When Can Police Interrogate a Minor?

Have you ever wondered when the police or even CPS can interrogate a minor in Texas? Let’s face it. Kids don’t always make the best choices and, sometimes, they get caught up in bad situations. Maybe they witnessed a crime or are suspected of committing one themselves. So what happens when police want to talk to a minor regarding a crime or criminal investigation? In this blog post, we are going to discuss juvenile rights and what happens (or should happen) when police question a child or take them into custody.

What is a juvenile in Texas?

First, let’s start with the basics. In Texas, a juvenile is defined as a person who is at least 10 years old but not yet 17. Youth between these ages are handled by the juvenile justice system, and there are very specific rules and rights when it comes to interrogations and arrests.

Can police interrogate a minor without parental consent in Texas?

Most people believe police can’t question a child without the consent of his or her parents. This is a misconception. In Texas, police officers are allowed to question a child without parental consent or prior permission as long as the questioning is done in a non-custodial setting. In other words, as long as the child is not in handcuffs, detained, or in custody, police can approach them and question them without parental knowledge.

So, for example, if a police officer shows up outside the youth’s school and wants to talk – and the child willingly answers the officer’s questions – the parents may not even find out about it if their child doesn’t tell them. That’s a scary thought for most parents.

In fact, most conversations with the police take place at school with absolutely no notice to the parents. 

It’s also important to note that, in this type of setting, police also do not have to give the juvenile their Miranda warnings.

Can CPS question a child without parental consent in Texas?

Employees of the Department of Family and Protective Services – often referred to as “CPS” are routinely given access to students – and yes, they do question or interrogate students without a parent’s knowledge.

Can my child refuse to answer the officer’s questions?

Yes – and they should. If a youth is approached by a police officer who wants to talk, the child should tell the officer that they want a parent or a lawyer (or both) and then remain silent. At that point, the officer must stop asking questions and allow the child to contact a parent or guardian.

Unfortunately, most children don’t know their rights or are too scared to assert them. This is one of the reasons why it’s so important for parents to educate their kids on what to do if they’re ever approached by police.

What specifically should my child say to stop questioning?

It’s important for your child to be polite and respectful at all times. However, a child should also be firm when asserting their rights. For example, your child can say something like:

• “I don’t want to talk to you without my parents or a lawyer.”
• “I want a lawyer.”
• “I am not going to talk to you.”

Can parents refuse to allow police to speak to their child?

Let’s say a police officer calls you and asks to speak to your child. You can politely decline and assert your child’s right to an attorney. Realistically you can’t prevent them from showing up at school. What you can do is hire an attorney for your child – generally one who is not representing you – and have the attorney make contact with the police department or CPS and say the child is represented and any questions must come through the attorney.

What happens when a child is taken into custody?

When a child is taken into custody, the rules change. In this situation, police are required to “promptly give notice” to the juvenile’s parent or guardian and to tell them why the child has been taken into custody.

The child must be taken to a juvenile processing office – often a room in a police station or sheriff’s office specifically used for temporary juvenile detention. Once here, a parent, guardian, or attorney is allowed, by law, to speak privately with the juvenile for a reasonable period of time. During this interaction, they can advise the child not to voluntarily speak with the officer.

Can a parent be in the room during in-custody police interrogations?

The law does not require a parent, guardian, or attorney to be present when police question a child who is in custody. However, if a parent asks to be present, it is in the best interest of the officer to allow it – or expect an aggressive courtroom challenge.

Police Want to Question Your Child? Contact Us.

If the police want to question your child about a criminal matter in Fort Worth or the surrounding area, it’s imperative to contact an experienced juvenile defense attorney right away. It is never a good idea to speak to the police without first consulting with an adept juvenile attorney – regardless of the child’s involvement in the situation.

Juvenile law is a highly-specialized area that requires very specific knowledge and expertise. Varghese Summersett is one of the few law firms in North Texas with a Board Certified Juvenile lawyer on its team. Attorney Lisa Herrick has vast experience handling juvenile cases and will protect your child’s rights every step of the way. Call 817-203-2220 today for a free consultation.

Federal Sentencing Hearings

A federal sentencing date is, undoubtedly, a day no one looks forward to. This is the day when a judge announces a defendant’s prison sentence and how long he or she will be on supervised release after serving time. The judge will also order any fines or mandatory financial assessments at this time, as well as announce any assets that are being forfeited.

It is a difficult day, to be sure.

In this blog post, we will explain what happens at federal sentencing so that you and your loved ones know what to expect and can be prepared. It’s important to understand the process – even though this knowledge likely won’t soften the blow of what are typically very high federal sentences.

Please take a moment to watch this comprehensive video on the federal sentencing process by Board Certified Criminal Defense Attorney Benson Varghese:

What occurs prior to federal sentencing?

By the time federal sentencing occurs, a number of things will have occurred to help the judge arrive at a decision. After a plea or finding of guilt, a probation officer would have met with the defendant and interviewed them. A good attorney will be present at that interview; a great attorney will have spent time preparing the defendant for how to best answer the probation officer’s questions.

The probation officer then prepares a Pre-Sentence Investigation Report (PSR), which is submitted to the judge upon completion. This report draws from the defendant’s answers, as well as answers from the prosecutor, the agent working the case, other defendants or witnesses, and a summary of a variety of case documents and records. In the PSR, the probation officer gives the judge a “recommended guideline range” for sentencing. This range is based upon the offense conduct, enhancements and reductions, and criminal history.

While this guideline range is not mandatory, many judges are “guideline judges.” In other words, they routine sentence within the recommended guidelines, particularly if they “grew up” as judges when the guidelines were mandatory.

Does the defense get a say in the Pre-Sentence Investigation Report?

Once the PSR is complete, the defendant’s defense attorney will be able to read it and make written objections. These are typically not factual objections, but rather, objections based on how the law was applied to the facts.

For example, it is not uncommon for an experienced federal defense attorney to argue that a specific enhancement added by the probation officer in the PSR is being incorrectly applied. However, it is generally not an argument to take issue with the statement of a witness, who is embellishing or being untruthful in the PSR. Why? The judge is allowed to consider uncorroborated, hearsay statements of co-conspirators. Relevant conduct doesn’t have to be proven by proof beyond a reasonable doubt – just a preponderance of evidence, which is just a tipping of the scales.

The defense attorney also has the opportunity to file other documents, including a downward variance (a sentence below the recommended guideline range); a departure (a guideline policy that calls for a lower sentence); a sentencing memorandum; and character letters on behalf of the defendant.

Our experienced federal defense attorneys use these motions, memorandums and letters to give the judge every reason possible to sentence below the recommended guidelines. We understand that judges tend to stay within the guidelines, so some of our arguments are about a departure, while others are about a variance.

What is a sentencing memorandum?

Federal sentencing memorandums, also called sentencing memos, are written by the defendant’s criminal defense attorney in an effort to present a complete picture of the defendant in an effort to persuade the judge to consider lighter punishment. Sentencing memos, which are kept under the court’s seal, are often very compelling, detailing the defendant’s hardships and tough times, as well as good deeds and positive attributes. The sentencing memo will contain a description of the nature and circumstances of the offense – but unlike the PSR, it is framed in the light most favorable to the accused.

The memorandum will go into the biographical background of the defendant, explaining hardships and factors that may have led to poor decisions. This could include health problems, substance abuse, mental health issues, and dysfunctional family dynamics. The memorandum will also highlight all of the defendant’s good and redeeming qualities.

Although the sentencing guidelines limit much of what the judge may consider, the experienced federal attorneys our Varghese Summersett make every effort to give the judge any  information we think will be helpful, including but not limited to:

• highlighting changes in the defendant’s behavior and mindset;
• discussing the defendant’s future goals;
• underscoring the defendant’s redeeming qualities;
• pointing out how this sentencing compares with other defendants’ or co-conspirators’ sentence;
• discussing lack of danger to society;
• making specific requests about where the defendant should be housed – and why.

The main goal of the sentencing memorandum is to persuade the judge that the lowest sentence possible is appropriate.

Before sentencing, the judge will have reviewed the PSR, the filings from both sides, as well as all the character letters.

What happens at federal sentencing?

At sentencing, the federal district judge will call the case and the parties will be identified. Specifically, the judge will read the case number and the prosecutor and defense attorney will be named for the record. The defendant will also be identified.

Afterward, the judge will go over the procedural history of the case, reciting the order of events, including the defendant was charged, when they pled, etc, The judge will then ask if both sides if they received the pre-sentence investigation report in a timely manner. The judge will then address any objections made to the pre- sentence report. There is generally no new evidence provided at this time. Again, this because the arguments are generally about the application of the law, not the facts. After the objections are addressed, the judge will announce the recommended guideline range as amended by any objections.

After this, the judge will acknowledge the receipt of filings by the prosecution and defense and will allow both sides to make any final, closing remarks. Experienced attorneys know what type of arguments resonate the most with a particular judge, but in general, federal court is much more subdued than what you see on television. This is because the judge’s decision is almost entirely based on written submissions. The judge will hear any arguments made, but the oral presentation is generally just to highlight what the judge already knows.

Finally, the judge will allow the defendant to speak. Our advice to clients is to speak sincerely, show remorse, express empathy for victims, have a plan for the future – and most importantly, accept responsibility.

After hearing all the arguments and presentations, the judge will pronounce the sentence. This will be the number of months the defendant is in custody, the number of years they will be on supervised release, and any fines or fees that are being imposed. The sentence is never an easy number to hear.

It’s important to understand that the number you hear at federal sentencing is really the worst-case scenario. In reality, the sentence will be less than that because most federal inmates earn seven days of credit for every five days they are in federal custody. That is up to 54 days of good time credit for every year of their imposed sentence.  Of course, good time credit, of course, is not guaranteed and depends on a person being “good” while in custody.

How long does federal sentencing take?

The federal sentencing process itself is not lengthy. However, there may be a number of cases set on your sentencing date, so it is hard to predict how long you or your loved ones may wait in court. Even the most efficient judges routinely deviate from the scheduled order of events.

Can I get time off my sentence through the First Step Act?

The First Step Act is an initiative that is still fairly new, but it gives inmates credit for working at a job or an approved class. For every 30 days of classes or work that you do in prison, you can earn up to 15 days of credit. However, be aware that this is a new program – not every facility has every class and the Bureau of Prisons is still behind on implementing systems to document the credit prisoners receive.

Generally speaking, to earn credits in prison, you cannot have disciplinary infractions. For First Step Act credits, the prisoner must come back as a minimum or low risk on the BOP Risk Assessment tool; must be in the country legally; and must not have committed a disqualifying offense. You also must be eligible for pre-release custody, such as halfway house or home confinement. Examples of programs that can results in credits through the First Step Act include:

• Anger management
• Apprenticeship training
• Assert Yourself for female offenders
• Basic cognitive skills
• Brave
• Bureau literacy program
• Certification course training
• Challenge program
• Cognitive processing therapy
• Criminal thinking
• Dialectical behavior therapy
• Emotional self-regulation
• Federal prison industries
• Female integrated treatment
• Foundation
• Illness management & recovery
• Life connections program
• Mental health step down program
• Money smart for adults
• National parenting from prison program
• Non-residential drug abuse program
• Post-secondary education
• Residential drug abuse program (RDAP)
• Resolve program
• Seeking safety
• Sex offender treatment program non-residential
• Sex offender treatment program
• Skills program
• Social skills training
• Stages program
• Threshold program
• Vocational training

Finally, it is reasonable to expect we will see future changes to the First Step Act. It comes as a surprise to some that the First Step Act was signed into law by President Trump. It is fair to say that as time goes on, there are more and more bipartisan efforts to reel in the unfair federal sentences that are handed down.

If you had been sentenced before 2018, you probably would have never imagined that something like the First Step Act would be passed. As you consider your sentence, keep in mind that future changes could be made that can decrease you or your loved one’s sentence.

One of the most important things a loved one can do during this trying time is to be supportive and a source of encouragement and hope. The winds of change – for the better – are slowly making their way through the federal system. Do not let the pronouncement of the sentence discourage you. This is a journey and you will get to the other side of it.

Questions about Federal Sentencing? Drop a Comment Below.

It’s a hot summer day and you are out running errands with your toddler. You park in a convenience store parking lot and notice that your baby is asleep in the car seat. You decide to quickly run into the store, leaving your child in the car unattended. Can you be arrested for leaving a child in a vehicle in Texas?

In Texas, it is a crime – a misdemeanor – to leave a young child in a vehicle for more than five minutes unattended. If the child is injured or dies as a result of being left in the car – tragedies we sometimes see in the brutal summer heat – you could be charged with a serious felony.

In this article, we are going to discuss the law and the potential consequences of leaving a child in a vehicle in Texas. We will also give some real examples of when this has happened and why police and prosecutors take this offense so seriously.

If you or a loved one has been accused of leaving a child in a vehicle, it is extremely important to contact an experienced defense attorney immediately. Not only could you be facing criminal charges, but Child Protective Service (CPS) could also get involved. Our team has handled dozens of cases involving crimes against children – first as highly-skilled prosecutors and now as highly-coveted defense attorneys. We can help.

What does Texas law say about leaving a child in a vehicle in Texas?

Under Texas Penal Code 22.10, a person commits an offense if he or she intentionally or knowingly leaves a child in a motor vehicle for longer than five minutes, knowing that the child is:

• younger than seven years of age; and
• not attended by an individual in the vehicle who is 14 years of age or older.

As you can see, briefly leaving a child in a vehicle is not always illegal. Still, it is always better to err on the side of caution. If you are leaving a child in the car, even for just a minute, make sure that the child is supervised by someone 14 years of age or older.

What is the punishment for leaving a child in a vehicle in Texas?

In Texas, it is a Class C misdemeanor punishable by a maximum $500 fine for leaving a child in a vehicle in Texas. This offense is classified as neglectful supervision, which means CPS will also likely get notified and may launch their own investigation. If evidence of child abuse or neglect is found, the child could be removed from your home.

As we mentioned earlier, if the child suffers bodily injury or dies as a result of being left in the car, you could be facing much more serious charges – including a felony charge of endangering a child. We will discuss that next.

When is it a felony to leave a child in a vehicle in Texas?

There are several scenarios that could result in a felony charge of endangering a child, stemming from leaving a child in a vehicle unattended. In Texas, child endangerment occurs when someone puts a child under the age of 15 at risk of injury, disablement or death.

We often see this charge when people leave their children locked in hot vehicles and the child suffers from a heat-related illness or death. We also sometimes see this charge when a car is stolen with a child inside.

It’s important to note that the child does not have to be your own to be accused of child endangerment. The act also doesn’t have to be intentional. For example, you could be charged with child endangerment if you accidentally left your child in a hot vehicle and the child became ill or died.

What is the punishment for child endangerment?

Child endangerment is generally a state jail felony, punishable by six months to two years in a state jail facility and maximum $10,000 fine.  It’s important to speak with an experienced criminal defense lawyer to find out exactly what punishment you could be facing if you have been accused of leaving a child in a vehicle in Texas.

What are some real examples of people being arrested after leaving a child in a vehicle in Texas?

• In July 2022, a Houston woman was charged with endangering a child after leaving a 2-year-old child and puppy in a vehicle with the temperature in the triple digits.

• In May 2022, a mother was arrested in the Spring area after she allegedly left her 3-year-old child in a running car alone while she shopped at a Target store.

• In March 2022, an Odessa couple was arrested after leaving their three young children in a running vehicle while they went inside a restaurant to eat.

• In May 2018, two parents were arrested after they left their children, ages 1 and 3, unattended in a hot car in Burleson with the windows slightly opened. The couple left the children in the car with their 14-year-old uncle, who later left the vehicle to get a drink. A bystander saw the children sweating heavily and called Burleson police.

Will I be arrested if I break into a locked car to get out a child or a pet?

If you see a child or pet locked in a hot car and they appear to be in distress, you can break the window to get them out without fear of repercussion. Texas law protects you from being charged under the Good Samaritan Act, which allows people to administer emergency care without being held liable for damages.

Arrested for leaving a child in a vehicle in Texas?

If you or a loved one has been arrested for leaving a child in a vehicle, it is important to contact an experienced criminal defense attorney immediately. The police and CPS are going to want to speak with you – something you should not do without an attorney present. Varghese Summersett has a team of experienced criminal defense attorneys who previously served as specially trained child abuse prosecutors. We know how to defend these cases and will work tirelessly to get the best possible outcome for you and your family. Call us today at 817-203-2220 for a free consultation. We handle cases in North Texas, including Tarrant and Dallas and counties.

After someone is convicted in federal court – either by pleading guilty or by a trial – the federal sentencing process begins. Unlike state court, a judge is the only entity that can hand down a sentence in federal court. To arrive at a fair and just punishment, the federal judge relies heavily on something called a “Presentence Report,” or PSR. In this article, we are going to explain the PSR, and how you can prepare for the federal presentence interview, which is a critical part of the sentencing process.

What is a federal presentence report (PSR)?

A Presentence Report, or PSR, is an extremely important document in the federal sentencing process. It is a voluminous report that is generated by the United States Federal Probation Office, which contains a wealth of information about you – including the severity of your crime, criminal history, family background, employment history, mental and physical health, community ties, etc.

One of the primary purposes of the PSR is to provide the judge with recommended sentencing range. While the recommended guideline is not mandatory for the judge to follow, it’s a good starting point. Because federal judges rely heavily on a PSR in coming to a sentencing decision, it’s extremely important to put your best foot forward during your federal presentence interview with the probation officer.

It’s also important to make sure all the information contained in the PSR is accurate. The report is also used by the Federal Bureau of Prisons to help classify where a defendant should be housed and it will follow you through your time in federal custody if you are given prison time.

Who prepares a federal presentence report?

The PSR is prepared by a Federal Probation Officer (FPO), who will gather a plethora of information from a variety of sources, including:

• the defendant,
• the victim(s),
• family members,
• law enforcement,
• prosecutors,
• court documents and records, and
• other interviews.

It’s important to note that the federal probation officer will obtain much of his or her information through an in-person or Zoom interview with you, as well as other relevant parties.

What is a federal presentence investigation interview?

A presentence investigation interview is a formal question and answer session between a federal defendant and a federal probation officer. The purpose of the interview is to gather information for the court to consider as it relates to sentencing.

The interview usually takes place in jail or at the U.S. Probation Office. In recent times, due to the pandemic, interviews have also occurred through Zoom. The interview generally takes 90 minutes to a few hours. Afterward, the probation officer may spend several weeks preparing the report for the United State District Court Judge, who will use it to help him or her decide the appropriate sentence. It is impossible to overemphasize how important it is to take the interview seriously and to prepare appropriately.

How can you prepare for a federal presentence interview?

The federal presentence interview is a crucial part of the sentencing process, and it’s extremely important to be prepared. This is not the time to wing it. Your life and liberty are, quite literally, on the line.

The most important thing you can do is work with an experienced federal criminal defense attorney who has guided dozens of clients through pre-sentence investigation interviews. He or she will make sure you are adequately prepared and help you navigate the process.

The last thing you want is for an inexperienced attorney to show up at the presentence investigation interview without having prepped you – or even worse, not showing up for the interview at all and letting the probation officer handle the interview on their own without any oversight from a skilled defense attorney.

The federal attorneys at Varghese Summersett will spend the time necessary to make sure you’re prepared for your presentence investigation interview so you will not be caught off guard and can answer the questions in a way that is most favorable to you. We also help you identify ways to get your story out and use it to your advantage.

For example, hardships you endured as a child, such as neglect, abuse, or early exposure to drugs are all examples of things that we could use to help convince the judge that a low-end sentence is more appropriate than the higher sentence the government is pushing for or that probation recommends. That’s the kind of information that needs to make it into your PSR.

Any information contained in a PSR is considered by the judge to be credible and reliable. That’s why it’s important to work with your attorney and have an overarching mitigation strategy as you go into the federal presentence interview.

When you and your attorney are preparing for your federal presentence interview, it’s important to be brutally honest about all aspects of your life and crime. You want to be an open book about your past and especially things that may have adversely affected you or put you at a disadvantage.

We have had clients confide in us about things that they’ve never revealed to anyone else. While it’s not easy, this is the type of information that could make a very big impact on your potential sentence.

Where does the PSR interview take place?

If you are not in custody, the interview will take place at the United States Probation Office. You should arrive on time and dress as though you were going to church or a job interview. If you are not in custody, the interview will be conducted inside the jail. You will likely be in jail scrubs but should be clean and have a tidy appearance.

Regardless of the location, you should be polite and open to answering questions honestly and without reservation. Your attorney should have prepared you for the questions, boundaries, and any possible pitfalls.

What can you do before a federal presentence interview to better your position?

If you are fortunate enough to be out of custody, your actions need to show that you understand what you did was wrong (especially if this was a plea, as opposed to a trial). The federal probation officer will be looking for signs that you have taken responsibility for your actions and are working to improve yourself. Some things you can do before your federal presentence interview include:

• Get a job or go back to school;
• Volunteer in the community;
• Attend support groups such as Alcoholics Anonymous, Narcotics Anonymous or anger management classes.

If you are in custody, you should participate in as many programs as possible while incarcerated to show that you are trying to better yourself and learn from your actions or mistakes. These could include:

• GED classes
• Anger management
• Substance abuse treatment
• Parenting classes
• Vocational training
• Any other type of self-improvement program offered by the Bureau of Prisons.

If anyone was victimized by your actions, it’s important to try and make amends if possible. Express how your life is going to be different going forward. For example, if you have a drug problem, express that you plan on qualifying for the Residential Drug Abuse Program (RDAP), which can shave time off your sentence.

It’s important to understand that one mistake – or even a series of mistakes – does not define you. You do, however, need to change the narrative through your actions. Your actions say a lot about your character and can be far more powerful than anything you speak verbally.

What areas are covered during the federal presentence interview?

The probation officer will ask questions that fall into a number of broad categories. The officer will probably start off by asking your basic biographical information, such as your name, age, where you grew up, and who raised you. The officer will ask also questions about your educational and social background, including marital history and military experience.

We prepare our clients for this line of questioning by encouraging them to talk about hardships they have endured. We want clients to think outside the box. For example, we had a client who had their sentence reduced by 48 months – by the toughest federal judge in the Northern District of Texas – after making sure they told the officer about being wrongfully deported from the country.

Likewise, we want our clients to talk about the good things they have going for them, as well. For example, if you have professional training, specialized skills, or a history of giving back, be sure to discuss with your attorney the best way to bring up all of your positive attributes during the interview.

Before the officer even starts the interview, he or she will already have a summary of the offense and any relevant conduct. It’s important to understand that the officer’s information may have been provided by the prosecutor or lead agent, or statements by other individuals – even co-conspirators – who have an incentive to make you out to be the bad guy. There are parts of the pre-sentence report that will hurt you, which is why it’s crucial to take every opportunity to bring up things that can help you.

The probation officer will also ask about any past drug use – in detail. It is important to fully disclose the extent of your drug history and express an interest in treatment and rehabilitation – if that is something you want.

Before the conclusion of the federal presentence interview, we encourage our clients to seize the opportunity to express genuine remorse – especially if there were victims, either directly or indirectly. For example, someone who uses drugs – even if the drugs were never shared or distributed – might feel bad that their actions took them away from their family and, in that sense, their family is victim to their decisions and addiction.

Can I see the questions before the interview?

You will have an opportunity to view the federal presentence interview form prior to the interview. One strategy we often employ is to ask our clients to complete the interview forms before the actual interview and submit it to the probation officer. This makes it more likely that the probation officer will cut and paste your prepared answers into their form. This gives you a great chance to shape the narrative – particularly as to your background.

Does everything in the PSR come from my interview with the federal probation officer?

No, it’s important to point out that there will be quite a bit of information contained in the PSR that doesn’t come from the interview. For example, the officer won’t ask you anything about your criminal history – but their investigation into your criminal history will be included in the report. Each past offense will be summarized, with any applicable criminal history points assigned, and a total criminal history level will be calculated.

The same goes for the offense conduct. We generally advise our clients to “stand on the factual resume” which means they agree that the factual resume that was the basis for the plea is still true but they are not commenting further. Again, this is why it is important to have an experienced federal criminal attorney prepare you.

Likewise, there will also be medical, financial, and education information included that comes from official records. Before the end of your interview, the probation officer will ask you to sign release forms so he or she can obtain this information. The federal presentence interview is a huge part of the PSR, but it doesn’t account for everything in the report.

How do the probation officers come up with recommended guidelines?

The presentence report will summarize the offense conduct to come up with a base offense level. The base offense level may have further enhancements – which are based on specific facts – that could increase the offense level.

For example, if guns were present in a drug case, that would be a two-level increase in the offense level. There are also things that could reduce the base offense level. For example, accepting responsibility could result in a three-level reduction in the base level offense.

The effective offense level will be the offense level remaining after all the enhancements or reductions are considered. (Lying to a probation officer could result in an obstruction of justice enhancement; yet another reason to be truthful during the interview.)

Facing federal sentencing?

A federal presentence interview can be daunting but an experienced federal criminal defense lawyer can help you through the process and make sure you are as prepared as possible. After all, this is probably the most important interview of your life.

Our team of experienced federal defense attorneys have guided dozens of people through this process and we can help you, too. If you are under investigation or have been charged with a federal crime, call us today at 817-203-2220 for a free consultation. We have offices in Dallas and Fort Worth and serve the Northern and Eastern Districts of Texas.

Still have questions about federal sentencing?

Please watch this video by Board Certified Criminal defense Attorney Benson Varghese:

If you have been arrested for a federal crime, you will be asked to enter an initial plea of “guilty” or “not guilty” very early in the process. This can be confusing and overwhelming, especially if this is your first time in the federal justice system. In this article, we are going to explain what happens during your initial plea hearing and at a subsequent re-arraignment hearing.

What happens at an initial federal plea hearing?

Shortly after you are arrested for a federal offense, you will have an initial hearing before a magistrate who will inform you of your charge, as well as explain your rights – including your right to an attorney, right to a preliminary and detention hearing; and right to remain silent.

If you already have an attorney at the initial appearance, it’s possible that you could also be arraigned at that time and asked to enter a plea of guilty or not guilty. If you do not have an attorney, the arraignment will be scheduled later but still very quickly after your arrest.

During the arraignment, the judge will read the criminal complaint or indictment and ask you to enter a plea of “guilty” or “not guilty” to the indictment or criminal complaint. During a federal plea hearing, the judge is required to make sure you:

1) understand your rights;

2) understands the rights you are giving up;

3) are competent to proceed; and

4) is entering a plea voluntarily.

During the initial arraignment, most defendants enter a plea of “not guilty.” A “not guilty” plea is standard at this stage in the process, as the defendant needs time to receive and review the governments evidence and consult with their attorney at length before making a final decision on how to proceed or plead.

Why are federal pleas sometimes called re-arraignments?

After federal defendants review evidence, consult with attorneys, and negotiate with the government, they often decide to change their “not guilty” plea to “guilty” to take advantage of any benefits offered by the government. To change their plea, another hearing will be held, which is often referred to as a “re-arraignment.”

At re-arraignments, or the federal plea, the judge will often take guilty pleas from numerous defendants at the same time. This is because most of the plea colloquy is the same and, if the judge handled each defendant separately, it would tie up hours of the courts valuable time.

In the federal system, it’s important to understand that most cases do not end up in a jury trial where citizens listen to evidence and decide if someone is guilty or innocent. Most federal defendants plead guilty and then proceed to sentencing before a federal judge. This is a big difference between the federal system and the state system.

The federal plea colloquy

During a re-arraignment, the judge will announce the parties – the attorneys for the government and for the defense. The judge will also announce which defendant’s cases are being called for the plea. The jduge will then go through the following information with each defendant.

Identity in a Federal Plea

The plea will begin with the judge making sure the person before them is the person who intends on entering the plea. The judge will ask their name on the record. The judge may ask the person the spell their name. If you were indicted or otherwise charged, the judge can correct your name or “true name” you on the record. The judge will then ask each defendant their age and how far they went in school.

Ability to Comprehend

The judge will ask if they can understand English and if not there will be a translator who is already sworn in that the judge will acknowledge on the record. The judge will ask if the person entering the plea is under the influence of any narcotics or alcohol. If the person is on prescription drugs, the judge will ask if the medication is affecting the ability to understand what is going on. Similarly, the judge will ask about any substance abuse treatment and medical treatment a person is going through to the extent that it might affect their ability to understand what is going on.

Disclosing a Magistrate’s Role

If a magistrate judge is taking the plea for a district judge, the magistrate will explain that the district judge will have to approve the report of the magistrate judge for the plea to be finalized.

Entering the Plea Blind

It is very important to understand that for almost all federal pleas, there is no agreement as to what the sentence will actually be. That is very different than state cases. There are a number of reasons for this. First, all sentencing in federal cases is done by the judge. There is no jury punishment in federal criminal cases. Second, even in rare cases where there is an 11(C)1(c) agreement, the judge has the final authority to accept or reject an agreement with the Government as to sentencing. Instead in the federal system, a person only knows the range of punishment they are pleading to – such as 10 years to life, or 5 years to 40 years.

Federal Criminal Plea Paperwork

With those preliminaries out of the way, the judge will move on to the actual plea. Plea paperwork will already have been submitted to the court prior to the plea. This includes the plea agreement as well as the factual resume (the facts the defendant is agreeing to as the basis for the plea.) The judge will ask if the defendant has gone over the paperwork with their attorney and if it is their signature on both documents.

Constitutional Rights

If the defendant has not been indicted yet, the judge will make sure the accused knows they have a right to force the Government to secure an indictment through a grand jury. If the defendant is giving up that right (because they have negotiated a better outcome) then the judge will ask if the person understanding that right, wishes to give it up.

The judge will ask of the person understands they don’t have to enter a plea of guilty and instead they could force the Government to a jury trial. At a trial the Government would have to prove each of the elements they set out with proof beyond a reasonable doubt. The defendant would have the right to confront and cross-examine witnesses, to use the subpoena power of the court, and to choose to testify at trial. The judge would make sure that the defendant, understanding those rights, was giving them up to enter the plea.

Typically in a plea agreement, the person is also giving up their right to appeal unless the sentence imposed is outside the statutory range or if there was some mistake in the mathematical calculations used to arrive at the sentence.

Sentencing Warnings during a Federal Plea

The judge will confirm that although the defendant should have talked to their attorney about the possible sentence a court might impose, that nobody – not the judge, probation, pre-trial services, the prosecutor, or the defense attorney – could make any assurances as to what the actual sentence would be. Once again, it is critically important to understand that to some extent a person is entering a plea blind as to what the actual sentence will be. This is particularly true because most statutory ranges (like 5-40 years) are massive. At one end of the spectrum is a somewhat reasonable amount of time, at the other is what is effectively a life sentence for most people.

The judge will inform the defendant that if they plead guilty, they will be found guilty but there will be an opportunity at (and before) sentencing for the defense to ask for leniency.

The judge will ask questions to ensure the plea is voluntary – free from any threats or specific promises that induced the plea.

The judge will also remind the defendant that parole has been abolished and so a person sentenced in the federal system will not be able to parole out.

The plea itself

The judge will ask if the defendant wants the indictment read. Generally, this is waived. The judge will call on the prosecutor to read the essential elements of the offense and the punishment range into the record.

After ensuring all these things – that the defendant understands what is happening, the charge, the punishment range, the factual basis for the plea, how sentencing works generally, and the rights the defendant is giving up by pleading, the judge will ask how the accused pleads.

Process After Federal Plea

The judge will inform the defendant that after a plea, the defendant will meet with U.S. Probation with their attorney present for a presentence report interview. This interview and other materials gathered by U.S. Probation will become the basis for a preliminary applicable sentence guideline range. The range is a recommendation and not mandatory for the court to follow. The court will also accept any submissions by the defense for departure from those guidelines or any other departures under 18 USC Section 3553(a).

After a plea of guilty, the judge will order the defense attorney to make contact with the probation department to set up a time to have a presentence report interview. The judge will issue a scheduling order that will tell the parties when the report is due, objections are due, sentencing materials are due, and when the case is scheduled for sentencing.

Federal pleas can be – but rarely are – changed after a person pleads guilty. The person changing the plea should expect to lose any credit they would have gotten for acceptance of responsibility.

Prepare to watch a federal plea hearing

As you prepare to go into federal court, if you are there to watch a plea, remember to leave everything in your car. Unless you are an attorney, you cannot take a phone or other electronic device into most federal courthouses. You will go through a metal detector. Try not to wear anything that’s metal. Even if you have shoes or a belt that would typically make it through a metal detector – expect to remove even those to get into a federal courthouse.

If you have been charged with a federal criminal case, give a call to discuss your rights and strategies for trial or a plea.