Federal Sentencing

Federal sentencing proceedings are typically much different than state court sentencing. Most federal jurisdictions follow a bifurcated system where a separate sentencing hearing is held before a U.S. District Judge following a guilty plea or conviction at trial. These federal sentencing hearings are governed by Rule 32 of the Federal Rules of Criminal Procedure and revolve around the U.S. Sentencing Guidelines as well as the sentencing factors listed in 18 U.S.C. § 3553(a).

The Presentence Investigation Report

After conviction but prior to sentencing, the United States Probation Office will prepare a document called a Presentence Investigation Report (PSR for short). The PSR is likely the most important to document in federal sentencing proceedings. The PSR documents all of the offense conduct for the conviction, including relevant conduct as defined by U.S.S.G. § 1B1.3.

The PSR uses the offense conduct to calculate an advisory sentencing guidelines range using the United States Sentencing Guidelines. While these guidelines are only “advisory,” the district court is required to use this range as a “starting point” in determining the ultimate sentence it imposes.

The Guideline range is determined by assessing an offense level based on the offense conduct. Most federal offense start with a “base offense level” that is then enhanced or lowered based on aggravating or mitigating factors. A total offense level can range from 1 to 43.

The PSR next calculates a defendant’s “criminal history score.” This is done by reviewing all of a defendant’s prior arrests and convictions and assigning points under the Guidelines. The number of criminal history points corresponds to a Criminal History Category ranging from I to VI.

Using the Sentencing Table found in Chapter 5 of the Guidelines, the PSR will determine a defendant’s advisory guidelines range. For example, an offense level of 28 combined with a Criminal History Category II produces a Guidelines range of 87 to 108 months imprisonment.

Objecting to the PSR

Before sentencing, both the government and defendant can file objections to the findings of the PSR. These can be factual objections to the offense conduct, or objections to the guidelines calculations such as the applicability of certain enhancements or criminal history calculations.

U.S. Probation will usually respond to the objection in writing in a Presentence Investigation Report Addendum. If the objection remains unresolved at sentencing, the district court will hear argument on the objection and make a ruling before adopting the PSR.

Failure to object to facts or calculations in the PSR can mean the issue is waived for appellate review. It is critical to any sentencing proceeding that the defense attorney know and understand the Guidelines intricacies and nuances to make proper objections before a sentence is imposed.

Sentencing Memoranda

Separate from the PSR and objections, both the government and defense can file sentencing memorandums to support their position on what sentence should be imposed. A sentencing memorandum is an important tool to provide the court with background and  mitigating information that may not have been included in the PSR. It is also an opportunity to request the court vary from the Guidelines based on factors listed under 18 U.S.C. § 3553(a).

18 U.S.C. § 3553(a) Sentencing Factors

While the Guidelines are the starting point for any federal sentencing, the 3553(a) sentencing factors are the end. These factors determine whether the court should sentence a defendant within the advisory guidelines, or if it should vary upward or downward from the otherwise applicable range. The purpose of these factors are to ensure the court imposes a sentence “sufficient, but not greater than necessary.” These factors include:

(1) the nature and circumstances of the offense and the history and characteristics of the defendant;

(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,

(3) the kinds of sentences available;

. . .

(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 victims of the offense.

18 U.S.C. § 3553(a).

These factors play a major role in the court’s wide discretion in imposing a sentence. Moreover, the § 3553(a) factors often come up again on resentencings, reductions in sentence under 18 U.S.C. § 3582(c)(2), and compassionate release. It is imperative that the 3553(a) factors are properly addressed at sentencing to avoid a sentence that may be harsher than necessary.

Types of Sentences

Probation:

The district court can only order a term of probation if the defendant’s guideline range fall in Zone A of the Sentencing Table (Guideline range of 0-6 months imprisonment). A term of probation may be imposed for guidelines in Zone B only if the court also orders intermittent confinement, community confinement, or home detention.

Generally, most offenses will not be eligible for probation.

Imprisonment:

If the court orders a term of imprisonment then the defendant will be committed to the custody of the Federal Bureau of Prisons (“BOP”). It is important to note that parole has been abolished in the federal system. This means that there is no possibility of being released early on parole like in most state cases. However, the BOP does give good time credit, so a defendant may only serve 85% of their sentence with good time calculations. The court can recommend what BOP facility the defendant is designated to, but the BOP is not bound by that recommendation. 

If the defendant is convicted of multiple counts, the court may order the sentences to be served consecutively or concurrently to one another. In most cases, the decision to run the sentences concurrently is up to the court’s discretion. However, certain offenses such as 18 U.S.C. § 924(c) or 18 U.S.C. 1028A mandate consecutive sentences.

The court may also order the federal sentence run concurrently or consecutively to a state sentence. Unless the court specifies otherwise, it is presumed that the sentence runs consecutively to any other sentence. 

Supervised Release:

In addition to a term of imprisonment, the court can also impose a term of supervised release. Supervised release is similar to probation, but takes place after completing the term of incarceration. A defendant serving a term of supervised release is still serving a sentence, even if they are not incarcerated.

Supervised release can be terminated early after completing one year under certain circumstances. If a defendant violates the terms of their supervised release, they can have the release revoked and be sent back to prison for the remainder of their term. 

Restitution:

A court may impose monetary restitution as part of its sentence. Under the Mandatory Victim Restitution Act, 18 U.S.C. § 3663A, the court must order restitution for victims directly or proximately harmed by the offense. Restitution orders can be appealed to the United States Courts of Appeals. 

Appeal:

After judgment imposing a sentence is entered, a federal criminal defendant has 14 days to file a notice of appeal. Fed. R. App. P. 4. A direct criminal appeal is a means of asking a higher court to review potential errors committed by the district court. More information on federal appeals can be found here.