Sentencing Hearings in Federal Criminal Cases: Four Pitfalls and Some Tips

For you readers you here in Atlanta, those in Macon, Gainesville, Savannah, Athens, and Valdosta in Georgia, and others around the country who know I handle federal criminal cases just about everywhere, this is a post about the sometimes dreaded and often misunderstood “sentencing hearing” in federal criminal cases.  I am working on a few this afternoon, and wanted to discuss four pitfalls, and some tips, to make the process go more smoothly for the client and the attorney.

A Judge’s clerk will set the date for the sentencing hearing when the client pleads guilty, or in the unfortunate situation where the clerk reads the dreaded one-word jury verdict (“guilty” instead of the happier sounds of the two-word “not guilty”).  This is generally 2-3 months down the road.  Pitfall Number One: remind the client that he or she must still be on their best behavior, no matter how down or depressed is the client after pleading or being found guilty.  The key is to arrive at sentencing with a life that is worth living, so the attorney has a story to tell and why the sentence should be the shortest interruption possible for that client’s life.

Next comes the interview with the U.S. Probation Officer (the “PO”) who has the task of researching and then writing the Presentence Investigation Report (the “PSR” in our lingo).  Pitfall Number Two: please, please, please,  I never again want to hear about an attorney who lets his or her client attend this interview alone.  Tip: experienced federal criminal defense attorneys have been through dozens (or if the lawyer has done this as long as me, several hundred) of these interviews.  Experienced federal criminal defense attorneys know what to expect, and we spend a significant amount of time prepping the client to avoid mistakes when communicating with the PO.  The biggest problem the client can make is to lie when speaking with the PO, so prep to avoid any of that.

The PSR gets released to both sides, and here is Pitfall Number Three. Too many lawyers (often at the urging of the client) want to fight every word, every comma, and each aspect of the Sentencing Guidelines discussed in the PSR.  Don’t get me wrong, keep fighting, but over the years I get better results focusing on the issues we truly have a chance of winning.  In other words, the tip for handling objections to the PSR is to go after the portions that can really make a difference, and jettison objections that are more peripheral.

Next comes the Sentencing Memo that we try to file in every case.  The PSR is written by a government employee, no matter how objective and well-meaning the PO is who created that document.  I want the Judge to see an evaluation of the case written from the defense perspective.  We file these to, in the immortal words of the Johnny Mercer song, “Accentuate the Positive.”  We want the Judge to hear the good things about the client, his or her future prospects, and why the sentence should be the most lenient possible under the circumstances.  This brings us to  Pitfall Number Four:  this is NOT the place to re-fight the issues at trial or how the prosecutor brought unfair charges against the client.  Judges tend to remind lawyers the client already pled or was found guilty, so the lawyer loses a lot of credibility when re-arguing the case at the sentencing hearing.

The best tip for getting through the sentencing hearing is to have a lawyer that is highly experienced in such matters, or who is smart enough to consult with others who are.  Good luck to all clients and lawyers facing these in the future.