Sentencing

A defendant can be convicted by either pleading guilty to a charge, or by being found guilty after a trial. If a defendant is convicted, sentencing will take place seventy-five days later if the defendant is in custody, or ninety days later if the defendant is out of custody. See Fed. R. Crim. Pro. 32. A defendant convicted of some offenses will likely be remanded into custody after trial.

After a conviction, the defendant and his or her attorney complete forms relating to the defendant’s life history and provide those to the Probation Office. Probation, like Pretrial Services, are officers of the court and are neutral – they don’t answer to either the defense or the prosecution.

Several weeks after the conviction, the defendant will be interviewed by a Probation Officer, with defense counsel present. The Probation Officer will then take information from that interview, from the forms submitted by the defense, and from material provided by the government, and will prepare a draft presentence report.

The draft presentence report (or PSR) is provided to defense counsel and the government thirty-five days before sentencing. The parties must make factual or legal objections to the report within ten days of receipt. The court does not receive a copy of this draft report – the goal is to resolve as many factual or legal errors as possible before a PSR is provided to the judge.

Fourteen days before sentencing, the final PSR is provided to the judge. This final PSR describes the defendant’s background, describes the offense, and calculates the federal sentencing guidelines. It also includes a recommended sentence, and lists any unresolved objections.

Seven days before sentencing, the parties submit sentencing memoranda to the court, arguing for their proposed sentences. Three days later, the parties may submit replies to the sentencing memos.

At the sentencing hearing, the district court judge must resolve any remaining objections to the PSR, make factual findings, and must consider the factors of the key sentencing statute, 18 USC

 3553(a). Among the factors that the court must consider are the federal sentencing guidelines. In addition to a custodial sentence, the court will also decide how much restitution is owed, and whether a criminal fine is appropriate.

Before imposing the sentence, the court must permit the defendant to speak (or “allocute.”) See Fed. R. Crim. Pro. 32(i)(4). The defendant’s counsel will have good advice on what to say at this point in the sentencing hearing.