fill out. The interview can be in person, via video conferencing, or on the phone. Normally, your lawyer will want to attend this meeting as well and prep you on what to expect. The interview typically lasts 1 to 2 hours and covers a wide range of topics about your life experiences (schools, jobs, parents, siblings, spouses, children, etc.). 

PSR interviews can be a trap for the unwary. A probation officer will typically ask about your illegal conduct. If you minimize your involvement or if you volunteer additional illegal conduct, this could have an impact on your ultimate sentence. As a general rule, our firm instructs our clients to not answer questions about the offense conduct in a particular case as it’s not necessary and can have damaging consequences. Instead, we typically have our clients submit a written statement to the Court about their actions and also prepare our client to speak at sentencing.

The probation officer will also have you fill out various forms and releases. These forms concern your education, taxes, and financial picture. You need to understand that the probation office takes your finances seriously, because it is trying to determine your ability to pay fines, restitution, and other penalties. If you lie on these forms and the Government finds out, it could charge you with an additional offense. It is therefore imperative to review these forms with your attorney to make sure you are provide an accurate snapshot of your finances.

Should I discuss substance abuse with the probation officer?

An area of PSR interview that is often a trap concerns substance abuse. It is well known that a documented history of substance abuse case result in a lighter sentence if a defendant completes a drug treatment course in prison (known as RDAP). The problem is that not everyone qualifies for RDAP and some judges could use this information regarding substance abuse to increase a defendant’s sentence, especially where the drug use ties into the charged offense. We’ve also seen defendants who confess to their drug use, in hopes of receiving RDAP, only to see their expected drug quantity increase significantly. An experienced federal criminal defense lawyer can assess your particular situation to determine if it makes sense to discuss substance abuse with your probation officer.

The Sentencing Memorandum

In just about every case, your lawyer will file a sentencing memorandum prior to the sentencing hearing. There are a number of reasons why your lawyer should file a sentencing memorandum:

• Explain your objections. If your lawyer objected to a portion of the PSR, this is your chance to explain to the judge why you’re right. The most important objections usually concern an enhancement that the probation office tacked onto a defendants’ base offense level. One common example would be the sophisticated means enhancement in fraud cases, which would increase the offense level by two. Your lawyer will explain the factual circumstances of the offense conduct in your case and then cite to other cases where sophisticated means either applied or didn’t apply. It is much easier to make these complex objections in written format than to make these arguments for the first time orally at the sentencing hearing.

• Clarify and expand on statements in the PSR. Sometimes the PSR doesn’t fully explain a situation or can misrepresent someone’s role in the offense. In one PSR, the probation officer noted that our client dropped out of college. What the PSR didn’t explain is that our client’s mother had terminal cancer and that he dropped out of college to care for her. In another PSR, the probation officer claimed that our client purposefully joined a large drug conspiracy. What the PSR didn’t explain is that her husband threatened her with financial ruin if she did not assist him in his illegal activities. These things matter at federal sentencing and a good defense lawyer will ensure that your entire story is accurately told. In the latter example, our client received probation due to her circumstances when she was otherwise looking at 120 months in prison.

• Talk about who you are. The Federal Sentencing Guidelines is a book that knows nothing about you. But sentencing requires the judge to consider other factors, including who you are as a person. The sentencing memorandum is the first real opportunity for your lawyer to show the judge who you are. This is typically achieved through character letters from people who know you well. It is important to note that the quantity of character letters is not so important as the quality. Character letters should explain who the author is, how they know you, how well they know, you and describe in detail the kind of person you are. It is often helpful to provide a story or an example of when you best qualities shined.

Will I know what my sentence will be before the sentencing hearing?

Maybe, but in most cases, you will not be able to predict what your sentence will be in federal court. In some cases, you can enter into a binding plea with the Government and the Court. This is called a Rule 11(c)(1)(C) plea and it will force the Court to sentence you to the amount of time agreed upon by the parties. These pleas, however, are rare and many federal judges refuse to accept binding pleas. 

How can I estimate what my sentence will be in federal court?

An experienced federal criminal defense lawyer can estimate your sentence, but he or she will usually not be able to guarantee the ultimate sentence. This is because federal judges have a tremendous amount of discretion in determining the Federal Sentencing Guidelines Range and the factors they find important under 18 U.S.C. § 3553. Your lawyer will first calculate the estimated total offense level under the Federal Sentencing Guidelines and then determine if the factors under 18 U.S.C. § 3553 will likely cause the Court to give a below Guidelines sentence. Let’s take a look at a couple of examples:

Example 1: The Fraud Case: Michelle is convicted of wire fraud and has loss amount of $100,000. Based on the Federal Sentencing Guidelines, the base offense level would be 7 and the loss amount would increase by 8 levels which would be level 15 (18 to 24 months). But the following enhancements may then apply to Michelle’s case:

· Offense involved 10 victims: +2 levels

· Offense involved theft from another person: +2 levels

· A substantial part of the scheme was committed in a different country: +2

· Involved a dangerous weapon: +2

If Michelle was held accountable for all of these enhancements, her offense level would increase to 23 (which calls for a 46 to 57 month sentence). After enhancements, there are various adjustments which may apply to her case:

· Aggravating role: +2 to +4 levels (depending on the role)

· Mitigating role: -2 to -4 levels (depending on the role)

· Abuse of position/use of special skill: +2 levels

· Obstruction of justice: +2 levels

Assuming these adjustments applied (except for minor role), the offense level would climb to 31 (which calls for a 108-135-month sentence). If Michelle entered a guilty plea, she would likely be entitled to a three-level reduction which would give her an offense level of 28 which has a Guidelines range of 78 to 97 months. If Michelle had no criminal history, this would be her total offense level.

Example 2: The Drug Case. John is convicted of possession with the intent to distribute 25 grams of cocaine. Based on the Federal Sentencing Guidelines, the base offense level for 25 to 50 grams of cocaine is 14 which calls for 15 to 21 months in prison. But the following enhancements may then apply to John’s case:

· Possession of a dangerous weapon: +2 levels

· Use of violence of a credible threat: +2 levels

· Use of aircraft to import the drugs: +8 levels

· The purpose was to distribute inside prison: +2 levels

· The use of mass marketing: +2 levels

· Bribing a law enforcement officer: +2 levels

· Maintaining a residence for the purpose of distributing drugs: +2

If John was held accountable for all of these enhancements, his offense level would jump to 34 which calls for 151 to 188 months in prison. After enhancements, there are other adjustments that can be made which are usually related to the defendant’s role in the offense.

· Aggravating role: +2 to +4 (if organizer or leader)

· Mitigating role: -2 to -4 (depending on the role)

· Abuse of position/trust or use of special skill: +2

· Using a minor in the offense: +2 

· Obstructing justice: +2

· Reckless endangerment during flight: +2

· Commission of offense while on release: +2

If all of the adjustments (aside from mitigating role) applied, the total offense level would be 42 which calls for 360 months to life in prison. The next step is to determine acceptance of responsibility. If the defendant entered a plea of guilty, then he will likely receive a three level reduction. This would lower the offense level to 39 which calls for 262 to 327 months in prison.

Lastly, a defendant’s criminal history score can have a dramatic impact on the recommended sentence. A defendant with the above enhancements who has no criminal history would still have a Guidelines range of 262 to 327 months. If a defendant has prior convictions, the range could increase significantly.

What are the 3553 factors in federal sentencing?

It is easier to estimate your Federal Sentencing Guidelines range than to estimate how much credit a judge might give you under 18 U.S.C. § 3553(a). These 3553(a) factors often cause judges to go below (and sometimes well below) the sentence recommended by the Federal Sentencing Guidelines. In fact, Congress has mandated that judges must consider these factors before sentencing a defendant in federal court. The statute states that “[t]he court shall impose a sentence sufficient, but not greater than necessary” to achieve the purposes of sentencing and that the Court shall consider the following factors:

• The circumstances and nature of the offense. Just because you were convicted of an offense doesn’t mean that you should be sentenced the same as someone else. The judge will consider whether violence was used, whether there are any victims, whether your involvement was limited in scope and duration, and how severely the conduct may affected victims in the case.
   
• The defendant’s personal characteristics and history. In many cases, this can be the most influential factor in a judge’s sentence. Is this the first time you’ve been in trouble? Can your age and physical health tolerate prison? Do you have any learning disabilities? Did you have a rough upbringing? Were you easily influenced by other people? Have you done good things in your life? Everyone’s story is different and it is your lawyer’s job to put your life story in the best possible light.

• Sentencing disparities. A judge is supposed to sentence you similarly to others convicted of similar offenses. But there are many arguments to be made about what this means. Does this mean other defendants sentenced in the same case? Does it mean defendants sentenced in other case, other districts, or nationwide? Your attorney will examine your case and how it compares to other cases to craft an argument for why you should receive a lenient sentence.

• The kind of sentences available.In federal court, prison often isn’t the only sentence available. A court can also impose what are essentially probation sentences with a number of conditions (home detention, electronic monitoring etc). Depending on your case and your particular judge, your lawyer can craft a sentence that is reasonable and sensible under the circumstances.

Our law firm has been successfully in obtaining outcomes at sentencing that only seemed impossible. In one case, our client was facing a mandatory minimum of 10 years in prison and her Federal Sentencing Guidelines called for more than 140 months in prison. At the conclusion of the sentencing hearing, the judge sentenced our client to probation with no additional time in custody. This was a tremendous victory but not the result of luck or chance. By properly preparing our client, filing thorough objection, challenging the probation office’s enhancements, and fully preparing for the sentencing hearing, we were able to achieve this result. In other words, it takes experience, hard work, and an attorney that cares about his client and his client’s family. 

If you or someone you know is facing federal sentencing or has questions about sentencing in federal court, you should contact an experienced federal defense lawyer. Our defense attorneys will be happy to speak with you and let you know how we can make a difference. The initial consultation is always free of charge.