Federal Sentencing Tips

Mar

Prison Practice Tips for March 24, 2015

Ensure Your Client Serves Time in the Best Facility

Once a defense attorney understands how the system works, there are four things he or she can do to ensure that a client serves time in the best possible facility.

  1. Ensure the accuracy of the information on which the Bureau of Prisons (BOP) will rely to make its designation decision.
  2. Score the client and search for Public Safety Factors (PSFs) to determine the appropriate security level. PSFs such as “sex offender,” “deportable alien,” or “greatest severity,” for instance, can preclude camp placement for otherwise-qualified defendants.
  3. Consult with the client to determine which facility at the appropriately calculated security level the client prefers and then ask the sentencing judge to recommend that facility to the BOP, as well as to provide reasons in support of that recommendation.
  4. If the defendant is not already in custody, counsel should always request self-surrender.

 

The Importance of an Accurate Presentence Investigation Report

Make sure the Presentence Investigation Report (PSR) is correct. The BOP relies almost exclusively on the information contained in the PSR to decide where a defendant will do time, as well as to make other important correctional decisions (such as whether a defendant is eligible for the BOP’s Residential Drug Abuse Program, RDAP). It is for good reason that the PSR is known as the “bible” by prisoners and BOP staff alike. If defense counsel objects to inaccurate information at the time of sentencing and the judge sustains those objections, defense counsel must make sure that the PSR is corrected before it is sent to the BOP or, at a minimum, that formal findings are made by the judge pursuant to Fed.R.Crim.P. 32(c)(1) and attached to the PSR before it is forwarded to the bureau. A finding made in the Statement of Reasons (sealed) section of the judgment will also suffice.

Approximately 97 percent of all federal criminal defendants plead guilty. Seventy-five percent of the remaining individuals who proceed to trial are convicted. There is, therefore, almost a 99 percent chance that a person charged with a federal crime will ultimately face a judge for purposes of sentencing. Of those charged and convicted, 87.6 percent will be sentenced to prison. Thus, for most offenders, “How much time am I going to do?” and “Where am I going to do it?” are key concerns.

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About Alan Ellis
Alan Ellis is a criminal defense lawyer with offices in San Francisco and New York, and over 47 years of experience as a practicing lawyer, law professor and federal law clerk. He is a nationally recognized authority in the fields of federal plea bargaining, sentencing, prison matters, appeals, habeas corpus 2255 motions and international criminal law.

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