Federal Sentencing Attorneys
Get the Lowest Possible Sentence in Federal Court
Our federal sentencing attorneys are experts in the federal sentencing guidelines and are nationally recognized for helping people get the lowest possible sentence for a federal crime.
To better understand the federal sentencing process, here is a summary of the critical steps and most important terms a person convicted of a federal crime needs to know. If you need help, a federal sentencing expert from our firm can help guide you through the process to obtain the best possible result in federal court.
What is a Presentence Investigative Report?
A Presentence Investigative Report (or PSR) is a document prepared by the United States Probation Office that provides details of the offense and the background and criminal history of the person who is going to be sentenced. The PSR also calculates the advisory sentencing guidelines applicable to the case. A draft PSR is provided to both sides well before the sentencing hearing so they can make objections and request changes. The final PSR is then submitted to the judge before the hearing. The judge will discuss PSR at the sentencing hearing and may rely heavily on it when deciding what the sentence should be.”
This is why the PSR is very important. The defense lawyer should review the PSR carefully with his or her client to make sure all of the information is accurate. The lawyer should also carefully research the sentencing guidelines to make sure they are accurately calculated. Our lawyers will contact the Probation Office well before the draft PSR is prepared to make sure the Officer is aware of our position and why we think a particular guideline, enhancement, or reduction may or may not apply to the case. We have found that being proactive at this stage greatly improves our client’s chance at a favorable sentence.
The judge will rely on the PSR in determining the defendant’s sentence. The Bureau of Prisons (“BOP”) will also rely on it in determining the inmate’s facility, security designation, and eligibility for certain programs, some of which can allow the inmate to get released early. The PSR lists the minimum and maximum punishments for the crime as well as the recommended sentencing range.
Before the PSR is drafted, the defendant must be interviewed by the probation officer preparing the PSR. The defendant should always have his or her attorney present for the interview. While the defendant does not have to discuss the details of the case, and often shouldn’t, they will have to provide information about their background, finances, and other relevant information. If the defendant has pleaded guilty, it is usually a good idea to submit a statement, reviewed by an attorney, where the defendant accepts responsibility for their offense.
The PSR covers everything from the defendant’s offense to the defendant’s background, including their family history, medical and mental health history, education, employment, and their criminal history. The PSR will also contain a detailed narrative describing the defendant’s offense, his or her role in the offense, and any other conduct that is related to the offense. Finally, and perhaps most importantly, the PSR includes a calculation of the Federal Sentencing Guidelines, explained below, and a recommended sentence based on those calculations. The defendant can submit objections the PSR based on inaccuracies, omitted facts, and its application of the Guidelines.
In almost every case, the Government will have prosecutors and agents feeding the probation officer information to put in the PSR, and it is rarely information that makes the defendant look good or sympathetic. To the extent they can, the Government will usually try to make the defendant look as culpable as possible.
In contrast, most defense lawyers never talk to the probation officer before the PSR is drafted and distributed to the Government and the defendant. And while the defendant then has an opportunity to object, by that point the officer has likely heard enough to make up their mind and will rarely change anything in the PSR before submitting it to the judge.
Our firm has been able to make a big difference in our clients’ sentences by contacting the probation officer preparing the PSR before they issue their first draft. By getting to the probation officer early and submitting documents and information that paint our clients in a better light, our presentencing advocacy can counter the negative information the Government will highlight. And even in cases where the probation officer ultimately agrees with the Government, our advocacy can result in the officer including both sides of the story in the PSR or leaving certain issues up to the judge to decide.
What are the Federal Sentencing Guidelines?
The Federal Sentencing Guidelines are policies and rules that judges must use to calculate a recommended sentence based on a defendant’s “offense level” and their “criminal history score.” After the judge calculates the offense level and the criminal history score, the judge will refer to the Sentencing Table below for the recommended sentencing range:
While judges have the power to sentence defendants above or below the recommended Guidelines range, the Guidelines still have a significant impact on the defendant’s sentence. Most judges treat the Guidelines as a starting point, so it is crucial to calculate them correctly and advocate for the lowest range possible. The Supreme Court has held that judges have “the ultimate responsibility to ensure that the Guidelines range it considers is correct” and that “an error resulting in a higher range…usually establishes a reasonable probability that a defendant will serve a prison sentence that is more than necessary to fulfill the purposes of incarceration.”
Calculating the Offense Level
A defendant’s offense level depends on the defendant’s crime of conviction and the specific facts of the case. The Guidelines are broken down into different sections for different types of crimes, such as drug offenses, fraud, and sex offenses. Each offense comes with its own “base offense level,” which can then be increased or decreased by several points based on the specific facts of the case.
For example, a defendant convicted of wire fraud starts with a base offense level of 7 but faces an enhancement of several points based on the “loss amount,” which in turn is based on the amount of money that the victims lost or the defendant made. Sentences for fraud offenses can also be based on enhancements for the number of victims, whether the offense involved a bank or a federal program, and other offense-specific facts.
Similarly, drug offenses start with a base offense level based on the quantity of drugs involved, and additional offense level points can be added if there was a firearm or violence involved, if someone died from an overdose that can be tied back to the defendant, and if the defendant used a “stash house.” Sometimes the offense level is higher based on the defendant’s criminal history, such as when the defendant is sentenced under the Armed Career Criminal Act.
It is important to know that the judge’s review is not limited to the offense you pleaded guilty to. The judge can consider any “relevant conduct” when calculating your offense level. If a defendant is convicted for one drug deal, for example, the judge can consider other drug deals as part of a pattern and calculate a higher drug quantity and offense level as a result. Similarly, even if the government dismisses a firearm charge in exchange for a guilty plea to a drug charge, the judge can still consider the firearm to enhance the defendant’s offense level.
The Guidelines also have enhancements and reductions based on the defendant’s role in the offense, such as whether they are a kingpin, had authority over others, or had very minor roles. A drug mule working at the bottom of a criminal organization, for example, may qualify for a 2-point reduction to their offense level. An enhancement can also apply if the defendant obstructed justice by tampering with witnesses, falsifying evidence, or making false statements. On the flip side, a defendant can get reduction to their offense level by accepting responsibility for their offense.
It’s crucial to have an attorney on your side who is familiar with the Guidelines. The wrong enhancement can not only increase your sentence but can also have collateral consequences. For example, a role enhancement or firearm enhancement can result in stricter conditions in prison or prevent a defendant from qualifying for the “safety valve,” a law that allows judges to sentence minor drug offenders below the mandatory minimums.
Watch our video on how to apply the Sentencing Guidelines in a federal criminal case.
Determining the Criminal History Category
A defendant receives points for each qualifying prior conviction they have, and the total points they receive is the “criminal history score” that determines the defendant’s “Criminal History Category.”
The Sentencing Guidelines only count prior convictions towards the criminal history score if they occurred within ten or fifteen years of the defendant’s current offense, depending on the type of conviction. A defendant gets 3 points for prior sentences that lasted over a year, 2 points for prior sentences lasting at least 60 days, and 1 point for other kinds of sentences (such as suspended sentences). A defendant can also get additional points if they committed their current offense while serving another sentence or term of probation. Prior convictions for certain minor offenses don’t count, such as traffic offenses, juvenile offenses, and resisting arrest.
The PSR includes a list of all of the defendant’s prior convictions and arrests, even those that do not end in a conviction. As discussed, an experienced federal attorney can object to the PSR including certain arrests and convictions if the probation officer is relying on inaccurate information. Sometimes, an attorney can also argue that a particular prior conviction has received too many points or does not qualify for any points at all based on the timing of the prior conviction or length of the sentence. For example, sometimes a defendant has two prior convictions that they received sentences for on the same day, which would only count as one prior conviction when calculating the defendant’s criminal history score.
What is a “Career Offender”?
Under the Sentencing Guidelines, a “career offender” is a defendant with more than one prior conviction for a qualifying “crime of violence” or a “controlled substance offense.” If a defendant is a “career offender,” they are automatically given a higher offense level and criminal history score, resulting in a much harsher sentence even if their offense was relatively minor.
Since defendants are often considered “career offenders” based on prior state court convictions, an experienced federal defense attorney can sometimes help a defendant avoid “career offender” treatment by showing that their prior conviction under state law does not qualify as a “crime of violence” or “controlled substance offense” under federal law. Our firm has had success getting clients a shorter sentence by showing that the judge that the defendant’s prior convictions don’t count or that, even if the defendant is technically a “career offender,” the Guidelines drastically overstate their offense and history.
Can You Get a Sentence Below the Sentencing Guideline Range?
Yes, absolutely. In fact, most of our clients receive sentences well below the sentencing guidelines range.
It’s important to remember that the advisory sentencing guidelines do not determine the exact sentence a person will receive. While a federal judge must calculate the guidelines and take them into consideration when determining the sentence a person will receive in federal court, the judge has the authority to go below the guidelines range based on a number of factors.
This wasn’t always the case. The Sentencing Guidelines used to be mandatory. Once the Guidelines were calculated by the judge, the judge had to impose a sentence within that range with only very limited exceptions (a defendant’s cooperation with the government being the big one).
All this changed in 2005. The Supreme Court held in United States v. Booker that the Guidelines are only “advisory,” meaning the judge can impose a sentence that is below or above the recommended sentencing range calculated under the Guidelines. This was a landmark decision because the Guidelines often exaggerate the defendant’s offense or criminal history, and the sentencing range they produce are usually much harsher than the sentence should be.
After the Booker decision, defendants and their attorneys can request that the judge impose a “downward variance” from the Guidelines, meaning a sentence below the recommended range, while prosecutors sometimes argue for an “upward variance.” Before a defendant agrees to plead guilty, they should review the proposed plea agreement with their attorney to see if the agreement forces the defendant to agree to a certain sentence or sentencing range, or whether the defendant can still argue for a sentence below the Guidelines.
What is a Sentencing Memo?
A Sentencing Memo is a document prepared by the defense lawyer to help his or her client get the best possible sentence for a federal case. A Sentencing Memo (or “Sentencing Memorandum”) includes helpful details about the case and the defendant’s personal history that may have been missed by the Probation Officer or ignored by the government.
We often include character letters from friends and family and other helpful exhibits that show why our client should let the lowest possible sentence. In cases where the story about what really happened, or our client’s actual role in the case, has been misinterpreted or ignored, we will also lay out our version of the facts so the judge can better understand both sides.
The Sentencing Memo needs to be submitted to the judge well before the sentencing hearing. In most courts, there are specific deadlines that must be followed when filing a Sentencing Memo.
Unfortunately, some lawyers wait until the last minute or don’t file a memo at all. That is inexcusable to us. In our experience, a well written Sentencing Memo can make a huge difference in the sentence a person receives in federal court. And since most federal judges have the sentence they are going to impose in mind well before the hearing even starts, a persuasive Sentencing Memo must be filed with the judge to give him or her time to review it and consider the reasons why a sentence lower than what the government or Probation Office is recommending is appropriate in the case.
The Sentencing Memo should address the Guidelines issues in the case, but the Guidelines are not the only factors the judge must consider. In fact, in many cases, we want the judge to give very little weight to the Guidelines and instead focus on the factors under 18 U.S.C. § 3553(a).
Under 18 U.S.C. § 3553(a), the court must impose a sentence that is “sufficient, but not greater than necessary” based on the following factors:
- The nature of the offense
- The history and characteristics of the defendant
- The need for the sentence imposed to reflect the seriousness of the crime, promote respect for the law, and provide “just punishment”
- The need to deter the defendant and others from committing future crimes
- The need to protect the public from the defendant
- The need to provide the defendant with educational, vocational, medical, or rehabilitative treatment in the most effective manner
- The kinds of sentences available, such as probation or home confinement
- The need to avoid unwarranted sentencing disparities, meaning that the sentence should be consistent with the sentences of other, similar defendants
- The need to provide restitution to victims of the defendant’s offense
- The recommended sentencing range under the Guidelines
While the PSR contains background information about the defendant and the offense, the Sentencing Memo is the first and best opportunity to present the judge with a compelling narrative about the defendant. Our firm generally submits “character letters” with a Sentencing Memo, written by our client’s friends, family, and members of the community who support the defendant and can show the judge they are sentencing a human being, not just a defendant.
The Sentencing Memo is also a great opportunity to argue how a long prison sentence, or any prison time at all, can go against some of the factors listed above. For example, an elderly defendant with numerous medical conditions should be considered for house arrest rather than prison, or a defendant’s lack of a criminal history and minor role in the offense can support a probation sentence.
What Happens at a Federal Sentencing Hearing?
A federal sentencing hearing has several key parts and they generally follow a certain order. At the beginning of the hearing, the judge will make sure the defendant has received the PSR and reviewed it with his or her lawyer. The judge will then see if there are any objections to the facts or guideline calculations in the PSR that were not resolved by the Probation Officer. If there are unresolved objections, the judge will then hear evidence and arguments so he or she can rule on the objections and make the final guidelines calculations to determine the advisory sentencing guideline range.
After the judge determines what guidelines apply, the judge will state the applicable sentencing range. Of course, the sentence doesn’t have to be within that range since the Sentencing Guidelines are no longer mandatory.
The judge will then hear arguments and sometimes more evidence offered by the prosecutor and/or defense lawyer as to why the sentence should be higher or lower than the applicable guideline range. This evidence usually includes testimony from people who support the defendant, letters pleading for leniency, and other information the judge has not seen previously. Sometimes this part of the hearing can even involve a video presentation, depending on the defense’s sentencing strategy.
Before imposing the sentence, the judge will conduct an “allocution,” which is the defendant’s final opportunity to address the court. This can be terrifying for some defendants, so it can be helpful to have an attorney review the defendant’s prepared statements and give them advice. It’s usually not a good idea for the defendant to improvise on the spot. It’s an even worse idea for the defendant to try to paint themselves as a victim, attack the judge or the system, blame the victims, even if all of these things are true. Sometimes the judge will ask questions. We have found that as well-prepared defendant who accepts responsibility can often help themselves significantly with an honest back and forth conversation with the judge about what happened and why.
After the judge has imposed the sentence, the court will issue a judgment that lists the crimes the defendant has been convicted of, their sentence, including any term of supervised release, and the conditions of their supervised release, which can include things like drug testing, mental health treatment, and other requirements. In cases involving restitution orders, the judgment will reflect the restitution amount. The judgement should also include any recommendations the judge has made to the federal Bureau of Prisons (the “BOP”).
Our Firm’s Experience in Federal Sentencing Hearings
Our federal defense lawyers have helped countless clients obtain favorable outcomes at their sentencing hearings. For example, we were recently able to help a client avoid being sentenced as a “career offender” by filing a strong sentencing memorandum challenging the application of the Sentencing Guidelines. After filing our motion, the U.S. Probation Office revised our client’s PSR to remove the career offender designation.
In a recent federal drug conspiracy case, we were able to get our client a sentence of probation, even though his original charges came with a five-year mandatory minimum sentence. While probation sentences are rare in the federal system, especially in drug cases, we were able to achieve this result by showing the court at sentencing that our client is not a dangerous person, is unlikely to reoffend, and that the Guidelines’ recommended prison sentence was “greater than necessary” for our client.
If you or a loved one is preparing for a federal sentencing hearing and want an experienced federal defense lawyer by your side, contact our firm. Whether you have already been found guilty and are waiting for your sentencing hearing or are deciding between going to trial or pleading guilty, our experienced attorneys can help defend you or minimize the risks of a harsher sentence. If you already have an attorney, we are able to support that attorney by lending our expertise, or we can replace your attorney and represent you at the sentencing hearing.
We have successfully represented clients in federal criminal cases across the United States. Our firm has offices in Atlanta and Washington DC, and we frequently travel to other federal courts to represent people in serious federal criminal cases.
Recent Developments in Federal Sentencing Law
In December, the Third Circuit in United States v. Malik held that prior convictions for attempt crimes cannot be considered in determining whether a defendant has a prior conviction for a “controlled substance offense” and should be sentenced as a “career offender” under the Guidelines.
In December, the Sixth Circuit in United States v. Henry held that a defendant convicted under 18 U.S.C. § 924(c) who is entitled to a resentencing hearing must be sentenced under the amended version of § 924(c), which has lower mandatory minimum sentences.
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