Straight-A Guide Achievement
Achievement: Collaborative Relationships
Succeeding with your sentence-mitigation efforts requires that you succeed in working closely with your lawyer. With that end in mind, we’ve asked our partner, Shon Hopwood, to write a module on how to collaborate with a lawyer. For those of you that don’t know Shon, he is a professor of law at Georgetown and also a lawyer. He has a distinguished career of mitigation and accomplishments in prison and beyond. You can read about Shon in his book: Law Man: Memoirs of a Jailhouse Lawyer
Our team believes that in order to get the type of results that Shon earned from a sentence-mitigation strategy, it’s crucial to understand the road ahead.
How can you help your lawyer obtain the best possible outcome for you at sentencing? There are several ways to assist your lawyer in creating the best possible sentencing mitigation package. First, a person facing a sentencing hearing needs to understand how federal sentencing works.
Federal sentencing involves a multistep process. A sentencing judge’s discretion to impose a sentence is cabined by the statutory minimum and maximum penalties. Take mail fraud, for example, which prescribes a statutory minimum sentence of zero years and a statutory maximum of 20 years imprisonment. 18 U.S.C. § 1341. Under this statute, a judge can therefore impose almost any sentence between no imprisonment and up to 20 years. What the judge can’t do is to impose a sentence beyond the statutory maximum of 20 years without it being an illegal sentence from which the judge could be reversed on appeal.
Sometimes the federal statute contains a mandatory minimum sentence. If a person is convicted of possessing over 1 kilogram of heroin with the intent to distribute, then that person faces a mandatory minimum sentence of 10 years and up to life in prison. That means, absent the prosecutor filing a motion for a defendant’s cooperation under 18 U.S.C. § 3553(e), the sentencing judge must impose at least a 10-year sentence.
But is a judge’s discretion between the statutory minimum and maximum sentence unguided? No, because the Court must also consider the advisory U.S. Sentencing Guideline range before imposing a sentence. The Sentencing Guidelines manual is over 500 pages thick and it prescribes a method for determining what sentence the judge should impose.
Here is how the Guidelines work.
After a defendant is convicted, a federal probation officer conducts a presentence interview of the defendant. Counsel for the defendant must be given notice and the opportunity to attend the interview, and a defendant may invoke their constitutional right to remain silent during the interview, although failure to provide truthful information about the offense of conviction may result in denial of credit for acceptance of responsibility at sentencing.
You should never go to this interview without first preparing for the interview with your lawyer, and many lawyers attend the interview with their clients.
At the presentence interview, the probation officer will ask you questions about your offense and any related uncharged criminal conduct, criminal history, personal history (including family history and substance abuse history), financial circumstances, and numerous other issues potentially related to the court’s sentencing decision.
Although it is incumbent on your lawyer to understand the presentence report interview, we often find that lawyers are unaware of how the Federal Bureau of Prisons (“FBOP”) operates and how certain things must be presented to the Probation Office for inclusion in the presentence investigation report (“PSR”).
The primary example is the Residential Drug Abuse Program (RDAP). For those convicted of qualifying offenses, a prisoner taking RDAP can get up to a year off their sentence. But lawyers are not necessarily thinking about what happens after their client is sentenced, and their focus is often on getting the shortest sentence possible. So many lawyers don’t realize how important it is that any history of drug or alcohol use is well documented in the PSR. When the FBOP decides which prisoners will get into the RDAP program, it often relies on the PSR.
After the Probation Office finishes the interview, an Officer prepares a PSR that provides the Sentencing Guidelines calculations, including the advisory Sentencing Guidelines range that is based on a detailed scoring chart of both offense characteristics and criminal history. The advisory Guidelines range is the starting point for any judge about to impose a sentence.
The PSR contains not only information about the offense and offender but also a calculation of the relevant Sentencing Guidelines Range, and any bases that may exist for imposing a sentence outside of the applicable range.
The defense and prosecution must be provided a copy of the PSR at least 35 days before sentencing and must submit objections within 14 days of the sentencing hearing. The PSR is a confidential document that may not be disclosed to the public and must be filed under seal. A Probation Officer also submits to the court a confidential sentencing recommendation.
Importantly, the FBOP also uses the PSR to determine the offender’s prison classification and in deciding eligibility for various programs, including RDAP.
After the PSR is prepared, both defense counsel and the prosecution file written objections to the PSR. The Probation Office then addresses those objections and recalculates the Guidelines scoring. The Probation Office then prepares a final PSR, which is circulated to the sentencing judge, defense counsel, and the prosecutor. Included within the PSR is often a Probation Office’s recommended sentence, and that recommended sentence is normally within the advisory Guideline sentencing range.
Prior to sentencing, both the prosecution and defense counsel are allowed to file sentencing memorandums. The defense usually argues for a downward variance from the advisory Guideline range. The prosecution usually argues for a guideline range sentence. Both parties ask for a sentence of a particular number of months.
The sentencing memorandum is hugely important. It is likely the last document the judge and their clerks will read before the sentencing hearing. Because of its importance, you should ask to see a draft of the sentencing memorandum before your lawyer files it.
If the lawyer balks at your request for a copy of the sentencing memorandum, that means the lawyer might be waiting until the last minute to prepare it. You cannot let this happen. Demand it from your lawyer. Tell your lawyer you want to see a draft at least a week before it is filed. That will hopefully move your lawyer to spend more time on the memorandum.
The sentencing hearing occur before a judge. The defendant and counsel for both parties are allowed to provide input before a sentence is imposed. A judge may allow the parties to call witnesses and present evidence about disputed facts or other matters. Some lawyers also choose to prepare sentencing mitigation videos that are played before the judge.
The defendant may also speak (called allocution) before the judge imposes a sentence. Allocution is hugely important because the judge wants to hear from you directly without the filter provided by your lawyer. Some of the things to consider at allocution that align with the statutory goals of sentencing are the following questions:
What are your best accomplishments?
What are your best attributes?
What are your short- and long-term goals?
Why are you a better person now than when you committed the offense?
How would leniency promote your and other people’s respect for the law?
What is a just punishment for your offense and why?
Will giving you leniency cause other people not to break the law as you did?
Why will giving you leniency protect the public from further crimes by you?
Do you need educational or vocational training?
How would leniency provide you educational or vocational training?
Do you need medical care and can the FBOP provide that care?
How would leniency provide you with medical care?
What if anything would you say to the victims of your offense?
Why should the Judge give YOU a break?
In determining the proper sentence (whether within the guideline range or without), Congress directed sentencing judges to consider a number of goals. Title 18 United States Code Section 3553(a) provides the goals of sentencing:
(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—
(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;
(4) the kinds of sentence and the sentencing range established for—
(A) the applicable category of offense committed by the applicable category of defendant as set forth in the guidelines—
(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 section 994(p) of title 28);
(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 statement 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.
(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.
These § 3553(a) are the goalposts of sentencing and they provide a sentencing judge with wide discretion to fashion any kind of sentence whether within the Guideline range or a downward or upward variance from the Guideline range.
As you can see, the § 3553(a) sentencing factors are very broad, and you can assist your attorney in crafting the sentencing memorandum if you create a list of facts or witnesses who could write a letter or testify about the sentencing factors. For example, even if your crime is one that carries significant penalties (such as possession of child pornography), you can still emphasize “the history and characteristics of the defendant.” 18 U.S.C. § 3553(a)(1). That means your history of good deeds or character witnesses, and things like childhood trauma, drug and alcohol addiction, divorce, or the death of a child. Even if you don’t have any mitigating personal characteristics, you can also argue that your offense caused less harm the similarly situated offenders. And sometimes your lawyer can argue that the Guidelines are unduly harsh and therefore the judge should not use them as the benchmark in imposing a sentence.
Here are some other factors that could help your lawyer in presenting a mitigation case:
Any developmental hardships such as alcohol fetal syndrome or ADHD
Bad relationship with parents or siblings, or any abuse experienced as a child
Exposure to toxins
Early death of parents
Medical or mental health issues (including the medications you take)
Drug, alcohol, pornography, or gambling addiction
Military history especially service in combat
Prior juvenile or adult criminal history; child support or bankruptcy proceedings
Any volunteer or community work and charitable donations
Type of employment
Battered women syndrome
Voluntary disclosure of crime and/or cooperation
Be thinking about how your lawyer could prove any of these factors. Is it an issue where a physical document or record can prove say socioeconomic class? Or is it the type of factors, such as a mental health issues, that could be proved through a doctor’s testimony?
After the judge orally pronounces sentence, it must complete two documents: the “Judgment” in and the “Statement of Reasons.” Those documents memorialize in writing what the judge orally pronounced in court. The judgment specifies the sentence, any term of supervised release and the release conditions, and the financial penalties.
The judgment is a publicly accessible document. The Statement of Reasons, however, is a sealed part of the record. It provides information about whether the judge’s sentence was within or outside of the applicable Guideline range and the specific reasons for a sentence imposed outside the range.
The sentencing judge must also inform the defendant about appealing the sentence. A defendant must file a single page motion called a Notice of Appeal. The Notice of Appeal must be filed within 14 days from the day the judgment was entered. The Notice is a jurisdictional document, meaning that if it is not filed on time, the court of appeals has no jurisdiction to hear an appeal.
Your lawyer must file a Notice of Appeal if you request it. As a precaution, we encourage defendants to request that their lawyer file a Notice of Appeal in writing, in an email.
Some of the issues that can be raised on appeal are when a sentencing judge:
Wrongly applies the Sentencing Guidelines calculations
Wrongly imposed an upward departure or variance from the advisory Guideline range
Did not consider a key mitigating factor that your lawyer presented
Failed to properly explain the sentence it imposed
Imposed a sentence that created an unwarranted disparity between similarly situated defendants
Imposed an unreasonable sentence
Here are some questions that you may consider when preparing your sentence-mitigation package:
Describe steps you’ve taken to show what you’ve learned from this offense.
Describe your best attributes.
Describe your short-term goals.
Describe steps you’ve taken to show your commitment to achieving those short-term goals.
Describe your long-term goals.
Describe how your short-term goals relate to your long-term goals.
In what ways did preparing for sentencing prepare you for the rest of your life?
What steps did you take over the past 30 days to reconcile with the victims of your offense?
Help us understand the influences that led to your changed perceptions.
When your judge sees your mitigation package, what would you expect him to learn about you?