19 Free Tips for Federal Sentencing

In FEDERAL CRIMINALby johncannon

The Federal Crimes Defense Attorneys at Cannon & Associates are FIERCE ADVOCATES for those charged with any and all federal crimes. We have successfully defending many clients in federal court across Oklahoma. 

We are led by John P. Cannon, a former Assistant District Attorney and Assistant Attorney General who prosecuted crimes in state court before becoming the experienced Edmond criminal defense attorney he is today. A successful defense can result in a case dismissal, dropped charges, or a not-guilty verdict at your federal criminal trial. 

If you or a loved one is under investigation or has been indicted, call us for a free confidential case evaluation. Edmond Federal Crimes Defense Attorney John Cannon is a FIERCE ADVOCATE and available to talk to you today. Call Cannon & Associates at (405) 657-2323 and prepare your defense.

Federal Sentencing Overview

The following are some of the most common grounds to seek a lighter sentence and how to fight for the best possible Presentence Report (“PSR”) or Presentence Investigation (“PSI”) by a probation officer. Early and often preparation for your federal sentencing hearing and efforts to improve the probation officer’s opinion of your case or your personal circumstances will greatly increase the likelihood of a positive Presentence Report or a lower guideline range for your federal sentencing hearing.

1) Sentencing Happens 

97 percent of Federal Defendants are sentenced at the conclusion of their case suggests the United States Sentencing Commission. Roughly 94 percent of all federal criminal defendants enter guilty pleas and 75 percent of federal defendants that go to trial are convicted. Therefore, the numbers support early and aggressive preparation for sentencing in federal criminal cases. 

Many of our clients are understandably focused on the following questions:

  • How much time will I serve?
  • Where will I do federal time?

This blog is intended to provide guidance to federal defendants and families facing federal criminal charges. Additionally, the following Federal Sentencing Tips may help you obtain the lowest possible or best possible sentence under the Federal Sentencing Guidelines with easier terms and earlier release. 

2) Sentencing Memorandum

Studies suggest 80 percent of the time federal judges have a “tentative sentence” in mind, even before the sentencing hearing. This makes sense as the Court has access to the PSI, Presentence Report, and Sentencing Memorandums, if submitted before the actual hearing. Accordingly, the best way to influence the judge’s selection of “tentative sentence” is to draft and file a Sentencing Memorandum, which lays out the facts, history, and arguments to support your requested sentence. Sentencing Memorandums are usually presented a week in advance of your sentencing hearing, which gives the Court the opportunity to review and digest your federal criminal defense attorney’s arguments.  A strong Sentencing Memorandum that is based in the Sentencing Factors from §3553(a) may sway the Court to find a sentence appropriate that is below the guideline range, if it is “sufficient, but not greater than necessary” to achieve the goals of sentencing. 

A strong sentencing memorandum should include character letters from parties that can offer true insight into the defendants nature and what may have led them to this place. Real life perspective on a defendant may give your sentencing judge grounds to determine a lighter sentence is appropriate in your case.  Holding your best material for extenuation and mitigation is a common practice in state criminal sentencing hearings; however, it holds little sway over the Court in federal criminal sentencing. Presentation of your strongest points in a Sentencing Memorandum Waiting until the actual hearing to make your sentencing case, as has been a historic practice in state courts, makes it far less likely that the court will give appropriate weight to your position.

3) Documentation

Documentation is key in federal sentencing. Don’t asset a mitigating factor; provide evidence of it! Any perceived impairment, alcohol or drug dependency, mental health issue, etc. should be supported by a doctor’s letter, medical records, treatment records, or comparable evaluation from a third party. Preferably, this information will be provided under seal to the Probation Officer so the information can be appended to the PSR / PSI and given to the BOP, if sentenced to incarceration. 

Additionally, service to the community or military service should be documented by service reports, DD-214, OERs or NCOERs, service awards, etc. Appropriate testimonials may support your case as well. Remember, federal sentencing judges may ignore your testimony, if the judge does not find you credible. It is much more difficult for the Court to ignore your claims, if you have documentation to back up your assertions. Including support can make your arguments in your Sentencing Memorandum and in person much stronger. 

4) Policy Statements re Departure

Many federal criminal defense attorneys believe any request for a sentence below the guideline range should be referenced as a variance or a non-guideline sentence and that “downward departures” are extinct since the Supreme Court’s decision in Booker. There is understandable support for this position; however, every federal sentencing court must consider the guideline policy prior to imposing or deciding a sentence.  Therefore, it is still an important process to identify the policy statements in Part 5H and Part 5K that warrant. Lower sentence. 

A single mitigating factor may not warrant a downward variance; however, a combination of factors may, see USSG §5K2.0 Commentary. It is still an important practice to identify and support every credible mitigating factor in your case and present in terms of “departure” and in terms of “variance” and/or “non-Guidelines sentence.” Even a sentence within the guideline range may be improved to the low end of the guideline by proper support. This practice is crucial when offense levels and criminal history make the guideline range higher than normal. 

5) Assist in Discussions

Whenever possible, your criminal defense attorney should go with you to any debriefings, if you are a cooperating witness. An effective federal criminal defense attorney can facilitate discussions, including advanced preparation and can help clarify any future disputes about what you did or did not say during a previous meeting. 

6) Substantial Assistance Reduction

The government or U.S. Attorney’s Office, specifically the Assistant U.S. Attorney prosecuting your case has the authority to file a 5K1.1 motion for Downward Departure based on “substantial assistance” in the investigation or prosecution of other defendants. Your federal criminal defense attorney should seek an agreement for this motion to be filed in exchange for your cooperation. Unfortunately, in some instances, despite cooperating the U.S. Attorney’s Office, the prosecutor may refuse to file the 5K1.1 motion. Despite the Assistant U.S. Attorney’s refusal to file the motion, your federal defense lawyer may still seek a downward departure for “super/extraordinary acceptance of responsibility”. Alternatively, as §5K1.1 is now only a guideline policy, your chosen attorney can argue your cooperation makes a lower sentence “sufficient” and a higher one “greater than necessary” to meet the federal sentencing goals. 

Every Circuit Court that has addressed this issue has held, cooperation is proper for consideration under § 3553(a) analysis and federal sentencing judges may grant a variance in the absence of a Government motion. 

Finally, even with the prosecution filing a 5K1.1 substantial assistance motion, your federal criminal defense lawyer may argue for an even better reduction, unless prohibited by plea agreement, and the sentencing judge has the authority to do grant a reduction. Oftentimes, judges unwilling to grant relief for non 5K1.1 grounds may grant 5K1.1 reductions when a strong mitigation case is presented. 

7) How is the PSI Prepared?

The PSI process is sometimes very intimidating; however, your federal criminal defense attorney’s participation can have a substantial impact on the outcome. Whenever possible, your federal defense attorney should join you in going to the probation officer meetings in preparation of the Presentence Investigation Report (“PSI”). Obtaining the forms and documents needed by the Probation Officer prior to your interview may assist you in the best presentation at the meeting. Probation officers are overburdened and obtaining and completing the forms and documents they need in advance may assist in focusing your time in the meeting on important mitigation and extenuation. Bring documentation to support your position, whether case law or other materials, and highlight the relevant portions to focus the probation officer on the key points. Probation officers often prefer highlighted cases instead of a legal brief.  

8) Argue Early and Often

During your meeting with the probation officer determine the “Dictation Date” or date the first draft of the PSI is due for dictation. It is crucial you seek to convince the probation officer and the Assistant U.S. Attorney (“AUSA”) buy into your client’s position as early and as often as possible, regarding the following: offense behavior, offense role, and all grounds for relief from the Guidelines. Arguing these points early and often, especially before the Dictation Date, is crucial to seek acceptance of your position by the Probation Officer, which may result in positively affecting your PSI and potentially the Assistant U.S. Attorney (“AUSA”) as well. Your defense attorney convincing the Probation Officer your position is reasonable is a win in federal criminal defense, which will likely result in a portion of your position being conveyed in the PSI, Presentence Investigation Report. Probation Officers are human and like everyone else; they have an investment in their original work, in this case their initial PSI draft. Your federal defense attorney arguing your position on the PSI early and often is your best chance of impacting the probation officer’s position on appropriate sentence. This will allow your attorney to draft fewer PSI objections and focus the arguments that best support your position. 

9) Mental Health Relevance 

The U.S. Sentencing Commission policy statement to Guideline Section 5H1.3, states “[m]ental and emotional conditions may be relevant in determining whether a departure is warranted.” Additionally, “[i]n certain cases … to accomplish a specific treatment purpose.” Prior to the current policy statement going into effect; mental and emotional conditions were not considered relevant. Federal criminal defense attorneys may now argue a defendant’s History and Characteristics cannot be properly addressed by the BOP, i.e. the BOP is unable or un-equipped to treat a defendant’s needs. A strong argument exists that the need for a “specific treatment purpose” is required if the need cannot be addressed by BOP. A variance to accommodate the need may be argued pursuant to 18 U.S.C. §3553(a)(i). Additionally, budgetary concerns for treatment costs may warrant a variance due to the burden on the BOP. Regardless of your mental health or emotional health issues, this is now an acceptable basis to argue for a variance. 

10) Favorable Character Letters

Educating the probation officer about your life and circumstances is the best approach in advocating for the best possible PSI. Save the argument for the sentencing judge; mitigation at this point is key. Character letters may be grounds to support your position or at least support a different narrative than the Assistant U.S. Attorney will argue.  Educating the probation officer about your life through outside opinions or experiences may build a base that the Assistant U.S. Attorney cannot overcome with negative information. Favorable character letters are only one way to support your client’s life story and positively influence the probation officer’s PSI draft. 

11) Sentencing Trends

Below guideline sentences or variances are increasingly common, while sentences within the guideline range continue to go down. Since the Booker case, the U.S. Sentencing Commission has found non-government-sponsored, non-§5K1.1 departures, have increased from 12% of all sentences imposed in 2006 to 17.4% in 2011. Alternatively, within guideline sentences have decreased from 61.7% of all sentences to 2006 to 54.5% in 2011. The increase in below guideline sentences is even higher in particular offense categories, i.e. child pornography. These offenses are more than doubled in the frequency of downward variances since 2006, 20.8% of all such sentences imposed in 2006 to 44.8% in 2011. 

The downward variance trend makes support of mitigation and extenuation even more important. Your federal criminal defense attorney’s ability to humanize a client through a variety of means is key in the current era of federal sentencing. Federal Sentencing Judges, are concerned with the why in federal criminal cases. A reasonable and heartfelt explanation of why an offense was committed is key in seeking the best possible outcome, i.e. lowest possible sentence in federal court.

12) Argument Post Booker Decision

It is a whole new world in federal sentencing post Booker. Think outside the box, the limit of downward departures no longer exists; however, they are still relevant. The first step is still to identify and advocate relevant departures from the guidelines. Second, identify particulars of a case or yourself that make your circumstances unique. Unusual or unique circumstances can remove a sentence from the guideline range to a better place, if good grounds for a departure exist. Finally, post Booker, almost anything about your case, the circumstances that lead to your crimes occurring, or you personally can support an argument for a sentence below the guideline range. Any sentence “sufficient, but not greater than necessary” to address the goals of sentencing are fair game for argument at federal sentencing post Booker.  

13) Creative Arguments

Post Booker, creativity in sentencing arguments is more than fair game, it is essential. The justification for lower sentences goes well beyond the sentencing factors identified in 18 U.S.C. §3553(a). Do not limit the scope of your sentencing argument to the §3553 factors that support a downward-departures under the Guidelines. All arguments are fair grounds for finding a sentence “sufficient” to meet federal sentencing goals, if you can explain why a sentence within the sentencing guideline range is “greater than necessary” to meet sentencing goals. One among many arguments is the cost of incarceration, especially if you have a plan that includes being a productive member of society, maintaining employment, and supporting your family. 

14) Your Age may be an Argument 

The life expectancy of older clients, facing substantial federal prison sentences, must argue life expectancy as grounds for a downward variance as “sufficient” to accomplish the purposes of sentencing.  Information or statistics are available online through the Center for Disease Control and Prevention (“CDC”), in additional to the Oklahoma Department of Health. Additionally, extended incarceration significantly reduces life expectancy. Arguments regarding the health, life expectancy, and impact of incarceration may be a strong argument to support a sentence below the guideline range, if relevant to your case. 

15) State Sentences v. Federal Sentences

Historically, federal courts do not consider state court sentences or the difference between the punishments handed down in state court proceedings for purposes of determining the appropriate sentence in a federal case for similar or same conduct.  However, after Booker, this is no longer prohibited. The Fourth Circuit specifically held the following in 2007, United States v. Clark, 434 F.3d 684, 687 (4th Cir. 2007) “the consideration of state sentencing practices is not necessarily impermissible per se”. Despite the substantial punishment ranges afforded in Oklahoma state criminal proceedings, the Oklahoma statutory maximum penalty for many state criminal offenses are significantly lower than comparable federal charges/crimes. 

Additionally, Oklahoma state court criminal proceedings offer the following that are more generous than federal criminal proceedings: parole, early release, good-time credit, etc.  Therefore, the actual sentence imposed in federal criminal sentences, i.e. actual time served for similar conduct in state criminal proceedings, may be far greater than the time served on an equal sentence in state court. This disproportionate effect in federal criminal court may be an appropriate argument in your case. 

16) Unwarranted Disparity

Unwarranted disparities are frowned upon by sentencing judges, appellate courts and the sentencing guidelines. An unwarranted disparity exists when two similarly situated/indicted federal criminal defendants receive different or disparate sentences without cause. Presenting federal criminal sentences similar to the one being sought in your case can bolster than an unwarranted disparity does not exist. 

17) Criminal History Points

Your criminal history may affect the sentence you receive in your federal case. Criminal history points are comparable to being charged after former conviction in state court criminal proceedings. One criminal history point may not affect your Criminal History Category (“CHC”), which is a range; however, documenting an objection to a criminal history point addition preserves the issue for appeal purposes. It is typically considered “harmless error” or not relevant to a sentence; however, some courts have remanded for further sentencing based on the addition of criminal history points. Specifically, the Seventh Circuit, in United States v. Vargas, 230 F.3d 328 (7th Cir. 2000), remanded for re-sentencing based on one criminal history point. Specifically, over represented the gravity of your criminal history can stop the criminal history consideration in Sentencing Guideline, USSG §4A1.3. Additionally, if sentenced to BOP, federal prison, criminal history points affect the placement you will receive. 

18) Lateral Departure and Variance

Your federal criminal defense attorney should seek a “lateral departure” or “variance” if the circumstances are correct. A “lateral departure” allows for you to serve the time called for in the Sentencing Guidelines; however, under better conditions, i.e. a 20-month sentence could be served as six months of incarceration, followed by eight months of supervised released with special conditions requiring the supervised release be served in Residential Corrections Center (RCC) or halfway house, followed by six months of home confinement and community service. This sentence totals 20 months you would have served in federal incarceration; however, the terms of confinement are much better than a straight 20-month sentence in federal prison. The last day of being subject to terms of the sentence may be later with changing circumstances of confinement; however, the conditions of confinement will be much much better and allow earlier and more robust access to family and re-entering the community. 

19) Home Confinement Credit

Your federal criminal defense attorney can seek a variance or altered custody arrangement based on home confinement prior to sentencing. The BOP will not give credit for time served on pre-trial release, whether home confinement or inpatient treatment, if the placement is a bond condition. However, Courts are free to use this information and your federal criminal defense attorney should consider advocating use of this information for a variance or an alternate custody arrangement. These arguments are supported by a 1995 Supreme Court decision, Reno v. Koray, 515 U.S. 50 (1995). The Court has also identified the punitive nature of home detention when compared to the nature and scope of other court-ordered conditions of pretrial release. 

Federal Criminal Defense in Oklahoma

At Cannon & Associates, we provide experienced federal criminal defense for those accused of federal crimes in the Western District of Oklahoma (“WDOK”), the Northern District of Oklahoma (“NDOK”) and the Eastern District of Oklahoma (“EDOK”). Our office is located in Edmond, Oklahoma; however, we handle cases across the state. We understand the federal detention hearing process, federal criminal jury trial, and the sentencing guidelines governing federal criminal proceedings and sentencing for federal crimes.

We offer free confidential case evaluations and can advise you on the steps to seek pre-trial release and defending your federal criminal case as a whole. Additionally, we will walk you through the information in this blog as well as other critical information in federal sentencing. 

Conclusion

Experience matters when you are facing federal indictment in Oklahoma or the potential loss of your freedom. It is important to know the Oklahoma federal criminal defense lawyer you hire is dedicated to your cause and versed in all aspects of federal criminal defense and the federal sentencing guidelines. John Cannon, owner of Cannon & Associates is a former prosecutor and very experienced in the law and issues associated with fighting federal criminal charges and criminal jury trial. He has been recognized as a Super Lawyer and Top 40 under 40 in criminal defense. Contact Cannon & Associates to protect your rights and Fight your case. Complete the CONTACT FORM ON THIS PAGE NOW or CALL at 1(405) 657-2323 for a free confidential case evaluation.