When a person is convicted of a crime in federal court, the judge determines what their sentence will be by looking at various factors, including the individual’s personal history, the crime and conduct of which they have been convicted, and the Federal Sentencing Guidelines manual (which provides a suggested sentencing guideline range in every case).
The sentencing hearing normally happens three to four months after a person is found guilty, whether by guilty plea or after a conviction at trial. If the judge orders a sentence longer than twelve months, the individual is eligible for “good time credit” of up to 15 percent off the total, as long as there have been no disciplinary problems.
Before deciding what sentence to impose, the judge must consider the United States Sentencing Guidelines. The Guidelines are a set of rules used in federal court to calculate a recommended sentencing range in every case. The guidelines are “advisory,” which means that a judge must calculate and consider the guidelines range before imposing sentencing, but is not required to impose a sentence within the guidelines range. In other words, based on the arguments and evidence presented at the sentencing hearing, a judge may decide to impose a sentence below, within, or even above the guidelines range.
The United States Sentencing Commission promulgates the Sentencing Guidelines Manual and usually amends it every year. The current version of the Sentencing Guidelines Manual can be found here
In each case, the guidelines range is calculated based on two different numbers: (1) the offense level and (2) the convicted person’s “criminal history category.” The offense level is supposed to reflect how serious the offense is. For example, murder is at the top of the chart, at level 43. Theft of a small amount of money is closer to the bottom of the chart, at level 6. The offense level can go up or down based on other factors in the case. For example, the offense level will usually decrease with “acceptance of responsibility,” which is most often demonstrated by pleading guilty.
Criminal history category is calculated by giving “points” to every one of the person’s prior convictions. In general, a more serious prior conviction will receive more points. A less serious prior conviction will receive fewer points, or sometimes no points at all. Older convictions don’t count (15 years for more serious convictions; 10 years for other convictions).
After calculating the offense level and criminal history category, the judge will look at the federal Sentencing Table to find the applicable guidelines range. For example, in the case of a person convicted of an offense with an offense level of 16 who falls within criminal history category of II, the guidelines will call for between 24 to 30 months in prison. Again, that does not mean the judge has to impose a sentence within that range – the judge is free to sentence a person below or above that range so long as the sentence is consistent with any statutory minimum or maximum set by Congress.
Prior to sentencing, a probation officer will prepare a presentence investigation report, which is also known as a PSR. The probation officer conducts an interview in order to prepare the report. In every case, the attorney will be present during this interview. The interview will take place either in the jail, for clients who are incarcerated, or at the probation office, for clients who are released on bail. The interview will usually take place within a month after a guilty plea or guilty verdict.
It is extremely important to be honest in answering all questions during the presentence interview. It is okay to answer certain questions in writing. It is okay to refuse to answer a particular question. Consulting and talking with defense counsel in private is permitted and expected during this interview. However, since making a false statement to a probation officer is a separate crime, all answers during the interview must be truthful.
The topics covered in the presentence report are as follows: family background, education, employment, physical health, mental health, offense conduct, criminal history, and finances. The probation officer will usually ask for signed release forms so that the officer can obtain different kinds of records, including employment records, school records, medical records, and tax records. Typically, a probation officer will want to speak with a family member to verify the information given during the interview. In addition, the probation officer will usually make a “home visit” to see the place where a client will be living after the completion of any sentence.
Once the probation officer finishes gathering all the necessary information, they will write a draft presentence report. It is important to read this initial report very carefully. There may be factual errors. There may be legal errors. Some important information may have been left out. It is defense counsel’s obligation to point out these errors and objections to the judge and the probation officer prior to sentencing. The judge and probation officer may make changes in response to these objections.
After the draft report has been reviewed by all parties, the probation officer will send a final version of the presentence report to the judge. This final version will include a recommendation as to what the probation officer thinks the sentence should be. The judge will consider this recommendation prior to imposing sentence. The judge does not have to follow the recommendation of the probation officer. Ultimately, it is the judge, not the prosecutor or the probation officer, who decides what the sentence will be.
On the date of sentencing, one of the first things the judge will ask is if all parties have received a copy of the presentence report and had a chance to review the report. The first draft of the presentence report must be filed by the probation officer no later than 7 weeks prior to the date of sentencing. If a client wishes, this rule can be waived, and sentencing can take place sooner.
Typically, defense counsel will file a written submission with the court prior to sentencing called a “sentencing memorandum.” This memorandum will explain all relevant issues for the judge to consider. In addition to written arguments, both the prosecution and the defense are allowed to make oral arguments or call witnesses at the time of sentencing. The judge is also required to give every defendant in a criminal case the chance to speak before the judge imposes sentence. This is an opportunity for clients who want to say something to the judge. Prior to the hearing, defense counsel will talk with their clients about what, if anything, they want to say to the judge at the sentencing hearing and the best way to communicate that information.
A sentencing hearing, like all court proceedings, is open to the public. Family members can attend the sentencing hearing. Defense counsel will talk with family and other members of the client’s support system before the hearing about how best to support their loved one at sentencing.
After hearing from all parties, the judge will announce the sentence. Not everyone goes immediately into custody even when a prison sentence is imposed. In some cases, the judge will permit a person who has been released pretrial to "voluntarily surrender" at a later date, usually thirty to sixty days in the future. Whether the judge will agree to allow a person to voluntarily surrender depends on the individual case and on how well the person has behaved while on pretrial release.
If a prison sentence is imposed, the judge can make a recommendation to the Bureau of Prisons as to where (which prison facility) the sentence should be served. The Bureau of Prisons does consider this recommendation but is not required to follow the judge’s recommendation. In most cases, the judge will recommend that the client be designated to a facility as close as possible to family members to encourage family visits.
If a sentence of probation or supervised release is imposed, the client will have 72 hours to report to the probation office. It is usually a good idea to go directly from the courtroom to the probation office to check in. The probation officer will take general information on that date and provide forms to be filled out.
There is no longer any parole in the federal system. In most cases, a client will receive credit for all time served in federal custody before the date of sentencing. The only exception is for those clients who are either already serving another sentence or have been brought to court on a "writ of habeas corpus." For clients who have been brought to federal court by a writ, the time credit they receive will depend on whether any time spent in jail has been applied to another sentence. Usually, time credit is not given for time spent in immigration custody.
“Good time credit” will often reduce the amount of time a person spends in prison serving a sentence. For sentences of one year or less, there is no “good time credit” available. For example, a person sentenced to 12 months will serve all 12 months in a jail or prison, except for the last ten percent, which is usually served at a half-way house. For sentences of 12 months and one day or longer, a client is eligible for good time credit of up to 15 percent of their total sentence, as long as there have been no disciplinary problems while imprisoned. This means that on a 10-year sentence, for example, a client will often serve about eight and one-half years. The last ten percent of that eight and one-half years can be served at a half-way house. Under the Second Chance Act, the maximum period of time a client may serve in a half-way house is twelve months.
Clients who have a documented history of substance abuse may be eligible for an intensive 500 hour drug treatment program known as “RDAP.” Clients who successfully complete this program can receive up to a one year reduction in their sentence, as determined by the Bureau of Prisons. Clients who have been convicted of any “violent crime,” including gun possession, may participate in the drug treatment program but are not eligible for any sentence reduction.
Following the First Step Act of 2018, many people serving federal sentences may now obtain early release through Earned Time Credit. Eligible prisoners may earn these credits by participating in approved programs and activities. A person may earn between 10 and 15 days of credit for every 30 days of successful participation in approved programs and activities.