The Presentence Investigation Report in Federal Criminal Cases

Good late January Morning gentle readers, the sky is gray and cold, what better time to talk yet again about the Presentence Investigation Report (we sometimes call it the “PSR”) in federal criminal cases.  Careful readers will recall that I return to this subject around every 3-4 years on this blog, such as here and here.

Recall, the PSR is a document prepared by a U.S. Probation Officer who works for the Judge.  The PSR is only prepared if a Defendant is either found guilty by a jury, or if he or she admits to committing a crime in a guilty plea proceeding.

The PSR has two basic part.  First, the Probation Officer (or “the PO”) outlines the crime and as part of that then makes recommendations as to how the Sentencing Guidelines might apply to that conduct.  Second, the PO writes up what is essentially a miniature biography of the accused person, with information about the Defendant’s family, education, health, financial situation and other factors that  might impact what is or is not a “reasonable sentence”.

The PO then gives both sides the opportunity its to submit “objections” to the initial version of the report.  If one side or the other does not like something that the PO has written, they can try to change the PO’s position on something before the final PSR is sent to the Judge.  This is a very important stage, in that the failure to properly object can sometimes prevent an otherwise good sentencing argument from being raised in a later appeal.

The final PSR goes to the Judge no later than 10-14 days before the sentencing hearing.  The Judge begins the sentencing hearing by first referring to the PSR, and discusses whether there are any unresolved objections.  As a result, the PSR is sort of the jumping off point for the hearing, so getting this document into the best shape possible from the defense perspective is crucial.

Today I am drafting objections to a PSR.  There always is the temptation to write out a long explanation of why the PO got it wrong, but the longer I do this work (we are over 40 years now) the more that I find a short and directly focused attack often works the best.