Practice Tips

Practice Tips for February 24, 2015

(Click the icon below for the full text.)

Approximately 94 percent of all federal criminal defendants plead guilty. Seventy-five percent of the remaining individuals who proceed to trial are convicted. There is, therefore, a 97 percent chance that a person charged with a federal crime will ultimately face a judge for purposes of sentencing. For most individuals “How much time am I going to do?” and “Where am I going to do it?” are key concerns. We offer the following tips to help attorneys and their clients obtain the lowest possible sentence to be served at the best possible facility under terms and conditions that will facilitate release at the earliest possible opportunity.

Sentencing Tips

• While the federal Bureau of Prisons (BOP) will not credit an inmate’s sentence for time served on pretrial release under home confinement or in a halfway house if that placement was as a condition of bond, as opposed to an alternative custody arrangement (see Reno v. Koray, 515 U.S. 50 (1995)), courts are nonetheless free to account for such time as a basis for a variance. Gall provides useful language concerning the punitive nature of home detention, depending on the nature and scope of court-ordered conditions.
• Studies suggest that 80 percent of the time, a judge has a “tentative sentence” in mind, even before the sentencing hearing begins. Accordingly, the best way to influence the judge’s selection of “tentative sentence” is to file a sentencing memorandum, which fully sets forth the facts and arguments supporting for the requested disposition, approximately seven days before sentencing (unless otherwise required by local rule). If you present the judge a solid memorandum that uses the §3553(a) factors to demonstrate why a sentence below the guideline range is “sufficient, but not greater than necessary” to achieve the goals of sentencing, including character letters from people willing to offer insight into a client’s true nature notwithstanding their awareness of the offense(s) of conviction, you will go a long way toward achieving the sentence you want. Waiting until the actual hearing to make your sentencing case, as has been a historic practice in state courts, makes it far less likely that the court will give appropriate weight to your position.
• Document, document, document. Don’t just assert the existence of mitigating factors; provide as much supporting evidence as possible. For instance, if your client has a physical or mental impairment, or drug or alcohol dependcy issues, corrobate the issue with a doctor’s letter and/or report and with medical/treatment records (under seal, preferrably via the Probation Office so that the information is appended to the PSR and given to the BOP). Similarly, if your client has a military service record or a history of good works, provide appropriate documents or testimonials. Remember that judges won’t necessarily take your client’s word on anything – he is, after all, a convicted felon – and that even if the court does accept his word, evidentiary documents will flesh out and add weight to the sentencing presentation.
• There is a prevailing feeling in the defense community since Booker that applications for a sentence below the guideline range should be couched as requests for variances or for non-Guidelines sentences; that the days of motioning for a “downard departure” have passed. While this position has strong facial appeal, the fact remains that even after Booker, a court must “consider” guideline policy statements prior to imposing sentence. Not to mention many judges still prefer to engage in departure analysis. It is therefore important to show, if you can, how the policy statements in Parts 5H and 5K call for a lower sentence. Even though a single mitigating factor may not warrant a downward departure, a combination of factors might (see USSG §5K2.0 Commentary). Present the court with every credible mitigating factor that the case presents, both in terms of “departure” and in terms of “variance” and/or “non-Guidelines sentence.” Even if you don’t get a sentence below the guideline range, mitigating factors can often help in getting a sentence at the low end of the range, which is especially important when the offense level and/or the criminal history score render high guidelines.
• The U.S. Sentencing Commission revised the policy statement to Guideline Section 5H1.3 to providethat “[m]ental and emotional conditions may be relevant in determining whether a departure is warranted,” especially “[i]n certain cases … to accomplish a specific treatment purpose.” (Emphasis added). Prior to the amendment (Amend. 739), mental and emotional conditions were not considered “ordinarily relevant.”Counsel than thus now argue under a defendant’s “history and characteristics,” 18 U.S.C. §3553(a)(i), that a specific “treatment purpose” is that the BOP will not likely treat a particular area requiring accommodation and, therefore, that a variance is warranted. The cost of treating a client’s condition(s) further supports a cost-related mitigation argument (see above), particularly in light of the BOP budgetary problems and constant overcrowding.
• If your client is a cooperating witness, accompany him or her to any debriefings. Not only will you be able to clear up any future dispute as to what the client said, your presence will often facilitate the discussions, particularly if you have debriefed and prepped your client in advance.
• Many of us have been in the situation where even though our client has cooperated, the government has refused to file a 5K1.1 motion for downward departure based on substantial assistance. If you are ever faced with this unpleasant situation, either seek a downward departure based on “super/extraordinary acceptance of responsibility” or, since the “government motion requirement” of §5K1.1 is now only a guideline policy to be considered, argue that even without a 5K motion, the cooperation would make a lower sentence “sufficient,” and a higher one “greater than necessary” to meet the goals of sentencing. Every Circuit to have considered the issue has ruled that a sentencing court may consider a defendant’s cooperation as part of its § 3553(a) analysis, and grant a variance on that basis, even in the absence of a Government motion. For more information on maximizing the benefits of cooperation, take a look at the lead article in the Summer 2007 issues of Federal Sentencing and Postconviction News, our firm’s quarterly newsletter. Finally, even where the government files a substantial assistance motion, unless otherwise precluded by the plea agreement, you are permitted to argue for a more generous reduction, and the court will be free to grant a greater reduction. While a substantial assistance reduction cannot be based on non-cooperation grounds, experience shows that judges unwilling to grant a relief for non 5K1.1 reasons oftentimes grant a more generous 5K1.1 reduction than recommended by the government when presented a compelling mitigation case, especially since such an approach insulates them from appellate review.
• Seek a “lateral” departure or “variance” that requires your client to serve the same amount of time the Guidelines call for but under more favorable conditions. For example, if the Guidelines call for a 21-month sentence, ask the judge to impose a sentence of seven months of incarceration, followed by supervised release with a special condition that the client serve seven months in Residential Corrections Center (RRC or halfway house) and then followed by seven months of supervised release with home confinement and an appropriate amount of community service. This adds up to the same 21 months that the client would normally serve. However, it actually requires more time since the client will not get good conduct time credit for either the halfway house or home confinement portions of the sentence. While your client will serve the entire 21 months, the conditions of confinement will be better, and the opportunitites for your client to work and support a family will be greater.
• Accompany your client to probation officer meetings that are part of the Presentence Investigation Report (PSI) process. Since probation officers are overburdened, obtain in advance the forms and documents they need, and have your client complete and bring them to the initial interview (subject to your prior review). If you case law or other materials supporting your sentencing position, bring copies with you, highlighting the relevant portions. Probation officers, most of whom are not lawyers, often prefer highlighted cases to memoranda of law, which they find off putting.
• When you meet with the probation officer, find out the “dictation date,”the date by which the first draft of the PSI must be dictated. When possible, it is extremely helpful to have the probation officer and the Assistant U.S. Attorney (AUSA) buy into your client’s position regarding offense behavior, role in the offense, and any grounds for relief from the Guidelines before the dictation date. “Buying in” does not mean paying anybody off. It means getting them to agree that your position is not unreasonable. Remember that probation officers often have a psychological investment in their original draft PSI, which can make getting them to change a PSI difficult. By putting your effort into trying to get a good initial draft, you will not have to file that many objections.
• Read “Inside Baseball: An Interview with Former Federal Probation Officer” by Alan Ellis and Tess Lopez that appears in this book. It is valuable advice by a former U.S. Probation Offier who is now a mitigation specialist on how to best approach a probation officer. In short, it encourages educating the probation officer about your clients before the prosecutor has had an opportunity to poison the well. One way to do so is by providing the probation officer with favorable character letters. An example of a character instructional letter that we send to clients is in this book.
• Below guideline variance sentences are on the rise while sentences within the guidelines continue to decrease. According to the statistics compiled by the U.S. Sentencing Commission since Booker, non-government-sponsored (e.g., non-§5K1.1 departures) below guideline sentences have increased from 12% of all sentences imposed in 2006 to 17.4% in 2011. Conversely, within guideline sentences have decreased from 61.7% of all sentences imposed in 2006 to 54.5% in 2011. The increase in below guideline sentences is even more dramatic when looking at particular offense categories. For example, non-government-sponsored below guideline sentences for child pornography offenses-perhaps the most controversial of all types of guideline sentences-have more than doubled from only 20.8% of all such sentences imposed in 2006 to 44.8% in 2011. The chart below shows the trends for non-govertment-sponsored below guidelines sentences in the top five offense categories as well as the trend for sentences overall.
• The foregoing trend makes reinforces the importance of using a sentencing specialist able to help humanize your client, preferably someone familiar with the federal system’s many nuances. If your client cannot afford this service, ask for funds under the Criminal Justise Act, noting that such providers typically bill at below the CJA rate, meaning that the court receives information pertinent to the disposition process that attorneys are not typically trained to elicit at a cost savings. Sentencing advoicates, who are akin to capital mitigation specialists (though their case work-ups are not as intensive), are often social workers, former U.S. probation officers, or criminologists. Their training makes their interviewing technique more effective than that of most lawyers, and often allows them to obtain information a lawyer cannot. For example, a forensic social worker with a background in psychiatric social work is better able to recognize when a client has a mental illness, which may provide a ground for diminished capacity-type relief. These advocates are also better able to identify and develop information concerning unique family circumstances. . The National Alliance of Sentencing Advocates & Mitigation Specialists (NASAMS) , has listings for advocates around the country. Judges always want to know why the defendant committed the offense. A sentencing presentation that can help you and the court answer the “why” question goes a long way toward securing lowest possible sentence.
• Be creative. Don’t limit yourself to thinking about downward departures-but don’t forget about them either. First think about the departures identified in the guidelines themselves. Then think of things that make your case unusual. If there are things that are unusual about your client or the offense-things that take the case outside the “heartland” of the guidelines-these can be good grounds for a departure. But don’t stop there. After Booker, almost anything about your client, the offense, and the sentences that similarly situated defendants have received can support an argument that a sentence below the bottom of the guideline range is “sufficient, but not greater than necessary” to meet the goals of sentencing.
• Let judges be judges. Booker altered the ground rules for justifying lower sentences. Be creative. Don’t limit yourself to factors that would have supported downward departures under the Guidelines. Think of unique aspects about your client and/or the offense that make a sentence below the guideline range “sufficient” to meet the goals of sentencing, that is, why a sentence within the range is “greater than necessary” to meet those goals. As a recent example, there has been a growing trend given recent economic realities to argue that the cost of incarceration should be factored into whether a sentence is “greater than necessary.” Such an argument carries greater force when the court understands what the client would be doing if not incarcerated (i.e., working, supporting a family, paying taxes).
• For older clients or those facing significant sentences, make the court aware of the client’s life expectancy. Data on life expectancy is readily available online through the Centers for Disease Control and Prevention, among many other places.  In the absence of studies measuring the impact of incarceration on life expectancy significant anecdotal evidence supports the contention that extended incarceration significantly reduces life expectancy. Data from any life expectancy charts should be augmented by arguments specific to your client and/or where your client will serve time. Some facilities are more onerous than others and hard time doesn’t help life expectancy. This argument meshes well with arguments regarding susceptibility to abuse in prison depending on the characteristics of the offender and/or the nature of the offense and/or the likely designated prison.
• Traditionally, federal courts did not consider any disparity between the punishments meted out by state courts vis-à-vis federal courts for the same or similar conduct. After Booker, that has changed. See, e.g., United States v. Clark, 434 F.3d 684, 687 (4th Cir. 2007) ( “the consideration of state sentencing practices is not necessarily impermissible per se”). Depending on your jurisdiction, the statutory maximum penalties for certain state law offenses often can be dramatically less than their federal counterparts. Likewise, good-time credits and other opportunitiues for early release (e.g., parole) can be far more generous at state levels than at the federal level, meaning that a state offender not only will receive a far less onerous sentence for the same or similar conduct as his federal counterpart, but may also serve far less time, as an overall percentage, of sentence imposed. Such comparisons both go to arguments regarding unwarranted disparity and, more importantly, serve as a measure of the disproportionate effect that the federalization of crime and the guidelines have on the particular offense.
• Sentencing judges and appellate courts are often concerned with unwarranted disparity with other defendants and cases. To bolster any predilection the court may have to exercise leniency in your case-both when considering how the disposition might be received in the Court of Appeals or the court of public opinion-emphasize what sentences other judges have imposed in similar cases, in the sentencing district, in neighboring jurisdictions, in other districts in the circuit, and around the country.
• The addition of one criminal history point may not change a defendant’s Criminal History Category (“CHC”). But it can still be important to object to these seemingly harmless additions, and then to appeal if the district court denies the objection. Normally, a criminal history point that does not affect the sentencing range is “harmless error.” But not always. In United States v. Vargas, 230 F.3d 328 (7th Cir. 2000), the Seventh Circuit remanded for resentencing based on a seemingly inconsequential criminal history point. The Court reasoned that the error was not “harmless,” because it “might have affected” the district court’s denial of the defendant’s motion for downward departure based on the defendant’s contention that his criminal history category significantly overrepresented the seriousness of his criminal history (see USSG §4A1.3 (p.s.)). As discussed in the Prison Tips section below, criminal history points can also impact prison placement.

Prison Tips

• A defendant’s presentence report (PSI) is the Bible in terms of BOP placement and programming. It is thus imperative that counsel ensure the document’s accuracy, even where a particular issue may not affect the court’s sentencing decision. When scoring a prisoner’s security points, the BOP considers, among other things, the individual’s criminal history score, as caculated (the BOP does not account for findings tha the score overstates the history of the offense history); verified education level, meaning a diploma or GED must be documented; and substance abuse history. To the extent a client may qualify for the BOP’s RDAP, it is important that he candidly discuss his drug and/or alcholol history with Probation during the PSI interview.
• Do not “oversell” medical and mental health issues to the Probation Office. Because the BOP operates on a Care Level system, inaccurate clinical information may result in a disfavored placement (e.g., farther from home) in the BOP’s attempt to accommodate issues identified in the PSI. Similarly, make every effort to substantiate a client’s medical and/or mental health problems, including medication, and have that information reflected in and/or appended to the PSI. Whatever valid cricitism of correctional health care may exist, the BOP cannot be faulted for failing to predict those problems from which a prisoner suffers if the information was available to but withheld from the Court.
• The BOP generally gives due consideration to judicial recommendations concerning placement and also programming. In order for such recommendations to carry the weight sought, however, they must be specific (i.e., not just “close to home) and consistent with policy. A recommendation supported by a well crafted rationale in support has far more weight than a generic recommendation of a particular facility. This is particularly important in these days of prison overcrowding. We have even found that where an offender is designated to a particular unfavorable facility the designation can be changed with an amended Judgment or other court issuance with a well rationale in support of a redesigation.
• BOP programming options change over time. In this regard, please be aware (a) that Butner is no longer a facility designed to house sex offenders; (b) BOP no longer offers RDAP for native Spanish speakers – all classes are in English; and (c) the intensive confinement center (boot camp) program has been abolished and (d) FCI Waseca, Minnesota is now a female facility.
• A year and a day sentence results in an inmate’s serving approximately 47 days less than he would serve on a 12-month sentence because the 12-month sentence does not provide for good conduct time (see 18 U.S.C. §3624(b)(1)).
• Generally, non-United States citizens are ineligible for minimum-security (federal prison camp) placement and, in fact, are housed in contract facilities operated by private companies. However, if U.S. Immigration and Customs Enforcement (ICE) or the Executive Office for Immigration Review (EOIR) determine that deportation proceedings are unwarranted, or there is a finding not to deport at the completion of deportation proceedings, an otherwise qualified individual may be eligible for camp placement if otherwise qualified and assuming necessary documentation is timely provided to the BOP.
• Many clients face both federal and state charges and/or sentences. This is a very complex area fraught with landmines. Issues concerning time credits in such situations are typically highly fact-dependent. Because federal sentences are usually longer and because confinement within the BOP is often seen as more desirable than state imprisonment, the presumptive preference for most clients is that the federal case control. In such instances, counsel should confirm what jurisdiction exercises primary custody over the client and, if it is the state, work to effect the client’s transfer to primary federal custody (e.g., bonding out on the state case; persuading state prosecutors to drop their case). Guideline Section 5G1.3 dictates when and how courts are to adjust sentences to account for undischarged terms of imprisonment, though, as with the entire Manual, provisions are merely advisory, meaning courts are free to deviate from the Commission’s approach to these complicated issues. Furthermore, Sester v. United States, 132 S.Ct. 1463 (2012), which recognizes a federal court’s ability to order a federal sentence run concurrent with an yet imposed state sentence (a scenario that would present where the state has primary custody and the state case does not resolve before the federal case), expands the opportunity for a federal sentence to capture time served in state custody. See 18 U.S.C. §§ 3584, 3585.
• The BOP treats unresolved charges as carrying a detainer, even when none has been lodged. This results in additional security points and possibly placement at a more secure institution, particularly for individuals who otherwise qualify for minimum-security placement. Accordingly, where a client is sentenced while in primary federal custody and has a state case that may resolve soon thereafter with a sentence of time served or better (i.e., no additional term of imprisonment), counsel should ask the federal court to both hold the judgment in abeyance until after the state sentencing and direct Probation to amend the PSI to reflect the state resolution before it sends the report electronically to the BOP via eDesignate. If the Court refuses such a request, counsel should obtain a certified copy of the state disposition and forward to the BOP, preferrably via Probation and eDesignate, before the client’s designation package is processed.
• Before your client surrenders, check with the facility (usually the Records Office or the Case Management Coordinator) to make sure that the Presentence Investigation Report and Judgment have arrived. Technically, these days, with electronic communication, these documents will be sent to the facility by the DSCC via email. In the past, the hard copy documents often didn’t arrive on time and the inmate, having arrived, without anyone knowing who he was risked being placed in the Special Housing Unit (SHU) pending receipt of the information. This risk has been substantially reduced; but nonetheless, it doesn’t hurt to check.