Prepare For Sentencing Hearing

Conversations I have about the probation report convince me defendants underestimate the importance of preparing for it. Last week, two white collar defendants called to tell me they attended the probation interview without their lawyer being present. That is tragic and unacceptable.

“How did your lawyer prepare you?”, I asked one of them.

“He did not. He just said show up and answer questions. The interview should take 10-15 minutes.”

Since so many defendants do not understand the probation interview, I wanted to write a piece that better explains it.

After a person pleads guilty or is found guilty, the presentence investigation will be the next step. For more details, check out Rule 32 of the U.S. Rules of Criminal Procedure in the federal system. Each state system has a similar rule in the book of criminal procedure.

In federal cases, probation officers conduct these investigations to help sentencing judges and others evaluate the background of the person. The investigation culminates with an all-important presentence investigation report (PSI or PSR—used interchangeably). The report will include recommendations, based on guidelines and the probation officer’s opinion. Sentencing judges will consider recommendations from the PSR when imposing sentence.

Besides the importance of the PSR for sentencing, people should pay close attention to the process because the report also will play a significant role in the person’s life if he is sentenced to prison. Information in the PSR influences how authorities classify the prisoner when he will be released, and what level of liberty he will have after he gets out of prison.

To preserve rights and to self-advocate once inside, it’s crucial to understand everything about the presentence investigation before it begins. Best-practice preparations require a person to invest the time and energy to understand the process well before the sentencing hearing, or even the investigation begins.

If a defense attorney fails to stress the importance of the PSR, be wary. In prison, the PSR will be the main document administrators will use to make assessments, especially at the start of the journey.

• Case managers will use the document to consider the severity of the offense;
• Counselors will use the document to determine who can visit the offender;
• Educational administrators will use the PSR to determine whether the prisoner is required to participate in programs;
• Psychologists will turn to the PSR to see whether the individual is eligible for beneficial programs; and
• Medical personnel will turn to the PSR to determine whether the prisoner merits medical attention

Once the court accepts the PSR, it will follow the person until his journey concludes. If there are errors in the PSR, and the probation officer refuses to make adjustments, then it’s absolutely critical to ask the judge to address these errors in the Statement of Reasons, which we’ll describe below.

Prepare For Sentencing Hearing – Beginning the Investigation:

The probation officer assigned to the case will begin the investigation by becoming familiar with the government’s version of the offense. Then, the probation officer will schedule a face-to-face. The meeting may take place at the person’s home, in the probation office, over the phone, or in the facility holding the person if he’s in custody. Prior to the meeting, the probation officer will have insight on the case from the prosecutor and the investigators. The purpose of the meeting is to collect information from the person being investigated, if he’s willing to offer it.

The probation officer will ask the person what he has to say about the offense. He’ll also ask about the offender’s personal background. Among other things, the probation officer will ask about:

• Family history,
• Education,
• Criminal background,
• Employment history,
• Substance-abuse background,
• Medical condition, and
• Financial status.

Anyone going through a PSR investigation should remember probation officers are law-enforcement officers. If the probation officer believes the person lied, or provided misleading information, or if he believes the offender tried to influence others inappropriately, the probation officer may make things worse. The probation officer could charge the offender with obstruction of justice if he believed the offender tried to interfere with, manipulate, or subvert his investigation. With such a recommendation, the judge may add additional time to a defendant’s sentence.

Probation officers have huge caseloads and it may feel as if they’re cynical. The investigator will interview the offender’s family members, check the offender’s school records, and obtain official records of the offender’s previous legal problems. The probation officer also will speak with previous employers, check with creditors, and search for information to verify the offender’s statements about his medical condition.

A person may reserve his right to remain silent during the investigation. But if he chooses to communicate, he should understand that any lies or attempts to mislead the probation officer could result in a longer or more severe sentence. We recommend honesty and good preparation before the PSR interview.

Some people refuse to provide any information to the probation officer. They may have valid reasons for wanting to remain silent. But if the person doesn’t participate in the PSR investigation, the probation officer’s writing will only reflect the government’s version of events.

An appellate strategy may influence a person’s strategy. He may choose not to answer questions about the offense. If that is the case, the offender should be courteous, explaining that for appellate reasons, he cannot discuss the case. He may want to cooperate with the investigation in ways that will not jeopardize his rights.

We recommend that unless the offender has a good reason, he ought to cooperate with the investigation. In fact, we urge defendants to prepare the sentence-mitigation strategy long before the PSR interview and to provide as much documentation as possible to the probation officer. By giving the officer the personal narrative, the person makes the probation officer’s job easier. He may cut and paste entire paragraphs or pages into the report. This strategy allows the person to influence a document that will prove enormously influential while the person serves his sentence.

The PSR will influence administrators that the prisoner may never meet. For example, when making the initial classification of where a person serves the sentence, administrators will rely upon the PSR. Others will use the PSR to determine who can visit. On top of all that, the PSR will include information that determines whether the person gets a lower-bunk pass, qualifies to participate in beneficial programs, and for other crucial issues that can influence release dates.

Once inside prison, a Unit Team will meet with the prisoner. Administrators on the team—case managers and counselors—will consider the PSR and the record a person accumulates during his confinement.

For those reasons, prior to going inside, people should invest time to understand the myriad ways a PSR will influence the prison term. Then he can make a more competent decision on whether to provide more, rather than less information.

Those who’ve pled guilty should understand that the probation officer has the authority to recommend a significant downward adjustment from the sentencing guidelines. If the person convinces the officer that he provided a full and candid description of his criminal actions and demonstrates genuine remorse for his criminal behavior, the officer may recommend that the person gets credit for “acceptance of responsibility.”

The probation officer’s recommendation in the PSR isn’t binding on the judge, but it is influential. In our experience, people that express remorse for their actions help themselves. If they can persuade the court that their criminal behavior was an aberration rather than a pattern of behavior or a criminal lifestyle, they usually receive lower sentences than those who refuse to cooperate with the presentence investigation. Likewise, those who choose to exercise their rights to silence may be portrayed as unremorseful. Judges would likely take a lack of remorse into consideration at sentencing.

The PSR Report Itself:

Once the officer finishes the investigation, court rules require him to write his complete report “in a non-argumentative style.” After describing the details of the offense and other identifying data, a model PSR from the Southern District of New York contains headings as follows.

Offense Conduct:

In this section, the probation officer writes the government’s version of events and may describe discrepancies that the offender wanted inserted in the document.

Victim Impact Statement:

If the crime had an identifiable victim, the probation officer may give the victim an opportunity to describe how the offense impacted him (or her).

Defendants’ Participation:

If the offender was convicted along with others in the offense, the probation officer may detail the conduct of each defendant in the case under this heading. This can be prejudicial, because some participants may be much more culpable than others.

Offenders ought to ask the attorney to challenge any information that suggests or insinuates that he participated in the same behavior of others if he did not. Prison staff members who evaluate an offender may not make any distinction between participants. If the PSR indicates that one member of the offense was violent and predatory in nature, that information may have a material influence on all members of the offense as far as prison classifications are concerned.

Obstruction of Justice Adjustment:

If the person obstructed justice in any way, the probation officer may recommend a sentencing enhancement. Examples of obstruction of justice include when an offender tries to influence what others will say during a government investigation. If the offender calls an individual and says, “Don’t talk, or else….” the officer may charge the individual with obstruction of justice and with threatening violence. If so, prison administrators may characterize the offender as being violent in nature, which will prohibit participation in certain beneficial programs.

Acceptance of Responsibility Adjustment:

If the offender is candid about his responsibility, the probation officer may recommend a downward departure from sentencing guidelines. The level of the downward departure will depend upon when the offender accepted responsibility. People that plead guilty early in the criminal justice procedure receive the largest downward departures for acceptance of responsibility. It’s a reward for saving the government the time and expense of preparing for trial.

Those who proceeded through trial will have a higher burden to meet in order to receive this benefit. But going to trial does not necessarily preclude a person from receiving this sentencing adjustment. Remember, the judge has discretion, and it’s important to build an influential case on why you’re worthy of mercy. Acceptance of responsibility can weigh heavily on the judge’s decision to grant mercy.

Offense Level Computation:

Criminal statutes and guidelines influence this objective score. Offenders may read about these scores by studying the U.S. Sentencing Guidelines Manual which is available in all federal prison law libraries. Those who do not have access to prison law libraries may review online or order the book from a bookstore. Guideline manuals may be too complicated to read for those that do not have a legal background. Our courses at offer some video tutorials.

Criminal History:

This information comes from past criminal convictions. Points are assigned to those who have been convicted for other offenses, and each prior conviction counts against the score. Chapter Four of the U.S. Sentencing Guidelines Manual explains how probation officers count the points.

Offender Characteristics:

Probation officers use this section to describe what he learned about the offender through his presentence investigation. It’s a subjective description. The offender’s family responsibilities also will be discussed as well as the offender’s community ties.

If the offender engineered a sentence-mitigation strategy earlier, he may want to share his personal narrative during the PSR interview. Probation officers may cut and paste parts of the narrative into this section. That strategy can prove extremely useful to the person as he goes through the system, both in sentencing and while in prison.

Substance Abuse:

This section describes whether the person suffered from any substance abuse problems in the past. It is an extremely important section. In the federal prison, the BOP has the authority to reduce a person’s by as much as 12 months if the offender completes a 500-hour drug treatment program during his incarceration. To qualify for this year off, the BOP will require the offender to provide documentation that he suffered from substance-abuse prior to imprisonment, ideally, during the 12 months that preceded arrest.

The substance-abuse section of the PSR report is an excellent place to document a history of drug abuse or alcoholism that would benefit from treatment. During the PSR investigation, defendants that suffered from alcoholism or abused other drugs should report those experiences. If those reports meet certain criteria, the defendant may qualify for participation in a drug-treatment program. If he completes the program successfully, he may get out of prison earlier.

People that do not understand the PSR sometimes conceal their history of substance abuse. They mistakenly believe substance abuse of any kind will reflect badly on them at sentencing. Hiding a history of substance abuse may limit access to beneficial programs that could result in a sentence reduction.

Employment Record:

Probation officers will check with prior employers to obtain an evaluation of the person’s work habits. A good work history may influence the sentencing judge. Also, an extensive work history may help a person advocate for himself if he is seeking a specific job in the prison.

Financial Condition:

Consider all financial liabilities and responsibilities when meeting with the probation officer who is preparing the report. Most criminal convictions result in monetary fines or restitution orders. All felony criminal convictions result in criminal-assessment fees. For some defendants, sentencing courts impose cost-of-confinement fees.

Sentencing judges may choose not to impose fines and cost-of-confinement fees if the person is incapable of paying. Judges are less forgiving when it comes to restitution. Laws may require judges to impose felony-assessment fees.

If the court imposes a monetary penalty, BOP staff members will demand monthly payments. They will consider any funds that pass through the offender’s commissary account as being available for such payments. These charges can make life more difficult inside.

If a monetary sanction becomes part of a person’s sentence, the offender’s attorney ought to ask the judge to specify that the fine is not to be collected until after the offender’s release from confinement. If the judge’s commitment order specifies that the offender doesn’t have to pay the monetary portion of the sanction until the person is released, the BOP will not be able to pressure the person for payments during confinement.

Sentencing Options:
The probation officer discusses options the judge may consider when imposing sentencing. The options are rather limited in that they only offer a monetary fine, probation, or incarceration in some form—either house arrest, a community confinement center, or imprisonment. Many crimes, particularly offenses related to the distribution of drugs, require mandatory-minimum sentences that preclude sanctions less than imprisonment. One can develop a better understanding of federal sentencing options by reading the most current edition of the very detailed Federal Sentencing Law And Practice by Thomas W. Hutchison, et al, and published by West Group.

Factors that May Warrant Departure:
In the federal system, judges must consider sentencing guidelines. The guidelines are not mandatory, but most judges use them as a starting point. If the judge chooses to depart from established guidelines for a specific offender, the judge must articulate his reasons during the sentencing hearing.

The probation officer will describe factors that may warrant either a downward or upward departure from the sentencing guidelines. The most common downward departure is when an offender cooperates with the government in the investigation and provides assistance in the prosecution of others. People that place the highest value on getting out of prison at the soonest possible time may choose to cooperate with prosecutors. Such decisions may influence where a person serves his time, and whether that person is ostracized by others in prison.

In rare instances, probation officers may recommend downward departures for other reasons. They may find that a person’s situation is markedly different from others that were convicted of the same type of offense. It is a high burden, but in rare cases, people receive downward departures for issues other than cooperating in the prosecution of others.

Upward departures are more common. Judges issue sentences that are harsher than the guidelines when they’re convinced that the sentencing guidelines do not reflect the seriousness of the offender’s conduct.

The Completed PSR Report:
Following the completion of the PSR, the probation officer will deliver copies of the report to the prosecutor and the offender’s attorney. Both parties will have time to review the document. If inaccuracies appear, each party will have an opportunity to object to the perceived errors. Once the objections are noted, the probation officer will determine whether the objections are valid. If so, changes to the PSR will follow.

If the probation officer refuses to make changes that either party wants, that party can bring the matter up with the sentencing judge. The judge will listen to both sides and each side may present evidence to bolster its position. After hearing the arguments, the judge will make a determination. Sometimes, though, the judge may sentence the offender according to his findings at the hearing, but not order changes to the written PSR.

Defense attorneys should be vigilant in efforts to get a PSR that accurately reflects the judge’s findings. The BOP will use the PSR for classifications and to make other decisions, which can have a huge influence on how and where the person serves the sentence. If the judge chooses not to order the probation officer to correct a PSR, the defense attorney may ask the judge to make specific findings in the commitment order, and also in a Statement of Reasons for the sentence.

Statement of Reasons:

In addition to the PSR, the court will submit a Statement of Reasons to the Bureau of Prisons. See Title 28 United States Code Section 994(w)(1)(B), which tells us:

the written statement of reasons for the sentence imposed (which shall include the reason for any departure from the otherwise applicable guideline range and which shall be stated on the written statement of reasons form issued by the Judicial Conference and approved by the United States Sentencing Commission);

In February 2016, the Judicial Conference issued, and the Sentencing Commission approved, Form AE 245B. Section IB4 of the revised form tell us that:

“comments or factual findings concerning any information in the presentence report, including information that the Federal Bureau of Prisons may rely on when it makes inmate classification, designation, or programming decisions.”

The Bureau of Prisons will review both the Statement of Reasons and the PSR when classifying a person. For that reason, attorneys should make a strong case to persuade the judge to put specific language in the Statement of Reasons that may help a person qualify for specific BOP programs. That Statement of Reasons could potentially influence an earlier release date. Program Statement 5322.13 requires the BOP to consider the Statement of Reasons when calculating each prisoner’s security level. For that reason, some may argue that the Statement of Reasons may be an excellent remedy to overcome problems with an inaccurate PSR.

Please call or text me at 818-424-2220 with questions or concerns about your probation report and your federal sentencing.

Justin Paperny