Sentencing

• Pages: 791-864
• Author: Thomas J. Farrell,Brandon D. Minde

SENTENCING

22-1

CHAPTER 22

SENTENCING

I. GENERAL POINTS

§22:01 Importance of Sentencing

§22:02 Sentencing in Capital Cases

II. SENTENCING SCHEMES

§22:10 Determinate Versus Indeterminate Sentencing Schemes

§22:11 Sentencing Guideline Schemes

§22:12 Establishing Facts in Mandatory Schemes

§22:13 Working With a Guideline System

§22:14 Departures and Variances From the Federal Guidelines

III. SENTENCING ALTERNATIVES

§22:20 General Points

§22:21 Possible Alternatives

IV. THE PRESENTENCE INVESTIGATION REPORT (PSIR)

§22:30 General Points

§22:31 What the Report Covers

§22:32 Waiving the PSIR

§22:33 The Presentence Interview

§22:34 Providing Information to the Investigator

§22:35 Risk Assessment Tools

§22:36 Challenging the PSIR

V. ADVOCATING FOR YOUR CLIENT

§22:40 Humanize Your Client

§22:41 The Sentencing Memorandum

§22:42 Letters

§22:43 Videos and Photographs

VI. CONSECUTIVE VS. CONCURRENT SENTENCES

A. Single Jurisdiction

§22:50 General Points

§22:51 Single Case

§22:52 Multiple Cases

SENTENCING

Criminal Defense Tools and Techniques 22-2

B. Different Jurisdictions

§22:60 Obstacles to Concurrent Sentencing

§22:61 Release to the Secondary Jurisdiction

§22:62 Obtain a Concurrent Sentence From the Federal Judge

§22:63 Ask the Second Jurisdiction to Reduce its Sentence

VII. CREDIT FOR TIME SERVED

§22:70 General Points

§22:71 The Determination of Credit

VIII. SENTENCING HEARINGS

A. Evidence

§22:80 Rules of Evidence Do Not Apply

§22:81 Confrontation Clause Does Not Apply

§22:82 Fourth and Fifth Amendment Violations

§22:83 Acquitted Conduct

§22:84 Polygraphs

B. Preparing for the Hearing

§22:90 General Points

§22:91 Submit Certificates and Letters

§22:92 Have Friends and Character Witnesses Ready

§22:93 Seek the Prosecutor’s and Probation Officer’s Input

§22:94 Prepare Social Workers and Therapists to Testify

§22:95 Make Restitution

§22:96 Check for Special Sentence Thresholds

§22:97 Your Client’s Testimony

IX. SPECIAL SITUATIONS

§22:100 Fines and Restitution

§22:101 Sex Offender Registration

§22:102 Persistent and Habitual Offender Sentences

§22:103 Dangerous and Sexually Violent Predator Statutes

§22:104 Stipulation to Deportation

§22:105 Sentencing Below the Statutory Minimum

X. AFTER THE SENTENCE

§22:110 Preparing Your Client for Incarceration

§22:111 Sentence Reduction Motions

XI. FORMS

Form 22-1 U.S. Probation Department Presentence Interview Worksheet

Form 22-2 Probation Department Financial Disclosure Forms

Form 22-3 Position of Defendant With Respect to Sentencing Factors

Form 22-4 Motion and Order to Redact Presentence Investigation Report

Form 22-5 Sentencing Memorandum

Form 22-6 Sample Sentencing Letter

Form 22-7 Motion and Order for Adjustment to Award Credit for Time Served

Form 22-8 Stipulation to Deportation

Form 22-9 Sample Statement for Acceptance of Responsibility

Form 22-10 Consent Motion for Release to State Custody Pending Sentencing

Form 22-11 Consent Motion to Revoke Release Order

SENTENCING

22-3 Sentencing §22:11

I. GENERAL POINTS

§22:01 Importance of Sentencing

With approximately 90% of federal and 70% of state criminal cases ending in conviction, sentencing may

be the most important proceeding in a criminal case. [See United States Sentencing Commission, Sourcebook of

Federal Sentencing Statistics (available at www.ussc.gov); Administrative Oce of U.S. Courts, Federal Judicial

Caseload Statistic, Table D-4, Defendants Disposed of, by Type of Disposition and Oense (March 31, 2007)

(available at www.uscourts.gov/); U.S. Department of Justice, Bureau of Justice Statistics, Felony Defendants in

Large Urban Counties, Appendix Table G (2002).]

From the start of your representation, everything you do should position your clients for sentencing. Interview

your clients and their families with an ear for good works, diculties overcome, and disorders that could mitigate the

oense. Limit the prosecution’s damning evidence and extract helpful concessions in pre-trial motions and hearings.

Negotiate for a favorable plea and sentencing range, all with an eye on the likely sentence such a plea will evoke.

Sentencing litigation requires much more than throwing the client upon the court’s mercy and expecting to

reap the benets of your earlier eorts. Some of the legal issues you face are as complex as any in the criminal

justice system, and the strategic decisions demand your best advocacy.

§22:02 Sentencing in Capital Cases

Death penalty cases not only are the most serious, but a specialized and complex body of law applies to those

cases. [See, e.g., ABA Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases.]

Many jurisdictions require counsel to undergo specialized training and demonstrate competency before under-

taking a capital case. No one should represent a defendant in a capital case without that training and associating

with an experienced death penalty lawyer.

[§§22:03-22:09 Reserved]

II. SENTENCING SCHEMES

§22:10 Determinate Versus Indeterminate Sentencing Schemes

Indeterminate sentencing schemes

Most states employ indeterminate sentencing schemes.

Under an indeterminate sentencing scheme, the judge imposes a sentence as a range of years or months with a

mandatory and minimum term (e.g., three to nine years) and a parole board decides the defendant’s release date within

that range based upon parole guidelines and the defendant’s behavior and rehabilitative progress during incarceration.

Determinate sentencing schemes

The federal government and some states have turned to determinate sentencing.

In determinate sentencing the judge announces a specic sentence. Most jurisdictions couple this system with

the abolition of parole, so that the defendant serves his full term, minus a modest reduction for good behavior or

“good time.” [Mistretta v. United States, 488 U.S. 361, 367 (1989) (explaining federal system); Wayne LaFave, et

al., 5 Criminal Procedure §26.1(c) (2006).]

However, judges then tack on a term of “supervised release,” a form of post-incarceration probation, so that

the defendant still remains subject to state control and incarceration if he violates the conditions. [E.g., 18 U.S.C.

§3583; Minn. Stat. Ann. §244.05 (inmate may be released on good time equal to up to one-third his sentence, but

remains on supervised release for that period).]

§22:11 Sentencing Guideline Schemes

Many jurisdictions leave the sentence in a particular case to the judge’s discretion. This allows the judge to

individualize the sentence to the defendant’s background and needs and to the particular circumstances of the crime.

However, it also means that sentences for nearly identical crimes might vary from judge to judge.