What is a Federal Sentencing Memorandum?
Criminal defense attorneys write a federal sentencing memorandum to help persuade the judge that the lowest-possible sentence is appropriate at a federal sentencing hearing. It can be one of the most impactful things a federal practitioner does and often carries a lot of weight with the judge.
The memorandum, also called a sentencing memo, aims to present a fuller picture of the defendant’s circumstances, including biographical history, personal hardships, and factors that may have led to poor decisions, including the offense at hand.
The document also includes positive attributes and redeeming qualities, relevant background on the defendant’s health, mental health, substance abuse history, and dysfunctional family dynamics.
The court will use three reports when determining the appropriate sentence. The others are the probation department’s presentence investigation report and the prosecutor’s sentencing memorandum.
All three documents describe the offense, nature, and circumstances surrounding the events. The defense frames the offense in the most favorable light for the defendant. The probation officer’s presentence investigation report (PSR or PSI report) and the prosecutor’s memorandum oppositely frame the offense.
The judge reviews the PSR, the memorandums from both sides, and any character testimonials for the defendant before sentencing.
If you’re facing a federal sentence, legal representation is vital. Varghese Summersett’s team of federal defense attorneys includes former federal and state prosecutors.
This blog post explains federal sentencing memorandums, their importance, and how judges use them.
What information is included in a federal sentencing memorandum?
Federal sentencing guidelines limit much of what the judge can consider. Savvy federal defense attorneys, however, can ensure the judge is aware of background information that better reflects on their client in a well-written federal sentencing memorandum.
These areas include, but are not limited to:
- Highlighting improvements in the defendant’s behavior and mindset;
- Outlining the defendant’s future goals and aspirations;
- Defining and emphasizing the defendant’s redeeming qualities;
- Contrasting their sentencing with other defendants’ or co-conspirators’ sentences;
- Emphasizing the defendant’s lack of danger to society;
- Making specific requests about where the defendant should be housed – and why.
The defense’s memorandum typically challenges any incorrect claims made by the prosecutor or the probation officer.
What is the reason for a federal sentencing memorandum?
A federal sentencing memorandum allows the defense to persuade the judge why a lighter sentence would be appropriate. The defense typically argues reasons for a sentence lower than the advisory guidelines in the memorandum.
For instance, if the sentencing guidelines call for an advisory 60-month sentence, the defense memorandum would argue why it should instead be a 24-month sentence.
Letters of support from family members, friends, and other members of the community help testify to the defendant’s moral character and reputation.
What is the federal probation officer’s interview with the defendant?
During the presentence investigation process, the federal probation officer typically interviews the defendant for about an hour. The interview often occurs immediately following the change of plea hearing or after a guilty verdict if the defendant goes to trial. If not, the probation officer schedules the presentence report interview with the defendant and their attorney.
The probation officer is likely to ask the defendant about details of the offense, their criminal history, family history, education, employment, and other significant factors affecting their lives.
The probation officer will attempt to verify the defendant’s account with a family member or close friend.
The defendant could be required to provide proof of the information sought by the probation officer, including employment records, marriage or divorce documents, medical records, military service records, school transcripts, and any counseling or mental health records.
The officer will attempt to obtain documentation separately if the defendant is unwilling or unable to provide it.
The officer could also visit the defendant’s residence to assess their living conditions, relationships, and community ties.
Federal sentencing memorandums usually quote sections of the presentence report, which underscores the importance of the interview.
What is the probation department’s presentence report?
A presentence investigation report from the probation department holds considerable weight in federal case procedure, and judges rely on its contents for sentencing.
The PSR describes the defendant’s background, prior criminal history, family situation, and personal history. The PSR also describes the offense in which the defendant was convicted and features characteristics that differentiate the defendant from others convicted under the same provision of federal law.
For example, the PSR would include the type, quantity, and number of sales the defendant made in a drug case. In a fraud case, the PSR could consist of the number of victims, the intended loss amount, and the sophistication of the fraud by the defendant.
The offense’s characteristics substantially impact the appropriate calculation of the sentencing range of the defendant’s advisory sentencing guidelines.
The PSR includes a “recommended guideline range” for sentencing based on the offense, enhancements and reductions, and criminal history. This helps inform the judge’s evaluation of a fair sentence to impose.
The defense’s federal sentencing memorandum should address the PSR and challenge any inaccurate or unfair characterizations suggested in the probation department’s report.
Does a federal defendant have to answer the probation officer’s questions?
No, defendants can refuse to answer questions or provide information during the presentence interview. An attorney may advise the defendant not to answer specific questions or sign releases of information.
What do judges consider when reviewing federal sentencing memorandum?
Title 18 U.S.Code § 3553 requires judges to consider certain factors when determining the sentencing in a case. The code states, “the court shall impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth …” by considering:
- The nature and circumstances of the offense and the history and characteristics of the defendant;
- The need for the sentence imposed to (1) reflect the seriousness of the crime, promote respect for the law, and provide just punishment, (2) afford adequate deterrence to criminal conduct; (3) protect the public; (4) provide education and vocational training;
- The kinds of sentences available;
- The need for warranted sentence disparity among similarly situated defendants;
- And the need to provide restitution to the victim.
When does a federal sentencing memorandum need to be filed?
A federal sentencing memorandum from the defense should be filed with the court within 14 days of receiving the presentence investigation report from the probation department.
How are federal cases different from state court cases?
In state court practice, parties rarely file formal federal sentencing memorandum, especially after a negotiated plea agreement is reached.
Conversely, federal court practice usually includes formal written sentencing positions from the defendant and the government.
Why is this? Mostly it’s because federal judges have much more sentencing discretion than state judges.
Even in federal cases in which a plea has been negotiated, the judge often has substantial discretion to stray from the guidelines range agreed to by both sides, whether it’s increasing or decreasing the punishment.
Federal sentencing hearings are typically not lengthy processes. Therefore, the federal sentencing memorandum could be the defendant’s most crucial document.
What is included in a federal sentencing memorandum?
The defendant’s history and personal life are also factored into the judge’s sentencing determination. The federal criminal defense attorney is wise to supplement the federal sentencing memorandum with letters addressed to the judge from family and friends advocating for a less harsh sentence.
The defendant also often presents a letter to the court explaining their conduct and requesting leniency.
What is the federal prosecutor’s federal sentencing memorandum?
The government’s prosecutor files a federal sentencing memorandum supporting its sentencing position. As you’d expect, the prosecutor’s memorandum typically requests a harsher sentence than the defense.
The government’s memorandum will include its own guidelines calculation and, most likely, a less-favorable assessment of the applicability of the equitable factors in Title 18 USC § 3553(a).
The prosecutor will likely argue against any downward departure or defense-favorable variance from the sentencing guidelines range.
Do you need a federal criminal defense lawyer? Call us.
If you or a family member is facing federal sentencing, you need an accomplished Varghese Summersett federal criminal defense attorney fighting for you. We will listen to your story and learn your background to ensure we craft an effective federal sentencing memorandum on your behalf.
The memorandum’s strength could substantially affect receiving the best possible outcome in your case. The earlier we are involved, the better your result could be. Call us for a free consultation at 817-203-2220.