Federal sentencing occurs after an individual either enters into a plea agreement with the government or is found guilty at a federal criminal trial. However, federal sentencing does not begin on a defendant’s sentencing date in federal court. It is a process that usually takes several months to complete. Lawyers view it as an entire phase of criminal practice.
Once a plea is entered or a defendant is found guilty in a federal criminal trial, a set of events is set in motion prior to the defendant’s sentencing hearing. This includes a visit by a United States Probation Officer to the defendant for an in-depth interview. The defendant’s attorney can be present (and should be present) for this interview.
Several weeks after the interview takes place, the United States Probation Officer will issue a lengthy (often 25-40 page) report about the defendant to the attorneys for both sides. The parties then have a limited period of time to object to the Presentence Report, which is also known as a PSR.
Prior to the sentencing hearing, the parties have an opportunity to file motions related to sentencing. The Government may ask for a higher sentence by filing a motion for an upward departure or a motion for an upward variance.
Likewise, the defense can file motions for a downward departure or a downward variance. At the sentencing hearing, the judge considers a number of filed documents in the case, including the Presentence Report and any objections to the PSR as well as all motions to raise or lower the defendant’s sentence.
This is possibly the most complex area of all criminal law. Definitions of the simplest terms matter. For example, the definition of person, crime of violence, serious drug felony, or firearm may dramatically influence an individual’s potential sentence. Lawyers do not necessarily look to the dictionary for these terms, but they instead look to the interpretation of these terms by federal precedent or case law.
The judge must further consider two different systems that guide him in arriving at an appropriate sentence. One is the statutory provisions set forth by Congress. The laws created by Congress control the maximum and minimum sentences that a defendant can face at sentencing. These are mandatory laws that the judge must follow. At the same time, the judge must also consider the United States Sentencing Guidelines.
The United States Sentencing Guidelines (or Guidelines) are set forth in a book of no less than five-hundred (500) pages. Initially, the Guidelines were intended to be mandatory so that sentencing would be fairly equal for similarly situated individuals guilty of similar charges throughout the United States. The idea was that the same crime ought to carry the same sentence whether committed in California or Iowa. As one might imagine, drug transportation and drug distribution offenses might receive harsher penalties in Tennessee than in an area of the country more accustomed to the drug trade. The Guidelines were an attempt to solve this problem.
The United States Supreme Court later determined the Guidelines to be advisory, not mandatory, for judges’ consideration. As a consequence, judges use the Guidelines as a starting point, but they may depart from the Guidelines, up or down. It is an attorney’s job to look for appropriate reasons why a judge may want to depart or grant a downward variance to a sentence (in relation to the advisory Guidelines sentence).
As this very short synopsis illustrates, this area of federal criminal procedure and law is extraordinarily complicated. This is one reason why a defendant should not venture into federal court without an attorney experienced in federal criminal practice – experience in state criminal p