San Antonio Federal Sentencing Hearings.
The sentencing hearing is where a judge decides if he will send a person to jail or give him probation. More importantly, if the judge sends someone to jail, he must also decide for how long. But the judge has a lot of leeway when making these choices.
Critically, this leeway gives people a chance to ask for a lenient sentence. To see why, we first need to look at Fed. R. Crim. P. 32. Notably, this rule explains how federal sentencing hearings work. It is also a tool people can use to push for the lightest sentence possible. (Rule 32 is listed below).
As an example, a person can use Rule 32 to tell the judge his PSR is wrong and the guideline range is too high. Accordingly, Rule 32 lets him file written objections showing the judge why they are wrong. If the judge agrees, then it can lead to a lower guideline range and a lower jail term.
After that, we will look at the 3553a factors. These are the factors a judge must consider before he decides what to do in a case. Like Rule 32, the 3553a factors give people another chance to ask for a low or soft sentence. The key takeaway is these two options allow a person to chip away at a possibly high jail term.
What does Federal Rule of Criminal Procedure 32 say?
Fed. R. Crim. P. 32. Sentencing and Judgment.
| Fed. R. Crim. P. 32. | Topic. | Federal Sentencing Procedures. |
|---|---|---|
| (a) | [Reserved.] | |
| (b) | Time of Sentencing. | |
| (b)(1) | In General. | The court must impose sentence without unnecessary delay. |
| (b)(2) | Changing Time Limits. | The court may, for good cause, change any time limits prescribed in this rule. |
| (c) | Presentence Investigation. | |
| (c)(1) | Required Investigation. | |
| (A) In General. The probation officer must conduct a presentence investigation and submit a report to the court before it imposes sentence unless: | ||
| (i) 18 U.S.C.§ 3593(c) or another statute requires otherwise; or | ||
| (ii) the court finds that the information in the record enables it to meaningfully exercise its sentencing authority under 18 U.S.C.§ 3553, and the court explains its finding on the record. | ||
| (B) Restitution. If the law permits restitution, the probation officer must conduct an investigation and submit a report that contains sufficient information for the court to order restitution. | ||
| (c)(2) | Interviewing the Defendant. | The probation officer who interviews a defendant as part of a presentence investigation must, on request, give the defendant's attorney notice and a reasonable opportunity to attend the interview. |
| (d) | Presentence Report. | |
| (d)(1) | Applying the Advisory Sentencing Guidelines. | The presentence report must: |
| (A) identify all applicable guidelines and policy statements of the Sentencing Commission; | ||
| (B) calculate the defendant's offense level and criminal history category; | ||
| (C) state the resulting sentencing range and kinds of sentences available; | ||
| (D) identify any factor relevant to: | ||
| (i) the appropriate kind of sentence, or | ||
| (ii) the appropriate sentence within the applicable sentencing range; and | ||
| (E) identify any basis for departing from the applicable sentencing range. | ||
| (d)(2) | Additional Information. | The presentence report must also contain the following: |
| (A) the defendant's history and characteristics, including: | ||
| (i) any prior criminal record; | ||
| (ii) the defendant's financial condition; and | ||
| (iii) any circumstances affecting the defendant's behavior that may be helpful in imposing sentence or in correctional treatment; | ||
| (B) information that assesses any financial, social, psychological, and medical impact on any victim; | ||
| (C) when appropriate, the nature and extent of non prison programs and resources available to the defendant; | ||
| (D) when the law provides for restitution, information sufficient for a restitution order; | ||
| (E) if the court orders a study under 18 U.S.C.§ 3552(b), any resulting report and recommendation; | ||
| (F) a statement of whether the government seeks forfeiture under Rule 32.2 and any other law; and | ||
| (G) any other information that the court requires, including information relevant to the factors under 18 U.S.C.§ 3553(a). | ||
| (d)(3) | Exclusions. | The presentence report must exclude the following: |
| (A) any diagnoses that, if disclosed, might seriously disrupt a rehabilitation program; | ||
| (B) any source of information obtained upon a promise of confidentiality; and | ||
| (C) any other information, that, if disclosed, might result in physical or other harm to the defendant or others. | ||
| (e) | Disclosing the Report and Recommendation. | |
| (e)(1) | Time to Disclose. | Unless the defendant has consented in writing, the probation officer must not submit a presentence report to the court or disclose its contents to anyone until the defendant has pleaded guilty or nolo contendere, or has been found guilty. |
| (e)(2) | Minimum Required Notice. | The probation officer must give the presentence report to the defendant, the defendant's attorney, and an attorney for the government at least 35 days before sentencing unless the defendant waives this minimum period. |
| (e)(3) | Sentencing Recommendation. | By local rule or by order in a case, the court may direct the probation officer not to disclose to anyone other than the court the officer's recommendation on the sentence. |
| (f) | Objecting to the Report. | |
| (f)(1) | Time to Object. | Within 14 days after receiving the presentence report, the parties must state in writing any objections, including objections to material information, sentencing guideline ranges, and policy statements contained in or omitted from the report. |
| (f)(2) | Serving Objections. | An objecting party must provide a copy of its objections to the opposing party and to the probation officer. |
| (f)(3) | Action on Objections. | After receiving objections, the probation officer may meet with the parties to discuss the objections. The probation officer may then investigate further and revise the report as appropriate. |
| (g) | Submitting the Report. | At least 7 days before sentencing, the probation officer must submit to the court and to the parties the presentence report and an addendum containing any unresolved objections, the grounds for those objections, and the probation officer's comments on them. |
| (h) | Notice of Possible Departure from Sentencing Guidelines. | Before the court may depart from the applicable sentencing range on a ground not identified for departure either in the presentence report or in a party's pre[-]hearing submission, the court must give the parties reasonable notice that it is contemplating such a departure. The notice must specify any grounds on which the court is contemplating a departure. |
| (i) | Sentencing. | |
| (i)(1) | In General. | At sentencing, the court: |
| (A) must verify that the defendant and the defendant's attorney have read and discussed the presentence report and any addendum to the report; | ||
| (B) must give to the defendant and an attorney for the government a written summary of--or summarize in camera--any information excluded from the presentence report under Rule 32(d)(3) on which the court will rely in sentencing, and give them a reasonable opportunity to comment on that information; | ||
| (C) must allow the parties' attorneys to comment on the probation officer's determinations and other matters relating to an appropriate sentence; and | ||
| (D) may, for good cause, allow a party to make a new objection at any time before sentence is imposed. | ||
| (i)(2) | Introducing Evidence; Producing a Statement. | The court may permit the parties to introduce evidence on the objections. If a witness testifies at sentencing, Rule 26.2(a)-(d) and (f) applies. If a party fails to comply with a Rule 26.2 order to produce a witness's statement, the court must not consider that witness's testimony. |
| (i)(3) | Court Determination. | At sentencing, the court: |
| (A) may accept any undisputed portion of the presentence report as a finding of fact; | ||
| (B) must--for any disputed portion of the presentence report or other controverted matter--rule on the dispute or determine that a ruling is unnecessary either because the matter will not affect sentencing, or because the court will not consider the matter in sentencing; and | ||
| (C) must append a copy of the court's determinations under this rule to any copy of the presentence report made available to the Bureau of Prisons. | ||
| (i)(4) | Opportunity to Speak. | |
| (A) By a party. Before imposing sentence, the court must: | ||
| (i) provide the defendant's attorney an opportunity to speak on the defendant's behalf; | ||
| (ii) address the defendant personally in order to permit the defendant to speak or present any information to mitigate the sentence; and | ||
| (iii) provide an attorney for the government an opportunity to speak equivalent to that of the defendant's attorney. | ||
| (B) By a Victim. Before imposing sentence, the court must address any victim of the crime who is present at sentencing and must permit the victim to be reasonably heard. | ||
| (C) In Camera Proceedings. Upon a party's motion and for good cause, the court may hear in camera any statement made under Rule 32(i)(4). | ||
| (j) | Defendant's Right to Appeal. | |
| (j)(1) | Advice of a Right to Appeal. | |
| (A) Appealing a Conviction. If the defendant pleaded not guilty and was convicted, after sentencing the court must advise the defendant of the right to appeal the conviction. | ||
| (B) Appealing a Sentence. After sentencing--regardless of the defendant's plea--the court must advise the defendant of any right to appeal the sentence. | ||
| (C) Appeal Costs. The court must advise a defendant who is unable to pay appeal costs of the right to ask for permission to appeal in forma pauperis. | ||
| (j)(2) | Clerk's Filing of Notice. | If the defendant so requests, the clerk must immediately prepare and file a notice of appeal on the defendant's behalf. |
| (k) | Judgment. | |
| (k)(1) | In General. | In the judgment of conviction, the court must set forth the plea, the jury verdict or the court's findings, the adjudication, and the sentence. If the defendant is found not guilty or is otherwise entitled to be discharged, the court must so order. The judge must sign the judgment, and the clerk must enter it. |
| (k)(2) | Criminal Forfeiture. | Forfeiture procedures are governed by Rule 32.2. |
What happens before a Federal Sentencing Hearing?
The time after a person pleads guilty but before the judge sentences him is where the real magic in a case happens. When a person either pleads guilty or is found guilty by a jury, the court will reset the case for a few months. (Note–in some cases a judge may sentence a person right after the person pleads guilty.)
Further, Rule 32 allows a probation officer to meet with the defendant before sentencing. During this meeting, the probation officer will ask the person about his life and background. It is important for the person to answer the officer’s questions honestly. If the officer catches him in a lie, then it can hurt him at sentencing.
Plus, the probation officer will ask the person about the crime or crimes he pleaded guilty to. This is an important question that a person should be prepared to answer. He should give the officer a statement that shows remorse for what he did or for what happened. (There is a sample statement below).
This statement, along with timely pleading guilty, will show the person accepts responsibility for what he did. This will drop the person’s offense level by two or three points. This in turn, will lead to a lower guideline range. As a result, the person will most likely get less jail time.
Information collected by the probation department.
Later, the officer prepares a PSI report. This report will set the stage for the sentencing hearing. The report includes the defendant’s:
- Family history and background;
- Prior criminal record;
- Financial status;
- Work history;
- Education and training;
- Medical issues;
- History of drug use; and
- Community ties.
On top of that, the officer will figure out the person’s guideline range. This gives the person an idea of how much jail time he may get.
For instance, the person may be sentenced for a low-level alien smuggling case where his guideline range is between 10-16 months in jail. Or he could be facing real time on a drug case. On these types of drug cases, a person can easily be looking at a minimum of 10 years in jail. Worse yet, his guideline range maybe 15 to 20 years in jail.
Self-Help Defense.
During the presentence investigation part of the case, the defendant can take important steps to help himself. He can give the probation officer key documents to include in the report. Namely, the defendant can provide the following:
- Medical records, if any, showing his health status;
- Pay stubs showing his work history;
- Military records, honors, or medals he earned;
- Social Security disability records showing why he cannot work;
- College degrees or trade-school programs he completed or earned;
- Leadership awards from work or the community; and
- Proof that he volunteered as a coach, PTA member, or for some other civic duty.
This will help the officer write the report. Above all, the lawyer can use this information to ask the judge for a less jail time. The major reason is these documents help humanize the defendant. Stated another way, “this is a real person, not just a criminal.”
Object to the PSR.
After the probation officer prepares the report, she will give a copy of the report to the government and the defense. The defense must review this report carefully for mistakes. In some cases, the report is simple and there are no errors.
But in more complex cases, the report may overstate the guideline range. Or it may omit information that is helpful to your case. This happens often in complex fraud and theft crimes. It is difficult in some of these cases to figure out how much the person stole or how much the victim lost.
When this happens, it is helpful to hire a PSR Consultant to double check the report. The consultant acts as a safety net to make sure the defense did not miss anything. Otherwise, your report may overstate what you did wrong. This could lead to extra jail time.
To stop this from happening, the defense must spot the mistakes. Once the defense finds the mistakes, then the lawyer can write a letter to the officer and the government. The letter will tell them what is wrong with the report and why it should be changed.
After this, the officer may agree with the defense and change the report. But if the officer does not agree with you, then he or she will file an addendum to the report. It will tell the judge the problems the defense raised with the report and why the officer does or does not agree. From there, the judge will make the final decision at the sentencing hearing.
What happens at the Federal Sentencing hearing?
The judge follows a specific process during sentencing hearings. First, the judge will make sure the defendant reviewed the PSR with his or her lawyer. Next, the judge will ask if there are any errors in the report. This is when the judge will resolve the objections we talked about before. Once the judge makes sure the PSR is correct, he will move into the sentencing phase.
During the sentencing phase, the judge will give everyone a chance to speak. This includes the government, the defendant, and the defense lawyer. The defendant can speak, but he does not have to. Each side can ask for the sentence they believe best fits the crime. Following that, the judge will take into account the 3553a factors and decide the punishment for the defendant.
What are the 3553a factors?
The 3553a factors are laws that help a judge figure out the right sentence in each case. In particular, the law is 18 U.S.C. §3553(a). It lists 7 things a judge must consider before he decides on the sentence. Most important of all, a person can use the 3553a factors to push for a light sentence.
Of major interest, the 3553a factors work together with the guidelines to make sure the judge treats all people fairly and equally. This means two things. First, the probation officer figures out the guidelines. Second, the judge uses the 3553a factors to make sure the punishment fits the crime.
To recap, the guidelines give judges a rough estimate of how much jail time a person should get. From there, the 3553a factors allow the judge to tailor the jail time to fit each person based on his or her own unique facts. This two-step process best summarizes what happens at a sentencing hearing.
18 U.S.C. § 3553(a) factors.
| 18 USC 3553 | Imposition of a Sentence. |
|---|---|
| (a) | 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-- |
| (a)(1) | the nature and circumstances of the offense and the history and characteristics of the defendant; |
| (a)(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; | |
| (a)(3) | the kinds of sentences available; |
| (a)(4) | the kinds of sentence and the sentencing range established for-- |
| (A) the applicable category of the offense committed by the applicable category of defendant as set forth in the guidelines-- (i) issued by the Sentencing Commission pursuant to section 994(a)(1) of title 28, United States Code, subject to any amendments made to such guidelines 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 (ii) that, except as provided in section 3742(g), are in effect on the date the defendant is sentenced; or | |
| (B) 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 994(p) of tile 28); | |
| (a)(5) | any pertinent policy statement-- |
| (A) 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 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; and | |
| (B) that, except as provided in section 3742(g), is in effect on the date the defendant is sentenced. | |
| (a)(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 victim of the offense. |
These are the 3553a factors a judge will use to decide how much jail time a person will get in federal court. This is also the law a defendant can use to ask for a lower sentence.
As we mentioned above, the defendant can submit certain documents to the probation officer before the sentencing hearing. Then at sentencing, the defense can use these documents to support a lower jail term based on the 3553a factors.
Finally, the phrase "[t]he court shall impose a sentence sufficient, but not greater than necessary . . ." is critical. It requires the judge to take a measured approach at sentencing. This allows the defense to talk about facts beyond the crime to support a lenient sentence.
What should I say at my federal sentencing hearing?
This depends on your case. If you went to trial and lost, then you need to speak with your lawyer on whether you should say anything at all. Especially if you think you are not guilty. (There are technical reasons for this that are beyond the scope of this post.)
But if you pleaded guilty, then the first thing you should do when you talk to the judge is say you are sorry. This is a major point. People plead guilty because they want to get a lighter sentence. To do this in federal court, the law requires you to show remorse for what you did.
Below is an example of what you can say to show remorse:
I apologize to the court and to the community for the harm my actions caused. I also regret the pain my actions caused to my family and friends. [From here explain why you are remorseful. You may also want to talk about what you learned and what your plans are going forward. The key is for your statements to be genuine and sincere. Finally, it is usually best to keep your statements short and sweet. That is to say, get to your point quickly but without rushing.]
Sample Statement to give at a Federal Sentencing hearing.
This statement shows the person accepts responsibility for what happened. This will also help the person secure a lower sentence.
In sum, when you speak at sentencing, lead with an apology. From there you can talk about how this experience affected the people in your life. But one thing you should never do is deny you did anything wrong–otherwise–why would you plead guilty?
San Antonio Federal Criminal Defense.
Sentencing hearings are emotionally tough. The defendant is under serious stress and anxiety. There is also a real possibility that he may go to jail for a long time. To add to that, it is also a low point in that person’s life.
But there are things a person in this situation can do to help himself out. These steps can–hopefully–get him a lower sentence. Most important of all, taking these steps will give him some control over his own fate.
Defense Attorney Genaro R. Cortez.
Phone: 210-733-7575.