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,
- 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: