Federal Sentencing Federal Public Defender’s Office June 23, 2014

Federal Sentencing  Tell the human story of your client;  Provide the Judge with: (1) alternatives to incarceration or excessive punishment; and (2) evidence of what works to achieve the purposes of sentencing

 “For more than a century, federal judges have enjoyed wide discretion to determine the appropriate sentence in individual cases and have exercised special authority to determine the sentencing factors to be applied in any given case.” Mistretta v. United States, 488 US 361, 390 (1989).  “Punishment should fit the offender and not merely the crime.” Williams v. New York, 33;7 US 241, 247 (1949).

Sentencing Guidelines  “The Comprehensive Crime Control Act of 1984 foresees guidelines that will further the basic purposes of criminal punishment, i.e., deterring crime, incapacitating the offender, providing just punishment, and rehabilitating the offender. It delegate to the Commission broad authority to review and rationalize the federal sentencing process.” U.S.S.G. Part A, The Statutory Mission (Nov. 1, 1989)  “The sentencing judge must select a sentence from within the guideline range. If, however, a particular case presents atypical features, the Act allows the judge to depart from the guidelines and sentence outside the range. In that case, the judge must specify reasons for departure. 18 U.S.C. § 3553(b). If the court sentences within the guideline range, an appellate court may review the sentence to see if the guideline was correctly applied. If the judge departs from the guideline range, an appellate court may review the reasonableness of the departure. 18 U.S.C. § The Act requires the offender to serve virtually all of any prison sentence imposed, for it abolishes parole and substantially restructures good behavior adjustments.” Id.

2013 Sentencing Table Jason – possible to attach table here – portion (printed?)

Gall, 128 S. Ct at 591 “We now hold that, while the extent of the difference between a particular sentence and the recommended Guideline range is surely relevant, courts of appeals must review all sentences whether inside, just outside, or significantly outside the Guidelines range – under a deferential abuse-of-discretion standard. We also hold that the sentence imposed by the experienced district judge in this case was reasonable”

Kimbrough, 552 US at 109 Courts are free to conclude that a guideline sentence “yields a sentence ‘greater than necessary’ to achieve § 3553(a)’s purpose, even in a mine-run case,” where the guideline is not developed based on empirical evidence of pre- guideline sentencing practice.

 The guideline range is “only a touch-stone in the district court’s sentencing considerations” United States v. Autery, 555 F.3d 864, 872 (9 th Cir. 2009); see also United States v. Carty, 520 F.3d 84, (9 th Cir. 2008) (en banc) (under 3553(a), the guidelines are a factor to be accorded only equal weight with the others listed).  “For more than a century, federal judges have enjoyed wide discretion to determine the appropriate sentence in individual cases and have exercised special authority to determine the sentencing factors to be applied in any given case.” Mistretta v. United States, 488 US 361, 390 (1989).  “Punishment should fit the offender and not merely the crime.” Williams v. New York, 33;7 US 241, 247 (1949).

18 USC 3553(a) “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...”

United States v. Gall, 374 F. Supp 2d 758, (2005), rev’d on other grounds, United States v. Gall, 446 F.3d 884 (8 th Cir. 2006) “The Court reminds the defendant that probation is not an act of leniency. Probation is a substantial restriction of freedom, it is not forgiveness, and it is not an endorsement of the offense. The defendant will have to comply with strict reporting conditions along with a three-year regime of alcohol and drug testing. He will not be able to change or make decisions about significant circumstances in his life, such as where to live or work, which are prized liberty interests, without first seeking authorization from his Probation Officer or, perhaps, even the Court. Of course, the defendant always faces the harsh consequence that await if he violates the conditions of his probationary term.”

Prepare:  A good offense – influence the probation officer with compelling mitigation, help the client prepare for his/her allocution, create effective, thorough sentencing memorandum;  A good defense – be prepared to deal with bad information about your client and the offense conduct, prevent upward departures/variances, and be prepared to handle victim impact statements  Be prepared to challenge criminal history points or category, including Career Offender guideline if applicable;  Be prepared to challenge terms of supervision

Presentence Interview “US Probation Officers are judicially appointed to assist the court in the sentencing and supervising of persons convicted of federal offenses. They are not employees of the Justice Department but work directly for the US District Court. They function as the court’s independent investigators, and their aim in presentence investigation is to provide a report to the court with relevant, fair, objective and accurate information that will assist in arriving at the proper sentence” The Presentence Investigation, Purpose and Procedure, WD/WA 46 (7/27/99).

Fed. Rule Crim. Procedure 32(d) The presentence report must :  Identify all applicable guidelines and policy statements of the Sentencing Commission;  Calculate the defendant’s offense level and criminal history;  State the resulting sentencing range and the kinds of sentences available;  Identify any factor relevant to: (i) the appropriate kind of sentence, or (ii) the appropriate sentence within the applicable sentencing range;  Identify any basis for departing from the applicable sentencing range.

The Presentence Report must also include:  The defendant’s history and characteristics;  Verified information stated in a non-argumentative style, that assess the financial, social, psychological and medical impact on any individual against whom the offense has been committed;  When appropriate, the nature and extent of nonprison programs and resources available;  When restitution appropriate, enough information for a restitution order;  If the court orders a study under 18 USC s 3552(b), any resulting report and recommendation; and  Any other information that the court requires.

Fed. Rule Crim. Procedure 32(d)(3) The presentence report must exclude:  any diagnosis that, if disclosed might seriously disrupt a rehabilitation program;  any sources of information obtained upon a promise of confidentiality; and,  any other information that, if disclosed, might result in physical or other harm to the defendant or others

United States v. Cole, 622 F. Supp.2d 632, 640 (N.D. Ohio 2008). “Deterrence, incapacitation, and rehabilitation are prospective and societal – each looks forward and asks: What amount and kind of punishment will help make society safe? In contrast, retribution imposes punishment based upon moral culpability and asks: What penalty is needed to restore the offender to moral standing within the community?”

Jason – can we insert Sentencing memo here?

Federal Sentencing Federal Public Defender’s Office June 23, 2014