by Gabriel Reyes
The U.S. Federal Sentencing Commission reports that 97.3 percent of federal criminal cases result in guilty pleas. Thus, effective advocacy requires a sentencing strategy that guides plea negotiations, objections to the presentence report, and a memorandum that conveys the salient points of a client’s life story. Here is how that is done.
Step 1: Get an Early Start
In a federal case, plea negotiations start when your client receives a target letter. This letter alerts the client of an ongoing grand jury investigation. The letter states a date by which the client may choose to appear and testify before the grand jury.
An attorney will request a meeting with the Assistant United States Attorney (AUSA) handling the case and the agent leading the investigation. He or she will also request any available pre-indictment discovery. The attorney will identify what, if any, charges the government can bring against the client. He or she will charge bargain or work to shape an eventual indictment.
The AUSA may require the client’s cooperation in order to obtain a reduced charge. Other times, the reduced charge is a reward for a quick disposition of the case.
Step 2: Avoid Harmful Stipulations
Often, a client concedes guilt but disputes the extent of his or her criminal involvement. Legal guilt and aggravating sentencing factors must be disaggregated. The AUSA may propose a factual resume (confession) that triggers a slew of sentencing enhancements. Reject this language, or in the alternative, request a plea to a statute with a statutory maximum that makes it void. When an agreement cannot be reached, the best strategy is to agree on a narrower factual resume. This approach leaves contested issues open for the sentencing judge to consider. Beware, however, of statutory minimums that eliminate a judge’s discretion.
Step 3: Limit Discussion of the Offense with US Probation
After a guilty plea, the Court will order the client to meet with U.S. Probation. The client should not discuss the details of the offense. Inadvertent misstatements of facts can lead to the denial of acceptance of responsibility (which raises a client’s sentencing recommendation). Moreover, the government’s rebuttal to the client’s claims could lead to a “presentence report” heavily shaped by the investigative agent’s narrative. It makes sense for defense counsel to identify areas of potential disagreement with the government. But because most judges in the Northern District of Texas will entertain these arguments during the sentencing proceedings, it streamlines the process to note these disagreements in official filings. Thus, the judge can better weigh each party’s position.
Step 4: Review and Object to the Presentence Report
Once the presentence report issues, review it line-by-line with your client. This process provides the client an opportunity to object to any misstatements in the report or shed light on areas of particular concern. Meanwhile, focus your attention on the offense level calculation and the client’s criminal history score.
In fraud cases, clients typically have no criminal history. Their sentencing recommendation is driven by the artificial concept of intended loss, i.e. the amount of money they could have obtained through a criminal scheme. The offense level is also determined by the alleged number of victims, whether a scheme is ‘sophisticated’, took place within multiple jurisdictions, involved identity theft, and other factors. Review the case law and test the factual basis for these enhancements against the facts in the presentence report and the government’s discovery.
In crimes involving guns or violence, defendants more often have criminal history. Their priors may be characterized as ‘crimes of violence’ or ‘serious drug trafficking offenses’. Obtain the judgments, confessions and indictments from those prior matters. These documents are necessary to contesting unwarranted designations. If you are new to federal criminal law—get help. This area of law is fast changing and complex.
Finally, file timely objections. If you need more time—request it. Appearing at sentencing to articulate complex factual and legal issues for the first time will frustrate the court and not inure to your client’s benefit.
Step 5: Present Mitigating Evidence at Sentencing
The recommended Guideline sentence is but one factor that a judge must consider but is free to reject. Get to know your client through repeated interactions, soliciting letters from family and employers, gathering school and court filings (e.g., child custody home studies, child protective services records, past psychological evaluations) and visits to the neighborhood in which they live or grew up.
Judges in this district are amenable to receiving video sentencing memorandums and other multi-graphic media. Not each case has a neat story arc—promise, loss and redemption. But sometimes a simple Excel chart that compares sentences among co-conspirators or graphs that illustrate the prevalence of a purported offense (e.g., marijuana usage) or the national decline in average sentence length (e.g., sentences in cases involving pure methamphetamine) can help convey an important point and help avoid unwarranted sentencing disparities.
The best advice for success at a federal sentencing hearing is to work in reverse with clients—get their life story during the initial client intake process, review discovery long before an indictment issues, and prepare for the sentencing hearing even as you negotiate and structure a client’s plea deal.
Gabriel Reyes, of The Law Office of Gabriel Reyes, PLLC, may be reached at firstname.lastname@example.org.