Sentencing in Federal Criminal Cases
May 2024
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How does sentencing work in federal criminal cases? If you or a loved one is asking that question, we know that it comes with an overwhelming degree of stress and anxiety. No one wants to face federal charges; but if it happens, you want answers. You want a guide.
In this article, we break federal sentencing down into its component parts, and we summarize important aspects of each step. No two cases are alike, but this overview should help demystify a complex process.
I. Conviction
A federal criminal defendant will only face sentencing if convicted of a crime. Although the Department of Justice and local U.S. Attorneys’ Offices investigate and charge many people with crimes, they don’t — in spite of popular lore — always convict them.
Even if charges are filed, defendants may raise legal challenges and file motions asking the court to dismiss the charges. In some cases, those efforts are successful,[1] and in other cases, defendants proceed to trial and are acquitted by a jury of their peers. Nevertheless, the majority of federal criminal cases result in a conviction.[2]
If a defendant is convicted of federal charges, the case moves into a lengthy sentencing process that culminates with a U.S. District Judge deciding what sentence to impose.
II. Presentence Investigation Report
After a defendant is convicted, whether by pleading guilty or being found guilty at trial, the court will order its probation office to conduct a presentence investigation and create a presentence report, commonly known as a PSR.[3]
The PSR is a lengthy document containing information about the case, including facts about the crime and the applicable Sentencing Guidelines. The report also provides details about a defendant’s history and characteristics. Before sentencing, the court will receive a copy of the report to help inform its sentencing decision.
As part of the PSR process, the probation officer will interview the defendant, often with the defendant’s attorney present. That interview is typically focused on facts about the defendant’s life, both past and present. The probation officer is, in essence, preparing a short biography of the defendant, so the questions tend to focus on the defendant’s family, education, work history, medical conditions, and other biographical details.
The presentence investigation and PSR are vital parts of the federal sentencing process. During the process, defendants have the opportunity to significantly change how they are viewed by the probation office and, subsequently, by the court.
III. Sentencing Guidelines and Objections
Once the probation officer completes the PSR, copies are provided to both the defendant and the Government, and both sides have an opportunity to object in writing if they disagree with any part of the report.[4]
Those PSR objections may range from simple corrections, like fixing the spelling of a defendant’s high school, to complex legal arguments about how the Sentencing Guidelines should be calculated.
Many people have heard of the Sentencing Guidelines or the offense levels, sometimes colloquially referred to as “the points,” recommended by those Guidelines; but to summarize, the Guidelines provide each judge with a recommendation about what sentence to impose. The Guidelines are tailored to each case by taking into account “both the seriousness of the offense and the offender’s criminal history.”[5]
At sentencing, the court must “begin all sentencing proceedings by correctly calculating the applicable Guidelines range,”[6] which “should be the starting point and the initial benchmark.”[7] The court must start there, but it “may not presume that the Guidelines range is reasonable.”[8]
For two decades, district courts were required to follow the Guidelines when imposing sentences, but in 2005 the Supreme Court declared that the Guidelines should no longer be binding.[9] So today, the Guidelines are a only starting point, a recommendation — they do not control the court. Even so, courts still follow the Guidelines’ recommendations in almost 70% of federal cases.[10]
IV. Statutory Factors
After the court calculates the Guidelines range, it “must then consider the arguments of the parties” and several factors listed in 18 U.S.C. § 3553(a).[11] Those arguments are typically made both in court and beforehand in writing.
Before court, the parties may file written arguments regarding the sentence they believe is appropriate. That type of document is often referred to as a sentencing memorandum or sentencing submission.
The sentencing memorandum is arguably the most critical part of a defendant’s effort to seek a favorable sentence. It typically focuses on the sentencing factors the judge must consider, such as the defendant’s “history and characteristics” and arguments that the court need not impose a lengthy sentence because this defendant poses no danger to the community. It is an opportunity to present the most favorable aspects of a defendant’s case.
V. Sentencing Hearing
Finally, at the end of the entire process, the court will hold a sentencing hearing and hear from everyone before making a final decision about what sentence to impose. Each judge and each jurisdiction has its own approach to these hearings. Some permit the parties to present evidence and call witnesses, while others prefer to receive everything in writing before the hearing.
At a minimum, the court must allow the defendant, the defendant’s attorney, and the prosecutor to speak. The defendant, in particular, must be permitted to “speak or present any information to mitigate the sentence.”[12] In many cases, that is the only chance to speak directly to the judge, so a defendant should spend significant time preparing for that moment.
After everyone has had an opportunity to speak, the judge will pronounce sentence in open court. After months or even years of stress and anxiety, the defendant receives the verdict — finally learning the outcome of everyone’s combined efforts.
VI. Conclusion
Federal sentencing is an emotionally difficult, legally complex process that requires an attentive, strategic, and individualized approach. If you have any questions about federal criminal sentencing, please do not hesitate to contact us.
[1] We have written about several such cases, including dismissal of a Foreign Corrupt Practices Act (FCPA) case, reversal of federal bribery convictions, reversal of federal wire fraud convictions, and a Speedy Trial Act dismissal of federal charges. The practice areas page of our website describes some of the cases we have handled.
[2] In 2022, for instance, only 8.6% of defendants in federal criminal cases avoided conviction, according to the Pew Research Center. https://www.pewresearch.org/short-reads/2023/06/14/fewer-than-1-of-defendants-in-federal-criminal-cases-were-acquitted-in-2022/.
[3] Fed. R. Crim. P. 32(c)(1)(A) (In most cases, a probation officer “must conduct a presentence investigation and submit a report to the court before it imposes sentence…”).
[4] Fed. R. Crim. P. 32(f) (“the parties must state in writing any objections, including objections to material information, sentencing guideline ranges, and policy statements contained in or omitted from the report”).
[5] See Overview of the Federal Sentencing Guidelines (2022), U.S. Sent. Comm’n, https://www.ussc.gov/sites/default/files/pdf/about/overview/2022_Guidelines-Basics-Trifold.pdf.
[6] Cases are often reversed on appeal due to improper Guideline calculations. See, e.g., United States v. Zeno (improper analysis of time spent in state custody); United States v. Perkins (failure to explain reason for sentence above the Guidelines); United States v. Santiago (improper application of the murder Guideline without considering whether defendant acted in self-defense); United States v. Ortega (improper application of Guideline for obstruction of justice). Our firm has also written about objections to the white-collar Sentencing Guidelines.
[7] Gall v. United States, 552 U.S. 38, 49 (2007) (citation omitted).
[8] Id. at 50.
[9] United States v. Booker, 543 U.S. 220 (2005).
[10] “In FY 2022, 67.8 percent of all offenders received sentences under the Guidelines Manual, in that the sentence was within the applicable guideline range or was outside the applicable guideline range and the court cited a departure reason from the Guidelines Manual.” USSC Releases 2022 Annual Report (Mar. 15, 2023), https://www.fd.org/news/ussc-releases-2022-annual-report-and-sourcebook-federal-sentencing-statistics.
[11] Gall, 552 U.S. at 49–50. 18 U.S.C. § 3553(a) lists these factors:
“The nature and circumstances of the offense and the history and characteristics of the defendant;”
“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;”
“The kinds of sentences available;”
“The kinds of sentences and the sentencing range” recommended by the Sentencing Guidelines;
“Any pertinent policy statement” in the Sentencing Guidelines;
“The need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct; and”
“the need to provide restitution to any victims of the offense.”
[12] Fed. R. Crim. P. 32(i)(4)(A)(ii) (emphasis added).
KHALIL & LAKE is a white-collar litigation boutique focusing on federal criminal law, appeals, and complex investigations in a variety of business sectors. If you have any questions about these issues, or if you would like a copy of any materials mentioned here, please let us know.