Federal Sentencing
“A judge cannot begin to consider a non-Guideline sentence under Booker or Rita unless lawyers argue for one and present evidence supporting it.”
In 1987, Congress enacted the Federal Sentencing Guidelines for the determination of criminal sentences in federal courts. For over twenty years, courts treated the Guidelines with the force of law. In 2006, the United States Supreme Court decided United States v. Booker and ruled that the Guidelines could not constitutionally hold the force of law, but only could be viewed as advisory to the sentencing judge's determination of sentence. The United States Sentencing Commission has published this overview of the guidelines.
Since the advent of Booker, federal sentencing has become both increasingly discretionary for judges and increasingly complex for those convicted of federal crimes. As Judge Gertner puts it, though the Guidelines are now considered advisory, one can expect a Guideline sentence unless he presents the court reasons for a variance or different sentence. Peter Smythe has over a decade of federal sentencing experience. Representation for sentencing purposes includes an exhaustive review of case materials, attendance at presentence interviews, the research and drafting of sentencing objections and memoranda, and a compilation of mitigating sentencing materials and argument. As sentencing has become more lawyer driven, it is ever more important for a federal defendant to retain experienced counsel in sentencing matters.
“It was not until after I pronounced sentence that defendant argued for something less. Too little; too late.”
In federal court, the vast majority of cases end in a guilty plea or conviction. The biggest battles – aside from going to trial – tend to be over the sentence. For a long time, judges were constrained to sentence people to a range set out by the United States Sentencing Commission. Sentences are no longer required to fall into the “guidelines range,” but judges still tend to use them as a reference point. The ultimate guiding principle in federal sentences is that they should be “sufficient but not greater than necessary.”
Importance of a sentencing memorandum in federal court
Your federal defense attorney can, and often should, ask for a downward departure, or a variance from the guidelines sentence. We always file a sentencing memorandum prior to the sentencing hearing in federal court, because it gives us an opportunity to try to persuade them even before the hearing begins. In the U.S. District Court in Boston, the judges tend to appreciate that extra work. The memorandum can set the tone for a sentencing hearing. And you better believe that the AUSA (Assistant U.S. Attorney) will file one for the prosecution.
Asking for a downward departure takes time and research, as the sentencing guidelines is a complex process. From there, appellate cases can add nuance to the rules laid out by the commission. Often, both sides disagree about the applicability of a proposed departure. The probation department will also weigh in, as they do their own guidelines calculation for the judge.
Downward departures in federal sentencing
Departures (both upward and downward) are authorized by the sentencing commission for a number of circumstances. If the judge allows a downward departure, it means the judge will sentence below the guidelines. A few reasons for downward departures include:
Criminal history
The sentencing guidelines allow for a downward departure “if reliable information indicates that the defendant’s criminal history category substantially over-represents the seriousness of the defendant’s criminal history or the likelihood that the defendant will commit other crimes.
Coercion and duress
If the defendant committed the crimes because of “serious coercion, blackmail or duress,” the judge can allow a downward departure.
Diminished capacity
A significantly reduced mental capacity while committing the crime can lead to a downward departure. The opinion of a licensed mental health provider can greatly assist in a request for a downward departure due to diminished capacity.
Voluntary disclosure of offense
In the odd case where a person turns themselves in, prior to the crime being discovered, the judge can “reward” them for the honesty, by granting a downward departure.
Substantial assistance
If a defendant provides substantial assistance (in other words, they decide to “rat”), the government can file a motion for a reduced sentence. We don’t represent rats, so this one never applies to our clients.
Family ties and responsibilities
A downward departure on the basis of family ties and responsibilities is “discouraged” by the sentencing commission. We have, however, successfully argued on this basis. For example, our client was the sole caretaker of her disabled, adult daughter. Our client’s daughter’s needs were so unique, and documented, that we were able to get the judge to agree that she was irreplaceable to her daughter’s care and well-being. As a result, the judge sentenced our client to probation, despite a lengthy guidelines prison sentence.
Variances in federal sentencing
After the judge has considered the guidelines sentence, and any departure requests, the judge will consider variance requests. There can be both a departure and variance in the same case.
The judge can consider almost anything when deciding whether to grant a variance from the guidelines sentence. We have successfully argued for variances in a wide array of issues. There are some general factors outlined by the sentencing commission, including: the nature and circumstances of the offense, the history and characteristics of the defendant, protection of the public, providing the defendant with educational or vocational training, the kinds of sentences available, and the need to avoid unwarranted disparity among similarly-situated defendants.
Given the vast number of reasons to make a variance request, your federal defense lawyer can be creative. There are standard aspects of sentencing memorandums, like humanizing our clients, and requesting character letters from family, friends, and other people who know the client well. Beyond those standard considerations, you are only limited by your defense attorney’s imagination. Of course, we get to know our clients well, often including discussions with family members, as part of our preparation for sentencing. In light of the stakes – our clients’ freedom – we extensively investigate, research, and determine the best arguments to mitigate our clients’ exposure to prison. In several cases, we have avoided prison altogether; not an easy task in federal court. In many cases, that is not a realistic goal, but a departure or variance may nonetheless significantly decrease the sentence.
The United States Sentencing Commission has published a booklet on Sentencing Basics.