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What Happens Before A Sentence Is Imposed In Federal Court?

By Spodek Law Group | July 27, 2023
(Last Updated On: October 13, 2023)

Last Updated on: 13th October 2023, 08:21 pm

What Happens Before A Sentence Is Imposed In Federal Court?

So you, or someone you know, has been convicted of a federal crime. Now it’s time for sentencing, which can be a confusing and stressful process. This article will walk you through, in plain English, what typically happens leading up to and during a federal sentencing hearing.

The Presentence Report

After a conviction at trial or guilty plea, the next major step is the presentence report (PSR). This detailed report is prepared by a probation officer and contains information on the defendant’s background, criminal history, and the circumstances of the offense. It also calculates the sentencing guidelines range that will apply.

The probation officer will interview the defendant to get information for the PSR. The defendant should cooperate and be truthful, as the PSR heavily influences the sentence. Both the prosecution and defense also submit information to the probation officer.After completing the PSR, the probation officer shares it with both parties. The defense lawyer and prosecutor then have time to object to any factual errors or guideline calculations they believe are incorrect.

Resolving these objections can require informal discussions or a more formal “sentencing hearing” with testimony from witnesses. It’s critical to identify and resolve major objections, as the final PSR goes to the judge and forms the factual basis for sentencing.

How the Guidelines Work

The PSR calculates a recommended range under the US Sentencing Guidelines. This complex system takes into account factors like the crime committed, the defendant’s criminal history, and characteristics of the offense.The guidelines assign numerical values to these factors. The total offense level and criminal history category produce a range in months of recommended imprisonment. For example, an offense level 12 and criminal history I would produce a range of 10-16 months.

While only advisory after United States v. Booker, judges still closely consider the guideline range. So it’s important to understand how the probation officer made the calculations.

Departures and Variances

There are two ways the court can impose a sentence outside the guideline range: a “departure” or a “variance.” Departures are based on provisions within the guidelines themselves that authorize going above or below the range in certain circumstances. For example, the guidelines permit a downward departure if the defendant provided “substantial assistance” to the government. Upward departures are also possible for things like extreme conduct or harm not adequately considered by the normal calculations.

A variance, on the other hand, is when the judge imposes a sentence above or below the guidelines based on the broader sentencing factors in 18 U.S.C. §3553(a). These include the nature of the offense, the defendant’s history and characteristics, the need to promote respect for the law and provide just punishment, etc.

Variances are the way judges can individualize sentences after Booker made the guidelines advisory. However, major variances still require persuasive justification to withstand appeal.

The Role of Mandatory Minimums

Some federal offenses like drug or firearm crimes carry mandatory minimum sentences set by statute. These override the guidelines by requiring a minimum term of imprisonment, often several years. Mandatory minimums severely limit the court’s discretion. The judge cannot go below the minimum, no matter what the guidelines recommend or other 3553(a) factors support. Mandatory minimums also give tremendous power to prosecutors, who can essentially dictate the sentence through charging decisions.

There are some exceptions. The “safety valve” allows sentences below mandatory minimums for certain non-violent drug defendants who meet requirements like having a minor criminal history. Defendants can also cooperate and provide “substantial assistance” to the government in investigating or prosecuting others in order to obtain a sentence below an applicable mandatory minimum.

Plea Agreements and Stipulations

Most federal cases end in a plea agreement under Federal Rule of Criminal Procedure 11(c). These agreements allow prosecutors and defendants to stipulate to certain sentencing issues, like the facts, guidelines calculations, or applicability of any mandatory minimums. Plea agreements often include the government’s recommendation of a specific sentence or range, such as the bottom or middle of the guidelines.

Defendants get benefits like having charges dropped or reduced, capping their exposure, or obtaining a government motion for a reduced sentence for cooperation.Judges have discretion to accept or reject plea agreements. If the court rejects it, the defendant can withdraw their guilty plea. However, judges usually accept agreements that follow the guidelines and don’t undermine the sentencing factors in §3553(a).

Sentencing Memorandums

In preparation for sentencing, both sides will often file sentencing memorandums. These lay out their positions on the guidelines, appropriate sentence, and any other disputed issues. Sentencing memos are the chance to persuade the judge to adopt your view of the facts, guidelines, and §3553(a) factors. The defense will argue for the lowest reasonable sentence, while prosecutors urge the harshest justifiable punishment. These memos preview the arguments each side will make at the sentencing hearing. Submitting them in advance gives the judge time to consider each party’s position. However, the memos should not just repeat objections already raised to the probation officer.

Victim and Community Impact

Crime victims have a right to participate in the sentencing process under the Crime Victims Rights Act (CVRA). Victims can submit written impact statements and also have a right to speak at sentencing. These statements describe how the crime affected the victim emotionally, physically, and financially. Community members may also submit impact statements if the crime affected the broader community. Judges must consider victim impact statements under §3553(a). Prosecutors also rely on them to argue for higher sentences. However, the court ultimately decides the sentence based on all the statutory factors.

Continuances and Delays

Sentencings do not always happen on the first scheduled date. It’s common for hearings to be continued or delayed, sometimes more than once. Reasons include ongoing plea negotiations, unresolved objections to the PSR, outstanding motions, or scheduling issues.

Defendants on bond remain out of custody until sentencing. But for defendants in custody, delays prolong time spent in jail waiting for resolution. Continuances requested by the defense or jointly with the prosecution stop the Speedy Trial Act clock. However, judges are reluctant to grant last-minute requests, so counsel must have compelling reasons when seeking to push back the sentencing date.

The Sentencing Hearing

When the big day finally arrives, the sentencing hearing allows both sides to argue for their desired sentence. While less formal than a trial, sentencing still involves admitting evidence and witness testimony to resolve factual disputes.

The process begins with the probation officer summarizing the final PSR and addressing any unresolved objections. The judge rules on any outstanding guidelines issues and objections to the PSR.Next, the prosecution makes their sentencing argument, followed by defense counsel arguing for the lowest justifiable sentence. The defendant is also given an opportunity to speak directly to the judge before imposition of sentence.In imposing the sentence, the judge walks through the guidelines calculations and considers the §3553(a) factors. While the guidelines are advisory, major departures require justification grounded in the facts and statutory sentencing factors.

Once pronounced, the court enters a written judgment. The Bureau of Prisons (BOP) will designate the specific facility where the defendant will serve their sentence. Defendants have 14 days to appeal the sentence or conviction.


Sentencing is the culmination of an extensive and often contentious process. Early involvement by experienced defense counsel is key to getting the most favorable outcome possible. This includes guiding the PSR process, negotiating plea agreements, crafting persuasive sentencing memos, and presenting the strongest mitigation case before the court.

While daunting, understanding the process, key documents, and legal framework allows defendants and their families to better navigate federal sentencing. This overview highlights the most critical steps and key leverage points for achieving the lowest reasonable sentence based on the unique facts of the case and characteristics of the individual defendant.


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