BY ALAN ELLIS
Criminal Justice, Winter 1997
With 85 percent of all indicted federal criminal defendants being convicted, and 85 percent of these pleading guilty, according to statistics from the Administrative Office of the U.S. Courts, the most pressing questions your client will have are:
“How much time am I going to do?” and, “Where am I going to do it?” The following baker’s dozen of sentencing tips suggest how to get your client the lowest possible sentence at the best possible place. [Also see the feature article in this issue, “Federal Sentencing Advocacy.”
1. Remember the safety valve provisions of the Crime Bill. (18 U.S.C. § 3553(f) and U.S.S.G. 5C1.2.) Under appropriate circumstances, without the necessity of the government filing a 5K1.1 motion, a defendant may receive a sentence below the mandatory minimum. Also, if the defendant meets the criteria for the safety valve and his or her offense level is determined to be 26 or greater, it is decreased by two levels. (U.S.S.G. § 2D1.1(b)(4).)
2. Accompany your client to his or her meetings with the probation officer during the preparation of the Presentence Investigation Report (PSI) stage. Probation officers are often overburdened, so obtain in advance the forms they need filled out and the documents they need produced and have your client complete and bring them with him or her to the initial interview. If you have any cases supporting your position regarding anticipated disputed issues in the guidelines, bring the cases with you and highlight the relevant sections. Remember, probation officers are not lawyers and often have a difficult time with memoranda of law. Highlighted cases are more helpful to them.
3. When you meet with the probation officer, find out what his or her “dictation date” is. This is the date by which he or she must dictate the first draft of the PSI. When possible, it is extremely helpful to have the probation officer and the assistant U.S. attorney (AUSA) buy into what you believe is your client’s offense behavior, his or her role in the offense, and any grounds for downward departure before the dictation. Obviously, “buying in” does not mean paying anybody off. It simply means getting them to agree that your position is not unreasonable. Remember that probation officers often have a proprietary interest in their original draft PSI, and getting them to change it through making objections is often very difficult. Hence, you want the best draft PSI you can get so you don’t have to file that many objections.
4. If your client is a cooperating witness, accompany him or her to any debriefings in case there’s a later dispute as to what the client said. Also your presence will often facilitate the discussions, particularly if you’ve debriefed and prepped your client in advance.
5. Before doing any of this, hire a sentencing specialist if your client can afford it. These people are often social workers, former U.S. probation officers, and other criminologists. They are able to interview a criminal defendant and get information that lawyers are not necessarily trained to do. For example, a forensic social worker with a background in psychiatric social work is able to identify mental illness, which will give you grounds for a downward departure based on diminished capacity, and unique family circumstances, which give you grounds for departure based on “extraordinary family circumstances.” If you need a referral to a sentencing specialist, contact the author at 34 Issaquah Dock, Waldo Point Harbor, Sausalito, California 94965 (fax: 415/332-1416), or the National Association of Sentencing Advocates (202/628-2820), which has a listing of over 200 sentencing specialists throughout the country. Such a specialist is more important than ever in guideline sentencing now that there is less information devoted to a defendant’s personal characteristics and no evaluation as to why he or she committed the offense. Judges always want to know why a defendant committed a particular offense. Giving him or her the answer to the “why” question through your sentencing specialist goes a long way towards getting the lowest possible sentence.
6. File a presentence memorandum five to seven days prior to sentencing. Statistics show that in 80 percent of the cases, judges come to the bench with their minds made up as to what sentence they will impose. This is called a “tentative sentence.” Unless you can put on a tremendous dog-and-pony show at sentencing, it is likely that your client is going to receive that sentence. Consequently, if you can get a solid presentence memorandum with character letters to the judge before a decision has been made, your sentencing specialist’s report (or your own cannibalized version) will go a long way in helping the judge determine a sentence before he or she has crystallized his or her thoughts on the case.
7. Many clients ask me whether they’re entitled to credit for time served while on bail under conditions of home confinement. The answer is no. However, if the court orders your client officially detained and then simply recommends to the U.S. Marshal that he or she be kept under home confinement, this qualifies as official detention. The client will get credit for time served even though the place of confinement may be a home or even the Ritz.
8. While a single mitigating factor may not warrant a downward departure, a combination of these factors, taken together, may persuade the court otherwise. (United States v. Cook, 938 F.2d 149 (9th Cir. 1991); U.S.S.G. § 5K2.0 Commentary.) Even if you don’t get a downward departure, these mitigating factors can often help in getting a sentence at the low end of the guideline range. This is particularly important when the offense level and/or the criminal history score render high guidelines.
9. Let’s face it, when your client enters a guilty plea, absent a binding stipulation as to his or her guidelines, the client has no idea what the range will be and what sentence will be received within, below, or above it. Consequently, more and more sentencing authorities are recognizing the need for a pre-plea PSI and even a settlement conference before a magistrate unrelated to the case in order to get a third party’s view as to the base offense level, and whether there’ll be upward or downward adjustments or departures. It’s also helpful, in some cases, to see what the magistrate would recommend if he or she were the sentencing judge. Currently, both the Southern District of Alabama in Mobile and the District of Arizona in Phoenix and Tucson are utilizing a variation of this procedure. For more information, contact the probation offices in those cities. In short, if you request and are granted a pre-plea PSI, your client will have a pretty good idea as to what he or she faces at sentencing and can then make a realistic, intelligent, and voluntary decision as to whether to enter a guilty plea.
10. Let judges be judges. Koon has altered the ground rules for downward departure giving defense lawyers and judges more latitude. Indeed, in a recent case by the Fifth Circuit upholding the downward departure, the court stated:
Our conclusion that the district court’s sentence should not be disturbed is all the more buttressed by the recent Supreme Court case of Koon v. United States, which emphasized in the strongest terms that the appellate court rarely should review de novo a decision to depart from the Sentencing Guidelines, but instead should ask whether the sentencing court abused its discretion.
(U.S. v. Walters, 87 F.3d 663, 672 n.10. (5th Cir. 1996).) Be creative. Don’t pigeonhole yourself to downward departures identified in the guidelines themselves. Think of things that make your case unusual. Remember that not only must your offender have been an unusual offender, but if the offense behavior is unusual in and of itself—specifically, less serious than envisioned by the guidelines—this is a good ground for an “unusual” case as defined by Koon: one that is outside of the heartland of the guidelines justifying a downward departure.
Departures based on the fact that the guidelines overstate the seriousness of the offense have been recognized by three Second Circuit cases, U.S. v. Restrepo, 936 F.2d 661 (2d Cir. 1991); U.S. v. Alba, 933 F.3d 1117 (2d Cir. 1991); and U.S. v. Lara, 47 F.3d. 60 (2d Cir. 1994), all of which support the position of awarding a defendant a departure below the four-level downward adjustment for a minimal role in the offense.
11. Many of us have been in situations where my client has cooperated and yet the government has refused either to file a 5K1.1 motion for downward departure based on substantial assistance or both a 5K1.1 and an 18 U.S.C. § 3553(e) motion enabling the judge to depart below the mandatory minimum. Faced with this unpleasant situation, seek a downward departure based on “super/extraordinary acceptance of responsibility.” If you spell out to the judge the cooperation the client has provided, even though it may not be all the government had hoped for, it might persuade the judge, many of whom are opposed to the government’s unilateral power to control departures for cooperation, to depart downward as much as if the government had filed 5K1.1 and 3553(e) motions, particularly if the “safety valve” applies. Again, this makes your case unusual, thereby taking it out of the heartlands, and, under Koon, justifying a downward departure.
12. Seek a lateral departure that requires your client to serve the same amount of time as called for by the guidelines but addresses the conditions of confinement rather than seeking less time. For example, if the guidelines call for a 21-month sentence, ask the judge to depart downward to a sentence of seven months of incarceration, followed by supervised release with a special condition that the client serve seven months in the correctional component of a community corrections center (CCC), considered the most onerous unit in a halfway house, followed by seven months of supervised release with home confinement and an appropriate amount of community service. Not only does this add up to the same 21 months that the client would normally serve, but it actually requires him or her to serve more time since the client will not get any good conduct time on the seven months nor the community corrections center and home confinement portion of the sentence. Indeed, he or she will serve the entire 21 months as opposed to less than 18 months with good conduct time credit. It doesn’t reduce the amount of time to be served; it only alters the conditions of confinement. At a recent presentation to a workshop of the U.S. district and appellate judges of the First Circuit, this idea received favorable response from both the judges and representatives of the probation department.
Finally, in order to receive a report on the “onerous” conditions of confinement in the correctional component of a CCC, ask the Bureau of Prisons for Program Statement 7310.03 and provide it to the sentencing judge as an exhibit to your presentence memorandum well in advance of sentencing. Also, of course, run it by the federal probation officer to see if you can get him or her on your side in the hope that the probation officer will recommend it to the court.
13. Some judges don’t like to recommend particular places of confinement at sentencing. Their reasons include, but are not limited to:
- the fact that they don’t believe they are “correctional experts” who are able to determine where a client should serve his or her sentence, and;
- they often get letters from the Bureau of Prisons advising them that their recommendations cannot be honored in a particular case.
Generally, the reason behind the letters is that the judge has recommended a facility incompatible with the defendant’s security level. As to their lack of knowledge of “correctional practices,” however, a lawyer is only asking a judge to recommend a facility if the defendant qualifies based on his or her security level. In fact, Program Statement 5100.06 from the Bureau of Prisons indicates that the bureau welcomes a sentencing judge’s recommendation and will do what it can to accommodate it. Indeed, bureau statistics show that in 85 percent of the cases in which the defendant qualifies for a particular recommended institution, the court’s recommendation is honored.
Without a recommendation, your client may not wind up in the facility for which he or she qualifies (as close to his or her home as possible) due to prison overcrowding. Should there be only one slot open at a prison such as the Federal Prison Camp at Nellis Air Force Base in Las Vegas, for example, and there are two defendants who want that placement, the one with the judicial recommendation is more likely to get it. It may help to get a copy of the bureau’s Program Statement 5100.06 and show the page that deals with judicial recommendations to the court.