FAQ Federal Sentencing and Beyond
Cannon & Associates is dedicated to Fierce Advocacy for those facing federal criminal prosecution in Oklahoma. You should interview and retain an experienced Oklahoma federal criminal defense attorney if you are facing federal charges or a federal indictment. This page is dedicated to answering the most frequently asked questions concerning: what happens in federal sentencing hearings and what happens after you are sentenced in federal court. Some of the most common questions we receive concern the conditions of federal confinement and the timeline for federal sentencing.
According to the U.S. Sentencing Commission’s a very large percentage of those convicted of federal crimes face incarceration; therefore, answering the questions concerning federal sentencing and federal detention are very important in identifying the right Oklahoma federal criminal defense attorney for your case. The most frequently asked questions concerning federal sentencing and incarceration following federal sentencing are grouped into three categories:
1) Federal Presentence Investigation Report (PSI);
2) Federal Sentencing Hearing; and
3) Federal Prison System
The Federal Presentence Investigation Report only happens in federal criminal cases with a conviction. Therefore, if you contest your federal criminal case and your federal criminal defense attorney is able to get your case dismissed or you are found not guilty at trial, your case is over and the Federal Presentence Investigation process will not take place.
However, if you are unfortunately convicted in your federal criminal trial or enter a guilty plea via a Change of Plea hearing, you will be required to move into the federal criminal sentencing process, which begins with a Presentence Report, followed by Sentencing Memos being drafted by your attorney and the government, and concludes with federal sentencing hearing. The following are some of the most common questions during the Federal Presentence Investigation phase.
Yes, but… plea agreements in federal court are very different that state court criminal cases, i.e. you do not enter a plea agreement for a specific sentence. In state court criminal proceedings, you and the prosecutor know exactly what you are receiving as a sentence in exchange for giving up your right to a jury trial. It is not that simply in federal criminal court plea agreements.
There are no guaranteed sentences in federal criminal court after entering a guilty plea. When you enter a guilty plea in federal court, you do so without knowing the sentence you will receive. The reason is a federal criminal defendant’s sentence is determined by the Federal Sentencing Guidelines, which take multiple factor into account. Experienced federal criminal defense attorneys can give you an accurate Sentencing Guideline Calculation; however, there is no guarantee that this will be the sentencing Guideline Range determined by the Court AND the Federal Judge that determines your sentence has the authority to deviate from this range! Fortunately, you will have time to consider all of these facts as federal sentencing hearings are usually months after a Change of Plea Hearing.
Experienced federal criminal defense attorneys can negotiate with federal prosecutors on your behalf and identify when and what objections to raise in your case, specifically concerning sentencing guidelines and the sentencing calculation. Whether you enter a “plea agreement” or not in your federal criminal case, it is important to retain an experienced federal criminal defense attorney that can help tell your story, draft a compelling sentencing memorandum, and argue for you at your sentencing hearing.
You should never enter a federal plea agreement, unless it is in your best interest to plea and accept responsibility for federal criminal charges. The following are some of the most common reasons to accept a federal plea agreement:
- Agreement for a guilty plea that results in a Sentencing Recommendation that is beneficial, i.e. creates a lower range of imprisonment than the Sentencing Guidelines may result in without a plea agreement;
- Agreement for a guilty plea to a lesser charge or dismissal of charges that carry a mandatory minimum prison sentence;
- Your federal criminal defense attorney and you have reviewed the case and you do not see a way to convince a jury that you are not guilty, i.e. accepting a plea is the best possible outcome in your case;
- Acceptance of responsibility in your federal criminal case will result in a reduction in your sentence, which is a primary reason that clients elect to enter a guilty plea.
A Change of Plea must take place in order to enter a guilty plea in federal court. The guilty plea will include the list of charges the federal criminal defendant is entering a guilty plea and the charges, if any, the prosecution is dismissing. A “Statement of Facts” will be entered that provides a factual basis for the plea. The “Statement of Facts” must present sufficient admissions to make the defendant culpable of all the federal criminal charges and support his or her guilt.
The Sentencing Guideline calculation, including enhancements and departure provisions will be included. However, the Court is not bound by the parties’ guideline calculation and can sentencing a federal criminal defendant above or below the guidelines presented. Waiver of necessary trial rights will be included in the Plea of Guilty in federal court.
The Court will review the plea agreement of the parties and must set a plea hearing date, prior to accepting the guilty plea. Once the plea hearing date is set the Court will conduct a “colloquy” where the Judge asks a series of questions to ensure the defendant understands the plea and that the plea is knowingly and voluntarily entered. Once the plea is accepted, a sentencing date can be set and the Federal Presentencing Process can begin.
A PSR is a report drafted by the probation officer assigned to your case, following your Change of Plea or following a conviction at jury trial on your federal criminal case. When you are found guilty or enter a guilty plea before the Court, an Order for the U.S. Probation and Pretrial Services office will be assigned to your case to research and complete the PSR. Federal Rules of Criminal Procedure require the PSR be completed with 35 days of entry of your guilty plea.
The PSR will be provided to your federal criminal defense attorney and the prosecutor, U.S. Attorney, for review prior to being submitted to the judge in your case. The PRS is a report for the Court’s consideration in determining your sentence that evaluates your circumstances based on a number of factors and issues, including the following related to your personal situation:
- Your personal and family history;
- Your work and employment history;
- Your criminal record and overall criminal history; and
- The nature and circumstances of your offense(s); and
The federal judge conducting sentencing in your case will use the PSR as a tool in determining the appropriate sentencing in your case.
Federal Presentence Reports are very detailed by design, by statute, and by Federal Rules. Additional information can and in most cases should be presented by your federal criminal defense attorney at sentencing; however, PSR cover a large amount of information. Specifically, Rule 32 of the Federal Rules of Criminal Procedure requires the following in every Presentence Report:(c) Presentence Investigation(1) Required Investigation(A) Identify all identify all applicable guidelines and policy statements of the Sentencing Commission;(B) calculate the defendant's offense level and criminal history category;(C) state the resulting sentencing range and kinds of sentences available;(D) identify any factor relevant to:(i) the appropriate kind of sentence, or(ii) the appropriate sentence within the applicable sentencing range; and(E) identify any basis for departing from the applicable sentencing range.(2) Additional Information. The presentence report must also contain the following:(A) the defendant's history and characteristics, including:(i) any prior criminal record;(ii) the defendant's financial condition; and(iii) any circumstances affecting the defendant's behavior that may be helpful in imposing sentence or in correctional treatment;(B) information that assesses any financial, social, psychological, and medical impact on any victim;(C) when appropriate, the nature and extent of nonprison programs and resources available to the defendant;(D) when the law provides for restitution, information sufficient for a restitution order;(E) if the court orders a study under 18 U.S.C. §3552 (b), any resulting report and recommendation;(F) a statement of whether the government seeks forfeiture under Rule 32.2 and any other law; and(G) any other information that the court requires, including information relevant to the factors under 18 U.S.C. §3553 (a).(3) Exclusions. The presentence report must exclude the following:(A) any diagnoses that, if disclosed, might seriously disrupt a rehabilitation program;(B) any sources of information obtained upon a promise of confidentiality; and(C) any other information that, if disclosed, might result in physical or other harm to the defendant or others.Federal Rules of Criminal Procedure, Rule 32(c)(1) – (3)
Yes, pursuant to Rule 32 of the Federal Rules of Criminal Procedure (“FRCP”), the probation officer must provide an “Initial” copy of the Presentence Report at least 35 days prior to sentencing, unless this time requirement is waived by the defendant. The parties, have 14 days to state all objections in writing to the probation officer, including “objections to material information, sentencing guideline ranges, and policy statements contained in or omitted from the report.” FRCP 32(f)(1).
Once your federal criminal defense attorney submits objections to the “Initial” Federal Presentence Report, that officer may meet with your defense attorney, may do further investigation, and may or may not revise the “Initial” Presentence Report. After consideration of the objections by the parties, the federal probation officer will file a Final PSR that will be provided to the parties and the federal sentencing judge.
Yes, the Federal Presentence Report (“PSR”) has many applications outside of your federal sentencing hearing, which is part of the reason it is so important to identify and retain an experienced federal criminal defense attorney to help present your case to the PSR drafter, the Federal Probation Officer.
The PSR plays a huge role in your confinement and life in the Federal Bureau of Prisons (“BOP”). The PSR is the primary document used by the Bureau of Prisons (“BOP”) to evaluate you as an inmate in the BOP. The PSR is used to determine the BOP facility, prison, that you will serve your sentence, the security level for you, and the level of custody for your prison sentence. The PSR determines federal inmate visitation privileges and eligibility for a number of services: education opportunities, drug/alcohol treatment, and medical care. Participation in some of these programs can positively impact the length of your prison term. Finally, the PSR is used to determine the level of supervision and length of supervision you will receive once released on supervised probation on your federal criminal case.
Does my Federal Criminal Defense Attorney need to meet with my Probation Officer?
No, your Oklahoma federal criminal defense attorney does not need to go with you or meet with your probation officer; however, you may feel more comfortable, if your federal criminal defense attorney goes to the initial interview with you and your probation officer. It is very important that you and your federal criminal defense attorney meet prior to your initial interview with your probation officer to discuss your questions and concerns prior to the meeting.
Rule 32 of the Federal Rules of Criminal Procedure entitles you to have your criminal defense attorney present with you during all meetings between you and the probation officer. Generally, in the Western District of Oklahoma, federal criminal defense attorneys will meet with the probation officer at the Change of Guilty Plea hearing and subsequently at their client’s preference. We will be present for every interaction with your probation officer, if you want or we will assist you in preparing for these meetings.
Other than drafting objections to the Federal Presentence Report, discussed above. Your federal criminal defense attorney can explain the process of federal sentencing and the PSR process to. Your federal criminal defense attorney can facilitate communication between you and the federal probation officer, including supplementing the information you provide to the probation officer, including, but not limited to witnesses or relevant parties that the federal probation officer needs to interview. Your federal criminal defense attorney can assist your by preserving issues for an appeal and attempt to protect your interest in pending civil litigation, if applicable.
In order for the probation officer to draft a PSR that supports a downward adjustment for acceptable of responsibility, you must take responsibility for your involvement in the offense and provide the probation officer with your version of the offense. An experienced federal criminal defense attorney can help you identify and tell your story to the probation officer. Additionally, it can be difficult to explain or identify for yourself the circumstances you have faced that led you to the place you are today. An experienced federal criminal defense attorney will have the knowledge and experience to help you identify the important aspects of your life that the probation officer and eventually the federal sentencing judge will consider relevant in considering a downward variance or departure in your sentence.
In some instances, your federal criminal defense attorney will recommend that you participate in rehabilitative services prior to sentencing, such as treatment or counseling services. These steps can demonstrative not only that you have taken responsibly for your federal criminal offense, but that you are also beginning the process of moving beyond your federal criminal case and may positively impact the Court’s opinion of you.
Yes, you must cooperate with the probation officer in preparation for sentencing in your federal criminal case, whether you have a 5K1.1 Substantial Assistance agreement with the government or not. Your cooperation and your interview with the probation officer is no less important if you have a 5K1.1 Substantial Assistance Agreement. There is no guarantee that your cooperation will result in a 5K1.1 motion for substantial assistance. Additionally, the U.S. Attorney’s Office may still request or recommend a sentence that is harsher than your desired outcome. Therefore, a PSR that presents mitigation and extenuation from your life and circumstances may have a powerful impact on the federal judge deciding your sentence. Again, the PSR is the first document that federal judges consider in thinking about your sentence and the BOP uses it as the primary tool in determining the manner in which you are incarcerated.
No, the PSR does not determine the sentence in your federal criminal case; however, the PRS plays a major role in the sentencing decision by the federal judge deciding your sentence. Therefore, the probation officer that drafts the PSR in your case plays an important role in the sentence you will receive from the federal judge in your case. The probation officer has substantial access to the U.S. Attorney and investigative agencies that are involved in your case. The probation officer has access to the sentencing judge and court staff in your case as well.
It is certain that the probation officer will have contact with these parties in researching and drafting your PSR; therefore, it is vitally important that you and your federal criminal defense attorney have positive and substantial interaction with the probation officer. Ultimately, the first summary of your life and circumstances that the sentencing judge in your case will receive is from the probation officer in the PSR; therefore, it is very important that he or she has a well-articulated version of events from your perspective and can speak to the events in your life.
First impressions are important with your probation officer, like any important relationship. The probation officer will ask you very personal and often uncomfortable questions. The topics of discussion will include, but are not limited to your family, your employment, your mental health, physical health, your finances, and your criminal history. Our team of Fierce Advocates will review the scope of the probation officer’s questions prior to your interview; however, you are always welcome to contact us for more information. You are allowed to meet with your federal criminal defense attorney prior to answering any question, if you are more comfortable having counsel. However, we should be able to prepare for any questions that will come up in our Sentencing Planning Meeting that we will schedule during your case. Being prepared is always a good thing and the probation officer will appreciate it, if you are ready for the interview.
It is very important that you answer every question from the probation officer truthfully. The sentencing reduction for acceptance of responsibility may be forfeited and you may be charged with an additional criminal offense. No matter what, you should not lie to the probation officer. You are always allowed to meet with counsel prior to answering a question and the probation officer will not be offender or hold it against you for accessing your right to counsel, i.e. speaking with your federal criminal defense attorney.
Telling the truth is the most important consideration during your interview with the probation officer. Substantial information will be uncovered and noted by the probation officer in speaking with your spouse, your family, witnesses, and investigators on your case. You will not necessarily be made aware by the probation officer of all the information they have uncovered. However, you should assume they know the answer to every question.
Honesty is the best policy, unless you may implicate yourself in additional criminal conduct, in which case you should speak to your federal criminal defense attorney prior to answering additional questions. Some areas of conversation with the probation officer may create a “Catch-22” scenario. The admission of drug or alcohol addiction or dependency may reduce your prison sentence and make you eligible for drug or alcohol treatment programs in custody; however, it will certainly increase the conditions or level of supervision in your supervised release following your release from federal prison.
It is very important that you follow all deadlines set by the probation officer, including making scheduled appointments and submitting requested documents by the requested date and time. Our office will assist you in meeting these deadlines and reminding you of your appointments; however, it is your responsibility ultimately to cooperate with the probation officer and met his or her demands.
Whenever possible it is beneficial to your federal criminal sentencing and resulting length of imprisonment to have agreements with the prosecutor on factors that impact the Sentencing Guidelines. However, stipulated facts may be a warning sign for the probation officer to confront the prosecutor on unsupported stipulations.
Federal sentencing hearings may be very short and informal or they can be similar to a mini-trial. Either way, the sentencing hearing will begin with the Court hearing objections from the parties related to the Final Presentence Report (“PSR”) and determine the applicable Sentencing Guideline Range. This process may take a few minutes or it may take hours, if multiple substantial objections are raised by your federal criminal defense attorney and/or the prosecutor.
The importance of these objections cannot be overstated, as the Sentencing Guideline range that is determined by the Final PSR and application of the Federal Sentencing Guidelines sets the advisory guideline range for punishment in your case, i.e. the exact number of months in federal prison that the Court is “advised” to consider pursuant to the U.S. Sentencing Guidelines. Although, the Court has inherit authority to deviate and depart from the Guideline Range, it is a very important starting point for sentencing.
Once the objections by both parties to the Final PSR are ruled on by the Court and the Sentencing Guidelines range is determined, the parties can present evidence and testimony to support their position for the sentence in the case. The prosecutor and you federal criminal defense attorney will present arguments as well that relate the sentencing guidelines, §3553(a) sentencing factors, and other matters of mitigation or aggravation related to sentencing.
The defendant is given the final opportunity to address the Court prior to imposition of sentence and the defendant can present testimony and support by family members to the sentencing judge. Once both parties have rested the Court will deliberate or immediately announce the final sentence. However, unlike state court criminal proceedings, in federal court a criminal defendant does not automatically go into custody immediately.
When a federal criminal defendant has been out of custody on bail prior to the sentencing hearing, the Court may allow “voluntary surrender” or “self-surrender” to the place of confinement once it has been determined. The time between sentencing and determination of the place of confinement in the Bureau of Prisons (“BOP”) is typically 30 to 60 days.
More on “Voluntary Surrender” or “Self-Surrender” below.
Federal judges are required to consider the federal sentencing factors laid out in 18 U.S.C. §3553(a). The following factors are listed in that statute and are required consideration in all federal sentencing hearings:
- The nature and circumstances of the offense;
- The history and characteristics of the defendant;
- The federal sentencing guidelines;
- The need to impose a sentence sufficient, but not greater than necessary to:
- Reflect the seriousness of the offense;
- Promote respect for the law;
- Provide just punishment for the offense;
- Afford adequate deterrence to criminal conduct, and
- Protect the public from further crimes of the defendant.
Although the §3553(a) sentencing factors are not unique to an individual federal criminal case, your chosen Oklahoma federal criminal defense attorney’s ability to tell a compelling story and present you and your circumstance before the Court can greatly increase the chances of your receiving a favorable sentence within the range of punishment. Our Fierce Advocates are dedicated to fighting for freedom and can assist you in telling a compelling story to the judge handling your federal sentencing.
Potentially, the Federal Sentencing Guidelines require a fine sufficient to pay the cost of imprisonment, probation, or supervised release ordered. However, this requirement is also subject to a defendant’s ability to pay. The Court has the authority to waive or reduce the fine, if you are unable or unlikely to become able to pay the fine. Additionally, community service is a recommended substitute for paying a fine, if a federal criminal defendant is unable to pay a fine.
Sentencing departure means a sentence that is outside the Sentencing Guideline Range. Federal judges have the authority to impose sentences greater than the recommended guideline range (within the punishment range of the specific federal crime) or downward departures, which is a less sever sentence than what is contemplated in the sentencing guideline range. Judges will typically make sentencing departures, such as downward departures based on the following factors: mitigation, extenuation, specific facts or circumstances leading to the criminal conduct, or in some circumstances aggravating factors.
A federal judge may enter a downward departure, if the federal judge believes you committed a crime under duress or committed the crime while suffering from diminished mental capacity.
Yes, time credit or “credit for time served” in state criminal court does exist in federal court. A federal criminal defendant may receive time credit if he or she is sentenced to federal prison and was in federal custody prior to the date of sentencing. The Bureau of Prisons will make an exact calculation of time credit to be applied to a defendant’s federal criminal sentence, which will be subtracted from the total time in custody ordered by the federal judge.
“Good time credit” is available for federal defendants as well. When a federal inmate avoids disciplinary problems while in the Bureau of Prison’s custody, he or she is likely to receive “good time credit” for their federal sentence. Good time credit is only able to reduce a federal sentence by 15 percent, i.e. equivalent to the Oklahoma 85% sentencing rule on the most serious of offenses.
Yes, home confinement may be imposed as part of the punishment in a federal criminal case; however, it is not technically a prison sentence. Rather, home confinement in federal court is a status follow release from a federal prison sentence as a condition of probation or supervised release.
Your probation officer may approve “outings” on a case-by-case basis; however, generally under home confinement you are required to return home after work and generally only allowed to leave for religious services and grocery shopping. Although home confinement is not equivalent to a federal prison sentence, in the appropriate federal criminal case the sentencing judge may agree to reduce the duration of your federal prison sentence in lieu of a longer period of home confinement.
Potentially yes, federal judges have the discretion to release federal defendants pending imposition of sentence in the Bureau of Prisons pursuant to 18 U.S.C. §3143(b). In order to be allowed “Voluntary Surrender” or “Self-Surrender” the federal judge must determine by clear and convincing evidence that your remaining at liberty does not pose a danger to the community and that you are unlikely to flee the jurisdiction pursuant to 18 U.S.C. §3143(a).
Although federal sentencing judges have discretion to allow “Voluntary Surrender” or “Self-Surrender” for federal defendants that have been out of custody pending sentencing, it is unlikely that the court will allow “Voluntary Surrender” or “Self-Surrender” in your federal criminal case, if you are convicted of any of the following federal offenses: violent crimes; an offense punishable by life imprisonment; or drug crimes punishable by ten years or more in federal prison;
However, the Bureau of Prisons prefers “Voluntary Surrender” or “Self-Surrender”, in lieu of transport by the U.S. Marshal, in instances where the defendant has complied with the terms of pretrial release and their offense does not meet the criteria stated in the previous paragraph.
Many of our federal criminal clients have the opportunity for “Voluntary Surrender” or “Self-Surrender” following sentencing, as they are facing non-violent offenses and have performed well on pretrial release. In all cases where our clients may be eligible for pretrial release, we ask the Court grant “Self-Surrender” either by filing a motion prior to the sentencing hearing and/or oral motion at sentencing.
You should always surrender to the Federal Correctional Institution (“FCI”), if given a choice. You will be under high-level security confinement until you are transported to your place of confinement. Additionally, you may have to move to multiple places of temporary confinement on your way to the FCI you will serve your sentence. These locations will likely all be worse than your permanent place of confinement.
Additionally, Self-Surrender will positively impact your security classification, which may positively impact your security designation at the FCI prison that you are housed. Voluntary Surrender or Self-Surrender creates a presumption that a minimum-security classification is appropriate for your sentence.
Multiple factors are considered in determining the appropriate facility for confinement in your federal criminal case. A federal defendant’s PSI and an evaluation of the defendant’s offense conduct and its severity are important considerations in determining the appropriate facility for BOP security as well as the safety of other inmates in federal custody. BOP officials may consider offense conduct beyond the federal conviction, if the PSI contains information of more serious misconduct. Additionally, the BOP will consider the following factors in determining the place of confinement:
- Prior custodial sentences;
- Length of incarceration;
- Existing detainers;
- History of violence;
- History of escapes/attempted escapes, if any; and
- Management variables: allows for higher security classification, if BOP does not believe a security score reflects the risk posed by an inmate.
All this said, it is important to keep in mind that federal defendants that are identified as posing a minimal security risk may be designated to minimum-security institutions, so long as population issues do not prohibit.
Likely yes, the BOP has a vested interest in inmates having access to family and visitation as it decreases the likelihood of alienation and misconduct. Therefore, BOP attempts to place federal inmates at facilities in close proximity to family, if possible. This is part of the reason you should provide as much relevant information to the BOP, including correct address information for family members.
It is possible to be placed in a federal boot camp, if you are a non-violent offender sentenced between 12 months and one (1) day up to 30 months. However, you must also receive a judicial recommendation from the federal sentencing judge to participate in a boot camp. Additionally, non-violent offenders with sentences up to 60 months can apply through their case manager. Upon completion of boot camp, federal inmates are released to a halfway house or home confinement under supervision by their probation officer, until completion of their sentence.
Yes, the warden has the discretion to grant furlough for attendance of a funeral, in fact they are quite common. In order to be granted you must pay the transportation costs associated with attending the funeral. However, if you are considered a flight risk, you will likely be denied attendance at a funeral for a loved one.
Supervised release will likely involve many restrictions from the probation officer in your case. The specific conditions of your federal probation or supervised release will be presented to you by the probation officer and/or your case manager. However, it is important to prepare yourself for the fact it will not be equivalent to the freedom you may expect. You may be eligible for release to a halfway house six-months prior to your release date from federal prison.
The baseline conditions for supervised release are found at 18 U.S.C. §3563(a); however, in additional to the standard conditions of supervision you may be required to abide by additional special conditions.