Federal Sentencing Mitigation: A Plan Before Sentencing

Federal Sentencing Mitigation: What Can Reduce Prison Time?

I had three years to prepare for federal sentencing.

Three years.

I was a stockbroker facing securities fraud charges, and most of that time was spent worrying about one thing: how long would I go to prison?

I had a good defense attorney. I had time. I had opportunities to write, volunteer, make restitution payments, learn about the sentencing process, and document the work I was doing.

I didn't use that time very well.

When I stood before Judge Stephen Wilson in 2007, I had a personal history I hoped he would appreciate. But I hadn't done nearly enough to show him what I had accomplished since becoming a defendant.

I received an 18-month federal prison sentence.

For nearly two decades, I've worked with people who are in the position I once occupied. Some have months before sentencing. Others have only a few weeks. Almost everyone wants to know whether something they do now could help them receive a shorter sentence.

That brings us to federal sentencing mitigation.

What Is Federal Sentencing Mitigation?

Sentencing mitigation is the work a defendant and defense team undertake to present information that may support a request for leniency.

Federal judges consider the advisory sentencing guidelines, the offense, the defendant's history and characteristics, and the other factors in 18 U.S.C. § 3553(a).

Your attorney addresses the law, sentencing guidelines, legal arguments, and the government's position.

You also have a responsibility.

Your attorney may know the evidence better than anyone. But you know your life, the people you've helped, the choices you've made, the harm connected to your offense, and what you've been doing since learning about the investigation.

Those facts do not automatically appear in a sentencing memorandum or Presentence Investigation Report.

You have to help develop the information, document it accurately, and work with your attorney on what should be presented.

A sentencing mitigation plan may include a first-person narrative, character-reference letters, evidence of restitution or treatment, community service, employment records, and plans for your future.

I encourage defendants to start well before the sentencing hearing because some of the most useful evidence takes time to develop.

Can Sentencing Mitigation Help You Receive a Shorter Federal Prison Sentence?

It can support an argument for a sentence below the advisory guideline range or a different sentence that the law permits.

But I would be suspicious of anyone who promises a particular reduction.

A judge considers many things we cannot control. The nature of the offense, the government's position, the sentencing guidelines, the defendant's criminal history, victim impact, and statutory requirements all play a role.

There are also things a defendant can influence.

You can begin making restitution payments when appropriate and financially possible. You can participate in treatment or counseling where there is a genuine need. You can work, volunteer, support your family, and contribute to the community.

You can document those activities.

You can work with your attorney to prepare accurate information about your life and what you've done since the offense.

Judges we've interviewed, including Judge Mark Bennett and Judge Stephen Bough, have discussed the importance of understanding the person standing before them. Their interviews are available through our subject matter experts library.

I wish I had studied those perspectives when I was a defendant.

Instead, I assumed my attorney would explain everything the judge needed to know.

That assumption cost me an opportunity to prepare more thoroughly.

When Should You Start a Federal Sentencing Mitigation Plan?

As early as you reasonably can, after discussing the appropriate steps with your defense attorney.

In my book Lessons From Prison, I wrote about how I viewed myself while I was under investigation.

I was a college graduate, a taxpayer, a financial professional, and a son who cared about his parents. I struggled to accept that federal prosecutors viewed me as someone who had violated securities laws.

I kept hoping there would be a way out of the case.

Meanwhile, I wasn't doing enough constructive work.

I sometimes think about the old observation that the best time to plant a tree was years ago. The second-best time is today.

The same idea applies here, although the available time varies considerably from one defendant to another.

If sentencing is six months away, you may be able to develop and document sustained activities.

If sentencing is six weeks away, you have less time. That doesn't mean you should manufacture a record or rush into activities solely to impress the judge.

It means you should concentrate on the legitimate work still available, understand your deadlines, and coordinate with counsel.

One place to begin is learning about the Presentence Investigation Report.

What Should You Do Before the Presentence Investigation Interview?

A federal probation officer prepares the Presentence Investigation Report, commonly called the PSR.

The report covers the offense, sentencing guideline calculations, criminal history, personal background, employment, finances, family circumstances, and other relevant information.

The judge receives the report before sentencing. The Bureau of Prisons may also rely on information in it for classification and programming decisions.

Yet many defendants walk into the probation interview without understanding its importance.

We've interviewed Chris Maloney, a former chief federal probation officer who led federal probation offices in Massachusetts and New Jersey.

His perspective is worth studying because he has seen how these reports are prepared and used.

Before your interview, work with your attorney to organize accurate information about your history. Review your employment and financial records. Identify treatment or educational activities and any other relevant documentation. Understand what questions the probation officer may ask.

I would also encourage you to avoid improvising explanations about the offense that conflict with your legal position.

Your attorney should advise you on how to address sensitive issues.

For additional guidance, read What Is a Pre-Sentence Investigation Report? and My Probation Interview Is Next Week. What Should I Not Say?.

The work you complete before that interview can help you present accurate and complete information.

What Goes Into a Federal Sentencing Mitigation Plan?

I encourage defendants to concentrate on three core areas: their personal narrative, character-reference letters, and documented actions.

1. Your Personal Sentencing Narrative

Your lawyer will address legal arguments. Your personal narrative should help explain your life in your own words.

For someone pleading guilty, I generally encourage reflection on several subjects:

• What led to the decisions connected to the offense?
• Who was harmed, and what have you learned about that harm?
• What have you done to make amends?
• What actions have you taken since the investigation began?
• What are your plans for living responsibly in the future?

I don't encourage defendants to write a lengthy autobiography simply because they have a lot to say.

The document should be organized, specific, and accurate. It should reflect the defendant's actual experiences rather than language a consultant thinks will impress a judge.

Writing may take several rounds of interviews and revisions.

I also encourage defendants to work closely with their attorneys. Statements about the offense, responsibility, restitution, or disputed facts can have legal implications.

For someone convicted after trial who maintains innocence or intends to appeal, the approach may be different. Counsel should decide how to handle those issues while protecting the client's legal position.

A first-person narrative should never undermine the defense strategy.

2. Character-Reference Letters

I recently spoke with a defendant who had collected 91 character-reference letters.

He was frustrated because his family and attorney weren't eager to read them all.

I encouraged him to reduce the collection to a small number of strong letters.

The objective isn't to overwhelm the judge with endorsements.

It's to offer specific examples from people who know the defendant well.

A colleague might describe years of mentoring younger employees. A neighbor might write about consistent assistance with a family member's illness. Someone from a nonprofit could describe a defendant's actual volunteer work.

The writer should explain what they personally observed.

Letters become less useful when everyone repeats the same template, praises a defendant without examples, or tries to tell the judge what sentence to impose.

Before collecting them, talk with your attorney about the appropriate number, subjects, and submission process.

I would rather present several useful letters than 91 that nobody wants to finish.

3. Documented Actions Before Sentencing

This is where many defendants have an opportunity to do more.

A personal narrative can describe what you intend to do.

Documented activities can show what you've already done.

That might involve restitution payments, employment, genuine community involvement, counseling, education, or assistance to other people.

The activities should fit your circumstances. Someone facing substantial restitution obligations may need to focus on employment and financial responsibilities. Someone with a substance use disorder may need appropriate treatment. Someone who has always been involved in a community organization may be able to continue contributing there.

Keep records that accurately reflect the work.

Do not invent volunteer hours. Do not exaggerate payments. Do not suggest that a class or treatment program changed your life unless you can explain what you actually learned.

And remember that paying for a mitigation plan does not allow you to avoid doing the work.

What Is the Difference Between Sentencing Mitigation and a Sentencing Memorandum?

A federal sentencing memorandum is generally prepared and submitted by defense counsel. It may address legal arguments, sentencing guidelines, statutory factors, and the sentence the defense requests.

Mitigation materials can support that submission.

Your personal narrative may help counsel explain your background. Character letters may provide examples of your conduct. Records of restitution, employment, treatment, or community involvement may supply supporting evidence.

At White Collar Advice, we help clients develop these types of materials. We do not replace defense counsel or decide what should be filed in court.

The distinction is important.

Your attorney controls legal strategy and submissions. Our role is to help you complete work that may be useful to that strategy.

For a separate discussion of a defendant's own letter, read What Judges Do With Your Federal Sentencing Mitigation Letter.

How White Collar Advice Helps Clients Prepare for Federal Sentencing

Some people use our free books, courses, videos, and webinars to organize their own work.

Others hire our team for specific assignments.

We interview clients to understand their history and circumstances. Depending on the agreed scope, we may help develop a personal narrative, prepare for the probation interview, coordinate character letters, or create a release plan.

We can also help clients organize ongoing writing and documented activities through a Prison Professors profile.

The details vary from case to case.

Someone who has already written a strong narrative may need help with the PSR interview. Another person may have completed extensive community work but has not organized the supporting information. Someone else may be starting much earlier and wants help establishing a schedule for the months ahead.

Before recommending paid services, we want to understand what the person has already done and what remains unfinished.

If federal sentencing is ahead, schedule a free 20-minute introductory call with our team. We'll ask about your sentencing timeline, probation interview, mitigation work, and what you hope to accomplish. We'll point you toward useful resources and explain whether there is specific work we can help you complete.

What David Moulder's Sentencing Taught Me

David Moulder's case is discussed in the original version of this article.

He faced the prospect of years in federal prison. The outcome described in his case study was one year of probation and 21 days in county jail.

He worked on a first-person narrative, prepared for his probation interview, organized character letters, and contributed to Prison Professors.

David described how important it was to create materials supported by actual work.

His experience is worth studying, but I want to make an important distinction.

I cannot isolate one document, one volunteer assignment, or one statement and claim that it caused the judge to impose probation.

The court also considered the facts of the offense, the applicable guidelines, the work of his defense attorneys, and other sentencing information.

What I can discuss is the preparation described in David's case study.

He invested time in activities and materials before his hearing rather than assuming his background would explain itself.

I encourage defendants to examine that process without assuming they will receive the same sentence.

You can also read about John Spivey, who faced a reported guideline range of 70 to 87 months and received probation. John has spoken publicly about his preparation, but his experience is another individual case, not a prediction of anyone else's result.

What If You Have Already Been Convicted at Trial?

Sentencing preparation may still be appropriate, but the content must account for the client's legal position.

Some defendants maintain their innocence after trial and intend to appeal. Others are contesting particular factual findings or guideline enhancements.

A mitigation plan should not introduce statements that conflict with the position counsel is advancing.

That does not necessarily prevent the defendant from developing a personal history, obtaining appropriate character references, or documenting activities outside the offense.

I encourage anyone in this position to discuss the proposed materials with counsel before making statements about the conduct.

Can a Sentencing Mitigation Video Help?

We have worked on sentencing videos that include interviews, family perspectives, and footage of a person's work or community involvement.

One project discussed in the original article involved more than 30 participants and several locations.

A video can show things that may be difficult to communicate in writing.

It can also be unnecessary.

Before investing in professional production, ask your attorney whether the court will accept a video, whether the content serves a specific purpose, and whether a written submission would be more effective.

An expensive production does not make the underlying information more persuasive.

What Should You Do in the Next 30 Days?

I would begin by reviewing what you've actually accomplished since learning about the investigation.

Write down your probation interview date, sentencing date, and any deadlines your attorney has established.

Then identify the work you still need to complete.

That could include organizing financial records, preparing a first draft of your narrative, identifying appropriate character-reference writers, making restitution payments when possible, or continuing legitimate community and educational activities.

Share your plan with your attorney and ask which activities or communications require special care.

Don't fill your calendar with activities solely to create the appearance of preparation.

Choose work that fits your circumstances and follow through.

A federal sentencing date can arrive faster than you expect. I had three years and still found myself wishing I'd done more.

Frequently Asked Questions About Federal Sentencing Mitigation

Can sentencing mitigation guarantee a shorter federal prison sentence?

No. The judge determines the sentence after considering the applicable law, guidelines, case facts, and sentencing factors. Mitigation materials can support the defense's request for leniency, but a particular outcome should not be promised.

Is a sentencing mitigation specialist the same as a defense attorney?

No. Defense attorneys handle legal strategy and court proceedings. Consultants and mitigation professionals may help investigate a client's background, organize materials, or assist with preparation. The scope of each person's work should be clear.

How early should I begin?

Ideally, before the probation interview and with enough time to complete genuine activities. Your attorney can advise you about the case's deadlines and any concerns related to participation in particular programs or communications.

Can I prepare a sentencing mitigation plan myself?

Yes. There are many steps you can take independently, including organizing records, preparing your history, and learning about the PSR process. Your attorney should review materials intended for the court. Additional professional assistance is optional.

Does a sentencing mitigation plan include a release plan?

It can. A release plan may address employment, family responsibilities, housing, finances, and future objectives. The appropriate details depend on the case and the purpose of the submission.

What does White Collar Advice charge for sentencing preparation?

Fees depend on the assignment. We use written scopes that identify the work, consulting responsibilities, deliverables, and total fee. The initial 20-minute call with our team is free.

Before Your Sentencing Hearing

When I was a defendant, I spent far too much time hoping the judge would recognize the person I believed I was.

I should have spent more time developing and documenting work that would help others understand me.

I cannot go back to those three years before my sentencing.

But I can explain what I learned, share the experiences of people who prepared differently, and help others avoid some of the decisions I made.

If you're facing federal sentencing, start with the resources on our website. Watch our interviews with judges and probation officials. Discuss what you learn with your attorney.

And if you want individual help developing your narrative, preparing for the PSR interview, or organizing a mitigation plan, schedule a free call with White Collar Advice.

Justin Paperny
Co-founder, White Collar Advice