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Tips for Criminal Defense Attorneys and Their Clients Facing a Prison Sentence

In the criminal justice system, 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.

  • 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 calculated (the BOP does not account for findings that 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 alcohol 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 criticism 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, preferably 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.
The Law Offices of Alan Ellis specializing In Federal Sentencing, Appeals, 2255 Habeas Corpus