What do federal judges look for at sentencing is one of the most important questions a defendant can ask. Most never ask it. They assume the answer is a good lawyer and an emotional speech. Two federal judges told Michael Santos the answer is neither of those things.
And the judge has already formed an impression of them before they say a single word.
I have spent 17 years helping people navigate the federal criminal justice system. I served 18 months at Taft Federal Prison Camp beginning in 2008. What I know about what happens at a federal sentencing hearing did not come from law school. It came from sitting across from the people who run these hearings.
Michael Santos interviewed two federal judges: Judge Mark Bennett, who has sentenced more than 4,000 people, and Judge Stephen Bough. What they said about the sentencing process, the allocution, the presentence report, and what actually moves a sentence up or down is something most defendants never hear until it is too late.
This post covers what they told us. Tuesday June 2 at 11am Pacific I am going live on YouTube to play 10 clips from these interviews and go deeper on each one.
What Happens Before the Federal Sentencing Hearing Starts
Most people think what happens at a federal sentencing hearing begins when the defendant walks through the door. It does not. It begins weeks earlier, when the judge reads the presentence investigation report.
Judge Bennett told Michael he reads complicated presentence reports at least twice before sentencing. By the time the defendant stands up, the judge has already formed a frame of reference. That frame shapes everything that follows.
Judge Bennett put it plainly: the primacy and recency of reading the PSR before the hearing means it shapes how he thinks about the individual going in. A defendant who has done nothing to influence that document has already given up ground.
Most defendants do nothing.
Here is what Judge Bennett said when Michael asked about defendants who submit a written personal narrative to the probation officer before the PSR is finalized:
“That’s one of the best ideas I’ve ever heard. And the reason why I hadn’t thought of it is I’m not sure I’ve ever seen it. But I would be super impressed.”
He has sentenced 4,000 people. He has almost never seen it. That gap is where most defendants lose ground they did not know they were losing.
What the Federal Sentencing Guidelines Actually Do
Judge Bough described the federal sentencing guidelines as a grid. An XY chart. His words: “I put you on an XY chart.”
Section 3553 of the federal statute gives judges discretion to vary from that grid. But using that discretion requires information. The guidelines strip away humanity. The statute puts it back in. The defendant has to give the judge something to work with.
Judge Bennett made the same point from a different angle. He said the government’s offense conduct statement in the PSR is prepared by a probation officer pulling from discovery, or by the prosecutor. One-sided. When a defendant contests that statement and provides his own version of events, Judge Bennett said he finds the defendant’s version more accurate more often than not.
Your version does not appear automatically. You have to put it there. And it has to be true.
What Actually Happens During the Federal Sentencing Hearing
Here is the sequence of what happens at a federal sentencing hearing in federal court.
The judge opens by reviewing the guidelines calculation. Both sides argue their positions on the guideline range, any departures, and any variances. The judge hears from victims if they wish to speak. The defense attorney addresses the court. Then the defendant has the right to speak. This is called allocution. After that, the judge imposes the sentence.
That is the structure. But the structure does not tell you what actually moves the outcome.
Judge Bough told Michael about a sentencing that happened the same week of their interview. He had already told his staff what sentence he planned to give. He left the hearing having added 40 months.
The first question he asked the defendant was whether he had reviewed the PSR. The defendant’s attitude from that first answer set a negative impression. It never recovered. The allocution did not fix it.
Forty months. Added at the hearing. After the judge had already decided.
What Federal Judges Look for in the Allocution
The allocution is the defendant’s opportunity to speak directly to the judge before sentencing. It is one of the most important moments in the entire process. Most defendants waste it.
Judge Bennett conducted an empirical study reaching out to more than 900 federal judges about allocution. His finding: the vast majority of judges take the allocution seriously and weigh it. It rarely raises a sentence. But it frequently moderates one. It can be the difference between a sentence at the middle of the guidelines and one at the bottom. For many judges, it can mean the difference between a guidelines sentence and something lower.
He described what happens at sentencing when a defendant looks at his lawyer and whispers about whether to speak: “That discussion needs to take place long before sentencing.”
Judge Bennett described what a good allocution requires. Take responsibility for the conduct. Address the impact on victims. Then, what is rare: a solid, realistic plan.
“Something more than ‘I just want to be a drug counselor when I get out,’ because I hear that repeatedly and you just don’t put much stock in it.”
A defendant who has taken affirmative steps toward a plan, not just described one, makes a different impression. Judge Bennett said that can have a huge impact if it is sincere and believable.
Judge Bough said he varies sentences down when he can genuinely understand someone’s situation and take the anger out of the equation. The best lawyers he sees do not diminish the offense. They put it in perspective. Those are different things. Diminishing it reads as denial. Perspective means you understand the harm and are taking action to fix the situation.
What Happens When the Allocution Goes Wrong
Judge Bennett described a sentencing where he had already indicated he was going to the mandatory minimum. The defendant gave an allocution anyway. It nearly cost him the mandatory minimum reduction.
“All he did was complain about the fact that his family was upset at him and he had no empathy at all for any of the victims of the crime. It was all about him and his family. And I found that offensive.”
The judge who was already going to the mandatory minimum came close to reversing that decision because of what the defendant said.
That is not a sentencing story. That is a preparation story. The defendant did not understand what happens at a federal sentencing hearing. He thought it was his turn to explain how hard this has been for him. The judge was listening for something entirely different.
What Judges Consider Beyond the Hearing Itself
Judge Bennett said he is impressed by defendants who begin making restitution payments before sentencing, even small ones.
“I’ve never had a defendant tell me in sentencing that ‘I’m looking forward to working in UNICOR so I can make a little bit of money and help start making restitution payments while I’m still in prison.’ I’ve never had anybody say that. Would I be impressed by somebody who said that? You bet.”
He has sentenced 4,000 people and has never heard it.
Judge Bennett also said psychological evaluations, medical records, and evidence of a difficult upbringing can all influence a downward variance. Lack of parental guidance, childhood exposure to drugs, a hard background: these things put the offense in context. They do not justify and explain it. And in Judge Bennett’s words, that often mitigates what the punishment should be.
Judge Bough addressed what happens if a defendant goes through a trial rather than pleading guilty and wants to show remorse at sentencing. His view: owning up at any point is better than not owning up. Judges are skilled at judging whether remorse is genuine or designed to shave years off a sentence.
Family and community members who attend the sentencing hearing can also carry weight, though Judge Bennett said it operates more on a subconscious level. He tries not to penalize defendants whose family members do not appear, understanding there can be many reasons.
What Happens After the Federal Sentencing Hearing
The sentencing hearing is not the end of the judge’s involvement. Judge Bough explained that when defendants come before him again for resentencing years later, their behavior in prison carries enormous weight.
“If somebody is in federal prison, they’ve had no violations, that tells me they’ll have no violations when they get out. And so it allows me to take a risk.”
The record you build in prison matters to the same judge who sentenced you. It matters to the probation officer who supervises you after release. The PSR that was written before your sentencing is the first document your probation officer reads when you come home.
What you do between the day you are sentenced and the day you are released is not a footnote. It is evidence.
What to Do Before Tuesday
If your sentencing is 90 days away or less, the PSR interview may already be done. The window to shape that document is closing. What you can still control is your allocution and the record you have built since your case began. That record needs to be documented and specific. Not happy talk. Not a narrative of how hard this has been. Dates, amounts, names, actions: a timeline.
If your sentencing is further out, you have a window most defendants never use. A written personal narrative submitted to the probation officer before the PSR is finalized. Judge Bennett called it “astoundingly impressive.” He has almost never seen it done.
Tuesday June 2 at 11am Pacific / 2pm Eastern I am going live on YouTube. I will play 10 clips from Michael Santos’s interviews with Judge Bennett, Judge Bough, and other experts. Then I will go expand on each one: how to respond to a government investigation, how to prepare for the probation interview, what character letters should and should not say, and how judges follow defendants long after the sentencing hearing ends.
Justin Paperny
P.S. We will give away our PSR course and RDAP guide during the live.
Frequently Asked Questions
What happens at a federal sentencing hearing? The judge reviews the presentence investigation report, hears from both sides on the guideline range, listens to victim statements if any, receives the defense presentation, and then hears from the defendant directly in allocution before imposing the sentence. The hearing itself is often less decisive than what the judge read beforehand.
How long does a federal sentencing hearing take? Most federal sentencing hearings run 30 minutes to two hours. Contested cases with expert witnesses or multiple victims can run longer. The defendant’s allocution is typically a few minutes. Preparation for it should take weeks.
Can a defendant speak at a federal sentencing hearing? Yes. Every defendant has a constitutional right to allocution. Judge Bennett’s empirical research across more than 900 federal judges found that allocution frequently moderates a sentence downward and rarely raises one. But an unprepared or self-centered allocution can hurt.
Does the presentence report affect what happens at sentencing? Directly. Judge Bennett reads it at least twice before the hearing. It shapes his frame of reference before the defendant says a word. Defendants who submit a written personal narrative to the probation officer before the PSR is finalized give the judge something real to work with going in.
What do judges consider when varying below the guidelines? Judge Bennett cited lack of parental guidance, difficult upbringings, mental health records, and evidence of genuine steps toward restitution as common factors in downward variances. Judge Bough said he varies down when he can understand someone’s situation and remove the anger from the equation.
Does behavior in prison affect future sentencing decisions? Yes. Judge Bough said a clean record in prison tells him the person will have no violations after release. When defendants come before him for resentencing, their conduct inside carries enormous weight.
Justin Paperny is the founder of White Collar Advice. He began writing daily on October 12, 2008, from inside prison. For 17 years, he has helped people facing federal investigation, sentencing, and prison build documented records that give judges, probation officers, and case managers something credible to evaluate. He is an ambassador for Prison Professors Charity and hosts a free public webinar every Tuesday at 11am Pacific.
