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Sentencing in Federal Cases

As of 2005 the Federal Sentencing Guidelines are no longer mandatory. Until the now-famous BOOKER [BOOKER US v. Booker 543 US 220] case the sentencing guidelines were mandatory. Sentencing Guidelines continue to play a critical, and significant, role in federal criminal sentencing. The purposes of the Guidelines, (the common aim of Congress), appears in the enacting statute of the Sentencing Reform Act of 1984. The U.S. Congress wanted to ensure similar sentences for those who have committed similar crimes in similar ways. The landmark case of US v. Booker 543 US 220 moved section 3553(a) into the forefront (“loadstar” in sentencing terms) in sentencing considerations. That does not and did not render the Guidelines to be merely casual advice, but it did create a new sentencing formula that is seen in federal courts throughout the United States. The judge in federal court begins all sentencing proceedings by announcing his calculation of the relevant and applicable sentencing guidelines range. It is the starting point in the initial benchmark from which a sentencing goes forward. Next step: the sentencing judge considers the sentencing guidelines range as the ‘loadstar’, or anchor of considerations in the district courts process of determining the appropriate sentence. Every federal court has a sentencing process that begins with a interview by the in court probation officer. At the final hearing to determine guilt, either after a disposition by trial or the entry of a plea, the judge will order a Presentence Report. The Presentence Report order from the sentencing judge requires an interview by the in-court probation officer in 10 days or less. The probation officer has 20 days to write the report. Once a report is written it is submitted to the judge, and to the attorneys for the government and for the defense. The presentence report is never a part of the official court record because it is confidential. It is for the eyes-only of the sentencing judge, the US attorney, and the attorney representing the defendant. In the Presentence Report, created by the probation officer, all relevant facts concerning the background of the defendant are assembled and organized for the Court. Then the presentence report goes through the analysis of the appropriate guideline sentencing range and sentencing category. The presentence report then goes through the plea agreement, if there is such, and reduces the sentencing range by any appropriate departures. A departure is a reduction in the sentencing guidelines range. A variance is a sentence which is a non-guidelines, or out of the Guidelines range sentence. What has happened after 2005 is that the sentencing guidelines, being merely advisory, it is the starting point. In many cases it is also the end point.

Once the Presentence Report is promulgated, it is provided to the defendant. The defendant has 20 working days in which to file any objections. The objections can only be as to factual elements in the report. The objections cannot address the sentencing suggestion or recommendations of the Probation Department. After arriving at the initial Guideline calculation the sentencing judge must consider factors which are outlined in the United States code section 3553. At the sentencing hearing the judge will read a presentence report, a sentencing memorandum from the government, and a sentencing memorandum from the defendant. Sentencing in Federal Court is never an agreed upon resolution, that means you cannot rely or even request that the prosecutor in federal court negotiate a sentence. This is very different in most State courts where the prosecutor and the defendant can come to an agreement or an accommodation of a recommended sentence. Federal court is completely different. In federal court it is only the judge who makes a final determination after reading the presentence report, the sentencing memorandums and hearing oral argument. If the federal judge decides to give a sentence which is a variance, or a non-guidelines sentence he will take into consideration section 3553. Federal criminal sentencing statutes and cases require the judge impose a sentence sufficient, but not greater than necessary, to comply with the purposes of that section. The purposes are as follows:

  1. The need to reflect the seriousness of the fence and to
  2. Promote respect for the law and
  3. Provide just punishment for that offense,
  4. The need to afford adequate deterrence to criminal conduct by the defendant
  5. The need to protect the public from further crimes by the defendant and the need for rehabilitation. The court must then go through the process of determining the particular sentence to impose. The relevant and exclusive considerations for the court, further are:
  6. The nature and circumstances of the offense and
  7. The history and characteristics of the defendant. This is statutory purpose, as promulgated by the sentencing statute. The court must consider policy statements and other sentences for similarly situated defendants. The court must consider the need to avoid unwarranted sentencing disparities and to provide restitution to the victim.
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