Federal sentencing guidelines give you a starting point, not a final answer. The loss amount, offense level, and criminal history points frame the argument. They do not decide it. Defendants who treat the guidelines as a fixed number stop working. Defendants who treat the guidelines as a target to influence keep building. The record you create between the day you are charged and the day you stand in front of a judge shapes the outcome more than most people want to believe. This is where most defendants lose time they cannot get back.
Earlier today I spoke with a defendant back east. Smart man. He has spent weeks obsessing over his guideline range and has done almost nothing to change it. I told him directly: you don’t have a math problem. You have a narrative problem.
I self-surrendered to Taft Federal Prison Camp on April 28, 2008. Before that, I wasted more than three years hiding and hoping the best outcome would arrive on its own. My anniversary is coming up. Eighteen years later, I still think about those three years.
Federal sentencing guidelines are not a prediction
Too many defendants operate under the same bad assumption: the number is the number. Loss amount, offense level, criminal history. Maybe a little cooperation credit. Maybe the lawyers ask for probation, the government asks for prison, and the judge lands somewhere in between. Then you get a sentence you didn’t want and spend years looking back at what you could have done.
That is not a rational plan. That is a person who decided the outcome was already final before the sentence was imposed.
You cannot predict what a judge will do. What you can predict is that judges study the full picture. They watch what a defendant has done throughout their life, and specifically what they have done since getting into trouble. Are you working? Are you sustaining your family? Are you contributing somewhere? Are you transparent with probation? Are you part of the solution, as Judge Bough put it, or are you waiting for someone to rescue you?
The record you build answers those questions whether you intend it to or not.
What judges actually say at sentencing
I have been to more than 1,500 sentencing hearings since I came home from Taft. Some of them were boring. I have fallen asleep. But the data I have collected from those hearings is worth more to the people I work with than any guideline calculation.
Here is what judges say, over and over, to defendants who waited:
“That sounds good. There’s no evidence.”
“Yes, you take full responsibility. But there’s no record behind it.”
“You go to the soup kitchen once a week. I went to your Facebook page.”
Judges mock defendants who talk about conduct they cannot document. They have seen every version of the sentencing memo that says “my client is remorseful and has learned from this experience.” They do not believe it because anyone can write it. What they look for is behavior they can verify, confirm. I mean these people are cynical: do you think they will just take our word for it?
My sentencing judge, Judge Wilson, said he wanted to learn something at the hearing that was not already in the probation report or the sentencing memorandum. That is on the defendant. Not the lawyer. The defendant.
What the sentencing memorandum cannot do
The sentencing memorandum is a big deal. A good one, from a lawyer who knows the judge, knows the objections, knows the weakness in the government’s case, is essential. I want your lawyer to do that work well.
But the memo does not replace what you do as the defendant.
A business owner called me after his sentencing. Longer sentence than he expected. He wrote a letter to the judge that said he cared about his family and didn’t have bad intentions. He never identified with the people he hurt. He never addressed what happened to them. That is why he got an upper-guideline sentence, and he knew it by the time he called me.
Compare that to a chiropractor in Arizona who overbilled and got caught. He sold his second car. Moved from a larger home to a smaller one. Set aside cash for restitution. Sat for a proffer with the government. The proffer didn’t produce cooperation credit, but the prosecutors could tell he was genuine. He acknowledged the collateral consequences of his conviction without playing the victim. He went to treatment for substance abuse and kept every record. He did not write a letter asking for probation. He did not tell the judge he was sorry. The record said it without the words.
You don’t have to tell a judge you are sorry. They know. What you have to show is why you are different from the person who committed the offense.
What actually hurts defendants before sentencing
Hiding assets. Blaming subordinates. Filing materials the night before. Asking people to write letters that defend your conduct instead of speaking to your character. Telling the judge what to do.
Lifestyle choices land in the record too. If you have $12 million in restitution outstanding and you post photos from a $40,000 vacation on Facebook, the government sees it. The victims who show up to your sentencing hearing see it. It is not illegal. It is stupid. It signals that you do not understand the position you are in, and that lack of awareness becomes part of how the court reads everything else you submitted.
The age of AI has added a new version of this problem. Defendants are submitting documents that look comprehensive but fall apart the moment a judge or prosecutor asks a follow-up question. If you hand the court a document you cannot defend, you have confirmed what the government suspected: that the presentation is a lie, not a record. That is worse than submitting nothing.
How to actually build a record that influences your sentence
Start with specifics. What did you do since the day you were charged? Not what you planned. What you did, with dates.
Thirty minutes a day. Sixty minutes. Ninety. Sit down and write. Describe how you got here. Name the people who were affected. Explain what changed in the conversations you had at home, at work, with people who knew you before. Build something that can be verified by anyone who wants to check.
Ask your lawyer one direct question: what facts do you need from me to make the sentencing record stronger? Then supply those facts before the memo is due, not after. Review the memo when it comes in. Role-play with your lawyer so they are prepared to speak to the assets you built. The memo should be built around your work, not the other way around.
The assets Michael Santos describes, a documented, verified record of who you are, what you learned, and what you are doing about it, are the only things judges take seriously. Not the words. The record behind the words.
If you have not started, start today. Not because the speech you give the night before sentencing will save you. It will not. Because the record you build over the months before that night is the only thing that might.
Frequently Asked Questions: Federal Sentencing Memorandum
What is the purpose of a federal sentencing memorandum?
A federal sentencing memorandum is a document your defense lawyer submits to the court before sentencing. It presents legal arguments, case law, and context about the defendant’s background and circumstances. It frames the argument for a lower sentence. What it cannot do is document what you, the defendant, have actually done since being charged. That record belongs to you and must be built independently.
Does the sentencing memorandum replace the defendant’s own preparation?
No. A lawyer’s sentencing memorandum presents legal arguments and case law. It cannot document what the defendant has done between the date of the charge and the date of sentencing. Those months belong to the defendant. Judges specifically look for what the defendant has done independently, not what the memo claims.
How can a defendant strengthen their federal sentencing memorandum?
By giving the lawyer real material to work with. Pull tax returns, employment records, treatment records, and restitution payment documentation. Write a first-person account of the offense and its aftermath. Prepare support letters from people who can describe specific conduct they witnessed. The memo is built around the record you create, not the other way around. Review it before it is filed and role-play with your lawyer so they are prepared to speak to what you built.
What mistakes hurt federal defendants most before sentencing?
Waiting until the week before sentencing to begin preparing. Submitting character letters that defend the conduct rather than describe the person. Filing materials at the last minute. Hiding assets or maintaining a lifestyle that contradicts a claim of accountability. Submitting AI-generated documents the defendant cannot defend under questioning. All of these confirm the government’s narrative rather than counter it.
What do federal judges actually look for at sentencing in white collar cases?
Conduct they can verify. Judges hear identical language at every sentencing: full responsibility, learned a great deal, this does not define me. The language washes over them. What they look for is a record of behavior that began the day the case became real, not the day before the hearing. Restitution payments. Treatment records. Employment. Transparent cooperation with probation. Specific written accounts the defendant can defend in person.
