Sentencing in Federal Court
| Publication year | 1982 |
| Pages | 1561 |
| Citation | Vol. 11 No. 6 Pg. 1561 |
1982, June, Pg. 1561. Sentencing in Federal Court
Any criminal lawyer who has made even an occasional visit to federal court knows that it is quite a different experience from what he or she may be used to in state court. Perhaps nowhere are these differences more sharply in focus than in sentencing.
This article is an attempt, by no means exhaustive, to familiarize the reader with the more important aspects of federal sentencing so that the shock of unfamiliarity can give way to a greater understanding of the federal system and thus to more effective representation of defendants when the all too frequent result of being sentenced in federal court comes to pass.(fn1)
Plea bargaining for a specific sentence, or sentence bargaining, is not practiced in federal district court. The judges will not and cannot(fn2) participate in plea discussions. Thus, any efforts to guarantee a particular sentence are limited to bargaining for dismissal of counts or reduction of charges to a lesser offense carrying a lesser penalty.(fn3) While this does not provide the flexibility available with sentence bargaining, certain limited tools can be utilized.(fn4)
The possibility of keeping a case before the U.S. Magistrate should not be overlooked as an alternative to proceeding in the U.S. District Court. The magistrates have jurisdiction over all misdemeanor and petty offenses. In addition, where a case is initially brought before the magistrate on a felony complaint, it is sometimes possible to obtain the filing of a misdemeanor information in order to keep the case before the U.S. Magistrate. A deferred prosecution agreement might be worked out in that situation.
Where a felony indictment has already been filed, it is still possible to have the case remanded to the magistrate for the filing of a misdemeanor information. Some district court judges in the interest of judicial economy have allowed the case to be transferred back to the magistrate to relieve crowded dockets. Be advised, however, that some judges might consider this forum shopping.
A probation officer will be assigned to interview the client and prepare his presentence report soon after the entry of plea or verdict of guilty (usually the same day). The probation department in federal court enjoys a privileged place. As an arm of the court, the department has access to the judges on a routine basis and is relied upon heavily in reaching the ultimate decision on sentencing. The relationship it has with the bench is unlike that enjoyed by its counterpart in state court.
It is important to meet with the probation officer before the pre-sentence investigation begins in order to open lines of communication between counsel and the court without engaging in improper ex parte communications. Often a letter sent to the probation officer during the investigation concerning information of particular relevance to the client's case serves to spark the probation department's interest as well as to alert the lawyer to problems or concerns the department may have regarding the client.
Letters from third parties written in support of the defendant are also very important. Since the taking of testimony at a sentencing hearing is rare in federal court, letters are a necessary substitute. In this way, favorable material reaches the eyes of the sentencing judge since letters are normally attached to the PSI, and not just summarized. Also, the possibility of obtaining a psychiatric examination for the purpose of sentencing or releasing relevant psychiatric information already in counsel's possession should not be overlooked.
Once all the information for the report has been gathered, the probation department will staff the case. The participants at the staffing include the officer assigned the case as well as other probation officers. The purpose of the staffing is to get greater input prior to making a recommendation to the court and to achieve more consistency in sentencing. It is perhaps the most crucial phase of the process, and usually occurs several days before the scheduled sentencing. It is imperative that all...
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